AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 14, 1999
REGISTRATION NO. 333-_____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
TRITEL, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 64-6896417
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
111 E. CAPITOL STREET
SUITE 500
JACKSON, MS 39201
(601) 914-8000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
------------------------
AMENDED AND RESTATED
TRITEL, INC. 1999 STOCK OPTION PLAN
(Full title of the plan)
-----------------------
JAMES H. NEELD, IV, ESQ.
TRITEL, INC.
111 E. CAPITOL STREET
SUITE 500
JACKSON, MS 39201
(601) 914-8000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Securities Amount to Proposed maximum Proposed maximum Amount of registration
to be registered be registered offering price per aggregate offering fee
unit price
<S> <C> <C> <C> <C>
Common Stock, par value $.01
per share............... 10,462,400 (1) $18.00 (2) $188,323,200 (2) $ 49,717 (3)
</TABLE>
(1) Plus such additional number of shares as may be required pursuant to
the 1999 Stock Option Plan with respect to which no additional
consideration will be paid (i) in the event of a stock dividend,
reverse stock split, split up, recapitalization or capital
adjustments and (ii) that are issuable pursuant to dividend
equivalent rights relating to stock options issued under the 1999
Stock Option Plan.
(2) Estimated solely for the purpose of computing the amount of the
registration fee pursuant to Rule 457(a) and Rule 457(h) under the
Securities Act of 1933, as amended (the "Securities Act").
(3) In accordance with Rule 457(h), the filing fee is based on
the maximum number of the registrant's securities issuable under the
1999 Stock Option Plan that are covered by this Registration
Statement.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The document(s) containing the information specified in Part I of
Form S-8 will be sent or given to participating employees as specified by Rule
428(b)(1) of the Securities Act of 1933, as amended (the "Securities Act").
Such documents and the documents incorporated by reference herein pursuant to
Item 3 of Part II hereof, taken together, constitute a prospectus that meets
the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
Tritel, Inc. (the "Company") hereby incorporates by reference the
documents listed in (a) and (b) below which have previously been filed with
the Securities and Exchange Commission.
(a) The final form of the Company's prospectus, dated December
13, 1999, forming part of the Registrant's Registration
Statement on Form S-1, as amended (File No. 333-91207) and
filed by the Company pursuant to Rule 424(b) of the
Securities Act.
(b) The description of the Company's Class A common stock
contained in the Company's prospectus, dated November 26,
1999, forming part of the Registrant's Registration
Statement on Form S-1, as amended (File No. 333-91207) and
filed by the Company pursuant to Rule 424(b) of the
Securities Act.
In addition, 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 hereof
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 herein and to
be 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 hereof 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 such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part hereof.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF EXPERTS AND COUNSEL.
None.
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law ("DGCL") provides
that a corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative, or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that the person is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as
director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by the person in connection with the action, suit or
proceeding if the person acted in good faith and in a manner the person
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
reasonable cause to believe the person's conduct was unlawful. Section 145
further provides that a corporation similarly may indemnify the person serving
in that capacity who was or is a party or is threatened to be made a party to
any threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor, against expenses actually and
reasonably incurred by the person in connection with the defense or settlement
of the action or suit if the person acted in good faith and in a manner the
person reasonably believed to be in or not opposed to the best interests of
the corporation and except that no indemnification shall be made in respect of
any claim, issue or matter as to which the person shall have been adjudged to
be liable to the corporation unless and only to the extent that the Delaware
Court of Chancery or the court in which the action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, the person is fairly and reasonably
entitled to indemnity for the expenses which the Court of Chancery or other
court shall deem proper. The provisions regarding indemnification and
advancement of expenses under Section 145 of the DGCL shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any bylaw, agreement,
stockholders' or disinterested directors' vote or otherwise.
Section 102(b)(7) of the DGCL permits a corporation to include in its
certificate of incorporation a provision eliminating or limiting 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 the
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
stockholder; (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 DGCL (relating to unlawful payment of dividends and unlawful stock
purchase and redemption); or (iv) for any transaction from which the director
derived an improper personal benefit.
As permitted by Section 145(e) of the DGCL, the Company's Restated
Certificate of Incorporation and Bylaws provide that the Company shall
indemnify its directors, officers, incorporators, employees, agents and their
legal representatives and those persons who are or have been, at the request
of the Company, directors, officers, incorporators, employees, partners,
trustees or agents of other corporations, partnerships, joint ventures,
trusts, employee benefit plans or other enterprises. Persons who are not
directors or officers of the Company may be similarly indemnified in respect
of service to the Company or another enterprise at the request of the Company
to the extent that the Company's board at any time specifies that such persons
are entitled to indemnification. Expenses incurred by any director, officer or
other person entitled to indemnification in connection with a threatened,
pending or completed action, suit or proceeding shall be reimbursed or
advanced by the Company in advance of the final disposition of the action,
suit or proceeding, provided that, if required to do so under the DGCL, the
Company receives an undertaking by or on behalf of the director, officer or
other person to repay the amount if it is ultimately determined by final
judicial decision from which there is no further right of appeal that the
director, officer or other person is not entitled to indemnification for such
expenses. The Restated Certificate of Incorporation provides that the rights
are not exclusive.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS
4(a)* Restated Certificate of Incorporation of the Company.
4(b)* By-Laws of the Company.
4(c) Amended and Restated Tritel, Inc. 1999 Stock Option Plan.
4(d)** Form of Certificate of Amendment to Restated Certificate of
Incorporation of the Company.
4(e)** Form of Amended and Restated Bylaws of the Company.
5 Opinion of Brown & Wood LLP.
23(a) Consent of Brown & Wood LLP (included as part of Exhibit 5).
23(b) Consent of KPMG Peat Marwick LLP.
24 Power of Attorney (included on page 6).
* Previously filed as an exhibit to Tritel PCS, Inc.'s Registration
Statement on Form S-4, as amended (File No. 333-82509), and incorporated herein
by reference.
** Previously filed as an exhibit to Tritel, Inc.'s Registration
Statement on Form S-1, as amended (File No. 333-91207), and incorporated
herein by reference.
ITEM 9. UNDERTAKINGS
The undersigned registrants hereby undertake:
(a)(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;
(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)(1)(i) and (a)(1)(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 registrant pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference 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 the time shall be deemed to be the
initial bona fide offering thereof.
(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) 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 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in this registration statement shall deemed to be a
new registration statement relating to the securities offered herein, and the
offering of such securities at the 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 provisions referred to in Item 6 of
this registration statement, 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.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Tritel, Inc.
certifies that is 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 Jackson, State of Mississippi, on December 13,
1999.
TRITEL, INC.
By: /s/ E.B. Martin, Jr.
E.B. Martin, Jr.
Executive Vice President, Treasurer,
Chief Financial Officer and Director
POWER OF ATTORNEY
KNOWN ALL MEN BY THESE PRESENTS, that we, the undersigned officers
and directors of Tritel, Inc. hereby severally constitute William M. Mounger,
William S. Arnett and E.B. Martin, Jr. and each of them singly, our true and
lawful attorneys with full power to them, and each of them singly, to sign for
us and in our names in the capacities indicated below, the Registration
Statement filed herewith and any and all amendments to said Registration
Statement, and generally to do all such things in our names and in our
capacities as officers and directors to enable Tritel, Inc. to comply with the
provisions of the Securities Act of 1933, and all requirements of the
Securities and Exchange Commission, hereby ratifying and confirming our
signatures as they may be signed by our said attorneys, or any of them, to
said Registration Statement and any and all amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ William M. Mounger, II Chairman of the Board of Directors December 13, 1999
William M. Mounger, II and Chief Executive Officer
(Principal Executive Officer)
/s/ William S. Arnett President and Director December 13, 1999
William S. Arnett
/s/ E.B. Martin, Jr. Executive Vice President, Treasurer, December 13, 1999
E.B. Martin, Jr. Chief Financial Officer and Director
/s/ Karlen Turbeville Senior Vice President - Finance December 13, 1999
Karlen Turbeville (Principal Accounting Officer)
/s/ Scott I. Anderson Director December 13, 1999
Scott I. Anderson
/s/ Alex P. Coleman Director December 13, 1999
Alex P. Coleman
/s/ Gary S. Fuqua Director December 13, 1999
Gary S. Fuqua
/s/ Ann K. Hall Director December 13, 1999
Ann K. Hall
/s/ Andrew Hubregsen Director December 13, 1999
Andrew Hubregsen
/s/ David A. Jones, Jr. Director December 13, 1999
David A. Jones, Jr.
/s/ H. Lee Maschmann Director December 13, 1999
H. Lee Maschmann
/s/ Elizabeth L. Nichols Director December 13, 1999
Elizabeth L. Nichols
/s/ Kevin J. Shepherd Director December 13, 1999
Kevin J. Shepherd
</TABLE>
<PAGE>
EXHIBIT INDEX
Exhibit No. Description Page
4(a)* Restated Certificate of Incorporation
of the Company.
4(b)* By-Laws of the Company.
4(c) Amended and Restated
Tritel, Inc. 1999 Stock Option Plan. 8
4(d)** Form of Certificate of Amendment to Restated Certificate
of Incorporation of the Company.
4(e)** Form of Amended and Restated Bylaws of the Company.
5 Opinion of Brown & Wood LLP. 15
23(a) Consent of Brown & Wood LLP (included as part
of Exhibit 5).
23(b) Consent of KPMG Peat Marwick LLP. 16
24 Power of Attorney (included on page 6).
* Previously filed as an exhibit to Tritel PCS, Inc's Registration
Statement on Form S-4, as amended (File No. 333-82509), and incorporated
herein by reference.
** Previously filed as an exhibit to Tritel, Inc.'s Registration
Statement on Form S-1, as amended (File No. 333-91207), and incorporated
herein by reference.
EXHIBIT 4(c)
AMENDED AND RESTATED
TRITEL, INC.
1999 STOCK OPTION PLAN
1. PURPOSE. The purpose of this Plan is to attract and retain
qualified officers, directors and other key employees of, and consultants to,
Tritel, Inc. (the "Company") and its Subsidiaries and to provide such persons
with appropriate incentives. The Company adopted the Plan effective as of
January 7, 1999, and has subsequently amended the Plan. Unless extended by
amendment in accordance with the terms of the Plan, no Option Rights,
Appreciation Rights, Restricted Shares or Deferred Shares will be granted
hereunder after the tenth anniversary of such effective date.
2. DEFINITIONS. As used in this Plan,
"APPRECIATION RIGHT" means a right granted pursuant to Section 5 of
this Plan, including a Free-standing Appreciation Right and a Tandem
Appreciation Right.
"BASE PRICE" means the price to be used as the basis for determining
the Spread upon the exercise of a Free-standing Appreciation Right.
"BOARD" means the Board of Directors of the Company.
"CODE" means the Internal Revenue Code of 1986, as amended from time
to time.
"COMMITTEE" means the Compensation Committee of the Board of
Directors, as described in Section 13(a) of this Plan, or, in the absence of a
Compensation Committee, the full Board.
"COMMON SHARES" means (i) shares of the Class A Common Stock, par
value $.01 per share, of the Company and (ii) any security into which Common
Shares may be converted by reason of any transaction or event of the type
referred to in Section 9 of this Plan.
"DATE OF GRANT" means the date specified by the Committee on which a
grant of Option Rights or Appreciation Rights or a grant or sale of Restricted
Shares or Deferred Shares shall become effective, which shall not be earlier
than the date on which the Committee takes action with respect thereto.
"DEFERRAL PERIOD" means the period of time during which Deferred
Shares are subject to deferral limitations under Section 7 of this Plan.
"DEFERRED SHARES" means an award pursuant to Section 7 of this Plan
of the right to receive Common Shares at the end of a specified Deferral
Period.
"FREE-STANDING APPRECIATION RIGHT" means an Appreciation Right
granted pursuant to Section 5 of this Plan that is not granted in tandem with
an Option Right or similar right.
"INCENTIVE STOCK OPTION" means an Option Right that is intended to
qualify as an "incentive stock option" under Section 422 of the Code or any
successor provision thereto.
"MARKET VALUE PER SHARE" means the fair market value of the Common
Shares as determined by the Committee from time to time.
"NONQUALIFIED OPTION" means an Option Right that is not intended to
qualify as an Incentive Stock Option.
"OPTIONEE" means the person so designated in an agreement evidencing
an outstanding Option Right.
"OPTION PRICE" means the purchase price payable upon the exercise of
an Option Right.
"OPTION RIGHT" means the right to purchase Common Shares from the
Company upon the exercise of a Nonqualified Option or an Incentive Stock
Option granted pursuant to Section 4 of this Plan.
"PARTICIPANT" means a person who is selected by the Committee to
receive benefits under this Plan and (i) is at that time an officer, director
or other key employee of, or a consultant to, the Company or any Subsidiary or
(ii) has agreed to commence serving in any such capacity.
"RELOAD OPTION RIGHTS" means additional Option Rights automatically
granted to an Optionee upon the exercise of Option Rights pursuant to Section
4(f) of this Plan.
"RESTRICTED SHARES" means Common Shares granted or sold pursuant to
Section 6 of this Plan as to which neither the substantial risk of forfeiture
nor the restriction on transfer referred to in Section 6 hereof has expired.
"RULE 16B-3" means Rule 16b-3, as promulgated and amended from time
to time by the Securities and Exchange Commission under the Securities
Exchange Act of 1934, or any successor rule to the same effect.
"SPREAD" means, in the case of a Free-standing Appreciation Right,
the amount by which the Market Value per Share on the date when the
Appreciation Right is exercised exceeds the Base Price specified therein or,
in the case of a Tandem Appreciation Right, the amount by which the Market
Value per Share on the date when the Appreciation Right is exercised exceeds
the Option Price specified in the related Option Right.
"SUBSIDIARY" means a corporation, partnership, joint venture,
unincorporated association or other entity in which the Company has a direct
or indirect ownership or other equity interest; provided, however, that for
purposes of determining whether any person may be a Participant for purposes
of any grant of Incentive Stock Options, "Subsidiary" means any corporation in
which the Company owns or controls directly or indirectly more than 50% of the
total combined voting power represented by all classes of stock issued by such
corporation at the time of the grant.
"TANDEM APPRECIATION RIGHT" means an Appreciation Right granted
pursuant to Section 5 of this Plan that is granted in tandem with an Option
Right or any similar right granted under any other plan of the Company.
"10% SHAREHOLDER" means an individual who, at the time an Option
Right is granted, owns stock possessing more than 10% of the total combined
voting power of all classes of stock issued by the Company or by any parent or
subsidiary corporation, within the meaning of Section 422(b)(6) of the Code or
any successor provision thereto.
3. SHARES AVAILABLE UNDER THE PLAN.
(a) Subject to adjustment as provided in Section 9 of this
Plan, the number of Common Shares which may be (i) issued or transferred upon
the exercise of Option Rights or Appreciation Rights, or (ii) awarded as
Restricted Shares and released from substantial risk of forfeiture thereof or
Deferred Shares, shall not in the aggregate exceed 10,462,400 Common Shares,
which may be Common Shares of original issuance or Common Shares held in
treasury or a combination thereof. For the purposes of this Section 3(a):
(i) Upon payment in cash of the benefit provided by
any award granted under this Plan, any Common Shares that were
covered by that award shall again be available for issuance or
transfer hereunder; and
(ii) Upon the full or partial payment of any Option
Price by the transfer to the Company of Common Shares or upon
satisfaction of tax withholding obligations in connection with any
such exercise or any other payment made or benefit realized under
this Plan by the transfer or relinquishment of Common Shares, there
shall be deemed to have been issued or transferred under this Plan
only the net number of Common Shares actually issued or transferred
by the Company less the number of Common Shares so transferred or
relinquished.
(b) Notwithstanding anything in Section 3(a) hereof, or
elsewhere in this Plan, to the contrary, the aggregate number of Common Shares
actually issued or transferred by the Company upon the exercise of the
Incentive Stock Options shall not exceed the total number of Common Shares
first specified in Section 3(a) hereof.
(c) Notwithstanding any other provision of this Plan to the
contrary, no Participant shall be granted Option Rights and Appreciation
Rights, in the aggregate, for more than 100,000 Common Shares during any two
calendar years, subject to adjustment as provided in Section 9 of this Plan.
(d) Notwithstanding any other provision of this Plan to the
contrary, no Participant shall be granted Deferred Shares, in the aggregate,
for more than 100,000 Common Shares during any two calendar years, subject to
adjustment as provided in Section 9 of this Plan.
4. OPTION RIGHTS. The Committee may from time to time authorize
grants to Participants of options to purchase Common Shares upon such terms
and conditions as the Committee may determine in accordance with the following
provisions:
(a) Each grant shall specify the number of Common Shares to
which it pertains.
(b) Each grant shall specify an Option Price per Common
Share, which may not be less than 75% of the Market Value per Share on the
Date of Grant. In the case of any grant of Incentive Stock Options, such
Option Price per Common Share may not be less than 100% of the Market Value
per Share on the Date of Grant (110% of the Market Value per Share on the Date
of Grant in the case of a grant to a 10% Shareholder).
(c) Each grant shall specify the form of consideration to be
paid in satisfaction of the Option Price and the manner of payment of such
consideration, which may include (i) cash in the form of currency or check or
other cash equivalent acceptable to the Company, (ii) nonforfeitable,
unrestricted Common Shares, which are already owned by the Optionee, (iii) any
other legal consideration that the Committee may deem appropriate, including
without limitation any form of consideration authorized under Section 4(d)
below, on such basis as the Committee may determine in accordance with this
Plan and (iv) any combination of the foregoing.
(d) Any grant of a Nonqualified Option may provide that
payment of the Option Price may also be made in whole or in part in the form
of Restricted Shares or other Common Shares that are subject to a risk of
forfeiture or restrictions on transfer. Unless otherwise determined by the
Committee on or after the Date of Grant, whenever any Option Price is paid in
whole or in part by means of any of the forms of consideration specified in
this Section 4(d), the Common Shares received by the Optionee upon the
exercise of the Nonqualified Option shall be subject to the same risks of
forfeiture or restrictions on transfer as those that applied to the
consideration surrendered by the Optionee; provided, however, that such risks
of forfeiture and restrictions on transfer shall apply only to the same number
of Common Shares received by the Optionee as applied to the forfeitable or
restricted Common Shares surrendered by the Optionee.
(e) Any grant may, if there is then a public market for the
Common Shares, provide for deferred payment of the Option Price from the
proceeds of sale through a broker of some or all of the Common Shares to which
the exercise relates.
(f) Any grant may provide for the automatic grant to the
Optionee of Reload Option Rights upon the exercise of Option Rights, including
Reload Option Rights, for Common Shares or any other noncash consideration
authorized under Sections 4(c) and (d) above; provided, however, that the term
of any Reload Option Right shall not extend beyond the term of the Option
Right originally exercised.
(g) Successive grants may be made to the same Optionee
regardless of whether any Option Rights previously granted to the Optionee
remain unexercised.
(h) Each grant shall specify the period or periods of
continuous employment, or continuous engagement of the consulting services, of
the Optionee by the Company or any Subsidiary that are necessary and/or the
individual or aggregate performance criteria that must be satisfied before the
Option Rights or installments thereof shall become exercisable, and any grant
may provide for the earlier exercise of the Option Rights in the event of a
change in control of the Company or other similar transaction or event.
Notwithstanding the foregoing, in the case of any grant of Incentive Stock
Options, the aggregate Market Value per Share on the Date of Grant of the
Common Shares subject to such Incentive Stock Options (and all other incentive
stock options granted by the Company or any parent or subsidiary corporation)
that are exercisable for the first time by the Optionee during any calendar
year shall not exceed $100,000.
(i) Option Rights granted pursuant to this Section 4 may be
Nonqualified Options or Incentive Stock Options or combinations thereof.
(j) Any grant of an Option Right may provide for the payment
to the Optionee of dividend equivalents thereon in cash or Common Shares on a
current, deferred or contingent basis, or the Committee may provide that any
dividend equivalents shall be credited against the Option Price.
(k) No Option Right granted pursuant to this Section 4 may
be exercised more than 10 years from the Date of Grant. In the case of any
Incentive Stock Option granted to a 10% Shareholder, such Incentive Stock
Option may not be exercised more than five years from the Date of Grant.
(l) Each grant shall be evidenced by an agreement, which
shall be executed on behalf of the Company by any designated officer thereof
and delivered to and accepted by the Optionee and shall contain such terms and
provisions as the Committee may determine consistent with this Plan.
5. APPRECIATION RIGHTS. The Committee may also authorize grants to
Participants of Appreciation Rights. An Appreciation Right shall be a right of
the Participant to receive from the Company an amount, which shall be
determined by the Committee and shall be expressed as a percentage (not
exceeding 100%) of the Spread at the time of the exercise of an Appreciation
Right. Any grant of Appreciation Rights under this Plan shall be upon such
terms and conditions as the Committee may determine in accordance with the
following provisions:
(a) Any grant may specify that the amount payable upon the
exercise of an Appreciation Right may be paid by the Company in cash, Common
Shares or any combination thereof and may (i) either grant to the Participant
or reserve to the Committee the right to elect among those alternatives or
(ii) preclude the right of the Participant to receive and the Company to issue
Common Shares or other equity securities in lieu of cash.
(b) Any grant may specify that the amount payable upon the
exercise of an Appreciation Right shall not exceed a maximum specified by the
Committee on the Date of Grant.
(c) Each grant shall specify (i) the period or periods of
continuous employment, or continuous engagement of the consulting services, of
the Optionee by the Company or any Subsidiary that are necessary and/or the
individual or aggregate performance criteria that must be satisfied before the
Appreciation Rights or installments thereof shall become exercisable and (ii)
permissible dates or periods on or during which Appreciation Rights shall be
exercisable.
(d) Any grant may specify that an Appreciation Right may be
exercised only in the event of a change in control of the Company or other
similar transaction or event.
(e) Any grant may provide for the payment to the Participant
of dividend equivalents thereon in cash or Common Shares on a current,
deferred or contingent basis.
(f) Each grant shall be evidenced by an agreement, which
shall be executed on behalf of the Company by any designated officer thereof
and delivered to and accepted by the Optionee and shall describe the subject
Appreciation Rights, identify any related Option Rights, state that the
Appreciation Rights are subject to all of the terms and conditions of this
Plan and contain such other terms and provisions as the Committee may
determine consistent with this Plan.
(g) Regarding Tandem Appreciation Rights only: Each grant
shall provide that a Tandem Appreciation Right may be exercised only (i) at a
time when the related Option Right (or any similar right granted under any
other plan of the Company) is also exercisable and the Spread is positive and
(ii) by surrender of the related Option Right (or such other right) for
cancellation.
(h) Regarding Free-standing Appreciation Rights only:
(i) Each grant shall specify in respect of each
Free-standing Appreciation Right a Base Price per Common Share, which
shall be equal to or greater than the Market Value per Share on the
Date of Grant;
(ii) Successive grants may be made to the same
Participant regardless of whether any Free-standing Appreciation
Rights previously granted to the Participant remain unexercised; and
(iii) No Free-standing Appreciation Right granted
under this Plan may be exercised more than 10 years from the Date of
Grant.
6. RESTRICTED SHARES. The Committee may also authorize grants or
sales to Participants of Restricted Shares upon such terms and conditions as
the Committee may determine in accordance with the following provisions:
(a) Each grant or sale shall constitute an immediate
transfer of the ownership of Common Shares to the Participant in consideration
of the performance of services, entitling such Participant to dividend, voting
and other ownership rights, subject to the substantial risk of forfeiture and
restrictions on transfer hereinafter referred to.
(b) Each grant or sale may be made without additional
consideration from the Participant or in consideration of a payment by the
Participant that is less than the Market Value per Share on the Date of Grant.
(c) Each grant or sale shall provide that the Restricted
Shares covered thereby shall be subject to a "substantial risk of forfeiture"
within the meaning of Section 83 of the Code for a period to be determined by
the Committee on the Date of Grant, and any grant or sale may provide for the
earlier termination of such period in the event of a change in control of the
Company or other similar transaction or event.
(d) Each grant or sale shall provide that, during the period
for which such substantial risk of forfeiture is to continue, the
transferability of the Restricted Shares shall be prohibited or restricted in
the manner and to the extent prescribed by the Committee on the Date of Grant.
Such restrictions may include without limitation rights of repurchase or first
refusal in the Company or provisions subjecting the Restricted Shares to a
continuing substantial risk of forfeiture in the hands of any transferee.
(e) Any grant or sale may require that any or all dividends
or other distributions paid on the Restricted Shares during the period of such
restrictions be automatically sequestered and reinvested on an immediate or
deferred basis in additional Common Shares, which may be subject to the same
restrictions as the underlying award or such other restrictions as the
Committee may determine.
(f) Each grant or sale shall be evidenced by an agreement,
which shall be executed on behalf of the Company by any designated officer
thereof and delivered to and accepted by the Participant and shall contain
such terms and provisions as the Committee may determine consistent with this
Plan. Unless otherwise directed by the Committee, all certificates
representing Restricted Shares, together with a stock power that shall be
endorsed in blank by the Participant with respect to the Restricted Shares,
shall be held in custody by the Company until all restrictions thereon lapse.
7. DEFERRED SHARES. The Committee may also authorize grants
or sales of Deferred Shares to Participants upon such terms and conditions as
the Committee may determine in accordance with the following provisions:
(a) Each grant or sale shall constitute the agreement by the
Company to issue or transfer Common Shares to the Participant in the future in
consideration of the performance of services, subject to the fulfillment
during the Deferral Period of such conditions as the Committee may specify.
(b) Each grant or sale may be made without additional
consideration from the Participant or in consideration of a payment by the
Participant that is less than the Market Value per Share on the Date of Grant.
(c) Each grant or sale shall provide that the Deferred
Shares covered thereby shall be subject to a Deferral Period, which shall be
fixed by the Committee on the Date of Grant, and any grant or sale may provide
for the earlier termination of the Deferral Period in the event of a change in
control of the Company or other similar transaction or event.
(d) During the Deferral Period, the Participant shall not
have any right to transfer any rights under the subject award, shall not have
any rights of ownership in the Deferred Shares and shall not have any right to
vote the Deferred Shares, but the Committee may on or after the Date of Grant
authorize the payment of dividend equivalents on the Deferred Shares in cash
or additional Common Shares on a current, deferred or contingent basis.
(e) Each grant or sale shall be evidenced by an agreement,
which shall be executed on behalf of the Company by any designated officer
thereof and delivered to and accepted by the Participant and shall contain
such terms and provisions as the Committee may determine consistent with this
Plan.
8. TRANSFERABILITY.
(a) No Incentive Stock Option granted under this Plan may be
transferred by a Participant, except by will or the laws of descent and
distribution. Except as otherwise provided in the agreement evidencing such
option or right, no Nonqualified Option or Appreciation Right granted under
this Plan may be transferred by a Participant, except (i) by will or the laws
of descent and distribution, (ii) to one or more members of the Participant's
immediate family, or (iii) to a trust established for the benefit of the
Participant and/or one or more members of the Participant's immediate family.
Option Rights and Appreciation Rights granted under this Plan may not be
exercised during a Participant's lifetime except by (i) the Participant, (ii)
a transferee of the Participant described in the preceding sentence, or (iii)
in the event of the legal incapacity of the Participant or any such
transferee, by the guardian or legal representative of the Participant or such
transferee (as applicable) acting in a fiduciary capacity on behalf thereof
under state law and court supervision.
(b) Any grant made under this Plan may provide that all or
any part of the Common Shares that are to be issued or transferred by the
Company upon the exercise of Option Rights or Appreciation Rights or upon the
termination of the Deferral Period applicable to Deferred Shares, or are no
longer subject to the substantial risk of forfeiture and restrictions on
transfer referred to in Section 6 of this Plan, shall be subject to further
restrictions upon transfer.
9. ADJUSTMENTS.
(a) The Committee may make or provide for such adjustments
in the number of Common Shares covered by outstanding Option Rights,
Appreciation Rights and Deferred Shares granted hereunder, the Option Prices
per Common Share or Base Prices per Common Share applicable to any such Option
Rights and Appreciation Rights, and the kind of shares (including shares of
another issuer) covered thereby, as the Committee may in good faith determine
to be equitably required in order to prevent dilution or expansion of the
rights of Participants that otherwise would result from (i) any stock
dividend, stock split, combination of shares, recapitalization or similar
change in the capital structure of the Company or (ii) any merger,
consolidation, spin-off, spin-out, split-off, split-up, reorganization,
partial or complete liquidation or other distribution of assets, issuance of
warrants or other rights to purchase securities or any other corporate
transaction or event having an effect similar to any of the foregoing. In the
event of any such transaction or event, the Committee may provide in
substitution for any or all outstanding awards under this Plan such
alternative consideration as it may in good faith determine to be equitable
under the circumstances and may require in connection therewith the surrender
of all awards so replaced. Moreover, the Committee may on or after the Date of
Grant provide in the agreement evidencing any award under this Plan that the
holder of the award may elect to receive an equivalent award in respect of
securities of the surviving entity of any merger, consolidation or other
transaction or event having a similar effect, or the Committee may provide
that the holder will automatically be entitled to receive such an equivalent
award. The Committee may also make or provide for such adjustments in the
maximum numbers of Common Shares specified in Section 3 of this Plan as the
Committee may in good faith determine to be appropriate in order to reflect
any transaction or event described in this Section 9.
(b) If another corporation is merged into the Company or the
Company otherwise acquires another corporation, the Committee may elect to
assume under this Plan any or all outstanding stock options or other awards
granted by such corporation under any stock option or other plan adopted by it
prior to such acquisition. Such assumptions shall be on such terms and
conditions as the Committee may determine; provided, however, that the awards
as so assumed do not contain any terms, conditions or rights that are
inconsistent with the terms of this Plan. Unless otherwise determined by the
Committee, such awards shall not be taken into account for purposes of the
limitations contained in Section 3 of this Plan.
10. FRACTIONAL SHARES. The Company shall not be required to issue
any fractional Common Shares pursuant to this Plan. The Committee may provide
for the elimination of fractions or for the settlement thereof in cash.
11. WITHHOLDING TAXES. To the extent that the Company is required
to withhold federal, state, local or foreign taxes in connection with any
payment made or benefit realized by a Participant or other person under this
Plan, and the amounts available to the Company for the withholding are
insufficient, it shall be a condition to the receipt of any such payment or
the realization of any such benefit that the Participant or such other person
make arrangements satisfactory to the Company for payment of the balance of
any taxes required to be withheld. At the discretion of the Committee, any
such arrangements may without limitation include voluntary or mandatory
relinquishment of a portion of any such payment or benefit or the surrender of
outstanding Common Shares. The Company and any Participant or such other
person may also make similar arrangements with respect to the payment of any
taxes with respect to which withholding is not required.
12. CERTAIN TERMINATIONS OF EMPLOYMENT OR CONSULTING SERVICES,
HARDSHIP, AND APPROVED LEAVES OF ABSENCE. Notwithstanding any other provision
of this Plan to the contrary, in the event of termination of employment or
consulting services by reason of death, disability, normal retirement, early
retirement with the consent of the Company, termination of employment or
consulting services to enter public or military service with the consent of
the Company or leave of absence approved by the Company, or in the event of
hardship or other special circumstances, of a Participant who holds an Option
Right or Appreciation Right that is not immediately and fully exercisable, any
Restricted Shares as to which the substantial risk of forfeiture or the
prohibition or restriction on transfer has not lapsed, any Deferred Shares as
to which the Deferral Period is not complete, or any Common Shares that are
subject to any transfer restriction pursuant to Section 8(b) of this Plan, the
Committee may take any action that it deems to be equitable under the
circumstances or in the best interests of the Company, including without
limitation waiving or modifying any limitation or requirement with respect to
any award under this Plan.
13. ADMINISTRATION OF THE PLAN.
(a) This Plan shall be administered by the Compensation
Committee of the Board, which shall be composed of not less than two members
of the Board, or, in the absence of a Compensation Committee, by the full
Board. At any time that awards under the Plan are subject to Rule 16b-3, each
member of the Compensation Committee shall be a "non-employee director" within
the meaning of such Rule. In addition, at any time that the Company is subject
to Section 162(m) of the Code, each member of the Compensation Committee shall
be an "outside director" within the meaning of such Section. A majority of the
Committee shall constitute a quorum, and the acts of the members of the
Committee who are present at any meeting thereof at which a quorum is present,
or acts unanimously approved by the members of the Committee in writing, shall
be the acts of the Committee. Notwithstanding the foregoing, the Committee may
delegate to the President and/or the Chief Executive Officer of the Company
(or the delegate of either or both such officers) its rights, duties and
responsibilities under the Plan with respect to Participants who are not
subject to Rule 16b-3 and Section 162(m) of the Code, subject to applicable
law and such terms and conditions as the Committee may impose.
(b) The interpretation and construction by the Committee of
any provision of this Plan or any agreement, notification or document
evidencing the grant of Option Rights, Appreciation Rights, Restricted Shares
or Deferred Shares, and any determination by the Committee pursuant to any
provision of this Plan or any such agreement, notification or document, shall
be final and conclusive. No member of the Committee shall be liable for any
such action taken or determination made in good faith.
14. AMENDMENTS AND OTHER MATTERS.
(a) This Plan may be amended from time to time by the
Committee; provided, however, that except as expressly authorized by this
Plan, no such amendment shall cause this Plan to cease to satisfy any
applicable condition of Rule 16b-3 or cause any award under the Plan to cease
to qualify for any applicable exception under Section 162(m) of the Code,
without the further approval of the stockholders of the Company.
(b) With the concurrence of the affected Participant, the
Committee may cancel any agreement evidencing Option Rights or any other award
granted under this Plan. In the event of any such cancellation, the Committee
may authorize the granting of new Option Rights or other awards hereunder,
which may or may not cover the same number of Common Shares as had been
covered by the cancelled Option Rights or other award, at such Option Price,
in such manner and subject to such other terms, conditions and discretion as
would have been permitted under this Plan had the cancelled Option Rights or
other award not been granted.
(c) The Committee may condition the grant of any award or
combination of awards authorized under this Plan on the surrender or deferral
by the Participant of his or her right to receive a cash bonus or other
compensation otherwise payable by the Company or a Subsidiary to the
Participant.
(d) This Plan shall not confer upon any Participant any
right with respect to continuance of employment or other service with the
Company or any Subsidiary and shall not interfere in any way with any right
that the Company or any Subsidiary would otherwise have to terminate any
Participant's employment or other service at any time.
(e) To the extent that any provision of this Plan would
prevent any Option Right that was intended to qualify as an Incentive Stock
Option from so qualifying, any such provision shall be null and void with
respect to any such Option Right; provided, however, that any such provision
shall remain in effect with respect to other Option Rights, and there shall be
no further effect on any provision of this Plan.
(f) Any award that may be made pursuant to an amendment to
this Plan that shall have been adopted without the approval of the
stockholders of the Company shall be null and void if it is subsequently
determined that such approval was required under the terms of the Plan or
applicable law.
(g) Unless otherwise determined by the Committee, this Plan
is intended to comply with Rule 16b-3 at all times that awards hereunder are
subject to such Rule.
<PAGE>
EXHIBIT 5
Brown & Wood LLP
One World Trade Center
New York, New York 10048-0557
Telephone: 212-839-5300
Facsimile: 212-839-5599
December 13, 1999
Tritel, Inc.
111 Capitol Street
Suite 500
Jackson, Mississippi 39201
Dear Sirs:
We have acted as counsel for Tritel, Inc., a Delaware corporation, in
connection with the proposed filing with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, of a Registration
Statement on Form S-8 (the "Registration Statement") for the purpose of
registering 10,462,400 shares of Common Stock, par value $.01 per share (the
"Common Stock") of Tritel, Inc. In such capacity, we have examined the
Restated Certificate of Incorporation and By-Laws of the Company, the Amended
and Restated Tritel, Inc. 1999 Stock Option Plan (the "Plan"), and such other
documents of the Company as we have deemed necessary or appropriate for the
purposes of the opinion expressed herein.
Based upon the foregoing, we advise you that, in our opinion when the
shares of Common Stock to be issued pursuant to the Plan have been issued and
paid for in accordance with the terms of the Plan and the Registration
Statement, such shares will be legally issued, fully paid and nonassessable.
We consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of our name wherever appearing in the
Registration Statement and any amendment thereto.
Very truly yours,
/s/ Brown & Wood LLP
EXHIBIT 23(b)
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Tritel, Inc.:
We consent to the incorporation by reference in the Registration Statement on
Form S-8 of our report dated February 16, 1999, which report appears in the
Form S-1, as amended of Tritel, Inc. dated December 13, 1999.
/s/ KPMG Peat Marwick LLP
Jackson, Mississippi
December 13, 1999
