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 of (I.R.S. Employer
incorporation or 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.
e.spire Communications, Inc.
131 National Business Parkway
Annapolis Junction, Maryland 20701
(301) 617-4215
(Name and address of agent for service of process)
CALCULATION OF REGISTRATION FEE
<TABLE>
Title of Each Class of Amount of Proposed Maximum Proposed
Securities to be Shares to be Offering Price Aggregate
Registered Registered Per Share<F1> Offering Price
---------------------- ------------ ---------------- --------------
<S> <C> <C> <C>
Common Stock $.01 par
value per Share . . . . 25,000<F2> $17.21875 $430,468.75
<FN>
<F1> 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 April 27, 1998.
<F2> Represents Common Stock issued under the American Communications
Services, Inc. Annual Performance Plan.
</TABLE>
<PAGE>
This Registration Statement relates to the registration of 25,000
additional shares of Common Stock, par value $.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
May 1, 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 May 1, 1998
Anthony J. Pompliano Board of Directors
/s/ Jack E. Reich
- ---------------------------- President and Chief May 1, 1998
Jack E. Reich Executive Officer,
(Principal Executive
Officer) and Director
/s/ David L. Piazza
- ---------------------------- Executive Vice President, May 1, 1998
David L. Piazza Chief Financial Officer and
Chief Operating Officer
(Principal Accounting
Officer)
- ---------------------------- Director May 1,1998
George M. Middlemas
/s/ Edwin M. Banks
- ---------------------------- Director May 1, 1998
Edwin M. Banks
/s/ Christopher L. Rafferty
- ---------------------------- Director May 1, 1998
Christopher L. Rafferty
/s/ Benjamin P. Giess
- ---------------------------- Director May 1, 1998
Benjamin P. Giess
/s/ Oliver L. Trouveroy
- ---------------------------- Director May 1, 1998
Oliver L. Trouveroy
/s/ Peter C. Bentz
- ---------------------------- Director May 1, 1998
Peter C. Bentz
<PAGE>
INDEX TO EXHIBITS
The following are filed as exhibits or incorporated by reference
into this Registration Statement:
Exhibit No. or
Exhibit Incorporation
Number Description by Reference
- ------- ----------- --------------
4.1 Second Restated Certificate of Exhibit to Form
Incorporation of American Communications 10-QSB (the "10-
Services, Inc. (now known as e.spire QSB") for Quarter
Communications, Inc.) (the "Company") ended 6/30/97
4.2 Amended and Restated By-laws of American Exhibit to the
Communications Services, Inc., as 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)
23.3 Consent of KPMG Peat Marwick LLP E-2
24.1 Power of Attorney <F1>
99.1 Certificate of Ownership and Merger Merging E-3
e.spire Communications, Inc. into American
Communications Services, Inc.
[FN]
<F1> Powers of attorney are contained in signatures.
<PAGE>
Exhibit E-1
May 1, 1998
e.spire Communications, Inc.
131 National Business Parkway
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 25,000 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 E-3
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
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:
<PAGE>
(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/Secretary, this ____ day of April,
1998.
AMERICAN COMMUNICATIONS
SERVICES, INC.
By:________________________________
Name: Riley M. Murphy
Title: Executive Vice President/
Secretary
Exhibit 23.3
Independent Auditors' Consent
We consent to the use of our report incorporated by reference
in the registration statement on Form S-8 of e.spire Communications, Inc.
and subsidiaries as filed with the Securities and Exchange Commission on
May 1, 1998 relating 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
May 1, 1998
<PAGE>
