Registration No. 333-_______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
e.spire Communications, Inc.
(Exact name of registrant as specified in its charter)
DELAWARE 52-1947746
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
133 National Business Parkway, Suite 200
Annapolis Junction, Maryland 20701
(301) 361-4200
(Address of Principal Executive Offices) (Zip Code)
American Communications Services, Inc. Annual Performance Plan, as amended
(Full title of the plan)
Riley M. Murphy, Esq.
e.spire Communications, Inc.
133 National Business Parkway, Suite 200
Annapolis Junction, Maryland 20701
(301) 361-4215
(Name and address of agent for service of process)
CALCULATION OF REGISTRATION FEE
Title of Each Class of Amount of Proposed Maximum Proposed
Securities to be Shares to be Offering Aggregate
Registered Registered Price Per Share Offering Price
Common Stock $.01 75,000 (2) $21.9375 (1) $1,659,375.00
par value per Share.....
(1) 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 high and low price for the
Common Stock, par value $.01 (the "Common Stock") as reported by the
National Association of Securities Dealers Automated Quotation System
on July 21, 1998.
(2) Represents Common Stock issued under the American Communication
Services, Inc. Annual Performance Plan.
<PAGE>
This Registration Statement relates to the registration of 75,000
additional shares of Common Stock, par value $0.01 per share, of e.spire
Communications, Inc. (formerly known as American Communications Services, Inc.),
for which a registration statement on Form S-8 (Registration No. 333-47869)
relating to the American Communications Services, Inc. Annual Performance Plan
(the "Form S-8, Registration No. 333-47869") is effective. The contents of the
Form S-8, Registration No. 333-47869, are incorporated herein by reference.
<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 July 28,
1998.
e.spire Communications, 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, Riley M. Murphy 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 July 28, 1998
- ------------------------- Board of Directors
Anthony J. Pompliano
/s/ Jack E. Reich President and Chief July 28, 1998
- ------------------------- Executive Officer,
Jack E. Reich (Principal Executive Officer)
and Director
/s/ David L. Piazza Chief Financial Officer July 28, 1998
- ------------------------- (Principal Accounting Officer)
David L. Piazza
/s/ Edwin M. Banks Director July 28, 1998
- -------------------------
Edwin M. Banks
/s/ Peter C. Bentz Director July 28, 1998
- -------------------------
Peter C. Bentz
/s/ Benjamin P. Giess Director July 28, 1998
- -------------------------
Benjamin P. Giess
Director July , 1998
- -------------------------
George M. Middlemas
/s/ Christopher L. Rafferty Director July 28, 1998
- ---------------------------
Christopher L. Rafferty
/s/ Olivier L. Trouveroy Director July 28, 1998
- --------------------------
Olivier L. Trouveroy
<PAGE>
INDEX TO EXHIBITS
The following are filed as exhibits or incorporated by reference into
this Registration Statement:
Exhibit Description Exhibit No. or
Number Incorporation
by Reference
4.1 Third Amended and Restated Certificate Exhibit to Form S-8
of Incorporation of American Communications (the "S-8")
Services, Inc.(now known as Services, Inc. Registration
Services, Inc. (now known as e.spire Statement File No.
Communications, Inc.)(the "Company") 333-58457
4.2 Amended and Restated By-laws of American Exhibit to Form
Communications Services, Inc., as amended 10-QSB (the
"10-QSB" for Quarter
ended 6/30/97)
5.1 Opinion of Riley M. Murphy, Esq. E-1
23.1 Consent of Riley M. Murphy, Esq.
(contained in opinion filed as Exhibit 5.1)
23.2 Consent of KPMG Peat Marwick LLP E-2
24.1 Power of Attorney *
99.1 Certificate of Ownership and Merger) E-3
Merging e.spire Communications, Inc.
into American Communications Services, Inc.
* Powers of attorney are contained in signatures.
<PAGE>
Exhibit 5.1
July 28, 1998
e.spire Communications, Inc.
133 National Business Parkway, Suite 200
Annapolis Junction, Maryland 20701
Ladies and Gentlemen:
You have requested my opinion with respect to the
registration by e.spire Communications, Inc. (formerly known as
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 75,000 shares of the Company's common
stock, $.01 par value per share (the "Common Stock" or "Common
Shares"), consisting of shares which may be issued to Participants
(as defined in the Annual Performance Plan, as amended (the "Plan"))
pursuant to the Plan.
In so acting, I have examined original or copies,
certified or otherwise identified to my satisfaction, of such
documents, corporate records, certificates of public officials and
other instruments and have conducted such other investigations of
fact and law as I have deemed relevant and necessary to form a basis
for the opinions hereinafter expressed. In conducting such
examination, I have assumed (i) that all signatures are genuine, (ii)
that all documents and instruments submitted to me 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, I
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 my opinion that the
Shares which may be issued pursuant to the Plan, will be duly
authorized, validly issued, fully paid and non-assessable when issued
and sold as contemplated by the Registration Statement.
I hereby consent to the use of this opinion letter as
Exhibit 5.1 to the Registration Statement.
/s/ Riley M. Murphy
--------------------------
Riley M. Murphy, Esq.
Executive Vice President--
Legal and Regulatory Affairs,
General Counsel and Secretary
<PAGE>
Exhibit 23.2
Independent Auditors' Consent
We consent to incorporation by reference in the registration
statement on Form S-8 of e.spire Communications, Inc. and subsidiaries of our
report dated February 12, 1998 related to the consolidated balance sheets of
e.spire Communications, Inc. and subsidiaries as of June 30, 1996 and December
31, 1996 and 1997, and the related consolidated statements of operations,
stockholders' equity (deficit), and cash flows for the years ended June 30, 1995
and 1996, the six months ended December 31, 1996 and the year ended December 31,
1997, which report appears in the December 31, 1997 annual report on Form 10-KSB
of e.spire Communications, Inc.
/s/ KPMG Peat Marwick LLP
-------------------------
KPMG Peat Marwick LLP
Washington, DC
July 28, 1998
<PAGE>
Exhibit 99.1
Certificate of Ownership and Merger
Merging
e.spire Communications, Inc.
into
American Communications Services, Inc.
---------------------------
Pursuant to Section 253 of the General
Corporation Law of the State of Delaware
----------------------------
American Communications Services, Inc. (the "Corporation"),
a corporation organized and existing under the laws of the State of Delaware:
DOES HEREBY CERTIFY:
FIRST: That the Corporation owns all of the outstanding shares of
common stock, par value $.01 per share, of e.spire Communications, Inc., a
Delaware corporation ("Sub"), and Sub has no class of stock outstanding other
than said common stock.
SECOND: That the Corporation, by resolutions of its Board of
Directors, duly adopted by unanimous written consent of its members acting
without a meeting pursuant to Section 141(f) of the General Corporation Law of
the State of Delaware (the "DGCL"), dated April 9, 1998, has determined to merge
Sub with and into the Corporation pursuant to Section 253 of the DGCL, with the
Corporation as the surviving corporation (the "Merger"). The resolutions
authorizing the Merger are as follows:
"WHEREAS, the Corporation now owns 100 shares of common stock,
par value $.01 per share, of Sub, which shares constitute all of the
issued and outstanding capital stock of Sub; and
WHEREAS, it is deemed advisable that Sub merge with and into the
Corporation (the "Merger");
NOW, THEREFORE, BE IT RESOLVED, that the Board of Directors of
the Corporation hereby authorizes the Merger, with the Corporation to be
the surviving corporation (the "Surviving Corporation") in such Merger;
and further
<PAGE>
RESOLVED, that the Merger shall become effective (the "Effective
Time") upon the filing of a Certificate of Ownership and Merger with the
Secretary of State of the State of Delaware in accordance with the
provisions of Sections 103 and 253 of the General Corporation Law of the
State of Delaware; and further
RESOLVED, that the terms of the Merger are as follows:
(a) Conversion of Shares. At the Effective Time, by virtue of the
Merger and without any action on the part of the holders thereof, each
share of common stock, par value $.01 per share, of Sub outstanding
immediately prior to the Effective Time shall be canceled.
(b) Name of Surviving Corporation. At the Effective Time and
without any further action on the part of the Corporation or Sub, the
name of the Surviving Corporation shall be changed to "e.spire
Communications, Inc."
(c) Certificate of Incorporation and By-Laws of the Surviving
Corporation. At the Effective Time and without any further action on the
part of the Corporation or Sub, the Certificate of Incorporation and
By-Laws of the Corporation shall be the Certificate of Incorporation and
By-Laws of the Surviving Corporation, except that all references therein
to "American Communications Services, Inc." shall hereinafter be deemed
to refer to "e.spire Communications, Inc".
(d) Directors and Officers of the Surviving Corporation. The
directors and officers of the Corporation immediately prior to the
Effective Time shall be the directors and officers of the Surviving
Corporation.
; and further
RESOLVED, that the proper officers of the Corporation be, and
each of them hereby is, authorized and directed to make and execute a
Certificate of Ownership and Merger setting forth the resolutions
authorizing the Corporation to merge Sub with and into the Corporation
and the date of adoption thereof, and to cause the same to be filed with
the Secretary of State of the State of Delaware and a certified copy
recorded in the office of the Recorder of Deeds in the county of
Delaware in which the registered office of the Corporation and Sub are
located and to do all acts and things, whether within or without the
State of Delaware, which may be in any way whatsoever necessary or
proper to effect the Merger."
FOURTH: That the Merger shall become effective upon the filing of
this Certificate of Ownership and Merger with the Secretary of State of Delaware
in accordance with the provisions of Sections 103 and 253 of the DGCL.
<PAGE>
IN WITNESS WHEREOF, AMERICAN COMMUNICATIONS SERVICES, INC. has
caused this Certificate of Ownership and Merger to be signed by
Riley M. Murphy, its Executive Vice President and Secretary,
this 13th day of April, 1998.
AMERICAN COMMUNICATIONS
SERVICES, INC.
By: /s/ Riley M. Murphy
------------------------
Name: Riley M. Murphy
Title: Executive Vice President/
Secretary
