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As filed with the Securities and Exchange Commission on June 22, 1998
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
NEXTLINK COMMUNICATIONS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 91-1738221
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
500 108th Avenue N.E., Suite 2200
Bellevue, Washington 98004
(206) 519-8900
(Address, including zip code, and telephone number, including area code, of
principal executive offices)
-----------------------
NEXTLINK COMMUNICATIONS, INC. EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
-----------------------
R. Bruce Easter, Jr., Esq.
NEXTLINK Communications, Inc.
500 108th Avenue N.E., Suite 2200
Bellevue, Washington 98004
(425) 519-8900
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
-----------------------
COPIES TO
Bruce R. Kraus, Esq.
Willkie Farr & Gallagher
787 Seventh Avenue
New York, NY 10019
(212) 728-8000
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
========================== =================== ===================== ======================== ====================
Proposed maximum Proposed maximum
Title of securities Amount to be offering price per aggregate offering Amount of
to be registered registered share (1) price (1) registration fee
- -------------------------- ------------------- --------------------- ------------------------ --------------------
<S> <C> <C> <C> <C>
Class A Common
Stock, $0.02
par value per share 3,000,000 $27.00 $81,000,000 $23,895.00
========================== =================== ===================== ======================== ====================
</TABLE>
(1) Estimated solely for calculating the amount of the registration fee,
pursuant to Rule 457(h) under the Securities Act of 1933 (the "Securities Act")
based upon the average of the high and low sales prices of the Class A Common
Stock as reported by the Nasdaq National Market on June 16, 1998.
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PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, filed with the Securities and Exchange Commission
(the "Commission") by NEXTLINK Communications, Inc., a Delaware corporation (the
"Company") are incorporated by reference into the Registration Statement:
(a) the Company's Annual Report on Form 10-KSB for the fiscal year ended
December 31, 1997, filed pursuant to the Securities Exchange Act of 1934 (the
"Exchange Act");
(b) the Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1998;
(c) the Company's Current Reports on Form 8-K as filed with the Securities
and Exchange Commission on March 12, 1998 and April 14, 1998; and
(d) the description of the Company's Common Stock, which is incorporated
by reference into the Company's Registration Statement on Form 8-A, File No.
000-22939, dated August 4, 1997, filed pursuant to the Exchange Act, as amended
by the Company's Form 8-A/A-1, dated September 18, 1997, and contained in the
Company's Registration Statement on Form S-1, File No. 333-32001 filed pursuant
to the Securities Act.
In addition, all documents filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent
to the date of the Registration Statement and prior to the filing of a
post-effective amendment which indicates that all the securities offered hereby
have been sold or which deregisters all securities then remaining unsold shall
be deemed to be incorporated herein by reference and to be a part hereof from
the date of the filing of such documents with the Commission.
Item 4. DESCRIPTION OF SECURITIES
Inapplicable
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Inapplicable
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
In its Certificate of Incorporation, the Company has adopted the provisions
of Section 102(b)(7) of the Delaware General Corporation Law (the "Delaware
Law"), which enables a corporation
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in its original certificate of incorporation or an amendment thereto to
eliminate or limit the personal liability of a director for monetary damages for
breach of the director's fiduciary duty, except (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) pursuant to Section 174 of the Delaware Law
(providing for liability of directors for unlawful payment of dividends or
unlawful stock purchases or redemptions) or (iv) for any transaction from which
a director will personally receive a benefit in money, property or services to
which the director is not legally entitled.
The Company has also adopted indemnification provisions pursuant to Section
145 of the Delaware Law, which provides that a corporation may indemnify any
persons, including officers and directors, who are, or are threatened to be
made, parties to any threatened, pending or completed legal action, suit or
proceedings, whether civil, criminal, administrative or investigative (other
than an action by or in the right of the corporation), by reason of the fact
that such person was an officer, director, employee or agent of the 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 attorney's fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding, provided such officer, director, employee or
agent acted in good faith and in a manner he reasonably believed to be in or not
opposed to the corporation's best interests and, with respect to criminal
proceedings, had no reasonable cause to believe that his conduct was unlawful.
A Delaware corporation may indemnify officers or 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. 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 expenses
(including attorney's fees) that such officer or director actually and
reasonably incurred.
The Company intends to enter into indemnification agreements with each of
its officers and directors.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Inapplicable
Item 8. EXHIBITS
EXHIBIT NO.
5 Opinion of Willkie Farr & Gallagher.
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23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Willkie Farr & Gallagher (contained in Exhibit 5).
24 Power of Attorney (reference is made to the signature page).
Item 9. UNDERTAKINGS
1. The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to the Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of
the Securities Act;
(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 paragraphs (a)(i) and (a)(ii) 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.
(b) 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.
(c) 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.
2. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act,
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each filing of the Company'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.
3. 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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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 Bellevue, State of Washington, on the 8th day of
June, 1998.
NEXTLINK Communications, Inc.
By: /s/ James F. Voelker
--------------------------
James F. Voelker
President
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POWERS OF ATTORNEY
We the undersigned officers and directors of Nextlink Communications, Inc.
hereby severally and individually constitute and appoint James F. Voelker and R.
Bruce Easter, Jr., and each of them, as the true and lawful attorney-in-fact for
the undersigned, in any and all capacities, with full power of substitution, to
sign any and all amendments to this Registration Statement (including
post-effective amendments), and to file the same with exhibits thereto and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorney-in-fact, and each of them, full power and authority
to do and perform each and every act and thing requisite and necessary to be
done in and about the premises, as fully to all intents and purposes as he might
or could do in person, hereby ratifying and confirming all that each said
attorney-in-fact, or any of them, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
Signature Title Date
/s/ Steven W. Hooper Chairman of the Board June 8, 1998
- --------------------------
Steven W. Hooper
/s/ Wayne M. Perry Vice Chairman, Chief Executive June 8, 1998
- -------------------------- Officer and Director
Wayne M. Perry
/s/ James F. Voelker President (Principal Executive June 8, 1998
- -------------------------- Officer) and Director
James F. Voelker
/s/ Kathleen H. Iskra Vice President, Chief Financial June 8, 1998
- -------------------------- Officer and Treasurer (Principal
Kathleen H. Iskra Financial Officer and Principal
Accounting Officer)
/s/ Craig O. McCaw Director June 8, 1998
- --------------------------
Craig O. McCaw
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/s/ Dennis Weibling Director June 8, 1998
- --------------------------
Dennis Weibling
/s/ Scot Jarvis Director June 8, 1998
- --------------------------
Scot Jarvis
/s/ William A. Hoglund Director June 8, 1998
- --------------------------
William A. Hoglund
/s/ Sharon L. Nelson Director May 26, 1998
- --------------------------
Sharon L. Nelson
/s/ Jeffrey S. Raikes Director June 8, 1998
- --------------------------
Jeffrey S. Raikes
/s/ Gregory J. Parker Director June 22, 1998
- --------------------------
Gregory J. Parker
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INDEX TO EXHIBITS
EXHIBIT NO. DESCRIPTION OF EXHIBIT
5 Opinion of Willkie Farr & Gallagher.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Willkie Farr & Gallagher (contained in Exhibit 5).
24 Powers of Attorney (included on signature page).
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EXHIBIT 5
Willkie Farr & Gallagher
787 Seventh Avenue
New York, NY 10019-6099
June 16, 1998
NEXTLINK Communications, Inc.
500 108th Avenue N.E., Suite 2200
Bellevue, Washington 98004
Ladies and Gentlemen:
We have acted as counsel to NEXTLINK Communications, Inc. (the "Company"), a
corporation organized under the laws of the State of Delaware, with respect to
the Company's Form S-8 Registration Statement (the "Registration Statement") to
be filed by the Company with the Securities and Exchange Commission on or about
June 15, 1998 in connection with the registration under the Securities Act of
1933, as amended (the "Act"), by the Company of an aggregate of 3,000,000 shares
of Common Stock, par value $0.02 per share (the "Common Stock"), which are
issuable upon exercise of stock options granted or to be granted under the
NEXTLINK Communications, Inc. Employee Stock Purchase Plan (the "Plan").
As counsel for the Company, we have examined, among other things, such Federal
and state laws and originals and/or copies (certified or otherwise identified to
our satisfaction) of such documents, certificates and records as we deemed
necessary and appropriate for the purpose of preparing this opinion.
Based on the foregoing, we hereby inform you that in our opinion the shares of
Common Stock to be originally issued upon exercise of stock options granted or
to be granted under the Plan have been duly and validly authorized for issuance
and, when issued in accordance with the terms of the Plan for consideration in
excess of $0.02 per share, will be validly issued, fully paid, and
nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not hereby admit that we
come within the category of persons whose consent is required under Section 7 of
the Act or the rules and regulations of the Securities and Exchange Commission.
We are members of the Bar of the State of New York and do not purport to be
experts in the laws of jurisdictions other than the State of New York, the
General Corporation Law of
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the State of Delaware and the Federal laws of the United States of America.
Very truly yours,
/s/ Willkie Farr & Gallagher
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[ARTHUR ANDERSEN LETTERHEAD]
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in the registration statement on Form S-8 filed by NEXTLINK
Communications, Inc. (the "Company") of our report dated March 12, 1998
included in the Company's Form 10-KSB for the year ended December 31, 1997
and to all references to our Firm included in the registration statement.
/s/ Arthur Andersen LLP
Seattle, Washington
June 16, 1998
