-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, TSevkzthIKWkUpjO0BDKmDl1YOkMVaOtuQkDY8sfi5OfmsuJgsdWVCHr5VyU8bs5 urU7ppGcJinx3Pk5zp32Kw== /in/edgar/work/20001103/0000909143-00-000320/0000909143-00-000320.txt : 20001106 0000909143-00-000320.hdr.sgml : 20001106 ACCESSION NUMBER: 0000909143-00-000320 CONFORMED SUBMISSION TYPE: S-8 POS PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20001103 EFFECTIVENESS DATE: 20001103 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ASCENDANT SOLUTIONS INC CENTRAL INDEX KEY: 0001080029 STANDARD INDUSTRIAL CLASSIFICATION: [7389 ] IRS NUMBER: 752900905 STATE OF INCORPORATION: TX FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 POS SEC ACT: SEC FILE NUMBER: 333-38114 FILM NUMBER: 753223 BUSINESS ADDRESS: STREET 1: 3737 GRADER ST STREET 2: STE 110 CITY: GARLAND STATE: TX ZIP: 75041 BUSINESS PHONE: 2143487200 MAIL ADDRESS: STREET 1: 3737 GRADER STREET SUITE 110 CITY: GARLAND STATE: TX ZIP: 75041 FORMER COMPANY: FORMER CONFORMED NAME: ASD SYSTEMS INC DATE OF NAME CHANGE: 19990713 S-8 POS 1 0001.txt As filed with the Securities and Exchange Commission on November 3, 2000. Registration No. 333-38114 ============================================================ UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 _________________________ Post-Effective Amendment No. 1 to FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 _________________________ ASCENDANT SOLUTIONS, INC. (Exact name of Registrant as specified in its charter) Delaware 75-2900905 (State or other jurisdiction (I.R.S. Employer of incorporation or organization) Identification No.) 3737 Grader Street, Suite 110 75041 Garland, Texas (Zip Code) (Address of Principal Executive Offices) _________________________ 1999 LONG-TERM INCENTIVE PLAN (Full title of the plan(s)) _________________________ David E. Bowe Copy to: Chief Executive Officer J. David Washburn, Esq. ASCENDANT SOLUTIONS, INC. ARTER & HADDEN LLP 3737 Grader Street, Suite 110 1717 Main Street, Garland, Texas 75041 Suite 4100 (Name and address of Dallas, Texas 75201-4605 agent for service) (214) 761-2100 (214) 348-7200 (Telephone number, including area code, of agent for service) _________________________ CALCULATION OF REGISTRATION FEE ------------------------------- Proposed Maximum Proposed Maximum Title of Securities Amount to be Offering Price Per Aggregate Amount of to be Registered Registered Share Offering Price Registration Fee - ------------------- ------------- ------------------ --------------- ---------------- Common Stock $.0001 par value (1)
(1) No additional securities are to be registered. Registration fees were paid upon the filing of the original Registration Statement on Form S-8 (No. 333-38114) (the "Original Registration Statement"). Therefore, no further registration fee is required. The Original Registration Statement relates to an additional 1,300,000 shares of common stock issuable under the Registrant's 1999 Long-Term Incentive Plan (the "Plan"). The Registrant registered the initial 1,200,000 shares of common stock issuable under the Plan on Form S-8 (Reg. Statement No. 333-93403). ============================================================ EXPLANATORY NOTE: This Post-Effective Amendment No. 1 to that certain Registration Statement on Form S-8 (Registration No. 333- 38114) (the "Registration Statement") is being filed pursuant to Rule 414 promulgated under the Securities Act of 1933, as amended, (the "Securities Act") by Ascendant Solutions, Inc., a Delaware corporation (the "Registrant"), as successor in interest to ASD Systems, Inc. d/b/a Ascendant Solutions, a Texas corporation ("ASD Systems"), following a statutory merger (the "Merger") effective October 20, 2000, for the purpose of changing ASD System's state of incorporation. Prior to the Merger, the Registrant had no assets or liabilities other than nominal assets or liabilities. In connection with the Merger, the Registrant succeeded by operation of law to all of the assets and liabilities of ASD Systems. The Merger was approved by the stockholders of ASD systems at a special meeting duly called and held on October 19, 2000 for which proxies were solicited pursuant to Section 14(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"). In accordance with paragraph (d) of Rule 414 of the Securities Act, except as modified by this Post-Effective Amendment No. 1, the Registrant expressly adopts the Registration Statement as its own registration statement for all purposes of the Securities Act and the Exchange Act. ============================================================ Part I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS Item 1. Plan Information.* Item 2. Registrant Information and Employee Plan Annual Information.* * Information required by Part I to be contained in the Section10(a) Prospectus is omitted from the Registration Statement in accordance with Rule 428 under the Securities Act and the Note to Part I of Form S-8. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The following documents and information filed by the Registrant (or by ASD Systems, Inc. prior to the Merger) with the Securities and Exchange Commission (the "Commission") are hereby incorporated by reference: (a) our Annual Report on Form 10-K, filed with the Commission for the fiscal year ended December 31, 1999; (b) our Quarterly Reports on Form 10-Q filed with the Commission for the quarters ended March 31, 2000 and June 30, 2000; (c) our Current Reports on Form 8-K dated October 23, 2000; September 29, 2000; and September 20, 2000; Page 2 (d) the description of our common stock, par value $.0001 per share (the "Common Stock"), contained in the Registrant's Registration Statement on Form 8-A (file no. 0- 27945), including any amendment or report filed for the purpose of updating such description; and (e) all documents filed with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, subsequent to the date of this Registration Statement shall be deemed to be incorporated herein by reference and to be a part hereof from the date of filing of such documents until such time as there shall have been filed a post-effective amendment that indicates that all securities offered under the Registration Statement have been sold or that deregisters all securities remaining unsold at the time of the amendment. Any statement contained herein or in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that the statement contained herein or in any subsequently filed document that also is or is deemed to be incorporated by reference herein, or in any document forming any part of the Section 10(a) Prospectus to be delivered to participants in connection with, modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. Item 4. Description of Securities. Not Applicable. Item 5. Interests of Named Experts and Counsel. Not Applicable. Item 6. Indemnification of Directors and Officers. Article EIGHTH of the Registrant's Certificate of Incorporation provides that the Registrant shall indemnify its directors and officers to the fullest extent permitted by the Delaware General Corporation Law ("DGCL"). Section 145 of the DGCL permits a corporation, under specified circumstances, to indemnify its directors, officers, employees or agents against expenses (including attorneys' fees), judgments, fines and amounts paid in settlements actually and reasonably incurred by them in connection with any action, suit or proceeding brought by third parties by reason of the fact that they were or are directors, officers, employees or agents of the corporation, if such directors, officers, employees or agents acted in good faith and in a manner that they 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 their conduct was unlawful. In a derivative action (i.e. one by or in right of the corporation), indemnification may be made only for expenses actually and reasonably incurred by directors, officers, employees or agents in connection with the defense or settlement of an action or suit, and only with respect to a matter as to which they shall have acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification shall be made if such persons shall have been adjudged liable to the corporation, unless and only to the extent that the court in which the action or suit was brought shall determine upon application that the defendant directors, officers, employees or agents are fairly and reasonably entitled to indemnify for such expenses, despite such adjudication or liability. Section 102(b)(7) of the DGCL permits a corporation organized under Delaware law to eliminate or limit the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director subject to certain limitations. Article SEVENTH of the Registrant's Certificate of Incorporation includes the following provision: Page 3 No director of the Corporation shall be personally liable to the Corporation or any of its stockholders for monetary damages for breach of fiduciary duty as a director of the Corporation; PROVIDED, HOWEVER, that the foregoing is not intended to eliminate or limit the liability of a director of the Corporation for (i) any breach of a director's duty of loyalty to the Corporation or its stockholders, (ii) acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) a violation of Section 174 of the Delaware General Corporation Law, or (iv) any transaction from which the director derived an improper personal benefit. If the DGCL is hereafter amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the DGCL, as so amended. No amendment to or repeal of this Article SEVENTH shall apply to or have any effect on the liability or allege liability of any director of the Corporation for or with respect to any acts or omissions of such director occurring prior to such amendment or repeal. The Registrant may purchase and maintain insurance on behalf of any person who is or was a director, officer, fiduciary or agent of the Registrant against any liability asserted against and incurred by such person in any such capacity or arising out of such person's position, whether or not the Registrant would have the power to indemnify against such liability under the provisions of the Certificate of Incorporation or the Bylaws of the Registrant. We have entered into indemnification agreements with each of our directors that provide for indemnification and expense advancement to the fullest extent permitted under the DGCL. Item 7. Exemption from Registration Claimed. Not applicable. Item 8. Exhibits. (a) Exhibits. Exhibit Description ------- ------------------------------------- 4.1 Certificate of Incorporation of the Registrant (incorporated by referenced to Exhibit 3.1 to the Registrant's Current Report on Form 8-K, filed with the Commission on October 20, 2000 (the "October 8-K")). 4.2 Bylaws of the Registrant (incorporated by reference to Exhibit 3.2 to the October 8-K). 4.3 Agreement and Plan of Merger by and between the Registrant and ASD Systems (incorporated by reference to Exhibit 2.1 to the October 8-K). 5.1 Opinion of Arter & Hadden LLP (filed herewith). 23.1 Consent of Arter & Hadden LLP (included in their opinion filed as Exhibit 5.1). 23.2 Consent of Ernst & Young LLP (filed herewith). Item 9. Undertakings. A. 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 Page 4 required by Section 10(a)(3) of the Securities Act of 1933; (ii) to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post- effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; (iii) to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; provided, however, that clauses (i) and (ii) do not apply if the information required to be included in a post-effective amendment by those clauses is contained in periodic reports filed by the Registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. B. The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. C. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the 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 whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. [Signature Page Follows] Page 5 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all the requirements for 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 Garland, Texas, on November 3, 2000. ASCENDANT SOLUTIONS, INC. By: /s/ David E. Bowe --------------------------- David E. Bowe Chief Executive Officer and President Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons and in the capacities indicated on November 3, 2000. Signature Title - ------------------ ------------------- /s/ David E. Bowe Chief Executive Officer and Chief - ------------------ Financial Officer, President David E. Bowe Principal Executive Officer and Principal Financial and Accounting Officer) /s/Jonathan R. Bloch Director - -------------------- Jonathan R. Bloch /s/Alan e. Salzman Director - -------------------- Alan E. Salzman /s/ Paul G. Sherer Director - -------------------- Paul G. Sherer /s/ Kevin P. Yancy Chairman of the Board - -------------------- Kevin P. Yancy Page 6 EXHIBIT INDEX ------------- Exhibit Description -------- ---------------------------------------- 4.1 Certificate of Incorporation of the Registrant (incorporated by referenced to Exhibit 3.1 to the Registrant's Current Report on Form 8-K, filed with the Commission on October 20, 2000 (the "October 8-K")) 4.2 Bylaws of the Registrant (incorporated by reference to Exhibit 3.2 to the October 8-K). 4.3 Agreement and Plan of Merger by and between the Registrant and ASD Systems incorporated by reference to Exhibit 2.1 to the October 8-K). 5.1 Opinion of Arter & Hadden LLP (filed herewith). 23.1 Consent of Arter & Hadden LLP (included in their opinion filed as Exhibit 5.1). 23.2 Consent of Ernst & Young LLP (filed herewith). Page 7 EX-5.1 2 0002.txt EXHIBIT 5.1 ARTER & HADDEN LLP 1717 Main Street, Suite 4100 Dallas, Texas 75201 Tel: 214.761.2100 Fax: 214.741.7139 November 3, 2000 Board of Directors Ascendant Solutions, Inc. 3737 Grader Street, Suite 110 Garland, Texas 75041 Re: Ascendant Solutions, Inc. Post Effective Amendment No. 1 To Registration Statement on Form S-8 Ladies and Gentlemen: On November 3, 2000, Ascendant Solutions, Inc., a Delaware corporation and successor by merger to ASD Systems, Inc., d/b/a Ascendant Solutions, a Texas corporation (the "Company"), expects to file with the Securities and Exchange Commission its Post Effective Amendment No. 1 to Registration Statement on Form S-8 (Registration Statement No. 333-38114, the "Registration Statementj") under the Securities Act of 1933, as amended (the "Securities Act"), relating to the additional 1,300,000 shares of the $0.0001 par value common stock (the "Common Stock") of the Company issuable under the 1999 Long-Term Incentive Plan of ASD Systems, Inc. (the "Plan"). You have requested the opinion of this firm with respect to certain legal aspects of the Registration Statement. Inc. connection therewith, we have examined and relied upon the original, or copies identified to our satisfaction, of (1) the Certificate of Incorporation and the Bylaws of the Company; (2) minutes and records of the corporate proceedings of the Company with respect to the establishment and approval of the Plan, the amendment to the Plan to increase the number of shares of Common Stock issuable thereunder, Ascendant Solutions, Inc. November 3, 2000 Page 2 and related matters; (3) the Registration Statement and exhibits thereto, including the Plan, as amended, and the form of stock option agreements used in connection with grants under the Plan; (4) the Agreement and Plan of Merger by and between Ascendant Solutions, Inc. and ASD Systems, Inc.; and (5) such other documents and instruments as we have deemed necessary for the expression of the opinions herein contained. In making the foregoing examinations, we have assumed the genuineness of all signatures and the authenticity of all documents submitted to us as originals, and the conformity to original documents of all documents submitted to us as certified or photostatic copies. As to various questions of fact material to this opinion, and as to the content and form of the Certificate of Incorporation, the Bylaws, minutes, records, resolutions and other documents or writings of the Company, we have relied, to the extent we deem reasonably appropriate, upon representations or certificates of officers or directors of the Company and upon documents, records and instruments furnished to us by the Company, without independent check or verification of their accuracy. Based upon our examination, consideration of, and reliance on the documents and other matters described above, and subject to the comments and exceptions noted below, we are of the opinion that, assuming (i) the outstanding Options were duly granted and the Options to be granted in the future will be duly granted in accordance with the terms of the Plan, (ii) the Company maintains an adequate number of authorized but unissued shares and/or treasury shares of Common Stock available for issuance to those persons who exercise Options granted under the Plan, (iii) the exercise of Options are in accordance with the provisions thereof and, in accordance with the provisions of the Plan, and (iv) the consideration for the shares of Common Stock issuable upon the exercise of the Options is actually received by the Company as provided in the Plan, and such consideration exceeds the par value of such shares, then the shares of Common Stock issued pursuant to the exercise of the Options will be validly issued, fully paid and nonassessable. Ascendant Solutions, Inc. November 3, 2000 Page 3 We bring to your attention the fact that this legal opinion is an expression of professional judgment and not a guaranty of result. This opinion is rendered as of the date hereof, and we undertake no, and hereby disclaim any, obligation to advise you of any changes in or new developments that might affect any matters or opinions set forth herein. This opinion is limited in all respects to the General Corporation Law of the state of Delaware as in effect on the date hereof. We hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement and to references to our firm included in or made a part of the Registration Statement. In giving this consent, we do not admit that we come within the category of person whose consent is required under Section 7 of the Securities Act or the Rules and Regulations of the Securities and Exchange Commission thereunder. This opinion may not be relied upon by any person other than the addressee identified above. Respectfully submitted, ARTER & HADDEN LLP EX-23.2 3 0003.txt EXHIBIT 23.2 CONSENT OF INDEPENDENT AUDITORS We consent to the incorporation by reference in the Registration Statement (Form S-8 Registration No. 333-38114) pertaining to the 1999 Long-Term Incentive Plan Stock of our current report dated February 18, 2000 with respect to the financial statements of ASD Systems, Inc. for the years ended December 31, 1999 and 1998 and August 5, 1999 (except for Note 11, as to which the date is August 23, 1999) with respect to the financial statements of ASD Partners, Ltd. for the period October 14, 1997 to December 31, 1997, included in the Annual Report (Form 10K) for the year ended December 31, 1999, filed with the Securities and Exchange Commission. /s/ Ernst & Young LLP Dallas, Texas October 31, 2000 -----END PRIVACY-ENHANCED MESSAGE-----