<PAGE> 1
As filed with the Securities and Exchange Commission on September 19, 1998
Registration No. 333-
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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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LEAP WIRELESS INTERNATIONAL, INC.
(Exact Name Of Registrant As Specified In Its Charter)
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DELAWARE 33-0811062
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
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10307 PACIFIC CENTER COURT
SAN DIEGO, CALIFORNIA 92121
(877) 977-4626
(Address Of Principal Executive Offices)
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1998 STOCK OPTION PLAN
1998 NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN
EMPLOYEE STOCK PURCHASE PLAN
SHARES ISSUABLE UPON EXERCISE OF CERTAIN
OUTSTANDING STOCK OPTIONS OF
QUALCOMM INCORPORATED*
(Full Title Of The Plan)
HARVEY P. WHITE
CHAIRMAN OF THE BOARD, PRESIDENT AND CHIEF EXECUTIVE OFFICER
LEAP WIRELESS INTERNATIONAL, INC.
10307 PACIFIC CENTER COURT
SAN DIEGO, CALIFORNIA 92121
(877) 977-4626
(Name, Address, Including Zip Code, And Telephone Number,
Including Area Code, Of Agent For Service)
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COPIES TO:
FREDERICK T. MUTO, ESQ. SCOTT N. WOLFE, ESQ.
THOMAS A. COLL, ESQ. DAVID A, HAHN, ESQ.
COOLEY GODWARD LLP LATHAM & WATKINS
4365 EXECUTIVE DRIVE, SUITE 1100 701 B STREET, SUITE 2100
SAN DIEGO, CALIFORNIA 92121 SAN DIEGO, CALIFORNIA 92101
(619) 550-6000 (619) 236-1234
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* See Explanatory Note following this cover page.
<PAGE> 2
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES TO AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
BE REGISTERED REGISTERED (1) SHARE (2) PRICE (2) REGISTRATION FEE
---------------------- -------------- ------------------ ------------------ ----------------
<S> <C> <C> <C> <C>
Common Stock, par 8,700,000(3) $3.11 $27,057,000 $7,982
value $.0001(3)
</TABLE>
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(1) Includes an indeterminate number of shares issuable in connection with
the exercise of certain options to purchase shares of the Common Stock
of QUALCOMM Incorporated, as described in the Explanatory Note below,
with the balance issuable upon the exercise of future stock options to
be granted under the Registrant's 1998 Stock Option Plan and 1998
Non-Employee Directors' Stock Option Plan or issuable pursuant to the
Registrant's Employee Stock Purchase Plan.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(h) of the Securities Act of
1933, as amended, (the "Securities Act") based on the book value of the
common stock, par value $.0001 per share ("Common Stock"), of the
Registrant on September 18, 1998.
(3) Each share of Common Stock includes a right to purchase one
one-thousandth of a share of the Company's Series A Junior
Participating Preferred Stock, par value $.0001 per share.
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EXPLANATORY NOTE
Leap Wireless International, Inc. (the "Registrant") was originally
formed as a wholly-owned subsidiary of QUALCOMM Incorporated ("QCOM") for the
purpose of effecting a spin-off of certain assets of QCOM, including various
joint venture and equity interests in terrestrial-based wireless
telecommunications operating companies in emerging international markets. The
Information Statement included in the Form 10 Registration Statement
incorporated by reference herein describes the distribution of shares of the
Registrant's Common Stock to the holders of QCOM Common Stock on the Record Date
specified therein (the "Distribution") and the issuance of options to purchase
shares of the Registrant's Common Stock to the holders of outstanding options of
QCOM immediately prior to the Distribution. In connection with the Distribution,
and pursuant to the terms of that related Employee Benefits Agreement between
QCOM and the Registrant, QCOM optionholders who exercise options between the
period commencing on the Record Date and ending on the Distribution Date are
entitled to receive certain shares of the Registrant's Common Stock, in the
manner described in such Employee Benefits Agreement, in addition to the shares
of QCOM Common Stock they will receive upon the exercise of such options. The
number of shares reserved under the Registrant's 1998 Stock Option Plan and 1998
Non-Employee Directors' Stock Option Plan will be correspondingly reduced by the
number of shares issued for such purpose.
<PAGE> 3
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Registrant with the Securities and
Exchange Commission are incorporated by reference into this Registration
Statement:
The Registrant's effective registration statement on Form 10 (SEC File
No. 000-29752) filed under the Securities Exchange Act of 1934 (the "Exchange
Act") containing audited financial statements for the Registrant's latest fiscal
year, and the Registrant's Current Report on Form 8-K, dated September 14, 1998,
are hereby incorporated by reference into this Registration Statement. A
description of the Registrant's Common Stock which is contained in the Form 10,
including any amendment or reports filed for the purpose of updating such
description, is hereby incorporated by reference into this Registration
Statement. All documents filed by the Registrant with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after 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 then 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
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. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
DESCRIPTION OF SECURITIES
Not applicable.
INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Section 145 of the Delaware General Corporation Law, the
Registrant has broad powers to indemnify its Directors and officers against
liabilities they may incur in such capacities, including liabilities under the
Securities Act.
The Registrant's Certificate of Incorporation and By-laws include
provisions to (i) eliminate the personal liability of its directors for monetary
damages resulting from breaches of their fiduciary duty to the extent permitted
by Section 102(b)(7) of the General Corporation Law of Delaware (the "Delaware
Law") and (ii) require the Registrant to indemnify its Directors and officers to
the fullest extent permitted by Section 145 of the Delaware Law, including
circumstances in which indemnification is otherwise discretionary. Pursuant to
Section 145 of the Delaware Law, a corporation generally has the power to
indemnify its present and former directors, officers, employees and agents
against expenses incurred by them in connection with any suit to which they are
or are threatened to be made, a party by reason of their serving in such
positions so long as they 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, they had no reasonable cause to believe
their conduct was unlawful. The Registrant believes that these provisions are
necessary to attract and retain qualified persons as Directors and officers.
These provisions do not eliminate the Directors' duty of care, and, in
appropriate circumstances, equitable remedies such as injunctive or other forms
of non-monetary relief will remain available under Delaware Law. In addition,
each Director will continue to be subject to liability for breach of the
Director's duty of loyalty to the Registrant, for acts or omissions not in good
faith or involving intentional misconduct, for knowing violations of law, for
acts or omissions that the Director believes to be contrary to the best
interests of the Registrant or its stockholders, for any transaction from which
the Director derived an improper personal benefit, for acts or omissions
involving a reckless disregard for the Director's duty to the Registrant or its
stockholders when the Director was aware or should have been aware of a risk of
serious injury to the Registrant or its stockholders, for acts or omission that
constitute an unexcused pattern of inattention that amounts to an abdication of
the Director's duty to the Registrant or its stockholders, for improper
transactions between the Director and the Registrant and for improper
distributions to stockholders and loans to Directors and officers. The provision
also does not affect a Director's responsibilities under any other law, such as
the federal securities law or state or federal environmental laws.
3
<PAGE> 4
The Registrant has entered into indemnity agreements with each of its
Directors and executive officers that require the Registrant to indemnify such
persons against expenses, judgments, fines, settlements and other amounts
incurred (including expenses of a derivative action) in connection with any
proceeding, whether actual or threatened, to which any such person may be made a
party by reason of the fact that such person is or was a Director or an
executive officer of the Registrant or any of its affiliated enterprises,
provided 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 Registrant and,
with respect to any criminal proceeding, had no reasonable cause to believe his
conduct was unlawful. The indemnification agreements also set forth certain
procedures that will apply in the event of a claim for indemnification
thereunder.
At present, there is no pending litigation or proceeding involving a
Director or officer of the Registrant as to which indemnification is being
sought nor is the Registrant aware of any threatened litigation that may result
in claims for indemnification by any officer or Director.
The Registrant has an insurance policy covering the officers and
Directors of the Registrant with respect to certain liabilities, including
liabilities arising under the Securities Act or otherwise.
EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
<S> <C>
4.1(1) Registrant's Amended and Restated Certificate of Incorporation.
4.2(1) Registrant's Amended and Restated Bylaws.
4.3(1) Specimen Stock Certificate.
4.4(2) Rights Agreement dated September 14, 1998 between Registrant and
Harris Trust Company of California.
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants.
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to this
Registration Statement.
24 Power of Attorney is contained on the signature pages.
99.1(1) 1998 Stock Option Plan.
99.2(1) Form of Non-Qualified/Incentive Stock Option under the 1998 Option
Plan.
99.3(1) Form of Non-Qualified Stock Option under the Option Plan to be granted
to QCOM option holders in connection with the Distribution.
99.4(1) 1998 Non-Employee Directors' Stock Option Plan.
99.5(1) Form of Non-Qualified Stock Option under the Non-Employee Directors'
Stock Option Plan.
99.6(1) Employee Stock Purchase Plan.
</TABLE>
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(1) Filed as an exhibit to the Registrant's Form 10 Registration Statement
and incorporated herein by reference.
(2) Filed as an exhibit to the Registrant's Current Report on Form 8-K
dated September 14, 1998.
4
<PAGE> 5
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 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
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective 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 with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference herein.
(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
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.
3. 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 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 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.
5
<PAGE> 6
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 San Diego, State of California, on September 17,
1998.
LEAP WIRELESS INTERNATIONAL, INC.
By /s/ HARVEY P. WHITE
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Harvey P. White, Chairman of the
Board, President and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints HARVEY P. WHITE and JAMES E. HOFFMANN and
each or any one of them, his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange 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 connection therewith,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or any of
them, or their or his substitutes or substitute, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ HARVEY P. WHITE
- ------------------------------- Chairman of the Board, President, September 17, 1998
Harvey P. White Chief Executive Officer and
Director (Principal Executive
Officer)
/s/ THOMAS D. WILLARDSON
- ------------------------------- Senior Vice President, Finance and September 17, 1998
Thomas D. Willardson Treasurer (Chief Financial and
Accounting Officer)
/s/ THOMAS J. BERNARD
- ------------------------------- Executive Vice President and September 17, 1998
Thomas J. Bernard Director
/s/ JAMES E. HOFFMANN
- ------------------------------- Senior Vice President, General September 17, 1998
James E. Hoffmann Counsel, Secretary and Director
</TABLE>
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<PAGE> 7
<TABLE>
<S> <C> <C>
- ------------------------------- Director September __, 1998
Alejandro Burillo Azcarraga
/s/ MICHAEL B. TARGOFF
- ------------------------------- Director September 17, 1998
Michael B. Targoff
/s/ JEFFREY P. WILLIAMS
- -------------------------------- Director September 17, 1998
Jeffrey P. Williams
</TABLE>
7
<PAGE> 8
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
<S> <C>
4.1(1) Registrant's Amended and Restated Certificate of Incorporation.
4.2(1) Registrant's Amended and Restated Bylaws.
4.3(1) Specimen Stock Certificate.
4.4(2) Rights Agreement dated September 14, 1998 between Registrant and
Harris Trust Company of California.
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants.
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to this
Registration Statement.
24 Power of Attorney is contained on the signature pages.
99.1(1) 1998 Stock Option Plan.
99.2(1) Form of Non-Qualified/Incentive Stock Option under the 1998 Option Plan.
99.3(1) Form of Non-Qualified Stock Option under the Option Plan to be granted
to QCOM option holders in connection with the Distribution.
99.4(1) 1998 Non-Employee Directors' Stock Option Plan.
99.5(1) Form of Non-Qualified Stock Option under the Non-Employee Directors'
Stock Option Plan.
99.6(1) Employee Stock Purchase Plan.
</TABLE>
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(1) Filed as an exhibit to the Registrant's Form 10 Registration Statement
and incorporated herein by reference.
(2) Filed as an exhibit to the Registrant's Current Report on Form 8-K
dated September 14, 1998.
8
<PAGE> 1
EXHIBIT 5.1
September 17, 1998
LEAP WIRELESS INTERNATIONAL, INC.
10307 Pacific Center Court
San Diego, CA 92121
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by LEAP WIRELESS INTERNATIONAL, INC. (the "Company") of a
Registration Statement on Form S-8 (the "Registration Statement") with the
Securities and Exchange Commission, covering the offering of an aggregate of up
to 8,700,000 shares of the Company's Common Stock, $.0001 par value (the
"Shares"), for issuance pursuant to the Company's 1998 Employee Stock Option
Plan, its 1998 Non-Employee Directors' Stock Option Plan, and its Employee Stock
Purchase Plan (collectively, the "Plans"). Such amount also includes an
indeterminate number of shares issuable upon the exercise of certain options to
purchase shares of QUALCOMM Incorporated, a Delaware corporation, as described
in that certain Employee Benefits Agreement between QUALCOMM Incorporated and
the Company (the "Agreement").
In connection with this opinion, we have examined and relied upon the
Registration Statement and related prospectuses, the Plans, the Agreement, the
Company's Certificate of Incorporation and Bylaws, as amended, and the originals
or copies certified to our satisfaction of such records, documents,
certificates, memoranda and other instruments as in our judgment are necessary
or appropriate to enable us to render the opinion expressed below. We have
assumed the genuineness and authenticity of all documents submitted to us as
originals, the conformity to originals of all documents submitted to us as
copies thereof and the due execution and delivery of all documents where due
execution and delivery are a prerequisite to the effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the Shares, when issued and sold in accordance with the applicable Plan,
the Agreement, where appropriate, and the Registration Statement and related
prospectus, will be validly issued, fully paid and nonassessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
Cooley Godward LLP
/s/ THOMAS A. COLL
- -------------------
Thomas A. Coll
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our reports dated June 29, 1998 and August 28, 1998
appearing on pages F-10 and F-40, respectively, of Leap Wireless International,
Inc.'s Registration Statement on Form 10, as amended, filed with the Securities
and Exchange Commission on July 1, 1998.
PRICEWATERHOUSECOOPERS LLP
San Diego, California
September 17, 1998
<PAGE> 2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 27, 1998 appearing on page
F-25 of Leap Wireless International, Inc.'s Registration Statement on Form 10,
as amended, filed with the Securities and Exchange Commission on July 1, 1998.
PRICEWATERHOUSECOOPERS LLP
Santiago, Chile
September 17, 1998
