<PAGE>
As filed with the Securities and Exchange Commission on November 22, 2000
Registration No. 333-
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
Leap Wireless International, Inc.
(Exact name of registrant as specified in its charter)
----------------
Delaware 33-0811062
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
10307 Pacific Center Court
San Diego, California 92121
(858) 882-6000
(Address of principal executive offices, including zip code, and telephone
number)
----------------
LEAP WIRELESS INTERNATIONAL, INC. 2000 STOCK OPTION PLAN
(Full title of the plan)
HARVEY P. WHITE
Chief Executive Officer
Leap Wireless International, Inc.
10307 Pacific Center Court
San Diego, California 92121
(858) 882-6000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
BARRY M. CLARKSON, ESQ.
Latham & Watkins
701 "B" Street, Suite 2100
San Diego, California 92101
(619) 236-1234
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=============================================================================================
Proposed Proposed Amount
Amount Maximum Maximum of
Title of Securities to be to be Offering Price Aggregate Registration
Registered Registered(1) Per Share Offering Price Fee
---------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.0001 par value
(3)............................. 2,250,000 $36.625(2) $82,406,250(2) $21,756
=============================================================================================
</TABLE>
(1) A maximum of 2,250,000 shares of common stock were reserved for issuance
under the Leap Wireless International, Inc. 2000 Stock Option Plan (the
"Plan"). All shares reserved for issuance under the Plan are being
registered hereunder. Pursuant to Rule 416(a), this Registration Statement
shall also cover any additional shares of the Registrant's common stock
that become issuable under the Plan by reason of any stock dividend, stock
split, recapitalization or other similar transaction effected without
receipt of consideration that increases the number of the Registrant's
outstanding shares of common stock.
(2) Estimated in accordance with Rule 457(h) for purposes of computing the
registration fee for shares for which the offering price cannot be
presently determined. The Proposed Maximum Offering Price is $36.625 per
share of common stock, which is based on the average of the high and low
prices for the Registrant's common stock as reported on the Nasdaq
National Market System on November 20, 2000.
(3) Each share of common stock includes a right to purchase one one-thousandth
of a share of Series A Junior Participating preferred stock, par value
$.0001 per share.
================================================================================
<PAGE>
Part I
Item 1. Plan Information.
Not required to be filed with this Registration Statement.
Item 2. Registrant Information and Employee Plan Annual Information.
Not required to be filed with this Registration Statement.
Part II
Item 3. Incorporation of Documents by Reference.
The SEC allows us to incorporate by reference the information we file with
it, which means that we can disclose important information to you by referring
to those documents. The information incorporated by reference is an important
part of this Registration Statement, and information that we file later with
the SEC will automatically update and supersede this information. We
incorporate by reference the following documents we have filed, or may file,
with the SEC:
. Our Annual Report on Form 10-K for the fiscal year ended August 31, 1999
filed with the SEC on October 20, 1999, Amendment No. 1 thereto filed on
Form 10-K/A with the SEC on December 13, 1999 and Amendment No. 2 thereto
filed on Form 10-K/A with the SEC on June 28, 2000;
. Our Transition Report on Form 10-K for the transition period from
September 1, 1999 to December 31, 1999 filed with the SEC on October 30,
2000;
. Our Quarterly Report on Form 10-Q for the fiscal quarter ended November
30, 1999 filed with the SEC on January 14, 2000;
. Our Quarterly Report on Form 10-Q for the fiscal quarter ended February
29, 2000 filed with the SEC on April 14, 2000;
. Our Quarterly Report on Form 10-Q for the fiscal quarter ended May 31,
2000 filed with the SEC on July 17, 2000;
. Our Quarterly Report on Form 10-Q for the fiscal quarter ended September
30, 2000 filed with the SEC on November 14, 2000 and Amendment No. 1
thereto filed on Form 10-Q/A with the SEC on November 22, 2000;
. Our Current Report on Form 8-K dated February 17, 2000 filed with the SEC
on February 18, 2000;
. Our Current Report on Form 8-K dated March 17, 2000 filed with the SEC on
April 3, 2000 and Amendment No. 1 thereto filed on Form 8-K/A with the
SEC on May 25, 2000;
. Our Current Report on Form 8-K dated June 2, 2000 filed with the SEC on
June 19, 2000 and Amendment No. 1 thereto filed on Form 8-K/A with the
SEC on June 28, 2000;
. Our Current Report on Form 8-K dated July 31, 2000 filed with the SEC on
August 14, 2000;
. Our Current Report on Form 8-K dated August 21, 2000, filed with the SEC
on August 24, 2000;
. Our Current Report on Form 8-K dated September 8, 2000 filed with the SEC
on September 11, 2000;
. Our Current Report on Form 8-K dated September 18, 2000 filed with the
SEC on September 29, 2000;
. Our Current Report on Form 8-K dated September 28, 2000 filed with the
SEC on October 10, 2000;
. The description of our common stock contained in our Registration
Statement on Form 10 filed with the SEC on July 1, 1998, as amended; and
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. All documents filed by us with the SEC under Sections 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934 after the date this
Registration Statement is filed with the SEC 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 in this Registration Statement
and to be a part of it from the respective dates of filing of those
documents.
A statement contained in a document incorporated by reference herein shall
be deemed to be modified or superceded for purposes of this Registration
Statement to the extent that a statement contained herein or in any other
subsequently filed document which is also incorporated herein modifies or
replaces such statement. Any statements so modified or superceded shall not be
deemed, except as so modified or superceded, to constitute a part of this
Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Officers and directors of Leap are covered by the provisions of the Delaware
General Corporation Law ("DGCL"), the charter, the bylaws, individual
indemnification agreements with Leap and insurance policies which serve to
limit, and, in some instances, to indemnify them against, certain liabilities
which they may incur in such capacities. These various provisions are described
below.
Elimination of Liability in Certain Circumstances. In June 1986, Delaware
enacted legislation which authorizes corporations to limit or eliminate the
personal liability of directors to corporations and their stockholders for
monetary damages for breach of directors' fiduciary duty of care. This duty of
care requires that, when acting on behalf of the corporation, directors must
exercise an informed business judgment based on all significant information
reasonably available to them. Absent the limitations now authorized by such
legislation, directors are accountable to corporations and their stockholders
for monetary damages for conduct constituting negligence or gross negligence in
the exercise of their duty of care. Although the statute does not change
directors' duty of care, it enables corporations to limit available relief to
equitable remedies such as injunction or rescission. The charter limits the
liability of Directors to Leap or its stockholders (in their capacity as
directors but not in their capacity as officers) to the fullest extent
permitted by such legislation. Specifically, the directors of Leap will not be
personally liable for monetary damages for breach of a director's fiduciary
duty as director, except for liability:
. for any breach of the director's duty of loyalty to Leap or its
stockholders;
. for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law;
. for unlawful payments of dividends or unlawful share repurchases or
redemptions as provided in Section 174 of the DGCL; or
. for any transaction from which the director derived an improper personal
benefit.
Indemnification and Insurance. As a Delaware corporation, Leap has the
power, under specified circumstances generally requiring the directors or
officers to have acted in good faith and in a manner they reasonably believe to
be in or not opposed to Leap's best interests, to indemnify its directors and
officers in connection with actions, suits or proceedings brought against them
by a third party or in the name of Leap, by reason of the fact that they were
or are such directors or officers, against expenses, judgments, fines and
2
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amounts paid in settlement in connection with any such action, suit or
proceeding. The bylaws generally provide for mandatory indemnification of
Leap's directors and officers to the full extent provided by Delaware corporate
law. In addition, Leap has entered into indemnification agreements with its
directors and officers which generally provide for indemnification of the
officers and directors to the fullest extent permitted under Delaware law,
including under circumstances for which indemnification would otherwise be
discretionary under Delaware law.
Leap has purchased and intends to maintain insurance on behalf of any person
who is or was a director or officer of Leap, or is or was a director or officer
of Leap serving at the request of Leap as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise against any liability asserted against him or
her and incurred by him or her in any such capacity, or arising out of his or
her status as such, whether or not Leap would have the power or obligation to
indemnify him or her against such liability under the provisions of its charter
or bylaws.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibit
------- ----------------------
<C> <S>
4.1(1) Form of Common Stock Certificate.
4.2.1(2) Letter, dated as of May 5, 1999, from Qualcomm Incorporated
(Qualcomm) to the Registrant.
4.2.2(3) Superceding Warrant, dated as of August 9, 1999, issued to Qualcomm.
4.2.3(3) Form of Voting Agreement, dated as of April 1, 1999, between the
Registrant and various officers and directors of Qualcomm
Incorporated.
4.2.4(3) Amended and Restated Agreement Concerning Share Ownership, dated as
of August 4, 1999, between the Registrant and Qualcomm Incorporated.
4.3.1(4) Rights Agreement, dated as of September 14, 1998, between the
Registrant and Harris Trust Company of California.
4.3.2(5) First Amendment to Rights Agreement, dated as of March 30, 2000,
between the Registrant and Harris Trust Company of California.
4.3.3(5) Second Amendment to Rights Agreement, dated as of March 30, 2000,
between the Registrant and Harris Trust Company of California.
4.4(6) Warrant Agreement, dated as of February 23, 2000, by and between the
Registrant and State Street Bank and Trust Company (including Form
of Warrant Certificate).
4.5(6) Warrant Registration Rights Agreement, dated as of February 23,
2000, by and between the Registrant and Morgan Stanley & Co.
Incorporated.
4.6(7) Leap Wireless International, Inc. 2000 Stock Option Plan.
5.1* Opinion of Latham & Watkins.
23.1* Consent of PricewaterhouseCoopers LLP, independent accountants.
23.2* Consent of PricewaterhouseCoopers, independent accountants.
23.3* Consent of Latham & Watkins. Reference is made to Exhibit 5.1.
24.1* Power of Attorney (included in signature page).
</TABLE>
3
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*Filed herewith.
(1) Filed as an exhibit to the Registrant's Registration Statement on Form 10,
as amended (File No. 0-29752), and incorporated herein by reference.
(2) Filed as an exhibit to the Registrant's Quarterly Report on Form 10-Q for
the quarter ended February 28, 1999, as filed with the SEC on April 14,
1999, and incorporated herein by reference.
(3) Filed as an exhibit to the Registrant's Post-Effective Amendment No. 2 to
Registration Statement on Form S-1 (File No. 333-64459) dated August 10,
1999, and incorporated herein by reference.
(4) Filed as an exhibit to the Registrant's Current Report on Form 8-K dated
September 14, 1998, and incorporated herein by reference.
(5) Filed as an exhibit to the Registrant's Quarterly Report on Form 10-Q for
the quarter ended May 31, 2000, as filed with the SEC on July 17, 2000, and
incorporated herein by reference.
(6) Filed as an exhibit to the Registrant's Quarterly Report on Form 10-Q for
the quarter ended February 29, 2000, as filed with the SEC on April 14,
2000, and incorporated herein by reference.
(7) Filed as an exhibit to Registrant's Current Report on Form 8-K dated
September 28, 2000, as filed with the SEC on October 10, 2000, and
incorporated herein by reference.
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 of 1933, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this 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 this 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 and 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 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 this Registration Statement
or any material change to such information in this Registration
Statement;
provided, however, that the undertakings set forth in paragraphs (a)(1)(i) and
(a)(1)(ii) above do not apply if the Registration Statement is on Form S-3,
Form S-8 or Form F-3, and 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
15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") that are
incorporated by reference in this 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.
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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, each filing of the
Registrant's annual report pursuant to Section 13(a) or 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 this 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 provisions, 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.
5
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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, County of San Diego,
State of California, on this 21st day of November, 2000.
/s/ Thomas D. Willardson
By: _________________________________
Thomas D. Willardson
Senior Vice President, Finance
and Treasurer
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 of them, as his true and lawful attorneys-in-fact and agents, 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, exhibits thereto and other documents in
connection therewith) to this Registration Statement and any subsequent
registration statement filed by the Registrant pursuant to Rule 462(b) of the
Securities Act of 1933, as amended, which relates 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 attorney-in-fact and agents, or any of them, or their
or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Harvey P. White Chief Executive Officer and November 21, 2000
____________________________________ Director
Harvey P. White
/s/ Thomas D. Willardson Senior Vice President, November 21, 2000
____________________________________ Finance and Treasurer
Thomas D. Willardson
/s/ Thomas J. Bernard Vice Chairman, President -- November 21, 2000
____________________________________ International Business
Thomas J. Bernard Division and Director
/s/ Susan G. Swenson President, Chief Operating November 21, 2000
____________________________________ Officer and Director
Susan G. Swenson
Director November , 2000
____________________________________
Alejandro Burillo Azcarraga
/s/ Jill E. Barad Director November 21, 2000
____________________________________
Jill E. Barad
</TABLE>
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<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Anthony R. Chase Director November 21, 2000
____________________________________
Anthony R. Chase
/s/ Robert C. Dynes Director November 21, 2000
____________________________________
Robert C. Dynes
Director November , 2000
____________________________________
Scot B. Jarvis
/s/ John J. Moores Director November 21, 2000
____________________________________
John J. Moores
Director November , 2000
____________________________________
Michael B. Targoff
/s/ Jeffrey P. Williams Director November 21, 2000
____________________________________
Jeffrey P. Williams
</TABLE>
7
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibit
------- ----------------------
<C> <S>
4.1(1) Form of Common Stock Certificate.
4.2.1(2) Letter, dated as of May 5, 1999, from Qualcomm Incorporated
(Qualcomm) to the Registrant.
4.2.2(3) Superceding Warrant, dated as of August 9, 1999, issued to Qualcomm.
4.2.3(3) Form of Voting Agreement, dated as of April 1, 1999, between the
Registrant and various officers and directors of Qualcomm
Incorporated.
4.2.4(3) Amended and Restated Agreement Concerning Share Ownership, dated as
of August 4, 1999, between the Registrant and Qualcomm Incorporated.
4.3.1(4) Rights Agreement, dated as of September 14, 1998, between the
Registrant and Harris Trust Company of California.
4.3.2(5) First Amendment to Rights Agreement, dated as of March 30, 2000,
between the Registrant and Harris Trust Company of California.
4.3.3(5) Second Amendment to Rights Agreement, dated as of March 30, 2000,
between the Registrant and Harris Trust Company of California.
4.4(6) Warrant Agreement, dated as of February 23, 2000, by and between the
Registrant and State Street Bank and Trust Company (including Form of
Warrant Certificate).
4.5(6) Warrant Registration Rights Agreement, dated as of February 23, 2000,
by and between the Registrant and Morgan Stanley & Co. Incorporated.
4.6(7) Leap Wireless International, Inc. 2000 Stock Option Plan.
5.1* Opinion of Latham & Watkins.
23.1* Consent of PricewaterhouseCoopers LLP, independent accountants.
23.2* Consent of PricewaterhouseCoopers, independent accountants.
23.3* Consent of Latham & Watkins. Reference is made to Exhibit 5.1.
24.1* Power of Attorney (included in signature page).
</TABLE>
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* Filed herewith.
(1) Filed as an exhibit to the Registrant's Registration Statement on Form 10,
as amended (File No. 0-29752), and incorporated herein by reference.
(2) Filed as an exhibit to the Registrant's Quarterly Report on Form 10-Q for
the quarter ended February 28, 1999, as filed with the SEC on April 14,
1999, and incorporated herein by reference.
(3) Filed as an exhibit to the Registrant's Post-Effective Amendment No. 2 to
Registration Statement on Form S-1 (File No. 333-64459) dated August 10,
1999, and incorporated herein by reference.
(4) Filed as an exhibit to the Registrant's Current Report on Form 8-K dated
September 14, 1998, and incorporated herein by reference.
(5) Filed as an exhibit to the Registrant's Quarterly Report on Form 10-Q for
the quarter ended May 31, 2000, as filed with the SEC on July 17, 2000, and
incorporated herein by reference.
(6) Filed as an exhibit to the Registrant's Quarterly Report on Form 10-Q for
the quarter ended February 29, 2000, as filed with the SEC on April 14,
2000, and incorporated herein by reference.
(7) Filed as an exhibit to Registrant's Current Report on Form 8-K dated
September 28, 2000, as filed with the SEC on October 10, 2000, and
incorporated herein by reference.
