As filed with the Securities and Exchange Commission
on December 23, 1997
Registration No. 333
- --------------------------------------------------------------------------------
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
(301) 617-4200
(Address of Principal Executive Offices) (Zip Code)
1994 Stock Option Plan, as amended
(Full title of the plan)
Riley M. Murphy, Esq.
American Communications Services, Inc.
131 National Business Parkway
Annapolis Junction, Maryland 20701
(301) 617-4215
(Name and address of agent for service of process)
copies to:
Kevin T. Collins, Esq.
Dorsey & Whitney LLP
250 Park Avenue
New York, New York 10177
(212) 415-9200
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=====================================================================================================================
Title of Each Class of Amount of Proposed Proposed Amount of
Securities to be Shares to be Maximum Offering Aggregate Registration Fee
Registered Registered Price Per Share (1) Offering Price (2)
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock $.01 par
value per Share...... 2,000,000 $11.563 $23,126,000 $6,822.17
=====================================================================================================================
</TABLE>
(1) This is an average price determined by dividing the proposed Aggregate
Offering Price by the Amount of Shares to be Registered.
(2) Estimated solely for the purpose of calculating the registration fee
in accordance with Rule 457(c) of the Securities Act of 1933, as
amended (the "Act") based upon the average of the bid and ask price
for the Common Stock, par value $.01 (the "Common Stock") as reported
by the National Association of Securities Dealers Automated Quotation
System on December 19, 1997.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The following documents previously filed with the SEC (File No. 0-25314)
are hereby incorporated by reference into this Prospectus:
(i) the Company's Annual Report on Form 10-KSB for the fiscal year
ended June 30, 1996;
(ii) the Company's Annual Report on Form 10-KSB/A for the fiscal year
ended June 30, 1996;
(iii) the Company's Transition Report on Form 10-KSB for the fiscal
period from July 1, 1996 to December 31, 1996;
(iv) the Company's Transition Report on Form 10-KSB/A for the fiscal
period from July 1, 1996 to December 31, 1996;
(v) the Company's Quarterly Reports on Form 10-QSB for the quarterly
periods ended March 31, June 30 and September 30, 1997;
(vi) the Company's Current Reports on Form 8-K, dated January 8, 1997,
January 9, 1997, February 7, 1997, July 29, 1997, October 24, 1997 and
November 7, 1997; and
(vii) the description of the Company's Common Stock contained in its
registration statement on Form 8-A filed with the SEC on December 23, 1994,
including any amendments or reports filed for the purpose of updating such
description.
All documents subsequently filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act prior to the termination of the Offering
shall be deemed to be incorporated by reference herein and shall be part hereof
from the date of filing thereof.
Item 4. Description of Securities.
Not Applicable.
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<PAGE>
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Officers and Directors.
The Second Restated Certificate of Incorporation provides that a director
of the Company will not be personally liable for monetary damages to the Company
or its stockholders for breach of fiduciary duty as a director, except for
liability, (i) for any breach of the director's duty of loyalty to the Company
or its stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii) for unlawful
payments of dividends or unlawful payments of dividends or unlawful stock
repurchases or redemption as provided in Section 174 of the Delaware General
Corporation Law ("DGCL") or (iv) for any transaction from which the director
derived an improper personal benefit.
The Second Restated Certificate of Incorporation and the Amended and
Restated By-laws further provide that directors and officers of the Company (as
well as agents and employees of the Company at the discretion of the Board)
shall, to the fullest extent authorized by the DGCL or any other applicable laws
then in effect, be indemnified against liabilities arising from their service as
directors and officers. The Company has entered into indemnification agreements
with each of its executive officers and directors to reimburse them for certain
liabilities incurred in connection with the performance of their fiduciary
duties.
Section 145 of the DGCL empowers a corporation to 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 as a
director, officer, employee or agent of another corporation or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him 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.
Section 145 also empowers a corporation to 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 such person acted in any of the
capacities set forth above,
II-3
<PAGE>
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 under similar standards, except that no indemnification may be made in
respect of any claim, issue or matter as to which such person is fairly and
reasonably entitled to indemnity for such expenses which the Delaware Court of
Chancery or such other court shall deem proper.
Section 145 further provides that to the extent a director, officer,
employee or agent of a corporation has been successful in the defense of any
action, suit or proceeding referred to above or in the defense of any claim,
issue or matter therein, he shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith, that indemnification provided for by Section 145 shall not be deemed
exclusive of any other rights to which the indemnified party may be entitled;
and that the corporation is empowered to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
corporation against any liability asserted against him in any such capacity or
arising out of his status as such, whether or not the corporation would have the
power to indemnify him against such liability under Section 145.
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 Securities and Exchange 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 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.
II-4
<PAGE>
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
Exhibit Incorporation
Number Description by Reference
------ ----------- ------------
5.1 Opinion of Dorsey & Whitney LLP E-1
23.1 Consent of Dorsey & Whitney LLP
(contained in opinion filed as Exhibit 5.1)
23.2 Consent of KPMG Peat Marwick LLP E-2
24.1 Power of Attorney *
* Powers of attorney are contained in signatures.
II-5
<PAGE>
Item 9. Undertakings.
(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 the 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 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 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 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 Registration Statement is on Form S-8, and
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 the 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
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<PAGE>
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 the 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 Securities Act of 1933 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 of 1933 and will be governed by the final adjudication of
such issue.
II-7
<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 of 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
22, 1997.
AMERICAN COMMUNICATIONS
SERVICES, INC.
(Registrant)
By: /s/ Jack E. Reich
-------------------------
Jack E. Reich, President and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints Jack E. Reich and David L. Piazza as true
and lawful attorneys-in-fact and agents, each acting alone, 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 attorneys-in-fact and agents, and each of them, 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 attorneys-in-fact and agents, each acting alone, or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
<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.
/s/ Anthony J. Pompliano Chairman of the
- -----------------------------
Anthony J. Pompliano Board of Directors December 22 ,1997
/s/ Jack E. Reich President and Chief December 22, 1997
- -----------------------------
Jack E. Reich Executive Officer,
(Principal Executive Officer)
and Director
/s/ David L. Piazza Executive Vice President, December 22, 1997
- -----------------------------
David L. Piazza Chief Financial Officer
and Chief Operating Officer
(Principal Accounting
Officer)
Director December__ ,1997
- -----------------------------
George M. Middlemas
/s/ Edwin M. Banks Director December 22, 1997
- -----------------------------
Edwin M. Banks
/s/ Christopher L. Rafferty Director December 22, 1997
- -----------------------------
Christopher L. Rafferty
/s/ Benjamin P. Giess Director December 22, 1997
- -----------------------------
Benjamin P. Giess
/s/ Oliver L. Trouveroy Director December 22, 1997
- -----------------------------
Olivier L. Trouveroy
- ----------------------------- Director December __, 1997
Peter C. Bentz
Exhibit 5.1
December 22, 1997
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, of an aggregate of 2,000,000 shares of the
Company's common stock, $.01 par value per share (the "Common Stock" or "Common
Shares"), issuable upon exercise of options (the "Options") to purchase Common
Stock which have been or may be granted pursuant to written option agreements
(the "Option Agreements") between the Company and officers, directors, employees
or consultants of the Company under the Company's 1994 Stock Option Plan, as
amended (the "Plan").
In so acting, we have examined original 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 issuable
upon exercise of Options issued or issuable pursuant to the Plan will be validly
issued, fully paid and non-assessable when issued in accordance with the Option
Agreements and the Plan.
/s/ Dorsey & Whitney LLP
---------------------------------
Dorsey & Whitney LLP
The Board of Directors
American Communications Services, Inc.
We consent to the use of our report incorporated herein by reference, which
report appears in the December 31, 1997 Annual Report on Form 10-K of American
Communications Services, Inc.
/s/ KPMG Peat Marwick LLP
KPMG Peat Marwick LLP
Washington, DC
December 22, 1997
