<PAGE> 1
As filed with the Securities and Exchange Commission on July 29, 1996
Registration No. 333-_______________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
PAGEMART WIRELESS, INC.
(Exact name of registrant as specified in its charter)
Delaware 75-2575229
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
6688 N. Central Expressway, Suite 800
Dallas, Texas 75206
(Address of principal executive offices) (zip code)
PAGEMART WIRELESS, INC. EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
Todd A. Bergwall, Esq.
Corporate Counsel and Secretary
6688 N. Central Expressway, Suite 800
Dallas, Texas 75206
(Name and address of agent for service)
(214) 750-5809
(Telephone number, including area code, of agent for service)
Copies to:
Robert E. Crawford, Jr., Esq.
Winstead Sechrest & Minick P.C.
1201 Elm Street, 5400 Renaissance Tower
Dallas, Texas 75270
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------
Proposed Proposed
Title of Amount Maximum Maximum Amount of
Securities to be Offering Price Aggregate Registration
to be Registered Registered Per Share(1) Offering Price(1) Fee(2)
- -----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A Convertible Common Stock,
$0.0001 par value per share 500,000 shares $10.375 $5,187,500 $1,788.81
- -----------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee.
(2) Pursuant to Rule 457(h) of the Securities Act of 1933, as amended, the
registration fee has been calculated based on the average of the high
and low prices of the Class A Convertible Common Stock (the "Common
Stock") of the Registrant on the NASDAQ National Market System on July
24, 1996.
<PAGE> 2
PART I.
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
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* Information required in Part I of Form S-8 to be contained in a
prospectus meeting the requirements of Section 10(a) of the Securities
Act of 1933, as amended (the "Securities Act") is omitted from this
Registration Statement in accordance with Rule 428 under the
Securities Act and the Note to Part I of Form S-8.
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<PAGE> 3
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 reports and prospectus listed below (which include all reports
filed by the Registrant with the Securities and Exchange Commission (the
"Commission") pursuant to Sections 13(a) or 15(d) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act") since December 31, 1995.
Reports Incorporated by Reference
(a) The prospectus dated June 13, 1996, filed with the Commission
by the Registrant on June 14, 1996 pursuant to Rule 424(b)
under the Securities Act in connection with the registration
of 6,000,000 shares of Common Stock pursuant to that certain
registration statement on Form S-1 under the Securities Act
(Registration No. 333-03012);
(b) The Registrant's Annual Report on Form 10-K, for the fiscal
year ended December 31, 1995;
(c) The Registrant's Quarterly Report on Form 10-Q, for the fiscal
quarter ended March 31, 1996; and
(d) The description of the Common Stock contained in the
Registrant's registration statement on Form 8-A under the
Exchange Act (Registration No. 0-28196) filed by the
Registrant with the Commission, including any amendments or
reports filed for the purpose of updating such description,
which was declared effective on June 13, 1996.
In addition, all documents filed by the Registrant subsequent to the
date hereof pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act
but prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold shall be deemed to be incorporated by reference into this
Registration Statement and to be a part hereof from the date of the filing of
such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not required.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware
permits the Registrant, subject to the standards set forth therein, to
indemnify any person in connection with any action, suit or proceeding brought
or threatened by reason of the fact that such person is or was a director,
officer, employee or agent of the Registrant or is or was serving as such with
respect to another corporation or entity at the request of the Registrant.
Article IX, Section B of the Registrant's Restated Certificate of Incorporation
provides for full indemnification of its officers, directors, employees and
agents to the extent permitted by Section 145.
The Registrant provides insurance from commercial carriers against
certain liabilities incurred by the directors and officers of the Registrant.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following exhibits are furnished pursuant to Item 601 of Regulation
S-K:
Exhibit Number and Description
(4) Instruments defining the rights of securityholders,
including debentures
4.1 PageMart Wireless, Inc. Employee Stock
Purchase Plan
(5) Opinion regarding legality
5.1 Opinion of Winstead
Sechrest & Minick P.C.
(23) Consents of experts and counsel
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Winstead
Sechrest & Minick P.C.
(included in Exhibit 5.1)
II-2
<PAGE> 5
(24) Power of attorney
24.1 Power of Attorney
(included on Page II-5)
ITEM 9. UNDERTAKINGS.
(a) The Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration
Statement:
(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 this Registration
Statement (or the most recent post-effective
amendment hereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in this Registration Statement;
(iii) to include any material information with respect to
the plan of distribution not previously disclosed in
this Registration Statement or any material change to
such information in this Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
Registration Statement is on Form S-3, Form S-8 or Form F-3 and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement.
(2) that, for the purpose 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) 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.
The Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Registrant'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 this Registration Statement shall be deemed to be a new
registration statement
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<PAGE> 6
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.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the 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 Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed
by the final adjudication of such issue.
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<PAGE> 7
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 New York, State of New York, on July 26, 1996.
PAGEMART WIRELESS, INC.
By: /s/ JOHN D. BELETIC
-------------------------------------
John D. Beletic, Chairman,
President and Chief
Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and
appoints John D. Beletic and G. Clay Myers, or either of them, his true and
lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and on his behalf and in his name, place and stead, in
any and all capacities, to sign, execute and file any and all documents
relating to this Registration Statement, including any and all amendments,
post-effective amendments, abbreviated registration statements pursuant to Rule
462 under the Securities Act, exhibits and supplements thereto, with the
Securities and Exchange Commission, and hereby grants to such attorneys-in-fact
and agents, and each of them, full power and authority to do and perform each
and every act and thing requisite and necessary to be done, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or their
or his substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
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<PAGE> 8
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 date indicated.
<TABLE>
<CAPTION>
Signature and Title Date
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<S> <C>
/s/ JOHN D. BELETIC July 26, 1996
-------------------------------------
John D. Beletic
Chairman, President, and
Chief Executive Officer
(Principal Executive Officer)
/s/ G. CLAY MYERS July 26, 1996
-------------------------------------
G. Clay Myers
Vice President, Finance,
Chief Financial Officer and Treasurer
(Principal Financial and Accounting
Officer)
/s/ FRANK V. SICA July 26, 1996
-------------------------------------
Frank V. Sica
Director
/s/ GUY L. DE CHAZAL July 26, 1996
-------------------------------------
Guy L. de Chazal
Director
/s/ ARTHUR PATTERSON July 26, 1996
-------------------------------------
Arthur Patterson
Director
</TABLE>
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<TABLE>
<S> <C>
July ___, 1996
-------------------------------------
Andrew C. Cooper
Director
July ___, 1996
-------------------------------------
Roger D. Linquist
Director
/s/ LEIGH J. ABRAMSON July 26, 1996
-------------------------------------
Leigh J. Abramson
Director
/s/ ALEJANDRO PEREZ ELIZONDO July 26, 1996
-------------------------------------
Alejandro Perez Elizondo
Director
/s/ PAMELA D. A. REEVE July 26, 1996
-------------------------------------
Pamela D. A. Reeve
Director
</TABLE>
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<PAGE> 10
INDEX TO EXHIBITS
Exhibit Number and Description
(4) Instruments defining the rights of securityholders,
including debentures
4.1 PageMart Wireless, Inc. Employee Stock
Purchase Plan
(5) Opinion regarding legality
5.1 Opinion of Winstead
Sechrest & Minick P.C.
(23) Consents of experts and counsel
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Winstead
Sechrest & Minick P.C.
(included in Exhibit 5.1)
(24) Power of attorney
24.1 Power of Attorney
(included on Page II-5)
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<PAGE> 1
EXHIBIT 4.1
PAGEMART WIRELESS, INC.
EMPLOYEE STOCK PURCHASE PLAN
WHEREAS, PageMart Wireless, Inc., a Delaware corporation (the
"Corporation"), desires to establish an employee stock purchase plan providing
for the grant of options to purchase shares of the Corporation's stock to
eligible employees of the Corporation and its Affiliates;
NOW, THEREFORE, the Corporation hereby establishes the Plan, the terms
of which are as follows:
ARTICLE I
PURPOSE OF PLAN
The purpose of the Plan is to secure for the Corporation and its
shareholders the benefits of the incentive inherent in the ownership of the
Corporation's common stock by present and future employees of the Corporation
and its Affiliates. The Plan is designed to conform to the provisions of Rule
16b-3 of the Exchange Act and is intended to be an "employee stock purchase
plan" within the meaning of section 423 of the Code and shall be construed in a
manner consistent with such intent.
ARTICLE II
DEFINITIONS
2.1 Affiliate. A "parent corporation," as defined in section
424(e) of the Code, or "subsidiary corporation," as defined in section 424(f)
of the Code, of the Corporation.
2.2 Board. The Board of Directors of the Corporation.
2.3 Code. The Internal Revenue Code of 1986, as amended.
2.4 Committee. A committee selected by the Board which shall be
comprised of two (2) or more directors, each of whom shall be "disinterested
persons," as defined in Rule 16b-3(c)(2)(i) promulgated under the Exchange Act,
and each of whom shall be "outside directors," as required under Section 162(m)
of the Code and such Treasury regulations as may be promulgated thereunder.
2.5 Corporation. PageMart Wireless, Inc. and its successors and
assigns.
2.6 Eligible Employee. Any employee of the Corporation or an
Affiliate, other than employees (i) who have not completed six (6) months of
continuous service with the Corporation or an Affiliate; (ii) whose customary
employment with the Corporation or an Affiliate is twenty (20) hours or less
per week; or (iii) who, immediately after the grant of an Option hereunder,
would own 5% or more of the total combined voting power or value of all classes
of stock of the Corporation or an Affiliate ("Five Percent Shareholder"). For
the purpose of determining if an individual is a Five Percent Shareholder, the
individual shall be deemed to own (i) any stock owned (directly or indirectly)
by or for such individual's brothers and sisters (whether by whole or half
blood relation), spouse, ancestors or lineal descendants, (ii) any stock which
he could
<PAGE> 2
acquire pursuant to outstanding options under this or any other option plan,
and (iii) any stock owned (directly or indirectly) by or for a corporation,
partnership, estate or trust of which such individual is a shareholder, partner
or beneficiary in proportion to his interest in such corporation, partnership,
estate or trust.
2.7 Exchange Act. The Securities Exchange Act of 1934, as amended.
2.8 Exercise Price. The Exercise Price shall be the lesser of:
(a) 90% of the Fair Market Value of the Stock on the applicable Grant Date, or
(b) 90% of the Fair Market Value of the Stock on the applicable Purchase Date.
2.9 Fair Market Value. The term "Fair Market Value" on any date
shall mean (a) if the Stock is listed or admitted to trade on a national
securities exchange, the closing price of the Stock on the Composite Tape, as
published in the Wall Street Journal, of the principal national securities
exchange on which the Stock is so listed or admitted to trade, on such date or,
if there is no trading of the Stock on such date, then the closing price of the
Stock as quoted on such Composite Tape on the next preceding date on which
there was trading in such shares; (b) if the Stock is not listed or admitted to
trade on a national securities exchange, then the closing price of the Stock as
quoted on the National Market System of the National Association of Securities
Dealers, Inc. ("NASD") on such date; (c) if the Stock is not listed to trade on
the National Market System of the NASD, the mean between the bid and asked
price for the Stock on such date, as furnished by the NASD through NASDAQ or a
similar organization if NASDAQ is no longer reporting such information; or (d)
if the Stock is not listed or admitted to trade on a national securities
exchange and if bid and asked prices for the Stock are not so furnished by the
NASD or a similar organization, the values established by the Committee for
purposes of the Plan. In addition to the above rules, Fair Market Value shall
be determined without regard to any restriction other than a restriction which,
by its terms, will never lapse.
2.10 Grant Date. The Grant Dates shall be January 1 and July 1 of
each year. For purposes of Section 423 of the Code, the Corporation shall be
deemed to have granted to each Eligible Employee an Option to purchase Stock on
each Grant Date.
2.11 Noncertificated Stock. Noncertificated stock shall mean
shares of Stock issued upon the exercise of Options which are held in book
entry form for which no physical certificates are issued.
2.12 Option. The right that is granted hereunder to a Participant
to purchase Stock from the Corporation at the Exercise Price on the applicable
Purchase Date.
2.13 Participant. An Eligible Employee who has elected to
participate in the Plan in accordance with Section 3.3 below.
2.14 Payroll Account. A bookkeeping account to which are added the
amounts withheld on behalf of each Participant under regular payroll deductions
authorized by Participants
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hereunder, and reduced by amounts due the Corporation to pay the Exercise Price
of Options exercised hereunder.
2.15 Plan. PageMart Wireless, Inc. Employee Stock Purchase Plan.
2.16 Purchase Date. The Purchase Date with respect to each Option
shall be the June 30 or December 31 immediately following the Grant Date of
such Option; provided that if either of such dates, as applicable, is not a
business day, then the immediately preceding business day shall be the Purchase
Date.
2.17 Stock. The Class A Convertible Common Stock of the
Corporation.
ARTICLE III
GRANT AND EXERCISE OF OPTIONS
3.1 Eligibility. Eligible Employees shall be eligible to
participate in the Plan on the first Grant Date following their fulfillment of
all applicable eligibility requirements, as set forth in Section 2.6 above.
3.2 Grant of Options. On each Grant Date, each individual who is
an Eligible Employee on such date shall, without further action of the
Committee, be granted an Option to purchase a number of whole shares of Stock
which, when aggregated with options under any other stock purchase plans of the
Corporation or an Affiliate, have a Fair Market Value (determined on such Grant
Date) that equals $25,000; provided that, on each Grant Date which is a July 1,
the grant to each Eligible Employee hereunder shall be reduced by an amount, if
any, equal to the Fair Market Value of Stock acquired by such Eligible Employee
pursuant to the exercise of an Option granted hereunder on the immediately
preceding January 1, the Fair Market Value of such Stock to be determined as of
such January 1. Each grant of an Option is subject to the following terms and
conditions:
(a) The Option shall be automatically exercised at the
Exercise Price on the applicable Purchase Date, unless the Participant
has, no later than the date preceding such Purchase Date as shall be
determined by the Committee, previously notified the Committee of his
withdrawal from the Plan, as provided in Section 3.3(d) below.
(b) Each Option shall expire on the applicable Purchase
Date.
(c) Each Option shall expire as of the date the Eligible
Employee is no longer employed by the Corporation or any of its
Affiliates, unless it expires sooner pursuant to Section 3.1(b).
(d) A right to purchase Stock which has accrued under one
Option granted hereunder may not be carried over to any other Option.
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<PAGE> 4
3.3 Payment of Exercise Price. Each Eligible Employee who desires
to participate in the Plan shall complete a participation agreement, in such
form as the Committee shall determine, which shall provide for the
authorization of deductions from the Eligible Employee's regular payroll. The
minimum payroll deduction shall be $10. Payroll deductions shall be credited
to a Payroll Account for each Participant. Amounts credited to a Participant's
Payroll Account shall be accumulated and reserved, without interest, for
payment of the Exercise Price on the Purchase Date.
(a) A Participant's payroll deduction election, if any,
as set forth in the participation agreement, shall remain in effect
for successive periods unless modified or revoked by the Participant
in accordance with this Section 3.3.
(b) The participation agreement authorizing payroll
deductions must be executed by an Eligible Employee within the time
period prior to the date for which it is to be effective, as shall be
established by the Committee. If the participation agreement is not
timely executed, the Eligible Employee shall not be permitted to
participate in the Plan until the first Grant Date subsequent thereto
as of which the Committee or its delegate has received a participation
agreement executed within the time, and in the form prescribed by the
Committee.
(c) A Participant may modify his payroll deduction
election as of any Grant Date by providing the Committee or its
delegate notice, within the time prior thereto and in the form
prescribed by the Committee. Such modification shall be effective as
of the first Grant Date following receipt by the Committee or its
delegate of such notice.
(d) A Participant may revoke his election to participate
in the Plan at any time. Such revocation shall be effective as soon
as practicable after receipt thereof by the Committee or its delegate,
in the form prescribed by the Committee. Upon receipt by the
Committee or its delegate of such revocation, all amounts credited to
such Participant's Payroll Account shall be returned to the
Participant as soon as administratively feasible thereafter, and such
Participant shall not be permitted to participate further in the Plan
until the first Grant Date subsequent thereto as of which the
Committee or its delegate has received notice of the Participant's
intent to again participate in the Plan, such notice to be given
within the time and in the form prescribed by the Committee. Unless
the Committee or its delegate receives a revocation within the time
period prior to the applicable Purchase Date which is established by
the Committee and communicated to Participants, such revocation shall
not be effective to avoid the exercise of an Option hereunder on said
Purchase Date.
3.4 Issuance of Stock. The Corporation shall issue Stock to a
Participant as follows, unless, prior to the applicable Purchase Date, the
Participant timely revokes an election to exercise an Option pursuant to
Section 3.3(d) above.
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<PAGE> 5
(a) The Corporation shall determine the number of whole
shares of Stock to be issued to each Participant on each Purchase Date
by dividing the balance of such Participant's Payroll Account by the
Exercise Price of each share of Stock on the applicable Purchase Date.
(b) The Corporation shall deduct from a Participant's
Payroll Account the amount necessary to purchase the greatest number
of whole shares of Stock that can be acquired under the applicable
Option.
(c) Any amounts remaining in the Payroll Account after
deducting the Exercise Price of the Option shall be held for use on
the next Purchase Date. However, amounts credited to the Payroll
Account of a Participant who has revoked his election to participate
in the Plan pursuant to the terms of Section 3.3(d) above, will be
paid to such Participant as soon as administratively feasible
thereafter, as provided in Section 3.3(d). A Participant who has
terminated employment shall be paid any amounts remaining in his
Payroll Account as soon as administratively feasible following his
termination of employment with the Corporation and all Affiliates.
(d) Without limiting the foregoing, the Corporation may,
at its election, upon the exercise of Options (i) issue Stock in the
name of the Plan, for the benefit of the Participants or (ii) reflect
the issuance of Stock in book entry form with Noncertificated Stock.
In either event, the Corporation shall cause to be delivered to each
Participant, on a semi-annual basis after each Purchase Date, a
statement which will reflect the number of shares of Stock purchased
for the Participant's Payroll Account and the purchase price of such
Stock. Upon the written request of a Participant, the Corporation
will issue physical certificates registered in the name of the
Participant. No certificates will be issued for fractional shares.
3.5 Nontransferability. Any Option granted under this Plan shall
not be transferable except by will or by the laws of descent and distribution,
and then only to the extent that such transfer is not prohibited by Rule 16b-3
of the Exchange Act. Only the Participant to whom an Option is granted may
exercise such Option, unless he is deceased. No right or interest of a
Participant in any Option shall be liable for, or subject to, any lien,
obligation or liability of such Participant.
3.6 Shareholder Rights. No Participant shall have any rights as a
shareholder with respect to shares of Stock subject to an Option granted
hereunder prior to the time that such Option is exercised.
3.7 Delivery of Stock. Stock issued pursuant to the exercise of
Options hereunder, shall be delivered to Participants by the Corporation (or
its transfer agent) as soon as administratively feasible upon the request of
such Participant or, if earlier, upon his termination of employment with the
Corporation and all Affiliates.
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<PAGE> 6
3.8 Dividend Income on Stock. Any cash dividends shall be paid to
each Participant on the basis of all of the Stock issued to the Participant
hereunder as of the record date designated for such dividend. Dividend
payments shall be made to Participants at the same time such payments are made
to all other shareholders of the Corporation.
ARTICLE IV
STOCK SUBJECT TO PLAN
4.1 Source of Stock. Upon the purchase of Stock pursuant to the
exercise of an Option, the Corporation may deliver to the Participant newly
issued shares of Stock or Stock acquired in private transactions or open market
purchases.
4.2 Maximum Number of Shares of Stock. The maximum aggregate
number of shares of Stock that may be issued pursuant to the exercise of
Options is 500,000, subject to the adjustments provided in Article 6.
ARTICLE V
ADMINISTRATION OF THE PLAN
5.1 General Authority. The Plan shall be administered by the
Committee. The express grant in the Plan of any specific power to the
Committee shall not be construed as limiting any power or authority of the
Committee. No member of the Committee shall be liable for any act done in good
faith with respect to this Plan or any participation agreement or Option. The
Corporation shall bear all expenses of Plan administration. The interpretation
and construction by the Committee of any terms or provisions of this Plan or of
any rule or regulation promulgated in connection herewith, shall be conclusive
and binding on all persons. All determinations of the Committee shall be made
by a majority of its members. In addition to all other authority vested with
the Committee under the Plan, the Committee shall have complete authority to:
(a) interpret all provisions of this Plan;
(b) prescribe the form of any participation agreement and/or
notice hereunder and the manner for executing or giving the
same;
(c) adopt, amend, and rescind rules for Plan administration; and
(d) make all determinations it deems advisable for the
administration of this Plan.
5.2 Persons Subject to Section 16(b). Notwithstanding anything in
the Plan to the contrary, the Board, in its absolute discretion, may bifurcate
the Plan so as to restrict, limit or condition the use of any provision of the
Plan to Participants who are members of the Committee
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<PAGE> 7
subject to Section 16(b) of the Exchange Act without so restricting, limiting
or conditioning the Plan with respect to other Participants.
ARTICLE VI
ADJUSTMENT UPON CORPORATE CHANGES
6.1 Adjustments Upon Changes in Capitalization or Merger. Subject
to any required action by the shareholders of the Corporation, the aggregate
number of shares of Stock which have been authorized for issuance under the
Plan shall be proportionately adjusted for any increase or decrease in the
number of issued shares resulting from a share split or the payment of a share
dividend with respect to the Stock or any other increase or decrease in the
number of issued shares of Stock effected without receipt of consideration by
the Corporation; provided, however, that conversion of any convertible
securities of the Corporation shall not be deemed to have been "effected
without receipt of consideration". Such adjustment shall be made by the
Committee, whose determination in that respect shall be final, binding and
conclusive. Except as expressly provided herein, no issuance by the
Corporation of Stock of any class, or securities convertible into Stock of any
class, shall affect, and no adjustment by reason thereof shall be made with
respect to, the number of shares of Stock subject to an Option.
In the event of the proposed dissolution or liquidation of the
Corporation, or in the event of a proposed sale of all or substantially all of
the assets of the Corporation, or the merger of the Corporation with or into
another corporation, Options granted under the Plan shall terminate immediately
prior to the consummation of such proposed action, unless otherwise provided by
the Committee. In such instances, the Committee may in its sole discretion
declare that any Option shall terminate as of a date fixed by the Committee and
give each Participant the right to exercise his Option as to all or any part of
the shares of Stock subject to such Option.
6.2 No Preemptive Rights. The issuance by the Corporation of
shares of Stock of any class, or securities convertible into shares of Stock of
any class, for cash or property, or for labor or services rendered, either upon
direct sale or upon the exercise of rights or warrants to subscribe therefor,
or upon conversion of shares of Stock or obligations of the Corporation
convertible into such shares or other securities, shall not affect, and no
adjustment by reason thereof shall be made with respect to, outstanding
Options.
6.3 Fractional Shares. Only whole shares of Stock may be acquired
through the exercise of an Option. Amounts remaining in a Participant's
Payroll Account after the maximum number of whole shares have been purchased on
any Purchase Date shall be held for use on the next Purchase Date, as provided
in Section 3.4(c) above.
ARTICLE VII
COMPLIANCE WITH LAW AND APPROVAL OF REGULATORY BODIES
7.1 General. No Option shall be exercisable, no shares of Stock
shall be issued, no certificates for shares of Stock shall be delivered, and no
payment shall be made under this Plan
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except in compliance with all applicable laws, rules and regulations
(including, without limitation, applicable securities laws, rules and
regulations, and withholding tax requirements). The Corporation shall have the
right to rely on an opinion of its counsel as to such compliance. No Option
shall be exercisable, no Stock shall be issued, no certificate for shares of
Stock shall be delivered and no payment shall be made under this Plan until the
Corporation has obtained such consent or approval as the Committee may deem
advisable from any regulatory bodies having jurisdiction over such matters.
7.2 Share Holding Periods. Participants shall not sell, transfer,
loan, grant an option for the purchase of, or otherwise dispose of any shares
of Stock purchased pursuant to the exercise of an Option for a period of 180
days from the Purchase Date of such shares (or such other period as determined
by the Committee). Furthermore, in order for tax treatment under Section
421(a) of the Code to apply to Stock acquired hereunder, the Participant is
generally required to hold such shares of Stock for two years after the Grant
Date of an Option pursuant to which such shares were acquired and for one year
after the transfer of such shares to the Participant. A person holding shares
of Stock acquired hereunder who disposes of shares prior to the expiration of
such holding periods shall notify the Corporation of such disposition in
writing.
7.3 Share Legends. Any certificate issued to evidence shares of
Stock for which an Option is exercised may bear such legends and statements as
the Corporation or Committee may deem advisable to assure compliance with
applicable laws, rules, regulations and Plan provisions. Such legends and
statements may include, but are not limited to, restrictions on transfer prior
to the expiration of the holding periods described in Section 7.2 above.
7.4 Representations by Participants. As a condition to the
exercise of an Option, the Corporation may require a Participant to represent
and warrant at the time of any such exercise that the Stock is being purchased
only for investment and without any present intention to sell or distribute
such Stock, if, in the opinion of counsel for the Corporation, such
representation is required by any relevant provision of the laws referred to in
Section 7.1. At the option of the Corporation, a stop transfer order against
any shares may be placed on the official books and records of the Corporation,
and a legend indicating that the Stock may not be pledged, sold or otherwise
transferred unless an opinion of counsel was provided (concurred in by counsel
for the Corporation) and stating that such transfer is not in violation of any
applicable law or regulation may be stamped on the Stock certificate in order
to assure exemption from registration. The Committee may also require such
other action or agreement by the Participants as may from time to time be
necessary to comply with applicable laws, rules and regulations. This
provision shall not obligate the Corporation or any Affiliate to undertake
registration or qualification of Options or Stock hereunder or to perfect an
exemption from such registration/qualification requirements.
ARTICLE VIII
GENERAL PROVISIONS
8.1 Effect on Employment. Neither the adoption of this Plan, its
operation, nor any documents describing or referring to this Plan (or any part
thereof) shall confer upon any
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employee any right to continue in the employ of the Corporation or an Affiliate
or in any way affect any right and power of the Corporation or an Affiliate to
terminate the employment of any employee at any time with or without assigning
a reason therefor.
8.2 Unfunded Plan. The Plan, insofar as it provides for grants,
shall be unfunded, and the Corporation shall not be required to segregate any
assets that may at any time be represented by grants under this Plan. Any
liability of the Corporation to any person with respect to any grant under this
Plan shall be based solely upon contractual obligations that may be created
hereunder. No such obligation of the Corporation shall be deemed to be secured
by any pledge of, or other encumbrance on, any property of the Corporation.
8.3 Rules of Construction. Headings are given to the articles and
sections of this Plan solely as a convenience to facilitate reference. The
masculine gender when used herein refers to both masculine and feminine. The
reference to any statute, regulation or other provision of law shall be
construed to refer to any amendment to or successor of such provision of law.
8.4 Governing Law. The laws of the State of Texas shall apply to
all matters arising under this Plan, to the extent that Federal law does not
apply.
8.5 Compliance With Section 16 of the Exchange Act. With respect
to persons subject to Section 16 of the Exchange Act, transactions under this
Plan are intended to comply with all applicable conditions of Rule 16b-3 or its
successor under the Exchange Act. To the extent any provision of this Plan or
action by Committee fails to so comply, it shall be deemed null and void to the
extent permitted by law and deemed advisable by the Committee.
8.6 Amendment. The Board may amend or terminate this Plan at any
time; provided, however, an amendment that would have a material adverse effect
on the rights of a Participant under an outstanding Option is not valid with
respect to such Option without the Participant's consent, except as necessary
for Options to maintain qualification under the Code; and provided further
that, to the extent that such approval is required for compliance with Rule
16b-3 of the Exchange Act, the provisions of the Plan relating to the number of
shares of Stock granted to persons subject to Section 16(b) of the Exchange
Act, the timing of such grants and the determination of the exercise price
shall not be amended more than once every six months, other than to comport
with changes in the Code or the rules thereunder. Provided further that the
shareholders of the Corporation must approve any amendment to the extent
required for compliance with Rule 16b-3 of the Exchange Act, Section 423 of
the Code, or any other applicable law or regulation.
8.7 Effective Date of Plan. Options may be granted under this
Plan upon its adoption by the Board, provided that any such grant shall be
conditioned upon approval by shareholders holding a majority of the
Corporation's outstanding shares of beneficial interest present or represented
by proxy and entitled to vote at the next shareholders' meeting, which is duly
held, that occurs after Board approval of the Plan. Until the Plan is so
approved by shareholders, any Stock purchased pursuant to Options granted
hereunder may not be pledged, hypothecated, or in any manner encumbered by the
Participant. This restriction is in addition to any other restrictions
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described herein, including the holding period requirements of Section 7.2 of
the Plan. If the Plan is not approved by the shareholders of the Corporation,
as described above, within 12 months after the date on which the Plan is
adopted by the Board, any shares of Stock purchased pursuant to Options granted
hereunder shall revert to the Corporation and the Exercise Price paid by the
Participant for such Stock shall be paid to the Participant as ordinary
compensation.
IN WITNESS WHEREOF, the Corporation has caused this Plan to be
executed on this the ______ day of __________________, 1996.
PAGEMART WIRELESS, INC.
By:
--------------------------
Its:
------------------------
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EXHIBIT 5.1
[LETTERHEAD OF WINSTEAD SECHREST & MINICK PC]
214/745-5120
July 29, 1996
PageMart Wireless, Inc.
6688 N. Central Expressway
Suite 800
Dallas, Texas 75206
Gentlemen:
PageMart Wireless, Inc., a Delaware corporation (the "Company"), is
today filing with the Securities and Exchange Commission (the "Commission") a
Registration Statement on Form S-8 (the "Registration Statement") under the
Securities Act of 1933, as amended, with respect to the registration of 500,000
shares (the "Shares") of Class A convertible common stock ("Common Stock"),
$0.0001 par value per share, of the Company which may hereafter be issued
pursuant to the PageMart Wireless, Inc. Employee Stock Purchase Plan (the
"Plan").
In rendering the opinions expressed herein, we have examined (i) the
Company's Restated Certificate of Incorporation and all amendments thereto,
(ii) the Company's Bylaws, as amended, (iii) minutes of meetings or consents
in lieu of meetings of the Company's board of directors and stockholders, and
(iv) such other corporate records and documents, certificates of corporate and
public officials and statutes as we have deemed necessary for the purposes of
this opinion. In such examination, we have assumed the genuineness of all
signatures, the authenticity of all corporate records, documents and
instruments submitted to us as originals, the conformity to original documents
of all documents submitted to us as conformed, certified or photostatic copies
thereof, the authenticity of the originals of such photostatic, certified or
conformed copies, and compliance both in the past and in the future with the
terms of the Plan by the Company and its employees, officers, Board of
Directors and any committees appointed to administer the Plan.
Based upon such examination and in reliance thereon, we are of the
opinion that:
Upon the issuance of Shares in accordance with the terms and
conditions of the Plan, including receipt prior to issuance by the Company of
the full consideration for the Shares (which consideration shall be at least
equal to the par value thereof), the Shares will be validly issued, fully paid
and nonassessable shares of Common Stock.
<PAGE> 2
July 29,1996
Page 2
This firm consents to the filing of this opinion with the Commission
as Exhibit 5.1 to the Registration Statement.
Very truly yours,
WINSTEAD SECHREST & MINICK P.C.
By: /s/ Robert E. Crawford, Jr.
-----------------------------
Robert E. Crawford, Jr.
RECjr:las
<PAGE> 1
EXHIBIT 23.1
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 12,
1996, included in PageMart Wireless, Inc.'s registration statement on Form S-1
(Registration No. 333-03012) and to all references to our Firm included in this
registration statement.
/s/ ARTHUR ANDERSEN LLP
Dallas, Texas
July 25, 1996
