<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 3, 1999
Registration No. 333-__________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------
NUCENTRIX BROADBAND NETWORKS, 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.)
200 CHISHOLM PLACE, SUITE 200
PLANO, TEXAS 75075
(Address of principal executive offices, including zip code)
--------------------
NUCENTRIX BROADBAND NETWORKS, INC. 1999 SHARE INCENTIVE PLAN
(Full title of the plan)
J. CURTIS HENDERSON, ESQ.
SENIOR VICE PRESIDENT AND GENERAL COUNSEL
NUCENTRIX BROADBAND NETWORKS, INC.
200 CHISHOLM PLACE, SUITE 200
PLANO, TEXAS 75075
(972) 423-9494
(Name, address and telephone number of agent for service)
copy to:
RODNEY L. MOORE, ESQ.
VINSON & ELKINS L.L.P.
2001 ROSS AVENUE, SUITE 3700
DALLAS, TEXAS 75201-2975
(214) 220-7700
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=========================================================================================================================
Proposed Proposed
Title of securities Amount to be maximum offering maximum aggregate Amount of
to be registered registered price per share (1) offering price (1) registration fee
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.001 par
value per share................... 900,000 shares (2) $ 26.50 $ 23,850,000 $ 6,630.30
- -------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for purposes of calculating the registration fee in
accordance with Rule 457(h) under the Securities Act of 1933 and based
upon the sales price of the Company's Common Stock on the
over-the-counter bulletin board quotation system on May 26, 1999.
(2) If, as a result of stock splits, stock dividends or similar
transactions, the number of securities purported to be registered on
this Registration Statement changes, the provisions of Rule 416 shall
apply to this Registration Statement, and this Registration Statement
shall be deemed to cover the additional securities resulting from the
split of, or dividend on the securities covered by this Registration
Statement.
================================================================================
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Registrant hereby incorporates by reference into this Registration
Statement the following documents:
(a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1998, filed pursuant to Section 13(a)
of the Securities Exchange Act of 1934 (the "Exchange Act");
(b) All other reports filed by the Registrant since December 31,
1998, with the Commission pursuant to Section 13(a) or 15(d)
of the Exchange Act;
(c) The description of the Registrant's Common Stock contained in
the Registrant's Registration Statement on Form S-1 filed with
the Commission on January 19, 1994 pursuant to the Securities
Act of 1933, including any amendments or reports filed for the
purposes of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment that indicates that all securities offered have been
sold or that deregisters all securities then remaining unsold shall also be
deemed to be incorporated by reference herein and to be a part hereof from the
dates of filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article Tenth of the Company's Amended and Restated Certificate of
Incorporation, as amended (the "Certificate of Incorporation"), as well as
Article IX of the Company's Restated Bylaws (the "Bylaws"), provides that the
Company shall indemnify its officers and directors to the maximum extent allowed
by the Delaware General Corporation Law. Pursuant to Section 145 of the Delaware
General Corporation Law, the Company generally has the power to indemnify its
present and former directors and officers against expenses and liabilities
incurred by them in connection with any suit to which they are, or are
threatened to be made, a party by reason of their serving in those positions so
long as they acted in good faith and in a manner they reasonably believed to be
in, or not opposed to, the best interests of the Company, and with respect to
any criminal action, so long as they had no reasonable cause to believe their
conduct was unlawful. With respect to suits by or in the right of the Company,
however, indemnification is generally limited to attorneys' fees and other
expenses and is not available if the person is adjudged to be liable to the
Company, unless the court determines that indemnification is appropriate. The
statute, as well as Article Tenth of the Certificate of Incorporation and
Article IX of the Bylaws, expressly provides that the power to indemnify
authorized thereby is not exclusive of any rights granted under any bylaw,
agreement, vote of stockholders or disinterested directors, or otherwise. The
Company also has the power to purchase and maintain insurance for its directors
and officers. Additionally, both Article Tenth of the Certificate of
Incorporation and Article IX of the Bylaws provide that, in the event that an
officer or director files suit against the Company seeking indemnification of
liabilities or expenses incurred, the burden will be on the Company to prove
that the indemnification would not be permitted under the Delaware General
Corporation Law.
-2-
<PAGE> 3
The preceding discussion of the Company's Certificate of Incorporation,
the Bylaws and Section 145 of the Delaware General Corporation Law is not
intended to be exhaustive and is qualified in its entirety by the Certificate of
Incorporation, the Bylaws and Section 145 of the Delaware General Corporation
Law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Unless otherwise indicated below as being incorporated by reference to
another filing of the Registrant with the Commission, each of the following
exhibits is filed herewith:
4.1 -- Nucentrix Broadband Networks, Inc. First Amended and
Restated 1999 Share Incentive Plan
5.1 -- Opinion of Vinson & Elkins L.L.P.
23.1 -- Consent of KPMG LLP
23.3 -- Consent of Vinson & Elkins L.L.P. (included in the
opinion filed as Exhibit 5.1 hereto)
24.1 -- Powers of Attorney (included in the signature pages
hereto)
ITEM 9. UNDERTAKINGS.
(a) The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by section 10(a)(3) of
the Securities Act;
(ii) to reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement;
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if
the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
Company pursuant to section 13 or section 15(d) of the Exchange Act
that are incorporated by reference in this Registration Statement.
(2) That, for the purposes of determining any liability under the
Securities Act, 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-
<PAGE> 4
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) That, for purposes of determining any liability under the Securities
Act, each filing of the Company's annual report pursuant to section 13(a) or
section 15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the Exchange
Act) 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 may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Company of expenses incurred or paid
by a director, officer or controlling person of the Company 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
Company 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 Securities Act and will be governed by the final adjudication
of such issue.
-4-
<PAGE> 5
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 Plano, State of Texas, on the 2nd day of June, 1999.
NUCENTRIX BROADBAND NETWORKS, INC.
By: /s/ Carroll D. McHenry
---------------------------------------------
Carroll D. McHenry
Chairman of the Board, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated. Each person whose signature appears below
authorizes and appoints each of Carroll D. McHenry and Marjean Henderson, and
each of them severally, acting alone and without the other, as his or her
attorney-in-fact to execute in the name of such person and to file any
amendments to this Registration Statement necessary or advisable to enable the
Registrant to comply with the Securities Act of 1933 and any rules, regulations
and requirements of the registration of the securities which are the subject of
this Registration Statement, which amendments may make such changes in the
Registration Statement as such attorney-in-fact may deem appropriate.
<TABLE>
<CAPTION>
Signature Capacity Date
--------- -------- ----
<S> <C> <C>
/s/ Carroll D. McHenry Chairman of the Board, President and June 2, 1999
- ----------------------- Chief Executive Officer (Principal
Carroll D. McHenry Executive Officer)
/s/ Marjean Henderson Senior Vice President and Chief June 2, 1999
- --------------------- Financial Officer (Principal Financial
Marjean Henderson Officer)
/s/ Amy E. Manning Controller (Principal Accounting June 2, 1999
- ------------------ Officer)
Amy E. Manning
/s/ Richard B. Gold Director June 2, 1999
- -------------------
Richard B. Gold
/s/ Terry S. Parker Director June 2, 1999
- -------------------
Terry S. Parker
/s/ Mark G. Schoeppner Director June 2, 1999
- ----------------------
Mark G. Schoeppner
/s/ Neil Subin Director June 2, 1999
- --------------
Neil Subin
/s/ R. Ted Weschler Director June 2, 1999
- -------------------
R. Ted Weschler
</TABLE>
<PAGE> 6
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<S> <C>
4.1 -- Nucentrix Broadband Networks, Inc. First Amended and Restated
1999 Share Incentive Plan
5.1 -- Opinion of Vinson & Elkins L.L.P.
23.1 -- Consent of KPMG LLP
23.3 -- Consent of Vinson & Elkins L.L.P. (included in the opinion
filed as Exhibit 5.1 hereto)
24.1 -- Powers of Attorney (included in the signature pages hereto)
</TABLE>
<PAGE> 1
EXHIBIT 4.1
NUCENTRIX BROADBAND NETWORKS, INC.
FIRST AMENDED AND RESTATED
1999 SHARE INCENTIVE PLAN
1. PURPOSE. The Nucentrix Broadband Networks, Inc. 1999 Share
Incentive Plan (the "Plan") is intended to provide incentives which will
attract, retain and motivate highly competent persons as non-employee
directors, officers, and key employees of, and consultants to, Nucentrix
Broadband Networks, Inc. (the "Company") and its subsidiaries and affiliates,
by providing them opportunities to acquire shares of the common stock, par
value $.001 per share, of the Company ("Common Stock") or to receive monetary
payments based on the value of such shares pursuant to the Benefits (as defined
below) described herein. Additionally, the Plan is intended to assist in
further aligning the interests of the Company's directors, officers, key
employees and consultants to those of its other stockholders.
2. ADMINISTRATION.
(a) The Plan will be administered by a committee (the
"Committee") appointed by the Board of Directors of the Company from among its
members (which may be the Compensation Committee) and shall be comprised,
unless otherwise determined by the Board of Directors, solely of not less than
two members who shall be (i) "Non-Employee Directors" within the meaning of
Rule 16b-3(b)(3) (or any successor rule) promulgated under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and (ii) "outside
directors" within the meaning of Treasury Regulation Section 1.162-27(e)(3)
under Section 162(m) of the Internal Revenue Code of 1986, as amended (the
"Code"). The Committee is authorized, subject to the provisions of the Plan, to
establish such rules and regulations as it deems necessary for the proper
administration of the Plan and to make such determinations and interpretations
and to take such action in connection with the Plan and any Benefits granted
hereunder as it deems necessary or advisable. All determinations and
interpretations made by the Committee shall be binding and conclusive on all
participants and their legal representatives. No member of the Committee and no
employee of the Company shall be liable for any act or failure to act
hereunder, except in circumstances involving his or her bad faith, gross
negligence or willful misconduct, or for any act or failure to act hereunder by
any other member or employee or by any agent to whom duties in connection with
the administration of this Plan have been delegated. The Company shall
indemnify members of the Committee and any agent of the Committee who is an
employee of the Company, a subsidiary or an affiliate against any and all
liabilities or expenses to which they may be subjected by reason of any act or
failure to act with respect to their duties on behalf of the Plan, except in
circumstances involving such person's bad faith, gross negligence or willful
misconduct.
<PAGE> 2
(b) The Committee may delegate to one or more of its members,
or to one or more agents, such administrative duties as it may deem advisable,
and the Committee, or any person to whom it has delegated duties as aforesaid,
may employ one or more persons to render advice with respect to any
responsibility the Committee or such person may have under the Plan. The
Committee may employ such legal or other counsel, consultants and agents as it
may deem desirable for the administration of the Plan and may rely upon any
opinion or computation received from any such counsel, consultant or agent.
Expenses incurred by the Committee in the engagement of such counsel,
consultant or agent shall be paid by the Company, or the subsidiary or
affiliate whose employees have benefited from the Plan, as determined by the
Committee.
(c) Notwithstanding the foregoing, the Board of Directors
shall have the authority to make grants of Benefits under the Plan to directors
of the Company who are not employees of the Company or its subsidiaries, on
such terms and conditions as the Board of Directors shall determine in its sole
discretion.
3. PARTICIPANTS. Participants will consist of such directors, officers
and key employees of, and such consultants to, the Company and its subsidiaries
and affiliates as the Committee in its sole discretion determines to be
significantly responsible for the success and future growth and profitability
of the Company and whom the Committee may designate from time to time to
receive Benefits under the Plan. Designation of a participant in any year shall
not require the Committee to designate such person to receive a Benefit in any
other year or, once designated, to receive the same type or amount of Benefit
as granted to the participant in any other year. The Committee shall consider
such factors as it deems pertinent in selecting participants and in determining
the type and amount of their respective Benefits.
4. TYPE OF BENEFITS. Benefits under the Plan may be granted in any one
or a combination of (a) Stock Options and (b) Stock Appreciation Rights (each
as described below, and collectively, the "Benefits"). Benefits may, as
determined by the Committee in its discretion, constitute Performance-Based
Awards (as defined in Section 8 hereof). Benefits shall be evidenced by
agreements (which need not be identical) in such forms as the Committee may
from time to time approve; provided, however, that in the event of any conflict
between the provisions of the Plan and any such agreements, the provisions of
the Plan shall prevail.
5. COMMON STOCK AVAILABLE UNDER THE PLAN.
(a) Subject to the provisions of this Section 5 and any
adjustments made in accordance with Section 10 hereof, the maximum number of
shares of Common Stock that may be delivered to participants (including
permitted assignees) and their beneficiaries under this Plan shall be equal to
nine hundred thousand (900,000) shares of Common Stock, which may be authorized
and unissued or treasury shares. Any shares of Common Stock covered by a
Benefit (or portion of a Benefit) granted under the Plan, which is forfeited or
canceled, expires or, in the case of a Benefit other than a Stock Option, is
settled in cash, shall be deemed not to have been delivered for purposes of
determining the maximum number of shares of Common Stock available for delivery
under the Plan. The preceding sentence shall apply only for purposes of
determining the aggregate number of shares of Common Stock subject to Benefits
but shall not apply for purposes of determining the maximum number of shares of
Common Stock with respect to which Benefits (including the maximum number of
shares of Common Stock subject to Stock Options and Stock Appreciation Rights)
may be granted to an individual participant under the Plan.
2
<PAGE> 3
(b) If any shares of Common Stock are tendered to the
Company, either actually or by attestation or withholding, as full or partial
payment of the exercise price or any tax withholding in connection with the
exercise of a Stock Option or Stock Appreciation Right or the vesting of any
other Benefit granted under this Plan, only the number of shares of Common
Stock issued net of the shares of Common Stock tendered shall be deemed
delivered for purposes of determining the maximum number of shares of Common
Stock available for delivery under the Plan. This Section 5(b) shall apply only
for purposes of determining the aggregate number of shares of Common Stock
subject to Benefits but shall not apply for purposes of determining (x) the
maximum number of shares of Common Stock with respect to which Benefits
(including the maximum number of shares of Common Stock subject to Stock
Options and Stock Appreciation Rights) may be granted to an individual
participant under the Plan or (y) the maximum number of shares of Common Stock
that may be delivered through Stock Options under the Plan.
6. STOCK OPTIONS. Stock Options will consist of awards from the
Company that will enable the holder to purchase a number of shares of Common
Stock, at set terms. Stock Options may be "incentive stock options" ("Incentive
Stock Options"), within the meaning of Section 422 of the Code, or Stock
Options which do not constitute Incentive Stock Options ("Nonqualified Stock
Options"). The Committee will have the authority to grant to any participant
one or more Incentive Stock Options, Nonqualified Stock Options, or both types
of Stock Options (in each case with or without Stock Appreciation Rights).
Stock Options may constitute Performance-Based Awards, as described in Section
8 hereof. Each Stock Option shall be subject to such terms and conditions
consistent with the Plan as the Committee may impose from time to time, subject
to the following limitations:
(a) EXERCISE PRICE. Each Stock Option granted hereunder shall
have such per-share exercise price as the Committee may determine at the date
of grant, but in no event may the per-share exercise price of any Stock Option
be less than the fair market value of the underlying shares on the date of
grant.
(b) PAYMENT OF EXERCISE PRICE. The option exercise price may
be paid in cash or, in the discretion of the Committee, by the delivery of
shares of Common Stock of the Company then owned by the participant, by the
withholding of shares of Common Stock for which a Stock Option is exercisable
or by a combination of these methods. In the discretion of the Committee,
payment may also be made by delivering a properly executed exercise notice to
the Company together with a copy of irrevocable instructions to a broker to
deliver promptly to the Company the amount of sale or loan proceeds to pay the
exercise price. To facilitate the foregoing, the Company may enter into
agreements for coordinated procedures with one or more brokerage firms. The
Committee may prescribe any other method of paying the exercise price that it
determines to be consistent with applicable law and the purpose of the Plan,
including, without limitation, in lieu of the exercise of a Stock Option by
delivery of shares of Common Stock of the Company then owned by a participant,
providing the Company with a notarized statement attesting to the number of
shares owned, where upon verification by the Company, the Company would issue
to the participant only the number of incremental shares to which the
participant is entitled upon exercise of the Stock Option. The Committee may,
at the time of grant or thereafter, provide for the grant of a subsequent
Restoration Stock Option if the exercise price is paid for by delivering
previously owned shares of Common Stock of the Company.
3
<PAGE> 4
Restoration Stock Options (i) shall be granted in respect of no more than the
number of shares of Common Stock tendered in exercising the predecessor Stock
Option, (ii) shall have an exercise price equal to the Fair Market Value on the
date the Restoration Stock Option is granted, and (iii) shall have an exercise
period that does not extend beyond the remaining term of the predecessor Stock
Option. In determining which methods a participant may utilize to pay the
exercise price, the Committee may consider such factors as it determines are
appropriate.
(c) EXERCISE PERIOD. Stock Options granted under the Plan
shall be exercisable at such time or times and subject to such terms and
conditions as shall be determined by the Committee. All Stock Options shall
terminate at such earlier times and upon such conditions or circumstances as
the Committee shall in its discretion set forth in such option agreement at the
date of grant.
(d) LIMITATIONS ON INCENTIVE STOCK OPTIONS. Incentive Stock
Options may be granted only to participants who are employees of the Company or
one of its subsidiaries (within the meaning of Section 424(f) of the Code) at
the date of grant. The aggregate Fair Market Value (determined as of the time
the Stock Option is granted) of the Common Stock with respect to which
Incentive Stock Options are exercisable for the first time by a participant
during any calendar year (under all option plans of the Company and of any
parent corporation or subsidiary corporation (as defined in Sections 424(e) and
(f) of the Code, respectively)) shall not exceed $100,000. For purposes of the
preceding sentence, Incentive Stock Options will be taken into account in the
order in which they are granted. The per-share exercise price of an Incentive
Stock Option shall not be less than 100% of the Fair Market Value of the Common
Stock on the date of grant, and no Incentive Stock Option may be exercised
later than ten years after the date it is granted; provided, however, Incentive
Stock Options may not be granted to any participant who, at the time of grant,
owns stock possessing (after the application of the attribution rules of
Section 424(d) of the Code) more than 10% of the total combined voting power of
all classes of stock of the Company or any parent or subsidiary corporation of
the Company, unless the exercise price is fixed at not less than 110% of the
Fair Market Value of the Common Stock on the date of grant and the exercise of
such option is prohibited by its terms after the expiration of five years from
the date of grant of such option. In addition, no Incentive Stock Option may be
issued to a participant in tandem with a Nonqualified Stock Option. No
Incentive Stock Option may be granted after ten years after the Plan has been
approved by the Board of Directors, the Committee or the stockholders of the
Company, whichever is earlier.
7. STOCK APPRECIATION RIGHTS.
(a) The Committee may, in its discretion, grant Stock
Appreciation Rights to the holders of any Stock Options granted hereunder. In
addition, Stock Appreciation Rights may be granted independently of, and
without relation to, Stock Options. A Stock Appreciation Right means a right to
receive a payment in cash, Common Stock or a combination thereof, in an amount
equal to the excess of (x) the Fair Market Value, or other specified valuation,
of a specified number of shares of Common Stock on the date the right is
exercised over (y) the Fair Market Value, or other specified valuation (which
may be less than the Fair Market Value) of such shares of Common Stock on the
date the right is granted, all as determined by the Committee; provided,
however, that if a Stock Appreciation Right is granted in tandem with or in
substitution for a Stock
4
<PAGE> 5
Option, the designated Fair Market Value in the award agreement may be the Fair
Market Value on the date such Stock Option was granted. Stock Appreciation
Rights may constitute Performance-Based Awards, as described in Section 8
hereof. Each Stock Appreciation Right shall be subject to such terms and
conditions as the Committee shall impose from time to time.
(b) Stock Appreciation Rights granted under the Plan shall be
exercisable at such time or times and subject to such terms and conditions as
shall be determined by the Committee. All Stock Appreciation Rights shall
terminate at such earlier times and upon such conditions or circumstances as
the Committee shall in its discretion set forth in such right at the date of
grant.
8. PERFORMANCE-BASED AWARDS.
(a) For purposes of this Section 8 "Covered Employee" shall
have the meaning given to such term under Section 162(m) of the Code. The
foregoing notwithstanding, because the Committee cannot determine with
certainty whether a given individual will be a Covered Employee with respect to
a fiscal year that has not yet been completed, the term Covered Employee as
used herein shall mean only a person designated by the Committee, at the time
of grant of Performance-Based Awards, who is likely to be a Covered Employee
with respect to that fiscal year.
(b) For purposes of this Section 8 "Performance-Based Award"
shall mean any Benefit the grant, exercise or settlement of which is subject to
one or more of the performance standards set forth in this Section 8.
Additionally, Performance-Based Award shall mean any Stock Option or Stock
Appreciation Right granted to a Covered Employee if the exercise price (with
respect to such Benefit) equals or exceeds fair market value.
(c) For purposes of this Section 8 "Qualified Member" means a
member of the Committee who is an "outside" director within the meaning of
Section 162(m) of the Code.
(d) At any time that a member of the Committee is not a
Qualified Member, any action of the Committee relating to a Benefit intended by
the Committee to qualify as "performance-based compensation" within the meaning
of Section 162(m) of the Code, may be taken either (i) by a subcommittee,
designated by the Committee, composed solely of two or more Qualified Members,
or (ii) by the Committee but with each such member who is not a Qualified
Member abstaining or recusing himself or herself from such action; provided,
however, that, upon such abstention or recusal, the Committee remains composed
solely of two or more Qualified Members. Such action, authorized by such a
subcommittee or by the Committee upon the abstention or recusal of such
non-Qualified Member(s), shall be the action of the Committee for purposes of
the Plan. Any action of the Committee shall be final, conclusive and binding on
all persons, including the Company, its subsidiaries, participants,
beneficiaries, transferees or other persons claiming rights from or through a
participant, and shareholders.
5
<PAGE> 6
(e) In each calendar year during any part of which the Plan
is in effect, a participant may not be granted Benefits relating to more than
350,000 shares of Common Stock, subject to adjustment in a manner consistent
with any adjustment made pursuant to Section 10, under each of Sections 6 and 7
with a maximum limitation of 350,000 shares of Common Stock in the aggregate.
If a Stock Option is canceled, the canceled Stock Option continues to be
counted against the maximum number of shares for which Stock Options may be
granted to the participant under the Plan, as set forth in this Section 8(e).
If, after grant, the exercise price of a Stock Option is reduced, the
transaction is treated as a cancellation of the Stock Option and a grant of a
new Stock Option for purposes of this Section 8(e). In such a case, both the
Stock Option that is deemed to be canceled and the Stock Option that is deemed
to be granted reduce the maximum number of shares for which Stock Options may
be granted to the Covered Employee under the Plan, as set forth in this Section
8(e). Such cancellation will likewise occur in the case of a Stock Appreciation
Right where, after the Benefit is granted, the base amount on which stock
appreciation is calculated is reduced.
(f) The Committee shall retain full power and discretion to
accelerate, waive or modify, at any time, any term or condition of a
Performance-Based Award that is not mandatory under the Plan; provided,
however, that notwithstanding any other provision of the Plan the Committee
shall not have any discretion to accelerate, waive or modify any term or
condition of a Benefit that is intended to qualify as "performance-based
compensation" for purposes of Section 162(m) of the Code if such discretion
would cause the Performance-Based Award not to so qualify.
(g) The right of a participant to exercise or receive a grant
or settlement of any Benefit, and the timing thereof, may be subject to such
performance conditions as may be specified by the Committee. The Committee may
use such business criteria and other measures of performance as it may deem
appropriate in establishing any performance conditions.
(h) If the Committee determines that a Performance-Based
Award to be granted to a participant who is designated by the Committee as
likely to be a Covered Employee should qualify as "performance-based
compensation" for purposes of Section 162(m) of the Code, the grant, exercise
and/or settlement of such Performance-Based Award shall be contingent upon
achievement of preestablished performance goals and other terms set forth in
this Section 8(h).
(i) The performance goals for such Performance-Based
Awards shall consist of one or more business criteria and a targeted
level or levels of performance with respect to each of such criteria,
as specified by the Committee consistent with this Section 8(h).
Performance goals shall be objective and shall otherwise meet the
requirements of Section 162(m) of the Code, including the requirement
that the level or levels of performance targeted by the Committee
result in the achievement of performance goals being "substantially
uncertain." The Committee may determine that such Performance-Based
Awards shall be granted, exercised and/or settled upon achievement of
any one
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performance goal or that two or more of the performance goals must be
achieved as a condition to grant, exercise and/or settlement of such
Performance-Based Awards. Performance goals may differ for
Performance-Based Awards granted to any one participant or to
different participants.
(ii) One or more of the following business criteria
for the participant, Company, on a consolidated basis, and/or for
specified subsidiaries or business or geographical units of the
Company (except with respect to the total shareholder return and
earnings per share criteria), shall be used by the Committee in
establishing performance goals for such Performance Awards: (i) net
sales, (ii) pretax income before allocation of company overhead and
bonus, (iii) budget, (iv) earnings per share, (v) net income, (vi)
division, group or company financial goals, (vii) return on
stockholders' equity, (viii) return on assets, (ix) attainment of
strategic and operational initiatives, (x) appreciation in and/or
maintenance of the price of the Common Stock or any other
publicly-traded securities of the Company, (xi) market share, (xii)
gross profits, (xiii) earnings before interest and taxes, (xiv)
earnings before interest, taxes, dividends and amortization, (xv)
economic value-added models and comparisons with various stock market
indices, (xvi) reductions in costs or (xvii) any combination of the
foregoing. In addition, Performance-Based Awards may include
comparisons to the performance of other companies, such performance to
be measured by one or more of the foregoing business criteria.
(iii) Achievement of performance goals in respect of
such Performance-Based Awards shall be measured over a performance
period of up to ten years, as specified by the Committee. Performance
goals shall be established not later than 90 days after the beginning
of any performance period applicable to such Performance-Based Awards,
or at such other date as may be required or permitted for
"performance-based compensation" under Section 162(m) of the Code.
(iv) After the end of each performance period, the
Committee shall determine the amount, if any, of the Performance-Based
Award payable to each Covered Employee. Settlement of such
Performance-Based Awards shall be in cash, Common Stock, or other
property, as determined in the sole discretion of the Committee. The
Committee may, in its discretion, reduce the amount of a settlement
otherwise to be made in connection with such Performance-Based Awards,
but may not exercise discretion to increase any such amount payable to
a Covered Employee in respect of a Performance-Based Award.
(i) All determinations by the Committee as to the
establishment of performance goals, the amount of any potential individual
Performance-Based Awards, and the achievement of performance goals relating to
Performance-Based Awards, shall be made in writing in the case of any Benefit
intended to qualify under Section 162(m) of the Code. The Committee may not
delegate any responsibility relating to such Performance-Based Awards. The
determination as to whether any performance goal, with respect to any Benefit,
has been satisfied shall be made prior to the payment of any compensation
relating to a Benefit.
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(j) It is the intent of the Company that Performance-Based
Awards granted to persons who are designated by the Committee as likely to be
Covered Employees within the meaning of Section 162(m) of the Code shall, if so
designated by the Committee, constitute "performance-based compensation" within
the meaning of Section 162(m) of the Code. Accordingly, the terms of this
Section 8, including the definitions of Covered Employee and other terms used
herein, shall be interpreted in a manner consistent with Section 162(m) of the
Code. If any provision of the Plan as in effect on the date of adoption or any
agreements relating to Performance-Based Awards that are designated as intended
to comply with Section 162(m) of the Code does not comply or is inconsistent
with the requirements of Section 162(m) of the Code, such provision shall be
construed or deemed amended to the extent necessary to conform to such
requirements.
9. FOREIGN LAWS. The Committee may grant Benefits to individual
participants who are subject to the tax laws of nations other than the United
States, which Benefits may have terms and conditions as determined by the
Committee as necessary to comply with applicable foreign laws. The Committee
may take any action which it deems advisable to obtain approval of such
Benefits by the appropriate foreign governmental entity; provided, however,
that no such Benefits may be granted pursuant to this Section 11 and no action
may be taken which would result in a violation of the Exchange Act, the Code or
any other applicable law.
10. ADJUSTMENT PROVISIONS; CHANGE IN CONTROL.
(a) If there shall be any change in the Common Stock of the
Company, through merger, consolidation, reorganization, recapitalization, stock
dividend, stock split, reverse stock split, split up, spinoff, combination of
shares, exchange of shares, dividend in kind or other like change in capital
structure or distribution (other than normal cash dividends) to stockholders of
the Company, an adjustment shall be made to each outstanding Stock Option and
Stock Appreciation Right such that each such Stock Option and Stock
Appreciation Right shall thereafter be exercisable for such securities, cash
and/or other property as would have been received in respect of the Common
Stock subject to such Stock Option or Stock Appreciation Right had such Stock
Option or Stock Appreciation Right been exercised in full immediately prior to
such change or distribution, and such an adjustment shall be made successively
each time any such change shall occur. In addition, in the event of any such
change or distribution, in order to prevent dilution or enlargement of
participants' rights under the Plan, the Committee shall adjust, in an
equitable manner, the number and kind of shares that may be issued under the
Plan, the number and kind of shares subject to outstanding Benefits, the
exercise price applicable to outstanding Benefits, and/or the Fair Market Value
of the Common Stock and other value determinations applicable to outstanding
Benefits. Appropriate adjustments may also be made by the Committee in the
terms of any Benefits under the Plan to reflect such changes or distributions
and to modify any other terms of outstanding Benefits on an equitable basis,
including modifications of performance targets and changes in the length of
performance periods. In addition, other than with respect to Stock Options and
Stock Appreciation Rights intended to constitute Performance-Based Awards, the
Committee is authorized to make adjustments to the terms and conditions of, and
the criteria included in, Benefits in recognition of unusual or
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<PAGE> 9
nonrecurring events affecting the Company or the financial statements of the
Company, or in response to changes in applicable laws, regulations, or
accounting principles. Notwithstanding the foregoing, (i) each such adjustment
with respect to an Incentive Stock Option shall comply with the rules of
Section 424(a) of the Code, and (ii) in no event shall any adjustment be made
which would render any Incentive Stock Option granted hereunder other than an
incentive stock option for purposes of Section 422 of the Code.
(b) Notwithstanding any other provision of this Plan, if
there is a Change in Control of the Company, all then outstanding Benefits that
have not vested or become exercisable at the time of such Change in Control
shall immediately vest and become exercisable and all performance targets
relating to such Benefits shall be deemed to have been satisfied as of the time
of such Change in Control. For purposes of this Section 10(b), a "Change in
Control" of the Company shall be deemed to have occurred upon any of the
following events:
(i) Any "person" (as such term is used Section 13(d)
and 14(d)(2) of the Exchange Act but excluding any employee benefit
plan of the Company) is or becomes the "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act) directly or indirectly, of
securities of the Company representing more than fifty percent (50%)
of the combined voting power of the Company's outstanding securities
then entitled ordinarily (and apart from rights accruing under special
circumstances) to vote for the election of directors; or
(ii) During any period of two (2) consecutive years,
the individuals who at the beginning of such period constitute the
Company's Board of Directors or any individuals who would be
"Continuing Directors" (as hereinafter defined) cease for any reason
to constitute at least a majority thereof; or
(iii) The Company's stockholders shall approve a
sale of all or substantially all of the assets of the Company; or
(iv) The Company's stockholders shall approve any
merger, consolidation, or like business combination or reorganization
of the Company, the consummation of which would result in the
occurrence of any event described in Section 10(b)(i) or (ii) above,
and such transaction shall have been consummated.
For purposes of this Section 10(b), "Continuing Directors"
shall mean (x) the directors of the Company in office on the Effective Date (as
defined below) and (y) any successor to any such director and any additional
director who after the Effective Date was nominated or selected by a majority
of the Continuing Directors in office at the time of his or her nomination or
selection.
The Committee, in its discretion, may determine that, upon
the occurrence of a Change in Control of the Company, each Benefit outstanding
hereunder shall terminate within a specified number of days after notice to the
holder, and such holder shall receive an amount equal
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<PAGE> 10
to the excess of the Fair Market Value of such share of Common Stock
immediately prior to the occurrence of such Change in Control over the exercise
price per share of such Stock Option or Stock Appreciation Right (as the case
may be); such amount to be payable in cash, in one or more kinds of property
(including the property, if any, payable in the transaction) or in a
combination thereof, as the Committee, in its discretion, shall determine. The
provisions contained in the preceding sentence shall be inapplicable to a
Benefit granted within six (6) months before the occurrence of a Change in
Control if the holder of such Benefit is subject to the reporting requirements
of Section 16(a) of the Exchange Act and no exception from liability under
Section 16(b) of the Exchange Act is otherwise available to such holder.
11. NONTRANSFERABILITY. Each Benefit granted under the Plan to a
participant shall not be transferable otherwise than by will or the laws of
descent and distribution, and shall be exercisable, during the participant's
lifetime, only by the participant. Notwithstanding the foregoing, the Committee
may permit the transferability of a Benefit, other than an Incentive Stock
Option, by a participant solely to the participant's spouse, siblings, parents,
children and grandchildren or trusts for the benefit of such persons or
partnerships, corporations, limited liability companies or other entities owned
solely by such persons, including trusts for such persons, subject to any
restriction included in the award of the Benefit."
12. OTHER PROVISIONS. The award of any Benefit under the Plan may also
be subject to such other provisions (whether or not applicable to the Benefit
awarded to any other participant) as the Committee determines appropriate,
including, without limitation, for the installment purchase of Common Stock
under Stock Options, for the installment exercise of Stock Appreciation Rights,
to assist the participant in financing the acquisition of Common Stock, for the
forfeiture of, or restrictions on resale or other disposition of, Common Stock
acquired under any form of Benefit, for the termination of any Benefit and the
forfeiture of any gain realized in respect of a Benefit upon the occurrence of
certain activity by the participant that is harmful to the Company, for the
acceleration of exercisability or vesting of Benefits or the payment of the
value of Benefits in the event that the control of the Company changes
(including, without limitation, a Change in Control), or to comply with federal
and state securities laws, or understandings or conditions as to the
participant's employment (including, without limitation, any restrictions on
the ability of the participant to engage in activities that are competitive
with the Company) in addition to those specifically provided for under the
Plan.
13. FAIR MARKET VALUE. For purposes of this Plan and any Benefits
awarded hereunder, Fair Market Value shall be the closing price of the Common
Stock on the date of calculation (or on the last preceding trading date if
Common Stock was not traded on such date) if the Common Stock is readily
tradeable on a national securities exchange or other market system, and if the
Common Stock is not readily tradeable, Fair Market Value shall mean the amount
determined in good faith by the Committee as the fair market value of the
Common Stock.
14. WITHHOLDING. All payments or distributions of Benefits made
pursuant to the Plan shall be net of any amounts required to be withheld
pursuant to applicable federal, state and local tax withholding requirements.
If the Company proposes or is required to distribute Common Stock pursuant to
the Plan, it may require the recipient to remit to it or to the corporation
that employs such
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recipient an amount sufficient to satisfy such tax withholding requirements
prior to the delivery of any certificates for such Common Stock. In lieu
thereof, the Company or the employing corporation shall have the right to
withhold the amount of such taxes from any other sums due or to become due from
such corporation to the recipient as the Committee shall prescribe. The
Committee may, in its discretion and subject to such rules as it may adopt
(including any as may be required to satisfy applicable tax and/or non-tax
regulatory requirements), permit an optionee or award or right holder to pay
all or a portion of the federal, state and local withholding taxes arising in
connection with any Benefit consisting of shares of Common Stock by electing to
have the Company withhold shares of Common Stock having a Fair Market Value
equal to the amount of tax to be withheld, such tax calculated at rates
required by statute or regulation.
15. TENURE. A participant's right, if any, to continue to serve the
Company or any of its subsidiaries or affiliates as an officer, employee, or
otherwise, shall not be enlarged or otherwise affected by his or her
designation as a participant under the Plan.
16. UNFUNDED PLAN. Participants shall have no right, title, or
interest whatsoever in or to any investments which the Company may make to aid
it in meeting its obligations under the Plan. Nothing contained in the Plan,
and no action taken pursuant to its provisions, shall create or be construed to
create a trust of any kind, or a fiduciary relationship between the Company and
any participant, beneficiary, legal representative or any other person. To the
extent that any person acquires a right to receive payments from the Company
under the Plan, such right shall be no greater than the right of an unsecured
general creditor of the Company. All payments to be made hereunder shall be
paid from the general funds of the Company and no special or separate fund
shall be established and no segregation of assets shall be made to assure
payment of such amounts except as expressly set forth in the Plan. The Plan is
not intended to be subject to the Employee Retirement Income Security Act of
1974, as amended.
17. NO FRACTIONAL SHARES. No fractional shares of Common Stock shall
be issued or delivered pursuant to the Plan or any Benefit. The Committee shall
determine whether cash, or Benefits, or other property shall be issued or paid
in lieu of fractional shares or whether such fractional shares or any rights
thereto shall be forfeited or otherwise eliminated.
18. DURATION, AMENDMENT AND TERMINATION. The Plan shall continue
indefinitely until terminated by the Board of Directors of the Company or the
Committee. The Board of Directors or the Committee may amend the Plan from time
to time or suspend or terminate the Plan at any time.
19. GOVERNING LAW. This Plan, Benefits granted hereunder and actions
taken in connection herewith shall be governed and construed in accordance with
the internal laws of the State of Delaware, without giving effect to its
choice-of-law provisions.
20. EFFECTIVE DATE. The Plan shall be effective as of April 1, 1999,
the date on which the Plan was adopted by the Committee (the "Effective Date"),
provided that the Plan is approved by the stockholders of the Company at an
annual meeting or any special meeting of stockholders of the Company within 12
months of the Effective Date, and such approval of stockholders shall be a
condition to the right of each participant to receive any Benefits hereunder.
Any Benefits granted under the Plan prior to such approval of stockholders
shall be effective as of the date of grant (unless, with respect to any
Benefit, the Committee specifies otherwise at the time of grant), but no such
Benefit may be exercised or settled and no restrictions relating to any Benefit
may lapse prior to such stockholder approval, and if stockholders fail to
approve the Plan as specified hereunder, any such Benefit shall be cancelled.
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EXHIBIT 5.1
June 2, 1999
Nucentrix Broadband Networks, Inc.
230 Chisholm Place, Suite 200
Plano, Texas 75075
Ladies and Gentlemen:
We have acted as counsel for Nucentrix Broadband Networks, Inc. a
Delaware corporation formerly named "Heartland Wireless Communications, Inc."
(the "Company"), in connection with the Company's registration under the
Securities Act of 1933 (the "Act") of 900,000 shares (as such number may be
adjusted from time to time pursuant to the provisions of the Plan (defined
below)) of common stock, par value $0.001 per share, of the Company (the
"Shares") which may be offered from time to time under the Nucentrix Broadband
Networks, Inc. First Amended and Restated 1999 Share Incentive Plan (the
"Plan").
In reaching the opinions set forth herein, we have examined and are
familiar with originals or copies, certified or otherwise identified to our
satisfaction, of such documents and records of the Company and such statutes,
regulations and other instruments as we deemed necessary or advisable for
purposes of this opinion, including (i) the Registration Statement, (ii) the
Amended and Restated Certificate of Incorporation of the Company, as filed with
the Secretary of State of the State of Delaware, (iii) the Restated Bylaws of
the Company, (iv) minutes of meetings of, and resolutions adopted by, the Board
of Directors of the Company , the Compensation Committee of the Board of
Directors of the Company and the stockholders of the Company authorizing the
Plan, and (v) the Plan.
We have assumed that (i) all information contained in all documents we
reviewed is true, correct and complete, (ii) all signatures on all documents we
reviewed are genuine, (iii) all documents submitted to us as originals are true
and complete, (iv) all documents submitted to us as copies are true and complete
copies of the originals thereof, and (v) all persons signing in a representative
capacity were authorized to do so.
Based on the foregoing, and having due regard for the legal
considerations we deem relevant, we are of the opinion that the Shares, when
issued by the Company pursuant to the terms of the Plan, will be legally issued,
fully paid and non-assessable.
This opinion is limited in all respects to the laws of the Delaware
General Corporation Law and the federal laws of the United States of America.
Please be advised that we are not licensed to practice law in the State of
Delaware.
This opinion letter may be filed as an exhibit to the Registration
Statement. In giving this consent, we do not thereby admit that we come within
the category of persons whose consent is required under Section 7 of the Act or
the rules and regulations of the Commission promulgated thereunder.
Very truly yours,
/s/ VINSON & ELKINS L.L.P.
<PAGE> 1
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Nucentrix Broadband Networks, Inc.:
We consent to the use of our report incorporation by reference herein.
/s/ KPMG LLP
Dallas, Texas
June 2, 1999
