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
FOR NONEMPLOYEE DIRECTORS
(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)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
---------------------------------- ---------------------- ------------------------- ------------------------ ------------------
<S> <C> <C> <C> <C>
Title of Securities Amount to Proposed maximum Proposed maximum Amount of
to be registered be registered offering price per unit aggregate offering registration fee
price
---------------------------------- ---------------------- ------------------------- ------------------------ ------------------
Common Stock, par value $.01 per
share............... 100,000 (1) $18.00 (2) $1,800,000 (2) $475 (3)
---------------------------------- ---------------------- ------------------------- ------------------------ ------------------
</TABLE>
(1) Plus such additional number of shares as may be required pursuant to
the 1999 Stock Option Plan for Nonemployee Directors 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 for Nonemployee Directors.
(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 for Nonemployee Directors 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 for
Nonemployee Directors.
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 and Chief Executive Officer December 13, 1999
- --------------------------
William M. Mounger, II (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, Chief Financial Officer and December 13, 1999
- --------------------
E.B. Martin, Jr. Director
/s/ Karlen Turbeville Senior Vice President - Finance (Principal Accounting Officer) December 13, 1999
- ---------------------
Karlen Turbeville
/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>
<TABLE>
<CAPTION>
EXHIBIT INDEX
<S> <C> <C>
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 for Nonemployee Directors. 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. 13
23(a) Consent of Brown & Wood LLP (included as part
of Exhibit 5).
23(b) Consent of KPMG Peat Marwick LLP. 14
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.
</TABLE>
EXHIBIT 4(c)
AMENDED AND RESTATED
TRITEL, INC.
1999 STOCK OPTION PLAN FOR NONEMPLOYEE DIRECTORS
1. PURPOSE. The purpose of this Plan is to attract and retain
qualified individuals to serve as non-employee members of the Board of
Directors of Tritel, Inc. (the "Company") 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 will be granted
hereunder after the tenth anniversary of such effective date.
2. DEFINITIONS. As used in this Plan,
"BOARD" means the Board of Directors of the Company.
"CHANGE IN CONTROL" means a change in control of the Company, which
will be deemed to have occurred after the effective date of this Plan if:
(i) any "person" as such term is used in Section
3(a)(9) of the Exchange Act, as modified and used in Sections 13(d)
and 14(d) thereof except that such term shall not include (A) the
Company or any of its subsidiaries, (B) any trustee or other fiduciary
holding securities under an employee benefit plan of the Company or
any of its affiliates, (C) an underwriter temporarily holding
securities pursuant to an offering of such securities, (D) any
corporation owned, directly or indirectly, by the stockholders of the
Company in substantially the same proportions as their ownership of
Common Shares, or (E) any person or group as used in Rule 13d-1(b)
under the Exchange Act, is or becomes the Beneficial Owner, as such
term is defined in Rule 13d-3 under the Exchange Act, directly or
indirectly, of securities of the Company (not including in the
securities beneficially owned by such person any securities acquired
directly from the Company or its affiliates other than in connection
with the acquisition by the Company or its affiliates of a business)
representing 50% or more of the combined voting power of the Company's
then outstanding securities.
(ii) during any period of two consecutive years,
individuals who at the beginning of such period constitute the Board,
and any new director (other than (A) a director designated by a person
who has entered into an agreement with the Company to effect a
transaction described in clause (i), (iii), or (iv) of this definition
or (B) a director whose initial assumption of office is in connection
with an actual or threatened election contest, including but not
limited to a consent solicitation, relating to the election of
directors of the Company) whose election by the Board or nomination
for election by the Company's stockholders was approved by a vote of
at least two-thirds (2/3) of the directors then still in office who
either were directors at the beginning of the period or whose election
or nomination for election was previously so approved, cease for any
reason to constitute at least a majority thereof;
(iii) there is consummated a merger or consolidation
of the Company or any direct or indirect subsidiary of the Company
with any other corporation, other than (A) a merger or consolidation
which would result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the
surviving entity or any parent thereof) in combination with the
ownership of any trustee or other fiduciary holding securities under
an employee benefit plan of the Company or any subsidiary of the
Company, at least 75% of the combined voting power of the securities
of the Company or such surviving entity or any parent thereof
outstanding immediately after such merger or consolidation, or (B) a
merger or consolidation effected to implement a recapitalization of
the Company (or similar transaction) in which no person (as defined
above) is or becomes the beneficial owner, directly or indirectly, of
securities of the Company (not including in the securities
beneficially owned by such person any securities acquired directly
from the Company or its affiliates other than in connection with the
acquisition by the Company or its affiliates of a business)
representing 25% or more of the combined voting power of the Company's
then outstanding securities; or
(iv) the stockholders of the Company approve a plan
of complete liquidation or dissolution of the Company or there is
consummated an agreement for the sale or disposition by the Company of
all or substantially all of the Company's assets (or any transaction
having a similar effect) other than a sale or disposition by the
Company of all or substantially all of the Company's assets to an
entity, at least 75% of the combined voting power of the voting
securities of which are owned by stockholders of the Company in
substantially the same proportions as their ownership of the Company
immediately prior to such sale.
Notwithstanding the foregoing, no change in voting power triggered solely by
the holders of shares of Voting Preference Stock of the Company beginning to
vote as a class with holders of Class A Voting Common Stock of the Company
shall be deemed a Change in Control under this Plan.
"CODE" means the Internal Revenue Code of 1986, as amended from time
to time.
"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 6 of this Plan.
"DATE OF GRANT" means the date specified by the Board on which a grant
of Option Rights shall become effective, which shall not be earlier than the
date on which the Board takes action with respect thereto.
"DISABILITY" means any physical or mental illness, injury or condition
that would qualify a Participant for benefits under any long-term disability
benefit plan maintained by the Company or any Subsidiary and applicable to such
Participant (or, if the Participant is not eligible for any such plan, to
senior executive officers of the Company).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended
from time to time.
"MARKET VALUE PER SHARE" means the fair market value of the Common
Shares as determined by the Board from time to time.
"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 stock option granted pursuant to
Section 4 of this Plan.
"PARTICIPANT" means an individual who, at the time of any automatic
award of Option Rights pursuant to Section 4 below, is a member of the Board
and both a "non-employee director" within the meaning of Rule 16b-3 and an
"outside director" within the meaning of Section 162(m) of the Code.
"RULE 16B-3" means Rule 16b-3, as promulgated and amended from time to
time by the Securities and Exchange Commission under the Exchange Act, or any
successor rule to the same effect.
"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.
3. SHARES AVAILABLE UNDER THE PLAN.
(a) Subject to adjustment as provided in Section 6 of this Plan, the
number of Common Shares which may be issued or transferred upon the exercise of
Option Rights shall not in the aggregate exceed 100,000 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.
4. OPTION RIGHTS. Subject to adjustment as provided in Section 6 of
this Plan, the Board may grant to each Participant Option Rights to purchase
Common Shares upon such terms and conditions as the Board shall determine in
accordance with the following provisions:
(a) Each grant shall specify an Option Price per Common Share, which
shall equal the Market Value per Share on the Date of Grant.
(b) 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 consist of (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 Participant and
(iii) any combination of the foregoing.
(c) Any grant shall, 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.
(d) Successive grants may be made to the same Participant regardless
of whether any Option Rights previously granted to the Participant remain
unexercised.
(e) Each grant shall specify that the Option Rights awarded thereby
shall become exercisable in full no later than upon the earliest to occur of
(i) the 10th anniversary of the Date of Grant, (ii) the date of the
Participant's death or Disability, and (iii) the effective date of a Change in
Control, provided, in each case, that the Participant remains in continuous
service with the Company until such date.
(f) Option Rights granted pursuant to this Section 4 shall be
nonqualified stock options.
(g) No Option Right granted pursuant to this Section 4 may be
exercised more than 10 years from the Date of Grant.
(h) 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 Participant and shall contain such terms and
provisions as the Board may determine consistent with this Plan.
5. TRANSFERABILITY. No Option 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
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.
6. ADJUSTMENTS.
(a) The Board may make or provide for such adjustments in the number
of Common Shares covered by outstanding Option Rights granted hereunder, the
Option Prices per Common Share applicable to any such Option Rights, and the
kind of shares (including shares of another issuer) covered thereby, as the
Board 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 Board 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 Board 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 Board may provide that the
holder will automatically be entitled to receive such an equivalent award. The
Board may also make or provide for such adjustments in the maximum numbers of
Common Shares specified in Section 3 of this Plan as the Board may in good
faith determine to be appropriate in order to reflect any transaction or event
described in this Section 6.
(b) If another corporation is merged into the Company or the Company
otherwise acquires another corporation, the Board 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
Board 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 Board, such awards shall not be
taken into account for purposes of the limitations contained in Section 3 of
this Plan.
7. FRACTIONAL SHARES. The Company shall not be required to issue any
fractional Common Shares pursuant to this Plan. The Board may provide for the
elimination of fractions or for the settlement thereof in cash.
8. 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 Board, 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.
9. ADMINISTRATION OF THE PLAN.
(a) This Plan shall be administered by the Board. A majority of the
Board shall constitute a quorum, and the acts of the members of the Board who
are present at any meeting thereof at which a quorum is present, or acts
unanimously approved by the members of the Board in writing, shall be the acts
of the Board.
(b) The interpretation and construction by the Board of any provision
of this Plan or any agreement, notification or document evidencing the grant of
Option Rights, and any determination by the Board pursuant to any provision of
this Plan or any such agreement, notification or document, shall be final and
conclusive. No member of the Board shall be liable for any such action taken or
determination made in good faith.
10. AMENDMENTS AND OTHER MATTERS.
(a) This Plan may be amended from time to time by the Board; 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 without the further approval of the stockholders of the Company.
(b) With the concurrence of the affected Participant, the Board may
cancel any agreement evidencing Option Rights or any other award granted under
this Plan. In the event of any such cancellation, the Board 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) This Plan shall not confer upon any Participant any right with
respect to continuance of service with the Board, the Company or any Subsidiary
and shall not interfere in any way with any right that the Company, its
stockholders or any Subsidiary would otherwise have to terminate any
Participant's service at any time.
(d) 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.
(e) Unless otherwise determined by the Board, this Plan is intended to
comply with Rule 16b-3 at all times that awards hereunder are subject to such
Rule.
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 100,000
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 for Nonemployee Directors (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
