<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 23, 1999
REGISTRATION NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
----------------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------------------------
POWERTEL, INC.
(Exact Name of Registrant as Specified in Its Charter)
<TABLE>
<S> <C>
DELAWARE 58-1944750
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
</TABLE>
1233 O.G. SKINNER DRIVE, WEST POINT, GEORGIA 31833
(Address of Principal Executive Offices)
----------------------------------------
POWERTEL, INC.
AMENDED AND RESTATED 1991 STOCK OPTION PLAN
(Full Title of the Plan)
----------------------------------------
<TABLE>
<S> <C>
ALLEN E. SMITH Copies to:
CHIEF EXECUTIVE OFFICER JAMES WALKER IV, ESQ.
POWERTEL, INC. TERRESA R. TARPLEY, ESQ.
1233 O.G. SKINNER DRIVE NELSON MULLINS RILEY & SCARBOROUGH, L.L.P.
WEST POINT, GEORGIA 31833 1400 FIRST UNION PLAZA
(706) 645-2000 999 PEACHTREE STREET
(706) 645-9523 (FAX) ATLANTA, GEORGIA 30309
(Name, Address, Telephone Number, Including Area (404) 817-6000
Code, of Agent For Service) (404) 817-6050 (FAX)
</TABLE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED PER SHARE(1) PRICE(1) REGISTRATION FEE(1)
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.01 par value.......... 3,000,000 $19.85 $59,543,966 $16,553
====================================================================================================================
</TABLE>
(1) Estimated pursuant to Rule 457(c) and (h) solely for the purposes of
calculating the amount of the registration fee. The proposed maximum
offering price per share was determined by calculating: (i) 786,585
shares of Common Stock being offered under outstanding options at a
weighted average exercise price of $14.13; and (ii) 2,213,415 shares
of Common Stock being offered at an exercise price of $21.88 based
upon the average of the high and low prices of the Common Stock on
June 17, 1999, as reported on the Nasdaq Stock Market.
================================================================================
<PAGE> 2
EXPLANATORY NOTE
The following documents are incorporated herein by reference: (i) the
Form S-8 Registration Statement originally filed by Registrant on September 28,
1992 under the Securities Act of 1933 (Registration No. 33-52550); (ii)
Post-Effective Amendment No. 1 to such Registration Statement filed by the
Registrant on July 22, 1994; and (iii) the Form S-8 Registration Statement filed
by the Registrant on August 8, 1996 (Registration No. 333-09769).
On January 29, 1997, 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 1,000,000 shares. The Company's stockholders approved the
amendment to the Plan at the annual meeting of stockholders held on May 21,
1997. On March 10, 1999, the Company's Board of Directors approved and adopted
an amendment to Section 3 of the Plan to increase the number of shares of Common
Stock available for issuance thereunder by an additional 2,000,000 shares. The
Company's stockholders approved the amendment to the Plan at the annual meeting
of stockholders held on May 20, 1999. Accordingly, as amended, the total number
of shares of Common Stock available under the Plan is 5,000,000.
Except for the foregoing amendments, the Plan remains unchanged.
2
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Powertel, Inc. (the "Company") with
the Securities and Exchange Commission (the "Commission") are incorporated by
reference in this Registration Statement as of their respective dates:
(a) the Company's Annual Report on Form 10-K for the year ended
December 31, 1998, as filed with the Commission on March 16,
1999;
(b) the Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1999, as filed with the Commission on May 14,
1999; and
(c) the description of the Company's common stock, par value $0.01
per share (the "Common Stock"), contained in the Company's
Registration Statement on Form 8-A, declared effective by the
Commission on December 20, 1993, including any amendment or
report filed for the purpose of updating such description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), after 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, shall be deemed to be incorporated by reference in this Registration
Statement and to be part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
No disclosure is required under this item.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
No disclosure is required under this item.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Delaware General Corporation Law, as amended (the "Delaware 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: (i) for any breach of the duty of loyalty to the corporation
or its stockholders; (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law; (iii) for willful
or negligent violations of provisions regarding the unlawful payment of
dividends or unlawful stock repurchases or redemptions; or (iv) 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 the Delaware Law (and not
for violation of other laws, such as the federal securities laws). The Company's
Third Restated Certificate of Incorporation, as amended (the "Certificate of
3
<PAGE> 4
Incorporation"), exonerates the Company's directors from monetary liability to
the extent permitted by this statutory provision.
The 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 o 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 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 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
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 several protections to those provided by
Delaware Law, the 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; (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.
4
<PAGE> 5
The Delaware Law and Article 6 of the Certificate of Incorporation
specifically provide for the indemnification of directors and officers, and the
Delaware 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 Commission takes
the position that indemnification of directors and executive officers against
violations of the Securities Act is against public policy and unenforceable.
Accordingly, whenever an issuer registers securities with the Commission 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 Commission would have to be submitted to a
court before final payment thereunder would be made to the director or executive
officer.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
No disclosure is required under this item.
ITEM 8. EXHIBITS
4(a) * Third Restated Certificate of Incorporation of InterCel, Inc.
dated June 6, 1996. (Filed as Exhibit 10(yy) to the Company's
Form 10-Q filed for the quarter ended September 30, 1996 (the
"1996 Third Quarter 10-Q"), and incorporated herein by
reference.)
4(b) * Certificate of Amendment of Restated Certificate of
Incorporation of InterCel, Inc. dated June 23, 1997. (Filed as
Exhibit 10(b) to the Company's Form 8-K filed July 1, 1997,
and incorporated herein by reference.)
4(c) * Restated By-Laws of InterCel, Inc. (Filed as Exhibit 3(b) to
Registration Statement on Form S-1, File No. 33-72734 (the
"1993 Form S-1"), and incorporated herein by reference.)
4(d) * Certificate of Designations, Powers, Preferences and Relative,
Participating or Other Rights, and the Qualifications,
Limitations or Restrictions Thereof, of Series A Convertible
Preferred Stock of InterCel, Inc. (Filed as Exhibit 10(tt) to
the 1996 Third Quarter 10-Q, and incorporated herein by
reference.)
4(e) * Certificate of Designations, Powers, Preferences and Relative,
Participating or Other Rights, and the Qualifications,
Limitations or Restrictions Thereof, of Series B Convertible
Preferred Stock of InterCel, Inc. (Filed as Exhibit 10(uu) to
the 1996 Third Quarter 10-Q, and incorporated herein by
reference.)
5
<PAGE> 6
4(f) * Certificate of Amendment to the Certificate of Designations,
Powers, Preferences and Relative, Participating or Other
Rights, and the Qualifications, Limitations or Restrictions
Thereof, of Series B Convertible Preferred Stock of InterCel,
Inc. (Filed as Exhibit 4(k) to the 1997 Form S-4, and
incorporated herein by reference.)
4(g) * Certificate of Designations, Powers, Preferences and Relative,
Participating or Other Rights, and the Qualifications,
Limitations or Restrictions Thereof, of Series C Convertible
Preferred Stock of InterCel, Inc. (Filed as Exhibit 4(f) to
the Company's Form 10-K filed for the year ended December 31,
1996 (the "1996 Form 10-K"), and incorporated herein by
reference.)
4(h) * Amended Certificate of Designations, Powers, Preferences and
Relative, Participating or Other Rights, and the
Qualifications, Limitations or Restrictions Thereof, of Series
C Convertible Preferred Stock of InterCel, Inc. (Filed as
Exhibit 4(l) to the 1997 Form S-4, and incorporated herein by
reference.)
4(i) * Certificate of Designations, Powers, Preferences and Relative,
Participating or Other Rights, and the Qualifications,
Limitations or Restrictions Thereof, of Series D Convertible
Preferred Stock of InterCel, Inc. (Filed as Exhibit 4(g) to
the 1996 Form 10-K, and incorporated herein by reference.)
4(j) * Amended Certificate of Designations, Powers, Preferences and
Relative, Participating or Other Rights, and the
Qualifications, Limitations or Restrictions Thereof, of Series
D Convertible Preferred Stock of InterCel, Inc. (Filed as
Exhibit 4(m) to the 1997 Form S-4, and incorporated herein by
reference.)
4(k) * Certificate of Designations, Powers, Preferences and Relative,
Participating or Other Rights, and the Qualifications,
Limitations or Restrictions Thereof, of Series E 6.5%
Cumulative Convertible Preferred Stock of Powertel, Inc.
(Filed as Exhibit 4(a) to the Company's Form 10-Q filed for
the quarter ended June 30, 1998 (the "1998 Second Quarter
10-Q"), and incorporated herein by reference.)
4(l) * Certificate of Designations, Powers, Preferences and Relative,
Participating or Other Rights, and the Qualifications,
Limitations or Restrictions Thereof, of Series F 6.5%
Cumulative Convertible Preferred Stock of Powertel, Inc.
(Filed as Exhibit 4(b) to the 1998 Second Quarter 10-Q, and
incorporated herein by reference.)
4(m) * InterCel, Inc. Amended and Restated 1991 Stock Option Plan.
(Filed as Appendix C to the Company's Definitive Proxy
Statement for the 1999 Annual Meeting of Stockholders, and
incorporated herein by reference.)
5 Opinion of Nelson Mullins Riley & Scarborough, L.L.P., counsel
to the Company, as to the legality of securities being
registered.
23(a) Consent of Arthur Andersen LLP.
23(b) Consent of Nelson Mullins Riley & Scarborough, L.L.P.
(included as part of Exhibit 5).
6
<PAGE> 7
24 Powers of Attorney for the following individuals: Campbell B.
Lanier, III; Allen E. Smith; Fred G. Astor, Jr.; Donald W.
Burton; O. Gene Gabbard; Ann Milligan; Maurice P. O'Connor;
William H. Scott, III; William B. Timmerman and Donald W.
Weber (included on signature page hereto)
- ---------------------------
* Previously filed.
ITEM 9. UNDERTAKINGS
The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by Section
10(a)(3) of 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
aggregate, represent a fundamental change in the
information set forth in this Registration Statement.
Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the
total dollar value of securities offered would not
exceed that which was registered) and any deviation
from the low or high and of the estimated maximum
offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20 percent change
in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the
effective registration statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
this Registration Statement or any material change
to such information in this Registration Statement;
provided, however, that the undertakings set forth in
paragraphs (i) and (ii) above do not apply if the
information required to be included in a post-
effective amendment by those paragraphs is contained
in periodic reports filed with or furnished to the
Commission by the Company pursuant to Section 13(a)
or 15(d) of the Exchange Act that are incorporated by
reference in this 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.
7
<PAGE> 8
The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's Annual Report
pursuant to Section 13(a) or 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 bona fide offering
thereof.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company 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 Company of expenses incurred or paid
by a director, officer or controlling person of the Company 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
Company 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.
8
<PAGE> 9
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
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 June 22, 1999.
POWERTEL, INC.
By: /s/ Allen E. Smith
-------------------------------------
Allen E. Smith
Chief Executive Officer
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Allen E. Smith and Fred G. Astor, Jr.,
and each one of them, as their true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully and to
all intents and purposes as he might or could do in person, hereby ratifying and
confirming all which said attorney-in-fact and agent, or his substitute or
substitutes, may lawfully do, or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
June __, 1999
------------------------------------
Campbell B. Lanier, III
Chairman of the Board of Directors
June 22, 1999 /s/ Allen E. Smith
------------------------------------
Allen E. Smith
Chief Executive Officer,
President and Director
(principal executive officer)
June 22, 1999 /s/ Fred G. Astor, Jr.
------------------------------------
Fred G. Astor, Jr.
Chief Financial Officer and
Executive Vice President
(principal financial and
accounting officer)
9
<PAGE> 10
June 22, 1999 /s/ Donald W. Burton
------------------------------------
Donald W. Burton
Director
June 22, 1999 /s/ O. Gene Gabbard
------------------------------------
O. Gene Gabbard
Director
June __, 1999
------------------------------------
Ann Milligan
Director
June 22, 1999 /s/ Maurice P. O'Connor
------------------------------------
Maurice P. O'Connor
Director
June __, 1999
------------------------------------
William H. Scott, III
Director
June 22, 1999 /s/ William B. Timmerman
------------------------------------
William B. Timmerman
Director
June 22, 1999 /s/ Donald W. Weber
------------------------------------
Donald W. Weber
Director
10
<PAGE> 1
EXHIBIT 5
[NELSON MULLINS RILEY & SCARBOROUGH, L.L.P. LETTERHEAD]
June 22, 1999
Powertel, Inc.
1233 O.G. Skinner Drive
West Point, Georgia 31833
Gentlemen:
We have acted as counsel to Powertel, Inc. (the "Company") in
connection with the filing of a Registration Statement on Form S-8 (the
"Registration Statement") under the Securities Act of 1933, covering the
offering of up to 3,000,000 shares (the "Shares") of the Company's Common Stock,
$0.01 par value per share, that may be issued pursuant to the Powertel, Inc.
Amended and Restated 1991 Stock Option Plan (the "Plan"). In connection
therewith, we have examined such corporate records, certificates of public
officials and other documents and records as we have considered necessary or
proper for the purpose of this opinion.
This opinion is limited by and is in accordance with, the January 1,
1992, edition of the Interpretive Standards applicable to Legal Opinions to
Third Parties in Corporate Transactions adopted by the Legal Opinion Committee
of the Corporate and Banking Law Section of the State Bar of Georgia.
Based on the foregoing, and having regard to legal considerations which
we deem relevant, we are of the opinion that the Shares covered by the
Registration Statement, which may be issued pursuant to the Plan will, when
issued in accordance with the Plan, be legally issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ NELSON MULLINS RILEY &
SCARBOROUGH, L.L.P.
<PAGE> 1
EXHIBIT 23(a)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference of our reports dated February 25, 1999 included in Powertel, Inc.'s
Annual Report on Form 10-K for the year ending December 31, 1998 into this
Registration Statement.
/s/ Arthur Andersen LLP
Atlanta, Georgia
June 22, 1999
