As filed with the Securities and Exchange Commission on March 26, 2004.
File No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
________________________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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AirGate PCS, Inc.
(Exact Name of Issuer as Specified in its Charter)
Delaware 58-2422929
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
Harris Tower, Suite 1700
233 Peachtree Street, N.E.
Atlanta, GA 30303
(404) 525-7272
(Address, including zip code, and telephone number of Principal
Executive Offices)
AIRGATE PCS, INC. AMENDED AND RESTATED 2002 LONG-TERM INCENTIVE PLAN
(Full Title of the Plan)
Copy to:
MARY LOVE SULLENBERGER LAURA G. THATCHER
AirGate PCS, Inc. Alston & Bird LLP
Harris Tower, Suite 1700 One Atlantic Center
233 Peachtree Street, N.E. 1201 West Peachtree Street, N.W.
Atlanta, GA 30303 Atlanta, Georgia 30309-3424
(404) 525-7272 (404) 881-7546
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
_______________________
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Securities Amount to Maximum Maximum Amount of
to be Registered be Registered Offering Price Aggregate Registration Fee
Per Unit Offering Price
------------------------------------- ----------------------- ------------------------- -------------------------- -----------------
Common Stock 905,000 (1) $16.49 (2) $14,923,450.00 (2) $1,890.80
$0.01 par value per share
------------------------------------- ----------------------- ------------------------- -------------------------- -----------------
(1) Amount to be registered consists of an aggregate of 905,000 shares to be
issued pursuant to the grant or exercise of awards granted to employees,
officers, directors and consultants under the AirGate PCS, Inc. 2002
Amended and Restated Long-Term Incentive Plan, including additional shares
that may become issuable in accordance with the adjustment and
anti-dilution provisions of the Plan.
(2) Determined in accordance with Rule 457(h), the registration fee calculation
for these shares is based on the average of the high and low prices of the
Company's Common Stock reported on the Nasdaq National Market on March 22,
2004.
PART I INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
(a) The documents constituting Part I of this Registration
Statement will be sent or given to participants in the Plan as specified by Rule
428(b)(1) under the Securities Act of 1933, as amended.
(b) Upon written or oral request, the Registrant will provide,
without charge, the documents incorporated by reference in Item 3 of Part II of
this Registration Statement. The documents are incorporated by reference in the
Section 10(a) prospectus. The Registrant will also provide, without charge, upon
written or oral request, other documents required to be delivered to employees
pursuant to Rule 428(b). Requests for the above-mentioned information, should be
directed to Mary Love Sullenberger, Assistant General Counsel, at (404)
832-6111.
PART II INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents have been filed by AirGate PCS, Inc. (the
"Registrant") with the Securities and Exchange Commission (the "Commission")
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and are deemed to be a part hereof from the date of the filing of such
documents:
(1) The Registrant's Annual Report on Form 10-K/A for the fiscal year
ended September 30, 2003 and Amendment No. 2 to such report;
(2) All other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Exchange Act since September 30, 2003;
(3) The description of Registrant's common stock, $0.01 par value
("Common Stock"), contained in Registrant's Registration Statement on Form 8-A
(File No. 0-27455), filed with the SEC pursuant to Section 12(g) of the Exchange
Act and Rule 12b-15 promulgated thereunder, on September 24, 1999, including any
subsequent amendment or any report filed for the purpose of updating that
description.
All documents subsequently filed with the Commission by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment that indicates that all securities
offered herein have been sold or that deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference herein and to be part of
hereof from the respective dates of filing such documents. Any statement
contained in a document incorporated or deemed incorporated herein by reference
shall be deemed to be modified or superseded for the purpose of this
Registration Statement to the extent that a statement contained herein or in any
subsequently filed document which also is, or is deemed to be, incorporated
herein by reference 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.
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Item 5. Interests of Named Experts and Counsel.
Not Applicable.
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.
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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 of being advanced expenses, a
committee, consisting or 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
approved 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's determination not to grant
indemnification or advance expenses by commencing a legal proceeding. Failure of
the committee to make a 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 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 AirGate, PCS, Inc.'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 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
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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 Number Description
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4.1 Corrected Amended and Restated Certificate of
Incorporation of the Registrant (incorporated by
reference to Exhibit 3.1 to the quarterly report
on Form 10-Q filed by the Registrant with the
Commission on February 2, 2004 for the quarter
ended December 31, 2003 (SEC File No. 000-27455)
4.2 Amended and Restated Bylaws of the Registrant
(incorporated by reference to Exhibit 3.2 to the
annual report on Form 10-K/ A filed by the
Registrant with the Commission on January 17,
2003 for the year ended September 30, 2002 (SEC
File No. 000-27455))
4.3 Specimen certificate representing the Common
Stock (incorporated 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 Alston & Bird LLP
23.1 Consent of Counsel (included in Exhibit 5.1)
23.2 Consent of KPMG LLP
24.1 Power of Attorney
99.1 AirGate PCS, Inc. Amended and Restated 2002
Long-Term Incentive Plan
Item 9. Undertakings.
(a) The undersigned Company 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 of 1933;
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(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. 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;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information in
this Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above do
not apply if the Registration Statement is on Form S-3, Form S-8 or Form F-3,
and the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in this Registration Statement.
(2) That, for the 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 being 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 Company 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 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.
(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.
(signatures on following page)
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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, State of Georgia, on March 24, 2004.
AirGate PCS, Inc.
By: /s/ Thomas M. Dougherty
Thomas M. Dougherty
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 an on the dates indicated.
Name Title Date
---- ----- ----
/s/ Thomas M. Dougherty
----------------------------
Thomas M. Dougherty President, Chief Executive Officer March 24, 2004
and Director
(Principal Executive Officer)
/s/ Louis Martinez
----------------------------
Louis Martinez Controller March 24, 2004
(Principal Financial and Accounting
Officer)
/s/ Robert A. Ferchat*
----------------------------
Robert A. Ferchat Director March 25, 2004
/s/ John W. Risner*
----------------------------
John W. Risner Director March 25, 2004
/s/ Stephen R. Stetz*
----------------------------
Stephen R. Stetz Director March 25, 2004
* /s/ Thomas M. Dougherty, as Attorney-in-Fact
Pursuant to a Power of Attorney filed as Exhibit 24.1 to this Registration
Statement.
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EXHIBIT INDEX
TO
REGISTRATION STATEMENT ON FORM S-8
Exhibit Number Description
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4.1 Corrected Amended and Restated Certificate of
Incorporation of the Registrant (incorporated by
reference to Exhibit 3.1 to the quarterly report
on Form 10-Q filed by the Registrant with the
Commission on February 2, 2004 for the quarter
ended December 31, 2003 (SEC File No. 000-27455)
4.2 Amended and Restated Bylaws of the Registrant
(incorporated by reference to Exhibit 3.2 to the
annual report on Form 10-K/ A filed by the
Registrant with the Commission on January 17,
2003 for the year ended September 30, 2002 (SEC
File No. 000-27455))
4.3 Specimen certificate representing the Common
Stock (incorporated 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 Alston & Bird LLP
23.1 Consent of Counsel (included in Exhibit 5.1)
23.2 Consent of KPMG LLP
24.1 Power of Attorney
99.1 AirGate PCS, Inc. Amended and Restated 2002
Long-Term Incentive Plan