<PAGE>
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 incorporation or (I.R.S. Employer
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)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
====================================================================================================
Title of Each Class of Amount of Shares to Proposed Maximum Offering Proposed Aggregate
of Securities to be be Registered Price Per Share Offering Price
Registered
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Common Stock $.01 par
value per Share.......... 1,250,000 (2) $ 5.0156 (1) $6,269,500.00
====================================================================================================
(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 January 22, 1999.
(2) Represents Common Stock issued under the American Communications Services, Inc. Annual Performance Plan.
</TABLE>
<PAGE>
This Registration Statement relates to the registration of 1,250,000
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 January
29, 1999.
e.spire Communications, Inc.
(Registrant)
By: /s/ Anthony J. Pompliano
----------------------------------
Anthony J. Pompliano, Chairman and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Anthony J. Pompliano, 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.
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 January 29, 1999
- --------------------------------- Board of Directors
Anthony J. Pompliano and Chief Executive Officer
(Principal Executive Officer)
/s/ David L. Piazza Chief Financial Officer January 29, 1999
- ---------------------------------- (Principal Accounting Officer)
David L. Piazza
/s/ Edwin M. Bank Director January 29, 1999
- ----------------------------------
Edwin M. Banks
/s/ Peter C. Bentz Director January 29, 1999
- ----------------------------------
Peter C. Bentz
/s/ Benjamin P. Giess Director January 29, 1999
- ----------------------------------
Benjamin P. Giess
/s/ Oliver L. Trouveroy Director January 29, 1999
- ----------------------------------
Olivier L. Trouveroy
/s/ George M. Middlemas Director January 29, 1999
- ----------------------------------
George M. Middlemas
/s/ Christopher L. Rafferty Director January 29, 1999
- ----------------------------------
Christopher L. Rafferty
<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 Third Amended and Restated Certificate Exhibit to Form S-8
of Incorporation of (the "S-8")
American Communications Services, Inc. Registration Statement
(now known as e.spire File No. 333-58457
Communications, Inc.) (the "Company")
4.2 Amended and Restated By-laws of American E-1
Communications Services, Inc., as amended
5.1 Opinion of Riley M. Murphy, Esq. E-2
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-3
24.1 Power of Attorney (1)
(1) Powers of attorney are contained in signatures.
<PAGE>
Exhibit 4.2
e.spire COMMUNICATIONS, INC.
AMENDED AND RESTATED BY-LAWS (1)
(1) As amended by unanimous consent of the Board of Directors on July 2,1997.
Further amended by a Board of Directors meeting on September 22, 1997. And,
further amended by the Board of Directors on November 23, 1998.
ARTICLE I
Offices
SECTION 1. Registered Office. The registered office of e.spire
Communications, Inc. (the "Corporation") in the State of Delaware shall be at
1209 Orange Street, City of Wilmington, County of New Castle, and the registered
agent in charge thereof shall be The Corporation Trust Company.
SECTION 2. Other Offices. The Corporation may also have an office or
offices at other place or places within or without
the State of Delaware.
ARTICLE II
Meetings of Stockholders; Stockholders'
Consent in Lieu of Meeting
SECTION 1. Annual Meeting. The annual meeting of the stockholders
(unless the context clearly requires otherwise, the term "Stockholders" as used
herein shall refer to all holders of the Corporation's securities which then
have voting rights) for the election of directors, and for the transaction of
such other business as may properly come before the meeting, shall be held at
such place, date and hour as shall be fixed by the Board of Directors (the
"Board") and designated in the notice or waiver of notice thereof; except that
no annual meeting need be held if all actions, including the election of
directors, required by the General Corporation Law of the State of Delaware to
be taken at a stockholders' annual meeting are taken by written consent in lieu
of meeting pursuant to Section 10 or this Article II.
SECTION 2. Special Meetings. A special meeting of the stockholders for
any purpose or purposes may be called by the Board, the Chairman, the President
or the holders of at least 12.5% of the Corporation's voting stock, to be held
at such place, date and hour as shall be designated in the notice thereof.
Special meetings of the stockholders may also be called and convened as provided
in the Certificate of Incorporation.
SECTION 3. Notice of Meetings. Except as otherwise required by statute
or by the Certificate of Incorporation or these By-laws, notice of each annual
or special meeting of the stockholders shall be given to each stockholder of
record entitled to vote at such meeting not less than 10 or more than 60 days
before the day on which the meeting is to be held, by delivering a typewritten
or printed notice thereof to him personally, or by mailing a copy of such
notice, postage prepaid, directly to each such stockholder at his address as it
appears in the records of the Corporation, or by transmitting notice thereof to
him at such address by telegraph, cable or radio. Every such notice shall state
the place and the date and hour of the meeting, and, in case of a special
meeting, the purpose or purposes for which the meeting is called. Notice of any
meeting of stockholders shall not be required to be given to any stockholder who
shall attend such meeting in person or by proxy, or who shall, in person or by
attorney thereunto authorized, waive such notice in writing, either before or
after such meeting. Except as otherwise provided in these By-laws, neither the
business to be transacted at, nor the purpose of, any meeting of the
stockholders need be specified in any such waiver of notice. Notice of any
adjourned meeting of stockholders shall not be required to be given, except when
expressly required by law.
SECTION 4. Quorum. At each meeting of the stockholders, except where
otherwise provided by the Certificate of Incorporation or these By-Laws, the
holders of a majority of the issued and outstanding shares of stock of the
Corporation entitled to vote at such meeting, present in person or represented
by Proxy shall constitute a quorum for the transaction of business. In the
absence of a quorum, a majority in interest of the stockholders present in
person or represented by proxy and entitled to vote, or, in the absence of all
the stockholders entitled to vote, any officer entitled to preside at, or act as
secretary of such meeting, shall have the power to adjourn the meeting from time
to time, until stockholders holding the requisite amount of stock shall be
present or represented. At any such adjourned meeting at which a quorum shall be
present, any business may be transacted which might have been transacted at the
meeting as originally called.
SECTION 5. Organization. At each meeting of the stockholders, one of
the following shall act as chairman of the meeting
and preside thereat, in the following order of precedence:
(a) the Chairman of the Board, if any;
(b) the President;
(c) any other officer of the Corporation designated by the
Board of Directors to act as chairman of such meeting and to preside
thereat if the Chairman of the Board, if any, or the President shall be
absent from such meeting.
The Secretary, or if he shall be presiding over the meeting in accordance with
the provisions of this Section, or if he shall be absent from such meeting, the
person whom the chairman of such meeting shall appoint, shall act as secretary
of such meeting and keep the minutes thereof.
SECTION 6. Order or Business. The order of business at each meeting of
the stockholders shall be determined by the chairman of such meeting, but such
order of business may be changed by a majority in voting interest of those
present in person or by proxy at such meeting and entitled to vote thereat.
SECTION 7. Voting. Except as otherwise provided by law or by the
Certificate of Incorporation or these By-laws, at each meeting of the
stockholders, every stockholder of the Corporation shall be entitled to one vote
in person or by proxy for each share of common stock of the corporation held by
him and registered in his name on the books of the Corporation:
(a) on the date fixed pursuant to Section 7 of Article V as
the record date for the determination of stockholders entitled to vote
at such meeting; or
(b) if no such record date shall have been fixed, at the close
of business on the day next preceding the day on which notice is given,
or, if notice is waived, at the close of business on the day next
preceding the day on which the meeting is held.
A determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of such meeting;
provided, however, that the Board may fix a new record date for the adjourned
meeting. Only the record holders of the Corporation's stock or their proxies
will be entitled to vote such shares. If shares or other securities having
voting power stand in the record of two or more persons, whether fiduciaries,
members of a partnership, joint tenants, tenants in common, tenants by the
entirety or otherwise, or if two or more persons have the same fiduciary
relationship respecting the same shares, unless the Secretary shall be given the
written notice to the contrary and shall be furnished with a copy of the
instrument or order appointing them or creating the relationship wherein it is
so provided, their acts with respect to voting shall have the following effect:
(a) if only one votes, his act binds all;
(b) if more than one votes, the act of the majority so
voting binds all; and
(c) if more than one votes, but the vote is evenly split on
any particular matter, such shares shall be voted in the manner
provided by law.
If the instrument so filed shows that any such tenancy is held in unequal
interests, a majority or even-split for the purposes of this Section shall be
the majority or even-split in interest. The Corporation shall not vote directly
or indirectly any share of its own capital stock. Any vote of stock may be given
by the stockholder entitled thereto in person or by his proxy appointed by an
instrument in writing, subscribed by such stockholder or by his attorney
thereunto authorized, delivered to the secretary of the meeting; provided,
however, that no proxy shall be voted after three years from its date, unless
said proxy provides for a longer period. At all meetings of the stockholders,
all matters (except where other provision is made by law, by the Certificate of
Incorporation or these By-laws) shall be decided by the vote of a majority in
interest of the stockholders present in person or by proxy at such meeting and
entitled to vote thereon, a quorum being present. Unless demanded by a
stockholder present in person or by proxy at any meeting and entitled to vote
thereon, the vote on any question need not be by ballot. Upon a demand by any
such stockholder for a vote by ballot upon any question, such vote by ballot
shall be taken. On a vote by ballot, each ballot shall be signed by the
stockholder voting, or by his proxy, if there be such proxy, and shall state the
number of shares voted.
SECTION 8. Inspection. The chairman of the meeting may at any time
appoint two or more inspectors to serve at any meeting of the stockholders. Any
inspector may be removed, and a new inspector or inspectors may be appointed by
the Board at any time. Such inspectors shall decide upon the qualifications of
voters, accept and count the votes for and against the matter to be voted upon,
respectively, declare the results of such vote, and subscribe and deliver to the
secretary of the meeting a certificate stating the number of shares of stock
issued and outstanding and entitled to vote thereon and the number of shares
voted for and against the matter to be voted upon, respectively. The inspectors
need not be stockholders of the Corporation, and any director or officer of the
Corporation may be an inspector on any question other than a vote for or against
his election to any position with the Corporation or on any other question in
which he may be directly interested. Before acting as herein provided, each
inspector shall subscribe an oath faithfully to execute the duties of an
inspector with strict impartiality and according to the best of his ability.
SECTION 9. List of Stockholders. It shall be the duty of the Secretary
or other officer of the Corporation who shall have charge of its stock ledger to
prepare and make, at least 10 days before every meeting of the stockholders, a
complete list of the stockholders entitled to vote thereat, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose germane to any such meeting,
during ordinary business hours, for a period of at least 10 days prior to such
meeting, either at a place within the city where such meeting is to be held,
which place shall be specified in the notice of the meeting or, if not so
specified, at the place where the meeting is to be held. Such list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
SECTION 10. Stockholders' Consent In Lieu of Meeting. Subject to the
requirements of the Certificate of Incorporation, any action required by law to
be taken at any annual or special meeting of the stockholders of the
Corporation, or any action which may be taken at any annual or special meeting
of such stockholders, may be taken without a meeting, without prior notice and
without a vote, if a consent or consents in writing, setting forth the action so
taken, shall be signed by the holders of outstanding stock having not less than
the minimum number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon were present
and voted and shall be delivered to the Corporation by delivery to its
registered office in the State of Delaware, its principal place of business, or
an officer or agent of the Corporation having custody of the book in which
proceedings of meetings of stockholders are recorded. Delivery made to the
Corporation's registered office shall be by hand or by certified or registered
mail, return receipt requested. Every written consent shall bear the date of
signature of each stockholder who signs the consent and the number of shares
which the stockholder is entitled to vote. No written consent shall be effective
to take the corporate action referred to therein unless, within 60 days of the
earliest dated consent delivered in the manner required by law to the
Corporation, written consents signed by a sufficient number of holders to take
action are delivered to the Corporation by delivery to its registered office in
Delaware, its principal place of business, or an officer or an agent of the
corporation having custody of the book in which proceedings of meetings of
stockholders are recorded. Delivery made to the Corporation's registered office
shall be by hand or by certified or registered mail, return receipt requested.
Prompt notice of the taking of the corporate action without a meeting by less
than unanimous written consent shall be given to those stockholders who have not
consented in writing.
ARTICLE III
Board of Directors
SECTION 1. General Powers. The business, property and affairs of the
Corporation shall be managed by the Board, which may exercise all such powers of
the Corporation and do all such lawful acts and things as are not by law or by
the Certificate of Incorporation directed or required to be exercised or done by
the stockholders.
SECTION 2. Number and Term of Office. The number of directors shall be
seven or as otherwise provided in the Certificate of Incorporation. Except as
otherwise provided in the Certificate of Incorporation, each Director shall hold
office for a term expiring at the next annual meeting of shareholders or until
his earlier death, removal or resignation.
Section 3. Election of Directors. Except as otherwise provided by the
Certificate of Incorporation, at each meeting of the stockholders for the
election of directors at which a quorum is present, the persons receiving the
greatest number of votes, up to the number of directors to be elected, of the
stockholders present in person or by proxy and entitled to vote thereon shall be
the directors. Unless an election by ballot shall be demanded as provided in
Section 7 of Article II, election of directors be conducted in any manner
approved at such a meeting.
Section 4. Resignation, Removal and Vacancies. Any director may resign
at any time by giving written notice to the Board, the Chairman, if any, the
President or the Secretary. Such resignation shall take effect at the time
specified thereon or, if the time be not specified, upon receipt thereof; and,
unless otherwise specified therein, the acceptance of such resignation shall not
be necessary to make it effective.
Any or all directors may be removed, with or without cause, at any time
by vote of the holders of a majority of the shares then entitled to vote for
such directors at an election of directors, or by written consent of the
stockholders entitled to vote for such directors pursuant to Section 10 of
Article II.
Any vacancy caused by the death or resignation of a director may be
filled by the stockholders in the manner provided in the Certificate of
Incorporation of the Corporation and these By-laws, or may be filled by a vote
of the directors elected by the stockholders.
SECTION 5. Meetings.
(A) Annual Meeting. As soon as practicable after each annual election
of directors, the Board shall meet for the purpose of organization and the
transaction of other business, unless it shall have transacted all such business
by written consent pursuant to Section 6 of this Article III.
(B) Other Meetings. Other meetings of the Board shall be held at such
times and places as the Board, the Chairman, if any, or the President shall from
time to time determine.
(C) Notice of Meetings. The Secretary shall give notice to each
director of each meeting, including the time, place and purpose of such meeting.
Notice of each such meeting shall be mailed to each director, addressed to him
at his residence or usual place of business, at least two days before the day on
which such meeting is to be held, or shall be sent to him at such place by
facsimile, telegraph, cable, wireless or other form of recorded communication,
or be delivered personally or by telephone not later than the day before the day
on which such meeting is to be held, but notice need not be given to any
director who attends such meetings. A written waiver of notice, signed by the
person entitled thereto, whether before or after the time of the meeting stated
therein, shall be deemed equivalent to notice.
(D) Place of Meetings. The Board may hold its meetings at such place or
places within or without the State of Delaware as the Board may from time to
time determine, or as shall be designated in the respective notices or waivers
of notice thereof.
(E) Quorum and Manner of Acting. Except as otherwise required by the
Certificate of Incorporation, a majority of the total number of directors then
in office (but not less than two if the number of Directors is greater than one)
shall be present in person at any meeting of the Board in order to constitute a
quorum for the transaction of business at such meeting, and except as otherwise
required by the Certificate of Incorporation or by law, the vote of a majority
of those directors present at any such meeting at which a quorum is present
shall be necessary for the passage of any resolution or act of the Board.
(F) Organization. At each meeting of the Board, one of the following
shall act as chairman of the meeting and preside, in the following order of
precedence
(a) the Chairman of the Board, in any;
(b) the President (if a director);
(c) any director chosen by a majority of the directors
present.
The Secretary or, in the case of his absence, any person (who shall be an
Assistant Secretary, if an Assistant Secretary is present) whom the Chairman
shall appoint shall act as secretary of such meeting and keep the minutes
thereof.
SECTION 6. Directors' Consent in Lieu of Meeting. Any action required
or permitted to be taken at any meeting of the Board may be taken without a
meeting, without prior notice, without a vote, if a consent in writing, setting
forth the action so taken, shall be signed by all the directors and such consent
is filed with the minutes of the proceedings of the Board.
SECTION 7. Action by Means of Conference Telephone or Similar
Communications Equipment. Any one or more members of the Board may participate
in a meeting of the Board by means of conference telephone or similar
communications equipment by which all persons participating in the meeting can
hear each other, and participation in a meeting by such means shall constitute
presence in person at such meeting.
SECTION 8. Committees of the Board. The Board may, by resolution passed
by a majority of the whole Board, designate one or more committees, each
committee to consist of one or more of the directors of the corporation. The
Board may designate one or more directors as alternate members of any committee,
who may replace any absent or disqualified member at any meeting of the
committee. In the absence or disqualification of a member of a committee, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the Board to act at the meeting in the place of any such
absent or disqualified member. Any such committee, to the extent provided in the
resolution of the Board, shall have and may exercise all the powers and
authority of the Board in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the Certificate of Incorporation, adopting an
agreement of merger or consolidation, recommending to the stockholders the sale,
lease or exchange of all or substantially all of the Corporation's property and
assets, recommending to the stockholders a dissolution of the Corporation or a
revocation of a dissolution, or amending the By-laws of the Corporation; and,
unless the resolution designating it expressly so provides, no such committee
shall have the power or authority to declare a dividend or to authorize the
issuance of stock.
Without limiting the generality of the foregoing, the board of
directors shall establish and maintain a compensation committee comprised of
three directors, none of whom may be an employee of the Company or any of its
subsidiaries. The compensation committee shall be responsible for recommending
to the full board of directors all stock option grants, bonuses and other
compensation arrangements for executives and key employees and loans and other
non-salary payments and other benefits and arrangements with employees and
affiliates and associates of the Company. The compensation committee shall have
such additional powers and duties as the board of directors from time to time
determines.
The board of directors shall establish and maintain an audit committee
comprised of three directors, one of whom shall be a senior executive officer of
the Company (but not the chief financial or chief accounting officer) and two of
whom may not be employees of the Company or any of its subsidiaries. The audit
committee shall be responsible for selecting the Company's independent auditors
and reviewing their audit, as well as reviewing and approving the Company's
internal controls and accounting systems. The audit committee shall have such
additional powers and duties as the board of directors from time to time
determines.
In the event that the group of directors of the Company that are
specified to select a committee member as provided herein is deadlocked over its
selection of such committee member for more than 30 days, the full board of
directors shall select such committee member from among such group of directors.
ARTICLE IV
Officers
SECTION 1. Executive Officers. The executive officers of the
Corporation shall be a Chief Executive Officer, a President, a Chief Financial
Officer, a Secretary and a Treasurer and may include a Chairman of the Board, a
Chief Operating Officer and such other officers as the Board may appoint
pursuant to Section 3 of this Article IV. Any two or more offices may be held by
the same person, provided that the offices of President and Secretary shall be
held by different persons.
SECTION 2. Authority and Duties. All officers as between themselves and
the Corporation, shall have such authority and perform such duties in the
management of the Corporation as may be provided in these By-laws or, to the
extent so provided, by the Board.
SECTION 3. Other Officers. The Corporation may have such other
officers, agents and employees as the Board may deem necessary, including one or
more Vice-Presidents, one or more Assistant Secretaries and one or more
Assistant Treasurers, each of whom shall hold office for such period, have such
authority, and perform such duties as the Board, the Chief Executive Officer,
the President, or the Chief Operating Officer may from time to time determine.
The Board may delegate to any executive officer the power to appoint or remove
any such officer, agents or employees.
SECTION 4. Term of Office, Resignation and Removal. All officers shall
be elected or appointed by the Board and shall hold office for such term as may
be prescribed by the Board. Each officer shall hold office until his successor
has been elected or appointed and qualified or his earlier death or resignation
or removal in the manner hereinafter provided. The Board may require any officer
to give security for the faithful performance of his duties.
Any officer may resign at any time by giving written notice to the
Board or to the Chief Executive officer, or to the President or to the Chief
Operating Officer, or to the Secretary, and such resignation shall take effect
at the time specified therein or, if the time when it shall become effective is
not specified therein, at the time it is accepted by action of the Board. Except
as aforesaid, the acceptance of such resignation shall not be necessary to make
it effective.
All officers and agents elected or appointed by the Board shall be
subject to removal at any time by the Board with or without cause.
SECTION 5. Vacancies. If the office of the Chief Executive Officer, the
President, Chief Financial Officer, the Secretary or the Treasurer or any other
office becomes vacant for any reason, the Board shall fill such vacancy or may
elect not to fill such vacancy. An officer so appointed or elected by the Board
shall serve only until such time as the unexpired term of his predecessor shall
have expired unless reelected or reappointed by the Board.
SECTION 6. Chairman of the Board. If there shall be a Chairman of the
Board, he shall, unless provided otherwise by the Board by resolution, preside
at meetings of the Board and of the stockholders at which he is present, and
shall give counsel and advice to the Board and the officers of the Corporation
on all subjects concerning the welfare of the Corporation and the conduct of its
business. He shall perform such other duties as the Board may from time to time
determine.
SECTION 7. The Chief Executive Officer. The Chief Executive Officer
shall be the most senior officer of the Corporation and unless the Chairman of
the Board be appointed and present or the Board has provided otherwise by
resolution, he shall preside at all meetings of the Board and the stockholders
at which is he present. He shall have responsibility for the short and long term
strategy of the Corporation, corporate development and investor relations and
shall cause decisions concerning the attainment of strategic, corporate
development and investor relations' objectives to be implemented.
SECTION 8. The President. The President, unless the Chairman of the
Board be appointed and present, or the Chief Executive Officer be appointed and
present or the Board has provided otherwise by resolution shall preside at all
meetings of the Board and the stockholders at which he is present. He shall,
along with the Chief Operating Officer (if one is appointed by the board), have
the day-to-day, general and active management and control of the business and
affairs of the Corporation subject to the control of the Chief Executive Officer
and subject to the control of the Board, and shall see that all orders of the
Chief Executive Officer and orders and resolutions of the Board are carried into
effect.
SECTION 9. The Chief Operating Officer. He shall, along with the
President, have the day-to-day, general and active management and control of the
business and affairs of the Corporation subject to the control of the Chief
Executive Officer and subject to the control of the Board, and shall see that
all orders of the Chief Executive Officer and orders and resolutions of the
Board are carried into effect.
SECTION 10. Chief Financial Officer. He shall have responsibility for
the financial matters of the Corporation, including the books and records, and
such other responsibilities as determined by the Board.
SECTION 11. Vice-President. A Vice-President, which officer may have
such additional designations such as "Executive" or "Senior" as the Board may
provide, shall perform such duties as may be prescribed by the Board, the Chief
Executive Officer, the President, or Chief Operating Officer under whose
supervision he shall act.
SECTION 12. The Secretary. The Secretary shall, to the extent
practicable, attend all meetings of the Board and all meetings of the
stockholders and shall record all votes and the minutes of all proceedings in a
book to be kept for that purpose. He shall give, or cause to be given, notice of
all meetings of the stockholders and of the Board, and shall perform such other
duties as may be prescribed by the Board, the Chief Executive Officer, or the
President or Chief Operating Officer, under whose supervision he shall act. He
shall keep in safe custody the seal of the Corporation and affix the same to any
duly authorized instrument requiring it and, when so affixed, it shall be
attested by his signature or by the signature of the Treasurer or, in appointed,
an Assistant Secretary or an Assistant Treasurer. He shall keep, or cause the
Corporation's transfer agent and registrar to keep, in safe custody the
certificate books and stockholder records and such other books and records as
the Board may direct and shall perform all other duties incident to the office
of Secretary and such other duties as from time to time may be assigned to him
by the Chief Executive Officer, President, Chief Operating Officer of the Board.
SECTION 13. The Treasurer. The Treasurer shall have the care and
custody of the corporate funds and other valuable effects, including securities,
and shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Corporation and shall deposit all moneys and other valuable
effects in the name and to the credit of the Corporation in such depositories as
may be designated by the Board. The Treasurer shall disburse the funds of the
corporation as may be ordered by the Chief Executive Officer, President, Chief
Financial Officer, or the Board, taking proper vouchers for such disbursements,
and shall render to the Chief Executive Officer, President and Chief Financial
Officer, Chief Operating Officer and the Board, at the regular meetings of the
Board, or whenever they may require it, an account of all his transactions as
Treasurer and of the financial condition of the Corporation; and, in general
perform all the duties incident to the office of Treasurer and such other duties
as from time to time may be assigned to him by the Chief Executive Officer,
President, Chief Financial Officer, Chief Operating Officer, or the Board.
ARTICLE V
Shares and Their Transfer; Fixing Record Date
SECTION 1. Certificates for Shares. Every owner of stock of the
Corporation shall be entitled to have a certificate certifying the number and
class of shares owned by him in the Corporation, which shall otherwise be in
such form as shall be prescribed by the Board. Certificates shall be issued in
consecutive order and shall be numbered in the order of their issue, and shall
be signed by, or in the name of, the Corporation by the Chairman, if any, the
President or any Vice President and by the Treasurer (or an Assistant Treasurer,
if appointed) or the Secretary (or an Assistant Secretary, if appointed). In
case any officer or officers who shall have signed any such certificate or
certificates shall cease to be such officer or officers of the Corporation,
whether because of death, resignation or otherwise, before such certificate or
certificates shall have been delivered by the Corporation, such certificate or
certificates may nevertheless be adopted by the Corporation and be issued and
delivered as though the person or persons who signed such certificate had not
ceased to be such officer or officers of the Corporation.
SECTION 2. Record. A record (herein called the stock record) in one or
more counterparts shall be kept of the name of the person, firm or corporation
owning the shares represented by each certificate for stock of the Corporation
issued, the number of shares represented by each such certificate, the date
thereof and, in the case of cancellation, the date of cancellation. Except as
otherwise expressly required by law, the person in whose name shares of stock
stand on the stock record of the Corporation shall be deemed the owner thereof
for all purposes as regards the Corporation.
SECTION 3. Transfer and Registration of Stock.
(a) The transfer of stock and certificates of stock which represent the
stock of the Corporation shall be governed by Article 8 of Subtitle 1 of Title 6
of the Delaware Code (the Uniform Commercial Code), as amended from time to
time.
(b) Registration of transfers of shares of the Corporation shall be
made only on the books of the Corporation upon request of the registered holder
thereof, or of his attorney thereunto authorized by power of attorney duly
executed and filed with the Secretary of the Corporation, and upon the surrender
of the certificate or certificates for such shares properly endorsed or
accompanied by a stock power duly executed.
SECTION 4. Addresses of Stockholders - Each stockholder shall designate
to the Secretary an address at which notices of meetings and all other corporate
notices may be served or mailed to him, and, if any stockholder shall fail to
designate such address, corporate notices may be served upon him by mail
directed to him at his post office address, if any, as the same appears on the
share record books of the Corporation or at his last known post office address.
SECTION 5. Lost, Destroyed and Mutilated Certificates. The holder of
any shares of the Corporation shall immediately notify the Corporation of any
loss, destruction or mutilation of the certificate therefor, and the Board may,
in its discretion, cause to be issued to him a new certificate or certificates
for shares, upon the surrender of the mutilated certificates or, in the case of
loss or destruction of the certificate, upon satisfactory proof of such loss or
destruction, and the Board may, in its discretion, require the owner of the lost
or destroyed certificate or his legal representative to give the Corporation a
bond in such sum and with such surety or sureties as it may direct to indemnify
the Corporation against any claim that may be made against it on account of the
alleged loss or destruction of any such certificate.
SECTION 6. Regulations. The Board may make such rules and regulations
as it may deem expedient, not inconsistent with these By-laws, concerning the
issue, transfer and registration of certificates for stock of the Corporation.
SECTION 7. Fixing Date for Determination of Stockholders of Record. In
order that the Corporation may determine the stockholders entitled to notice of
or to vote at any meeting of stockholders or any adjournment thereof, or to
express consent to corporate action in writing without a meeting, or entitled to
receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion
or exchange of stock or for the purpose of any other lawful action, the Board
may fix, in advance, a record date, which shall not be more than 60 nor less
than 10 days before the date of such meeting, nor more than 60 days prior to any
other action. A determination of stockholders entitled to notice of or to vote
at a meeting of the stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board may fix a new record date for the adjourned
meeting.
ARTICLE VI
Seal
The Board may provide a Corporate seal, which shall be in the form of a
circle and shall bear the full name of the Corporation and the words "Corporate
Seal Delaware."
ARTICLE VII
Fiscal Year
The fiscal year of the Corporation shall end on the 31st of December in
each year unless changed by resolution of the Board.
ARTICLE VIII
Indemnification and Insurance
Section 1. Power to Indemnify in Actions, Suits or Proceedings
other Than Those by or in the Right of the Corporation. Subject to Section 3 of
this Article VIII, the Corporation shall indemnify, to the fullest extent
permitted by applicable law, now or hereafter in effect, any person who was or
is a party or is threatened to be 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 or executive officer (or in the
Board's discretion, an employee or agent) of the Corporation, or is or was a
director, executive officer, (or in the Board's discretion, an employee or
agent) of the Corporation serving at request of the Corporation in any other
capacity for or on behalf of the Corporation, 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; provided, however, the Corporation shall be required to indemnify
an officer or director in connection with any actions, suit or proceeding
initiated by such person only if (i) such action, suit or proceeding was
authorized by the Board or (ii) the indemnification does not relate to any
liability arising under Section 16(b) of the Securities Exchange Act of 1934, as
amended, or any of the rules or regulations promulgated thereunder. The
termination of any action, suit or proceeding by judgment, order, settlement, or
upon a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which 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
reasonable cause to believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings
by or in the Right of the Corporation. Subject to Section 3 of this Article
VIII, the Corporation shall 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 he is or was a director, executive officer, employee or
agent of the Corporation, or is or was a director, executive officer, (or in the
Board's discretion, an employee or agent) of the Corporation serving at the
request of the Corporation as a director or executive officer of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise against expenses (including attorneys' fees) actually reasonably
incurred by him in connection with the defense or settlement of such action or
suit 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; except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper.
Section 3. Authorization of Indemnification. Any
indemnification under this Article VIII (unless ordered by a court) shall be
made by the Corporation only as authorized in the specific case upon a
determination that indemnification of the director or executive officer is
proper in the circumstances because he has met the applicable standard of
conduct set forth in Section 1 or Section 2 of this Article VIII, as the case
may be. Such determination shall be made (i) by the Board of Directors by a
majority vote of directors who were not parties to such action, suit or
proceeding (even if such majority vote constitutes less than a quorum), or (ii)
if the majority vote of disinterested directors so directs (even if such
majority vote constitutes less than a quorum), by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a
director or executive officer of the Corporation has been successful on the
merits or otherwise in defense of any action, suit or proceeding described
above, or 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, without the necessity of authorization
in the specific case.
Section 4. Good Faith Defined. For purposes of any
determination under Section 3 of this Article VIII, a person shall be deemed to
have acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, or, with respect to any
criminal action or proceeding, to have had no reasonable cause to believe his
conduct was unlawful, if his action is based on the records or books of account
of the Corporation or another enterprise, or on information supplied to him by
the officers of the Corporation or another enterprise in the course of their
duties, or on the advice of legal counsel for the Corporation or another
enterprise or on information or records given or reports made to the Corporation
or another enterprise by an independent certified public accountant or by an
appraiser or other expert selected with reasonable care by the Corporation or
another enterprise. The term "another enterprise" as used in this Section 4
shall mean any other corporation or any partnership, joint venture, trust,
employee benefit plan or other enterprise of which such person is or was serving
at the request of the Corporation as a director or executive officer. The
provisions of this Section 4 shall not be deemed to be exclusive or to limit in
any way the circumstances in which a person may be deemed to have met the
applicable standard of conduct set forth in Sections l or 2 of this Article
VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any
contrary determination in the specific case under Section 3 of this Article
VIII, and notwithstanding the absence of any determination thereunder, any
director or executive officer may apply to any court of competent jurisdiction
in the State of Delaware for indemnification to the extent otherwise permissible
under Sections 1 and 2 of this Article VIII. The basis of such indemnification
by a court shall be a determination by such court that indemnification of the
director or executive officer is proper in the circumstances because he has met
the applicable standards of conduct set forth in Section 1 or 2 of this Article
VIII, as the case may be. Neither a contrary determination in the specific case
under Section 3 of this Article VIII nor the absence of any determination
hereunder shall be a defense to such application or create a presumption that
the director or executive officer seeking indemnification has not met any
applicable standard of conduct. Notice of any application for indemnification
pursuant to this Section 5 shall be given to the Corporation promptly upon the
filing of such application. If successful, in whole or in part, the director or
executive officer seeking indemnification shall also be entitled to be paid the
expense of prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses (including
attorneys' fees) incurred by a director or executive officer in defending any
civil, criminal proceeding, administrative or investigative action, suit or
proceeding shall be paid by the Corporation in advance of the final disposition
of such action, suit or proceeding upon receipt of an undertaking by or on
behalf of such director or executive officer to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the
Corporation as authorized in this Article VIII, which undertaking may be
accepted without reference to the financial ability of such person to make such
payment. Such expenses incurred by other employees and agents may be so paid
upon such terms and conditions, if any, as the Board of Directors deems
appropriate.
Section 7. Non-exclusivity of Indemnification and Advancement
of Expenses. The indemnification and advancement of expenses provided by or
granted pursuant to this Article VIII shall not be deemed exclusive of any other
rights to which those seeking indemnification or advancement of expenses may be
entitled under any By-law, agreement, contract, vote of stockholders or
disinterested directors or pursuant to the direction (howsoever embodied) of any
court of competent jurisdiction or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office, it
being the policy of the Corporation that indemnification of the persons
specified in Sections 1 and 2 of this Article VIII shall be made to the fullest
extent permitted by law.
Section 8. Insurance. The Corporation may purchase and
maintain insurance on behalf of any person who is or was a director or executive
officer of the Corporation, or is or was a director or executive officer of the
Corporation serving at the request of the Corporation as a director or executive
officer of another corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against him and incurred by him in any
such capacity, or arising out of his status as such, whether or not the
Corporation would have the power or the obligation to indemnify him against such
liability under the provisions of this Article VIII, the DGCL or otherwise.
Section 9. Certain Definitions. For purposes of this Article
VIII, references to "the Corporation" shall include, in addition to the
resulting corporation, any constituent corporation (including any constituent of
a constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors or executive officers, so that any person who is or was a director or
executive officer of such constituent corporation, or is or was a director or
executive officer of such constituent corporation serving at the request of such
constituent corporation as a director or executive officer of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise, shall stand in the same position under the provisions of this
Article VIII with respect to the resulting or surviving corporation as he would
have with respect to such constituent corporation if its separate existence had
continued. For purposes of this Article VIII, references to "fines" shall
include any excise taxes assessed on a person with respect to an employee
benefit plan; and references to "serving at the request of the Corporation"
shall include any service as a director or executive officer of the Corporation
which imposes duties on, or involves services by, such director or executive
officer with respect to an employee benefit plan, its participant or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the Corporation" as referred to in this Article
VIII.
Section 10. Procedure for Indemnification of Directors and
Officers. Any indemnification of a director or officer of the Corporation under
Sections 1 and 2 or advance of costs, charges and expenses to a director or
officer under Section 6 of this Article VIII, shall be made promptly, and in any
event within 30 days, upon the written request of the director or officer. If a
determination by the Corporation that the director or officer is entitled to
indemnification pursuant to this Article VIII, and the Corporation fails to
respond within 60 days to a written request for indemnity, the Corporation shall
be deemed to have approved such request. If the Corporation denies a written
request for indemnity or advancement of expenses, in whole or in part, or if
payment in full pursuant to such request is not made within 30 days, the right
to indemnification or advances as granted by this Article VIII shall be
enforceable by the director or officer in any court of competent jurisdiction.
Section 11. Survival; Preservation of Other Rights. The
foregoing indemnification provisions shall be deemed to be a contract between
the Corporation and each director, officer, employee and agent who serves in any
such capacity at any time while these provisions as well as the relevant
provisions of the Delaware General Corporation Law are not in effect and any
repeal or modification thereof shall not affect any right or obligation then
existing with respect to any state of facts then or previously existing or any
action, suit, or proceeding previously or thereafter brought or threatened
based, in whole or in part upon any such state of facts. Such a "contract right"
may not be modified retroactively without the consent of such director, officer,
employee or agent. The indemnification and advancement of expenses provided by,
or granted pursuant to, this Article VIII shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director
or executive officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
The indemnification provided by this Article VIII shall not be
deemed exclusive of any other rights to which those indemnified may be entitled
under any other By-law, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his official capacity and as to
action in any other capacity while holding such office, and shall continue as to
a person who has ceased to be a director, officer, employee or agent and shall
inure to the benefit of the heirs, executors and administrators of such a
person. The Corporation may enter into a separate written agreement with any
director, officer, employee or agent of the Corporation that expressly provides
for indemnification and reimbursement of such person to the full extent
permitted by this Article VIII, on the same terms and conditions provided
herein.
Section 12. Limitation on Indemnification. Notwithstanding
anything contained in this Article VIII to the contrary, except for proceedings
to enforce rights to indemnification (which shall be governed by Section 5
hereof), the Corporation shall not be obligated to indemnify any director or
executive officer in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented
to by the Board of Directors of the Corporation.
Section 13. Severability. If this Article VIII or any portion
hereof shall be invalidated on any ground by any court of competent
jurisdiction, then the Corporation shall nevertheless indemnify each director or
officer and may indemnify each employee or agent of the Corporation as to costs,
charges and expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement with respect to any action, suit or proceeding, whether
civil, criminal, administrative or investigative, including an action by or in
the right of the Corporation, to the fullest extent permitted by any applicable
portion of this Article VIII that shall not have been invalidated and to the
fullest extent permitted by applicable law.
ARTICLE IX
Amendments
Subject to the provisions of the Certificate of Incorporation of the
Corporation, any provision contained in these By-laws may be amended, repealed
or adopted by the Board of Directors or by vote of the stockholders at the time
entitled to vote in the election of any directors.
<PAGE>
Exhibit 5.1
January 29,1999
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 1,250,000 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 LLP
------------
KPMG LLP
Washington, DC
January 28, 1999
