As filed with the Securities and Exchange Commission on
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------------------
Triton PCS Holdings, Inc.
(Exact name of registrant as specified in its charter)
Delaware 23-2974475
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
1100 Cassett Road 19312
Berwyn, Pennsylvania (Zip Code)
(Address of Principal Executive Offices)
-----------------------------
TRITON PCS HOLDINGS, INC.
1999 STOCK AND INCENTIVE PLAN
(Full title of plan)
-----------------------------
DOW, LOHNES & ALBERTSON, PLLC
Counsel
1200 New Hampshire Avenue, N.W.
Suite 800
Washington, D.C. 20036
(Name and address of agent for service)
--------------------
Telephone number of agent for service:
(202) 776-2000
--------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
========================================================================================
Proposed Proposed
Title of Maximum Maximum
Security Amount Aggregate Aggregate Amount of
Being Being Offering Price Offering Registration
Registered Registered (*) Per Share (**) Price Fee
========================================================================================
<S> <C> <C> <C> <C>
Class A Common
Stock, $0.01
Par Value Per
Share 3,454,495 $41.1875 $142,282,012.80 $37,562.45
========================================================================================
</TABLE>
(*) In addition, pursuant to Rule 416(a) under the Securities Act of 1933, this
registration statement also covers an indeterminate number of additional shares
which may be offered and issued in accordance with the Plan terms to prevent
dilution from stock splits, stock dividends or similar transactions.
(**) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(f)(1) under the Securities Act of 1933.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing information specified in the instructions to
Part I of Form S-8 will be sent or given to employees participating in the Plan
as specified by Rule 428(b)(1) of the Securities Act of 1933, as amended (the
"Securities Act"). Those documents and the documents incorporated by reference
into this Registration Statement pursuant to Item 3 of Part II of this
Registration Statement, taken together, constitute a prospectus that meets the
requirements of Section 10(a) of the Securities Act of 1933, as amended.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
Triton PCS Holdings, Inc. (the "Company") hereby incorporates, or will
be deemed to have incorporated, herein by reference the following documents:
(1) The Company's prospectus (File No. 333-85149) filed pursuant to
Rule 424(b) of the Securities Act of 1933;
(2) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), since December
31, 1998;
(3) The description of the Company's Class A Common Stock contained in
the Company's most recent Exchange Act registration statement on Form 8-A,
effective September 23, 1999 (SEC File No. 001-15325), including any amendment
thereto or report filed for the purpose of updating such description; and
(4) All documents filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act subsequent to the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all securities offered have been sold or which deregisters
all securities then remaining unsold.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
As of the date of this registration statement, members of Dow, Lohnes &
Albertson, PLLC and an investment partnership composed of current members of and
persons associated with Dow, Lohnes & Alberston, PLLC beneficially own an
aggregate of 22,300 shares of common stock.
Item 6. Indemnification of Directors and Officers.
The Delaware General Corporation Law authorizes corporations to limit
or eliminate the personal liability of directors of corporations and their
stockholders for monetary damages for breach of directors' fiduciary duty of
care. The duty of care requires that, when acting on behalf of the corporation,
directors must exercise an informed business judgment based on all material
information reasonably available to them. In the absence of the limitations
authorized by the Delaware statute, directors could be accountable to
corporations and their stockholders for monetary damages for conduct that does
not satisfy their duty of care. Although the statute does not change directors'
duty of care, it enables corporations to limit available relief to equitable
remedies such as injunction or rescission. The second restated certificate of
incorporation limits the liability of Triton's directors to Triton or its
stockholders to the fullest extent permitted by the Delaware statute.
Specifically, the directors of Triton will not be personably liable for monetary
damages for breach of a director's fiduciary duty as a director, except for
liability (i) for any breach of the director's duty of loyalty to Triton or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174 of
the Delaware General Corporation Law (which relates to the unlawful payment of
dividend or unlawful stock purchase or redemption by a corporation) or (iv) for
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<PAGE>
any transaction from which a director derived an improper personal benefit. The
inclusion of this provision in the second restated certificate of incorporation
may have the effect of reducing the likelihood of derivative litigation against
directors and may discourage or deter stockholders or management from bringing a
lawsuit against directors for breach of their duty of care, even though such an
action, if successful might otherwise have benefited Triton and its
stockholders. Under the applicable provisions of the Delaware General
Corporation Law, in general, a corporation may indemnify its directors,
officers, employees or agents against expenses (including attorneys' fees),
judgements, fines and amounts paid in settlement actually and reasonably
incurred by them in connection with any action, suit or proceeding brought by
third parties to which they may be made parties by reason of their being or
having been directors, officers, employees or agents and shall so indemnify such
persons only if they acted in good faith and in a manner they reasonably
believed to be in or not opposed to the best interests of the corporation and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe their conduct was unlawful. The second restated certificate of
incorporation gives Triton the power to indemnify its officers, directors,
employees and agents to the full extent permitted by Delaware law.
Triton has entered into indemnification agreements with each of its
directors which generally provide for indemnification of the director to the
fullest extent provided by law. In addition, Triton has purchased directors' and
officers' liability insurance coverage for its directors and certain of its
officers in amounts customary for similarly situated companies.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
EXHIBIT INDEX
Exhibit No. Exhibit Page No.
- ----------- ------- --------
5 Opinion of Dow, Lohnes & Albertson, PLLC 6
23.1 Consent of PricewaterhouseCoopers LLP 8
23.2 Consent of Arthur Andersen LLP 9
Consent of Dow, Lohnes & Albertson, PLLC 6
(contained in their opinion in Exhibit 5)
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement to include
any material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement;
(2) that, for the purpose of determining any liability under
the Securities Act, 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; and
(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 registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's Annual Report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
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<PAGE>
Annual Report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bonafide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the 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 Securities Act and will be governed by the final
adjudication of such issue.
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<PAGE>
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-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of Berwyn, Commonwealth of Pennsylvania on the 21st day
of December, 1999.
TRITON PCS HOLDINGS, INC.
/S/ Michael Kalogris
By: ----------------------------------
Michael Kalogris
Chief Executive Officer and
Chairman of the Board of Directors
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Capacity Date
- --------- -------- ----
/s/ Michael Kalogris Chief Executive Officer and December 21, 1999
- ---------------------------- Chairman of the Board of
Michael Kalogris Directors (Principal
(Executive Officer)
/s/ Steven Skinner President, Chief Operating December 21, 1999
- ---------------------------- Officer and Director
Steven Skinner
/s/ David D. Clark Senior Vice President, December 21, 1999
- --------------------------- Chief Financial Officer
David D. Clark and Secretary (Principal
Financial Officer)
/s/ William A. Robinson Vice President and Controller December 21, 1999
- ---------------------------- (Principal Accounting
William A. Robinson Officer)
/s/ Scott Anderson Director December 21, 1999
- ---------------------------
Scott Anderson
/s/ John Beletic Director December 21, 1999
- ---------------------------
John Beletic
/s/ Arnold Chavkin Director December 21, 1999
- ---------------------------
Arnold Chavkin
/s/ Mary Hawkins-Key Director December 22, 1999
- ---------------------------
Mary Hawkins-Key
/s/ John Watkins Director December 21, 1999
- ---------------------------
John Watkins
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OPINION OF DOW LOHNES & ALBERTSON, PLLC
EXHIBIT 5
[Firm Letterhead Appears Here]
December 27, 1999
Triton PCS Holdings, Inc.
1100 Cassett Road
Berwyn, Pennsylvania 19312
Re: Registration Statement on Form S-8
Gentlemen:
We have acted as special counsel for Triton PCS Holdings, Inc., a
Delaware corporation ("Triton"), in connection with the preparation of the
Registration Statement on Form S-8 (the "Registration Statement") pertaining to
3,454,495 shares (the "Shares") of Class A Common Stock, $0.01 par value per
share, being issued by Triton pursuant to the Triton PCS Holdings, Inc. 1999
Stock and Incentive Plan (the "Plan").
In preparing this opinion we have reviewed (a) the Registration
Statement; (b) Triton's Second Restated Certificate of Incorporation and Second
Amended and Restated Bylaws; (c) the Plan; and (d) certain records of Triton's
corporate proceedings as reflected in its minute and stock books.
As to matters of fact relevant to our opinion, we have relied upon oral
representations of officers of Triton without further investigation. In
addition, we have assumed: (i) the authenticity of all documents submitted to us
as originals, the conformity with authentic original documents of all documents
submitted to us as copies or forms, the genuineness of all signatures and the
legal capacity of natural persons, and (ii) that the foregoing documents, in the
forms thereof submitted for our review, have not been altered, amended or
repealed in any respect material to our opinion as stated herein. We have not
reviewed any documents other than the documents listed above for purposes of
rendering our opinion as expressed herein, and we assume that there exists no
provision of any such other document that bears upon or is inconsistent with our
opinion as expressed herein. We have conducted no independent factual
investigation of our own but rather have relied solely upon the foregoing
documents, the statements and information set forth therein and the additional
matters recited or assumed herein, all of which we assume to be true, complete
and accurate in all material respects.
Our opinion is limited to matters of law arising under the General
Corporation Law of the State of Delaware and federal law of the United States of
America, insofar as such laws apply, and we express no opinion as to conflicts
of law rules, or the laws of any states or jurisdictions, including federal laws
regulating securities, or the rules and regulations of stock exchanges or any
other regulatory body, other than as specified above.
Based upon and subject to the foregoing and any other qualifications
stated herein, we are of the opinion that the Shares, when and to the extent
issued and paid for pursuant to the provisions of the Plan, will be validly
issued, fully paid and non-assessable.
We hereby consent to the use of this opinion as Exhibit 5 to the
Registration Statement and to all references to our firm in the Registration
Statement, provided, that in giving such consent we do not admit that we come
within the category of persons whose consent is required under Section 7 of the
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<PAGE>
Securities Act of 1933 or the Rules and Regulations of the Securities and
Exchange Commission thereunder. Except as provided for hereinabove, without our
prior written consent, this opinion may not be furnished or quoted to, or relied
upon by, any other person or entity for any purpose.
Very truly yours,
DOW, LOHNES & ALBERTSON, PLLC
/s/ Michael A. Hepburn
By: _______________________________
Michael A. Hepburn
Member
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CONSENT OF PRICEWATERHOUSECOOPERS LLP
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of our reports dated October 7, 1999, except as to the information in
Note 19, for which the date is October 27, 1999 relating to the combined
financial statements and financial statement schedule, which appear in the
Triton PCS Holdings, Inc. and Predecessor Company's Registration Statement on
Form S-1 (File No. 333-85149).
/s/ PricewaterhouseCoopers, LLP
- -------------------------------
PRICEWATERHOUSECOOPERS, LLP
Philadelphia, Pennsylvania
December 21, 1999
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CONSENT OF ARTHUR ANDERSEN, LLP
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our report
dated March 20, 1998 on the financial statements of Vanguard Cellular Systems of
South Carolina, Inc. (and to all references to our Firm) included in or made a
part of this Registration Statement.
/s/ Arthur Andersen, LLP
- ------------------------
ARTHUR ANDERSEN, LLP
Greensboro, North Carolina
December 21, 1999
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