As filed with the Securities and Exchange Commission
on May 22, 1996
Registration No. 333-_____
=================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________________
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
_________________________
HEARTLAND WIRELESS COMMUNICATIONS, INC.
(Exact name of Registrant as specified in its charter)
Delaware 73-1435149
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
903 N. Bowser, Suite 140 75081
Richardson, Texas (Zip Code)
(Address of Principal Executive Offices)
_________________________
HEARTLAND WIRELESS COMMUNICATIONS, INC.
1994 EMPLOYEE STOCK OPTION PLAN
(Full title of the plan)
_________________________
JOHN R. BAILEY, ESQ. Copy to:
Senior Vice President - Finance VICTOR B. ZANETTI, ESQ.
Chief Financial Officer, Arter & Hadden
Treasurer and Secretary 1717 Main St., Suite 4100
HEARTLAND WIRELESS COMMUNICATIONS, INC. Dallas, Texas 75201-4605
903 N. Bowser, Suite 140 (214) 761-2100
Richardson, Texas 75081
(214) 479-9244
(Name, address and telephone
number, including area code,
of agent for service)
_________________________
CALCULATION OF REGISTRATION FEE
=================================================================
<TABLE>
<CAPTION>
Proposed Maximum Proposed Maximum
Title of Securities to be Amount to be Offering Price Per Aggregate Offering Amount of Registration
Registered Registered(1) Share(2) Price(2) Fee(3)
- ------------------------- ------------- ------------------ ------------------ ----------------------
<S> <C> <C> <C> <C>
Common Stock 1,000,000 Shares $26.125 $26,125,000 $9009
($.001 par value)
=================================================================
<FN>
(1) The securities to be registered represent additional
shares reserved for issuance under the Heartland Wireless
Communications, Inc. 1994 Employee Stock Option Plan (the "Plan").
Pursuant to Rule 416, shares of Common Stock of the Company
issuable pursuant to the exercise of options granted or to be
granted under the Plan in order to prevent dilution resulting from
any future stock split, stock dividend or similar transaction are
also being registered hereunder.
(2) Estimated solely for the purpose of calculating the
registration fee based upon closing sales prices per share of
Common Stock on the Nasdaq Stock Market's National Market on May
20, 1996, in accordance with Rules 457(c) and (h) and General
Instruction E to Form S-8.
(3) Relates only to additional shares registered hereby and
does not include the amount of the registration fee previously paid
in connection with the 950,000 shares previously registered by that
Registration Statement on Form S-8 filed with the Commission on
April 13, 1995 (SEC Reg. No. 33-91186).
</FN>
</TABLE>
<PAGE>
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
The contents of the Registration Statement on Form S-8, SEC
File No. 33-91186, filed with the Securities and Exchange
Commission on April 13, 1995 (the "Original Registration
Statement") are incorporated herein by reference.
The only information and documents required in this
Registration Statement that was not included in the Original
Registration Statement are the additional Exhibits included in
"Item 8. Exhibits" below.
Item 8. Exhibits
(a) Exhibits.
Exhibit Description
4.1 Heartland Wireless Communications, Inc. 1994
Employee Stock Option Plan, as amended (filed
herewith)
5.1 Opinion of Arter & Hadden (filed herewith)
23.1 Consent of Arter & Hadden (included in their
opinion filed as Exhibit 5.1) (filed herewith)
23.2 Consent of KPMG Peat Marwick LLP (filed herewith)
23.3 Consent of Arthur Andersen LLP (filed herewith)
23.4 Consent of Coopers & Lybrand L.L.P. (filed herewith)
II-1
<PAGE>
SIGNATURES
The Registrant. Pursuant to the requirements of the
Securities Act of 1933, as amended (the "Securities Act"), 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
Richardson, State of Texas, on May 21, 1996.
HEARTLAND WIRELESS
COMMUNICATIONS, INC.
By: /s/ John R. Bailey
John R. Bailey
Senior Vice President-
Finance, Chief Financial
Officer, Treasurer and
Secretary
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed by the following persons in
the capacities and on the dates indicated:
Signatures Title Date
/s/ J. R. Holland, Jr. Chairman of the Board May 21, 1996
J.R. Holland, Jr. and Director
/s/ David E. Webb President, Chief Executive May 21, 1996
David E. Webb Officer and Director
(Principal Executive Officer)
/s/ John R. Bailey Senior Vice President - May 21, 1996
John R. Bailey Finance, Chief Financial
Officer, Treasurer
and Secretary
(Principal Financial Officer)
/s/ David D. Hagey Vice President and Controller May 21, 1996
David D. Hagey (Principal Accounting Officer)
/s/ Alvin H. Lane, Jr. Director May 21, 1996
Alvin H. Lane, Jr.
/s/ Dennis M. O'Rourke Director May 21, 1996
Dennis M. O'Rourke
/s/ John A. Sprague Director May 21, 1996
John A. Sprague
II-2
<PAGE>
______________________ Director May __, 1996
Wes W. Watkins
/s/ L. Allen Wheeler Director May 21, 1996
L. Allen Wheeler
II-3
<PAGE>
INDEX TO EXHIBITS
Exhibit No. Description of Exhibit
4.1 Heartland Wireless Communications, Inc. 1994
Employee Stock Option Plan, as amended (filed
herewith)
5.1 Opinion of Arter & Hadden (filed herewith)
23.1 Consent of Arter & Hadden (included in their
opinion filed as Exhibit 5.1) (filed herewith)
23.2 Consent of KPMG Peat Marwick LLP (filed
herewith)
23.3 Consent of Arthur Andersen LLP (filed herewith)
23.4 Consent of Coopers & Lybrand L.L.P. (filed
herewith)
<PAGE>
Exhibit 4.1
HEARTLAND WIRELESS COMMUNICATIONS, INC.
1994 EMPLOYEE STOCK OPTION PLAN
1. PURPOSE OF THE PLAN.
The purpose of the HEARTLAND WIRELESS COMMUNICATIONS,
INC. 1994 EMPLOYEE STOCK OPTION PLAN (the "Plan") is (i) to further
the growth and success of Heartland Wireless Communications, Inc.,
a Delaware corporation (the "Company"), and its Subsidiaries (as
hereinafter defined) by enabling officers and employees of the
Company and any of its Subsidiaries to acquire shares of Common
Stock, $.001 par value (the "Common Stock"), of the Company,
thereby increasing their personal interest in such growth and
success, and (ii) to provide a means of rewarding outstanding
performance by such persons to the Company and/or its Subsidiaries.
Options granted under the Plan may be either "incentive stock
options" ("ISOs"), intended to qualify as such under the provisions
of Section 422 of the Internal Revenue Code of 1986, as amended
(the "Code"), or nonqualified stock options ("NSOs"). For purposes
of the Plan, the terms "Parent" and "Subsidiary" shall mean "Parent
Corporation" and "Subsidiary Corporation", respectively, as such
terms are defined in Sections 424(e) and (f) of the Code. Unless
the con text otherwise requires, any ISO or NSO shall hereinafter
be referred to as an "Option".
2. ADMINISTRATION OF THE PLAN.
a. Stock Option Committee.
So long as the Plan shall be required to comply with Rule
16b-3 ("Rule 16b-3") promulgated by the Securities and Exchange
Commission (the "SEC") under the Securities Exchange Act of 1934,
as amended (the "1934 Act"), in order to permit transactions
pursuant to the Plan by officers and employee directors of the
Company to be exempt from the provisions of Section 16(b) of the
1934 Act, the Plan shall be administered by a committee (the
"Committee") consisting of two or more directors appointed to such
Committee from time to time by the Board of Directors of the
Company (the "Board"), and each member of the Committee, at the
effective date of his or her appointment to the Committee, shall be
a "disinterested person" within the meaning of Rule 16b-3. The
members of the Committee may be removed at any time either with or
without cause by the Board. Any vacancy on the Committee, whether
due to action of the Board or any other cause, shall be filled by
the Board. The term "Committee" shall, for all purposes of the
Plan other than this Section 2, be deemed to refer to the Board if
the Board is administering the Plan.
b. Procedures.
The Committee shall from time to time select a Chairman
from among its members and shall adopt such rules and regulations
as it shall deem appropriate concerning the holding of meetings and
the administration of the Plan. A majority of the entire Committee
shall constitute a quorum and the actions of a majority of the
members of the Committee present at a meeting at which a quorum is
present, or actions approved in writing by all of the members
1
<PAGE>
of the Committee, shall be the actions of the Committee; provided,
however, that if the Committee consists of only two members, both
shall be required to constitute a quorum and to act at a meeting or
to approve actions in writing.
c. Interpretation.
Except as otherwise expressly provided in the Plan, the
Committee shall have all powers with respect to the administration
of the Plan, including, without limitation, full power and
authority to interpret the provisions of the Plan and any Option
Agreement (as defined in Section 5.b.), and to resolve all
questions arising under the Plan. All decisions of the Board or
the Committee, as the case may be, shall be conclusive and binding
on all participants in the Plan.
3. SHARES OF STOCK SUBJECT TO THE PLAN.
a. Number of Shares.
Subject to the provisions of Section 9 (relating to
adjustments upon changes in capital structure and other corporate
transactions), the number of shares of Common Stock subject at any
one time to Options granted under the Plan, plus the number of
shares of Common Stock theretofore issued and delivered pursuant to
the exercise of Options granted under the Plan, shall not exceed
1,950,000 shares. If and to the extent that Options granted under
the Plan terminate, expire or are cancelled without having been
fully exercised, new Options may be granted under the Plan with
respect to the shares of Common Stock covered by the unexercised
portion of such terminated, expired or cancelled Options.
b. Character of Shares.
The shares of Common Stock issuable upon exercise of an
Option granted under the Plan shall be (i) authorized but unissued
shares of Common Stock, (ii) shares of Common Stock held in the
Company's treasury or (iii) a combination of the foregoing.
c. Reservation of Shares.
The number of shares of Common Stock reserved for
issuance under the Plan shall at no time be less than the maximum
number of shares which may be purchased at any time pursuant to
outstanding Options.
4. ELIGIBILITY.
a. General.
Options may be granted by the Committee under the Plan
only to persons who are officers or employees (including directors
who are officers or employees) of the Company or any of its
Subsidiaries. Options granted under the Plan shall be, in the
discretion of the Committee, either ISOs or NSOs. Notwithstanding
the foregoing, Options may be conditionally granted to persons who
are prospective employees of the Company or any of its
Subsidiaries;
2
<PAGE>
provided, however, that any such conditional grant of an ISO to a
prospective employee shall, by its terms, become effective no
earlier than the date on which such person actually becomes an
employee.
b. Exceptions.
Notwithstanding anything contained in Section 4.a. to the
contrary:
(i) no ISO may be granted under the Plan to an
employee who owns, directly or indirectly (within the meaning
of Sections 422(b)(6) and 424(d) of the Code), stock
possessing more than 10% of the total combined voting power of
all classes of stock of the Company or of its Parent or
Subsidiaries, if any, unless (A) the Option Price (as defined
in Section 6.a.) of the shares of Common Stock subject to such
ISO is fixed at not less than 110% of the Fair Market Value on
the date of grant (as determined in accordance with Section
6.b.) of such shares and (B) such ISO, by its terms, is not
exercisable after the expiration of five years from the date
it is granted;
(ii) no Option may be granted to a person (A) who
has been appointed pursuant to Section 2.a. to serve on the
Committee effective as of a future date at any time during the
period from the date such appointment is made to the date such
appointment is to become effective or (B) who is serving as a
member of the Committee; and
(iii) no Option may be granted to David E. Webb.
5. GRANT OF OPTIONS.
a. General.
Options may be granted under the Plan at any time and
from time to time on or prior to the Expiration Date (as defined in
Section 12). Subject to the provisions of the Plan, the Committee
shall have plenary authority, in its discretion, to determine:
(i) the persons (from among the class of persons
eligible to receive Options under the Plan) to whom Options
shall be granted (the "Optionees");
(ii) the time or times at which Options shall be
granted;
(iii) the number of shares subject to each Option;
(iv) the Option Price of the shares subject to each
Option, which price shall be not less than the minimum
specified in Section 4.b.(i) or 6.a. (as applicable); and
(v) the time or times when each Option shall become
exercisable and the duration of the exercise period.
3
<PAGE>
b. Option Agreements.
Each Option granted under the Plan shall be designated as
an ISO or an NSO and shall be subject to the terms and conditions
applicable to ISOs and/or NSOs (as the case may be) set forth in
the Plan. In addition, each Option shall be evidenced by a written
agreement (an "Option Agreement"), containing such terms and
conditions and in such form, not inconsistent with the Plan, as the
Committee shall, in its discretion, provide. Each Option Agreement
shall be executed by the Company and the Optionee.
c. No Evidence of Employment.
Nothing contained in the Plan or in any Option Agreement
shall confer upon any Optionee any right with respect to the
continuation of his or her employment by the Company or any of its
Subsidiaries or interfere in any way with the right of the Company
or any such Subsidiary (subject to the terms of any separate
agreement to the contrary), at any time to terminate such
employment or to increase or decrease the compensation of the
Optionee from the rate in existence at the time of the grant of an
Option.
d. Date of Grant.
The date of grant of an Option under this Plan shall be
the date as of which the Committee approves the grant; provided,
however, that in the case of an ISO, the date of grant shall in no
event be earlier than the date as of which the Optionee becomes an
employee of the Company or one of its Subsidiaries.
6. OPTION PRICE.
a. General.
Subject to Section 9, the price (the "Option Price") at
which each share of Common Stock subject to an Option granted under
the Plan may be purchased shall be determined by the Committee at
the time the Option is granted; provided, however, that in the case
of an ISO (subject to Section 4.b.(i)) or an NSO, such Option Price
shall in no event be less than 100% of the Fair Market Value on the
date of grant (as determined in accordance with Section 6.b.) of
such share of Common Stock.
b. Determination of Fair Market Value.
Subject to the requirements of Section 422 of the Code,
for purposes of the Plan, the "Fair Market Value" of shares of
Common Stock shall be equal to:
(i) if such shares are publicly traded, (x) the
closing price, if applicable, or the average of the last bid
and asked prices on the date of grant or, if lower, the
average of the daily closing prices (or the mean between the
last bid and asked prices for days on which no sales took
place) of the 30 business days immediately preceding the date
of grant, in the over-the-counter market as reported by
NASDAQ, or (y) if the Common Stock is then traded on a
national securities exchange, the average of the high
4
<PAGE>
and low prices on the date of grant or, if lower, the average
of the daily closing prices (or the mean between the last bid
and asked prices for days on which no sales took place) of the
30 business days immediately preceding the date of grant, on
the principal national securities exchange on which it is so
traded; or
(ii) if there is no public trading market for such
shares, the fair value of such shares on the date of grant as
determined by the Committee after taking into consideration
all factors which it deems appropriate, including, without
limitation, recent sale and offer prices of the Common Stock
in private transactions negotiated at arms' length.
Anything contained ln the Plan to the contrary
notwithstanding, all determinations pursuant to Section 6.b.(ii)
shall be made without regard to any restriction other than a
restriction which, by its terms, will never lapse.
c. Repricing of NSOs.
Subsequent to the date of grant of any NSO, the Committee
may, at its discretion and with the consent of the Optionee,
establish a new Option Price for such NSO so as to increase or
decrease the Option Price of such NSO.
7. EXERCISABILITY OF OPTIONS.
a. Committee Determination.
Each Option granted under the Plan shall be exercisable
at such time or times, or upon the occurrence of such event or
events, and for such number of shares subject to the Option, as
shall be determined by the Committee and set forth in the Option
Agreement evidencing such Option; provided, however, no Option
granted under the Plan shall be exercisable during the 180-day
period immediately following the effective date of the registration
statement filed by the Company under the Securities Act of 1933, as
amended (the "Securities Act"), in connection with the initial
public offering of the Common Stock. Subject to the proviso of the
immediately preceding sentence, if an Option is not at the time of
grant immediately exercisable, the Committee may (i) in the Option
Agreement evidencing such Option, provide for the acceleration of
the exercise date or dates of the subject Option upon the
occurrence of specified events and/or (ii) at any time prior to the
complete termination of such Option, accelerate the exercise date
or dates of such Option.
b. Automatic Termination of Option.
The unexercised portion of any Option granted under the
Plan shall automatically terminate and shall become null and void
and be of no further force or effect upon the first to occur of the
following:
(i) the seventh anniversary of the date on which
such Option is granted or, in the case of any ISO granted to
a person described in Section 4.b.(i), the fifth anniversary
of the date on which such ISO is granted;
4
<PAGE>
(ii) the expiration of such period of time or the
occurrence of such event as the Committee in its discretion
may provide in the Option Agreement;
(iii) the effective date of a Corporate Transaction
(as defined in Section 9.b.) to which Section 9.b.(ii)
(relating to assumptions and substitutions of Options) does
not apply; provided, however, that an Optionee's right to
exercise any Option outstanding prior to such effective date
shall in all events be suspended during the period commencing
10 days prior to the proposed effective date of such Corporate
Transaction and ending on either the actual effective date of
such Corporate Transaction or upon receipt of notice from the
Company that such Corporate Transaction will not in fact
occur; and
(iv) except to the extent permitted by Section
9.b.(ii), the date on which an Option or any part thereof or
right or privilege relating thereto is transferred (otherwise
than by will or the laws of descent and distribution),
assigned, pledged, hypothecated, attached or otherwise
disposed of by the Optionee.
Anything contained in the Plan to the contrary
notwithstanding, unless otherwise provided in an Option Agreement,
no Option granted under the Plan shall be affected by any change of
duties or position of the Optionee (including a transfer to or from
the Company or one of its Subsidiaries), so long as such Optionee
continues to be an officer or employee of the Company or one of its
Subsidiaries.
c. Limitations on Exercise.
Anything contained in the Plan to the contrary
notwithstanding, an ISO granted under the Plan to an Optionee shall
not be exercisable to the extent that the aggregate Fair Market
Value on the date of grant of such ISO (as determined in accordance
with Section 6.b.) of all stock with respect to which incentive
stock options are exercisable for the first time by such Optionee
during any calendar year (under all plans of the Company and its
Subsidiaries) exceeds $100,000.
8. PROCEDURE FOR EXERCISE.
a. Payment.
At the time an Option is granted under the Plan, the
Committee shall, in its discretion, specify one or more of the
following forms of payment which may be used by an Optionee upon
exercise of his Option:
(i) cash or personal or certified check payable to
the Company in an amount equal to the aggregate Option Price
of the shares with respect to which the Option is being
exercised;
(ii) stock certificates (in negotiable form)
representing shares of Common Stock having a Fair Market Value
on the date of exercise (as determined in accordance
6
<PAGE>
with Section 6.b. as if the date of exercise were the date of
grant) equal to the aggregate Option Price of the shares with
respect to which the Option is being exercised; or
(iii) a combination of the methods set forth in
clauses (i) and (ii).
b. Notice.
An Optionee (or other person, as provided in Section
10.b.) may exercise an Option granted under the Plan in whole or in
part (but for the purchase of whole shares only), as provided in
the Option Agreement evidencing his or her Option, by delivering a
written notice (the "Notice") to the Secretary of the Company. The
Notice shall:
(i) state that the Optionee elects to exercise the
Option;
(ii) state the number of shares with respect to
which the Option is being exercised (the "Optioned Shares");
(iii) state the method of payment for the Optioned
Shares (which method must be available to the Optionee under
the terms of his or her Option Agreement);
(iv) state the date upon which the Optionee desires
to consummate the purchase (which date must be prior to the
termination of such Option and no later than 30 days from the
delivery of such Notice);
(v) include any representations of the Optionee
required pursuant to Section 10.a.;
(vi) if the Option is exercised pursuant to Section
10.b. by any person other than the Optionee, include evidence
to the satisfaction of the Committee of the right of such
person to exercise the Option; and
(vii) include such further provisions consistent
with the Plan as the Committee may from time to time require.
The exercise date of an Option shall be the date on which
the Company receives the Notice from the Optionee.
Within 30 days of the exercise of the Option, the
Optionee shall deliver to the Company a copy of any election filed
by the Optionee with the Internal Revenue Service under Section
83(b) of the Code.
c. Issuance of Certificates.
The Company shall issue a stock certificate in the name
of the Optionee (or such other person exercising the Option in
accordance with the provisions of Section 10.b ) for the Optioned
Shares as soon as practicable after receipt of the Notice and
payment of the aggregate Option Price for such shares. Neither the
Optionee nor any person exercising an Option in
7
<PAGE>
accordance with the provisions of Section 10.b. shall have any
privileges as a stockholder of the Company with respect to any
shares of stock subject to an Option granted under the Plan until
the date of issuance of a stock certificate pursuant to this
Section 8.c.
9. ADJUSTMENTS.
a. Changes in Capital Structure.
Subject to Section 9.b., if the Common Stock is changed
by reason of a stock split, reverse stock split, stock dividend or
recapitalization, or converted into or exchanged for other
securities as a result of a merger, consolidation or
reorganization, the Committee shall make such adjustments in the
number and class of shares of stock with respect to which Options
may be granted under the Plan as shall be equitable and appropriate
in order to make such Options, as nearly as may be practicable,
equivalent to such Options immediately prior to such change. A
corresponding adjustment changing the number and class of shares
allocated to, and the Option Price of, each Option or portion
thereof outstanding at the time of such change shall likewise be
made. Anything contained in the Plan to the contrary
notwithstanding, in the case of ISOs, no adjustment under this
Section 9.a. shall be appropriate if such adjustment (i) would
constitute a modification, extension or renewal of such ISOs within
the meaning of Sections 422 and 424 of the Code, and the
regulations promulgated by the Treasury Department thereunder, or
(ii) would, under Section 422 of the Code and the regulations
promulgated by the Treasury Department thereunder, be considered
the adoption of a new plan requiring stockholder approval.
b. Corporate Transactions.
The following rules shall apply in connection with the
dissolution or liquidation of the Company, a reorganization, merger
or consolidation in which the Company is not the surviving
corporation, or a sale of all or substantially all of the assets of
the Company to another person or entity (a "Corporate
Transaction"):
(i) each holder of an Option outstanding at such
time shall be given (A) written notice of such Corporate
Transaction at least 20 days prior to its proposed effective
date (as specified in such notice) and (B) an opportunity,
during the period commencing with delivery of such notice and
ending 10 days prior to such proposed effective date, to
exercise the Option to the full extent to which such Option
would have been exercisable by the Optionee at the expiration
of such 20-day period; provided, however, that upon the
effective date of a Corporate Transaction, all Options granted
under the Plan not so exercised shall automatically terminate;
and
(ii) anything contained in the Plan to the contrary
notwithstanding, Section 9.b.(i) shall not be applicable if
provision shall be made in connection with such Corporate
Transaction for the assumption of outstanding Options by, or
the substitution for such Options of new options covering the
stock of, the surviving, successor or purchasing corporation,
or a parent or subsidiary thereof, with appropriate
adjustments as to the number, kind and option prices of shares
subject to such options; provided, however, that in the case
of ISOs, the Committee shall, to the extent not inconsistent
8
<PAGE>
with the best interests of the Company or its Subsidiaries
(such best interests to be determined in good faith by the
Committee in its sole discretion), use its best efforts to
ensure that any such assumption or substitution will not
constitute a modification, extension or renewal of the ISOs
within the meaning of Section 424(h) of the Code and the
regulations promulgated by the Treasury Department thereunder.
c. Special Rules.
The following rules shall apply in connection with
Section 9.a. and b. above:
(i) no fractional shares shall be issued as a
result of any such adjustment, and any fractional shares
resulting from the computations pursuant to Section 9.a. or b.
shall be eliminated without consideration from the respective
Options;
(ii) no adjustment shall be made for cash dividends
or the issuance to stockholders of rights to subscribe for
additional shares of Common Stock or other securities; and
(iii) any adjustments referred to in Section 9.a.
or b. shall be made by the Committee in its sole discretion
and shall be conclusive and binding on all persons holding
Options granted under the Plan.
10. RESTRICTIONS ON OPTIONS AND OPTIONED SHARES.
a. Compliance With Securities Laws.
No Options shall be granted under the Plan, and no shares
of Common Stock shall be issued and delivered upon the exercise of
Options granted under the Plan, unless and until the Company and/or
the Optionee shall have complied with all applicable Federal or
state registration, listing and/or qualification requirements and
all other requirements of law or of any regulatory agencies having
jurisdiction.
The Committee in its discretion may, as a condition to
the exercise of any Option granted under the Plan, require an
Optionee (i) to represent in writing that the shares of Common
Stock received upon exercise of an Option are being acquired for
investment and not with a view to distribution and (ii) to make
such other representations and warranties as are deemed appropriate
by counsel to the Company. Stock certificates representing shares
of Common Stock acquired upon the exercise of Options that have not
been registered under the Securities Act shall, if required by the
Committee, bear the following legend:
9
<PAGE>
"THE SHARES REPRESENTED BY THIS CERTIFICATE
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933. THE SHARES HAVE BEEN ACQUIRED
FOR INVESTMENT AND MAY NOT BE PLEDGED,
HYPOTHECATED, SOLD OR TRANSFERRED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
FOR THE SHARES UNDER THE SECURITIES ACT OF
1933 OR AN OPINION OF COUNSEL TO THE COMPANY
THAT REGISTRATION IS NOT REQUIRED UNDER SAID
ACT."
b. Nonassignability of Option Rights.
No Option granted under this Plan shall be assignable or
otherwise transferable by the Optionee except by will or by the
laws of descent and distribution. An Option may be exercised
during the lifetime of the Optionee only by the Optionee. If an
Optionee dies, his or her Option shall thereafter be exercisable,
during the period specified in the Option Agreement, by his or her
executors or administrators to the full extent to which such Option
was exercisable by the Optionee at the time of his or her death.
11. EFFECTIVE DATE OF PLAN.
This Plan shall become effective on the date (the
"Effective Date") of the consummation of the initial public
offering of the Common Stock; provided, however, that no Option
shall be exercisable by an Optionee unless and until the Plan shall
have been approved by the stockholders of the Company in accordance
with the provisions of its Certificate of Incorporation and Bylaws,
which approval shall be obtained within 12 months before or after
the adoption of the Plan by the Board.
12. EXPIRATION AND TERMINATION OF THE PLAN.
Except with respect to Options then outstanding, the Plan
shall expire on the date (the "Expiration Date") which is the first
to occur of (i) the tenth anniversary of the Effective Date, (ii)
the tenth anniversary of the date on which the Plan is approved by
the stockholders of the Company and (iii) the date as of which the
Board, in its sole discretion, determines that the Plan shall
terminate. Any Options outstanding as of the Expiration Date shall
remain in effect until they have been exercised or terminated or
have expired by their respective terms.
13. AMENDMENT OF PLAN.
The Board may at any time prior to the Expiration Date
modify and amend the Plan in any respect; provided, however, that
the approval of the holders of a majority of the votes that may be
cast by all of the holders of shares of Common Stock and preferred
stock of the Company, if any, entitled to vote (voting as a single
class) shall be obtained prior to any such amendment becoming
effective if such approval is required by law or is necessary to
comply with regulations promulgated by the SEC under Section 16(b)
of the 1934 Act or with Section 422 of the Code or the regulations
promulgated by the Treasury Department thereunder.
10
<PAGE>
14. CAPTIONS.
The use of captions in this Plan is for convenience. The
captions are not intended to provide substantive rights.
15. DISQUALIFYING DISPOSITIONS.
If Optioned Shares acquired by exercise of an ISO granted
under this Plan are disposed of within two years following the date
of grant of the ISO or one year following the transfer of the
Optioned Shares to the Optionee (a "Disqualifying Disposition"),
the holder of the Optioned Shares shall, immediately prior to such
Disqualifying Disposition, notify the Company in writing of the
date and terms of such Disqualifying Disposition and provide such
other information regarding the Disqualifying Disposition as the
Company may reasonably require.
16. WITHHOLDING TAXES.
Whenever under the Plan shares of Common Stock are to be
delivered to an Optionee upon exercise of an NSO, the Company shall
be entitled to require as a condition of delivery that the Optionee
remit or, in appropriate cases, agree to remit when due, an amount
sufficient to satisfy all current or estimated future Federal,
state and local withholding tax and employment tax requirements
relating thereto. At the time of a Disqualifying Disposition, the
Optionee shall remit to the Company in cash the amount of any
applicable Federal, state and local withholding taxes and
employment taxes.
17. OTHER PROVISIONS.
Each Option granted under the Plan may contain such other
terms and conditions not inconsistent with the Plan as may be
determined by the Committee, in its sole discretion.
Notwithstanding the foregoing, each ISO granted under the Plan
shall include those terms and conditions which are necessary to
qualify the ISO as an "incentive stock option" within the meaning
of Section 422 of the Code and the regulations thereunder and shall
not include any terms or conditions which are inconsistent there
with.
18. NUMBER AND GENDER.
With respect to words used in this Plan, the singular
form shall include the plural form, the masculine gender shall
include the feminine gender, and vice-versa, as the context
requires.
19. GOVERNING LAW.
The validity and construction of this Plan and the
instruments evidencing the Options granted hereunder shall be
governed by the laws of the State of Delaware.
11
<PAGE>
Exhibit 5.1
ARTER & HADDEN
1717 Main Street, Suite 4100
Dallas, Texas 75201
(214) 761-2100
(214) 741-7139 (Fax)
May 21, 1996
Heartland Wireless Communications, Inc.
903 N. Bowser, Suite 140
Richardson, Texas 75081
Re: Heartland Wireless Communications Inc.
Registration Statement on Form S-8
Subject: Additional Shares Reserved under 1994 Employee
Stock Option Plan
Gentlemen:
We have acted as counsel to Heartland Wireless Communications,
Inc., a Delaware corporation (the "Company"), in connection with
the preparation of that Registration Statement on Form S-8 (the
"Registration Statement") to be filed with the Securities and
Exchange Commission on or about May 22, 1996, under the Securities
Act of 1933, as amended (the "Securities Act"), relating to an
additional 1,000,000 shares (the "Additional Shares") of the $0.001
par value common stock (the "Common Stock") of the Company that
will be issued on the exercise of stock options (collectively, the
"Options") that may be granted under the Heartland Wireless
Communications, Inc. 1994 Employee Stock Option Plan (the "Plan")
in addition to the 950,000 shares previously reserved for issuance
under the Plan.
You have requested the opinion of this firm with respect to
certain legal aspects of the Registration Statement. In connection
therewith, we have examined and relied upon the original, or copies
identified to our satisfaction, of (1) the Certificate of
Incorporation and the Bylaws of the Company, as both have been
amended and/or restated; (2) minutes and records of the corporate
proceedings of the Company with respect to the Plan; (3) the
Registration Statement and exhibits thereto, including the Plan, as
amended; and (4) such other documents and instruments as we have
deemed necessary for the expression of the opinions herein
contained. In making the foregoing examinations, we have assumed
the genuineness of all signatures and the authenticity of all
documents submitted to us as originals, and the conformity to
original documents of all documents submitted to us as certified or
photostatic copies. As to various questions of fact material to
this opinion, and as to the content and form of the Certificate of
Incorporation, the Bylaws, minutes, records, resolutions and other
documents or writings of the Company, we have relied, to the extent
we deem reasonably appropriate, upon representations or
certificates of officers and directors of the Company and upon
documents, records and instruments furnished to us by the Company,
without independent check or verification of their accuracy.
<PAGE>
Heartland Wireless Communications, Inc.
May 21, 1996
Page 2
Based upon our examination, consideration of, and reliance on
the documents and other matters described above, and subject to the
comments and exceptions noted below, we are of the opinion that,
assuming (i) the Options to be granted in the future will be duly
granted in accordance with the terms of the Plan, (ii) the Company
maintains an adequate number of authorized but unissued shares
and/or treasury shares of Common Stock available for issuance to
those persons who exercise Options granted under the Plan and (iii)
the consideration for the Additional Shares of Common Stock
issuable upon the exercise of such Options is actually received by
the Company as provided in the Plan and the particular Option and
such consideration exceeds the par value of such shares, then the
Additional Shares of Common Stock issued pursuant to the exercise
of the Options granted under and in accordance with the terms of
the Plan will be duly and validly issued, fully paid and
nonassessable.
We bring to your attention the fact that our legal opinions
are an expression of professional judgment and not guaranties of
result. This opinion is rendered as of the date hereof, and we
undertake no, and hereby disclaim any, obligation to advise you of
any changes in or new developments that might affect any matters or
opinions set forth herein.
This opinion is limited in all respects to the General
Corporation Law of the State of Delaware as in effect on the date
hereof; however, we are not members of the Bar of the State of
Delaware and our knowledge of its General Corporation Law is
derived from a reading of the most recent compilation of that
statute available to us without consideration of any judicial or
administrative interpretations thereof.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to references to our firm
included in or made a part of the Registration Statement. In
giving this consent, we do not admit that we come within the
category of person whose consent is required under Section 7 of the
Securities Act or the Rules and Regulations of the Securities and
Exchange Commission thereunder.
Very truly yours,
/s/ Arter & Hadden
ARTER & HADDEN
<PAGE>
Exhibit 23.2
INDEPENDENT ACCOUNTANTS' CONSENT
The Board of Directors
Heartland Wireless Communications, Inc.:
We consent to the incorporation by reference herein of (a) our
reports dated March 8, 1996 relating to the consolidated balance
sheets of Heartland Wireless Communications, Inc. and subsidiaries
as of December 31, 1995 and 1994, and the related consolidated
statements of operations, stockholders' equity and cash flows for
each of the years in the three-year period ended December 31, 1995,
and the related schedule, which reports appear in the December 31,
1995 annual report on Form 10-K of Heartland Wireless
Communications, Inc. and (b) our report dated October 25, 1995
relating to the balance sheets of Technivision, Inc. as of May 31,
1994 and 1995, and the related statements of operations,
stockholders' equity and cash flows for each of the years in the
three-year period ended May 31, 1995 and our report dated July 28,1
995 relating to the balance sheets of Cross Country Division as of
December 31, 1993 and 1994, and the related statements of
operations and division equity and cash flows for the year ended
December 31, 1993, the period from January 1, 1994 to August 19,
1994 and the period from August 20, 1994 to December 31, 1994,
which reports appear in the Form 8-K dated February 23, 1996 filed
by Heartland Wireless Communications, Inc.
/s/ KPMG Peat Marwick LLP
-----------------------------------
KPMG Peat Marwick LLP
Dallas, Texas
May 20, 1996
<PAGE>
Exhibit 23.3
ARTHUR ANDERSON LLP
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our
reports dated February 23, 1996, included in Heartland Wireless
Communications, Inc.'s current report on Form 8-K/A-2 dated
February 23, 1996 and to all references to our firm included in or
made part of this registration statement.
/s/ Arthur Anderson LLP
Phoenix, Arizona
May 20, 1996.
<PAGE>
Exhibit 23.4
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in Form S-8
(Registration No. 333-___________) to be filed by Heartland
Wireless Communications, Inc., of our report, which includes an
explanatory paragraph which states that specified circumstances
raise substantial doubt about CableMaxx, Inc.'s ability to continue
as a going concern, dated August 25, 1995, on our audits of the
consolidated balance sheets of CableMaxx, Inc. as of June 30, 1994
and 1995, and the related consolidated statements of operations,
stockholders' equity and cash flows for the period December 18,
1992 to June 30, 1993 and for the years ended June 30, 1994 and
1995, and of the consolidated statements of operations and cash
flows of Supreme Cable Co., Inc. and Subsidiaries (the
"Predecessor") for the period from July 1, 1992 to December 17,
1992.
/s/ COOPERS & LYBRAND LLP
- --------------------------
COOPERS & LYBRAND LLP
Austin, Texas
May 20, 1996
