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As filed with the Securities and Exchange Commission on May 5, 1999
Registration No. 333-70769
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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ALLEGIANCE TELECOM, INC.
(Exact name of registrant as specified in its charter)
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Delaware 75-2721491
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1950 Stemmons Freeway
Suite 3026 75207
Dallas, Texas (Zip Code)
(Address of Principal Executive Offices)
ALLEGIANCE TELECOM, INC. 1997 NONQUALIFIED STOCK OPTION PLAN
ALLEGIANCE TELECOM, INC. 1998 STOCK INCENTIVE PLAN
(Full Title of the Plans)
Mark B. Tresnowski
Senior Vice President, General
Counsel and Secretary
Allegiance Telecom, Inc.
4 Westbrook Corporate Center
Suite 400
Westchester, Illinois 60154
(Name, address including zip code, and telephone number,
including area code, of Agent for Service)
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES TO BE AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION
REGISTERED REGISTERED(1) SHARE PRICE FEE
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Common Stock, par value
$.01 per share............... 6,915 shares $ 2.82 (2) $ 19,501 $ 6
Common Stock, par value
$.01 per share............... 2,493,085 shares $47.125 (3) $ 117,486,631 $ 32,662
- - - - - - - - - - - - - ------------------------------------------------------------------------------------------------------------------------
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(1) Pursuant to Rule 416 of the Securities Act of 1933, this Amendment also
covers such additional shares of common stock as may become issuable
pursuant to anti-dilution provisions of the stock plans described
herein.
(2) The shares being registered hereby are additional shares reserved for
issuance pursuant to the Allegiance Telecom, Inc. 1997 Nonqualified Stock
Option Plan. Estimated pursuant to Rule 457(h), solely for purposes of
calculating the amount of the registration fee, based on the weighted
average exercise price of $2.82 relating to the options granted under the
Allegiance Telecom, Inc. 1997 Nonqualified Stock Option Plan.
(3) The shares being registered hereby are additional shares reserved for
issuance pursuant to the Allegiance Telecom, Inc. 1998 Stock Incentive
Plan, as amended. Estimated pursuant to Rule 457(c) and (h), solely for
purposes of calculating the amount of the registration fee, based upon the
average of the high and low prices reported for the Common Stock on the
Nasdaq National Market on May 3, 1999, of $47.125.
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EXPLANATORY NOTE
This Amendment No. 1 to Registration Statement on Form S-8 is being filed
by Allegiance Telecom, Inc., a Delaware corporation (the "Company"), in
connection with the registration of an additional 6,915 shares and an additional
2,493,085 shares of the Company's common stock, par value $.01 per share, to be
issued pursuant to the Allegiance Telecom, Inc. 1997 Nonqualified Stock Option
Plan and the Allegiance Telecom, Inc. 1998 Stock Incentive Plan, as amended,
respectively. Except for Item 3 and Item 5, the contents of the Registration
Statement on Form S-8 (Registration No. 333-70769) filed by the Company with the
Securities and Exchange Commission on January 19, 1999, is incorporated herein
by reference.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE. The following
documents, which have been filed by the Company with the Commission, are
incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the year
ended December 31, 1998, filed with the Commission on March 30, 1999.
(b) The description of the Company's common stock, par value
$.01 per share contained in the Company's Prospectus, dated April 14,
1999, filed pursuant to Rule 424(b) of the Securities Act of 1933,
which relates to the Company's Registration Statement on Form S-1
(Registration No. 333-74763).
(c) The Company's Current Report on Form 8-K, filed with the
Commission on April 9, 1999.
(d) The Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 1999, filed with the Commission on April 21,
1999.
(e) All reports and other documents subsequently filed by the
Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), prior
to the filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of the filing of
such reports and documents.
Any statement contained 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 other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Registration
Statement.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. The validity of the additional
shares of common stock to be issued under the plans will be passed upon for the
Company by Mark B. Tresnowski, the Company's Senior Vice President, General
Counsel and Secretary. Mr. Tresnowski (a) owns 3,000 shares of common stock and
(b) holds options to purchase 300,000 shares of common stock at an exercise
price of $1.00 per share.
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<PAGE> 4
ITEM 8. EXHIBITS. An Exhibit index is located after the signature pages hereto.
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Number Description
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3.1 Amended and Restated Certificate of Incorporation of the
Company, incorporated by reference to Exhibit 3.1 of the
Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended June 30, 1998, filed with the Commission on August 12,
1998.
3.2 Certificate of Correction to Amended and Restated Certificate
of Incorporation, incorporated by reference to Exhibit 3.2 to
the Company's Form 10-K for the year ended December 31, 1998
(the "1998 Form 10-K").
3.3 Amended and Restated Bylaws of the Company, incorporated by
reference to Exhibit 3.2 of the Company's Quarterly Report on
Form 10-Q for the fiscal quarter ended June 30, 1998, filed
with the Commission on August 12, 1998.
4.1 Form of certificate representing shares of Common Stock, $.01
par value per share, incorporated by reference to Exhibit 4.5
of the Company's Registration Statement on Form S-1
(Registration File No. 333-53475).
4.2 Allegiance Telecom, Inc. 1997 Nonqualified Stock Option Plan,
incorporated by reference to Exhibit 10.4 of the Company's
Registration Statement on Form S-4 (Registration File No.
333-49013).
4.3 Allegiance Telecom, Inc. 1998 Stock Incentive Plan,
incorporated by reference to Exhibit 10.6 of the Company's
Registration Statement on Form S-1 (Registration File No.
333-53475).
4.4 First Amendment to the Allegiance Telecom, Inc. 1998 Stock
Incentive Plan, incorporated by reference to Exhibit 10.7 to
the 1998 Form 10-K.
*5.1 Opinion of Mark B. Tresnowski, the Senior Vice President,
General Counsel and Secretary of Allegiance Telecom, Inc.,
with respect to the legality of the shares of the common stock
being registered hereby.
*23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Mark B. Tresnowski (included in Exhibit 5.1).
</TABLE>
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* Filed herewith
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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 Amendment
No. 1 to Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Dallas, State of Texas, on May 5,
1999.
ALLEGIANCE TELECOM, INC.
By /s/ ROYCE J. HOLLAND
----------------------------------------
Royce J. Holland, Chairman of the Board
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Amendment No. 1 to Registration Statement has been signed by the following
persons in the capacities indicated on May 5, 1999:
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/s/ ROYCE J. HOLLAND Chairman of the Board and Chief Executive Officer (Principal
- - - - - - - - - - - - - ------------------------------------- Executive Officer)
Royce J. Holland
* President, Chief Operating Officer and Director
- - - - - - - - - - - - - -------------------------------------
C. Daniel Yost
* Executive Vice President, Chief Financial Officer, and
- - - - - - - - - - - - - ------------------------------------- Director (Principal Financial Officer)
Thomas M. Lord
/s/ DENNIS M. MAUNDER Vice President and Controller (Principal Accounting Officer)
- - - - - - - - - - - - - -------------------------------------
Dennis M. Maunder
* Senior Vice President of Sales and Marketing and Director
- - - - - - - - - - - - - -------------------------------------
John J. Callahan
* Director
- - - - - - - - - - - - - -------------------------------------
Paul D. Carbery
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* Director
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James E. Crawford, III
* Director
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John B. Ehrenkranz
* Director
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Paul J. Finnegan
* Director
- - - - - - - - - - - - - -------------------------------------
Richard D. Frisbie
* Director
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Reed E. Hundt
* Director
- - - - - - - - - - - - - -------------------------------------
James N. Perry, Jr.
* THE UNDERSIGNED, BY SIGNING HIS NAME HERETO, DOES SIGN AND EXECUTE THIS
AMENDMENT NO. 1 TO REGISTRATION STATEMENT ON BEHALF OF THE ABOVE NAMED OFFICERS
AND DIRECTORS OF ALLEGIANCE TELECOM, INC. PURSUANT TO THE POWER OF ATTORNEY
EXECUTED BY SUCH OFFICERS AND DIRECTORS AND PREVIOUSLY FILED WITH THE SECURITIES
NAD EXCHANGE COMMISSION.
By: /s/ DENNIS M. MAUNDER
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Dennis M. Maunder
Attorney-in-Fact
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EXHIBIT INDEX
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Number Description
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3.1 Amended and Restated Certificate of Incorporation of the
Company, incorporated by reference to Exhibit 3.1 of the
Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended June 30, 1998, filed with the Commission on August 12,
1998.
3.2 Certificate of Correction to Amended and Restated Certificate
of Incorporation, incorporated by reference to Exhibit 3.2 to
the Company's Form 10-K for the year ended December 31, 1998
(the "1998 Form 10-K").
3.3 Amended and Restated Bylaws of the Company, incorporated by
reference to Exhibit 3.2 of the Company's Quarterly Report on
Form 10-Q for the fiscal quarter ended June 30, 1998, filed
with the Commission on August 12, 1998.
4.1 Form of certificate representing shares of Common Stock, $.01
par value per share, incorporated by reference to Exhibit 4.5
of the Company's Registration Statement on Form S-1
(Registration File No. 333-53475).
4.2 Allegiance Telecom, Inc. 1997 Nonqualified Stock Option Plan,
incorporated by reference to Exhibit 10.4 of the Company's
Registration Statement on Form S-4 (Registration File No.
333-49013).
4.3 Allegiance Telecom, Inc. 1998 Stock Incentive Plan,
incorporated by reference to Exhibit 10.6 of the Company's
Registration Statement on Form S-1 (Registration File No.
333-53475).
4.4 First Amendment to the Allegiance Telecom, Inc. 1998 Stock
Incentive Plan, incorporated by reference to Exhibit 10.7 to
the 1998 Form 10-K.
*5.1 Opinion of Mark B. Tresnowski, the Senior Vice President,
General Counsel and Secretary of Allegiance Telecom, Inc.,
with respect to the legality of the shares of the Common Stock
being registered hereby.
*23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Mark B. Tresnowski (included in Exhibit 5.1).
</TABLE>
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* Filed herewith
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[ALLEGIANCE TELECOM, INC. LETTERHEAD]
EXHIBIT 5.1
May 5, 1999
Allegiance Telecom, Inc.
1950 Stemmons Freeway
Suite 3026
Dallas, Texas 75207
Re: Amendment No. 1 to Registration Statement on Form S-8
Ladies and Gentlemen:
I am the Senior Vice President, General Counsel and Secretary of
Allegiance Telecom, Inc., a Delaware corporation (the "Company"). I am issuing
this opinion in connection with the proposed registration by the Company of an
additional 6,915 shares and 2,493,185 shares (collectively, the "Shares") of its
Common Stock, par value $.01 per share (the "Common Stock"), pursuant to the
Amendment No. 1 to Registration Statement on Form S-8, filed with the Securities
and Exchange Commission (the "Commission") on the date hereof under the
Securities Act of 1933, as amended (the "Act") (such Registration Statement, as
amended or supplemented, is hereinafter referred to as the "Registration
Statement"). The Shares are to be issued by the Company to certain employees,
directors, advisors and consultants of the Company and its subsidiaries pursuant
to the Allegiance Telecom, Inc. 1997 Nonqualified Stock Option Plan and the
Allegiance Telecom, Inc. 1998 Stock Incentive Plan, as amended (the "Plans").
In that connection, I have examined such corporate proceedings,
documents, records and matters of law as I have deemed necessary to enable me
to render this opinion.
For purposes of this opinion, I have assumed the authenticity of all
documents submitted to me as originals, the conformity to the originals of all
documents submitted to me as copies and the authenticity of the originals of all
documents submitted to me as copies. I have also assumed the legal capacity of
all natural persons, the genuineness of the signatures of persons signing all
documents in connection with which this opinion is rendered, the authority of
such persons signing on behalf of the parties thereto other than the Company and
the due authorization, execution and delivery of all documents by the parties
thereto other than the Company. As to any facts material to the opinions
expressed herein, I have relied upon the statements and representations of
officers and other representations of the Company and others.
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Allegiance Telecom, Inc.
May 5, 1999
Page 2
My opinion expressed below is subject to the qualifications that I
express no opinion as to the applicability of, compliance with, or effect of (i)
any bankruptcy, insolvency, reorganization, fraudulent transfer, fraudulent
conveyance, moratorium or other similar law affecting the enforcement of
creditors' rights generally; (ii) general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law); (iii)
public policy considerations which may limit the rights of parties to obtain
certain remedies; and (iv) any laws except the internal laws of the State of
Illinois, the General Corporation Law of the State of Delaware and the federal
law of the United States of America.
Based upon and subject to the foregoing qualifications, assumptions and
limitations and the further limitations set forth below, I hereby advise you
that in my opinion:
(1) The Plans have been duly adopted by the Board of Directors of the
Company.
(2) The Shares are duly authorized and validly reserved for issuance
pursuant to the Plans and, when: (i) the Registration Statement becomes
effective under the Act; (ii) the Shares are issued in accordance with the terms
of the Plans; (iii) the recipient provides the full consideration for such
Shares as required by the terms of the Plans (assuming in each case the
consideration received by the Company is at least equal to $0.01 per share); and
(iv) certificates representing the Shares have been duly executed and delivered
on behalf of the Company and duly countersigned by the Company's transfer
agent/registrar, the Shares will be validly issued, fully paid and
nonassessable.
I hereby consent to the filing of this opinion with the Commission as
Exhibit 5.1 to the Registration Statement. In giving this consent, I do not
thereby admit that I am in the category of persons whose consent is required
under Section 7 of the Act or the rules and regulations of the Commission.
I do not find it necessary for the purposes of this opinion, and
accordingly I do not purport to cover herein, the application of the securities
or "Blue Sky" laws of the various states to the issuance and sale of the Shares.
This opinion is limited to the specific issues addressed herein, and no
opinion may be inferred or implied beyond that expressly stated herein. I assume
no obligation to revise or supplement this opinion should the present laws of
the States of Illinois or Delaware or the federal law of the United States be
changed by legislative action, judicial decision or otherwise.
<PAGE> 3
Allegiance Telecom, Inc.
May 5, 1999
Page 3
This opinion is furnished to you in connection with the filing of the
Registration Statement and is not to be used, circulated, quoted or otherwise
relied upon for any other purpose.
Very truly yours,
/s/ MARK B. TRESNOWSKI
----------------------------
Mark B. Tresnowski
<PAGE> 1
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of our report dated February 3, 1999
incorporated by reference in the Company's Form 10-K (Registration Statement
File No. 000-24509) for the year ended December 31, 1998, and to all references
to our Firm included in this Registration Statement on Form S-8.
ARTHUR ANDERSEN LLP
Dallas, Texas
May 5, 1999
