As filed with the Securities and Exchange Commission on July 29, 1999
Registration No. 333-49439
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
TIME WARNER TELECOM INC.
(Exact name of registrant as specified in its charter)
DELAWARE 84-1500624
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
5700 S. Quebec Street
Greenwood Village, CO 80111
(303) 566-1000
(Address of Principal Executive Offices) (Zip Code)
Time Warner Telecom Inc. 1998 Stock Option Plan
(Full title of the Plan)
David J. Rayner
Senior Vice President and Chief Financial Officer
Time Warner Telecom Inc.
5700 S. Quebec Street
Greenwood Village, CO 80111
(Name and Address of agent for service)
(303) 566-1000
(Telephone number, including area code, of agent for service)
Copy to:
William P. Rogers, Jr.
Cravath, Swaine & Moore
Worldwide Plaza
825 Eighth Avenue
New York, NY 10019-7415
(212) 474-1270
<TABLE>
<CAPTION>
Proposed Proposed
Maximum Maximum
Title of Securities Amount to be Offering Price Aggregate Amount of
to be Registered Registered (1) Per Share (2) Offering Price (2) Registration Fee
- ------------------ -------------- --------------- ------------------ ----------------
<S> <C> <C> <C> <C>
Class A Common Stock, 9,027,000 $17.78994 $160,589,815.63 $44,643.97
par value $.01 per share
("Class A Common
Stock")
</TABLE>
(1) This Registration Statement also relates to an indeterminate number of
additional shares of Class A Common Stock pursuant to anti-dilution and
adjustment provisions of the above-referenced plan.
(2) Estimated solely for purposes of calculating the registration fee,
pursuant to Rules 457(c) and (h) based on the weighted average of: (1)
with respect to options that have already been granted, the exercise
price of such options and (2) with respect to options that have not yet
been granted, the average of the high and low prices of the Class A
Common Stock as reported on the New York Stock Exchange Composite Tape of
July 26, 1999, on which day such average was $29.96875.
<PAGE>
PART II
This Registration Statement on Form S-8 registers 9,027,000 shares of the
Registrant's Class A Common Stock for issuance pursuant to the terms of the
Time Warner Telecom Inc. 1998 Stock Option Plan (the "Plan").
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange Commission
by the Registrant (File No. 333-49439) pursuant to the Securities Exchange Act
of 1934, or as otherwise indicated, are hereby incorporated by reference in
this Registration Statement:
1. The Annual Report of Time Warner Telecom LLC, predecessor to the
Registrant, on Form 10-K for the year ended December 31, 1998 (the
"1998 Form 10-K");
2. The Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1999; and
3. The description of the Registrant's Class A Common Stock, par value
$.01 per share, contained in its Registration Statement on Form S-1,
as filed with the SEC on May 11, 1999, pursuant to Section 12(b) of
the Securities Exchange Act of 1934.
All documents and reports subsequently filed by the Registrant pursuant
to Sections 13(a) and (c), 14 or 15(d) of the Securities Exchange Act of 1934
after the date of this Registration Statement and prior to the filing of a
post-effective amendment to this Registration Statement which indicates that
all securities offered hereby have been sold, or which deregisters all such
securities 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 or reports. Any statement, information or document
incorporated hereby by reference or deemed to be incorporated herein by
reference and to be a part hereof may be automatically updated or replaced by
documents the Registrant subsequently files which also are or are deemed to be
incorporated herein by reference. Any statement, information or document so
modified or superseded will not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Article VI of the Restated Certificate of Incorporation (the "Restated
Certificate of Incorporation") of Time Warner Telecom Inc. (the "Company")
provides that to the fullest extent permitted under the General Corporation
Law of the State of Delaware (the "DGCL"), a director of the Company shall not
be personally liable to the Company or its stockholders for monetary damages
for breach of fiduciary duty as a director.
Section 102(b)(7) of the DGCL, provides that a corporation may eliminate
or limit the personal liability of a director (or certain persons who,
pursuant to the provisions of the certificate of incorporation, exercise or
perform duties conferred or imposed upon directors by the DGCL) to the
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corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, provided that such provisions shall not eliminate or limit
the liability of a director:
o for any breach of the director's duty of loyalty to the corporation
or its stockholders,
o for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law,
o under Section 174 of the DGCL (providing for liability of directors
for unlawful payment of dividends or unlawful stock purchases or
redemptions) or
o for any transaction from which the director derived an improper
personal benefit.
Section 145 of the DGCL provides that a corporation may indemnify
directors and officers as well as other employees and individuals against
expenses (including attorney' fees), judgments, fines, and amounts paid in
settlement in connection with specified actions, suits or proceedings, whether
civil, criminal, administrative or investigative (other than an action by or
in the right of the corporation--a "derivative action"), if they acted in good
faith and in a manner they reasonably believed to be in or not opposed to the
best interests of the corporation and, with respect to any criminal actions or
proceedings, had no reasonable cause to believe their conduct was unlawful. A
similar standard is applicable in the case of derivative actions, except that
indemnification only extends to expenses (including attorneys' fees) actually
and reasonably incurred in connection with the defense or settlement or such
action, and the statute requires court approval before there can be any
indemnification where the person seeking indemnification that may be granted
by a corporation's charter, by-laws, disinterested director vote, stockholder
vote, agreement or otherwise. Article VIII of the TWT Charter provides that
TWT shall indemnify its officers, directors, employees and agents to the full
extent permitted by Delaware law.
The By-laws of Time Warner Inc. ("TWI") require indemnification to the
fullest extent permitted under Delaware of any person who is or was a director
or officer of TWI who is or was involved or threatened to be made so involved
in any action, suit or proceeding, whether criminal, civil, administrative or
investigative, by reason of the fact that such person is or was serving at the
request of TWI as a director, officer or employee of any other enterprise. Mr.
Bressler, a director of the Registrant, would be covered by this provision.
The Directors' and Officers' Liability and Reimbursement Insurance Policy of
TWI is designed to reimburse TWI for any payments made by it pursuant to the
foregoing indemnification. The policy has coverage of $50,000,000.
The Agreement of Limited Partnership of Time Warner Entertainment
Company, L.P. ("TWE") provides that TWE shall indemnify, defend and hold
harmless each officer of TWE from any personal liability he or she may incur
by reason of his or her action on behalf of TWE to the fullest extent
permitted as if TWE were a Delaware corporation. Messrs. Bressler, Britt,
Davies and Rossetti, directors of the Registrant, would be covered by this
provisions.
The By-laws of MediaOne Group, Inc. ("MediaOne") require indemnification
to the fullest extent permitted under Delaware law of any person who is or was
a director, officer or employee of MediaOne, or was otherwise designated as an
indemnified representative (as defined in the MediaOne By-laws) by MediaOne,
against any liability (as defined in the MediaOne By-laws) incurred by such
person in connection with any proceeding (as defined in the MediaOne By-laws)
in which such person is involved by reason of their past, present or future
services for, or at the request of, MediaOne as a director, officer, employee,
agent, fiduciary or trustee of any other entity or enterprise. Messrs. Holmes,
McPhie, Williams and Webster, directors of the Registrant, are covered by this
provision.
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<PAGE>
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The exhibits listed on the accompanying Exhibit Index are filed or
incorporated by reference as part of this Registration Statement.
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 this 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 end of the estimated maximum offering
range may be reflected in the form of prospectus filed
with the SEC 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;
(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, Form 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 SEC by the
Registrant pursuant to Section 13 or 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 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
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<PAGE>
Section 13(a) or 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.
(h) 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.
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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 Denver, Colorado, on July 27 , 1999.
TIME WARNER TELECOM INC.
By: /s/ David J. Rayner
------------------------------------
Name: David J. Rayner
Title: Senior Vice President and
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed below by the following persons on July 27, 1999 in
the capacities indicated.
Signature Title Date
(i) Principal Executive Officer:
/s/ Larissa L. Herda President and Chief July 27, 1999
- ---------------------------- Executive Officer
Larissa L. Herda and Director
(ii) Principal Financial Officer:
/s/ David J. Rayner Senior Vice July 27, 1999
- ---------------------------- President and Chief
David J. Rayner Financial Officer
(iii) Principal Accounting Officer:
/s/ Jill Stuart Vice President, Accounting
- ---------------------------- and Finance and Chief July 27, 1999
Jill Stuart Accounting Officer
(iv) Directors
/s/ Larissa L. Herda
- ----------------------------
Larissa L. Herda Director July 27, 1999
/s/ Richard J. Bressler
- ---------------------------- Director July 27, 1999
Richard J. Bressler
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<PAGE>
/s/ Glenn A. Britt
- ----------------------------
Glenn A. Britt Director July 27, 1999
/s/ Richard J. Davies
- ----------------------------
Richard J. Davies Director July 27, 1999
/s/ Douglas Holmes
- ----------------------------
Douglas Holmes Director July 27, 1999
/s/ Stephen A. McPhie
- ----------------------------
Stephen A. McPhie Director July 27, 1999
/s/ Robert J. Miron
- ----------------------------
Robert J. Miron Director July 27, 1999
/s/ Audley M. Webster
- ----------------------------
Audley M. Webster Director July 27, 1999
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<PAGE>
EXHIBIT INDEX
Exhibit
Number Description Page
4.1 Restated Certificate of Incorporation of *
the Registrant as filed with the Secretary
of State of the State of Delaware on May
10, 1999 (which is incorporated herein by
reference to Exhibit 3.1 to the
Registrants' Registration Statement on Form
S-1 as filed with the SEC on May 11, 1999
(Registration No.333-4944439 S-1"))
4.2 By-laws of the Registrant as of May 10, *
1999 (which are incorporated herein by
reference to Exhibit 3.2 to the
Registrant's 1999 S-1).
5. Opinion of Cravath, Swaine & Moore
regarding the legality of the securities
being registered.
23.1 Consent of Ernst & Young LLP, Independent
Auditors.
23.2 Consent of Cravath, Swaine & Moore (which *
is incorporated herein by reference to
Exhibit 5)
- -------------
* Incorporatd by reference.
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EXHIBIT 5
[Letterhead of]
CRAVATH, SWAINE & MOORE
[New York Office]
July 27, 1999
Time Warner Telecom Inc.
Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel for Time Warner Telecom
Inc., a Delaware corporation (the "Company") in connection
with the registration by the Company of 9,027,000 shares of
Class A Common Stock, par value $.01 per share, (the
"Shares") pursuant to a Registration Statement on Form S-8
(the "Registration Statement"), to which this opinion is
being filed as an exhibit. The Shares are proposed to be
issued pursuant to the 1998 Stock Option Plan of the Company
(the "Plan").
In that connection, we have examined originals, or
copies certified or otherwise identified to our satisfaction,
of such documents, corporate records and other instruments as
we have deemed necessary or appropriate for the purposes of
our opinion, including (a) the Restated Certificate of
Incorporation of the Company; (b) the By-laws of the Company;
(c) certain resolutions adopted by the Board of Directors of
the Company; and (d) the Plan.
Based on the foregoing and subject to the
qualifications set forth herein, we are of opinion that:
1. The Company is a corporation validly
existing and in good standing under the laws of the
State of Delaware; and
2. When the Shares are issued in accordance
with the terms of the Plan, the Shares will be duly
authorized, validly issued, fully paid and
nonassessable.
<PAGE>
2
We are admitted to practice in the State of New
York and express no opinion as to matters governed by any
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 of America.
We hereby consent to the filing of this opinion as
Exhibit 5 to the Registration Statement. In giving this
consent, we do not thereby admit that we are within the
category of persons whose consent is required under Section 7
of the Securities Act or the Rules and Regulations of the
Commission promulgated thereunder.
Very truly yours,
/s/ Cravath, Swaine & Moore
Time Warner Telecom Inc.
5700 South Quebec Street
Greenwood Village, CO 80111
O
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference of our report dated February 5,
1999, with respect to the combined financial statements and schedule of Time
Warner Telecom LLC, predecessor to Time Warner Telecom Inc., included in its
Annual Report (Form 10-K) for the year ended December 31, 1998, filed with the
Securities and Exchange Commission, in the Registration Statement (Form S-8)
pertaining to the Time Warner Telecom Inc. 1998 Stock Option Plan.
/s/ERNST & YOUNG LLP
Denver, Colorado
July 27, 1999
