<PAGE> 1
As filed with the Securities and Exchange Commission on January 19, 1999
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
---------------------------
ALLEGIANCE TELECOM, INC.
(Exact name of registrant as specified in its charter)
---------------------------
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)
Royce J. Holland
Chairman of the Board and Chief Executive Officer
Allegiance Telecom, Inc.
1950 Stemmons Freeway
Suite 3026
Dallas, Texas 75207
(214) 261-7100
(Name, address including zip code, and telephone number,
including area code, of Agent for Service)
Copy to:
Mark B. Tresnowski, Esq.
Kirkland & Ellis
200 East Randolph Drive
Chicago, Illinois 60601
(312) 861-2000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
========================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES TO BE AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION
REGISTERED REGISTERED SHARE PRICE FEE
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<S> <C> <C> <C> <C>
Common Stock, par value
$0.01 per share.............. 1,030,559 shares $ 2.76 (1) $ 2,844,343 $ 791
- ------------------------------------------------------------------------------------------------------------------------
Common Stock, par value
$.01 per share............... 3,662,693 shares $16.875 (2) $ 61,807,945 $ 17,183
- ------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated pursuant to Rule 457(h), solely for purposes of calculating the
amount of the registration fee, based upon the weighted average exercise
price of $2.76 relating to options granted under the Registrant's 1997
Nonqualified Stock Option Plan.
(2) 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 January 13, 1999, of $16.875.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
The documents containing the information specified in Part I, Items 1
and 2, will be delivered in accordance with Rule 428(b)(1) of the
Securities Act of 1933, as amended ("Securities Act"). Such documents
are not required to be, and are not, filed with the Securities and
Exchange Commission ("Commission"), either as part of this Form S-8
Registration Statement (this "Registration Statement") or as
prospectuses or prospectus supplements pursuant to Rule 424. These
documents, and the documents incorporated by reference in this
Registration Statement pursuant to Item 3 of Part II of this
Registration Statement, taken together, constitute a prospectus that
meets the requirements of Section 10(a) of the Securities Act.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Upon written or oral request, any of the documents incorporated by
reference in Item 3 of Part II of this Registration Statement (which
documents are incorporated by reference in the Section 10(a)
Prospectus), other documents required to be delivered to eligible
employees pursuant to Rule 428(b) or additional information about the
Allegiance Telecom, Inc. 1997 Nonqualified Stock Option Plan or the
Allegiance Telecom, Inc. 1998 Stock Incentive Plan (collectively, the
"Plans") are available without charge by contacting:
Patricia E. Koide
Senior Vice President of Human Resources, Real Estate,
Facilities and Administration
Allegiance Telecom, Inc.
4 Westbrook Corporate Center
Suite 400
Westchester, Illinois 60154
(708) 836-5200
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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 Allegiance Telecom, Inc. (the "Company")
with the Commission, are incorporated in this Registration Statement by
reference:
(a) The Company's Prospectus, dated June 30, 1998, filed
pursuant to Rule 424(b) of the Securities Act, which relates to the
Company's Registration Statement on Form S-1 (Registration File No.
333-53475).
(b) The description of the Company's Common Stock, par value
$.01 per share (the "Common Stock") contained in the Company's
Registration Statement on Form 8-A, filed with the Commission on June
23, 1998, which incorporated by reference the section titled
"Description of Capital Stock" contained in the Prospectus as part of
the Company's Registration Statement on Form S-1 (Registration File No.
333-53475).
(c) 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.
(d) The Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended September 30, 1998, filed with the Commission on November
5, 1998.
(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 4. DESCRIPTION OF SECURITIES. Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. The validity of the Common Stock
to be issued under the Plans will be passed upon for the Company by Kirkland &
Ellis, Chicago, Illinois (a partnership which includes professional
corporations).
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Section 102(b)(7) of the
Delaware General Corporation Law (the "DGCL") permits a corporation to provide
in its certificate of incorporation that a director of the corporation shall not
be personally liable to the corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, except for liability (i) for any
transaction from which the director derives an improper personal benefit, (ii)
for acts or omissions not in good faith or that involve intentional misconduct
or a knowing violation of law, (iii) for improper payment of dividends or
redemptions of shares or (iv) for any breach of a director's duty of loyalty to
the company or its stockholders. Article X, Part A, of the Company's Amended and
Restated Certificate of Incorporation (the "Restated Certificate") includes such
a provision.
The Company's Restated Certificate provides that each person who was or is made
a party or is threatened to be made a party to or is otherwise involved
(including involvement as a witness) in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a "proceeding"), by reason of
the fact that he or she is or was a Director or officer of the Company or, while
a Director or officer of the Company, is or was serving at the request of the
Company as a Director, officer, employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with
respect to an employee benefit plan (an "indemnitee"), whether the basis of such
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<PAGE> 4
proceeding is alleged action in an official capacity as a Director or officer or
in any other capacity while serving as a Director or officer, will be
indemnified and held harmless by the Company to the fullest extent authorized by
the DGCL, as the same exists or may hereafter be amended (but, in the case of
any such amendment, only to the extent that such amendment permits the Company
to provide broader indemnification rights then permitted prior thereto), against
all expense, liability and loss (including attorneys' fees, judgment, fines,
excise taxes or penalties and amounts paid in settlement) reasonably incurred or
suffered by such indemnitee in connection therewith and such indemnification
will continue as to an indemnitee who has ceased to be a Director, officer,
employee or agent and shall inure to the benefit of the indemnitee's heirs,
executors and administrators under the Restated Certificate. This right of
indemnification is a contractual right and includes the obligation of the
Company to pay the expenses incurred in defending any such proceeding in advance
of its final disposition (an "advance of expenses"); provided, however, that, if
and to the extent that the DGCL requires, an advance of expenses incurred by
indemnitee in his or her capacity as a Director of officer (and not in any other
capacity in which service was or is rendered by such indemnitee, including,
without limitation, service to an employee benefit plan) will be made only upon
delivery to the Company of an undertaking, by or on behalf of such indemnitee,
to repay all amounts so advanced if it will ultimately be determined by final
judicial decision from which there is no further right to appeal that such
indemnitee is not entitled to be indemnified for such expenses. The Company may,
by action of its Board of Directors, provide indemnification to employees and
agents of the Company with the same or lesser scope and effect as the foregoing
indemnification of Directors and officers.
The Company plans to enter into indemnification agreements with its current
Directors and executives officers substantially in the form previously filed
with the Commission by the Company and anticipates entering into such agreements
in the future with any new Director or executive officer.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable.
ITEM 8. EXHIBITS. An Exhibit index is located at page 8.
<TABLE>
<CAPTION>
Number Description
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<S> <C>
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 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).
*5.1 Opinion of Kirkland & Ellis 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 Kirkland & Ellis (included in Exhibit 5.1).
24.1 Powers of Attorney (included in Part II of this Registration
Statement).
</TABLE>
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* Filed herewith
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<PAGE> 5
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; (ii) to reflect in
the prospectus any facts or events arising after the effective date of
this Registration Statement (or most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in this Registration
Statement; and (iii) 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; provided, however, that paragraphs (a)(1)(i) and
(a)(1)(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 with or furnished to the Commission by the Registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement, (2) 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; and (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, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Exchange
Act) that is incorporated by reference in this Registration Statement
shall be deemed to be a new registration statement relating to the
securities offered herein, 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 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
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 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 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 Dallas, State of Texas, on January 19, 1999.
ALLEGIANCE TELECOM, INC.
By /s/ ROYCE J. HOLLAND
----------------------------------------
Royce J. Holland, Chairman of the Board
and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Royce J. Holland, Thomas M. Lord and
Dennis M. Maunder and each of them, his true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any or all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, 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 said
attorneys-in-fact and agents or any of them, or their or his substitute or
substitutes, 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 indicated on January 19, 1999:
<TABLE>
<S> <C>
/s/ ROYCE J. HOLLAND Chairman of the Board and Chief Executive Officer (Principal
- ------------------------------------- Executive-Officer)
Royce J. Holland
/s/ C. DANIEL YOST President, Chief Operating Officer and Director
- -------------------------------------
C. Daniel Yost
/s/ THOMAS M. LORD 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
/s/ JOHN J. CALLAHAN Senior Vice President of Sales and Marketing and Director
- -------------------------------------
John J. Callahan
/s/ PAUL D. CARBERY Director
- -------------------------------------
Paul D. Carbery
</TABLE>
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<PAGE> 7
/s/ JAMES E. CRAWFORD, III Director
- -------------------------------------
James E. Crawford, III
/s/ JOHN B. EHRENKRANZ Director
- -------------------------------------
John B. Ehrenkranz
/s/ PAUL J. FINNEGAN Director
- -------------------------------------
Paul J. Finnegan
/s/ RICHARD D. FRISBIE Director
- -------------------------------------
Richard D. Frisbie
/s/ REED E. HUNDT Director
- -------------------------------------
Reed E. Hundt
/s/ ROBERT H. NIEHAUS Director
- -------------------------------------
Robert H. Niehaus
/s/ JAMES N. PERRY, JR. Director
- -------------------------------------
James N. Perry, Jr.
-7-
<PAGE> 8
EXHIBIT INDEX
<TABLE>
<CAPTION>
Number Description
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<S> <C>
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 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).
*5.1 Opinion of Kirkland & Ellis 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 Kirkland & Ellis (included in Exhibit 5.1).
24.1 Powers of Attorney (included in Part II of this Registration
Statement).
</TABLE>
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* Filed herewith
<PAGE> 1
[KIRKLAND & ELLIS LETTERHEAD]
EXHIBIT 5.1
January 19, 1999
Allegiance Telecom, Inc.
1950 Stemmons Freeway
Suite 3026
Dallas, Texas 75207
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We are acting as special counsel to Allegiance Telecom, Inc., a
Delaware corporation (the "Company"), in connection with the proposed
registration by the Company of 4,693,252 shares (the "Shares") of its Common
Stock, par value $.01 per share (the "Common Stock"), pursuant to a 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 (collectively, the "Plans").
In that connection, we have examined such corporate proceedings,
documents, records and matters of law as we have deemed necessary to enable us
to render this opinion.
For purposes of this opinion, we have assumed the authenticity of all
documents submitted to us as originals, the conformity to the originals of all
documents submitted to us as copies and the authenticity of the originals of all
documents submitted to us as copies. We 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, we have relied upon the statements and representations of
officers and other representations of the Company and others.
<PAGE> 2
KIRKLAND & ELLIS
Allegiance Telecom, Inc.
January 19, 1999
Page 2
Our opinion expressed below is subject to the qualifications that we
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, we hereby advise you
that in our 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.
We hereby consent to the filing of this opinion with the Commission as
Exhibit 5.1 to the Registration Statement. In giving this consent, we do not
thereby admit that we are in the category of persons whose consent is required
under Section 7 of the Act or the rules and regulations of the Commission.
We do not find it necessary for the purposes of this opinion, and
accordingly we 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. We
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
KIRKLAND & ELLIS
Allegiance Telecom, Inc.
January 19, 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/ Kirkland & Ellis
KIRKLAND & ELLIS
<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 April 24, 1998
(except for Note 10 which date is June 5, 1998), for the three months ended
March 31, 1998, and for the period from inception (April 22, 1997) through
December 31, 1997, and to all references to our Firm included in this
Registration Statement on Form S-8.
ARTHUR ANDERSEN LLP
Dallas, Texas
January 19, 1999
