<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 10, 1996
REGISTRATION NO. 33-83810
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 6
(POST-EFFECTIVE)
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PITTENCRIEFF COMMUNICATIONS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 4812 75-2609476
(State or other (Primary Standard (I.R.S. Employer
jurisdiction of Industrial Identification
incorporation or Classification Code Number)
organization) Number)
1 VILLAGE DRIVE, SUITE 500
ABILENE, TEXAS 79606
(915) 690-5800
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
C.G. Whitten, Esq. WITH COPY TO:
Senior Vice President, General Counsel, and Randall G. Ray, Esq.
Secretary Gardere & Wynne, L.L.P.
1 Village Drive, Suite 500 1601 Elm Street
Abilene, Texas 79606 Suite 3000
(915) 690-5800 Dallas, Texas 75201
(Address, including zip code, and telephone (214) 999-4544
number of registrant's agent for service)
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: AS SOON
AS PRACTICABLE AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.
-----------------------
If any of the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box./ /
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, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box./X/
<PAGE>
PITTENCRIEFF COMMUNICATIONS, INC.
CROSS-REFERENCE SHEET
PURSUANT TO ITEM 501(B) OF REGULATION S-K
ITEM NUMBER AND HEADING HEADING IN
PROSPECTUS
- ------------------------ ------------
1. Forepart of Registration Statement and Outside Front
Cover Page of Prospectus . . . . . . . . . . . . . . Outside Front
Cover Page
2. Inside Front and Outside Back Cover Pages of
Prospectus . . . . . . . . . . . . . . . . . . . . . Inside Front Cover
Page; Available
Information;
Incorporation of
Certain Documents
by Reference
3. Risk Factors and Ratio of Earnings to Fixed Charges
and Other Information . . . . . . . . . . . . . . . . Incorporation of
Certain Documents
by Reference; The
Company; Risk
Factors;
Incorporation of
Certain Documents
by Reference
4. Terms of the Transaction . . . . . . . . . . . . . . Outside Front
Cover Page;
Incorporation of
Certain Documents
by Reference; Plan
of Distribution
5. Pro Forma Financial Information . . . . . . . . . . . Incorporation of
Certain Documents
by Reference
6. Material Contacts with the Company Being Acquired . . *
7. Additional Information Required for Reoffering by
Persons and Parties deemed to be Underwriters . . . . Resales by
Affiliates of
Acquired Companies
8. Interests of Named Experts and Counsel . . . . . . . *
9. Disclosure of Commission Position on Indemnification
for Securities Act Liabilities . . . . . . . . . . . *
10. Information with Respect to S-3 Registrants . . . . . Outside Front
Cover Page;
Incorporation of
Certain Documents
by Reference; The
Company; Risk
Factors; Market
Prices and
Dividends
11. Incorporation of Certain Information by Reference . . Incorporation of
Certain Documents
by Reference
12. Information with Respect to S-2 or S-3 Registrants . *
13. Incorporation of Certain Information by Reference . . *
14. Information with Respect to Registrants Other
Than S-3 or S-2 Registrants . . . . . . . . . . . . . *
15. Information with Respect to S-3 Companies . . . . . . *
16. Information with Respect to S-2 or S-3 Companies . . *
17. Information with Respect to Companies Other Than S-3
or S-2 Companies . . . . . . . . . . . . . . . . . . Incorporation of
Certain Documents
by Reference*
18. Information if Proxies, Consents or Authorizations are
to be Solicited . . . . . . . . . . . . . . . . . . . *
19. Information if Proxies, Consents or Authorizations are
not to be Solicited or in Exchange Offer . . . . . . *
* Inapplicable or otherwise inapplicable upon filing of this Registration
Statement. The registrant may be required to provide information in
response to one or more such items under certain circumstances by means of
a post-effective amendment to this Registration Statement or supplement to
the Prospectus.
<PAGE>
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission and has become effective. These securities
may not be sold nor may offers to buy be accepted prior to the time this
amendment to the registration statement becomes effective. This prospectus
shall not constitute an offer to sell or the solicitation of an offer to buy nor
shall there be any sale of these securities in any State in which such offer,
solicitation, or sale would be unlawful prior to registration or qualification
under the securities laws of any such State.
<PAGE>
SUBJECT TO COMPLETION, DATED JULY 10, 1996
PROSPECTUS
5,000,000 SHARES
[PITTENCRIEFF COMMUNICATIONS, INC., LOGO]
COMMON STOCK
This Prospectus relates to 5,000,000 shares of common stock, $0.01 par
value per share ("PCI Common Stock") of Pittencrieff Communications, Inc. ("PCI"
or the "Company"), that may be issued from time to time by the Company in
connection with its acquisition of other businesses, assets, or securities in
business combination transactions in accordance with Rule 415 under the
Securities Act of 1933, as amended (the "Securities Act"). It is expected that
the terms of acquisitions involving the issuance by the Company of PCI Common
Stock covered by this Prospectus will be determined by direct negotiations with
the owners or controlling persons of the businesses, assets, or securities to be
acquired. Shares of PCI Common Stock issued in exchange for assets or
securities in business combination transactions will be valued at prices
reasonably related to market prices of PCI Common Stock either at the time the
terms of an acquisition are agreed upon or at or about the time of delivery of
such shares.
This Prospectus may also be used, with the Company's prior written consent,
by persons who receive the shares of PCI Common Stock offered hereby from the
Company in connection with acquisitions and who wish to offer and sell such
shares under circumstances requiring or making desirable its use. See "Plan of
Distribution" and "Resales by Affiliates of Acquired Companies." A broker or
dealer selling shares of PCI Common Stock for such a person or purchasing shares
of PCI Common Stock from such a person may be deemed to be an underwriter under
the Securities Act, and any compensation received by any such broker or dealer
may be deemed underwriting compensation. The Company will not receive any of
the proceeds of the sale of shares of PCI Common Stock by any such person.
The Company has previously issued a total of 2,601,612 shares of PCI Common
Stock covered by the registration statement of which this Prospectus is a part
in connection with the acquisitions of certain SMR assets of South Mountain
Communications Company, Bis-Man Mobile Phone, Inc., and Rowley Communications
Corp. Additional shares of PCI Common Stock could be issued at any time after
the date of this Prospectus.
PCI Common Stock trades on The Nasdaq Stock Market National Market
("Nasdaq") under the symbol "PITC." On July 2, 1996, the closing sale price of
PCI Common Stock as reported by Nasdaq was $6 3/4 per share. See "Market Prices
and Dividends."
SEE "RISK FACTORS" BEGINNING ON PAGE 6 FOR A DISCUSSION OF CERTAIN FACTORS
THAT SHOULD BE CONSIDERED BY EACH PROSPECTIVE INVESTOR.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION, NOR HAS THE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY
OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
THE DATE OF THIS PROSPECTUS IS , 1996
<PAGE>
No person is authorized in connection with any offering made hereby to give
any information or to make any representation other than as contained or
incorporated by reference in this Prospectus, and, if given or made, such
information or representation must not be relied upon as having been authorized
by the Company. This Prospectus does not constitute an offer to sell or a
solicitation of an offer to buy any security other than the securities offered
hereby, nor does it constitute an offer to sell or a solicitation of any offer
to buy any of the securities offered hereby to any person in any jurisdiction in
which it is unlawful to make such an offer or solicitation to such person.
Neither the delivery of this Prospectus nor any sale made hereunder shall under
any circumstances create an implication that the information contained herein is
correct as of any time subsequent to the date hereof.
TABLE OF CONTENTS PAGE
Available Information . . . . . . . . . . . . . . . . . . . . . . . . . .2
Incorporation of Certain Documents by Reference . . . . . . . . . . . . .3
The Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
Risk Factors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Plan of Distribution. . . . . . . . . . . . . . . . . . . . . . . . . . 14
Resales by Affiliates of Acquired Companies . . . . . . . . . . . . . . 14
Market Prices and Dividends . . . . . . . . . . . . . . . . . . . . . . 15
Annual and Quarterly Reports to Shareholders. . . . . . . . . . . . . . 15
Legal Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934 ("Exchange Act") and in accordance therewith files reports
and other information with the Securities and Exchange Commission
("Commission"). Such reports and other information can be inspected and copied
at the public reference facilities maintained by the Commission at its offices
at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and at the
Commission's Regional Offices at Northwestern Atrium Center, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661, and Seven World Trade Center, New
York, New York, 10048. Copies of such materials can be obtained by mail from
the Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates.
The Company has filed with the Commission a registration statement on
Form S-4 (together with all exhibits, schedules, amendments, and supplements
thereto, the "Registration Statement") under the Securities Act with respect to
the PCI Common Stock offered by this Prospectus. This Prospectus, which forms a
part of the Registration Statement, does not contain all the information set
forth in the Registration Statement (certain parts of which have been omitted in
accordance with the rules and regulations of the Commission). For further
information with respect to the Company and such PCI Common Stock, reference is
made to the Registration Statement. Statements contained in this Prospectus as
to the contents of any contract, agreement, or other document are not
necessarily complete, and, in each instance, reference is made to the copy of
the document filed as an exhibit to the Registration Statement, each such
statement being qualified in all respects by reference to such exhibit. The
Registration Statement may be inspected and copied at the public reference
facilities at the Commission's offices at Room 1024, 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the Commission's Regional Offices at Northwestern
Atrium Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661, and
Seven World Trade Center, New York, New York, 10048. Copies of all or any part
thereof may be obtained from such office upon payment of prescribed fees.
2
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission
(Commission File No. 0-21840) pursuant to the Exchange Act are hereby
incorporated by reference in this Prospectus: (i) the Company's Annual Report
on Form 10-K for the fiscal year ended December 31, 1995, filed with the
Commission on April 1, 1996, including the consolidated financial statements and
schedules of the Company and the report thereon by KPMG Peat Marwick LLP
contained in the Annual Report; (ii) the Company's Quarterly Report on Form 10-Q
for the fiscal quarter year ended March 31, 1996, filed with the Commission on
May 3, 1996; (iii) the Company's Current Report on Form 8-K dated January 16,
1996, and filed with the Commission on January 25, 1996, as such Form 8-K was
amended by the Company's Form 8-K/A (Amendment No. 1) filed with the Commission
on April 1, 1996, with respect to the Company's unaudited pro forma condensed
consolidated financial statements and the financial statements related to the
Company's acquisition of capital stock or assets of A&D Mobile Systems, Inc.,
Advanced MobileComm of San Diego, Advanced MobileComm Southwest Corp., Bayou
Communications, Inc., Confidential Communications Corporation, Viking Amusement
Corporation d/b/a Empire Mobile Communications, FFC Communications, Inc.,
Metroplex Mobile Communications, Inc., Mobitel Communications Group, and Trunked
Mobile Radio Systems, and the reports thereon by Coopers & Lybrand L.L.P., and
as further amended by the Company's Form 8-K/A (Amendment No. 2) filed with the
Commission on July 5, 1996; (iv) the Company's Current Report on Form 8-K dated
June 14, 1996, and filed with the Commission on June 17, 1996; and (v) the
Company's registration statement on Form 8-A, as such registration statement was
amended by Amendment No. 1 (Post-Effective) filed with the Commission on January
2, 1996, with respect to the description of PCI Common Stock (as incorporated by
reference from the information set forth under the heading "Description of
Capital Stock" in the Company's registration statement on Form S-4, No. 33-
96252, as amended through Amendment No. 1 dated October 18, 1995). All reports
and other documents filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14, or 15(d) of the Exchange Act after the date of this
Prospectus and prior to the termination of this offering shall be deemed to be
incorporated by reference in this Prospectus and to be a part hereof. Any
statement contained in this Prospectus or in a document incorporated or deemed
to be incorporated by reference in this Prospectus shall be deemed to be
modified or superseded for purposes of this Prospectus to the extent that a
statement contained in this Prospectus or in any other subsequently filed
document that also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
THIS PROSPECTUS INCORPORATES DOCUMENTS BY REFERENCE WHICH ARE NOT PRESENTED
HEREIN OR DELIVERED HEREWITH. THESE DOCUMENTS ARE AVAILABLE UPON REQUEST FROM
PITTENCRIEFF COMMUNICATIONS, INC., 1 VILLAGE DRIVE, SUITE 500, ABILENE, TEXAS
79606, ATTENTION: CORPORATE SECRETARY (TELEPHONE 915-690-5800). IN ORDER TO
ENSURE TIMELY DELIVERY OF THE DOCUMENTS, ANY REQUEST SHOULD BE MADE BY AT LEAST
FIVE DAYS PRIOR TO THE DATE ON WHICH A FINAL INVESTMENT DECISION IS TO BE MADE.
3
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THE COMPANY
The Company is a leading provider of Specialized Mobile Radio ("SMR")
wireless communications services in the United States with approximately 92,000
subscriber units in service. The Company services SMR subscribers on
approximately 6,200 granted SMR channels providing coverage on 800 MHz SMR
systems in Texas, New Mexico, Oklahoma, Arizona, Colorado, North Dakota, and
South Dakota. The Company also owns and operates 900 MHz SMR systems in San
Diego, California, comprised of 70 channels. The SMR services currently offered
by the Company are a cost-effective alternative to cellular mobile telephone
service for high-volume subscribers. The Company provides subscribers with both
mobile telephone interconnect (mobile radio to public switched telephone
network) and dispatch (base to fleet) communications, but concentrates on mobile
telephone service which produces significantly higher average revenues per
subscriber unit than dispatch service. The Company derives its revenues
primarily from access and airtime charges for SMR system usage, equipment
service, sales of radios, radio rental, paging, and microwave services. Its
customers are primarily businesses and government agencies. The Company's SMR
coverage area, or "footprint," currently contains a population of approximately
29.5 million people.
STRATEGY
The Company's strategy is to continue to focus on providing wireless
communications services through its existing network of analog SMR systems. The
Company believes that these analog systems, as currently operated and through
selective implementation of enhanced analog technology, will support a growing
subscriber base in most areas of the Company's footprint for the foreseeable
future. In order further to upgrade and expand its services, attract new
subscribers, and enhance its ability to expand its footprint, the Company plans
to implement an enhanced channel compression technology or technologies. The
Company continues to evaluate the performance of the Integrated Dispatch
Enhanced Network System (formerly known as Motorola Integrated Radio System or
"MIRS") ("iDEN") developed by Motorola, Inc. ("Motorola") using six-times time
division multiple access ("TDMA") digital technology or digital Enhanced Digital
Access Communications Systems ("EDACS") being developed by Ericsson GE
Communications Inc. ("Ericsson") using four-times TDMA, which may be used in the
construction of a digital mobile ("Digital Mobile") network. However, any
technology decision will be delayed until the conclusion of the contemplated
auction of 800 MHz channels ("800 Auctions") by the Federal Communication
Commission ("FCC").
In December 1995, the FCC adopted rules and proposals designed to govern
the future licensing of 800 MHz SMR systems. The primary impact of these new
proposals was the enactment of regulations that will permit the geographic based
licensing of 10 MHz of spectrum, which is comprised of 200 channels located in
the upper portion of the 800 MHz SMR band. The licensing will be effected
through the 800 Auctions. The channels will be licensed throughout economic
areas as designated by the U.S. Bureau of Economic Analysis ("BEAs") and will be
available in blocks of 120, 60, and 20 channels. BEA licensees will be able to
construct stations at any available site on any available channel within their
spectrum block or blocks. No FCC approval will be required for expansion or
modification of system facilities, as long as the system complies with
applicable technical and operational rules. The winner of the 800 Auctions in
each BEA will acquire the rights to a significant block of contiguous channels.
Access to contiguous channels broadens the choices for competing enhanced
channel compression technologies beyond both iDEN and EDACS, which do not
require contiguous channels to operate, to technologies similar to those
currently used by cellular providers. One such technology alternative is the
utilization of the International Standard 136 ("IS 136") format, a system based
on Global System for Mobile telecommunications technology, currently offered by
Ericsson in order to construct a network based on three-times TDMA.
There can be no assurance that the Company will be successful in the 800
Auctions or in implementing an enhanced channel compression technology or
technologies in any of its markets. There can also be no assurance that the
Company will be able to obtain sufficient private or public sources of funds for
the 800 Auctions or for the capital expenditures required to implement an
enhanced channel compression technology. Additional financing and internally
generated cash flow will also be needed to fund operating losses and working
capital needs in connection with any new technology implementation. The
Company's inability to obtain adequate financing will prevent it from
implementing an enhanced channel compression technology in whole or in part,
including construction of a Digital Mobile network. This limitation will not
adversely affect the Company's ability to provide its current analog SMR
4
<PAGE>
services, but the Company could face channel capacity constraints in certain of
its markets. See "Risk Factors--Need for Additional Financing," "Risk Factors--
Risks of Implementation of New Technology," and "Risk Factors--Risks of 800
Auctions."
ACQUISITIONS
The Company expects to continue to expand its channel position by acquiring
and consolidating other SMR operations that are within or adjacent to its
footprint. To date, the Company has made 53 acquisitions of SMR assets.
(Acquired SMR assets may include fully operational SMR businesses, discrete SMR
channels, or other SMR assets.) Historically, the Company has focused on
acquisitions in rural areas and small to medium-sized cities, because operations
in these areas can generally be acquired at a lower cost per SMR channel and per
SMR subscriber than operations available in larger metropolitan areas. Since
1994, however, the Company has expanded its acquisition criteria to include
consideration of SMR channels in and around major metropolitan areas. The
availability of channels in metropolitan areas will enable the Company to
provide improved roaming capability to its subscribers and, with the
implementation of the Digital Mobile network, to offer wireless communications
services to the large number of potential subscribers in these areas.
In January 1996, the Company completed the acquisition of SMR assets and
operations (the "AMI Transaction") of Advanced MobileComm, Inc. ("AMI") and a
number of related and unrelated companies (with AMI, the "AMI Sellers"), which
included significant channel positions in Dallas-Fort Worth, Houston, San
Antonio, and Austin. In addition, through the AMI Transaction, the Company
entered the 900 MHz SMR market, acquiring 900 MHz SMR channels in San Diego,
California. In May 1996, the Company entered into a binding letter of intent to
sell the 900 MHz SMR systems in San Diego for cash consideration. The sale is
subject to execution of a definitive purchase agreement, FCC approval, and
customary closing conditions. The Company determined to sell the San Diego
systems after assessing the results of the FCC's 900 MHz auction.
In April 1996, the FCC completed its auction of 900 MHz SMR channels, and
the Company was awarded a total of 18 licenses, consisting of ten 25 KHz
channels each, in the El Paso, Phoenix, Oklahoma City, and Tulsa Metropolitan
Trading Areas for an aggregate purchase price of approximately $1.6 million.
The Company paid the purchase price and the licenses were granted in July 1996.
In May 1996, the Company completed the acquisition of 26 800 MHz SMR
channels in Phoenix for additional cash consideration of $1.5 million. The
acquisition, as originally structured, had an initial closing in 1994 pending
FCC approval, but the Company was relieved of its obligation to complete the
transaction because of the lack of timely FCC action. The FCC subsequently
approved the transfer of certain licenses, and the acquisition was restructured
on that basis.
HISTORY
The Company's operations were originally established in 1986 as AMT Towers,
Inc. ("AMT"), which was acquired by Ukatex Resources, Inc. ("Ukatex") in 1988.
Ukatex was a wholly owned subsidiary of Usdale Limited ("Usdale"), which was a
wholly owned subsidiary of Pittencrieff plc ("PLC"). In 1989, AMT began
acquiring small SMR operators. As part of a corporate reorganization in
connection with these acquisitions, AMT was subsequently acquired by
Pittencrieff Communications, Inc., a Texas corporation ("Old PCI"), which was at
that time a wholly owned subsidiary of Ukatex. In June 1993, Old PCI completed
its initial public offering of common stock, resulting in net proceeds to the
Company of approximately $68 million. On January 16, 1996, Old PCI merged with
and into PCI, with PCI being the surviving corporation, for the purpose of
changing the state of domicile of Old PCI from Texas to Delaware (the
"Reincorporation"). Unless the context otherwise requires, references in this
Prospectus to "PCI" or the "Company" mean (i) after the Reincorporation,
Pittencrieff Communications, Inc., a Delaware corporation, and its subsidiaries,
(ii) before the Reincorporation, Old PCI and its subsidiaries, and (iii) before
September 1990, AMT.
The Company's executive offices are located at 1 Village Drive, Suite 500,
Abilene, Texas 79606, and its telephone number is (915) 690-5800.
5
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RISK FACTORS
INVESTMENT IN SHARES OF PCI COMMON STOCK IS SPECULATIVE AND INVOLVES A
GREAT DEAL OF RISK. IN ADDITION TO OTHER INFORMATION CONTAINED IN THIS
PROSPECTUS, PROSPECTIVE PURCHASERS OF PCI COMMON STOCK SHOULD CONSIDER CAREFULLY
THE FOLLOWING FACTORS IN EVALUATING THE COMPANY AND ITS BUSINESS AND OWNERSHIP
OF PCI COMMON STOCK.
NEED FOR ADDITIONAL FINANCING
To achieve its business plan, including participation in the 800 Auctions
and the proposed implementation of an enhanced channel compression technology or
technologies, whether through construction of a Digital Mobile network or
otherwise, the Company will require significant financing for acquisitions,
capital expenditures, working capital, debt service requirements, and operating
losses. The 800 Auctions have not yet commenced and, based on the results of
the recent frequency auctions conducted by the FCC, the Company cannot predict
with any degree of certainty the outcome of the 800 Auctions or the possible
cost to the Company if successful. Implementation of a channel compression
technology based on contiguous channels acquired in the 800 Auctions, such as IS
136, would require additional capital expenditures, which the Company has not
yet estimated pending a technology decision. If the Company is not successful
in the 800 Auctions in the BEAs in its footprint and, therefore, decides to
construct and implement an iDEN- or EDACS-based Digital Mobile network, the
Company estimates capital expenditures for initial construction and
implementation will be approximately $30 million. Initial construction and
implementation would target only specific markets where the Company has a
dominant channel position and would not involve the conversion of all of the
Company's SMR channels. There can be no assurance that the Company will be able
to obtain adequate public or private financing for either of these enhancement
strategies. In addition, these estimates do not reflect any financing needed to
fund working capital and operating losses in connection with technology
implementation. There can be no assurance that private or public sources of
additional funds will be available or, if available, on what terms such funds
may be obtained. Furthermore, no assurance can be given that actual cash
requirements will be met, that such requirements will not exceed the Company's
budget, or that anticipated revenues will be realized.
In addition to financing for acquisitions and proposed capital
expenditures, the Company may also require additional financing or sources of
cash to fund working capital requirements of current operations. The Company
had working capital of $2.7 million at December 31, 1995, and cash flow from
operating activities of $1.4 million for the year ended December 31, 1995, but
had a working capital deficit of $6.8 million at December 31, 1994, and negative
cash flow from operations of $9.8 million for 1994. The Company also had
negative cash flow from operations of $2.4 million for the first quarter of
1996. There can be no assurance that, if needed, the Company will be able to
obtain additional financing or sources of cash to fund operational requirements.
At March 31, 1996, the Company had total indebtedness to third parties of
$7.0 million, plus a finance obligation of $13.5 million as result of the
accounting treatment of its January 1995 sale of communication towers. The
third party debt is primarily comprised of advances on a $10 million credit
facility that is secured by a letter of credit backed by an affiliate of AMI.
The Company's repayment of the letter of credit, if it is drawn upon, is secured
by the Company's equipment, inventory, and accounts receivable and a pledge of
the capital stock of the Company's operating subsidiaries. The level of the
Company's indebtedness, which would increase with any additional financing,
could have important consequences to holders of PCI Common Stock including the
following: (i) the ability of the Company to obtain additional financing in the
future for capital expenditures, including implementation of new technologies,
acquisitions, working capital, operating losses, debt service requirements, or
other purposes, may be impaired; (ii) a substantial portion of the Company's
cash flow from operations must be dedicated to the payment of the principal of,
and interest on, its indebtedness and will not be available for other purposes;
(iii) the Company's level of indebtedness could limit its flexibility in
planning for, or reacting to, changes in its business and market conditions;
(iv) the Company could become more highly leveraged than certain of its
competitors, which might place the Company at a competitive disadvantage; and
(v) the Company's level of indebtedness could make it more vulnerable in the
event of a downturn in its business.
6
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RISKS OF IMPLEMENTATION OF NEW TECHNOLOGY
The Company is currently evaluating the feasibility and performance of a
number of enhanced channel compression technologies, including IS 136, iDEN, and
EDACS, but has not yet made a technology implementation decision. This decision
will be postponed until after the 800 Auctions. Upon completion of this
evaluation and the 800 Auctions, to be followed by completion of an engineering
and design phase, the Company anticipates it will begin implementation of an
enhanced channel compression technology or technologies. There can be no
assurance that the Company will be successful in the 800 Auctions or be able to
implement an enhanced channel compression technology or technologies in any of
its markets, including, if it is unsuccessful in the 800 Auctions,
implementation of a Digital Mobile network. If the Company is not able to
implement an enhanced channel compression technology or technologies, it will be
severely constrained in its ability to expand and compete effectively with
cellular operators for wireless communications services in certain areas within
its footprint. Implementation could also be affected by a number of factors
beyond its control, such as the availability of adequate financing, demand for
wireless communications services, technological considerations, deficiencies in
technology performance, the cost of infrastructure and subscriber equipment,
marketing and pricing strategies of competitors, regulatory developments and
procurement of necessary regulatory (including FCC) approvals, delays in
implementation generally, and general economic conditions. If the Company is
not successful in the 800 Auctions, it will not be able to implement the IS 136
format or any similar technology requiring contiguous channels. Nextel
Communications, Inc. ("Nextel") has announced plans to develop a nationwide,
seamless network of interoperable iDEN Digital Mobile networks. The Company has
not entered into any roaming agreements and there can be no assurance that it
will be able to enter into any such agreement with Nextel or any other Digital
Mobile providers. If the Company implements a Digital Mobile network based on
IS 136, EDACS, or any channel compression technology other than iDEN, the
resulting network may not be compatible for roaming purposes with any iDEN
networks. See "Risk Factors -- Need for Additional Financing, "Risk Factors --
Risks of 800 Auctions," "Risk Factors -- Risks of Developing Technology," "Risk
Factors -- Competition from Cellular Telephone Systems," "Risk Factors --
Competition from SMR Operators," and "Risk Factors -- Regulation."
The successful implementation of any enhanced channel compression
technology may also depend to a significant degree upon the Company's ability to
lease or acquire sites for the location of its base station equipment. The site
selection process will require the negotiation of lease or acquisition terms for
numerous sites, and will probably require the Company to obtain zoning variances
or other federal or local governmental approvals. Delays in the site selection
process, delays in construction, delays in obtaining governmental approvals, and
other risk factors referred to in this section, could adversely affect the
timing and increase the cost of implementing the selected technology. In
addition, the Company will continue to reevaluate its implementation plans in
order to ensure that it applies its resources in the areas of greatest
potential. There can be no assurance that the Company will not readjust its
priorities such that the implementation of certain markets may be delayed.
Delays in implementation could place the Company at a competitive disadvantage
to its cellular and SMR competitors.
RISKS OF 800 AUCTIONS
The FCC has adopted competitive bidding rules for the 800 Auctions to
license the upper 10 MHz of the 800 MHz SMR band for each BEA. All BEA licenses
will be auctioned simultaneously, and the 800 Auctions will close after one
round passes in which no new valid bids are submitted. Virtually all of the
channels that will be auctioned are currently occupied by incumbent licensees,
including the Company. Approximately 2,400 of the Company's 800 MHz SMR
channels are in this 10 MHz block. Successful BEA licensees will be required to
negotiate relocation with incumbent licensees. There can be no assurance that
the Company will be successful in the 800 Auctions and, if successful, will be
able to negotiate favorable relocation agreements with other incumbents. If the
Company is not successful in the 800 Auctions, the Company may be forced to
relocate existing operations on channels in the upper 10 MHz block to lower
frequencies in the 800 MHz SMR band. There can be no assurance that the Company
will be adequately compensated for any relocation or that relocation will not
have an adverse effect on the Company's operations.
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ADVERSE EFFECTS OF RAPID GROWTH THROUGH ACQUISITIONS
The Company's rapid growth through acquisitions may not improve the
Company's profitability and may have adverse effects. Generally, the Company
must incur additional expenses in order to begin the process of consolidating
acquired SMR systems, which include conversion costs in migrating acquired
channels on to the Company's systems and marketing expenses both to retain
subscribers on the acquired systems and to expand sales. There may, however, be
delays in achieving anticipated operating efficiencies through consolidation.
Delays may be the product of local market characteristics, unanticipated
problems with the acquired assets, and various other factors, many of which are
outside of the Company's control. The Company also has increased depreciation
and amortization expenses as the result of acquisitions. The amount of
acquisition activity, the process of consolidation, and the increased burden on
information and control systems may require a disproportionate amount of
management's attention and detract from day-to-day business activities. The
Company's results of operations and financial condition reflect its rapid growth
through acquisitions. Operating expenses, general and administrative expenses,
and depreciation and amortization expenses have increased markedly.
Acquisitions may also result in the dilution of the Company's existing
shareholders if PCI Common Stock is used as consideration.
LIMITATIONS ON GROWTH BY ACQUISITION
The Company in its present form has been in existence for almost seven
years, during which expansion through acquisition has been an important
component of the Company's growth strategy. Acquisition prices, however, have
increased significantly and the Company believes this trend will continue. The
Company's continued ability to grow by acquisition is dependent on and may be
limited by the availability of suitable SMR acquisitions at prices the Company
considers acceptable and the availability of adequate financing. In addition,
the Company may face increased competition from other regional consolidators of
SMR systems as it expands its footprint. This competition could limit the
availability of acquisition opportunities and increase the cost of acquisitions.
See "Risk Factors -- Competition from SMR Operators."
RISKS OF DEVELOPING TECHNOLOGY
The digital transmission systems which may be available to the Company to
use in implementing and operating a Digital Mobile network are expected to
employ a technology known as TDMA. TDMA is a digital transmission technology
which allows the splitting of a single voice channel to carry a number of voice
or data transmissions simultaneously. To a limited extent, the cellular
industry has utilized three-times TDMA. By contrast, iDEN technology is
designed to use up to six-times TDMA and EDACS technology is designed to use up
to four-times TDMA. Moreover, the new subscriber units to be used in connection
with an iDEN-based Digital Mobile network are equipped with more complex
features than existing wireless communications subscriber units and have only
been used on a limited commercial basis. Based on the experience of Nextel with
the implementation of its Digital Mobile networks, including customer-identified
deficiencies in various areas, Motorola is working to improve iDEN in the areas
of voice quality, delay and system access, and reliability. Motorola has
entered into an agreement with Nextel to develop significant improvements in
audio quality for telephone interconnect service that will incorporate a higher-
rate vocoder and necessitate a reduction in the number of voice paths per
channel used for interconnect service ("Reconfigured iDEN"). This technological
change would result in less efficient use of channels for interconnect service.
There can be no assurance that improvements will be made in iDEN or that
Reconfigured iDEN will be developed or successfully deployed. Moreover, Nextel
has disclosed the need for continuing system optimization activities as part of
its Digital Mobile network operations. Complications associated with iDEN
technology and its integration into the Digital Mobile network and new
subscriber units may arise during any implementation of a Digital Mobile network
by the Company. EDACS, as an alternative digital technology, is still being
developed and tested by Ericsson. There can be no assurance that EDACS will be
commercially available. The Company cannot predict the effect that
technological difficulties may have on the implementation and operation of the
Digital Mobile network or on customers' perceptions of its services. See "Risk
Factors -- Competition from Cellular Systems" and "Risk Factors -- Competition
from SMR Operators."
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UNCERTAINTY OF DEMAND FOR DIGITAL MOBILE SERVICES
The only digital 800 MHz SMR systems in commercial operation in the United
States are Nextel's Digital Mobile networks in various parts of the country,
although Geotek Communications, Inc. ("Geotek") recently began its roll-out of a
commercial 900 MHz SMR network, employing frequency hopping, multiple access
("FHMA") technology. Nextel's Digital Mobile networks, which utilize iDEN
digital technology for voice coding, compression, and transmission, currently
support a limited number of subscriber units and are subject to further
development. The IS 136 format has not yet been used in the 800 MHz SMR band,
and digital EDACS is still under development. See "Risk Factors--Risks of
Implementation of New Technology" and "Risk Factors--Risks of Developing
Technology." The extent of the potential demand for mobile telephone and other
services using a Digital Mobile network or other enhanced technology network
that could be implemented by the Company cannot be estimated with any degree of
certainty. There can be no assurance that the Company's existing customers will
be willing to invest in new subscriber equipment necessary to transfer to a
Digital Mobile network or other new technology. In addition, demand for the
Company's enhanced services and the level of success of its strategy will be
dependent, in part, upon the Company's ability to successfully expand its
marketing strategy to attract new subscribers.
RELIANCE ON ONE SUPPLIER
Implementation of a Digital Mobile network using iDEN or EDACS technology
is dependent on the Company's ability to reach acceptable agreements, including
pricing, with the respective supplier, Motorola or Ericsson, or a licensee of
the proprietary technology, regarding use of the technology and purchase of both
infrastructure equipment and subscriber units for the Digital Mobile network.
There is no guarantee that the equipment will be available from the supplier at
competitive prices or on the delivery schedule desired by the Company. The
delivery schedule will be controlled by the supplier and may be adversely
affected by the supplier's other commitments to deliver equipment to other SMR
operators. It is also expected that the supplier and any licensee manufacturers
will be the only manufacturers of subscriber equipment compatible with such
Digital Mobile networks. See "Risk Factors -- Risks of Implementation of New
Technology.
COMPETITION FROM CELLULAR SYSTEMS
The Company's success depends on its ability to compete with cellular
mobile telephone operators, as well as with other wireless communications
providers in each of its markets. The Company will compete with established
cellular operators in its efforts to attract mobile telephone customers to its
service in many of the markets served by the Company's SMR systems. Existing
cellular operators in the Company's markets have operated for a number of years,
and the Company believes that they currently service approximately 3.9 million
subscribers in the Company's coverage area (based on industry estimates of
national cellular penetration rates), compared to the Company's 92,000 SMR
subscriber units. Some of these cellular operators, such as Southwestern Bell
Mobile Systems, GTE Mobilnet, US West, and AT&T Wireless Services, have
significantly greater financial and other resources than those available to the
Company.
There are and will be significant differences between the Company's current
wireless communications services and the service to be provided through any
enhanced channel compression technology and cellular telephone service. For
example, unlike cellular systems, the Company's current wireless communications
services do not permit automatic "hand-off" of calls from system to system or
roaming beyond the Company's coverage area. With the implementation of an
enhanced channel compression technology, like a Digital Mobile network, the
Company will be able to offer automatic hand-off, but extended roaming
capability will be offered only to the extent that a compatible digital
technology is implemented by SMR providers outside of the Company's markets and
with which the Company is able to negotiate roaming agreements. In addition,
the cellular industry is currently in the process of evaluating new digital
transmission technologies that would further increase the capacity of digital
cellular systems. To the extent that a cellular operator implements digital
technology, a cellular system will have greater channel capacity than an SMR
system in any given market and the cellular operator may be able to offer
digital subscriber units to its customers at prices that an SMR operator,
including the Company, may be unable to match. A successful offering by the
Company of mobile telephone service through an iDEN Digital Mobile network or
other enhanced
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channel compression technology may be dependent on expected software upgrades,
system optimization efforts, and equipment and technology enhancements in order
to provide the capacity, functionality, and quality service necessary to be
competitive with current cellular service. A successful offering through an
EDACS Digital Mobile network is dependent on the successful completion of
development and testing of the technology. The Company cannot predict the
competitive effect that these or other factors will have on the Company.
COMPETITION FROM SMR OPERATORS
The Company also faces competition from existing SMR systems currently
operating on 800 MHz and 900 MHz channels. Historically, the competition for
SMR subscribers within the Company's footprint has been generally limited to
Motorola, previously the largest United States SMR operator, and small SMR
operators. In July 1995, Motorola completed the sale of its 800 MHz SMR
businesses, systems, and licenses to Nextel and Nextel completed its merger with
OneComm Corporation. In January 1996, Nextel completed its merger with Dial
Page, Inc. Nextel, now the largest SMR operator, has begun implementing iDEN-
based Digital Mobile networks in areas within the Company's footprint. Nextel
is substantially larger than the Company and has significantly greater financial
and other resources than those available to the Company. While Nextel is the
dominant provider of 800 MHz service in the country, Geotek is the most
significant licensee of 900 MHz channels. Geotek is currently building a
nationwide digital network employing FHMA technology which, once complete, will
offer enhanced mobile communications services with a focus upon the mobile
workplace. As a result of the FCC's recently completed 900 MHz auction, several
SMR operators, including Nextel and Geotek, will be significant nationwide
licensees of 900 MHz channels once the auctioned licenses are granted by the
FCC.
COMPETITION FROM OTHER DEVELOPING TECHNOLOGIES
The Company also faces possible competition from other radio operators
using channels that may be allocated by the FCC in the future, other two-way
radio systems, paging services, and new wireless communications technologies
such as personal communications systems ("PCS"). The FCC recently allocated
spectrum and began licensing both narrowband and broadband PCS. Narrowband PCS
is designed to permit licensees to offer advanced voice paging, data messaging,
and both one-way and two-way messaging. Broadband PCS is designed to allow
licensees to provide a variety of two-way mobile communications services. In
light of the broad capabilities of PCS service providers, PCS is expected to
compete with both cellular providers and other mobile communications providers.
In addition to PCS, additional services will be made available to consumers from
spectrum formerly licensed to the federal government. The FCC has reallocated
or is in the process of reallocating 285 MHz of spectrum from the federal
government to private sector uses for both fixed and mobile radio services.
Licensees of this spectrum will have greater flexibility than with any other
spectrum ever allocated and could provide services that may be competitive with
the Company's services. The Company may also face additional competition from
licensees offering services in spectrum formerly allocated to the private land
mobile radio services in the bands below 800 MHz and from 220 MHz radio service
systems once currently contemplated changes are made and certain restrictions on
use are lifted. It is possible that a new technology operating on the same or
different frequencies could be developed that would be superior to existing
technology, which could have an adverse effect on the Company.
POSSIBLE MEDICAL RISKS
Allegations have previously been made, and a limited number of lawsuits
have asserted, that serious health risks, including increased incidence of
certain types of cancer, have resulted from the use of portable wireless
communications devices. Motorola and other equipment manufacturers have
undertaken studies concerning the health risks from using mobile communications
devices. The actual or perceived risks of wireless communications devices could
adversely affect the Company through a reduced subscriber growth rate or a
reduction in subscribers, reduced network usage per subscriber, product
liability lawsuits or the threat thereof, or through reduced financing available
to the mobile communications industry.
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REGULATION
The licensing, operation, and acquisition of SMR systems are regulated by
the FCC under the Communications Act of 1934, as amended (the "Act"), and
pursuant to the rules, regulations, and policies adopted thereunder. The FCC
regulations and policies governing SMR systems are highly technical and subject
to change. Further changes in regulation or legislation affecting SMR services,
Digital Mobile service, the allocation by the FCC or Congress of additional
spectrum, or the establishment of new services for developing technologies which
could compete with SMR service could adversely affect the Company's business.
Over the past three years, significant legislative and regulatory activity
has occurred that will or may affect the Company. The FCC has designated most
SMR licensees, including the Company, Commercial Mobile Radio Service ("CMRS")
providers. Under the new regulatory scheme, CMRS licensees will be considered
common carriers and subject to common carrier regulation. In 1994, the FCC
amended the technical, licensing, and operational regulations governing SMR
systems to make those regulations more consistent with the regulations governing
common carrier systems. In many instances, those regulations are substantially
different from the rules that formerly governed SMR systems. Because it was
licensed before August 1993, many of the new regulations will not apply to the
Company until August 1996. In several other ongoing proceedings, the FCC is
determining the nature and scope of common carrier obligations it will impose on
all CMRS providers. States are generally prohibited from regulating rates and
entry requirements for mobile communications providers and will be preempted
from regulating rates and entry for CMRS providers. However, several states,
some of which have jurisdiction over portions of the Company's footprint,
petitioned the FCC to regulate CMRS entry and rates. In May 1995, the FCC
denied those petitions; however, four of the states have appealed the FCC's
decision. Those states do not include Arizona, which also requested, but was
denied, authority to regulate CMRS entry and rates. No other states in the
Company's footprint sought this regulatory authority.
The Company currently holds FCC licenses to use SMR channels and has
entered into management agreements with respect to other SMR licenses. Each of
the Company's licenses, and the licenses issued to entities with whom it has a
management agreement, are subject to renewal, and there can be no assurance that
those licenses will be renewed upon the expiration of their current license
terms. Each license may also be revoked for cause. If the Company continues to
have management agreements, the FCC recently adopted several decisions that will
require CMRS providers to use management agreements that meet criteria found
acceptable for common carriers. The Company's existing management agreements
likely do not meet those criteria. The Company and other "grandfathered" CMRS
providers can, however, continue to use existing management agreements based on
previously acceptable standards until August 1996.
The Company's plan to construct a Digital Mobile network requires various
additional licenses and approvals from the FCC. The Company requested authority
to construct Digital Mobile networks in 11 discrete areas. The FCC has, on two
occasions, taken no action with respect to four of the Company's requests on the
basis that they had not been timely filed. The FCC has also modified its
previous actions with respect to six of the seven previously granted requests by
granting fewer frequencies at fewer sites. The Company filed a timely appeal
with respect to the six modified requests. There can be no assurance that the
FCC will act favorably on the Company's appeals. If granted by the FCC, the
Company's requests must be rejustified. If the FCC accepts the rejustification,
the Company will have the shorter of two years, or the time remaining in its
original five-year grant of extended implementation, to construct its Digital
Mobile network. There can be no assurance that the Company will obtain FCC
rejustification approval, and if it does, that it can construct its Digital
Mobile network in the abbreviated time permitted under the rejustification
schedule.
LACK OF RESTRICTION ON OWNERSHIP BY WIRELINE CARRIERS
In the past, wireline carriers were ineligible to hold licenses for SMR
channels. The FCC has lifted that restriction. Accordingly, wireline carriers,
many of which may have substantially greater resources than the Company, could
more directly compete with the Company for SMR channels and the provision of SMR
services.
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RISK OF IMPOSITION OF STATE TELECOMMUNICATIONS TAX
Effective September 1, 1995, the State of Texas created the
Telecommunications Infrastructure Fund ("TIF") and directed the Texas
Comptroller of Public Accounts ("Comptroller") to assess and collect a total
annual amount of $75 million from telecommunications utilities and a total
annual amount of $75 million from commercial mobile service providers. The
stated purpose of the TIF is to finance, among other things, programs to provide
telecommunications equipment for education, libraries, and telemedicine
services, as well as related training and materials. The underlying statute
provides that a "commercial mobile service provider" means a provider of
commercial mobile service under the Communications Act. Because of the separate
assessments, the portion of the TIF payable by each commercial mobile service
provider would be equal to the ratio that the annual taxable telecommunications
receipts reported by that provider under state sales tax laws bear to the total
annual taxable telecommunications receipts reported by all commercial mobile
service providers. In January 1996, however, a Texas state judge ruled that the
resulting higher tax rate for commercial mobile service providers violated the
state constitution and that all providers would pay the lower rate, estimated at
approximately 1.36% of Texas revenues. The definition of commercial mobile
service provider may, however, now, or in the future, include the Company and
other CMRS providers. There can be no assurance that the Company will not be
classified as a commercial mobile service provider for purposes of the TIF or
that all or part of its revenues will not be considered telecommunications
receipts, or that additional judicial or legislative action will not result in a
higher tax rate. If the Company is subject to the TIF, the annual assessment
and collection of the Company's share of the TIF could have a material adverse
effect on the Company's results of operation and financial condition, whether or
not the assessment is passed on to the Company's subscribers.
POSSIBLE VOLATILITY OF STOCK PRICE
The market price of the PCI Common Stock has varied significantly and may
be highly volatile depending on news announcements or changes in general market
conditions. See "Market Prices and Dividends." If the Company is unable for
any reason to implement its Digital Mobile network, the market price of the PCI
Common Stock could be materially adversely affected. In addition, news
announcements regarding quarterly results of operations, competitive
developments, litigation, or regulatory action impacting the Company may
adversely affect the Company's stock price.
ABSENCE OR LACK OF DIVIDENDS
The Company has never declared or paid any dividends on the PCI Common
Stock and does not plan to pay dividends on the PCI Common Stock for the
foreseeable future. The Company currently intends to reinvest any earnings to
finance its operations, capital expenditures, and future growth.
SHARES ELIGIBLE FOR FUTURE SALE; POSSIBLE ADVERSE EFFECT ON MARKET PRICE OF
COMMON STOCK
As of March 31, 1996, the Company had 26,114,564 shares of PCI Common Stock
outstanding, 14,204,722 of which are freely tradeable by persons other than
"affiliates" of the Company, as that term is defined under the Securities Act,
without restrictions or further registration under the Securities Act. The
remaining 11,909,842 shares are restricted securities issued in the AMI
Transaction. There were also outstanding employee and director options to
purchase an aggregate of 1,053,250 shares of PCI Common Stock, substantially the
majority of which are covered by effective registration statements on Form S-8
and will generally be freely tradeable upon issuance, except to the extent held
by affiliates. The number of outstanding shares significantly increased in
January 1996, as a result of the AMI Transaction, a private transaction in which
the Company issued 11,909,842 shares of PCI Common Stock; although these shares
are not freely tradeable and are subject to certain restrictions on transfer,
the Company has registered these shares for reoffer or resale. The Company also
has outstanding warrants to purchase 250,000 shares of PCI Common Stock issued
to an affiliate of AMI in connection with the Company's current $10 million
credit facility, warrants to purchase 127,386 shares of PCI Common Stock issued
in connection with the Company's September 1994 $10 million bridge facility, and
warrants to purchase 50,000 shares of PCI Common Stock issued to Susquehanna
Financial Group, Inc., in consideration for advisory services. An increase
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in the number of shares of PCI Common Stock that may become available for sale
in the public market may adversely affect the market price prevailing from time
to time of the PCI Common Stock in the public market and could impair the
Company's ability to raise additional capital through the sale of its equity
securities.
ANTITAKEOVER MATTERS
The Company's Certificate of Incorporation and By-Laws contain certain
provisions that may delay, deter, or prevent a merger or takeover of the
Company, or similar transaction, that a majority of stockholders may consider to
be in their best interests, including offers or attempts that might result in a
premium over the market price for the PCI Common Stock. These include
provisions in the Company's Certificate of Incorporation and/or By-Laws
authorizing the board of directors to issue "blank check" preferred stock,
eliminating the ability of stockholders to call special meetings, prohibiting
stockholder action by written consent under most circumstances, establishing
advance notice procedures with respect to certain stockholder proposals, and
limiting removal of directors.
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PLAN OF DISTRIBUTION
This Prospectus may be used by the Company for the offer and sale of up to
5,000,000 shares of PCI Common Stock from time to time in connection with the
acquisition of other businesses, assets, or securities in business combination
transactions. The consideration offered by the Company in such acquisitions, in
addition to any shares of PCI Common Stock offered by this Prospectus, may
include cash, debt, or other securities (which may be convertible into shares of
PCI Common Stock covered by this Prospectus), or assumption by the Company of
liabilities of the business being acquired, or a combination thereof. The terms
of acquisitions are typically determined by negotiations between the Company and
the owners of the businesses, assets, or securities to be acquired, with the
Company taking into account the quality of management, the past and potential
earning power, and growth of the businesses, assets, or securities to be
acquired, and other relevant factors. Shares of PCI Common Stock issued to the
owners of the businesses, assets, or securities to be acquired are generally
valued at a price reasonably related to the market value of the PCI Common Stock
either at the time the terms of the acquisition are tentatively agreed upon or
at or about the time or times of delivery of the shares.
PCI Common Stock issued under this Prospectus will be freely transferable
under the Securities Act, except for shares issued to persons who may be deemed
to be an "underwriter" within the meaning of Section 2(11) of the Securities Act
and Rule 145(c) thereunder. Generally, these are persons, including the
sellers, who are deemed to control, be controlled by, or under common control
with the entities, business, or assets to be acquired by the Company
("Affiliates"). PCI Common Stock issued in connection with such transactions to
persons who constitute "underwriters" within the meaning of Section 2(11) and
Rule 145(c) may not be publicly reoffered or resold by such person except
pursuant to an effective registration statement under the Securities Act
covering such shares or, in certain circumstances, pursuant to Rule 145(d) or
any other applicable exemption under the Securities Act. If agreed to by the
Company, the Company intends for Affiliates to be able to resell the shares of
PCI Common Stock pursuant to this Prospectus. See "Resales by Affiliates of
Acquired Companies."
Of the shares of PCI Common Stock covered by the registration statement of
which this Prospectus is a part, the Company has previously issued a total of
2,601,612 shares for acquisitions as follows: 1,478,787 shares to South
Mountain Communications Company; 366,667 to Bis-Man Mobile Phone, Inc.; and
756,158 in escrow for the benefit of Rowley Communications Corp. ("Rowley")
(597,300 of which were sold in the open market by the escrow agent on behalf of
Rowley and 158,858 of which have been returned to the Company as treasury shares
and subsequently cancelled). Additional shares may be issued at any time after
the date of this Prospectus in connection with the Company's acquisitions.
If with respect to any single acquisition, the PCI Common Stock to be
issued is equal to or in excess of 20% of the total number of shares of PCI
Common Stock outstanding before the issuance, the Company will seek shareholder
approval for the issuance of PCI Common Stock in the acquisition.
RESALES BY AFFILIATES OF ACQUIRED COMPANIES
This Prospectus, as appropriately amended or supplemented, has also been
prepared for use by Affiliates. See "Plan of Distribution." Such Affiliates
may be entitled to offer and sell such PCI Common Stock, on terms then
attainable, under circumstances requiring the use of a Prospectus; PROVIDED,
HOWEVER, that no such Affiliate will be authorized to use this Prospectus for
any offer or sale of such PCI Common Stock without first obtaining the consent
of the Company. A broker or dealer selling shares of PCI Common Stock for such
a person or purchasing shares of PCI Common Stock from such a person may be
deemed to be an underwriter under the Securities Act, and any compensation
received by any such broker or dealer may be deemed underwriting compensation.
The Company will not receive any of the proceeds of the sale of shares of PCI
Common Stock by any such person.
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MARKET PRICES AND DIVIDENDS
The Company completed its initial public offering in June 1993 at a price
of $14 per share. The PCI Common Stock trades on Nasdaq under the trading
symbol "PITC." The following table sets forth, on a per share basis for the
periods indicated, the high and low sale prices for the PCI Common Stock as
reported by Nasdaq.
Price Range
-------------
High Low
---- -----
1994
First quarter. . . . . . . . . . . . . . . . . . . . . . . . . 30 1/4 17 3/4
Second quarter . . . . . . . . . . . . . . . . . . . . . . . . 20 1/2 12 1/4
Third quarter. . . . . . . . . . . . . . . . . . . . . . . . . 17 3/4 10 1/2
Fourth quarter . . . . . . . . . . . . . . . . . . . . . . . . 11 3/4 4 1/2
1995
First quarter. . . . . . . . . . . . . . . . . . . . . . . . . . 6 1/4 3 3/4
Second quarter . . . . . . . . . . . . . . . . . . . . . . . . . 7 4 1/8
Third quarter. . . . . . . . . . . . . . . . . . . . . . . . . . 6 1/4 4 5/16
Fourth quarter . . . . . . . . . . . . . . . . . . . . . . . . . 4 5/8 3 1/8
1996
First quarter. . . . . . . . . . . . . . . . . . . . . . . . . . 5 5/16 3 3/8
Second quarter (through July 2, 1996). . . . . . . . . . . . . . 8 15/16 4 3/4
On July 2, 1996, the closing sale price of the PCI Common Stock as reported
by Nasdaq was $6 3/4 per share. As of June 3, 1996, there were 1,007 holders of
record of the PCI Common Stock.
The Company has never declared or paid any dividends on the PCI Common
Stock and the Company's board of directors does not plan to pay dividends on the
PCI Common Stock in the foreseeable future. The Company currently intends to
reinvest any earnings to finance its operations, capital expenditures, and
future growth.
ANNUAL AND QUARTERLY REPORTS TO SHAREHOLDERS
This Prospectus will be accompanied by the Company's latest Annual Report
on Form 10-K. In addition, each person to whom this Prospectus is delivered
will receive a copy of the Company's most recent Quarterly Report on Form 10-Q
filed subsequent to the Company's latest Annual Report on Form 10-K, if any.
LEGAL MATTERS
The validity of the shares of PCI Common Stock offered hereby has been
passed upon for the Company by Gardere & Wynne, L.L.P., Dallas, Texas.
EXPERTS
The consolidated financial statements and financial statement schedule of
the Company as of December 31, 1994 and 1995, and for each of the years in the
three-year period ended December 31, 1995, have been incorporated by reference
herein in reliance upon the reports of KPMG Peat Marwick LLP, independent
certified public accountants, incorporated by reference herein, and upon the
authority of that firm as experts in accounting and auditing.
The (i) respective balance sheets of A&D Mobile Systems, Inc., Advanced
MobileComm of San Diego, FFC Communications, Inc., Metroplex Mobile
Communications, Inc., Mobitel Communications Group and Trunked Mobile Radio
Systems as of December 31, 1994 and 1995, and respective statements of
operations, equity, and cash flows for the two years ended December 31, 1995;
(ii) consolidated balance sheets of Advanced MobileComm Southwest Corp. as of
December 31, 1993, 1994, and 1995 and consolidated statements of operations,
stockholders'
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equity, and cash flows for the period of inception to December 31, 1993 and the
two years ended December 31, 1995; and (iii) respective balance sheets of Bayou
Communications, Inc., Confidential Communications Corporation, and Viking
Amusement Corporation d/b/a Empire Mobile Communications as of December 31,
1993, 1994, and 1995, and respective statements of operations, stockholders'
equity, and cash flows for the three years ended December 31, 1995, have been
incorporated by reference herein in reliance on the reports of Coopers &
Lybrand, L.L.P., independent accountants, incorporated by reference herein,
given on the authority of that firm as experts in accounting and auditing.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant is incorporated under the laws of Delaware. Section 145 of
the Delaware General Corporation Law provides that a Delaware corporation may
indemnify any person against expenses, fines, and settlements actually and
reasonably incurred by any such person in connection with a threatened, pending
or completed action, suit, or proceeding in which he is involved by reason of
the fact that he is or was a director, officer, employee or agent of such
corporation, provided that (i) he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation and (ii) with respect to any criminal action or proceeding, he had
no reasonable cause to believe his conduct was unlawful. If the action or suit
is by or in the name of the corporation, the corporation may indemnify any such
person against expenses actually and reasonably incurred by him in connection
with the defense or settlement of such action or suit if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interest of the corporation, except that no indemnification may be made in
respect to any claim, issue or matter as to which such person shall have been
adjudged to be liable for negligence or misconduct in the performance of his
duty to the corporation, unless and only to the extent that the Delaware Court
of Chancery or the court in which the action or suit is brought determines upon
application that, despite the adjudication of liability but in light of the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expense as the court deems proper.
As permitted by the Delaware General Corporation Law, the Registrant's
Certificate of Incorporation provides that the directors and officers of the
Registrant shall be indemnified by the Registrant against certain liabilities
that those persons may incur in their capacities as directors or officers. The
Registrant's Certificate of Incorporation eliminates the liability of directors
of the Registrant, under certain circumstances, to the maximum extent permitted
by the Delaware General Corporation Law.
The Registrant has entered into indemnification agreements with three of
its independent directors, Messrs. Dale N. Hatfield, Herbert T. Hensley, and
William C. Kennedy, Jr.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits
*2.1 -- Purchase Agreement dated as of July 14, 1994, between A&B,
doing business as Pittencrieff Communications, Inc., and
South Mountain Communications, Hidden Valley Ranch, Inc.,
Stageline Ranches, Inc., Veco Ranches, Inc., Richard A.
Boulais, and Gladys M. Boulais (incorporated by reference
to Exhibit 10.2 to Registrant's quarterly report on Form
10-Q for the quarterly period ended June 30, 1994)
*2.1.1 -- First Amendment to, and Modification of, Purchase Agreement
dated as of September 1, 1994, between A&B, doing business
as Pittencrieff Communications, Inc. and South Mountain
Communications, Hidden Valley Ranch, Inc., Stageline
Ranches, Inc., Veco Ranches, Inc., Richard A. Boulais, and
Gladys M. Boulais
*2.1.2 -- Second Amendment to, and Modification of, Purchase
Agreement dated as of September 15, 1994, between A&B,
doing business as Pittencrieff Communications, Inc. and
South Mountain Communications, Hidden Valley Ranch, Inc.,
Stageline Ranches, Inc., Veco Ranches, Inc., Richard A.
Boulais, and Gladys M. Boulais (incorporated by reference
to Exhibit 2.3 to Registrant's Current Report on Form 8-K
dated September 28, 1994)
*2.2 -- Purchase Agreement dated as of August 1, 1994, between A&B,
doing business as Pittencrieff Communications, Inc., and
Rowley Communications Corp. (incorporated by reference to
Exhibit 10.3 to Registrant's quarterly report on Form 10-Q
for the quarterly period ended June 30, 1994)
II-1
<PAGE>
*2.2.1 -- Amendment No. 1 to Purchase Agreement executed as of
November 7, 1994, by and between Rowley Communications
Corp. and A&B and the Registrant (incorporated by reference
to Exhibit 10.5 to Registrant's quarterly report on
Form 10-Q for the quarterly period ended September 30,
1994)
*2.2.2 -- Amendment No. 2 to Purchase Agreement dated as April 5,
1995, by and among Rowley Communications Corp. and A&B and
the Registrant
*2.2.3 -- Stock Security and Escrow Agreement dated as of April 5,
1995, by and among A&B and the Company and Rowley
Communications Corp.
2.3 -- [Intentionally left blank]
*2.4 -- Purchase Agreement dated as of October 21, 1994, by and
between Bis-Man Mobile Phone, Inc., and Leischner Electric,
Inc., and the Registrant
*2.5 -- Addendum No. 1 to Purchase Agreement dated as of November
1, 1994, by and between Bis-Man Mobile Phone, Inc., and
Leischner Electric, Inc., and the Registrant (incorporated
by reference to Exhibit 10.4 to the Registrant's quarterly
report on Form 10-Q for the quarterly period ended
September 30, 1994)
*3.1 -- Certificate of Incorporation of the Registrant
(incorporated by reference to Exhibit 3.1 to Registrant's
Form S-4 Registration Statement No. 33-96252)
*3.2 -- By-Laws of the Registrant (incorporated by reference to
Exhibit 3.2 to Registrant's Form S-4 Registration Statement
No. 33-96252)
*4.1 -- Form of certificate representing shares of Registrant's
common stock (incorporated by reference to Exhibit 4.1 to
Registrant's Form S-4 Registration Statement No. 33-96252)
*5.1 -- Legal Opinion of Gardere & Wynne, L.L.P., regarding
legality of securities being registered
*10.1 -- Memorandum of Association and Articles of Association of
Commsco (incorporated by reference to Exhibit 10.1 to
Registrant's Form S-4 Registration Statement No. 33-76820)
*10.2 -- Group Reorganization Agreement dated May 12, 1994, between
PLC, Resources, Commsco, and the Company (incorporated by
reference to Exhibit 10.2 to Registrant's Form S-4
Registration Statement No. 33-76820)
*10.3 -- Communications Transfer Agreement dated May 12, 1994,
between PLC and Commsco (incorporated by reference to
Exhibit 10.3 to Registrant's Form S-4 Registration
Statement No. 33-76820)
*10.4 -- Share Transfer Agreement dated May 12, 1994, between PLC
and Resources (incorporated by reference to Exhibit 10.4 to
Registrant's Form S-4 Registration Statement No. 33-76820)
*10.5 -- Indemnification Agreement dated May 12, 1994, between the
Registrant and Resources and its subsidiaries (incorporated
by reference to Exhibit 10.5 to Registrant's Form S-4
Registration Statement No. 33-76820)
10.6 -- [Intentionally left blank]
*10.7 -- Service Agreement between PLC and Robert John Wolsey dated
September 6, 1991 (incorporated by reference to Exhibit
10.1 to Registrant's Form S-1 Registration Statement No.
33-62128)
*10.7.1 -- Termination Agreement and Mutual Release dated April 28,
1994, between the Registrant, PLC, and Robert J. Wolsey
(incorporated by reference to Exhibit 10.7.1 to
Registrant's Form S-4 Registration Statement No. 33-76820)
*10.8 -- Employment Agreement dated as of October 1, 1993, between
the Registrant and Douglas S. Sinclair (incorporated by
reference to Exhibit 10.8 to Registrant's Form S-4
Registration Statement No. 33-76820)
*10.9 -- Executive Employment Agreement dated as of February 22,
1996, between the Registrant and Warren D. Harkins
*10.10 -- Executive Employment Agreement dated as of February 22,
1996, between the Registrant and Dale E. Harkins
*10.11 -- Executive Employment Agreement dated as of February 22,
1996, between the Registrant and Thomas R. Modisett
II-2
<PAGE>
*10.12 -- Noncompetition Agreement dated as of June 21, 1993, between
the Registrant and Robert J. Wolsey (incorporated by
reference to Exhibit 10.13 to Registrant's Form S-4
Registration Statement No. 33-76820)
10.13 -- [Intentionally left blank]
10.14 -- [Intentionally left blank]
*10.15 -- Pittencrieff Communications, Inc. 1993 Stock Option Plan,
including form of Incentive Stock Option Agreement and
Nonqualified Stock Option Agreement (incorporated by
reference to Exhibit 10.6 to Registrant's Form S-1
Registration Statement No. 33-62128)
*10.16 -- Form of Option Put Agreement dated as of May 1, 1993,
between the Registrant and certain officers and employees
of the Registrant (incorporated by reference to Exhibit
10.7 to Registrant's Form S-1 Registration Statement No.
33-62128)
*10.17 -- Form of Indemnification Agreement with independent
directors (incorporated by reference to Exhibit 10.15 to
Registrant's Form S-1 Registration Statement No. 33-62128)
*10.18 -- Form of Management Agreement for management of SMR licenses
(incorporated by reference to Exhibit 10.16 to Registrant's
Form S-1 Registration Statement No. 33-62128)
*10.19 -- Tax Sharing Agreement dated as of June 22, 1993, between
the Registrant, Ukatex, A&B, PAI, Hydro-Cut Systems, Inc.,
Macnamee Services International, Inc., Commercial Radio
Service, Inc., Mounts Tower Leasing, Inc., J&J Systems,
Inc., and Keldon Oil Company (incorporated by reference to
Exhibit 10.19 to Registrant's Form S-4 Registration
Statement No. 33-76820)
*10.20 -- Purchase Agreement dated as of March 1, 1994, between the
Registrant and WTX Incorporated (incorporated by reference
to Exhibit 10.20 to Registrant's Form S-4 Registration
Statement No. 33-76820)
10.21 -- [Intentionally left blank]
10.22 -- [Intentionally left blank]
10.23 -- [Intentionally left blank]
10.24 -- [Intentionally left blank]
*10.25 -- Enhanced Specialized Mobile Relay System Equipment Purchase
Agreement dated as of April 28, 1994, between the
Registrant and Motorola (incorporated by reference to
Exhibit 10.7 to Registrant's quarterly report on Form 10-Q
for the quarterly period ended March 31, 1994)
10.26 -- [Intentionally left blank]
*10.27 -- Executive Employment Agreement dated as of February 22,
1996, between the Registrant and C.G. Whitten
*10.28 -- Letter Agreement dated as of July 12, 1994, between the
Registrant and Motorola, Inc., amending that certain
Enhanced Mobile Relay System Equipment Purchase Agreement
dated as of April 28, 1994 (incorporated by reference to
Exhibit 10.5 to Registrant's quarterly report on Form 10-Q
for the quarterly period ended June 30, 1994)
*10.29 -- Letter Agreement dated as of September 29, 1994, between
the Registrant and Motorola, Inc., amending that certain
Enhanced Mobile Relay System Equipment Purchase Agreement
dated as of April 28, 1994, as amended
*10.29.1 -- Letter Agreement dated as of November 30, 1994, between the
Registrant and Motorola, Inc., amending that certain
Enhanced Mobile Relay System Equipment Purchase Agreement
dated as of April 28, 1994, as amended
*10.29.2 -- Letter dated March 27, 1995, from Motorola, Inc., to the
Registrant acknowledging termination of that certain
Enhanced Mobile Relay System Equipment Purchase Agreement
dated as of April 28, 1994, as amended
*10.30 -- Pittencrieff Communications, Inc. 1994 Non-Employee
Director Stock Option Plan, including form of Nonqualified
Stock Option Agreement (incorporated by reference to
Exhibit 4.1 to Registrant's Form S-8 Registration Statement
No. 33-81738
II-3
<PAGE>
*10.31 -- Loan Agreement dated as of September 16, 1994, by and among
the Registrant, A&B, The Toronto-Dominion Bank, Kansallis-
Osake-Pankki, and Toronto Dominion (Texas), Inc., as Agent
(incorporated by reference to Exhibit 10.1 to Registrant's
Form S-3 Registration Statement No. 33-84642)
*10.32 -- Security Agreement dated as of September 16, 1994 made by
the Registrant and A&B in favor of Toronto Dominion
(Texas), Inc. (incorporated by reference to Exhibit 10.2 to
Registrant's Form S-3 Registration Statement No. 33-84642)
*10.33 -- Pledge Agreement dated as of September 16, 1994 by and
between the Registrant and Toronto Dominion (Texas), Inc.
(incorporated by reference to Exhibit 10.3 to Registrant's
Form S-3 Registration Statement No. 33-84642)
*10.34 -- Warrant Agreement dated as of September 16, 1994 by and
between the Registrant, The Toronto-Dominion Bank, and
Kansallis-Osake-Pankki (incorporated by reference to
Exhibit 10.4 to Registrant's Form S-3 Registration
Statement No. 33-84642)
*10.34.1 -- First Amendment to Loan Agreement and First Amendment to
Warrant Agreement dated as of April 18, 1995, and effective
as of March 31, 1995, among the Registrant, A&B, The
Toronto Dominion-Bank, Kansallis-Osake-Pankki, and Toronto
Dominion (Texas), Inc. (incorporated by reference to
Exhibit 10.7 to Registrant's quarterly report on Form 10-Q
for the quarterly period ended March 31, 1995)
*10.35 -- Escrow Stock Agreement dated as of September 16, 1994 by
and between the Registrant and Toronto Dominion (Texas),
Inc. (incorporated by reference to Exhibit 4.1 to
Registrant's Form S-3 Registration Statement No. 33-84642)
*10.36 -- Escrow Agreement executed on October 7, 1994, by and
between the Registrant, Toronto Dominion (Texas), Inc., and
NationsBank of Texas, N.A.
*10.37 -- Purchase and Sale Agreement dated as of December 23, 1994,
by and between the Registrant and A&B and Castle
Communications Corporation (incorporated by reference to
Exhibit 2.1 to Registrant's Current Report on Form 8-K
dated January 10, 1995)
*10.38 -- Letter Agreement dated as of January 9, 1995, by and
between the Registrant and A&B and Castle Tower
Corporation, formerly known as Castle Communications
Corporation (incorporated by reference to Exhibit 2.2 to
Registrant's Current Report on Form 8-K dated January 10,
1995)
*10.39 -- Management Agreement dated as of January 1, 1995, by and
between the Registrant and Castle Tower Corporation
(incorporated by reference to Exhibit 2.3 to the
Registrant's Current Report on Form 8-K dated January 10,
1995)
*10.40 -- License Agreement dated as of January 10, 1995, by and
between the Registrant and A&B and Castle Tower Corporation
(incorporated by reference to Exhibit 2.4 to Registrant's
Current Report on Form 8-K dated January 10, 1995)
*10.41 -- Asset Purchase Agreement dated as of February 13, 1995, by
and among Potomac Corporation, A&B, and the Registrant
10.42 -- [Intentionally left blank]
*10.43 -- Warrant to Purchase Common Stock of Pittencrieff
Communications, Inc., No. S-1, dated as of June 1, 1995,
issued by Registrant to Susquehanna Financial Group, Inc.
*10.44 -- Agreement and Plan of Merger, dated as of September 5,
1995, between the Registrant and Pittencrieff
Communications, Inc., a Delaware corporation (incorporated
by reference to Exhibit 2.1 to the Registrant's Form S-4
Registration Statement No. 33-96252)
II-4
<PAGE>
*10.45 -- Contribution Agreement dated as of September 5, 1995, among
the Registrant, Pittencrieff Communications, Inc., a
Delaware corporation, Advanced MobileComm of Texas L.P.,
Advanced MobileComm Southwest Limited Partnership, FFC
Communications, Inc., Viking Amusement Corporation d/b/a
Empire Mobile Communications, Bayou Communications, Inc.,
Confidential Communications Corporation, A&D Mobile
Systems, D&E Communications, Inc., Gulf States Towers,
Inc., Advanced MobileComm Southwest Corp., Metroplex Mobile
Communications, Inc., Royce Witte, for himself and d/b/a
Range Unlimited and Mobitel Communications Services,
Trunked Mobile Radio Systems, AMI, Nels Kjorvestad, Mary
Kjorvestad, John David Bell, James Alan Bell, John Holley,
David E. Weisman, individually and as trustee, Alan S.
Tilles, Richard Meyer, Jean Meyer, and J. R. Bell
(incorporated by reference to Exhibit 2.2 to the
Registrants's Form S-4 Registration Statement No. 33-96252)
*10.46 -- Amendment No. 1 to the Contribution Agreement dated as of
October 16, 1995, among Old PCI, the Registrant, and AMI,
on its own behalf and on behalf of the other AMI Parties
(incorporated by reference to Exhibit 2.3 to the
Registrant's Form S-4 Registration Statement No. 33-96252)
*10.47 -- Commercial Revolving or Draw Note, dated as of September
11, 1995, payable to First State Bank, N.A. (incorporated
by reference to Exhibit 10.48 to the Registrant's Form S-4
Registration Statement No. 33-96252)
*10.48 -- Commercial Security Agreement, dated as of September 11,
1995, between the Registrant's and First State Bank, N.A.
(incorporated by reference to Exhibit 10.49 to the
Registrant's Form S-4 Registration Statement No. 33-96252)
*10.49 -- Agreement dated as of October 26, 1995, among the
Registrant, A&B, and AMI regarding the 900 Auctions
(incorporated by reference to Exhibit 10.44 to Registrant's
Annual Report on Form 10-K for the year ended December 31,
1995)
*10.50 -- Agreement dated as of November 13, 1995, among the
Registrant, A&B, and FMR regarding the Auction Loans
(incorporated by reference to Exhibit 10.45 to Registrant's
Annual Report on Form 10-K for the year ended December 31,
1995)
*10.51 -- Promissory Note of the Registrant, dated as of November 13,
1995, payable to FMR (incorporated by reference to Exhibit
10.46 to Registrant's Annual Report on Form 10-K for the
year ended December 31, 1995)
*10.52 -- Security Agreement dated as of November 13, 1995, among the
Registrant, A&B, and FMR (incorporated by reference to
Exhibit 10.47 to Registrant's Annual Report on Form 10-K
for the year ended December 31, 1995)
*10.53 -- Pledge Agreement dated as of November 13, 1995, among the
Registrant, A&B, and FMR (incorporated by reference to
Exhibit 10.48 to Registrant's Annual Report on Form 10-K
for the year ended December 31, 1995)
*10.54 -- Amended and Restated Promissory Note of the Registrant,
dated as of January 31, 1996, payable to FMR
*10.55 -- Amended and Restated Pledge Agreement, dated as of January
31, 1996, among the Registrant, certain wholly owned
subsidiaries of the Registrant, and FMR
*10.56 -- Executive Employment Agreement dated as of February 22,
1996, between the Registrant and Bradley B. Waldrip
*10.57 -- Loan Agreement dated as of March 18, 1996, between the
Registrant and First Interstate of Bank of Texas, N.A.
*10.58 -- Agreement, dated as of March 18, 1996, among the
Registrant, A&B, First Interstate Bank of Texas, N.A., and
FMR
*10.59 -- Revolving Promissory Note of the Registrant, dated as of
March 18, 1996, payable to First Interstate Bank of Texas,
N.A.
10.60 -- Security Agreement, dated as of March 22, 1996, between the
Registrant and FMR
*10.61 -- Warrant to Purchase Common Stock of the Registrant, dated
as of March 18, 1996, to FMR
II-5
<PAGE>
*10.62 -- Pittencrieff Communications, Inc. 1996 Stock Option Plan,
including form of Incentive Stock Option Agreement and
Nonqualified Stock Option Agreement
*10.63 -- Pittencrieff Communications, Inc. 1996 Non-Employee
Director Stock Option Plan, including form of Nonqualified
Stock Option Agreement
**10.64 -- Amended and Restated Pledge Agreement dated as of March 18,
1996, among Registrant, certain wholly owned subsidiaries
of the Registrant, and FMR
**10.65 -- Amended and Restated Security Agreement dated as of March
18, 1996, among Registrant, certain wholly owned
subsidiaries of the Registrant, and FMR
*21.1 -- List of Registrant's subsidiaries
**23.1 -- Consent of KPMG Peat Marwick LLP
*23.2 -- Consent of Gardere & Wynne, L.L.P. (included in
Exhibit 5.1)
**23.3 -- Consent of Coopers & Lybrand, L.L.P.
*24.1 -- Power of Attorney (set forth on page II-9 of Amendment No.
5 (Post-Effective) to the Registration Statement)
- -------------------
* Previously filed
**Filed herewith
(b) Financial Statement Schedules
Not applicable.
II-6
<PAGE>
ITEM 22. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
PROVIDED, HOWEVER, that 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 by the
Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference in the registration statement and
the Registrant meets the requirements for use of Form S-3 and elects
to furnish information in accordance with the provisions of Item 10 of
this Form.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, 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.
(c) (1) The undersigned Registrant hereby undertakes as follows: that
prior to any public reoffering of the securities registered hereunder through
use of a prospectus which is part of this registration statement, by any person
or party who is deemed to be an underwriter within the meaning of Rule 145(c),
the issuer undertakes that such reoffering prospectus will contain the
information called for by the applicable registration form with respect to
reofferings by persons who may be deemed underwriters, in addition to the
information called for by other Items of the applicable form.
(2) The Registrant undertakes that every prospectus (i) that is filed
pursuant to paragraph (1) immediately preceding, or (ii) that purports to meet
the requirements of section 10(a)(3) of the Securities Act and is used in
connection with an offering of securities subject to Rule 415, will be filed as
a part of an amendment to the registration statement and will not be used until
such amendment is effective, and that, for purposes of determining any liability
under the Securities Act, each such post-effective amendment shall be deemed to
be a new
II-7
<PAGE>
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.
(d) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers, and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer, or controlling
person of the Registrant in the successful defense of any action, suit, or
proceeding) is asserted by such director, officer, or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
(e) The undersigned registrant hereby undertakes to respond to requests
for information that is incorporated by reference into the prospectus pursuant
to Items 4, 10(b), 11, or 13 of this Form, within one business day of receipt of
such request, and to send the incorporated documents by first class mail or
other equally prompt means. This includes information contained in documents
filed subsequent to the effective date of the registration statement through the
date of responding to the request.
(f) The undersigned registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective.
II-8
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused this amendment to registration statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Abilene and State of
Texas on the 5th day of July, 1996.
PITTENCRIEFF COMMUNICATIONS, INC.
By: /s/ C.G. WHITTEN
--------------------------------------------
C.G. Whitten
SENIOR VICE PRESIDENT, GENERAL COUNSEL
AND SECRETARY
Pursuant to the requirements of the Securities Act, this amendment to
registration statement has been signed below by the following persons and in the
capacities indicated on the 5th day of July 1996.
NAME TITLE
* Chairman of the Board, President, and Chief
- ----------------------- Executive Officer (principal executive officer)
Warren D. Harkins
* Chief Financial Officer, Vice President--Finance,
- ---------------------- Treasurer, and Assistant Secretary (principal
Thomas R. Modisett financial officer and principal accounting
officer)
* Director
- ----------------------
Dale N. Hatfield
* Director
- ----------------------
Donald S. Heaton
* Director
- ----------------------
Herbert T. Hensley
* Director
- ----------------------
George K. Hertz
* Director
- ----------------------
James P. Hynes
* Director
- ----------------------
William C. Kennedy, Jr.
/S/ C.G. WHITTEN Director, Senior Vice President, General Counsel
- ---------------------- and Secretary
C.G. Whitten
*By: /S/ C.G. WHITTEN
- ----------------------
C.G. Whitten
ATTORNEY-IN-FACT
II-9
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION SEQUENTIALLY
NUMBERED PAGE
<S> <C> <C>
*2.1 -- Purchase Agreement dated as of July 14, 1994, between A&B,
doing business as Pittencrieff Communications, Inc., and
South Mountain Communications, Hidden Valley Ranch, Inc.,
Stageline Ranches, Inc., Veco Ranches, Inc., Richard A.
Boulais, and Gladys M. Boulais (incorporated by reference to
Exhibit 10.2 to Registrant's quarterly report on Form 10-Q
for the quarterly period ended June 30, 1994)
*2.1.1 -- First Amendment to, and Modification of, Purchase Agreement
dated as of September 1, 1994, between A&B, doing business
as Pittencrieff Communications, Inc. and South Mountain
Communications, Hidden Valley Ranch, Inc., Stageline
Ranches, Inc., Veco Ranches, Inc., Richard A. Boulais, and
Gladys M. Boulais
*2.1.2 -- Second Amendment to, and Modification of, Purchase Agreement
dated as of September 15, 1994, between A&B, doing business
as Pittencrieff Communications, Inc. and South Mountain
Communications, Hidden Valley Ranch, Inc., Stageline
Ranches, Inc., Veco Ranches, Inc., Richard A. Boulais, and
Gladys M. Boulais (incorporated by reference to Exhibit 2.3
to Registrant's Current Report on Form 8-K dated September
28, 1994)
*2.2 -- Purchase Agreement dated as of August 1, 1994, between A&B,
doing business as Pittencrieff Communications, Inc., and
Rowley Communications Corp. (incorporated by reference to
Exhibit 10.3 to Registrant's quarterly report on Form 10-Q
for the quarterly period ended June 30, 1994)
*2.2.1 -- Amendment No. 1 to Purchase Agreement executed as of
November 7, 1994, by and between Rowley Communications Corp.
and A&B and the Registrant (incorporated by reference to
Exhibit 10.5 to Registrant's quarterly report on Form 10-Q
for the quarterly period ended September 30, 1994)
*2.2.2 -- Amendment No. 2 to Purchase Agreement dated as April 5,
1995, by and among Rowley Communications Corp. and A&B and
the Registrant
*2.2.3 -- Stock Security and Escrow Agreement dated as of April 5,
1995, by and among A&B and the Company and Rowley
Communications Corp.
2.3 -- [Intentionally left blank]
*2.4 -- Purchase Agreement dated as of October 21, 1994, by and
between Bis-Man Mobile Phone, Inc., and Leischner Electric,
Inc., and the Registrant
*2.5 -- Addendum No. 1 to Purchase Agreement dated as of November 1,
1994, by and between Bis-Man Mobile Phone, Inc., and
Leischner Electric, Inc., and the Registrant (incorporated
by reference to Exhibit 10.4 to the Registrant's quarterly
report on Form 10-Q for the quarterly period ended
September 30, 1994)
*3.1 -- Certificate of Incorporation of the Registrant (incorporated
by reference to Exhibit 3.1 to Registrant's Form S-4
Registration Statement No. 33-96252)
<PAGE>
*3.2 -- By-Laws of the Registrant (incorporated by reference to
Exhibit 3.2 to Registrant's Form S-4 Registration Statement
No. 33-96252)
*4.1 -- Form of certificate representing shares of Registrant's
common stock (incorporated by reference to Exhibit 4.1 to
Registrant's Form S-4 Registration Statement No. 33-96252)
*5.1 -- Legal Opinion of Gardere & Wynne, L.L.P., regarding legality
of securities being registered
*10.1 -- Memorandum of Association and Articles of Association of
Commsco (incorporated by reference to Exhibit 10.1 to
Registrant's Form S-4 Registration Statement No. 33-76820)
*10.2 -- Group Reorganization Agreement dated May 12, 1994, between
PLC, Resources, Commsco, and the Company (incorporated by
reference to Exhibit 10.2 to Registrant's Form S-4
Registration Statement No. 33-76820)
*10.3 -- Communications Transfer Agreement dated May 12, 1994,
between PLC and Commsco (incorporated by reference to
Exhibit 10.3 to Registrant's Form S-4 Registration Statement
No. 33-76820)
*10.4 -- Share Transfer Agreement dated May 12, 1994, between PLC and
Resources (incorporated by reference to Exhibit 10.4 to
Registrant's Form S-4 Registration Statement No. 33-76820)
*10.5 -- Indemnification Agreement dated May 12, 1994, between the
Registrant and Resources and its subsidiaries (incorporated
by reference to Exhibit 10.5 to Registrant's Form S-4
Registration Statement No. 33-76820)
10.6 -- [Intentionally left blank]
*10.7 -- Service Agreement between PLC and Robert John Wolsey dated
September 6, 1991 (incorporated by reference to Exhibit 10.1
to Registrant's Form S-1 Registration Statement No. 33-
62128)
*10.7.1 -- Termination Agreement and Mutual Release dated April 28,
1994, between the Registrant, PLC, and Robert J. Wolsey
(incorporated by reference to Exhibit 10.7.1 to Registrant's
Form S-4 Registration Statement No. 33-76820)
*10.8 -- Employment Agreement dated as of October 1, 1993, between
the Registrant and Douglas S. Sinclair (incorporated by
reference to Exhibit 10.8 to Registrant's Form S-4
Registration Statement No. 33-76820)
*10.9 -- Executive Employment Agreement dated as of February 22, 1996
between the Registrant and Warren D. Harkins
*10.10 -- Executive Employment Agreement dated as of February 22,
1996, between the Registrant and Dale E. Harkins
*10.11 -- Executive Employment Agreement dated as of February 22,
1996, between the Registrant and Thomas R. Modisett
*10.12 -- Noncompetition Agreement dated as of June 21, 1993, between
the Registrant and Robert J. Wolsey (incorporated by
reference to Exhibit 10.13 to Registrant's Form S-4
Registration Statement No. 33-76820)
10.13 -- [Intentionally left blank]
10.14 -- [Intentionally left blank]
*10.15 -- Pittencrieff Communications, Inc. 1993 Stock Option Plan,
including form of Incentive Stock Option Agreement and
Nonqualified Stock Option Agreement (incorporated by
reference to Exhibit 10.6 to Registrant's Form S-1
Registration Statement No. 33-62128)
<PAGE>
*10.16 -- Form of Option Put Agreement dated as of May 1, 1993,
between the Registrant and certain officers and employees of
the Registrant (incorporated by reference to Exhibit 10.7 to
Registrant's Form S-1 Registration Statement No. 33-62128)
*10.17 -- Form of Indemnification Agreement with independent directors
(incorporated by reference to Exhibit 10.15 to Registrant's
Form S-1 Registration Statement No. 33-62128)
*10.18 -- Form of Management Agreement for management of SMR licenses
(incorporated by reference to Exhibit 10.16 to Registrant's
Form S-1 Registration Statement No. 33-62128)
*10.19 -- Tax Sharing Agreement dated as of June 22, 1993, between the
Registrant, Ukatex, A&B, PAI, Hydro-Cut Systems, Inc.,
Macnamee Services International, Inc., Commercial Radio
Service, Inc., Mounts Tower Leasing, Inc., J&J Systems,
Inc., and Keldon Oil Company (incorporated by reference to
Exhibit 10.19 to Registrant's Form S-4 Registration
Statement No. 33-76820)
*10.20 -- Purchase Agreement dated as of March 1, 1994, between the
Registrant and WTX Incorporated (incorporated by reference
to Exhibit 10.20 to Registrant's Form S-4 Registration
Statement No. 33-76820)
10.21 -- [Intentionally left blank]
10.22 -- [Intentionally left blank]
10.23 -- [Intentionally left blank]
10.24 -- [Intentionally left blank]
*10.25 -- Enhanced Specialized Mobile Relay System Equipment Purchase
Agreement dated as of April 28, 1994, between the Registrant
and Motorola (incorporated by reference to Exhibit 10.7 to
Registrant's quarterly report on Form 10-Q for the quarterly
period ended March 31, 1994)
10.26 -- [Intentionally left blank]
*10.27 -- Executive Employment Agreement dated as of February 22,
1996, between the Registrant and C.G. Whitten
*10.28 -- Letter Agreement dated as of July 12, 1994, between the
Registrant and Motorola, Inc., amending that certain
Enhanced Mobile Relay System Equipment Purchase Agreement
dated as of April 28, 1994 (incorporated by reference to
Exhibit 10.5 to Registrant's quarterly report on Form 10-Q
for the quarterly period ended June 30, 1994)
*10.29 -- Letter Agreement dated as of September 29, 1994, between the
Registrant and Motorola, Inc., amending that certain
Enhanced Mobile Relay System Equipment Purchase Agreement
dated as of April 28, 1994, as amended
*10.29.1 -- Letter Agreement dated as of November 30, 1994, between the
Registrant and Motorola, Inc., amending that certain
Enhanced Mobile Relay System Equipment Purchase Agreement
dated as of April 28, 1994, as amended
*10.29.2 -- Letter dated March 27, 1995, from Motorola, Inc., to the
Registrant acknowledging termination of that certain
Enhanced Mobile Relay System Equipment Purchase Agreement
dated as of April 28, 1994, as amended
<PAGE>
*10.30 -- Pittencrieff Communications, Inc. 1994 Non-Employee Director
Stock Option Plan, including form of Nonqualified Stock
Option Agreement (incorporated by reference to Exhibit 4.1
to Registrant's Form S-8 Registration Statement No. 33-
81738
*10.31 -- Loan Agreement dated as of September 16, 1994, by and among
the Registrant, A&B, The Toronto-Dominion Bank, Kansallis-
Osake-Pankki, and Toronto Dominion (Texas), Inc., as Agent
(incorporated by reference to Exhibit 10.1 to Registrant's
Form S-3 Registration Statement No. 33-84642)
*10.32 -- Security Agreement dated as of September 16, 1994 made by
the Registrant and A&B in favor of Toronto Dominion (Texas),
Inc. (incorporated by reference to Exhibit 10.2 to
Registrant's Form S-3 Registration Statement No. 33-84642)
*10.33 -- Pledge Agreement dated as of September 16, 1994 by and
between the Registrant and Toronto Dominion (Texas), Inc.
(incorporated by reference to Exhibit 10.3 to Registrant's
Form S-3 Registration Statement No. 33-84642)
*10.34 -- Warrant Agreement dated as of September 16, 1994 by and
between the Registrant, The Toronto-Dominion Bank, and
Kansallis-Osake-Pankki (incorporated by reference to Exhibit
10.4 to Registrant's Form S-3 Registration Statement No. 33-
84642)
*10.34.1 -- First Amendment to Loan Agreement and First Amendment to
Warrant Agreement dated as of April 18, 1995, and effective
as of March 31, 1995, among the Registrant, A&B, The Toronto
Dominion-Bank, Kansallis-Osake-Pankki, and Toronto Dominion
(Texas), Inc. (incorporated by reference to Exhibit 10.7 to
Registrant's quarterly report on Form 10-Q for the quarterly
period ended March 31, 1995)
*10.35 -- Escrow Stock Agreement dated as of September 16, 1994 by and
between the Registrant and Toronto Dominion (Texas), Inc.
(incorporated by reference to Exhibit 4.1 to Registrant's
Form S-3 Registration Statement No. 33-84642)
*10.36 -- Escrow Agreement executed on October 7, 1994, by and between
the Registrant, Toronto Dominion (Texas), Inc., and
NationsBank of Texas, N.A.
*10.37 -- Purchase and Sale Agreement dated as of December 23, 1994,
by and between the Registrant and A&B and Castle
Communications Corporation (incorporated by reference to
Exhibit 2.1 to Registrant's Current Report on Form 8-K dated
January 10, 1995)
*10.38 -- Letter Agreement dated as of January 9, 1995, by and between
the Registrant and A&B and Castle Tower Corporation,
formerly known as Castle Communications Corporation
(incorporated by reference to Exhibit 2.2 to Registrant's
Current Report on Form 8-K dated January 10, 1995)
*10.39 -- Management Agreement dated as of January 1, 1995, by and
between the Registrant and Castle Tower Corporation
(incorporated by reference to Exhibit 2.3 to the
Registrant's Current Report on Form 8-K dated January 10,
1995)
*10.40 -- License Agreement dated as of January 10, 1995, by and
between the Registrant and A&B and Castle Tower Corporation
(incorporated by reference to Exhibit 2.4 to Registrant's
Current Report on Form 8-K dated January 10, 1995)
<PAGE>
*10.41 -- Asset Purchase Agreement dated as of February 13, 1995, by
and among Potomac Corporation, A&B, and the Registrant
10.42 -- [Intentionally left blank]
*10.43 -- Warrant to Purchase Common Stock of Pittencrieff
Communications, Inc., No. S-1, dated as of June 1, 1995,
issued by Registrant to Susquehanna Financial Group, Inc.
*10.44 -- Agreement and Plan of Merger, dated as of September 5, 1995,
between the Registrant and Pittencrieff Communications,
Inc., a Delaware corporation (incorporated by reference to
Exhibit 2.1 to the Registrant's Form S-4 Registration
Statement No. 33-96252)
*10.45 -- Contribution Agreement dated as of September 5, 1995, among
the Registrant, Pittencrieff Communications, Inc., a
Delaware corporation, Advanced MobileComm of Texas L.P.,
Advanced MobileComm Southwest Limited Partnership, FFC
Communications, Inc., Viking Amusement Corporation d/b/a
Empire Mobile Communications, Bayou Communications, Inc.,
Confidential Communications Corporation, A&D Mobile Systems,
D&E Communications, Inc., Gulf States Towers, Inc., Advanced
MobileComm Southwest Corp., Metroplex Mobile Communications,
Inc., Royce Witte, for himself and d/b/a Range Unlimited and
Mobitel Communications Services, Trunked Mobile Radio
Systems, AMI, Nels Kjorvestad, Mary Kjorvestad, John David
Bell, James Alan Bell, John Holley, David E. Weisman,
individually and as trustee, Alan S. Tilles, Richard Meyer,
Jean Meyer, and J. R. Bell (incorporated by reference to
Exhibit 2.2 to the Registrant's Form S-4 Registration
Statement No. 33-96252)
*10.46 -- Amendment No. 1 to the Contribution Agreement dated as of
October 16, 1995, among Old PCI, the Registrant, and AMI, on
its own behalf and on behalf of the other AMI Parties
(incorporated by reference to Exhibit 2.3 to the
Registrant's Form S-4 Registration Statement No. 33-96252)
*10.47 -- Commercial Revolving or Draw Note, dated as of September 11,
1995, payable to First State Bank, N.A. (incorporated by
reference to Exhibit 10.48 to the Registrant's Form S-4
Registration Statement No. 33-96252)
*10.48 -- Commercial Security Agreement, dated as of September 11,
1995, between the Registrant's and First State Bank, N.A.
(incorporated by reference to Exhibit 10.49 to the
Registrant's Form S-4 Registration Statement No. 33-96252)
*10.49 -- Agreement dated as of October 26, 1995, among the
Registrant, A&B, and AMI regarding the 900 Auctions
(incorporated by reference to Exhibit 10.44 to Registrant's
Annual Report on Form 10-K for the year ended December 31,
1995)
*10.50 -- Agreement dated as of November 13, 1995, among the
Registrant, A&B, and FMR regarding the Auction Loans
(incorporated by reference to Exhibit 10.45 to Registrant's
Annual Report on Form 10-K for the year ended December 31,
1995)
*10.51 -- Promissory Note of the Registrant, dated as of November 13,
1995, payable to FMR (incorporated by reference to Exhibit
10.46 to Registrant's Annual Report on Form 10-K for the
year ended December 31, 1995)
<PAGE>
*10.52 -- Security Agreement dated as of November 13, 1995, among the
Registrant, A&B, and FMR (incorporated by reference to
Exhibit 10.47 to Registrant's Annual Report on Form 10-K for
the year ended December 31, 1995)
*10.53 -- Pledge Agreement dated as of November 13, 1995, among the
Registrant, A&B, and FMR (incorporated by reference to
Exhibit 10.48 to Registrant's Annual Report on Form 10-K for
the year ended December 31, 1995)
*10.54 -- Amended and Restated Promissory Note of the Registrant,
dated as of January 31, 1996, payable to FMR
*10.55 -- Amended and Restated Pledge Agreement, dated as of January
31, 1996, among the Registrant, certain wholly owned
subsidiaries of the Registrant, and FMR
*10.56 -- Executive Employment Agreement dated as of February 22,
1996, between the Registrant and Bradley B. Waldrip
*10.57 -- Loan Agreement dated as of March 18, 1996, between the
Registrant and First Interstate Bank of Texas, N.A.
*10.58 -- Agreement, dated as of March 18, 1996, among the Registrant,
A&B, First Interstate Bank of Texas, N.A., and FMR
*10.59 -- Revolving Promissory Note of the Registrant, dated as of
March 18, 1996, payable to First Interstate Bank of Texas,
N.A.
*10.60 -- Security Agreement, dated as of March 22, 1996, between the
Registrant and FMR
*10.61 -- Warrant to Purchase Common Stock of the Registrant, dated as
of March 18, 1996, to FMR
*10.62 -- Pittencrieff Communications, Inc. 1996 Stock Option Plan,
including form of Incentive Stock Option Agreement and
Nonqualified Stock Option Agreement
*10.63 Pittencrieff Communications, Inc. 1996 Non-Employee Director
Stock Option Plan, including form of Nonqualified Stock
Option Agreement
**10.64 -- Amended and Restated Pledge Agreement dated as of March 18,
1996, among Registrant, certain wholly owned subsidiaries of
the Registrant, and FMR
**10.65 -- Amended and Restated Security Agreement dated as of March
18, 1996, among Registrant, certain wholly owned
subsidiaries of the Registrant, and FMR
*21.1 -- List of Registrant's subsidiaries
**23.1 -- Consent of KPMG Peat Marwick LLP
*23.2 -- Consent of Gardere & Wynne, L.L.P. (included in
Exhibit 5.1)
**23.3 -- Consent by Coopers & Lybrand, L.L.P.
*24.1 -- Power of Attorney (set forth on page II-9 of Amendment No. 5
(Post-Effective) to the Registration Statement)
</TABLE>
- -----------------------
* Previously filed
**Filed herewith
<PAGE>
AMENDED AND RESTATED
PLEDGE AGREEMENT
THIS AMENDED AND RESTATED PLEDGE AGREEMENT as of March 18, 1996 (this
"AGREEMENT") among Pittencrieff Communications, Inc., a Delaware corporation
(referred to herein as the "PLEDGOR"), certain wholly-owned subsidiaries of
the Pledgor listed on Exhibit A hereto (the "COMPANIES"), and FMR Corp. (the
"HOLDER").
WITNESSETH:
WHEREAS, the Holder has agreed to furnish from time to time, in its
discretion, letters of credit ("LETTER(S) OF CREDIT") to secure the
obligations of Pledgor to First Interstate Bank of Texas, N.A. (the "BANK")
under a Loan Agreement dated March 18, 1996 (the "LOAN AGREEMENT") and under
an Agreement dated March 18, 1996 among Pledgor, Holder and the Bank (the
"TRI-PARTY AGREEMENT");
WHEREAS, as security for the payment and performance of each and every
obligation and liability, joint or several, of the Pledgor and the Companies
to the Holder, now existing or hereafter arising under the Loan Agreement and
the Tri-Party Agreement or any other document or agreement executed and
delivered pursuant thereto, and the payment and performance of each and every
other obligation of the Pledgor to the Holder with respect to the Loan
Agreement and the Tri-Party Agreement, whether now existing or hereafter
arising, whether direct or indirect, absolute or contingent, due or to become
due (collectively, the "OBLIGATIONS"), the Pledgor has agreed to execute and
deliver this Agreement; and
NOW, THEREFORE, in consideration of the foregoing and to induce the
Holder and to make the Loans and for other good and valuable consideration,
the receipt, adequacy and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. PLEDGE. The Pledgor hereby pledges, grants a security interest in,
mortgages, assigns, transfers, delivers, sets over and confirms unto the
Holder, its successors and assigns all of the Pledgor's right, title and
interest in and to the shares of common stock of the Companies, registered in
the name of the Pledgor all as described on Exhibit A hereto (the "PLEDGED
SHARES"), and the certificates representing or evidencing the Pledged Shares,
with stock powers attached duly endorsed in blank, and all proceeds, income,
profits, dividends, interest and other payments or distributions now or
hereafter made upon or with respect thereto, including, without limitation,
all securities and properties that are required to be pledged to the Holder
pursuant to SECTION 4 hereof (together with the Pledged Shares, the
"COLLATERAL"), as security for the full and prompt performance under the
Loan Agreement and the Tri-Party Agreement and for the payment in full when
due of the Obligations.
2. REPRESENTATIONS AND WARRANTIES. The Pledgor and the Companies,
jointly and severally, represent and warrant that (a) there are no
contractual restrictions upon the transfer of the Collateral and that the
Pledgor has good and valid title to the Collateral owned by the Pledgor free
and clear of any liens, charges or encumbrances thereon or affecting the
title thereto; (b) each of the Companies is a corporation duly organized,
validly existing and in good standing under the laws of its jurisdiction of
incorporation and has the corporate power and holds all licenses necessary to
carry
<PAGE>
-2-
on its business as it is being conducted; (c) the Pledged Shares have been
duly and validly authorized and issued and are fully paid and non-assessable
and constitute all of the issued and outstanding shares of common stock of
each of the Companies; (d) no shares of capital stock of the Companies having
voting rights, actually or contingently, other than the Pledged Shares, are
outstanding; (e) there are no outstanding subscriptions, warrants, calls,
options, rights, commitments, securities or agreements calling for the
issuance of, or convertible or exchangeable into, any shares of capital stock
of the Companies or for the issuance of any securities convertible or
exchangeable, actually or contingently, into such shares; (f) the Pledgor has
full power, authority and legal right and all approvals required by law to
pledge the Collateral to the Holder hereby; (g) the Pledgor and the Companies
each have full power, authority and legal right and any approval required by
law to enter into and carry out the terms, provisions and agreements hereof
and to make the representations and warranties contained herein; (h) the
execution, delivery and performance of this Agreement by the Companies and
the Pledgor and the delivery of the Pledged Shares by the Pledgor does not
contravene and will not result in the breach of any of the terms and
provisions of, or constitute a default under the Certificate of Incorporation
or By-laws of any Company or the Pledgor or, any note, indenture, mortgage,
deed of trust, agreement, commitment, contract, or other instrument,
obligation or restriction affecting any Company, the Pledgor or any property
thereof, or violate any existing law, order, regulation, writ, injunction or
decree of any government, governmental instrumentality, agency or body,
arbitration tribunal, or court, domestic or foreign, having jurisdiction over
any Company, the Pledgor or the property thereof; (i) the execution and
delivery of this Agreement and the delivery of the Pledged Shares to the
Holder creates a duly perfected first and prior possessory security interest
in the Pledged Shares in the Holder's favor; and (j) this Agreement
represents the legal, valid and binding obligation of the Pledgor and any
Company enforceable against each of them in accordance with its terms.
3. COVENANTS. The Pledgor covenants and agrees that the Pledgor (a)
shall not sell, assign, exchange, or otherwise transfer or grant any option
with respect to any of the Pledgor's rights to the Collateral and shall not
permit any Company to dispose of any of its assets except in the ordinary
course of its business, (b) shall not create or suffer to exist any lien,
security interest or other charge or encumbrance against, in or with respect
to any of the Collateral and the security interest thereon conveyed to the
Holder by this Agreement and shall defend the Holder's interest in the
Collateral against the claims of all Persons. The Pledgor and the Companies,
jointly and severally, covenant and agree that (i) neither the Companies nor
the Pledgor shall knowingly or negligently (with or without knowledge) take
any action which would in any manner impair the value of any of the
Collateral, and (ii) no additional shares of capital stock or other
securities of the Companies having voting rights, actually or contingently,
shall be issued, sold or otherwise disposed of by the Companies or the
Pledgor after the date hereof.
4. STOCK DIVIDENDS; REORGANIZATIONS. In the event of any one or more
reclassifications, changes, exchanges, stock splits, stock dividends, stock
consolidations, or other subdivisions or combinations of the shares of any
class of any Company's capital stock or of any immediate or remote successor
to substantially all of any Company's business or assets pursuant to any one
or more of the events described in this sentence, or consolidations of any
Company or any such successor with, or mergers of any Company or any such
successor into, other corporations, or other recapitalizations or
reorganizations affecting any Company or any such successor, or any one or
more sales or conveyances to another corporation of any Company's property or
any such successor as an entirety or substantially as an entirety (a
"REORGANIZATION"), the Pledgor shall pledge as
<PAGE>
-3-
collateral hereunder all securities and property which come to the Pledgor as
a result of that and subsequent Reorganizations, except for securities and
property surrendered or canceled pursuant to any of same, along with
appropriate stock transfer powers duly endorsed in blank, and all other
instruments the Holder may deem necessary or desirable to vest or confirm
title to the same or facilitate foreclosure, assignment, sale or other
transfer thereof. Such securities and property shall stand pledged and
assigned in the same manner as the property described in SECTION 1 hereof
and the term "PLEDGED SHARES" shall include such securities and property.
5. RECORD OWNERSHIP, VOTING POWER, DIVIDENDS, ETC.
(a) The Holder may at any time or from time to time, in its sole
discretion, cause any or all of the Pledged Shares to be transferred of
record into its own name or in the name of its nominee. The Pledgor will
promptly give to the Holder copies of any notices or other communications
received by it with respect to the Pledged Shares registered in the name of
the Pledgor.
(b) Unless and until an Event of Default (as hereinafter defined in
SECTION 9) or an event which with the passage of time or giving of notice,
or both, would constitute an Event of Default has occurred, the Pledgor
shall have the right to exercise all voting, consensual and other powers of
ownership pertaining to the Pledged Shares, and the Pledgor shall be
entitled to receive and retain any dividends on the Pledged Shares paid in
cash out of earned surplus of each Company; provided, however, that no vote
shall be cast or consent given which would be inconsistent with or violate
any of the provisions of this Agreement or the Tri-Party Agreement.
(c) If any Event of Default shall have occurred and be continuing,
then, and whether or not the Holder seeks or pursues any other relief or
remedy available to the Holder under this Agreement or at law,
(i) the Pledgor shall vote and exercise all consensual and other
powers of ownership pertaining to the Collateral in such manner as the
Holder in its sole and absolute discretion may direct as necessary,
appropriate or advisable, and, if the Holder shall so request in
writing, the Pledgor agrees to execute and deliver to the Holder such
additional authorizations, proxies, dividends and such other documents
as the Holder may request to secure to the Holder the rights, powers
and authorities intended to be conferred upon Holder by this
SUBSECTION (c); and
(ii) all dividends and other distributions on or in respect of
the Pledged Shares shall be paid directly to the Holder and be
retained by it as part of the Collateral, subject to the terms of this
Agreement, and, if the Holder shall so request in writing, the Pledgor
shall execute and deliver to the Holder appropriate additional
dividend, distribution and other orders and documents to that end.
6. SALE OF COLLATERAL AFTER AN EVENT OF DEFAULT. If any Event of Default
shall have occurred and be continuing, then, at the Holder's option, the
Holder may apply the cash, if any, then held by it as collateral hereunder,
for the purposes and in the manner provided in SECTION 7 hereof, or if there
shall be no such cash or the cash so applied shall be insufficient to make in
full all payments
<PAGE>
-4-
provided in SUBSECTIONS (a) and (b) of SECTION 7 hereof, the Holder may in
addition to any other rights and remedies the Holder may otherwise have, and
without further demand, advertisement or notice, except as expressly
provided for in SUBSECTION (a) of this SECTION 6:
(a) elect to sell the Collateral, or any part thereof, in one or more
sales, at public or private sale, conducted by any officer or agent of, or
auctioneer or attorney for, the Holder, at the Holder's place of business
or elsewhere, for cash or on credit, and at such reasonable prices as the
Holder shall determine, and the Holder may be the purchaser of any or all
of the Collateral so sold. The Holder may, in its sole discretion, at any
such sale restrict the prospective bidders or purchasers as to their
number, nature of business and investment intention, including, without
limitation, a requirement that the Persons making such purchases represent
and agree to the satisfaction of the Holder that they are purchasing the
Collateral for their account, for investment, and not with a view to the
distribution or resale of any thereof. Upon any such sale the Holder shall
have the right to deliver, assign and transfer the Collateral so sold
directly to the purchaser thereof. Each purchaser (including the Holder)
at any such sale shall hold the Collateral so sold, absolutely free from
any claim or right of whatever kind, including, without limitation, any
equity or right of redemption, of the Pledgor, which the Pledgor hereby
specifically waives, to the extent the Pledgor may lawfully do so, and all
rights of redemption, stay or appraisal which the Pledgor has or may have
under any rule of law or statute now existing or hereafter adopted. The
Holder shall give the Pledgor at least ten (10) days' written notice (which
shall constitute reasonable notice) of any public or private sale and such
notice shall state the time and place fixed for such sale. Any such public
sale shall be held at such time or times within ordinary business hours as
the Holder shall fix in the notice of such sale. At any such sale the
Collateral may be sold in one lot as an entirety or in separate lots. The
Holder shall not be obligated to make any sale pursuant to any such notice.
The Holder, without notice or publication, may adjourn any public or
private sale from time to time by announcement at the time and place fixed
for such sale, or any adjournment thereof, and any such sale may be made at
any time or place to which the same may be so adjourned without further
notice or publication. In case of any sale of all or any part of the
Collateral on credit, the Collateral so sold may be retained by the Holder
until the selling price is paid by the purchaser thereof, but the Holder
shall not incur any liability in case of the failure of such purchaser to
take up and pay for the Collateral so sold, and in case of any such
failure, such Collateral may again be sold under and pursuant to the
provisions hereof; or
(b) proceed by a suit or suits at law or in equity to foreclose upon
the pledge created under this Agreement and sell the Collateral, or any
portion thereof, under a judgment or decree of a court or courts of
competent jurisdiction.
The Holder, as attorney in fact pursuant to SECTION 11 hereof, may, in
the name and stead of the Pledgor, make and execute all conveyances,
assignments and transfers of the Collateral sold pursuant to SUBSECTION (a)
or (b) of this SECTION 6. If so requested by the Holder, the Pledgor shall
ratify and confirm any sale or sales by executing and delivering to the
Holder or to such purchaser or purchasers, all such instruments as may, in
the judgment of the Holder, be reasonably necessary or appropriate for such
purpose.
<PAGE>
-5-
The receipt of the Holder for the purchase money paid at any such sale
made by it shall be a sufficient discharge therefor to any purchaser of the
Collateral, or any portion thereof, sold as aforesaid and no such purchaser
(or his or its representatives or assigns), after paying such purchase money
and receiving such receipt, shall be bound to see to the application of such
purchase money or any part thereof or in any manner whatsoever be answerable
for any loss, misapplication or nonapplication of any such purchase money, or
any part thereof, or be bound to inquire as to the authorization, necessity,
expediency or regularity if any such sale.
The curing of any Event of Default shall not divest the Holder of its
rights under this SECTION 6 or any other provision of this Agreement unless
and until the Holder waives said rights in writing.
7. APPLICATION OF PROCEEDS. The proceeds of any sale, or of collection,
of all or any part of the Collateral shall be applied by the Holder, without
any marshaling of assets, towards payment of the items immediately set forth
below, in the following order:
(a) all costs and expenses of such sale, including, without
limitation, reasonable compensation to the Holder and its agents, attorneys
and counsel, and all other reasonable expenses, liabilities and advances
made or incurred by the Holder in connection therewith; and
(b) the Obligations (in such order as the Holder, in its sole and
absolute discretion, shall determine), after which, any surplus from such
proceeds shall be paid to the Pledgor and the Pledgor's successors,
assigns, heirs, executors or administrators, or to whomever may be lawfully
entitled to receive the same or as a court of competent jurisdiction may
direct.
8. PRIVATE SALES.
(a) The Pledgor recognizes that the Holder may be unable to effect a
public sale of any or all of the Collateral, by reason of certain
prohibitions contained in the Securities Act and applicable state
securities laws or otherwise, and may be compelled to resort to one or more
private sales thereof to a restricted group of purchasers which will be
obliged to agree, among other things, to acquire such securities for their
own account for investment and not with a view to the distribution or
resale thereof. The Pledgor acknowledges and agrees that any such private
sale may result in prices and other terms less favorable to the Holder than
if such sale were a public sale. The Pledgor agrees that private sales
made under the foregoing circumstances shall be deemed to have been made in
a commercially reasonable manner.
(b) The Pledgor and each Company each further agrees to use its best
efforts to do or cause to be done all such other acts as may be necessary
to make any sale or sales of all or any portion of the Collateral pursuant
to this SECTION 8 valid and binding and in compliance with any and all
other applicable requirements of law. The Pledgor and each Company each
further agrees that a breach of any of the covenants contained in this
SECTION 8 will cause irreparable injury to the Holder, that the Holder has
no adequate remedy at law in respect of such breach and, as a consequence,
that each and every covenant contained in this SECTION 8 shall be
specifically enforceable against the Pledgor and each Company, and the
Pledgor and each Company each hereby waives and agrees not to assert any
defenses
<PAGE>
-6-
against an action for specific performance of such covenants except for a
defense that no Event of Default has occurred under this Agreement.
9. EVENT OF DEFAULT. For purposes of this Agreement, an Event of Default
shall mean the occurrence of any one of the following events:
(a) any default by either the Pledgor or any Company in the due
observance or performance of any covenant or agreement of the Pledgor or
any Company, as the case may be, contained herein or any breach by either
the Pledgor or any Company of any representation or warranty herein
contained, and, in each case, failure by the defaulting party or parties to
cure such default within fifteen (15) days after the date such party or
parties first become aware of such default or the date of notice of such
default, whichever shall first occur; or
(b) any draw under any Letter of Credit by the Bank.
10. OBLIGATIONS WITH RESPECT TO PLEDGED SHARES. The Holder shall have no
duty as to the collection or protection of the Collateral or any income
thereon, nor as to the preservation of any rights pertaining thereto beyond
the safe custody thereof. The Holder may exercise its rights with respect to
the Collateral without resorting or regard to other security or sources of
reimbursement.
11. HOLDER APPOINTED ATTORNEY IN FACT. The Holder is hereby appointed
the attorney-in fact, with full power of substitution, of the Pledgor for the
purpose of carrying out the provisions of this Agreement and taking any
action and executing any instruments which such attorney-in-fact may deem
necessary or advisable to accomplish the purposes hereof. This power of
attorney, being coupled with an interest, shall be irrevocable until all of
the Obligations have been fully paid and performed and shall not be affected
by any disability or incapacity which the Pledgor may suffer and shall
survive the same. The power of attorney conferred on the Holder pursuant to
the provisions of this SECTION 11 is provided solely to protect the interests
of the Holder and shall not impose any duty on the Holder to exercise any
such power, and neither the Holder nor such attorney in-fact shall be liable
for any act, omission, error in judgment or mistake of law, except as the
same may result from its gross negligence or willful misconduct.
12. NO WAIVER. No failure on the part of the Holder to exercise, and no
delay on the part of the Holder in exercising, any right, power or remedy
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise by the Holder of any right, power or remedy hereunder preclude any
other or further right, power or remedy. The remedies herein provided are
cumulative, may be exercised singly or concurrently and are not exclusive of
any remedies provided by law.
13. TERMINATION OF PLEDGE. This pledge shall remain in effect until all
of the Obligations have been paid and satisfied in full. The Holder shall
forthwith assign, transfer and deliver to the Pledgor without representation,
warranty or recourse, against appropriate receipts, all the Pledged Shares,
if any, then held by it in pledge hereunder.
14. GOVERNING LAW. This Agreement and any other instruments executed and
delivered to evidence, complete, or perfect the transactions contemplated
hereby will be interpreted, construed,
<PAGE>
-7-
applied and enforced in accordance with the laws (other than the laws
governing conflicts of laws) of The State of Texas, and any action thereon
shall be brought in Taylor County, Texas.
15. FURTHER ASSURANCES. At any time and from time to time, upon request
by the Holder, each Company and the Pledgor shall promptly make, execute and
deliver, or cause to be made, executed and delivered, to the Holder and,
where appropriate, cause to be recorded and/or filed at such time and in such
offices and places as shall be deemed desirable by the Holder, any and all
such other and further amendments, assignments, instruments of further
assurance, certificates and other documents as the Holder may deem desirable
to effectuate, complete, or perfect, or to continue and preserve the
obligations of the Companies and the Pledgor under this Agreement.
16. NOTICES. Any notice, request, demand, statement or consent made
hereunder shall be in writing and shall be deemed duly given if personally
delivered, sent by certified mail, return receipt requested, or sent by a
nationally recognized commercial overnight delivery service with provisions
for a receipt, postage or delivery charges prepaid, and shall be deemed given
(i) upon receipt, if sent by certified mail or (ii) the next business day
after placed in the possession of such an overnight delivery service and
shall be addressed as follows:
If to the Pledgor
or the Companies: 1 Village Drive
Suite 500
Abilene, Texas 79608
Attention: President and General Counsel
If to the Holder: 82 Devonshire Street
Boston, Massachusetts 02109
or at such other place as any party hereto may from time to time hereafter
designate to the others in writing. Any notice given to the Pledgor or to
the Companies from the Holder shall not imply that such notice or any further
or similar notice was or is required.
17. AMENDMENTS AND MODIFICATIONS. This Agreement, the Security Agreement
and the Tri-Party Agreement of even date herewith between the parties set
forth the entire agreement of the parties with respect to the subject matter
hereof and may not be amended, modified, revised or terminated except by an
agreement in writing signed by the party against whom enforcement is sought.
18. INVALIDITY. If any provision of this Agreement or the application
thereof to any person or circumstance, for any reason and to any extent,
shall be held to be invalid or unenforceable, neither the remainder of this
Agreement nor the application of such provision to any other person or
circumstance shall be affected thereby, but rather the same shall be enforced
to the greatest extent permitted by law.
19. SUCCESSORS AND ASSIGNS; JOINT AND SEVERAL LIABILITY. The provisions
of this Agreement shall be binding on the Pledgor and the Companies and their
respective heirs, executors, administrators, legal representatives,
successors and assigns and this Agreement and all of the covenants herein
contained shall inure to the benefit of the Holder and the Holders successors
and assigns. Where
<PAGE>
-8-
more than one person shall execute this Agreement on behalf of the Pledgor
and/or the Companies, then each such person shall be fully liable for all of
the obligations of the Pledgor and/or the Companies hereunder and all such
obligations shall be joint and several. Neither party may assign its rights
hereunder.
20. CAPTIONS AND HEADINGS. The captions and headings set forth in this
Agreement are included for convenience and reference only and the words
contained therein shall in no way be held or deemed to define, limit,
describe, explain, modify, amplify and/or add to the interpretation,
construction or meaning of, or the scope or intent of, this Agreement or any
part hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement under
seal on the day and year first above written.
PITTENCRIEFF COMMUNICATIONS, INC.
By: /s/ C.G. WHITTEN
________________________________
Name: C.G. Whitten
Title: Senior Vice President
FMR CORP.
By: /s/ JOHN D. KRUMRINE
________________________________
Name: John D. Krumrine
Title: Treasurer
A&B ELECTRONICS, INC.
By: /s/ C.G. WHITTEN
________________________________
Name: C.G. Whitten
Title: Vice President
A&D MOBILE SYSTEMS, INC.
By: /s/ C.G. WHITTEN
________________________________
Name: C.G. Whitten
Title: Vice President
ADVANCED MOBILECOMM SOUTHWEST
CORP.
By: /s/ C.G. WHITTEN
________________________________
Name: C.G. Whitten
Title: Vice President
<PAGE>
-9-
BAYOU COMMUNICATIONS, INC.
By: /s/ C.G. WHITTEN
__________________________________
Name: C.G. Whitten
Title: Vice President
CONFIDENTIAL COMMUNICATIONS
CORPORATION
By: /s/ C.G. WHITTEN
__________________________________
Name: C.G. Whitten
Title: Vice President
D&E COMMUNICATIONS, INC.
By: /s/ C.G. WHITTEN
__________________________________
Name: C.G. Whitten
Title: Vice President
FFC COMMUNICATIONS, INC.
By: /s/ C.G. WHITTEN
__________________________________
Name: C.G. Whitten
Title: Vice President
METROPLEX MOBILE COMMUNICATIONS,
INC.
By: /s/ C.G. WHITTEN
__________________________________
Name: C.G. Whitten
Title: Vice President
VIKING AMUSEMENT CORPORATION
d/b/a Empire Mobile Communications
By: /s/ C.G. WHITTEN
__________________________________
Name: C.G. Whitten
Title: Vice President
<PAGE>
EXHIBIT A
NUMBER OF SHARES
NAME OF SUBSIDIARY OF COMMON STOCK PLEDGED
------------------ -----------------------
A&B 352
Viking Amusement Corporation 100
Metroplex Mobile Communications, Inc. 1,000
FFC Communications, Inc. 166.64
D&E Communications, Inc. 1,000
Confidential Communications Corporation 93,000
Bayou Communications, Inc. 10,020
A&D Mobile Systems, Inc. 5,020
Advanced MobileComm Southwest Corp. 1,000
<PAGE>
AMENDED AND RESTATED
SECURITY AGREEMENT
THIS AMENDED AND RESTATED SECURITY AGREEMENT dated as of March 18, 1996
(this "AGREEMENT") between PITTENCRIEFF COMMUNICATIONS, INC., a Delaware
corporation ("PCI"), certain wholly-owned subsidiaries of PCI that are
identified on Exhibit A hereto (the "COMPANIES") and together with PCI and
their respective successors and assigns, "DEBTOR"), and FMR CORP., a
Massachusetts corporation (in such capacity, together with its successors and
assigns, the "SECURED PARTY").
W I T N E S S E T H:
WHEREAS, the Secured Party has agreed to furnish from time to time, in
its discretion, letters of credit ("LETTER(S) OF CREDIT") to secure the
obligations of PCI to First Interstate Bank of Texas, N.A. (the "BANK") under
a Loan Agreement dated March 18, 1996 (the "LOAN AGREEMENT") and under an
Agreement dated March 18, 1996 among PCI, the Secured Party and the Bank (the
"TRI-PARTY AGREEMENT");
WHEREAS, as security for the payment and performance of each and every
obligation and liability of Debtor to the Secured Party, now existing or
hereafter arising under the Loan Agreement and the Tri-Party Agreement or any
other document or agreement executed and delivered pursuant hereto or
thereto, whether direct or indirect, absolute or contingent, due or to become
due (collectively, the "OBLIGATIONS"), Debtor has agreed to grant to the
Secured Party a prior and perfected lien and security interest under
applicable laws upon certain of the assets, equipment, properties and rights
of Debtor.
NOW, THEREFORE, in consideration of the foregoing and to induce the
Secured Party, to provide the Loan Agreement and Tri-Party Agreement and for
other good and valuable consideration, the receipt, adequacy and sufficiency
of which are hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. TERMS. As used herein the following terms shall have the
meanings specified and shall include in the singular number the plural and in
the plural number the singular:
"COLLATERAL" means all of Debtor's right, title and interest in and under
or arising out of all and any personal property, intangibles and fixtures of
any type or description, wherever located and now existing or hereafter
arising, or which constitute or arise from the acquisition, ownership,
operation, maintenance, repair, replacement or substitution or disposition of
the SMR Systems described in Schedule 1 or any portion thereof, together with
any and all additions and accessions thereto and replacements, products and
proceeds (including, without limitation proceeds of insurance) thereof,
including but not limited to the Equipment:
"EQUIPMENT" means all machinery, equipment, furniture, fixtures, radios,
transmitters, receivers, repeaters, isolators, combiners, validators,
antennae, cables, towers, radio testing and maintenance equipment and
computer hardware, and any contracts or commitments to purchase
<PAGE>
-2-
any of the foregoing, which relate to the acquisition, ownership, operation,
maintenance, repair, replacement or substitution or disposition of the SMR
Systems or any portion thereof, together with all repairs, replacements,
improvements, substitutions, extensions or renewals thereof or additions
thereto, all parts, additions and accessories incorporated therein or affixed
thereto.
"EVENT OF DEFAULT" has the meaning stated in SECTION 6.
"SMR SYSTEMS" shall mean the specialized mobile radio systems owned or
managed by the Debtor from time to time and described on Schedule 1.
SECTION 2. SECURITY INTEREST. As security for the prompt payment and
performance of all the Obligations, Debtor does hereby grant and assign to
the Secured Party, its successors and assigns and all other holders from time
to time of the Obligations, a continuing security interest under the Uniform
Commercial Code from time to time in effect in the jurisdiction in which any
of the Collateral is located in and upon all of its right, title and interest
in and to the Collateral, together with any and all additions and accessions
thereto and replacements, products and proceeds thereof, whether now existing
or hereafter arising or acquired and wherever located.
SECTION 3. GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS. Debtor,
jointly and severally, represents, warrants and covenants, which
representations, warranties and covenants shall survive execution and
delivery of this Agreement, as follows:
(a) Each of the warranties and representations of Debtor contained
herein and otherwise in writing in connection herewith or therewith are true
and correct on the date hereof.
(b) Debtor is, and as to the Collateral acquired from time to time after
the date hereof Debtor will be, the owner of all the Collateral free from any
lien, security interest, encumbrance or other right, title or interest of any
Person, except for the security interest of the Secured Party therein and
except for a security interest in a portion of the personal property held by
Castle Tower Corporation ("CASTLE") which Debtor will use its best efforts to
subordinate to the security interest provided for herein, and subject to the
Castle security interest, and Debtor shall defend the Collateral against all
claims and demands of all Persons at any time claiming the same or any
interest therein adverse to the Secured Party. Subsequent to the
subordination of the Castle security interest, the lien granted in this
Agreement by Debtor to the Secured Party in the Collateral is not prohibited
by and does not constitute a default under any agreements or other
instruments constituting a part of the Collateral, and no consent is required
of any Person to effect such lien which has not been obtained.
(c) There is no financing statement (or similar statement or instrument
of registration under the law of any jurisdiction) now on file or registered
in any public office covering any interest of any kind in the Collateral, or
intended so to be, which has not been terminated, except financing statements
heretofore filed by Castle, which Debtor will use its best efforts to
subordinate to the security interest created hereby, and as long as this
Agreement remains in effect or any of the Obligations to the Secured Party
remain unpaid, Debtor will not execute and
<PAGE>
-3-
there will not be on file in any public office any financing statement (or
similar statement or instrument of registration under the law of any
jurisdiction) or statements relating to the Collateral, except financing
statements filed or to be filed in respect of and covering the security
interest of the Secured Party, or relating to financial statements
representing security interests that are owned by Castle, that will be
hereafter subordinated to the security interest created hereby.
(d) The chief executive offices and chief places of business of Debtor
are at One Village Drive, Suite 500, Abilene, Texas 79608, and Debtor will
not move its chief executive office or its chief place of business or
operations except to such new location as Debtor may establish in accordance
with this SECTION 3(d). The originals of all documents evidencing Collateral
and the only original books of account and records of Debtor relating thereto
are, and will continue to be, kept at such chief executive office or at such
new location as Debtor may establish in accordance with this SECTION 3(d).
Debtor shall establish no such new location until (i) it shall have given to
the Secured Party not less than 10 days' prior written notice of its
intention to do so, clearly describing such new location and providing such
other information in connection therewith as the Secured Party may reasonably
request, and (ii) with respect to such new location, it shall have taken such
action, satisfactory to the Secured Party (including, without limitation, all
action required by SECTION 5 hereof), to maintain the security interest of
the Secured Party in the Collateral intended to be granted at all times fully
perfected and in full force and effect.
(e) All tangible personal property owned on the date hereof by Debtor to
be used in connection with the construction, operation or maintenance of the
SMR Systems, or any portion thereof, is located at the applicable SMR
Systems. Debtor agrees that (i) all such property held by Debtor on the date
hereof, once at the location of the applicable SMR System, shall remain at
the location of the applicable SMR System and (ii) all such property
subsequently acquired by Debtor shall immediately upon acquisition be
transferred to and remain at the location of the applicable SMR System.
(f) At Debtor's own expense, Debtor will: (i) keep the Collateral fully
insured, and (ii) upon request, promptly deliver the insurance policies or
certificates thereof to the Secured Party.
(g) The Secured Party is authorized (but is under no obligation) to
make, upon ten business days' notice to Debtor (except in the case of exigent
circumstances, in which circumstances upon such notice, if any, as may then
be reasonably practical), any payments which in the Secured Party's opinion
are necessary to:
(i) discharge any liens which have or may take priority over the lien
hereof; and
(ii) pay all premiums payable on the insurance policies referred to herein
upon the failure of Debtor to make such payments within the time
permitted therein.
Debtor shall have no claim against the Secured Party by reason of its
decision not to make any payments or perform such obligations permitted under
this SECTION 3(g). Debtor shall repay to
<PAGE>
-4-
the Secured Party upon demand any sums paid by the Secured Party. Any sums
paid and expenses incurred by the Secured Party pursuant to this paragraph
shall bear interest at the overdue rate set forth in the promissory note of
even date herewith issued by Debtor to the Bank.
(h) Debtor will not sell, transfer, change the registration, if any, of,
dispose of, attempt to dispose of, or substantially modify or abandon the
Collateral or any material part thereof, except that so long as no Default or
Event of Default has occurred and is continuing, the disposition in the
ordinary course of business of items of Equipment shall not be prohibited.
Debtor will not create, incur, assume or suffer to exist any lien upon any of
the Collateral without the prior written consent of the Secured Party.
(i) Debtor will not assert against the Secured Party any claim or
defense which Debtor may have against any seller of the Collateral or any
part thereof or against any Person with respect to the Collateral or any part
thereof.
(j) Debtor will upon demand pay to the Secured Party the amount of any
and all reasonable expenses, including the reasonable fees and expenses of
its counsel and of any experts and agents, which the Secured Party may incur
in connection with (i) the administration of this Agreement, (ii) the custody
or preservation of, or the sale of, collection from, or other realization
upon, any of the Collateral, (iii) the exercise or enforcement of any of the
rights of the Secured Party hereunder and under such other agreements or (iv)
the failure by Debtor to perform or observe any of the provisions hereof.
(k) Debtor hereby agrees to indemnify the Secured Party for, from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind and
nature whatsoever which may be imposed on, incurred by or asserted against
the Secured Party in any way relating to or arising out of this Agreement or
arising out of Debtor's obligations under any other documents contemplated by
or referred to herein or therein or the transactions contemplated hereby or
thereby or the enforcement of any of the terms hereof or of any such other
documents.
SECTION 4. SPECIAL PROVISIONS CONCERNING EQUIPMENT. Debtor will do
nothing to impair the rights of the Secured Party in the Equipment.
Regardless of the manner of the affixation of any Equipment to real property,
the Equipment so attached shall at all times constitute and remain personal
property. Debtor retains all liability and responsibility in connection with
the Equipment and the liability of Debtor to pay the Obligations shall in no
way be affected or diminished by reason of the fact that such Equipment may
be lost, destroyed, stolen or damaged or for any reason whatsoever have
become unavailable to Debtor. Upon request of the Secured Party, Debtor
shall provide to the Secured Party a current list of Equipment.
<PAGE>
-5-
SECTION 5. FINANCING STATEMENTS; DOCUMENTARY STAMP TAXES.
(a) Debtor will, at its own expense, make, execute, endorse,
acknowledge, file and/or deliver to the Secured Party from time to time such
lists, descriptions and designations of inventory, warehouse receipts, bills
of lading, documents of title, vouchers, invoices, schedules, confirmatory
assignments, conveyances, financing statements, transfer endorsements, powers
of attorney, certificates, reports and other assurances or instruments and
take such further steps relating to the Collateral and other property or
rights covered by the security interest hereby granted, which the Secured
Party reasonably deems appropriate or advisable to perfect, preserve or
protect its security interest in the Collateral. Debtor authorizes the
Secured Party to file any such financing statements without the signature of
Debtor and Debtor will pay all applicable filing fees and related expenses.
To the extent permitted by law, a carbon, photographic or other reproduction
of this Security Agreement or a financing statement shall be sufficient as a
financing statement.
(b) Debtor agrees to procure, pay for, affix to any and all documents
and cancel any documentary tax stamps required by and in accordance with,
applicable law, and Debtor will indemnify and hold the Secured Party harmless
against any liability (including interest and penalties) in respect of such
documentary stamp taxes.
SECTION 6. EVENT OF DEFAULT. For purposes of this Agreement, the term
"Event of Default" shall mean (i) any draw upon any Letter of Credit by the
Bank; (ii) the failure of Debtor to comply with any of its covenants or
obligations under this Agreement PROVIDED, HOWEVER, that if such failure is
susceptible of cure but such cure cannot be accomplished with due diligence
within fifteen (15) days after the occurrence thereof, and if in addition the
Debtor commences to cure such default within fifteen (15) days after written
notice thereof from the Secured Party, and thereafter prosecutes the curing
of such default with all due diligence, such period of time shall be extended
to such period of time (not to exceed an additional twenty (20) days) as may
be necessary to cure such default with all due diligence; (iii) any
representation or warranty contained herein or made by Debtor in connection
herewith shall prove to have been false or misleading in any material respect
when made; or (iv) the occurrence of any default or event of default under
any other document, instrument or agreement evidencing the Obligations.
SECTION 7. REMEDIES.
(a) Upon the occurrence of an Event of Default and during the
continuance thereof, in addition to any rights and remedies now or hereafter
granted under applicable law and not by way of limitation of any such rights
and remedies, the Secured Party shall have all of the rights and remedies of
a secured party under the Uniform Commercial Code as enacted in any
applicable jurisdiction, and the right, without notice to, or assent by,
Debtor, in the name of Debtor or in the name of the Secured Party or
otherwise:
(i) to take possession of any or all of the Collateral and to use, hold,
store, operate, merge and/or control the same and to exclude Debtor
and all Persons claiming
<PAGE>
-6-
under it wholly or partly therefrom, and, for that purpose, to enter,
with the aid and assistance of any Person or Persons and with or
without legal process, any premises where the Collateral, or any part
thereof, are, or may be, placed or assembled, and to remove any of
such Collateral;
(ii) from time to time, at the expense of, the Debtor, to make all such
repairs, replacements, alterations, additions and improvements to and
of the Collateral as the Secured Party may reasonably deem proper; to
carry on the business and to exercise all rights and powers of the
Debtor in respect to the Collateral, as the Secured Party shall deem
best, including the right to enter into any and all such agreements
with respect to the operation of the Collateral or any part thereof as
the Secured Party may see fit; to collect and receive all fees,
revenues and other income of the same and every part thereof which
revenues and other income may be applied to pay the expenses of
holding and operating the Collateral and of conducting the business
thereof, and of all maintenance, repairs, replacements, alterations,
additions and improvements, and to make all payments which the Secured
Party may be required or may elect to make, if any, for taxes,
assessments, insurance and other charges upon the Collateral or any
part thereof, and all other payments which the Secured Party may be
required or authorized to make under any provision of this Agreement
(including reasonable legal costs and attorneys' fees);
(iii) to execute any instrument and do all other things necessary and
proper to protect and preserve and realize upon the Collateral
and the other rights contemplated hereby;
(iv) upon notice to such effect, to require Debtor to deliver, at Debtor's
expense, any or all Collateral which is reasonably movable to the
Secured Party at a place designated by the Secured Party, and after
delivery thereof Debtor shall have no further claim to or interest in
the Collateral; and
(v) without obligation to resort to other security, at any time and from
time to time, to sell, re-sell, assign and deliver all or any of the
Collateral and all right, title and interest, claim and demand therein
and right of redemption thereof, at public or private sale, for cash,
upon credit or for future delivery, and at such price or prices and on
such terms as the Secured Party may determine, with the amounts
realized from any such sale to be applied to the Obligations in the
manner determined by the Secured Party.
Debtor hereby agrees that all of the foregoing may be effected without
demand, advertisement or notice (except as herein provided or as may be
required by law), all of which (except as hereinafter provided) are hereby
expressly waived, to the extent permitted by law. The Secured Party shall
not be obligated to do any of the acts hereinabove authorized and in the
event that the Secured Party elects to do any such act, the Secured Party
shall not be responsible to Debtor.
<PAGE>
-7-
(b) Upon the occurrence of an Event of Default, the Secured Party may
take legal proceedings for the appointment of a receiver or receivers (to
which the Secured Party shall be entitled as a matter of right) to take
possession of the Collateral pending the sale thereof pursuant either to the
powers of sale granted by this Agreement or to a judgment, order or decree
made in any judicial proceeding for the foreclosure or involving the
enforcement of this Agreement. If, after the exercise of any or all of such
rights and remedies, any of the Obligations shall remain unpaid, Debtor shall
remain liable for any deficiency.
(c) Upon any sale of any of the Collateral, whether made under the power
of sale hereby given or under judgment, order or decree in any judicial
proceeding for the foreclosure or involving the enforcement of this Agreement:
(i) the Secured Party may bid for and purchase the property being sold
and, upon compliance with the terms of sale, may hold, retain and
possess and dispose of such property in its own absolute right without
further accountability, and may, in paying the purchase money
therefor, deliver any instruments evidencing the Obligations or agree
to the satisfaction of all or a portion of the Obligations in lieu of
cash in payment of the amount which shall be payable thereon, and such
instruments, in case the amounts so payable thereon shall be less than
the amount due thereon, shall be returned to the Secured Party after
being appropriately stamped to show partial payment;
(ii) the Secured Party may make and deliver to the purchaser or purchasers
a good and sufficient deed, bill of sale and instrument of assignment
and transfer of the property sold;
(iii) the Secured Party is hereby irrevocably appointed the true and
lawful attorney-in-fact of Debtor in its name and stead, to make
all necessary deeds, bills of sale and instruments of assignment
and transfer of the property thus sold and for such other
purposes as are necessary or desirable to effectuate the
provisions (including, without limitation, this SECTION 7) of
this Agreement, and for that purpose it may execute and deliver
all necessary deeds, bills of sale and instruments of assignment
and transfer, and may substitute one or more persons with like
power, Debtor hereby ratifying and confirming all that its said
attorney, or such substitute or substitutes, shall lawfully do by
virtue hereof; but if so requested by the Secured Party or by any
purchaser, Debtor shall ratify and confirm any such sale or
transfer by executing and delivering to the Secured Party or to
such purchaser all property, deeds, bills of sale, instruments or
assignment and transfer and releases as may be designated in any
such request;
(iv) all right, title, interest, claim and demand whatsoever, either at law
or in equity or otherwise, of Debtor of, in and to the property so
sold shall be divested; such sale shall be a perpetual bar both at law
and in equity against Debtor, its successors and assigns, and against
any and all Persons claiming or who may
<PAGE>
-8-
claim the property sold or any part thereof from, through or under
Debtor, its successors or assigns;
(v) the receipt of the Secured Party or of the officer thereof making such
sale shall be a sufficient discharge to the purchaser or purchasers at
such sale for his or their purchase money, and such purchaser or
purchasers, and his or their assigns or personal representatives,
shall not, after paying such purchase money and receiving such receipt
of the Secured Party or of such officer therefor, be obliged to see to
the application of such purchase money or be in any way answerable for
any loss, misapplication or nonapplication thereof; and
(vi) to the extent that it may lawfully do so, Debtor agrees that it will
not at any time insist upon, or plead, or in any manner whatsoever
claim or take advantage of, any appraisement, valuation, stay,
extension or redemption laws, or any law permitting it to direct the
order in which the Collateral or any part thereof shall be sold, now
or at any time hereafter in force, which may delay, prevent or
otherwise affect the performance or enforcement of this Agreement, and
Debtor hereby expressly waives all benefit or advantage of any such
laws and covenants that it will not hinder, delay or impede the
execution of any power granted or delegated to the Secured Party in
this Agreement, but will suffer and permit the execution of every such
power as though no such laws were in force.
In the event of any sale of Collateral pursuant to this SECTION 7, the
Secured Party shall, at least 10 days before such sale, give Debtor written,
telegraphic or telex notice of its intention to sell, except that, if the
Secured Party shall determine in its reasonable discretion that any of the
Collateral threatens to decline in value, any such sale may be made upon
three (3) days' written, telegraphic or telex notice to Debtor, which time
periods Debtor hereby agrees are reasonable.
SECTION 8. APPLICATION OF MONEYS. All moneys which the Secured Party
shall receive pursuant hereto shall first be applied (to the extent thereof)
to the payment of all reasonable costs and expenses incurred in connection
with the administration and enforcement of, or the preservation of any rights
under, this Agreement or any of without limitation, the reasonable fees and
disbursements of its counsel and agents), and the balance, if any, shall be
applied first to accrued and unpaid interest, charges and fees on, and then
to outstanding principal of, any Obligations of Debtor to the Secured Party,
and then to any other amounts outstanding on any such Obligations and then as
required by law to any other parties having an interest therein.
SECTION 9. WAIVERS, ETC. Debtor, on its own behalf and on behalf of its
successors and assigns, hereby waives presentment, demand, protest and,
except as is otherwise specifically provided herein; waives all rights to
require a marshaling of assets by the Secured Party; consents to and waives
notice of (i) the granting of renewals, extensions of time for payment or
other indulgences to any account debtor in respect of any account receivable,
(ii) substitution, release or surrender of any Collateral, (iii) the addition
or release of Persons primarily or secondarily liable on any Obligation or on
any account receivable or other Collateral, (iv) any
<PAGE>
-9-
requirement of diligence or promptness on the part of the Secured Party in
the enforcement of any rights in respect of any Collateral or any other
agreement or instrument directly or indirectly relating thereto, and (v) any
enforcement of any present or future agreement or instrument relating
directly or indirectly to the Collateral. No delay or omission on the part
of the Secured Party or any holder of Obligations in exercising any right
hereunder shall operate as a waiver of such right or of any other right
hereunder. No waiver of any such right on any one occasion shall be
construed as a bar to or waiver of any such right on any future occasion. No
course of dealing between Debtor and the Secured Party or any holder of
Obligations, nor any failure to exercise, nor any delay in exercising, on the
part of the Secured Party or any holder of Obligations, any right, power or
privilege hereunder or under any of the Obligations, shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, power
or privilege hereunder or thereunder preclude any other or further exercise
thereof, or the exercise of any other right, power or privilege.
THE DEBTOR'S WAIVERS UNDER THIS SECTION 9 HAVE BEEN MADE VOLUNTARILY,
INTELLIGENTLY AND KNOWINGLY AND AFTER THE DEBTOR HAS BEEN APPRISED AND
COUNSELED BY ITS ATTORNEYS AS TO THE NATURE THEREOF AND ITS POSSIBLE
ALTERNATIVE RIGHTS.
SECTION 10. FURTHER ASSURANCES AS TO COLLATERAL; ATTORNEY-IN-FACT. From
time to time hereafter, Debtor will execute and deliver, or will cause to be
executed and delivered, such additional instruments, certificates or
documents (including without limitation financing statements, renewal
statements, mortgages, collateral assignments and other security documents),
and will take all such actions, as the Secured Party may reasonably request,
for the purposes of implementing or effectuating the provisions of this
Agreement or of more full perfecting or renewing the Secured Party's rights
with respect to the Collateral (or with respect to any additions thereto or
replacements or proceeds thereof or with respect to any other property or
assets hereafter acquired by Debtor which may be deemed to be a part of the
Collateral) pursuant hereto and thereto. The Secured Party is hereby
appointed the attorney-in-fact, with full power of substitution, of Debtor
for the purpose of carrying out the provisions of this Agreement and taking
any action, including, without limitation, executing, delivering and filing
applications, certificates, instruments and other documents and papers with
governmental authorities, and executing any instruments, including without
limitation financing or continuation statements, deeds to secure debt,
mortgages, assignments, conveyances, assignments and transfers which are
required to be taken or executed by the Debtor under this Agreement, on its
behalf and in its name which appointment is coupled with an interest, is
irrevocable and durable and shall survive the subsequent dissolution,
disability or incapacity of Debtor.
SECTION 11. MISCELLANEOUS.
(a) Debtor agrees that its obligations and the rights of the Secured
Party hereunder and in respect of the Obligations may be enforced by specific
performance hereof and thereof and by temporary, preliminary and/or final
injunctive relief relating hereto and thereto, without necessity for proof by
the Secured Party or any holder of the Obligations that it would otherwise
<PAGE>
-10-
suffer irreparable harm, and Debtor hereby consents to the issuance of such
specific and injunctive relief.
(b) Any notice or demand upon Debtor or the Secured Party shall be
deemed to have been sufficiently given when given in accordance with the
provisions of the Pledge Agreement executed on the date hereof by the Debtor
and Secured Party.
(c) None of the terms and conditions of this Agreement may be changed,
waived, modified or varied in any manner whatsoever unless in writing duly
signed by Debtor and the Secured Party. No notice to or demand on Debtor in
any case shall entitle Debtor to any other or further notice or demand in
similar or other circumstances or constitute a waiver of any of the rights of
the Secured Party to any other or further action in any circumstances without
notice or demand.
(d) The obligations of Debtor hereunder shall remain in full force and
effect without regard to, and shall not be impaired by, (i) any bankruptcy,
insolvency, reorganization, arrangement, readjustment, composition,
liquidation or the like of Debtor; (ii) any exercise or non-exercise, or any
waiver of, any right, remedy, power or privilege under or in respect of this
Agreement, the Obligations or any other security for any of the Obligations;
or (iii) any amendment to or modification of this Agreement, any of the
Obligations or any other security for any of the Obligations; whether or not
Debtor shall have notice or knowledge of any of the foregoing. The rights
and remedies of the Secured Party herein provided for are cumulative and not
exclusive of any rights or remedies which the Secured Party would otherwise
have, including without limitation under the other Transaction Documents.
(e) Neither party may assign its rights hereunder without the consent of
the other party. This Agreement shall be binding upon Debtor and its
successors and assigns and shall inure to the benefit of the Secured Party,
and its respective successors and assigns. All agreements, representations
and warranties made herein shall survive the execution and delivery of this
Agreement.
(f) The descriptive headings of the several sections of this Agreement
are inserted for convenience only and shall not in any way affect the meaning
or construction of any provision of this Agreement.
(g) Any provision of this Agreement which is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibitions or unenforceability in
any jurisdiction shall not invalidate or render unenforceable such provision
in any other jurisdiction.
(h) This Agreement and the rights and obligations of the parties
hereunder shall be construed in accordance with and be governed by the laws
of The State of Texas.
<PAGE>
-11-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
PITTENCRIEFF COMMUNICATIONS, INC.,
a Delaware corporation
By: /s/ C.G. WHITTEN
__________________________________
C.G. Whitten
Senior Vice President
FMR CORP.
By: /s/ JOHN D. KRUMRINE
__________________________________
Name: John D. Krumrine
Title: Treasurer
A&B ELECTRONICS, INC.
By: /s/ C.G. WHITTEN
__________________________________
C.G. Whitten
Vice President
A&D MOBILE SYSTEMS, INC.
By: /s/ C.G. WHITTEN
__________________________________
Name: C.G. Whitten
Title: Vice President
ADVANCED MOBILECOMM
SOUTHWEST CORP.
By: /s/ C.G. WHITTEN
__________________________________
Name: C.G. Whitten
Title: Vice President
<PAGE>
-12-
BAYOU COMMUNICATIONS, INC.
By: /s/ C.G. WHITTEN
__________________________________
Name: C.G. Whitten
Title: Vice President
CONFIDENTIAL COMMUNICATIONS
CORPORATION
By: /s/ C.G. WHITTEN
__________________________________
Name: C.G. Whitten
Title: Vice President
D&E COMMUNICATIONS, INC.
By: /s/ C.G. WHITTEN
__________________________________
Name: C.G. Whitten
Title: Vice President
FFC COMMUNICATIONS, INC.
By: /s/ C.G. WHITTEN
__________________________________
Name: C.G. Whitten
Title: Vice President
METROPLEX MOBILE COMMUNICATIONS,
INC.
By: /s/ C.G. WHITTEN
__________________________________
Name: C.G. Whitten
Title: Vice President
VIKING AMUSEMENT CORPORATION
d/b/a Empire Mobile Communications
By: /s/ C.G. WHITTEN
__________________________________
Name: C.G. Whitten
Title: Vice President
<PAGE>
-13-
STATE OF TEXAS )
) SS.
COUNTY OF TAYLOR )
On this 1st day of May, 1996, before me appeared C.G. Whitten to me
personally known, who, being by me duly sworn, did say that he is Senior Vice
President of Pittencrieff Communications, Inc., a Delaware corporation, and
that the instrument was signed on behalf of said corporation by authority of
the executive committee of the board of directors and said C.G. Whitten
acknowledged the foregoing instrument to be his free act and deed and the
free act and deed of said corporation.
/s/ JEAN VOORHEES
_____________________________________
NOTARY PUBLIC
[STAMP]
State of Texas
Print Name: Jean Voorhees
My Commission Expires:
8/6/97
STATE OF TEXAS )
) SS.
COUNTY OF TAYLOR )
On this 1st day of May, 1996, before me appeared C.G. Whitten to me
personally known, who, being by me duly sworn, did say that he is a Vice
President of A&B Communications, Inc., A&D Mobile Systems, Inc., Advanced
MobileComm Southwest Corp., Bayou Communications, Inc., Confidential
Communications Corporation, D&E Communications, Inc., FFC Communications,
Inc., Metroplex Mobile Communications, Inc. and Viking Amusement Corporation
d/b/a Empire Mobile Communications, and that the instrument was signed on
behalf of said corporations by authority of each board of directors and said
C.G. Whitten acknowledged the foregoing instrument to be his free act and
deed and the free act and deed of said corporation.
/s/ JEAN VOORHEES
_____________________________________
NOTARY PUBLIC
[STAMP]
State of Texas
Print Name: Jean Voorhees
My Commission Expires:
8/6/97
<PAGE>
SCHEDULE 1
SMR SYSTEMS
<PAGE>
EXHIBIT A
NAME OF SUBSIDIARY
A&B
Viking Amusement Corporation
Metroplex Mobile Communications, Inc.
FFC Communications, Inc.
D&E Communications, Inc.
Confidential Communications Corporation
Bayou Communications, Inc.
A&D Mobile Systems, Inc.
Advanced MobileComm Southwest Corp.
<PAGE>
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Pittencrieff Communications, Inc.:
We consent to the use of our reports incorporated herein by reference and
to the references to our firm under the headings "Incorporation of Certain
Documents by Reference" and "Experts" in the Prospectus.
KPMG Peat Marwick LLP
Dallas, Texas
July 5, 1996
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT AUDITORS
We consent to the inclusion in this Registration Statement, filed on Form S-4,
of our reports dated March 8, 1996 on our audits of the financial statements of
Advanced MobileComm SouthWest Corp.; Metroplex Mobile Communications, Inc.;
Advanced MobileComm of San Diego; Empire Mobile Communications; Bayou
Communications, Inc.; Confidential Communications Corporation; A&D Mobile
Systems, Inc.; Mobitel Communications Group; Trunked Mobile Radio Systems; and
FFC Communications, Inc. We also consent to the reference to our Firm under the
caption "Experts".
COOPERS & LYBRAND L.L.P.
Boston, Massachusetts
July 8, 1996
