FILED WITH THE SECURITIES AND EXCHANGE COMMISSON ON MARCH 12, 2001
REGISTRATION NO. 333-______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AIRGATE PCS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 58-2299173
(State or other jurisdiction of incorporation or organization) (I.R.S.
Employer Identification Number)
HARRIS TOWER
233 PEACHTREE STREET, NE, SUITE 1700
ATLANTA, GEORGIA 30303
(404) 525-7272
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
BARBARA L. BLACKFORD
HARRIS TOWER
233 PEACHTREE STREET, NE, SUITE 1700
ATLANTA, GEORGIA 30303
(404) 525-7272
(Name, address, including zip code,and telephone number, including area code,
of agent for service)
WITH COPIES TO:
SIDNEY J. NURKIN
ALSTON & BIRD LLP
ONE ATLANTIC CENTER
1201 WEST PEACHTREE STREET
ATLANTA, GEORGIA 30309-3424
(404) 881-7000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box:
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box:
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering: _______________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering: __________________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box:
CALCULATION OF REGISTRATION FEE
Title of Shares to be . . . . Amount Proposed Maximum Proposed Maximum Amount of
Registered (1)(3) . . . . . . to be Registered Offering Price Per Aggregate Offering Registration
Share (2) Price (2) Fee
Common Stock, $.01 par value. 88,826 shares $ 46.469 $4,127,655.39 $1,050.00
(1) Represents shares issuable upon exercise of warrants to purchase common
stock expiring October 1, 2009.
(2) Pursuant to Rule 457(c), the proposed maximum offering price per share
and registration fee are based upon the average of the high and low prices
of the registrant's common stock on March 9, 2001, as reported on the Nasdaq
Stock Market's National Market.
(3) Pursuant to Rule 416, the common stock offered hereby shall be deemed to
cover additional securities to be offered or issued to prevent dilution
resulting from stock splits, stock dividends or similar transactions.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT THAT SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT SHALL
BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION
8(A), MAY DETERMINE.
EXPLANATORY NOTE
This Form S-3 Registration Statement filed by AirGate PCS relates to 88,826
shares of the AirGate PCS common stock, $.01 par value, which were previously
registered on AirGate PCS' Registration Statement on Form S-1 (File No.
333-91749) and which are issuable upon exercise of outstanding warrants issued
by AirGate PCS. There were up to 644,400 shares issuable pursuant to the S-1
Registration Statement, of which 555,574 shares have been issued. As a result
of these issuances, 88,826 shares remain issuable pursuant to unexercised
warrants. These shares are being transferred to this Registration Statement to
take advantage of the current eligibility of AirGate PCS to utilize Form S-3.
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. AIRGATE
MAY NOT SELL THE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN
OFFER TO SELL THE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED MARCH 12, 2001
PROSPECTUS
88,826 SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF WARRANTS
AIRGATE PCS
COMMON STOCK
_______________________
We are offering 88,826 shares of common stock issuable by us from time to
time upon exercise of warrants sold by us in our units offering, which was
completed on September 30, 1999. The warrants became separately transferable
from the units on October 21, 1999. Each warrant entitles the holder to
purchase, prior to the expiration date, 2.148 shares of our common stock at an
exercise price of $.01 per share. As of March 1, 2001, 555,574 shares of common
stock had been issued pursuant to warrant exercises and warrants to purchase the
88,826 shares being offered hereby remained outstanding.
The exact number of shares of common stock offered under this prospectus
may be subject to adjustment to prevent dilution of the warrant value. This
prospectus includes such additional shares of common stock, which as of this
date is indeterminable, that we may have to issue and sell to avoid dilution of
the warrants.
The warrants will expire on October 1, 2009. All expenses of this offering,
other than commissions and discounts of broker-dealers and market makers, will
be paid by us.
Our common stock is listed on the Nasdaq National Market and trades under
the ticker symbol: "PCSA." On March 9, 2001, the closing bid price of one share
of AirGate PCS common stock on the Nasdaq National Market was $46.188.
THIS INVESTMENT INVOLVES RISK. SEE "INVESTMENT CONSIDERATIONS" BEGINNING ON
PAGE
3.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
_______________________
The date of this prospectus is March __, 2001.
AIRGATE PCS
We market and provide digital personal communication services, or PCS. We
are a network affiliate of Sprint PCS, the personal communications services
group of Sprint Corporation. Sprint PCS, directly and indirectly through
affiliates such as us, provides wireless services in more than 4,000 cities and
communities across the country.
On July 22, 1998, we entered into a management agreement with Sprint PCS
whereby we became the Sprint PCS affiliate with the exclusive right to provide
100% digital, 100% PCS services under the Sprint and Sprint PCS brand names in
our territory in the southeastern United States. We completed our radio
frequency design, network design and substantial site acquisition and cell site
engineering, and commenced construction of our PCS network in November 1998. In
January 2000 we began commercial operations with the launch of four markets
covering 2.2 million residents in our Sprint PCS territory. By September 30,
2000, we had launched commercial PCS service in all of the 21 markets that
comprise our Sprint PCS territory. At December 31, 2000, we provided Sprint PCS
services to 103,440 subscribers.
Sprint PCS has invested $44.6 million to purchase the PCS licenses in our
territory and incurred additional expenses for microwave clearing. Under our
long-term agreements with Sprint PCS, we manage the network on Sprint PCS'
licensed spectrum as well as use the Sprint and Sprint PCS brand names
royalty-free during our affiliation with Sprint PCS. We also have access to
Sprint PCS' national marketing support and distribution programs and are
entitled to buy network and subscriber equipment and handsets at the same
discounted rates offered by vendors to Sprint PCS based on its large volume
purchases. In exchange for these and other benefits, we are entitled to receive
92%, and Sprint PCS is entitled to retain 8%, of collected service revenues from
customers in our Sprint PCS territory and roaming received from non-Sprint PCS
customers. We are entitled to 100% of revenues collected from the sale of
handsets and accessories and on roaming revenues received when Sprint PCS
customers from a different territory make a wireless call on our PCS network.
Through December 31, 2000, we have made $194.1 million of
capital expenditures related to the build-out of our PCS network. We were able
to open the network for a portion of our territory for roaming coverage along
Interstate 85 between Atlanta, Georgia and Charlotte, North Carolina in
November 1999. In the three months ended March 31, 2000, we launched
commercial PCS operations in the Greenville-Spartanburg, Anderson and Myrtle
Beach, South Carolina markets and the Hickory, Asheville, Wilmington and Rocky
Mount, North Carolina markets. In the three months ended June 30, 2000, we
launched commercial PCS operations in the Charleston, Columbia and Florence,
South Carolina markets, the Augusta and Savannah, Georgia markets and the
Goldsboro, Jacksonville, New Bern, Orangeburg, Roanoke Rapids and
Greenville-Washington, North Carolina markets. In the three months ended
September 30, 2000, we launched commercial PCS operations in the Greenwood
and Sumter, South Carolina markets and the Outer Banks, North Carolina
market. At December 31, 2000, our Sprint PCS network covered 5.6 million
of the 7.1 million residents in our Sprint PCS territory based on 2000 U.S.
Census Department data.
Our principal executive offices are located at Harris Tower, 233 Peachtree
Street, NE, Suite 1700, Atlanta, Georgia 30303 and our telephone number is (404)
525-7272.
USE OF PROCEEDS
The proceeds to be received from the exercise of the remaining warrants,
assuming all warrants are exercised will be approximately $888.00. We intend to
use the proceeds from the exercise of these warrants for general corporate
purposes including working capital.
INVESTMENT CONSIDERATIONS
The following investment considerations update the investment
considerations contained in our Annual Report on Form 10-K for the year ended
September 30, 2000.
RISKS PARTICULAR TO AIRGATE PCS
The termination of our affiliation with Sprint PCS or Sprint PCS' failure
to perform its obligations under our agreements would severely restrict our
ability to conduct our business
Our ability to offer Sprint PCS products and services and our PCS network's
operation are dependent on our Sprint PCS agreements being renewed and not
terminated. Each of these agreements can be terminated for breach of any
material terms. We are dependent on Sprint PCS' ability to perform its
obligations under the Sprint PCS agreements. The non-renewal or termination of
any of the Sprint PCS agreements or the failure of Sprint PCS to perform its
obligations under the Sprint PCS agreements would severely restrict our ability
to conduct our business.
We may not receive as much Sprint PCS roaming revenue in the future because
Sprint PCS can change the rate we receive, or fewer people may travel in our
network area or our cost of revenue may be affected by our customers
spending more time outside our network area
We are paid a fee from Sprint PCS for every minute that a Sprint PCS
subscriber based outside of our territory uses our network; we refer to such
fees as roaming revenue. Similarly, we pay a fee to Sprint PCS for every minute
that our customers use the Sprint PCS network outside of our markets; we refer
to such fees as roaming fees. For calendar 2001, Sprint PCS has set the base
roaming rate at $0.20 per minute, the same rate utilized in 2000. Roaming
revenue will continue to represent a substantial portion of our revenue in the
near future. Under our agreements with Sprint PCS, Sprint PCS can change the fee
we receive for each Sprint PCS roaming minute or pay for each roaming minute.
The change by Sprint PCS in the roaming revenue we are paid could substantially
decrease our revenues and net income. In addition, our customers may spend more
time in other Sprint PCS coverage areas than Sprint PCS customers from outside
our Sprint PCS territory spend in our Sprint PCS territory or may not use our
services. As a result, we may not receive a substantial amount of Sprint PCS
roaming revenue or we may have to pay more Sprint PCS roaming fees than the
roaming revenue we collect.
If Sprint PCS does not complete the construction of its nationwide PCS
network, we may not be able to attract and retain customers
Sprint PCS' network may not provide nationwide coverage to the same extent as
its competitors, which could adversely affect our ability to attract and retain
customers. Sprint PCS is creating a nationwide PCS network through its own
construction efforts and those of its affiliates. Today, Sprint PCS is still
constructing its nationwide network and does not offer PCS services, either on
its own network or through its roaming agreements, in every city in the United
States. Sprint PCS has entered into affiliation agreements similar to ours with
companies in other territories pursuant to its nationwide PCS build-out
strategy. Our results of operations are dependent on Sprint PCS' national
network and, to a lesser extent, on the networks of its other affiliates. Sprint
PCS and its affiliate program are subject, to varying degrees, to the economic,
administrative, logistical, regulatory and other risks described in other risk
factors contained below. Sprint PCS' and its other affiliates' PCS operations
may not be successful.
We have a limited operating history and if we do not successfully manage
our anticipated rapid growth, our operating performance may be adversely
impacted
We launched commercial operations in January 2000 and have grown our employee
base to 372 employees as of December 31, 2000. Our performance as a PCS provider
depends on our ability to implement operational and administrative systems,
including the training and management of our engineering, marketing and sales
personnel. These activities are expected to place demands on our managerial,
operational and financial resources.
The inability of Sprint PCS to maintain high quality back office services,
or our inability to use Sprint PCS' back-office services and third party
vendors' back- office systems could disrupt our business
Our operations could be disrupted if Sprint PCS is unable to maintain and
expand its back office services such as customer activation, billing and
customer care in a high quality manner, or to efficiently outsource those
services and systems through third party vendors. Such disruption could include
increased accounts receivable and customer churn. The rapid expansion of Sprint
PCS' business is expected to continue to pose a significant challenge to its
internal support systems. Additionally, Sprint PCS has relied on third-party
vendors for a significant number of important functions and components of its
internal support systems and may continue to rely on these vendors in the
future. We depend on Sprint PCS' willingness to continue to offer such services
to us and to provide these services at competitive costs. Our Sprint PCS
agreements provide that, upon nine months' prior written notice, Sprint PCS may
elect to terminate any such service beginning January 1, 2002. If Sprint PCS
terminates a service for which we have not developed a cost-effective
alternative, our operating costs may increase and may restrict our ability to
operate successfully.
We have substantial debt that we may not be able to service and a failure
to service our debt may result in our lenders controlling our assets
Our substantial debt will have a number of important consequences for our
operations and our investors, including the following:
- we will have to dedicate a substantial portion of any cash flow from
operations to the payment of interest on, and principal of, our debt, which will
reduce funds available for other purposes;
- we have a fully-financed business plan, but we may not be able to obtain
additional financing for currently unanticipated capital requirements, capital
expenditures, working capital requirements and other corporate purposes;
- some of our debt, including our financing from Lucent, will be at variable
rates of interest, which could result in higher interest expense in the event of
increases in market interest rates; and
- due to the liens on substantially all of our assets and the pledges of
stock of our existing and future subsidiaries that secure our senior debt and
our senior subordinated discount notes, lenders or holders of our senior
subordinated discount notes may control our assets or our subsidiaries' assets
in the event of a default.
As of December 31, 2000, our outstanding long-term debt totaled $229.1
million. Under our current business plan, we expect to incur substantial
additional debt before achieving break-even operating cash flow. Accordingly, we
will utilize some portion, if not all, of the $98.0 million of additional
available borrowings under our financing from Lucent.
If we do not meet all of the conditions required under our Lucent financing
documents, we may not be able to draw down all of the funds we anticipate
receiving from Lucent and may not be able to fund operating losses and working
capital needs
As of December 31, 2000, we had borrowed $55.5 million from Lucent. The
remaining $98.0 million, a portion of which we expect to borrow in the future,
is subject to our meeting all of the conditions specified in the financing
documents and, in addition, is subject at each funding date to the following
conditions:
- that the representations and warranties in the loan documents are true and
correct; and
- the absence of a default under our loan documents.
If we do not meet these conditions at each funding date, Lucent may not
lend any or all of the remaining amounts, and if other sources of funds are not
available, we may not be in a position to meet the operating cash needs of our
business.
We may have difficulty in obtaining subscriber equipment required in order
to attract customers
We depend on equipment vendors for an adequate supply of subscriber
equipment, including handsets. If the supply of subscriber equipment is
inadequate or delayed, we may have difficulty in attracting customers.
Conflicts with Sprint PCS may not be resolved in our favor, which could
restrict our ability to manage our business and provide Sprint PCS products and
services
Conflicts between us and Sprint PCS may arise and their resolution may harm
our business. For example, Sprint PCS prices its national plans based on its own
objectives and could set price levels that may not be economically sufficient
for our business. In addition, upon expiration, Sprint PCS could decide to not
renew the Sprint PCS agreements which would not be in our best interest or the
interest of our stockholders. There may be other conflicts such as the setting
of the price we pay for back office services and the focus of Sprint PCS'
management and resources.
If we fail to pay our debt, our lenders have the option of selling our
loans to Sprint PCS, giving Sprint PCS certain rights of a creditor to foreclose
on our assets
Sprint PCS has contractual rights, triggered by an acceleration of the
maturity of our financing from Lucent, pursuant to which Sprint PCS may purchase
our obligations to Lucent under the financing and obtain the rights of a senior
lender. To the extent Sprint PCS purchases these obligations, Sprint PCS'
interests as a creditor could conflict with ours. Sprint PCS' rights as a senior
lender would enable it to exercise rights with respect to our assets and
continuing relationship with Sprint PCS in a manner not otherwise permitted
under our Sprint PCS agreements.
Certain provisions of our agreements with Sprint PCS may diminish the
valuation of our company
Provisions of our Sprint PCS agreements could affect the valuation of our
company, thereby, among other things, reducing the market prices of our
securities and decreasing our ability to raise additional capital necessary to
complete our network build-out. Under our agreements with Sprint PCS, subject to
the requirements of applicable law, there are circumstances under which Sprint
PCS may purchase our operating assets or capital stock for 72% of the "entire
business value" of our company, as defined in our management agreement with
Sprint PCS. In addition, Sprint PCS must approve any change of control of our
ownership and consent to any assignment of our agreements with Sprint PCS.
Sprint PCS also has been granted a right of first refusal if we decide to sell
our operating assets. We are also subject to a number of restrictions on the
transfer of our business including the prohibition on selling our company or our
operating assets to a number of identified and as yet to be identified
competitors of Sprint PCS or Sprint. These and other restrictions in our Sprint
PCS agreements may limit the saleability and/or reduce the value a buyer may be
willing to pay for our business and may operate to reduce the "entire business
value" of our company.
We may not be able to compete with larger, more established businesses
offering similar products and services
Our ability to compete depends, in part, on our ability to anticipate and
respond to various competitive factors affecting the telecommunications
industry, including new services that may be introduced, changes in consumer
preferences, demographic trends, economic conditions and discount pricing
strategies by competitors. We compete in our territory with at least four other
wireless service providers, each of which have an infrastructure in place and
have been operational for a number of years. They have significantly greater
financial and technical resources than we do, could offer attractive pricing
options and may have a wider variety of handset options. We expect that existing
cellular providers will upgrade their systems and provide expanded, digital
services to compete with the Sprint PCS products and services that we offer.
These wireless providers require their customers to enter into long-term
contracts, which may make it more difficult for us to attract customers away
from them. Sprint PCS generally does not require its customers to enter into
long-term contracts, which may make it easier for other wireless providers to
attract Sprint PCS customers away from Sprint PCS. We also compete with several
PCS providers and other existing communications companies in our Sprint PCS
territory. A number of our cellular and PCS competitors have access to more
licensed spectrum than the 10 MHz licensed to Sprint PCS in our Sprint PCS
territory. In addition, any competitive difficulties that Sprint PCS may
experience could also harm our competitive position and success.
The technology we use has limitations and could become obsolete
We employ digital wireless communications technology selected by Sprint PCS
for its network. Code division multiple access, CDMA, technology is a relatively
new technology. CDMA may not provide the advantages expected by Sprint PCS. If
another technology becomes the preferred industry standard, we may be at a
competitive disadvantage and competitive pressures may require Sprint PCS to
change its digital technology which, in turn, may require us to make changes at
substantially increased costs. We may not be able to respond to such pressures
and implement new technology on a timely basis, or at an acceptable cost.
If Sprint PCS customers are not able to roam instantaneously or efficiently
onto other wireless networks, prospective customers could be deterred from
subscribing for our Sprint PCS services
The Sprint PCS network operates at a different frequency and uses or may
use a different technology than many analog cellular and other digital systems.
To access another provider's analog cellular or digital system outside of the
Sprint PCS network, a Sprint PCS customer is required to utilize a
dual-band/dual-mode handset compatible with that provider's system. Generally,
because dual-band/dual-mode handsets incorporate two radios rather than one,
they are more expensive and are larger and heavier than single-band/single-mode
handsets. The Sprint PCS network does not allow for call hand-off between the
Sprint PCS network and another wireless network, thus requiring a customer to
end a call in progress and initiate a new call when leaving the Sprint PCS
network and entering another wireless network. In addition, the quality of the
service provided by a network provider during a roaming call may not approximate
the quality of the service provided by Sprint PCS. The price of a roaming call
may not be competitive with prices of other wireless companies for roaming
calls, and Sprint PCS customers may not be able to use Sprint PCS advanced
features, such as voicemail notification, while roaming.
Our territory has limited licensed spectrum, and this may affect the
quality of our service, which could impair our ability to attract or retain
customers
Sprint PCS has licenses covering 10 MHz in our territory. In the future, as
our customers in those areas increase in number, this limited licensed spectrum
may not be able to accommodate increases in call volume and may lead to
increased dropped calls and may limit our ability to offer enhanced services.
Non-renewal or revocation by the FCC of the Sprint PCS licenses would
significantly harm our business
PCS licenses are subject to renewal and revocation. Sprint PCS' licenses in our
territory will expire in 2007 but may be renewed for additional ten year terms.
There may be opposition to renewal of Sprint PCS' licenses upon their expiration
and the Sprint PCS licenses may not be renewed. The FCC has adopted specific
standards to apply to PCS license renewals. Failure by Sprint PCS to comply with
these standards in our territory could cause revocation or forfeiture of the
Sprint PCS licenses for our territory or the imposition of fines on Sprint PCS
by the FCC.
If we lose the right to install our equipment on wireless towers owned by
other carriers or fail to obtain zoning approval for our cell sites, we may have
to rebuild our network
More than 99% of our cell sites are co-located on facilities shared with
one or more wireless providers. We co-locate a large portion of our sites on
facilities that are owned by only a few tower companies. If our master
collocation agreements with one of those tower companies were to terminate, or
if one of those tower companies were otherwise not able to support our use of
its tower sites, we would have to find new sites, and if the equipment had
already been installed, we might have to rebuild that portion of our network.
Some of the cell sites are likely to require us to obtain zoning variances or
other local governmental or third party approvals or permits. We may also have
to make changes to our radio frequency design as a result of difficulties in the
site acquisition process.
The loss of the officers and skilled employees who we depend upon to
operate our business could reduce our ability to offer Sprint PCS products and
services
The loss of one or more key officers could impair our ability to offer
Sprint PCS products and services. Our business is managed by a small number of
executive officers. We believe that our future success will also depend in large
part on our continued ability to attract and retain highly qualified technical
and management personnel. We believe that there is and will continue to be
intense competition for qualified personnel in the PCS equipment and services
industry as the PCS market continues to develop. We may not be successful in
retaining our key personnel or in attracting and retaining other highly
qualified technical and management personnel. We currently have "key man" life
insurance for our chief executive officer.
We may not achieve or sustain operating profitability or positive cash flow
from operating activities
We expect to incur significant operating losses and to generate significant
negative cash flow from operating activities until the second quarter of fiscal
year 2002 while we develop and construct our PCS network and build our customer
base. Our operating profitability will depend upon many factors, including,
among others, our ability to market our services, achieve our projected market
penetration and manage customer turnover rates. If we do not achieve and
maintain operating profitability and positive cash flow from operating
activities on a timely basis, we may not be able to meet our debt service
requirements.
Unauthorized use of our Sprint PCS network could disrupt our business
We will likely incur costs associated with the unauthorized use of our PCS
network, including administrative and capital costs associated with detecting,
monitoring and reducing the incidence of fraud. Fraud impacts interconnection
costs, capacity costs, administrative costs, fraud prevention costs and payments
to other carriers for unbillable fraudulent roaming.
Our agreements with Sprint PCS, our certificate of incorporation and our
bylaws include provisions that may discourage, delay and/or restrict any sale of
our operating assets or common stock to the possible detriment of our
stockholders
Our agreements with Sprint PCS restrict our ability to sell our operating
assets and common stock. Generally, Sprint PCS must approve a change of control
of our ownership and consent to any assignment of our agreements with Sprint
PCS. The agreements also give Sprint PCS a right of first refusal if we decide
to sell our operating assets to a third party. These restrictions, among other
things, could discourage, delay or make more difficult any sale of our operating
assets or common stock. This could have a material adverse effect on the value
of our common stock and could reduce the price of our company in the event of a
sale. Provisions of our certificate of incorporation and bylaws could also
operate to discourage, delay or make more difficult a change in control of our
company. Our certificate of incorporation, which contains a provision
acknowledging the terms under the management agreement and a consent and
agreement pursuant to which Sprint PCS may buy our operating assets, has been
duly authorized and approved by our board of directors and our stockholders.
This provision is intended to permit the sale of our operating assets pursuant
to the terms of the management agreement or a consent and agreement with our
lenders without further stockholder approval.
INDUSTRY RISKS
Wireless service providers generally experience a high rate of customer
turnover which would increase our costs of operations and reduce our revenue
Our strategy to reduce customer turnover, commonly known as churn, may not
be successful. Our average monthly churn (net of 30 day returns) for the three
months ended December 31, 2000 was 2.9%. As a result of customer turnover, we
lose the revenue attributable to these customers and increase the costs of
establishing and growing our customer base. The rate of customer turnover may be
the result of several factors, including customer care concerns; network
coverage; reliability issues such as blocked calls, dropped calls and handset
problems; non-use of phones; non-use of customer contracts, pricing; and other
competitive factors.
Wireless providers offering services based on lower cost structures may
reduce demand for PCS
Other wireless providers enjoy economies of scale that can result in a
lower cost structure for providing wireless services. Rapid technological
changes and improvements in the telecommunications market could lower other
wireless providers' cost structures in the future. These factors could reduce
demand for PCS because of competitors' ability to provide other wireless
services at a lower price. There is also uncertainty as to the extent of
customer demand as well as the extent to which airtime and monthly recurring
charges may continue to decline. As a result, our future prospects, those of our
industry, and the success of PCS and other competitive services, remain
uncertain.
Alternative technologies and current uncertainties in the wireless market
may reduce demand for PCS
Technological advances and industry changes could cause the technology used on
our network to become obsolete. We may not be able to respond to such changes
and implement new technology on a timely basis, or at an acceptable cost.
The wireless telecommunications industry is experiencing significant
technological change, as evidenced by the increasing pace of digital upgrades in
existing analog wireless systems, evolving industry standards, ongoing
improvements in the capacity and quality of digital technology, shorter
development cycles for new products and enhancements and changes in end-user
requirements and preferences.
If we were unable to keep pace with these technological changes or changes
in the telecommunications market based on the effects of consolidation from the
Telecommunications Act of 1996 or from the uncertainty of future government
regulation, the technology used on our network or our current business strategy
may become obsolete. In addition, wireless carriers are seeking to implement a
new "third generation," or "3G," technology throughout the industry. There can
be no assurance that we can implement the new 3G technology successfully on a
cost-effective basis.
Regulation by government agencies may increase our costs of providing
service or require us to change our services, either of which could impair our
financial performance
The licensing, construction, use, operation, sale and interconnection
arrangements of wireless telecommunications systems are regulated to varying
degrees by the FCC, the Federal Aviation Administration and, depending on the
jurisdiction, state and local regulatory agencies and legislative bodies.
Adverse decisions regarding these regulatory requirements could negatively
impact our operations and our cost of doing business. Our Sprint PCS agreements
reflect an affiliation that the parties believe meets the FCC requirements for
licensee control of licensed spectrum. If the FCC were to determine that our
Sprint PCS agreements need to be modified to increase the level of licensee
control, we have agreed with Sprint PCS to use our best efforts to modify the
agreements as necessary to cause the agreements to comply with applicable law
and to preserve to the extent possible the economic arrangements set forth in
the Sprint PCS agreements. If the Sprint PCS agreements cannot be modified, the
Sprint PCS agreements may be terminated pursuant to their terms.
Use of hand-held phones may pose health risks, which could result in the
reduced use of our services or liability for personal injury claims
Media reports have suggested that certain radio frequency emissions from
wireless handsets may be linked to various health problems, including cancer,
and may interfere with various electronic medical devises, including hearing
aids and pacemakers. Concerns over radio frequency emissions may discourage use
of wireless handsets or expose us to potential litigation. Any resulting
decrease in demand for our services, or costs of litigation and damage awards,
could impair our ability to profitably operate our business.
PLAN OF DISTRIBUTION
All or a portion of the common stock offered by this prospectus may be
delivered upon exercise of the warrants by the warrant holder. Subject to a
suspension period, the warrant holder may exercise their warrant(s) at any time
at a per share exercise price of $.01 per underlying share of common stock. The
costs of registering, issuing and maintaining an effective registration
statement for the shares of common stock underlying the warrants have been and
will be borne by us. The subsequent sale of the shares of common stock
underlying the warrants may be affected by the holder thereof in several ways,
including:
on the Nasdaq National Market;
in the over-the-counter market;
in negotiated transactions;
through put or call options transactions relating to the shares of AirGate
PCS common stock; and
through short sales or a combination of such methods of sale.
These transactions may be made at market prices prevailing at the time of sale
or at negotiated prices, and may or may not involve brokers or dealers.
The warrant holders may sell shares of AirGate PCS common stock directly to
purchasers or to or through broker-dealers, which may act as agents or
principals. Such broker-dealers may receive compensation in the form of
discounts, concessions, or commissions from the warrant holders and/or the
purchasers of shares of AirGate PCS common stock for whom such broker-dealers
may act as agents or to whom they sell as principal, or both. Any compensation
as to a particular broker-dealer might be in excess of customary commissions.
If we are notified by a warrant holder that any material arrangement has been
entered into with a broker-dealer for the sale of shares of AirGate PCS common
stock through:
a block trade,
a special offering,
an exchange distribution,
a secondary distribution or
a purchase by a broker or dealer,
then a supplement to this prospectus will be filed, if required, pursuant to
Rule 424(b) under the Act, disclosing:
the name of each such shareholder and of the participating
broker-dealer(s),
the number of shares involved,
the price at which such shares were sold,
the commissions paid or discounts or concessions allowed to such
broker-dealer(s), where applicable,
that such broker-dealer(s) did not conduct any investigation to verify the
information set out or incorporated by reference in this prospectus, and
other facts material to the transaction.
WHERE YOU CAN FIND MORE INFORMATION
We file reports, proxy statements and other information with the SEC. You
can obtain copies of those reports, proxy statements and other information:
- at the Public Reference Room of the SEC, Room 1024, Judiciary Plaza, 450
Fifth Street, N.W., Washington, D.C. 20549;
- at the public reference facilities of the SEC's regional offices at Seven
World Trade Center, 13th Floor, New York New York 10048 or Northwestern
Atrium Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661;-from the Internet site that the Commission
maintains at http://www.sec.gov, which contains reports, proxy and
information statements and other information regarding issuers that
file electronically with the SEC; and at the offices of
The Nasdaq Stock Market, Inc., Reports Section, 1735 K Street,
N.W., Washington, D.C. 20006.
You may obtain information on the operation of the SEC's Public Reference Room
by calling the Commission at 1-800-SEC-0330.
This prospectus is part of a registration statement that we filed with
the SEC. The registration statement contains more information than this
prospectus regarding us and our common stock, including certain exhibits. You
can get a copy of the registration statement (Registration No. 333-_____) from
the locations listed above.
INCORPORATION BY REFERENCE
The Commission allows us to "incorporate by reference" the information we
file with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this prospectus, and information that we file later
with the Commission will automatically update and supersede this information. We
incorporate by reference the documents listed below and any future filings we
will make with the Commission under Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934:
1. Our Annual Report on Form 10-K for the fiscal year ended September 30,
2000;
2. Our Quarterly Report on Form 10-Q for the quarter ended December 31,
2000;
3. All other reports filed by us pursuant to Section 13(a) and 13(d) of the
Exchange Act since February 8, 2001;
4. The description of our common stock contained in our Registration
Statement on Form 8-A (File No. 0-27455), as filed with the Commission on
September 24, 1999; and
5. All other documents subsequently filed by us pursuant to Section 13(a),
13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective
amendment to this prospectus that indicates that all securities offered have
been sold.
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 prospectus 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 prospectus.
You may request a copy of these filings and any future filings incorporated
herein, at no cost, by writing or telephoning Ms. Barbara L. Blackford,
Corporate Secretary, at the following address:
AirGate PCS
Harris Tower
233 Peachtree Street, Suite 1700
Atlanta, Georgia 30303
(404) 525-7272
This prospectus is part of a registration statement we filed with the SEC.
You should rely only on the information or representations provided in this
prospectus. We have authorized no one to provide you with different information.
We are not making an offer of these securities in any state where the offer is
not permitted. You should not assume that the information in this prospectus is
accurate as of any date other than the date on the front of the document.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the information incorporated by reference in it, as
well as any prospectus supplement that accompanies it, include "forward-looking
statements" within the meaning of Section 27A of the Securities Act and Section
21E of the Exchange Act. We intend the forward-looking statements to be covered
by the safe harbor provisions for forward-looking statements in these sections.
All statements regarding our expected financial position and operating results,
our business strategy and our financing plans are forward-looking statements.
These statements can sometimes be identified by our use of forward-looking words
such as "may," "will," "anticipate," "estimate," "expect," or "intend." We
cannot promise that our expectations in such forward-looking statements will
turn out to be correct. Our actual results could be materially different from
and worse than our expectations. Important factors that could cause our actual
results to be materially different from our expectations include those discussed
under the caption "Investment Considerations."
LEGAL OPINIONS
The validity of the shares of AirGate PCS common stock offered hereby has
been passed upon for the Company by Alston & Bird LLP, Atlanta, Georgia.
EXPERTS
The consolidated financial statements and schedule of AirGate PCS, Inc. and
subsidiaries as of September 30, 2000 and 1999, and for the year ended September
30, 2000, the nine month period ended September 30, 1999, and the year ended
December 31, 1998, and the related financial statement schedule, have been
incorporated by reference in the registration statement in reliance upon the
report of KPMG LLP, independent certified public accountants, incorporated by
reference herein, and upon the authority of said firm as experts in accounting
and auditing.
[LOGO]
AIRGATE PCS, INC.
No dealer, salesperson, or other person has been authorized to give any
information or make any representations not contained in this prospectus. If
such information is given or any such representations are made, they must not be
relied upon as having been authorized by AirGate PCS. This prospectus does not
constitute an offer to sell, or a solicitation of an offer to buy any of the
shares of AirGate PCS common stock offered hereby, to any person in any
jurisdiction in which such offer or solicitation is unlawful. Neither the
delivery of this prospectus nor any sale made hereunder shall, under any
circumstances, create any implication that the information herein is correct as
of any time subsequent to the date hereof or that there has been no change in
the affairs of AirGate PCS since such date.
88,826 SHARES
COMMON STOCK
PROSPECTUS
______________, 2001
TABLE OF CONTENTS
Page
----
AirGate PCS 2
Use of Proceeds 3
Invesement Considerations 3
Plan of Distribution 10
Where You Can Find More
Information 11
Incorporation by Reference 12
Cautionary Note Regarding
Forward-Looking Statements 13
Legal Opinions 13
Experts 13
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
AirGate PCS, Inc. (the "Registrant") estimates that expenses in connection
with the offering described in this Registration Statement will be as set forth
in the following table. All amounts shown are estimates except for the
Securities and Exchange Commission registration fee.
Securities and Exchange Commission registration fee $1,050.00
Printing and engraving expenses $1,000.00*
Accountants' fees and expenses *
Legal fees and expenses $15,000.00*
Fees and expenses for qualifications under state
securities laws (including legal fees) $5,000.00*
Miscellaneous $5,000.00*
Total $ *
* estimated fees
ITEM 15. 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, or is otherwise involved in, any action, suit
or proceeding by reason of the fact that such person is or was a director or an
officer of the Registrant, whether the basis for such action or proceeding is an
alleged action in an official capacity as an officer or director or in any other
capacity while such person was serving as a director or officer of the
Registrant. The Registrant shall indemnify such person to the fullest extent
allowed by the Delaware law against all expense, liability and loss (including
attorney's fees, judgments, fines, ERISA excise tax, or penalties and amounts
paid in settlement) reasonably incurred or suffered by the indemnitee in
connection with such action or suit. The Registrant's Certificate of
Incorporation also empowers the indemnitee to recover unpaid amounts of a claim
for indemnification by bringing suit against the Registrant to recover any
unpaid amount of a claim.
The right to indemnification includes the right of the indemnitee to be
paid by the Registrant for the expenses incurred in defending any such
proceeding in advance of its final disposition; provided, however, that, if the
Delaware law requires, an advancement of expenses incurred by an indemnitee in
his or her capacity as a director or officer will be made only upon delivery to
the Registrant of an undertaking, by or on behalf of such indemnitee, to repay
all amounts advanced if it shall ultimately be determined by final judicial
decision, from which there is no further right to appeal, that such indemnitee
is not entitled to be indemnified for such expenses.
The right to indemnification and to the advancement of expenses provided
for by the Certificate of Incorporation is not exclusive of any other right to
which the indemnitee may have or hereinafter acquire. Moreover, the Registrant
may purchase and maintain insurance, at its expense, to protect itself and any
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 laws of Delaware.
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 them with further assurances and protection from
liability that they may incur in their respective positions and duties in
connection with any public offering to any fiduciary obligation owed with
respect to 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
liabilities (described below) that occur in connection with any threatened,
pending or completed action, suit, proceeding, alternative dispute resolution
mechanism or hearing, inquiry or investigation that such indemnitee in good
faith believes may lead to the institution of any such action whether civil,
criminal, administrative or other. As a condition to receiving indemnification,
indemnitees are required to give notice in writing to the Registrant of any
claim for which indemnification may be sought under such agreement.
The agreement provides that an indemnitee may receive indemnification
against any and all (1) expenses (including attorney's fees and other costs,
expenses and obligations incurred), judgements, fines and penalties; (2) amounts
paid in settlement (if such settlement is approved by the Registrant); (3) any
federal, state, local or foreign taxes imposed on an indemnitee as a result of
the receipt of any payments under the indemnification agreement; and (4) all
interest, assessments and other charges paid or payable in connection with such
expenses. 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 or either members of the board of directors or any person appointed
by the board of directors, must not have determined the indemnified person would
not be permitted to indemnification under Delaware law and, in the case of
advanced expenses, that the Registrant will be entitled to be reimbursed by the
indemnitee. 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 to what extent the indemnitee would be permitted to
indemnification under applicable law. 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 judgement, 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 indemnitee 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 provided for under the
agreement 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 indemnitee 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 the action or inaction which resulted in such
liability. 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 lessor 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. No person found
guilty of fraudulent misrepresentation, as defined in the agreement, shall be
entitled to contribution from any person who was not found guilty of such
fraudulent representation.
In the event that the Registrant is obligated to pay the expenses of 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 indemnitee'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 16. EXHIBITS
The exhibits and financial statement schedules filed as a part of the
Registration Statement are as follows:
(a) List of Exhibits
3.1 Amended and Restated Certificate of Incorporation of AirGate PCS, Inc.
(Incorporated by reference to Exhibit 3.1 to the quarterly report on Form 10-Q
filed by the company with the Commission on August 14, 2000 for the quarter
ended June 30, 2000 (SEC File No.000-27455))
3.2 Amended and Restated Bylaws of AirGate PCS, Inc. (Incorporated by
reference to Exhibit 3.2 to the Registration Statement on Form S-1/A filed by
the company with the Commission on June 15, 1999 (SEC File Nos. 333-79189-02 and
333-79189-01))
4.1 Specimen of common stock certificate of AirGate PCS, Inc. (Incorporated
by reference to Exhibit 4.1 to the Registration Statement on Form S-1/A filed by
the company with the Commission on June 15, 1999 (SEC File Nos. 333-79189-02 and
333-79189-01))
4.2 Form of warrant issued in units offering (included in Exhibit 10.15)
4.3.1 Form of Weiss, Peck and Greer warrants (Incorporated by reference to
Exhibit 4.3 to the Registration Statement on Form S-1/A filed by the company
with the Commission on August 9, 1999 (SEC File Nos. 333-79189-02 and
333-79189-01))
4.3.2 Form of Lucent Warrants (Incorporated by reference to Exhibit 4.4 to
the Registration Statement on Form S-1/A filed by the company with the
Commission on September 17, 1999 (SEC File Nos. 333-79189-02 and 333-79189-01))
4.3.3 Form of Indenture for senior subordinated discount notes (including
form of pledge agreement) (Incorporated by reference to Exhibit 4.5 to the
Registration Statement on Form S-1/A filed by the company with the Commission on
September 23, 1999 (SEC File Nos. 333-79189-02 and 333-79189-01))
4.4 Form of unit (included in Exhibit 10.15)
5.1 Opinion of Alston & Bird LLP regarding legality of the common stock
10.1.1 Sprint PCS Management Agreement and Addenda I-III thereto between
SprintCom, Inc. and AirGate Wireless, L.L.C. (Incorporated by reference to
Exhibit 10.1 to the Registration Statement on Form S-1/A filed by the company
with the Commission on June 15, 1999 (SEC File Nos. 333-79189-02 and
333-79189-01))
10.1.2 Addendum IV to Sprint PCS Management Agreement dated August 26, 1999
by and among SprintCom, Inc., Sprint Communications Company, L.P., Sprint
Spectrum L.P. and AirGate PCS, Inc. (Incorporated by reference to Exhibit 10.1.2
to the annual report on Form 10-K filed by the company with the Commission on
December 18, 2000 for the year ended September 30, 2000 (SEC File No.000-27455))
10.1.3 Addendum V to Sprint PCS Management Agreement dated May 12, 2000 by
and among SprintCom, Inc., Sprint Communications Company, L.P. and AirGate PCS,
Inc. (Incorporated by reference to Exhibit 10.1.3 to the annual report on Form
10-K filed by the company with the Commission on December 18, 2000 for the year
ended September 30, 2000 (SEC File No.000-27455))
10.1.4 Addendum VI to Sprint PCS Management Agreement dated December 8, 2000
by and among SprintCom, Inc., Sprint Communications Company, L.P., Sprint
Spectrum, L.P. and AirGate PCS, Inc. (Incorporated by reference to Exhibit
10.1.4 to the quarterly report on Form 10-Q filed by the company with the
Commission on February 14, 2001 for the quarter ended December 31, 2000 (SEC
File No.000-27455))
10.2 Sprint PCS Services Agreement between Sprint Spectrum L.P. and AirGate
Wireless, L.L.C. (Incorporated by reference to Exhibit 10.2 to the Registration
Statement on Form S-1/A filed by the company with the Commission on June 15,
1999 (SEC File Nos. 333-79189-02 and 333-79189-01))
10.3 Sprint Spectrum Trademark and Service Mark License Agreement
(Incorporated by reference to Exhibit 10.3 to the Registration Statement on Form
S-1/A filed by the company with the Commission on June 15, 1999 (SEC File Nos.
333-79189-02 and 333-79189-01))
10.4 Sprint Trademark and Service Mark License Agreement (Incorporated by
reference to Exhibit 10.4 to the Registration Statement on Form S-1/A filed by
the company with the Commission on June 15, 1999 (SEC File Nos. 333-79189-02 and
333-79189-01))
10.5 Master Site Agreement dated August 6, 1998 between AirGate and
BellSouth Carolinas PCS, L.P., BellSouth Personal Communications, Inc. and
BellSouth Mobility DCS (Incorporated by reference to Exhibit 10.5 to the
Registration Statement on Form S-1/A filed by the company with the Commission on
June 15, 1999 (SEC File Nos. 333-79189-02 and 333-79189-01))
10.5.1 Notice to AirGate of an assignment of sublease dated September 20,
1999 between BellSouth Cellular Corp. and Crown Castle South Inc., given
pursuant to Section 16(b) of the Master Site Agreement. (Incorporated by
reference to Exhibit 10.5.1 to the quarterly report on Form 10-Q filed by the
company with the Commission on February 14, 2001 for the quarter ended December
31, 2000 (SEC File No.000-27455))
10.5.2 Master Tower Space Reservation and License Agreement dated February
19, 1999 between AGW Leasing Company, Inc. and American Tower, L.P.
(Incorporated by reference to Exhibit 10.5.2 to the quarterly report on Form
10-Q filed by the company with the Commission on February 14, 2001 for the
quarter ended December 31, 2000 (SEC File No.000-27455))
10.5.3 Master Antenna Site Lease No. J50 dated July 20, 1999 between
Pinnacle Towers Inc. and AGW Leasing Company. (Incorporated by reference to
Exhibit 10.5.3 to the quarterly report on Form 10-Q filed by the company with
the Commission on February 14, 2001 for the quarter ended December 31, 2000 (SEC
File No.000-27455))
10.6.1 Compass Telecom, L.L.C. Construction Management Agreement
(Incorporated by reference to Exhibit 10.6 to the Registration Statement on Form
S-1/A filed by the company with the Commission on June 15, 1999 (SEC File Nos.
333-79189-02 and 333-79189-01))
10.6.2 First Amendment to Services Agreement between AirGate PCS, Inc. and
COMPASS Telecom Services, L.L.C. dated May 30, 2000 (Incorporated by reference
to Exhibit 6.2 to the quarterly report on Form 10-Q filed by the company with
the Commission on August 14, 2000 for the quarter ended June 30, 2000 (SEC File
No.000-27455))
10.7 Commercial Real Estate Lease dated August 7, 1998 between AirGate and
Perry Company of Columbia, Inc. to lease a warehouse facility (Incorporated by
reference to Exhibit 10.7 to the Registration Statement on Form S-1/A filed by
the company with the Commission on July 12, 1999 (SEC File Nos. 333-79189-02 and
333-79189-01))
10.7.1 Lease Agreement dated August 25, 1999 between Robert W. Bruce,
Camperdown Company, Inc. and AGW Leasing Company, Inc. to lease office/warehouse
space in Greenville, South Carolina. (Incorporated by reference to Exhibit
10.7.1 to the quarterly report on Form 10-Q filed by the company with the
Commission on February 14, 2001 for the quarter ended December 31, 2000 (SEC
File No.000-27455))
10.8.1 Form of Indemnification Agreement (Incorporated by reference to
Exhibit 10.8 to the Registration Statement on Form S-1/A filed by the company
with the Commission on June 15, 1999 (SEC File Nos. 333-79189-02 and
333-79189-01))
10.9 Employment Agreement dated April 9, 1999 by and between AirGate PCS,
Inc. and Thomas M. Dougherty (Incorporated by reference to Exhibit 10.9 to the
Registration Statement on Form S-1/A filed by the company with the Commission on
June 15, 1999 (SEC File Nos. 333-79189-02 and 333-79189-01))
10.10.1 Form of Executive Employment Agreement (Incorporated by reference to
Exhibit 10.10 to the Registration Statement on Form S-1/A filed by the company
with the Commission on July 12, 1999 (SEC File Nos. 333-79189-02 and
333-79189-01))
10.11 AirGate PCS, Inc. 1999 Stock Option Plan (Incorporated by reference to
Exhibit 99.1 to the Registration Statement on Form S-8 filed by the company with
the Commission on April 10, 2000 (SEC File No. 333-34416))
10.11.1 Form of AirGate PCS, Inc. Option Agreement (Incorporated by
reference to Exhibit 10.11.1 to the quarterly report on Form 10-Q filed by the
company with the Commission on August 14, 2000 for the quarter ended June 30,
2000 (SEC File No. 000-27455))
10.12 Credit Agreement with Lucent (including form of pledge agreement and
form of intercreditor agreement) (Incorporated by reference to Exhibit 10.12 to
the Registration Statement on Form S-1/A filed by the company with the
Commission on September 17, 1999 (SEC File Nos. 333-79189-02 and 333-79189-01))
10.13 Consent and Agreement (Incorporated by reference to Exhibit 10.13 to
the Registration Statement on Form S-1/A filed by the company with the
Commission on September 17, 1999 (SEC File Nos. 333-79189-02 and 333-79189-01))
10.14 Assignment of Sprint PCS Management Agreement, Sprint Spectrum
Services Agreement and Trademark and Service Mark Agreement from AirGate
Wireless, L.L.C. to AirGate Wireless, Inc. dated November 20, 1998 (Incorporated
by reference to Exhibit 10.14 to the Registration Statement on Form S-1/A filed
by the company with the Commission on August 9, 1999 (SEC File Nos. 333-79189-02
and 333-79189-01))
10.15 Form of Warrant Agreement for units offering (including from of
warrant in units offering and form of unit) (Incorporated by reference to
Exhibit 10.15 to the Registration Statement on Form S-1/A filed by the company
with the Commission on September 23, 1999 (SEC File Nos. 333-79189-02 and
333-79189-01))
10.16 First Amendment to Employment Agreement dated December 20, 1999
between AirGate PCS, Inc. and Thomas M. Dougherty (Incorporated by reference to
Exhibit 10.16 to the quarterly report on Form 10-Q filed by the company with the
Commission on May 15, 2000 for the quarter ended March 31, 2000 (SEC File
No.000-27455))
10.17 Retention Bonus Agreement dated May 4, 2000 between AirGate PCS, Inc.
and Thomas M. Dougherty (Incorporated by reference to Exhibit 10.17 to the
quarterly report on Form 10-Q filed by the company with the Commission on May
15, 2000 for the quarter ended March 31, 2000 (SEC File No.000-27455))
23.1 Consent of KPMG LLP
23.2 Consent of Alston & Bird LLP (Included in Exhibit 5.1)
24.1 Power of Attorney
ITEM 17. 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 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 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.
(4) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of such Registrant pursuant to the foregoing provisions, or otherwise,
such 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 such
Registrant of expenses incurred or paid by a director, officer or controlling
person of such 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, such 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.
(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, 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
Pursuant to the requirements of the Securities Act or 1933, the registrant
certifies that it has reasonable grounds to believe that it meets the
requirements for filing on Form S-3 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 12, 2001
AIRGATE PCS, INC.
By: /s/ Thomas M. Dougherty
--------------------------
Name: Thomas M. Dougherty
Title: 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 dates indicated.
NAME TITLE DATE
---- ----- ----
/s/ *
---------------------
Thomas M. Dougherty President, Chief Executive
Officer and Director (Principal
Executive Officer) March 12, 2001
/s/ *
--------------------
Alan B. Catherall Chief Financial Officer
(Principal Financial and
Accounting Officer) March 12, 2001
/s/ *
--------------------
W. Chris Blane Vice President of Business
Development and Director March 12, 2001
/s/ *
--------------------
Thomas D. Body III Vice President of Strategic
Development and Director March 12, 2001
/s/ *
--------------------
Barry Schiffman Director March 12, 2001
/s/ *
--------------------
Gill Cogan Director March 12, 2001
/s/ *
--------------------
Robert Ferchat Director March 12, 2001
/s/ *
--------------------
John R. Dillon Director March 8, 2001
By: /s/ Barbara L. Blackford
---------------------------
Barbara L. Blackford
Attorney-in-fact
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
----------- -----------
5.1 Opinion of Alston & Bird LLP as to the validity
of the securities being
registered, including consent
23.1 Consent of KPMG LLP
23.2 Consent of Alston & Bird LLP (Included in Exhibit 5)
24.1 Power of Attorney