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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 3)*
American Communications Services, Inc.
- --------------------------------------------------------------------------------
(Name of Issuer)
Common Stock
- --------------------------------------------------------------------------------
(Title of Class of Securities)
025 20B102
----------------------------------------------------------------
(CUSIP Number)
George M. Middlemas, 233 S. Wacker Drive, Suite 9600, Chicago, Illinois 60606
(312)258-0320
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications)
April 15, 1997
----------------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ].
Check the following box if a fee is being paid with the statement [ ]. (A fee
is not required only if the reporting person: (1) has a previous statement on
file reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
NOTE: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are to
be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities,
and for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
<PAGE> 2
SCHEDULE 13D
<TABLE>
<CAPTION>
CUSIP NO. 025 20B102 PAGE 2 OF 22 PAGES
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C>
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Apex Investment Fund Limited Partnership 36-357-2877
- -----------------------------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [x]
- -----------------------------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
- -----------------------------------------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
WC
- -----------------------------------------------------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ]
- -----------------------------------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- -----------------------------------------------------------------------------------------------------------------------------
7 SOLE VOTING POWER
418,797**
---------------------------------------------------------------------------------------------------
8 SHARED VOTING POWER
0
NUMBER OF SHARES ---------------------------------------------------------------------------------------------------
BENEFICIALLY OWNED
BY EACH REPORTING 9 SOLE DISPOSITIVE POWER
PERSON WITH 418,797**
---------------------------------------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- -----------------------------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
418,797**
- -----------------------------------------------------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ]
- -----------------------------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.2%
- -----------------------------------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
- -----------------------------------------------------------------------------------------------------------------------------
</TABLE>
*SEE INSTRUCTIONS BEFORE FILLING OUT! **SEE ITEM 5 HEREOF
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7 (INCLUDING
EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE> 3
SCHEDULE 13D
<TABLE>
<CAPTION>
CUSIP NO. 025 20B102 PAGE 3 OF 22 PAGES
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C>
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Apex Investment Fund II, L.P. 36-389-8753
- -----------------------------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [x]
- -----------------------------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
- -----------------------------------------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
WC
- -----------------------------------------------------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ]
- -----------------------------------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- -----------------------------------------------------------------------------------------------------------------------------
7 SOLE VOTING POWER
1,222,702**
----------------------------------------------------------------------------------------------------
8 SHARED VOTING POWER
0
NUMBER OF SHARES
BENEFICIALLY OWNED ----------------------------------------------------------------------------------------------------
BY EACH REPORTING 9 SOLE DISPOSITIVE POWER
PERSON WITH 1,222,702**
----------------------------------------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- -----------------------------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,222,702**
- -----------------------------------------------------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ]
- -----------------------------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
3.5%
- -----------------------------------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
- -----------------------------------------------------------------------------------------------------------------------------
</TABLE>
*SEE INSTRUCTIONS BEFORE FILLING OUT! **SEE ITEM 5 HEREOF
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7 (INCLUDING
EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE> 4
SCHEDULE 13D
<TABLE>
<CAPTION>
CUSIP NO. 025 20B102 PAGE 4 OF 22 PAGES
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C>
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
The Productivity Fund II, L.P. 36-377-5406
- -----------------------------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [x]
- -----------------------------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
- -----------------------------------------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
WC
- -----------------------------------------------------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ]
- -----------------------------------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- -----------------------------------------------------------------------------------------------------------------------------
7 SOLE VOTING POWER
780,883**
---------------------------------------------------------------------------------------------------
8 SHARED VOTING POWER
0
NUMBER OF SHARES
BENEFICIALLY OWNED ---------------------------------------------------------------------------------------------------
BY EACH REPORTING 9 SOLE DISPOSITIVE POWER
PERSON WITH 780,883**
---------------------------------------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- -----------------------------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
780,883**
- -----------------------------------------------------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ]
- -----------------------------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
2.2%
- -----------------------------------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
- -----------------------------------------------------------------------------------------------------------------------------
</TABLE>
*SEE INSTRUCTIONS BEFORE FILLING OUT! **SEE ITEM 5 HEREOF INCLUDE
BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7 (INCLUDING
EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE> 5
SCHEDULE 13D
<TABLE>
<CAPTION>
CUSIP NO. 025 20B102 PAGE 5 OF 22 PAGES
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C>
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Environmental Private Equity Fund II, L.P. 36-383-0765
- -----------------------------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [x]
- -----------------------------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
- -----------------------------------------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
WC
- -----------------------------------------------------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ]
- -----------------------------------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- -----------------------------------------------------------------------------------------------------------------------------
7 SOLE VOTING POWER
779,855**
---------------------------------------------------------------------------------------------------
8 SHARED VOTING POWER
0
NUMBER OF SHARES
BENEFICIALLY OWNED ---------------------------------------------------------------------------------------------------
BY EACH REPORTING 9 SOLE DISPOSITIVE POWER
PERSON WITH 779,855**
---------------------------------------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- -----------------------------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
779,855**
- -----------------------------------------------------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ]
- -----------------------------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
2.2%
- -----------------------------------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
- -----------------------------------------------------------------------------------------------------------------------------
</TABLE>
*SEE INSTRUCTIONS BEFORE FILLING OUT! **SEE ITEM 5 HEREOF INCLUDE
BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7 (INCLUDING
EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE> 6
Page 6 of 22 Pages
THIS SCHEDULE AMENDS A SCHEDULE 13D DATED AUGUST 3, 1995, AS AMENDED BY
AMENDMENT NO. 1 DATED AUGUST 11, 1995 AND AMENDMENT NO. 2 DATED DECEMBER 1,
1995.
Item 1. Security and Issuer.
This Schedule 13D is filed with respect to shares of Common Stock
("Common Stock") of American Communications Services, Inc., a Delaware
corporation (the "Company"). The Company's principal executive offices are
located at 131 National Business Parkway, Suite 100, Annapolis Junction,
Maryland 20701.
Item 2. Identity and Background.
This Schedule 13D is filed on behalf of Apex Investment Fund Limited
Partnership, a Delaware limited partnership ("Apex I"), Apex Investment Fund
II, L.P., a Delaware limited partnership ("Apex II"), The Productivity Fund II,
L.P., a Delaware limited partnership ("PF II") and Environmental Private Equity
Fund II, L.P., a Delaware limited partnership ("EPEF"). (Apex I, Apex II, PF
II and EPEF will be referred to collectively as the "Filing Parties"). Apex I
and Apex II maintain their principal office at 233 South Wacker Drive, 9600
Sears Tower, Chicago, Illinois 60606 ("Suite 9600"). EPEF and PF II maintain
their principal offices at 233 South Wacker Drive, 9500 Sears Tower, Chicago,
Illinois 60606 ("Suite 9500"). The principal business of each of the Filing
Parties is venture capital and private equity investment.
Each of the Filing Parties is controlled through one or more
partnerships. In this Schedule 13D, the persons who have or share control of a
Filing Party after looking through one or more intermediate partnerships will
be referred to as "ultimate general partners." The ultimate general partners
of Apex I and Apex II are: First Analysis Corporation, a Delaware corporation
("FAC"), Stellar Investment Co. ("Stellar"), a corporation controlled by James
A. Johnson ("Johnson"); George Middlemas ("Middlemas"); and Chartwell
Holdings, Inc. ("Chartwell"), a corporation controlled by Paul J. Renze
("Renze"). The ultimate general partners of PF II are FAC and Bret R. Maxwell
("Maxwell"). The ultimate general partners of EPEF are FAC, Maxwell,
Robertson, Stephens & Co. ("RS"), Argentum Environmental Corporation ("AEC")
and Schneur Z. Genack, Inc. ("SZG").
(a), (b) and (c). The following information is furnished with respect
to each person who takes executive actions on behalf of FAC with respect to its
functioning as an ultimate general partner of the Filing Parties, and on behalf
of Maxwell personally, each of whom maintains Suite 9500 as his principal
business address:
<TABLE>
<CAPTION>
Name Affiliation with FAC
---- --------------------
<S> <C>
1. F. Oliver Nicklin President and Director
2. Bret R. Maxwell Managing Director
</TABLE>
<PAGE> 7
Page 7 of 22 Pages
Each of the above is principally employed as an executive of FAC.
FAC's principal business is participation in venture capital partnerships and
the provision of research investment services. Its principal business address
is Suite 9500.
(a), (b) and (c) (con't). Each of Johnson and Middlemas is
principally employed as an executive of Apex and maintains his business address
at Suite 9600. Renze is principally employed as an independent investor and
maintains his business address at 20 North Wacker Drive, Suite 2200, Chicago,
Illinois 60606 ("Suite 2200"). Stellar's principal business is serving as an
ultimate general partner of investment partnerships. Its business address is
maintained at Suite 9600. Chartwell's principal business is serving as an
ultimate general partner of investment partnerships. Its business address is
maintained at Suite 2200.
(a), (b) and (c) (con't). Each of AEC and SZG maintains its business
address c/o The Argentum Group ("TAG"), 405 Lexington Avenue, New York, New
York 10174 (the "TAG Address"). The persons who take actions on behalf of AEC
and SZG with respect to their functioning as ultimate general partners of EPEF
are Schneur Z. Genack ("Genack"), Daniel Raynor ("Raynor") and Walter H.
Barandiaran ("Barandiaran"). Each of Genack, Raynor and Barandiaran is
principally employed as an executive of TAG and maintains his business address
at the TAG address. TAG's principal business is merchant banking.
(a), (b) and (c) (con't). RS maintains its business address at One
Embarcadero Center, San Francisco, California 94111 (the "RS Address"). The
person who takes actions on behalf of RS with respect to its functioning as an
ultimate general partner of EPEF is Charles R. Hamilton ("Hamilton"). Hamilton
is principally employed as a partner of RS. Hamilton maintains his principal
business address at the RS Address. RS's principal business is investment
banking.
(d) and (e) None of the Filing Parties and, to the best of each
Filing Party's knowledge, none of the persons listed in the responses to Items
2(a), (b) or (c) above has, during the last five years, been (i) convicted in a
criminal proceeding (excluding traffic violations or similar misdemeanors) or
(ii) a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction and as a result of such civil proceeding was or is
subject to a judgment, decree or final order enjoining future violations of or
prohibiting activities subject to, federal or state securities laws or finding
any violation of such laws.
(f) To the best of each Filing Party's knowledge, each of the natural
persons listed in the responses to Items 2(a), (b) or (c) above is a citizen of
the United States.
Item 3. Source and Amount of Funds or Other Consideration.
All of the funds invested (or to be invested) by the Filing Parties in
the Company were obtained (or are expected to be obtained) from capital
contributions made by their respective partners.
<PAGE> 8
Page 8 of 22 Pages
Item 4. Purpose of Transaction.
The securities of the Company held by the Filing Parties were
purchased as an investment. One or more of the Filing Parties may, in the
future, purchase additional securities of the Company or dispose of securities
of the Company.
Except as described below, none of the Filing Parties has any present
plans or proposals that relate to or would result in transactions of the kind
described in paragraphs (a) through (j) of Item 4 of Rule 13D-101 promulgated
under the Securities Exchange Act of 1934, as amended (the "1934 Act"). In the
future, however, each of the Filing Parties reserves the right to adopt such
plans or proposals, subject to applicable regulatory requirements, if any.
Item 5. Interest in Securities of the Issuer.
(a) (i) As of the date of this Schedule, each of the Filing Parties
owns the number of shares of Common Stock and other securities of the Company
described below:
(A) Apex I - 418,797 shares of Common Stock. Subject to
the assumptions described below, Apex I owns 1.2% of the Common Stock.
(B) Apex II - 1,222,702 shares of Common Stock. Subject
to the assumptions described below, Apex II owns 3.5% of the Common
Stock.
(C) PF II - 780,883 shares of Common Stock. Subject to
the assumptions described below, PF II owns 2.2% of the Common Stock.
(D) EPEF - 779,855 shares of Common Stock. Subject to
the assumptions described below, EPEF owns 2.2% of the Common Stock.
All of the above percentages are computed assuming no exercise of
options or conversion of any convertible security by any other Filing Party or
any other person.
In addition, Middlemas holds 20,000 shares of Common Stock directly,
8,000 shares of Common Stock through an individual retirement account, and
fully-vested options to purchase 30,000 shares of Common Stock.
(ii) By reason of its status as a general partner or ultimate general
partner of each of the Filing Parties, FAC may be deemed to be the indirect
beneficial owner of 3,202,237 shares of Common Stock, or 9.1% of such shares.
By reason of his status as the majority stockholder of FAC, F. Oliver Nicklin
may also be deemed to be the indirect beneficial owner of such shares.
By reason of their status as ultimate general partners of Apex I and
Apex II, Stellar (and through Stellar, Johnson), Middlemas and Chartwell (and
through Chartwell, Renze) may be
<PAGE> 9
Page 9 of 22 Pages
deemed to be the indirect beneficial owners of 1,641,499 shares of Common
Stock, or 4.7% of such shares. When these shares are combined with the 20,000
shares of Common Stock owned individually, the 8,000 shares of Common Stock
owned through an individual retirement account, and his option to purchase
30,000 shares of Common Stock described above, Middlemas may be deemed to be
the beneficial owner (directly with respect to the option shares and indirectly
as to the balance) of 1,699,499 shares of Common Stock, or 4.9% of such shares.
By reason of his status as an ultimate general partner of PF II and
EPEF, Maxwell may be deemed to be the indirect beneficial owner of 1,580,738
shares of Common Stock, or 4.5% of such shares.
By reason of RS's, AEC's and SZG's status as ultimate general partners
of EPEF, RS, AEC, SZG and their controlling persons may be deemed to be the
indirect beneficial owners of 779,855 shares of Common Stock, or 2.2% of such
shares.
(iii) Each of the Filing Parties disclaims beneficial ownership of
all shares described herein except those shares that are owned by the Filing
Party directly. The Filing Parties understand that each of the other persons
named as an officer, director, partner or other affiliate of any Filing Party
herein disclaims beneficial ownership of all of the shares described herein,
except for Middlemas with respect to the 20,000 shares of Common Stock held by
him directly, the 8,000 shares of Common Stock held through his individual
retirement account, and the option to purchase 30,000 shares of Common Stock
held by him.
In addition, Apex II disclaims beneficial ownership of the 300,000
shares of Common Stock that are subject to the put option described in the
response to Item 6 of this Schedule.
Each of the Filing Parties disclaims the existence of an "group" among
any or all of them and further disclaims the existence of a "group" among any
or all of them and any or all of the other persons named as an officer,
director, partner or other affiliate of any Filing Party, in each case within
the meaning of Section 13(d)(3) of the 1934 Act.
(b) (i) Apex I has the sole power to dispose of and to vote 418,797
shares of Common Stock. FAC, Stellar, Middlemas and Chartwell may be deemed to
share the power to dispose of and to vote such shares.
(ii) Apex II has the sole power to dispose of 1,222,702 shares of
Common Stock. FAC, Stellar, Middlemas and Chartwell may be deemed to share the
power to dispose of and to vote such shares.
(iii) PF II has the sole power to dispose of and to vote 780,883
shares of Common Stock. FAC and Maxwell may be deemed to share the power to
dispose of or vote such shares.
<PAGE> 10
Page 10 of 22 Pages
(iv) EPEF has the sole power to dispose of 779,855 shares of Common
Stock. FAC, Maxwell, RS, AEC and SZG may be deemed to share the power to
dispose of or vote such shares.
(v) Middlemas has the sole power to vote and dispose of 28,000 shares
of Common Stock and, subject to the exercise of his option, 30,000 shares of
Common Stock that are the subject of his option.
(c) (i) On April 10, 1997, Middlemas, through an individual
retirement account, purchased in open market transactions an aggregate of 8,000
shares of Common Stock at an average cash purchase price of $5.164 per share.
(ii) On April 15, 1997, Apex I purchased 31,487 shares of Common
Stock and Apex II purchased 104,956 shares of Common Stock, each in a private
placement transaction with the Company at a cash purchase price of $4.70 per
share.
(iii) On April 15, 1997, the Filing Parties received from the
Company an aggregate of 152,897 shares of Common Stock as payment in full of
the dividends accrued through such date on the shares of Series A-1 Preferred
owned by the Filing Parties as follows: 11,113 shares to Apex I; 71,959 shares
to Apex II; 43,890 shares to PF II; and 25,935 shares to EPEF. The Common
Stock was valued at $4.70 per share for such purposes.
(iv) On April 15, 1997, the Filing Parties received from the
Company an aggregate of 72,712 shares of Common Stock as payment in full of the
dividends accrued through such date on the shares of Series B-3 Preferred owned
by the Filing Parties as follows: 16,983 shares to Apex I; 11,322 shares to
Apex II; 4,780 shares to PF II; and 39,627 shares to EPEF. The Common Stock
was valued at $4.70 per share for such purposes.
(v) On April 15, 1997, all shares of Series A-1 Preferred and
Series B-3 Preferred owned by the Filing Parties were mandatorily converted
without further consideration into an aggregate of 2,178,123 shares of Common
Stock now owned by the Filing Parties as follows: Apex I - 278,973 shares; Apex
II - 788,905 shares; PF II - 459,268 shares; and EPEF - 650,977 shares.
(d) None.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships With
Respect to Securities of the Issuer.
(a) Pursuant to an Assignment and Assumption Agreement dated June
21, 1995, a copy of which is attached to this Schedule as Exhibit B, Apex II
assumed the obligations
<PAGE> 11
Page 11 of 22 Pages
of the Company to purchase an aggregate of 300,000 shares of Common Stock at a
price of $2.25 per share from Suite 1025 Limited Partnership, Lawrence
Schneider and Henry Schneider (the "Option Holders"), as successors in interest
to Thurston Partners, Inc. The option (the "Option") is contained in a
Consulting Agreement between the Company and Thurston Partners, Inc., a copy of
which is attached to this Schedule as Exhibit C. The Option is exercisable by
the Option Holders at any time after October 25, 1995, subject to their
exercise of warrants to purchase the shares that are the subject of the Option.
(b) The Filing Parties are holders of certain rights to require
registration of Common Stock and of certain rights to participate in sales of
Common Stock pursuant to the agreements for the purchase of Series A Preferred
and Series B-3 Preferred and the instruments described therein. Such rights
pertain to two "demand registrations" of Common Stock and unlimited "piggyback"
registration rights with respect to Common Stock and are on terms
and conditions that are customary in transactions of this nature.
Item 7. Material to be Filed as Exhibits.
Exhibit A. Agreement with respect to joint filing of Schedule 13D dated
August 3, 1995. Page 14 of 22 pages.
Exhibit B. Assignment and Assumption Agreement dated June 21, 1995. Page 17
of 22 pages.
Exhibit C. Consulting Agreement dated October 25, 1993. Page 20 of 22 pages.
<PAGE> 12
Page 12 of 22 Pages
After reasonable inquiry and to the best of the undersigned's
knowledge and belief, the undersigned certify that the information set forth in
this statement is true, complete and correct.
Dated: May 2, 1997
APEX INVESTMENT FUND LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Apex Management Partnership, General
Partner of Apex Investment Fund
Limited Partnership
By: First Analysis Corporation, General
Partner of Apex Management Partnership
By: /s/ Bret R. Maxwell
-------------------------------
Bret R. Maxwell
Title: Managing Director
APEX INVESTMENT FUND II, L.P., a Delaware
limited partnership
By: Apex Management Partnership, General
Partner of Apex Investment
Fund II, L.P.
By: First Analysis Corporation, General
Partner of Apex Management Partnership
By: /s/ Bret R. Maxwell
-------------------------------
Bret R. Maxwell
Title: Managing Director
<PAGE> 13
Page 13 of 22 Pages
ENVIRONMENTAL PRIVATE EQUITY FUND
II, L.P., a Delaware limited partnership
By: Environmental Private Equity
Management II, L.P., General Partner
of Environmental Private Equity
Fund II, L.P.
By: First Analysis EPEF Management
Company II, General Partner of
Environmental Private Equity
Management II, L.P.
By: First Analysis Corporation, General
Partner of First Analysis
EPEF Management Company II
By: /s/ Bret R. Maxwell
-------------------------------
Bret R. Maxwell
Title: Managing Director
THE PRODUCTIVITY FUND II, L.P., a Delaware
limited partnership
By: First Analysis Management Company II,
General Partner of The
Productivity Fund II, L.P.
By: First Analysis Corporation, General
Partner of First Analysis
Management Company II
By: /s/ Bret R. Maxwell
-------------------------------
Bret R. Maxwell
Title: Managing Director
<PAGE> 1
Page 14 of 22 Pages
EXHIBIT 99.A
EXHIBIT A
AGREEMENT
The undersigned agree as follows:
(i) Each of them is individually eligible to use the
Schedule 13D to which this Agreement is attached, and such Schedule 13D is
filed on behalf of each of them;
(ii) Each of them is responsible for the timely filing of
such Schedule 13D and any amendments thereto, and for the completeness and
accuracy of the information concerning such person contained therein; but none
of them is responsible for the completeness or accuracy of the information
concerning the other persons making the filing, unless such person knows or has
reason to believe that such information is inaccurate;
(iii) Such Schedule 13D identifies each such person,
contains the required information with regard to such person and indicates that
it is filed on behalf of all such persons; and
(iv) The execution and delivery of this Agreement does and
shall not constitute an admission by the undersigned that they constitute a
"group" for the purposes of Section 13(d)(3) of the Securities Exchange Act of
1934, as amended, and the undersigned hereby disclaim such status.
Dated: August 3, 1995
APEX INVESTMENT FUND LIMITED
PARTNERSHIP, a Delaware limited partnership
By: Apex Management Partnership, General
Partner of Apex Investment Fund
Limited Partnership
By: /s/ George Middlemas
------------------------------------
George Middlemas
Title: General Partner
(signature lines continued on next page)
<PAGE> 2
Page 15 of 22 Pages
APEX INVESTMENT FUND II, L.P., a
Delaware limited partnership
By: Apex Management Partnership,
General Partner of Apex
Investment Fund II, L.P.
By: /s/ George Middlemas
---------------------------
George Middlemas
Title: General Partner
ENVIRONMENTAL PRIVATE EQUITY
FUND II, L.P., a Delaware limited
partnership
By: Environmental Private Equity
Management II, L.P., General
Partner of Environmental
Private Equity Fund II, L.P.
By: First Analysis EPEF Management
Company II, General Partner of
Environmental Private Equity
Management II, L.P.
By: First Analysis Corporation,
General Partner of First
Analysis EPEF Management
Company II
By: /s/ F. Oliver Nicklin, Jr.
-----------------------------
F. Oliver Nicklin, Jr.
Title: President
(signature lines continued on next page)
<PAGE> 3
Page 16 of 22 Pages
THE PRODUCTIVITY FUND II, L.P., a
Delaware limited partnership
By: First Analysis Management Company II,
General Partner of The Productivity
Fund II, L.P.
By: First Analysis Corporation, General
Partner of First Analysis Management
Company II
By: /s/ F. Oliver Nicklin, Jr.
-----------------------------------
F. Oliver Nicklin, Jr.
Title: President
<PAGE> 1
Page 17 of 22 Pages
EXHIBIT 99.B
EXHIBIT B
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT, dated this 21 day of June, 1995, by and between American
Communications Services, Inc. (the "Company"), a Delaware corporation, and Apex
Investment Fund II, L.P. ("Apex").
Reference is hereby made to that certain consulting agreement dated
October 25, 1993 between Thurston Partners, Inc. and the Company, as amended,
and the related warrant agreements of even date therewith (such consulting
agreement and warrants, collectively, the "Put Documents") issued by the
Company to each of Suite 1025 Limited Partnership ("Suite 1025"), Lawrence
Schneider and Henry Schneider (Suite 11025 and Lawrence and Henry Schneider
hereafter collectively referred to as the "Holders").
WHEREAS, pursuant to the Put Documents the Holders have the right (the
"Put"), at their election to cause the Company to purchase an aggregate of
300,000 shares of common stock, $.01 par value, of the Company (the "Common
Stock") at a purchase price of $2.25 per share;
WHEREAS, it is a condition to the Series B Preferred Stock and Warrant
Purchase Agreement dated June 21, 1995, among Apex, the Company and other
investors (the "Series B Transaction") that the Company assign its obligation
to purchase such Common Stock under the Put Documents to another party and that
such obligation be assumed by such other party; and
WHEREAS, the Company is desirous of assigning to Apex its obligations
under the Put Documents to purchase such Common Stock upon the exercise of the
Put by the Holders;
WHEREAS, Apex is a principal stockholder of the Company and an
investor in the Series B Transaction and is desirous of assuming the Company's
obligation to purchase the Common Stock upon any exercise of a Put by a Holder.
NOW, THEREFORE, in consideration of the sum of $10.00 and other good
and valuable consideration received from the Company (the receipt and
sufficiency of which is hereby acknowledged) and the mutual agreements
contained herein, the parties hereby agree as follows:
1. Subject to the terms and conditions of this Agreement and the
Put Documents, the Company agrees to assign to Apex and Apex agrees to assume
the Company's obligation to purchase the Common Stock.
2. Upon the receipt of notice (the "Notice") by the Company of a
Holder's intention to exercise all or part of the Put, the Company shall
promptly deliver such Notice to Apex and Apex agrees to immediately purchase
not less than all of the Common Stock that is the subject of such Notice.
3. The Company shall as soon as practicable upon the purchase by
Apex of the Common Stock, take all reasonable and necessary steps to effect the
transfer of the Common Stock to Apex, including, but not limited to, cancelling
the certificates delivered to Apex by the
<PAGE> 2
Page 18 of 22 Pages
Holders and reissuing to Apex the certificate or certificates representing the
shares of Common Stock so purchased and recording such transfers on the books
and records of the Company.
4. Apex expressly understands and acknowledges that upon its
purchase of the Common Stock, such Common Stock will not be subject to the Put
Documents and will not be entitled to any rights or privileges thereunder.
5. Apex expressly understands and acknowledges that the Common
Stock is not registered under the Securities Act of 1933, as amended or under
any state securities laws and as such is restricted in its transferability and
shall bear the following legend:
THE SHARES OF COMMON STOCK HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED ("ACT"), AND ARE
"RESTRICTED SECURITIES" AS THAT TERM IS DEFINED IN RULE 144
PROMULGATED UNDER THE ACT. THESE SHARES OF COMMON STOCK ARE
NONTRANSFERABLE AND MAY NOT BE OFFERED FOR SALE, SOLD OR
OTHERWISE TRANSFERRED EXCEPT UNDER THE ACT OR PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE ACT, THE AVAILABILITY OF
WHICH IS TO BE ESTABLISHED TO THE SATISFACTION OF THE COMPANY.
6. Apex represents and warrants that it has the authority and
financial resources to purchase all of the Common Stock upon exercise of the
Put by each Holder.
7. No provisions of this Agreement shall be construed as
conferring upon Apex the right to purchase any securities directly from the
Company.
8. All the terms and provisions of this Agreement shall be
binding upon, shall inure to the benefit of, and shall be enforceable by the
prospective, beneficiaries, representatives, successors, and assigns of the
parties hereto.
9. This Agreement shall be governed by and construed and enforced
in accordance with laws of the state of New York, without regard to its
conflict-of-laws rules and venue.
10. This Agreement may be executed simultaneously in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
<PAGE> 3
Page 19 of 22 Pages
IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the Company and Apex on the date first above written.
AMERICAN COMMUNICATIONS SERVICES, INC.
By: /s/ A.J. Pompliano
---------------------------------
Name: A.J. Pompliano
Title: Chairman
APEX INVESTMENT FUND II, L.P.
By: Apex Management Partnership, its
General Partner
By: /s/ George Middlemas
---------------------------------
Name: George Middlemas
Title: General Partner
<PAGE> 1
Page 20 of 22 Pages
EXHIBIT 99.C
EXHIBIT C
CONSULTING AGREEMENT
This Agreement is made as of October 25, 1993 by and between American
Communication Services, Inc. (the "Company"), and Thurston Partners, Inc., an
Illinois corporation (the "Consultant").
WITNESSETH
WHEREAS, the Consultant has previously rendered financial consulting
and advisory services to the Company in connection with the development of the
Company's business as an owner and operator of fiberoptic telecommunications
systems (the "Systems);
WHEREAS, the Company requires further assistance in the development of
its Systems, which necessitates a review of the Company's existing business
plan and prospects and continued monitoring and advice in the further
development of the Company's Systems;
NOW, THEREFORE, in consideration of the mutual covenants herein set
forth, the parties hereto agree as follows:
I. Services Rendered and To Be Rendered By Consultants
(A) The Company recognizes that the Consultant has continually
rendered services to the Company as described in the first WHEREAS clause
above, and that the compensation to be paid to it is partially in consideration
of such prior services.
(B) In addition to the services previously rendered, Consultant
hereby agrees to render from time to time such financial and advisory services
as shall be necessary and proper to enable the Company to overcome the
development problems it has recently experienced. Such services shall include,
but shall not be limited to, the following:
1. Review of the Company's present business plan with a view to
making recommendations to the Company's management and its Board of
Directors with respect thereto;
2. Develop and recommend to the Company financing strategies
designed to assist the Company in attaining its development and
operational objectives;
3. Render financial and consulting advisory services as requested
from time to time by the Company and its Board of Directors; and
4. Meet with the Company and its Board of Directors from time to
time to discuss and supplement the Company's business plan and to
review and analyze the Company's corporate financial strategies in
light of changing economic conditions and the Company's then current
business prospects.
<PAGE> 2
Page 21 of 22 Pages
II. Compensation
(A) The Company agrees to compensate the Consultant by issuing to
Consultant warrants (the "Warrants") for the purchase of a total of 300,000
shares of the Company's Common Stock. Such Warrants shall be exercisable in
whole or in part beginning one year from the date hereof and for a period of
four (4) years thereafter, at a price of $.0875 per share. The parties hereby
agree that the Warrants and underlying shares shall be issued pursuant to and
inc accordance with Rule 701 (under the Securities Act of 1933, as amended) and
shall be restricted as to their subsequent transfer or disposition, except that
the Consultant shall have the right to seek assistance from one or more
additional financial consultants of its choosing to assist it in rendering the
services described herein and to direct that any amount of the Warrants
otherwise issuable to the Consultant be issued to such additional financial
consultants. Any such Warrants so issuable shall also be restricted as to
their transferability. The Warrants and the underlying shares of Common Stock
issuable pursuant hereto shall be properly stamped with a legend to this
effect.
(B) The Consultant is hereby granted piggyback registration rights
in whole or in part in its discretion with respect to the Warrants and/or the
underlying shares at anytime beginning one year from the date hereof and for
the six year period thereafter, in the event that the Company effects any
public offering of its securities.
(C) At any time beginning two years from the date hereof, the
Consultant may "put" the underlying shares (to the extend the Warrants have
been exercised) to the Company in whole or in part, at a price of $2.25 per
share. Upon such put being made, the Company will promptly purchase the
underlying shares at the put price of $2.25 per share.
III. Miscellaneous
Expenses. Each party to this Agreement shall pay all of the expenses
incurred by it in connection with this Agreement, including without limitation,
its legal and accounting fees. Neither party hereto has enlisted or contracted
for the services of a broker, finder, financial advisor or any entity acting in
a similar capacity in connection with this Agreement.
Successors and Assigns. Except as otherwise expressly provided
herein, all agreements contained in this Agreement, by or on behalf of any of
the parties hereto, will bind and inure to the benefit of the respective
successors and assigns of the parties hereto.
Severability. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision will be ineffective only to
the extent of such prohibition or invalidity, without invalidating the
remainder of this Agreement.
Counterparts. This Agreement may be executed in counterparts, any one
of which need not contain the signatures of more than one party, but all such
counterparts taken together will constitute one and the same agreement.
<PAGE> 3
Page 22 of 22 Pages
Descriptive Headings. The descriptive headings of this Agreement are
inserted for convenience only and do not constitute a part of this Agreement.
Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Colorado without regard to
conflicts of law principles.
Termination. Except for the provisions of Section II above which
shall survive the termination of this Agreement, this Agreement shall terminate
six (6) months from the date of the execution hereof.
Entire Agreement. Except as expressly provided herein, this Agreement
constitutes the entire agreement of the parties in respect of the subject
matter hereof and supersedes any and all prior understandings (whether written
or oral) in respect of such subject matter.
IN WITNESS WHEREOF, the Consultant and the duly authorized officers of
the Company have executed and delivered this Agreement as of the day and year
first above written.
AMERICAN COMMUNICATION SERVICES, INC.
By: /s/ A.J. Pompliano
----------------------------------
A.J. Pompliano
Title: Chairman
THURSTON PARTNERS, INC.
By: /s/ Patrick J. Haynes
----------------------------------
Patrick J. Haynes
Title: President
