<PAGE>
As filed with the Securities and Exchange Commission on August 17, 1999
Registration No. 333-_______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NETWORK ACCESS SOLUTIONS CORPORATION
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
Delaware 54-1738938
(State or other jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or organization)
100 Carpenter Drive
Sterling, Virginia 20164
(Address of principal executive offices) (Zip Code)
NETWORK ACCESS SOLUTIONS CORPORATION 1998 STOCK INCENTIVE PLAN
(Full title of plan)
(Name, address and telephone
number of agent for service) (Copy to:)
Jonathan P. Aust Nancy A. Spangler, Esquire
Network Access Solutions Corporation Piper & Marbury L.L.P.
100 Carpenter Drive Commerce Executive Park III, Suite 610
Sterling, Virginia 20164 1850 Centennial Park Drive
(703) 742-7700 Reston, Virginia 20191
(703) 391-7100
</TABLE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
========================================================================================================================
Proposed Proposed
Amount Maximum Maximum Amount of
to be Offering Aggregate Registration
Title of Securities to be Registered Registered Price Per Unit/(2)/ Offering Price/(2)/ Fee/(2)/
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.001 par value/(1)/ 11,250,000 $10.53125 $118,476,563 $32,937
========================================================================================================================
</TABLE>
/(1)/ In addition, pursuant to Rule 416 under the Securities Act of 1933, as
amended, this Registration Statement also covers an indeterminate number of
shares of Common Stock that may be offered or issued by reason of stock splits,
stock dividends or similar transactions.
/(2)/ Estimated solely for purposes of calculating the registration fee
pursuant to Rule 457(c) and (h). The proposed maximum offering price per share,
proposed maximum aggregate offering price and the amount of the registration fee
are based on the average of the high and low prices of Network Access Solutions
Corporation Common Stock reported on the Nasdaq National Market on August 11,
1999 (i.e. $10.53125 per share).
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Not required to be included in this Form S-8 Registration Statement pursuant to
introductory Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents which have been filed by the Registrant with the
Securities and Exchange Commission (the "Commission") are incorporated herein by
reference:
(a) Prospectus filed pursuant to Rule 424(b) on June 4, 1999 and
Quarterly Report on Form 10-Q for the quarter ended June 30, 1999;
(b) All other reports filed pursuant to Sections 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended ("Exchange Act"), since
the end of the fiscal year covered by the documents referred to in
(a) above; and
(c) Description of Common Stock of the Registrant contained or
incorporated in the registration statements filed by the Registrant
under the Exchange Act, including any amendments or reports filed
for the purpose of updating such description.
All documents subsequently filed by the Registrant with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities remaining unsold,
shall be deemed to be incorporated by reference into this Registration Statement
and to be a part of this Registration Statement from the date of filing of such
documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
As permitted by the Delaware General Corporation Law, Article Tenth of
the Registrant's Amended and Restated Certificate of Incorporation (the
"Certificate") provides for indemnification of directors and officers of the
Registrant, as follows:
The Registrant shall, to the fullest extent permitted by Section 145 of
the Delaware General Corporation Law, as amended from time to time,
indemnify each person who was or is a party or is threatened to be made
a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that he is or was, or has agreed to become, a
director or officer of the Registrant, or is or was serving, or
<PAGE>
had agreed to serve, at the request of the Registrant, as a director,
officer or trustee of, or in a similar capacity with, another
corporation, partnership, joint venture, trust or other enterprise
(including any employee benefit plan), or by reason of any action
alleged to have been taken or omitted in such capacity, against all
expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him or on his behalf
in connection with such action, suit or proceeding and any appeal
therefrom.
Also, the Registrant's By-Laws contain indemnification procedures that
implement the indemnification provisions of the Amended and Restated Certificate
of Incorporation. The Delaware General Corporation Law permits a corporation to
indemnify its directors and officers, among others, against judgments, fines,
settlements and reasonable expenses actually incurred by them in connection with
any proceedings to which they may be a party by reason of their service in those
or other capacities, if such person acted in good faith and in a manner which
such person reasonably believed to be in or not opposed to the best interests of
the Registrant, and with respect to any criminal action or proceeding, had no
reasonable cause to believe that such conduct was unlawful.
As permitted by the Delaware General Corporation Law, Article Ninth of
the Registrant's Amended and Restated Certificate of Incorporation provides for
limitation of liability of directors of the Registrant, as follows:
A director of the Registrant shall not be personally liable to the
Registrant or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach of
the director's duty of loyalty to the Registrant of its stockholders,
(ii) for acts or omissions not in good faith or which involved
intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the Delaware General Corporation Law or (iv) for any
transaction from which the director derived an improper personal
benefit.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
EXHIBIT
NUMBER DESCRIPTION
- ------ -----------
4.1 * Amended and Restated Certificate of Incorporation
(incorporated by reference from Exhibit 3.1 of the
Registrant's Registration Statement on Form S-1 (No.
333-74679), as amended)
4.2 * Amended and Restated By-Laws (incorporated by reference
from Exhibit 3.2 of the Registrant's Registration
Statement on Form S-1 (No. 333-74679), as amended)
4.3 1998 Stock Incentive Plan, as amended
5.1 Opinion of Piper & Marbury L.L.P., counsel for the
Registrant, regarding the legal validity of the shares
of Common Stock being registered for issuance under the
Plan
23.1 Consent of Independent Auditors
23.2 Consent of Counsel (contained in Exhibit 5.1)
24 Power of Attorney (included on Signature Page)
_______________
* Incorporated by reference.
-2-
<PAGE>
Item 9. Undertakings.
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 this Registration Statement; and
(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.
Paragraphs (l)(i) and (l)(ii) above do not apply if the information
required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act
of 1934 that are incorporated by reference in this 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.
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 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
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.
---- ----
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, as amended, 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 Sterling, Commonwealth of Virginia on the 17th day of
August, 1999.
NETWORK ACCESS SOLUTIONS CORPORATION
By: /s/ Jonathan P. Aust
---------------------------------
Jonathan P. Aust
President, Chief Executive Officer and
Chairman of the Board of Directors
POWERS OF ATTORNEY
Each person whose signature appears below constitutes and appoints Jonathan
P. Aust and Scott G. Yancey, Jr. as his true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for such person and
in his name, place and stead, in any and all capacities, to sign any or all
further 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 attorney-in-fact and agent, 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 attorney-in-fact and
agent, 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 Form S-8
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Jonathan P. Aust President, Chief Executive Officer and August 17, 1999
- -------------------------- Chairman of the Board of Directors
Jonathan P. Aust (Principal Executive Officer)
/s/ Scott G. Yancey, Jr. Chief Financial Officer and Director August 17, 1999
- -------------------------- (Principal Accounting and Financial Officer)
Scott G. Yancey, Jr.
/s/ Christopher J. Melnick Chief Operating Officer and Director August 17, 1999
- --------------------------
Christopher J. Melnick
/s/ Brion B. Applegate Director August 17, 1999
- --------------------------
Brion B. Applegate
/s/ Dennis R. Patrick Director August 17, 1999
- --------------------------
Dennis R. Patrick
</TABLE>
-5-
<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
- ------ -----------
4.1* Amended and Restated Certificate of Incorporation (incorporated
by reference from Exhibit 3.1 of the Registrant's Registration
Statement on Form S-1 (No. 333-74679), as amended)
4.2* Amended and Restated By-Laws (incorporated by reference from
Exhibit 3.2 of the Registrant's Registration Statement on Form S-
1 (No. 333-74579), as amended)
4.3 1998 Stock Incentive Plan, as amended
5.1 Opinion of Piper & Marbury L.L.P., counsel for the Registrant,
regarding the legal validity of the shares of Common Stock being
registered for issuance under the Plan
23.1 Consent of Independent Auditors
23.2 Consent of Counsel (contained in Exhibit 5.1)
24 Power of Attorney (included on Signature Page)
______________
* Incorporated by reference.
<PAGE>
Exhibit 4.3
-----------
NETWORK ACCESS SOLUTIONS CORPORATION
1998 STOCK INCENTIVE PLAN
(Amended through August 17, 1999)
1. Establishment, Purpose and Types of Awards
Network Access Solutions Corporation hereby establishes the NETWORK ACCESS
SOLUTIONS CORPORATION 1998 STOCK INCENTIVE PLAN (the "Plan"). The purpose of the
Plan is to promote the long-term growth and profitability of Network Access
Solutions Corporation, a Delaware Corporation (the "Corporation") by (i)
providing key people with incentives to improve stockholder value and to
contribute to the growth and financial success of the Corporation, and (ii)
enabling the Corporation to attract, retain and reward the best-available
persons.
The Plan permits the granting of stock options (including incentive stock
options qualifying under Code section 422 and nonqualified stock options), stock
appreciation rights, restricted or unrestricted stock awards, phantom stock,
performance awards, or any combination of the foregoing.
2. Definitions
Under this Plan, except where the context otherwise indicates, the
following definitions apply:
(a) "Affiliate" shall mean any entity, whether now or hereafter existing,
which controls, is controlled by, or is under common control with, the
Corporation (including, but not limited to, joint ventures, limited liability
companies, and partnerships). For this purpose, "control" shall mean ownership
of 50% or more of the total combined voting power or value of all classes of
stock or interests of the entity.
(b) "Award" shall mean any stock option, stock appreciation right, stock
award, phantom stock award, or performance award.
(c) "Board" shall mean the Board of Directors of the Corporation.
(d) "Code" shall mean the Internal Revenue Code of 1986, as amended, and
any regulations promulgated thereunder.
(e) "Common Stock" shall mean shares of common stock of the Corporation,
par value of $0.001 per share.
(f) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
(g) "Fair Market Value" of a share of the Corporation's Common Stock for
any purpose on a particular date shall be determined in a manner such as the
Administrator shall in good faith determine to be appropriate; provided that in
the event the Common Stock shall become registered under Section 12 of the
Exchange Act, then thereafter the Fair Market Value of the Corporation's Common
Stock for any purpose on a particular date shall mean the last reported sale
price per share of Common Stock, regular way, on such date or, in case no such
sale takes place on such date, the average of the closing bid and asked prices,
regular way, in either case as reported in the principal consolidated
transaction reporting
-1-
<PAGE>
system with respect to securities listed or admitted to trading on a national
securities exchange or included for quotation on the Nasdaq-National Market, or
if the Common Stock is not so listed or admitted to trading or included for
quotation, the last quoted price, or if the Common Stock is not so quoted, the
average of the high bid and low asked prices, regular way, in the over-the-
counter market, as reported by the National Association of Securities Dealers,
Inc. Automated Quotation System or, if such system is no longer in use, the
principal other automated quotations system that may then be in use or, if the
Common Stock is not quoted by any such organization, the average of the closing
bid and asked prices, regular way, as furnished by a professional market maker
making a market in the Common Stock as selected in good faith by the
Administrator or by such other source or sources as shall be selected in good
faith by the Administrator. If, as the case may be, the relevant date is not a
trading day, the determination shall be made as of the next preceding trading
day. As used herein, the term "trading day" shall mean a day on which public
trading of securities occurs and is reported in the principal consolidated
reporting system referred to above, or if the Common Stock is not listed or
admitted to trading on a national securities exchange or included for quotation
on the Nasdaq-National Market, any business day. In the event that the
Administrator determines the Fair Market Value at a time when the Common Stock
is not registered under Section 12 of the Exchange Act, in making such
determination: (i) "Fair Market Value" shall mean the price which a willing
buyer would pay a willing seller for the shares of Common Stock, neither being
under any compulsion to buy or sell and both having reasonable knowledge of the
relevant facts, and (ii) the Administrator may take into account any valuation
factors it deems appropriate or advisable in its sole discretion, including
without limitation profitability, financial position, asset value or other
factor relating to the value of the Corporation, as well as discounts to account
for minority interests and lack of marketability.
(h) "Grant Agreement" shall mean a written document memorializing the terms
and conditions of an Award granted pursuant to the Plan and shall incorporate
the terms of the Plan.
(i) "Parent" shall mean a corporation, whether now or hereafter existing,
within the meaning of the definition of "parent corporation" provided in Code
section 424(e), or any successor thereto.
(j) "Subsidiary" and "subsidiaries" shall mean only a corporation or
corporations, whether now or hereafter existing, within the meaning of the
definition of "subsidiary corporation" provided in Section 424(f) of the Code,
or any successor thereto.
3. Administration
(a) Administration of the Plan. The Plan shall be administered by the
Board or by such committee or committees as may be appointed by the Board from
time to time (the Board, committee or committees hereinafter referred to as the
"Administrator").
(b) Powers of the Administrator. The Administrator shall have all the
powers vested in it by the terms of the Plan, such powers to include authority,
in its sole and absolute discretion, to grant Awards under the Plan, prescribe
Grant Agreements evidencing such Awards and establish programs for granting
Awards.
The Administrator shall have full power and authority to take all other
actions necessary to carry out the purpose and intent of the Plan, including,
but not limited to, the authority to: (i) determine the eligible persons to
whom, and the time or times at which Awards shall be granted; (ii) determine the
types of Awards to be granted; (iii) determine the number of shares to be
covered by or used for reference
-2-
<PAGE>
purposes for each Award; (iv) impose such terms, limitations, restrictions and
conditions upon any such Award as the Administrator shall deem appropriate; (v)
modify, amend, extend or renew outstanding Awards, or accept the surrender of
outstanding Awards and substitute new Awards (provided however, that, except as
provided in Section 7(d) of the Plan, any modification that would materially
adversely affect any outstanding Award shall not be made without the consent of
the holder); (vi) accelerate or otherwise change the time in which an Award may
be exercised or becomes payable and to waive or accelerate the lapse, in whole
or in part, of any restriction or condition with respect to such Award,
including, but not limited to, any restriction or condition with respect to the
vesting or exercisability of an Award following termination of any grantee's
employment; and (vii) establish objectives and conditions, if any, for earning
Awards and determining whether Awards will be paid after the end of a
performance period.
The Administrator shall have full power and authority, in its sole and
absolute discretion, to administer and interpret the Plan and to adopt and
interpret such rules, regulations, agreements, guidelines and instruments for
the administration of the Plan and for the conduct of its business as the
Administrator deems necessary or advisable.
(c) Non-Uniform Determinations. The Administrator's determinations under
the Plan (including without limitation, determinations of the persons to receive
Awards, the form, amount and timing of such Awards, the terms and provisions of
such Awards and the Grant Agreements evidencing such Awards) need not be uniform
and may be made by the Administrator selectively among persons who receive, or
are eligible to receive, Awards under the Plan, whether or not such persons are
similarly situated.
(d) Limited Liability. To the maximum extent permitted by law, no member
of the Administrator shall be liable for any action taken or decision made in
good faith relating to the Plan or any Award thereunder.
(e) Indemnification. To the maximum extent permitted by law and by the
Corporation's charter and by-laws, the members of the Administrator shall be
indemnified by the Corporation in respect of all their activities under the
Plan.
(f) Effect of Administrator's Decision. All actions taken and decisions and
determinations made by the Administrator on all matters relating to the Plan
pursuant to the powers vested in it hereunder shall be in the Administrator's
sole and absolute discretion and shall be conclusive and binding on all parties
concerned, including the Corporation, its stockholders, any participants in the
Plan and any other employee of the Corporation, and their respective successors
in interest.
4. Shares Available for the Plan; Maximum Awards
Subject to adjustments as provided in Section 7(d) of the Plan, the shares
of Common Stock that may be issued with respect to Awards granted under the Plan
shall not exceed an aggregate of 11,250,000 shares of Common Stock. The
Corporation shall reserve such number of shares for Awards under the Plan,
subject to adjustments as provided in Section 7(d) of the Plan. If any Award, or
portion of an Award, under the Plan expires or terminates unexercised, becomes
unexercisable or is forfeited or otherwise terminated, surrendered or canceled
as to any shares, or if any shares of Common Stock are surrendered to the
Corporation in connection with any Award (whether or not such surrendered shares
were acquired pursuant to any Award), the shares subject to such Award and the
surrendered shares shall thereafter be available for further Awards under the
Plan; provided, however, that any such shares that are
-3-
<PAGE>
surrendered to the Corporation in connection with any Award or that are
otherwise forfeited after issuance shall not be available for purchase pursuant
to incentive stock options intended to qualify under Code section 422.
5. Participation
Participation in the Plan shall be open to all employees, officers,
directors, and consultants of the Corporation, or of any Affiliate of the
Corporation, as may be selected by the Administrator from time to time.
6. Awards
The Administrator, in its sole discretion, establishes the terms of all
Awards granted under the Plan. Awards may be granted individually or in tandem
with other types of Awards. All Awards are subject to the terms and conditions
provided in the Grant Agreement.
(a) Stock Options. The Administrator may from time to time grant to
eligible participants Awards of incentive stock options as that term is defined
in Code section 422 or nonqualified stock options; provided, however, that
Awards of incentive stock options shall be limited to employees of the
Corporation or of any Parent or Subsidiary of the Corporation. Options intended
to qualify as incentive stock options under Code section 422 must have an
exercise price at least equal to Fair Market Value on the date of grant, but
nonqualified stock options may be granted with an exercise price less than Fair
Market Value. No stock option shall be an incentive stock option unless so
designated by the Administrator at the time of grant or in the Grant Agreement
evidencing such stock option.
(b) Stock Appreciation Rights. The Administrator may from time to time
grant to eligible participants Awards of Stock Appreciation Rights ("SAR"). An
SAR entitles the grantee to receive, subject to the provisions of the Plan and
the Grant Agreement, a payment having an aggregate value equal to the product of
(i) the excess of (A) the Fair Market Value on the exercise date of one share of
Common Stock over (B) the base price per share specified in the Grant Agreement,
times (ii) the number of shares specified by the SAR, or portion thereof, which
is exercised. Payment by the Corporation of the amount receivable upon any
exercise of an SAR may be made by the delivery of Common Stock or cash, or any
combination of Common Stock and cash, as determined in the sole discretion of
the Administrator. If upon settlement of the exercise of an SAR a grantee is to
receive a portion of such payment in shares of Common Stock, the number of
shares shall be determined by dividing such portion by the Fair Market Value of
a share of Common Stock on the exercise date. No fractional shares shall be used
for such payment and the Administrator shall determine whether cash shall be
given in lieu of such fractional shares or whether such fractional shares shall
be eliminated.
(c) Stock Awards. The Administrator may from time to time grant restricted
or unrestricted stock Awards to eligible participants in such amounts, on such
terms and conditions, and for such consideration, including no consideration or
such minimum consideration as may be required by law, as it shall determine. A
stock Award may be paid in Common Stock, in cash, or in a combination of Common
Stock and cash, as determined in the sole discretion of the Administrator.
(d) Phantom Stock. The Administrator may from time to time grant Awards to
eligible participants denominated in stock-equivalent units ("phantom stock") in
such amounts and on such terms and conditions as it shall determine. Phantom
stock units granted to a participant shall be credited to a bookkeeping reserve
account solely for accounting purposes and shall not require a segregation of
any of
-4-
<PAGE>
the Corporation's assets. An Award of phantom stock may be settled in Common
Stock, in cash, or in a combination of Common Stock and cash, as determined in
the sole discretion of the Administrator. Except as otherwise provided in the
applicable Grant Agreement, the grantee shall not have the rights of a
stockholder with respect to any shares of Common Stock represented by a phantom
stock unit solely as a result of the grant of a phantom stock unit to the
grantee.
(e) Performance Awards. The Administrator may, in its discretion, grant
performance awards which become payable on account of attainment of one or more
performance goals established by the Administrator. Performance awards may be
paid by the delivery of Common Stock or cash, or any combination of Common Stock
and cash, as determined in the sole discretion of the Administrator. Performance
goals established by the Administrator may be based on the Corporation's or an
Affiliate's operating income or one or more other business criteria selected by
the Administrator that apply to an individual or group of individuals, a
business unit, or the Corporation or an Affiliate as a whole, over such
performance period as the Administrator may designate.
7. Miscellaneous
(a) Withholding of Taxes. Grantees and holders of Awards shall pay to the
Corporation, or make provision satisfactory to the Administrator for payment of,
any taxes required to be withheld in respect of Awards under the Plan no later
than the date of the event creating the tax liability. The Corporation may, to
the extent permitted by law, deduct any such tax obligations from any payment of
any kind otherwise due to the grantee or holder of an Award. In the event that
payment to the Corporation of such tax obligations is made in shares of Common
Stock, such shares shall be valued at Fair Market Value on the applicable date
for such purposes.
(b) Loans. The Corporation may make or guarantee loans to grantees to
assist grantees in exercising Awards and satisfying any withholding tax
obligations.
(c) Transferability. Except as otherwise determined by the Administrator,
and in any event in the case of an incentive stock option or a stock
appreciation right granted with respect to an incentive stock option, no Award
granted under the Plan shall be transferable by a grantee otherwise than by will
or the laws of descent and distribution. Unless otherwise determined by the
Administrator in accord with the provisions of the immediately preceding
sentence, an Award may be exercised during the lifetime of the grantee, only by
the grantee or, during the period the grantee is under a legal disability, by
the grantee's guardian or legal representative.
(d) Adjustments; Business Combinations. In the event of changes in the
Common Stock of the Corporation by reason of any stock dividend, split-up,
recapitalization, merger, consolidation, business combination or exchange of
shares and the like, the Administrator shall, in its discretion, make
appropriate adjustments to the maximum number and kind of shares reserved for
issuance or with respect to which Awards may be granted under the Plan as
provided in Section 4 of the Plan and to the number, kind and price of shares
covered by outstanding Awards, and shall, in its discretion and without the
consent of holders of Awards, make any other adjustments in outstanding Awards,
including but not limited to reducing the number of shares subject to Awards or
providing or mandating alternative settlement methods such as settlement of the
Awards in cash or in shares of Common Stock or other securities of the
Corporation or of any other entity, or in any other matters which relate to
Awards as the Administrator shall, in its sole discretion, determine to be
necessary or appropriate.
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<PAGE>
Notwithstanding anything in the Plan to the contrary and without the
consent of holders of Awards, the Administrator, in its sole discretion, may
make any modifications to any Awards, including but not limited to cancellation,
forfeiture, surrender or other termination of the Awards in whole or in part
regardless of the vested status of the Award, in order to facilitate any
business combination that is authorized by the Board to comply with requirements
for treatment as a pooling of interests transaction for accounting purposes
under generally accepted accounting principles.
The Administrator is authorized to make, in its discretion and without the
consent of holders of Awards, adjustments in the terms and conditions of, and
the criteria included in, Awards in recognition of unusual or nonrecurring
events affecting the Corporation, or the financial statements of the Corporation
or any Subsidiary, or of changes in applicable laws, regulations, or accounting
principles, whenever the Administrator determines that such adjustments are
appropriate in order to prevent dilution or enlargement of the benefits or
potential benefits intended to be made available under the Plan.
(e) Substitution of Awards in Mergers and Acquisitions. Awards may be
granted under the Plan from time to time in substitution for Awards held by
employees or directors of entities who become or are about to become employees
or directors of the Corporation or an Affiliate as the result of a merger or
consolidation of the employing entity with the Corporation or an Affiliate, or
the acquisition by the Corporation or an Affiliate of the assets or stock of the
employing entity. The terms and conditions of any substitute Awards so granted
may vary from the terms and conditions set forth herein to the extent that the
Administrator deems appropriate at the time of grant to conform the substitute
Awards to the provisions of the awards for which they are substituted.
(f) Stock Restriction Agreement. As a condition precedent to the grant of
any Award under the Plan or the exercise pursuant to such an Award or to the
delivery of certificates for shares issued pursuant to any Award, the
Administrator may require the grantee or the grantee's successor or permitted
transferee, as the case may be, to become a party to a Stock Restriction
Agreement of the Corporation in such form as the Administrator may determine
from time to time.
(g) Termination, Amendment and Modification of the Plan. The Board may
terminate, amend or modify the Plan or any portion thereof at any time.
(h) Non-Guarantee of Employment or Service. Nothing in the Plan or in any
Grant Agreement thereunder shall confer any right on an individual to continue
in the service of the Corporation or shall interfere in any way with the right
of the Corporation to terminate such service at any time.
(i) Compliance with Securities Laws; Listing and Registration. Common Stock
shall not be issued with respect to an Award granted under the Plan unless the
exercise of such Award and the issuance and delivery of stock certificates for
such Common Stock pursuant thereto shall comply with all relevant provisions of
law, including, without limitation, the Securities Act of 1933 and the Exchange
Act, the rules and regulations promulgated thereunder, and the requirements of
any national securities exchange or any listing or quotation system established
by the National Association of Securities Dealers, Inc. ("Nasdaq System") upon
which the Common Stock may then be listed or quoted, and shall be further
subject to the approval of counsel for the Corporation with respect to such
compliance to the extent such approval is sought by the Committee. The
Corporation may require that a grantee, as a condition to exercise of an Award,
and as a condition to the delivery of any share certificate, provide to the
Corporation, at the time of each such exercise and each such delivery, a written
representation that the shares of Common Stock being acquired shall be acquired
by the grantee solely for investment and will not be sold or transferred without
registration or the availability of an exemption from registration under
-6-
<PAGE>
the Securities Act and applicable state securities laws. The stock certificates
for any shares of Common Stock issued pursuant to this Plan may bear a legend
restricting transferability of the shares of Common Stock unless such shares are
registered or an exemption from registration is available under the Securities
Act and applicable state securities laws.
(j) No Trust or Fund Created. Neither the Plan nor any Award shall create
or be construed to create a trust or separate fund of any kind or a fiduciary
relationship between the Corporation and a grantee or any other person. To the
extent that any grantee or other person acquires a right to receive payments
from the Corporation pursuant to an Award, such right shall be no greater than
the right of any unsecured general creditor of the Corporation.
(k) Governing Law. The validity, construction and effect of the Plan, of
Grant Agreements entered into pursuant to the Plan, and of any rules,
regulations, determinations or decisions made by the Administrator relating to
the Plan or such Grant Agreements, and the rights of any and all persons having
or claiming to have any interest therein or thereunder, shall be determined
exclusively in accordance with applicable federal laws and the laws of the
Commonwealth of Virginia, without regard to its conflict of laws principles.
(l) Effective Date; Termination Date. The Plan is effective as of the date
on which the Plan was adopted by the Board, subject to approval of the
stockholders within twelve months before or after such date. No Award shall be
granted under the Plan after the close of business on the day immediately
preceding the tenth anniversary of the effective date of the Plan. Subject to
other applicable provisions of the Plan, all Awards made under the Plan prior to
such termination of the Plan shall remain in effect until such Awards have been
satisfied or terminated in accordance with the Plan and the terms of such
Awards.
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<PAGE>
EXHIBIT 5.1
PIPER & MARBURY
L.L.P.
SUITE 610, COMMERCE EXECUTIVE PARK III
1850 CENTENNIAL PARK DRIVE BALTIMORE
Reston, Virginia 20191 WASHINGTON
703-391-7100 NEW YORK
FAX: 703-390-5299 PHILADELPHIA
EASTON
August 17, 1999
Network Access Solutions Corporation
100 Carpenter Drive
Sterling, Virginia 20164
Ladies and Gentlemen:
We have acted as counsel to Network Access Solutions Corporation, a
Delaware corporation (the "Company"), in connection with the preparation and
filing with the Securities and Exchange Commission of a registration statement
on Form S-8 (the "Registration Statement") registering 11,250,000 shares of
Common Stock, par value $.001 per share, issuable pursuant to the exercise of
stock options or other awards granted under the 1998 Stock Incentive Plan (the
"Plan Shares").
We have examined copies of the Company's Amended and Restated Certificate
of Incorporation, By-Laws, the Plan, all resolutions adopted by the Company's
Board of Directors relating to the above and other records and documents that we
have deemed necessary for the purpose of this opinion. We have also examined
such other documents, papers, statutes and authorities as we have deemed
necessary to form a basis for this opinion. In our examination, we have assumed
the genuineness of all signatures and the conformity to original documents of
all copies submitted to us. As to various questions of fact material to this
opinion, we have relied on statements and certificates of officers and
representatives of the Company and others.
Based upon the foregoing, we are of the opinion that the Plan Shares
issuable under the Plan have been duly authorized and will be (when issued, sold
and delivered as authorized) validly issued, fully paid and non-assessable.
The opinion set forth herein is limited to matters governed by the laws of
the Delaware General Corporation Law and the Federal Laws of the United States
of America, and we express no opinion as to any other laws.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement and to the reference to us under Item 5 of the
Registration Statement.
Very truly yours,
/s/ Piper & Marbury L.L.P.
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated March 18, 1999, except for the second
paragraph of Note 12 for which the date is May 11, 1999, the third and fourth
paragraphs for which the date is April 1, 1999 and the fifth, sixth and seventh
paragraphs for which the dates are May 4, May 6 and May 7, 1999, respectively,
relating to the financial statements which appear in the Network Access
Solutions Corporation Registration Statement on Form S-1 (No. 333-74679).
/s/ PricewaterhouseCoopers LLP
McLean, Virginia
August 17, 1999
