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As filed with the Securities and Exchange Commission on February 24, 2000.
REGISTRATION NO. _________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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ALAMOSA PCS HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 75-2853707
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
4403 BROWNFIELD HIGHWAY
LUBBOCK, TEXAS 79407
(806) 722-1100
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
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ALAMOSA PCS HOLDINGS, INC. 1999 LONG TERM INCENTIVE PLAN
(Full Title of Plan)
DAVID E. SHARBUTT
CHIEF EXECUTIVE OFFICER
ALAMOSA PCS HOLDINGS, INC.
4403 BROWNFIELD HIGHWAY
LUBBOCK, TEXAS 79407
(806) 722-1100
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
With copies to:
HAYNES AND BOONE, L.L.P.
901 MAIN STREET, SUITE 3100
DALLAS, TEXAS 75202-3789
ATTN: WM. S. KLEINMAN
(214) 651-5000
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CALCULATION OF REGISTRATION FEE
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PROPOSED
MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED(1)(2)(3) PER SHARE(3) OFFERING PRICE(3) FEE
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<S> <C> <C> <C> <C>
Common Stock, par value $0.01 per share 6,466,500 $24.00 $155,196,000 $40,972
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(1) Pursuant to Rule 416(a), also registered hereunder is an indeterminate
number of shares of Common Stock issuable as a result of the anti-dilution
provisions of the Alamosa PCS Holdings, Inc. Long Term Incentive Plan (the
"Plan"). In addition, pursuant to Rule 416(c), under the Securities Act of
1933, this Registration Statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plan
described herein.
(2) Pursuant to the terms of the Plan, an aggregate of 7,000,000 shares are
issuable pursuant to awards granted thereunder. Prior to the effective date
of this registration statement, 535,001 shares were issued pursuant to
certain options granted under and exercised pursuant to the Plan. The
6,464,900 shares registered hereby represent the remaining shares issuable
pursuant to the Plan.
(3) With respect to the shares registered hereby, the offering price per share,
the aggregate offering price and the registration fee have been calculated
in accordance with paragraphs (c) and (h)(1) of Rule 457 on the basis of
the average high and low sale prices for the Company's Common Stock on
February 17, 2000, as quoted on the Nasdaq National Market ($24.00 per
share).
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The contents of the following documents filed by Alamosa PCS Holdings, Inc.
a Delaware corporation (the "Company"), and the Plan with the Securities and
Exchange Commission (the "Commission") are incorporated into this registration
statement ("Registration Statement") by reference:
(a) The Company's Registration Statement on Form S-1, as amended, effective
as of February 2, 2000, Registration No. 333-89995 ("Registration No.
333-89995").
(b) All 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, 1999;
and
(c) The description of the Company's common stock, par value $.01 per share
(the "Common Stock"), set forth under the caption "Description of Capital Stock
- -- Common Stock" in Registration No. 333-89995.
All documents filed by the Company and the Plan with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent
to the filing date of this Registration Statement and prior to the filing of a
post-effective amendment to this Registration Statement which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing such
documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law permits a corporation
to indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the fact
that he is or was a director, officer, employee or agent of the corporation or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses, judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action.
In an action brought to obtain a judgment in the corporation's favor,
whether by the corporation itself or derivatively by a stockholder, the
corporation may only indemnify for expenses, including attorney's fees, actually
and reasonably incurred in connection with the defense or settlement of such
action, and the corporation may not indemnify for amounts paid in satisfaction
of a judgment or in settlement of the claim. In any such action, no
indemnification may be paid in respect of any claim, issue
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or matter as to which such person shall have been adjudged liable to the
corporation except as otherwise approved by the Delaware Court of Chancery or
the court in which the claim was brought. In any other type of proceeding, the
indemnification may extend to judgments, fines and amounts paid in settlement,
actually and reasonably incurred in connection with such other proceeding, as
well as to expenses.
The statute does not permit indemnification unless the person seeking
indemnification has acted in good faith and in a manner be reasonably believed
to be in, or not opposed to, the best interests of the corporation and, in the
case of criminal actions or proceedings, the person had no reasonable cause to
believe his conduct was unlawful. The statute contains additional limitations
applicable to criminal actions and to actions brought by or in the name of the
corporation. The determination as to whether a person seeking indemnification
has met the required standard of conduct is to be made (1) by a majority vote of
the disinterested directors, even though less than a quorum, (2) by a committee
of such directors designated by majority vote of such directors, even though
less than a quorum, (3) if there are no disinterested directors or if the
disinterested directors so direct, by independent legal counsel in a written
opinion, or (4) by the stockholders.
The Company's Amended and Restated Certificate of Incorporation requires
the Company to indemnify any person who was, is or is threatened to be made a
party any threatened pending, or completed action, suit, or proceeding, whether
civil, criminal, administrative, arbitrative, or investigative, any appeal in
such an action, suit, or proceeding, and any inquiry or investigation that could
lead to such an action, suit, or proceeding by reason of the fact that he (i) is
or was a director or officer of the Company or (ii) while a director or officer
of the Company, is or was serving at the request of the Company as a director,
officer, partner, venturer, proprietor, trustee, employee, agent or similar
functionary of any foreign or domestic corporation, partnership, joint venture,
sole proprietorship, trust, employee benefit plan, or other enterprise, to the
fullest extent permitted under Delaware General Corporation Law, as the same
exists or may be amended.
The Company's Amended and Restated Certificate of Incorporation provides
that a director of the Company shall not be held personally liable to the
Company or its shareholders for monetary damages for breach of a director's
fiduciary duty of care, except that a director shall continue to be held
personally liable for (i) breach of the duty of loyalty, (ii) failure to act in
good faith, (iii) engaging in intentional misconduct or knowingly violating a
law, (iv) paying a dividend or approving a stock repurchase which was illegal
under Delaware law, or (v) obtaining an improper personal benefit.
The Company has purchased insurance on behalf of its directors and officers
against certain liabilities that may be asserted against, or incurred by, such
persons in their capacities as directors or officers of the registrant, or that
may arise out of their status as directors or officers of the registrant,
including liabilities under the federal and state securities laws.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
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Exhibit Description
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4.1 Specimen certificate for shares of the Company's common stock,
par value $.01 per share filed as Exhibit 4.1 to Amendment 2 to
the Company's Registration Statement filed on Form S-1
(Registration No. 333-89995), is incorporated herein by
reference.
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<TABLE>
Exhibit Description
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4.2 Amended and Restated Certificate of Incorporation of Alamosa PCS
Holdings, Inc., filed as Exhibit 3.1 to Amendment 3 to the
Company's Registration Statement filed on Form S-1 (Registration
No. 333-89995), and incorporated herein by reference.
4.3 Amended and Restated Bylaws of Alamosa PCS Holdings, Inc., filed
as Exhibit 3.2 to Amendment 3 to the Company's Registration
Statement filed on Form S-1 (Registration No. 333-89995), and
incorporated herein by reference.
4.4 The Company's 1999 Long Term Incentive Plan filed as Exhibit
10.17 to Amendment 3 to the Company's Registration Statement
filed on Form S-1 (Registration No. 333-89995).
5.1 Opinion of Haynes and Boone, L.L.P.
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Haynes and Boone, L.L.P. (included in Exhibit 5.1
opinion).
24.1 Power of Attorney (included on the signature page hereto).
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ITEM 9. UNDERTAKINGS.
A. Undertaking to Update
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:
(i) To include any prospectus required by section 10(a)(3)
of the Securities Act of 1933, as amended (the "Securities Act");
(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;
(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;
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Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if 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
Exchange Act that are incorporated by reference 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.
(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. Undertaking With Respect to Documents Incorporated by Reference
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 each filing of the Plan's 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 herein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
C. Undertaking With Respect to Indemnification
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
Commission such indemnification is against public policy as expressed
in the Securities 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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SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all 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 Lubbock, State of Texas, on February 24, 2000.
ALAMOSA PCS HOLDINGS, INC.
By: /s/ DAVID E. SHARBUTT
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David E. Sharbutt
Chairman of the Board of Directors
and
Chief Executive Officer
(Principal Financial Officer)
POWER OF ATTORNEY
Each of the undersigned hereby appoints David E. Sharbutt, as attorney and
agent for the undersigned, with full power of substitution, for and in the name,
place and stead of the undersigned, to sign and file with the Commission under
the Securities Act any and all amendments and exhibits to this Registration
Statement and any and all applications, instruments and other documents to be
filed with the Commission pertaining to the registration of the securities
covered hereby, with full power and authority to do and perform any and all acts
and things whatsoever requisite or desirable.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities indicated
on February 24, 2000.
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SIGNATURE TITLE
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<S> <C>
/s/ DAVID E. SHARBUTT Director, Chairman of the Board of Directors and Chief
- ------------------------------------- Executive Officer
David E. Sharbutt (Principal Executive Officer)
/s/ KENDALL W. COWAN Chief Financial Officer
- ------------------------------------- (Principal Financial Officer)
Kendall W. Cowan
/s/ MICHAEL R. BUDAGHER Director
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Michael R. Budagher
/s/ RAY M. CLAPP, JR. Director
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Ray M. Clapp, Jr.
/s/ SCOTTY HART Director
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Scotty Hart
/s/ THOMAS HYDE Director
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Thomas Hyde
/s/ SCHUYLER B. MARSHALL Director
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Schuyler B. Marshall
/s/ TOM M. PHELPS Director
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Tom M. Phelps
/S/ REAGAN W. SILBER Director
- -------------------------------------
Reagan W. Silber
/s/ JIMMY R. WHITE Director
- -------------------------------------
Jimmy R. White
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INDEX TO EXHIBITS
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Exhibit Description
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4.1 Specimen certificate for shares of the Company's common stock,
par value $.01 per share filed as Exhibit 4.1 to Amendment 2 to
the Company's Registration Statement filed on Form S-1
(Registration No. 333-89995), is incorporated herein by
reference.
4.2 Amended and Restated Certificate of Incorporation of Alamosa PCS
Holdings, Inc., filed as Exhibit 3.1 to Amendment 3 to the
Company's Registration Statement filed on Form S-1 (Registration
No. 333-89995), and incorporated herein by reference.
4.3 Amended and Restated Bylaws of Alamosa PCS Holdings, Inc., filed
as Exhibit 3.2 to Amendment 3 to the Company's Registration
Statement filed on Form S-1 (Registration No. 333-89995), and
incorporated herein by reference.
4.4 The Company's 1999 Long Term Incentive Plan filed as Exhibit
10.17 to Amendment 3 to the Company's Registration Statement
filed on Form S-1 (Registration No. 333-89995).
5.1 Opinion of Haynes and Boone, L.L.P.
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Haynes and Boone, L.L.P. (included in Exhibit 5.1
opinion).
24.1 Power of Attorney (included on the signature page hereto).
</TABLE>
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EXHIBIT 5.1
HAYNES AND BOONE, L.L.P.
1000 Louisiana Street, Suite 4300
Houston, Texas 77002
(713) 547-2000
February 24, 2000
Alamosa PCS Holdings, Inc.
4403 Brownfield Highway
Lubbock, Texas 79407
Gentlemen:
We have acted as counsel to Alamosa PCS Holdings, Inc., a Delaware corporation
(the "Company"), in connection with the preparation of the Registration
Statement on Form S-8 (the "Registration Statement") filed with the Securities
and Exchange Commission under the Securities Act of 1933, as amended, relating
to the registration of 6,466,500 shares of common stock, par value $0.01 per
share (the "Common Stock"), of the Company that may be issued pursuant to the
terms of the Company's 1999 Long Term Incentive Plan (the "Plan").
In connection therewith, we have examined (i) the Amended and Restated
Certificate of Incorporation and the Amended and Restated Bylaws of the Company;
(ii) minutes and records of the corporate proceedings of the Company with
respect to the adoption of the Plan; (iii) certificates of certain officers and
directors of the Company; (iv) the Plan; and (v) such other documents as we have
deemed necessary for the expression of the opinions contained herein.
In making the foregoing examination, we have assumed the genuineness of all
signatures and the authenticity of all documents submitted to us as originals,
and the conformity to original documents of all documents submitted to us as
certified or photostatic copies. Furthermore, we have assumed that prices paid
for shares of Common Stock will equal or exceed the par value per share of the
Common Stock. As to questions of fact material to this opinion, where such facts
have not been independently established, and as to the content and form of the
Amended and Restated Certificate of Incorporation, Amended and Restated Bylaws,
minutes, records, resolutions and other documents or writings of the Company, we
have relied, to the extent we deem reasonably appropriate, upon representations
or certificates of officers or directors of the Company and upon documents,
records and instruments furnished to us by the Company, without independent
check or verification of their accuracy.
Based upon the foregoing, and having due regard for such legal considerations as
we deem relevant, we are of the opinion that the 6,466,500 shares of Common
Stock covered by the Registration Statement which may be issued from time to
time pursuant to the Plan have been duly authorized for issuance by the Company,
and will, when issued, sold and paid for in accordance with the Plan, be validly
issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion with the Securities and Exchange
Commission as an exhibit to the Registration Statement.
Very truly yours,
/s/ Haynes and Boone, L.L.P.
Haynes and Boone, L.L.P.
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EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
The Board of Directors
Alamosa PCS Holdings, Inc.
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated December 5, 1999, except as to Note 11
which is as of December 31, 1999, relating to the financial statements of
Alamosa PCS LLC (predecessor to Alamosa PCS Holdings, Inc.), which appears in
the Registration Statement on Form S-1 (No. 333-89995) of Alamosa PCS Holdings,
Inc. filed with the Securities and Exchange Commission.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Dallas, Texas
February 23, 2000
