As filed with the Securities and Exchange Commission on March 5, 1998
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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)
OTHER EMPLOYEE BENEFIT PLANS
(Full title of the Plans)
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) 584-4000
(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 options 1,857,000 shares(1) (2) $33,771,437.75(3) $9,962.57
granted and outstanding under other employee
benefit plans ("Benefit Plans")
</TABLE>
(1) Pursuant to the Registrant's Shareholder Rights Plan adopted in July
1997, one preferred stock purchase right is attached to each share of
Common Stock.
<PAGE>
(2) 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: $10.25
(10,000 shares), $11.125 (10,000 shares), $11.625 (10,000 shares),
$12.375 (20,000 shares), $13.1875 (75,000 shares), $13.50 (10,000
shares), $15.125 (20,000 shares), $15.625 (50,000 shares), $16.0625
(175,000 shares), $16.375 (15,000 shares), $16.4375 (75,000 shares),
$16.75 (45,000 shares), $16.8125 (27,000 shares), $16.875 (45,000
shares); $17.00 (470,000 shares), $17.375 (100,000 shares), $17.625
(15,000 shares), $18.75 (20,000 shares), $19.00 (30,000 shares),
$19.625 (10,000 shares), $20.00 (275,000 shares), $20.25 (30,000
shares), $20.50 (25,000 shares), $20.625 (20,000 shares), $21.00
(100,000 shares), $21.0625 (12,500 shares), $23.00 (10,000 shares),
$24.625 (25,000 shares), $25.00 (35,000 shares), $26.00 (60,000 shares)
and $28.3125 (32,500 shares).
(3) The proposed maximum aggregate offering price is the sum of the
exercise prices of the options granted under Benefit Plans and
outstanding as of March 5, 1998, in accordance with Rule 457(h)
promulgated under the Securities Act.
---------------------
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.
---------------------
<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.
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<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:
(1) Annual Report on Form 10-K for the year ended December 31, 1996;
(2) Current Report on Form 8-K filed January 17, 1997;
(3) Current Report on Form 8-K filed February 14, 1997;
(4) Current Report on Form 8-K filed February 27, 1997;
(5) Current Report on Form 8-K filed March 27, 1997;
(6) Quarterly Report on Form 10-Q for the three-month period ended March 31,
1997, as amended on June 10, 1997;
(7) Proxy Statement, dated May 15, 1997;
(8) Current Report on Form 8-K filed June 10, 1997;
(9) Quarterly Report on Form 10-Q for the six-month period ended June 30, 1997;
(10) Current Report on Form 8-K filed July 2, 1997;
(11) Current Report on Form 8-K filed September 11, 1997;
(12) Current Report on Form 8-K filed October 29, 1997;
(13) Current Report on Form 8-K filed October 31, 1997;
(14) Quarterly Report on Form 10-Q for the nine-month period ended September 30,
1997;
(15) Current Report on Form 8-K filed December 24, 1997;
(16) Current Report on Form 8-K filed January 30, 1998;
(17) The description of the Common Stock contained in the Registrant's Form 8-A
Registration Statement filed with the Commission pursuant to Section 12(g)
of the Securities Exchange Act of 1934, as amended ("Exchange Act"),
including any subsequent amendment(s) or report(s) filed for purposes of
updating such description;
(18) The description of the Rights to Purchase Series B Preferred Stock
contained in the Registrant's Form 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 purposes of updating such
description; and
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 that indicates that all securities
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<PAGE>
offered have been sold or that 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 that
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
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 that 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 that 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
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<PAGE>
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 provide for indemnification of directors and officers of the
Registrant 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.
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 Grant Thornton LLP, independent accountant for Registrant
(filed herewith)
23.3 Consent of Graubard Mollen & Miller (included in Exhibit 5.1) (filed
herewith)
24.1 Power of Attorney (included on the signature page hereto)
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<PAGE>
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;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement
(or the most recent effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the Registration Statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
Registration 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 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d)
of the Exchange Act that are incorporated by reference in the Registration
Statement.
(2) 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.
(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, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing procedures, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the 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 Securities Act and will be governed by the final
adjudication of such issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 5th day of
March, 1998.
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 Timothy R.
Graham 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>
<S> <C> <C>
/s/ William J. Rouhana, Jr. Chairman of the Board of Directors and Chief March 5, 1998
- ---------------------------------------
William J. Rouhana, Jr. Executive Officer (and principal executive officer)
/s/ Nathan Kantor President, Chief Operating Officer and Director March 5, 1998
- ---------------------------------------
Nathan Kantor
/s/ Steven G. Chrust Vice Chairman of the Board of Directors March 5, 1998
- ---------------------------------------
Steven G. Chrust
/s/ Joseph P. Dwyer Vice President, Finance (principal accounting March 5, 1998
- ---------------------------------------
Joseph P. Dwyer officer)
/s/ Bert W. Wasserman Director March 5, 1998
- ---------------------------------------
Bert W. Wasserman
/s/ William J. vanden Heuvel Director March 5, 1998
- ---------------------------------------
William J. vanden Heuvel
/s/ Steven B. Magyar Director March 5, 1998
- ---------------------------------------
Steven B. Magyar
- -------------------------------------- Director March , 1998
James I. Cash
</TABLE>
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<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 Grant Thornton LLP, independent accountant for Registrant
(filed herewith)
23.3 Consent of Graubard Mollen & Miller (included in Exhibit 5.1) (filed
herewith)
24.1 Power of Attorney (included on the signature page hereto)
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<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.
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. Adjustments. In the event of any reorganization, consolidation, stock
dividend, stock split, reverse stock split, or other change in corporate
structure affecting the Common Stock as a whole, 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.
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.
<PAGE>
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;
(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.
<PAGE>
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.
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.
<PAGE>
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: ----------------------------- --------------------------------
Date Signed
EMPLOYEE: Address:
---------------------------------
- --------------------------------- ---------------------------------
Name:
SS#:
---------------------------------
Date Signed
<PAGE>
EXHIBIT 4.2
WinStar Communications, Inc. - Schedule of Option Grants
<TABLE>
<CAPTION>
Number Vesting
Grant of Exercise % Each Dates of Last Exercise
Name Date Shares Price Year Vesting Date
- ----------------------- -------- ---------- ------------- ------------------------- ----------------
<S> <C> <C> <C> <C> <C> <C>
Gary R. Jaeckel 1/19/98 50,000 26.0000 20 1/19/99-03 1/19/08
Jeff Sanders 1/19/98 10,000 26.0000 20 1/19/99-03 1/19/08
Bobbie Halfin 1/5/98 25,000 24.6250 20 1/5/99-03 1/5/08
Richard J. Uhl 12/8/97 225,000 20.0000 20 12/8/98-02 12/8/07
Charles Dickson 12/1/97 250,000 17.0000 20 12/1/98-02 12/1/07
Charles Persing 11/24/97 12,500 28.3125 20 11/24/98-02 11/24/07
Howard Taylor 11/10/97 200,000 17.0000 20 11/10/98-02 11/10/07
John Cronin 11/10/97 20,000 28.3125 20 11/10/98-02 11/10/07
Michael Benjamin 10/27/97 50,000 17.3750 20 10/27/98-02 10/27/07
Marc L. Destree 10/1/97 50,000 15.6250 20 10/1/98-02 10/1/07
Kenneth A. Neimo 9/29/97 30,000 17.3750 20 9/29/98-02 9/29/07
Marc Razeghi 9/29/97 20,000 17.3750 20 9/29/98-02 9/29/07
Robert Becker 9/12/97 20,000 15.1250 20 9/12/98-02 9/12/07
Ruth Shields 9/8/97 150,000 16.0625 20 9/8/98-02 9/8/07
Kevin Lombardo 9/8/97 25,000 16.0625 20 9/8/98-02 9/8/07
Franklin T. Jepson 8/25/97 75,000 16.4375 20 8/25/98-02 8/25/07
John R. Hughes 8/18/97 20,000 17.0000 20 8/18/98-02 8/25/07
Dan Meyer 8/1/97 15,000 16.8125 20 8/1/98-02 8/1/07
Roger J. Pilc 7/23/97 10,000 16.8750 20 7/23/98-02 7/23/07
David W. Ackerman 6/10/97 75,000 13.1875 20 6/10/98-02 6/10/07
Frederic Rubin 6/9/97 10,000 13.5000 20 6/9/98-02 6/10/07
Claude West 5/27/97 10,000 12.3750 20 5/27/98-02 5/27/07
Yvonne Schultz 5/5/97 10,000 10.2500 20 5/5/98-02 5/5/07
Peter Fifield 4/7/97 10,000 11.6250 20 4/7/98-02 4/7/07
Donald L. Gorski 3/24/97 10,000 11.1250 20 3/24/98-02 3/24/07
Mark Ahasic 1/31/97 12,000 16.8125 20 1/31/98-02 1/31/07
Michael Ewing 1/27/97 35,000 16.7500 20 1/27/98-02 1/27/07
Michael Roberts 1/13/97 10,000 16.7500 20 1/13/98-02 1/13/07
James I. Cash, Jr. 1/2/97 40,000 21.0000 20 1/2/98-02 1/2/07
James T. Beirne 12/23/96 15,000 20.2500 20 12/23/97-01 12/23/06
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Number Vesting
Grant of Exercise % Each Dates of Last Exercise
Name Date Shares Price Year Vesting Date
- ----------------------- -------- ---------- ------------- ------------------------- ----------------
<S> <C> <C> <C> <C> <C> <C>
Maureen E. Beirne 12/23/96 15,000 20.2500 20 12/23/97-01 12/23/06
Richard Schorr 12/11/96 20,000 20.0000 20 12/11/97-01 12/11/06
Heidi Goldstein 12/9/96 10,000 19.0000 20 12/9/97-01 12/9/06
Arthur McKinley 12/9/96 15,000 20.0000 20 12/9/97-01 12/9/06
Sherman Ackley 12/5/96 12,500 21.0625 20 12/5/97-01 12/5/06
Claude West 11/27/96 10,000 12.3750 20 11/27/97-01 11/27/06
Michael J. Grau 11/1/96 10,000 21.0000 20 11/1/97-01 11/1/06
Howard Gillman 10/31/96 25,000 21.0000 20 10/31/97-01 10/31/06
Louis Severine 10/31/96 25,000 21.0000 20 10/31/97-01 10/31/06
Kenneth J. Zinghini 10/28/96 20,000 20.6250 20 10/28/97-01 10/28/06
Richard K. Cotton 9/25/96 35,000 16.8750 20 9/25/97-01 9/25/06
Kathryn M. Hendrick 9/23/96 15,000 17.6250 20 9/23/97-01 9/23/06
Richard A. Boroway 9/9/96 20,000 18.7500 20 9/9/97-01 9/9/06
J. Patrick Wellington 8/19/96 15,000 16.375 20 8/19/97-01 8/19/06
Art Sprake 8/12/96 10,000 19.625 20 8/12/97-01 8/12/06
Toni Bacci 8/5/96 15,000 20.000 20 8/5/97-01 8/5/06
Michael Schlafer 8/1/96 20,000 19.000 20 8/1/97-01 8/1/06
Louise G. Goodman 7/16/96 35,000 25.000 20 7/16/97-01 7/16/06
Michael J. Grau 7/16/96 10,000 23.000 20 7/16/97-01 7/16/06
Barbara J. Voigt 4/29/96 25,000 20.500 20 4/29/97-01 4/29/06
========================= ============= ============== ============== =============== ================ ====================
</TABLE>
<PAGE>
EXHIBIT 5.1
GRAUBARD MOLLEN & MILLER
600 Third Avenue
New York, NY 10016
March 5, 1998
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
offering by WinStar Communications, Inc. ("Company"), of up to 1,857,000 shares
("Shares") of the Company's Common Stock, $.01 par value per share, pursuant to
options which have been granted under certain employee benefit plans ("Benefit
Plans") of the Company.
In such capacity, we have examined, among other documents, the
form of the Stock Option Agreement between the Company and the grantees of
options under the Benefit Plans, copies of the Restated 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. We have assumed that all of
the Stock Option Agreements between the Company and the grantees of options
under the Benefit Plans are in the same form as the form of Stock Option
Agreement we examined. 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
Restated 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 that 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
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 Stock Option Agreements, will be validly issued and fully
paid and nonassessable.
We hereby consent to the filing 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.
<PAGE>
WinStar Communications, Inc.
March 5, 1998
Page 2
This opinion 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 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
March 4, 1998
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our report dated January 9, 1997, accompanying the financial
statements of Milliwave Limited Partnership included in the Form 8-K filed on
June 10, 1997, which is incorporated by reference in this Registration Statement
on Form S-8. We consent to the incorporation by reference of the aforementioned
report in the Registration Statement.
GRANT THORNTON LLP
/s/ Grant Thornton LLP
- --------------------------
New York, New York
March 4, 1998
<PAGE>
