As filed with the Securities and Exchange Commission on September 16, 1998
- -----------------------------------------------------------------------------
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 2700
NEW YORK, NEW YORK 10169
----------------------------------------
(Address of principal executive offices)
1995 PERFORMANCE EQUITY PLAN
AND
QUALIFIED EMPLOYEE STOCK PURCHASE PLAN
----------------------------------------
(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
additional options that may be granted
under the Registrant' 1995 Performance
Equity Plan ("1995 Plan") 2,500,000 shares(1) $21.00(2) $52,500,000 $15,487.50
Common Stock issuable upon exercise of
options th may be granted under the
Registrant's Qualified Employee Stock
Purchase Plan ("Stock Purchase Plan") 750,000 shares(1) $21.00(2) $15,750,000 $ 4,646.25
-------------------- ---------- ----------- ----------
Total $20,133.75
</TABLE>
<PAGE>
(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.
(2) Based upon the last sale price of the Common Stock, as reported by Nasdaq,
on September 11, 1998, in accordance with Rule 457(c) promulgated under the
Securities Act of 1933, as amended ("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.
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") pursuant to the Securities
Exchange Act of 1934, as amended ("Exchange Act"), are incorporated by reference
in this Registration Statement:
(1) Annual Report on Form 10-K for the year ended December 31, 1997,
as amended on Form 10-K/A;
(2) Current Report on Form 8-K/A filed January 30, 1998;
(3) Current Report on Form 8-K/A filed February 5, 1998;
(4) Current Report on Form 8-K filed March 12, 1998;
(5) Current Report on Form 8-K filed March 30, 1998;
(6) Proxy Statement, dated May 7, 1998;
(7) Quarterly Report on Form 10-Q for the quarter ended March 31,
1998;
(8) Current Report on Form 8-K filed June 25, 1998;
(9) Current Report on Form 8-K filed July 23, 1998;
(10) Quarterly Report on Form 10-Q for the quarter ended June 30,
1998;
(11) Current Report on Form 8-K filed August 19, 1998; and
(12) The description of the Company's (i) Common Stock contained in
the Company's registration statement on Form 8-A under the
Exchange Act (File No. 1-10726) and (ii) Series B Preferred Stock
Purchase Rights contained in the Company's Registration Statement
on Form 8-A, as amended, under the Exchange Act (File No.
0-20876).
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 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.
II-1
<PAGE>
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 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.
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 1995 Performance Equity Plan of the Registrant (incorporated
by reference to Exhibit 4.1 to the Registrant's Registration
Statement on Form S-8 (No. 33-98668))
4.2 Qualified Employee Stock Purchase Plan of the Registrant
(incorporated by reference to the Registrant's Definitive
Proxy Statement filed with the Commission on May 7, 1998)
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)
23.3 Consent of Grant Thornton LLP (filed herewith)
23.4 Consent of Ernst & Young LLP (filed herewith)
24.1 Power of Attorney (included on the signature page hereto)
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;
II-3
<PAGE>
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.
II-4
<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 16th day of
September, 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 September 16, 1998
William J. Rouhana, Jr. Executive Officer (and principal executive officer)
/s/ Nathan Kantor President, Chief Operating Officer and Director September 16, 1998
- ----------------------------
Nathan Kantor
/s/ Steven G. Chrust Vice Chairman of the Board of Directors September 16, 1998
- ----------------------------
Steven G. Chrust
/s/ Charles T. Dickson Executive Vice President and Chief Financial September 16, 1998
- --------------------------- Officer (principal financial officer)
Charles T. Dickson
/s/ Joseph P. Dwyer Vice President, Finance (principal accounting September 16, 1998
- ---------------------------- officer)
Joseph P. Dwyer
/s/ Bert W. Wasserman Director September 16, 1998
- ----------------------------
Bert W. Wasserman
/s/ William J. vanden Heuvel Director September 16, 1998
- -----------------------------
William J. vanden Heuvel
/s/ Steven B. Magyar Director September 16, 1998
- -----------------------------
Steven B. Magyar
/s/ James I. Cash Director September 16, 1998
- -----------------------------
James I. Cash
</TABLE>
II-5
<PAGE>
EXHIBITS
Exhibit No. Description
4.1 1995 Performance Equity Plan of the Registrant (incorporated
by reference to Exhibit 4.1 to the Registrant's Registration
Statement on Form S-8 (No. 33-98668))
4.2 Qualified Employee Stock Purchase Plan of the Registrant
(incorporated by reference to the Registrant's Definitive
Proxy Statement filed with the Commission on May 7, 1998)
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)
23.3 Consent of Grant Thornton LLP (filed herewith)
23.4 Consent of Ernst & Young LLP (filed herewith)
24.1 Power of Attorney (included on the signature page hereto)
<PAGE>
GRAUBARD MOLLEN & MILLER
600 Third Avenue
New York, NY 10016
September 16, 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 2,500,000 shares
of the Company's Common Stock, $.01 par value per share ("Common Stock"),
pursuant to options that may be granted under the Company's 1995 Performance
Equity Plan ("1995 Plan") and up to 750,000 shares of Common Stock pursuant to
options that may be granted under the Company's Qualified Employee Stock
Purchase Plan ("Stock Purchase Plan").
In such capacity, we have examined, among other documents, the
1995 Plan, the Stock Purchase Plan and the forms of the Stock Option Agreements
between the Company and the grantees of options under the 1995 Plan, 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 amendment of the 1995 Plan, the
adoption of the Stock Purchase Plan, and the authorization and sale of the
shares of Common Stock to be sold pursuant to the 1995 Plan and minutes of a
meeting of the stockholders of the Company at which the amendment of the 1995
Plan and the adoption of the Stock Purchase Plan were approved. We have assumed
that all of the Stock Option Agreements between the Company and the grantees of
options under the 1995 Plan and the Stock Purchase Plan are or will be in the
same form as the forms of Stock Option Agreements 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 of Common Stock 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
of Common Stock being offered pursuant to the Stock Option Agreements and the
1995 Plan and the Stock Purchase Plan, and the terms of the 1995 Plan and the
Stock Purchase 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 non-assessable.
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.
September 16, 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
II-8
<PAGE>
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our reports dated February 12, 1998, accompanying the
consolidated financial statements and schedule of WinStar Communications, Inc.
and Subsidiaries appearing in the Annual Report on Form 10-K for the year ended
December 31, 1997, 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.
/s/ GRANT THORNTON LLP
GRANT THORNTON LLP
New York, New York
September 10, 1998
<PAGE>
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our report dated March 6, 1998, accompanying the consolidated
financial statements of Midcom Communications, Inc. and Subsidiaries for the
year ended December 31, 1997 included in Form 8-K, filed on March 12, 1998,
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.
/s/ GRANT THORNTON LLP
GRANT THORNTON LLP
Detroit, Michigan
September 11, 1998
<PAGE>
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of our report dated March 21, 1997, with respect to the consolidated
financial statements and schedules of Midcom Communications, Inc. as of December
31, 1996 and 1995, and for each of the three years in the period ended December
31, 1996, included in the Current Report on Form 8-K/A of WinStar
Communications, Inc. dated February 5, 1998, filed with the Securities and
Exchange Commission.
/s/ ERNST & YOUNG LLP
ERNST & YOUNG LLP
Detroit, Michigan
September 16, 1998
