As Filed with the Securities and Exchange Commission on February 20, 1998
Registration No. 33-60222
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8 POS
AMENDMENT NO. 2
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
GENERAL COMMUNICATION, INC.
(Exact name of issuer as specified in its Charter)
ALASKA 92-0072737
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2550 Denali Street, Suite 1000, Anchorage, Alaska 99503-2781
(Address of Principal Executive Offices) (zip code)
GENERAL COMMUNICATION, INC.
REVISED 1986 STOCK OPTION PLAN
(Full title of the plan)
John M. Lowber
General Communication, Inc.
2550 Denali Street, Suite 1000, Anchorage,
Alaska 99503-2781
(Name and address of agent for service)
(907) 265-5600
(Telephone number, including area code, of agent for service)
Copy to: J. J. Brecht
Wohlforth, Argetsinger, Johnson & Brecht, A Professional Corporation
900 West 5th Avenue, Suite 600, Anchorage, Alaska 99501
(907) 276-6401
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
=================================================================================================================
Proposed Proposed Maximum Amount of
Title of Securities to Amount to Maximum Aggregate Offering Registration
be Registered be Registered Offering Price (1) Price Fee
- - ----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
General Communication,
Inc. Class
A Common Stock 2,500,000 $19,062,500 $19,062,500 $5,623.44
=================================================================================================================
<FN>
1 Estimated solely for the purpose of calculating the amount of the
registration fee, based upon the average of the high and low prices of $7.75 per
share and $7.50 per share, respectively, for the Class A common stock, i.e., an
average of $7.625 per share, which will be the subject of the options under the
Plan, as quoted on the Nasdaq Stock Market on February 17, 1998.
- - -----------------
</FN>
</TABLE>
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information
The contents of the initial Registration Statement pertaining to the
General Communication, Inc. Revised 1986 Stock Option Plan filed with the
Securities and Exchange Commission on Form S-8 on April 5, 1993 (Registration
No. 33-60222) and the post-effective amendment no. 1 filed with the Commission
on Form S-8 POS on August 24, 1995, and the Company's 1996 Annual report on Form
10-K, as amended, are incorporated by reference into this Amendment No. 2 to
that Registration Statement. Required opinions, consents, and signatures are
included in this amendment.
Item 2. Registrant Information and Employee Plan Annual Information
See Item 1.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
See Item 1.
Item 4. Description of Securities
See Item 1.
Item 5. Interests of Named Experts and Counsel
See Item 1.
Item 6. Indemnification of Directors and Officers
See Item 1.
Item 7. Exemption from Registration Claimed
See Item 1.
Registration Statement (S-8) Amendment No. 2
GCI Stock Option Plan
ASS00C46/0618.0729 Page 2
<PAGE>
Item 8. Exhibits
See Exhibit Index and exhibits at the end of this Amendment No. 2 to
the Registration Statement.
Item 9. Undertakings
The Company hereby undertakes each and every one of the following:
(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 the 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) (adopted pursuant to the Securities Act of
1933, as amended) if, in the aggregate, the changes
in volume and price represent no more than a 20%
change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table
in the effective 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;
provided, however, that paragraphs (1)(i) and (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 the Registration Statement;
(2) To agree 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;
Registration Statement (S-8) Amendment No. 2
GCI Stock Option Plan
ASS00C46/0618.0729 Page 3
<PAGE>
(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;
(4) To agree 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 15(d) of the Exchange Act (and,
where applicable, each filing of the Plan's annual report
pursuant to Section 15(d) of the Exchange Act) 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; and
(5) To disclose, in so far 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 Securities
and Exchange Commission such indemnification is against public
policy as expressed in that act and is, therefore,
unenforceable; and 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, to submit,
unless in the opinion of its counsel the matter has been
settled by controlling precedent, to a court of appropriate
jurisdiction the question whether such indemnification by the
Company is against public policy as expressed in that act and
to be governed by the final adjudication of that issue.
Registration Statement (S-8) Amendment No. 2
GCI Stock Option Plan
ASS00C46/0618.0729 Page 4
<PAGE>
SIGNATURES
The Registrant. 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 Municipality of Anchorage, State of Alaska, on February 17th,
1998.
GENERAL COMMUNICATION, INC.
(Registrant)
By: /s/ By: /s/
Ronald A. Duncan John M. Lowber
President and Chief Chief Financial Officer
Executive Officer (Principal Financial Officer)
(Principal Executive Officer)
By: /s/
Alfred J. Walker
Vice President & Chief
Accounting Officer
(Principal Accounting Officer)
Registration Statement (S-8) Amendment No. 2
GCI Stock Option Plan
ASS00C46/0618.0729 Page 5
<PAGE>
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:
/s/ 1/30/98
Ronald A. Duncan Date
President, Chief Executive Officer and Director
(Principal Executive Officer)
/s/ 1/30/98
Carter F. Page Date
Chairman of the Board
and Director
/s/ 1/30/98
Robert M. Walp Date
Vice Chairman of the Board
and Director
Donne F. Fisher, Director Date
/s/ 1/30/98
Jeffery C. Garvey, Director Date
/s/ 1/30/98
John W. Gerdelman, Director Date
/s/ 1/30/98
William P. Glasgow, Director Date
/s/ 1/30/98
Donald Lynch, Director Date
/s/ 1/30/98
Larry E. Romrell, Director Date
/s/ 1/27/98
James M. Schneider, Director Date
Registration Statement (S-8) Amendment No. 2
GCI Stock Option Plan
ASS00C46/0618.0729 Page 6
<PAGE>
The Plan. Pursuant to the requirements of the Securities Act of 1933,
the Plan has duly caused this Registration Statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the locations and on the dates
indicated, effective for the Plan as of February 20, 1998.
GENERAL COMMUNICATION, INC. REVISED 1986 STOCK OPTION PLAN
By: Stock Option Plan Committee
/s/ 1/30/98
Jeffery C. Garvey Date, Location
/s/ 1/30/98, Washington, D.C.
John W. Gerdelman Date, Location
/s/ 1/30/98
William P. Glasgow Date, Location
/s/ 1/30/98
Donald Lynch Date, Location
/s/ 1/30/98
Larry E. Romrell Date, Location
/s/ 1/30/98
Robert M. Walp Date, Location
Registration Statement (S-8) Amendment No. 2
GCI Stock Option Plan
ASS00C46/0618.0729 Page 7
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
EXHIBITS TO
FORM S-8 REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
FOR THE GENERAL COMMUNICATION, INC.
REVISED 1986 STOCK OPTION PLAN
Registration Statement (S-8) Amendment No. 2
GCI Stock Option Plan
ASS00C46/0618.0729 Page 8
<PAGE>
EXHIBIT INDEX
Exhibit No.
Description
4 Instruments defining rights of security holders, including
indentures 4.1 Restated Articles of Incorporation of
General Communication, Inc.
4.2 (1) Bylaws of General Communication, Inc.
4.3.2 Separate resolutions of Board of Directors of the Company
and of Shareholders of the Company dated December 17, 1986
from meetings at which the board established and the
shareholders approved the establishment of the 1986 Stock
Option Plan
4.3.2 Copy of the General Communication, Inc. Revised 1986 Stock
Option Plan revised as of January 9, 1998
4.3.3 (2) Resolution of Shareholders of the Company adopted at their
September 15, 1988 meeting approving an increase in the
number of shares allocated to the Plan by 250,000 shares of
Class A common stock
4.3.4 (2) Resolution of Shareholders of the Company adopted at their
November 12, 1991 meeting approving certain amendments to
the Plan including increasing the number of shares
allocated to the Plan by 1,500,000 shares of Class A common
stock
4.3.5 (2) Resolution of Board of Directors of the Company adopted at
its meeting on December 5-6, 1991 approving certain
amendments to the Plan including changing the option price
per share to less than, equal to, or greater than the
market value, extending the option exercise period from
five to ten years, and making other changes to the Plan
4.3.6 (2) Resolution of Board of Directors of the Company at its June
4, 1992 meeting to make certain changes to cause the Plan
to comply with Rule 16b-3
4.3.7 (3) Resolution of Board of Directors of the Company adopted at
its meeting on February 9, 1995 approving certain
amendments to the Plan including increasing the number of
shares allocated to the Plan by 850,000 shares of Class A
common stock
Registration Statement (S-8) Amendment No. 2
GCI Stock Option Plan
ASS00C46/0618.0729 Page 9
<PAGE>
4.3.8 (3) Resolution of Shareholders of the Company adopted at their
June 20, 1995 meeting approving certain amendments to the
Plan recommended by the Board of Directors including
increasing the number of shares allocated to the Plan by
850,000 shares of Class A common stock
4.3.9 Resolution of the Board of Directors of the Company adopted
at its meeting on February 6, 1997, approving an amendment
to the Plan increasing the number of shares allocated to
the Plan by 2,500,000 shares of Class A common stock
4.3.10 Resolution of Shareholders of the Company adopted at their
November 25, 1997, meeting approving an amendment to the
Plan recommended by the Board of Directors increasing the
number of shares allocated to the Plan by 2,500,000 shares
of Class A common stock
5 Opinion re legality
5.1 (2) Legal Opinion on Legality of Options and Shares dated March
30, 1993
5.2 (3) Legal Opinion on Legality of Options and Shares dated
August 23, 1995
5.3 Legal opinion on Legality of Options and Shares dated
February 20, 1998
15 None
23 Consents
23.1 Consent of Wohlforth, Argetsinger, Johnson & Brecht, A
Professional Corporation
23.2 Consent of Harris, Orr, Wakayama & Mason, A Professional
Limited Liability Company
23.3 Consent of KPMG Peat Marwick LLP
99 None
- - ---------------------------------------------
1/ Incorporated by reference and previously filed with the SEC as an
exhibit to the Company's annual report on Form 10-K for the year ended
December 31, 1992.
2/ Incorporated by reference and previously filed with the SEC as an
exhibit to the Company's Registration for the Plan (Registration No.
33-60222) filed April 5, 1993.
Registration Statement (S-8) Amendment No. 2
GCI Stock Option Plan
ASS00C46/0618.0729 Page 10
<PAGE>
3/ Incorporated by reference and previously filed with the SEC as an
exhibit to the Company's post-effective amendment no. 1 to the
Company's Registration for the Plan (Registration No. 33-60222) filed
August 24, 1995.
Registration Statement (S-8) Amendment No. 2
GCI Stock Option Plan
ASS00C46/0618.0729 Page 11
<PAGE>
EXHIBIT 4.1
ARTICLES OF AMENDMENT
TO THE
RESTATED ARTICLES OF INCORPORATION
OF
GENERAL COMMUNICATION, INC.
The following are the Articles of Amendment ("Amendment") to
the Restated Articles of Incorporation ("Articles") of General Communication,
Inc. and are executed by that corporation through its president and its
secretary, and verified by its secretary.
ARTICLE I
NAME OF CORPORATION
The name of the corporation subject to this Amendment is
General Communication, Inc. ("Corporation").
ARTICLE II
AMENDMENT
Article IV, Section (a) is amended to read as follows:
(a) The total number of shares of stock which the Corporation
shall have authority to issue is one hundred eleven million shares divided into
the following classes:
(i) One hundred million shares of Class A Common
Stock;
(ii) Ten million shares of Class B Common Stock;
and
(iii) One million shares of Preferred Stock.
Registration Statement (S-8) Amendment No. 2
GCI Stock Option Plan
ASS00C46/0618.0729 Page 12
<PAGE>
EXHIBIT 4.1
ARTICLE III
DATE OF APPROVAL OF AMENDMENT
The dates of approval of the Amendment by the Board of
Directors and the outstanding shares of the Corporation were June 25, 1997 and
November 25, 1997, respectively.
ARTICLE IV
SHARES OUTSTANDING AND ENTITLED TO VOTE
The numbers of shares outstanding and the number entitled to
vote on the Amendment (though the outstanding shares entitled to vote are
divided into Class A Common Stock (one vote per share), and Class B Common Stock
(10 votes per share), under Article IV(f) of the Articles, all classes of voting
stock must vote as one class with respect to matters to be voted upon by the
shareholders of the Corporation unless determined otherwise by the board of
directors of the Corporation or otherwise required by law) were as follows:
Shares Outstanding: Class A Common Stock 45,073,919
Class B Common Stock 4,064,246
TOTAL 49,138,165
Shares Entitled to Vote: Class A Common Stock 45,073,919
Class B Common Stock 4,064,246
TOTAL 49,138,165
Registration Statement (S-8) Amendment No. 2
GCI Stock Option Plan
ASS00C46/0618.0729 Page 13
<PAGE>
EXHIBIT 4.1
ARTICLE V
SHARES VOTED FOR AND AGAINST THE AMENDMENT
(a) The numbers of shares voted for and against the Amendment
were as follows:
Number of Shares Voted
For the Amendment: Class A Common Stock 36,692,312
Class B Common Stock 3,849,298
TOTAL 40,541,610
Number of Shares Voted
Against the Amendment: Class A Common Stock 517,844
Class B Common Stock 6,626
TOTAL 524,470
(b) The Amendment was adopted in its entirety by 87.7%
(including 81.4% and 94.7% of the votes of Class A Common Stock and voting power
of Class B Common Stock outstanding, respectively) of the outstanding voting
power of the shares of the Corporation satisfying the requirements for adoption
of the Amendment under AS 10.06.504 of the Alaska Corporations Code.
IN WITNESS WHEREOF, the Corporation, through its corporate
officers, hereby executes these Articles of Amendment to the Restated Articles
of Incorporation of General Communication, Inc. on this 9th day of December,
1997.
GENERAL COMMUNICATION, INC.
By: /s/
Ronald A. Duncan
President
By: /s/
John M. Lowber
Secretary
[ S E A L ]
Registration Statement (S-8) Amendment No. 2
GCI Stock Option Plan
ASS00C46/0618.0729 Page 14
<PAGE>
EXHIBIT 4.1
STATE OF ALASKA )
) ss.
THIRD JUDICIAL DISTRICT )
BEFORE ME, the undersigned authority, personally appeared JOHN
M. LOWBER, who, first by me being duly sworn, deposes and states that he is the
secretary of General Communication, Inc., that he has read the above and
foregoing ARTICLES OF AMENDMENT TO THE RESTATED ARTICLES OF INCORPORATION OF
GENERAL COMMUNICATION, INC. and knows the contents therein; and that each and
all of said facts and matters are true and correct to the best of his
information and belief.
/s/
John M. Lowber
SUBSCRIBED AND SWORN to before me this 9th day of December,
1997.
/s/
Notary Public in and for
Alaska
My Commission Expires:
January 17, 2001
Registration Statement (S-8) Amendment No. 2
GCI Stock Option Plan
ASS00C46/0618.0729 Page 15
<PAGE>
EXHIBIT 4.3.2
CERTIFICATE OF SECRETARY
I, JOHN M. LOWBER, the duly elected and acting Secretary of General
Communication, Inc., an Alaska corporation, do hereby certify and declare that
the document attached hereto as Exhibit 4.3.2A is a true and correct copy of the
General Communication, Inc. Revised 1986 Stock Option Plan dated January 9,
1998, revised in accordance with the amendments to the plan adopted by the
shareholders of General Communication, Inc. at their annual meeting held on
November 25, 1997.
Executed this 18th day of February, 1998, at Anchorage, Alaska.
GENERAL COMMUNICATION, INC.
By: /s/
John M. Lowber, Secretary
SUBSCRIBED AND SWORN TO before me this 18th day of February, 1998.
/s/
Notary Public in and for
Alaska
My Commission Expires:
Registration Statement (S-8) Amendment No. 2
GCI Stock Option Plan
ASS00C46/0618.0729 Page 16
<PAGE>
EHIBIT 4.3.2A
REVISED 1986 STOCK OPTION PLAN
OF
GENERAL COMMUNICATION, INC.
Revised January 9, 1998
Registration Statement (S-8) Amendment No. 2
GCI Stock Option Plan
ASS00C46/0618.0729 Page 17
<PAGE>
TABLE OF CONTENTS
SECTION TITLE PAGE
1 Purpose 3
2 Administration 3
3 Shares Covered by the Plan 5
4 Eligibility 5
5 Limitations on Granting of Options 5
6 Terms and Conditions of Options 5
7 Early Termination of Option 6
8 Payment for Stock 7
9 Nontransferability of Options 7
10 Changes in Stock 7
11 Employment Rights 7
12 Miscellaneous 8
13 Duration and Amendment of the Plan 8
2
Registration Statement (S-8) Amendment No. 2
GCI Stock Option Plan
ASS00C46/0618.0729 Page 18
<PAGE>
Section 1. Purpose. The purpose of this Revised 1986 Stock Option Plan
of General Communication, Inc., as amended from time to time ("Plan"), is to
provide a special incentive to selected officers, non-employee directors and
other key employees of General Communication, Inc. ("GCI") and its present and
future subsidiaries (GCI and such subsidiaries collectively the "Company") in
order to promote the business of the Company and to encourage such persons to
accept or continue employment or directorships with the Company. Accordingly,
the Company will offer to sell shares of the Class A Common Stock of GCI
("Stock") as provided in this Plan to such employees or non-employee directors
of the Company as are designated in accordance with the provisions of this Plan.
Section 2. Administration. (a) Board of Directors or Committee. The
Plan will be administered either by the Board of Directors of GCI ("Board of
Directors") or by a committee composed of two or more members of the Board of
Directors and appointed by the Board of Directors ("Committee"). The term
"Committee" will mean any committee so appointed, or, if there is none, the
Board of Directors. A member of the Board of Directors who is either eligible
for options or to whom options have been granted may vote on any matters
affecting the administration of the Plan or the granting of options under the
Plan; provided that the grant or award of those options is made with the
selection of the individuals described in Section 1 of the Plan and decisions
concerning the timing, pricing and amount of a grant or award, to be made solely
by the Board of Directors, if each member of the Board of Directors is a
disinterested person, or by the Committee if each of the Committee members is a
disinterested person; except that participation in any of the following will not
disqualify a member of the Board of Directors from being a disinterested person:
(i) Participation in a formula plan meeting the
conditions of subparagraph (c)(2)(ii) of Rule 16b-3,
adopted pursuant to the Securities Exchange Act of
1934;
(ii) Participation in an ongoing securities acquisition
plan meeting the conditions of subparagraph (d)(2)(i)
of Rule 16b-3, adopted pursuant to the Securities
Exchange Act of 1934, e.g., the Revised Qualified
Employee Stock Purchase Plan of General
Communication, Inc.;
(iii) Election to receive an annual retainer fee in either
cash or an equivalent amount of securities, or partly
in cash and partly in securities; and
(iv) Participation in the Plan will not disqualify a
member of the Board of Directors from being a
disinterested person for the purpose of administering
another plan that does not permit participation by a
member of the Board of Directors.
(b) Disinterested Person. For purposes of this Section 2, a
"disinterested person" means a member of the Board of Directors who is
not,
3
Registration Statement (S-8) Amendment No. 2
GCI Stock Option Plan
ASS00C46/0618.0729 Page 19
<PAGE>
during the one year prior to service as an administrator of the Plan,
or during such service, granted or awarded equity securities pursuant
to the Plan or any other plan of the Company or any of its affiliates.
(c) Authority of the Committee. Subject to the provisions of
the Plan, the Committee is authorized and directed as follows:
(i) To direct the grant of stock options;
(ii) To determine which of the employees of the Company or
non-employee members of the Board of Directors will
be granted options to purchase Stock, when such
grants will be made, and the number of shares of
Stock to be covered by such options;
(iii) To determine the fair market value of the Stock
covered by such options;
(iv) To determine the nature and amount of consideration
to flow to the Company on such options;
(v) To determine the manner and, in its discretion either
generally or in any one or more particular instances,
to accelerate the time or times when such options
will be exercisable;
(vi) To determine other conditions and limitations, if
any, on each option granted under the Plan (which
need not be identical);
(vii) To prescribe the form or forms of the instruments
evidencing the options and any restrictions imposed
on the Stock purchased under the options and of any
other instruments required under the Plan and to
change such forms from time to time;
(viii) To adopt, amend and rescind rules and regulations for
the administration of the Plan and waive compliance
either generally or in any one or more particular
instances by an optionee with the requirements of any
such rule or regulation or any option, subject to the
provisions of the Plan and any other applicable
requirements;
(ix) To waive any restrictions imposed with respect to the
transferability of Stock acquired on exercise of
options granted under the Plan;
(x) To decide all questions and settle all controversies
and disputes which may arise in connection with the
Plan; and
(xi) To interpret the Plan and to make all other
determinations deemed necessary or advisable for the
administration of the Plan.
4
Registration Statement (S-8) Amendment No. 2
GCI Stock Option Plan
ASS00C46/0618.0729 Page 20
<PAGE>
(d) Quorum, Decision of Committee Binding, Notice. A majority of the
members of the Committee will constitute a quorum, and all decisions,
determinations and interpretations of the Committee will be made by a majority
of its members. All decisions, determinations and interpretations of the
Committee will be binding on all parties concerned. Any decision, determination
or interpretation of the Committee under the Plan may be made without notice or
meeting of the Committee but must be in writing signed by all of the members of
the Committee.
3. Shares Covered by the Plan. The Stock to be offered under the Plan
may be unissued shares as the Committee may from time to time determine. Subject
to Section 10 of the Plan, the number of shares available and reserved for issue
under the Plan will not exceed 5,700,000 shares of Stock. Shares covered by an
option that remain unpurchased upon expiration or termination of the option may
be used for further options under the Plan.
4. Eligibility. Key employees of the Company (including officers and
directors who are employees) and non-employee directors of the Company shall be
eligible for selection by the Committee as optionees under the Plan. In
selecting the individuals to whom options shall be granted, as well as in
determining the number of shares subject to each option, the Committee shall
take into consideration the recommendations of the members of the Committee who
are also employees of the Company and such factors as it shall deem relevant in
connection with accomplishing the purposes of the Plan. An individual who has
been granted an option may, if he or she is otherwise eligible, be granted an
additional option or options.
5. Limitations on Granting of Options. Options may be granted under the
Plan until the Plan is terminated or suspended by resolution adopted by the
Board of Directors.
6. Terms and Conditions of Options. All options granted under the Plan
shall be subject to the following terms and conditions and to such other terms
and conditions as the Committee shall determine to be appropriate to accomplish
the purposes of the Plan:
(i) Option Price. The option price per share of stock
under each option will be less than, equal to, or
greater than the fair market value (rounded down to
the next lowest cent) per share at the time the
option is granted. For purposes of the Plan, the fair
market value and the option price per share of the
Stock on any date will be determined by the Committee
and may be computed by such method as the Committee
will consider as reflecting the fair market value of
the Stock or a price for the Stock which is less than
or greater than that fair market value on that date.
The proceeds of sale of Stock subject to option are
to be added to the general funds of the Company and
used for such corporate purposes as the Board of
Directors may determine.
5
Registration Statement (S-8) Amendment No. 2
GCI Stock Option Plan
ASS00C46/0618.0729 Page 21
<PAGE>
(ii) Time of Granting Options. The date of grant of an
option under the Plan shall, for all purposes, be the
date on which the Committee makes the determination
granting such option, and no grant shall be deemed
effective under the Plan prior to such date. Notice
of the determination shall be given to each employee
to whom an option is so granted within a reasonable
time after the date of such grant.
(iii) Period of Options. The period of an option will not
exceed ten years from the date of grant, and no
option will be exercisable after the expiration of
such date. Except as provided in Section 7 of the
Plan, an optionee must, at the time of exercise, be
an employee of the Company or non-employee member of
the Board of Directors.
(iv) Exercise of Options. Except as hereinafter provided,
each option shall be made exercisable at such time or
times, whether or not in installments, as the
Committee shall prescribe at the time the option is
granted. In the case of an option not immediately
exercisable in full, the Committee may at any time
accelerate the time at which all or any part of the
option may be exercised.
(v) Six-Month Holding Period. An option granted under
this Plan must be held by the optionee for at least
six months from the date of grant or acquisition to
the date of disposition of the option through
exercise, conversion, or assignment as may be allowed
under the Plan.
7. Early Termination of Option. All options granted which have not as
yet become exercisable shall terminate immediately upon termination of
employment or termination of directorship for a non-employee director, death or
disability. All exercisable options that have not been exercised shall terminate
as follows:
(i) Termination of Employment or Directorship. All right
to exercise an option shall terminate not more than
one month after the optionee's employment or
directorship terminates for any reason other than his
or her death or his or her disability (within the
meaning of Section 105(d)(4) of the Internal Revenue
Code). Transfer from one corporation within the
Company to another shall not be deemed termination of
employment. The Committee shall have the authority to
determine in each case whether an authorized leave of
absence or absence on military or governmental
service shall be deemed a termination of employment
for purposes of this subsection.
(ii) Death of Optionee. If any optionee dies while
employed by or serving as a director of the Company,
or within three months thereafter, his or her option
shall terminate at the time provided in the option
certificate for termination in the event of death or,
if the option certificate contains no such provision,
the option shall
6
Registration Statement (S-8) Amendment No. 2
GCI Stock Option Plan
ASS00C46/0618.0729 Page 22
<PAGE>
terminate one year after the optionee's death (but in
each instance not later than the date the option
would otherwise expire). In the meantime, subject to
the limitations in the option certificate, the option
may be exercised by the executors or administrators
of the optionee's estate or by the optionee's
legatees or heirs.
(iii) Disability. In the event of termination of an
optionee's employment or directorship as a result of
disability within the meaning of Section 105(d)(4) of
the Internal Revenue Code, an optionee's option shall
terminate one year after his or her employment
terminates. In no event, however, may an option be
exercised after the expiration of the option period.
8. Payment for Stock. Shares which are subject to an option shall be
issued only upon receipt by the Company of full payment of the consideration for
the shares as to which the option is exercised. The Company shall not be
obligated to deliver any shares unless and until, in the opinion of the
Company's counsel, all applicable federal and state laws and regulations have
been complied with, nor, in the event the outstanding Stock is at the time
listed upon any stock exchange, unless and until the shares to be delivered have
been listed or authorized to be added to the listing upon official notice of
issuance to such exchange, nor unless or until all other legal matters in
connection with the issuance and delivery of shares have been approved by the
Company's counsel. Without limiting the generality of the foregoing, the Company
may require from the optionee such investment representation or such agreement,
if any, as counsel for the Company may consider necessary in order to comply
with the Securities Act of 1933, as amended, and may require that the optionee
agree that any sale of the shares will be made only in such manner as is
permitted by the Committee and that the optionee will notify the Company when he
or she makes any disposition of the shares whether by sale, gift or otherwise.
The Company shall use its best efforts to effect any such compliance and
listing, and the optionee shall take any action reasonably requested by the
Company in such connection. An optionee shall have the rights of a shareholder
only as to shares actually acquired by him or her under the Plan.
9. Nontransferability of Options. No option may be transferred by the
optionee otherwise than by will or by the laws of descent and distribution, and
during the optionee's lifetime the option may be exercised only by the optionee.
More particularly, but without limiting the generality of the foregoing, an
option may not be assigned, transferred (except as provided in the next
preceding sentence), pledged, or hypothecated in any way (whether by operation
of law or otherwise), and will not be subject to execution, attachment or
similar process. Any attempted assignment, transfer, pledge, hypothecation or
other disposition of any option contrary to the provisions of the Plan, and any
levy of any attachment or similar process upon an option will be null and void
and without effect, and the Committee may, in its discretion, upon the happening
of any such event, terminate an option forthwith.
10. Changes in Stock. In the event of a stock dividend, stock split or
other change in corporate structure or capitalization affecting the Stock, the
number and kind
7
Registration Statement (S-8) Amendment No. 2
GCI Stock Option Plan
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<PAGE>
of shares of stock on which options may be granted hereunder, the number and
kind of shares of stock remaining subject to each option outstanding at the time
of such change and the option price shall be appropriately adjusted by the
Committee, whose determination shall be binding on all parties concerned.
Subject to any required action by the shareholders, if GCI shall be the
surviving corporation in any merger or consolidation (other than a merger or
consolidation in which GCI survives but its outstanding shares are converted
into securities of another corporation or exchanged for other consideration),
any option granted hereunder shall pertain and apply to the securities which a
holder of the number of shares of Stock then subject to the option should have
been entitled to receive. A dissolution or liquidation of GCI or a merger or
consolidation in which GCI is not the surviving corporation or its outstanding
shares are so converted or exchanged shall cause every option hereunder to
terminate, but at least 20 days prior to the effective date of any such
dissolution or liquidation (or if earlier any related sale of all or
substantially all assets) or of any such merger or consolidation, the Committee
shall either make all options outstanding hereunder immediately exercisable or
arrange that the successor or surviving corporation, if any, grant replacement
options.
11. Employment Rights. Neither the adoption of the Plan nor the grant
of any option under it shall confer upon any employee of the Company any right
to continued employment with the Company, nor shall either interfere in any way
with the right of the Company to terminate the employment of any of its
employees at any time, with or without cause. Neither the existence of the Plan
nor the grant of any option hereunder shall be taken into account in determining
any damages to which an employee may be entitled upon termination of his or her
employment.
12. Miscellaneous. (a) Other Awards and Compensation. The plan shall
not restrict the authority of the Board of Directors of the Company, acting
directly or by authorization to any committee, for proper corporate purposes, to
grant or assume stock options or replacements or substitutions therefor, other
than under the Plan, whether in connection with any acquisition or otherwise,
and with respect to any employee or other person, or to award bonuses or other
benefits to optionees under the Plan in connection with exercises under the Plan
or otherwise or to maintain or establish other compensation or benefit plans or
practices.
(b) Statutory References, etc. References to the provisions of statutes
and regulations in the Plan shall be deemed to refer to such provisions as from
time to time in effect, unless the context suggests otherwise.
13. Duration and Amendment of the Plan. (a) Termination, Suspension or
Discontinuance of Plan. The Plan shall continue until such time as the Board of
Directors' adoption of a resolution suspending or terminating the Plan or
discontinuing granting options under the Plan; provided, however, that any such
suspension, termination or discontinuance shall not affect any options then
outstanding under the Plan. No options under the Plan may be granted after
termination of the Plan.
8
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<PAGE>
(b) Amendment of Plan. The Plan may be amended only as follows:
(i) The Board of Directors from time to time may make
such modifications or amendments of the Plan as it
may deem advisable but may not, without prior
approval of the shareholders of GCI, except as
provided in Section 10 of the Plan, do any of the
following:
(A) Materially increase the benefits accruing to
participants under the Plan;
(B) Increase the number of shares which will be
available and reserved for issuance under
the Plan; and
(C) Change the class of persons eligible to
receive options under the Plan.
(ii) Affirmative Vote Required. The affirmative vote on
matters set forth in (b)(i) of this Section 13 will
be required by the holders of at least a majority of
the outstanding securities of the Company present or
represented and entitled to vote at a meeting duly
held in accordance with the Alaska Corporations Code,
the Articles of Incorporation of the Company, and the
Bylaws of the Company, and in accordance with the
rules and regulations in effect pursuant to Section
14(a) of the Securities Exchange Act of 1934 at the
time of such vote including providing such
information concerning the Plan which would be
required under those rules and regulations where such
written information must be furnished by mail to the
last known address of the securities holders of
record within 30 days prior to the date of mailing,
and four copies of such written information will be
filed with or mailed for filing to the Securities and
Exchange Commission not later than the date on which
it is first sent or given to securities holders of
the Company.
(c) Amendment of Outstanding Options. The Committee may at any time or
times amend any outstanding option or options for the purpose of satisfying the
requirements of any changes in applicable laws or regulations. Further, it may,
with the consent of the holder of the option, make such modifications or
amendments as it shall deem advisable.
(d) Limitation. Except as provided in Section 10 of this Plan, neither
the termination nor any modifications or amendment of the Plan or any
outstanding option shall, without the consent of the holder of an option
theretofore granted under the Plan, adversely affect the rights of such holder
with respect to such option or alter or impair any option previously granted
under the Plan.
(e) Termination of Right of Action. Every right of action arising out
of or in connection with the Plan by or on behalf of the Company, or by any
shareholder of GCI
9
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GCI Stock Option Plan
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<PAGE>
against any past, present or future member of the Board of Directors or against
any employee, or by an employee (past, present or future) against the Company
shall, irrespective of the place where an action may be brought and irrespective
of the place or residence of any such shareholder, director or employee, cease
and be barred by the expiration of three years from the date of the act or
omission with respect to which such right of action is alleged to have arisen.
(f) Effectiveness of the Plan. The Plan shall become effective on
December 20, 1986, but shall be subject to approval by the shareholders of GCI
at a meeting of shareholders duly called and held, or by written consent duly
given, no later than twelve months after the date of adoption of the Plan by the
Board of Directors.
IN WITNESS hereof, General Communication, Inc. has executed this
Revised 1986 Stock Option Plan of General Communication, Inc. this 9th day of
January, 1998.
GENERAL COMMUNICATION, INC.
/s/
Ronald A. Duncan
President and Chief
Executive Officer
/s/
John M. Lowber
Secretary
[S E A L]
10
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<PAGE>
EXHIBIT 4.3.7
CERTIFICATE OF SECRETARY
I, JOHN M. LOWBER, the duly elected and acting Secretary of General
Communication, Inc., an Alaska corporation, do hereby certify and declare that
the resolution of the Board of Directors attached hereto as Exhibit 4.3.7A is a
true and correct copy of a resolution duly adopted by the Board of Directors of
General Communication, Inc. at its meeting held on February 6, 1997.
Executed this 12th day of February, 1998, at Anchorage, Alaska.
GENERAL COMMUNICATION, INC.
By: /s/
John M. Lowber,
Secretary
SUBSCRIBED AND SWORN TO before me this 12th day of February, 1998.
/s/
Notary Public in and for
Alaska
My Commission Expires:
Registration Statement (S-8) Amendment No. 2
GCI Stock Option Plan
ASS00C46/0618.0729 Page 27
<PAGE>
EXHIBIT 4.3.7A
BOARD RESOLUTION
RESOLVED, that the Board of Directors of General Communication, Inc.
("Company") hereby approves the amendment to the Revised 1986 Stock
Option Plan of the Company last revised as of June 20, 1995 ("Stock
Option Plan") by increasing the number of shares allocated to the plan
by 2.5 million shares of Class A common stock, i.e., by increasing the
number of shares allocated to the plan from 3.2 million shares to 5.7
million shares;
RESOLVED FURTHER, that the president is directed to take those steps
necessary to seek the approval from the shareholders of the Company of
the proposed amendment to the Stock Option Plan and subsequent to
receiving that approval, to take those steps necessary to restate the
plan with the amended provisions in it.
Registration Statement (S-8) Amendment No. 2
GCI Stock Option Plan
ASS00C46/0618.0729 Page 28
<PAGE>
EXHIBIT 4.3.8
CERTIFICATE OF SECRETARY
I, JOHN M. LOWBER, the duly elected and acting Secretary of General
Communication, Inc., an Alaska corporation, do hereby certify and declare that
the shareholder resolution attached hereto as Exhibit 4.3.8A is a true and
correct copy of a resolution duly adopted by the shareholders of General
Communication, Inc. at their meeting held on November 25, 1997.
Executed this 12th day of February, 1998, at Anchorage, Alaska.
GENERAL COMMUNICATION, INC.
By: /s/
John M. Lowber,
Secretary
SUBSCRIBED AND SWORN TO before me this 12th day of February, 1998.
/s/
Notary Public in and for
Alaska
My Commission Expires:
Registration Statement (S-8) Amendment No. 2
GCI Stock Option Plan
ASS00C46/0618.0729 Page 29
<PAGE>
EXHIBIT 4.3.8A
SHAREHOLDER RESOLUTION
RESOLVED, that the amendment to the Revised 1986 Stock Option Plan
("Stock Option Plan") of General Communication, Inc. ("Company"),
adopted by the board of directors of the Company at its February 6,
1997 meeting, is hereby approved and otherwise ratified by the
shareholders of the Company where such amendment is to increase the
number of shares authorized and allocated to the Stock Option Plan by
2.5 million shares of Class A common stock, i.e., to increase the
number of such shares from 3.2 million to 5.7 million shares of Class A
common stock.
Registration Statement (S-8) Amendment No. 2
GCI Stock Option Plan
ASS00C46/0618.0729 Page 30
<PAGE>
EXHIBIT 5.3
WOHLFORTH, ARGETSINGER, JOHNSON & BRECHT
A PROFESSIONAL CORPORATION
JULIUS J. BRECHT TELEPHONE
CHERYL RAWLS BR (907) 276-6401
CYNTHIA L. CARTLEDGE
BARBARA J. DREYER ATTORNEYS AT LAW FACSIMILE
ROBERT M. JOHNSON (907) 276-5093
BRADLEY E. MEYEN 900 WEST 5TH AVENUE, SUITE 600
KENNETH E. VASSAR E-MAIL
ERIC E. WOHLFORTH ANCHORAGE, ALASKA 99501-2048 [email protected]
OF COUNSEL
PETER ARGETSINGER
February 20, 1998
Ronald A. Duncan, President
General Communication, Inc.
2550 Denali Street, Suite 1000
Anchorage, Alaska 99503
Re: Opinion As To Legality of Shares To Be Issued Pursuant To
General Communication, Inc. Revised 1986 Stock Option Plan as
Revised on January 9, 1998; Our File No. 618.0729
Dear Mr. Duncan:
You have requested an opinion from this firm on behalf of General
Communication, Inc. ("Company"), in connection with 2,500,000 shares of Class A
common stock of the Company ("Shares") to be issued in conjunction with the
Company's Revised 1986 Stock Option Plan ("Plan"), the allocation of which
Shares was approved by the shareholders of the Company at its annual meeting
held on November 25, 1997.
It is this firm's understanding that the facts surrounding these
proposed transactions are represented by the Company as follows ("Facts"):
1. The Plan was adopted by the board of directors of the Company
("Board") by resolution at its December 17, 1986 meeting
called and conducted in accordance with the Restated Articles
of Incorporation and Bylaws of the Company ("Articles" and
"Bylaws", respectively), and the Plan was approved by the
Company's then sole shareholder, Western Tele-Communications,
Inc. (which corporation's present name is WestMarc
Communications, Inc.), by resolution at the Company's
shareholder meeting held on December 17, 1986;
2. The Articles provide that the Company has the power to issue
and sell any stock and further expressly provides for the
issuance of Class A common stock;
Registration Statement (S-8) Amendment No. 2
GCI Stock Option Plan
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<PAGE>
Ronald A. Duncan
February 20, 1998
Page 2
3. The Plan initially provided for the granting of options to
eligible employees to purchase up to 600,000 shares of Class A
common stock of the Company. Subsequently, the shareholders of
the Company at their September 15, 1988, November 12, 1991,
June 20, 1995, and November 25, 1997 annual meetings
authorized amendments to the Plan by approving allocations to
the Plan of an additional 250,000 shares, 1,500,000 shares,
850,000 shares, and 2,500,000 shares of Class A common stock
of the Company, respectively. As of the date of this letter,
there were shares available for issuance by the Company under
the Plan and pursuant to the Articles. At the November 12
meeting, the shareholders also approved an extension of the
period during which an option may be exercised under the Plan
from five years to ten years as measured from the date of
granting of the option; and at the June 20 meeting, the
shareholders also approved the removal of any provision of the
Plan for termination of granting of options under it after
December 20, 1996 or otherwise for its mandatory termination
after ten years;
4. The Articles and Bylaws in effect as of the date of this
letter were materially the same as those in effect as of
November 25, 1986 with respect to the power to grant options
in and issue Class A common stock; except that the
shareholders at the November 25, 1997 meeting approved an
increase in the authorized Class A common stock of the Company
from 50 million to 100 million shares thus providing
sufficient shares for the allocation of the shares to the Plan
approved at that meeting;
5. The Company was incorporated as an Alaska corporation and
received a Certificate of Incorporation dated July 16, 1979
from the Alaska Department of Commerce and Economic
Development; and
6. The Company is in good standing with respect to the reporting
and corporation tax requirements of the Alaska Corporations
Code to which it is subject, and the Company is otherwise
validly existing as an Alaska corporation pursuant to the laws
of the State of Alaska with all requisite powers to own
property and to conduct its business in the manner
contemplated by the Articles and Bylaws.
Copies of the restated Articles (dated August 4, 1993) and the sole
amendment to them (dated December 9, 1997), current revised Bylaws (dated March
24, 1993) and current Restated Certificate of Amended and Restated Articles
(dated December 12, 1997), the above referenced resolutions, and the Plan as
amended have been delivered to this firm. We have reviewed these
Registration Statement (S-8) Amendment No. 2
GCI Stock Option Plan
ASS00C46/0618.0729 Page 32
<PAGE>
Ronald A. Duncan
February 20, 1998
Page 3
documents. The Articles provide that the Company is organized for the purposes
of transacting any and all lawful business for which corporations may be
incorporated under the Alaska Corporations Code. Based upon the foregoing Facts,
we are of the opinion as follows. Assuming due compliance with applicable
federal and state securities laws, (1) the Shares will, when issued through the
respective options under the Plan, represent newly created and legally issued,
fully paid, and non-assessable shares of Class A common stock in the Company,
and (2) each holder of a Share will be entitled to the benefits of a stockholder
pro rata based upon ownership of outstanding shares of Class A common stock of
the Company.
This letter must not be quoted or referred to in the Company's
financial statements or provided to persons other than the officers and
directors of the Company without prior consultation with us or our prior written
consent. The firm is aware of the Company's intent to and consents to use of
this letter as an exhibit in a Form S-8 registration with the Securities and
Exchange Commission pertaining to the Shares to be allocated to the Plan.
Sincerely,
WOHLFORTH, ARGETSINGER,
JOHNSON & BRECHT
/s/
Julius J. Brecht
JJB/neb
Registration Statement (S-8) Amendment No. 2
GCI Stock Option Plan
ASS00C46/0618.0729 Page 33
<PAGE>
EXHIBIT 23.1
CONSENT OF LEGAL COUNSEL
We hereby consent to the use, in the Prospectus as outlined in
Securities and Exchange Commission Form S-8, of our name as special counsel to
General Communication, Inc. in the preparation of the Prospectus and the
rendering of certain opinions including an opinion as to the legality of the
shares.
WOHLFORTH, ARGETSINGER, JOHNSON
& BRECHT,
A Professional Corporation
/s/
Anchorage, Alaska
February 20, 1998
Registration Statement (S-8) Amendment No. 2
GCI Stock Option Plan
ASS00C46/0618.0729 Page 34
<PAGE>
EXHIBIT 23.2
CONSENT OF LEGAL COUNSEL
We hereby consent to the use, in the Prospectus as outlined in
Securities and Exchange Commission Form S-8, of our name as special tax counsel
to General Communication, Inc. in the preparation of the Prospectus.
HARRIS, MERICLE, WAKAYAMA & MASON
A Professional Limited Liability
Company
/s/
Seattle, Washington
February 18, 1998
Registration Statement (S-8) Amendment No. 2
GCI Stock Option Plan
ASS00C46/0618.0729 Page 35
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors and Stockholders
General Communication, Inc.:
We consent to incorporation by reference herein of our report dated February 21,
1997 relating to the consolidated financial statements of General Communication,
Inc. and subsidiaries as of December 31, 1996 and 1995 and for each of the years
in the three-year period ended December 31, 1996, which report appears in the
1996 annual report on Form 10K/A of General Communication, Inc.
KPMG PEAT MARWICK LLP
/s/
Anchorage, Alaska
February 18, 1998
Registration Statement (S-8) Amendment No. 2
GCI Stock Option Plan
ASS00C46/0618.0729 Page 36
