As filed with the Securities and Exchange Commission on October 30, 1996
Registration No. 333-_____
- ------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------
Form S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
---------------------
WINSTAR COMMUNICATIONS, INC.
(Exact name of registrant as specified in its charter)
Delaware 13-3585278
(State or Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
230 PARK AVENUE, SUITE 3126
NEW YORK, NEW YORK 10169
(Address of principal executive offices)
OTHER EMPLOYEE BENEFIT PLANS
(Full title of the Plan)
WILLIAM J. ROUHANA, JR., Chairman of the Board
and Chief Executive Officer
WinStar Communications, Inc.
230 Park Avenue, Suite 3126
New York, New York 10169
(212) 687-7577
(Name, address and telephone number, including area code, of agent for service)
with a copy to:
DAVID ALAN MILLER, Esq.
Graubard Mollen & Miller
600 Third Avenue
New York, New York 10016
(212) 818-8800
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==================================================================================================================================
Proposed maximum Proposed maximum
Amount to be offering price aggregate Amount of
Title of Securities to be registered registered per share offering price registration fee
==================================================================================================================================
<S> <C> <C> <C> <C>
other stock-based awards granted and outstanding 2,287,000
under other employee benefit plans ("Benefit Plans") shares (1) $41,161,392.50(2) $14,193.58
==================================================================================================================================
<FN>
(1) In accordance with Rule 457(h) promulgated under the Securities Act of
1933, as amended ("Securities Act"), the exercise prices payable for
the shares of Common Stock issuable upon exercise of outstanding
options granted pursuant to Benefit Plans are as follows: $5.50 (75,000
shares), $7.00 (50,000 shares), $14.34 (50,000 shares), $14.375 (30,000
shares), $14.75 (450,000 shares), $14.87 (20,000 shares), $14.875
(20,000 shares), $15.37 (15,000 shares), $15.375 (135,000 shares),
$16.00 (130,000 shares), $16.125 (25,000 shares), $16.6875 (40,000
shares), $16.75 (50,000 shares), $17.375 (20,000 shares), $17.50
(20,000 shares), $18.1875 (75,000 shares), $18.5625 (20,000 shares),
$18.750 (30,000 shares), $19.00 (67,000 shares), $19.0625 (60,000
shares), $19.625 (20,000 shares), $20.00 (125,000 shares), $20.375
(270,000 shares), $20.41875 (100,000 shares), $20.875 (20,000 shares),
$21.25 (25,000 shares), $21.625 (10,000 shares), $23.50 (75,000
shares), $24.063 (10,000 shares), $24.50 (30,000 shares), $25.00
(35,000 shares), $25.125 (35,000 shares), $25.875 (75,000 shares),
$30.125 (25,000 shares) and $30.50 (50,000 shares).
(2) The proposed maximum aggregate offering price is the sum of the
exercise prices of the options granted under Benefit Plans and
outstanding as of October 24, 1996, in accordance with Rule 457(h)
promulgated under the Securities Act.
</FN>
</TABLE>
---------------------
In accordance with the provisions of Rule 462 promulgated under the
Securities Act, the Registration Statement will become effective upon filing
with the Securities and Exchange Commission.
The Registration Statement, including all exhibits and attachments,
contains 19 pages. The exhibit index may be found on page 8 of the consecutively
numbered pages of the Registration Statement.
---------------------
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information*
Item 2. Registrant Information and Plan Annual Information*
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance
with Rule 428 under the Securities Act, and the Note to Part I of the
Instructions to Form S-8.
I-1
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents previously filed by the Registrant with the
Securities and Exchange Commission (the "Commission") are incorporated by
reference in this Registration Statement:
(a) The Registrant's Transition Report on Form 10-KSB for the
ten-month period ended December 31, 1995 filed with the
Commission pursuant to Section 13(a) of the Securities
Exchange Act of 1934 (the "Exchange Act");
(b) The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarters ended March 31, 1996 and June 30, 1996 filed with the
Commission pursuant to Section 13(a) of the Exchange Act;
(c) The Registrant's Proxy Statement, dated May 3, 1996, relating
to the Annual Meeting of Stockholders filed with the
Commission pursuant to Section 14 of the Exchange Act;
(d) The Registrant's Current Report on Form 8-K, dated October 8,
1996, filed with the Commission pursuant to Section 13(a) of
the Exchange Act;
(e) All other reports filed by the Registrant since December 31,
1995 with the Commission pursuant to Section 13(a) or 15(d) of
the Exchange Act; and
(f) The description of the Common Stock contained in the
Registrant's 8-A Registration Statement filed with the
Commission pursuant to Section 12(g) of the Exchange Act,
including any subsequent amendment(s) or report(s) filed for
purpose of updating such description.
All documents subsequently filed by the Registrant 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 then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be a part
hereof from the respective date of filing of such documents. Any statement
contained in a document incorporated by reference herein is modified or
superseded for all purposes to the extent that a statement contained in this
Registration Statement or in any other subsequently filed document which is
incorporated by reference modifies or replaces such statement.
Item 4. Description of Securities.
The Common Stock of the Registrant is registered under Section 12 of
the Exchange Act.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware
empowers a Delaware corporation to indemnify any 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 (other than an action by or in the right of the corporation) by
II-1
<PAGE>
reason of the fact that such person is or was a director, officer, employee, or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee, or agent of another corporation, partnership,
joint venture, trust, or other enterprise, against expenses (including
attorneys' fees), judgments, fines, and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit, or
proceeding if such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the
corporation, and with respect to any criminal action or proceeding, had no
reasonable cause to believe that such person's conduct was unlawful. The
termination of any action, suit, or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, does not, of
itself, create a presumption that such person did not act in good faith and in a
manner which such person reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that such person's conduct was
unlawful.
In the case of an action by or in the right of the corporation, Section
145 empowers a corporation to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending, or completed action in
any of the capacities set forth above against expenses (including attorneys'
fees) actually and reasonably incurred by such person in connection with the
defense or settlement of such action or suit if such person acted in good faith
and in a manner such person reasonably believed to be in and not opposed to the
best interests of the corporation, except that indemnification is not permitted
in respect of any claim, issue, or matter as to which such person is adjudged to
be liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought determines upon
application that, despite the adjudicate of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
deems proper. Section 145 further provides: that a Delaware corporation is
required to indemnify a director, officer, employee, or agent against expenses
(including attorneys' fees) actually and reasonably incurred by such person in
connection with any action, suit, or proceeding or in defense of any claim,
issue, or matter therein as to which such person has been successful on the
merits or otherwise; that indemnification provided for by Section 145 shall not
be deemed exclusive of any other rights to which the indemnified party may be
entitled; that indemnification provided for by Section 145 shall, unless
otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director, officer, employee, or agent and shall inure to the
benefit of such person's heirs, executors, and administrators; and empowers the
corporation to purchase and maintain insurance on behalf of a director or
officer against any such liability asserted against such person in any such
capacity or arising out of such person's status as such whether or not the
corporation would have the power to indemnify him against liability under
Section 145. A Delaware corporation may provide indemnification only as
authorized in the specific case upon a determination that indemnification of the
director, officer, employee or agent is proper in the circumstances because he
has met the applicable standard of conduct. Such determination is to be made (i)
by the board of directors by a majority vote of a quorum consisting of directors
who were not party to such action, suit, or proceeding, or (ii) if such a quorum
is not obtainable, or, even if obtainable a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or (iii) by the
stockholders.
The Registrant's By-Laws and Article Sixth of its Restated Certificate
of Incorporation provides for indemnification of directors and officers of the
Company to the fullest extent permitted by law, as now in effect or later
amended. Article IV of the Registrant's By-Laws provides that expenses incurred
by an officer or director in defending a civil or criminal action, suit, or
proceeding may be paid by the Registrant in advance of final disposition upon
receipt of an undertaking by or on behalf of such person to repay such amount if
it ultimately is determined that such person is not entitled to be indemnified
by the Registrant.
The Registrant currently provides liability insurance for each director
and certain officers for certain losses arising from claims or charges made
against them while acting in their capacities as directors or officers of the
Registrant.
II-2
<PAGE>
Article Seventh of the Registrant's Restated Certificate of
Incorporation eliminates the personal liability of the directors of the
Registrant to the fullest extent permitted by the provisions of Section 102 of
the Delaware General Corporation Law, as the same may be amended and
supplemented.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit No. Description
- ------------ -----------
4.1 Form of stock option agreement between the Registrant and the
option holder (filed herewith)
4.2 Schedule of option grants (filed herewith)
5.1 Opinion of Graubard Mollen & Miller (filed herewith)
23.1 Consent of Grant Thornton LLP, independent accountant for
Registrant (filed herewith)
23.2 Consent of Graubard Mollen & Miller (included in Exhibit 5.1)
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this Registration Statement;
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act 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 securities offered would not exceed that which was
registered) and any deviation from the low or high and of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change
in the maximum aggregate offering price set forth in the "Calculation
of Registration Fee" table in the effective registration statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in the
Registration Statement or any material change to such information in
the Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) 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
Registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the Registration Statement.
II-3
<PAGE>
(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.
(b) 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.
(h) 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.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 New York, State of New York, on this 25th day of
October, 1996.
WINSTAR COMMUNICATIONS, INC.
By: /s/ William J. Rouhana, Jr.
----------------------------------
William J. Rouhana, Jr.
Chairman of the Board of Directors
and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints William J. Rouhana, Jr. and Fredric E.
von Stange his true and lawful attorneys-in-fact and agents, each acting alone,
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign any or all amendments to
this Registration Statement, including post-effective amendments, and to file
the same, with all exhibits thereto, and all documents in connection therewith,
with the Commission, granting unto said attorneys-in-fact and agents, and each
of them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, and hereby ratifies and
confirms all that said attorneys-in-fact and agents, each acting alone, or their
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
/s/ William J. Rouhana, Jr. Chairman of the Board of October 25, 1996
- ---------------------------- Directors and Chief
William J. Rouhana, Jr. Executive Officer (and
principal executive officer)
/s/ Nathan Kantor President, Chief Operating October 25, 1996
- ---------------------------- Officer and Director
Nathan Kantor
/s/ Steven G. Chrust Vice Chairman of the Board October 25, 1996
- ---------------------------- of Directors
Steven G. Chrust
/s/ Fredric E. von Stange Executive Vice President, October 25, 1996
- ---------------------------- Chief Financial Officer
Fredric E. von Stange and Director (and principal
accounting officer)
/s/ Bert W. Wasserman Director October 25, 1996
- ----------------------------
Bert W. Wasserman
/s/ William J. vanden Heuvel Director October 25, 1996
- ----------------------------
William J. vanden Heuvel
/s/ William Harve
- ---------------------------- Director October 25, 1996
William Harvey
/s/ Steven B. Magyar Director October 25, 1996
- ----------------------------
Steven B. Magyar
II-5
<PAGE>
EXHIBITS
Exhibit No. Description
- ----------- -----------
4.1 Form of stock option agreement between the Registrant and the
option holder (filed herewith)
4.2 Schedule of option grants (filed herewith)
5.1 Opinion of Graubard Mollen & Miller (filed herewith)
23.1 Consent of Grant Thornton LLP, independent accountant for
Registrant (filed herewith)
23.2 Consent of Graubard Mollen & Miller (included in Exhibit 5.1)
II-6
<PAGE>
EXHIBIT 4.1
FORM OF STOCK OPTION AGREEMENT
AGREEMENT, made as of the ___ day of _________, 199_ among
WINSTAR COMMUNICATIONS, INC. ("WCII"), a Delaware corporation (the "Company"),
______________ (the "Employee").
WHEREAS, _________________ is a wholly-owned subsidiary of the
Company; and
WHEREAS, on ______________, 199_ (the "Grant Date"), the Board
of Directors of the Company (the "Board") authorized the grant to the Employee
of an option (the "Option") to purchase an aggregate of ________ shares of the
authorized but unissued Common Stock of the Company, $.01 par value (the "Common
Stock"), conditioned upon the Employee's acceptance thereof upon the terms and
conditions set forth in this Agreement; and
WHEREAS, the Employee desires to acquire the Option on the
terms and conditions set forth in this Agreement;
IT IS AGREED:
1. Grant of Stock Option. The Company hereby grants to the
Employee the Option to purchase all or any part of an aggregate of ______ shares
of the Common Stock (the "Option Shares") on the terms and conditions set forth
herein.
2. Non-qualified Stock Option. The Option represented hereby
is a non-qualified stock option, not intended to qualify under any section of
the Internal Revenue Code of 1986, as amended, and is not granted under any
plan, including the Company's 1992 or 1995 Performance Equity Plans ("Plan").
Certain terms used herein, however, are defined in the Plan.
3. Exercise Price. The exercise price of the Option shall be
$______ per share, subject to adjustment as hereinafter provided.
4. Exercisability. This Option shall vest and become
exercisable as follows: (i) Options to purchase ______% of the Option Shares
shall be exercisable on and after ______________, (ii) Options to purchase an
additional ________% of the Option Shares shall be exercisable on and after
______________ and (iii) Options to purchase the remaining ________% of the
Option Shares shall be exercisable on and after ______________. After a portion
of the Option becomes exercisable, it shall remain exercisable except as
otherwise provided herein, until the close of business on ______________ (the
"Exercise Period").
5. Effect of Termination of Employment.
5.1 Termination Due to Death. If Employee's employment by
the Company terminates by reason of death, the Option shall become fully vested
and exercisable and may thereafter be exercised by the legal representative of
the estate or by the legatee of the Employee under the will of the Employee, for
a period of one year from the date of such death or until the expiration of the
Exercise Period, whichever period is shorter.
5.2 Termination Due to Disability. If Employee's
employment by the Company terminates by reason of Disability (as such term is
defined in the Plan), the Option shall become fully vested and exercisable and
may thereafter be exercised by the Employee for a period of one year from the
date of such termination or until the expiration of the Exercise Period,
whichever period is shorter.
<PAGE>
5.3 Termination Without Cause and/or Due to Retirement.
If Employee's employment is terminated by the Company without cause or due to
Normal Retirement (as such term is defined in the Plan), then the portion of the
Option which has vested by the date of termination of employment may be
exercised for a period of three months from termination of employment or until
the expiration of the Exercise Period, whichever is shorter. The portion of the
Option not yet exercisable on the date of termination of employment shall
immediately expire.
5.4 Other Termination.
(a) If Employee's employment is terminated for any
reason other than (i) Death, (ii) Disability, (iii) Normal Retirement, or (iv)
Without cause by the Company, the Option shall expire on the date of
termination.
(b) The Committee (as such term is defined in the
Plan) may, in the event the Employee's employment is terminated for cause, annul
the Option and, in such event, may require the Employee to return to the Company
the economic value of any Option Shares purchased hereunder by the Employee
within the six month period prior to the date of termination. In such event, the
Employee hereby agrees to remit to the Company, in cash, an amount equal to the
difference between the Fair Market Value of the Option Shares on the date of
termination (or the sales price of such Shares if the Option Shares were sold
during such six month period) and the Exercise Price of such Shares.
5.5 Competing With the Company. In the event that,
within 18 months after the date of termination of Employee's employment with the
Company, Employee accepts employment with any competitor of, or otherwise
competes with, the Company, the Committee, in its sole discretion, may require
such Employee to return to the Company the economic value of any Option Shares
purchased hereunder by the Employee within the six month period prior to the
date of termination. In such event, Employee agrees to remit the economic value
to the Company in accordance with Section 5.4(b).
6. Withholding Tax. Not later than the date as of which an
amount first becomes includible in the gross income of the Employee for Federal
income tax purposes with respect to the Option, the Employee shall pay to the
Company, or make arrangements satisfactory to the Committee regarding the
payment of, any Federal, state and local taxes of any kind required by law to be
withheld or paid with respect to such amount. The obligations of the Company
under the Plan and pursuant to this Agreement shall be conditional upon such
payment or arrangements with the Company and the Company shall, to the extent
permitted by law, have the right to deduct any such taxes from any payment of
any kind otherwise due to the Employee from the Company.
7. Adjustment. In the event of any merger, reorganization,
consolidation, recapitalization, dividend (other than cash dividend), stock
split, reverse stock split, or other change in corporate structure affecting the
number of issued shares of Common Stock, the Company shall proportionally adjust
the number of and kind of Option Shares and the exercise price of the Option in
order to prevent the dilution or enlargement of the Employee's proportionate
interest in the Company and his rights hereunder, provided that the number of
Option Shares shall always be a whole number.
8. Method of Exercise.
8.1 Notice to the Company. The Option shall be exercised
in whole or in part by written notice directed to the Company at its principal
place of business accompanied by full payment as hereinafter provided of the
exercise price for the number of Option Shares specified in the notice.
8.2 Delivery of Option Shares. The Company shall deliver
a certificate for the Option Shares to the Employee as soon as practicable after
payment therefor.
2
<PAGE>
8.3 Payment of Purchase Price
8.3.1 Cash Payment. The Employee shall pay the
purchase price in cash or by wire transfer, certified or bank check or personal
check, in each case payable to the order of WinStar Communications, Inc.; the
Company shall not be required to deliver certificates for Option Shares until
the Company has confirmed the receipt of good and available funds in payment of
the purchase price thereof.
8.3.2. Payment Price of Withholding Tax. Any required
withholding tax must be paid in cash.
9. Nonassignability. The Option shall not be assignable or
transferable except by will or by the laws of descent and distribution in the
event of the death of the Employee. No transfer of the Option by the Employee by
will or by the laws of descent and distribution shall be effective to bind the
Company unless the Company shall have been furnished with written notice thereof
and a copy of the will and such other evidence as the Company may deem necessary
to establish the validity of the transfer and the acceptance by the transferee
or transferees of the terms and conditions of the Option.
10. Company Representations. The Company hereby represents
and warrants to the Employee that:
(i) the Company, by appropriate and all required action,
is duly authorized to enter into this Agreement and consummate all of the
transactions contemplated hereunder; and
(ii) the Option Shares, when issued and delivered by the
Company to the Employee in accordance with the terms and conditions hereof, will
be duly and validly issued and fully paid and non-assessable.
11. Employee Representations. The Employee hereby represents
and warrants to the Company that:
(i) he is acquiring the Option and shall acquire
the Option Shares for his own account and not with a view towards the
distribution thereof;
(ii) he has received a copy of all reports and
documents required to be filed by the Company with the Commission
pursuant to the Exchange Act within the last 24 months and all reports
issued by the Company to its stockholders;
(iii) he understands that he must bear the economic
risk of the investment in the Option Shares, which cannot be sold by
him unless they are registered under the Securities Act of 1933 (the
"1933 Act") or an exemption therefrom is available thereunder and that
the Company is under no obligation to register the Option Shares for
sale under the 1933 Act;
(iv) the Employee understands that the Company may
use the proceeds derived from the exercise of his option to make
investments in, acquire, make loans to, or otherwise enter into
business arrangements with, companies which are not involved in the
telecommunications business. Specifically, the Company may contribute
such proceeds to WinStar New Media Company, Inc. and its other
subsidiaries which acquire, produce and distribute information and
entertainment content;
(v) in his position with the Company, he has had both
the opportunity to ask questions and receive answers from the officers
and directors of the Company and all persons acting on its behalf
concerning the terms and conditions of the offer made hereunder and to
obtain any additional information to the extent the Company possesses
or may possess such information or can acquire it without unreasonable
effort or expense necessary to verify the accuracy of the information
obtained pursuant to clause (ii) above;
3
<PAGE>
(vi) he is aware that the Company shall place stop
transfer orders with its transfer agent against the transfer of the
Option Shares in the absence of registration under the 1933 Act or an
exemption therefrom as provided herein; and
(vii) the certificates evidencing the Option Shares
shall bear the following legends:
"The shares represented by this certificate have been
acquired for investment and have not been registered
under the Securities Act of 1933. The shares may not
be sold or transferred in the absence of such
registration or an exemption therefrom under said
Act."
"The shares represented by this certificate have been
acquired pursuant to a Stock Option Agreement, dated
as of ______________, a copy of which is on file with
the Company, and may not be transferred, pledged or
disposed of except in accordance with the terms and
conditions thereof."
12. Restriction on Transfer of Option Shares. Anything in this
Agreement to the contrary notwithstanding, the Employee hereby agrees that he
shall not sell, transfer by any means or otherwise dispose of the Option Shares
acquired by him without registration under the 1933 Act, or in the event that
they are not so registered, unless (i) an exemption from the 1933 Act
registration requirements is available thereunder, and (ii) the Employee has
furnished the Company with notice of such proposed transfer and the Company's
legal counsel, in its reasonable opinion, shall deem such proposed transfer to
be so exempt.
13. Miscellaneous.
13.1 Notices. All notices, requests, deliveries,
payments, demands and other communications which are required or permitted to be
given under this Agreement shall be in writing and shall be either delivered
personally or sent by registered or certified mail, or by private courier,
return receipt requested, postage prepaid to the parties at their respective
addresses set forth herein, or to such other address as either shall have
specified by notice in writing to the other. Notice shall be deemed duly given
hereunder when delivered or mailed as provided herein.
13.2 Change of Control. If (i) any person or
entity other than the Company and/or any officer, director or principal
stockholder (i.e., a holder (beneficially or of record) of more than ten percent
of the Company's voting stock) of the Company as of the date hereof acquire
securities of the Company (in one or more transactions) having 25% or more of
the total voting power of all the Company's securities then outstanding and (ii)
the Board of Directors of the Company does not authorize or otherwise approve
such acquisition, then the option vesting period hereunder shall be accelerated,
the Option will immediately and entirely vest, and the Employee will have the
right to immediately purchase all Option Shares on the terms set forth in this
Agreement.
13.3 Stockholder Rights. The Employee shall not
have any of the rights of a stockholder with respect to the Option Shares until
such shares have been issued after the due exercise of the Option.
13.4 Waiver. The waiver by any party hereto of a
breach of any provision of this Agreement shall not operate or be construed
as a waiver of any other or subsequent breach.
13.5 Entire Agreement. This Agreement constitutes
the entire agreement between the parties with respect to the subject matter
hereof. This Agreement may not be amended except by writing executed by the
Employee and the Company.
13.6 Binding Effect; Successors. This Agreement
shall inure to the benefit of and be binding upon the parties hereto and, to the
extent not prohibited herein, their respective heirs, successors, assigns, and
representatives. Nothing in this Agreement, expressed or implied, is intended to
confer on any person other than the parties hereto and as provided above, their
respective heirs, successors, assigns and representatives any rights, remedies,
obligations or liabilities.
4
<PAGE>
13.7 Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York
(without regard to choice of law provisions).
13.8 Headings. The headings contained herein are
for the sole purpose of convenience of reference, and shall not in any way limit
or affect the meaning or interpretation of any of the terms or provisions of
this Agreement.
IN WITNESS WHEREOF, the parties hereto have signed this
Agreement as of the day and year first above written.
WINSTAR COMMUNICATIONS, INC. Address:
230 Park Avenue, 31st Floor
New York, NY 10169
By: --------------------------- ---------------------------
Fredric E. von Stange Date Signed
Executive Vice President
EMPLOYEE: Address:
- ------------------------------- --------------------------
Name:
SS#: --------------------------
--------------------------
Date Signed
5
<PAGE>
EXHIBIT 4.2
WinStar Communications, Inc. - Schedule of Option Grants
<TABLE>
==============================================================================================================
<CAPTION>
Vesting
Number ---------------------------- Last
of Exercise % Each Dates of Exercise
Name Grant Date Shares Price Year Vesting Date
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
David Ackerman 07/10/96 75,000 25.875 33-1/3 05/29/97-99 05/29/04
- --------------------------------------------------------------------------------------------------------------
David Ackerman 06/10/95 75,000 5.50 33-1/3 06/10/95-97 06/10/02
- --------------------------------------------------------------------------------------------------------------
Richard Allen 07/16/96 35,000 20.00 33-1/3 06/01/97-99 05/31/01
- --------------------------------------------------------------------------------------------------------------
Ira Anslow 03/25/96 25,000 16.00 33-1/3 03/25/97-99 03/25/01
- --------------------------------------------------------------------------------------------------------------
Vince Bartone 12/01/95 15,000 15.37 33-1/3 12/01/96-98 12/01/00
- --------------------------------------------------------------------------------------------------------------
Robert Berger 03/25/96 50,000 16.00 33-1/3 03/25/97-99 03/25/01
- --------------------------------------------------------------------------------------------------------------
Harry Bratton 04/15/96 10,000 17.375 33-1/3 04/15/97-99 04/14/01
- --------------------------------------------------------------------------------------------------------------
John Brower 08/12/96 20,000 19.625 20 08/12/97-01 08/11/06
- --------------------------------------------------------------------------------------------------------------
Rick Calder 07/16/96 35,000 25.125 33-1/3 06/06/97-99 06/05/01
- --------------------------------------------------------------------------------------------------------------
Jane Chadwick 03/25/96 25,000 16.00 33-1/3 03/25/97-99 03/24/01
- --------------------------------------------------------------------------------------------------------------
John Connolly 07/22/96 10,000 20.375 20 07/22/97-01 07/22/06
- --------------------------------------------------------------------------------------------------------------
John Conroy 07/22/96 20,000 20.375 20 07/22/97-01 07/22/06
- --------------------------------------------------------------------------------------------------------------
Cynthia Czerner 05/28/96 50,000 30.50 33-1/3 05/28/97-99 05/28/01
- --------------------------------------------------------------------------------------------------------------
Stuart Dolgin 04/01/96 10,000 16.125 33-1/3 04/01/97-99 04/01/01
- --------------------------------------------------------------------------------------------------------------
Gaye Forbes 09/04/96 9,000 19.00 20 09/04/96-00 09/03/01
- --------------------------------------------------------------------------------------------------------------
Jonathan Goldman 04/04/96 25,000 18.1875 50 04/04/97-98 04/04/01
- --------------------------------------------------------------------------------------------------------------
Jonathan Goldman 02/03/95 25,000 7.00 50 02/03/96-97 02/03/00
- --------------------------------------------------------------------------------------------------------------
Clay Gordon 09/04/96 9,000 19.00 20 09/04/96-00 09/03/01
- --------------------------------------------------------------------------------------------------------------
Rifat Haffar 07/01/96 75,000 23.50 33-1/3 07/01/97-99 07/01/01
- --------------------------------------------------------------------------------------------------------------
William Halpin 07/22/96 10,000 20.375 33-1/3 07/22/97-99 07/22/01
- --------------------------------------------------------------------------------------------------------------
Robert Hannan 11/13/95 20,000 14.87 33-1/3 11/13/96-98 11/13/00
- --------------------------------------------------------------------------------------------------------------
Daniel Harris 11/13/95 50,000 14.34 33-1/3 11/13/96-98 11/13/00
- --------------------------------------------------------------------------------------------------------------
Kyle Heinrich 02/03/95 25,000 7.00 50 02/03/96-97 02/03/00
- --------------------------------------------------------------------------------------------------------------
Kyle Heinrich 04/04/96 25,000 18.1875 50 04/04/97-98 04/04/01
- --------------------------------------------------------------------------------------------------------------
Bryan Hopkins 07/16/96 25,000 21.250 33-1/3 07/16/97-99 05/07/01
- --------------------------------------------------------------------------------------------------------------
Dennis Huber 07/16/96 20,000 20.875 33-1/3 12/07/96-98 12/07/00
- --------------------------------------------------------------------------------------------------------------
Jack Hugnou 12/07/95 15,000 15.375 33-1/3 01/03/96-98 12/06/00
- --------------------------------------------------------------------------------------------------------------
Nathan Kantor 05/08/96 150,000 20.375 100 -- 09/05/00
- --------------------------------------------------------------------------------------------------------------
<PAGE>
- --------------------------------------------------------------------------------------------------------------
Keith Kapalka 12/07/95 15,000 15.375 33-1/3 12/07/96-98 12/06/00
- --------------------------------------------------------------------------------------------------------------
Lee Kerr 07/16/96 10,000 21.625 33-1/3 05/06/97-99 05/05/01
- --------------------------------------------------------------------------------------------------------------
Kaki Kirby 07/16/96 10,000 20.375 33-1/3 05/10/97-99 05/09/01
- --------------------------------------------------------------------------------------------------------------
Sheri Levine 04/24/96 10,000 18.5625 33-1/3 04/24/97-99 04/24/01
- --------------------------------------------------------------------------------------------------------------
Stephen Lidd 04/01/96 15,000 16.125 33-1/3 04/01/97-99 03/31/01
- --------------------------------------------------------------------------------------------------------------
Richard Lorber 04/24/96 100,000 20.41875 33-1/3 04/24/97-99 04/24/01
- --------------------------------------------------------------------------------------------------------------
Frank Madonna 07/08/96 50,000 20.00 33-1/3 07/08/97-99 07/08/01
- --------------------------------------------------------------------------------------------------------------
Peter Marsh 07/22/96 70,000 20.375 33-1/3 07/22/97-99 07/22/01
- --------------------------------------------------------------------------------------------------------------
Renee Marvin 09/05/96 30,000 18.750 20 09/05/97-01 09/05/06
- --------------------------------------------------------------------------------------------------------------
Nancy McConnell 03/11/96 10,000 16.00 33-1/3 03/11/97-99 03/10/01
- --------------------------------------------------------------------------------------------------------------
Robert McGuire 05/01/96 175,000 14.75 33-1/3 05/01/97-99 05/01/01
- --------------------------------------------------------------------------------------------------------------
Steve Merrill 07/16/96 25,000 30.125 20 06/01/97-01 06/01/06
- --------------------------------------------------------------------------------------------------------------
Lawrence Murphy 03/25/96 20,000 16.00 33-1/3 03/25/97-99 03/25/01
- --------------------------------------------------------------------------------------------------------------
Mark O'Gara 04/08/96 25,000 18.1875 33-1/3 04/08/97-99 04/08/01
- --------------------------------------------------------------------------------------------------------------
Michael Olivieri 04/24/96 10,000 18.5625 33-1/3 04/23/97-99 04/23/01
- --------------------------------------------------------------------------------------------------------------
Ralph Peluso 12/07/95 30,000 15.375 33-1/3 12/07/96-98 12/06/00
- --------------------------------------------------------------------------------------------------------------
Dan Piett 12/07/95 15,000 15.375 33-1/3 12/07/96-98 12/06/00
- --------------------------------------------------------------------------------------------------------------
Ron Pixler 11/15/95 30,000 15.375 33-1/3 11/15/96-98 11/15/00
- --------------------------------------------------------------------------------------------------------------
James Price 07/16/96 15,000 25.00 33-1/3 07/16/97-99 07/15/01
- --------------------------------------------------------------------------------------------------------------
Pedro Racelis 10/30/95 10,000 17.375 33-1/3 10/30/96-98 10/30/00
- --------------------------------------------------------------------------------------------------------------
Pedro Racelis 12/07/95 15,000 15.375 33-1/3 12/07/96-98 12/06/00
- --------------------------------------------------------------------------------------------------------------
Blake Ratcliff 10/27/95 50,000 16.75 33-1/3 10/27/96-98 10/27/00
- --------------------------------------------------------------------------------------------------------------
Stephen Renne 07/16/96 30,000 24.50 33-1/3 06/25/97-99 06/24/01
- --------------------------------------------------------------------------------------------------------------
Ronald Roades 03/21/96 20,000 14.875 33-1/3 03/21/97-99 03/20/01
- --------------------------------------------------------------------------------------------------------------
Robert Sabo 07/16/96 20,000 25.00 33-1/3 06/24/97-99 06/23/01
- --------------------------------------------------------------------------------------------------------------
Joseph Sandri 01/10/96 30,000 14.375 20, 30, 50 01/10/97-99 01/10/01
- --------------------------------------------------------------------------------------------------------------
David Schmieg 04/01/96 275,000 14.75 33-1/3 04/01/97-99 04/01/01
- --------------------------------------------------------------------------------------------------------------
Kenneth Schwartz 08/26/96 60,000 19.0625 20 08/26/97-01 08/25/06
- --------------------------------------------------------------------------------------------------------------
Jane Shepard 09/04/96 9,000 19.00 20 01/01/98-02 12/31/02
Veronis
- --------------------------------------------------------------------------------------------------------------
Adrienne Skinner 09/04/96 40,000 19.00 20 09/04/96-00 09/03/01
- --------------------------------------------------------------------------------------------------------------
Daryl Sullivan 08/05/96 20,000 20.00 20 08/05/97-01 08/05/06
- --------------------------------------------------------------------------------------------------------------
2
<PAGE>
- --------------------------------------------------------------------------------------------------------------
Mike Van Zetta 07/15/96 20,000 23.00 20 07/15/97-01 07/15/06
- --------------------------------------------------------------------------------------------------------------
Margo Volftsun 12/07/95 15,000 15.375 33-1/3 12/07/96-98 12/07/00
- --------------------------------------------------------------------------------------------------------------
Anthanassion Voreas 03/04/96 40,000 16.6875 33-1/3 03/04/97-99 03/24/01
- --------------------------------------------------------------------------------------------------------------
John Walton 07/15/96 10,000 24.063 20 07/15/97-01 07/15/06
- --------------------------------------------------------------------------------------------------------------
Allan Zendle 08/05/96 20,000 20.00 20 08/05/97-01 08/05/06
==============================================================================================================
</TABLE>
3
<PAGE>
EXHIBIT 5.1
GRAUBARD MOLLEN & MILLER
600 Third Avenue
New York, NY 10016
October 30, 1996
WinStar Communications, Inc.
230 Park Avenue
Suite 3126
New York, New York 10169
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to you in connection with the
purchase and offering by WinStar Communications, Inc. ("Company"), of up to
2,287,000 shares ("Shares") of the Company's Common Stock, $.01 par value per
share, pursuant to options which have been or may be granted under the Company's
other employee benefit plans ("Benefit Plans").
In such capacity, we have examined, signed and conformed
copies of the Registration Statement on Form S-8 relating to the Shares filed by
the Company with the Securities and Exchange Commission ("Commission") under the
Securities Act of 1933, as amended ("Act") on October 30, 1996, (hereinafter
referred to as the "Registration Statement"), and have examined the Prospectus
dated October 30, 1996 relating to the Shares ("Prospectus"). We have also
examined, among other documents, signed copies of the Stock Option Agreements
between the Company and the grantees of options under the Benefit Plans, copies
of the Certificate of Incorporation, as amended, and By-Laws of the Company, as
amended, and certified copies of resolutions adopted by the Company's Board of
Directors relating, among other things, to the authorization and sale of the
Shares. In addition, we have examined and relied upon, to the extent we deemed
such reliance proper, certificates of officers and directors of the Company,
certificates of certain public officials and such other records and documents as
we have considered necessary and proper in order that we may render the opinion
hereinafter set forth. We have assumed the authenticity of such Certificate of
Incorporation, as amended, By-Laws, as amended, resolutions, certificates,
records and other documents examined by us and the correctness of all statements
of fact contained therein, and nothing has come to our attention which indicates
that such documents and other items are not authentic or correct. With respect
to such examination, we have assumed the genuineness of all signatures appearing
on all documents presented to us as originals and the conformity to originals of
all documents presented to us as conformed or reproduced documents. We have not
examined the certificates for the Shares other than specimens thereof.
As members of the Bar of the State of New York, we do not
purport to be experts in the laws of any jurisdiction other than the State of
New York and with respect to the Federal laws of the United States.
<PAGE>
WinStar Communications, Inc.
October 30, 1996
Page 2
Based on the foregoing we are of the opinion that the Shares
being offered pursuant to the Stock Option Agreements and the terms of the
respective Benefit Plan to which each Stock Option Agreement relates have been
duly authorized and, when issued and delivered against payment therefor, as
contemplated by the Registration Statement and the Stock Option Agreements, will
be validly issued and fully paid and non-assessable.
This letter is being delivered to you solely for your benefit
and may not be relied upon in any manner by any other person.
Very truly yours,
/s/ Graubard Mollen & Miller
GRAUBARD MOLLEN & MILLER
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED
PUBLIC ACCOUNTANTS
We have issued our report dated March 8, 1996, accompanying the consolidated
financial statements of WinStar Communications, Inc. and Subsidiaries appearing
in the Transition Report on Form 10-KSB for the ten months ended December 31,
1995 which is incorporated by reference in the Registration Statement and
Prospectus. We consent to the use of the aforementioned report and the
incorporation by reference in the Registration Statement and Prospectus.
/s/ Grant Thornton LLP
- ------------------------
GRANT THORNTON LLP
New York, New York
October 29, 1996
<PAGE>
