As filed with the Securities and Exchange Commission on April 10, 2000.
File No. 333-______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
________________________________
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES
ACT OF 1933
AirGate PCS, Inc.
-----------------
(Exact Name of Issuer as Specified in its Charter)
Delaware 58-2422929
----------- -----------
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
Harris Tower, Suite 1700
233 Peachtree Street, N.E.
Atlanta, GA 30303
(404) 525-7272
(Address, including zip code, and telephone
number of Principal Executive Offices)
AIRGATE PCS, INC. 1999 STOCK OPTION PLAN
(Full Title of the Plan)
THOMAS M. DOUGHERTY
President and Chief Executive Officer
AirGate PCS, Inc.
Harris Tower, Suite 1700
233 Peachtree Street,N.E.
Atlanta, GA 30303
(404) 525-7272
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy to:
LAURA G. THATCHER
Alston & Bird LLP
One Atlantic Center
1201 West Peachtree Street, NW
Atlanta, Georgia 30309-3424
(404) 881-7546
_______________________
CALCULATION OF REGISTRATION FEE
<TABLE>
<S> <C> <C> <C> <C>
Proposed Proposed
Title of Securities Amount to Maximum Maximum Amount of
to be Registered be Registered Offering Price Aggregate Registration
(1) Per Unit Offering Price Fee
Common Stock $0.01 par value 1,100,000 (2) $14.00 (2) $15,400,000 (2) $4,065.60
per share
Common Stock $0.01 par value 55,000 (3) $43.625 (3) $ 2,399,375 (3) $633.43
per share
Common Stock $0.01 par value 20,000 (4) $2.00 (4) $40,000 (4) $10.56
per share
Common Stock $0.01 par value 83,000 (5) $42.75 (5) $ 3,548,250 (5) $936.74
per share
Common Stock $0.01 par value 80,000 (6) $65.125 (6) $5,210,000 (6) $1,375.44
per share
Common Stock $0.01 par value 25,000 (7) $98.50 (7) $2,462,500 (7) $650.10
per share
Common Stock $0.01 par value 637,000 (8) $87.625 (8) $55,817,125 (8) $14,735.72
per share
</TABLE>
<PAGE>
(1) There are 2,000,000 shares currently reserved or available
for issuance as options pursuant to the AirGate PCS, Inc. 1999
Stock Option Plan (the "Plan"). The number of shares being
registered includes an indeterminate number of additional shares
which may be necessary to adjust the number of shares reserved
for issuance pursuant to the Plan as the result of a stock
split, stock dividend or similar adjustment of the outstanding
Common Stock of AirGate PCS, Inc. pursuant to 17 C.F.R. section
230.416(a).
(2) Options for 1,100,000 shares have been granted under the
Plan at an exercise price of $14.00 per share.
(3) Options for 55,000 shares have been granted under the Plan
at an exercise price of $43.625 per share.
(4) Options for 20,000 shares have been granted under the Plan
at an exercise price of $2.00 per share.
(5) Options for 83,000 shares have been granted under the Plan
at an exercise price of $42.75 per share.
(6) Options for 80,000 shares have been granted under the Plan
at an exercise price of $65.125 per share
(7) Options for 25,000 shares have been granted under the Plan
at an exercise price of $98.50 per share.
(8) Pursuant to Rule 457(h), the maximum offering price per
share for the remaining 637,000 options which have not been
granted is based on the market value of the common stock on
April 4, 2000, as determined by the average of the high and low
prices quoted on the Nasdaq National Market as reported in the
Wall Street Journal which was $87.625 per share.
<PAGE> II-1
PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
(a) The documents constituting Part I of this Registration
Statement will be sent or given to participants in the Plan as
specified by Rule 428(b)(1) under the Securities Act of 1933, as
amended.
(b) Upon written or oral request, the Registrant will provide,
without charge, the documents incorporated by reference in Item
3 of Part II of this Registration Statement. The documents are
incorporated by reference in the Section 10(a) prospectus. The
Registrant will also provide, without charge, upon written or
oral request, other documents required to be delivered to
employees pursuant to Rule 428(b). Requests for the above
mentioned information, should be directed to Shelley L. Spencer,
Corporate Secretary, at (301) 540-6222.
PART II. INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents have been filed by AirGate PCS, Inc.
(the "Registrant") with the Securities and Exchange Commission
(the "Commission") pursuant to the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and are deemed to be a
part hereof from the date of the filing of such documents:
(1) The Registrant's Transition Report on Form 10-K for the
period December 31, 1998 to September 30, 1999;
(2) The Registrant's Quarterly Report on Form 10-Q for the
quarter ended December 31, 1999;
(3) All other reports filed by the Registrant pursuant to
Section 13(a) or 15(d) of the Exchange Act since September 30,
1999;
(4) The description of Registrant's Common Stock contained in
Registrant's Form 8-A (File No. 0-27455), as filed with the SEC
pursuant to Section 12(g) of the Exchange Act and Rule 12b-15
promulgated thereunder, on September 24, 1999; and
(5) All other documents subsequently filed by the Registrant
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
Registration Statement that indicates that all securities
offered have been sold or that deregisters all securities that
remain unsold.
Any statement contained in a document incorporated or deemed
incorporated herein by reference shall be deemed to be modified
or superseded for the purpose of this Registration Statement to
the extent that a statement contained herein or in any
subsequently filed document which also is, or is deemed to be,
incorporated herein by reference modifies or supersedes such
statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to
constitute a part of this
<PAGE> II-2
Item 4. Description of Securities. The common stock to be
offered pursuant to the Plan has been registered pursuant to
Section 12 of the Exchange Act. Accordingly, a description of
the common stock is not required herein.
Item 5. Interests of Named Experts and Counsel. Not Applicable.
The validity of the Common Stock offered hereby has been passed
upon by Alston & Bird LLP, Atlanta, Georgia, for the Registrant.
Item 6. Indemnification of Directors and Officers
In accordance with General Corporation Law of the State of
Delaware (being chapter 1 of Title 8 of the Delaware code), the
Registrant's Certificate of Incorporation provides as follows:
The Registrant shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending
or completed action or suit by or in the right of the Registrant
to procure a judgment in its favor by reason of the fact that
such person acted in any of the capacities set forth above,
against expenses (including attorney's fees) actually and
reasonably incurred by him in connection with the defense or
settlement of such action or suit if such person acted under
similar standards, eceives a written undertaking by or on behalf
of the director or officer to repay such amount if it is
ultimately determined that that such person is not entitled to
be indemnified by the Registrant.
To the extent that a director or officer of the Registrant has
been successful in the defense of any action, suit or proceeding
referred to above or in the defense of any claim, issue or
matter therein, such person shall be indemnified against
expenses (including attorney's fees) actually and reasonably
incurred by him or her in connection therewith, that
indemnification provided for by the Certificate of Incorporation
shall not be deemed exclusive of any other rights to which the
indemnified party may be e t is empowered to purchase and
maintain insurance on behalf of a director or officer of the
Registrant against any liability asserted against him or her in
any such capacity, or arising out of such person's status as
such, whether or not the Registrant would have the power to
indemnify him against such liabilities under the Certificate of
Incorporation.
In addition to indemnification provided to the Registrant's
officers and directors in the Certificate of Incorporation and
under the laws of Delaware, the Registrant has entered into
indemnification agreements with certain officers and directors
to provide further assurances and protection from liability that
they may incur in their respective positions and duties in
connection with the public offering or as a fiduciary of the
Registrant and its shareholders. The Registrant has agreed to
indemnify and hold ted under Delaware law, each person and
affiliated person (generally, any director, officer, employee,
controlling person, agent, or fiduciary of the indemnified
person), provided that the indemnified person was acting or
serving at the Registrant's request in his capacity as either an
officer, director, employee, controlling person, fiduciary or
other agent or affiliate of the Registrant Under the
indemnification agreements, each person is indemnified against
any and all losses, claims, damages, expenses al, (including
attorney's fees, expenses and amount in settlement) that occur
in connection with any threatened, pending or completed action,
suit, proceeding, alternative dispute resolution mechanism or
hearing, inquiry or investigation that such indemnified person
believes in good faith may lead to the institution of such
action, under the Securities Act of 1933, Securities Exchange
Act of 1934 or other federal or state statutory law or
regulation, at common law or otherwise, which relate directly or
ind ation, purchase, sale or ownership of any securities of the
Registrant or to any fiduciary obligation owed with respect to
the Registrant and its stockholders. As a condition to
receiving indemnification, indemnified persons are required to
give notice in writing of any claim for which indemnification
may be sought under such agreement.
<PAGE> II-3
The agreement provides that an indemnified person may receive
indemnification against (1) expenses (including attorney's fees
and other costs, expenses and obligations incurred), judgements,
fines and penalties; (2) amounts paid in settlement (approved by
the Registrant); (3) federal, state, local taxes imposed as a
result of receipt of any payments under the indemnification
agreement; and (4) all interest, assessments and other charges
paid or payable in connection with any expenses, costs of
settlement or will be indemnified against expenses to the extent
that he is successful on the merits or otherwise, including
dismissal of an action without prejudice, in defense of any
action, suit, proceeding, inquiry or investigation. Expenses
that the indemnified person have or will incur in connection
with a suit or other proceeding may be received in advance
within 10 days of written demand to the Registrant.
Prior to receiving indemnification of being advanced expenses, a
committee, consisting or either members of the board of
directors or any person appointed by the board of directors,
must make a determination of whether the indemnified person is
entitled to indemnification under Delaware law. If there is a
change in control (as defined in the indemnification agreement)
that occurs without majority approval of the board of directors,
then the committee will consist of independent legal counsel
selected by th ed by the Registrant to render a written opinion
as to whether and the extent of indemnification that the
indemnified person is entitled, which will be binding on the
Registrant Under the indemnification agreement, an indemnified
person may appeal a determination by the committee's
determination not to grant indemnification or advance expenses
by commencing a legal proceeding. Failure of the committee to
make a indemnification determination or the termination of any
claim by judgement, order, settlement, viction does not create
a presumption that either (1) the indemnified person did not
meet a particular standard of conduct or belief or (2) that the
court has determined that indemnification is not available.
Under the indemnification agreement, an indemnified person is
entitled to contribution from the Registrant for losses, claims,
damages, expenses or liabilities as well as other equitable
considerations upon the determination of a court of competent
jurisdiction that indemnification is not available. The amount
contributed by the Registrant will be in proportion, as
appropriate, to reflect the relative benefits received by the
Registrant and the indemnified person or, if such contribution
is not permitted u ative benefit will be considered with the
relative fault of both parties. In connection with the
registration of AirGate, PCS, Inc.'s securities, the relative
benefits received by the Registrant and indemnified person will
be deemed to be in the same respective proportions of the net
proceeds from the offering (less expenses) received by the
Registrant and the indemnified person. The relative fault of
the Registrant and the indemnified person is determined by
reference to whether the untrue or alleged unt t 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 pr ied person from the sale of
securities under the registration statement. Contribution will
not be available if such person is found guilty of fraudulent
misrepresentation, as defined in the agreement.
<PAGE> II-4
In the event that the Registrant is also obligated under a
claim and upon written notice to the indemnified person, the
Registrant is entitled to assume defense of the claim and select
counsel which is approved by the indemnified person. Upon
receipt of the indemnified person's approval, the Registrant
will directly incur the legal expenses and as a result will have
the right to conduct the defense as it sees fit in its sole
discretion, including the right to settle any claim against any
indemnified party ified person.
Item 7. Exemption from Registration Claimed. Not Applicable.
Item 8. Exhibits
Exhibit
Number Description
4.1 Amended and Restated Certificate of Incorporation of the
Registrant (incorporated by reference from Exhibit 3.1 to the
Registration Statement on Form S-1/A, filed by the Registrant
with the Commission on June 15, 1999 (SEC File Nos. 333-79189-02
and 333-79189-01).
4.2 Amended and Restated By-laws of the Registrant (incorporated
by reference from Exhibit 3.2 to the Registration Statement on
Form S-1/A, filed by the Registrant with the Commission on June
15, 1999 (SEC File Nos. 333-79189-02 and 333-79189-01).
4.3 Specimen certificate representing the Common Stock
(incorporated by reference from Exhibit 4.1 to the Registration
Statement on Form S-1/A, filed by the Registrant with the
Commission on June 15, 1999 (SEC File Nos. 333-79189-02 and
333-79189-01).
5.1 Opinion of Counsel
23.1 Consent of Counsel (included in Exhibit 5)
23.2 Consent of KPMG LLP
24.1 Power of Attorney (included on signature page)
99.1 AirGate PCS, Inc. 1999 Stock Option Plan
Item 9. Undertakings
(a) The undersigned Company hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration
Statement:
<PAGE> II-5
(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 this Registration Statement (or the
most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in this Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this
Registration Statement or any material change to such
information in this Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii)
above do not apply if the Registration Statement is on Form S-3,
Form S-8 or Form F-3, and the information required to be
included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the Registrant pursuant
to Section 13 or Section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in this Registration
Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities being offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned Company hereby undertakes that, for
purposes of determining any liability under the Securities Act
of 1933, each filing of the Registrant's annual report pursuant
to Section 13(a) or Section 15(d) of the Securities Exchange Act
of 1934 (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by
reference in this Registration Statement shall be deemed to be a
new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the Registrant pursuant to
the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
(signatures on following page)
<PAGE> II-6
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities
Act of 1933, the Registrant certifies that it has reasonable
grounds to believe that it meets all of the requirements for
filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Atlanta, State of
Georgia, on April 7, 2000.
AirGate PCS, Inc.
By: /s/ Thomas M. Dougherty
------------------------
Thomas M. Dougherty
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Thomas M.
Dougherty as his true and lawful attorneys-in-fact and agent,
with full power of substitution and resubstitution, for him and
in his name, place and stead, in any and all capacities, to sign
any or all amendments (including post-effective amendments) to
this Registration Statement, and to file the same, with all
exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as
fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of the, or their or his
substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following
persons in the capacities indicated as of April 7, 2000.
Name Title Date
/s/ Thomas M. Dougherty President, Chief Executive Officer and April 7, 2000
- ----------------------- Director (Principal Executive Officer)
Thomas M. Dougherty
/s/ Alan B. Catherall Chief Financial Officer (Principal April 7, 2000
- ----------------------- Financial and Accounting Officer)
Alan B. Catherall
/s/ W. Chris Blane Vice President of Business Development April 7, 2000
- ----------------------- and Director
W. Chris Blane
<PAGE> II-7
/s/ Thomas D. Body, III Vice President of Strategic Development April 7, 2000
- ----------------------- and Director
Thomas D. Body, III
/s/ Barry Schiffman Chairman of the Board of Directors April 7, 2000
- -----------------------
Barry Schiffman
/s/ Gill Cogan Director April 7, 2000
- -----------------------
Gill Cogan
_______________________ Director
Robert Ferchat
/s/ John R. Dillon Director April 7, 2000
- -----------------------
John R. Dillon
<PAGE>
EXHIBIT INDEX
TO
REGISTRATION STATEMENT
ON FORM S-8
Exhibit
Number Description
- -------- ------------
4.1 Amended and Restated Certificate of Incorporation of the
Registrant (incorporated by reference from Exhibit 3.1 to the
Registration Statement on Form S-1/A, filed by the Registrant
with the Commission on June 15, 1999 (SEC File Nos. 333-79189-02
and 333-79189-01).
4.2 Amended and Restated By-laws of the Registrant (incorporated
by reference from Exhibit 3.2 to the Registration Statement on
Form S-1/A, filed by the Registrant with the Commission on June
15, 1999 (SEC File Nos. 333-79189-02 and 333-79189-01).
4.3 Specimen certificate representing the Common Stock
(incorporated by reference from Exhibit 4.1 to the Registration
Statement on Form S-1/A, filed by the Registrant with the
Commission on June 15, 1999 (SEC File Nos. 333-79189-02 and
333-79189-01).
5.1 Opinion of Counsel
23.1 Consent of Counsel (included in Exhibit 5)
23.2 Consent of KPMG LLP
24.1 Power of Attorney (included on signature page)
99.1 AirGate PCS, Inc. 1999 Stock Option Plan
Exhibit 5.1
Opinion of Alston & Bird LLP
<PAGE>
ALSTON&BIRD LLP
One Atlantic Center
1201 West Peachtree Street
Atlanta, Georgia 30309-3424
404-881-7000
Fax: 404-881-7777 Telex: 54-2996
April 7, 2000
AirGate PCS, Inc.
Harris Tower, Suite 1700
233 Peachtree Street, NE
Atlanta, Georgia 30303
Re: Form S-8 Registration Statement --
AirGate PCS, Inc. 1999 Stock Option Plan
Ladies and Gentlemen:
We have acted as counsel to AirGate PCS, Inc., a Delaware
corporation (the "Corporation"), in connection with the filing
of the above-referenced Registration Statement on Form S-8 (the
"Registration Statement") with the Securities and Exchange
Commission (the "Commission") to register under the Securities
Act of 1933, as amended (the "Securities Act"), 2,000,000 shares
of the Corporation's common stock, $0.01 par value per share
("Common Stock"), that may be issued pursuant to the AirGate
PCS, Inc. 1999 Stock Option Plan (the "Plan"). This opinion
letter is rendered pursuant to Item 8 of Form S-8 and Item
601(b)(5) of the Commission's Regulation S-K.
We have examined the Plan, the Amended and Restated Certificate of Incorporation
of the Corporation, the Amended and Restated Bylaws of the Corporation, records
of proceedings of the Board of Directors of the Corporation
deemed by us to be relevant to this opinion letter, the
Registration Statement and other documents and agreements we
deemed necessary for purposes of expressing the opinion set
forth herein. We also have made such further legal and factual
examinations and investigations as we deemed necessary for
purposes of expressing the opinion set forth herein.
As to certain factual matters relevant to this opinion letter,
we have relied upon certificates and statements of officers of
the Corporation and certificates of public officials. Except to
the extent expressly set forth herein, we have made no
independent investigations with regard thereto, and,
accordingly, we do not express any opinion as to matters that
might have been disclosed by independent verification.
This opinion letter is provided to the Corporation and the
Commission for their use solely in connection with the
transactions contemplated by the Registration Statement and may
not be used, circulated, quoted or otherwise relied upon by any
other person or for any other purpose without our express
written consent. The only opinion rendered by us consists of
those matters set forth in the sixth paragraph hereof, and no
opinion may be implied or inferred beyond those expressly
stated.
<PAGE>
Our opinion set forth below is limited to the General
Corporation Law of the State of Delaware, applicable provisions
of the Constitution of the State of Delaware and reported
judicial decisions interpreting such General Corporation Law and
Constitution, and we do not express any opinion herein
concerning any other laws.
Based on the foregoing, it is our opinion that the 2,000,000
shares of Common Stock covered by the Registration Statement and
to be issued pursuant to the Plan, when issued in accordance
with the terms and conditions of the Plan, will be legally and
validly issued, fully paid and nonassessable.
We consent to the filing of this opinion letter as an exhibit
to the Registration Statement and to the use of our name
wherever appearing in the Registration Statement. In giving
such consent, we do not thereby admit that we are within the
category of persons whose consent is required under Section 7 of
the Securities Act or the rules and regulations of the
Commission thereunder.
Sincerely,
ALSTON & BIRD LLP
By: /s/ Laura G. Thatcher
-----------------------
Laura G. Thatcher, Partner
Exhibit 23.2
Consent of KPMG LLP
<PAGE>
INDEPENDENT ACCOUNTANTS' CONSENT
The Board of Directors
AirGate PCS, Inc.:
We consent to the incorporation by reference in this
Registration Statement on Form S-8 of AirGate PCS, Inc. of our
report dated November 19, 1999, relating to the consolidated
balance sheets of AirGate PCS, Inc. and subsidiary and
predecessors as of September 30, 1999 and December 31, 1998, and
the related consolidated statements of operations, stockholders'
equity (deficit), and cash flows for the nine month periods
ended September 30, 1999 and 1998, the years ended December 31,
1998 and 1997 and for the period from inception, June 15, 1995,
to September 30, 1999, which report appears in the September 30,
1999, annual report on Form 10-K of AirGate PCS, Inc.
/s/ KPMG LLP
Atlanta, Georgia
April 7, 2000
AIRGATE PCS, INC.
1999 STOCK OPTION PLAN
1. Purpose of the Plan. The purposes of this Stock Option Plan
are to attract and retain the best available personnel for
positions of substantial responsibility, to provide additional
incentive to such individuals, to reward such individuals for
exemplary service and to promote the success of the Company's
business by aligning employee financial interests with long-term
shareholder value.
Options granted hereunder may be either Incentive Stock Options
or Nonqualified Stock Options, at the discretion of the Board
and as reflected in the terms of the written option agreement.
2. Definitions. As used herein, the following definitions shall
apply:
(a) "Board" shall mean the Committee, if the Committee has been
appointed, or the Board of Directors of the Company, if the
Committee has not been appointed.
(b) "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(c) "Committee" shall mean the Compensation Committee appointed
by the Board of Directors in accordance with Section 4(a) of the
Plan, if one is appointed.
(d) "Common Shares" shall mean the $.01 par value per share
common capital stock of the Company.
(e) "Company" shall mean AIRGATE PCS, INC., a Delaware
corporation, and any successor thereto.
(f) "Continuous Status as an Employee" shall mean the absence of
any interruption or termination of service as an Employee.
Continuous Status as an Employee shall continue to the extent
provided in a written severance or employment agreement during
any period for which severance compensation payments are made to
an Employee and shall not be considered interrupted in the case
of any leave of absence authorized in writing by the Company
prior to its commencement.
(g) "Employee" shall mean any person, including officers and
directors, employed by the Company or any Parent or Subsidiary
of the Company. Notwithstanding the foregoing, for purposes of
any Incentive Stock Option granted hereunder, "Employee"
includes only employees within the meaning of Section 422 of the
Code.
(h) "Incentive Stock Option" shall mean any option intended to
qualify as an incentive stock option within the meaning of
Section 422 of the Code.
(i) "Non-Employee Director" shall have the same meaning as
defined or interpreted for purposes of Rule 16b-3 (including
amendments and successor provisions) as promulgated by the
Securities and Exchange Commission pursuant to its authority
under the Securities Exchange Act of 1934, as amended ("Rule
16b-3").
(j) "Nonqualified Stock Option" shall mean an option not
intended to qualify as an Incentive Stock Option.
(k) "Option" shall mean a stock option granted pursuant to the
Plan and represented by a written option agreement.
(l) "Optioned Shares" shall mean the Common Shares subject to an
Option.
(m) "Optionee" shall mean an Employee who receives an Option.
(n) "Outside Director" shall have the same meaning as defined or
interpreted for purposes of Section 162(m) of the Code.
(o) "Parent" shall mean a "parent corporation" whether now or
hereafter existing, as defined in Section 424(e) of the Code.
(p) "Plan" shall mean this 1999 Stock Option Plan, including any
amendments hereto.
(q) "Share" shall mean one Common Share, as adjusted in
accordance with Section 11 of the Plan.
(r) "Subsidiary" shall mean (i) in the case of an Incentive
Stock Option, a "subsidiary corporation," whether now or
hereafter existing, as defined in Section 424(f) of the Code,
and (ii) in the case of a Nonqualified Stock Option, in addition
to a subsidiary corporation as defined in (i), a limited
liability company, partnership or other entity in which the
Company controls fifty percent (50%) or more of the voting power
or equity interests.
3. Shares Subject to the Plan. Subject to the provisions of
Section 11 of the Plan, the maximum aggregate number of shares
which may be optioned and sold under the Plan is 2,000,000
Common Shares. The Shares may be authorized, but unissued, or
reacquired Common Shares.
If an Option should expire or become unexercisable for any
reason without having been exercised in full, the unpurchased
Shares which were subject thereto shall, unless the Plan shall
have been terminated, become available for future grant under
the Plan.
4. Administration of the Plan.
(a) Procedure. The Plan shall be administered by the Board of
Directors of the Company.
(i) The Board of Directors may appoint a Compensation Committee
consisting of not less than two members of the Board of
Directors to administer the Plan on behalf of the Board of
Directors, subject to such terms and conditions as the Board of
Directors may prescribe. Once appointed, the Committee shall
continue to serve until otherwise directed by the Board of
Directors.
(ii) Any grants of Options to officers, directors and
shareholders who are subject to Section 16 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act') shall be
made by (A) a Committee of two or more directors, each of whom
is a Non-Employee Director and an Outside Director or (B) as
otherwise permitted by Rule 16b-3, Section 162(m) of the Code
and other applicable laws, rules and regulations.
(iii) From time to time the Board of Directors may increase the
size of the Committee and appoint additional members thereof,
remove members (with or without cause) and appoint new members
in substitution therefor, or fill vacancies however caused.
(b) Powers of the Board. Subject to the provisions of the Plan,
the Board shall have the authority, in its discretion (i) to
grant Incentive Stock Options or Nonqualified Stock Options;
(ii) to determine, in accordance with Section 8(b) of the Plan,
the fair market value of the Shares; (iii) to determine, in
accordance with Section 8(a) of the Plan, the exercise price per
Share of Options to be granted; (iv) to determine the Employees
to whom, and the time or times at which, Options shall be
granted and the number of Shares to be represented by each
Option; (v) to interpret the Plan; (vi) to prescribe, amend, and
rescind rules and regulations relating to the Plan; (vii) to
determine the terms and provisions of each Option granted (which
need not be identical and may include, as conditions to exercise
(as well as, in the case of Nonqualified Stock Options,
conditions to grant), vesting, forfeiture, performance criteria,
noncompete and such other restrictions, provisions and
conditions as the Board may determine) and, with the consent of
the holder thereof, modify or amend each Option; (viii) to
reduce the exercise price per share of outstanding and
unexercised Options; (ix) to accelerate or defer (with the
consent of the Optionee) the exercise date of any Option; (x) to
authorize any person to execute on behalf of the Company any
instrument required to effectuate the grant of an Option
previously granted by the Board; and (xi) to make all other
determinations deemed necessary or advisable for the
administration of the Plan.
(c) Effect of Board's Decision. All decisions, determinations,
and interpretations of the Board shall be final and binding on
all Optionees and any other holders of any Options granted under
the Plan.
5. Eligibility.
(a) Options may be granted only to Employees.
(b) Each Option shall be designated in the written option
agreement as either an Incentive Stock Option or a Nonqualified
Stock Option. However, notwithstanding such designations, to
the extent that the aggregate fair market value of the stock
with respect to which options designated as Incentive Stock
Options are exercisable for the first time by any Optionee
during any calendar year (under all plans of the Company and any
Parent or Subsidiary of the Company) exceeds $100,000, such
options shall be treated as Nonqualified Stock Options.
(c) For purposes of Section 5(b), options shall be taken into
account in the order in which they were granted, and the fair
market value of stock shall be determined as of the time the
option with respect to such stock is granted.
(d) Nothing in the Plan or any Option granted hereunder shall
confer upon any Optionee any right with respect to continuation
of employment with the Company, nor shall it interfere in any
way with the Optionee's right or the Company's right to
terminate the employment relationship at any time, with or
without cause.
6. Term of Plan. The Plan shall become effective upon its
adoption by the Board. It shall continue in effect until
December 31, 2009, unless sooner terminated under Section 14 of
the Plan.
7. Term of Option. The term of each Option shall be no more
than ten (10) years from the date of grant. However, in the
case of an Incentive Stock Option granted to an Optionee who, at
the time the Option is granted, owns Shares representing more
than ten percent (10%) of the voting power of all classes of
shares of the Company or any Parent or Subsidiary, the term of
the Option shall be no more than five (5) years from the date of
grant.
8. Exercise Price and Consideration.
(a) The per Share exercise price under each Option shall be
such price as is determined by the Board, subject to the
following:
(i) In the case of an Incentive Stock Option:
(A) granted to an Employee who, at the time of the grant of the
Incentive Stock Option, owns shares representing more than ten
percent (10%) of the voting power of all classes of shares of
the Company or any Parent or Subsidiary, the per Share exercise
price shall be no less than one hundred ten percent (110%) of
the fair market value per Share on the date of grant.
(B) granted to any other Employee, the per Share exercise price
shall be no less than one hundred percent (100%) of the fair
market value per Share on the date of grant.
(ii) In the case of a Nonqualified Stock Option, the per Share
exercise price may be less than, equal to, or greater than the
fair market value per Share on the date of grant, as determined
by the Board in its discretion.
(b) The fair market value per Share shall be determined by the
Board in its discretion and, in the case of an Incentive Stock
Option, in accordance with Section 422 of the Code.
(c) The consideration to be paid for the Shares to be issued
upon exercise of an Option, including the method of payment,
shall be determined by the Board at the time of grant and may
consist, without limitation, of cash and/or check and/or
promissory note. In all cases, an Optionee (including, without
limitation, an officer, director or shareholder of the Company
who is subject to Section 16 of the Exchange Act) may in
addition be allowed to pay all or part of the purchase price
with Shares. Shares used to pay the exercise price shall be
valued at their fair market value on the exercise date.
(d) Prior to issuance of the Shares upon exercise of an Option,
the Optionee shall pay any federal, state, and local withholding
obligations of the Company, if applicable. An Optionee
(including, without limitation, an officer, director or
shareholder of the Company who is subject to Section 16 of the
Exchange Act) may elect to pay such withholding tax obligations
by having the Company withhold Shares having a value equal to
the amount required to be withheld. The value of the Shares to
be withheld shall equal the fair market value of the Shares on
the day the option is exercised. The right of an officer,
director or shareholder who is subject to Section 16 of the
Exchange Act to dispose of Shares to the Company in satisfaction
of withholding tax obligations shall be deemed to be approved as
part of the initial grant of an Option, unless thereafter
rescinded, and shall otherwise be made in compliance with Rule
16b-3 and other applicable regulations.
9. Exercise of Option.
(a) Procedure for Exercise; Rights as a Shareholder. Any Option
granted hereunder shall be exercisable at such times and under
such conditions as determined by the Board at the time of grant,
and as shall not violate the terms of the Plan.
An Option may not be exercised for a fraction of a Share.
An Option shall be deemed to be exercised when written notice of
such exercise has been given to the Company in accordance with
the terms of the Option by the person entitled to exercise the
Option and full payment for the Shares with respect to which the
Option is exercised has been received by the Company. Full
payment may, as authorized by the Board, consist of any
consideration and method of payment allowable under Section 8(c)
of the Plan. Until the issuance (as evidenced by the
appropriate entry on the books of the Company or of a duly
authorized transfer agent of the Company) of the share
certificate evidencing such Shares, no right to vote or receive
dividends or any other rights as a shareholder shall exist with
respect to the Optioned Shares, notwithstanding the exercise of
the Option. The Company shall issue (or cause to be issued)
such share certificate promptly upon exercise of the Option. In
the event that the exercise of an Option is treated in part as
the exercise of an Incentive Stock Option and in part as the
exercise of a Nonqualified Stock Option pursuant to Section
5(b), the Company shall issue a share certificate evidencing the
Shares treated as acquired upon the exercise of an Incentive
Stock Option and a separate share certificate evidencing the
Shares treated as acquired upon the exercise of a Nonqualified
Stock Option, and shall identify each such certificate
accordingly in its share transfer records. No adjustment will
be made for a dividend or other right for which the record date
is prior to the date the share certificate is issued, except as
provided in Section 11 of the Plan.
Exercise of an Option in any manner shall result in a decrease
in the number of Shares which thereafter may be available, both
for purposes of the Plan and for sale under the Option, by the
number of Shares as to which the Option is exercised.
(b) Termination of Status as Employee. In the event of
termination of an Optionee's Continuous Status as an Employee,
such Optionee may exercise Options to the extent exercisable on
the date of termination. In the case of an Incentive Stock
Option and unless specified otherwise in the Option Agreement in
the case of a Nonqualified Stock Option, such exercise must
occur within three (3) months (or such shorter time as may be
specified in the grant) after the date of such termination (but
in no event later than the date of expiration of the term of
such Option as set forth in the Option Agreement). To the
extent that the Optionee was not entitled to exercise the Option
at the date of termination, or does not exercise the Option
within the time specified herein or therein (whichever first
occurs), the Option shall terminate. If the Optionee returns to
Continuous Status as an Employee before his deadline for
exercise pursuant to this Section 9(b), then Optionee shall be
restored to the status as Optionee he held immediately prior to
his termination (provided no employment credit will be earned
for any period he was not in Continuous Status as an Employee).
(c) Disability of Optionee. Notwithstanding the provisions of
Section 9(b) above, in the event of termination of an Optionee's
Continuous Status as an Employee as a result of total and
permanent disability (i.e., the inability to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected
to result in death or which has lasted or can be expected to
last for a continuous period of twelve (12) months), the
Optionee may exercise the Option, but only to the extent of the
right to exercise that had accrued as of the date of
termination. In the case of an Incentive Stock Option and
unless specified otherwise in the Option Agreement in the case
of a Nonqualified Stock Option, such exercise must occur within
twelve (12) months (or such shorter time as is specified in the
grant) from the date on which the Employee ceased working as a
result of the total and permanent disability (but in no event
later than the date of expiration of the term of such Option as
set forth in the Option Agreement). To the extent that the
Optionee was not entitled to exercise such Option within the
time specified herein or therein (whichever first occurs), the
Option shall terminate. If the Optionee returns to Continuous
Status as an Employee before his deadline for exercise pursuant
to this Section 9(c), then Optionee shall be restored to the
status as Optionee he held immediately prior to his termination
(provided no employment credit will be earned for any period he
was not in Continuous Status as an Employee).
(d) Death of Optionee. Notwithstanding the provisions of
Section 9(b) above, in the event of the death of an Optionee --
(i) who is at the time of death an Employee, the Option may be
exercised, at any time within six (6) months following the date
of death (but in no event later than the date of expiration of
the term of such Option as set forth in the Option Agreement),
by the Optionee's estate or by a person who acquired the right
to exercise the option by bequest or inheritance, but only to
the extent of the right to exercise that had accrued as of the
date of death; or
(ii) whose Option has not yet expired but whose Continuous
Status as an Employee terminated prior to the date of death, the
Option may be exercised, at any time within six (6) months
following the date of death (but in no event later than the date
of expiration of the term of such Option as set forth in the
Option Agreement), by the Optionee's estate or by a person who
acquired the right to exercise the option by bequest or
inheritance, but only to the extent of the right to exercise
that had accrued at the date of termination.
(e) Notwithstanding subsections (b), (c), and (d) above, the
Board shall have the authority to extend the expiration date of
any outstanding option in circumstances in which it deems such
action to be appropriate (provided that no such extension shall
extend the term of an Option beyond the date on which the Option
would have expired if no termination of the Employee's
Continuous Status as an Employee had occurred).
10. Non-Transferability of Options. An Option may not be sold,
pledged, assigned, hypothecated, transferred, or disposed of in
any manner other than by will or by the laws of descent or
distribution and may be exercised, during the lifetime of the
Optionee, only by the Optionee; provided, however, that the
Board may permit further transferability, on a general or
specific basis, and may impose conditions and limitations on any
permitted transferability.
11. Adjustments Upon Changes in Capitalization or Merger.
Subject to any required action by the shareholders of the
Company, the number of Shares covered by each outstanding
Option, and the number of Shares which have been authorized for
issuance under the Plan but as to which no Options have yet been
granted or which have been returned to the Plan upon
cancellation or expiration of an Option, as well as the price
per Share covered by each such outstanding Option, shall be
proportionately adjusted for any increase or decrease in the
number of issued Shares resulting from a stock split, reverse
stock split, stock dividend, combination, or reclassification of
the Shares, or any other increase or decrease in the number of
issued Shares effected without receipt of consideration by the
Company; provided, however, that conversion of any convertible
securities of the Company shall not be deemed to have been
"effected without receipt of consideration." Such adjustment
shall be made by the Board, whose determination in that respect
shall be final, binding, and conclusive. Except as expressly
provided herein, no issuance by the Company of shares of any
class, or securities convertible into shares of any class, shall
affect, and no adjustment by reason thereof shall be made with
respect to, the number or price of Shares subject to an Option.
In the event of the proposed dissolution or liquidation of the
Company, the Option will terminate immediately prior to the
consummation of such proposed action, unless otherwise provided
by the Board. The Board may, in the exercise of its sole
discretion in such instances, declare that any Option shall
terminate as of a date fixed by the Board and give each Optionee
the right to exercise an Option as to all or any part of the
Optioned Shares, including Shares as to which the Option would
not otherwise be exercisable. In the event of a proposed sale
of all or substantially all of the assets of the Company, or the
merger of the Company with or into another corporation, each
Option shall be assumed or an equivalent option shall be
substituted by such successor corporation or a parent or
subsidiary of such successor corporation, unless such successor
corporation does not agree to assume the Option or to substitute
an equivalent Option, in which case the Board shall, to the
extent required by law or otherwise as determined by the Board,
in lieu of such assumption or substitution, provide for the
Optionee to have the right to exercise the Option as to all of
the Optioned Shares, including Shares as to which the Option
would not otherwise be exercisable. If the Board makes an
Option fully exercisable in lieu of assumption or substitution
in the event of a merger or sale of assets, the Board shall
notify the Optionee that the Option shall be fully exercisable
for a period of thirty (30) days from the date of such notice,
and the Option will terminate upon the expiration of such period.
12. Time of Granting Options. The date of grant of an Option
shall, for all purposes, be the date on which the Company
completes the corporate action relating to the grant of an
Option and all conditions to the grant have been satisfied,
provided that conditions to the exercise of an Option shall not
defer the date of grant. Notice of a grant shall be given to
each Employee to whom an Option is so granted within a
reasonable time after the determination has been made.
13. Substitutions and Assumptions. The Board shall have the
right to substitute or assume Options in connection with
mergers, reorganizations, separations, or other transactions to
which Section 424(a) of the Code applies, provided such
substitutions and assumptions are permitted by Section 424 of
the Code and the regulations promulgated thereunder. The number
of Shares reserved pursuant to Section 3 may be increased by the
corresponding number of Options assumed and, in the case of a
substitution, by the net increase in the number of Shares
subject to Options before and after the substitution.
14. Amendment and Termination of the Plan. The Board may amend
or terminate the Plan from time to time in such respects as the
Board may deem advisable (including, but not limited to,
amendments which the Board deems appropriate to enhance the
Company's ability to claim deductions related to stock option
exercises); provided, however, that any increase in the number
of Shares subject to the Plan, other than in connection with an
adjustment under Section 11 of the Plan, shall require approval
of or ratification by the shareholders of the Company.
(a) Employees in Foreign Countries. The Board shall have the
authority to adopt such modifications, procedures, and subplans
as may be necessary or desirable to comply with provisions of
the laws of foreign countries in which the Company or its Parent
or Subsidiaries may operate to assure the viability of the
benefits from Options granted to Employees employed in such
countries and to meet the objectives of the Plan.
(b) Effect of Amendment or Termination. Any such amendment or
termination of the Plan shall not affect Options already granted
and such Options shall remain in full force and effect as if
this Plan had not been amended or terminated, unless mutually
agreed otherwise between the Optionee and the Board, which
agreement may be in writing and signed by the Optionee and the
Company.
15. Conditions Upon Issuance of Shares. Shares shall not be
issued pursuant to the exercise of an Option unless the exercise
of such Option and the issuance and delivery of such Shares
pursuant thereto shall comply with all relevant provisions of
law, including, without limitation, the Securities Act of 1933,
as amended, the Securities Exchange Act of 1934, as amended, the
rules and regulations promulgated thereunder, any applicable
state securities laws, and the requirements of any stock
exchange upon which the Shares may then be listed, and shall be
further subject to the approval of counsel for the Company with
respect to such compliance.
16. Reservation of Shares. The Company, during the term of this
Plan, will at all times reserve and keep available such number
of Shares as shall be sufficient to satisfy the requirements of
the Plan.
17. Shareholder and Board Approval. The Plan, is subject to
approval by the shareholders and Board of the Company and shall
become effective on the date of such approval.
18. Governing Law. The validity, construction, interpretation
and effect of this Plan shall exclusively be governed by and
determined in accordance with the laws of the State of Georgia,
except to the extent preempted by federal law.
