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As filed with the Securities and Exchange Commission on October 19, 1998
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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FIRSTWORLD COMMUNICATIONS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 33-0521976
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
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9333 GENESEE AVENUE, SUITE 200
SAN DIEGO, CALIFORNIA 92121
(619) 552-8010
(Address of principal executive offices, including zip code, and telephone
number)
SPECTRANET INTERNATIONAL 1995 INCENTIVE STOCK OPTION PLAN
SPECTRANET INTERNATIONAL 1997 STOCK PLAN
(Full title of the plans)
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ROBERT E. RANDALL Copies to:
Executive Vice President DAVID A. HAHN, ESQ.
FIRSTWORLD COMMUNICATIONS, INC. LATHAM & WATKINS
9333 GENESEE AVENUE, SUITE 200 701 "B" STREET, SUITE 2100
SAN DIEGO, CALIFORNIA 92121 SAN DIEGO, CALIFORNIA 92101
(619) 552-8010 (619) 236-1234
(Name, address, including zip code, and
telephone number, including area code, of
agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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Title of Securities Amount Proposed Maximum Proposed Maximum Amount of
to be Registered to be Offering Price Aggregate Offering Registration
Registered(1) Per Share Price Fee
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<S> <C> <C> <C> <C>
Series B Common Stock, $.0001 par value 2,217,583 $.15 - $4.50(2) $5,687,625.62(2) $1,677.85
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(1) Pursuant to Rule 416(a), this Registration Statement shall also cover any
additional shares of the Registrant's Series B Common Stock that become
issuable under the plans by reason of any stock dividend, stock split,
recapitalization or other similar transaction effected without receipt of
consideration that increases the number of the Registrant's outstanding
shares of Series B Common Stock.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457. The price per share and aggregate
offering price are based upon (a) the actual exercise price, for shares
subject to outstanding stock options previously granted under the
SpectraNet International 1995 Incentive Stock Option Plan and the
SpectraNet International 1997 Stock Plan; and (b) the book value
calculated as of June 30, 1998, for shares available for grant under the
SpectraNet International 1995 Incentive Stock Option Plan and the
SpectraNet International 1997 Stock Plan. The following chart shows the
calculation of the registration fee:
<TABLE>
<CAPTION>
Type of Shares Number of Shares Offering Price per Share Aggregate Offering Price
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<S> <C> <C> <C>
Series B Common Stock issuable pursuant to
outstanding options under the SpectraNet
International 1995 Incentive Stock Option Plan 87,000 $ .15 $ 13,050.00
Series B Common Stock issuable pursuant to
outstanding options under the SpectraNet
International 1995 Incentive Stock Option Plan 214,000 $ .25 $ 53,500.00
Series B Common Stock issuable pursuant to
outstanding options under the SpectraNet
International 1995 Incentive Stock Option Plan 341,400 $ .50 $ 170,700.00
Series B Common Stock issuable pursuant to
outstanding
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options under the SpectraNet International
1995 Incentive Stock Option Plan 97,300 $ 4.50 $ 437,850.00
Series B Common Stock issuable pursuant to
outstanding options under the SpectraNet
International 1997 Stock Plan 721,960 $ 3.00 $2,165,880.00
Series B Common Stock issuable pursuant to
outstanding options under the SpectraNet
International 1997 Stock Plan 571,535 $ 4.50 $2,571,907.50
Series B Common Stock available for grant under
the SpectraNet International 1995 Incentive Stock
Option Plan 800 $ 1.49 $ 1,192.00
Series B Common Stock available for grant under
the SpectraNet International 1997 Stock Plan 183,588 $ 1.49 $ 273,546.12
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</TABLE>
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PART I
ITEM 1. PLAN INFORMATION.
Not required to be filed with this Registration Statement.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not required to be filed with this Registration Statement.
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The prospectus contained in the Registration Statement on Form S-4
(No. 333-57829) filed by FirstWorld Communications, Inc. (the "Company") with
the Securities and Exchange Commission (the "Commission") on June 26, 1998, as
amended through the date hereof (the "Form S-4"), is hereby incorporated by
reference into this Registration Statement. The Company has not filed, and has
not been required to file, an annual report pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as of the
date hereof. A description of the Company's Series B Common Stock, which is
contained in the Form S-4, including any amendments or reports filed for the
purpose of updating such description, is hereby incorporated by reference into
this Registration Statement.
All documents filed by the Company pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act subsequent to the date this Registration
Statement is filed with the Commission and prior to the filing of a
post-effective amendment which indicates that all securities offered 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 a part
of it from the respective dates of filing of such 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 such 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.
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Six Latham & Watkins attorneys own an aggregate of 57,351 shares of
Series B Common Stock, warrants to purchase an aggregate of 9,634 shares of
Series B Common Stock and options to purchase 15,000 shares of Series B Common
Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The General Corporation Law of the State of Delaware (the "DGCL")
permits a Delaware corporation to indemnify officers, directors, employees and
agents for actions taken 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 action, which they had no reasonable cause to believe
was unlawful. The DGCL also provides that a corporation may advance the
expenses of defense (upon receipt of a written undertaking to reimburse the
corporation if it is ultimately determined that such individual is not entitled
to indemnification) and must reimburse a successful defendant for expenses,
including attorneys' fees, actually and reasonably incurred. The DGCL further
provides that indemnification may not be made for any claim, issue or matter as
to which a person has been adjudged by a court of competent jurisdiction, after
exhaustion of all appeals therefrom, to be liable to the corporation, except
only to the extent a court determines that the person is entitled to indemnify
for such expenses that such court deems proper. The DGCL also permits a
corporation to purchase and maintain liability insurance for its directors and
officers.
The Company's Certificate of Incorporation and bylaws provide that the
Company shall, to the fullest extent permitted by Section 145 of the DGCL, as
the same may be amended and supplemented from time to time, indemnify all
directors and officers and all other persons whom it has authority to indemnify
under Section 145 of the DGCL. Such limitation of liability does not affect the
availability of equitable remedies such as injunctive relief or rescission. The
Company has entered into indemnification agreements with its officers and
directors containing provisions which may require the Company, among other
things, to indemnify the officers and directors against certain liabilities that
may arise by reason of their status or service as directors or officers (other
than liabilities arising from willful misconduct of a culpable nature), and to
advance their expenses incurred as a result of any proceeding against them as to
which they could be indemnified. The Company maintains insurance on behalf of
its directors and officers, insuring them against liabilities that they may
incur in such capacities or arising out of such status.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The Exhibit Index immediately preceding the exhibits is incorporated
herein by reference.
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ITEM 9. UNDERTAKINGS.
(a) The undersigned Company 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, as amended (the "Securities
Act");
(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 this 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 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;
(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 the undertakings set forth in paragraphs (a)(1)(i) and
(a)(1)(ii) above 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 Commission by the Company pursuant to Section 13 or 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.
(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 Company 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 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 therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
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(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company
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 Company of expenses incurred or paid
by a director, officer or controlling person of the Company 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
Company 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, as amended,
the Company has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of San
Diego, State of California, on October 19, 1998.
FirstWorld Communications, Inc.
By: /s/ DONALD L. STURM
--------------------------------
DONALD L. STURM
CHAIRMAN OF THE BOARD OF DIRECTORS
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints Robert E. Randall his true and lawful
attorney-in-fact, acting alone, with full power of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities to sign any and all amendments including post-effective amendments
and any registration statement filed pursuant to Rule 462(b) under the
Securities Act of 1933 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, hereby ratifying and confirming all that
said attorney-in-fact or his substitute, 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 below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ SHELDON S. OHRINGER President, Chief Executive Officer October 19, 199
- ----------------------------------- and Director (Principal Executive
Sheldon S. Ohringer Officer)
/s/ ROBERT E. RANDALL Executive Vice President, Chief October 19, 1998
- ----------------------------------- Operating Officer, Acting Chief
Robert E. Randall Financial Officer and Director
(Principal Financial Officer)
/s/ DENNIS M. MULROY Vice President, Finance and October 19, 1998
- ----------------------------------- Administration (Principal Accounting
Dennis M. Mulroy Officer)
/s/ DONALD L. STURM Chairman of the Board October 19, 1998
- -----------------------------------
Donald L. Sturm
/s/ C. KEVIN GARLAND Director October 19, 1998
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C. Kevin Garland
/s/ RODNEY MALCOLM Director October 19, 1998
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Rodney Malcolm
/s/ JAMES O. SPITZENBERGER Director October 19, 1998
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James O. Spitzenberger
/s/ MELANIE STURM Director October 19, 1998
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Melanie Sturm
/s/ JOHN C. STISKA Director October 19, 1998
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John C. Stiska
</TABLE>
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EXHIBIT INDEX
EXHIBIT
4.1 SpectraNet International 1995 Incentive Stock Option Plan and
related form of option agreement (1)
4.2 SpectraNet International 1997 Stock Plan and related form of option
agreement (1)
5.1 Opinion of Latham & Watkins.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Latham & Watkins (included in Exhibit 5.1 hereto).
24.1 Power of Attorney (included on signature page hereto).
(1) Incorporated herein by reference to the Company's Registration Statement
on Form S-4 (File No. 333-57829) filed with the Commission on June 26,
1998.
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Exhibit 5.1
[LETTERHEAD OF LATHAM & WATKINS]
October 19, 1998
FirstWorld Communications, Inc.
9333 Genesee Avenue, Suite 200
San Diego, California 92121
Re: FORM S-8 REGISTRATION STATEMENT
Ladies and Gentlemen:
In connection with the registration by FirstWorld Communications,
Inc., a Delaware corporation (the "Company"), of 2,217,583 shares of Series B
common stock, par value $.0001 per share (the "Shares"), of the Company to be
issued pursuant to the SpectraNet International 1995 Incentive Stock Option
Plan (the "1995 Plan") and the SpectraNet International 1997 Stock Plan (the
"1997 Plan," and together with the 1995 Plan, the "Plans") under the
Securities Act of 1933, as amended (the "Act"), on a Registration Statement
on Form S-8 filed with the Securities and Exchange Commission on October __,
1998 (as amended from time to time, the "Registration Statement"), you have
requested our opinion with respect to the matters set forth below.
In our capacity as your counsel in connection with such
registration, we are familiar with the proceedings taken by the Company in
connection with the authorization, issuance and sale of the Shares, and for
the purposes of this opinion, have assumed such proceedings will be timely
completed in the manner presently proposed. In addition, we have made such
legal and factual examinations and inquiries, including an examination of
originals or copies certified or otherwise identified to our satisfaction of
such documents, corporate records and instruments, as we have deemed
necessary or appropriate for purposes of this opinion.
In our examination, we have assumed the genuineness of all signatures,
the authenticity of all documents submitted to us as originals, and the
conformity to authentic original documents of all documents submitted to us as
copies.
We are opining herein as to the effect on the subject transaction only
of the General Corporation Law of the State of Delaware, and we express no
opinion with respect to the applicability thereto, or the effect thereon, of the
laws of any other jurisdiction or any other laws, or as to any matters of
municipal law or the laws of any other local agencies within the state.
Subject to the foregoing, it is our opinion that as of the date hereof
the Shares have been duly authorized, and, upon the issuance of and payment for
the Shares in
<PAGE>
LATHAM & WATKINS
FirstWorld Communications, Inc.
October 19, 1998
Page 2
accordance with the terms set forth in the Plans, the Shares will be validly
issued, fully paid and nonassessable.
We consent to your filing this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ LATHAM & WATKINS
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated March 5, 1998, except as to Note 13
which is as of March 17, 1998, relating to the financial statements of
FirstWorld Communications, Inc. (the Company) which appears in the Company's
Form S-4 Registration Statement (No. 333-57829), as amended through the date
hereof.
/s/ PricewaterhouseCoopers LLP
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PricewaterhouseCoopers LLP
San Diego, California
October 19, 1998
