-----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, QDJvGDjs4MSAFsJhod0PBtdfxzolQ67iyrraE25mFN8W76wdH2KyKd7oUIfFCNEa jjsjYNXdt+nUKEtcYA7B6Q== 0000950130-99-006794.txt : 19991201 0000950130-99-006794.hdr.sgml : 19991201 ACCESSION NUMBER: 0000950130-99-006794 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19991130 EFFECTIVENESS DATE: 19991130 FILER: COMPANY DATA: COMPANY CONFORMED NAME: TELECORP PCS INC CENTRAL INDEX KEY: 0001089341 STANDARD INDUSTRIAL CLASSIFICATION: RADIO & TV BROADCASTING & COMMUNICATIONS EQUIPMENT [3663] IRS NUMBER: 541872248 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-91807 FILM NUMBER: 99766677 BUSINESS ADDRESS: STREET 1: 1010 N GLEBE ROAD STREET 2: SUITE 800 CITY: ARLINGTON STATE: VA ZIP: 22201 BUSINESS PHONE: 7032361100 MAIL ADDRESS: STREET 1: 1010 N GLEBE ROAD STREET 2: SUITE 800 CITY: ARLINGTON STATE: VA ZIP: 22201 S-8 1 FORM S-8 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ________ Form S-8 REGISTRATION STATEMENT Under THE SECURITIES ACT OF 1933 TeleCorp PCS, Inc. (Exact name of registrant as specified in its charter) Delaware 54-1872248 (State or other jurisdiction (I.R.S. Employer of incorporation or organization) Identification No.) 1010 N. Glebe Road, Suite 800 Arlington, VA 22201 (703) 236-1100 (Address, including zip code, and telephone number, including area code, of registrant's principal executive offices) TeleCorp PCS, Inc. 1999 Stock Option Plan (Full title of plan) Thomas H. Sullivan Executive Vice President and Chief Financial Officer TeleCorp PCS, Inc. 1010 N. Glebe Road, Suite 800 Arlington, VA 22201 (Name, address, including zip code, and telephone number, including area code, of agent for service) Copies to: David A. Cifrino, P.C. McDermott, Will & Emery 28 State Street Boston, MA 02109 Calculation of Registration Fee
- -------------------------------------------------------------------------------------------------------------- Proposed maximum Proposed maximum Title of Securities Amount to be offering price per aggregate offering Amount of to be registered Registered(1) share price registration fee - -------------------------------------------------------------------------------------------------------------- Class A Common 1,814,321 $34.625 $62,820,865 $17,465 Stock, $0.01 par value per share - --------------------------------------------------------------------------------------------------------------
(1) Plus such additional number of shares as may be required pursuant to the Plan in the event of a stock dividend, split of shares, recapitalization or other similar change in the Class A Common Stock. (2) Estimated solely for the purpose of calculating the registration fee, in accordance with Rule 457(h)(1), on the basis of the average of the high and low bids of the Class A Common Stock as reported on The Nasdaq National Market on November 24, 1999. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference The following documents are hereby incorporated by reference in this registration statement: (a) The Company's prospectus dated November 22, 1999 filed with the Securities and Exchange Commission (the "Commission") on November 23, 1999 pursuant to Rule 424(b) under the Securities Act of 1933, as amended (the "Securities Act"), containing the Company's audited financial statements for the fiscal year ended December 31, 1998. (b) The description of the Company's Class A Common Stock incorporated by reference into the Company's registration statement on Form 8-A (File No. 000- 27901) filed with the Commission on November 2, 1999 from the Company's registration statement on Form S-1 (SEC File No. 333-89393), as amended. In addition, all documents filed by the Company after the initial filing date of this registration statement pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") and prior to the filing of a post-effective amendment which indicates that all shares registered hereunder have been sold or which de-registers all shares then remaining unsold, shall be deemed to be incorporated by reference in this registration statement and to be a part hereof from the date of filing of such documentation. Item 4. Description of Securities Not applicable. Item 5. Interests of Named Experts and Counsel Not applicable. Item 6. Indemnification of Officers and Directors As permitted by Section 102(b)(7) of the DGCL, our restated certificate of incorporation includes a provision that eliminates the personal liability of our directors and executive officers for monetary damages for breach of fiduciary duty as a director or executive officer, except: (1) for any breach of the director's or executive officer's duty of loyalty to us or our stockholders; (2) for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law; (3) for unlawful dividends and stock purchases under the DGCL; or (4) for any transaction from which the director derived an improper personal benefit. In addition, Section 145 of the General Corporation Law of the State of Delaware ("DGCL") provides that a corporation may indemnify a director, officer, employee or agent against expenses (including attorneys' fees), judgements, fines and for amounts paid in settlement in respect of or in successful defense of any action, suit or proceeding if he acted in good faith and in a manner he reasonable believed to be in or not opposed to the best interest of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. Our bylaws provide that: (1) we must indemnify our directors and officers to the fullest extent permitted by Delaware law, subject to very limited exceptions; (2) we may indemnify our other employees and agents to the same extent that we indemnify our officers and directors, unless otherwise required by law, our amended and restated certificate of incorporation, our bylaws or agreements; and (3) we must advance expenses, as incurred, to our directors and executive officers in connection with any legal proceeding to the fullest extent permitted by Delaware law, subject to limited exceptions. We have also entered into indemnity agreements with each of our directors and executive officers to give them additional contractual assurances regarding the scope of the indemnification described above and to provide additional procedural protections. In addition, we have obtained directors' and officers' insurance providing indemnification for our directors, officers and key employees for various liabilities. Item 7. Exemption from Registration Claimed Not applicable. Item 8. Exhibits The following exhibits are filed with this report, except as otherwise indicated: 5.1 Opinion of McDermott, Will & Emery as to the legality of the shares being registered. 10.1 TeleCorp PCS, Inc. 1999 Stock Option Plan (Exhibit 10.27 to the Company's S-1 Registration Statement, incorporated herein by reference). 23.1 Consent of PricewaterhouseCoopers, LLP. 23.2 Consent of McDermott, Will & Emery (included in Exhibit 5.1) 25.1 Power of Attorney (included on page II). Item 9. Undertakings (a) The Company hereby undertakes: -2- (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 the purpose of determining any liability under the Securities Act of 1933, as amended (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; and (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 Company hereby undertakes 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 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. (h) 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 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. -3- SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Registration Statement on Form S-1 to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of Arlington, Commonwealth of Virginia, on November 30, 1999. TeleCorp PCS, Inc. By: /s/ Gerald T. Vento _________________________________ Gerald T. Vento Chief Executive Officer -I- POWER OF ATTORNEY TeleCorp PCS, Inc. and each person whose signature appears below constitutes and appoints each of Thomas H. Sullivan and Gerald T. Vento as true and lawful attorneys-in-fact and agents with full power of substitution and resubstitution for each such person and in such person's name, in any and all capacities, (A) to sign all amendments (including pre-effective and post-effective amendments) to this registration statement; (B) to file such amendments with all exhibits and other related documents with the Securities and Exchange Commission; and (C) to perform every act necessary in connection with (A) or (B); and (2) ratifies and confirms everything that such attorneys-in-fact and agents, or any or them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue of this appointment. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement on Form S-8 has been signed below as of November 30, 1999 by the following persons in the capacities indicated. Signature Title /s/ Gerald T. Vento ____________________________ Chief Executive Officer and Chairman Gerald T. Vento /s/ Thomas H. Sullivan ____________________________ Executive Vice President, Chief Financial Thomas H. Sullivan Officer and Director ____________________________ Director Michael R. Hannon /s/ Scott Anderson ____________________________ Director Scott Anderson /s/ Rohit M. Desai ____________________________ Director Rohit M. Desai /s/ James M. Hoak ____________________________ Director James M. Hoak /s/ Mary Hawkins-Key ____________________________ Director Mary Hawkins-Key ____________________________ Director William Kussell /s/ Michael Schwartz ____________________________ Director Michael Schwartz -II- EXHIBIT INDEX The following exhibits are filed with this report, except as otherwise indicated: 5.1 Opinion of McDermott, Will & Emery as to the legality of the shares being registered. 10.1 TeleCorp PCS, Inc. 1999 Stock Option Plan (Exhibit 10.27 to the Company's S-1 Registration Statement, incorporated herein by reference). 23.1 Consent of PricewaterhouseCoopers LLP. 23.2 Consent of McDermott, Will & Emery (included in Exhibit 5.1) 25.1 Power of Attorney (included on page II). EX-5.1 2 OPINION OF MCDERMOTT, WILL & EMERY Exhibit 5.1 [Letterhead of McDermott, Will & Emery] November 30, 1999 TeleCorp PCS, Inc. 1010 N. Glebe Road Suite 800 Arlington, Virginia 22201 Gentlemen: This opinion is delivered to you in connection with this registration statement on Form S-8 (the "Registration Statement") to be filed on or about November 30, 1999 by TeleCorp PCS, Inc. (the "Company") under the Securities Act of 1933, as amended, for registration under said Act of 1,814,321 shares of Class A Voting Common Stock, $0.01 par value (the "Class A Common Stock"). We are familiar with the Company's Certificate of Incorporation, as amended, its By-Laws, as amended, and the records of its corporate proceedings, as well as the Registration Statement. We have also examined such other documents, records and certificates and made such further investigation as we have deemed necessary for the purposes of this opinion. Based upon and subject to the foregoing, we are of the opinion that the shares of Class A Common Stock to be sold by the Company under its 1999 Stock Option Plan as in effect on the date hereof, when issued against receipt of the agreed purchase price therefor, will be legally issued, fully paid and nonassessable. We understand that this opinion is to be used in connection with the Registration Statement and consent to the filing of this opinion as an exhibit to the Registration Statement. Very truly yours, /s/ MCDERMOTT, WILL & EMERY EX-23.1 3 CONSENT OF PRICEWATERHOUSE COOPERS Exhibit 23.1 ------------ CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated November 16, 1999, except for Note 17 for which the date is November 22, 1999, relating to the consolidated financial statements which appear in the TeleCorp PCS, Inc. (the "Company") prospectus dated November 22, 1999 filed with the Securities and Exchange Commission on November 23, 1999 pursuant to Rule 424(b) under the Securities Act of 1933, as amended. /s/ PricewaterhouseCoopers LLP PricewaterhouseCoopers LLP McLean, Virginia November 24, 1999 -----END PRIVACY-ENHANCED MESSAGE-----