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As filed with the Securities and Exchange Commission on June 15, 2000
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
NM ACQUISITION CORP.
(Exact name of registrant as specified in its charter)
Delaware 54-1983517
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
1505 Farm Credit Drive
McLean, Virginia 22102
(703) 547-2000
(Address, including zip code, and telephone number, including
area code, of principal executive offices)
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NEXTLINK Communications, Inc. Employee Stock Purchase Plan
NEXTLINK Communications, Inc. 401(k) Savings and Retirement Plan
NEXTLINK Communications, Inc. Stock Option Plan
NEXTLINK Communications, Inc. Executive Retention Bonus Plan
Concentric Network Corporation 1999 Nonstatutory Stock Option Plan
Concentric Network Corporation Amended and Restated 1997 Stock Option Plan
Concentric Network Corporation Amended and Restated 1996 Stock Plan
Concentric Network United Kingdom Limited Share Option Scheme
Concentric Network Corporation Netherlands Share Option Scheme
Delta Internet Services, Inc. 1996 Stock Option Plan
Concentric Network Corporation 1995 Stock Incentive Plan for
Employees and Consultants
Concentric Network Corporation Option Agreements with Certain Employees
(Full title of the plans)
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Gary Begeman, Esq.
NEXTLINK Communications, Inc.
1505 Farm Credit Drive
McLean, Virginia 22102
(703) 547-2000
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
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Copies to
Bruce R. Kraus, Esq.
Willkie Farr & Gallagher
787 Seventh Avenue
New York, NY 10019
(212) 728-8000
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<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
========================= ======================= ======================== ====================== =====================
Title of securities to Amount to be Proposed maximum Proposed maximum Amount of
be registered registered (1) offering price per aggregate offering registration fee
share (2) price (2)
------------------------- ----------------------- ------------------------ ---------------------- ---------------------
<S> <C> <C> <C> <C>
Class A Common Stock,
$0.02 par value per
share to be issued 36,848,732 (3) $1,516,266,183.96 $400,294.27
pursuant to outstanding
options
========================= ======================= ======================== ====================== =====================
Class A Common Stock,
$0.02 par value per
share to be issued in 17,849,018 $69.62 $1,242,648,633.16 $328,059.24
the future pursuant to -----------
the Plans $728,353.51
========================= ======================= ======================== ====================== =====================
</TABLE>
(1) This Registration Statement covers 41,543,902 shares of Class A common
stock, $0.02 par value per share (the "Common Stock") issuable pursuant to the
Nextlink Communications, Inc. Stock Option Plan, of which 30,298,507 are subject
to currently outstanding options, 371,117 shares of Common Stock issuable
pursuant to the Nextlink Communications, Inc. 401(k) Savings and Retirement Plan
(the "401(k) Plan"), 5,732,506 shares of Common Stock issuable pursuant to the
Nextlink Communications, Inc. Employee Stock Purchase Plan, 500,000 shares of
Common Stock issuable pursuant to the Nextlink Communications, Inc. Executive
Retention Bonus Plan, 1,160,040 shares of Common Stock issuable pursuant to
outstanding options under the Concentric Network Corporation 1999 Nonstatutory
Stock Option Plan, 4,155,248 shares of Common Stock issuable pursuant to
outstanding options under the Concentric Network Corporation Amended and
Restated 1997 Stock Option Plan, 289,882 shares of Common Stock issuable
pursuant to outstanding options under the Concentric Network Corporation Amended
and Restated 1996 Stock Plan, 23,688 shares of Common Stock issuable pursuant to
outstanding options under the Concentric Network Corporation 1995 Stock
Incentive Plan for Employees and Consultants, 669,629 shares of Common Stock
issuable pursuant to outstanding options under the Concentric Network United
Kingdom Limited Share Option Scheme, 1,912 shares of Common Stock issuable
pursuant to outstanding options under the Delta Internet Services, Inc. 1996
Stock Option Plan, 37,406 shares of Common Stock issuable pursuant to
outstanding options under the Concentric Network Corporation Netherlands Share
Option Scheme and 212,415 shares of Common Stock issuable pursuant to
outstanding options with certain employees of NM Acquisition Corp.
(collectively, the "Plans"). In addition, this Registration Statement covers an
indeterminable number of participation interests to be offered and sold pursuant
to the 401(k) Plan and an indeterminable number of additional shares of Common
Stock as may hereafter be offered or issued pursuant to the Plans, to prevent
dilution resulting from stock splits, stock dividends or similar transactions
effected without receipt of consideration and, pursuant to Rule 416(c) under the
Securities Act of 1933, as amended (the "Securities Act"). The number of shares
listed does not take into account the 2 for 1 stock split to take effect on June
15, 2000.
(2) Estimated solely for calculating the amount of the registration fee.
With respect to outstanding options, the registration fee is based on the
aggregate exercise prices thereof and with respect to future offers and sales of
Common Stock pursuant to the Plans, the registration fee has been calculated
pursuant to Rule 457(h) under the Securities Act based upon the average of the
high and low sales prices of the Common Stock as reported by the Nasdaq National
Market on June 13, 2000.
(3) The outstanding options have exercise prices that range from $0.01 per
share to $132 per share.
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PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, filed with the Securities and Exchange Commission
(the "Commission") by NM Acquisition Corp., a Delaware corporation (the
"Company"), and NEXTLINK Communications, Inc., a Delaware corporation
("Nextlink"), are incorporated by reference into the Registration Statement:
(a) Nextlink's Annual Report on Form 10-K for the fiscal year ended
December 31, 1999, filed pursuant to the Securities Exchange Act of 1934 (the
"Exchange Act");
(b) Nextlink's Quarterly Report on Form 10-Q for the quarter ended March
31, 2000;
(c) Nextlink's Current Reports on Form 8-K as filed with the Securities and
Exchange Commission on January 11, 2000, January 24, 2000, February 16, 2000 and
May 23, 2000;
(d) the Company's Registration Statement on Form S-4 (Registration No.
333-34974) filed pursuant to the Securities Act on April 17, 2000; and
(e) the description of the Common Stock, which is incorporated by reference
into Nextlink's Registration Statement on Form 8-A, File No. 000-22939, dated
August 4, 1997, filed pursuant to the Exchange Act, as amended by Nextlink's
Form 8-A/A-1, dated September 18, 1997, and contained in Nextlink's Registration
Statement on Form S-1, File No. 333-32001 filed pursuant to the Securities Act.
In addition, all documents filed by the Company, Nextlink or the 401(k)
Plan with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act subsequent to the date of the Registration Statement and prior to
the filing of a post-effective amendment which indicates that all the securities
offered hereby have been sold or which deregisters all securities then remaining
unsold shall be deemed to be incorporated herein by reference and to be a part
hereof from the date of the filing of such documents with the Commission.
THE COMPANY WILL PROVIDE WITHOUT CHARGE, UPON WRITTEN OR ORAL REQUEST, A
COPY OF ANY OR ALL OF THE FOREGOING DOCUMENTS INCORPORATED HEREIN BY REFERENCE
(OTHER THAN EXHIBITS TO SUCH DOCUMENTS). IN ADDITION, THE COMPANY WILL PROVIDE
ALL DOCUMENTS REQUIRED TO BE DELIVERED TO PARTICIPANTS PURSUANT TO RULE 428(b)
OF THE SECURITIES ACT. REQUESTS FOR SUCH DOCUMENTS SHOULD BE DIRECTED TO RICHARD
A. MONTFORT, ESQ., NEXTLINK COMMUNICATIONS,
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INC., 1505 FARM CREDIT DRIVE, MCLEAN, VIRGINIA 22102, (703) 547-2000.
Item 4. DESCRIPTION OF SECURITIES
Inapplicable
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Inapplicable
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company is a Delaware corporation. In its Certificate of Incorporation,
the Company has adopted the provisions of Section 102(b)(7) of the Delaware
General Corporation Law (the "Delaware Law"), which enables a corporation in its
original certificate of incorporation or an amendment thereto to eliminate or
limit the personal liability of a director for monetary damages for breach of
the director's fiduciary duty, except (i) for any breach of the director's duty
of loyalty to the corporation or its stockholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing violation
of law, (iii) pursuant to Section 174 of the Delaware Law (providing for
liability of directors for unlawful payment of dividends or unlawful stock
purchases or redemptions) or (iv) for any transaction from which a director will
personally receive a benefit in money, property or services to which the
director is not legally entitled.
The Company has also adopted indemnification provisions pursuant to Section
145 of the Delaware Law, which provides that a corporation may indemnify any
persons, including officers and directors, who are, or are threatened to be
made, parties to any threatened, pending or completed legal action, suit or
proceedings, whether civil, criminal, administrative or investigative (other
than an action by or in the right of the corporation), by reason of the fact
that such person was an officer, director, employee or agent of the corporation,
or is or was serving at the request of such corporation as a director, officer,
employee or agent of another corporation or enterprise. The indemnity may
include expenses (including attorney's fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding, provided such officer, director, employee or
agent acted in good faith and in a manner he reasonably believed to be in or not
opposed to the corporation's best interests and, with respect to criminal
proceedings, had no reasonable cause to believe that his conduct was unlawful. A
Delaware corporation may indemnify officers or directors in an action by or in
the right of the corporation under the same conditions, except that no
indemnification is permitted without judicial approval if the officer or
director is adjudged to be liable to the corporation. Where an officer or
director is
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successful on the merits or otherwise in the defense of any action referred to
above, the corporation must indemnify him against expenses (including attorney's
fees) that such officer or director actually and reasonably incurred.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Inapplicable
Item 8. EXHIBITS
Exhibit No.
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5 Opinion of Willkie Farr & Gallagher with respect to the legality of
the securities to be issued pursuant to all of the Plans.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Willkie Farr & Gallagher (contained in Exhibit 5).
24 Power of Attorney (reference is made to the signature page).
The Company hereby undertakes to submit the 401(k) Plan and any amendments
thereto to the Internal Revenue Service (the "IRS") in a timely manner and will
make all changes required by the IRS in order to qualify the 401(k) Plan as a
tax-exempt retirement trust so long as the 401(k) Plan remains in force.
Item 9. UNDERTAKINGS
1. The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being made, a
post-effective amendment to the 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 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 the
Registration Statement;
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in the Registration
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Statement or any material change to such information in the Registration
Statement;
provided, however, that paragraphs (a)(i) and (a)(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 by the Company pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
(b) 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.
(c) 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.
2. The undersigned registrants hereby undertake that, for purposes of
determining any liability under the Securities Act, each filing of the Company's
annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act and
each filing of the 401(k) Plan's annual report pursuant to Section 15(d) of the
Exchange Act 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.
3. 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, the Company 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 McLean, State of Virginia, on the 15th day of June, 2000.
NM Acquisition Corp.
By: /s/ Gary D. Begeman
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Gary D. Begeman
Vice President and Secretary
Pursuant to the requirements of the Securities Act, the administrative
committee of the 401(k) Plan has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of McLean, State of Virginia, on the 15th day of June, 2000.
NEXTLINK Communications, Inc.
401(k) Savings and Retirement Plan
By: /s/ Thomas Antonielli
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A member of the administrative
committee of the 401(k) Plan
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POWERS OF ATTORNEY
We the undersigned officers and directors of Nextlink Communications, Inc.
hereby severally and individually constitute and appoint Gary D. Begeman,
Richard A. Montfort, Jr. and Mark S. Gunning, and each of them, as the true and
lawful attorneys-in-fact for the undersigned, in any and all capacities, with
full power of substitution, to sign any and all amendments to this Registration
Statement (including post-effective amendments), and to file the same with
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact, 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 each of them, 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 and on the dates indicated.
Signature Title Date
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/s/ Daniel F. Akerson President (Principal June 15, 2000
------------------------------ Executive Officer)
Daniel F. Akerson
/s/ Mark S. Gunning Vice President and Treasurer June 15, 2000
------------------------------ (Principal Financial Officer
Mark S. Gunning and Principal Accounting
Officer)
/s/ Gary D. Begeman Vice President, June 15, 2000
------------------------------ Secretary and Director
Gary D. Begeman
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INDEX TO EXHIBITS
Exhibit No. Description of Exhibit
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5 Opinion of Willkie Farr & Gallagher.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Willkie Farr & Gallagher (contained in Exhibit 5).
24 Powers of Attorney (included on signature page).
