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REGISTRATION NO.
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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VOICESTREAM WIRELESS HOLDING CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 91-1983600
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3650 131st Avenue S.E.
Bellevue, Washington 98006
(425) 653-4600
(Address, including ZIP code, and telephone number, including
area code, of registrant's principal executive offices)
VOICESTREAM WIRELESS CORPORATION
2000 MANAGEMENT INCENTIVE STOCK OPTION PLAN
(Full title of plan)
Alan R. Bender, Esq. Copy to:
Executive Vice President, G. Scott Greenburg, Esq.
General Counsel and Secretary Matthew S. Topham, Esq.
VoiceStream Wireless Holding Corporation Preston Gates & Ellis LLP
3650 131st Avenue S.E. 701 Fifth Avenue, Suite 5000
Bellevue, Washington 98006 Seattle, Washington 98104
(425) 653-4600 (206) 623-7580
(Name, address, including ZIP code, and
telephone number, including area code,
of agent for service)
<TABLE>
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<S> <C> <C> <C> <C>
Maximum
Title of securities Amount to be Maximum offering aggregate offering Amount of
to be registered registered (1) price per unit (2) price (2) registration fee
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Common Stock,
$.001 per share 20,000,000 shares (See below) $1,505,719,330 $397,510
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</TABLE>
(1) Together with an indeterminate number of additional shares which may be
necessary to adjust the number of shares reserved for issuance pursuant
to such plan as the result of any future stock split, stock dividend
or similar adjustment of the outstanding Common Stock of the
Registrant. The total number of shares to be registered includes
10,490,704 shares issuable upon the exercise of outstanding options and
9,509,296 shares that may be issued upon the exercise of options that
may be granted in the future.
(2) Estimated solely for the purpose of calculating the registration fee.
Pursuant to Rule 457(c) and (h) of the Securities Act of 1933, as
amended, the aggregate offering price and the registration fee with
respect to the 10,490,704 shares issuable upon the exercise of
outstanding options have been computed upon the basis of the price at
which the options may be exercised and the aggregate offering price and
the registration fee with respect to the remaining 9,509,296 shares
have been computed, based upon $144,625, the average of the high and
low prices of VoiceStream Wireless Corporation common stock reported
on February 22, 2000, as reported on the Nasdaq Stock Market.
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INTRODUCTORY STATEMENT
VoiceStream Wireless Holding Corporation ("VoiceStream Holding") is
filing this registration statement on Form S-8 relating to its common stock, par
value $.001 per share, which may be issued upon the exercise of stock options
granted pursuant to the VoiceStream Wireless Corporation 2000 Management
Incentive Stock Option Plan (the "Plan"). VoiceStream Holding adopted the
VoiceStream Wireless Corporation 1999 Management Incentive Stock Option Plan and
renamed it to the VoiceStream Wireless Corporation 2000 Management Incentive
Stock Option Plan in connection with two separate reorganizations that will
result in VoiceStream Wireless Corporation ("VoiceStream") and either or both of
Omnipoint Corporation ("Omnipoint") and Aerial Communications, Inc. ("Aerial")
becoming subsidiaries of VoiceStream Holding. Upon completion of these
reorganizations, the Plan will replace and assume the obligations of certain
stock option plans maintained by Omnipoint and Aerial, as set forth in the
Agreement and Plan of Reorganization by and among VoiceStream Wireless Holding
Corporation, Omnipoint Corporation and VoiceStream Wireless Corporation, dated
June 23, 1999, as amended on December 30, 1999, and the Agreement and Plan of
Reorganization dated September 17, 1999 among VoiceStream Wireless Corporation,
VoiceStream Wireless Holding Corporation, VoiceStream Subsidiary III
Corporation, Aerial Communications, Inc. and Telephone and Data Systems, Inc. On
February 24, 2000, the shareholders of VoiceStream, Omnipoint and Aerial
approved the reorganizations with respect to which they were entitled to vote.
Upon the completion of the first to occur of the two reorganizations,
VoiceStream Holding will change its name to VoiceStream Wireless Corporation.
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed with the Securities and
Exchange Commission (the "Commission") by VoiceStream Holding or
VoiceStream (File No. 0-25441) are incorporated herein by reference:
(a) VoiceStream's registration statement on Form 10 filed with the
Commission on February 24, 1999, as amended by VoiceStream's Form 10/A dated
April 1, 1999, and Form 10/A dated April 13, 1999;
(b) VoiceStream's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1999, June 30, 1999 and September 30, 1999, as amended by
VoiceStream's Form 10-Q/A dated January 18, 2000;
(c) VoiceStream's Current Reports on Form 8-K dated May 10, 1999, May
27, 1999, June 24, 1999, July 7, 1999, October 18, 1999, October 26, 1999,
November 9, 1999, and February 14, 2000;
(d) VoiceStream Holding's Registration Statement on Form S-4, filed on
October 27, 1999, pursuant to the Securities Act of 1933, as amended (the
"Securities Act"), as amended by VoiceStream Holding's Form S-4/A dated December
3, 1999, Form S-4/A dated December 29, 1999, Form S-4/A dated January 18, 2000,
Form S-4/A dated January 24, 2000, and Post Effective Amendment No. 1 dated
January 25, 2000, including any amendment or report filed for the purpose of
updating such registration statement; and
(e) The description of VoiceStream Holding's Common Stock, $.001 par
value per share (the "Common Stock") contained in VoiceStream Holding's Form
8-A filed with the Commission on February 23, 2000, including any amendment or
report filed for the purpose of updating such description.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Exchange Act after the date of this registration statement and
prior to the filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all securities
then remaining unsold are deemed to be incorporated by reference into this
registration statement and to be a part hereof from the respective
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dates of filing of such documents (such documents, and the documents enumerated
above, being hereinafter referred to as "Incorporated Documents").
Any statement contained in an Incorporated Document shall be deemed to
be modified or superseded for purposes of this registration statement to the
extent that a statement contained herein or in any other subsequently filed
Incorporated Document 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 of this registration statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Legal matters in connection with the securities registered hereby were
passed upon by Preston Gates & Ellis LLP, Seattle, Washington. Partners and
attorneys employed by that firm hold less than 50,000 shares of common stock of
VoiceStream.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Pursuant to the Delaware General Corporation Law, a corporation may not
indemnify any director, officer, employee or agent made or threatened to be made
party to any threatened, pending, or completed proceeding unless such person
acted in good faith and in a manner such person reasonably believed to be in or
not opposed to the best interests of the corporation, and, with respect to any
criminal proceedings, had no reasonable cause to believe that his or her conduct
was unlawful. The Delaware General Corporation Law also establishes several
mandatory rules for indemnification.
In the case of a proceeding by or in the right of the corporation to
procure a judgment in its favor (e.g., a stockholder derivative suit), a
corporation may indemnify an officer, director, employee or agent if such person
acted in good faith and in a manner such person reasonably believed to be in or
not opposed to the best interests of the corporation; provided, however, that no
person adjudged to be liable to the corporation may be indemnified unless, and
only to the extent that, the Delaware Court of Chancery or the court in which
such action or suit was brought determines upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which
such court deems proper. A director, officer, employee, or agent who is
successful, on the merits or otherwise, in defense of any proceeding subject to
the Delaware General Corporation Law's indemnification provisions must be
indemnified by the corporation for reasonable expenses incurred therein,
including attorneys' fees.
The Company's bylaws provide for mandatory indemnification of the
Company's officers and directors and certain other persons to the fullest extent
permissible under Delaware law. In addition, the Company intends to enter into
an indemnification agreement with each of its executive officers and directors.
Pursuant to this indemnification agreement, the Company will indemnify the
executive officer or director against certain liabilities arising by reason of
the executive officer's or the director's affiliation with the Company.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
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ITEM 8. EXHIBITS
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EXHIBIT DESCRIPTION
<S> <C>
4.1 -- VoiceStream Wireless Corporation 2000 Management Incentive
Stock Option Plan
5.1 -- Opinion of Preston Gates & Ellis LLP
23.1 -- Consent of Preston Gates & Ellis LLP (see Exhibit 5.1)
23.2 -- Consent of Arthur Andersen LLP
</TABLE>
ITEM 9. UNDERTAKINGS
(a) The registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement to include any
material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement.
(2) That, for purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Bellevue, State of Washington, on this 24th day of
February, 2000.
VOICESTREAM WIRELESS HOLDING CORPORATION
By /s/ Alan R. Bender
-----------------------------------------
Alan R. Bender
Executive Vice President, General Counsel,
Secretary and Director
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on this 24th day of February, 2000.
SIGNATURE TITLE
--------- -----
/s/ John W. Stanton
- --------------------------------------------- Chief Executive Officer
John W. Stanton (Principal Executive Officer)
/s/ Cregg B. Baumbaugh
- --------------------------------------------- Executive Vice President-
Cregg B. Baumbaugh Finance, Strategy and
Development (Principal
Financial Officer)
/s/ Patricia L. Miller
- --------------------------------------------- Vice President, Controller
Patricia L. Miller and Principal Accounting
Officer
/s/ Alan R. Bender
- --------------------------------------------- Executive Vice President,
Alan R. Bender General Counsel, Secretary
and Director
/s/ Donald Guthrie
- --------------------------------------------- Director and Vice Chairman
Donald Guthrie
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INDEX TO EXHIBITS TO REGISTRATION STATEMENT ON FORM S-8
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
<S> <C>
4.1 -- VoiceStream Wireless Corporation 2000 Management Incentive
Stock Option Plan
5.1 -- Opinion of Preston Gates & Ellis LLP
23.1 -- Consent of Preston Gates & Ellis LLP (see Exhibit 5.1)
23.2 -- Consent of Arthur Andersen LLP
</TABLE>
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EXHIBIT 4.1
VOICESTREAM WIRELESS CORPORATION
2000 MANAGEMENT INCENTIVE
STOCK OPTION PLAN
(Adopted April 9, 1999;
Approved, as Adopted and as Amended, by Shareholders April 9, 1999;
Amended February 2, 2000)
1. ESTABLISHMENT AND PURPOSE. This 2000 Management Incentive Stock
Option Plan was established to provide an important inducement for management to
generate shareholder value by giving certain key personnel of VoiceStream
Wireless Corporation and its subsidiaries a stake in the equity of the Company.
The Company believes that the key managers participating in the Plan will seek
to build personal financial security through creating and maintaining value in
the Company for all shareholders. This Plan allows the Company to grant two
types of options, namely (1) Nonstatutory Stock Options; and (2) Incentive Stock
Options as the latter are defined and governed by Section 422 of the Internal
Revenue Code of 1986, as amended.
2. DEFINITIONS. As used herein, the following definitions shall apply.
"Administrator" means the Board or any Committee designated by the
Board to administer the Plan in accordance with Section 4 hereof.
"Applicable Laws" means the legal requirements relating to the
administration and operation of stock option plans under federal and state
corporate and securities laws and the Code.
"Board" means the Board of Directors of the Company, as constituted
from time to time.
"Code" means the Internal Revenue Code of 1986, as amended.
"Committee" means a committee appointed by the Board, in accordance
with Section 4 hereof. If no such committee has been appointed, "Committee"
means the full Board.
"Common Stock" means the Common Stock of the Company.
"Company" means VoiceStream Wireless Corporation, a Delaware
corporation.
"Consultant" shall mean any person engaged by the Company who is not
an Employee.
"Director" means a member of the Board.
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"Disability" means total and permanent disability as defined in
Section 22(e)(3) of the Code.
"Employee" means any person, including Officers and Directors, who
is an employee (within the meaning of Section 3401(c) of the Code and the
regulations thereunder) of the Company, a Parent or a Subsidiary.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exercise Price" means the price at which one Share of the Common
Stock may be purchased upon exercise of an Option, as specified by the
Administrator in the applicable Option Agreement.
"Fair Market Value" means, as of any date, the value of Common Stock
determined as follows:
(i) If the Common Stock is listed on any established stock
exchange or a national market system, including without limitation the National
Market System of the National Association of Securities Dealers, Inc. Automated
Quotation ("NASDAQ") System, the Fair Market Value of a Share of Common Stock
shall be the closing sales price for such stock (or the closing bid, if no sales
were reported) as quoted on such system or exchange (or the exchange with the
greatest volume of trading in Common Stock) on the last market trading day prior
to the day of determination, as reported in the Wall Street Journal or such
other source as the Administrator deems reliable;
(ii) If the Common Stock is quoted on the NASDAQ System (but not
on the National Market System thereof) or is regularly quoted by a recognized
securities dealer but selling prices are not reported, the Fair Market Value of
a Share of Common Stock shall be the mean between the high bid and low asked
prices for the Common Stock on the last market trading day prior to the day of
determination, as reported in the Wall Street Journal or such other source as
the Administrator deems reliable;
(iii) In the absence of an established market for the Common
Stock, the Fair Market Value shall be determined in good faith by the
Administrator as required .
"Incentive Stock Option" means an Option intended to qualify as an
incentive stock option within the meaning of Section 422(b) of the Code and the
regulations promulgated thereunder.
"Nonstatutory Stock Option" means an Option not intended to qualify
as an incentive stock option within the meaning of Section 422(b) of the Code
and the regulations promulgated thereunder
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"Officer" means a person who is an officer of the Company within the
meaning of Section 16 of the Exchange Act and the rules and regulations
promulgated thereunder.
"Option" means a stock option granted pursuant to the Plan.
"Option Agreement" means a written agreement between the Company and
an Optionee evidencing the terms and conditions of an individual Option grant.
The Option Agreement is subject to the terms and conditions of the Plan, but may
be modified in the discretion of the Administrator.
"Option Exchange Program" means a program whereby outstanding
Options are surrendered in exchange for Options with a lower exercise price.
"Optioned Stock" means the Common Stock subject to an Option.
"Optionee" means an Employee who holds an outstanding Option.
"Parent" means a "parent corporation" (other than the Company),
whether now or hereafter existing, as defined in Section 424(e) of the Code.
"Plan" means this 2000 Management Incentive Stock Option Plan of
VoiceStream Wireless Corporation, as it may be amended.
"Publicly Traded" means that the Common Stock is listed on an
established stock exchange or traded on the NASDAQ Stock Market.
"Rule 16b-3" means Rule 16b-3 under the Exchange Act or any
successor to Rule 16b-3, as in effect when discretion is being exercised with
respect to the Plan.
"Service" means service as an Employee.
"Share" means one share of the Common Stock, as adjusted in
accordance with Section 8 hereof.
"Subsidiary" means a "subsidiary corporation" (other than the
Company), whether now or hereafter existing, as defined in Section 424(f) of the
Code.
3. STOCK SUBJECT TO THE PLAN. Shares offered under the Plan shall be
authorized but unissued or reacquired Common Stock. The maximum aggregate number
of Shares issuable under the Plan shall not exceed twenty million (20,000,000)
Shares of the Company, subject to (i) adjustment pursuant to Section 8 hereof,
or (ii) amendment hereof approved by the shareholders of the Company. If an
outstanding Option for any reason expires
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or is terminated or canceled or otherwise becomes unexercisable before being
exercised in full, or is surrendered pursuant to an Option Exchange Program, the
Shares allocable to the unexercised portion of such Option will not be charged
against the limitations of this Section and will become available for future
grant or sale under the Plan. Shares issued pursuant to the exercise of an
Option that are repurchased by the Company will not be available for subsequent
Option grants under the Plan.
4. ADMINISTRATION OF THE PLAN. The Plan shall be administered by a
Committee appointed by the Board consisting of two or more members of the Board,
which Committee shall be constituted to comply with Applicable Laws, including
Rule 16b-3, if applicable. If no such Committee is appointed, the Plan shall be
administered by the Board. The members of a Committee will serve for such term
as the Board may determine. From time to time, the Board may increase the size
of the Committee and appoint additional members, remove members, fill vacancies
(however caused), and remove all members of the Committee and thereafter
directly administer the Plan. Decisions of a Committee made within the
discretion delegated to it by the Board will be final and binding on all persons
who have an interest in the Plan.
(a) Administration With Respect to Directors and Officers Subject to
Section 16(b). The composition of any Committee responsible for administration
of the Plan with respect to Optionees who are subject to the trading
restrictions of Section 16(b) of the Exchange Act with respect to securities of
the Company will comply with the applicable requirements of Rule 16b-3.
(b) Authority of the Administrator. The Administrator of the Plan
will have full authority to administer the Plan within the scope of its
delegated responsibilities, including authority to interpret and construe any
relevant provision of the Plan, to adopt such rules and regulations as it may
deem necessary, and to determine the terms and conditions of Option grants made
under the Plan (which need not be identical). Without limiting the foregoing,
the Administrator will have the authority, in its discretion:
(i) to determine whether and to what extent Options are granted
hereunder;
(ii) to select the Employees to whom Options may be granted
hereunder;
(iii) to determine the number of Shares to be covered by each
Option granted hereunder;
(iv) to determine the Fair Market Value of the Common Stock;
(v) to approve forms of the Option Agreement for use under the
Plan;
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(vi) to determine the time period during which an Option may be
exercised, provided that the time period for an Incentive Stock Option may not
be more than ten (10) years;
(vii) to determine the terms and conditions not inconsistent
with those of the Plan, of any award of an Option granted hereunder, including,
but not limited to, the Exercise Price; the time or times when Options may be
exercised; all vesting provisions; any waiver of forfeiture restrictions; and
any restriction or limitation regarding any Option or the Shares relating
thereto, based in each case on such factors as the Administrator, in its sole
discretion, shall determine;
(viii) to determine whether and to what extent the Company
should grant or permit loans or guarantee loans in connection with the grant or
the exercise of an Option by an Optionee pursuant to Section 12 hereof;
(ix) with the consent of the affected Optionee, to effect, at
any time and from time to time, the cancellation of any or all outstanding
Options under the Plan and to grant new Options in substitution therefor, in
accordance with Section 14 hereof;
(x) to prescribe, amend and rescind rules and regulations
relating to the Plan;
(xi) to modify, amend or waive the terms, conditions and
restrictions of any outstanding Option; provided, however, no such modification,
amendment or waiver shall, without the written consent of the Optionee, impair
the Optionee's rights or increase the Optionee's obligations with respect to
such Option;
(xii) to authorize any person to execute on behalf of the
Company any instrument required to effect the grant of an Option previously
granted by the Administrator;
(xiii) to institute an Option Exchange Program; and
(xiv) to make all other determinations deemed necessary or
advisable for administering the Plan.
(c) Effect of Administrator's Decision. The Administrator's
decisions, determinations and interpretations shall be final and binding on all
Optionees and any other holders of Options.
5. ELIGIBILITY. From time to time, the Administrator may, in its
discretion, select individuals from among the Employees, Directors and
Consultants of the Company or any of its Subsidiaries to receive Options under
the Plan.
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6. TERMS AND CONDITIONS OF OPTIONS.
(a) Option Agreement. Each Option granted under the Plan will be
evidenced by an Option Agreement between the Optionee and the Company. Such
Options will be subject to all applicable terms and conditions of the Plan and
such instruments may contain other terms and conditions which are not
inconsistent with the purpose of the Plan and which the Administrator deems
appropriate for inclusion in an Option Agreement. Notwithstanding the foregoing,
an Option Agreement or any other written agreement between the Company and an
Optionee may contain other terms and conditions concerning the options
(including, without limitation, terms and conditions relating to vesting) as are
mutually agreed to by the Optionee and the Company. The provisions of the
carious Option Agreements or other agreements entered into under the Plan need
not be identical.
(b) Number of Shares. Each Option Agreement shall specify the number
of Shares that are subject to the Option and shall provide for the adjustment of
such number in accordance with Section 8 hereof.
(c) Character of Options. Each Option granted under the Plan shall
be designated in the Option Agreement as either a Nonstatutory Stock Option or
an Incentive Stock Option, as the case may be.
(d) Exercise Price. Each Option Agreement shall specify the Exercise
Price. Subject to the discretion of the Administrator, the Exercise Price of an
Option shall be the Fair Market Value per Share on the date of grant.
(e) Payment. The Exercise Price of each Option will be payable
immediately and in full upon exercise; provided, however, that the Administrator
may, either at the time the Option is granted or at the time it is exercised and
subject to such limitations as it may determine, authorize payment of all or a
portion of the Exercise Price in one or a combination of the following forms:
(i) cash;
(ii) check;
(iii) a promissory note (but only if authorized or allowed
pursuant to Sections 12 and 22(e) hereof);
(iv) other Shares of Common Stock which have a Fair Market Value
on the date of surrender equal to the aggregate Exercise Price of the Shares as
to which the Option will be exercised;
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(v) delivery of a properly executed exercise notice together
with irrevocable instructions to a broker to promptly deliver to the Company the
amount of sale or loan proceeds to pay the Exercise Price;
(vi) utilization of the cashless exercise method described in
Section 6(h) hereof;
(vii) any combination of the foregoing methods of payment; or
(viii) such other consideration and method of payment for the
issuance of Shares to the extent permitted by Applicable Laws.
In the event that the Company's Common Stock is Publicly Traded,
unless otherwise provided in the Option Agreement, the methods of payment set
forth in subparagraphs (iii) and (vi) above shall not be permitted hereunder.
(f) Exercisability. Each Option Agreement shall specify the date
when all or any portion of the Option will become exercisable, any conditions
which must be satisfied before the Option may be exercised and the term of the
Option.
(g) Nontransferability of Options. An Option may not be sold,
pledged, assigned, hypothecated, transferred or disposed of in any manner other
than by will or by the laws of descent and distribution and may be exercised,
during the lifetime of the Optionee, only by the Optionee.
(h) Termination of Employment. In the event that an Optionee's
employment by the Company or a Parent or Subsidiary terminates (other than upon
the Optionee's death or Disability), or a Subsidiary ceases to be a Subsidiary
(in which event the employment of such company's employees will be deemed to be
terminated under this Plan), the Optionee may exercise his or her Option, but
only within such applicable period of time as is set forth below, and, except as
otherwise provided by written agreement between the Optionee and the Company,
only to the extent that the Optionee was entitled to exercise it at the date of
termination (but in no event later than the expiration of the term of such
Option as set forth in the Option Agreement). If, after termination, the
Optionee does not exercise his or her Option within the applicable time period
specified below, the Option shall terminate. For purposes of this Subsection
6(h), the Optionee's employment shall not be considered to have been terminated
in the case of any leave of absence approved by the Board, including sick leave,
military leave, or any other personal leave. For Incentive Stock Options,
Optionee shall have a period of three (3) months from the date of termination of
employment. For Nonstatutory Stock Options, in the event that the Common Stock
of the Company is then Publicly Traded, Optionee shall have a period of six (6)
months and one day from the date of termination of employment, and in the event
that the Common Stock of the Company is not then Publicly Traded, Optionee shall
have a period of twelve (12) months and one day from the date of termination of
employment. During the applicable period the Optionee may either (i) exercise
his or her Option by delivery of the Exercise Price pursuant to Section 7
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hereof or, if the Common Stock of the Company is not then Publicly Traded and if
provided for in Optionee's Option Agreement, (ii) deliver the requisite Exercise
Price by utilizing a cashless election procedure at a price per share equal to
the Fair Market Value of a Share of Common Stock as of the date of termination
of employment (provided that the Administrator is not otherwise prohibited by
Company loan agreements or related contractual obligations from permitting such
cashless election procedure.) The cashless election procedure is also available
to Optionee, at anytime prior to termination of employment, if provided for as a
designated method in the Option Agreement and subject to the other terms and
conditions of the Plan and the Option Agreement. If the Company is publicly
traded, the Company, working with the brokerage firm, if any, designated by the
Company to facilitate exercises of options and sales of shares under this Plan,
may from time to time amend the procedures set forth herein and may specify
additional or different procedures for a cashless exercise for any or all
Optionees. Optionee shall be responsible for satisfying all applicable federal,
state, local and employment tax withholding requirements associated with such
exercise and must evidence the ability to satisfy such withholding requirements
prior to such exercise.
(i) Disability of Optionee. In the event that an Optionee's
employment terminates as a result of the Optionee's Disability, the Optionee may
exercise his or her Option at any time within twelve (12) months from the date
of such termination, but, except as otherwise provided by written agreement
between the Optionee and the Company, only to the extent that the Optionee was
entitled to exercise it at the date of such termination (but in no event later
that the expiration of the term of such Option as set forth in the Option
Agreement). If, after termination of employment, the Optionee does not exercise
his or her Option within the time specified herein, the Option shall terminate.
(j) Death of Optionee. In the event of the death of an Optionee, the
Option may be exercised at any time within twenty-four (24)months following the
date of death (but in no event later than the expiration of the term of such
Option as set forth in the Option Agreement), by the Optionee's estate or by a
person who acquired the right to exercise the Option by bequest or inheritance,
but, except as otherwise provided by written agreement between the Optionee and
the Company, only to the extent that the Optionee was entitled to exercise the
Option at the date of death. If, after death, the Optionee's estate or a person
who acquired the right to exercise the Option by bequest or inheritance does not
exercise the Option within the time specified herein, the Option shall
terminate.
7. PROCEDURE FOR EXERCISE. Any Option granted hereunder shall be
exercisable according to the terms of the Plan and at such times and under such
conditions as determined by the Administrator and set forth in the Option
Agreement. An Option may not be exercised for a fraction of a Share.
An Option shall be deemed exercised when the Company receives: (i)
written notice of exercise (in accordance with the Option Agreement) from the
person entitled to exercise the Option, and (ii) full payment for the Shares
with respect to which the Option is exercised. Full
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payment may consist of any consideration and method of payment authorized by the
Administrator and permitted in the Option Agreement and the Plan. If the Company
is publicly traded, the Company, working with the brokerage firm, if any,
designated by the Company to facilitate exercises of options and sales of shares
under this Plan, may from time to time amend the procedures set forth herein and
may specify additional or different procedures.
Shares issued upon exercise of an Option shall be issued in the name of
the Optionee or, if requested by the Optionee, in the name of the Optionee and
his or her spouse. Until the stock certificate evidencing such Shares is issued
(as evidenced by the appropriate entry on the books of the Company or of a duly
authorized transfer agent of the Company), no right to vote or receive dividends
or any other rights as a shareholder shall exist with respect to the Optioned
Stock, notwithstanding the exercise of the Option. The Company will issue or
cause to be issued such stock certificate promptly after the Option is
exercised. No adjustment will be made for a dividend or other right for which
the record date is prior to the date the stock certificate is issued, except as
provided in Section 8 hereof.
8. ADJUSTMENTS.
(a) Changes in Capitalization. In the event of a stock split,
reverse stock split, stock dividend, combination or reclassification of the
Common Stock, or any other increase or decrease in the number of issued shares
of Common Stock effected without receipt of consideration by the Company, the
number of shares of Common Stock covered by each outstanding Option, and the
number of shares of Common Stock which have been authorized for issuance under
the Plan but as to which no Options have yet been granted or which have been
returned to the Plan upon cancellation or expiration of an Option, as well as
the price per share of Common Stock covered by each such outstanding Option,
shall be proportionately adjusted for any increase or decrease in the number of
issued shares of Common Stock. Any conversion of any convertible securities of
the Company shall not be deemed to have been "effected without receipt of
consideration." Such adjustment shall be made by the Board, whose determination
in that respect shall be final, binding and conclusive. Except as expressly
provided herein, no issuance by the Company of shares of stock of any class, or
securities convertible into shares of stock of any class, shall affect, and no
adjustment by reason thereof shall be made with respect to, the number or price
of shares of Common Stock subject to an Option.
(b) Corporate Structure. In the event of a merger, consolidation,
acquisition of property or stock, separation, reorganization or other change to
the capital or business structure of the Company (including, without limitation,
by means of an exchange offer or other transaction) (collectively, a
"Reorganization") the effect of which is to organize a parent company of the
Company which will own not less than 50% of the capital stock of the Company
(such parent company is hereinafter referred to as "Company Holdings" ), the
Administrator shall have the authority to effect, without the consent of the
Optionees, (x) the cancellation of all outstanding Options granted under the
Plan and substitute therefor options to purchase shares of Company Holdings
("New Options"), or (y) the assumption by Company Holdings of Options
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granted under the Plan; provided, however, that (i) immediately after the
Reorganization the excess of the aggregate fair market value of all shares
subject to New Options over the aggregate option prices of all shares subject to
New Options shall equal but not be more than the excess of the aggregate fair
market value immediately preceding the Reorganization of all shares subject to
Options granted under the Plan over the aggregate option prices of all shares
subject to Options granted under the Plan, and (ii) New Options, or the
assumption or substitution of Options granted under the Plan, do not give an
Optionee additional benefits which such Optionee did not have under Options
granted under the Plan. Such a Reorganization shall not be treated as a
Triggering Event or a Change of Control (as defined in the Option Agreement, as
applicable) for purposes of the Plan and related Option Agreement. The grant of
Options under this Plan will in no way affect the right of the Company to
adjust, reclassify, reorganize, or otherwise change its capital or business
structure or to merge, consolidate, dissolve, liquidate, sell or transfer all or
any part of its business or assets or effect any other Reorganization.
(c) Substitutions and Assumptions. The Board shall have the right to
substitute or assume options in connection with mergers, reorganizations,
separations, or other "corporate transactions" as that term is defined in and
said substitutions and assumptions are permitted by Section 424 of the Code (as
however amended or superseded) and the regulations promulgated thereunder. Any
shares or Options issued upon the assumption of or in substitution for
outstanding awards made by a corporation or other business entity acquired by
the Company shall not reduce the number of Shares or Options issuable under the
Plan (unless such shares or Options are made available to individuals who
become, upon the acquisition, an Officer or otherwise an individual subject to
Section 16 of the Exchange Act).
9. DATE OF GRANT. Subject to applicable statutory approval, the date of
the grant of an Option shall be, for all purposes, the date on which the
Administrator makes the determination to grant such Option, or such other date
as is determined by the Administrator. Notice of the determination to grant an
Option shall be provided to the Optionee within a reasonable time after the date
of such grant.
10. NO EMPLOYMENT RIGHTS. Neither the Plan nor any Option shall confer
upon any Employee any right to continue in the employ of the Company of any
affiliate or constitute a contract or agreement of employment or interfere in
any way with any right that the Company or an affiliate may have to reduce such
Employee's compensation or to terminate such Employee's employment at any time
with or without cause; however, nothing contained in the Plan or in any Option
granted under the Plan shall affect any contractual rights of an Employee
pursuant to a written employment agreement.
11. AMENDMENT AND TERMINATION OF THE PLAN.
(a) Amendment and Termination. The Board may at any time amend,
alter, suspend or terminate the Plan in whole or in part.
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(b) Shareholder Approval. The Company shall obtain shareholder
approval of any Plan amendment in such a manner and to the extent necessary and
desirable to comply with Rule 16b-3 or with Section 422 of the Code (or with any
successor rule or statute or other Applicable Law, rule or regulation including
the requirements of any exchange or quotation system on which the Common Stock
is then listed or quoted).
(c) Effect of Amendment or Termination. No amendment, alteration,
suspension or termination of the Plan shall impair the rights or increase the
obligations of any Optionee, unless mutually agreed otherwise between the
Optionee and the Administrator, which agreement must be in writing and signed by
the Optionee and the Company.
12. LOANS. In order to assist an Optionee in the acquisition of Shares
pursuant to an Option granted under the Plan, the Administrator may authorize,
at either the time of the grant of an Option or the time of the acquisition of
Shares under the Option, (i) the extension of a loan to the Optionee by the
Company, or (ii) the guarantee by the Company of a loan obtained by the Optionee
from a third party. The terms of any loans or guarantees, including the amount,
interest rate and terms of repayment, will be subject to the discretion of the
Administrator and applicable covenants contained in Company loan agreements.
Loans and guarantees may be granted without security, the maximum credit
available being the Exercise Price of the Shares acquired plus the maximum
federal and state income and employment tax liability that may be incurred in
connection with the acquisition.
13. WITHHOLDING.
(a) Obligation. The Company's obligation to deliver stock
certificates upon the exercise of an Option will be subject to the Optionee's
satisfaction, in the Administrator's sole discretion, of all applicable federal,
state and local income and employment tax withholding requirements.
(b) Payment. In the event that an Optionee is required to pay to the
Company an amount with respect to income and employment tax withholding
obligations in connection with the exercise of an Option, the Administrator may,
in its discretion and subject to such limitations and rules as it may adopt,
permit the Optionee to satisfy the obligation, in whole or in part, by
delivering shares of Common Stock already held by the Optionee or by making an
irrevocable election that a portion of the total value of the Shares subject to
the Option be paid in the form of cash in lieu of the issuance of Common Stock,
and that such cash payment be applied to the satisfaction of the withholding
obligations.
14. OPTION EXCHANGE PROGRAM. The Administrator will have the authority
to effect, at any time and from time to time, with the consent of the affected
Optionees, the cancellation of any or all outstanding Options under the Plan and
to grant in substitution therefor new Options under the Plan covering the same
or different numbers of Shares, but, in accordance
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with Section 6 hereof, having an Exercise Price not less than one hundred
percent (100%) of the Fair Market Value on the new grant date, unless otherwise
permitted by the Administrator.
15. COMPLIANCE WITH FEDERAL AND STATE LAWS. Shares will not be issued
pursuant to the exercise of an Option unless the exercise of such Option and the
issuance and delivery of such Shares shall comply with all relevant provisions
of law and the requirements of any stock exchange or quotation system upon which
the Shares may then be listed or quoted, and shall be further subject to the
approval of counsel for the Company with respect to such compliance.
As a condition to the grant or exercise of an Option, or to the issuance
of any Shares under any Option, the Administrator may require the Optionee to
provide such written representations, covenants, warranties and agreements
which, in the opinion of counsel for the Company, are required to comply with
applicable law or satisfy the requirements of any stock exchange or quotation
system upon which the Shares may then be listed or quoted.
The Company undertakes to use all reasonable efforts to either register
the Shares of Common Stock issuable upon exercise of an Option or assure that an
exemption from registration is available in connection with such exercise. In
the event that the Company shall deem it necessary or desirable to register any
shares of Common Stock with respect to which the Option shall have been or may
be exercised, or to qualify any such shares for exemptions pursuant to
applicable statutes, then the Company may take such action and may require from
the Optionee such information in writing for use in any registration statement,
supplementary registration statement, prospectus, preliminary prospectus,
offering circular or any other document that is reasonably necessary for such
purpose and may require reasonable indemnity to the Company and its officers and
directors from the Optionee against all losses, claims, damage and liabilities
arising from such use of the information so furnished and caused by any untrue
statement of any material fact therein or caused by the omission to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances under which they were
made.
16. RESERVATION OF SHARES. During the term of this Plan, the Company
will at all times reserve and keep available such number of Shares as shall be
sufficient to satisfy the requirements of the Plan.
17. GRANTS EXCEEDING ALLOTTED SHARES. If the Optioned Stock covered by
an Option exceeds, as of the date of grant, the number of Shares which may be
issued under the Plan without additional shareholder approval, such Option shall
be void with respect to such excess Optioned Stock, unless approved by the Board
and shareholder approval of an amendment sufficiently increasing the number of
Shares subject to the Plan is timely obtained in accordance with Section 11
hereof.
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18. EFFECTIVE DATE; SHAREHOLDER APPROVAL; TERM OF PLAN. The effective
date of the Plan shall be the date of its adoption by the Board and approval by
the shareholders of the Company. Options may be granted by the Administrator as
provided herein subject to such subsequent shareholder approval. The Plan shall
continue for a term of ten (10) years from the date of original approval by the
Board unless terminated earlier under Section 11 hereof.
19. RULE 16b-3. Notwithstanding any provision of the Plan, the Plan
shall always be administered, and Options shall always be granted and exercised,
in such a manner as to conform to the provisions of Rules 16b-3, unless the
Administrator determines that Rule 16b-3 is not applicable to the Plan.
20. GOVERNING LAW. The Plan shall be governed by and construed in
accordance with the laws of the state of Washington.
21. USE OF PROCEEDS. All cash proceeds to the Company under the Plan
shall constitute general funds of the Company.
22. TERMS APPLICABLE TO INCENTIVE STOCK OPTIONS ONLY. In addition to,
and notwithstanding, the other provisions hereof that apply to all Options
granted pursuant to this Plan, the following paragraphs shall apply to any
options granted under this Plan which are Incentive Stock Options.
(a) Conformance with the Code:
Options granted under this Plan which are "Incentive Stock Options"
shall conform to, be governed by, and be interpreted in accordance with Section
422 of the Code and any regulations promulgated thereunder and amendments to the
Code and Regulations. Only Employees may be granted Incentive Stock Options
hereunder.
(b) Option Price:
The option or purchase price of each Share optioned under the Incentive
Stock Option provisions of this Plan shall be determined by the Board at the
time of the action for the granting of the option but shall not, in any event,
be less than the Fair Market Value of the Company's common stock on the date of
grant.
(c) Limitation on Amount of Incentive Stock Option:
The aggregate Fair Market Value of the Incentive Stock Options
(determined on the date of grant) with respect to which an employee has the
right to purchase vesting in any one calendar year (under all Plans of the
Company, its Subsidiaries, and any parent corporation) shall not exceed
$100,000.
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(d) Limitation on Grants to Substantial Shareholders:
An Employee may not, immediately prior to the grant of an Incentive
Stock Option hereunder, own stock in the Company representing more than ten
percent (10%) of the total combined voting power of all classes of stock of the
Company unless the per share option price specified by the Board for the
Incentive Stock Options granted such an Employee is at least one hundred ten
percent (110%) of the Fair Market Value of the Company's stock on the date of
grant and such option, by its terms, is not exercisable after the expiration of
five (5) years from the date such option is granted.
(e) Method of Exercise of Option:
The amount to be paid by the Optionee upon exercise of an Incentive
Stock Option shall be the full purchase price thereof provided in the option.
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EXHIBIT 5.1
Opinion and Consent of Counsel
February 25, 2000
VoiceStream Wireless Holding Corporation
3650 131st Avenue S.E.
Bellevue, Washington 98006
Re: Registration Statement on Form S-8 of VoiceStream Wireless Holding
Corporation
Ladies and Gentlemen:
We have acted as counsel to VoiceStream Wireless Holding Corporation
(the "Company") in connection with the filing of the above-referenced
Registration Statement (the "Registration Statement") relating to the
registration of shares (the "Shares") of Common Stock, $.001 par value per
share, of the Company that may be issued pursuant to the VoiceStream Wireless
Corporation 2000 Management Incentive Stock Option Plan (the "Plan").
In connection therewith, we have reviewed the Company's Amended and
Restated Certificate of Incorporation, Bylaws and minutes of appropriate
meetings, and we are familiar with the proceedings to date with respect to the
Plan and the proposed issuance and sale of the Shares and have examined such
records, documents and questions of law, and have satisfied ourselves as to such
matters of fact, as we have considered relevant and necessary as a basis for
this opinion.
Based on the foregoing, it is our opinion that:
1. The Company is duly incorporated and validly existing under the
laws of the State of Delaware.
2. The Shares, as and when acquired in accordance with the terms and
conditions of the Plan, will be legally issued, fully paid and non-assessable
under the Delaware corporate law when certificates representing the
Shares shall have been duly executed, countersigned and registered and duly
delivered to the purchasers thereof against payment of the agreed consideration
therefor.
We do not find it necessary for the purposes of this opinion to cover,
and accordingly we express no opinion as to, the application of the securities
or blue sky laws of the various states to the sale of the Shares.
<PAGE> 2
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to all references to our firm included in or made a
part of the Registration Statement.
Very truly yours,
PRESTON GATES & ELLIS LLP
By /s/ G. Scott Greenburg
-----------------------
G. Scott Greenburg
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our reports
(and to all references to our Firm), as it relates to VoiceStream Wireless
Corporation and Subsidiaries, included in or made a part of this registration
statement.
/s/ Arthur Andersen LLP
Seattle, Washington
February 22, 2000
