As filed with the Securities and Exchange Commission on July 10, 1997
Registration No. 333-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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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 2700
NEW YORK, NEW YORK 10169
(Address of principal executive offices)
1995 PERFORMANCE EQUITY PLAN
(Full title of the Plan)
WILLIAM J. ROUHANA, JR., Chairman of the Board
and Chief Executive Officer
WinStar Communications, Inc.
230 Park Avenue, Suite 2700
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
Proposed maximum 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>
Common Stock issuable upon exercise of 4,000,000 shares(1) $14.75(2) $59,000,000.00 $17,878.79
additional options which may be granted under
the Registrant's 1995 Performance Equity Plan
("1995 Plan")
=================================================================================================================================
<FN>
(1) Includes one preferred stock purchase right for each share of Common Stock.
(2) Based upon the last sale price of the Common Stock, as reported by
Nasdaq on July 2, 1997, in accordance with Rule 457(c) promulgated
under the Securities Act of 1933.
</FN>
</TABLE>
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In accordance with the provisions of Rule 462 promulgated under the
Securities Act of 1933, the Registration Statement will become effective upon
filing with the Securities and Exchange Commission.
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<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 of 1933 and the Note to Part I
of the Instructions to Form S-8.
I-1
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Except for the Item 8 disclosure, the contents of the Registration
Statement on Form S-8 (No. 33-98668) previously filed by the Registrant with the
Securities and Exchange Commission ("Commission") on October 30, 1995, as
amended by Post-Effective Amendment No. 1 thereto filed by the Registrant with
the Commission on October 30, 1996, are incorporated by reference in this
Registration Statement.
On April 29, 1997, the Board of Directors of the Registrant approved an
amendment to the 1995 Plan to increase the number of shares available under the
1995 Plan from 3,500,000 shares to 7,500,000 shares. Such amendment was approved
by the stockholders of the Registrant on June 26, 1997. Accordingly, the
Registrant is filing this Registration Statement to register the additional
4,000,000 shares of Common Stock available for issuance under the 1995 Plan.
Item 8. Exhibits
<TABLE>
<CAPTION>
Exhibit No. Description
<S> <C>
4.1 1995 Performance Equity Plan of the Registrant (incorporated by
reference to Exhibit 4.1 to the Company's Registration Statement on
Form S-8 (No. 33-98668))
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) (filed
herewith)
24 Power of Attorney (included on the signature page hereto)
</TABLE>
II-1
<PAGE>
SIGNATURES
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 City of New York, State of New York, on this 10th day of
July, 1997.
WINSTAR COMMUNICATIONS, INC.
By: /s/ William J. Rouhana, Jr.
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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 of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
<S> <C> <C>
/s/ William J. Rouhana, Jr. Chairman of the Board of Directors and Chief July 10, 1997
- --------------------------------------- Executive Officer (and principal executive officer)
William J. Rouhana, Jr.
/s/ Nathan Kantor President, Chief Operating Officer and Director July 10, 1997
- ---------------------------------------
Nathan Kantor
/s/ Steven G. Chrust Vice Chairman of the Board of Directors July 10, 1997
- ---------------------------------------
Steven G. Chrust
/s/ Fredric E. von Stange Executive Vice President, Chief Financial Officer July 10, 1997
- --------------------------------------- and Director (and principal accounting officer)
Fredric E. von Stange
/s/ Bert W. Wasserman Director July 10, 1997
- ---------------------------------------
Bert W. Wasserman
Director July 10, 1997
- ---------------------------------------
William J. vanden Heuvel
/s/ William Harvey Director July 10, 1997
- ---------------------------------------
William Harvey
/s/ Steven B. Magyar Director July 10, 1997
- ---------------------------------------
Steven B. Magyar
Director July 10, 1997
- ---------------------------------------
Dennis R. Patrick
Director July 10, 1997
- ---------------------------------------
James I. Cash
</TABLE>
II-2
<PAGE>
EXHIBITS
<TABLE>
<CAPTION>
Exhibit No. Description
<S> <C>
4.1 1995 Performance Equity Plan of the Registrant (incorporated by
reference to Exhibit 4.1 to the Company's Registration Statement on
Form S-8 (No. 33-98668))
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) (filed
herewith)
24 Power of Attorney (included on the signature page hereto)
</TABLE>
II-3
<PAGE>
EXHIBIT 5.1
GRAUBARD MOLLEN & MILLER
600 Third Avenue
New York, NY 10016
July 10, 1997
WinStar Communications, Inc.
230 Park Avenue, Suite 2700
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
4,000,000 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
1995 Performance Equity Plan ("1995 Plan").
In such capacity, we have examined, among other documents, the
forms of the Stock Option Agreements between the Company and the grantees of
options under the 1995 Plan, copies of the Certificate of Incorporation, as
amended, and By-Laws, as amended, of the Company, and 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.
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 1995
Plan have been duly authorized and, when issued and delivered against payment
therefor, as contemplated by the Stock Option Agreements, will be validly issued
and fully paid and nonassessable.
We hereby consent to the use of this opinion as an exhibit to
the Registration Statement, to the use of our name as your counsel, and to all
references made to us in the Registration Statement. In giving this consent, we
do not hereby admit that we are in the category of persons whose consent is
required under Section 7 of the Securities Act, or the rules and regulations
promulgated thereunder.
Very truly yours,
/s/ Graubard Mollen & Miller
GRAUBARD MOLLEN & MILLER
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our reports dated January 24, 1997 and January 24, 1997, except
for the last paragraph of Note 19 as to which the date is May 13, 1997,
accompanying the consolidated financial statements and schedules included in the
Annual Report of WinStar Communications, Inc. and Subsidiaries on Form 10-K for
the year ended December 31, 1996 and in Form 8-K filed June 10, 1997,
respectively, which are incorporated by reference in this Registration Statement
on Form S-8. We consent to the incorporation by reference of the aforementioned
reports in the Registration Statement.
GRANT THORNTON LLP
/s/ Grant Thornton LLP
New York, New York
July 9, 1997
<PAGE>
