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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 11, 2000
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM S-8
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 Jurisdiction of Incorporation (I.R.S. Employer Identification
or Organization) No.)
1239 O.G. SKINNER DRIVE, WEST POINT, GEORGIA 31833
(Address of Principal Executive Offices)
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POWERTEL, INC.
2000 STOCK OPTION AND INCENTIVE PLAN
(Full Title of the Plan)
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JILL F. DORSEY, ESQ. Copies to:
VICE PRESIDENT - GENERAL COUNSEL JAMES WALKER IV, ESQ.
POWERTEL, INC. C. WILLIAM MCDANIEL, ESQ.
1239 O.G. SKINNER DRIVE MORRIS, MANNING & MARTIN, LLP
WEST POINT, GEORGIA 31833 1600 ATLANTA FINANCIAL CENTER
(706) 645-2000 3343 PEACHTREE ROAD, NE
(706) 645-9523 (FAX) ATLANTA, GEORGIA 30326
(Name, Address, Telephone Number, Including (404) 233-7000
Area Code, of Agent For Service) (404) 365-9532 (FAX)
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CALCULATION OF REGISTRATION FEE
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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)
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Common Stock, $0.01 par value.......... 3,500,000 $81.31 $284,572,588.10 $75,127.16
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(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) 54,160
shares of Common Stock being offered under outstanding options at a
weighted average exercise price of $82.91; and (ii) 3,445,840 shares
of Common Stock being offered at an exercise price of $81.28125 based
upon the average of the high and low prices of the Common Stock on
September 6, 2000, as reported on the Nasdaq Stock Market.
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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, 1999, as filed with the Commission on March 29,
2000;
(b) the Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 2000, as filed with the Commission on May 12,
2000, the Company's Current Report on Form 8-K, as filed with
the Commission on May 30, 2000, the Company's Quarterly
Report for the quarter ended June 30, 2000, as filed with the
Commission on August 14, 2000, and the Company's Current
Report on Form 8-K, as filed with the Commission on August
31, 2000; 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
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violation of other laws, such as the federal securities laws). The Company's
Third Restated Certificate of Incorporation, as amended (the "Certificate of
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 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
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.
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
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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 of 1933, as amended (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.
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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) * Certificate of Amendment of the Third Restated Certificate
of Incorporation of Powertel, Inc. dated June 16, 2000.
(Filed as Exhibit 3(i) to the Company's Form 10-Q filed for
the quarter ended June 30, 2000, and incorporated herein by
reference.)
4(d) * 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(e) * 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(f) * 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.)
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4(g) * 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(h) * 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(i) * 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(j) * 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(k) * 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(l) * 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(m) * 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(n) * Powertel, Inc. 2000 Stock Option and Incentive Plan. (Filed
as Appendix A to the Company's Definitive Proxy Statement for
the 2000 Annual Meeting of Stockholders, and incorporated
herein by reference.)
5 Opinion of Morris, Manning & Martin, LLP, counsel to the
Company, as to the legality of securities being registered.
23(a) Consent of Arthur Andersen LLP.
23(b) Consent of Morris, Manning & Martin, LLP (included as part of
Exhibit 5).
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 M. Milligan; William H. Scott,
III; William B. Timmerman and Donald W. Weber (included on
signature page hereto)
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* Previously filed.
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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.
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.
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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.
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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 September 11,
2000.
POWERTEL, INC.
By: /s/ Allen E. Smith
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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 or her and in his or her
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.
September 11, 2000 /s/ Campbell B. Lanier, III
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Campbell B. Lanier, III
Chairman of the Board of Directors
September 11, 2000 /s/ Allen E. Smith
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Allen E. Smith
Chief Executive Officer, President and Director
(principal executive officer)
September 11, 2000 /s/ Fred G. Astor, Jr.
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Fred G. Astor, Jr.
Chief Financial Officer and Executive Vice President
(principal financial and accounting officer)
September 11, 2000 /s/ Donald W. Burton
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Donald W. Burton
Director
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September 11, 2000 /s/ O. Gene Gabbard
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O. Gene Gabbard
Director
September 11, 2000 /s/ Ann M. Milligan
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Ann M. Milligan
Director
September 11, 2000 /s/ William H. Scott, III
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William H. Scott, III
Director
September 11, 2000 /s/ William B. Timmerman
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William B. Timmerman
Director
September 11, 2000 /s/ Donald W. Weber
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Donald W. Weber
Director
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