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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)
2000 EXECUTIVE RESTRICTED STOCK 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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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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<S> <C> <C> <C> <C>
Common Stock,
$.001 per share 200,000 shares $ 144.625 $28,925,000 $ 7,636
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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.
(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.
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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 Executive Restricted Stock Plan (the "Plan").
VoiceStream Holding adopted the 2000 Executive Restricted Stock 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 superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this registration statement.
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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 Wireless Corporation.
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
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EXHIBIT DESCRIPTION
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<S> <C> <C>
4.1 -- VoiceStream Wireless Corporation 2000 Executive Restricted Stock 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.
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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> <C>
4.1 -- VoiceStream Wireless Corporation 2000 Executive Restricted Stock
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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VOICESTREAM WIRELESS CORPORATION
2000 EXECUTIVE RESTRICTED STOCK PLAN
ADOPTED BY THE BOARD: APRIL 8, 1999
ADOPTED BY THE SHAREHOLDERS: APRIL 8, 1999
TERM: MAY 3, 1999 TO APRIL 30, 2009
1. PURPOSE.
This Executive Restricted Stock Plan (this "Plan") allows VoiceStream
Wireless Corporation (the "Company") to grant stock bonuses or sell stock to its
key officers, and is intended to promote the interests of the Company and its
shareholders by aligning the interests of the Company executives with Company
shareholders. The stock to be issued pursuant to this Plan will be Restricted
Stock, as defined in 3 below, and as such will be subject to certain
restrictions, described herein, that are imposed to promote the purposes hereof.
2. ADOPTION AND ADMINISTRATION OF PLAN.
This Plan shall become effective as of May 3, 1999 and shall remain in
effect until April 30, 2009 unless sooner terminated as herein provided.
This Plan shall be administered by the Company's Board of Directors (the
"Board"), provided that the Board may delegate its administrative
responsibilities hereunder to a committee of not less than three directors who
shall administer this Plan in the name of the Board (the "Committee"). As used
hereafter herein, the term "Committee" shall refer to the Board if no Committee
then exists or is then designated. So long as the Company is a reporting company
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), each
member of the Committee who participates in administration must be a
"Non-Employee Director" as that term is defined in Rule 16b(3) promulgated by
the Securities and Exchange Commission pursuant to the Exchange Act. All members
of the Committee shall also be "outside directors" within the meaning of section
162(m) ("Section 162(m)") of the Internal Revenue Code of 1986, as amended. The
Committee shall have full power and authority to (i) administer and interpret
this Plan, (ii) make all grants, offers, bonuses, and awards hereunder and (iii)
adopt, from time to time, such guidelines, rules, regulations, agreements, and
instruments for the administration of this Plan as the Committee deems necessary
or advisable. Such powers include, but are not limited to (subject to the
specific limitations described herein), authority to determine the employees to
be issued Restricted Stock under this Plan, to determine the size, type, and
applicable restrictions, performance criteria, terms and conditions of issuances
to be made to such employees, to determine a time when issuances will occur, and
to authorize issuances to eligible employees. The Committee shall have absolute
discretion in any determination of whether any particular performance goal in
any grant has been achieved or restriction has lapsed. The Committee shall
prepare guidelines for notification to holders of Restricted Stock with
performance based restrictions as to whether any such performance criteria have
been met, and upon determination that the criteria have been met the Committee
shall have the obligation to deliver written confirmation of the same to each
holder of Restricted Stock within 30 days following achievement of the
performance goal. The Committee shall also establish a mechanism to allow the
removal of restrictive legends promptly after the achievement of the applicable
performance criteria.
The Committee's interpretations of this Plan, and all actions taken and
determinations made by the Committee concerning any matter arising under or with
respect to this Plan or any issuances of Restricted Stock pursuant to this Plan,
shall be final, binding, and conclusive on all interested parties, including the
Company, its shareholders, and all former, present, and future employees of the
Company. At such time as the Company is not subject to the reporting
requirements of the Exchange Act, the Committee may delegate some or all of its
power and authority hereunder to the Chairman or Chief
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Executive Officer of the Company, such delegation to be subject to such terms
and conditions as the Committee in its discretion shall determine. Such
delegation of authority may be contained in guidelines, rules, and regulations
adopted by the Board from time to time with respect to this Plan. The Committee
may, as to questions of accounting, rely conclusively upon any determinations
made by independent public accountants of the Company.
3. STOCK SUBJECT TO PLAN.
There is hereby established a reserve (the "Reserve"), out of the
Company's authorized but unissued stock, of 200,000 shares of the Company's
Common Stock, no par value per share (the "Restricted Stock"), for issuance
under this Plan. As grants, offers, bonuses and awards are made, the Reserve
shall be reduced by the number of shares of Restricted Stock issued. Any shares
of Restricted Stock that are forfeited by the holder shall be added back to the
Reserve. Any shares with respect to which restrictions have lapsed shall not be
eligible to be added back to the Reserve. If the shares of Common Stock of the
Company should, as a result of a stock split, stock dividend, combination of
shares, or any other change or exchange for other securities by
reclassification, reorganization, redesignation, merger, consolidation,
recapitalization or otherwise, be increased or decreased or changed into, or
exchanged for, a different number or kind of shares of stock or other securities
of the Company or of another corporation, the number of shares of Restricted
Stock then remaining in the Reserve shall be appropriately adjusted to reflect
such action. If any such adjustment shall result in a fractional share, such
fraction shall be disregarded. Upon the issuance of shares of Restricted Stock
pursuant to this Plan, the Reserve will be reduced by the number of shares
issued. Notwithstanding any other provision hereof, no single employee may at
any single time receive a grant, offer, bonus, or award of Restricted Stock in
excess of 33.33 percent of the shares of Restricted Stock remaining at such time
in the Reserve.
4. ELIGIBILITY.
The Committee will designate, from time to time, key executives of the
Company or any of its subsidiaries, parents or affiliates (including officers
and directors of the Company), engaged in activities which further the Company's
objectives, who will be eligible to obtain shares under this Plan and the number
of shares of Restricted Stock of the Company to be issued to each. In selecting
the persons to whom offers to obtain shares hereunder will be made and in
determining the number of shares to be offered, the Committee will consider the
position and responsibilities of such persons, the value of their services to
the Company or its subsidiaries, and such other factors as the Committee deems
pertinent.
5. RIGHTS TO RESTRICTED STOCK.
(a) Restricted Stock Offers. After the Committee has determined to offer
a person the right to obtain Restricted Stock under this Plan, it will advise
the offeree in writing of the offer's terms, including the number of shares
which such person will be entitled to obtain, the price per share, if any, and
any other terms, conditions, and restrictions relating thereto (the "Restricted
Stock Offer"). This notice will also provide that such person has 15 days from
the date of the Restricted Stock Offer to accept the offer in the manner set
forth in the Restricted Stock Offer. The form by which the Restricted Stock
Offer will be established by the Committee, and the same may be amended from
time-to-time at the discretion of the Committee. The Committee may also, in the
exercise of its discretion, extend the Restricted Stock Offer's acceptance or
effective term. Subject to this Plan's express provisions, the Committee may
make any such Restricted Stock Offer subject to any terms and conditions it
establishes, and the Restricted Stock Offers made to different persons, or to
the same person at different times, may be subject to terms, conditions and
restrictions which differ from each other.
(b) Special Performance Awards. In connection with any Restricted Stock
Offer to any one of the five most highly compensated officers of the Company, in
order to comply with limitations imposed by
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Section 162(m) while retaining the flexibility to ensure that executive
compensation is tied to performance and reward executives consistent with the
Company's compensation philosophy, all or part of the shares covered by a
Restricted Stock Offer may be designated as a Special Performance Award, as to
which the restrictions on shares so designated shall only be removed and the
shares shall only become freely tradable by the holder thereof if certain
pre-established performance goals are met during a specified performance period
as set by the Committee. Restrictions on shares subject to a Special Performance
Award granted to any individual whose compensation from the company is covered
by Section 162(m) of the Code shall be removed only after the Committee
certifies in writing that the performance goals have been met.
The Committee shall establish Performance Periods of any duration or
with respect to any criteria, which may overlap and which may differ for each
executive, but shall not exceed ten years. Prior to the end of 90 days following
the commencement of each Performance Period, the Committee shall establish
specific and objective performance goals for the Performance Period and a
specific formula in connection with such performance goals for the removal of
restrictions. The performance goals shall be based on one of more of the
following performance measures, or other specific measures determined from time
to time by the Committee: growth; financial results; and quality, productivity
and efficiency.
(i) Growth shall be measured in terms of increases one or more of the
following: number of license areas served, number of subscribers, and revenue.
Customer growth shall be measured in terms of one or more of the following:
number of new customers; number of net new customers; revenue per new customer;
and level of customer churn.
(ii) Financial results shall be measured in terms of one or more of the
following relating to the Company as a whole or a particular operating unit:
operating cash flow; free cash flow; cash operating income (Earnings Before
Interest, Taxes, Depreciation and Amortization ("EBITDA")); net income; earnings
per share; total stockholder return; and relative stockholder return.
(iii) Quality, productivity and efficiency shall be measured in terms of
one or more of the following: customer and employee satisfaction; quantitative
measures of system and customer service performance; and the cost of acquiring
and cost of serving customers.
6. TERMS OF RESTRICTED STOCK OFFERS.
(a) Price. The Committee will determine if there is to be a purchase
price of the shares being offered under this Plan, and if so shall set the
price. If there is no purchase price, the Restricted Stock Offer will be treated
as a Restricted Stock bonus. Whether or not there is a purchase price, the
offeree must accept the offer in a timely manner to receive the offered
Restricted Stock. The purchase price, if any, must be paid in full, in cash or
certified or bank check, at the Company's principal office before the offer
expires, for the Restricted Stock Offer's acceptance to be effective. The date
upon which the Restricted Stock Offer is finally accepted and the purchase
price, if any, is paid is sometimes hereinafter called the "Closing Date."
(b) Restrictions. By accepting the Restricted Stock under this Plan
being offered to him or her, an offeree agrees and consents to all terms,
conditions, and restrictions contained in the Restricted Stock Offer and to the
following (unless the Restricted Stock Offer by its terms indicates the
following shall not apply):
(i) Any transfer or purported transfer made by a purchaser of
shares under this Plan, except at the times and in the manner specified herein
and in the Restricted Stock Offer, will be null and void and the Company shall
not recognize or give effect to such transfer on its books and records or
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recognize the person or persons to whom such proposed transfer has been made as
the legal or beneficial holder of those shares.
(ii) Notwithstanding anything in this Plan to the contrary, upon
the death of a holder of shares of Restricted Stock subject to this Plan, such
shares may be conveyed by will or by the laws of descent and distribution,
subject to the provisions of this Plan and to applicable provisions of any other
Agreement by which the Company may be bound. Any successor in interest to the
holder in such event may not further convey, transfer, encumber or otherwise
dispose of such shares except as provided herein.
(iii) Certificates representing shares which are subject to this
Plan will bear the following legend, in addition to such other legends as
counsel to the Company may deem appropriate:
RESTRICTED SHARES
"The shares represented by this certificate are
restricted and subject to (i) all terms, conditions,
and restrictions of the VoiceStream Wireless
Corporation Executive Restricted Stock Plan, and (ii)
the terms of the Restricted Stock Offer pursuant to
which the shares represented hereby were originally
issued, copies of which are on file and available for
inspection during normal business hours at the
principal offices of VoiceStream Wireless Corporation."
7. EVENTS OF RESALE.
If any of the following events ("Events of Resale") occurs or, having
occurred, continues in effect, on or before the date all restrictions in this
Plan or in the Restricted Stock Offer have lapsed with respect to particular
shares of Restricted Stock, the holder will sell to the Company and the Company
will purchase from the holder all the Restricted Stock obtained by the holder
under this Plan that remains subject to such restrictions. With respect to any
shares of Restricted Stock to which the restrictions herein or in the Restricted
Stock Offer no longer apply, this provision shall not apply. The price per share
in the case of Restricted Stock subject hereto shall equal the original price
paid by the holder for such shares, and if there is no purchase price, then
without payment therefore:
(a) if the employment of the offeree by the Company or its subsidiaries
is terminated other than by reason of the offeree's death or permanent and total
disability (as defined in the Company's 1999 Management Incentive Stock Option
Plan);
(b) if an offeree who is not an employee, having been nominated as a
director of the Company, fails or refuses to stand for election or, if elected,
to serve as such or resigns as a director; or
(c) if the offeree receives shares of Restricted Stock subject to any
other Event of Resale in the Restricted Stock Offer, and such Event of Resale
Occurs.
Within 30 days after such an occurrence, the Company, by notice to the
holder, will state that an Event of Resale has occurred and will specify a date
not less than five, and not more than ten, days from the date of such notice to
consummate the purchase and sale of such shares at the Company's principal
office. At the closing, the holder will deliver to the Company certificates
representing all of the shares purchased hereunder, and duly endorsed with all
necessary transfer stamps affixed. Upon the receipt of such share certificates,
the Company will deliver to the holder a check in the amount of the purchase
price, if any. If the holder fails to deliver the share certificates to the
Company at the closing, the Company may deposit the purchase price, if any, with
the Secretary of the Company, and thereafter the
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shares will be deemed to have been transferred to the Company and the holder,
despite the holder's failure to deliver the share certificates, will have no
further rights derived from such shares as a stockholder of the Company. In this
event, the Secretary of the Company will continue to hold the purchase price, if
any, for such shares and will make payment thereof, without interest, upon
delivery of the share certificates to the Company, accompanied by the
appropriate endorsements.
8. EXPENSES.
The Company will pay all expenses and costs in connection with the
administration of this Plan.
9. NO PRIOR RIGHT OF OFFER.
Nothing in this Plan will be deemed to give any director, officer, or
employee, or such individual's legal representatives or assigns, or any other
person or entity claiming under or through such individual, any contractual or
other right to participate in the benefits of this Plan.
10. INDEMNIFICATION OF THE COMMITTEE.
In addition to such other rights or indemnification as they may have,
the Company will indemnify members of the Committee against all costs and
expenses reasonably incurred by them or any of them in connection with: any
action, suit, or proceeding to which they or any of them may be a party by
reason of any action taken, or failure to act, under or in connection with this
Plan or any award granted pursuant thereto and against all amounts paid by them
in settlement thereof (provided such settlement is approved by legal counsel
selected by the Company) or paid by them in satisfaction of a judgment in any
action, suit or proceeding; provided that upon institution of any such action,
suit, or proceeding, the person desiring indemnification gives the Company an
opportunity, at its own expense, to handle and defend the same.
11. AMENDMENT AND TERMINATION OF PLAN; AMENDMENT OF TERMS OF GRANTS
The Board may at any time terminate or extend this Plan, or modify this
Plan as it deems advisable; provided, that any amendment or extension required
by Section 162(m) to be approved by the Shareholders shall be effective subject
to such approval within twelve months of adoption by the Board. No termination
or amendment of this Plan shall, without the consent of any person affected
thereby, modify or in any way affect any right or obligation created prior to
such termination or amendment. The Board may amend the terms and conditions of
outstanding Restricted Stock Offers or Restricted Stock, provided, however, that
(i) no such amendment would be adverse to the holders thereof, and (ii) the
amended terms would be permitted under this Plan.
Subject to the provisions of Section 162(m) as applicable, in the event
of (i) any change in the business or condition of the Company, including any
change in connection with mergers, reorganizations, separations, or other
transactions to which Section 424(a) of the Code would apply if applicable, or
(ii) in the event of any changed circumstances in the duties and/or
responsibilities of any employee holding Restricted Stock when restrictions are
specific to performance of duties or responsibilities that have changed, the
Committee shall have discretion as to adjustment or removal of any or all
restrictions of any Restricted Stock, and in the event thereof any adjustments
by the Committee of restrictions shall attempt to as closely as possible
establish restrictions that have the same intent and effect as the original
performance based restrictions.
12. LIABILITY OF COMPANY.
The Company's liability under this Plan and any sale made hereunder is
limited to the obligations set forth with respect to such sale and nothing in
this Plan will be construed to impose any liability on the
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Company in favor of the purchaser with respect to any loss, cost, or expense
which the purchaser may incur in connection with, or arising out of, any
transaction in connection therewith.
13. NO AGREEMENT TO EMPLOY.
Nothing in this Plan will be construed to constitute, or evidence, an
agreement or understanding, express or implied, by the Company to employ or
retain the purchaser for any specific period of time.
14. PURCHASE AGREEMENT.
Any Restricted Stock Offer made hereunder, as accepted, may be embodied
in a Restricted Stock Agreement containing such terms and conditions, not
inconsistent with this Plan, as will, in the opinion of the Committee and
counsel for the Company, be necessary or desirable to protect the Company. For
all purposes thereafter, the Restricted Stock Agreement will be the Restricted
Stock Offer as referenced herein.
15. FEDERAL INCOME TAX CONSEQUENCES.
The federal income tax consequences of a person's acquisition of
Restricted Stock pursuant to this Plan are complex and subject to change. The
following discussion, which has been prepared by the law firm of Preston Gates &
Ellis LLP, counsel to the Company, is only a summary of the general rules
applicable at the time of adoption of this Plan by the Board to the acquisition
of stock subject to restrictions that are linked to the continued performance of
services. It is based on the Internal Revenue Code of 1986, as amended (the
"Code), the Regulations promulgated thereunder, and judicial and administrative
interpretations thereof, all as currently in effect. These laws, Regulations and
interpretations are subject to change, potentially retroactively. Further, a
person's particular situation may be such that some variation of these general
rules would apply. ACCORDINGLY, IT IS STRONGLY RECOMMENDED THAT EACH PERSON WHO
MAY RECEIVE RESTRICTED STOCK PURSUANT TO THIS PLAN CONSULT WITH HIS OR HER OWN
TAX ADVISOR REGARDING THE IMPLICATIONS OF THE RECEIPT OF RESTRICTED STOCK AND
THE FILING OF A SECTION 83(b) ELECTION.
Generally, a person who receives Restricted Stock who is an employee,
officer or director of the Company, or otherwise provides services to the
Company (a "Restricted Stock Holder") will be treated as receiving stock that is
subject to a "substantial risk of forfeiture" for federal income tax purposes.
This is because the Restricted Stock is subject to redemption by the Company if
a Restricted Stock Holder's employment terminates under certain circumstances
and may be unsaleable by the Restricted Stock Holder unless certain other events
occur, such as the achievement of particular personal or Company performance
goals. As a result, a Restricted Stock Holder will not be subject to tax, as a
general matter, on his or her acquisition of the Restricted Stock but will be
subject to federal income tax at such time as such Restricted Stock vests (i.e.,
is, in whole or in part, no longer subject to a redemption right on the part of
the Company or the other restrictions on sale). At that time, a Restricted Stock
Holder will recognize ordinary compensation income per share in an amount equal
to the difference between what he or she paid for the share of Restricted Stock
and the value of such share at such later time. Such compensation income is
subject to federal income tax withholding as well as to Social Security (FICA)
taxes and unemployment taxes.
If a Restricted Stock Holder makes an election under Section 83(b) of
the Code, however, a different result will apply. If this election is properly
filed, then an acquired share of Restricted Stock will no longer be treated as
property subject to a "substantial risk of forfeiture" for federal income tax
purposes. As a result, a Restricted Stock Holder will recognize as compensation
income at the time of receipt of the Restricted Stock any excess of the value of
the Restricted Stock over the amount paid for such Restricted Stock. If the
election is properly made, any gain subsequently realized on a sale of
6
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Restricted Stock shares would constitute capital gain, not subject to federal
income tax withholding, FICA taxes or unemployment taxes. If an Event of Resale
takes place and if an amount is included in the income of the Restricted Stock
Holder as a result of a Section 83(b) election, the Restricted Stock Holder will
not recognize a loss on the resale of the Restricted Stock to the Company (even
though an amount was included in the income of the Restricted Stock Holders as a
result of the Section 83(b) election).
AN ELECTION UNDER SECTION 83(b) OF THE CODE MUST BE FILED WITH THE
INTERNAL REVENUE SERVICE AND DELIVERED TO THE EMPLOYER OF THE RESTRICTED STOCK
HOLDER WITHIN THIRTY (30) DAYS AFTER THE DATE ON WHICH A RESTRICTED STOCK HOLDER
RECEIVES THE APPLICABLE RESTRICTED STOCK. A FORM OF A SECTION 83(b) ELECTION IS
AVAILABLE FROM THE COMPANY'S SECRETARY.
16. NOTICES.
Any notice or other communication required or permitted to be made or
given hereunder will be sufficiently made or given if sent by certified mail or
other personal delivery service addressed to the offeree or holder at such
individual's address as set forth in the Company's regular books and records
and, if to the Company, addressed to it at its principal office.
7
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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 2000 Executive
Restricted Stock 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
