As filed with the Securities and Exchange Commission
on December 31, 1996
Registration No. 33-_____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AMERICAN COMMUNICATIONS SERVICES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 52-1947746
(State or other juris- (I.R.S. Employer
diction of incorporation Identification No.)
or organization)
131 National Business Parkway
Annapolis Junction, Maryland 20701
(Address of Principal Executive Offices) (Zip Code)
Amended 1994 Stock Option Plan
Written Option Agreements
1996 Employee Stock Purchase Plan
(Full title of the plans)
Riley M. Murphy, Esq.
American Communications Services, Inc.
131 National Business Parkway
Annapolis Junction, Maryland 20701
(Name and address of agent for service)
(301) 617-4200
(Telephone number, including area code, of agent for service)
copies to:
Kevin T. Collins, Esq.
Ross & Hardies
65 East 55th Avenue
New York, New York 10022
(212) 421-5555
<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
==================================================================================================================================
Proposed
Amount of Maximum Proposed
Title of Each Class of Shares to Offering Aggregate Amount of
Securities to be be Price Per Offering Registration
Registered Registered Share(1) Price(1) Fee
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock $.01 par
value per Share...................... 3,693,000 $10.6964 $39,501,805 $11,971
- ----------------------------------------------------------------------------------------------------------------------------------
(1) Solely for the purpose of calculating the registration fee, the
Proposed Maximum Offering Price Per Share and the Proposed Aggregate
Offering Price have been estimated in accordance with Rule 457(h) of
the Securities Act of 1933, as amended (the "Act"). Accordingly, the
price per share of Common Stock subject to an outstanding option is
equal to not less than the exercise price at which the option may be
exercised, and the price per share of Common Stock not subject to an
outstanding option is based on $12.0625, the average of the high and
low sale prices for a share of Common Stock as reported by the NASDAQ
National Market on December 26, 1996.
</TABLE>
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
- ------- ------------------------------------------------
The registrant hereby incorporates by reference the following
documents previously filed with the Securities and Exchange Commission (the
"Commission"):
(a) The Registrant's Annual Report on Form 10-KSB for the
Registrant's fiscal year ended June 30, 1996, as amended by a Form 10-KSB/A
filed with the Commission on October 7, 1996;
(b) all other reports filed by the Registrant pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (the "Exchange
Act") since June 30, 1996, including, but not limited to the Quarterly Report on
Form 10-QSB for the Quarter Ended September 30, 1996; and
(c) the description of the Company's Common Stock, $.01 par
value, as contained in its Registration Statement on Form 8-A, declared
effective by the Commission on February 13, 1995.
All documents subsequently filed by the registrant 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 in this Registration Statement and to be a part
hereof from the date of filing of such documents.
Item 4. Description of Securities.
- ------- --------------------------
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
- ------- ---------------------------------------
Not Applicable.
Item 6. Indemnification of Officers and Directors.
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Under Section 145 of the General Corporation Law of Delaware
(the "GCL") a corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation), by reason of the
fact that he is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation,
partnership, joint venture, trust or other enterprise against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful.
<PAGE>
A corporation also may indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that he is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation. However, in such an action by or on behalf of
a corporation, no indemnification may be made in respect of any claim, issue or
matter as to which the person is adjudged liable to the corporation unless and
only to the extent that the court determines that, despite the adjudication of
liability but in view of all the circumstances, the person is fairly and
reasonably entitled to indemnify for such expenses which the court shall deem
proper.
In addition, the indemnification provided by Section 145 shall
not be deemed exclusive of any other rights to which those seeking
indemnification may be entitled under any bylaw, agreement, vote of stockholders
or disinterested directors or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office. The
Certificate of Incorporation of the Company is consistent with Section 145 of
the GCL and its Bylaws provide that each director, officer, employee and agent
of the Company shall be indemnified to the extent permitted by the GCL.
In this connection, the Company has entered into
indemnification agreements (the "Indemnity Agreements") with each of its
executive officers and directors. The Indemnity Agreements are consistent with
the Company's By-laws and the Company's policy to indemnify directors to the
fullest extent permitted by-law. The Indemnity Agreements provide for
indemnification of directors for liabilities arising out of claims or threatened
claims against such persons acting as directors of the Company (or any entity
controlling, controlled by or under common control with the Company) due to any
actual or alleged breach of duty, neglect, error, misstatement, misleading
statement, omission or other act done, or suffered or wrongfully attempted by
such directors, except as prohibited by law. The payments that the Company will
be obligated to make include (without limitation) damages, judgments,
settlements, costs, and expenses of actions, claims and proceedings and appeals
therefrom, including preparation for deposition in an action to which a director
is not a party and costs of attachments and similar bonds; provided, however,
that the Company is not obligated to pay fines or other obligations or fees
imposed by law or otherwise that it is prohibited by applicable law from paying
(i) as indemnity or (ii) for any other reason. The Indemnity Agreements also
provide for the advancement of costs and expenses, including attorneys' fees,
reasonably incurred by directors in defending or investigating any action, suit,
proceeding or claim, subject to an undertaking by such directors to repay such
amounts if it is ultimately determined that such directors are not entitled to
indemnification. The Indemnity Agreements cover future acts and omissions of
directors for which actions may be brought.
The Indemnity Agreements also provide that directors, officers,
employees and agents are entitled to indemnification against all expenses
(including attorneys'
II-2
<PAGE>
fees) reasonably incurred in seeking to collect an indemnity claim or to obtain
advancement of expenses from the Company. The rights of directors under the
Indemnity Agreements are not exclusive of any other rights directors may have
under Delaware law, any liability insurance policies that may be obtained, the
Company's By-Laws or otherwise. The Company would not be required to indemnify a
director for any claim based upon the director gaining in fact a personal profit
or advantage to which such director was not legally entitled, any claim for an
accounting of profits made in connection with a violation of Section 16(b) of
the Securities Exchange Act of 1934 or a similar state or common law provision
or any claim brought about or contributed to by the dishonesty of the director.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Company pursuant to the foregoing provisions, or otherwise, the Company has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act of
1933, as amended (the "Act") and is, therefore, unenforceable. In the event that
a claim for indemnification against such liabilities (other than the payment by
the Company of expenses incurred or paid by a director, officer or controlling
person of the Company 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 Company 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 Act and will
be governed by the final adjudication of such issue.
Item 7. Exemption from Registration Claimed.
- ------- ------------------------------------
Not applicable.
Item 8. Exhibits.
- ------- ---------
The following are filed as exhibits or incorporated by
reference into this Registration Statement:
Exhibit No. or
Incorporation
Exhibit No. Description by Reference
5.1 Opinion of Ross & Hardies, counsel to E-1
the Company
23.1 Consent of Ross & Hardies (contained in
Exhibit No. 5.1)
23.2 Consent of KPMG Peat Marwick LLP E-2
24.1 Powers of Attorney *
- ----------------------------------------------------
* Powers of attorney are contained in signatures.
II-3
<PAGE>
Item 9. Undertakings.
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(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this 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 this
Registration Statement; notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected
in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in the volume
and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement.
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in this Registration Statement or any material change to such
information in this Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to section
13 or section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in this Registration
Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, 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.
(3) 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.
(b) That for purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrant's annual report pursuant
to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in this Registration Statement shall be deemed to be a
new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) That, insofar as indemnification for liabilities arising
under the Securities Act of 1933 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 Securities
and Exchange Commission such indemnification is against public policy as
expressed in the 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 Act and will
be governed by the final adjudication of such issue.
II-4
<PAGE>
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 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Annapolis Junction, State of Maryland, on
December 30, 1996.
AMERICAN COMMUNICATIONS SERVICES, INC.
(Registrant)
By:/s/ Anthony J. Pompliano
Anthony J. Pompliano
Chairman of the Board
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Anthony J. Pompliano his true and
lawful attorney-in-fact and agent, with full powers 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 all 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 and 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.
II-5
<PAGE>
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
<S> <C> <C>
/s/ Anthony J. Pompliano Chairman of the Board December 30, 1996
- ----------------------------
Anthony J. Pompliano of Directors
(Principal Executive
Officer)
/s/ Richard A. Kozak President and Chief December 30, 1996
- ----------------------------
Richard A. Kozak Executive Officer -
Corporate Services Division,
Acting Chief Financial Officer
(Principal Financial
Officer and Principal
Accounting Officer)
/s/ George Middlemas Director December 30, 1996
- --------------------
George Middlemas
/s/ Christopher Rafferty Director December 30, 1996
- ------------------------
Christopher Rafferty
/s/ Edwin M. Banks Director December 30, 1996
- ------------------
Edwin M. Banks
/s/ Oliver L. Trouveroy Director December 30, 1996
- -----------------------
Olivier L. Trouveroy
Director December __, 1996
Peter Bentz
/s/ Benjamin Giess Director December 30, 1996
- ------------------
Benjamin Giess
</TABLE>
II-6
<PAGE>
Registration No. 33-_____
- -----------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
EXHIBITS FILED WITH
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AMERICAN COMMUNICATIONS SERVICES, INC.
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<PAGE>
AMERICAN COMMUNICATIONS SERVICES, INC.
EXHIBIT INDEX
<TABLE>
<CAPTION>
Location
of
Document
in
Sequential
Numbering
Exhibit No. Description System
- ----------- ----------- ------
<S> <C>
5.1 Opinion of Ross & Hardies E-1
23.1 Consent of Ross & Hardies (contained in Exhibit No. 5.1)
23.2 Consent of KPMG Peat Marwick LLP E-2
</TABLE>
<PAGE>
Exhibit 5.1
-----------
December 30, 1996
American Communications Services, Inc.
131 National Business Parkway
Annapolis Junction, Maryland 20701
Ladies and Gentlemen:
You have requested our opinion with respect to the registration by American
Communications Services, Inc., a Delaware corporation (the "Company") pursuant
to a Registration Statement on Form S-8 (the "Registration Statement") under the
Securities Act of 1933, as amended (the "Act"), of an aggregate of 3,693,000
shares of the Company's common stock, $.01 par value per share (the "Common
Stock" or "Common Shares"). Of such 3,693,000 Common Shares, (i) 1,503,000 are
issuable upon exercise of options to purchase Common Stock which have been
granted to employees, officers, directors or consultants of the Company (the
"Written Option Agreements"), (ii) 1,690,000 are issuable upon exercise of
options which have been or may be granted to employees, officers, directors or
consultants of the Company pursuant to the Company's Amended 1994 Stock Option
Plan (the "Stock Option Plan") and (iii) 500,000 are issuable to employees,
officers and employee directors of the Company pursuant to the Company's 1996
Employee Stock Purchase Plan (the "Stock Purchase Plan").
We have examined originals or copies, certified or otherwise identified to
our satisfaction, of such documents, corporate records, certificates of public
officials and other instruments and have conducted such other investigations of
fact and law as we have deemed relevant and necessary to form a basis for the
opinions hereinafter expressed. In conducting such examination, we have assumed
(i) that all signatures are genuine, (ii) that all documents and instruments
submitted to us as copies conform with the originals, and (iii) the due
execution and delivery of all documents where due execution and delivery are a
prerequisite to the effectiveness thereof. As to any facts material to this
opinion, we have relied upon statements and representations of officers and
other representatives of the Company and certificates of public officials and
have not independently verified such facts.
Based upon the foregoing, it is our opinion that the Common Shares (i)
issuable upon exercise of the Written Option Agreements, (ii) issuable upon
exercise of options issused or issuable pursuant to the Stock Option Plan, and
(iii) issuable pursuant to the Stock Purchase Plan will be validly issued, fully
paid and non-assessable when issued in accordance with the Written Option
Agreements, the Stock Option Plan and the Stock Purchase Plan, respectively.
We express no opinion as to the laws of any jurisdiction other than the
State of New York, the United States of America, and, solely with respect to
matters of corporate organization and authority, the General Corporation Law of
the State of Delaware. We are not admitted to the practice of law in the State
of Delaware. Accordingly, any opinion herein as to the laws of the State of
Delaware is based solely upon the latest generally available compilation of the
State law of such State. Insofar as the foregoing opinion relates to matters
that would be controlled by the substantive laws of any jurisdiction other than
the United States of America, the General Corporation Law of the State of
Delaware with respect to matters of corporate organization and authority, or the
State of New York, we have assumed, that the substantive laws of such
jurisdiction conform in all respects to the internal laws of the State of New
York.
<PAGE>
We hereby consent to the reference to our firm in the Registration
Statement relating to the registration of the Common Shares (i) issuable upon
exercise of the Written Option Agreements, (ii) issuable upon exercise of the
options issued or issuable pursuant to the Stock Option Plan, and (iii) issuable
pursuant to the Stock Purchase Plan.
Very truly yours,
/s/ ROSS & HARDIES
Ross & Hardies
<PAGE>
Exhibit 23.2
ACCOUNTANTS' CONSENT
The Stockholders and Board of Directors
American Communications Services, Inc.
We consent to the incorporation by reference in the registration statement on
S-8 of American Communications Services, Inc. of our report dated September 27,
1996, with respect to the consolidated balance sheets of American Communications
Services, Inc. and subsidiaries as of June 30, 1996 and 1995, and the related
consolidated statements of operations, stockholders' equity (deficit), and cash
flows for the years then ended, which reports appears in the June 30, 1996 Form
10-KSB of American Communications Services, Inc.
/S/KPMG PEAT MARWICK LLP
------------------------
KPMG Peat Marwick LLP
Washington, D.C.
December 30, 1996
