<PAGE> 1
As filed with the Securities and Exchange Commission on August 8, 1996.
Registration No. 333-_______
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
INTERCEL, INC.
------------------------------------------------------
(Exact name of registrant as specified in its charter)
DELAWARE 58-1944750
(State or other jurisdiction (I.R.S. employer identification no.)
of incorporation or organization)
1233 O.G. SKINNER DRIVE
WEST POINT, GEORGIA 31833
(706) 645-2000
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
INTERCEL, INC.
1991 STOCK OPTION PLAN
(AS AMENDED)
--------------------------
(Full title of the Plan)
ALLEN E. SMITH
PRESIDENT AND CHIEF EXECUTIVE OFFICER
INTERCEL, INC.
1233 O.G. SKINNER DRIVE
WEST POINT, GEORGIA 31833
(706) 645-2000
- --------------------------------------------------------------------------------
(Name, address and telephone number, including area code, of agent for service)
Copy to:
JOSEPH G. CONNOLLY, JR.
HOGAN & HARTSON L.L.P.
555 THIRTEENTH STREET, N.W.
WASHINGTON, D.C. 20004
(202) 637-5625
--------------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=============================================================================================================================
Proposed Proposed
Title of securities Amount to be registered maximum offering price maximum aggregate Amount of
to be registered per share (1) offering price (1) registration fee (1)
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
COMMON STOCK,
PAR VALUE $.01 1,200,000 $17.87 $21,437,687 $7,392
PER SHARE
=============================================================================================================================
</TABLE>
(1) Estimated pursuant to Rule 457(c) and (h) solely for purposes of
calculating the amount of the registration fee. The proposed maximum offering
price per share was determined by calculating the weighted average exercise
price of (i) 436,388 shares of Common Stock being offered under outstanding
options at a weighted average exercise price of $18.230, and (ii) 763,612
shares of Common Stock being offered at an exercise price of $17.656 based on
the average of the high and low prices per share of the Common Stock on August
5, 1996, as reported on the Nasdaq Stock Market.
<PAGE> 2
EXPLANATORY NOTE
The contents of the Form S-8 Registration Statement originally filed
by InterCel, Inc. (the "Company") on September 28, 1992 under the Securities
Act of 1933 (Registration No. 33-52550), and Post-Effective Amendment No. 1 to
such Registration Statement filed by the Company on July 22, 1994 are herein
incorporated by reference.
On July 24, 1995, the Company's Board of Directors approved and
adopted an amendment to Section 3 of the Company's 1991 Stock Option Plan (the
"Plan") to increase the number of shares of Common Stock available for issuance
thereunder by 1,200,000 shares. The Company's stockholders approved the
amendment to the Plan at the annual meeting of stockholders held on December
20, 1995. Accordingly, as amended, the total number of shares of Common Stock
available under the Plan is 2,000,000.
Except for the foregoing amendment, the Plan remains unchanged.
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Delaware General Corporation Law permits a corporation to
exonerate its directors from personal liability to the corporation or its
stockholders for monetary damages for breach of fiduciary duty, other than (1)
for any breach of the duty of loyalty to the corporation or its stockholders,
(2) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (3) for willful or negligent
violations of provisions regarding the unlawful payment of dividends or
unlawful stock repurchases or redemptions, or (4) for any transaction from
which the person derived an improper personal benefit. This provision pertains
only to breaches of duty by directors in their capacity as directors (and not
in any other corporate capacity, such as officers) and limits liability only
for breaches of fiduciary duties under Delaware corporate law (and not for
violation of other laws, such as the federal securities laws). The Company's
Third Restated Certificate of Incorporation exonerates the Company's directors
from monetary liability to the extent permitted by this statutory provision.
The Company's Third Restated Certificate of Incorporation also
provides that, except as expressly prohibited by law, the Company shall
indemnify any person who was or is a party, or 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 such
person is or was a director or officer of the Company (or is or was serving at
the request of the Company as a director or officer of another enterprise),
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in connection
with such action, suit or proceeding if such person acted in good faith and in
a manner such person reasonably believed to be in or not opposed to the best
interests of the Company and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct was unlawful.
Such indemnification shall not be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the Company,
unless (and only to the extent that) the Delaware Court of Chancery or the
court in which such action or suit was brought determines that, in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses that the Court of Chancery or such other court
shall deem proper. In addition, the Third Restated Certificate of
Incorporation provides for mandatory advancement of expenses incurred by an
officer or director upon request, to the extent permitted by law. The Delaware
General Corporation Law permits a corporation to advance expenses incurred by
an officer or director in defending any action, suit or proceeding upon receipt
of an undertaking by or on behalf of the director or officer to repay in the
event that the director or officer is ultimately determined not to be entitled
to indemnification.
The Company maintains a liability insurance policy on behalf of all of
its directors and officers. Under this policy, directors and officers are
insured (and the Company is insured to the extent that it has properly
indemnified its directors and officers) against liability for claims incurred
by reason of their breach of duty, neglect, error, misstatement, misleading
statement, omission or act, in their capacities as directors and officers and
solely by reason of their status as directors and officers. However, directors
and officers are not insured against certain types of claims, including claims
that arise out of a gain of personal profit, a criminal or fraudulent act, the
filing of a registration statement, an offering by means of a prospectus, or an
underwriting agreement for the offer or sale of a security.
The Company has entered into indemnity agreements with certain of its
directors and executive officers. Indemnification of a director or officer
under an indemnity agreement would add
2
<PAGE> 4
several protections to those provided by Delaware law, the Company's Third
Restated Certificate of Incorporation, and the Company's liability insurance
including the following: (i) the Company generally would be obligated to
advance litigation expenses to the indemnitee, subject to a later determination
that the indemnitee would not be permitted to receive such indemnification
under applicable law; (ii) to the extent permitted by law, the indemnitee
generally would be entitled to indemnification unless the Company affirmatively
determined that the indemnitee had not met the applicable standard of conduct;
(iii) upon a change in control (as defined in the indemnity agreements) the
Company could only seek legal advice with respect to indemnification of the
indemnitee from a special independent counsel selected by the indemnitee, and
only the special independent counsel would have the right to make a final
determination that the indemnitee has not met the requisite standard of
conduct; and (iv) the period of time in which the Company could sue the
indemnitee for an action would be limited to two years from the date that the
cause of action accrued. The Company anticipates that the protections afforded
by the indemnity agreements will contribute to the Company's ability to attract
and retain highly qualified directors and executive officers.
The Delaware General Corporation Law and Article 6 of the Third
Restated Certificate of Incorporation specifically provide for the
indemnification of directors and officers, and the Delaware General Corporation
Law permits the adoption of indemnity agreements generally. The enforceability
of certain provisions of the indemnity agreements has not been tested in court,
however, and remains subject to considerations of state law and public policy.
The indemnity agreements were not implemented in response to any pending or
threatened litigation involving directors or officers.
Subject to the possibility of unenforceability referred to above, the
indemnity agreements constitute binding agreements of the Company, and the
Company would be unable to modify its indemnification policy unilaterally in a
way that is adverse to any party to an indemnity agreement. The Securities and
Exchange Commission ("SEC") takes the position that indemnification of
directors and executive officers against violations of the Securities Act of
1933 is against public policy and unenforceable. Accordingly, whenever an
issuer registers securities with the SEC it must execute an undertaking (a) to
submit to a court any such indemnification claim arising with respect to the
registered securities for a determination whether the clause is enforceable and
(b) to be bound by the court's decision. Accordingly, any claim made by a
director or executive officer of the Company for indemnification under an
indemnity agreement with respect to a claim subject to the Company's
undertaking to the SEC would have to be submitted to a court before final
payment thereunder would be made to the director or executive officer.
ITEM 8 EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------- -----------
<S> <C>
4.1 InterCel, Inc. 1991 Stock Option Plan, as amended
5.1 Opinion of Hogan & Hartson L.L.P.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Hogan & Hartson L.L.P. (See Exhibit 5.1)
</TABLE>
3
<PAGE> 5
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 West Point, State of Georgia, on August 8,
1996.
InterCel, Inc.
By: /s/ Allen E. Smith
-------------------------------------------
Allen E. Smith
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Allen E. Smith President, Chief Executive Officer and August 8, 1996
- ------------------------------- Director
Allen E. Smith (Principal executive officer)
/s/ Fred G. Astor, Jr. Executive Vice President and Chief August 8, 1996
- ------------------------------- Financial Officer
Fred G. Astor, Jr. (Principal financial officer and
principal accounting officer)
/s/ Campbell B. Lanier, III Chairman of the Board August 8, 1996
- -------------------------------
Campbell B. Lanier, III
Vice Chairman of the Board August , 1996
- -------------------------------
Bert G. Clifford
/s/ Donald W. Burton Director August 8, 1996
- -------------------------------
Donald W. Burton
Director August , 1996
- -------------------------------
O. Gene Gabbard
Director August , 1996
- -------------------------------
Lawrence M. Gressette, Jr.
</TABLE>
4
<PAGE> 6
<TABLE>
<S> <C> <C>
/s/ Maurice P. O'Connor Director August 8, 1996
- -------------------------------
Maurice P. O'Connor
/s/ William H. Scott, III Director August 8, 1996
- -------------------------------
William H. Scott, III
Director August , 1996
- -------------------------------
William B. Timmerman
/s/ Donald W. Weber Director August 8, 1996
- -------------------------------
Donald W. Weber
</TABLE>
5
<PAGE> 7
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description Page
- ------- ----------- ----
<S> <C> <C>
4.1 InterCel, Inc. 1991 Stock Option Plan, as amended
5.1 Opinion of Hogan & Hartson L.L.P.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Hogan & Hartson L.L.P. (See Exhibit 5.1)
</TABLE>
6
<PAGE> 1
Exhibit 4.1
InterCel, Inc. 1991 Stock Option Plan, as amended
<PAGE> 2
INTERCEL, INC.
1991 STOCK OPTION PLAN
(AS AMENDED)
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<S> <C> <C>
1. PURPOSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. ADMINISTRATION . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.1. Board . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.2. Committee . . . . . . . . . . . . . . . . . . . . . . . . 1
2.3. No Liability . . . . . . . . . . . . . . . . . . . . . . . 2
3. STOCK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
4. ELIGIBILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
5. EFFECTIVE DATE AND TERM OF THE PLAN . . . . . . . . . . . . . . . 3
5.1. Effective Date . . . . . . . . . . . . . . . . . . . . . . 3
5.2. Term . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
6. GRANT OF OPTIONS . . . . . . . . . . . . . . . . . . . . . . . . . 3
7. LIMITATION ON INCENTIVE STOCK OPTIONS . . . . . . . . . . . . . . 3
8. OPTION AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . 3
9. OPTION PRICE . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
10. TERM AND EXERCISE OF OPTIONS . . . . . . . . . . . . . . . . . . . 4
10.1. Term . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
10.2. Option Period and Limitations on Exercise . . . . . . . . 5
10.3. Method of Exercise . . . . . . . . . . . . . . . . . . . . 5
11. TRANSFERABILITY OF OPTIONS . . . . . . . . . . . . . . . . . . . . 6
12. TERMINATION OF EMPLOYMENT . . . . . . . . . . . . . . . . . . . . 6
13. RIGHTS IN THE EVENT OF DEATH OR DISABILITY . . . . . . . . . . . . 7
13.1. Death . . . . . . . . . . . . . . . . . . . . . . . . . . 7
13.2. Disability . . . . . . . . . . . . . . . . . . . . . . . . 7
14. USE OF PROCEEDS . . . . . . . . . . . . . . . . . . . . . . . . . 8
15. SECURITIES ACT OF 1933 . . . . . . . . . . . . . . . . . . . . . . 8
16. SECURITIES EXCHANGE ACT OF 1934: RULE 16B-3 . . . . . . . . . . . 9
16.1. General . . . . . . . . . . . . . . . . . . . . . . . . . 9
16.2. Stock Option Committee . . . . . . . . . . . . . . . . . . 9
16.3. Action by the Board . . . . . . . . . . . . . . . . . . . 9
16.4. Additional Restriction on Transfer of Stock . . . . . . . 9
16.5. Additional Requirement of Stockholders' Approval . . . . . l9
17. AMENDMENT AND TERMINATION OF THE PLAN . . . . . . . . . . . . . . 10
18. EFFECT OF CHANGES IN CAPITALIZATION . . . . . . . . . . . . . . . 10
18.1. Changes in Stock . . . . . . . . . . . . . . . . . . . . . 10
18.2. Reorganization With Corporation Surviving . . . . . . . . 11
18.3. Other Reorganizations; Sale of Assets/Stock . . . . . . . 11
18.4. Adjustments . . . . . . . . . . . . . . . . . . . . . . . 12
18.5. No Limitations on Corporation . . . . . . . . . . . . . . 12
19. DISCLAIMER OF RIGHTS . . . . . . . . . . . . . . . . . . . . . . . 12
20. NONEXCLUSIVITY OF THE PLAN . . . . . . . . . . . . . . . . . . . . 12
</TABLE>
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<PAGE> 4
INTERCEL, INC.
1991 STOCK OPTION PLAN
InterCel, Inc., a Delaware corporation (the "Corporation"),
sets forth herein the terms of this Stock Option Plan (the "Plan") as follows:
1. PURPOSE
The Plan is intended to advance the interests of the
Corporation by providing eligible individuals (as designated pursuant to
Section 4. below) an opportunity to acquire (or increase) a proprietary
interest in the Corporation, which thereby will create a stronger incentive to
expend maximum effort for the growth and success of the Corporation and its
subsidiaries and will encourage such eligible individuals to remain in the
employ or service of the Corporation or that of one or more of its
subsidiaries. Each stock option granted under the Plan (an "Option") is
intended to be an "incentive stock option" ("Incentive Stock Option") within
the meaning of Section 422 of the Internal Revenue Code of 1986, or the
corresponding provision of any subsequently enacted tax statute, as amended
from time to time (the "Code"), except to the extent that any such Option would
exceed the limitations set forth in Section 7. below and except for Options
specifically designated at the time of grant as not being "incentive stock
options."
2. ADMINISTRATION
2.1. BOARD
The Plan shall be administered by the Board of Directors of
the Corporation (the "Board"), which shall have the full power and authority to
take all actions and to make all determinations required or provided for under
the Plan or any Option granted or Option Agreement (as defined in Section 8.
below) entered into hereunder and all such other actions and determinations not
inconsistent with the specific terms and provisions of the Plan deemed by the
Board to be necessary or appropriate to the administration of the Plan or any
Option granted or Option Agreement entered into hereunder. The interpretation
and construction by the Board of any provision of the Plan or of any Option
granted or Option Agreement entered into hereunder shall be final and
conclusive.
2.2. COMMITTEE
The Board may from time to time appoint a Stock Option
Committee (the "Committee"). The Board, in its sole discretion, may provide
that the role of the Committee shall be limited to making recommendations to
the Board concerning any determinations to be made and actions to be taken by
the Board pursuant to or with respect to the Plan, or the Board may delegate to
the Committee such powers and authorities related to the administration of the
Plan,
<PAGE> 5
as set forth in Section 2.1. above, as the Board shall determine, consistent
with the Certificate of Incorporation and By-laws of the Corporation and
applicable law. In the event that the Plan or any Option granted or Option
Agreement entered into hereunder provides for any action to be taken by or
determination to be made by the Board, such action may be taken by or such
determination may be made by the Committee if the power and authority to do so
has been delegated to the Committee by the Board as provided for in this
Section. Unless otherwise expressly determined by the Board, any such action
or determination by the Committee shall be final and conclusive.
2.3. NO LIABILITY
No member of the Board or of the Committee shall be liable for
any action or determination made, or any failure to take or make an action or
determination, in good faith with respect to the Plan or any Option granted or
Option Agreement entered into hereunder.
3. STOCK
The stock that may be issued pursuant to Options granted under
the Plan shall be shares of Common Stock and/or shares of Preferred Stock of
the Corporation (such shares of Common Stock and Preferred Stock being
collectively referred to herein as the "Stock"), which shares may be treasury
shares or authorized but unissued shares. The number of shares of Stock that
may be issued pursuant to Options granted under the Plan shall not exceed in
the aggregate 2,000,000 shares of Stock, which number of shares is subject to
adjustment as provided in Section 18.4. below. If any Option expires,
terminates or is terminated for any reason prior to exercise in full, the
shares of Stock that were subject to the unexercised portion of such Option
shall be available for future Options granted under the Plan.
4. ELIGIBILITY
Options may be granted under the Plan to any employee of the
Corporation or any "subsidiary corporation" thereof within the meaning of
Section 424(f) of the Code (a "Subsidiary") (including any such employee who is
an officer or director of the Corporation or any Subsidiary) as the Board shall
determine and designate from time to time prior to expiration or termination of
the Plan. An individual may hold more than one Option, subject to such
restrictions as are provided herein. The maximum number of shares of Stock
subject to Options that may be granted under the Plan to any employee of the
Corporation or any Subsidiary is 200,000 shares in any calendar year (subject
to adjustment pursuant to Section 18. hereof).
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<PAGE> 6
5. EFFECTIVE DATE AND TERM OF THE PLAN
5.1. EFFECTIVE DATE
The Plan shall become effective as of the date of adoption by
the Board, subject to stockholders' approval of the Plan within one year of
such effective date by a majority of the votes cast at a duly held meeting of
the stockholders of the Corporation at which a quorum representing a majority
of all outstanding stock is present, either in person or by proxy, and voting
on the matter, or by written consent in accordance with applicable state law
and the articles of incorporation and by-laws of the Corporation; provided,
however, that upon approval of the Plan by the stockholders of the Corporation
as set forth above, all options granted under the Plan on or after the
effective date shall be fully effective as if the stockholders of the
Corporation had approved the Plan on the effective date. If the stockholders
fail to approve the Plan within one year of such effective date, any options
granted hereunder shall be null, void and of no effect.
5.2. TERM
The Plan shall terminate on the date ten years after the
effective date.
6. GRANT OF OPTIONS
Subject to the terms and conditions of the Plan, the Board
may, at any time and from time to time prior to the date of termination of the
Plan, grant to such eligible individuals as the Board may determine
("Optionees") Options to purchase such number of shares of the Stock on such
terms and conditions as the Board may determine, including any terms or
conditions which may be necessary to qualify such Options as "incentive stock
options" under Section 422 of the Code. The date on which the Board approves
the grant of an Option shall be considered the date on which such Option is
granted.
7. LIMITATION ON INCENTIVE STOCK OPTIONS
An Option shall constitute an Incentive Stock Option only to
the extent that the aggregate fair market value (determined at the time the
Option is granted) of the Stock with respect to which Incentive Stock Options
are exercisable for the first time by any Optionee during any calendar year
(under the Plan and all other plans of the Optionee's employer corporation and
its parent and subsidiary corporations within the meaning of Section 422(d) of
the Code) does not exceed $100,000.
8. OPTION AGREEMENTS
All Options granted pursuant to the Plan shall be evidenced by
written agreements ("Option Agreements") to be executed by the Corporation and
by the
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<PAGE> 7
Optionee, in such form or forms as the Board shall from time to time determine.
Option Agreements covering Options granted from time to time or at the same
time need not contain similar provisions; provided, however, that all such
Option Agreements shall comply with all terms of the Plan.
9. OPTION PRICE
The purchase price of each share of the Stock subject to an
Option (the "Option Price") shall be fixed by the Board and stated in each
Option Agreement. In the case of an Option that is intended to constitute an
Incentive Stock Option, the option price shall be not less than the greater of
par value or 100 percent of the fair market value of a share of the Stock
covered by the Option on the date the Option is granted (as determined in good
faith by the Board); provided, however, that in the event the Optionee would
otherwise be ineligible to receive an Incentive Stock Option by reason of the
provisions of Sections 422(b)(6) and 424(d) of the Code (relating to stock
ownership of more than ten percent), the Option Price of an Option which is
intended to be an Incentive Stock Option shall be not less than the greater of
par value or 110 percent of the fair market value of a share of the Stock
covered by the Option at the time such Option is granted. In the event that
the Stock is listed on an established national or regional stock exchange, is
admitted to quotation on the National Association of Securities Dealers
Automated Quotation System, or is publicly traded in an established securities
market, in determining the fair market value of the Stock, the Board shall use
the closing price of the Stock on such exchange or System or in such market
(the highest such closing price if there is more than one such exchange or
market) on the date the Option is granted (or, if there is no such closing
price, then the Board shall use the mean between the highest bid and lowest
asked prices or between the high and low prices on such date), or, if no sale
of the Stock has been made on such day, on the next preceding day on which any
such sale shall have been made. In the case of an Option not intended to
constitute an Incentive Stock Option, the Option Price shall be not less than
the par value of the Stock covered by the Option.
10. TERM AND EXERCISE OF OPTIONS
10.1. TERM
Each Option granted under the Plan shall terminate and all
rights to purchase shares thereunder shall cease upon the expiration of ten
years (ten years and 30 days, in the case of an Option which is not designated
as an Incentive Stock Option) from the date such Option is granted, or on such
date prior thereto as may be fixed by the Board and stated in the Option
Agreement relating to such Option; provided, however, that in the event the
Optionee would otherwise be ineligible to receive an Incentive Stock Option by
reason of the provisions of Sections 422(b)(6) and 424(d) of the Code (relating
to stock ownership of more than ten percent), an Option granted to such
Optionee which is intended to be an Incentive Stock Option
-4-
<PAGE> 8
shall in no event be exercisable after the expiration of five years from the
date it is granted.
10.2. OPTION PERIOD AND LIMITATIONS ON EXERCISE
Each Option granted under the Plan shall be exercisable, in
whole or in part, at any time and from time to time over a period commencing on
or after the date of grant and ending upon the expiration or termination of the
Option, as the Board shall determine and set forth in the Option Agreement
relating to such Option. Without limiting the foregoing, the Board, subject to
the terms and conditions of the Plan, may in its sole discretion provide that
an Option may not be exercised in whole or in part for a stated period or
periods of time during which such Option is outstanding; provided, however,
that any such limitation on the exercise of an Option contained in any Option
Agreement may be rescinded, modified or waived by the Board, in its sole
discretion, at any time and from time to time after the date of grant of such
Option, so as to accelerate the time at which the Option may be exercised.
Notwithstanding any other provisions of the Plan, no Option shall be
exercisable in whole or in part prior to the date the Plan is approved by the
stockholders of the Corporation as provided above.
10.3. METHOD OF EXERCISE
An Option that is exercisable hereunder may be exercised by
delivery to the Corporation on any business day, at its principal office
addressed to the attention of the President, of written notice of exercise,
which notice shall specify the number of shares with respect to which the
Option is being exercised and shall be accompanied by payment in full of the
Option Price of the shares for which the Option is being exercised. The
minimum number of shares of Stock with respect to which an Option may be
exercised, in whole or in part, at any time shall be the lesser of 100 shares
or the maximum number of shares available for purchase under the Option at the
time of exercise. Payment of the Option Price for the shares of Stock
purchased pursuant to the exercise of an Option shall be made, as determined by
the Board and set forth in the Option Agreement pertaining to an Option, either
(i) in cash or by check payable to the order of the Corporation (which check
may, in the discretion of the Corporation, be required to be certified); (ii)
through the tender to the Corporation of shares of Stock, which shares shall be
valued, for purposes of determining the extent to which the Option Price has
been paid thereby, at their fair market value (determined in the manner
described in Section 9. above) on the date of exercise; or (iii) by a
combination of the methods described in (i) and (ii); provided, however, that
the Board may in its discretion impose and set forth in the Option Agreement
pertaining to an Option such limitations or prohibitions on the use of shares
of Stock to exercise Options as it deems appropriate. An attempt to exercise
any Option granted hereunder other than as set forth above shall be invalid and
of no force and effect. Promptly after the exercise of an Option and the
payment in full of the Option Price of the shares of Stock covered thereby, the
individual exercising the Option shall be entitled to
-5-
<PAGE> 9
the issuance of a Stock certificate or certificates evidencing his ownership of
such shares. A separate Stock certificate or certificates shall be issued for
any shares purchased pursuant to the exercise of an Option which is an
Incentive Stock Option, which certificate or certificates shall not include
any shares which were purchased pursuant to the exercise of an Option which is
not an Incentive Stock Option. An individual holding or exercising an Option
shall have none of the rights of a stockholder until the shares of Stock
covered thereby are fully paid and issued to him, and, except as provided in
Section 18. below, no adjustment shall be made for dividends or other rights
for which the record date is prior to the date of such issuance.
11. TRANSFERABILITY OF OPTIONS
During the lifetime of an Optionee, only such Optionee (or, in
the event of legal incapacity or incompetency, the Optionee's guardian or legal
representative) may exercise the Option. No Option shall be assignable or
transferable by the Optionee to whom it is granted, other than by will or the
laws of descent and distribution.
12. TERMINATION OF EMPLOYMENT
Upon the termination of the employment of an Optionee with the
Corporation or a Subsidiary, other than by reason of the death or "permanent
and total disability" (within the meaning of Section 22(e)(3) of the Code) of
such Optionee, any Option granted to an Optionee pursuant to the Plan shall
terminate, and such Optionee shall have no further right to purchase shares of
Stock pursuant to such Option; provided, however, that in the event that such
termination of employment is by reason of the Optionee's retirement with the
consent of the Corporation or a Subsidiary in accordance with the normal
retirement policies of the Corporation or a Subsidiary, as the case may be,
then such Optionee shall have the right (subject to the general limitations on
exercise set forth in Section 10.2. above), at any time within three months
after such retirement and prior to termination of the Option pursuant to
Section 10.1. above, to exercise, in whole or in part, any Option held by such
Optionee at the date of such retirement, whether or not such Option was
exercisable immediately prior to such retirement; provided further, that the
Board may provide, by inclusion of appropriate language in any Option
Agreement, that an Optionee may (subject to the general limitations on exercise
set forth in Section 10.2. above), in the event of termination of employment of
the Optionee with the Corporation or a Subsidiary, exercise an Option, in whole
or in part, at any time subsequent to such termination of employment and prior
to termination of the Option pursuant to Section 10.1. above either subject to
or without regard to any installment limitation on exercise imposed pursuant to
Section 10.2. above, as the Board, in its sole and absolute discretion, shall
determine and set forth in the Option Agreement. Whether a termination of
employment is to be considered by reason of retirement with the consent of the
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<PAGE> 10
Corporation or a Subsidiary in accordance with the normal retirement policies
of the Corporation or a Subsidiary, as the case may be, and whether a leave of
absence or leave on military or government service shall constitute a
termination of employment for purposes of the Plan, shall be determined by the
Board, which determination shall be final and conclusive. For purposes of the
Plan, a termination of employment with the Corporation or a Subsidiary shall
not be deemed to occur if the Optionee is immediately thereafter employed with
the Corporation or any other Subsidiary.
13. RIGHTS IN THE EVENT OF DEATH OR DISABILITY
13.1. DEATH
If an Optionee dies while employed by the Corporation or a
Subsidiary, the executors or administrators or legatees or distributees of such
Optionee's estate shall have the right (subject to the general limitations on
exercise set forth in Section 10.2. above), at any time within one year after
the date of such Optionee's death and prior to termination of the Option
pursuant to Section 10.1. above, to exercise any Option held by such Optionee
at the date of such Optionee's death, whether or not such Option was
exercisable immediately prior to such Optionee's death; provided, however, that
the Board may provide by inclusion of appropriate language in any Option
Agreement that, in the event of the death of an Optionee, the executors or
administrators or legatees or distributees of such Optionee's estate may
exercise an Option (subject to the general limitations on exercise set forth in
Section 10.2. above), in whole or in part, at any time subsequent to such
Optionee's death and prior to termination of the Option pursuant to Section
10.1. above, either subject to or without regard to any installment limitation
on exercise imposed pursuant to Section 10.2. above, as the Board, in its sole
and absolute discretion, shall determine and set forth in the Option Agreement.
13.2. DISABILITY
If an Optionee terminates employment with the Corporation or a
Subsidiary by reason of the "permanent and total disability" (within the
meaning of Section 22(e)(3) of the Code) of such Optionee, then such Optionee
shall have the right (subject to the general limitations on exercise set forth
in Section 10.2. above), at any time within one year after such termination of
employment and prior to termination of the Option pursuant to Section 10.1.
above, to exercise, in whole or in part, any Option held by such Optionee at
the date of such termination of employment, whether or not such Option was
exercisable immediately prior to such termination of employment; provided,
however, that the Board may provide, by inclusion of appropriate language in
any Option Agreement, that an Optionee may (subject to the general limitations
on exercise set forth in Section 10.2. above), in the event of the termination
of employment of the Optionee with the Corporation or a Subsidiary by reason of
the "permanent and total disability" (within the meaning
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<PAGE> 11
of Section 22(e)(3) of the Code) of such Optionee, exercise an Option, in whole
or in part, at any time subsequent to such termination of employment and prior
to termination of the Option pursuant to Section 10.1. above, either subject to
or without regard to any installment limitation on exercise imposed pursuant to
Section 10.2. above, as the Board, in its sole and absolute discretion, shall
determine and set forth in the Option Agreement. Whether a termination of
employment is to be considered by reason of "permanent and total disability"
for purposes of this Plan shall be determined by the Board, which determination
shall be final and conclusive.
14. USE OF PROCEEDS
The proceeds received by the Corporation from the sale of
Stock pursuant to Options granted under the Plan shall constitute general funds
of the Corporation.
15. SECURITIES ACT OF 1933
The Corporation shall not be required to sell or issue any
shares of Stock under any Option if the sale or issuance of such shares would
constitute a violation by the individual exercising the Option or the
Corporation of any provisions of any law or regulation of any governmental
authority, including without limitation any federal or state securities laws or
regulations. Specifically in connection with the Securities Act of 1933, as
amended (the "Securities Act"), upon exercise of any Option, unless a
registration statement under such Act is in effect with respect to the shares
of Stock covered by such Option, the Corporation shall not be required to sell
or issue such shares unless the Corporation has received evidence satisfactory
to it that the holder of such Option may acquire such shares pursuant to an
exemption from registration under such Act. Any determination in this
connection by the Corporation shall be final, binding, and conclusive. The
Corporation may, but shall in no event be obligated to, register any securities
covered hereby pursuant to the Securities Act. The Corporation shall not be
obligated to take any affirmative action in order to cause the exercise of an
Option or the issuance of shares pursuant thereto to comply with any law or
regulation of any governmental authority. As to any jurisdiction that
expressly imposes the requirement that an Option shall not be exercisable
unless and until the shares of Stock covered by such Option are registered or
are subject to an available exemption from registration, the exercise of such
Option (under circumstances in which the laws of such jurisdiction apply) shall
be deemed conditioned upon the effectiveness of such registration or the
availability of such an exemption.
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<PAGE> 12
16. SECURITIES EXCHANGE ACT OF 1934: RULE 16B-3
16.1. GENERAL
The Plan is intended to comply with Rule 16b-3 ("Rule 16b-3")
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
from and after the date on which the Corporation first registers a class of
equity security under Section 12 of the Exchange Act (the "Registration Date").
From and after the Registration Date, any provision inconsistent with Rule
16b-3 (as in effect on the Registration Date) shall, to the extent permitted by
law and determined to be advisable by the Committee (constituted in accordance
with Section 2.2.) or the Board (acting pursuant to Section 2.1.), be
inoperative and void. Moreover, in the event the Plan does not include a
provision required by Rule 16b-3 to be stated therein, such provision (other
than one relating to eligibility requirements and the amount and timing of
awards) shall be deemed automatically to be incorporated into the Plan insofar
as participants subject to Section 16 are concerned. In addition, from and
after the Registration Date the provisions set forth in Sections 16.2. through
16.5. shall apply.
16.2. STOCK OPTION COMMITTEE
From and after the Registration Date, the Committee appointed
pursuant to Section 2.2. shall consist of not fewer than two members of the
Board, none of whom, during the twelve months prior to service on such
Committee, shall have been granted an Option under this Plan and each of whom
shall qualify (at the time of appointment to the Committee and during all
periods of service on the Committee) in all respects as a "disinterested
person" as defined in Rule l6b-3.
16.3. ACTION BY THE BOARD
From and after the Registration Date, the Board may act under
the Plan other than by, or in accordance with the recommendations of, the
Committee, constituted as set forth in Section 2.2. above, only if all members
of the Board are "disinterested persons" as defined in Rule 16b-3.
16.4. ADDITIONAL RESTRICTION ON TRANSFER OF STOCK
From and after the Registration Date, no director, officer or
other "insider" of the Corporation subject to Section 16 of the Exchange Act
shall be permitted to sell Stock (which such "insider" had received upon
exercise of an Option) during the six months immediately following the grant of
such Option.
16.5. ADDITIONAL REQUIREMENT OF STOCKHOLDERS' APPROVAL
From and after the Registration Date, no amendment by the
Board shall, without approval by a majority of the votes cast at a duly held
meeting of the stockholders of the Corporation at which a quorum representing a
majority of all
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<PAGE> 13
outstanding stock is present, either in person or by proxy, and voting on the
amendment, or by written consent in accordance with applicable state law and
the articles of incorporation and by-laws of the Corporation, materially
increase the benefits accruing to eligible individuals under the Plan or take
any other action that would require the approval of such stockholders pursuant
to Rule 16b-3.
17. AMENDMENT AND TERMINATION OF THE PLAN
The Board may, at any time and from time to time, amend,
suspend or terminate the Plan as to any shares of Stock as to which Options
have not been granted; provided, however, that no amendment by the Board shall,
without approval by a majority of the votes cast at a duly held meeting of the
stockholders of the Corporation at which a quorum representing a majority of
all outstanding stock is present, either in person or by proxy, and voting on
the amendment, or by written consent in accordance with applicable state law
and the articles of incorporation and by-laws of the Corporation, materially
change the requirements as to eligibility to receive Options or increase the
maximum number of shares of Stock in the aggregate that may be sold pursuant to
Options granted under the Plan (except as permitted under Section 18. hereof).
Except as permitted under Section 18. hereof, no amendment, suspension or
termination of the Plan shall, without the consent of the holder of the Option,
alter or impair rights or obligations under any Option theretofore granted
under the Plan.
18. EFFECT OF CHANGES IN CAPITALIZATION
18.1. CHANGES IN STOCK
If the outstanding shares of Stock are increased or decreased
or changed into or exchanged for a different number or kind of shares or other
securities of the Corporation by reason of the conversion of the outstanding
shares of Preferred Stock to shares of Common Stock of the Corporation pursuant
to the terms of the Certificate of Incorporation of the Corporation, or by
reason of any recapitalization, reclassification, stock split-up, combination
of shares, exchange of shares, stock dividend or other distribution payable in
capital stock, or other increase or decrease in such shares effected without
receipt of consideration by the Corporation, occurring after the effective date
of the Plan, the number and kinds of shares for the purchase of which Options
may be granted under the Plan shall be adjusted proportionately and accordingly
by the Corporation. In addition, the number and kind of shares for which
Options are outstanding shall be adjusted proportionately and accordingly, so
that the proportionate interest of the holder of the Option immediately
following such event shall, to the extent practicable, be the same as
immediately prior to such event. Any such adjustment in outstanding Options
shall not change the aggregate Option Price payable with respect to shares
subject to the unexercised portion of the Option outstanding but shall include
a corresponding proportionate adjustment in the Option Price per share.
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<PAGE> 14
18.2. REORGANIZATION WITH CORPORATION SURVIVING
Subject to Section 18.3. hereof, if the Corporation shall be
the surviving corporation in any reorganization, merger or consolidation of the
Corporation with one or more other corporations, any Option theretofore granted
pursuant to the Plan shall pertain to and apply to the securities to which a
holder of the number of shares of Stock subject to such Option would have been
entitled immediately following such reorganization, merger or consolidation,
with a corresponding proportionate adjustment of the Option Price per share so
that the aggregate Option Price thereafter shall be the same as the aggregate
Option Price of the shares remaining subject to the Option immediately prior to
such reorganization, merger or consolidation.
18.3. OTHER REORGANIZATIONS; SALE OF ASSETS/STOCK
Upon the dissolution or liquidation of the Corporation, or
upon a merger, consolidation or reorganization of the Corporation with one or
more other corporations in which the Corporation is not the surviving
corporation, or upon a sale of substantially all of the assets of the
Corporation to another corporation, or upon any transaction (including, without
limitation, a merger or reorganization in which the Corporation is the
surviving corporation) approved by the Board which results in any person or
entity owning 80 percent or more of the combined voting power of all classes of
stock of the Corporation, the Plan and all Options outstanding hereunder shall
terminate, except to the extent provision is made in writing in connection with
such transaction for the continuation of the Plan and/or the assumption of the
Options theretofore granted, or for the substitution for such Options of new
options covering the stock of a successor corporation, or a parent or
subsidiary thereof, with appropriate adjustments as to the number and kinds of
shares and exercise prices, in which event the Plan and Options theretofore
granted shall continue in the manner and under the terms so provided. In the
event of any such termination of the Plan, each individual holding an Option
shall have the right (subject to the general limitations on exercise set forth
in Section 10.2. above), immediately prior to the occurrence of such
termination and during such period occurring prior to such termination as the
Board in its sole discretion shall designate, to exercise such Option in whole
or in part, whether or not such Option was otherwise exercisable at the time
such termination occurs and without regard to any installment limitation on
exercise imposed pursuant to Section 10.2. above, but subject to any additional
limitations that the Board may, in its sole discretion, include in any Option
Agreement. The Board shall send written notice of an event that will result in
such a termination to all individuals who hold Options not later than the time
at which the Corporation gives notice thereof to its stockholders.
18.4. ADJUSTMENTS
Adjustments under this Section 18. related to stock or
securities of the Corporation shall be made by the Board, whose determination
in that respect shall
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<PAGE> 15
be final, binding and conclusive. No fractional shares of Stock or units of
other securities shall be issued pursuant to any such adjustment, and any
fractions resulting from any such adjustment shall be eliminated in each case
by rounding downward to the nearest whole share or unit.
18.5. NO LIMITATIONS ON CORPORATION
The grant of an Option pursuant to the Plan shall not affect
or limit in any way the right or power of the Corporation to make adjustments,
reclassifications, reorganizations or changes of its capital or business
structure or to merge, consolidate, dissolve or liquidate, or to sell or
transfer all or any part of its business or assets.
19. DISCLAIMER OF RIGHTS
No provision in the Plan or in any Option granted or Option
Agreement entered into pursuant to the Plan shall be construed to confer upon
any individual the right to remain in the employ of the Corporation or any
Subsidiary, or to interfere in any way with the right and authority of the
Corporation or any Subsidiary either to increase or decrease the compensation
of any individual at any time, or to terminate any employment or other
relationship between any individual and the Corporation or any Subsidiary.
20. NONEXCLUSIVITY OF THE PLAN
Neither the adoption of the Plan nor the submission of the
Plan to the stockholders of the Corporation for approval shall be construed as
creating any limitations upon the right and authority of the Board to adopt
such other incentive compensation arrangements (which arrangements may be
applicable either generally to a class or classes of individuals or
specifically to a particular individual or individuals) as the Board in its
discretion determines desirable, including, without limitation, the granting of
stock options otherwise than under the Plan.
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<PAGE> 1
Exhibit 5.1
Opinion of Hogan & Hartson L.L.P.
<PAGE> 2
August 8, 1996
Board of Directors
InterCel, Inc.
1233 O.G. Skinner Drive
West Point, Georgia 31833
Gentlemen:
This firm has acted as counsel to InterCel, Inc. (the
"Company"), a Delaware corporation, in connection with its registration,
pursuant to a registration statement on Form S-8 filed on or about the date
hereof (the "Registration Statement"), of 1,200,000 shares (the "Shares") of
common stock, par value $.01 per share, of the Company, issuable upon the
exercise of options granted under the InterCel, Inc. 1991 Stock Option Plan, as
amended (the "Plan"). This letter is furnished to you pursuant to the
requirements of Item 601(b)(5) of Regulation S-K, 17 C.F.R. Section
229.601(b)(5), in connection with such registration.
For purposes of this opinion letter, we have examined copies
of the following documents:
1. An executed copy of the Registration Statement.
2. A copy of the Plan, as certified by the Secretary of
the Company on the date hereof as then being
complete, accurate and in effect.
3. The Third Restated Certificate of Incorporation of
the Company, as certified by the Secretary of State
of the State of Delaware on June 10, 1996 and by the
Secretary of the Company on the date hereof as then
being complete, accurate and in effect.
4. The Restated By-laws of the Company, as certified by
the Secretary of the Company on the date hereof as
then being complete, accurate and in effect.
<PAGE> 3
Board of Directors
August 8, 1996
Page 2
5. Resolutions and consents of the Board of Directors of
the Company adopted on April 8, 1991, April 17, 1992,
January 17, 1994, March 28, 1994, July 24, 1995 and
November 17, 1995 as certified by the Secretary of
the Company on the date hereof as then being
complete, accurate and in effect relating to, among
other things, approval of the Plan and amendments
thereto.
6. Resolutions and consents of the stockholders of the
Company adopted on May 27, 1992, June 23, 1994, and
December 20, 1995, each as certified by the Secretary
of the Company on the date hereof as then being
complete, accurate and in effect relating to, among
other things, approval of the Plan and amendments
thereto.
In our examination of the aforesaid certificates, records and
documents, we have assumed the genuineness of all signatures, the legal capacity
of all natural persons, the accuracy and completeness of all documents
submitted to us, the authenticity of all original documents and the conformity
to authentic original documents of all documents submitted to us as copies
(including telecopies). This opinion letter is given, and all statements herein
are made, in the context of the foregoing.
This opinion letter is based as to matters of law solely on
the General Corporation Law of the State of Delaware. We express no opinion
herein as to any other laws, statutes, regulations, or ordinances.
Based upon, subject to, and limited by the foregoing, we are
of the opinion that the Shares, when issued and delivered in the manner and on
the terms contemplated in the Registration Statement and the Plan (with the
Company having received the consideration therefor, the form of which is in
accordance with applicable law), will be validly issued, fully paid and
non-assessable by the Company.
<PAGE> 4
Board of Directors
August 8, 1996
Page 3
We assume no obligation to advise you of any changes in the
foregoing subsequent to the delivery of this opinion letter. This opinion
letter has been prepared solely for your use in connection with the filing of
the Registration Statement on or about the date of this letter, and should not
be quoted in whole or in part or otherwise be referred to, nor be filed with or
furnished to any governmental agency or other person or entity, without the
prior written consent of this firm.
We hereby consent to the filing of this opinion letter as
Exhibit 5.1 to the Registration Statement. In giving this consent, we do not
thereby admit that we are an "expert" within the meaning of the Securities Act
of 1933, as amended.
Very truly yours,
/s/ HOGAN & HARTSON L.L.P.
<PAGE> 1
Exhibit 23.1
Consent of Independent Auditors
<PAGE> 2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference of our reports dated February 9, 1996 included in Intercel, Inc.'s
Annual Report on Form 10-K for the year ending December 31, 1995 into this
Registration Statement.
/s/ ARTHUR ANDERSEN LLP
Atlanta, Georgia
August 4, 1996
