<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 15, 1998.
REGISTRATION NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
ADVANCED RADIO TELECOM CORP.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 4812 52-1869023
<S> <C> <C>
(STATE OR OTHER JURISDICTION (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NO.)
</TABLE>
500 108TH AVENUE NE, SUITE 2600, BELLEVUE, WASHINGTON 98004 (425) 688-8700
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
THOMAS M. WALKER, ESQ.
GENERAL COUNSEL
500 108TH AVENUE NE, SUITE 2600
BELLEVUE, WASHINGTON 98004
(425) 688-8700 / (425) 990-1642 (FAX)
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPIES OF ALL COMMUNICATIONS TO:
MARY E. WEBER, ESQ.
ROPES & GRAY
ONE INTERNATIONAL PLACE
BOSTON, MA 02110-2624
(617) 951-7000 / (617) 951-7050 (FAX)
CALCULATION OF REGISTRATION FEE
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==================================================================================================================================
Title of Securities Amount to be Proposed maximum Proposed maximum Amount of
to be registered registered offering price per share/(1)/ aggregate offering price/(1)/ registration fee/(2)/
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par 3,100,000 $14.6563 $45,434,530 $13,403.19
value, $.001 (including
Junior Preferred Stock
Purchase Rights)
==================================================================================================================================
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(1) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(c) for the purpose of calculating the registration fee
based on the average of the high and low prices of the Registrant's Common
Stock reported on the Nasdaq National Market on April 13, 1998.
(2) An additional filing fee of $4,598.01 was previously paid for 1,475,000
shares registered for issuance under the Restated Equity Incentive Plan and
the 1996 Non-Employee Directors Automatic Stock Option Plan under
Registration Statement 333-21875. Of the $4,598.01, $4,364.08 represents
the filing fee for the 1,400,000 shares registered for issuance under the
Restated Equity Incentive Plan and $233.93 represents the filing fee for
the 75,000 shares registered for issuance under the 1996 Non-Employee
Directors Automatic Stock Option Plan.
Pursuant to Rule 429 under the Securities Act of 1933, the Prospectus
included herein also relates to a total of 1,400,000 shares of the Registrant
that are registered under Registration Statement on Form S-8 No. 333-21875,
which was filed on February 14, 1997. This Registration Statement constitutes
Post-Effective Amendment No. 1 to Registration Statement on Form S-8 No. 333-
21875 pursuant to which any outstanding shares previously registered under
Registration Statement on Form S-8 No. 333-21875 may be offered and sold,
together with the securities registered hereunder, through the use of the
combined Prospectus included herein. In the event any of such previously
registered shares are offered and sold prior to the effective date of this
Registration Statement, the amount of such shares will not be included in any
Prospectus hereunder.
================================================================================
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
---------------------------------------
The Registrant hereby incorporates the following documents herein by
reference:
1) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1997.
2) The Company's Current Report on Form 8-K filed with the
Commission on March 5, 1998.
3) The description of the Company's Common Stock and Junior
Preferred Stock Purchase Rights contained in the Company's
Registration Statements on Forms 8-A and 8-A/A (File No. 000-
21091) filed under Section 12 of the Securities Exchange Act of
1934, as amended (the "Exchange Act").
All other documents subsequently filed by the Company pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment 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 to be a part
hereof from the date of filing of such documents. 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 a statement contained herein or in any subsequently
filed document that also is or is deemed to be incorporated by reference herein
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.
The Registrant will provide without charge to each participant those
documents containing information regarding the respective Plans required by Item
1 of the Form S-8 as specified by Rule 428(b). The Registrant will also provide
without charge, upon the oral or written request of any particpant, a copy of
any and all documents that have been incorporated by reference in Item 3 of Part
II of this Registration Statement. Such documents may be obtained by writing to
Advanced Radio Telecom Corp., 500 108th Avenue, N.E., Suite 2600, Bellevue,
Washington 98004 or by calling (425) 688-8700. In accordance with Rule 428 and
the requirements of Part I of Form S-8, the Plans and any documents incorporated
by reference are not being filed with the Securities and Exchange Commission
("Commission") either as part of this Registration Statement or as prospectuses
or prospectus supplements pursuant to Rule 424. Upon request, the Registrant
shall furnish to the Commission or its staff a copy of copies of all of the
above-referenced documents.
Item 4 . Description of Securities.
-------------------------
Not required.
Item 5. Interests of Named Experts and Counsel.
--------------------------------------
Not required.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
Section 145 of the Delaware General Corporation Law, as amended (the
"DGCL"), provides that a corporation may indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that he is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another
<PAGE>
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amount paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had not
reasonable cause to believe his conduct was unlawful. Section 145 further
provides that a corporation similarly may indemnify any such person serving in
any such capacity who was or is a party or is threatened to be made a party to
any threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor, against expenses actually and
reasonably incurred in connection with the defense or settlement of such action
or suit if he acted in good faith and in a manner he reasonably believed to be
in or not opposed to the best interest of the corporation and except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Delaware Court of Chancery or such other
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnify for such
expenses which the Court of Chancery or such other court shall deem proper.
Section 102(b)(7) of the DGCL permits a corporation to include in its
certificate of incorporation a provision eliminating or limiting the personal
liability of a director to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, provided that such provision
shall not eliminate or limit the liability of a director (i) for any breach of
the director's duty of loyalty to the corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the DGCL (relating to
unlawful payment of dividends and unlawful stock purchase and redemption) or
(iv) for any transaction from which the director derived an improper personal
benefit.
The Registrant's Certificate of Incorporation provides that the
liability of the directors shall be eliminated to the fullest extent permissible
by Section 102(b)(7) of the DGCL, as amended. The Certificate of Incorporation
further provides that the Registrant shall indemnify its directors and officers
to the fullest extent permitted by Section 145 of the DGCL, as amended.
Reference is made to the form of Indemnification Agreement
incorporated by reference as Exhibit 10 to this Registration Statement for
information regarding indemnification of directors and officers under certain
circumstances.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not applicable.
Item 8. Exhibits.
--------
The following exhibits are filed as a part of this Registration
Statement:
Exhibit
Number Description
- ------ -----------
4.1 --Specimen of Common Stock Certificate.(1)
4.2 --Restated Equity Incentive Plan, as amended.(2)
4.3 --1996 Non-Employee Directors Automatic Stock Option
Plan.(2)
4.4 --1997 Equity Incentive Plan for Non-Employee Directors.(3)
5 --Opinion of Ropes & Gray.
10 --Form of Director Indemnification Agreement(1)
23.1 --Consent of Independent Accountants.
23.2 --Consent of Ropes & Gray (Included in Exhibit 5).
24 --Powers of Attorney (contained on the Signature Page of
this Registration Statement).
II-2
<PAGE>
(1) Previously filed with the Company's Registration Statement on Form
S-1, effective November 5, 1996 (S.E.C. Reg. No. 333-04388) and
incorporated by reference herein.
(2) Previously filed with the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1997 and incorporated by reference
herein.
(3) Previously filed with the Company's Registration Statement on Form S-
8, filed on February 14, 1997 (S.E.C. Reg. No. 333-21875) and
incorporated by reference herein.
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 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; and (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 paragraphs (a)(1)(i) and (ii) shall 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 Registrant 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 of 1933, each such post-effective amendment shall be
deemed to be a new Registration Statement relating to the securities
offered herein, 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 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 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.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Company has duly
caused this Registration Statement on Form S-8 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Bellevue, State of
Washington on the 15th day of April, 1998.
Advanced Radio Telecom Corp.
By: /s/ Henry C. Hirsch
-------------------------
Title: Chairman, Chief Executive Officer
and Director
POWERS OF ATTORNEY
Each person whose signature appears below hereby authorizes and appoints
Henry C. Hirsch, Thomas A. Grina and Thomas M. Walker, and each of them, with
full power of substitution and full power to act without the other, as his true
and lawful attorney-in-fact and agent to act in his name, place and stead and to
execute in the name and on behalf of each person, individually and in each
capacity stated below, and to file, any and all amendments to this Registration
Statement, including any and all post-effective amendments and any subsequent
Registration Statement for the same offering which may be filed under Rule
462(b).
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities indicated
below on the 15th day of April, 1998.
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SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ Henry C. Hirsch Chairman, Chief Executive Officer April 15, 1998
- ----------------------------
Henry C. Hirsch and Director
/s/ Thomas A. Grina Executive Vice President and April 15, 1998
- ----------------------------
Thomas A. Grina Chief Financial Officer
/s/ Vernon L. Fotheringham Vice-Chairman and Director April 15, 1998
- ----------------------------
Vernon L. Fotheringham
/s/ James C. Cook Director April 15, 1998
- ----------------------------
James C. Cook
/s/ Mark C. Demetree Director April 15, 1998
- ----------------------------
Mark C. Demetree
/s/ Andrew I. Fillat Director April 15, 1998
- ----------------------------
Andrew I. Fillat
/s/ James B. Murray Director April 15, 1998
- ----------------------------
James B. Murray
/s/ Alan Z. Senter Director April 15, 1998
- ----------------------------
Alan Z. Senter
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II-4
<PAGE>
[LETTERHEAD OF ROPES & GRAY]
April 15, 1998
Advanced Radio Telecom Corp.
500 108th Avenue NE
Suite 2600
Bellevue, WA 98004
Ladies and Gentlemen:
This opinion is furnished to you in connection with a registration
statement on Form S-8 (the "Registration Statement"), filed with the Securities
and Exchange Commission under the Securities Act of 1933, as amended, for the
registration of an aggregate of 3,100,000 shares (the "Shares") of common stock,
$.001 par value, and Junior Preferred Stock Purchase Rights associated with the
Shares pursuant to a Rights Agreement dated as of June 20, 1997 (the "Common
Stock"), of Advanced Radio Telecom Corp., a Delaware corporation (the
"Company"), issuable under the Company's Restated Equity Incentive Plan and 1997
Equity Incentive Plan for Non-Employee Directors (the "Plans").
We have acted as counsel for the Company in connection with the proposed
issue and sale of the Shares and the preparation and filing of the Registration
Statement. For purposes of this opinion, we have examined and relied upon the
information set forth in the Registration Statement and such other documents,
records, certificates and other instruments as we have deemed necessary.
We express no opinion as to the applicability of, compliance with or effect
of federal law or the law of any jurisdiction other than the General Corporation
Law of the State of Delaware. For purposes of our opinion set forth below, we
have assumed that the per share consideration paid for the Shares will exceed
the par value of a share of Common Stock and that there will be an adequate
number of shares of authorized Common Stock available for issuance at the time
of the issuance of any Shares.
Based upon the foregoing, we are of the opinion that:
<PAGE>
Advanced Radio Telecom Corp. -2- April 15, 1998
The Shares to be issued under the Plans have been duly authorized, and upon
the issuance and delivery of the Shares, in the manner contemplated by the
Plans, against the payment of any required consideration, the Shares will be
validly issued, fully paid and nonassessable.
We understand that this opinion is to be used in connection with the
Registration Statement. We hereby consent to the filing of this opinion as part
of the Registration Statement.
It is understood that this opinion is to be used only in connection with
the issuance and sale of the Shares while the Registration Statement is in
effect.
Very truly yours,
Ropes & Gray
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement of
Advanced Radio Telecom Corp. on Form S-8 (File No. 333- ) of our report
dated March 10, 1998 on our audits of the consolidated financial statements of
Advanced Radio Telecom Corp. and Subsidiaries as of December 31, 1997 and 1996
and for the years ended December 31, 1997, 1996 and 1995, appearing in the
Annual Report on Form 10-K of Advanced Radio Telecom Corp. filed with the
Securities and Exchange Commission pursuant to the Securities Exchange Act of
1934.
Coopers & Lybrand L.L.P.
Seattle, Washington
April 10, 1998
