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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 21, 2000
Registration No. 33-96218
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 4 TO FORM S-1
ON FORM S-2
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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POWERTEL, INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 58-1944750
(State or Other (I.R.S. Employer
Jurisdiction of Identification
Incorporation or Number)
Organization)
1233 O.G. SKINNER DRIVE
WEST POINT, GEORGIA 31833
(706) 645-2000
(706) 645-9523 (FACSIMILE)
(Address, Including Zip Code, and Telephone Number, Including Area Code,
of Registrant's Principal Executive Offices)
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ALLEN E. SMITH
PRESIDENT AND CHIEF EXECUTIVE OFFICER
POWERTEL, INC.
1233 O.G. SKINNER DRIVE
WEST POINT, GEORGIA 31833
(706) 645-2000
(706) 645-9523 (FACSIMILE)
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
of Agent for Service)
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Copy to:
James Walker IV, Esq.
Terresa R. Tarpley, Esq.
Morris, Manning & Martin, LLP
1600 Atlanta Financial Center
3343 Peachtree Road, N.E.
Atlanta, Georgia 30326
(404) 233-7000
(404) 365-9532 (facsimile)
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Approximate date of commencement of proposed sale to the public: As soon as
practicable after this Registration Statement becomes effective and from time to
time as determined by market conditions.
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [X]
If the registrant elects to deliver its latest annual report to security
holders or a complete and legible facsimile thereof, pursuant to Item 11(a)(1)
of this form, check the following box. [ ]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ] ________________
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ] _______________
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ] ___________
If delivery of the prospectus is expected to be made pursuant to Rule
434, check the following box. [ ]
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL SECURITIES AND WE ARE NOT SOLICITING OFFERS TO BUY THESE SECURITIES, IN
ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
Subject to Completion, dated April 21, 2000
PROSPECTUS
1,224,557 Shares
POWERTEL, INC.
Common Stock
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This prospectus relates to the possible issuance by us from time to
time of up to 1,224,557 shares of our common stock to the holders of our
currently outstanding warrants to purchase shares of common stock upon the
exercise thereof by such holders and in accordance with a warrant agreement
relating to the warrants between us and Bankers Trust Company, as warrant agent.
We offered and sold the warrants to the public pursuant to a prospectus dated
February 1, 1996 as part of an offering of 35,747 units, each unit consisting of
ten 12% Senior Discount Notes due 2006 and 32 warrants to purchase shares of our
common stock. Each warrant entitles the holder to purchase 1.07 shares of common
stock at a price of $16.9546 per share, subject to adjustment as provided in the
warrant agreement. Subject to the effectiveness of the registration statement of
which this prospectus is a part, the warrants may be exercised at any time prior
to the close of business on February 1, 2006.
Our common stock is quoted on the Nasdaq National Market under the
symbol "PTEL." On April 20, 2000, the last reported sales price of our common
stock was $66.125 per share.
Our principal executive offices are located at 1233 O.G. Skinner Drive,
West Point, Georgia 31833, and our telephone number is (706) 645-2000.
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YOU SHOULD CONSIDER CAREFULLY THE "RISK FACTORS"
BEGINNING ON PAGE 4 BEFORE PURCHASING
ANY OF THE COMMON STOCK OFFERED HEREBY.
---------------------------
THE SECURITIES AND EXCHANGE COMMISSION AND STATE SECURITIES REGULATORS
HAVE NOT APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
April 21, 2000
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YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED IN THIS PROSPECTUS.
WE HAVE NOT AUTHORIZED ANYONE TO PROVIDE YOU WITH INFORMATION DIFFERENT FROM
THAT CONTAINED IN THIS PROSPECTUS. THE INFORMATION CONTAINED IN THIS PROSPECTUS
IS ACCURATE ONLY AS OF THE DATE OF THIS PROSPECTUS, REGARDLESS OF THE TIME OF
DELIVERY OF THIS PROSPECTUS OR OF ANY SALE OF THE SHARES.
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TABLE OF CONTENTS
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Where You Can Find More Information..................................................................... 3
Information Incorporated by Reference................................................................... 3
Forward-Looking Information............................................................................. 4
Risk Factors............................................................................................ 4
Use of Proceeds......................................................................................... 10
Powertel................................................................................................ 10
Plan of Distribution.................................................................................... 11
Legal Matters........................................................................................... 11
Experts................................................................................................. 11
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WHERE YOU CAN FIND MORE INFORMATION
Powertel files annual, quarterly and special reports, proxy statements,
and other information with the Securities and Exchange Commission. You may read
and copy any document we file with the SEC at the following SEC public reference
rooms: 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549 and 7 World
Trade Center, Suite 1300, New York, New York 10048. Please call the SEC at
1-800-SEC-0330 for further information on the public reference rooms. Our SEC
filings are also available to the public at the SEC's web site at
http://www.sec.gov.
Our common stock is quoted on The Nasdaq National Market under the
symbol "PTEL," and our SEC filings can also be read at the following Nasdaq
address: Nasdaq Operations, 1735 K Street, N.W., Washington, D.C. 20006.
INFORMATION INCORPORATED BY REFERENCE
The SEC allows us to incorporate by reference the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this prospectus. However, information in this
prospectus supersedes information incorporated by reference that we filed with
the SEC prior to the date of this prospectus. We incorporate by reference the
items listed below:
1. our Annual Report on Form 10-K for the fiscal year ended
December 31, 1999; and
2. the description of our common stock contained in our
registration statement on Form 8-A, declared effective by the
SEC on December 20, 1993, including any amendment or report
filed for the purpose of updating this information.
This prospectus is accompanied by a copy of our Form 10-K for the
fiscal year ended December 31, 1999. If you need an additional copy of this
document, or if you would like to receive a copy of the other item referenced
above, you may request copies, at no cost, by writing or telephoning us at the
following address: Vice President/General Counsel, Powertel, Inc., 1233 O.G.
Skinner Drive, West Point, GA 31833; telephone number (706) 645-2000.
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FORWARD-LOOKING INFORMATION
This prospectus, including the information incorporated by reference,
contains forward-looking statements within the meaning of Section 27A of the
Securities Act of 1933, as amended, and Section 21E of the Exchange Act. We
intend these forward-looking statements to be covered by the safe harbor
provisions for forward-looking statements in these sections. All statements
regarding our expected financial position and operating results, our business
strategy and financing plans and similar matters are forward-looking statements.
These statements can sometimes be identified by our use of forward-looking words
such as "believe," "may," "will," "anticipate," "estimate," "continue,"
"expect," "could," "should," "would" or "intend." Our actual results could
differ materially from those anticipated by these forward-looking statements as
a result of the factors described under "Risk Factors" and other information
contained in this prospectus and our other SEC filings. In particular, please
review the sections captioned "Management's Discussion and Analysis of Financial
Condition and Results of Operations" in our annual report on Form 10-K for the
year ended December 31, 1999, which report is incorporated by reference. You
should also review similar sections contained in any subsequently filed Exchange
Act reports. In connection with forward-looking statements which appear in these
disclosures, you should carefully consider the factors described in this
prospectus under "Risk Factors."
RISK FACTORS
You should carefully consider the risks and uncertainties described
below before making an investment decision. Our business, financial condition
and operating results could be adversely affected by any of the following
factors, in which event the trading price of our common stock could decline, and
you could lose part or all of your investment.
WE NEED SIGNIFICANT CAPITAL TO FUND OUR OPERATIONS AND EXPAND OUR BUSINESS
We require significant amounts of capital to fund our operations and
expand our personal communications services ("PCS") business. We currently
estimate that our capital expenditures will total approximately $151 million in
2000, primarily relating to:
- the continued enhancement and expansion of our PCS network in
existing markets and to build out certain secondary cities;
- the maintenance of our network capacity and service quality
and our billing system functionality; and
- the completion of certain customer service enhancement
projects.
Although we are unable to predict the amount of expenditures that we will make
beyond 2000, we may need to raise additional capital to fund and expand our
business operations. We also will need to raise additional capital if we decide
to acquire additional licenses or businesses. We may attempt to raise additional
capital through public or private debt or equity financings, vendor financings
or other means. However, we cannot guarantee that additional financing will be
available to us or, if available, that we will be able to obtain it on terms
acceptable to us, favorable to our stockholders and within the limitations
contained in our indentures, credit facility and any future financing
arrangements. If we fail to obtain
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additional financing, we could experience delays in some or all of our
development and expansion plans and expenditures, which could limit our ability
to meet our debt service obligations and could materially adversely affect our
business, financial condition and operating results.
IF WE CONTINUE TO EXPERIENCE OPERATING LOSSES, WE MAY BE UNABLE TO MEET OUR
WORKING CAPITAL REQUIREMENTS AND DEBT SERVICE OBLIGATIONS
We have experienced significant operating losses and negative cash
flows from operating activities in recent years. We expect to continue to incur
operating losses in the future while we continue to expand our PCS system and
build our customer base. Our ability to satisfy our debt repayment obligations
and covenants depends upon our future performance, which is subject to a number
of factors, many of which are beyond our control. We cannot guarantee that we
will generate sufficient cash flow from our operating activities to meet our
debt service and working capital requirements, and we may need to refinance our
indebtedness. However, our ability to refinance our indebtedness will depend on,
among other things, our financial condition, the state of the public and private
debt and equity markets, the restrictions in the instruments governing our
indebtedness and other factors, some of which may be beyond our control. In
addition, if we do not generate sufficient cash flow to meet our debt service
requirements or if we fail to comply with the covenants governing our
indebtedness, we may need additional financing in order to service or extinguish
our indebtedness. We may not be able to obtain financing or refinancing on terms
that are acceptable to us or favorable to us or our stockholders. In the absence
of available financing or refinancing, we could be forced to dispose of assets
in order to make up for any shortfall in the payments due on our indebtedness
under circumstances that might not be favorable to realizing the highest price
for those assets. A substantial portion of our assets consists of intangible
assets, principally licenses granted by the Federal Communications Commission.
The value of our licenses depends upon a variety of factors, including the
success of our PCS business and the wireless telecommunications industry in
general. In addition, transfers of interests in licenses are subject to FCC
approval. As a result, we cannot guarantee that we would be able to sell our
assets quickly enough, or for sufficient amounts, to enable us to meet our debt
service or working capital requirements.
BECAUSE WE ARE SUBJECT TO COVENANTS, WE HAVE A LIMITED ABILITY TO ENGAGE IN SOME
TYPES OF TRANSACTIONS
Our indentures and our credit facility subject us to covenants, and any
additional financing agreements that we enter into in the future may also
subject us to covenants. The covenants in our indentures and our credit facility
affect, and in some cases significantly limit or prohibit, our ability to:
- incur additional indebtedness and/or create liens;
- make prepayments of certain indebtedness;
- make investments;
- engage in transactions with stockholders and affiliates;
- issue capital stock;
- sell assets; and
- engage in mergers and consolidations.
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If we do not comply with the covenants in our indentures and our credit
facility, our obligations to repay the debt outstanding under those documents
may be accelerated. In addition, covenants contained in our credit facility
require us to maintain financial ratios and to achieve targeted performance
levels. We cannot guarantee that we will be able to maintain these financial
ratios or to achieve these targeted performance levels. Our failure to maintain
these ratios or to achieve these targeted performance levels would constitute
events of default under the credit facility, even if we are still able to meet
our debt service obligations. An event of default under the credit facility
would allow the lenders to accelerate the maturity of that indebtedness. This
could cause a significant portion of our other indebtedness, including notes
outstanding under our indentures, to become immediately due and payable.
VARIOUS FACTORS OUTSIDE OF OUR CONTROL MAY AFFECT OUR OPERATING RESULTS AND
CAUSE POTENTIAL FLUCTUATIONS IN OUR QUARTERLY RESULTS
Our future success depends on a number of factors, many of which are
beyond our control. In particular, our revenue depends on our ability to attract
and keep subscribers. Most of our subscribers may discontinue their service any
time for any reason. Our operating results, cash flows and liquidity may
fluctuate significantly in the future due to factors beyond our control, which
include:
- how quickly we are able to acquire new subscribers;
- how expensive it will be to acquire new subscribers;
- how much money we have to spend to improve our business and
expand our operations;
- how quickly we are able to develop new products and services
that our subscribers require and accept;
- how our prices compare to those of our competitors; and
- other general economic factors.
It is possible that in some future period, our operating results and/or
our growth rate will be below what public market analysts and investors expect.
If that happens, the market price of our common stock could decline materially.
THE LACK OF NATIONAL GSM COVERAGE MAY HINDER OUR GROWTH
Although FCC technical standards for analog cellular systems assure
nationwide compatibility between all cellular carriers and handsets, the FCC has
not adopted a nationwide technology standard for PCS operations. Accordingly,
each PCS licensee is free to select among several competing, and currently
incompatible, technologies. We use the Global System for Mobile Communications
("GSM") technical standard in our markets. For our subscribers to roam in other
markets, either at least one PCS licensee in the other market must use the GSM
standard, or subscribers must use dual-mode handsets compatible with a cellular
system in the other market. Dual-mode handsets are more expensive than
single-mode handsets. The comparatively higher cost, or the potential lack of
consumer acceptance of these handsets, may prevent us from retaining current
subscribers or attracting new subscribers.
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Our principal PCS competitors use standards other than GSM. As a
result, our subscribers may not be able to conveniently use PCS services while
roaming in some areas outside our markets. Sprint PCS and Verizon use PCS
systems based on the Code Division Multiple Access ("CDMA") standard. CDMA
providers, including competitors in several of our markets, own licenses
covering approximately 100% of the U.S. population. AT&T Wireless uses a PCS
system based on the Time Division Multiple Access ("TDMA") standard. TDMA
providers own licenses covering over 96% of the U.S. population. We and other
PCS licensees who use GSM systems own licenses covering markets which represent
over 98% of the U.S. population. However, certain major metropolitan areas, such
as New Orleans, are not served by GSM providers because licenses covering those
areas were not awarded to a GSM provider in the recent FCC reauctions of
licenses. In addition, we cannot guarantee that PCS licensees who use GSM
systems will successfully build out their markets, or that those who currently
use GSM will continue to use GSM. There may also be delays in deploying GSM
systems in other markets due to the financial constraints of certain GSM service
providers. Accordingly, GSM systems may cover less of the U.S. population than
competing standards, and we may have difficulty competing successfully with
providers offering a larger coverage footprint or more extensive roaming
capabilities.
There is also a continuing debate as to whether a single international
standard should be adopted for the next generation of PCS technology worldwide.
The outcome of the debate could have a significant impact on us if a non-GSM
standard is chosen as the single worldwide standard for next generation PCS
communications.
SIGNIFICANT COMPETITION IN THE MARKETPLACE MAY HINDER OUR GROWTH
Competition for wireless subscribers is based principally on the
services and features offered, system quality, customer service, system
coverage, system capacity and price. We currently compete with multiple
providers of PCS, cellular and other wireless services. In each market in which
we operate, the FCC initially granted six PCS licenses and two cellular
licenses. Under current FCC rules, PCS licenses may be combined or further
subdivided among any number of providers, subject to certain FCC rules.
Competition in our markets is intense. Our wireless competitors include AT&T
Wireless, AirTouch, BellSouth Mobility, GTE Wireless, Alltel, Nextel, Price
Communications Wireless and Sprint PCS. Many of these competitors have
substantially greater financial, technical, marketing, sales and distribution
resources than we have, and several operate in multiple segments of the
industry. Several of our competitors, through joint ventures and affiliation
arrangements, operate or plan to operate nationwide wireless systems throughout
the continental United States.
We also compete with paging, dispatch and continental mobile telephone
companies, resellers, and landline telephone service providers. In addition,
specialized mobile radio licensees, including Nextel, operate digital mobile
communications systems using existing specialized mobile radio frequencies in
many cities throughout the United States, including some of our markets. These
systems, referred to as enhanced specialized mobile radio, compete with our
systems. Given rapid advances in the wireless communications industry, we cannot
guarantee that new technologies will not evolve that will compete with our
products and services. We expect some competitors to market other services, such
as cable television access or landline local exchange or interexchange services,
with their wireless telecommunications service offerings.
Competition in our industry is intense and is a cause of subscriber
attrition. We may need to reduce our prices in order to meet reductions in rates
by others. Reductions in our prices could adversely affect us by reducing the
revenue we receive from our customers. If we are unable or unwilling to reduce
our prices, or do not respond quickly to competitive developments, we could lose
customers to our
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competitors. We cannot guarantee that we will continue to compete successfully
in this environment or that technologies and products that are more commercially
effective than ours will not be developed.
WE ARE SUBJECT TO LITIGATION WHICH COULD ADVERSELY AFFECT OUR BUSINESS
We are subject from time to time to legal proceedings that arise out of
our business operations, including service, billing and collection matters.
Although the actual damages sought in these legal proceedings are generally
small, some of these legal proceedings may seek punitive damages and/or attempt
to be certified as class actions. While we do not expect these legal proceedings
to have a material adverse effect on our business, financial condition and
operating results, we cannot guarantee that the resolution of any or all of them
will not have a material adverse effect.
THE ZONING APPROVALS THAT WE OFTEN NEED TO ERECT A TOWER STRUCTURE MAY HINDER
OUR BUILDOUT PLANS
State and local authorities generally have broad power to establish
regulations concerning the use of land in their jurisdictions. These regulations
may restrict or prohibit the construction of antenna towers in particular
locations and, consequently, may limit the number of antenna sites available to
us. We have experienced, and may experience in the future, difficulty in
obtaining zoning approvals for tower and antenna sites. These difficulties may
delay, or in some cases prevent, our construction of towers and placement of
antennae. We cannot guarantee that the application of zoning and other land use
regulations by state and local authorities will not have a material adverse
effect on our future buildout.
Under the 1996 Telecommunications Act, states may not restrict cell
siting or modification based upon the environmental effects of radio frequency
emissions if those emissions meet the standards which the FCC imposed in 1996.
However, state and local governmental authorities continue to impose regulations
that expressly prohibit the construction of additional tower sites, including
several governmental authorities in our markets. In some cases, judicial or
other proceedings are pending to challenge a local government's authority in
this area. However, it is possible that local governmental authorities may
continue to adopt policies or moratoria on construction of new towers or
facilities which will delay or prevent the construction of portions of our PCS
system.
RADIO FREQUENCY EMISSIONS AND THE USE OF MOBILE TELEPHONES MAY POSE HEALTH OR
SAFETY CONCERNS
Media reports and university and industry studies have suggested that
radio frequency emissions from wireless handsets may be linked to various
adverse health consequences, including cancer and injuries from automobile
accidents, and may interfere with various electronic medical devices, including
hearing aids and pacemakers. Concerns over radio frequency emissions may
discourage the use of wireless handsets or could lead to governmental regulation
that could adversely affect our business. Several jurisdictions have proposed
legislation which would prohibit or restrict the use and/or possession of a
mobile telephone while driving an automobile. If this legislation is adopted in
a substantial number of markets, it may have an adverse effect on our business.
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WE ARE SUBJECT TO EXTENSIVE GOVERNMENT REGULATION, ANY CHANGE IN WHICH COULD
AFFECT OUR BUILDOUT PLANS OR FINANCIAL PERFORMANCE
The licensing, construction, operation, acquisition and sale of
wireless systems is regulated by the FCC. Changes in the regulation of these
activities, including the issuance of new licenses, could adversely affect our
operations. In addition, we cannot guarantee that our licenses will be renewed.
All PCS licenses are granted for a 10-year period. At the end of this period the
licensee must apply for renewal. Licenses may be revoked by the FCC at any time
for cause and renewal of our licenses is also subject to satisfaction of the
FCC's build-out requirements.
We must obtain a number of authorizations and permits from federal,
state and local governments. Some of our operating costs are also affected by
governmental actions that are beyond our control. We cannot guarantee that we
will be able to obtain and retain all necessary governmental authorizations and
permits. Our failure to do so could negatively affect our existing operations
and delay or prohibit proposed operations.
Many aspects of the wireless communications industry are subject to
federal and state regulations that are constantly evolving. These regulations
apply to matters such as technical interconnection requirements, access to 911
service and universal service obligations. Regulations also apply to
interference between various types of wireless systems and between wireless
devices and other devices, including medical devices. We may be required to
modify our business plans or operations in response to new and evolving
regulations. We cannot guarantee that we will be able to do so in a cost
effective manner, or at all.
THE MAJORITY OF OUR COMMON STOCK IS HELD BY THREE INVESTORS, AND THEY EXERCISE
SIGNIFICANT INFLUENCE OVER US
As of April 17, 2000, based upon publicly-available filings, we believe
that ITC Holding Company, Inc. beneficially owned approximately 25.0%, SCANA
Communications, Inc. beneficially owned approximately 15.8% and Sonera Ltd.
beneficially owned approximately 14.9% of our outstanding common stock. These
beneficial ownership percentages include shares of our common stock currently
owned directly or indirectly by a person and shares of common stock that such
person has the right to acquire within 60 days after April 17, 2000 because of
that person's ownership of our preferred stock that is convertible during such
period. If these persons acted together, they would have sufficient voting power
to control the outcome of corporate actions submitted to our stockholders for
approval and to control our management and affairs, including the election of
our board of directors and some types of change of control transactions.
WE ARE SUBJECT TO PROVISIONS THAT MAY PREVENT A THIRD-PARTY FROM EFFECTING A
CHANGE OF CONTROL
Even if our stockholders would benefit from a change of control,
provisions in our certificate of incorporation, our bylaws, the Delaware
Corporation Law and the agreements governing our debt could delay or impede the
removal of incumbent directors or discourage a third-party from attempting to
acquire control of us.
For example:
- We have a staggered board of directors.
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- Our certificate of incorporation authorizes the board of
directors to issue shares of preferred stock, in one or more
series, and to determine the terms, conditions, rights,
privileges and preferences of this preferred stock without
further stockholder approval.
- We are governed by Section 203 of the Delaware Corporation
Law, which prohibits us from engaging in some mergers,
consolidations, sales or other transactions with any person
who owns more than a particular percentage of our stock for a
period of three years after the date of the transaction in
which the person acquired that percentage of our stock, unless
specified conditions are met.
- Our indebtedness may also become due and payable upon a change
in control.
Any of these provisions could have the effect of delaying, deferring, or
preventing a change of control.
USE OF PROCEEDS
The net proceeds from any issuance of common stock upon exercise of the
warrants are expected to be used to partially finance the development,
construction and operating costs associated with our personal communications
system.
POWERTEL
Unless otherwise indicated, all population data set forth herein is
based on the 1999 Paul Kagan Associates, Inc. Cellular/PCS POP Book, and all
industry data set forth herein is based upon information compiled by the
Cellular Telecommunications Industry Association and/or Paul Kagan Associates,
Inc.
Powertel, Inc. provides digital wireless PCS services in the
southeastern United States under the name "Powertel." Our licenses encompass a
territory of approximately 246,000 contiguous square miles with a population of
approximately 24.4 million people. We hold licenses to serve the Major Trading
Areas ("MTAs") of Atlanta, Georgia; Jacksonville, Florida; Memphis,
Tennessee/Jackson, Mississippi; and Birmingham, Alabama, as well as 13 Basic
Trading Areas ("BTAs") in Kentucky and Tennessee. We hold 30 MHz of spectrum in
our MTA markets, and we hold 20 MHz of spectrum in all of our BTA markets except
for the Knoxville, Tennessee BTA, where we hold a license for 10 MHz of
spectrum. We have one of the largest contiguous licensed PCS footprints in the
southeastern United States.
We introduced our services in October 1996 in Jacksonville, Florida and
Montgomery, Alabama and, to date, have launched our services in a total of 34
markets in the Southeast. In most of these markets, we were the first to offer
PCS services commercially. As of December 31, 1999, we had approximately 341,000
postpaid subscribers and 205,000 prepaid subscribers.
On April 30, 1999, we sold substantially all of our cellular assets in
western Georgia and eastern Alabama to Public Service Cellular, Inc. for
approximately $89 million in cash. This transaction constituted the sale of all
of our cellular telephone operations. On June 2, 1999, we and certain of our
subsidiaries sold 619 of our communications towers to a subsidiary of Crown
Castle International Corp. for approximately $262 million in cash. In connection
with this sale, certain of our
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subsidiaries agreed to lease space on these towers for a period of ten years,
with three five-year renewal periods that may be exercised at the lessee's
option. On December 2, 1999, we and certain of our subsidiaries sold an
additional 31 tower sites to Crown Castle for approximately $13 million in cash.
We have also entered into a contract with Crown Castle under which they will
provide us with build-to-suit tower construction services through December 31,
2000.
PLAN OF DISTRIBUTION
We may from time to time issue up to 1,224,557 shares of common stock,
subject to adjustment, to the holders of the warrants upon exercise thereof by
such holders and in accordance with the warrant agreement. We will issue the
common stock directly or through agents to the holders of the warrants.
LEGAL MATTERS
The validity of the shares of common stock offered hereby has been
passed upon for us by Morris, Manning & Martin, LLP, Atlanta, Georgia.
EXPERTS
The consolidated financial statements of Powertel, Inc. as of December
31, 1999 and 1998 and for each of the years in the three-year period ended
December 31, 1999 have been audited by Arthur Andersen LLP, independent
certified public accountants, as indicated in their reports with respect
thereto, and are included herein in reliance upon such reports and upon the
authority of said firm as experts in accounting and auditing.
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POWERTEL, INC.
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PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the costs and expenses payable by
Powertel in connection with the sale of the common stock being registered. All
amounts are estimates except the SEC registration fee.
<TABLE>
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SEC registration fee ....... $ 69,655
NASD filing fee ............ 15,500
Blue sky fees and expenses . 17,500
Printing expenses .......... 262,500
Legal fees and expenses .... 325,000
Accounting fees and expenses 112,500
Miscellaneous expenses ..... 19,311
--------
Total ................ $821,966
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Powertel's Third Restated Certificate of Incorporation, as amended,
contains provisions that provide that no director of Powertel shall be liable
for breach of fiduciary duty as a director except for (i) any breach of the
director's duty of loyalty to Powertel or its stockholders; (ii) acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of the law; (iii) liability under Section 174 of the Delaware
Corporation Law; or (iv) any transaction from which the director derived an
improper personal benefit. Powertel's Certificate of Incorporation contains
provisions that further provide for the indemnification of directors and
officers to the fullest extent permitted by the Delaware Corporation Law. Under
Powertel's Amended and Restated Bylaws, Powertel is required to advance expenses
incurred by an officer or director in defending any such action if the director
or officer undertakes to repay such amount if it is determined that the director
or officer is not entitled to indemnification.
Powertel's Certificate of Incorporation also provides that, except as
expressly prohibited by law, Powertel shall indemnify its directors, officers,
employees and agents and its former directors, officers, employees and agents
and those who serve, at Powertel's request, in such capacities with another
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred in connection with
the defense of any action, suit, or proceeding in which they or any of them were
or are made parties or are threatened to be made parties by reason of their
serving or having served in such capacity. Powertel's Certificate of
Incorporation provides, however, that such person must have acted in good faith
and in a manner such person reasonably believed to be in (or not opposed to) the
best interests of Powertel and, in the case of a criminal action, such person
must have had no reasonable cause to believe his or her conduct was unlawful. In
addition, Powertel's Certificate of Incorporation does not permit
indemnification in an action or suit by or in the right of Powertel, where such
person has been adjudged liable to Powertel, unless, and only to the extent
that, a court determines that such person fairly and reasonably is entitled to
indemnity for costs the court deems proper in light of liability adjudication.
Indemnity is mandatory to the extent a claim, issue or matter has been
successfully defended. In addition, Powertel has entered into indemnity
agreements with all of its directors and officers pursuant to which Powertel has
agreed to indemnify the directors and officers as permitted by the Delaware
Corporation Law and has obtained directors and officers liability insurance.
II-1
<PAGE> 15
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
<TABLE>
<CAPTION>
Exhibit
Number Exhibit Description
- ------- -------------------
<S> <C> <C>
2(a) * Asset Purchase Agreement dated December 23, 1996 by and
among Rural Cellular Corporation, Unity Cellular Systems,
Inc., InterCel Licenses, Inc. and InterCel, Inc. (Filed as
Exhibit 99.1 to the Company's Form 8-K dated December 23, 1996
and incorporated herein by reference.)
2(b) * Closing Memorandum dated May 1, 1997 by and between Rural
Cellular Corporation, MRCC, Inc., Unity Cellular Systems,
Inc., InterCel Licenses, Inc. and InterCel, Inc. (Filed as
Exhibit 2.2 to the Company's Form 8-K dated May 12, 1997 and
incorporated herein by reference.)**
2(c) * Asset Purchase Agreement dated January 5, 1999 by and among
Public Service Cellular, Inc., Powertel, Inc., ICEL, Inc. and
InterCel Licenses, Inc. (Filed as Exhibit 99.1 to the
Company's Form 8-K dated January 5, 1999 and incorporated
herein by reference.)**
2(d) * Closing Memorandum dated April 30, 1999 by and between
Public Service Cellular, Inc., Powertel, Inc., ICEL, Inc. and
InterCel Licenses, Inc. (Filed as Exhibit 2.2 to the Company's
Form 8-K dated April 30, 1999 and incorporated herein by
reference.)**
2(e) * Asset Purchase Agreement dated March 15, 1999 by and among
Crown Castle International Corp., CCP Inc., Powertel Atlanta
Towers, LLC, Powertel Birmingham Towers, LLC, Powertel
Jacksonville Towers, LLC, Powertel Kentucky Towers, LLC,
Powertel Memphis Towers, LLC and Powertel, Inc. (Filed as
Exhibit 2(d) to Powertel's Annual Report on Form 10-K for the
year ended December 31, 1998 (the "1998 10-K") and
incorporated herein by reference.)**
2(f) * Escrow Agreement dated March 15, 1999 by and among Crown
Castle International Corp., CCP Inc., Powertel Atlanta Towers,
LLC, Powertel Birmingham Towers, LLC, Powertel Jacksonville
Towers, LLC, Powertel Kentucky Towers, LLC, Powertel Memphis
Towers, LLC, Powertel, Inc. and SunTrust Bank. (Filed as
Exhibit 2(e) to the 1998 10-K and incorporated herein by
reference.)
4(a) * Indenture dated as of February 7, 1996 between InterCel,
Inc. and Bankers Trust Company, as Trustee, relating to the
12% Senior Discount Notes Due 2006 of InterCel, Inc. (Filed as
Exhibit 4(a) to Registration Statement on Form S-1, File No.
33-96218 ("February 1996 Form S-1"), and incorporated herein
by reference.)
4(b) * Warrant Agreement dated as of February 7, 1996 between
InterCel, Inc. and Bankers Trust Company, as Warrant Agent.
(Filed as Exhibit 4(b) to the February 1996 Form S-1, and
incorporated herein by reference.)
4(c) * Form of Indenture (including form of Note) between InterCel,
Inc. and Bankers Trust Company, as Trustee, relating to the
12% Senior Discount Notes Due 2006 of InterCel, Inc. (Filed as
Exhibit 4(c) to Registration Statement on Form S-1, File No.
333-2748 (the "April 1996 Form S-1"), and incorporated herein
by reference.)
</TABLE>
II-2
<PAGE> 16
<TABLE>
<S> <C> <C>
4(d) * Indenture (including form of Note) dated June 10, 1997
between InterCel, Inc. and Bankers Trust Company, as Trustee,
relating to the 11-1/8% Senior Notes Due 2007 of InterCel,
Inc. (Filed as Exhibit 4(h) to Registration Statement on Form
S-4, File No. 333-31399 (the "1997 Form S-4"), and
incorporated herein by reference.)
4(e) * Collateral Pledge and Security Agreement dated June 10, 1997
between InterCel, Inc. and Bankers Trust Company, as Trustee.
(Filed as Exhibit 4(j) to the 1997 Form S-4, and incorporated
herein by reference.)
4(f) * 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 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(g) * 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.)
4(h) * 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(i) * 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(j) * 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(k) * 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(l) * 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(m) * 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
</TABLE>
II-3
<PAGE> 17
<TABLE>
<S> <C> <C>
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(n) * 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(o) * First Supplemental Indenture dated as of June 16, 1998 to the
following Indentures: Indenture dated as of February 7, 1996
for the 12% Senior Discount Notes Due 2006; Indenture dated as
of April 19, 1996 for the 12% Senior Discount Notes Due 2006;
Indenture dated as of June 10, 1997 for the 11 1/8% Senior
Notes Due 2007. (Filed as Exhibit 4(c) to the 1998 Second
Quarter 10-Q, and incorporated herein by reference.)
5(a) Opinion of Morris, Manning & Martin, LLP.
10(a) * Software License Agreement between InterCel, Inc. and
Systematics Telecommunications Services, Inc. dated July 24,
1992. (Filed as Exhibit 10(aa) to the Company's Form 10-KSB
filed for the year ended December 31, 1992, and incorporated
herein by reference.)
10(b) * Directors and Officers Insurance and Company Reimbursement
Policy. (Filed as Exhibit 10(ii) to Registration Statement on
Form S-1, File No. 33-72734 (the "1993 Form S-1"), and
incorporated herein by reference.)
10(c) * Form of Indemnity Agreement. (Filed as Exhibit 10(jj) to the
1993 Form S-1, and incorporated herein by reference.)
10(d) * InterCel, Inc. 1995 Employee Restricted Stock Plan (as
amended on November 17, 1995). (Filed as Exhibit 10(e) to the
February 1996 Form S-1, and incorporated herein by reference.)
10(e) * 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.)
10(f) * InterCel, Inc. Amended Nonemployee Stock Option Plan. (Filed
as Exhibit 10(q) to the Company's Form 10-K filed for the year
ended December 31, 1994 (the "1994 Form 10-K"), and
incorporated herein by reference.)
10(g) * Directed Employee Benefit Trust Agreement between The
Charles Schwab Trust Company and InterCel, Inc. (Filed as
Exhibit 10(jjjj) to the 1994 Form 10-K, and incorporated
herein by reference.)
10(h) * Second Amendment to InterCel, Inc. Pension Plan dated as of
August 2, 1996. (Filed as Exhibit 10(ss) to the 1996 Third
Quarter 10-Q, and incorporated herein by reference.)
10(i) * InterCel, Inc. 401(k) Profit Sharing Plan. (Filed as Exhibit
10(j) to the February 1996 Form S-1, and incorporated herein
by reference.)
</TABLE>
II-4
<PAGE> 18
<TABLE>
<S> <C> <C>
10(j) * Defined Benefit Pension Plan and Trust Adoption Agreement
(Unity Telephone Company) dated as of January 15, 1984. (Filed
as Exhibit 10(ss) to the 1993 Form S-1, and incorporated
herein by reference.)
10(k) * Defined Benefit Pension Plan (Unity Telephone Company). (Filed
as Exhibit 10(tt) to the 1993 Form S-1, and incorporated
herein by reference.)
10(l) * Amendment to Unity Telephone Pension Plan dated June 29, 1992.
(Filed as Exhibit 10(uu) to the 1993 Form S-1, and
incorporated herein by reference.)
10(m) * ITC Holding Company Inc. Employees Pension Plan and Trust (as
amended on December 15, 1994). (Filed as Exhibit 10(zz) to the
February 1996 Form S-1, and incorporated herein by reference.)
10(n) * DMS-MTX Cellular Supply Agreement dated March 29, 1995
between InterCel, Inc. and Northern Telecom Inc. (Filed as
Exhibit 10(pp) to the February 1996 Form S-1, and incorporated
herein by reference.)
10(o) * Amendment No. 1 to DMS-MTX Cellular Supply Agreement between
InterCel, Inc. and Northern Telecom Inc. dated August 9, 1995.
(Filed as Exhibit 10(qq) to the February 1996 Form S-1, and
incorporated herein by reference.)
10(p) * Information and Network Products and Services Agreement
dated June 16, 1994 between InterCel, Inc. and GTE
Telecommunications Service Incorporated. (Filed as Exhibit
10(uu) to the February 1996 Form S-1, and incorporated herein
by reference.)
10(q) * Credit Agreement dated as of March 4, 1996 among InterCel
PCS Services, Inc., as Borrower, Ericsson Inc., as Initial
Lender, and Ericsson Inc. as Agent. (Filed as Exhibit 10(nn)
to the April 1996 Form S-1, and incorporated herein by
reference.)
10(r) * Amendment No. 1 to the Credit Agreement by and among
Powertel, Inc., as Borrower, Ericsson Inc., as Initial Lender,
and Ericsson Inc., as Agent, dated as of October 31, 1996.
(Filed as Exhibit 10(ww) to the 1996 Third Quarter 10-Q and
incorporated herein by reference.)
10(s) * Amendment No. 2 to the Credit Agreement by and among
Powertel, Inc., as Borrower, Ericsson Project Finance A.B., as
Lender, and Ericsson Inc., as Agent, dated as of March 31,
1997. (Filed as Exhibit 10(e) to the 1997 Form S-4, and
incorporated herein by reference.)
10(t) * Amendment No. 3 to the Credit Agreement by and among
Powertel PCS, Inc., as Borrower, Goldman Sachs Credit Partners
L.P., as Lender, and Ericsson Inc., as Agent, dated as of June
26, 1997. (Filed as Exhibit 10(f) to the 1997 Form S-4, and
incorporated herein by reference.)
10(u) * Amendment No. 4 to the Credit Agreement by and among
Powertel PCS, Inc., as Borrower, Goldman Sachs Credit Partners
L.P., as Lender, and Ericsson Inc., as Agent, dated as of
November 18, 1997. (Filed as Exhibit 10(u) to the Company's
Form 10-K for the year ended December 31, 1997 (the "1997 Form
10-K") and incorporated herein by reference.)
</TABLE>
II-5
<PAGE> 19
<TABLE>
<S> <C> <C>
10(v) * Amendment No. 5 to the Credit Agreement by and among
Powertel PCS, Inc., as Borrower, Goldman Sachs Credit Partners
L.P., as Lender, and Ericsson Inc., as Agent, dated as of
December 23, 1997. (Filed as Exhibit 10(v) to the 1997 Form
10-K, and incorporated herein by reference.)
10(w) * Acquisition Agreement dated as of March 4, 1996 between
InterCel PCS Services, Inc. and Ericsson Inc. (Filed as
Exhibit 10(rr) to the April 1996 Form S-1, and incorporated
herein by reference.)
10(x) * Amendment No. 1 to the Acquisition Agreement for Ericsson
CMS 40 Personal Communications Systems dated as of September
2, 1997 between Powertel PCS, Inc. and Ericsson Inc. (Filed as
Exhibit 10(j) to the Company's Form 10-Q filed for the quarter
ended September 30, 1997, and incorporated herein by
reference.)
10(y) * License Agreement between LHS Communications, Inc. and
Powertel, Inc. dated August 2, 1996. (Filed as Exhibit 10(vv)
to the 1996 Third Quarter 10-Q, and incorporated herein by
reference.)
10(z) * Agreement between BellSouth Telecommunications, Inc. and
Powertel, Inc. effective as of April 1, 1997. (Filed as
Exhibit 10(qq) to the Company's Form 10-Q filed for the
quarter ended March 31, 1997, and incorporated herein by
reference.)
10(aa) * Stock Purchase Agreement dated as of May 23, 1997 between
InterCel, Inc. and SCANA Communications, Inc. (Filed as
Exhibit 10(c) to the 1997 Form S-4, and incorporated herein by
reference.)
10(bb) * Stock Purchase Agreement dated as of May 23, 1997 between
InterCel, Inc. and The Huff Alternative Income Fund, L.P.
(Filed as Exhibit 10(a) to the 1997 Form S-4, and incorporated
herein by reference.)
10(cc) * First Amendment to Interconnection Agreement between Powertel,
Inc. and BellSouth Telecommunications, Inc. effective as of
April 1, 1997. (Filed as Exhibit 10(mm) to the 1997 Form 10-K,
and incorporated herein by reference.)
10(dd) * Powertel 401(k) Profit Sharing Plan (as amended and restated
effective January 1, 1997, and as renamed effective July 1,
1997). (Filed as Exhibit 10(nn) to the 1997 Form 10-K, and
incorporated herein by reference.)
10(ee) * Stock Purchase Agreement dated June 22, 1998, by and between
Powertel, Inc. and SCANA Communications, Inc. (Filed as
Exhibit 10(a) to the 1998 Second Quarter 10-Q, and
incorporated herein by reference.)
10(ff) * Stock Purchase Agreement dated June 22, 1998, by and between
Powertel, Inc. and ITC Wireless, Inc. (Filed as Exhibit 10(b)
to the 1998 Second Quarter 10-Q, and incorporated herein by
reference.)
10(gg) * Amended and Restated Credit Agreement dated as of February
6, 1998, among Powertel PCS, Inc., the Banks and Other
Financial Institutions Listed on the Signature Pages thereof,
Ericsson Inc., as Agent, and National Westminster Bank PLC, as
Administrative Agent for the Lenders. (Filed as Exhibit (10(a)
to the Company's
</TABLE>
II-6
<PAGE> 20
<TABLE>
<S> <C> <C>
Form 10-Q filed for the quarter ended March 31, 1998, and
incorporated herein by reference.) +
10(hh) * Letter Agreement dated April 22, 1998 by and among Powertel
PCS, Inc., Ericsson Inc., National Westminster Bank plc., GE
Capital and the lenders consenting thereto relating to the
Credit Facility. (Filed as Exhibit 10(c) to the 1998 Second
Quarter 10-Q, and incorporated herein by reference.)
13(a) * Powertel, Inc. Annual Report on Form 10-K for the year ended
December 31, 1999. (Filed on March 29, 2000 and incorporated
herein by reference.)
23(a) Consent of Arthur Andersen LLP.
23(b) Consent of Morris, Manning & Martin, LLP (included in Exhibit
5(a)).
24 Powers of Attorney for the following individuals: Campbell B.
Lanier, III; Allen E. Smith; Fred G. Astor, Jr.; Donald W.
Burton; William H. Scott, III; and Donald W. Weber. (Filed as
Exhibit 24(c) to Post-Effective Amendment No. 1 to Form S-1,
File No. 33-96218, filed on August 7, 1996, and incorporated
herein by reference.)
</TABLE>
- -----------------------
* Previously filed.
** The Registrant agrees to furnish supplementally a copy of any omitted
schedule or exhibit to the Securities and Exchange Commission upon
request, as provided in Item 601(b)(2) of Regulation S-K.
+ Confidential treatment has been granted for certain confidential
portions of this exhibit pursuant to Rule 24(b)(2) under the Exchange
Act. In accordance with Rule 24(b)(2), these confidential portions have
been omitted from this exhibit and filed separately with the
Commission.
ITEM 17. UNDERTAKINGS.
We hereby undertake:
1. To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(a) to include any prospectus required by Section
10(a)(3) of the Securities Act;
(b) 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. 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 end 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% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(c) 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;
II-7
<PAGE> 21
provided, however, that paragraphs (a) and (b) above do not apply if this
registration statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained in
the periodic reports filed by us 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 post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
We hereby undertake that, for the purpose of determining any liability
under the Securities Act, each filing of our annual report pursuant to Section
13(a) or Section 15(d) of the Exchange Act, (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to Section 15(d) of the
Exchange Act) that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to our directors, officers and controlling persons pursuant
to the foregoing provisions, or otherwise, we have been advised that in the
opinion of the SEC 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 us of
expenses incurred or paid by our director, officer, or controlling person 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, we will, unless in the opinion of our 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.
II-8
<PAGE> 22
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Powertel,
Inc. certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-2 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 this 20th day of
April, 2000.
POWERTEL, INC.
By: /s/ Allen E. Smith
-----------------------------------------
Allen E. Smith
President/Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities listed below and on the 20th day of April, 2000.
<TABLE>
<CAPTION>
Signatures Title
- ---------- -----
<S> <C>
* Chairman of the Board of Directors
- -----------------------------------------------------
Campbell B. Lanier, III
/s/ Allen E. Smith Chief Executive Officer, President
- ----------------------------------------------------- and Director
Allen E. Smith (Principal Executive Officer)
* Chief Financial Officer and
- ----------------------------------------------------- Executive Vice President
Fred G. Astor, Jr. (Principal Financial and
Accounting Officer)
* Director
- -----------------------------------------------------
Donald W. Burton
* Director
- -----------------------------------------------------
O. Gene Gabbard
Director
- -----------------------------------------------------
Ann M. Milligan
</TABLE>
II-9
<PAGE> 23
<TABLE>
<S> <C>
* Director
- -----------------------------------------------------
William H. Scott, III
Director
- -----------------------------------------------------
William B. Timmerman
* Director
- -----------------------------------------------------
Donald W. Weber
*By /s/ Allen E. Smith
------------------------------------------------
Allen E. Smith
Attorney-in-Fact
</TABLE>
II-10
<PAGE> 1
EXHIBIT 5(a)
[LETTERHEAD OF MORRIS, MANNING & MARTIN, LLP]
April 21, 2000
Board of Directors
Powertel, Inc.
1233 O.G. Skinner Drive
West Point, Georgia 31833
Re: Registration Statement on Form S-2
Ladies and Gentlemen:
This firm has acted as counsel to Powertel, Inc., a Delaware
corporation (the "Company"), in connection with its registration, pursuant to a
registration statement on Form S-1, Registration No. 33-96218, as amended by
Post-effective Amendment No. 1 to Form S-1 on Form S-3 filed on August 7, 1996,
as further amended by Post-effective Amendment No. 2 to Form S-1 on Form S-2
filed on September 13, 1999 and as further amended by Post-Effective Amendment
No. 3 to Form S-1 on Form S-2 filed on September 20, 1999, and as further
amended by Post-Effective Amendment No. 4 to Form S-1 on Form S-2 filed on
April 21, 2000, with the Securities and Exchange Commission (the "Registration
Statement"), for issuance of up to 1,224,557 shares of the Company's common
stock, par value $0.01 per share (the "Shares"), by the Company to holders of
the Company's outstanding warrants upon exercise thereof. This opinion letter
is furnished to you at your request to enable you to fulfill the requirements
of Item 601(b)(5) of Regulation S-K, 17 C.F.R. Section 229.601(b)(5), in
connection with the Registration Statement.
For purposes of this opinion letter, we have examined copies of the
following documents:
1. A copy of the Registration Statement and amendments thereto.
2. An executed copy of the Warrant Agreement dated February 1,
1996 between the Company and Bankers Trust Company.
3. The Third Restated Certificate of Incorporation of the
Company, as amended, as certified by the Secretary of the
Company on the date hereof as then being complete, accurate
and in effect.
4. The Amended and Restated Bylaws of the Company, as certified
by the Secretary of the Company on the date hereof as then
being complete, accurate and in effect.
<PAGE> 2
5. Resolutions of the Board of Directors of the Company adopted
on August 23, 1995, November 17, 1995 and January 26, 1996,
as certified by the Secretary of the Company as then being
complete, accurate and then in effect.
In our examination of the aforesaid documents, we have assumed the
genuineness of all signatures, the legal capacity of all natural persons, the
authenticity, accuracy and completeness of all documents submitted to us, and
the conformity with the original documents of all documents submitted to us as
certified, telecopied, photostatic, or reproduced copies. We have also assumed
the accuracy, completeness and authenticity of the foregoing certifications of
public officials, governmental agencies and departments, and corporate
officials. 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 upon exercise of the warrants, will be
validly issued, fully paid and non-assessable under the General Corporation Law
of the State of Delaware.
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 and should not be quoted in whole or in part or otherwise be referred
to, or 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(a)
to the Registration Statement and to the reference to this firm under the
caption "Legal Matters" in the prospectus constituting a part of the
Registration Statement. In giving this consent, we do not hereby admit that we
are an "expert" within the meaning of the Securities Act of 1933, as amended.
Very truly yours,
MORRIS, MANNING & MARTIN, LLP
/s/ Morris, Manning & Martin, LLP
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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 4, 2000 included in
Powertel, Inc.'s Annual Report on Form 10-K for the year ending December 31,
1999 into this Registration Statement.
/s/ Arthur Andersen LLP
Atlanta, Georgia
April 21, 2000
