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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 3, 2001
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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AT&T WIRELESS SERVICES, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 91-1379052
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
7277 164TH AVENUE NE, BUILDING 1
REDMOND, WASHINGTON 98052
(Address of principal executive offices, including zip code)
AT&T WIRELESS SERVICES, INC. 2001 LONG TERM INCENTIVE PLAN
AT&T WIRELESS SERVICES, INC. EMPLOYEE STOCK PURCHASE PLAN
AT&T WIRELESS SERVICES, INC. ADJUSTMENT PLAN
AT&T WIRELESS 401(K) SAVINGS PLAN
(Full titles of the plans)
GREGORY P. LANDIS
SENIOR VICE PRESIDENT AND GENERAL COUNSEL
AT&T WIRELESS SERVICES, INC.
7277 164TH AVENUE NE, BUILDING 1
REDMOND, WASHINGTON 98052
(425) 580-6000
(Name, address and telephone number, including area code, of agent for service)
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COPY TO:
J. SUE MORGAN
PERKINS COIE LLP
1201 THIRD AVENUE, SUITE 4800
SEATTLE, WASHINGTON 98101-3099
(206) 583-8888
CALCULATION OF REGISTRATION FEE
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PROPOSED
PROPOSED MAXIMUM AMOUNT
AMOUNT MAXIMUM AGGREGATE OF
TITLE OF SECURITIES TO BE OFFERING PRICE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED(1) PER SHARE(2) PRICE(2) FEE(2)
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COMMON STOCK, PAR VALUE $0.01 PER
SHARE, TOGETHER WITH ASSOCIATED
PREFERRED STOCK PURCHASE RIGHTS,
UNDER:
2001 LONG TERM INCENTIVE PLAN 151,000,000 $15.73 $2,375,230,000.00 $ 593,807.50
EMPLOYEE STOCK PURCHASE PLAN 14,000,000 $15.73 $ 220,220,000.00 $ 55,055.00
ADJUSTMENT PLAN 150,000,000 $15.73 $2,359,500,000.00 $ 589,875.00
401(k) SAVINGS PLAN 8,000,000 $15.73 $ 125,840,000.00 $ 31,460.00
TOTAL: 323,000,000 $15.73 $5,080,790,000.00 $1,270,197.50
====================================================================================================
In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
Registration Statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the 401(k) Savings Plan.
(1) Includes an indeterminate number of additional shares which may be
necessary to adjust the number of shares reserved for issuance pursuant
to the plans as the result of any future stock split, stock dividend or
similar adjustment of the Registrant's outstanding Common Stock.
(2) Pursuant to Rules 457(c), 457(f)(1) and 457(h)(1) under the Securities
Act of 1933 and solely for the purpose of calculating the registration
fee, the proposed maximum offering price per share under the plans is
estimated to be $15.73 based on the average of the high ($16.01) and low
($15.45) sales prices per share of AT&T Wireless Group tracking stock on
the New York Stock Exchange on June 26, 2001.
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PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange
Commission (the "Commission") are hereby incorporated by reference in this
Registration Statement:
(a) The Registrant's prospectus contained in Amendment No. 3 to
its Registration Statement on Form S-1 filed on June 21, 2001 under the
Securities Act of 1933, as amended (the "Securities Act"), which contains
audited financial statements for the most recent fiscal year for which such
statements have been filed; and
(b) The description of the Registrant's Common Stock contained
in the Registration Statement on Form 8-A filed on June 26, 2001, under Section
12(g) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
including any amendments or reports filed for the purpose of updating such
description.
All documents filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act after the date hereof, and prior
to the filing of a post-effective amendment which indicates that the securities
offered hereby have been sold or which deregisters the securities covered hereby
then remaining unsold, shall also be deemed to be incorporated by reference into
this Registration Statement and to be a part hereof commencing on the respective
dates on which such documents are filed.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law provides that a
corporation may indemnify directors and officers as well as other employees and
individuals against expenses, including attorneys' fees, judgments, fines and
amounts paid in settlement in connection with various actions, suits or
proceedings, whether civil, criminal, administrative or investigative other than
an action by or in the right of the corporation, a derivative action, if they
acted in good faith and in a manner they reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, if they had no reasonable cause to believe their
conduct was unlawful. A similar standard is applicable in the case of derivative
actions, except that indemnification only extends to expenses including
attorneys' fees incurred in connection with the defense or settlement of such
actions, and the statute requires court approval before there can be any
indemnification where the person seeking indemnification has been found liable
to the corporation. The statute provides that it is not exclusive of other
indemnification that may be granted by a corporation's by-laws, disinterested
director vote, stockholder vote, agreement or otherwise.
Our certificate of incorporation provides that each person who was or is
made a party, or is threatened to be made a party, to or is involved in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that such person, or a person of whom such
person is the legal representative, is or was a director or officer of us or, is
or was serving at our request as a director, officer, employee or agent of
another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans, whether
the basis of such proceeding is the alleged action of such person in an official
capacity as a director, officer, employee or agent or in any other capacity
while serving as a director, officer, employee or agent, will be indemnified and
held harmless by us to the fullest extent authorized by the Delaware General
Corporation Law, as the same exists or may hereafter be amended, against all
expense, liability and loss reasonably incurred or suffered by such person in
connection therewith;
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provided, however, that, except when such person is bringing action against us
to recover an unpaid claim of indemnification, we shall indemnify any such
person seeking indemnification in connection with a proceeding, or part thereof,
initiated by such person only if such proceeding, or part thereof, was
authorized by our board of directors. Our certificate of incorporation also
provides that we shall pay the expenses incurred in defending any such
proceeding in advance of its final disposition, subject to the provisions of the
Delaware General Corporation Law. Such rights are not exclusive of any other
right which any person may have or thereafter acquire under any statute,
provision of the certificate, by-law, agreement, vote of stockholders or
disinterested directors or otherwise. No repeal or modification of such
provision will in any way diminish or adversely affect the rights of any
director, officer, employee or agent of us thereunder in respect of any
occurrence or matter arising before any such repeal or modification. Our
certificate of incorporation also specifically authorizes us to maintain
insurance and to grant similar indemnification rights to our employees or
agents.
The Delaware General Corporation Law permits a corporation to provide in
its certificate of incorporation that a director of the corporation shall not be
personally liable to the corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, except for liability for
- any breach of the director's duty of loyalty to the corporation
or its stockholders,
- acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law,
- payments of unlawful dividends or unlawful stock repurchases or
redemptions, or
- any transaction from which the director derived an improper
personal benefit.
Our certificate of incorporation provides that none of our directors
will be personally liable to us or our stockholders for monetary damages for
breach of fiduciary duty as a director, except, if required by the Delaware
General Corporation Law as amended from time to time, for liability
- for any breach of the director's duty of loyalty to us or our
stockholders,
- for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law,
- under Section 174 of the Delaware General Corporation Law, which
concerns unlawful payments of dividends, stock purchases or
redemptions, or
- for any transaction from which the director derived an improper
personal benefit.
Neither the amendment nor repeal of such provision will eliminate or
reduce the effect of such provision in respect of any matter occurring, or any
cause of action, suit or claim that, but for such provision, would accrue or
arise before such amendment or repeal.
The Separation and Distribution Agreement by and among us and AT&T Corp.
dated as of June 4, 2001, provides for indemnification by us of AT&T Corp. and
its directors, officers and employees for some liabilities, including
liabilities under the Securities Act.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
Exhibit
Number Description
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5.1 Opinion of Perkins Coie LLP regarding legality of the Common
Stock being registered
23.1 Consent of PricewaterhouseCoopers LLP
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23.2 Consent of Arthur Andersen LLP
23.3 Consent of Perkins Coie LLP (included in opinion filed as
Exhibit 5.1)
24.1 Power of Attorney (see signature page)
99.1 AT&T Wireless Services, Inc. 2001 Long Term Incentive Plan
99.2 AT&T Wireless Services, Inc. Employee Stock Purchase Plan
99.3 AT&T Wireless Services, Inc. Adjustment Plan
The Registrant hereby undertakes that it will submit or has submitted
the 401(k) Savings Plan and any amendment thereto to the Internal Revenue
Service ("IRS") in a timely manner and has made or will make all changes
required by the IRS in order to qualify the plan.
ITEM 9. UNDERTAKINGS
A. The undersigned 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 thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this Registration
Statement; and
(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 (1)(i) and (1)(ii) above do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in this Registration Statement.
(2) That, for the 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.
B. The undersigned 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 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefits 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 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.
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C. 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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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 Seattle, State of Washington, on the 2nd day of
July, 2001.
AT&T WIRELESS SERVICES, INC.
/s/ JOHN D. ZEGLIS
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By: John D. Zeglis
Chairman, President and Chief
Executive Officer
POWER OF ATTORNEY
Each person whose individual signature appears below hereby authorizes
John D. Zeglis and Mohan Gyani, or either of them, as attorneys-in-fact with
full power of substitution, to execute in the name and on the behalf of each
person, individually and in each capacity stated below, and to file, any and all
post-effective amendments to this Registration Statement.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated below on the 2nd day of July, 2001.
SIGNATURE TITLE
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/s/ JOHN D. ZEGLIS Chairman, President and Chief Executive Officer
---------------------------------------------- (Principal Executive Officer)
John D. Zeglis
/s/ JOSEPH MCCABE, JR. Executive Vice President and Chief Financial Officer
---------------------------------------------- (Principal Financial and Accounting Officer)
Joseph McCabe, Jr.
/s/ MOHAN GYANI Director
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Mohan Gyani
/s/ HAROLD W. BURLINGAME Director
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Harold W. Burlingame
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THE AT&T WIRELESS 401(k) SAVINGS PLAN
Pursuant to requirements of the Securities Act of 1933, as amended, the
persons who will administer the AT&T Wireless 401(k) Savings Plan have duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Seattle, State of
Washington, on the 2nd day of July, 2001.
AT&T WIRELESS
401(k) SAVINGS PLAN
BY: AT&T WIRELESS SERVICES, INC.
By: /s/John D. Zeglis
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Its: Chairman, President and
Chief Executive Officer
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INDEX TO EXHIBITS
Exhibit
Number Description
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5.1 Opinion of Perkins Coie llp regarding legality of the Common
Stock being registered
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Arthur Andersen LLP
23.3 Consent of Perkins Coie LLP (included in opinion filed as
Exhibit 5.1)
24.1 Power of Attorney (see signature page)
99.1 AT&T Wireless Services, Inc. 2001 Long Term Incentive Plan
99.2 AT&T Wireless Services, Inc. Employee Stock Purchase Plan
99.3 AT&T Wireless Services, Inc. Adjustment Plan