As filed with the Securities and Exchange Commission on May 2, 1997
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under the
SECURITIES ACT OF 1933
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AERIAL COMMUNICATIONS, INC.
(Exact name of registrant as specified in its charter)
Delaware 39-1706857
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
8410 West Bryn Mawr Avenue, Suite 1100
Chicago, Illinois 60631
(Address of Principal Executive Offices) (Zip Code)
Aerial Communications, Inc.
Compensation Plan for Non-Employee Directors
(Full title of the plan)
LeRoy T. Carlson, Jr.
Chairman
Aerial Communications, Inc.
c/o Telephone and Data Systems, Inc.
30 North LaSalle Street, Suite 4000
Chicago, Illinois 60602
(Name and address of agent for service)
(312) 630-1900
(Telephone number, including
area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
================================================================================
Title of Proposed Proposed
Securities Amount Maximum Maximum Amount of
to be to be Offering Price Aggregate Registration
Registered Registered (1) Per Share Offering Price Fee
Common Shares,
$1.00 par value 20,000 Shares $4.69 (2) $93,750 $28.41
=============== ================ ================ ============== ===============
(1) In addition, this Registration Statement also covers an indeterminate
amount of additional securities which may be issued under the
above-referenced Plan pursuant to the anti-dilution provisions of such
Plan and, if interests in the above-referenced Plan are deemed to
constitute separate securities, pursuant to Rule 416(c) under the
Securities Act of 1933, this registration statement shall also cover an
indeterminate amount of interests to be offered or sold pursuant to the
above-referenced Plan.
(2) Estimated for the Common Shares solely for the purpose of calculating
the registration fee on the basis of the average of the high and low
prices of the Common Shares of the Company on the Nasdaq National
Market on May 2, 1997, pursuant to Rule 457(h)(1) under the
Securities Act of 1933.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
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Item 2. Registrant Information and Employee Plan Annual Information.*
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* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from the Registration Statement in accordance
with Rule 428 under the Securities Act of 1933, as amended (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 which have heretofore been filed by Aerial
Communications, Inc. (the "Company" or the "Registrant"), with the Securities
and Exchange Commission (the "Commission") pursuant to the Securities Act and
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), are
incorporated by reference herein and shall be deemed to be a part hereof:
1. The description of the Common Shares, par value $1.00 per
share ("Common Shares"), of the Company contained in the
Company's Registration Statement on Form 8-A, as filed with
the Commission on April 19, 1996.
2. The Company's Annual Report on Form 10-K for the year ended
December 31, 1996.
3. All other reports filed by the Company pursuant to Section
13(a) or 15(d) of the Exchange Act since December 31, 1996.
All documents, subsequently filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment to this Registration Statement which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and made a part hereof from their
respective dates of filing (such documents, and the documents enumerated above,
being hereinafter referred to as "Incorporated Documents").
Any statement contained in an Incorporated Document shall be deemed to
be modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
Incorporated Document modifies or supersedes such statement. Any such 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.
-------------------------
See Item 3.
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<PAGE>
Item 5. Interests of Named Experts and Counsel.
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Certain legal matters relating to the securities registered hereby will
be addressed by Sidley & Austin, One First National Plaza, Chicago, Illinois
60603. The Company is controlled by Telephone and Data Systems, Inc. ("TDS")
which is controlled by a voting trust. Walter C.D. Carlson, a trustee and
beneficiary of such voting trust and a director of TDS, the Company and certain
other subsidiaries of TDS, Michael G. Hron, the Secretary of TDS, the Company
and certain other subsidiaries of TDS, William S. DeCarlo, the Assistant
Secretary of TDS, the Company and certain other subsidiaries of TDS, Stephen P.
Fitzell, the Secretary of certain subsidiaries of TDS, and Sherry S. Treston,
the Assistant Secretary of certain subsidiaries of TDS, are partners of Sidley &
Austin.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
Section 145 of the Delaware General Corporation Law ("DGCL") empowers a
Delaware corporation to indemnify any persons who are, or are threatened to be
made, parties to any threatened, pending or completed legal action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of such corporation), by reason of the fact that
such person was an officer or director of such corporation, or is or was serving
at the request of such corporation as a director, officer, employee or agent of
another corporation or enterprise. The indemnity may include expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding, provided that such officer or director acted in good faith in a
manner he reasonably believed to be in or not opposed to the corporation's best
interests, and, for criminal proceedings, had no reasonable cause to believe his
conduct was illegal. A Delaware corporation may indemnify officers and directors
in an action by or in the right of the corporation under the same conditions,
except that no indemnification is permitted without judicial approval if the
officer or director is adjudged to be liable to the corporation in the
performance of his duty. Where an officer or director is successful on the
merits or otherwise in the defense of any action referred to above, the
corporation must indemnify him against the expenses which such officer or
director actually and reasonably incurred. Article XI of the Company's Restated
Certificate of Incorporation provides for the indemnification of directors,
officers and employees of the Company within the limitations of Section 145.
In accordance with Section 102(b)(7) of the DGCL, the Company's
Restated Certificate of Incorporation provides that directors shall not be
personally liable for monetary damages for breaches of their fiduciary duty as
directors except for (i) breaches of their duty of loyalty to the Company or its
stockholders, (ii) acts or omissions not in good faith or which involve
intentional misconduct or knowing violations of law, (iii) certain transactions
under Section 174 of the DGCL (unlawful payment of dividends or unlawful stock
purchases or redemptions) or (iv) transactions from which a director derives an
improper personal benefit. The effect of the provision is to eliminate the
personal liability of directors for monetary damages for actions involving a
breach of their fiduciary duty of care, including any actions involving gross
negligence.
The Company has directors' and officers' liability insurance which
provides, subject to certain policy limits, deductible amounts and exclusions,
coverage for all persons who have been, are or may in the future be, directors
or officers of the Company, against amounts which such persons must pay
resulting from claims against them by reason of their being such directors or
officers during the policy period for certain breaches of duty, omissions or
other acts done or wrongfully attempted or alleged. Such policies provide
coverage to certain situations where the Company cannot directly provide
indemnification under DGCL.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not Applicable.
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<PAGE>
Item 8. Exhibits.
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The exhibits accompanying this Registration Statement are listed on the
accompanying Exhibit Index. The Plan is not intended to be qualified under
Section 401(a) of the Internal Revenue Code.
Item 9. Undertakings.
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The Company hereby undertakes:
1. To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(a) To include any prospectus required by Section 10(a)(3) of
the 1933;
(b) 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. Notwithstanding the
foregoing, any increase or decrease in the volume of
securities offered (if the total dollar value of
securities offered would not exceed that which was
registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in
the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20 percent
change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in
the effective registration statement;
(c) 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 paragraphs 1.(a) and 1.(b) do not
apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the Company pursuant to Section 13
or Section 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
2. That, for the purpose of determining any liability under the
Securities Act, 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 Common Shares being registered hereby
which remain unsold at the termination of the offering.
4. That, for the purposes of determining any liability under the
Securities Act, each filing of the Company's Annual Report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act
(and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Exchange
Act) 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 hereof.
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<PAGE>
5. That, insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers and
controlling persons of the Company pursuant to the foregoing
provisions, or otherwise, the Company has been advised that in
the opinion of the 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 Company of expenses incurred or paid by a
director, officer or controlling person of the Company 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
Company will, unless in the opinion of its counsel the
matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the
final adjudication of such issue.
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<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 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 Chicago, State of Illinois, on the 2nd day of
May, 1997.
AERIAL COMMUNICATIONS, INC.
By: /s/ Donald W. Warkentin
-------------------------------------
Donald W. Warkentin
President and Chief Executive Officer
POWER OF ATTORNEY AND SIGNATURES
The undersigned officers and directors of Aerial
Communications, Inc. hereby severally constitute and appoint LeRoy T. Carlson,
Jr. and Donald W. Warkentin, and each of them, our true and lawful
attorneys-in-fact and agents, with full power of substitution, to sign for us in
our names in the capacities indicated below, all amendments to this registration
statement, and generally to do all things in our names and on our behalf in such
capacities to enable Aerial Communications, Inc. to comply with the provisions
of the Securities Act of 1933, as amended, and all requirements of the
Securities and Exchange Commission in connection with this registration
statement.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated and on the 2nd day of May, 1997.
/s/ Donald W. Warkentin President and Chief Executive Officer
-------------------------- (Principal Executive Officer) and Director
Donald W. Warkentin
/s/ J. Clarke Smith Vice President-Finance and Administration
-------------------------- and Chief Financial Officer (Principal
J. Clarke Smith Financial Officer), Treasurer and Director
/s/ LeRoy T. Carlson, Jr. Chairman and Director
--------------------------
LeRoy T. Carlson, Jr.
/s/ LeRoy T. Carlson Director
--------------------------
LeRoy T. Carlson
/s/ Murray L. Swanson Director
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Murray L. Swanson
/s/ Rudolph E. Hornacek Director
--------------------------
Rudolph E. Hornacek
/s/ James Barr III Director
--------------------------
James Barr III
/s/ Walter C.D. Carlson Director
--------------------------
Walter C.D. Carlson
/s/ Thomas W. Wilson, Jr. Director
--------------------------
Thomas W. Wilson, Jr.
/s/ John D. Foster Director
--------------------------
John D. Foster
/s/ B. Scott Dailey Controller (Principal Accounting Officer)
--------------------------
B. Scott Dailey
<PAGE>
EXHIBIT INDEX
The following documents are filed herewith or incorporated
herein by reference.
Exhibit
No. Description
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4.1 Restated Certificate of Incorporation of the Company, as
amended, is hereby incorporated herein by reference to Exhibit
3.1 to the Company's Form 8-K dated November 20, 1996.
4.2 Bylaws of the Company is hereby incorporated herein by
reference to Exhibit 3.2 to the Company's Amendment No. 1 to
Registration Statement on Form S-1 (Registration No. 333-1514)
5 Opinion of Counsel
23.1 Consent of Independent Public Accountants
23.2 Consent of Counsel (contained in Exhibit 5)
24 Powers of Attorney (included on signature page)
99.1 Aerial Communications, Inc. Compensation Plan for Non-Employee
Directors
<PAGE>
EXHIBIT 5
SIDLEY & AUSTIN
ONE FIRST NATIONAL PLAZA
CHICAGO, ILLINOIS 60603
(312) 853-7000
May 2, 1997
Aerial Communications, Inc.
Suite 1100
8410 West Bryn Mawr Avenue
Chicago, Illinois 60631
Re: Aerial Communications, Inc.
Registration Statement on Form S-8
----------------------------------
Ladies and Gentlemen:
We are counsel to Aerial Communications, Inc., a Delaware
corporation (the "Company"), and have represented the Company in connection with
the Registration Statement on Form S-8 (the "Registration Statement") being
filed by the Company with the Securities and Exchange Commission under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to the
issuance and delivery of 20,000 common shares, par value $1.00 per share (the
"Shares"), of the Company pursuant to the Aerial Communications, Inc.
Compensation Plan for Non-Employee Directors (the "Plan").
In rendering this opinion, we have examined and relied upon a
copy of the Plan and the Registration Statement, including the related
Prospectus dated the date hereof. We have also examined and relied upon
originals, or copies of originals certified to our satisfaction, of such
agreements, documents, certificates and other statements of governmental
officials and other instruments, and have examined such questions of law and
have satisfied ourselves as to such matters of fact, as we have considered
relevant and necessary as a basis for this opinion. We have assumed the
authenticity of all documents submitted to us as originals, the genuineness of
all signatures, the legal capacity of all natural persons and the conformity
with the original documents of any copies thereof submitted to us for our
examination.
Based on the foregoing, we are of the opinion that:
1. The Company is duly incorporated and validly existing
under the laws of the State of Delaware; and
2. Each Share will be legally issued, fully paid and
nonassessable when (i) the Registration Statement shall have become effective
under the Securities Act; (ii) such Share shall have been duly issued and
delivered in the manner contemplated by the Plan; and (iii) a certificate
representing such Share shall have been duly executed, countersigned and
registered and duly delivered to the person entitled thereto against receipt of
the agreed consideration therefor (not less than the par value thereof) in
accordance with the Plan.
We do not find it necessary for the purposes of this opinion
to cover, and accordingly we express no opinion as to, the application of the
securities or "Blue Sky" laws of the various states to the issuance and delivery
of the Shares.
<PAGE>
Aerial Communications, Inc.
May 2, 1997
Page 2
This opinion is limited to the Securities Act and the Delaware
General Corporation Law.
The Company is controlled by Telephone and Data Systems, Inc.
("TDS"), which is controlled by a voting trust. Walter C.D. Carlson, a trustee
and beneficiary of such voting trust and a director of TDS, the Company and
certain other subsidiaries of TDS, Michael G. Hron, the Secretary of TDS, the
Company and certain other subsidiaries of TDS, William S. DeCarlo, the Assistant
Secretary of TDS, the Company and certain other subsidiaries of TDS, Stephen P.
Fitzell, the Secretary of certain subsidiaries of TDS, and Sherry S. Treston,
the Assistant Secretary of certain subsidiaries of TDS, are partners of this
Firm.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to all references to our Firm in or made a
part of the Registration Statement, including the related Prospectus dated the
date hereof.
Very truly yours,
SIDLEY & AUSTIN
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Form S-8 Registration Statement of Aerial
Communications, Inc. of our reports, dated January 29, 1997, on the consolidated
financial statements and schedule of Aerial Communications, Inc. and
Subsidiaries for the year ended December 31, 1996, included in the Aerial
Communications, Inc. Annual Report on Form 10-K for the year ended December 31,
1996, and to all references to our Firm included in this Form S-8 Registration
Statement.
ARTHUR ANDERSEN LLP
Chicago, Illinois
May 2, 1997
<PAGE>
EXHIBIT 99.1
AERIAL COMMUNICATIONS, INC.
(the "Company")
DESCRIPTION OF COMPENSATION PLAN FOR NON-EMPLOYEE DIRECTORS
(the "Plan")
APRIL 15, 1997
* * * * *
The purpose of the Plan is to provide reasonable compensation
to non-employee directors in connection with their services to the Company in
order to induce qualified persons to become and serve as non-employee members of
the Company's Board of Directors.
The Plan was approved pursuant to the authority granted in
Section 12 of Article III of the Company's By-Laws, which provides that this
Board of Directors shall have the authority to establish reasonable compensation
of directors and that directors may be reimbursed their expenses of attending
meetings of the Board of Directors.
The Plan provides that each director of the Company who is not
an employee of the Company, Telephone and Data Systems, Inc., United States
Cellular Corporation, American Paging, Inc., or TDS Telecommunications
Corporation or their subsidiaries or affiliates ("Affiliates") shall receive an
annual director's fee of $20,000; and that each director of the Company who is
not an employee of any Affiliate (hereinafter a "Non- employee Director") shall
receive a fee of $1,000, plus reimbursement of reasonable out-of-pocket expenses
incurred in connection with travel, for attendance at each regularly scheduled
or special meeting of the Board of Directors.
The Plan also provides that each Non-employee Director shall
receive a fee of $500, plus reimbursement of reasonable out-of-pocket expenses
incurred in connection with travel, for attendance at each meeting of the Audit
Committee, Stock Option Compensation Committee, or other committee established
by resolution of the Board of Directors.
The Plan further provides that fifty percent (50%) of the
annual fee shall be paid immediately prior to the Company's Annual Meeting of
Shareholders by the delivery of Common Shares of the Company having a fair
market value, as hereinafter defined, as of the date of payment equal to such
percentage of the annual fee.
Under the Plan, for purposes of determining the number of
Common Shares deliverable pursuant to the preceding paragraph, the fair market
value of a Common Share of the Company shall be the average closing price of
Common Shares of the Company as reported on the Nasdaq National Market for the
twenty (20) trading days ending on the third trading day before the Annual
Meeting of Shareholders.
The Board of Directors of the Company has reserved 20,000
Common Shares of the Company for issuance pursuant to the Plan.
<PAGE>
