As filed with the Securities and Exchange Commission on May 17, 1996
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
OMNIPOINT CORPORATION
(Exact name of registrant as specified in its charter)
2000 14th Street N.
Delaware Arlington, Virginia 22201 04-2969720
(State or other Address of principal executive offices) (I.R.S. Employer
jurisdiction of Identification No.)
incorporation or
organization)
OMNIPOINT CORPORATION
AMENDED AND RESTATED
1990 STOCK OPTION PLAN
(Full title of the plan)
Copy to:
DOUGLAS G. SMITH EDWIN M. MARTIN, ESQ.
Omnipoint Corporation NANCY A. SPANGLER, ESQ.
2000 North 14th Street Piper & Marbury L.L.P.
Arlington, Virginia 22201 1200 Nineteenth Street, N.W.
(703) 522-7778 Washington, D.C. 20036
(202) 861-3900
(Name, address and telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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TITLE OF SECURITIES PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TO BE REGISTERED AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION FEE
REGISTERED SHARE PRICE
<S> <C> <C> <C> <C> <C> <C>
Common Stock (par value
$0.01 per share)
Amended and Restated Stock 4,226,305 $ 5.67 (1) $ 23,963,149 (1) $ 8,263 (1)
Option Plan
2,023,695 $ 27.875 (2) $ 56,410,498 (2) $ 19,452 (2)
</TABLE>
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(1) Calculated pursuant to Rule 457(h) on the basis of a weighted average
exercise price of $5.67 per share.
(2) Estimated pursuant to Rule 457 solely for the purpose of calculating the
registration fee on the basis of the closing price of $27 7/8 per share
reported on the Nasdaq National Market on May 15, 1996.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents and information previously filed with the
Securities and Exchange Commission (the "Commission") by Omnipoint Corporation
(the "Company") are hereby incorporated by reference in this Registration
Statement:
(1) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1995, filed pursuant to Section 13 of the Securities Exchange Act
of 1934, as amended (the "Exchange Act").
(2) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 1996, filed pursuant to Section 13 of the Exchange Act.
(3) The description of the Company's Common Stock contained in the
Company's Amendment No. 1 to Registration Statement on Form 8-A filed December
22, 1995, pursuant to Section 12(g) of the Exchange Act.
(4) The description of the Company's Amended and Restated 1990 Stock
Option Plan contained in its Registration Statement on Form S-1, File No.
33-98360, filed on October 19, 1995, under the Securities Act of 1933, as
amended.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act subsequent to the date of this Registration
Statement and prior to the filing of a post-effective amendment which indicates
that all securities offered have been sold or which deregisters all securities
remaining unsold shall be deemed to be incorporated by reference into this
Registration Statement and to be a part hereof from the date of filing of such
documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. The documents required to be so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES. Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Counsel for the Company, Piper & Marbury L.L.P., Washington, D.C., has
rendered an opinion to the effect that the Common Stock offered hereby is duly
and validly issued, fully paid and nonassessable. Certain members of Piper &
Marbury L.L.P., or investment partnerships of which such persons are partners,
beneficially own approximately 1,200 shares of the Company's Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's By-laws provide that the Company shall, to the full
extent permitted by Section 145 of the General Corporation Law of the State of
Delaware, as amended from time to time, indemnify all persons whom it may
indemnify pursuant thereto. In addition, the Company's Certificate of
Incorporation eliminates personal liability of its directors to the full extent
permitted by Section 102(b)(7) of the General Corporation Law of the State of
Delaware, as amended from time to time.
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Section 145 of the General Corporation Law of the State of Delaware
permits a corporation to indemnify its directors and officers against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlements
actually and reasonably incurred by them in connection with any action, suit or
proceeding brought by third parties, if such directors or officers acted in good
faith and in a manner they 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 reason to believe their conduct was unlawful. In a derivative
action, i.e., one by or in the right of the corporation, indemnification may be
made only for expenses actually and reasonably incurred by directors and
officers in connection with the defense or settlement of an action or suit, and
only with respect to a matter as to which they shall have acted in good faith
and in a manner they reasonably believed to be in or not opposed to the best
interest of the corporation, except that no indemnification shall be made if
such person shall have been adjudged liable to the corporation, unless and only
to the extent that the court in which the action or suit was brought shall
determine upon application that the defendant officers or directors are
reasonably entitled to indemnity for such expenses despite such adjudication of
liability.
Section 102(b)(7) of the General Corporation Law of the State of
Delaware provides that a corporation may eliminate or limit the personal
liability of a director to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, provided that such provision
shall not eliminate or limit the liability of a director (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) under Section 174 of the General Corporation Law
of the State of Delaware, or (iv) for any transaction from which the director
derived an improper personal benefit. No such provision shall eliminate or limit
the liability of a director for any act or omission occurring prior to the date
when such provision becomes effective.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable.
ITEM 8. EXHIBITS.
Exhibit
Number Description
5.1 Opinion of Piper & Marbury L.L.P., as to the legality of securities
being registered.
10.1 Amended and Restated 1990 Stock Option Plan of the Company.
23.1 Consent of Counsel (contained in Exhibit 5.1).
23.2 Consent of Independent Accountants.
24.1 Power of Attorney (included in signature pages).
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 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.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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.
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(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 of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) 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 of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the 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 Act and will
be governed by the final adjudication of such issue.
[Remainder of page intentionally left blank. Signature page follows.]
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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 Arlington, and the Commonwealth of Virginia on this
17th day of May, 1996.
OMNIPOINT CORPORATION
By: /s/ Douglas G. Smith
Douglas G.Smith,President,Chief Executive
Officer,and Chairman of the Board
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the date indicated.
Each person whose signature appears below in so signing also makes,
constitutes and appoints Douglas G. Smith and Edwin M. Martin, Jr., and each of
them acting alone, his true and lawful attorney-in-fact, with full power of
substitution, for him in any and all capacities, to execute and cause to be
filed with the Securities and Exchange Commission any and all amendments and
post-effective amendments to this Registration Statement on Form S-8, with
exhibits thereto and other documents in connection therewith, and hereby
ratifies and confirms all that said attorney-in-fact or his substitute or
substitutes may do or cause to be done by virtue hereof.
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A MAJORITY OF THE BOARD OF DIRECTORS:
Signature Title Date
/s/ Douglas G. Smith President, Chief Executive May 17, 1996
- ------------------------- Officer, Chairman of the
Douglas G. Smith Board and Director (Principal
Executive Officer)
/s/ George F. Schmitt Executive Vice President and May 17, 1996
- ------------------------- Director; President of
George F. Schmitt Omnipoint Communications Inc.
/s/ Bradley E. Sparks Chief Financial Officer May 17, 1996
Bradley E. Sparks (Principal Financial and
Accounting Officer)
/s/ James J. Ross Director and Vice Chairman, May 17, 1996
- ------------------------- of the Board
James J. Ross
/s/ Evelyn Goldfine Director May 17, 1996
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Evelyn Goldfine
/s/ Richard L. Fields Director May 17, 1996
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Richard L. Fields
/s/ Paul J. Finnegan Director May 17, 1996
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Paul J. Finnegan
/s/ James N. Perry, Jr. Director May 17, 1996
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James N. Perry, Jr.
/s/ Arjun Gupta Director May 17, 1996
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Arjun Gupta
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EXHIBIT INDEX
Exhibit
Number Description
5.1 Opinion of Piper & Marbury L.L.P. (contains Consent of Counsel).
10.1* Amended and Restated 1990 Stock Option Plan of the Company.
23.1 Consent of Counsel (contained in Exhibit 5.1).
23.2 Consent of Independent Accountants.
24.1 Power of Attorney (included in signature pages).
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* Incorporated by reference to the Company's Registration Statement, File No.
33-98360, filed on October 19, 1995.
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Exhibit 5.1
PIPER & MARBURY
L.L.P.
1200 NINETEENTH STREET, N.W.
WASHINGTON, D.C. 20036-2430
202-861-3900
FAX: 202-223-2085
BALTIMORE
NEW YORK
PHILADELPHIA
EASTON
LONDON
May 17, 1996
Omnipoint Corporation
2000 North 14th Street, Suite 550
Arlington, Virginia 22201
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by
you with the Securities and Exchange Commission on or about May 17, 1996 (the
"Registration Statement"), in connection with the registration under the
Securities Act of 1933, as amended, of 6,250,000 shares of Common Stock reserved
for issuance under the Omnipoint Amended and Restated 1990 Stock Option Plan
(the "Plan"). As your legal counsel, we have examined the proceedings proposed
to be taken by you in connection with the sale and issuance of said shares.
It is our opinion that, upon completion of the proceedings to be taken
prior to issuance of the shares pursuant to the Prospectus constituting part of
the Registration Statement on Form S-8 and upon completion of the proceedings
being taken in order to permit such transactions to be carried out in accordance
with the securities laws of the various states where required, the shares, when
issued and sold in the manner referred to in the Plan and the agreements which
accompany the Plan, and in accordance with the Company's Amended and Restated
Certificate of Incorporation, will be legally and validly issued, fully paid and
nonassessable.
We consent to the use of this opinion as an exhibit to said
Registration Statement and further consent to the use of our name wherever
appearing in said Registration Statement and amendments thereto.
Very truly yours,
/s/ Piper & Marbury L.L.P.
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Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement
of Omnipoint Corporation on Form S-8 of our report dated March 15, 1996 on our
audit of the consolidated financial statements and financial statement schedule
of Omnipoint Corporation as of December 31, 1995 and 1994, and for the three
years ended December 31, 1995 which report is included in its Annual Report on
Form 10-K as filed with the Securities and Exchange Commission pursuant to the
Securities Exchange Act of 1934.
COOPERS & LYBRAND L.L.P.
Boston, Massachusetts
May 17, 1996
