SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ELECTRIC LIGHTWAVE, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
Delaware 93-1035711
(State of Incorporation) (I.R.S. Employer Identification No.)
4400 N.E. 77th Avenue, Vancouver, WA 98662
(Address of Principal Executive Offices) (Zip Code)
Electric Lightwave, Inc. 1997 Equity Incentive Plan
(Full title of the plan)
Kerry D. Rea
Electric Lightwave, Inc.
4400 N.E. 77th Avenue
Vancouver, WA 98662
(Name and address of agent for service)
(360) 892-1000
(Telephone number, including area code,
of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<S> <C> <C> <C> <C>
==================================================================================================================
Title of Securities to Be Amount to Be Proposed Maximum Proposed Maximum Amount of
Registered Registered (1) Offering Price Per Aggregate Offering Registration
Share (1) Price (1) Fee (1)
- ------------------------------------------------------------------------------------------------------------------
Class A Common Stock, par 4,170,600 $8.875 $37,014,075 $10,919.15
value $.01 per Share(2)
==================================================================================================================
</TABLE>
(1) Calculated under Rule 457(h) with respect to the estimated maximum
number of registrant's securities issuable under the Plan at a price
per share of $8.875, the average of the reported high and low prices
on the NASDAQ National Market on August 6, 1998.
(2) In addition to the 4,170,600 shares of Class A Common Stock registered
hereby, the Registrant also hereby registers options under the Plan to
purchase Class A Common Stock of the Company issuable upon voluntary
surrender of existing options under the Plan, to the extent that the
same may be, and are required to be, registered.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by Electric Lightwave, Inc. ("ELI" or the
"Company") with the Securities and Exchange Commission ("Commission") pursuant
to the Securities Exchange Act of 1934 ("Exchange Act") are hereby incorporated
by reference in this Registration Statement:
1. The Company's Annual Report on Form 10-K for the year ended December
31, 1997, as supplemented.
2. The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 1998.
3. The Company's Current Reports on Form 8-K filed on February 19,
March 23, May 6, July 14, July 28, and August 7, 1998.
All documents filed by the Company and the Electric Lightwave, Inc.
1997 Equity Incentive Plan ("Plan") pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act, after the date of this Registration Statement and
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which de-registers 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.
ELI will provide without charge to each person to whom a copy of the
material describing the Plan is delivered, upon the written or oral request, a
copy of each document incorporated by reference in Item 3 of Part II of the
Registration Statement (not including the exhibits to such documents, unless
such exhibits are specifically incorporated by reference in such documents).
Such documents are incorporated by reference in the documents comprising the
prospectus. ELI will also provide without charge, upon written or oral request,
copies of other documents required to be delivered to participating employees
pursuant to Rule 428(b) under the Securities Act of 1933. Requests for such
copies should be directed to Electric Lightwave, Inc. 1997 Equity Incentive
Plan, Corporate Human Resources, Electric Lightwave, Inc., 4400 N.E. 77th
Avenue, Vancouver, WA 98662 (telephone: (360) 892-1000).
Item 4. DESCRIPTION OF SECURITIES
ELI's Class A Common Stock is registered under Section 12 of the
Exchange Act.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
None.
<PAGE>
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company, being incorporated under the Delaware General Corporation
Law, is empowered by Section 145 of such law to indemnify officers and directors
against certain expenses, liabilities and payments, including liabilities
arising under the Securities Act of 1933, as amended, as therein provided. In
addition, the By-Laws of the Company provide for indemnification of specified
persons, including officers and directors of the Company, for liabilities
arising under said Act.
Insurance is maintained providing coverage for the Company against
obligations incurred as a result of indemnification of officers and directors.
The coverage also insures the officers and directors for a liability against
which they may not be indemnified by the Company but excludes specified
dishonest acts.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
No restricted securities will be reoffered or resold pursuant to the
Registration Statement.
Item 8. EXHIBITS
EXHIBIT NO. DESCRIPTION
4.1 Amended and Restated Certification of Incorporation of
Electric Lightwave, Inc. is incorporated by reference to
Exhibit 3.1 to the Registration Statement on Form S-1, File
No. 333-35227.
5 Opinion of Counsel as to legality of Common Stock being
issued.
23 Consent of KPMG Peat Marwick LLP.
24 Powers of Attorney.
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. 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) 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 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement.
<PAGE>
(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 (a)(1)(ii) do not apply
if the registration statement is on Form S-3, S-8 or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 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 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 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
Securities Exchange Act of 1934 (and, where applicable, each filing of the
Plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) 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.
<PAGE>
SIGNATURES
The Registrant. 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, thereunder
duly authorized, in the City of Vancouver, and State of Washington, on this
seventh day of August, 1998.
ELECTRIC LIGHTWAVE, INC.
By: /s/ Kerry D. Rea
-----------------------------
Kerry D. Rea
Vice President and Controller
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
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<S> <C>
SIGNATURE TITLE DATE
LEONARD TOW* Chairman of the Board, Member,
- ------------------------ Executive Committee and Director August 4, 1998
(Leonard Tow)
DARYL A. FERGUSON* Vice Chairman, Chief Executive
- ------------------------ Officer, Member, Executive August 4, 1998
(Daryl A. Ferguson) Committee
ROBERT J. DESANTIS* Chief Financial Officer, Vice
- ------------------------ President and Treasurer August 4, 1998
(Robert J. DeSantis)
KERRY D. REA Vice President and Controller August 7, 1998
- ------------------------
(Kerry D. Rea)
- ------------------------ Director
(Guenther E. Greiner)
STANLEY HARFENIST* Director August 4, 1998
- ------------------------
(Stanley Harfenist)
DAVID B. SHARKEY* President, Chief Operating Officer,
- ------------------------ Member, Executive Committee and
(David B. Sharkey) Director August 4, 1998
ROBERT A. STANGER* Director August 4, 1998
- ------------------------
(Robert A. Stanger)
MAGGIE WILDEROTTER* Director August 4, 1998
- ------------------------
(Maggie Wilderotter)
*BY: /s/ KERRY D. REA
- -----------------------
Attorney-in-fact
</TABLE>
<PAGE>
EXHIBIT INDEX
-------------
EXHIBIT NO. DESCRIPTION
5 Opinion of Counsel
23 Consent of KPMG Peat Marwick LLP
24 Powers of Attorney
<PAGE>
EXHIBIT 5
Winthrop, Stimson, Putnam & Roberts
One Battery Park Plaza
New York, NY 10004-1490
(212) 858-1000
July 31, 1998
Electric Lightwave, Inc.
8100 N.E. Parkway Drive
Ste. 150
Vancouver, WA 98662-6461
Gentlemen:
As counsel to Electric Lightware, Inc., a Delaware corporation
(the "Company"), in connection with the registration under the Securities Act of
1933 (the "Act"), of up to 4,170,600 shares (subject to adjustment) of Class A
common stock of the Company (the "Stock") to be sold or delivered by the Company
from time to time pursuant to the Electric Lightwave, Inc. 1997 Equity Incentive
Plan ("Plan"), we have examined the registration statement on Form S-8 (the
"Registration Statement") in regard thereto, filed under the Act, and such other
documents as we have considered necessary for the purposes of this opinion.
Based upon such examination, we hereby advise you that:
(1) We are of the opinion that the Company is a corporation
validly organized and duly existing under the laws of the State of Delaware. We
are further of the opinion that, in the event that originally issued shares of
Class A common stock of the Company shall be offered and sold, or granted to
Plan participants, pursuant to the provisions of the Plan (the "Offered Stock"),
and such Offered Stock is sold or delivered in accordance with the Plan and the
Registration Statement, and when the steps enumerated in Paragraph (2) hereof
shall have been taken, the Offered Stock will be legally issued, fully paid and
nonassessable shares of the capital stock of the Company.
(2) The steps which are referred to in the foregoing Paragraph
(1) hereof are:
(a) It shall be determined that the public utilities
commissions of the states of Arizona, California, Idaho,
Oregon, Utah and Washington, and any other state with
respect to which the Company conducts, or shall have
sought authority to conduct, a telecommunications
business, shall be without jurisdiction, or shall have
declined to exercise jurisdiction, over the issuance and
sale of the Offered Stock;
(b) The applicable provisions of the Act shall have been
complied with; and
(c) The Offered Stock shall have been duly issued and
paid for and any restrictions on transferability shall
have lapsed, and any conditions based on performance, the
passage of time or any other matter or matters shall have
been fulfilled and satisfied.
In rendering the foregoing opinion we express no opinion as to
laws other than the laws of the State of New York, the General Corporation Law
of the State of Delaware and the Federal laws of the United States.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement.
Very truly yours,
/s/ Winthrop, Stimson, Putnam & Roberts
<PAGE>
EXHIBIT 23
The Board of Directors
Electric Lightwave, Inc.
We consent to the incorporation by reference in the registration statement on
Form S-8 of Electric Lightwave, Inc. of our reports dated March 10, 1998,
relating to the balance sheets of Electric Lightwave, Inc. as of December 31,
1997 and 1996, and the related statements of operations, stockholders' equity
and cash flows for each of the years in the three-year period ended December 31,
1997, and the related schedule, which reports appeared in the December 31, 1997
annual report on Form 10-K of Electric Lightwave, Inc.
/s/ KPMG Peat Marwick LLP
New York, New York
August 7, 1998
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer
or director of ELECTRIC LIGHWAVE, INC. (the "Company") constitutes and appoints,
jointly and severally, for him or her, in any and all capacities, one or more
Registration Statements on Form S-8 of the Company, and any and all amendments
to said Form S-8, and to file the same, with the Securities and Exchange
Commission, hereby ratifying and confirming all that each of said
attorneys-in-fact, or his substitute or substitutes may do or cause to be done
by virtue hereof.
August 4, 1998
By: /s/ LEONARD TOW
-----------------------
Leonard Tow
By: /s/ DARYL A. FERGUSON
-----------------------
Daryl A. Ferguson
By: /s/ ROBERT J. DESANTIS
-----------------------
Robert J. DeSantis
By: /s/ STANLEY HARFENIST
-----------------------
Stanley Harfenist
By: /s/ DAVID B. SHARKEY
-----------------------
David B. Sharkey
By: /s/ ROBERT A. STANGER
-----------------------
Robert A. Stanger
By: /s/ MAGGIE WILDEROTTER
-----------------------
Maggie Wilderrotter
