As filed with the Securities and Exchange Commission on April 1, 1998
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
--------------------
METROMEDIA FIBER NETWORK, INC.
(Exact name of registrant as specified in its charter)
Delaware 11-3168321
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
--------------------
Metromedia Fiber Network, Inc.
c/o Metromedia Fiber Network Services, Inc.
1 North Lexington Avenue
White Plains, NY 10601
(212) 687-9177 (914) 421-6700
(Address of Principal Executive Offices) (Zip Code)
METROMEDIA FIBER NETWORK, INC.
1997 INCENTIVE STOCK PLAN
and
VINCENT GALLUCCIO EMPLOYMENT AGREEMENT
and
STEPHEN GARAFALO EMPLOYMENT AGREEMENT
and
JOHN MAHON EMPLOYMENT AGREEMENT
and
JIM URBELIS EMPLOYMENT AGREEMENT
and
HOWARD FINKELSTEIN EMPLOYMENT AGREEMENT
and
BRENDA DIURO EMPLOYMENT AGREEMENT
and
LOUIS GAMBINO EMPLOYMENT AGREEMENT
and
JOHN MCLEOD EMPLOYMENT AGREEMENT
and
STEPHEN ELLIS EMPLOYMENT AGREEMENT
and
NICHOLAS TANZI EMPLOYMENT AGREEMENT
and
PHILIP RAUCH EMPLOYMENT AGREEMENT
and
JOHN RUSAK EMPLOYMENT AGREEMENT
and
GINA COLA EMPLOYMENT AGREEMENT
and
JONATHAN PALAHNUK EMPLOYMENT AGREEMENT
and
DENNIS CODLIN EMPLOYMENT AGREEMENT
and
<PAGE>
KATZ CONSULTING AGREEMENT
(Full titles of the plans)
Arnold L. Wadler
Metromedia Company
One Meadowlands Plaza
East Rutherford, NJ 07073
(Name and address of agent for service)
(201) 531-8056
(Telephone number, including area code, of agent for service)
-------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=================================================================================================================
Title of Each Class of Amount to be Proposed Maximum Offering Proposed Maximum Amount of
Securities to be Registered Registered Price Per Share Aggregate Offering Price Registration Fee
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A Common Stock,
par value $0.01 per share 175,000 $37.84(1) $6,622,000 $1,953.49
- -----------------------------------------------------------------------------------------------------------------
Class A Common Stock,
par value $0.01 per share 612,500(2) $16.00 $9,800,000 $2,891.00
- -----------------------------------------------------------------------------------------------------------------
Class A Common Stock,
par value $0.01 per share 212,500(3) $15.50 $3,293,750 $971.66
- -----------------------------------------------------------------------------------------------------------------
Class A Common Stock,
par value $0.01 per share 68,445(4) $7.63 $522,235.35 $154.06
- -----------------------------------------------------------------------------------------------------------------
Class A Common Stock,
par value $0.01 per share 2,418,390(5) $1.97 $4,764,228.30 $1,405.45
- -----------------------------------------------------------------------------------------------------------------
Class A Common Stock,
par value $0.01 per share 95,945(6) $.01 $959.46 $.28
- -----------------------------------------------------------------------------------------------------------------
Total 3,582,780(7) $25,003,173.11 $7375.94
=================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of computing the registration fee in
accordance with Rule 457(c) and 457(h) under the Securities Act of 1933,
as amended (the "Securities Act"). The Proposed Maximum Offering Price was
determined by averaging the high and low prices of the Class A Common
Stock, $.01 per share par value ("Class A Common Stock") of Metromedia
Fiber Network, Inc. (the "Company") as reported by the NASDAQ National
Market System, the automated quotation system of the National Association
of Securities Dealers, Inc, on March 26, 1998.
(2) Consists of shares of Class A Common Stock with respect to which options
have been granted under stock option agreements at an exercise price of
$16.00.
(3) Consists of shares of Class A Common Stock with respect to which options
have been granted under stock option agreements at an exercise price of
$15.50.
(4) Consists of shares of Class A Common Stock with respect to which options
have been granted under stock option agreements at an exercise price of
$7.63.
(5) Consists of shares of Class A Common Stock with respect to which options
have been granted under stock option agreements at an exercise price of
$1.97.
(6) Consists of up to 85,945 shares of Class A Common Stock with respect to
which options have been granted under stock option agreements at an
exercise price of $.01.
(7) Consists of 1,000,000 shares of Class A Common Stock to be issued to
certain directors, key employees and officers of Metromedia Fiber Network,
Inc. or any of its subsidiaries upon the exercise by such persons of
options granted to them pursuant to the Metromedia Fiber Network, Inc.
1997 Incentive Stock Plan and 2,582,780 shares of Class A Common Stock to
be issued to certain employees and consultants of the Company
(specifically Vincent Galluccio, Stephen Garofalo, John Mahon, Jim
Urbelis, Howard Finkelstein, Brenda Diuro, Louis Gambino, John McLeod,
Stephen Ellis, Nicholas Tanzi, Philip Rauch, John Rusak, Gina
<PAGE>
Cola, Jonathan Palahnuk, Dennis Codlin and Howard Katz) upon exercise by
such persons of options granted to them pursuant to the terms of their
individual employment or consulting agreements.
================================================================================
<PAGE>
EXPLANATORY NOTE
The Section 10(a) prospectuses being delivered by Metromedia Fiber
Network, Inc. (the "Company") to participants in the Metromedia Fiber Network,
Inc. 1997 Incentive Stock Plan (the "Plan") and to Vincent Galluccio, Stephen
Garofalo, John Mahon, Jim Urbelis, Howard Finkelstein, Brenda Diuro, Louis
Gambino, John McLeod, Stephen Ellis, Nicholas Tanzi, Philip Rauch, John Rusak,
Gina Cola, Jonathan Palahnuk, Dennis Codlin and Howard Katz (collectively, the
"Employees") pursuant to their individual employment and consultant agreements
with the Company (the "Employment Agreements") as required by Rule 428 under the
Securities Act of 1933, as amended (the "Securities Act"), have been prepared in
accordance with the requirements of Form S-8 and relate to shares of Class A
Common Stock, par value $0.01 per share, of the Company (the "Class A Common
Stock") which have been reserved for issuance pursuant to the Plan and the
Employment Agreements. The information regarding the Plan and the Employment
Agreements required in the Section 10(a) prospectuses is included in documents
being maintained and delivered by the Company as required by Rule 428 under the
Securities Act. The Company shall provide to participants in the Plan and each
of the Employees a written statement advising them of the availability without
charge, upon written or oral request, of documents incorporated by reference
herein, as is required by Item 2 of Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by Metromedia Fiber Network, Inc. (the
"Company") with the Securities and Exchange Commission (the "Commission") are
incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1997 (File No. 0-23269).
2. The description of the Company's Class A Common Stock, par value
$0.01 per share, contained in the Company's Registration Statement on Form 8-A,
dated October 28, 1997, including any amendment or report filed for the purpose
of updating such description (File No. 0-23269).
All other documents filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Securities Act of 1934, as amended, subsequent to the
date of this registration statement and prior to the filing of a post-effective
amendment which indicates that all securities registered hereby 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 part hereof
from the date of filing of such documents.
Item 4. Description of Securities
Not Applicable.
<PAGE>
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Section 145(a) of the General Corporation Law of the State of
Delaware provides that a Delaware 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, administrative 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 corporation or enterprise,
against expenses, judgments, fines and amounts 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 no cause to believe his conduct was unlawful.
Section 145(b) provides that a Delaware 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 or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person acted in any of the capacities set forth above, against expenses actually
and reasonably incurred by him in connection with the defense or settlement of
such action or suit if he acted under similar standards, except that no
indemnification may 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 court in which such action or suit was brought shall
determine that despite the adjudication of liability, such person is fairly and
reasonably entitled to be indemnified for such expenses which the court shall
deem proper.
Section 145 further provides that to the extent a director or
officer of a corporation has been successful in the defense of any action, suit
or proceeding referred to in subsections (a) and (b) or in the defense of any
claim, issue, or matter therein, he shall be indemnified against expenses
actually and reasonably incurred by him in connection therewith; that
indemnification provided for by Section 145 shall not be deemed exclusive of any
other rights to which the indemnified party may be entitled; and that the
corporation may purchase and maintain insurance on behalf of a director or
officer of the corporation against any liability asserted against him or
incurred by him in any such capacity or arising out of his status as such
whether or not the corporation would have the power to indemnify him against
such liabilities under such Section 145.
Section 102(b)(7) of the General Corporation Law provides that a
corporation in its original certificate of incorporation or an amendment thereto
validly approved by stockholders may eliminate or limit personal liability of
the members of its board of directors or governing body for breach of a
director's fiduciary duty. However, no such provision may eliminate or limit the
liability of a director for breaching his duty of loyalty, failing to act in
good faith, engaging in intentional misconduct or knowingly violating a law,
paying a dividend or approving a stock repurchase which was illegal, or
obtaining an improper personal benefit. A provision of this type has no effect
on the
<PAGE>
availability of equitable remedies, such as injunction or rescission, for breach
of fiduciary duty. The Company's Charter contains such a provision.
The Company's Charter further provides that the Company shall
indemnify its officers and directors and, to the extent authorized by the Board
of Directors, employees and agents of the Company, to the fullest extent
permitted by and in the manner permissible under the laws of the State of
Delaware.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
Exhibits
- --------
4.1 -- Amended and Restated Certificate of Incorporation of the Company, as
amended (incorporated by reference from the Company's Registration
Statement on Form S-1 (Registration No. 333-33653)).
4.2 -- Amended and Restated By-laws of the Company (incorporated by
reference from the Company's Registration Statement on Form S-1
(Registration No. 333-33653)).
5.1 -- Opinion of Paul, Weiss, Rifkind, Wharton & Garrison, counsel to the
Company, regarding the legality of the Class A Common Stock being
registered.
23.1 -- Consent of Ernst & Young, LLP.
23.2 -- Consent of M.R. Weiser & Co., LLP.
23.3 -- Consent of Paul, Weiss, Rifkind, Wharton & Garrison (included in
Exhibit 5).
24 -- Power of Attorney (included on signature page).
Item 9. Undertakings
(a) The undersigned registrant hereby undertakes: (i) to file,
during any period in which offers or sales are being made, a post-effective
amendment to this registration statement to include any material information
with respect to the plan of distribution not previously disclosed in this
registration statement or any material change to such information in this
registration statement; (ii) 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; and (iii) 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.
<PAGE>
(b) The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, as amended, each
filing of the registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934, as amended, that is incorporated
by reference in this 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, as amended, may be permitted to directors, officers and
controlling persons of the registrant pursuant to the registrant's Certificate
of Incorporation or by-laws, by contract, 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.
<PAGE>
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 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 New York, State of New York, on March 30, 1998.
METROMEDIA FIBER NETWORK, INC.
By: /s/ Stephen A. Garofalo
--------------------------------------------
Stephen A. Garofalo
Chairman of the Board, Chief Executive
Officer and Secretary
We, the undersigned officers and directors of Metromedia Fiber
Network, Inc. hereby severally constitute Arnold L. Wadler, Howard Finkelstein
and Stephen A. Garofalo our true and lawful attorneys, and each of them singly,
with full power to sign for us and in our names in the capacities indicated
below, any and all amendments, including post-effective amendments, to this
registration statement, and generally do all such things in our name and behalf
in such capacities to enable Metromedia Fiber Network, Inc. to comply with the
applicable provisions of the Securities Act of 1933, as amended, and all
requirements of the Securities and Exchange Commission, and we hereby ratify and
confirm our signatures as they may be signed by our said attorney to any and all
such amendments.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed by the following persons in
the capacities and on the dates indicated:
Signatures Title or Capacities Date
---------- ------------------- ----
/s/ Stephen A. Garofalo Chairman of the Board, Chief March 30, 1998
- ------------------------------- Executive Officer and Secretary
Stephen A. Garofalo
/s/ Howard M. Finkelstein President, Chief Operating March 30, 1998
- ------------------------------- Officer and Director
Howard M. Finkelstein
/s/ Gerard Benedetto Vice President, Chief Financial March 30, 1998
- ------------------------------- Officer and Chief Accounting
Gerard Benecetto Officer
<PAGE>
Signatures Title or Capacities Date
---------- ------------------- ----
/s/ Vincent A. Gallucio Senior Vice President March 30, 1998
- ------------------------------- and Director
Vincent A. Gallucio
/s/ Silvia Kessel Director March 30, 1998
- -------------------------------
Silvia Kessel
/s/ John W. Kluge Director March 30, 1998
- -------------------------------
John W. Kluge
/s/ David Rockefeller Director March 30, 1998
- -------------------------------
David Rockefeller
/s/ Stuart Subotnick Director March 30, 1998
- -------------------------------
Stuart Subotnick
/s/ Arnold L. Wadler Director March 30, 1998
- -------------------------------
Arnold L. Wadler
/s/ Leonard White Director March 30, 1998
- -------------------------------
Leonard White
<PAGE>
INDEX TO EXHIBITS
Exhibits
- --------
4.1 -- Amended and Restated Certificate of Incorporation of the Company, as
amended (incorporated by reference from the Company's Registration
Statement on Form S-1 (Registration No. 333-33653)).
4.2 -- Amended and Restated By-laws of the Company (incorporated by reference
from the Company's Registration Statement on Form S-1 (Registration
No. 333-33653)).
5.1 -- Opinion of Paul, Weiss, Rifkind, Wharton & Garrison, counsel to the
Company, regarding the legality of the Class A Common Stock being
registered.
23.1 -- Consent of Ernst & Young, LLP.
23.2 -- Consent of M.R. Weiser & Co., LLP.
23.3 -- Consent of Paul, Weiss, Rifkind, Wharton & Garrison (included in
Exhibit 5).
24 -- Power of Attorney (included on signature page).
[Letterhead of Paul, Weiss, Rifkind, Wharton & Garrison]
March 31, 1998
Metromedia Fiber Network, Inc.
One North Lexington Avenue
White Plains, NY 10601
Ladies and Gentlemen:
In connection with the Registration Statement on Form S-8 (the
"Registration Statement") filed by Metromedia Fiber Network, Inc., a Delaware
corporation (the "Company"), with the Securities and Exchange Commission under
the Securities Act of 1933, as amended (the "Act"), and the rules and
regulations under the Act (the "Rules"), which relates to the 1,000,000 shares
(the "Plan Shares") of Class A Common Stock, par value $0.01 per share, of the
Company (the "Class A Common Stock") with respect to which options have been
granted under the Metromedia Fiber Network, Inc. 1997 Incentive Stock Plan (the
"Plan") and the 2,577,780 shares (the "Employee Shares") of Class A Common
<PAGE>
2
Metromedia Fiber Network, Inc.
Stock with respect to which options have been granted to certain employees and
consultants of the Company under the terms of their individual agreements, we
have been requested by the Company to render this opinion as to the legality of
the Shares.
In this connection, we have examined originals or copies certified
or otherwise identified to our satisfaction, of the following:
(i) the Registration Statement;
(ii) the Plan;
(iii) the letter of employment from the Company to Vincent Gallucio
dated May 9, 1997;
(iv) the employment agreement between Stephen Garofalo and the
Company dated February 26, 1997;
(v) the letter of employment from the Company to John Mahon dated
May 9, 1997;
(vi) the letter of employment from the Company to James Urbelis
dated May 9, 1997;
(vii) the employment agreement between Howard Finkelstein and the
Company dated April 30, 1997;
(viii) the letter of employment from the Company to Brenda Diuro
dated May 9, 1997;
(ix) the letter of employment from the Company to Louis Gambino;
<PAGE>
3
Metromedia Fiber Network, Inc.
(x) the letter of employment from the Company to John McLeod dated
June 16, 1997;
(xi) the letter of employment from the Company to Stephen Ellis
dated June 4, 1997;
(xii) the letter of employment from the Company to Nicholas Tanzi
dated June 13, 1997;
(xiii) the letter of employment from the Company to Philip Rauch
dated May 9, 1997;
(xiv) the letter of employment from the Company to John Rusak dated
June 13, 1997;
(xv) the letter of employment from the Company to Gina Cola dated
May 8, 1997;
(xvi) the letter of employment from the Company to Jonathan Palahnuk
dated May 8, 1997;
(xvii) the letter of employment from the Company to Dennis Codlin
dated August 7, 1997;
(xviii) the letter agreement among the Company, Realprop Capital
Corp., Howard Katz, Evelyn Katz, Lauren Katz and Stephen Katz, dated February
11, 1997, as amended;
(xix) the Certificate of Incorporation and the By-laws of the
Company, each as amended to date; and
<PAGE>
4
Metromedia Fiber Network, Inc.
(xx) all corporate records of the Company and all other documents as
we have considered necessary in order to form a basis for the opinion expressed
below.
Items (iii) through (xviii) listed above are referred to
collectively as the "Employment Agreements."
In our examination of the above documents, we have assumed, without
independent investigation, the genuineness of all signatures, the authenticity
of all documents submitted to us as originals, the conformity to original
documents of all documents submitted to us as certified photostatic, reproduced
or conformed copies of valid existing agreements or other documents, the
authenticity of all latter documents and the legal capacity of all individuals
who have executed any of the documents. As to certain matters of fact, we have
relied on representations, statements or certificates of officers of the Company
and of public authorities.
Based on the foregoing, and subject to the assumptions, exceptions
and qualifications stated in this letter, we are of the opinion that (i) the
Plan Shares have been duly authorized for issuance and that the Plan Shares,
when issued and delivered by the Company and paid for in accordance with the
terms and provisions of the Plan, will be validly issued, fully paid and
nonassessable, and (ii) the Employee Shares have been duly authorized for
issuance and that the Employee Shares, when issued and delivered by the Company
and paid for in accordance with the terms and
<PAGE>
Metromedia Fiber Network, Inc. 5
provisions of the applicable Employment Agreements, will be validly issued,
fully paid and nonassessable.
Our opinion expressed above is limited to the General Corporation
Law of the State of Delaware. Our opinion is also rendered only with respect to
the laws and the rules, regulations and orders under them, which are currently
in effect. Please be advised that no member of this firm is admitted to practice
in the State of Delaware. We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement. In giving this consent, we do not agree
that we come within the category of persons whose consent is required by the Act
or the Rules.
Very truly yours,
PAUL, WEISS, RIFKIND, WHARTON & GARRISON
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Metromedia Fiber Network, Inc. 1997 Incentive Stock
Option Plan and options granted to individuals pursuant to employment agreements
of our report dated March 16, 1998, with respect to the consolidated financial
statements and schedule of Metromedia Fiber Network, Inc. as at and for the year
ended December 31, 1997 and 1996 included in its Annual Report (Form 10-K) for
the year ended December 31, 1997, filed with the Securities and Exchange
Commission.
ERNST & YOUNG LLP
New York, New York
March 27, 1998
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Metromedia Fiber Network, Inc. 1997 Incentive Stock
Option plan and options granted to individuals pursuant to employment agreements
of our report dated June 26, 1996, with respect to the consolidated financial
statements of Metromedia Fiber Network, Inc. for the year ended December 31,
1995 included in its Annual Report (Form 10-K) for the year ended December 31,
1997, filed with the Securities and Exchange Commission. Our report includes an
explanatory paragraph regarding an uncertainty as to the Company's ability to
continue as a going concern.
/s/ M.R. Weiser & Co. LLP
------------------------------
M.R. Weiser & Co. LLP
New York, New York
March 27, 1998
