As filed with the Securities and Exchange Commission on January 26, 1999
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
NEXTLINK COMMUNICATIONS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 91-1738221
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
500 108th Avenue N.E., Suite 2200
Bellevue, Washington 98004
(425) 519-8900
(Address, including zip code, and telephone number, including area code,
of principal executive offices)
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NEXTLINK COMMUNICATIONS, INC. 401(k) SAVINGS AND RETIREMENT PLAN
(Full title of the plan)
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R. Bruce Easter, Jr., Esq.
NEXTLINK Communications, Inc.
500 108th Avenue N.E., Suite 2200
Bellevue, Washington 98004
(425) 519-8900
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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COPIES TO
Bruce R. Kraus, Esq.
Willkie Farr & Gallagher
787 Seventh Avenue
New York, NY 10019
(212) 728-8000
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CALCULATION OF REGISTRATION FEE
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Proposed maximum Proposed maximum
Title of securities Amount to be offering price aggregate offering Amount of
to be registered registered (1) per share (2) price (2) registration fee
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Class A Common Stock,
$0.02 par value
per share 250,000 $42.1875 $10,546,875 $2,932.03
======================= ================= =================== ===================== ==================
(1) This Registration Statement covers 250,000 shares of class A common
stock, $0.02 par value per share (the "Common Stock") issuable pursuant to the
Nextlink Communications, Inc. 401(k) Savings and Retirement Plan (the "Plan").
In addition, this Registration Statement covers an indeterminable number of
additional shares as may hereafter be offered or issued pursuant to the Plan, to
prevent dilution resulting from stock splits, stock dividends or similar
transactions effected without receipt of consideration and, pursuant to Rule
416(c) under the Securities Act of 1933, as amended (the "Securities Act"), an
indeterminate number of participation interests to be offered or sold pursuant
to the Plan.
(2) Estimated solely for calculating the amount of the registration fee,
pursuant to Rule 457(h) under the Securities Act based upon the average of the
high and low sales prices of the Class A Common Stock as reported by the Nasdaq
National Market on January 19, 1999.
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, filed with the Securities and Exchange Commission
(the "Commission") by NEXTLINK Communications, Inc., a Delaware corporation (the
"Company") are incorporated by reference into the Registration Statement:
(a) the Company's Annual Report on Form 10-KSB for the fiscal year ended
December 31, 1997, filed pursuant to the Securities Exchange Act of 1934 (the
"Exchange Act");
(b) the Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1998, June 30, 1998 and September 30, 1998;
(c) the Company's Current Reports on Form 8-K as filed with the Securities
and Exchange Commission on March 12, 1998, April 14, 1998, July 20, 1998, July
22, 1998, December 8, 1998 and January 19, 1999; and
(d) the description of the Company's Common Stock, which is incorporated
by reference into the Company's Registration Statement on Form 8-A, File No.
000-22939, dated August 4, 1997, filed pursuant to the Exchange Act, as amended
by the Company's Form 8-A/A-1, dated September 18, 1997, and contained in the
Company's Registration Statement on Form S-1, File No. 333-32001 filed pursuant
to the Securities Act.
In addition, all documents filed by the Company or the Plan with the
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act
subsequent to the date of the Registration Statement and prior to the filing of
a post-effective amendment which indicates that all the securities offered
hereby have been sold or which deregisters all securities then remaining unsold
shall be deemed to be incorporated herein by reference and to be a part hereof
from the date of the filing of such documents with the Commission.
THE COMPANY WILL PROVIDE WITHOUT CHARGE, UPON WRITTEN OR ORAL REQUEST, A
COPY OF ANY OR ALL OF THE FOREGOING DOCUMENTS INCORPORATED HEREIN BY REFERENCE
(OTHER THAN EXHIBITS TO SUCH DOCUMENTS). IN ADDITION, THE COMPANY WILL PROVIDE
ALL DOCUMENTS REQUIRED TO BE DELIVERED TO PARTICIPANTS PURSUANT TO RULE 428(b)
OF THE SECURITIES ACT. REQUESTS FOR SUCH DOCUMENTS SHOULD BE DIRECTED TO
RICHARD A. MONTFORT, ESQ., NEXTLINK COMMUNICATIONS, INC., 500 108TH AVENUE N.E.,
SUITE 2200, BELLEVUE, WA 98004, (425) 519-8900.
Item 4. DESCRIPTION OF SECURITIES
Inapplicable
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Inapplicable
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company is a Delaware corporation. In its Certificate of
Incorporation, the Company has adopted the provisions of Section 102(b)(7) of
the Delaware General Corporation Law (the "Delaware Law"), which enables a
corporation in its original certificate of incorporation or an amendment thereto
to eliminate or limit the personal liability of a director for monetary damages
for breach of the director's fiduciary duty, except (i) for any breach of the
director's duty of loyalty to the corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) pursuant to Section 174 of the Delaware Law
(providing for liability of directors for unlawful payment of dividends or
unlawful stock purchases or redemptions) or (iv) for any transaction from which
a director will personally receive a benefit in money, property or services to
which the director is not legally entitled.
The Company has also adopted indemnification provisions pursuant to Section
145 of the Delaware Law, which provides that a corporation may indemnify any
persons, including officers and directors, who are, or are threatened to be
made, parties to any threatened, pending or completed legal action, suit or
proceedings, 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 was an officer, director, employee or agent of the corporation,
or is or was serving at the request of such corporation as a director, officer,
employee or agent of another corporation or enterprise. The indemnity may
include expenses (including attorney's fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding, provided such officer, director, employee or
agent acted in good faith and in a manner he reasonably believed to be in or not
opposed to the corporation's best interests and, with respect to criminal
proceedings, had no reasonable cause to believe that his conduct was unlawful.
A Delaware corporation may indemnify officers or directors in an action by or in
the right of the corporation under the same conditions, except that no
indemnification is permitted without judicial approval if the officer or
director is adjudged to be liable to the corporation. Where an officer or
director is successful on the merits or otherwise in the defense of any action
referred to above, the corporation must indemnify him against expenses
(including attorney's fees) that such officer or director
actually and reasonably incurred.
The Company intends to enter into indemnification agreements with each of
its officers and directors.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Inapplicable
Item 8. EXHIBITS
Exhibit No.
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5 Opinion of Willkie Farr & Gallagher.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Willkie Farr & Gallagher (contained in Exhibit 5).
24 Power of Attorney (reference is made to the signature page).
The Company hereby undertakes to submit the Plan and any amendments
thereto to the Internal Revenue Service (the "IRS") in a timely manner and will
make all changes required by the IRS in order to qualify the Plan as a
tax-exempt retirement trust so long as the Plan remains in force.
Item 9. UNDERTAKINGS
1. The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to the 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 post-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)(i) and (a)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Company pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
(b) 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.
(c) 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.
2. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the Company's
annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act and
each filing of the 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.
3. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company
has been advised that in the opinion of the 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 Company of expenses incurred or paid
by a director, officer or controlling person of the Company in the successful
defense of any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being registered, the
Company 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.
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 Bellevue, State of Washington, on the 28th day of
December, 1998.
NEXTLINK Communications, Inc.
By: /s/ Wayne M. Perry
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Wayne M. Perry
Vice Chairman and Chief Executive Officer
Pursuant to the requirements of the Securities Act, the administrative
committee of the Plan has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City
of Bellevue, State of Washington, on the 28th day of December, 1998.
NEXTLINK Communications, Inc.
401(k) Savings and Retirement Plan
By: /s/ Kathleen H. Iskra
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A member of the Administrative
Committee of the Plan
POWERS OF ATTORNEY
We the undersigned officers and directors of Nextlink Communications, Inc.
hereby severally and individually constitute and appoint Kathleen H. Iskra and
R. Bruce Easter, Jr., and each of them, as the true and lawful attorney-in-fact
for the undersigned, in any and all capacities, with full power of substitution,
to sign any and all amendments to this Registration Statement (including
post-effective amendments), and to file the same with exhibits thereto and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorney-in-fact, 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, hereby ratifying and confirming all that each said
attorney-in-fact, or any of them, 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.
Signature Title Date
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/s/ Steven W. Hooper Chairman of the Board December 28, 1998
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Steven W. Hooper
/s/ Wayne M. Perry Vice Chairman, Chief Executive December 28, 1998
- ------------------------ Officer and Director (Principal
Wayne M. Perry Executive Officer)
/s/ Kathleen H. Iskra Vice President, Chief Financial December 28, 1998
- ------------------------ Officer and Treasurer (Principal
Kathleen H. Iskra Financial Officer and Principal
Accounting Officer)
/s/ Craig O. McCaw Director December 28, 1998
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Craig O. McCaw
/s/ Dennis Weibling Director December 28, 1998
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Dennis Weibling
/s/ William A. Hoglund Director December 23, 1998
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William A. Hoglund
/s/ Sharon L. Nelson Director December 19, 1998
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Sharon L. Nelson
/s/ Jeffrey S. Raikes Director December 28, 1998
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Jeffrey S. Raikes
/s/ Gregory J. Parker Director December 17, 1998
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Gregory J. Parker
INDEX TO EXHIBITS
Exhibit No. Description of Exhibit
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5 Opinion of Willkie Farr & Gallagher.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Willkie Farr & Gallagher (contained in Exhibit 5).
24 Powers of Attorney (included on signature page).