As filed with the Securities and Exchange Commission on February 9, 1998
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
------------------------
USN COMMUNICATIONS, INC.
(Exact name of registrant as specified in its charter)
------------------------
DELAWARE 36-3947804
(State of incorporation) (I.R.S. employer identification number)
10 SOUTH RIVERSIDE PLAZA
CHICAGO, ILLINOIS 60606
(Address of principal executive offices, including zip code)
AMENDED AND RESTATED 1994 STOCK OPTION PLAN
1997 OMNIBUS SECURITIES PLAN
1996 NONQUALIFIED STOCK OPTION GRANTS
(FULL TITLE OF THE PLANS)
THOMAS A. MONSON, ESQ.
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
USN COMMUNICATIONS, INC.
10 SOUTH RIVERSIDE PLAZA
CHICAGO, ILLINOIS 60606
(312) 906-3600
(NAME, ADDRESS AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF AGENT FOR SERVICE)
------------------------
WITH COPIES TO:
GARY P. CULLEN, ESQ.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM (ILLINOIS)
333 WEST WACKER DRIVE
CHICAGO, ILLINOIS 60606
(312) 407-0700
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Maximum Proposed Maximum Amount of
Title of Securities Amount to be Offering Price Aggregate Offering Registration
to be Registered Registered per Share (1)(2) Price (2) Fee (3)
------------------- ------------ ---------------- ------------------ ------------
<S> <C> <C> <C> <C>
Common Stock, par 4,048,990(4) $16.34 $66,160,497 $19,517
value $.01 per share
</TABLE>
(1) In accordance with Rules 457(c) and (h) under the Securities Act of
1933, as amended (the "Securities Act"), solely for the purpose of
calculating the registration fee, the maximum offering price per
share is based on the average of the high and low sales prices of the
Company's Common Stock on the Nasdaq National Market on February __,
1998.
(2) Estimated solely for the purpose of calculating the registration fee.
(3) The registration fee has been calculated pursuant to Section 6(b) of
the Securities Act.
(4) Includes (i) 979,380 shares of Common Stock under the Amended and
Restated 1994 Stock Option Plan, (ii) 2,750,000 shares of Common
Stock under the Omnibus Securities Plan and (iii) 319,610 shares of
Common Stock issuable upon exercise of the 1996 Nonqualified Stock
Option Grants, plus such additional number of shares of Common Stock
as may be issuable to prevent dilution under such plans or options.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
* Information required by Part I to be contained in the
Section 10(a) prospectus is omitted from this registration statement in
accordance with Rule 428 under the Securities Act and the Introductory
Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") by the registrant, USN Communications,
Inc., a Delaware corporation (the "Company"), pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), are incorporated
by reference in this registration statement:
(1) The Company's Annual Report on Form 10-K for the year ended
December 31, 1996.
(2) The Company's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1997, June 30, 1997 and September 30, 1997.
(3) The Company's Current Report on Form 8-K, dated January 7,
1998.
(4) The Company's registration statement on Form 8-A, dated January
28, 1998, filed pursuant to Section 12(g) of the Exchange Act, which
incorporates by reference therein the description of the Common Stock
contained in the Company's prospectuses, dated February 3, 1998, which
were filed with the Commission on February 3, 1998 pursuant to Rule
424(b) under the Securities Act of 1933, and which constitute a part of
the Company's registration statement on Form S-1 (333-38381), under the
caption "Description of Capital Stock,"
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the
filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference herein and to be
a part hereof from the date of filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for
purposes of this registration statement to the extent that a statement
contained herein or in any other subsequently filed document which also
is incorporated or deemed to be incorporated by reference herein modifies
or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this registration statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law ("DGCL")
empowers a corporation, subject to certain limitations, to indemnify its
directors and officers against expenses (including attorneys' fees,
judgments, fines and certain settlements) actually and reasonably
incurred by them in connection with any suit or proceeding to which they
are a party so long as they acted in good faith and in a manner
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to a criminal action or proceeding, so
long as they had no reasonable cause to believe their conduct to have
been unlawful. The Company's Certificate of Incorporation and By-laws
provide that the Company shall indemnify its directors and such officers,
employees and agents as the Board of Directors may determine from time to
time, to the fullest extent permitted by Section 145 of the DGCL. The
Company has entered into indemnification agreements with its directors
and certain of its officers, employees and agents, which provide that the
Registrant shall indemnify such parties pursuant to Section 145 of the
DGCL.
Section 102 of the DGCL permits a Delaware corporation to include
in its certificate of incorporation a provision eliminating or limiting a
director's liability to a corporation or its stockholders for monetary
damages for breaches of fiduciary duty. The enabling statute provides,
however, that liability for breaches of the duty of loyalty, acts or
omissions not in good faith or involving intentional misconduct, or
knowing violation of the law, and the unlawful purchase or redemption of
stock or payment of unlawful dividends or the receipt of improper
personal benefits cannot be eliminated or limited in this manner. The
Registrant's Certificate of Incorporation and By-laws include a provision
which eliminates, to the fullest extent permitted, director liability for
monetary damages for breaches of fiduciary duty.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
A list of exhibits is set forth on the Exhibit Index which
immediately precedes the exhibits and which is incorporated by reference
herein.
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(a) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(1) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(2) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in the registration statement; and
(3) To include any material information with respect to
the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement;
provided, however, that paragraphs (a)(1) and (a)(2) do not apply if the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished
to the Commission by the Company pursuant to Section 13 or 15(d) of the
Exchange Act that are incorporated by reference in the registration
statement.
(b) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona
fide offering thereof.
(c) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(d) That, for purposes of determining any liability under the
Securities Act, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(e) Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the
opinion of the Commission such indemnification is against public policy
as expressed in the Securities Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred or paid by
a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such
issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused
this registration statement has been signed on its behalf by the
undersigned, thereunto duly authorized in the City of Chicago, State of
Illinois, on this 9th day of February, 1998.
USN COMMUNICATIONS, INC.
By: /s/ J. Thomas Elliott
------------------------------
J. Thomas Elliott
Chairman of the Board, President,
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on this 9th day of February, 1998.
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints J. Thomas Elliott and
Thomas A. Monson his true and lawful attorney-in-fact and agent with full
power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign any and all amendments to
this registration statement, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities
and Exchange Commission, granting unto said attorney-in-fact and agent
full power and authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, as fully to
all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent, or his
substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
SIGNATURE TITLE
--------- -----
/s/ J. Thomas Elliott Chairman of the Board, President
---------------------------- and Chief Executive Officer
J. Thomas Elliott (Principal Executive Officer)
---------------------------- Director
Richard J. Brekka
/s/ Dennis B. Dundon Chief Operating Officer and
---------------------------- Director
Dennis B. Dundon
/s/ Ronald W. Gavillet Executive Vice President,
---------------------------- Strategy & External Affairs and
Ronald W. Gavillet Director
---------------------------- Director
James P. Hynes
---------------------------- Director
Donald J. Hofmann, Jr.
/s/ William A. Johnston Director
----------------------------
William A. Johnston
---------------------------- Director
Ian Kidson
/s/ Paul S. Lattanzio Director
----------------------------
Paul S. Lattanzio
---------------------------- Director
David C. Mitchell
/s/ Eugene A. Sekulow Director
---------------------------
Eugene A. Sekulow
/s/ Gerald J. Sweas Executive Vice President and
--------------------------- Chief Financial Officer
Gerald J. Sweas (Principal Financial Officer)
EXHIBIT INDEX
Exhibit No. Description of Exhibit
3.1 Amended and Restated Certificate of Incorporation of the
Company (incorporated by reference to the Company's
Registration Statement on Form S-1 (Registration
No. 333-38381)).
3.2 Amended and Restated By-laws of the Company (incorporated
by reference to the Company's Registration Statement on
Form S-1 (Registration No. 333-38381)).
4.1 Form of certificate representing shares of Common Stock
(incorporated by reference to the Company's Registration
Statement on Form S-1 (Registration No. 333-38381)).
5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom (Illinois).
23.1 Consent of Deloitte & Touche, LLP, independent auditors.
23.3 Consent of Skadden, Arps, Slate, Meagher & Flom (Illinois)
(included in Exhibit 5.1).
24.1 Power of Attorney (included on the signature page hereto).
99.1 Amended and Restated 1994 Stock Option Plan (incorporated
by reference to the Company's Registration Statement on
Form S-4 (Registration No. 333-37621).
99.2 Omnibus Securities Plan (incorporated by reference to the
Company's Registration Statement on Form S-4 (Registration
No. 333-37621).
Exhibit 5.1
SKADDEN, ARPS, SLATE, MEAGHER & FLOM (ILLINOIS)
333 WEST WACKER DRIVE
CHICAGO, ILLINOIS 60606
February 9, 1998
USN Communications, Inc.
10 South Riverside Plaza
Chicago, Illinois 60606
Re: Registration Statement on Form S-8
of USN Communications, Inc.
Ladies and Gentlemen:
We have acted as special counsel to USN Communications, Inc.,
a Delaware corporation (the "Company"), in connection with the
preparation of a Registration Statement on Form S-8, which is being filed
by the Company with the Securities and Exchange Commission (the
"Commission") on the date hereof (the "Registration Statement"). The
Registration Statement relates to the registration and issuance by the
Company under the Securities Act of 1933, as amended (the "Act"), of up
to an aggregate of 4,048,990 shares of the Company's Common Stock, par
value $.01 per share (the "Common Stock"), under the Company's Omnibus
Securities Plan (the "Omnibus Plan"), the Company's Amended and Restated
1994 Stock Option Plan (the "1994 Plan") and upon the exercise of certain
non-qualified stock options granted to executive officers of the Company
(the "1996 Stock Options"). The Omnibus Plan and the 1994 Plan are
collectively referred to herein as the "Plans" and the shares of Common
Stock that may be issued under the Plans and upon exercise of the 1996
Options are collectively referred to herein as the "Shares."
This opinion is being furnished in accordance with the
requirements of Item 601(b)(5) of Regulation S-K under the Act.
In connection with this opinion, we have examined originals
or copies, certified or otherwise identified to our satisfaction, of (i)
the Registration Statement; (ii) each of the Plans and the form of the
agreements with respect to the 1996 Stock Options; (iii) the Second
Amended and Restated Certificate of Incorporation and the Amended and
Restated Bylaws of the Company, as presently in effect; (iv) a specimen
certificate representing the Common Stock; and (v) copies of certain
resolutions of the Board of Directors of the Company relating to the
Plans and the 1996 Options and related matters. We have also examined
originals or copies, certified or otherwise identified to our
satisfaction, of such records of the Company and such agreements,
certificates of public officials, certificates of officers or other
representatives of the Company and others, and such other documents,
certificates and records as we have deemed necessary or appropriate as a
basis for the opinions set forth herein.
In our examination, we have assumed, and have not
independently established or verified, the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to original
documents of all documents submitted to us as certified, conformed or
photostatic copies and the authenticity of the originals of such latter
documents. As to any facts material to the opinions expressed herein
which we have not independently established or verified, we have relied
upon statements and representations of officers and other representatives
of the Company and others. We assume that the Company will have at the
time of the issuance of any Shares under the Plans and the 1996 Stock
Options at least that number of authorized but unissued shares of Common
Stock equal to the number of Shares to be issued pursuant to the Plans
and the 1996 Stock Options.
Members of our firm are admitted to the practice of law in
the State of Illinois, and we do not express any opinion as to the laws
of any other jurisdiction other than the Delaware General Corporation
Law.
Based upon and subject to the foregoing, and assuming the
conformity of the certificates representing the Shares to the form of the
specimen thereof examined by us and the due execution of such
certificates, we are of the opinion that the Shares have been duly
authorized by requisite corporate action by the Company, and, when
issued, delivered and paid for in accordance with the terms and
conditions of the Plans or the 1996 Options, as applicable, will be
validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion with the
Commission as an exhibit to the Registration Statement. In giving this
consent, we do not thereby admit that we are included in the category of
persons whose consent is required under Section 7 of the Act or the rules
and regulations of the Commission promulgated thereunder.
Very truly yours,
/s/ Skadden, Arps, Slate, Meagher & Flom
(Illinois)
INDEPENDENT AUDITORS' CONSENT
Board of Directors and Stockholders of
USN Communications, Inc.
Chicago, Illinois
We consent to the incorporation by reference in this Registration
Statement on Form S-8 of USN Communications, Inc. of our report dated
March 14, 1997 (September 4, 1997 as to Note 22), which expresses an
unqualified opinion and includes an explanatory paragraph concerning
substantial doubt about the entity's ability to continue as a going
concern, appearing in and incorporated by reference in the Annual Report
on Form 10-K of USN Communications, Inc. for the year ended December 31,
1996.
/s/ Deloitte & Touche LLP
Chicago, Illinois
February 9, 1998
