<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 31, 1997
REGISTRATION NO. 333-16681
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 2
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
MIDCOM COMMUNICATIONS INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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WASHINGTON 4813 91-1438806
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
</TABLE>
1111 THIRD AVENUE
SEATTLE, WA 98101
(206) 628-8000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
PAUL P. SENIO
VICE PRESIDENT AND GENERAL COUNSEL
MIDCOM COMMUNICATIONS INC.
1111 THIRD AVENUE
SEATTLE, WA 98101
(206) 628-4900
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
------------------------
COPIES TO:
THOMAS S. HODGE
MICHAEL A. SKINNER
HELLER EHRMAN WHITE & MCAULIFFE
6100 COLUMBIA CENTER, 701 FIFTH AVENUE
SEATTLE, WASHINGTON 98104
(206) 447-0900
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after this Registration Statement becomes effective.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act of 1933, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act of 1933, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
------------------------
THIS REGISTRATION STATEMENT SHALL HEREAFTER BECOME EFFECTIVE IN ACCORDANCE
WITH THE PROVISIONS OF SECTION 8(A) OF THE SECURITIES ACT OF 1933.
================================================================================
<PAGE> 2
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the costs and expenses, other than
underwriting discounts and commissions, payable by the Registrant in connection
with the issuance and distribution of the securities being registered. All the
amounts shown are estimated, except the Securities and Exchange Commission
registration fee, the NASD filing fee and the Nasdaq National Market(R) listing
fee.
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Securities and Exchange Commission Registration Fee........................ $ 4,534
NASD Filing Fee............................................................ 0
Nasdaq National Market(R) Listing Fee...................................... 0
Blue Sky Fees and Expenses (includes fees and expenses of counsel)......... 5,000
Transfer Agent and Registrar Fees.......................................... 0
Accounting Fees and Expenses............................................... 5,000
Legal Fees and Expenses.................................................... 20,000
Printing, Engraving and Delivery Expenses.................................. 10,000
Insurance Coverage Acquired for the Offering............................... 0
Miscellaneous.............................................................. 5,000
------
Total............................................................ $49,534
======
</TABLE>
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Sections 23B.08.500 through 23B.08.600 of the Washington Business
Corporation Act (the "WBCA") authorize a corporation to indemnify its directors,
officers, employees and agents against certain liabilities they may incur in
such capacities, including liabilities under the Securities Act of 1933, as
amended (the "Securities Act"), provided they acted in good faith and in a
manner reasonably believed to be in or not opposed to the best interests of the
corporation. The Registrant's Bylaws (Exhibit 3.2 hereto) require the Registrant
to indemnify its officers and directors to the fullest extent permitted by
Washington law.
Section 23B.08.320 of the WBCA authorizes a corporation to limit or
eliminate its directors' liability to the corporation or its shareholders for
monetary damages for breaches of fiduciary duties, other than for (1) acts or
omissions that involve intentional misconduct or a knowing violation of law, (2)
improper declaration of dividends, or (3) transactions from which a director
derives an improper personal benefit. The Registrant's Amended and Restated
Articles of Incorporation (Exhibit 3.1 hereto) contain provisions limiting the
liability of the directors to the Registrant and to its shareholders to the
fullest extent permitted by Washington law.
The above discussion of the WBCA and the Registrant's Bylaws and Amended
and Restated Articles of Incorporation is not intended to be exhaustive and is
qualified in its entirety by such statute, the Bylaws and the Amended and
Restated Articles of Incorporation, respectively.
The Registrant maintains officers' and directors' liability insurance on
its directors and officers.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
On August 22, 1996 and September 6, 1996, the Company completed sales of
$97,743,000 in aggregate principal amount of 8 1/4% Convertible Subordinate
Notes due 2003. PaineWebber Incorporated and Wheat, First Securities, Inc. acted
as the Initial Purchasers and resold the notes to qualified institutional buyers
pursuant to Rule 144A promulgated under the Securities Act, to accredited
investors under Regulation D promulgated under the Securities Act, and to
non-U.S. persons pursuant to Regulation S promulgated under the Securities Act.
The Company believes these transactions are exempt from registration pursuant to
Rule 144A, Regulation D and Regulation S promulgated under Securities Act as
transactions not involving a
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<PAGE> 3
public offering. The Company filed a Form D and an Amended Form D to perfect an
exemption from registration under Rule 506, as promulgated under Section 4(2) of
the Securities Act, with respect to the sales of the notes to the Initial
Purchasers. The Company has committed to register the notes, and the shares of
the Company's common stock issuable upon conversion of the notes, for public
offer and sale under the Securities Act. On October 18, 1996, the Company filed
a Registration Statement on Form S-1 (Reg. No. 333-14427), as amended by
Amendment No. 1 filed on January 22, 1997 and Amendment No. 2 filed on March 18,
1997, relating to the public offer and sale of the notes and the shares of the
Company's common stock issuable upon conversion of the notes. This Registration
Statement has not been declared effective by the Commission.
On December 29, 1995, the Company issued to David Wiegand 453,240 shares of
Common Stock valued at $18.25 per share in connection with the acquisition of
ADNET Telemanagement, Inc. The Company believes that the issuance of the shares
was exempt from the registration by virtue of Section 4(2) of the Securities Act
as a transaction not involving a public offering. The Company has committed to
register these shares under the Securities Act under certain circumstances.
On November 6, 1995, the Company issued to the shareholders of Fairfield
County Telephone Corporation ("Fairfield") 98,762 shares of Common Stock valued
at $18.25 per share, including 24,691 shares that were deposited into escrow and
are subject to possible redemption by the Company in exchange for all of the
outstanding capital stock of Fairfield. In January 1997, the Company issued a
total of 38,711 additional shares of Common Stock to the foregoing individuals,
on a pro rata basis, as required by the acquisition documents to compensate for
the decrease in value of the Common Stock since the closing of the acquisition.
The Company believes that the issuance of these shares was exempt from the
registration by virtue of Section 4(2) of the Securities Act as a transaction
not involving a public offering. The Company has committed to register these
shares under the Securities Act under certain circumstances.
In September 1995, the Company issued to GE Capital Communications
Services, Inc. ("GE Capital") a warrant to purchase shares of Common Stock with
an aggregate value of $2,000,000 plus additional consideration in exchange for a
portion of GE Capital's customer base. The Company believes that the issuance of
the warrant was exempt from the registration by virtue of Section 4(2) of the
Securities Act as a transaction not involving a public offering. The warrant
expired upon repayment in full of the note payable to GE Capital in the third
quarter of 1996.
On September 29, 1995, the Company issued to the shareholders of AdVal,
Inc. ("Adval") 250,000 shares of Common Stock valued at $15.25 per share in
exchange for all of the outstanding capital stock of Adval. The Company believes
that the issuance of these shares was exempt from the registration by virtue of
Section 4(2) of the Securities Act as a transaction not involving a public
offering. The Company has committed to register these shares under the
Securities Act under certain circumstances.
On September 1, 1995, the Company issued to Cherry Communications
Incorporated ("Cherry Communications") 317,460 shares of Common Stock valued at
$15.75 per share plus additional consideration in exchange for certain assets of
Cherry Communications. The Company believes that the issuance of these shares
was exempt from the registration by virtue of Section 4(2) of the Securities Act
as a transaction not involving a public offering. The Company has committed to
register these shares under the Securities Act under certain circumstances.
On August 31, 1995, the Company issued to Communications Services of
America, Inc. ("CSA") 20,893 shares of Common Stock valued at $15.25 per share
plus additional consideration in exchange for the customer base of CSA. In
January 1997, the Company issued a total of 10,522 additional shares of Common
Stock to an affiliate of CSA as required by the acquisition documents to
compensate for the decrease in value of the Common Stock since the closing of
the acquisition. The Company believes that the issuance of these shares was
exempt from the registration by virtue of Section 4(2) of the Securities Act as
a transaction not involving a public offering. The Company has committed to
register these shares under the Securities Act under certain circumstances.
On August 19, 1995, the Company issued to the sole shareholder of Cel-Tech
International Corp. ("Cel-Tech") 141,935 shares of Common Stock valued at $16.25
per share in exchange for all of Cel-Tech's
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<PAGE> 4
outstanding capital stock. The Company believes that the issuance of these
shares was exempt from the registration by virtue of Section 4(2) of the
Securities Act as a transaction not involving a public offering. The Company has
committed to register these shares under the Securities Act under certain
circumstances.
Effective April 1, 1995, in connection with amendments to certain
non-competition agreements between the Company and the former shareholders of
Telnet Communications Inc., the Company issued to such shareholders warrants to
purchase an aggregate of 59,500 shares of Common Stock exercisable for $7.44 per
share. The Company believes that the issuance of these warrants was exempt from
registration by virtue of Section 4(2) of the Securities Act as transactions not
involving a public offering. The Company has committed to register the shares
issuable upon exercise of the warrants (but not the warrants) under the
Securities Act under certain circumstances.
On January 20, 1995, the Company issued to Communique Telecommunications,
Inc. ("Communique") 371,875 shares of Common Stock valued at $9.14 per share
plus additional consideration in exchange for certain assets of Communique. The
Company believes that the issuance of these shares was exempt from the
registration by virtue of Section 4(2) of the Securities Act as a transaction
not involving a public offering.
In December 1994, the Company issued to the former shareholder of PacNet,
Inc. ("PacNet") 130,000 shares of Common Stock (113,750 shares after giving
effect to the Company's reverse stock split in April 1995) valued at $11.43 per
share plus additional consideration in exchange for all of PacNet's outstanding
shares of capital stock. In addition, the Company issued to this person an
option to purchase 60,000 shares of Common Stock (54,750 shares after giving
effect to the Company's reverse stock split in April 1995) at an exercise price
of $5.71 per share. The Company believes that the issuance of these shares and
the option were exempt from registration by virtue of Section 4(2) of the
Securities Act as a transaction not involving a public offering. The Company has
committed to register the shares (but not the options or the shares issuable
upon exercise thereof) under the Securities Act under certain circumstances.
On June 10, 1994, the Company issued to Paul Pfleger, Vice Chairman of the
Company's Board of Directors, 859,653 shares of Series A Preferred Stock in
consideration for the assignment by Mr. Pfleger to the Company of notes and
receivables in the aggregate amount of $3,731,729 and the assumption by Mr.
Pfleger of the Company's indebtedness to a third party evidenced by a note in
the original principal amount of $4 million, bearing interest at a rate of 12%
per annum and maturing December 31, 2002. The Company believes that the issuance
of the shares was exempt from registration by virtue of Section 4(2) of the
Securities Act. These shares were redeemed by the Company in connection with the
closing of the Company's initial public offering.
On June 10, 1994, the Company issued to First Union Corporation a warrant
to purchase 1,493,059 shares of Nonvoting Common Stock, at an exercise price of
$0.0001 per share. The Company believes that the issuance of the warrant was
exempt from registration by virtue of Section 4(2) of the Securities Act as a
transaction not involving a public offering. In conjunction with the closing of
the Company's initial public offering, the warrants were amended and fully
exercised resulting in the issuance of 640,478 shares of Common Stock. The
Company has committed to register these shares under the Securities Act under
certain circumstances.
On June 10, 1994, the Company issued to The Robinson-Humphrey Company, Inc.
a warrant to purchase 20,177 shares of Common Stock, at an exercise price of
$0.0001 per share. In connection with the conclusion of that financing the
Company paid a cash fee to Robinson-Humphrey of $444,000. The Company believes
that the issuance of the warrant was exempt from registration by virtue of
Section 4(2) of the Securities Act as a transaction not involving a public
offering. In conjunction with the closing of the Company's initial public
offering, the warrants were amended and fully exercised resulting in the
issuance of 7,641 shares of Common Stock. The Company has committed to register
these shares under the Securities Act under certain circumstances.
II-3
<PAGE> 5
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
A. EXHIBITS.
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EXHIBIT
NUMBER
(REFERENCED TO
ITEM 601 OF
REGULATION S-K)* EXHIBIT DESCRIPTION
- ---------------- ---------------------------------------------------------------------------
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3.1 Articles of Incorporation.
3.2 Bylaws.
4.1 Form of Common Stock Certificate.
4.2 See Exhibits numbered 3.1 and 3.2 for provisions of the Articles of
Incorporation and Bylaws of the Company defining the rights of the holders
of Common Stock.
4.3 Purchase Agreement dated August 15, 1996 among the Company, PaineWebber
Incorporated and Wheat, First Securities, Inc.
4.4 Indenture dated as of August 22, 1996 between the Company and IBJ Schroder
Bank & Trust Company.
4.5 Registration Rights Agreement dated as of August 22, 1996 by and among the
Company, PaineWebber Incorporated and Wheat, First Securities, Inc.
5.1 Opinion of Heller Ehrman White & McAuliffe.
10.1 Senior Subordinated Note and Warrant Purchase Agreement dated as of June
10, 1994 by and among the Company, First Union Corporation and The
Robinson-Humphrey Company, Inc.
10.6 Warrant Agreement dated as of June 10, 1996 by and among the Company, First
Union Corporation and The Robinson-Humphrey Company, Inc.
10.7 Registration Rights Agreement dated as of June 10, 1994 by and among the
Company, First Union Corporation and The Robinson-Humphrey Company, Inc.
10.17 Agreement of Formation and Activities of Russian-American Joint Stock
Venture "Dal Telekom International" dated as of December 5, 1993, by and
among the Company, DalREO, the joint stock company Rostelekom and the state
enterprise Rossvyazinform in the cities of Khabarovsk, Blagoveschensk and
Petropavlovsk-Kamchatski, as amended; Addendum to Agreement Regarding
Reorganization of Dal Telecom International dated as of December 5, 1993,
by and between the Company and DalREO; Amendment to the Agreement on the
Joint Venture between the Company and DalREO dated July 13, 1994; Second
Amendment to the Agreement on the Joint Venture between the Company and
DalREO dated December 19, 1994; Proxy with regard to Voting of Shares of
Dal Telecom International dated December 5, 1993.
10.21 Shareholders Agreement dated as of June 7, 1994 by and among Paul Pfleger,
Ashok Rao, the trust for the benefit of Siddhartha Rao, the trust for the
benefit of Kavita Rao, the trust for the benefit of Divya Rao, the trust
for the benefit of Anjali Rao, John M. Orehek, and the Company.
10.23 Registration Rights Agreement dated as of December 30, 1994 by and between
the Company and Richard W. Stroup.
10.25 Revised and Restated 1993 Stock Option Plan, adopted by the Board of
Directors on December 30, 1993 and the shareholders on December 29, 1994,
as amended by the Board of Directors on February 21, 1994, March 28, 1994,
January 19, 1995 and March 21, 1995, such amendments being approved by the
shareholders on October 7, 1994 and March 30, 1995, and further amended by
the Board of Directors on April 25, 1995, July 26, 1995, November 9, 1995,
July 25, 1996 and January 9, 1997.
10.26 1995 Employee Stock Purchase Plan adopted by the Board of Directors and the
shareholders on December 9, 1994.
10.27 Employment Agreement dated as of June 7, 1994 by and between the Company
and Ashok Rao.
10.30 Reseller Service Agreement dated as of December 31, 1992 by and between
West Coast Telecommunications, Inc. and the Company.
10.34 Software License and Services Agreement dated as of October 26, 1993 by and
between ORACLE Corporation and the Company.
</TABLE>
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<PAGE> 6
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
(REFERENCED TO
ITEM 601 OF
REGULATION S-K)* EXHIBIT DESCRIPTION
- ---------------- ---------------------------------------------------------------------------
<C> <S>
10.35 Service Agreement, as amended, dated as of February 7, 1995 by and between
the Company and ORACLE Corporation.
10.36 One Plus Billing and Information Management Services Volume Purchase
Agreement dated March 4, 1995 by and between Zero Plus Dialing, Inc. d/b/a
U.S. Billing and the Company.
10.42 Distributor Agreement dated as of December 28, 1993 by and between the
Company and Quest America L.P. Portions of this exhibit have been omitted
pursuant to an application for an order granting confidential treatment,
which order was granted by the Commission on July 6, 1995. The omitted
portions have been separately filed with the Commission.
10.50 Agreement and Plan of Reorganization dated as of November 8, 1994 by and
among the Company, P.N. Acquisition Corporation, PacNet, Inc. and Richard
W. Stroup.
10.51 Agreement for the purchase of Mid-Com Consultants' Aggregation Customer
Base and Aggregation Plans by Mid-Com Communications, Inc. dated as of
January 3, 1995 by and between the Company and Mid-Com Consultants, Inc.
10.52 Asset Purchase Agreement dated as of January 20, 1995 by and between the
Company and Communique Telecommunications, Inc.
10.60 1111 Third Avenue Lease Agreement dated as of March 8, 1994.
10.61 Agreement of Sublease dated January 1, 1994 by and between Bank of New
Zealand and the Company.
10.62 Real Estate Sub-Lease dated as of October 1, 1994 by and between Digital
Telecommunications, Inc. and the Company.
10.66 Option Agreement dated March 6, 1995 by and among Paul H. Pfleger, Ashok
Rao, John M. Orehek and the Company.
10.67 Release and Settlement Agreement dated January 1995. Portions of this
exhibit have been omitted pursuant to an application for an order granting
confidential treatment, which order was granted by the Commission on July
6, 1995. The omitted portions have been separately filed with the
Commission.
10.73 Overseas Private Investment Corporation Contract of Insurance against
Business Income Loss.
10.74 Overseas Private Investment Corporation Contract of Insurance against
Expropriation Political Violence.
10.75 Letter Agreement dated May 12, 1995 between First Union Corporation and the
Company.
10.78 Registration Rights Agreement dated as of April 1, 1995 by and among the
Company and Darren Narans, Kevin Narans and Steven Tomsic.
10.79 Stock Purchase Warrant issued on April 1, 1995 by the Company to Darren
Narans granting Darren Narans the right to purchase from the Company 12,250
shares of the Company's Common Stock.
10.80 Stock Purchase Warrant issued on April 1, 1995 by the Company to Kevin
Narans granting Kevin Narans the right to purchase from the Company 23,625
shares of the Company's Common Stock.
10.81 Stock Purchase Warrant issued on April 1, 1995 by the Company to Steven
Tomsic granting Steven Tomsic the right to purchase from the Company 23,625
shares of the Company's Common Stock.
10.83 Letter Agreement dated June 6, 1995 between First Union Corporation, The
Robinson-Humphrey Company, Inc. and the Company.
10.85 Indemnification and Hold Harmless Agreement dated June 29, 1995 by and
among the Company, Paul H. Pfleger, Black Creek Limited Partnership and
Ashok Rao.
</TABLE>
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<PAGE> 7
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
(REFERENCED TO
ITEM 601 OF
REGULATION S-K)* EXHIBIT DESCRIPTION
- ---------------- ---------------------------------------------------------------------------
<C> <S>
10.86 Carrier Transport Switched Services Agreement dated June 14, 1995 by and
between Sprint Communications Company L.P. and the Company, amended
November 1, 1995. Portions of this exhibit have been omitted pursuant to an
application for an order granting confidential treatment, which order was
granted by the Commission on May 31, 1996. The omitted portions have been
separately filed with the Commission.
10.87 Telecommunications Services Agreement dated March 27, 1996 by and between
Worldcom Network Service, Inc. d/b/a WilTel and the Company. Portions of
this exhibit have been omitted pursuant to an application for an order
granting confidential treatment, which order was granted by the Commission
on May 31, 1996. The omitted portions have been separately filed with the
Commission.
10.88 Customer Base Purchase and Sale Agreement dated as of September 1, 1995
between Cherry Communications Incorporated and the Company.
10.89 Master Equipment Lease Agreement dated as of September 12, 1995 between
Keycorp Leasing Ltd. and the Company.
10.90 Agreement and Plan of Reorganization dated as of September 29, 1995 among
the Company, AV Acquisition Corporation, AdVal, Inc., AdVal Data
Corporation, Theodore D. Berns and Donald D. Dean.
10.91 Credit Agreement dated as of November 8, 1995 among the Company, PacNet,
AdVal, Cel-Tech (the "Borrowers") and Transamerica Business Credit
Corporation, as agent.
10.92 Revolving Note dated December 20, 1995 in the amount of $30,000,000 made by
the Borrowers to the order of Transamerica Business Credit Corporation.
10.94 Revolving Note dated December 20, 1995 in the amount of $13,000,000 made by
the Borrowers to the order of Nationsbank of Georgia, N.A.
10.95 Stock Pledge Agreement dated as of November 8, 1995 made by the Company in
favor of Transamerica Business Credit Corporation, as agent.
10.96 Security Agreement dated as of November 8, 1995 made by the Borrowers in
favor of Transamerica Business Credit Corporation, as agent.
10.97 Letter Agreement dated March 6, 1996 between the Borrowers and Transamerica
Business Credit Corporation, as agent.
10.98 Letter Agreement dated March 18, 1996 between the Borrowers and
Transamerica Business Credit Corporation, as agent.
10.99 First Amendment to Credit Agreement dated March 28, 1996 between the
Borrowers and Transamerica Business Credit Corporation, as agent.
10.100 Promissory Note dated March 28, 1996 in the amount of $15,000,000 made by
the Company to the order of Transamerica Business Credit Corporation.
10.103 Agreement and Plan of Reorganization dated December 29, 1995 among the
Company, ADNET Telemanagement, Inc., David Wiegand and Maria Wiegand.
10.104 Contract Tariff No. 969 effective February 15, 1996 between the Company and
AT&T Corp.
10.105 Second Amendment to Credit Agreement dated July 26, 1996 among the Company,
PacNet, AdVal, Cel-Tech, Advanced Network Design and Transamerica Business
Credit Corporation, as agent.
10.106 Third Amendment to Credit Agreement dated August 21, 1996 between the
Company, PacNet, AdVal, Cel-Tech and Advanced Network Design and
Transamerica Business Credit Corporation.
10.107 Customer Base Purchase and Sale Agreement dated as of November 1, 1995
between the Company and Cherry Communications Incorporated.
10.108 Distributor Agreement dated April 4, 1996 between the Company and Tie
Communications, Inc.
10.109 Employment Agreement dated May 24, 1996 between the Company and William H.
Oberlin.
10.110 Consulting Agreement dated May 24, 1996 between the Company and John M.
Zrno.
</TABLE>
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<PAGE> 8
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
(REFERENCED TO
ITEM 601 OF
REGULATION S-K)* EXHIBIT DESCRIPTION
- ---------------- ---------------------------------------------------------------------------
<C> <S>
10.111 Consulting Agreement dated May 24, 1996 between the Company and Marvin C.
Moses.
10.113 Settlement Agreement and Release, dated as of December 27, 1996, among
David Wiegand, Maria Wiegand and the Company.
10.114 Consulting Agreement, dated as of November 25, 1996, between the Company
and David Wiegand.
10.115 Stock Option Agreement, dated as of November 25, 1996, between the Company
and David Wiegand.
10.116 Amendment to Agreement and Plan of Reorganization, dated as of December 27,
1995, among the Company, David Wiegand and Maria Wiegand, amending the
Agreement and Plan of Reorganization dated December 29, 1995 among the
Company, ADNET Telemanagement, Inc. and David Wiegand.
10.117 Amendments to Non-Competition Agreements of Maria Wiegand and David
Wiegand, dated as of December 27, 1996, among the Company, Maria Wiegand
and David Wiegand. Portions of this exhibit have been omitted pursuant to
an amended application for an order granting confidential treatment.
The omitted portions have been separately filed with the Commission.(1)
10.118 Release and Settlement Agreement, dated October 31, 1996, between the
Company and AT&T Corp. Portions of this exhibit have been omitted pursuant
to an amended application for an order granting confidential treatment.
The omitted portions have been separately filed with the Commission.(1)
10.119 Carrier Agreement, dated October 31, 1996, between the Company and AT&T
Corp. Portions of this exhibit have been omitted pursuant to an amended
application for an order granting confidential treatment.
The omitted portions have been separatel filed with the Commission.(1)
11.1 Statement re: computation of per share earnings.
21.1 List of significant subsidiaries of the Company.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Heller Ehrman White & McAuliffe (included in Exhibit 5.1).
24.1 Power of Attorney.
</TABLE>
- ---------------
* Unless otherwise indicated, exhibit was previously filed herewith.
(1) Exhibit is incorporated by reference to an identically numbered exhibit to
Amendment No. 2 to the Company's Registration Statement on Form S-1, file
no. 333-14427, and replaces the identically numbered exhibit incorporated by
reference into Amendment No. 1 to this Registration Statement.
B. FINANCIAL STATEMENTS.
Consolidated Financial Statements filed as part of this Registration
Statement are listed in the Index to the Financial Statements on page F-1.
C. FINANCIAL STATEMENT SCHEDULES.
Consolidated Financial Statement Schedules filed as part of this
Registration Statement are listed in the Index to the Financial Statement
Schedules on page S-1. All other schedules have been omitted because the
information is not required or is not applicable, or because the information
required is included in the Consolidated Financial Statements or the Notes
thereto included elsewhere in this Registration Statement.
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<PAGE> 9
ITEM 17. UNDERTAKINGS.
(a) Rule 415 Offering.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this 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 this 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;
(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;
(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 as that time shall be deemed
to be the initial bona fide offering thereof;
(3) To remove from registration by means of post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) Indemnification for Liabilities
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 its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of 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.
(c) Registration Statement Permitted by Rule 430A
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus 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.
II-8
<PAGE> 10
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Amendment No. 2 to this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Seattle, State of Washington, on March 28, 1997.
MIDCOM COMMUNICATIONS INC.
By: /s/ ROBERT J. CHAMBERLAIN
------------------------------------
Robert J. Chamberlain
Executive Vice President and
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 2 to this Registration Statement has been signed by the following persons in
the capacities indicated below on the 28th day of March, 1997.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- --------------------------------------------- ---------------------------------------------
<S> <C>
WILLIAM H. OBERLIN* President, Chief Executive Officer and
- --------------------------------------------- Director
William H. Oberlin (Principal Executive Officer)
/s/ ROBERT J. CHAMBERLAIN Executive Vice President and Chief Financial
- --------------------------------------------- Officer (Principal Accounting and
Robert J. Chamberlain Financial Officer)
JOHN M. ZRNO* Director
- ---------------------------------------------
John M. Zrno
PAUL H. PFLEGER* Director
- ---------------------------------------------
Paul H. Pfleger
JOHN M. OREHEK* Director
- ---------------------------------------------
John M. Orehek
SCOTT B. PERPER* Director
- ---------------------------------------------
Scott B. Perper
KARL D. GUELICH* Director
- ---------------------------------------------
Karl D. Guelich
MARVIN C. MOSES* Director
- ---------------------------------------------
Marvin C. Moses
DANIEL M. DENNIS* Director
- ---------------------------------------------
Daniel M. Dennis
</TABLE>
*By: /s/ ROBERT J. CHAMBERLAIN
---------------------------------
Robert J. Chamberlain
Attorney-In-Fact
II-9
