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REGISTRATION NO. ___-_____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
____________________
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 EMPLOYEE STOCK PURCHASE 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>
<CAPTION>
=========================================================================================================
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(3)
- ------------------- ------------- ----------------- ------------------ ------------------
<S> <C> <C> <C> <C>
Common Stock, $.001
par value per share 1,500,000 shares $144.625 $216,937,500 $ --
=========================================================================================================
</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.
(2) Estimated solely for the purpose of calculating the registration fee and,
pursuant to Rule 457(c) and (h), based upon 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.
(3) Entire filing fee previously paid. This amendment is being filed to
correct typographical errors on this cover page.
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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 pursuant to the VoiceStream Wireless
Corporation 2000 Employee Stock Purchase Plan (the "Plan"). VoiceStream
Holding adopted the VoiceStream Wireless Corporation 1999 Employee Stock
Purchase Plan and renamed it the VoiceStream Wireless Corporation 2000
Employee Stock Purchase 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. 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 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
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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.
ITEM 8. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
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<S> <C>
4.1 -- VoiceStream Wireless Corporation 2000 Employee Stock Purchase
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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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.
<TABLE>
<CAPTION>
SIGNATURE TITLE
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<S> <C>
/s/ John W. Stanton Chief Executive Officer
- ---------------------------------- (Principal Executive Officer)
John W. Stanton
/s/ Cregg B. Baumbaugh Executive Vice President-
- ---------------------------------- Finance, Strategy and
Cregg B. Baumbaugh Development (Principal
Financial Officer)
/s/ Patricia L. Miller Vice President, Controller
- ---------------------------------- and Principal Accounting
Patricia L. Miller Officer
/s/ Alan R. Bender Executive Vice President,
- ---------------------------------- General Counsel, Secretary
Alan R. Bender and Director
/s/ Donald Guthrie Director and Vice Chairman
- ----------------------------------
Donald Guthrie
</TABLE>
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INDEX TO EXHIBITS TO REGISTRATION STATEMENT ON FORM S-8
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
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<S> <C>
4.1 -- VoiceStream Wireless Corporation 2000 Employee Stock Purchase
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>
<PAGE> 1
VOICESTREAM WIRELESS CORPORATION
2000 EMPLOYEE STOCK PURCHASE PLAN
VoiceStream Wireless Corporation (the "Company") does hereby establish
its 2000 Employee Stock Purchase Plan (the "Plan") as follows:
1. Purpose of the Plan. The Plan is intended to provide a method whereby
eligible employees of the Company and its Subsidiaries will have an opportunity
to acquire a proprietary interest in the Company through the purchase of shares
of its Common Stock, no par value per share. The Company believes that employee
participation in the ownership of the Company will be of benefit to both the
employees and the Company. The Company intends to have the Plan qualify as an
"employee stock purchase plan" under Section 423 of the Code (as defined below).
The provisions of the Plan, accordingly, shall be construed so as to extend and
limit participation in a manner that is consistent with the requirements of that
Section of the Code. This Plan shall not be effective until approved by the
holders of a majority of the voting power of the Company's voting securities,
which approval must occur (if at all) within 12 months of the adoption of this
Plan by the Board of Directors. If not so approved, the Plan and any rights
granted hereunder shall be void and of no effect.
2. Definitions.
"Account" shall mean the funds that are accumulated with respect to
each individual Participant as a result of payroll deductions for the purpose of
purchasing Shares under the Plan. The funds that are allocated to a
Participant's account shall at all times remain the property of that
Participant, but such funds may be commingled with the general funds of the
Company.
The "Board" means the Board of Directors of the Company, or any
committee of the Board, comprised to comply with Rule 16b-3 promulgated under
the Exchange Act, established thereby for the purpose of administering this
Plan.
The "Code" means the Internal Revenue Code of 1986, as amended.
The "Commencement Date" means May 1 or November 1, as the case may
be, on which the particular Offering begins as set forth in Section 4.
The "Company" means VoiceStream Wireless Corporation, a Washington
corporation.
The "Ending Date" means the April 30 or October 31, as the case may
be, on which the particular Offering concludes.
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The "ESPP Broker" is a qualified stock brokerage or other financial
services firm that has been designated by the Board.
The "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
The "Holding Period" shall mean the holding period that is set forth
in Section 423(a) of the Code, which, as of the date that the Company's Board of
Directors adopted this Plan, is both (a) that two (2) year period after the
Commencement Date, or, if applicable, a Purchase Date with respect to any
Offering, and (b) that one (1) year period after transfer to a Participant of
any Shares under the Plan.
"Offerings" means the ten (10) separate consecutive six-month
offerings for the purchase and sale of Shares under the Plan. Each one of the
Offerings shall be referred to as an "Offering."
"Participant" means an employee who, pursuant to Section 3, is
eligible to participate in the Plan and has complied with the requirements of
Section 7.
The "Plan" means this VoiceStream Wireless Corporation 2000 Employee
Stock Purchase Plan.
"Purchase Date" means a date during an Offering, as determined from
time to time by the Board, on which a Participant shall be deemed to have
carried out its right of purchase pursuant to Section 10. The Board may
designate that there shall be one or more Purchase Dates during an Offering. In
the absence of any other determination by the Board, the Purchase Date will be
the last business day of each month. For purposes of this definition, a business
day shall mean a day in which the Nasdaq National Market is accepting trades.
"Shares" means shares of the Company's Common Stock, no par value per
share.
"Subsidiaries" shall mean any present or future domestic or foreign
corporation that: (a) would be a "subsidiary corporation" of the Company as that
term is defined in Section 424 of the Code, and (b) whose employees have been
designated by the Board to be eligible, subject to Section 3, to be Participants
under the Plan.
"Total Annual Compensation" means an employee's regular straight time
salary or earnings, plus review cycle bonuses and overtime payments, payments
for incentive compensation, commissions and other special payments except to the
extent any such item is excluded specifically by the Board.
"Withdrawal Notice" means a notice, in a form designated by the
Board, that must be submitted to the Company pursuant to Section 22 by any
Participant who wishes to withdraw from an Offering.
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3. Employees Eligible to Participate. Any regular employee of the
Company or any of its Subsidiaries who (a) is in the employ of the Company or
any of its Subsidiaries on the Commencement Date, and (b) either (i) has been so
employed for at least three (3) months, or (ii) was employed by Western Wireless
Corporation or a "subsidiary corporation" (as defined in Section 424 of the
Code) of Western Wireless Corporation on April 1, 1999 is eligible to
participate in the Plan. With respect to any employee subject to Section 16(b)
of the Exchange Act, the Company may impose such conditions on the grant or
exercise of any rights hereunder necessary to satisfy the requirements of the
Exchange Act or applicable regulations promulgated thereunder.
4. Offerings. The Plan shall consist of ten separate consecutive
six-month Offerings. The first Offering shall commence on May 1, 1999.
Thereafter, Offerings shall commence on each subsequent November 1 and May 1,
and the final Offering under the Plan shall commence on November 1, 2004 and
terminate on April 30, 2005.
5. Price. The purchase price per share shall be as established by the
Board, but in no event shall the purchase price per share be less than the lower
of (a) 85 percent of the fair market value of the Shares on the Commencement
Date, or the nearest subsequent business day; (b) 85 percent of the fair market
value of the Shares on the Ending Date, or the nearest prior business day, or
(c) 85 percent of the fair market value of the Shares on the Purchase Date. Fair
market value shall mean the closing bid price as reported on the Nasdaq Stock
Market Consolidated Quotation System or, if the Shares are traded on a stock
exchange, the closing price for the Shares on the principal of such exchange,
or, if the Shares are purchased by the ESPP Broker, the price paid for such
Shares by the ESPP Broker. In the absence of any other determination by the
Board, the purchase price will be 85 percent of the fair market value of the
Shares on the Purchase Date.
6. Number of Shares Reserved Under the Plan. The maximum number of
Shares that will be offered under the Plan is one million five hundred thousand
(1,500,000). If, on any date, the total number of Shares for which purchase
rights are to be granted pursuant to Section 9 exceeds the number of Shares
then available under this Section (after deduction of all Shares that have
been purchased under the Plan and for which rights to purchase are then
outstanding), the Board shall make a pro rata allocation of the Shares that
remain available in as nearly a uniform manner as shall be practicable and as
it shall determine to be equitable. In such event, each Participant's payroll
deductions shall be reduced accordingly and the Company shall give to each
Participant a written notice of such reduction.
7. Participation. An eligible employee may become a Participant by
completing the Enrollment Agreement that shall be provided by the Company and
filing it with the Company on or before a date prior to the Commencement Date of
the Offering to which it relates, as established by the Board. Participation in
one Offering under the Plan shall neither limit, nor require, participation in
any other Offering.
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8. Payroll Deductions.
8.1 At the time the Enrollment Agreement is filed and for so long as
a Participant participates in the Plan, each Participant shall authorize the
Company to make payroll deductions of either (a) a per pay period fixed dollar
amount the minimum of which will be determined by the Board, or (b) a whole
percentage (not partial or fractional) of Total Annual Compensation; provided,
however, that no payroll deduction shall exceed 10 percent of Total Annual
Compensation. The amount of the minimum fixed dollar deduction, if any, may be
adjusted by the Board of Directors from time to time; provided, however, that a
Participant's existing rights under any Offering that has already commenced may
not be adversely affected thereby. In the absence of any other determination by
the Board, fixed dollar amount deductions shall not be permitted.
8.2 Each Participant's payroll deductions shall be credited to that
Participant's Account. A Participant may not make a separate cash payment into
such Account nor may payment for Shares be made from other than the
Participant's Account.
8.3 A Participant's payroll deductions shall begin on the
Commencement Date, and shall end on the Ending Date unless the Participant
elects to withdraw pursuant to Section 13.
8.4 A Participant may discontinue participation in the Plan as
provided in Section 13, but no other change may be made during an Offering and,
specifically, a Participant may not alter the amount or rate of payroll
deductions during an Offering.
9. Granting of Right to Purchase. On the Commencement Date, the Plan
shall be deemed to have granted to each Participant a right to purchase as many
full Shares (not any fractional Shares) as may be purchased with such
Participant's Account. The maximum amount of payroll deductions during any
calendar year that any Participant may have withheld under this Plan shall be
determined from time to time by the Board. In the absence of any other
determination by the Board, no Participant may have withheld payroll deductions
in excess of $10,200 during any calendar year.
10. Purchase of Shares. On each of one or more Purchase Dates during an
Offering, but in no event later than the Ending Date, each Participant who has
not otherwise withdrawn from an Offering pursuant to Section 13 shall be deemed
to have carried out the right to purchase, and shall be deemed to have purchased
at the purchase price determined in accordance with Section 5, the number of
full Shares (not any fractional Shares) that may be purchased with such
Participant's Account.
11. Participant's Rights as a Shareholder. No Participant shall have any
rights of a shareholder with respect to any Shares until the Shares have been
purchased in accordance with Section 10 and issued by the Company.
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12. Evidence of Ownership of Shares.
12.1 Promptly following the Ending Date of each Offering, the Shares
that are purchased by each Participant shall be deposited into an account that
is established in the Participant's name with the ESPP Broker.
12.2 A Participant may direct, by written notice to the Company
prior to the Ending Date of the pertinent Offering, that the ESPP Broker account
be established in the names of the Participant and one such other person as may
be designated by the Participant as joint tenants with right of survivorship,
tenants in common, or community property, to the extent and in the manner
permitted by applicable law.
12.3 A Participant shall be free to undertake a disposition, as that
term is defined in Section 424(c) of the Code (which generally includes any
sale, exchange, gift or transfer of legal title), of Shares in the Participant's
ESPP Broker account at any time, whether by sale, exchange, gift or other
transfer of title. In the absence of such a disposition of the Shares, however,
the Shares must remain in the Participant's account at the ESPP Broker until the
Holding Period has been satisfied. With respect to Shares for which the Holding
Period has been satisfied, a Participant may move such Shares to an account at
another brokerage firm of the Participant's choosing or request that a
certificate that represents the Shares be issued and delivered to the
Participant.
12.4 A Participant who is not subject to United States taxation, at
any time and without regard to the Holding Period, may move its Shares to an
account at another brokerage firm of the Participant's choosing or request that
a certificate that represents the Shares be issued and delivered to the
Participant.
13. Withdrawal.
13.1 A Participant may withdraw from an Offering, in whole but not
in part, at any time by delivering a Withdrawal Notice to the Company. Such
Withdrawal Notice shall be effective as of the first day of the second pay
period following the pay period in which the Withdrawal Notice was delivered
(e.g., if a Participant submits a Withdrawal Notice during the pay period of
February 16 through February 28, the withdrawal will be effective as of the pay
period that commences on March 16). Until such notice is effective, such
withdrawing Participant shall be deemed to be a Participant with respect to all
terms and conditions of the Plan, including, without limitation, the right to
purchase Shares pursuant to Section 10. Upon effectiveness of the Withdrawal
Notice, the Company shall refund the Participant's entire Account as soon as
practicable thereafter.
13.2 An employee who has previously withdrawn from the Plan may
re-enter by complying with the requirements of Section 7. An employee's re-entry
into the Plan will become effective on the Commencement Date of the next
Offering following satisfaction of the Section 7 requirements, except that, if
the withdrawing employee is an officer of the Company
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within the meaning of Section 16 of the Exchange Act, such employee may not
re-enter the Plan before the beginning of the second Offering following such
withdrawal.
14. Carryover of Account. At the conclusion of each Offering, the
Company automatically shall re-enroll each Participant in the next Offering, and
the balance of each Participant's Account shall be used to purchase Shares in
the subsequent Offering, unless the Participant has advised the Company
otherwise in writing, in which case the Company shall refund to the Participant
the funds that remain in the Participant's Account as soon as practicable
thereafter. Upon termination of the Plan, the balance of each Participant's
Account shall be refunded to the respective Participant.
15. Interest. No interest shall be paid or allowed on a Participant's
Account.
16. Rights Not Transferable. No Participant shall be permitted to sell,
assign, transfer, pledge, or otherwise dispose of or encumber such Participant's
Account or any rights to purchase or to receive Shares under the Plan other than
by will or the laws of descent and distribution, and such rights and interests
shall not be liable for, or subject to, a Participant's debts, contracts, or
liabilities. If a Participant purports to make a transfer, or a third party
makes a claim in respect of a Participant's rights or interests, whether by
garnishment, levy, attachment or otherwise, such purported transfer or claim
shall be treated as a withdrawal election under Section 13.
17. Termination of Employment. Upon termination of a Participant's
employment with the Company or a Subsidiary for any reason whatsoever, including
but not limited to death or retirement, the Participant's Account shall be
returned to the Participant or the Participant's estate, as applicable, and the
Participant or the Participant's estate, as applicable, shall not be eligible to
acquire any Shares under this Plan from the date of such termination forward.
18. Amendment or Discontinuance of the Plan. The Board shall have the
right to amend, modify, or terminate the Plan at any time without notice,
provided that (a) subject to Sections 19 and 23.1(b), no Participant's existing
rights under any Offering that is in progress may be adversely affected thereby,
and (b) subject to Section 19, in the event that the Board desires to retain the
favorable tax treatment under Sections 421 and 423 of the Code, no such
amendment of the Plan shall increase the number of Shares that were reserved for
issuance hereunder unless the Company's shareholders approve such an increase.
19. Changes in Capitalization. In the event of reorganization,
recapitalization, stock split, stock dividend, combination of shares, merger,
consolidation, offerings of rights, or any other change in the capital structure
of the Company, the Board may make such adjustment, if any, as it may deem
appropriate in the number, kind, and the price of the Shares that are available
for purchase under the Plan, and in the number of Shares that an employee is
entitled to purchase.
20. Share Ownership. Notwithstanding anything herein to the contrary, no
Participant shall be permitted to subscribe for any Shares under the Plan if
such Participant, immediately
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after such subscription, owns shares that account for (including all shares that
may be purchased under outstanding subscriptions under the Plan) five percent
(5%) or more of the total combined voting power or value of all classes of
shares of the Company or its Subsidiaries. For the foregoing purposes the rules
of Section 424(d) of the Code shall apply in determining share ownership. In
addition, no Participant shall be allowed to subscribe for any Shares under the
Plan that permit such Participant's rights to purchase Shares under all
"employee stock purchase plans" of the Company and its Subsidiaries formed
pursuant to Section 423 of the Code to accrue at a rate that exceeds $25,000 of
the fair market value of such shares (determined at the time such right to
subscribe is granted) for each calendar year in which such right to subscribe is
outstanding at any time.
21. Administration. The Plan shall be administered by the Board, which
may engage the ESPP Broker to assist in the administration of the Plan. The
Board shall be vested with full authority to make, administer, and interpret
such rules and regulations as it deems necessary to administer the Plan, and any
determination, decision, or action of the Board in connection with the
construction, interpretation, administration, or application of the Plan shall
be final, conclusive, and binding upon all Participants and any and all persons
that claim rights or interests under or through a Participant. The Board of
Directors may delegate any or all of its administrative duties to a committee
composed of two (2) or more members of the Board of Directors.
22. Notices. All notices or other communications by a Participant to the
Company under or in connection with the Plan shall be deemed to have been duly
given when received in the form specified by the Company at the location, or by
the person, that is designated by the Company from time to time for the receipt
thereof, and, in the absence of such a designation, Human Resources shall be
authorized to receive such notices.
23. Termination of the Plan.
23.1 This Plan shall terminate at the earliest of the following:
(a) April 30, 2005.
(b) The date of the filing of a Statement of Intent to Dissolve
by the Company or the effective date of a merger or consolidation wherein the
Company is not to be the surviving corporation, which merger or consolidation is
not between or among corporations related to the Company. Prior to the
occurrence of either of such events, on such date as the Company may determine,
the Company may permit a Participant to carry out the right to purchase, and to
purchase at the purchase price determined in accordance with Section 5, the
number of full Shares (not any fractional Shares) that may be purchased with
that Participant's Account. In such an event, the Company shall refund to the
Participant the funds that remain in the Participant's Account after such
purchase.
(c) The date the Board acts to terminate the Plan in accordance
with Section 18 above.
-7-
<PAGE> 8
(d) The date when all of the Shares that were reserved for
issuance hereunder have been purchased.
23.2 Upon termination of the Plan, the Company shall refund to each
Participant the balance of each Participant's Account.
24. Limitations on Sale of Shares Purchased Under the Plan. The Plan is
intended to provide Shares for investment and not for resale. The Company,
however, does not intend to restrict or influence the conduct of any employee's
affairs. Consequently, an employee may sell Shares that are purchased under the
Plan at any time, subject to compliance with any applicable federal or state
securities laws. THE EMPLOYEE ASSUMES THE RISK OF ANY MARKET FLUCTUATIONS IN THE
PRICE OF THE SHARES.
25. Governmental Regulation. The Company's obligation to sell and
deliver Shares under this Plan is subject to any governmental approval that is
required in connection with the authorization, issuance, or sale of such Shares.
26. No Employment Rights. The Plan does not create, directly or
indirectly, any right for the benefit of any employee or class of employees to
purchase any Shares under the Plan, or create in any employee or class of
employees any right with respect to continuation of employment by the Company,
and it shall not be deemed to interfere in any way with the Company's right to
terminate, or otherwise modify, an employee's employment at any time.
27. Governing Law. The law of the state of Washington shall govern all
matters that relate to this Plan except to the extent it is superseded by the
laws of the United States.
28. Savings Clause. It is intended that this Plan conform to Section 423
of the Code, all regulations promulgated thereunder and all rules adopted with
respect thereto. Any provision of this Plan that does not conform to such Code
section, regulations and rules, or is in violation thereof, shall be of no force
or effect.
-8-
<PAGE> 1
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 Employee
Stock Purchase 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
