<PAGE> 1
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 jurisdiction of incorporation or (I.R.S. Employer
organization) Identification No.)
131 National Business Parkway
Annapolis Junction, Maryland 20701
(301) 617-4200
(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.
American Communications Services, Inc.
131 National Business Parkway
Annapolis Junction, Maryland 20701
(301) 617-4215
(Name and address of agent for service of process)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=========================================================================================================================
Title of Each Class Proposed Maximum
of Securities to be Amount of Shares Offering Price Per Proposed Aggregate
Registered to be Registered Share (1) Offering Price
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Common Stock $.01
par value per Share......... 224,303(2) $13.375 $3,000,052.63
=========================================================================================================================
</TABLE>
(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 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 March 5, 1998.
(2) Represents Common Stock issued under the American Communications
Services, Inc. Annual Performance Plan.
<PAGE> 2
PROSPECTUS
AMERICAN COMMUNICATIONS SERVICES, INC.
224,303 Shares of Common Stock
(par value $.01 per share)
This Prospectus relates to shares of Common Stock, par value $.01 per
share (the "Common Stock"), of American Communications Services, Inc. ("ACSI" or
the "Company") which may be issued from time to time to employees of the Company
(the "Selling Stockholders") pursuant to the Company's Annual Performance Plan
(the "Plan"). This Prospectus relates to the reoffer and resale of such shares
by the Selling Stockholders. The Company will receive no part of the proceeds of
sales made hereunder. All expenses of registration incurred in connection with
this offering are being borne by the Company, but all selling and other expenses
incurred by the Selling Stockholders will be borne by such Selling Stockholders.
All or a portion of the shares of Common Stock offered hereby may be
offered for sale, from time to time, on the National Association of Securities
Dealers Automated Quotation System ("Nasdaq"), or otherwise, at prices and on
terms then obtainable. See "Plan of Distribution."
The Common Stock of the Company is traded on the Nasdaq under the
symbol "ACNS". On March 10, 1998, the last reported sale price per share of the
Company's Common Stock quoted on the Nasdaq was $14.750.
-------------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
-------------------------------
The date of this Prospectus is March 12, 1998.
<PAGE> 3
No person is authorized to give any information or to make any
representations, other than those contained in this Prospectus, in connection
with the offering described herein, and, if given or made, such information or
representations must not be relied upon as having been authorized by the Company
or the Selling Stockholders. This Prospectus does not constitute an offer to
sell, or a solicitation of an offer to buy, nor shall there be any sale of these
securities by any person in any jurisdiction in which it is unlawful for such
person to make such offer, solicitation or sale. Neither the delivery of this
Prospectus nor any sale made hereunder shall under any circumstances create an
implication that the information contained herein is correct as of any time
subsequent to the date hereof.
AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission") a Registration Statement on Form S-8 (herein, together with all
amendments and exhibits, referred to as the "Registration Statement") under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to the
Common Stock offered hereby. This Prospectus does not contain all of the
information set forth in the Registration Statement, certain parts of which are
omitted in accordance with the rules and regulations of the Commission, and to
which reference is hereby made. Statements made in this Prospectus as to the
contents of any contract, agreement or other document referred to are not
necessarily complete. With respect to each such contract, agreement or other
document filed as an exhibit to the Registration Statement, reference is made to
the exhibit for a more complete description of the matter involved, and each
such statement shall be deemed qualified in its entirety by such reference.
Additional updating information with respect to the Company may be provided in
the future by means of appendices or supplements to this Prospectus.
ACSI is subject to the information requirements of the Exchange Act and
in accordance therewith files reports, proxy and information statements and
other information with the Commission. Such reports, proxy and information
statements and other information may be inspected and copied at the public
reference facilities of the Commission at Room 1024, Judiciary Plaza, 450 Fifth
Street, N.W., Washington, D.C. 20549, or at its regional offices located at
Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661
and 7 World Trade Center, Suite 1300, New York, New York 10048. Copies of such
material can be obtained from the Commission by mail at prescribed rates, or in
certain cases by accessing the Commission's World Wide Web site at
http://www.sec.gov. Requests should be directed to the Commission's Public
Reference Section, Room 1024, Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549. The Company's Common Stock is quoted on the Nasdaq
National Market and material filed by the Company can be inspected at the
offices of the National Association of Securities Dealers, Inc., 1735 K Street
N.W., Washington, D.C. 20006.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by ACSI with the Commission are hereby
incorporated by reference.
(i) the Company's Annual Report on Form 10-K 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;
2
<PAGE> 4
(vi) the Company's Current Reports on Form 8-K, dated October 24,
1997, November 7, 1997, December 30, 1997, January 8, 1998, January 20,
1998, January 26, 1998, January 28, 1998 and February 3, 1998; and
(vii) the description of the Company's Common Stock contained in its
registration statement on Form 8-A filed with the Commission on December
23, 1994, including any amendments or reports filed for the purpose of
updating such description.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")
subsequent to the date of this Prospectus and prior to the termination of the
offering of the securities offered hereby shall be deemed to be incorporated by
reference into this Prospectus and to be a part hereof from the respective dates
of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein,
or in any other subsequently filed document that also is or is deemed to be
incorporated by reference herein, modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
The Company hereby undertakes to provide without charge to each person to
whom a copy of this Prospectus is delivered, upon written or oral request of
such person, a copy of any and all of the information that has been or may be
incorporated herein by reference (other than exhibits to such documents unless
such exhibits are specifically incorporated by reference into such documents).
Requests should be directed to American Communications Services, Inc., 131
National Business Parkway, Suite 100, Annapolis Junction, Maryland 20701
(telephone number (301) 617-4200), Attention: Investor Relations.
THE COMPANY
American Communications Services, Inc., formed in 1993, seeks to be a
leading facilities-based integrated communications provider ("ICP") to business
primarily in major markets in the southern half of the United States. By the end
of 1997, the Company had become one of the first competitive local exchange
carriers ("CLECs") to combine the provision of dedicated, local and long
distance voice services with frame relay, asynchronous transfer mode ("ATM") and
Internet services. Having established this suite of telecommunications services
which emphasizes data capabilities in addition to traditional CLEC offerings,
the Company has evolved into an ICP. ACSI seeks to provide customers with
superior service and competitive prices while offering a single source for
integrated communications services designed to meet its business customers'
needs. The Company's facilities- based network infrastructure is designed to
provide services to customers on an end-to-end basis, and, as of December 31,
1997, was comprised of 1,061 route miles of fiber in its 32 local networks in 19
states, 39 Newbridge ATM switches, 16 Lucent 5ESS switches and approximately
22,000 backbone longhaul miles in its coast-to-coast broadband data network.
With the passage of the federal Telecommunications Act of 1996 (the
"FTA"), the Company has enhanced the scope of its product offerings from
dedicated services to a full range of switched voice, data and Internet services
in order to meet the needs of business end-users, and is expanding its sales,
marketing, customer care and operations support systems ("OSS") capabilities.
The Company introduced local switched voice services, including local exchange
services in late 1996 and long distance services in late 1997. By December 31,
1997, ACSI had sold 43,581 customer access lines, of which 35,105 were
installed, representing a significant increase over the 360 access lines sold as
of March 31, 1997.
3
<PAGE> 5
SECURITIES OFFERED HEREBY
This Prospectus relates to up to 224,303 shares of Common Stock
that have been and may be delivered to participants under the Plan, some of
which may be offered from time to time hereby by the Selling Stockholders.
USE OF PROCEEDS
The shares of Common Stock offered hereby are being sold by the Selling
Stockholders. The Company will not receive any of the proceeds from such sales.
SELLING STOCKHOLDERS
The following table sets forth certain information as of March 11, 1998
concerning the ownership of Common Stock by the Selling Stockholders. The
Selling Stockholders may sell some or all of the shares distributed or that may
be distributed under the Plan pursuant to this Prospectus, until such time as
such shares become available for resale without registration according to the
terms of Rule 144(k) under the Securities Act. Inclusion of these individuals in
the following list does not constitute an acknowledgment by the Company or by
any of these individuals that any one of these persons is an affiliate (as that
term is defined in Rule 144(a) or any other securities law or regulation) of the
Company.
<TABLE>
<CAPTION>
========================================================================================
NAME POSITION OR RELATIONSHIP WITH THE ESTIMATED
COMPANY NUMBER OF
SHARES OF
COMMON STOCK
TO BE ISSUED
PURSUANT TO THE
PLAN
- ----------------------------------------------------------------------------------------
<S> <C> <C>
Jack E. Reich President and Chief Executive Officer 18,450
- ----------------------------------------------------------------------------------------
David L. Piazza Executive Vice President, Chief 7,380
Financial Officer and Chief Operating
Officer
- ----------------------------------------------------------------------------------------
Riley W. Murphy Executive Vice President-Legal and 7,490
Regulatory Affairs, General Counsel
and Secretary
========================================================================================
</TABLE>
PLAN OF DISTRIBUTION
The Selling Stockholders may sell shares of Common Stock in any of the
following ways: (i) through dealers; (ii) through agents; (iii) directly to one
or more purchasers. The distribution of the shares of Common Stock may be
effected from time to time in one or more transactions which may involve crosses
or block transactions (A) on the Nasdaq (or on such other national stock
exchanges on which the shares of Common Stock may be traded from time to time)
in transactions which may include special offerings, exchange distributions
and/or secondary distributions pursuant to and in accordance with the rules of
the Nasdaq or such exchanges, or (B) other than on such exchanges, or a
combination of such transactions. Any such transaction may be effected at market
prices prevailing at the time of sale, at prices related to such prevailing
market prices, at negotiated prices or at fixed prices. The Selling Stockholders
may effect such transactions by selling shares of Common Stock
4
<PAGE> 6
to or through broker-dealers, and such broker-dealers may receive compensation
in the form of discounts, concessions or commissions from the Selling
Stockholders and/or commissions from purchasers of shares of Common Stock for
whom they may act as agent. The Selling Stockholders and any broker-dealers or
agents that participate in the distribution of shares of Common Stock might be
deemed to be underwriters, and any discounts, commissions or concessions
received by any such broker-dealers or agents might be deemed to be underwriting
discounts and commissions, under the Securities Act.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Reference is made to Section 102(b)(7) of the Delaware General Corporation
law (the "DGCL"), which enables a corporation in its original certificate of
incorporation or an amendment thereto to eliminate or limit the personal
liability of a director for monetary damages for violations of the director's
fiduciary duty, except (i) for any breach of a director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii)
pursuant to Section 174 of the DGCL (providing for liability of directors for
unlawful payment of dividends or unlawful stock purchases or redemptions) or
(iv) for any transaction from which a director derived an improper personal
benefit.
Reference also is made to Section 145 of the DGCL which provides that a
corporation may indemnify any persons, including officers and directors, who
are, or are threatened to be made, parties 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 such corporation), by
reason of the fact that such person was an officer, director, employee or agent
of such corporation, or is or was serving at the request of such corporation as
a director, officer, employee or agent of another corporation or other
enterprise. The indemnity may include expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such person in connection with such action, suit or proceeding, provided such
officer, director, employee or agent acted in good faith and in a manner he
reasonably believed to be in or not opposed to the corporation's best interests
and, for criminal proceedings, had no reasonable cause to believe that his
conduct was unlawful. A Delaware corporation may indemnify officers and
directors in an action by or in the right of the corporation under the same
conditions, except that no indemnification is permitted without judicial
approval if the officer or director is adjudged to be liable to the corporation.
Where an officer or director is successful on the merits or otherwise in the
defense of any action referred to above, the corporation must indemnify him
against the expenses (including attorneys' fees) which such officer or director
actually and reasonably incurred.
The Certificate of Incorporation and the Bylaws of the Company provide for
indemnification of officers and directors to the fullest extent permitted by
applicable law. In addition, the Company has entered into contracts with each of
its independent directors requiring the Company to indemnify such persons and to
advance litigation expenses to such persons to the fullest extent permitted by
applicable law. Delaware law presently permits a Delaware corporation (i) to
indemnify any officer or director in any third-party or governmental actions
against them for expenses, judgments, fines and amounts paid in settlement and,
in derivative actions, for expenses, if the indemnitee acted in good faith and
in the manner he believed to be in or not opposed to the best interest of such
corporation and (ii) to advance expenses in any action, provided that such
officer or director agrees to reimburse the corporation if it is ultimately
determined that he was not entitled to indemnification. The contracts also
require the Company to (i) indemnify such independent directors upon receipt of
an opinion of counsel in certain cases, (ii) pay indemnity demands pending a
determination of entitlement thereto, and (iii) demonstrate, in any action
brought thereunder, that such director was not entitled to indemnification under
applicable law.
5
<PAGE> 7
No dealer, salesperson or other person has been authorized to give any
information or to make any representations not contained in this Prospectus,
and, if given or made, such information or representations must not be relied
upon as having been authorized by the Company. This Prospectus does not
constitute an offer of any securities other than those to which it relates or an
offer to sell, or a solicitation of an offer to buy, to any person in any
jurisdiction where such an offer or solicitation would be unlawful. Neither the
delivery of this Prospectus nor any sale made hereunder shall, under any
circumstances, create any implication that there has been no change in the
affairs of the Company since the date hereof.
<TABLE>
<CAPTION>
TABLE OF CONTENTS
Page
<S> <C>
Available Information.................................. 2
Incorporation of Certain Documents
By Reference......................................... 2
The Company............................................ 3
Securities Offered Hereby.............................. 4
Use of Proceeds........................................ 4
Selling Stockholders................................... 4
Plan of Distribution................................... 4
Indemnification of Directors and Officers.............. 5
</TABLE>
<PAGE> 8
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
October 24, 1997, November 7, 1997, December 30, 1997, January 8, 1998,
January 20, 1998, January 26, 1998, January 28, 1998 and February 3,
1998; 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.
The Common Stock of the Company is registered under Section 12
of the Exchange Act.
Item 5. Interests of Named Experts and Counsel.
Certain legal matters in connection with any original issuance
of Common Stock offered hereby are being passed upon for the Company by Riley M.
Murphy, Esq., Executive Vice President--Legal and Regulatory Affairs, General
Counsel and Secretary.
II-1
<PAGE> 9
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, 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.
II-2
<PAGE> 10
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.
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:
<TABLE>
<CAPTION>
Exhibit No. or
Exhibit Incorporation
Number Description by Reference
- ------ ----------- --------------
<S> <C> <C>
4.1 Second Restated Certificate of Incorporation of American Exhibit to Form 10-
Communications Services, Inc. (the "Company") QSB (the "10-QSB")
for Quarter ended
6/30/97
4.2 Amended and Restated By-laws of the Company, as Exhibit to the
amended 10-QSB
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 *
</TABLE>
* Powers of attorney are contained in signatures.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
II-3
<PAGE> 11
(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)(l)(i) and
(a)(l)(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 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 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
II-4
<PAGE> 12
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.
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 March
12, 1998.
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, 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.
II-5
<PAGE> 13
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>
<S> <C> <C>
/s/ Anthony J. Pompliano Chairman of the March 10, 1998
- ------------------------------------
Anthony J. Pompliano Board of Directors
/s/ Jack E. Reich President and Chief March 10, 1998
- ------------------------------------
Jack E. Reich Executive Officer,
(Principal Executive Officer) and
Director
/s/ David L. Piazza Executive Vice President, Chief March 10, 1998
- ------------------------------------
David L. Piazza Financial Officer and Chief Operating
Officer (Principal
Accounting Officer)
Director March 10 ,1998
- ------------------------------------
George M. Middlemas
/s/ Edwin M. Banks Director March 10, 1998
- ------------------------------------
Edwin M. Banks
/s/ Christopher L. Rafferty Director March 10, 1998
- ------------------------------------
Christopher L. Rafferty
/s/ Benjamin P. Giess Director March 10, 1998
- ------------------------------------
Benjamin P. Giess
/s/ Olivier L. Trouveroy Director March 10, 1998
- ------------------------------------
Olivier L. Trouveroy
/s/ Peter C. Bentz Director March 10, 1998
- ------------------------------------
Peter C. Bentz
</TABLE>
II-6
<PAGE> 14
EXHIBIT INDEX
-------------
<TABLE>
<CAPTION>
Exhibit Incorporation
Number Description by Reference
- ------ ----------- --------------
<S> <C> <C>
4.1 Second Restated Certificate of Incorporation of American Exhibit to Form 10-
Communications Services, Inc. (the "Company") QSB (the "10-QSB")
for Quarter ended
6/30/97
4.2 Amended and Restated By-laws of the Company, as Exhibit to the
amended 10-QSB
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 *
</TABLE>
* Powers of attorney are contained in signatures.
<PAGE> 1
Exhibit E-1
March 12, 1998
American Communications Services, Inc.
131 National Business Parkway
Annapolis Junction, Maryland 20701
Ladies and Gentlemen:
You have requested my 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 224,303
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> 1
Exhibit E-2
We consent to the use of our report incorporated herein by
reference, which report appears in the December 31, 1996 Annual Report on Form
10-KSB of American Communications Services, Inc.
/s/ KPMG Peat Marwick LLP
----------------------------------------------
KPMG Peat Marwick LLP
Washington, DC
March 12, 1998
