-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, C4OOByo3wVN8O0cIithV4uLS52y8570w9BlwjOSwoTthPbkYmk6cq1TWE6o8u7e6 NcKbaf8OjZtoqdDWIhMe0A== 0000891020-00-000355.txt : 20000228 0000891020-00-000355.hdr.sgml : 20000228 ACCESSION NUMBER: 0000891020-00-000355 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20000225 EFFECTIVENESS DATE: 20000225 FILER: COMPANY DATA: COMPANY CONFORMED NAME: VOICESTREAM WIRELESS HOLDING CORP CENTRAL INDEX KEY: 0001097609 STANDARD INDUSTRIAL CLASSIFICATION: BLANK CHECKS [6770] IRS NUMBER: 911983600 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-31088 FILM NUMBER: 553006 BUSINESS ADDRESS: STREET 1: 3650 131ST AVENUE SE STREET 2: SUITE 400 CITY: BELLEVUE STATE: WA ZIP: 98006 BUSINESS PHONE: 4256504600 MAIL ADDRESS: STREET 1: 3650 131ST AVENUE SE STREET 2: SUITE 400 CITY: BELLEVUE STATE: WA ZIP: 98006 S-8 1 FORM S-8 1 REGISTRATION NO.____-___________ ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------------ VOICESTREAM WIRELESS HOLDING CORPORATION (Exact name of registrant as specified in its charter) Delaware 91-1983600 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 3650 131st Avenue S.E. Bellevue, Washington 98006 (425) 653-4600 (Address, including ZIP code, and telephone number, including area code, of registrant's principal executive offices) 2000 EXECUTIVE RESTRICTED STOCK PLAN (Full title of plan) Alan R. Bender, Esq. Copy to: Executive Vice President, G. Scott Greenburg, Esq. General Counsel and Secretary Matthew S. Topham, Esq. VoiceStream Wireless Holding Corporation Preston Gates & Ellis LLP 3650 131st Avenue S.E. 701 Fifth Avenue, Suite 5000 Bellevue, Washington 98006 Seattle, Washington 98104 (425) 653-4600 (206) 623-7580 (Name, address, including ZIP code, and telephone number, including area code, of agent for service)
=================================================================================================================== Maximum Title of securities Amount to be Maximum offering aggregate offering Amount of to be registered registered (1) price per unit (2) price (2) registration fee - ------------------------------------------------------------------------------------------------------------------- Common Stock, $.001 per share 200,000 shares $ 144.625 $28,925,000 $ 7,636 ===================================================================================================================
(1) Together with an indeterminate number of additional shares which may be necessary to adjust the number of shares reserved for issuance pursuant to such plan as the result of any future stock split, stock dividend or similar adjustment of the outstanding Common Stock of the Registrant. (2) Estimated solely for the purpose of calculating the registration fee and, pursuant to Rule 457(c) and (h), based upon the average of the high and low prices of VoiceStream Wireless Corporation common stock reported on February 22, 2000, as reported on the Nasdaq Stock Market. 2 INTRODUCTORY STATEMENT VoiceStream Wireless Holding Corporation ("VoiceStream Holding") is filing this registration statement on Form S-8 relating to its common stock, par value $.001 per share, which may be issued pursuant to the VoiceStream Wireless Corporation 2000 Executive Restricted Stock Plan (the "Plan"). VoiceStream Holding adopted the 2000 Executive Restricted Stock Plan in connection with two separate reorganizations that will result in VoiceStream Wireless Corporation ("VoiceStream") and either or both of Omnipoint Corporation ("Omnipoint") and Aerial Communications, Inc. ("Aerial") becoming subsidiaries of VoiceStream Holding. On February 24, 2000, the shareholders of VoiceStream, Omnipoint and Aerial approved the reorganizations with respect to which they were entitled to vote. Upon the completion of the first to occur of the two reorganizations, VoiceStream Holding will change its name to VoiceStream Wireless Corporation. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The following documents heretofore filed with the Securities and Exchange Commission (the "Commission") by VoiceStream Holding or VoiceStream (File No. 0-25441) are incorporated herein by reference: (a) VoiceStream's registration statement on Form 10 filed with the Commission on February 24, 1999, as amended by VoiceStream's Form 10/A dated April 1, 1999, and Form 10/A dated April 13, 1999; (b) VoiceStream's Quarterly Reports on Form 10-Q for the quarters ended March 31, 1999, June 30, 1999 and September 30, 1999, as amended by VoiceStream's Form 10-Q/A dated January 18, 2000; (c) VoiceStream's Current Reports on Form 8-K dated May 10, 1999, May 27, 1999, June 24, 1999, July 7, 1999, October 18, 1999, October 26, 1999, November 9, 1999, and February 14, 2000; (d) VoiceStream Holding's Registration Statement on Form S-4, filed on October 27, 1999, pursuant to the Securities Act of 1933, as amended (the "Securities Act"), as amended by VoiceStream Holding's Form S-4/A dated December 3, 1999, Form S-4/A dated December 29, 1999, Form S-4/A dated January 18, 2000, Form S-4/A dated January 24, 2000, and Post Effective Amendment No. 1 dated January 25, 2000, including any amendment or report filed for the purpose of updating such registration statement; and (e) The description of VoiceStream Holding's Common Stock, $.001 par value per share (the "Common Stock") contained in VoiceStream Holding's Form 8-A filed with the Commission on February 23, 2000, including any amendment or report filed for the purpose of updating such description. All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this registration statement and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold are deemed to be incorporated by reference into this registration statement and to be a part hereof from the respective dates of filing of such documents (such documents, and the documents enumerated above, being hereinafter referred to as "Incorporated Documents"). Any statement contained in an Incorporated Document shall be deemed to be modified or superseded for purposes of this registration statement to the extent that a statement contained herein or in any other subsequently filed Incorporated Document modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement. II-1 3 ITEM 4. DESCRIPTION OF SECURITIES Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL Legal matters in connection with the securities registered hereby were passed upon by Preston Gates & Ellis LLP, Seattle, Washington. Partners and attorneys employed by that firm hold less than 50,000 shares of common stock of VoiceStream Wireless Corporation. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS Pursuant to the Delaware General Corporation Law, a corporation may not indemnify any director, officer, employee or agent made or threatened to be made party to any threatened, pending, or completed proceeding unless such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal proceedings, had no reasonable cause to believe that his or her conduct was unlawful. The Delaware General Corporation Law also establishes several mandatory rules for indemnification. In the case of a proceeding by or in the right of the corporation to procure a judgment in its favor (e.g., a stockholder derivative suit), a corporation may indemnify an officer, director, employee or agent if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the corporation; provided, however, that no person adjudged to be liable to the corporation may be indemnified unless, and only to the extent that, the Delaware Court of Chancery or the court in which such action or suit was brought determines upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which such court deems proper. A director, officer, employee, or agent who is successful, on the merits or otherwise, in defense of any proceeding subject to the Delaware General Corporation Law's indemnification provisions must be indemnified by the corporation for reasonable expenses incurred therein, including attorneys' fees. The Company's bylaws provide for mandatory indemnification of the Company's officers and directors and certain other persons to the fullest extent permissible under Delaware law. In addition, the Company intends to enter into an indemnification agreement with each of its executive officers and directors. Pursuant to this indemnification agreement, the Company will indemnify the executive officer or director against certain liabilities arising by reason of the executive officer's or the director's affiliation with the Company. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED Not applicable. ITEM 8. EXHIBITS
EXHIBIT DESCRIPTION ------- ----------- 4.1 -- VoiceStream Wireless Corporation 2000 Executive Restricted Stock Plan 5.1 -- Opinion of Preston Gates & Ellis LLP 23.1 -- Consent of Preston Gates & Ellis LLP (see Exhibit 5.1) 23.2 -- Consent of Arthur Andersen LLP
II-2 4 ITEM 9. UNDERTAKINGS (a) The registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement. (2) That, for purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. II-3 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 Bellevue, State of Washington, on this 24th day of February, 2000. VOICESTREAM WIRELESS HOLDING CORPORATION By /s/ Alan R. Bender ------------------------------------- Alan R. Bender Executive Vice President, General Counsel, Secretary and Director Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on this 24th day of February, 2000.
SIGNATURE TITLE --------- ----- /s/ John W. Stanton Chief Executive Officer - ---------------------------------------- (Principal Executive Officer) John W. Stanton /s/ Cregg B. Baumbaugh Executive Vice President- - ---------------------------------------- Finance, Strategy and Cregg B. Baumbaugh Development (Principal Financial Officer) /s/ Patricia L. Miller Vice President, Controller - ---------------------------------------- and Principal Accounting Patricia L. Miller Officer /s/ Alan R. Bender Executive Vice President, - ---------------------------------------- General Counsel, Secretary Alan R. Bender and Director /s/ Donald Guthrie Director and Vice Chairman - ---------------------------------------- Donald Guthrie
II-4 6 INDEX TO EXHIBITS TO REGISTRATION STATEMENT ON FORM S-8
EXHIBIT DESCRIPTION ------- ----------- 4.1 -- VoiceStream Wireless Corporation 2000 Executive Restricted Stock Plan 5.1 -- Opinion of Preston Gates & Ellis LLP 23.1 -- Consent of Preston Gates & Ellis LLP (see Exhibit 5.1) 23.2 -- Consent of Arthur Andersen LLP
EX-4.1 2 2000 RESTRICTED STOCK PLAN 1 VOICESTREAM WIRELESS CORPORATION 2000 EXECUTIVE RESTRICTED STOCK PLAN ADOPTED BY THE BOARD: APRIL 8, 1999 ADOPTED BY THE SHAREHOLDERS: APRIL 8, 1999 TERM: MAY 3, 1999 TO APRIL 30, 2009 1. PURPOSE. This Executive Restricted Stock Plan (this "Plan") allows VoiceStream Wireless Corporation (the "Company") to grant stock bonuses or sell stock to its key officers, and is intended to promote the interests of the Company and its shareholders by aligning the interests of the Company executives with Company shareholders. The stock to be issued pursuant to this Plan will be Restricted Stock, as defined in 3 below, and as such will be subject to certain restrictions, described herein, that are imposed to promote the purposes hereof. 2. ADOPTION AND ADMINISTRATION OF PLAN. This Plan shall become effective as of May 3, 1999 and shall remain in effect until April 30, 2009 unless sooner terminated as herein provided. This Plan shall be administered by the Company's Board of Directors (the "Board"), provided that the Board may delegate its administrative responsibilities hereunder to a committee of not less than three directors who shall administer this Plan in the name of the Board (the "Committee"). As used hereafter herein, the term "Committee" shall refer to the Board if no Committee then exists or is then designated. So long as the Company is a reporting company under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), each member of the Committee who participates in administration must be a "Non-Employee Director" as that term is defined in Rule 16b(3) promulgated by the Securities and Exchange Commission pursuant to the Exchange Act. All members of the Committee shall also be "outside directors" within the meaning of section 162(m) ("Section 162(m)") of the Internal Revenue Code of 1986, as amended. The Committee shall have full power and authority to (i) administer and interpret this Plan, (ii) make all grants, offers, bonuses, and awards hereunder and (iii) adopt, from time to time, such guidelines, rules, regulations, agreements, and instruments for the administration of this Plan as the Committee deems necessary or advisable. Such powers include, but are not limited to (subject to the specific limitations described herein), authority to determine the employees to be issued Restricted Stock under this Plan, to determine the size, type, and applicable restrictions, performance criteria, terms and conditions of issuances to be made to such employees, to determine a time when issuances will occur, and to authorize issuances to eligible employees. The Committee shall have absolute discretion in any determination of whether any particular performance goal in any grant has been achieved or restriction has lapsed. The Committee shall prepare guidelines for notification to holders of Restricted Stock with performance based restrictions as to whether any such performance criteria have been met, and upon determination that the criteria have been met the Committee shall have the obligation to deliver written confirmation of the same to each holder of Restricted Stock within 30 days following achievement of the performance goal. The Committee shall also establish a mechanism to allow the removal of restrictive legends promptly after the achievement of the applicable performance criteria. The Committee's interpretations of this Plan, and all actions taken and determinations made by the Committee concerning any matter arising under or with respect to this Plan or any issuances of Restricted Stock pursuant to this Plan, shall be final, binding, and conclusive on all interested parties, including the Company, its shareholders, and all former, present, and future employees of the Company. At such time as the Company is not subject to the reporting requirements of the Exchange Act, the Committee may delegate some or all of its power and authority hereunder to the Chairman or Chief 2 Executive Officer of the Company, such delegation to be subject to such terms and conditions as the Committee in its discretion shall determine. Such delegation of authority may be contained in guidelines, rules, and regulations adopted by the Board from time to time with respect to this Plan. The Committee may, as to questions of accounting, rely conclusively upon any determinations made by independent public accountants of the Company. 3. STOCK SUBJECT TO PLAN. There is hereby established a reserve (the "Reserve"), out of the Company's authorized but unissued stock, of 200,000 shares of the Company's Common Stock, no par value per share (the "Restricted Stock"), for issuance under this Plan. As grants, offers, bonuses and awards are made, the Reserve shall be reduced by the number of shares of Restricted Stock issued. Any shares of Restricted Stock that are forfeited by the holder shall be added back to the Reserve. Any shares with respect to which restrictions have lapsed shall not be eligible to be added back to the Reserve. If the shares of Common Stock of the Company should, as a result of a stock split, stock dividend, combination of shares, or any other change or exchange for other securities by reclassification, reorganization, redesignation, merger, consolidation, recapitalization or otherwise, be increased or decreased or changed into, or exchanged for, a different number or kind of shares of stock or other securities of the Company or of another corporation, the number of shares of Restricted Stock then remaining in the Reserve shall be appropriately adjusted to reflect such action. If any such adjustment shall result in a fractional share, such fraction shall be disregarded. Upon the issuance of shares of Restricted Stock pursuant to this Plan, the Reserve will be reduced by the number of shares issued. Notwithstanding any other provision hereof, no single employee may at any single time receive a grant, offer, bonus, or award of Restricted Stock in excess of 33.33 percent of the shares of Restricted Stock remaining at such time in the Reserve. 4. ELIGIBILITY. The Committee will designate, from time to time, key executives of the Company or any of its subsidiaries, parents or affiliates (including officers and directors of the Company), engaged in activities which further the Company's objectives, who will be eligible to obtain shares under this Plan and the number of shares of Restricted Stock of the Company to be issued to each. In selecting the persons to whom offers to obtain shares hereunder will be made and in determining the number of shares to be offered, the Committee will consider the position and responsibilities of such persons, the value of their services to the Company or its subsidiaries, and such other factors as the Committee deems pertinent. 5. RIGHTS TO RESTRICTED STOCK. (a) Restricted Stock Offers. After the Committee has determined to offer a person the right to obtain Restricted Stock under this Plan, it will advise the offeree in writing of the offer's terms, including the number of shares which such person will be entitled to obtain, the price per share, if any, and any other terms, conditions, and restrictions relating thereto (the "Restricted Stock Offer"). This notice will also provide that such person has 15 days from the date of the Restricted Stock Offer to accept the offer in the manner set forth in the Restricted Stock Offer. The form by which the Restricted Stock Offer will be established by the Committee, and the same may be amended from time-to-time at the discretion of the Committee. The Committee may also, in the exercise of its discretion, extend the Restricted Stock Offer's acceptance or effective term. Subject to this Plan's express provisions, the Committee may make any such Restricted Stock Offer subject to any terms and conditions it establishes, and the Restricted Stock Offers made to different persons, or to the same person at different times, may be subject to terms, conditions and restrictions which differ from each other. (b) Special Performance Awards. In connection with any Restricted Stock Offer to any one of the five most highly compensated officers of the Company, in order to comply with limitations imposed by 2 3 Section 162(m) while retaining the flexibility to ensure that executive compensation is tied to performance and reward executives consistent with the Company's compensation philosophy, all or part of the shares covered by a Restricted Stock Offer may be designated as a Special Performance Award, as to which the restrictions on shares so designated shall only be removed and the shares shall only become freely tradable by the holder thereof if certain pre-established performance goals are met during a specified performance period as set by the Committee. Restrictions on shares subject to a Special Performance Award granted to any individual whose compensation from the company is covered by Section 162(m) of the Code shall be removed only after the Committee certifies in writing that the performance goals have been met. The Committee shall establish Performance Periods of any duration or with respect to any criteria, which may overlap and which may differ for each executive, but shall not exceed ten years. Prior to the end of 90 days following the commencement of each Performance Period, the Committee shall establish specific and objective performance goals for the Performance Period and a specific formula in connection with such performance goals for the removal of restrictions. The performance goals shall be based on one of more of the following performance measures, or other specific measures determined from time to time by the Committee: growth; financial results; and quality, productivity and efficiency. (i) Growth shall be measured in terms of increases one or more of the following: number of license areas served, number of subscribers, and revenue. Customer growth shall be measured in terms of one or more of the following: number of new customers; number of net new customers; revenue per new customer; and level of customer churn. (ii) Financial results shall be measured in terms of one or more of the following relating to the Company as a whole or a particular operating unit: operating cash flow; free cash flow; cash operating income (Earnings Before Interest, Taxes, Depreciation and Amortization ("EBITDA")); net income; earnings per share; total stockholder return; and relative stockholder return. (iii) Quality, productivity and efficiency shall be measured in terms of one or more of the following: customer and employee satisfaction; quantitative measures of system and customer service performance; and the cost of acquiring and cost of serving customers. 6. TERMS OF RESTRICTED STOCK OFFERS. (a) Price. The Committee will determine if there is to be a purchase price of the shares being offered under this Plan, and if so shall set the price. If there is no purchase price, the Restricted Stock Offer will be treated as a Restricted Stock bonus. Whether or not there is a purchase price, the offeree must accept the offer in a timely manner to receive the offered Restricted Stock. The purchase price, if any, must be paid in full, in cash or certified or bank check, at the Company's principal office before the offer expires, for the Restricted Stock Offer's acceptance to be effective. The date upon which the Restricted Stock Offer is finally accepted and the purchase price, if any, is paid is sometimes hereinafter called the "Closing Date." (b) Restrictions. By accepting the Restricted Stock under this Plan being offered to him or her, an offeree agrees and consents to all terms, conditions, and restrictions contained in the Restricted Stock Offer and to the following (unless the Restricted Stock Offer by its terms indicates the following shall not apply): (i) Any transfer or purported transfer made by a purchaser of shares under this Plan, except at the times and in the manner specified herein and in the Restricted Stock Offer, will be null and void and the Company shall not recognize or give effect to such transfer on its books and records or 3 4 recognize the person or persons to whom such proposed transfer has been made as the legal or beneficial holder of those shares. (ii) Notwithstanding anything in this Plan to the contrary, upon the death of a holder of shares of Restricted Stock subject to this Plan, such shares may be conveyed by will or by the laws of descent and distribution, subject to the provisions of this Plan and to applicable provisions of any other Agreement by which the Company may be bound. Any successor in interest to the holder in such event may not further convey, transfer, encumber or otherwise dispose of such shares except as provided herein. (iii) Certificates representing shares which are subject to this Plan will bear the following legend, in addition to such other legends as counsel to the Company may deem appropriate: RESTRICTED SHARES "The shares represented by this certificate are restricted and subject to (i) all terms, conditions, and restrictions of the VoiceStream Wireless Corporation Executive Restricted Stock Plan, and (ii) the terms of the Restricted Stock Offer pursuant to which the shares represented hereby were originally issued, copies of which are on file and available for inspection during normal business hours at the principal offices of VoiceStream Wireless Corporation." 7. EVENTS OF RESALE. If any of the following events ("Events of Resale") occurs or, having occurred, continues in effect, on or before the date all restrictions in this Plan or in the Restricted Stock Offer have lapsed with respect to particular shares of Restricted Stock, the holder will sell to the Company and the Company will purchase from the holder all the Restricted Stock obtained by the holder under this Plan that remains subject to such restrictions. With respect to any shares of Restricted Stock to which the restrictions herein or in the Restricted Stock Offer no longer apply, this provision shall not apply. The price per share in the case of Restricted Stock subject hereto shall equal the original price paid by the holder for such shares, and if there is no purchase price, then without payment therefore: (a) if the employment of the offeree by the Company or its subsidiaries is terminated other than by reason of the offeree's death or permanent and total disability (as defined in the Company's 1999 Management Incentive Stock Option Plan); (b) if an offeree who is not an employee, having been nominated as a director of the Company, fails or refuses to stand for election or, if elected, to serve as such or resigns as a director; or (c) if the offeree receives shares of Restricted Stock subject to any other Event of Resale in the Restricted Stock Offer, and such Event of Resale Occurs. Within 30 days after such an occurrence, the Company, by notice to the holder, will state that an Event of Resale has occurred and will specify a date not less than five, and not more than ten, days from the date of such notice to consummate the purchase and sale of such shares at the Company's principal office. At the closing, the holder will deliver to the Company certificates representing all of the shares purchased hereunder, and duly endorsed with all necessary transfer stamps affixed. Upon the receipt of such share certificates, the Company will deliver to the holder a check in the amount of the purchase price, if any. If the holder fails to deliver the share certificates to the Company at the closing, the Company may deposit the purchase price, if any, with the Secretary of the Company, and thereafter the 4 5 shares will be deemed to have been transferred to the Company and the holder, despite the holder's failure to deliver the share certificates, will have no further rights derived from such shares as a stockholder of the Company. In this event, the Secretary of the Company will continue to hold the purchase price, if any, for such shares and will make payment thereof, without interest, upon delivery of the share certificates to the Company, accompanied by the appropriate endorsements. 8. EXPENSES. The Company will pay all expenses and costs in connection with the administration of this Plan. 9. NO PRIOR RIGHT OF OFFER. Nothing in this Plan will be deemed to give any director, officer, or employee, or such individual's legal representatives or assigns, or any other person or entity claiming under or through such individual, any contractual or other right to participate in the benefits of this Plan. 10. INDEMNIFICATION OF THE COMMITTEE. In addition to such other rights or indemnification as they may have, the Company will indemnify members of the Committee against all costs and expenses reasonably incurred by them or any of them in connection with: any action, suit, or proceeding to which they or any of them may be a party by reason of any action taken, or failure to act, under or in connection with this Plan or any award granted pursuant thereto and against all amounts paid by them in settlement thereof (provided such settlement is approved by legal counsel selected by the Company) or paid by them in satisfaction of a judgment in any action, suit or proceeding; provided that upon institution of any such action, suit, or proceeding, the person desiring indemnification gives the Company an opportunity, at its own expense, to handle and defend the same. 11. AMENDMENT AND TERMINATION OF PLAN; AMENDMENT OF TERMS OF GRANTS The Board may at any time terminate or extend this Plan, or modify this Plan as it deems advisable; provided, that any amendment or extension required by Section 162(m) to be approved by the Shareholders shall be effective subject to such approval within twelve months of adoption by the Board. No termination or amendment of this Plan shall, without the consent of any person affected thereby, modify or in any way affect any right or obligation created prior to such termination or amendment. The Board may amend the terms and conditions of outstanding Restricted Stock Offers or Restricted Stock, provided, however, that (i) no such amendment would be adverse to the holders thereof, and (ii) the amended terms would be permitted under this Plan. Subject to the provisions of Section 162(m) as applicable, in the event of (i) any change in the business or condition of the Company, including any change in connection with mergers, reorganizations, separations, or other transactions to which Section 424(a) of the Code would apply if applicable, or (ii) in the event of any changed circumstances in the duties and/or responsibilities of any employee holding Restricted Stock when restrictions are specific to performance of duties or responsibilities that have changed, the Committee shall have discretion as to adjustment or removal of any or all restrictions of any Restricted Stock, and in the event thereof any adjustments by the Committee of restrictions shall attempt to as closely as possible establish restrictions that have the same intent and effect as the original performance based restrictions. 12. LIABILITY OF COMPANY. The Company's liability under this Plan and any sale made hereunder is limited to the obligations set forth with respect to such sale and nothing in this Plan will be construed to impose any liability on the 5 6 Company in favor of the purchaser with respect to any loss, cost, or expense which the purchaser may incur in connection with, or arising out of, any transaction in connection therewith. 13. NO AGREEMENT TO EMPLOY. Nothing in this Plan will be construed to constitute, or evidence, an agreement or understanding, express or implied, by the Company to employ or retain the purchaser for any specific period of time. 14. PURCHASE AGREEMENT. Any Restricted Stock Offer made hereunder, as accepted, may be embodied in a Restricted Stock Agreement containing such terms and conditions, not inconsistent with this Plan, as will, in the opinion of the Committee and counsel for the Company, be necessary or desirable to protect the Company. For all purposes thereafter, the Restricted Stock Agreement will be the Restricted Stock Offer as referenced herein. 15. FEDERAL INCOME TAX CONSEQUENCES. The federal income tax consequences of a person's acquisition of Restricted Stock pursuant to this Plan are complex and subject to change. The following discussion, which has been prepared by the law firm of Preston Gates & Ellis LLP, counsel to the Company, is only a summary of the general rules applicable at the time of adoption of this Plan by the Board to the acquisition of stock subject to restrictions that are linked to the continued performance of services. It is based on the Internal Revenue Code of 1986, as amended (the "Code), the Regulations promulgated thereunder, and judicial and administrative interpretations thereof, all as currently in effect. These laws, Regulations and interpretations are subject to change, potentially retroactively. Further, a person's particular situation may be such that some variation of these general rules would apply. ACCORDINGLY, IT IS STRONGLY RECOMMENDED THAT EACH PERSON WHO MAY RECEIVE RESTRICTED STOCK PURSUANT TO THIS PLAN CONSULT WITH HIS OR HER OWN TAX ADVISOR REGARDING THE IMPLICATIONS OF THE RECEIPT OF RESTRICTED STOCK AND THE FILING OF A SECTION 83(b) ELECTION. Generally, a person who receives Restricted Stock who is an employee, officer or director of the Company, or otherwise provides services to the Company (a "Restricted Stock Holder") will be treated as receiving stock that is subject to a "substantial risk of forfeiture" for federal income tax purposes. This is because the Restricted Stock is subject to redemption by the Company if a Restricted Stock Holder's employment terminates under certain circumstances and may be unsaleable by the Restricted Stock Holder unless certain other events occur, such as the achievement of particular personal or Company performance goals. As a result, a Restricted Stock Holder will not be subject to tax, as a general matter, on his or her acquisition of the Restricted Stock but will be subject to federal income tax at such time as such Restricted Stock vests (i.e., is, in whole or in part, no longer subject to a redemption right on the part of the Company or the other restrictions on sale). At that time, a Restricted Stock Holder will recognize ordinary compensation income per share in an amount equal to the difference between what he or she paid for the share of Restricted Stock and the value of such share at such later time. Such compensation income is subject to federal income tax withholding as well as to Social Security (FICA) taxes and unemployment taxes. If a Restricted Stock Holder makes an election under Section 83(b) of the Code, however, a different result will apply. If this election is properly filed, then an acquired share of Restricted Stock will no longer be treated as property subject to a "substantial risk of forfeiture" for federal income tax purposes. As a result, a Restricted Stock Holder will recognize as compensation income at the time of receipt of the Restricted Stock any excess of the value of the Restricted Stock over the amount paid for such Restricted Stock. If the election is properly made, any gain subsequently realized on a sale of 6 7 Restricted Stock shares would constitute capital gain, not subject to federal income tax withholding, FICA taxes or unemployment taxes. If an Event of Resale takes place and if an amount is included in the income of the Restricted Stock Holder as a result of a Section 83(b) election, the Restricted Stock Holder will not recognize a loss on the resale of the Restricted Stock to the Company (even though an amount was included in the income of the Restricted Stock Holders as a result of the Section 83(b) election). AN ELECTION UNDER SECTION 83(b) OF THE CODE MUST BE FILED WITH THE INTERNAL REVENUE SERVICE AND DELIVERED TO THE EMPLOYER OF THE RESTRICTED STOCK HOLDER WITHIN THIRTY (30) DAYS AFTER THE DATE ON WHICH A RESTRICTED STOCK HOLDER RECEIVES THE APPLICABLE RESTRICTED STOCK. A FORM OF A SECTION 83(b) ELECTION IS AVAILABLE FROM THE COMPANY'S SECRETARY. 16. NOTICES. Any notice or other communication required or permitted to be made or given hereunder will be sufficiently made or given if sent by certified mail or other personal delivery service addressed to the offeree or holder at such individual's address as set forth in the Company's regular books and records and, if to the Company, addressed to it at its principal office. 7 EX-5.1 3 OPINION OF PRESTON GATES & ELLIS LLP 1 EXHIBIT 5.1 Opinion and Consent of Counsel February 25, 2000 VoiceStream Wireless Holding Corporation 3650 131st Avenue S.E. Bellevue, Washington 98006 Re: Registration Statement on Form S-8 of VoiceStream Wireless Holding Corporation Ladies and Gentlemen: We have acted as counsel to VoiceStream Wireless Holding Corporation (the "Company") in connection with the filing of the above-referenced Registration Statement (the "Registration Statement") relating to the registration of shares (the "Shares") of Common Stock, $.001 par value per share, of the Company that may be issued pursuant to the 2000 Executive Restricted Stock Plan (the "Plan"). In connection therewith, we have reviewed the Company's Amended and Restated Certificate of Incorporation, Bylaws and minutes of appropriate meetings, and we are familiar with the proceedings to date with respect to the Plan and the proposed issuance and sale of the Shares and have examined such records, documents and questions of law, and have satisfied ourselves as to such matters of fact, as we have considered relevant and necessary as a basis for this opinion. Based on the foregoing, it is our opinion that: 1. The Company is duly incorporated and validly existing under the laws of the State of Delaware. 2. The Shares, as and when acquired in accordance with the terms and conditions of the Plan, will be legally issued, fully paid and non-assessable under the Delaware corporate law when certificates representing the Shares shall have been duly executed, countersigned and registered and duly delivered to the purchasers thereof against payment of the agreed consideration therefor. We do not find it necessary for the purposes of this opinion to cover, and accordingly we express no opinion as to, the application of the securities or blue sky laws of the various states to the sale of the Shares. 2 We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to all references to our firm included in or made a part of the Registration Statement. Very truly yours, PRESTON GATES & ELLIS LLP By /s/ G. Scott Greenburg ------------------------------- G. Scott Greenburg EX-23.2 4 CONSENT OF ARTHUR ANDERSEN LLP 1 EXHIBIT 23.2 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the use of our reports (and to all references to our Firm), as it relates to VoiceStream Wireless Corporation and Subsidiaries, included in or made a part of this registration statement. /s/ Arthur Andersen LLP Seattle, Washington February 22, 2000 -----END PRIVACY-ENHANCED MESSAGE-----