As filed with the Securities and Exchange Commission on November 30, 2001
Registration No. 333-73254
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------
PRE-EFFECTIVE AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT
Under
The Securities Act of 1933
-----------------
AIRGATE PCS, INC.
(Exact name of registrant as specified in its charter)
Delaware 4812 58-2422929
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
-----------------
Harris Tower
233 Peachtree St. 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
Vice President, General Counsel and Secretary
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:
Robert F. Wall, Esq.
R. Cabell Morris, Jr., Esq.
Winston & Strawn
35 West Wacker Drive
Chicago, Illinois 60601
(312) 558-5600
-----------------
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement as determined
in the light of market conditions and other factors.
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, check the following box: [X]
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. [_]
-----------------
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 this registration statement
shall become effective on such date as the Securities and Exchange Commission,
acting pursuant to said Section 8(a), may determine.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
SUBJECT TO COMPLETION--DATED NOVEMBER 30, 2001
PROSPECTUS
[LOGO] Airgate PCS
$500,000,000
Common Stock
Preferred Stock
Warrants to Purchase Common Stock
Warrants to Purchase Preferred Stock
Warrants to Purchase Debt Securities
Debt Securities
Guarantees of Debt Securities
4,000,000 shares of Common Stock
-----------------
We may use this prospectus from time to time to offer common stock,
preferred stock, warrants to purchase common stock, warrants to purchase
preferred stock, warrants to purchase debt securities, debt securities and
guarantees of debt securities. The securities we offer will have an aggregate
public offering price of up to $500,000,000.
We will identify the particular securities we offer and their specific terms
in a supplement to this prospectus. The prospectus supplement will also
describe the manner in which the securities will be offered. You should read
this prospectus and the prospectus supplement carefully before you invest. We
will not use this prospectus to confirm sales of any security unless it is
attached to a prospectus supplement.
The selling stockholders may offer up to 4,000,000 shares of our common
stock under this prospectus. Such selling stockholders received their shares of
our common stock in connection with our acquisition of iPCS, Inc.
For additional information on the methods of sale, you should refer to the
section entitled "Plan of Distribution."
Our common stock is listed on The Nasdaq National Market under the symbol
"PCSA."
-----------------
Investing in our securities involves certain risks. See "Risk Factors" on
page 1.
-----------------
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.
, 2001.
The information in this prospectus is not complete and may be changed. Neither
we nor the selling stockholders may sell these securities until the
registration statement filed with the Securities and Exchange Commission is
effective. This prospectus is not an offer to sell these securities and it is
not soliciting an offer to buy these securities in any state where the offer or
sale is not permitted.
EXPLANATORY NOTE
The registration statement of which this prospectus is a part covers the
primary issuance of securities by us and the secondary resale of certain shares
of our common stock by former stockholders of iPCS, Inc. On November 30, 2001,
we acquired iPCS, Inc. by merging a wholly owned subsidiary of AirGate with and
into iPCS, Inc. In order to satisfy contractual obligations to the former
stockholders of iPCS, Inc., we are including in the registration statement of
which this prospectus is a part up to 4,000,000 of the shares of our common
stock that the selling stockholders received upon the closing of the iPCS
merger.
ii
TABLE OF CONTENTS
Page Page
---- ----
About this Prospectus............. 1 Description of Warrants............ 11
Risk Factors...................... 1 Selling Stockholders............... 13
Our Business...................... 1 Plan of Distribution............... 13
Ratio of Earnings to Fixed Charges 2 Legal Matters...................... 15
Use of Proceeds................... 2 Experts............................ 15
Description of Debt Securities.... 2 Where You Can Find More Information 16
Description of Our Capital Stock.. 8 Incorporation by Reference......... 16
-------------
You should rely only on the information contained in or incorporated by
reference in this prospectus. We have not authorized anyone to provide you with
information different from that contained in or incorporated by reference in
this prospectus. We and the selling stockholders are offering securities and
seeking offers to buy our securities only in jurisdictions where offers and
sales are permitted. The information contained in this prospectus is accurate
only as of the date of this prospectus, regardless of the time of delivery of
this prospectus or of any sale of our securities.
iii
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement we filed with the SEC
using a "shelf" registration process. Under this shelf process, we may offer
and sell any combination of the securities described in this prospectus in one
or more offerings up to an initial aggregate offering price of $500,000,000.
The selling stockholders may also sell shares of our common stock under this
prospectus, up to a total of 4,000,000 shares. We will not receive any proceeds
from any sale of our common stock by the selling stockholders.
This prospectus provides you with a general description of the securities we
and the selling stockholders may offer. Each time we or the selling
stockholders sell securities, we will provide a prospectus supplement
containing specific information about the terms of that offering. The
prospectus supplement may also add, update, or change information contained in
this prospectus. You should read both this prospectus and any prospectus
supplement, together with additional information described under the heading
"Where You Can Find More Information."
We, or the selling stockholders, may sell securities to underwriters who
will sell the securities to the public on terms fixed at the time of sale. In
addition, the securities may be sold by us directly or through dealers or
agents designated from time to time. If we, directly or through agents, solicit
offers to purchase securities, we reserve the sole right to accept and,
together with our agents, to reject, in whole or in part, any offer.
Unless the context indicates otherwise, references in this prospectus to
"we", "our" or "us" refer to the combined operations of AirGate PCS, Inc. and
iPCS, Inc. and references to "AirGate" refer to the operations of AirGate PCS,
Inc., exclusive of the operations of its wholly owned subsidiary iPCS, Inc.
RISK FACTORS
Our risk factors are incorporated herein by reference from our Annual Report
on Form 10-K and other documents we have filed with the Securities and Exchange
Commission.
OUR BUSINESS
We are the largest Sprint PCS network partner in terms of covered
population. We market and provide digital wireless personal communications
services, or PCS, to a service territory of approximately 14.5 million
residents with current network coverage of approximately 11.0 million residents
as of November 30, 2001. Through our management agreements with Sprint PCS, we
have the exclusive right to provide Sprint PCS products and services under the
Sprint and Sprint PCS brand names in our territories. Sprint PCS, directly and
indirectly through network partners such as us, operates the largest
all-digital, all-PCS nationwide wireless network in the United States based on
covered population, covering nearly 244 million residents in more than 4,000
cities and communities across the United States, Puerto Rico and the U.S.
Virgin Islands.
On November 30, 2001, AirGate acquired iPCS by merging a wholly owned
subsidiary of AirGate with iPCS. In connection with the merger, AirGate issued
to the former stockholders of iPCS approximately 12.4 million shares of our
common stock and assumed options and warrants to purchase approximately 1.1
million shares of our common stock. The acquisition of iPCS increased the total
resident population in our markets from approximately 7.1 million to
approximately 14.5 million. We believe the acquisition of iPCS increases
AirGate's strategic importance to Sprint PCS. We also believe the acquisition
adds attractive markets as well as a nearly complete network build-out and a
fully funded business plan.
Our Sprint PCS territories cover 58 basic trading areas, referred to as
markets, in parts of South Carolina, North Carolina, Georgia, Illinois,
Michigan, Iowa and Nebraska. Our major markets include:
. Grand Rapids, Michigan;
. Greenville-Spartanburg, South Carolina;
. Savannah, Georgia;
. Charleston, South Carolina;
. Columbia, South Carolina; and
. Saginaw-Bay City, Michigan.
As of September 30, 2001, AirGate and iPCS combined had 369,952 subscribers
and total network coverage of approximately 11.0 million residents,
representing approximately 76% of the resident population in these markets. For
the twelve months ended September 30, 2001, we generated revenue of
approximately $259.2 million on a pro forma basis.
RATIO OF EARNINGS TO FIXED CHARGES
The dollar amount of the deficiency of earnings to fixed charges of AirGate
was calculated by adding fixed charges and the amortization of capitalized
interest to net loss, and then deducting interest capitalized. Fixed charges
were calculated by adding interest expense, interest capitalized, and 10% of
rental expense under operating leases, assumed to be representative of the
interest factor of rent.
The dollar amount of the deficiency of earnings to fixed charges is
summarized as follows (in millions):
Year Ended Year Ended
September 30, Nine Months Ended December 31,
------------- September 30, --------------
2001 2000 1999 1998 1997 1996
------ ----- ----------------- ---- ---- ----
$112.9 $87.1 $16.7 $5.2 $2.9 $1.9
USE OF PROCEEDS
Unless we state otherwise in any applicable prospectus supplement, we intend
to use the net proceeds from the sale of the securities by us for general
corporate purposes, including the purchase or repayment of indebtedness
outstanding at a particular time, acquisitions, capital expenditures, working
capital and investments. Pending such uses, we intend to invest such funds in
short-term, investment-grade, interest-bearing instruments.
We will not receive any proceeds from the sale of our common stock by the
selling stockholders.
DESCRIPTION OF DEBT SECURITIES
The debt securities will be direct obligations of ours. They may be secured
or unsecured, and may be senior or subordinated indebtedness. The debt
securities may be fully and unconditionally guaranteed on a secured or
unsecured, senior or subordinated basis, jointly and severally by substantially
all of our wholly owned domestic subsidiaries. As a result of certain
restrictions set forth in the indenture relating to iPCS' senior discount notes
and in iPCS' senior credit facility, neither of iPCS nor its subsidiaries may
guarantee our debt securities so long as iPCS' senior discount notes are
outstanding. We will issue the debt securities, if at all, under one or more
indentures between us and a trustee. Any indenture will be subject to, and
governed by, the Trust Indenture Act of 1939, as amended. The statements made
in this prospectus relating to any indentures and the debt securities to be
issued under the indentures are summaries of certain anticipated provisions of
the indentures and are not complete.
We have filed copies of the forms of indentures as exhibits to the
registration statement of which this prospectus is part and will file any final
indentures and supplemental indentures if we issue debt securities. You should
refer to those indentures for the complete terms of the debt securities.
General
We may issue debt securities that rank "senior" or "subordinated." The debt
securities that we refer to as "senior securities" will be our direct
obligations and will rank equally and ratably in right of payment with our
other indebtedness that is not subordinated. We may also issue debt securities
that may be subordinated in right of payment to the senior securities. We refer
to these securities as "subordinated securities." We have filed with the
registration statement of which this prospectus is a part two separate forms of
indenture, one for the senior securities and one for the subordinated
securities.
We may issue the debt securities without limit as to aggregate principal
amount, in one or more series, in each case as we establish in one or more
supplemental indentures. We need not issue all debt securities of one
2
series at the same time. Unless we otherwise provide, we may reopen a series,
without the consent of the holders of such series, for issuances of additional
securities of that series.
We anticipate that any indenture will provide that we may, but need not,
designate more than one trustee under an indenture, each with respect to one or
more series of debt securities. Any trustee under any indenture may resign or
be removed with respect to one or more series of debt securities, and we may
appoint a successor trustee to act with respect to that series.
The applicable prospectus supplement will describe the specific terms
relating to the series of debt securities we will offer, including, where
applicable, the following:
. the title and series designation and whether they are senior securities or
subordinated securities;
. the aggregate principal amount of the securities;
. the percentage of the principal amount at which we will issue the debt
securities and, if other than the principal amount of the debt securities,
the portion of the principal amount of the debt securities payable upon
maturity of the debt securities;
. if convertible, the initial conversion price, the conversion period and
any other terms governing such conversion;
. the stated maturity date;
. any fixed or variable interest rate or rates per annum;
. the place where principal, premium, if any, and interest will be payable
and where the debt securities can be surrendered for transfer, exchange or
conversion;
. the date from which interest may accrue and any interest payment dates;
. any provisions for redemption, including the redemption price and any
remarketing arrangements;
. the events of default and covenants of such securities, to the extent
different from or in addition to those described in this prospectus;
. whether we will issue the debt securities in certificated or book-entry
form;
. whether we will issue the debt securities in registered or bearer form
and, if in registered form, the denominations if other than in even
multiples of $1,000;
. whether we will issue any of the debt securities in permanent global form
and, if so, the terms and conditions, if any, upon which holders may
exchange interests in the global security, in whole or in part, for the
individual debt securities that the global security represents;
. the applicability, if any, of the defeasance and covenant defeasance
provisions described in this prospectus or any prospectus supplement;
. whether we will pay additional amounts on the securities in respect of any
tax, assessment or governmental charge and, if so, whether we will have
the option to redeem the debt securities instead of making this payment;
. the subordination provisions, if any, relating to the debt securities;
. the provisions relating to any security provided for the debt securities;
and
. the provisions relating to any guarantee of the debt securities.
We may issue debt securities at less than the principal amount payable upon
maturity. We refer to these securities as "original issue discount securities."
If material or applicable, we will describe in the applicable
3
prospectus supplement special U.S. federal income tax, accounting and other
considerations applicable to original issue discount securities.
Except as we may set forth in any prospectus supplement, an indenture will
not contain any other provisions that would limit our ability to incur
additional indebtedness or that would afford holders of the debt securities
protection in the event of a highly leveraged or similar transaction involving
us or in the event of a change of control. You should review carefully the
applicable prospectus supplement for information with respect to events of
default and covenants applicable to the debt securities we may offer.
Denominations, Interest, Registration and Transfer
Unless we otherwise describe in the applicable prospectus supplement, we
will issue the debt securities of any series that are registered securities in
denominations of $1,000 or any even multiple thereof, other than global
securities, which may be of any denomination.
Unless we otherwise describe in the applicable prospectus supplement, we
will pay the interest, principal and any premium at the corporate trust office
of the trustee. At our option, however, we may make payment of interest by
check mailed to the address of the person entitled to the payment as it appears
in the applicable register or by wire transfer of funds to that person at an
account maintained within the United States.
If we do not punctually pay or duly provide for interest on any interest
payment date, the defaulted interest will be paid either:
. to the person in whose name the debt security is registered at the close
of business on a special record date the applicable trustee will fix; or
. in any other lawful manner, all as the applicable indenture describes.
You may have your debt securities divided into more debt securities of
smaller denominations or combined into fewer debt securities of larger
denominations, as long as the total principal amount is not changed. We call
this an "exchange."
You may exchange or transfer debt securities at the office of the applicable
trustee. The trustee acts as our agent for registering debt securities in the
names of holders and transferring debt securities. We may change this
appointment to another entity or perform it ourselves. We call the entity
performing the role of maintaining the list of registered holders the
"registrar." It will also perform transfers.
You need not pay a service charge to transfer or exchange debt securities,
but certain governmental agencies or offices may require you to pay for any tax
or other governmental charge associated with the exchange or transfer. The
security registrar will make the transfer or exchange only if it is satisfied
with your proof of ownership.
Merger, Consolidation or Sale of Assets
Under any indenture, we are generally permitted to consolidate or merge with
another company. We are also permitted to sell substantially all of our assets
to another company, or to buy substantially all of the assets of another
company. However, we may not take any of these actions unless all the following
conditions are met:
. if we merge out of existence or sell our assets, the corresponding company
must be a corporation, partnership or other entity organized under the
laws of a State or the District of Columbia or under federal law and must
agree to be legally responsible for the debt securities; and
. immediately after the merger, sale of assets or other transaction we are
not in default on the debt securities. A default for this purpose includes
any event that would be an event of default if the requirements for giving
us default notice or our default having to exist for a specific period of
time were disregarded.
4
We will describe in the applicable prospectus supplement additional
restrictions, if any, on our ability to consolidate or merge with another
company or to sell substantially all of our assets to another company or to buy
substantially all of the assets of another company.
Events of Default and Related Matters
Unless we otherwise describe in an applicable prospectus supplement, an
"event of default" with respect to each series of debt securities means any of
the following:
. we fail to pay interest on any debt security of that series for 30 days;
. we fail to pay the principal or any premium on any debt security of that
series when due;
. we fail to comply with the provisions of the related indenture or any
supplemental indenture relating to consolidations, mergers and sales of
assets;
. we fail to perform any other covenant with respect to that series in the
related indenture or any supplemental indenture that continues for a
certain number of days after being given written notice unless we are
granted an extension of such time period by the trustee, or the trustee
and the holders who gave the notice, to pursue corrective action;
. certain events in bankruptcy, insolvency or reorganization of us or a
guarantor; or
. any other event of default included in the related indenture or any
supplemental indenture.
An event of default for a particular series of debt securities does not
necessarily constitute an event of default for any other series of debt
securities.
The consequences of an event of default, and the remedies available under
the indentures or any supplemental indentures, will vary depending upon the
type of event of default that has occurred.
If an event of default relating to certain events in bankruptcy, insolvency
or reorganization of us or a subsidiary guarantor occurs and continues, the
entire principal of all the debt securities of all series will be due and
payable immediately.
If any other event of default for any series of debt securities occurs and
continues, the trustee or the holders of a majority of the aggregate principal
amount of the debt securities of the series may declare the entire principal of
all the debt securities of that series to be due and payable immediately. If
this happens, subject to certain conditions, the holders of a majority of the
aggregate principal amount of the debt securities of that series can void the
declaration. The trustee may withhold notice to the holders of debt securities
of any default (except in the payment of principal or interest or in the making
of any sinking fund payment) if it considers such withholding of notice to be
in the interests of the holders.
Other than its duties in case of a default, a trustee is not obligated to
exercise any of its rights or powers under the indentures or any supplemental
indentures at the request, order or direction of any holders, unless the
holders offer the trustee reasonable indemnity. If they provide this reasonable
indemnity, the holders of a majority of the aggregate principal amount of any
series of debt securities may direct the time, method and place of conducting
any proceeding or any remedy available to the trustee, or exercising any power
conferred upon the trustee, for any series of debt securities.
No holder of any debt security can institute any action or proceeding with
respect to an indenture or any supplemental indenture unless the holder gives
written notice of an event of default to the trustee, the holders of a
specified percentage of the aggregate principal amount of the outstanding debt
securities of the applicable series shall have requested the trustee to
institute the action or proceeding and shall have appropriately indemnified the
trustee, and the trustee has failed to institute the action or proceeding
within a specified time period.
5
Modification of an Indenture
We can make three types of changes to the indentures and the debt securities:
Changes Requiring Your Approval. We cannot make the following changes to
your debt securities without your specific approval:
. change the stated maturity of the principal or interest on a debt security;
. reduce any amounts due on a debt security;
. reduce the amount of principal payable upon acceleration of the maturity
of a debt security following a default;
. change the currency of payment on a debt security;
. waive a default in the payment of principal of, premium, if any, or
interest on the debt security;
. modify the subordination provisions, if any, in a manner that is adverse
to you; or
. reduce the percentage of holders of debt securities whose consent is
needed to modify or amend an indenture or to waive compliance with certain
provisions of an indenture or to waive certain defaults.
Changes Requiring a Majority Vote. Certain changes to an indenture and the
debt securities require a vote in favor by holders of debt securities owning a
majority of the principal amount of the particular series affected. Most
changes fall into this category, except for clarifying changes and certain
other changes that would not adversely affect holders of the debt securities.
We require the same vote to obtain a waiver of a past default. However, we
cannot obtain a waiver of a payment default or any other aspect of an indenture
or the debt securities listed in the first category described above under
"--Changes Requiring Your Approval" unless we obtain your individual consent to
the waiver.
Changes Not Requiring Approval. Without a vote by holders of debt
securities, we may make clarifications and certain other changes that:
. cure any ambiguity, defect, omission or inconsistency in the indenture;
provided that such amendments do not adversely affect the interests of the
holders of the debt securities of the particular series in any material
respect; or
. make any change with respect to a series of debt securities that, in the
good faith opinion of our board of directors, does not materially and
adversely affect the rights of the holder of such series of debt
securities.
Discharging our Obligations
Except as we may otherwise set forth in any applicable prospectus
supplement, we may choose to either discharge our obligations on the debt
securities of any series in a "legal defeasance" or release ourselves from our
covenant restrictions on the debt securities of any series in a "covenant
defeasance." We may do so at any time prior to the stated maturity or
redemption of the debt securities of the series if, among other conditions:
. we deposit with the trustee sufficient cash or U.S. government securities
to pay the principal, interest, any premium and any other sums due to the
stated maturity date or redemption date of the debt securities of the
series; and
. we provide an opinion of our counsel that holders of the debt securities
will not be affected for U.S. federal income tax purposes by the
defeasance.
6
If we provide the deposit and opinion described above, holders of the debt
securities of that series will not be entitled to the benefits of the related
indenture except for registration of transfer and exchange of debt securities,
replacement of lost, stolen or mutilated debt securities, any required
conversion or exchange of debt securities, any required sinking fund payments
and receipt of principal and interest on the original stated due dates or
specified redemption dates.
Subordination
We will describe in the applicable prospectus supplement the terms and
conditions, if any, upon which any series of subordinated securities is
subordinated to debt securities of another series or to our other indebtedness.
The terms will include a description of:
. the indebtedness ranking senior to the debt securities being offered;
. the restrictions, if any, on payments to the holders of the debt
securities being offered while a default with respect to the senior
indebtedness is continuing;
. the restrictions, if any, on payments to the holders of the debt
securities being offered following an event of default; and
. provisions requiring holders of the debt securities being offered to remit
some payments to holders of senior indebtedness.
Conversion
We may issue debt securities from time to time that are convertible into our
common stock or our other securities or any securities of third parties. If you
hold convertible debt securities, you will be permitted at certain times
specified in the applicable prospectus supplement to convert your debt
securities into our common stock, other securities or securities of third
parties for a specified price. We will describe the conversion price (or the
method for determining the conversion price) and the other terms applicable to
conversion in the applicable prospectus supplement.
Guarantees
One or more of our subsidiaries, as guarantors, may, jointly and severally,
fully and unconditionally guarantee our obligations under the debt securities
on an equal and ratable basis, subject to the limitation described in the next
paragraph. In addition, any supplemental indenture may require us to cause
certain or all domestic entities that become one of our subsidiaries after the
date of any supplemental indenture to enter into a supplemental indenture
pursuant to which such subsidiary agrees to guarantee our obligations under the
debt securities. If we default in payment of the principal, interest or any
premium on such debt securities, the guarantors, jointly and severally, will be
unconditionally obligated to duly and punctually make such payments.
Notwithstanding the foregoing, as a result of certain restrictions set forth in
the indenture relating to iPCS' senior discount notes, none of iPCS nor any of
its subsidiaries may guarantee our debt securities so long as iPCS' senior
discount notes are oustanding.
Each guarantor's obligations will be limited to the maximum amount that
(after giving effect to all other contingent and fixed liabilities of such
guarantor any collections from, or payments made by or on behalf of, any other
guarantors) will result in the obligations of such guarantor under the
guarantee not constituting a fraudulent conveyance or fraudulent transfer under
federal or state law. Each guarantor that makes a payment or distribution under
its guarantee shall be entitled to contribution from each other guarantor in a
pro rata amount based on the net assets of each guarantor.
Guarantees of senior debt securities (including the payment of principal,
interest and any premium on such debt securities) will rank pari passu in right
of payment with all other unsecured and unsubordinated indebtedness of the
guarantor and will rank senior in right of payment to all subordinated
indebtedness of such
7
guarantor. Guarantees of subordinated debt securities will generally be
subordinated and junior in right of payment to the prior payment in full of all
senior indebtedness of the guarantor.
The prospectus supplement for a particular issue of debt securities will
describe the subsidiary guarantors and any additional material terms of the
guarantees.
Global Securities
If so described in the applicable prospectus supplement, we may issue the
debt securities of a series in whole or in part in the form of one or more
global securities that will be deposited with a depositary identified in the
prospectus supplement. We may issue global securities in either registered or
bearer form and in either temporary or permanent form. The specific terms of
the depositary arrangement with respect to any series of debt securities will
be described in the prospectus supplement.
DESCRIPTION OF OUR CAPITAL STOCK
General
The following summarizes all of the material terms and provisions of our
capital stock. We have 155,000,000 shares of authorized capital stock,
including 150,000,000 shares of common stock, par value $0.01 per share, and
5,000,000 shares of preferred stock, par value $0.01 per share. As of November
30, 2001, we had issued and outstanding 25,745,622 shares of our common stock.
We have no shares of our preferred stock issued and outstanding.
Common Stock
The holders of shares of our common stock are entitled to one vote for each
share held of record on all matters submitted to a vote of stockholders and do
not have any cumulative rights. Subject to the rights of the holders of any
series of preferred stock, holders of shares of our common stock are entitled
to receive ratably such dividends as may be declared by our board of directors
out of funds legally available to pay dividends. Holders of shares of our
common stock have no preemptive, conversion, redemption, subscription or
similar rights. If we liquidate, dissolve or wind up, the holders of shares of
our common stock are entitled to share ratably in the assets which are legally
available for distribution, if any, remaining after the payment or provision
for the payment of all debts and other liabilities and the payment and setting
aside for payment of any preferential amount due to the holders of shares of
any series of preferred stock.
Preferred Stock
Under our certificate of incorporation, our board of directors is
authorized, subject to certain limitations prescribed by law, without further
stockholder approval, from time to time to issue up to an aggregate of
5,000,000 shares of preferred stock, par value $0.01 per share. The preferred
stock may be issued in one or more series.
We will describe in the applicable prospectus supplement the specific
financial and other terms of each series of preferred stock. The description of
the preferred stock that is set forth in any prospectus supplement is not
complete without reference to the documents that govern the preferred stock,
including our certificate of incorporation and the certificate of designations
relating to the applicable series of preferred stock. These documents have been
or will be included or incorporated by reference as exhibits to the
registration statement of which this prospectus is a part.
Each series may have different rights, preferences and designations and
qualifications, limitations and restrictions that our board of directors may
establish without approval from our stockholders. These rights, designations
and preferences include:
. the maximum number of shares we will issue in the series;
. the name of the series;
8
. dividend rights;
. dividend rate or basis for determining such rate if any, on the shares of
the series;
. whether dividends will be cumulative and, if so, from which date or dates;
. whether we may redeem the shares of the series and if so, the dates,
prices and other terms and conditions of redemption;
. whether we will be obligated to purchase or otherwise redeem shares of the
series pursuant to a sinking fund or otherwise, and the prices, periods
and other terms and conditions upon which the shares of the series will be
redeemed or purchased;
. the rights, if any, of holders of the shares of the series to convert such
shares into, or exchange such shares for, shares of any other class of
stock;
. the voting rights of the shares of the series, in addition to the voting
rights provided by law, if any, and the terms of those voting rights; and
. the rights of the shares of the series in the event of a liquidation,
dissolution or winding up.
Our board of directors could authorize us to issue preferred stock with
voting, conversion and other rights that could adversely affect the voting
power and other rights of holders of shares of our common stock or other series
of preferred stock. In addition, if our board of directors decides to issue any
preferred stock, it could have the effect of delaying or preventing another
party from taking control of us. This is because we could design the terms of
the preferred stock to make it prohibitively expensive for any unwanted third
party to make a bid for shares of our common stock.
Delaware Law and Certain Charter and By-Law Provisions
We are subject to the provisions of Section 203 of the Delaware General
Corporation Law. Subject to certain exceptions, Section 203 prohibits a
publicly held Delaware corporation from engaging in a "business combination"
with an "interested stockholder" for a certain period of time. That period is
three years after the date of the transaction in which the person became an
interested stockholder, unless the interested stockholder attained that status
with the approval of the board of directors or unless the business combination
is approved in a prescribed manner. A "business combination" includes certain
merger, asset sales and other transactions resulting in a financial benefit to
the interested stockholder. Subject to certain exceptions, an "interested
stockholder" is a person who, together with his or her affiliates and
associates, owns, or owned within three years prior, 15% or more of the
corporation's voting stock.
Our certificate of incorporation provides that holders of at least 80% of
the voting power of the then-outstanding shares of our capital stock entitled
to vote in the election of directors, voting together as a single class must
approve certain business transactions with interested stockholders.Such
business transactions include:
. mergers or consolidations with an interested stockholder;
. sales, leases, exchanges, mortgages, pledges, transfers or other
dispositions of any of our assets to an interested stockholder;
. certain sizable issuances or transfers of any of our securities to an
interested stockholder;
. the adoption of any plan or proposal for our liquidation proposed by or on
behalf of an interested stockholder; or
. any reclassification of securities or recapitalization which increases the
proportionate share of any class of securities of an interested
stockholder.
However, the affirmative vote of a majority of the shares of outstanding stock
entitled to vote, or such vote as is required by law or our certificate of
incorporation, will suffice with respect to a business combination with an
interested stockholder if the consideration received meets certain fair price
standards.
9
Our certificate of incorporation and by-laws provide for the division of our
board of directors into three classes, as nearly equal in size as possible,
with each class beginning its three year term in a different year. Our
stockholders may remove a director only for cause with the affirmative vote of
the holders of at least 80% of the voting power of all of the then-outstanding
shares of capital stock entitled to vote generally for the election of
directors voting together as a single class.
Our by-laws also require a stockholder who intends to nominate a candidate
for election to the board of directors, or to raise new business at a
stockholder meeting to give at least 90 days advance notice to our Secretary.
The notice provision requires a stockholder who desires to raise new business
to provide us certain information concerning the nature of the new business,
the stockholder and the stockholder's interest in the business matter.
Similarly, a stockholder wishing to nominate any person for election as a
director must provide us with certain information concerning the nominee and
the proposing stockholder.
Our certificate of incorporation empowers our board of directors, when
considering a tender offer or merger or acquisition proposal, to take into
account factors in addition to potential economic benefits to stockholders.
These factors may include:
. comparison of the proposed consideration to be received by stockholders in
relation to the then current market price of our capital stock, our
estimated current value in a freely negotiated transaction and our
estimated future value as an independent entity; and
. the impact of a transaction on our employees, suppliers and clients and
its effect on the communities in which we operate.
Our certificate of incorporation also contains a provision which
acknowledges that certain of our Sprint PCS agreements establish a process for
the sale of our operating assets in the event of a default by us and an
acceleration of the obligations under AirGate's senior secured credit facility.
This provision of the certificate of incorporation is intended to permit the
sale of such assets without further stockholder approval.
The provisions described above could make it more difficult for a third
party to acquire control of us and, furthermore, could discourage a third party
from making any attempt to acquire control of us.
Our certificate of incorporation provides that any action required or
permitted to be taken by our stockholders may be taken only at a duly called
annual or special meeting of the stockholders, and that special meetings may be
called only by resolution adopted by a majority of the board of directors, or
as otherwise provided in the bylaws. These provisions could have the effect of
delaying until the next annual stockholders meeting stockholder actions that
are favored by the holders of a majority of the outstanding voting securities.
These provisions may also discourage another person or entity from making an
offer to stockholders for our common stock. This is because the person or
entity making the offer, even if it acquired a majority of our outstanding
voting securities, would be unable to call a special meeting of the
stockholders and would further be unable to act pursuant to a unanimous written
consent of the stockholders. As a result, any meeting as to matters they
endorse, including the election of new directors or the approval of a merger,
would have to wait for the next duly called stockholders meeting.
Delaware law provides that the amendment of a corporation's certificate of
incorporation or by-laws requires the affirmative vote of a majority of the
shares entitled to vote on any matter, unless the corporation's certificate of
incorporation or by-laws, as the case may be, requires a greater percentage.
Our certificate of incorporation requires the affirmative vote of the holders
of at least 80% of our outstanding voting stock to amend or repeal any of the
provisions of the certificate of incorporation described above. The 80% vote is
also required to amend or repeal any of our by-law provisions described above.
Our board of directors may also amend or repeal our by-laws. This 80%
stockholder vote would be in addition to the separate vote to which each class
of our preferred stock that may be outstanding at the time we submit any
amendment to our stockholders may be entitled in accordance with the terms of
such preferred stock.
10
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is American Stock
Transfer & Trust Company.
Listing
Our common stock has been approved for quotation and is traded on The Nasdaq
National Market under the symbol "PCSA."
DESCRIPTION OF WARRANTS
Currently Outstanding Warrants
We currently have outstanding warrants to purchase 723,241 shares of our
common stock as set forth below.
AirGate Warrants
In connection with AirGate's units offering, which was completed on
September 30, 1999, we issued warrants to purchase 644,400 shares of our common
stock. Of these, warrants to purchase 590,269 shares of our common stock have
been exercised and warrants to purchase 54,131 shares of our common stock
remain outstanding as of November 30, 2001. Such warrants may be exercised at
an exercise price of $0.01 per share of our common stock and expire on October
1, 2009.
On August 16, 1999, in connection with entering into AirGate's senior credit
facility, we issued warrants to Lucent Technologies exercisable for 128,860
shares of our common stock at an exercise price of $20.40 per share. The
warrants expire on August 15, 2004. In June 2000, we issued Lucent Technologies
warrants to acquire an additional 10,175 shares of our common stock on terms
identical to those described above. Of these, warrants to purchase 128,860
shares of our common stock were exercised and warrants to purchase 10,175 of
our shares of common stock remain outstanding.
iPCS Warrants
In connection with the merger, AirGate also assumed all of iPCS' obligations
under iPCS' then-outstanding warrants to purchase iPCS common stock.
Sprint Warrants. As additional consideration to Sprint Spectrum L.P. for its
agreement to expand iPCS' initial territory by an additional 20 markets, iPCS
issued to Sprint Spectrum L.P. a warrant which is currently exercisable for
183,584 shares of our common stock. The warrant is exercisable by Sprint
Spectrum L.P. at any time prior to July 15, 2007 at an exercise price of $31.06
per share. Sprint Spectrum L.P. may transfer its rights with respect to the
warrant only to a company that directly, or indirectly through one or more
intermediaries, controls, is controlled by, or is under common control with
Sprint Spectrum L.P., and any warrant so transferred will be subject to the
exercise time period. We have granted Sprint Spectrum L.P. demand registration
rights for the shares of our common stock subject to the warrant until the
common stock may be sold without registration.
Unit Warrants. As part of iPCS' units offering, iPCS issued and sold
warrants which are currently exercisable for 475,351 shares of our common
stock, pursuant to a warrant agreement between iPCS and Mellon Investor
Services LLC (formerly known as ChaseMellon Shareholder Services, L.L.C.), as
the warrant agent. The unit warrants are exercisable at any time prior to July
15, 2010 at an exercise price of $34.51 per share. The unit warrants trade
separately from the notes in the Private Offerings and Resales trading through
Automated Linkages (PORTAL) market.
11
Under the terms of a registration rights agreement entered into by iPCS in
connection with the issuance of the unit warrants, we are required to keep
effective a shelf registration statement covering the resale of the unit
warrants and the resale of the shares of our common stock issuable upon the
exercise of the unit warrants until the date on which all of the unit warrants
or shares of our common stock issuable thereunder have been sold pursuant to
the shelf registration statement or the unit warrants have expired. If we fail
to maintain the effectiveness of the shelf registration statement, a
registration default will occur and we will be required to pay liquidated
damages to each holder of a unit warrant. The liquidated damages will be in an
amount equal to $0.03 per week per unit warrant held by each holder for each
week or portion thereof that the registration default continues for the first
90-day period immediately following the occurrence of such registration
default. This amount will increase by an additional $0.02 per week per unit
warrant with respect to each subsequent 90-day period, up to a maximum of $0.07
per week per unit warrant. The provision for liquidated damages will continue
until the registration default has been cured. We are not required to pay
liquidated damages for more than one registration default at any given time. No
liquidated damages are currently payable.
We have agreed to cause a shelf registration statement on Form S-3 to become
effective to cover the resale of the unit warrants, as discussed above, and the
issuance and resale of the shares of our common stock issuable upon the
exercise of all of the assumed warrants. We will maintain the effectiveness of
the registration statement until the earlier of the expiration of the assumed
warrants or the date on which all of the assumed warrants have been exercised
and all shares of our common stock issuable upon exercise of the assumed unit
warrants have been sold.
Warrants to be Issued
We currently have no outstanding warrants to purchase preferred stock or
warrants to purchase debt securities. We may issue warrants for the purchase of
common stock, preferred stock or debt securities. We may issue warrants
independently or together with any other securities offered by any prospectus
supplement and we may attach or separate the warrants from those securities.
Each series of warrants will be issued under a separate warrant agreement to be
entered into between us and a warrant agent specified in the applicable
prospectus supplement, the form of which will be filed or incorporated by
reference as an exhibit to the registration statement of which this prospectus
is a part. The warrant agent will act solely as our agent in connection with
the warrants of such series and will not assume any obligation or relationship
of agency or trust for or with any provisions of the warrants offered by this
prospectus. We will set forth further terms of the warrants and the applicable
warrant agreements in the applicable prospectus supplement relating to our
issuance of any warrants.
The applicable prospectus supplement will describe the terms of the warrants
offered by this prospectus including, where applicable, the following:
. the title of the warrants;
. the aggregate number of the warrants;
. the price or prices at which we will issue warrants;
. the designation, terms and number of shares of common stock, shares of
preferred stock or debt securities purchasable upon exercise of the
warrants;
. the designation and terms of the securities, if any, with which the
warrants are issued and the number of the warrants issued with each such
offered security;
. the date, if any, on and after which the warrants and the related common
stock, preferred stock or debt securities will be separately transferable;
. the antidilution provisions of the warrants;
. whether we will have a right to call the warrants, and, if so, the terms
of any such call right;
12
. the price at which each share of common stock or preferred stock or debt
security purchasable upon exercise of the warrants may be purchased;
. the date on which the right to exercise the warrants shall commence and
the date on which the right shall expire;
. the minimum or maximum amount of the warrants which a holder may exercise
at any one time;
. information with respect to book-entry procedures, if any;
. a discussion of certain material federal income tax considerations; and
. any other terms of the warrants, including terms, procedures and
limitations relating to the exchange and exercise of the warrants.
SELLING STOCKHOLDERS
In addition to covering the offering of our common stock by us, this
prospectus covers the offering for resale of our common stock by the selling
stockholders. The selling stockholders, each a former stockholder of iPCS,
received their shares of our common stock in connection with our acquisition of
iPCS.
The prospectus supplement for any offering of our common stock by the
selling stockholders will include the following information:
. the names of the selling stockholders;
. the nature of any position, office or other material relationship which
any of the selling stockholders will have had during the prior three years
with us or any of our predecessors or affiliates;
. the number of shares of our common stock held by each of the selling
stockholders;
. the percentage of our common stock held by each of the selling
stockholders; and
. the number of shares of our common stock offered by each of the selling
stockholders.
PLAN OF DISTRIBUTION
Distributions by Us
We may sell the securities in one or more of the following ways from time to
time:
. directly to purchasers;
. through agents;
. through underwriters;
. to or through underwriters or dealers; and
. through a combination of any of these methods of sale.
We may directly solicit offers to purchase securities or agents designated
by us from time to time may solicit such offers. We will set forth in the
applicable prospectus supplement any such agent, who shall be deemed to be an
underwriter as that term is defined in the Securities Act of 1933, as amended
(the "Securities Act"), involved in the offer or the sale of the securities in
respect of which this prospectus is delivered will be named, and any
commissions payable by us to such agent. Unless we otherwise indicate in the
prospectus supplement, any such agent will be acting on a best efforts basis
for the period of its appointment. Agreements which we may enter into with
agents may entitle them to indemnification by us against certain civil
liabilities,
13
including liabilities under the Securities Act, and may be customers of, engage
in transactions with or perform services for us in the ordinary course of
business.
If we use any underwriters in the sale by us of the securities in respect of
which this prospectus is delivered, we will enter into an underwriting
agreement with such underwriters at the time of sale to them. We will set forth
in the applicable prospectus supplement, which will be used by the underwriters
to make resales of the securities in respect of which this prospectus is
delivered to the public, the names of the underwriters and the terms of the
transaction. The relevant underwriting agreement may entitle the underwriters
to indemnification by us against certain liabilities, including liabilities
under the Securities Act. The underwriters may be customers of, engage in
transactions with or perform services for us in the ordinary course of business.
If we utilize a dealer in the sale of the securities in respect of which
this prospectus is delivered, we will sell such securities to the dealer, as
principal. The dealer may then resell such securities to the public at varying
prices to be determined by such dealer at the time of the resale. We may
indemnify dealers against certain liabilities, including liabilities under the
Securities Act. Dealers may be customers of, engage in transactions with, or
perform services for us in the ordinary course of business.
Certain of the underwriters and their affiliates may engage in transactions
with and perform services for us in the ordinary course of business for which
they receive compensation.
The place and time of delivery for the securities in respect of which this
prospectus is delivered will be set forth in the accompanying prospectus
supplement.
Distributions by the Selling Stockholders
For purposes of this document, selling stockholders include partners,
donees, pledgees, transferees or other successors-in-interest from time to time
selling shares received from a named selling stockholder as a gift, pledge,
partnership distribution or other non-sale transfer. We will not receive any
proceeds from the sale of shares of our common stock held by the selling
stockholders pursuant to this document. The selling stockholders may offer and
sell their shares of our common stock from time to time in one or more of the
following transactions:
. on The Nasdaq National Market or any exchange or market on which shares of
our common stock are listed or quoted;
. in the over-the-counter market;
. in privately negotiated transactions;
. for settlement of short sales, or through long sales, options or hedging
transactions involving cross or block trades;
. by pledge to secure debts and other obligations;
. block transactions (which may involve crosses) in which a broker-dealer
may sell all or a portion of the shares as agent but may position and
resell all or a portion of the block as a principal to facilitate the
transaction;
. purchases by one or more underwriters on a firm commitment or best efforts
basis;
. purchases by a broker-dealer as principal and resale by the broker-dealer
for its own account pursuant to a prospectus supplement;
. a special offering, an exchange distribution or a secondary distribution
in accordance with the applicable rules of The Nasdaq National Market or
of any stock exchange on which shares of our common stock may be listed; or
. through a combination of any of these transactions.
14
The selling stockholders may sell their shares of our common stock at any of
the following prices:
. fixed prices which may be changed;
. market prices prevailing at the time of sale;
. prices related to prevailing market prices; or
. privately negotiated prices.
The selling stockholders may use broker-dealers to sell their shares of our
common stock. In connection with such sales the broker-dealers may either
receive discounts, concessions or commissions from the selling stockholders, or
they may receive commissions from purchasers of shares of our common stock for
whom they acted as agents. In order to comply with the securities laws of
certain states, the selling stockholders may only sell their shares of our
common stock through registered or licensed broker-dealers.
The selling stockholders and any agents or broker-dealers that the selling
stockholders use to sell their shares of our common stock may be deemed to be
"underwriters" within the meaning of Section 2(11) of the Securities Act, and
any discount, concession or commission received by them and any profit on the
resale of shares as principal may be deemed to be underwriting discounts or
commissions under the Securities Act. Because the selling stockholders may be
deemed to be underwriters, the selling stockholders may be subject to the
prospectus delivery requirements of the Securities Act.
The selling stockholders and any other person participating in the
distribution of their shares of our common stock described in this prospectus
and/or any applicable prospectus supplement will be subject to applicable
provisions of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the rules and regulations thereunder, including, without limitation,
the anti-manipulation provisions of Regulation M of the Exchange Act, which may
limit the timing of purchases and sales of any of such shares by the selling
stockholders or any other person. Furthermore, Regulation M may restrict the
ability of any person engaged in the distribution of the shares offered by the
selling stockholders pursuant to this prospectus and/or any applicable
prospectus supplement to engage in market-making activities with respect to the
particular shares being distributed. All of the foregoing may affect the
marketability of the shares offered by the selling stockholders pursuant to
this prospectus and/or any applicable prospectus supplement and the ability of
any person or entity to engage in market-making activities with respect to such
shares.
We may, if so indicated in the applicable prospectus supplement, agree to
indemnify any underwriters and the selling stockholders against certain civil
liabilities, including liabilities under the Securities Act.
The registration contemplated hereby is being effected under the
requirements of the merger agreement. We will pay substantially all of the
expenses incident to the registration of the shares of our common stock offered
by the selling stockholders pursuant to this prospectus and/or any applicable
prospectus supplement, including all costs incident to the offering and sale of
the shares by the selling stockholders to the public, including in an
underwritten public offering, other than any brokerage fees, selling
commissions or underwriting discounts.
LEGAL MATTERS
The validity of the securities offered hereby will be passed upon for us and
the selling stockholders by Winston & Strawn, Chicago, Illinois. Legal matters
will be passed upon for the underwriters, dealers or agents by counsel which we
will name in the applicable prospectus supplement.
EXPERTS
The consolidated financial statements and schedule of AirGate PCS, Inc. and
subsidiaries as of September 30, 2001 and 2000, and for the years ended
September 30, 2001 and 2000, and for the nine months
15
ended September 30, 1999, have been incorporated by reference herein and in the
registration statement in reliance upon the reports of KPMG LLP, independent
accountants, incorporated by reference herein, and upon the authority of said
firm as experts in accounting and auditing.
The consolidated financial statements of iPCS, Inc. and Subsidiaries and
Predecessor as of September 30, 2001 and December 31, 2000, and for the nine
months ended September 30, 2001, for the year ended December 31, 2000 and for
the period from January 22, 1999 (date of inception) through December 31, 1999,
incorporated by reference from the Current Report on Form 8-K of AirGate PCS,
Inc. filed with the Commission on November 30, 2001 have been audited by
Deloitte & Touche LLP, independent auditors, as stated in their report, which
is incorporated herein by reference, and have been so incorporated in reliance
upon the report of such firm given upon their authority as experts in
accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. You may read and copy any document we file at the
SEC's public reference room located at 450 5th Street, N.W., Washington, D.C.
20549. Please call the SEC at 1-800-SEC-0330 for further information on the
public reference room. Our SEC filings are also available to the public from
commercial document retrieval services and at the web site maintained by the
SEC at: http://www.sec.gov. Reports, proxy statements and other information
pertaining to us may also be inspected at the offices of The Nasdaq National
Market, which is located at 1735 K. Street, N.W., Washington, D.C. 20006.
We filed a registration statement on Form S-3 to register with the SEC the
securities offered by this prospectus. This prospectus is a part of that
registration statement. As allowed by SEC rules, this prospectus does not
contain all of the information you can find in our registration statement or
the exhibits to the registration statement.
You should rely only on the information or representations provided in this
prospectus or any prospectus supplement. We have not authorized anyone else to
provide you with different information. Neither we nor the selling stockholders
may make an offer of our securities in any state where the offer is not
permitted. The delivery of this prospectus does not, under any circumstances,
mean that there has not been a change in our affairs since the date of this
prospectus. It also does not mean that the information in this prospectus is
correct after this date.
Our address on the world wide web is http://www.airgatepcsa.com. The
information on our web site is not a part of this document.
INCORPORATION BY REFERENCE
The SEC allows us to "incorporate by reference" the information we file with
it, 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 document, and information that we file later with the SEC
will automatically update and supersede this information. We incorporate by
reference the documents listed below and any future filings we will make with
the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act
of 1934:
Filings Period or Date Filed
------- --------------------
Annual Report on Form 10-K............. Year ended September 30, 2001
Current Report on Form 8-K............. November 30, 2001
The description of our common stock set
forth on Form 8-A (File No. 0-27455). September 24, 1999
16
We incorporate by reference additional documents that we may file with the
SEC between the date of this document and the date of the completion of the
offering of the securities described in this prospectus. These documents
include periodic reports, such as Annual Reports on Form 10-K, Quarterly
Reports on Form 10-Q and Current Reports on Form 8-K, as well as proxy
statements.
You can obtain any of the documents incorporated by reference in this
document from us, or from the SEC through the SEC's Internet world wide web
site at the address described above. Documents incorporated by reference are
available from us without charge, excluding any exhibits to those documents,
unless the exhibit is specifically incorporated by reference as an exhibit in
this document. You can obtain documents incorporated by reference in this
document by requesting them in writing or by telephone from us at the following
address:
AirGate PCS, Inc.
Harris Tower
233 Peachtree Street NE, Suite 1700
Atlanta, Georgia 30303
Attention: Sharon Kushner
(404) 525-7272
E-mail: skushner@airgatepcsa.com
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.
17
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
All capitalized terms used and not defined in Part II of this Registration
Statement shall have the meaning assigned to them in the Prospectus which forms
a part of this Registration Statement.
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the costs and expenses, other than
underwriting discounts and commissions, payable by the Registrant in connection
with the sale of the common stock being registered. All amounts are estimates
except the Securities and Exchange Commission registration fee.
SEC registration fee........ $ 174,350
Printing expenses........... $ 25,000
Legal fees and expenses..... $ 50,000
Accounting fees and expenses $ 50,000
Miscellaneous............... $ 10,000
---------
Total................ $ 309,350
=========
Item 15. Indemnification of Directors and Officers.
In accordance with the 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 brining suit against the registrant to recover any
unpaid amount of a claim.
The right of 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, 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
II-1
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 stockholders. 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, indemnities 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), judgments, 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 of 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 an indemnification
determination or the termination of any claim by judgment, order, settlement,
plea of nolo contendere, or conviction does not create a presumption that
either (1) the indemnified person did not meet a particular standard of conduct
or belief or (2) that the court has determined that indemnification is not
available.
Under the indemnification agreement, an 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 the registrant's securities,
the relative benefits received by the registrant and indemnified person will be
deemed to be in the same respective proportions of the net proceeds from the
offering (less expenses) received by the registrant and the indemnified person.
The relative fault of the registrant and the indemnified person is determined
by reference to whether the untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by the registrant or the indemnified person and their
relative intent, knowledge, access to information and opportunity to correct
such statement or omission.
Contribution paid takes into account the equitable considerations, if any,
instead of a pro rata or per capital allocation. In connection with the
offering of the registrant securities, an indemnified person will not be
required
II-2
to contribute any amount in excess 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.
Exhibit
Number Description
------ -----------
*1.1 Form of Underwriting Agreement (Debt Securities)
*1.2 Form of Underwriting Agreement (Common Stock)
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))
*3.3 Form of Certificate of Designations for issuance of Preferred Stock, $0.01 par value per
share of AirGate PCS, Inc.
4.1 Form of Senior Indenture
4.2 Form of Subordinated Indenture
4.3 Form of stock certificate representing shares of Common Stock, $0.01 par value per share
of AirGate PCS, Inc. (incorporated by reference to Exhibit 4.1 to the Registration
Statement on Form S-1/A filed by AirGate PCS, Inc. on June 15, 1999 (SEC File Nos. 333-
79189-02 and 333-79189-01))
*4.4 Form of stock certificate representing shares of Preferred Stock, $0.01 par value per share
of AirGate PCS, Inc.
*4.5 Form of Senior Debt Security
*4.6 Form of Subordinated Debt Security
**5.1 Opinion of Winston & Strawn
**23.1 Consent of Winston & Strawn (included in Exhibit 5.1)
23.2 Consent of KPMG LLP
23.3 Consent of Deloitte & Touche LLP
**24.1 Powers of Attorney
*25 Statement of Eligibility of Trustee on Form T-1
--------
*To be filed by amendment or incorporated by reference in connection with the
offering of offered securities, as appropriate.
**Previouslyfiled.
II-3
Item 17. Undertakings
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:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933,
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the registration statement, notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which
was registered) and any deviation from the low or high and 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
a 20 percent change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
registration statement, and
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
provided, however, that clauses (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
clauses is contained in periodic reports filed with or furnished to the
commission by the registrant pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference 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.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Act, 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 this offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the registrant
pursuant to the provisions described under Item 15 above, 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.
II-4
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Act, the
information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Act shall be deemed to be a part of this Registration
Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Act, each
post-effective amendment that contains a form of prospectus shall be deemed
to be a new registration statement relating to the securities offered
therein, and this offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
The registrant hereby undertakes to file an application for the purpose of
determining the eligibility of the trustee to act under subsection (a) of
Section 310 of the Trust Indenture Act ("Act") in accordance with the rules and
regulations prescribed by the Securities and Exchange Commission under Section
305(b)(2) of the Act.
The registrant hereby undertakes to deliver or cause to be delivered with
the prospectus, to each person to whom the prospectus is sent or given, the
latest annual report to security holders that is incorporated by reference in
the prospectus and furnished pursuant to and meeting the requirements of Rule
14a-3 or Rule 14c-3 under the Securities Exchange Act of 1934; and, where
interim financial information required to be presented by Article 3 of
Regulation S-X are not set forth in the prospectus, to deliver, or cause to be
delivered to each person to whom the prospectus is sent or given, the latest
quarterly report that is specifically incorporated by reference in the
prospectus to provide such interim financial information.
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this amended
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Atlanta, State of Georgia, on the 30th day of
November, 2001.
AIRGATE PCS, INC.
/S/ BARBARA L. BLACKFORD
By:__________________________________
Barbara L. Blackford
Vice President, General Counsel
and Corporate Secretary
Pursuant to the requirements of the Securities Act of 1933, this amended
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
* President, Chief Executive Officer November 30, 2001
--------------------- and Director (Principal Executive
Thomas M. Dougherty Officer)
/S/ ALAN B. CATHERALL Chief Financial Officer November 30, 2001
--------------------- (Principal Financial and Accounting
Alan B. Catherall Officer)
* Director November 30, 2001
---------------------
Bernard A. Bianchino
/S/ MICHAEL S. CHAE Director November 30, 2001
---------------------
Michael S. Chae
* Director November 30, 2001
---------------------
John R. Dillon
* Director November 30, 2001
---------------------
Robert A. Ferchat
* Director November 30, 2001
---------------------
Sidney E. Harris
/S/ TIMOTHY M. YAGER Director November 30, 2001
---------------------
Timothy M. Yager
* Director November 30, 2001
---------------------
Barry J. Schiffman
*/S/ BARBARA L. BLACKFORD
_______________________________________________________________________________
With Authority Pursuant
to a Power-of-Attorney Previously
Filed with this Registration Statement
II-6
EXHIBIT INDEX
The following documents are filed herewith or incorporated herein by
reference.
Exhibit
Number Description
------ -----------
*1.1 Form of Underwriting Agreement (Debt Securities)
*1.2 Form of Underwriting Agreement (Common Stock)
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))
*3.3 Form of Certificate of Designations for issuance of Preferred Stock, $0.01 par value per share of
AirGate PCS, Inc.
4.1 Form of Senior Indenture
4.2 Form of Subordinated Indenture
4.3 Form of stock certificate representing shares of Common Stock, $0.01 par value per share of AirGate
PCS, Inc. (incorporated by reference to Exhibit 4.1 to the Registration Statement on Form S-1/A filed
by AirGate PCS, Inc. on June 15, 1999 (SEC File Nos. 333-79189-02 and 333-79189-01))
*4.4 Form of stock certificate representing shares of Preferred Stock, $0.01 par value per share of AirGate
PCS, Inc.
*4.5 Form of Senior Debt Security
*4.6 Form of Subordinated Debt Security
**5.1 Opinion of Winston & Strawn
**23.1 Consent of Winston & Strawn (included in Exhibit 5.1)
23.2 Consent of KPMG LLP
23.3 Consent of Deloitte & Touche LLP
**24.1 Powers of Attorney
*25 Statement of Eligibility of Trustee on Form T-1
--------
*To be filed by amendment or incorporated by reference in connection with the
offering of offered securities, as appropriate.
**Previously filed.
II-7