As filed with the Securities and Exchange Commission on December 13, 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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AirGate PCS, Inc.
(Exact name of registrant as specified in its charter)
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Delaware 58-2422929
(State or Other (I.R.S.
Jurisdiction EmployerIdentification
ofIncorporation or No.)
Organization)
Harris Tower, Suite 1700
233 Peachtree Street, N.E.
Atlanta, Georgia 30303
(404) 525-7272
(Address, including Zip Code, and Telephone Number of Principal Executive
Offices)
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AirGate PCS, Inc. Amended and Restated 2000 Long Term Incentive Plan
(Full Title of the Plan)
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Barbara L. Blackford
Vice President, General Counsel and Corporate Secretary
Harris Tower, Suite 1700
233 Peachtree Street, N.E.
Atlanta, Georgia 30303
(Name and Address of Agent for Service)
(404) 525-7272
(Telephone Number, Including Area Code, of Agent for Service)
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Copy to:
Robert F. Wall, Esq.
R. Cabell Morris, Esq.
Winston & Strawn
35 West Wacker Drive
Chicago, Illinois 60601
(312) 558-5600
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Amount Maximum Maximum
to be Offering Price Aggregate Amount of
Title of Securities to be Registered Registered(1) Per Share Offering Price Registration fee
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Common Stock, par value $0.01 per share 478,417 shares (2) $32.04 (3) $15,328,481 (3) $3,664
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Common Stock, par value $0.01 per share 628,992 shares (4) $53.38 (5) $33,575,593 (5) $8,025
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(1) Pursuant to Rule 416(c) under the Securities Act of 1933, as amended (the
"1933 Act"), this Registration Statement also covers an indeterminate
amount of interests to be offered or sold pursuant to the long-term
incentive plan described herein.
(2) Options for 478,417 shares of the registrant's common stock have been
issued for a weighted-average exercise price of $32.04 per share.
(3) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h)(1) under the 1933 Act on the basis of the
weighted-average exercise price of the outstanding options.
(4) There are currently 628,992 shares of the registrant's common stock
reserved or available for issuance as options pursuant to the AirGate PCS,
Inc. Amended and Restated 2000 Long Term Incentive Plan (the "Plan"). The
number of shares being registered includes an indeterminate number of
additional shares which may be necessary to adjust the number of shares
reserved for issuance pursuant to the Plan as the result of a stock split,
stock dividend or similar adjustment of the outstanding common stock of the
registrant pursuant to Rule 416(a).
(5) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h)(1) and (c) under the 1933 Act on the basis of the
average of the high and low closing prices of the registrant's common stock
on the Nasdaq National Market on December 7, 2001.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents previously filed with the Securities and Exchange
Commission (the "Commission") by AirGate PCS, Inc. (the "Registrant") pursuant
to the Securities Exchange Act of 1934, as amended (the "1934 Act"), are
incorporated by reference herein:
(1) The Registrant's Annual Report on Form 10-K for the fiscal year ended
September 30, 2001.
(2) The Registrant's Current Reports on Form 8-K filed with the
Securities and Exchange Commission on November 14, November 16, November 27
and November 30, 2001.
(3) The description of the Registrant's common stock, $0.01 par value
("Common Stock"), contained in the Registrant's Registration Statement on
Form 8-A (File No. 0-27455) filed under the 1934 Act, including any
amendment thereto or report filed for the purpose of updating such
description.
All documents subsequently filed with the Commission by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the 1934 Act, prior to the
filing of a post-effective amendment (i) which indicates that all securities
offered herein have been sold or (ii) which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference herein and to
be part hereof from the respective dates of filing of such documents. Any
statement contained herein or in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes hereof or of the related prospectus to the extent that a statement
contained herein or in any other subsequently filed document which is also
incorporated or deemed to be incorporated herein 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.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
In accordance with General Corporation Law of the State of Delaware (being
chapter 1 of Title 8 of the Delaware code), the Registrant's Certificate of
Incorporation provides as follows:
The Registrant shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the Registrant to procure a judgment in its favor by
reason of the fact that such person acted in any of the capacities set forth
above, against expenses (including attorney's fees) actually and reasonably
incurred by him in connection with the defense or settlement of such action or
suit if such person acted under similar standards, provided that the Registrant
receives a written undertaking by or on behalf of the director or officer to
repay such amount if it is ultimately determined that that such person is not
entitled to be indemnified by the Registrant.
To the extent that a director or officer of the Registrant has been
successful in the defense of any action, suit or proceeding referred to above
or in the defense of any claim, issue or matter therein, such person shall be
indemnified against expenses (including attorney's fees) actually and
reasonably incurred by him or her in connection therewith, that indemnification
provided for by the Certificate of Incorporation shall not be deemed exclusive
of any other rights to which the indemnified party may be entitled; and that
the Registrant is empowered to purchase and maintain insurance on behalf of a
director or officer of the Registrant against any liability asserted against
him or her in any such capacity, or arising out of such person's status as
such, whether or not the Registrant would have the power to indemnify him
against such liabilities under the Certificate of Incorporation.
In addition to indemnification provided to the Registrant's officers and
directors in the Certificate of Incorporation and under the laws of Delaware,
the Registrant has entered into indemnification agreements with certain
officers and directors to provide further assurances and protection from
liability that they may incur in their respective positions and duties in
connection with the public offering or as a fiduciary of the Registrant and its
shareholders. The Registrant has agreed to indemnify and hold harmless, to the
extent permitted under Delaware law, each person and affiliated person
(generally, any director, officer, employee, controlling person, agent, or
fiduciary of the indemnified person), provided that the indemnified person was
acting or serving at the Registrant's request in his capacity as either an
officer, director, employee, controlling person, fiduciary or other agent or
affiliate of the Registrant. Under the indemnification agreements, each person
is indemnified against any and all losses, claims, damages, expenses and
liabilities, joint or several, (including attorney's fees, expenses and amount
in settlement) that occur in connection with any threatened, pending or
completed action, suit, proceeding, alternative dispute resolution mechanism or
hearing, inquiry or investigation that such indemnified person believes in good
faith may lead to the institution of such action, under the Securities Act of
1933, Securities Exchange Act of 1934 or other federal or state statutory law
or regulation, at common law or otherwise, which relate directly or indirectly
to the registration, purchase, sale or ownership of any securities of the
Registrant or to any fiduciary obligation owed with respect to the Registrant
and its stockholders. As a condition to receiving indemnification, indemnified
persons are required to give notice in writing of any claim for which
indemnification may be sought under such agreement.
The agreement provides that an indemnified person may receive
indemnification against (1) expenses (including attorney's fees and other
costs, expenses and obligations incurred), judgments, fines and penalties; (2)
amounts paid in settlement (approved by the Registrant); (3) federal, state,
local taxes imposed as a result of receipt of any payments under the
indemnification agreement; and (4) all interest, assessments and other charges
paid or payable in connection with any expenses, costs of settlement or taxes.
An indemnified person will be indemnified against expenses to the extent that
he is successful on the merits or otherwise, including dismissal of an action
without prejudice, in defense of any action, suit, proceeding, inquiry or
investigation. Expenses that the indemnified person have or will incur in
connection with a suit or other proceeding may be received in advance within 10
days of written demand to the Registrant.
Prior to receiving indemnification or being advanced expenses, a committee,
consisting of either members of the board of directors or any person appointed
by the board of directors, must make a determination of whether the indemnified
person is entitled to indemnification under Delaware law. If there is a change
in control (as defined in the indemnification agreement) that occurs without
majority approval of the board of directors, then the committee will consist of
independent legal counsel selected by the indemnified person and approval by
the Registrant to render a written opinion as to whether and the extent of
indemnification that the indemnified person is entitled, which will be binding
on the Registrant Under the indemnification agreement, an indemnified person
may appeal a determination by the committee not to grant indemnification or
advance expenses by commencing a legal proceeding. Failure of the committee to
make an indemnification determination or the termination of any claim by
judgment, order, settlement, plea of nolo contendere, or conviction does not
create a presumption that either (1) the indemnified person did not meet a
particular standard of conduct or belief or (2) that the court has determined
that indemnification is not available.
Under the indemnification agreement, an indemnified person is entitled to
contribution from the Registrant for losses, claims, damages, expenses or
liabilities as well as other equitable considerations upon the determination of
a court of competent jurisdiction that indemnification is not available. The
amount contributed
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by the Registrant will be in proportion, as appropriate, to reflect the
relative benefits received by the Registrant and the indemnified person or, if
such contribution is not permitted under Delaware law, then the relative
benefit will be considered with the relative fault of both parties. In
connection with the registration of Registrant's securities, the relative
benefits received by the Registrant and indemnified person will be deemed to be
in the same respective proportions of the net proceeds from the offering (less
expenses) received by the Registrant and the indemnified person. The relative
fault of the Registrant and the indemnified person is determined by reference
to whether the untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Registrant or the indemnified person and their relative intent,
knowledge, access to information and opportunity to correct such statement or
omission.
Contribution paid takes into account the equitable considerations, if any,
instead of a pro rata or per capital allocation. In connection with the
offering of the Registrant's securities, an indemnified person will not be
required to contribute any amount in excess of the lesser of (1) the proportion
of the total of such losses, claims, damages, or liabilities indemnified
against equal to the proportion of the total securities sold under the
registration statement sold by the indemnified person or (2) the proceeds
received by the indemnified person from the sale of securities under the
registration statement. Contribution will not be available if such person is
found guilty of fraudulent misrepresentation, as defined in the agreement.
In the event that the Registrant is also obligated under a claim and upon
written notice to the indemnified person, the Registrant is entitled to assume
defense of the claim and select counsel which is approved by the indemnified
person. Upon receipt of the indemnified person's approval, the Registrant will
directly incur the legal expenses and as a result will have the right to
conduct the defense as it sees fit in its sole discretion, including the right
to settle any claim against any indemnified party without consent of the
indemnified person.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The following documents are filed as exhibits to this Registration Statement:
Exhibit No. Description
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4.1 Amended and Restated Certificate of Incorporation of the Registrant (incorporated herein by
reference to Exhibit 3.1 to the Registration Statement on Form S-1/A, filed by the Registrant with
the Commission on June 15, 1999 (SEC File Nos. 333-79189-02 and 333-79189-01)).
4.2 Amended and Restated Bylaws of the Registrant (incorporated herein by reference to Exhibit 3.2
to the Registration Statement on Form S-1/A, filed by the Registrant with the Commission on
June 15, 1999 (SEC File Nos. 333-79189-02 and 333-79189-01)).
4.3 Specimen certificate representing the Common Stock (incorporated herein by reference to Exhibit
4.1 to the Registration Statement on Form S-1/A, filed by the Registrant with the Commission on
June 15, 1999 (SEC File Nos. 333-79189-02 and 333-79189-01)).
5.1 Opinion of Winston & Strawn.
23.1 Consent of KPMG LLP.
23.2 Consent of Deloitte & Touche LLP.
23.3 Consent of Winston & Strawn (included in Exhibit 5.1).
24.1 Powers of attorney (incorporated herein by reference to Exhibit 24.1 to the Registration Statement
on Form S-3, filed by the Registrant with the Commission on November 13, 2001).
99.1 AirGate PCS, Inc. Amended and Restated 2000 Long Term Incentive Plan.
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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
1933 Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in this registration statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the 1934 Act that are incorporated by reference
in the registration statement.
(2) That, for the purpose of determining any liability under the 1933
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 Registrant hereby undertakes that, for purposes of determining any
liability under the 1933 Act, each filing of the Registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the 1934 Act (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the 1934 Act) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the 1933 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 Securities and Exchange Commission
such indemnification is against public policy as expressed in the 1933 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 1933 Act and will be governed by the
final adjudication of such issue.
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SIGNATURES
The Registrant. 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 Atlanta, the State of Georgia, on December 13,
2001.
AIRGATE PCS, INC.
By: /s/ THOMAS M. DOUGHERTY
Name: Thomas M. Dougherty
Title: President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
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/s/ THOMAS M. DOUGHERTY President, Chief Executive Officer and December 13, 2001
----------------------- Director (Principal Executive Officer)
Thomas M. Dougherty
/s/ ALAN B. CATHERALL Chief Financial Officer December 13, 2001
----------------------- (Principal Financial and Accounting
Alan B. Catherall Officer)
* Director December 13, 2001
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Bernard A. Bianchino
/s/ MICHAEL S. CHAE Director December 13, 2001
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Michael S. Chae
* Director December 13, 2001
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John R. Dillon
* Director December 13, 2001
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Robert A. Ferchat
* Director December 13, 2001
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Sidney E. Harris
* Director December 13, 2001
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Barry J. Schiffman
/s/ TIMOTHY M. YAGER Director December 13, 2001
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Timothy M. Yager
* /s/ THOMAS M. DOUGHERTY
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Pursuant to a Power-Of-Attorney filed as Exhibit 24.1 to the Registration
Statement on Form S-3, filed by the Registrant with the Securities and Exchange
Commission on November 13, 2001.
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INDEX TO EXHIBITS
Exhibit No. Description
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4.1 Amended and Restated Certificate of Incorporation of the Registrant (incorporated herein by
reference to Exhibit 3.1 to the Registration Statement on Form S-1/A, filed by the Registrant
with the Commission on June 15, 1999 (SEC File Nos. 333-79189-02 and 333-79189-01)).
4.2 Amended and Restated Bylaws of the Registrant (incorporated herein by reference to Exhibit 3.2
to the Registration Statement on Form S-1/A, filed by the Registrant with the Commission on
June 15, 1999 (SEC File Nos. 333-79189-02 and 333-79189-01)).
4.3 Specimen certificate representing the Common Stock (incorporated herein by reference to Exhibit
4.1 to the Registration Statement on Form S-1/A, filed by the Registrant with the Commission
on June 15, 1999 (SEC File Nos. 333-79189-02 and 333-79189-01)).
5.1 Opinion of Winston & Strawn.
23.1 Consent of KPMG LLP.
23.2 Consent of Deloitte & Touche LLP.
23.3 Consent of Winston & Strawn (included in Exhibit 5.1).
24.1 Powers of attorney (incorporated herein by reference to Exhibit 24.1 to the Registration Statement
on Form S-3, filed by the Registrant with the Commission on November 13, 2001).
99.1 AirGate PCS, Inc. Amended and Restated 2000 Long Term Incentive Plan.
6