As filed with the Securities and Exchange Commission on April 30, 1998
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.
1996 Long-Term Incentive Plan
(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
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Title of Amount Proposed Proposed
Securities to be Maximum Maximum Amount of
to be Registered Offering Aggregate Registration
Registered (1) Price Offering Fee
Per Share Price
- ------------- -------------- -------------- ---------------- ---------------
Common
Shares, $1.00
par value 1,500,000 Shares $7.31 (2) $10,968,750 $3,236
============== ============== ============== ================ ===============
(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.
(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 April 27, 1998, pursuant to Rule 457(h)(1) under the
Securities Act of 1933.
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<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
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Item 2. Registration 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 "1933
Act") and the Note to Part I of Form S-8.
The registrant has previously filed a Registration Statement on Form
S-8 (No. 333-06471), relating to 1,500,000 Common Shares, which first became
effective on June 21, 1996, for issuance under the registrant's 1994 Long-Term
Incentive Plan. Pursuant to Rule 429 under the Securities Act of 1933, as
amended, the Prospectus related to the Plan includes the 1,500,000 Common Shares
covered by Registration Statement No. 333-06471, as well as the securities
registered by this Registration Statement.
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 1933 Act and the
Securities Exchange Act of 1934, as amended (the "1934 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, 1997.
3. The Company's Current Report on Form 8-K, dated February 5,
1998.
4. All other reports filed by the Company pursuant to Section 13
(a) and 15(d) of the 1934 Act since December 31, 1997.
All documents, subsequently filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the 1934 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.
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See Item 3.
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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.
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.
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<PAGE>
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 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 and 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 1934 Act that are incorporated by
reference in the Registration Statement.
2. That, for the purpose of determining any liability under the
1933 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
1933 Act, each filing of the Company's Annual Report pursuant
to Section 13(a) or Section 15(d) of the 1934 Act (and, where
applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the 1934 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.
5. That, insofar as indemnification for liabilities arising under
the 1933 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 1933 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
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<PAGE>
indemnification by it is against public policy as expressed
in the 1933 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 30th day of
April, 1998.
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 30th day of April, 1998.
/s/ LeRoy T. Carlson, Jr. Chairman and Director
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LeRoy T. Carlson, Jr.
/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
Financial Officer), Treasurer and Director
J. Clarke Smith
/s/ LeRoy T. Carlson Director
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LeRoy T. Carlson
/s/ Murray L. Swanson Director
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Murray L. Swanson
/s/ Rudolph E. Hornacek Director
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Rudolph E. Hornacek
/s/ James Barr III Director
- ------------------------------
James Barr III
/s/ Walter C.D. Carlson Director
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Walter C.D. Carlson
<PAGE>
/s/ Thomas W. Wilson, Jr. Director
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Thomas W. Wilson, Jr.
/s/ John D. Foster Director
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John D. Foster
/s/ B. Scott Dailey Controller (Principal Accounting Officer)
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B. Scott Dailey
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<PAGE>
EXHIBIT INDEX
The following documents are filed herewith or incorporated
herein by reference.
Exhibit
No. Description
- ------ -----------
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(ii) to the Company's 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. 1996 Long-Term Incentive Plan is
hereby incorporated by reference to Exhibit 99.1 to the
Company's Registration Statement on Form S-8 (Registration No.
333-06471).
99.2 Description of Amendment to 1996 Long-Term Incentive Plan, is
hereby incorporated by reference to Proposal 2 included in the
Company's Notice of Annual Meeting and Proxy Statement dated
April 10, 1998.
<PAGE>
EXHIBIT 5
SIDLEY & AUSTIN
ONE FIRST NATIONAL PLAZA
CHICAGO, ILLINOIS 60603
(312) 853-7000
April 30, 1998
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 1,500,000 Common Shares, par value $1.00 per share (the
"Shares") of the Company pursuant to the Aerial Communications, Inc. 1996
Long-Term Incentive Plan (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.
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
<PAGE>
Aerial Communications, Inc.
April 30, 1998
Page 2
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 report dated January 28, 1998 (Except with respect
to the matters discussed in Note 9, as to which the date is February 5, 1998),
on the consolidated financial statements of Aerial Communications, Inc. and
Subsidiaries for the year ended December 31, 1997, and to all references to our
Firm included in this Form S-8 Registration Statement.
ARTHUR ANDERSEN LLP
Chicago, Illinois
April 30, 1998
<PAGE>
