-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, EkaX1vm4xjPLDuKxywdp84nqlxBCEJLKYs8RNrrRv2BeJbv6zfHLHJbbMh7dWFJs OGLwhO8uz4Gx7TroQlJ0ZA== 0000899140-99-000340.txt : 19990512 0000899140-99-000340.hdr.sgml : 19990512 ACCESSION NUMBER: 0000899140-99-000340 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 19990426 ITEM INFORMATION: ITEM INFORMATION: FILED AS OF DATE: 19990511 FILER: COMPANY DATA: COMPANY CONFORMED NAME: NEXTLINK COMMUNICATIONS INC / DE CENTRAL INDEX KEY: 0001015126 STANDARD INDUSTRIAL CLASSIFICATION: TELEPHONE COMMUNICATIONS (NO RADIO TELEPHONE) [4813] IRS NUMBER: 911738221 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 000-22939 FILM NUMBER: 99616867 BUSINESS ADDRESS: STREET 1: 500 108TH AVE N E STREET 2: SUITE 2200 CITY: BELLEVUE STATE: WA ZIP: 98004 BUSINESS PHONE: 2065198900 MAIL ADDRESS: STREET 1: 500 108TH AVE N E STREET 2: SUITE 2200 CITY: BELLEVUE STATE: WA ZIP: 98004 8-K 1 CURRENT REPORT ON FORM 8-K SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of Report (Date of earliest event reported): April 26, 1999 NEXTLINK COMMUNICATIONS, INC. (Exact name of registrant as specified in charter) Delaware 000-22939 91-1738221 (State or other (Commission File (IRS Employer jurisdiction of Number) Identification No.) incorporation) 500 108th Avenue NE, Suite 2200, Bellevue, Washington 98004 (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code: 425-519-8900 Not Applicable (Former name or former address, if changed from last report) Item 2. Acquisition or Disposition of Assets On April 26, 1999, NEXTLINK Communications, Inc. ("NEXTLINK") consummated the merger of WNP Communications, Inc. ("WNP") with and into the special purpose vehicle PCO Acquisition Corp. ("PCO"), a wholly-owned subsidiary of NEXTLINK, with PCO being the surviving corporation pursuant to that certain Agreement and Plan of Merger dated as of January 14, 1999, as amended (the "Merger Agreement") among NEXTLINK, PCO and WNP. WNP was (and PCO, as its successor, is) the owner of the largest amount of LMDS spectrum in the United States, with licenses covering an area where approximately 114 million people live and work, in 40 markets in the United States. LMDS, a broadband fixed wireless spectrum, can be used to provide high-speed data transfer, wireless local telephone service, wireless transmission of telephone calls in bulk quantity, video broadcasting and videoconferencing. NEXTLINK elected to pay the merger consideration in cash and stock valued at $698.2 million, less the amount due to the Federal Communications Commission (the "FCC") in connection with the merger. The amount due to the FCC was $157.7 million, which included interest from March 30, 1999 through the date of the merger, in accordance with the FCC's rules. NEXTLINK paid the remaining portion of the merger consideration to the WNP stockholders by paying them $190.1 million in cash and issuing to them 5,715,831 shares of Class A common stock of NEXTLINK, valued at $61.31 per share. The cash portion of the merger consideration was funded from existing cash reserves of NEXTLINK. The basic terms of the Merger and the relationships between the NEXTLINK, PCO and WNP were described in NEXTLINK's Registration Statement on Form S-4 (Registration No. 333-75923) filed on April 8, 1999, which is incorporated by reference herein. The terms of the merger were determined in accordance with the Merger Agreement and were established through arm's length negotiations between NEXTLINK and WNP. Item 7. Financial Statements and Exhibits. (a) Financial Statements of Business Acquired. Previously filed. See NEXTLINK's Registration Statement dated April 8, 1999 (Registration No. 333-75923). (b) Pro Forma Financial Information. Had the merger with WNP occurred on January 1, 1998, NEXTLINK would have reported a net loss of $295.7 million, a net loss applicable to common shares of $354.5 million, and a net loss per share of $5.95, for the year ended December 31, 1998. This information is for informational purposes only and does not indicate what would have occurred if the merger had taken place on January 1, 1998, or the future results of the combined companies. (c) Exhibits. 10.1 Agreement and Plan of Merger, dated January 14, 1999, by and among WNP Communications, Inc, PCO Acquisition, Corp and NEXTLINK Communications, Inc.(1) 10.2 Amendment to the Merger Agreement, dated April 26, 1999, by and among WNP Communications, Inc, PCO Acquisition, Corp and NEXTLINK Communications, Inc. 10.3 Registration Rights Agreement, dated January 14, 1999, among NEXTLINK Communications, Inc. and the persons and entities that have executed and delivered a certain Consent and Indemnity Agreement of Stockholders.(1) 10.4 Amendment to the Registration Rights Agreement, dated April 26, 1999, among NEXTLINK Communications, Inc. and the persons and entities that have executed and delivered a certain Consent and Indemnity Agreement of Stockholders. ----------- (1) Incorporated by reference to the exhibits filed with NEXTLINK's current report on Form 8-K filed on January 19, 1999 (Commission File No. 000-22939). SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. Dated: May 11, 1999 NEXTLINK COMMUNICATIONS, INC. By: /s/ R. Bruce Easter, Jr. --------------------------- Name: R. Bruce Easter, Jr. Title: Vice President EX-10.2 2 AMENDMENT TO THE MERGER AGREEMENT Exhibit 10.2 ------------ AMENDMENT TO MERGER AGREEMENT THIS AMENDMENT TO MERGER AGREEMENT is dated as of April 26, 1999 by and among WNP Communications, Inc., a Delaware corporation (the "Company"), NEXTLINK Communications, Inc., a Delaware corporation (the "Purchaser") and PCO Acquisition Corp., a Delaware corporation ("Merger Sub"). Capitalized terms used herein without definition have the meanings assigned to them in the Merger Agreement referenced below. RECITALS WHEREAS, the Company, Purchaser and Merger Sub are parties to an Agreement and Plan of Merger, dated as of January 14, 1999 (the "Merger Agreement"); and WHEREAS, the parties desire to make certain amendments to the Merger Agreement in order to change the Scheduled Closing Date. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: I. Amendment to the Merger Agreement. ---------------------------------- Section 1.2 of the Merger Agreement is hereby replaced in its entirety with the following: 1.2. Effective Time. The Merger shall become effective at the time of the filing of the Certificate of Merger with the Secretary of State of Delaware in accordance with the applicable provisions of the DGCL. As soon as practicable after all of the conditions set forth in Article VI of this Agreement have been satisfied or waived by the party or parties entitled to the benefit of the same, the parties hereto shall cause the Merger to simultaneously become effective by making such filings at the closing of the Merger to be held at the offices of Purchaser's counsel in New York, New York (the "Closing"). Unless delayed by a Purchaser Blackout pursuant to Section 5.2(c), if the conditions contained in Sections 6.1 (a) and (c) shall have been satisfied and Purchaser shall have been notified that the condition contained in Section 6.1(e) will be satisfied upon its written acceleration request, the Closing will occur on or about April 26, 1999 (the "Scheduled Closing Date"). The parties hereto specifically waive the requirement in Section 6.1(d) that the FCC Order shall have become Final prior to the Closing. The time when the Merger shall become effective is herein referred to as the "Effective Time", and the date on which the Effective Time occurs is herein referred to as the "Closing Date." II. No Further Amendments. Except as specifically amended hereby, the Merger Agreement shall remain unmodified and in full force and effect and is hereby reaffirmed. III. Miscellaneous. ------------- A. This Amendment to Merger Agreement shall be governed by and construed in accordance with the laws of the State of Delaware. B. This Amendment to Merger Agreement may be executed by the parties hereto in several counterparts hereof and by the different parties hereto on separate counterparts hereof, all of which counterparts shall together constitute one and the same agreement. IN WITNESS WHEREOF, Purchaser, Merger Sub and the Company have caused this Amendment to Merger Agreement to be signed and delivered by their respective duly authorized officers, as applicable, as of the date first above written. NEXTLINK COMMUNICATIONS, INC. By: /s/ R. Bruce Easter, Jr. ---------------------------- Name: R. Bruce Easter, Jr. Title: Vice President PCO ACQUISITION CORP. By: /s/ R. Bruce Easter, Jr. ---------------------------- Name: R. Bruce Easter, Jr. Title: Vice President WNP COMMUNICATIONS, INC. By: /s/ Thomas H. Jones ---------------------------- Name: Thomas H. Jones Title: President EX-10.4 3 AMENDMENT TO THE REGISTRATION RIGHTS AGREEMENT Exhibit 10.4 ------------ AMENDMENT TO REGISTRATION RIGHTS AGREEMENT ------------------------------------------ THIS AMENDMENT TO REGISTRATION RIGHTS AGREEMENT is dated as of April 26, 1999 by and between NEXTLINK Communications, Inc., a Delaware corporation (the "Company"), and the persons and entities that have executed and delivered the Consent and Indemnity Agreement of Stockholders in the form attached to the Merger Agreement (as defined below) (the "Holders") by and through the execution of the Registration Rights Agreement (as defined below) by Thomas H. Jones (the "Stockholders' Representative") as their attorney-in-fact. Capitalized terms used herein without definition have the meanings assigned to them in the Registration Rights Agreement referenced below. RECITALS WHEREAS, pursuant to the terms of an Agreement and Plan of Merger, dated as of January 14, 1999 by and among the Company, WNP Communications, Inc. and PCO Acquisition Corp. (the "Merger Agreement"), the Company and the Holders are parties to a Registration Rights Agreement, dated as of January 14, 1999 (the "Registration Rights Agreement"); and WHEREAS, the parties desire to make certain amendments to the Registration Rights Agreement. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowled ged, the parties agree as follows: I. Amendments to the Registration Rights Agreement. ------------------------------------------------ A. Section 2(a) of the Registration Rights Agreement is hereby replaced in its entirety with the following: "a. Resale at Closing. The Company will use reasonable best efforts to have that number of shares of Common Stock issued at the Closing, having an aggregate market value of approximately $175 million (all references to the market value of Common Stock in this Agreement to be determined based on the Closing Date Average Price), subject to adjustment as set forth below (as so adjusted, the "WNP Amount"), registered under the Securities Act for resale by the Holders in an underwritten offering (the "Initial Offering") pursuant to a registration statement (the "Initial Registration Statement") that has been declared effective by the Commission within 30 days following the Closing, which registration statement shall be kept effective by the Company until the earlier of such time as the Initial Offering is completed or the expiration of 60 days following the effectiveness of the Initial Registration Statement. Each Holder and its permitted assignees shall be entitled to sell in the Initial Offering that number of shares of Common Stock it receives in the Merger equal to its pro rata share of the Common Stock issued at the Closing multiplied by the WNP Amount. Any Holder or its permitted assignees wishing to sell shares in the Initial Offering shall deliver or cause the Stockholders' Representative to deliver on its behalf notice to the Company, which notice shall become irrevocable at 12:00 noon (New York time) on April 29, 1999 (and which notice, if oral, shall be confirmed in writing on the same day) specifying the maximum number of shares such Holder or assignee wishes to sell in such offering. If any Holder or assignee elects to sell less than its pro rata share, the number of shares permitted to be sold by all other participating Holders or their permitted assignees will be increased pro rata by the number of shares that would otherwise have been allotted to non-participating or partially participating Holders or their permitted assignees; provided however, that with respect to any Holder which distributes shares to its beneficial owners following the Closing, such reallotment shall be applied first within such group of beneficial owners; and provided further, that with respect to any two or more Holders who are "affiliates" of one another within the meaning of Rule 144 under the Securities Act, such reallotment shall be applied first among such affiliated Holders. Each Holder acknowledges and agrees that the Company may elect to include additional shares of Common Stock having an aggregate market value of approximately $165 million for its own account in the Initial Registration Statement and the Initial Offering, and may be required to include additional shares pursuant to registration rights agreements heretofore furnished to WNP. In the event that the aggregate market value of Common Stock offered for the account of the Company in the Initial Offering exceeds $165 million, the WNP Amount shall be increased by an amount equal to one third of such excess. All shares offered in the Initial Offering shall be subject to the provisions of subdivision (g) below." B. Section 2(g)(i) of the Registration Rights Agreement is hereby replaced in its entirety with the following language: "(i) In the case of the Initial Offering, the securities sought to be included in such offering by the Holders shall be excluded as follows: (A) first, securities offered for the account of the Company and the Holders or their permitted assignees as described in the penultimate sentence of Section 2(a) above shall be excluded on a pro rata basis with securities sought to be included in the Initial Offering by all other Persons seeking inclusion of securities in such offering (including pursuant to so-called piggyback registration rights), until the aggregate market value of the securities sought to be included in such offering by the Company has been reduced to approximately $165 million (as pertains to the shares of the Company and the Holders or their permitted assigns, such exclusions shall be based upon the Holders' and the Company's relative number of securities sought to be so included pursuant to the penultimate sentence of Section 2(a)); (B) thereafter, the number of shares of Common Stock sought to be included by the Holders shall be excluded on a pro rata basis with securities sought to be included in the Initial Offering by the Company and all other Persons seeking inclusion of securities in such offering (including pursuant to so-called piggyback registration rights), based upon the Holders', the Company's and the other Persons' relative number of securities sought to be so included until the aggregate market value of the securities sought to be included in such offering by the Holders has been reduced to approximately $125 million; (C) thereafter, any additional securities required to be excluded from such offering in order to comply with the advice of the managing underwriter shall be securities that were to have been offered for the Company's account until the offering includes no such securities; and (D) thereafter, the securities sought to be included in such offering by the Holders shall be excluded on a pro rata basis with the securities sought to be included in the Initial Offering by all other Persons seeking inclusion of securities in such offering (including pursuant to so-called piggyback registration rights), based upon the Holders' and the other Persons' relative number of securities sought to be so included. C. Section 4(c) of the Registration Rights Agreement is hereby replaced in its entirety with the following language: "c. Holdback Agreements. Each Holder agrees, if required by the managing underwriter in any underwritten public offering of securities pursuant to the Initial Registration Statement, a Subsequent Registration Statement or an Incidental Registration Statement, not to effect any public sale or public distribution of Registrable Securities, any sale or distribution thereof pursuant to Rule 144 or 145 under the Securities Act, or any short sale thereof or any transaction or series of transactions having a substantially similar economic effect (other than (i) sales pursuant to the Initial Registration Statement, or (ii) distributions to any stockholder, partner or other beneficial owner of such Holder) during the period beginning, in the case of the Initial Registration Statement, on the date hereof and, in the case of each Subsequent and Incidental Registration, beginning seven days prior to the effective date of such registration statement, and ending on the date 90 days after the Initial Registration Statement, any Subsequent Registration Statement or any Incidental Registration Statement shall have been declared effective, provided that in the event the Initial Registration Statement shall not have been declared effective within 30 days following the Closing Date and a majority-in-interest of the Holders seeking to participate in the Initial Offering shall have voted to be released, in whole or in part, from such restrictions, all of the Holders shall be released, in whole or in part, as so determined, from such restrictions with respect to the Initial Offering. In addition, if (i) the market value of the Common Stock of the Holders included in the Initial Offering is limited to $150 million or less and a majority-in-interest of the Holders seeking to participate in such offering vote to be released, in whole or in part, from the restrictions contained in the preceding sentence or (ii) the market value of Common Stock of the Holders included in any Subsequent Offering is limited to $30 million or less and a majority-in-interest of all Holders of Registrable Securities vote to be released, in whole or in part, from the restrictions contained in the preceding sentence then all Holders shall be released from the restrictions contained in the preceding sentence with respect to such offering, in whole or in part, as so determined." II. No Further Amendments. Except as specifically amended hereby, the Registration Rights Agreement shall remain unmodified and in full force and effect and is hereby reaffirmed. III. Miscellaneous. ------------- A. This Amendment to Registration Rights Agreement shall be governed by and construed in accordance with the laws of the State of Delaware. B. This Amendment to Registration Rights Agreement may be executed by the parties hereto in several counterparts hereof and by the different parties hereto on separate counterparts hereof, all of which counterparts shall together constitute one and the same agreement. IN WITNESS WHEREOF, the Company and the Holders have caused this Amendment to Registration Rights Agreement to be signed and delivered by their respective duly authorized officers or representatives, as applicable, as of the date first above written. NEXTLINK COMMUNICATIONS, INC. By: /s/ R. Bruce Easter, Jr. ---------------------------- Name: R. Bruce Easter, Jr. Title: Vice President HOLDERS /s/ Thomas H. Jones -------------------------------- By: Thomas H. Jones, as Stockholders' Representative -----END PRIVACY-ENHANCED MESSAGE-----