As filed with the Securities and Exchange Commission on July 24, 2001
Registration No. 333-
===================================================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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TRITON PCS HOLDINGS, INC.
(Exact name of Registrant as specified in its charter)
Delaware 23-2974475
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1100 Cassatt Road
Berwyn, Pennsylvania 19312
(610) 651-5900
(Address, including zip code, and telephone number, including area code, of Registrant's principal executive offices)
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David D. Clark
Triton PCS Holdings, Inc.
Chief Financial Officer and
Executive Vice President
1100 Cassatt Road
Berwyn, Pennsylvania 19312
(610) 651-5900
(Name, address, including zip code, and telephone number, including area code, of agent for service)
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Please address a copy of all communications to:
John W. McNamara Andrew M. Davies
Thomas D. Twedt Triton PCS Holdings, Inc.
Dow, Lohnes & Albertson, PLLC 1100 Cassatt Road
1200 New Hampshire Avenue, NW Berwyn, Pennsylvania 19312
Washington, D.C. 20036 (610) 651-5900
(202) 776-2000
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Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this Registration
Statement, as determined by market conditions.
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If the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment
plans, please 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|
If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box
and list the Securities Act registration statement number of the earlier effective registration statement for the same
offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. |X|
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CALCULATION OF REGISTRATION FEE
========================================== ================== ================ ================== ==================
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Aggregate Amount Proposed Proposed Maximum Amount of
Title of Each Class of to be Maximum Aggregate Registration Fee
Securities to be Registered Registered (1) Offering Price Offering Price
Per Unit (1)
------------------------------------------ ------------------ ---------------- ------------------ ------------------
Class A common stock, par value $220,800,000 $220,800,000 $220,800,000 $55,200
$0.01 per share (2) ...............
Preferred Stock, par value $0.01
per share (3) .........................
Warrants or Rights (4).............
------------------------------------------ ------------------ ---------------- ------------------ ------------------
Total............................. $220,800,000 $220,800,000 $220,800,000 $55,200
========================================== ================== ================ ================== ==================
(1) United States dollars or the equivalent thereof in one or more foreign currencies, foreign currency units or composite
currencies estimated in accordance with Rule 457(o) under the Securities Act of 1933, as amended. Pursuant to Rule 457(o),
which permits the registration fee to be calculated on the basis of the maximum offering price of all the securities listed, the
table does not specify by each class information as to the amount to be registered, proposed maximum offering price per unit or
proposed maximum aggregate offering price.
(2) An indeterminate number of shares of Class A common stock, par value $0.01 per share, are covered by this Registration
Statement. Class A common stock may be issued (a) separately, (b) upon the conversion of the shares of the preferred stock which
are registered hereby or (c) upon exercise of warrants to purchase shares of Class A common stock. Shares of Class A common
stock issued upon conversion of the preferred stock will be issued without the payment of additional consideration.
(3) An indeterminate number of shares of preferred stock, par value $0.01 per share, are covered by this Registration Statement.
Shares of preferred stock may be issued (a) separately or (b) upon exercise of warrants or rights to purchase shares of preferred
stock which are registered hereby.
(4) An indeterminate number of warrants or other rights, each representing the right to purchase an indeterminate number of
securities registered hereby are covered by this Registration Statement.
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Pursuant to Rule 429 under the Securities Act of 1933, the prospectus contained in this Registration Statement is a combined
prospectus and relates to $79,200,000 of unsold securities registered on Registration Statement No. 333-49974 previously filed by
the Registrant on Form S-3 and declared effective on February 2, 2001, as well as the securities being registered herein. This
Registration Statement constitutes Post Effective Amendment No. 1 to Registration Statement No. 333-49974, and such Post-Effective
Amendment shall hereafter become effective concurrently with the effectiveness of this Registration Statement and in accordance with
Section 8(c) of the Securities Act of 1933.
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The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date
until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter
become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the Registration Statement
shall become effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
SUBJECT TO COMPLETION, DATED JULY 24, 2001
PROSPECTUS
TRITON PCS HOLDINGS, INC.
This prospectus is part of a shelf registration statement which Triton has
filed with the Securities and Exchange Commission. Under the shelf registration
statement, Triton may offer shares of Class A common stock, shares of preferred
stock, and warrants or other rights to purchase shares of capital stock in one
or more offerings up to a total dollar amount of $300,000,000, including the
U.S. dollar equivalent if the offering is denominated in one or more foreign
currencies, foreign currency units or composite currencies.
Under the shelf registration process, we may sell the securities from time
to time in one or more separate offerings, in amounts, at prices and on terms to
be determined at the time of sale.
Our Class A common stock is listed on the Nasdaq National Market under the
symbol "TPCS". We plan to transfer our listing to the New York Stock Exchange
on July 31, 2001 under the symbol "TPC".
In addition to Class A common stock, we also have shares of Class B
non-voting common stock issued and outstanding. The rights of holders of Class A
common stock and Class B non-voting common stock differ with respect to some
aspects of convertibility and voting. We will not offer or sell any shares of
Class B non-voting common stock under this prospectus.
This prospectus provides a general description of the securities that we
may offer. Each time we sell a particular series of preferred stock, shares of
Class A common stock or warrants or other rights, we will provide a prospectus
supplement which will contain the specific terms of the securities being offered
at that time.
The prospectus supplement may add, update or change information contained
in this prospectus. You should read both this prospectus and the prospectus
supplement in conjunction with the additional information described under the
headings "Where You Can Find More Information" and "Information Incorporated by
Reference."
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Investing in the securities involves risks. See "Risk Factors" beginning on
page 3.
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Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is a
criminal offense.
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The securities may be sold directly by us to our stockholders or to
purchasers or through agents on our behalf or through underwriters or dealers as
designated from time to time. If any agents or underwriters are involved in the
sale of any of these securities, the applicable prospectus supplement will set
forth the names of the agents or underwriters and any applicable fees,
commissions or discounts.
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The date of this Prospectus is , 2001.
TABLE OF CONTENTS
Page
PROSPECTUS SUMMARY............................................................................. 1
RISK FACTORS................................................................................... 3
USE OF PROCEEDS................................................................................ 13
RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK
DIVIDENDS................................................................................... 13
DESCRIPTION OF CAPITAL STOCK................................................................... 14
DESCRIPTION OF WARRANTS AND OTHER RIGHTS....................................................... 19
PLAN OF DISTRIBUTION........................................................................... 20
LEGAL MATTERS.................................................................................. 21
EXPERTS........................................................................................ 21
WHERE YOU CAN FIND MORE INFORMATION............................................................ 21
INFORMATION INCORPORATED BY REFERENCE.......................................................... 21
You should rely only on the information contained or incorporated by
reference in this prospectus or any prospectus supplement. We have not
authorized anyone else to provide you with different information. We are
offering these securities only in states where the offer is permitted. You
should not assume that the information in this prospectus or any prospectus
supplement, or information we previously filed with the Securities and Exchange
Commission and incorporate here by reference, is accurate as of any date other
than the date on the front of those documents. Our business, financial
condition, results of operations and prospects may have changed since that date.
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We are a Delaware corporation. Our principal executive offices are located
at 1100 Cassatt Road, Berwyn, Pennsylvania 19312, and our telephone number at
that address is (610) 651-5900. Our World Wide Web site address is
http://www.tritonpcs.com. The information in our web site is not part of this
prospectus.
In this prospectus, "Holdings" refers to Triton PCS Holdings, Inc., "Triton
PCS" refers to Triton PCS, Inc., a wholly-owned subsidiary of Holdings, and
"Triton," "we," "us" and "our" refer to Holdings and its wholly-owned
subsidiaries, unless the context requires otherwise. "AT&T Wireless PCS" refers
to AT&T Wireless PCS, LLC, "AT&T Wireless" refers to AT&T Wireless Services,
Inc. and "AT&T" refers to AT&T Corp.
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Special Note Regarding Forward-Looking Statements
This prospectus and the information incorporated by reference in this
prospectus contain forward-looking statements that involve substantial risks and
uncertainties. You can identify these statements by forward-looking words such
as "anticipate," "believe," "could," "estimate," "expect," "intend," "may,"
"should," "will" and "would" or similar words. Our forward looking statements
also include the facts and assumptions underlying such statements or
projections. You should read statements that contain these words carefully
because they discuss our future expectations, contain projections of our future
results of operations or of our financial position or state other
"forward-looking" information. We believe that it is important to communicate
our future expectations to our investors. However, there may be events in the
future that we are not able to accurately predict or control. The factors listed
in the "Risk Factors" section, as well as any cautionary language in this
prospectus and documents incorporated by reference, provide examples of risk,
uncertainties and events that may cause our actual results to differ materially
from the expectations we describe in our forward-looking statements. Before you
invest in our securities, you should be aware that the occurrence of the events
described in these risk factors and elsewhere in this prospectus and in
documents incorporated by reference in this prospectus could have a material
adverse effect on our business, results of operations, financial position and
the value of our securities.
i
PROSPECTUS SUMMARY
This summary highlights basic information about us. It does not contain all
of the information that is important to you. You should read the entire
prospectus carefully, including the section entitled "Risk Factors," as well as
the information incorporated by reference into this prospectus.
Triton
We are a rapidly growing provider of wireless personal communications
services in the southeastern United States. Our personal communications services
licenses cover approximately 13 million potential customers in a contiguous
geographic area encompassing portions of Virginia, North Carolina, South
Carolina, Tennessee, Georgia and Kentucky. In February 1998, we entered into a
joint venture with AT&T Wireless. As part of the agreement, AT&T Wireless
contributed personal communications services licenses for 20 MHz of authorized
frequencies covering 11 million potential customers within defined areas of our
region in exchange for an equity position in Holdings. Since that time, we have
expanded our coverage area to include an additional 2 million potential
customers through acquisitions and license exchanges with AT&T Wireless. As part
of the transactions with AT&T Wireless, we were granted the right to be the
exclusive provider of wireless mobility services using equal emphasis
co-branding with AT&T within our region. We believe our markets are
strategically attractive because of their proximity to AT&T Wireless's wireless
systems in the Washington, D.C., Charlotte, North Carolina and Atlanta, Georgia
markets, which collectively cover a population of more than 27 million
individuals. Our market location is attractive as we are the preferred provider
of wireless mobility services to AT&T Wireless's digital wireless customers who
roam into our markets. Our strategy is to provide extensive coverage to
customers within our region, to offer our customers coast-to-coast coverage and
to benefit from roaming revenues generated by AT&T Wireless's and other
carriers' wireless customers who roam into our covered area. Our management team
is led by Michael Kalogris and Steven Skinner, the former Chief Executive
Officer and Chief Operating Officer of Horizon Cellular Group, respectively.
Recent Developments
Build Out
Our network build-out is scheduled for three phases. We have completed
Phase I and Phase II of this build-out and successfully launched personal
communications services in all of our 37 markets. As of May 31, 2001, our
network in these 37 markets included 1,848 cell sites and seven switches. Since
we began offering services in these 37 markets, our subscriber base and the
number of minutes generated by non-Triton subscribers roaming onto our network
have grown dramatically.
From our initial launch of personal communications services in January 1999
to May 31, 2001, our subscriber base has grown from 33,844 subscribers to
544,534 subscribers, with 55,592 additional subscribers alone coming in the
first quarter of 2001. Roaming minutes generated by non-Triton subscribers since
January 1999 have increased from approximately 0.7 million minutes per month to
approximately 50.8 million minutes in May of 2001, with roaming minutes rising
from 7.3 million minutes in the first quarter of 1999 to 120.0 million minutes
in the first quarter of 2001. In addition, our subscriber churn rate has
remained below 2.0% since we went public in October of 1999.
We are in the third phase of our network build-out, which focuses on
covering major highways linking the cities in our licensed area, as well as
neighboring cities where AT&T Wireless and other carriers use compatible
wireless technology. We expect Phase III to be completed by the end of 2001 and
to add approximately 152 cell sites to our network. Upon completion of Phase
III, our network will include approximately 2,000 cell sites and seven switches
and span approximately 18,000 highway miles.
Spectrum License Acquisitions
We hold a 39% interest in Lafayette Communications Company L.L.C., a small
business under FCC Guidelines that participated in the FCC 1900 MHz C and F
Block Broadband PCS Auction No. 35, which ended on January 26, 2001. Lafayette
Communications was the winning bidder for thirteen 10 MHz C Block licenses and
one 10 MHz F Block license covering a total population of approximately 6.8
million people in our current geographic area in Georgia, North Carolina and
Virginia, and its net high bids totaled approximately $170 million. Many, but
not all,
1
of these licenses were among those held by NextWave Personal
Communications, Inc. and were the subject of the Court of Appeals ruling
described below.
On January 31, 2001, Lafayette Communications entered into a definitive
agreement to acquire licenses for 10 MHz of spectrum from subsidiaries of
Carolina PCS I Limited Partnership. The licenses for this spectrum encompass
nine basic trading areas covering all of South Carolina and serving
approximately 3.5 million people. This transaction has received FCC consent but
is subject to certain other closing conditions.
On July 20, 2001, Lafayette Communications entered into a definitive
agreement to acquire the 10 MHz F Block license in Kingsport, Tennessee from
NTELOS Inc. for $11.6 million.
We anticipate negotiating an agreement with Lafayette Communications,
consistent with FCC requirements, regarding the use of spectrum to be acquired
by Lafayette Communications through the FCC auction and the spectrum it is
acquiring from Carolina PCS. We intend to fund a senior loan to Lafayette
Communications to finance the acquisition of these licenses. Any senior loan we
provide will be secured by the underlying assets of Lafayette Communications. In
connection with the loan, Lafayette Communications will guarantee Triton PCS's
obligations under its credit facility, and such senior loan will be pledged to
the lenders under Triton PCS's credit facility.
NextWave Court of Appeals Decision
On June 22, 2001, the United States Court of Appeals for the District of
Columbia Circuit issued a decision reversing the FCC's determination that
licenses held by NextWave Personal Communications, Inc. had been forfeited
when NextWave failed to make installment payments for those licenses. If this
decision is not reversed by a subsequent appeal and if the FCC does not
determine that NextWave has forfeited the licenses on other grounds, many, but
not all, of the licenses awarded in the FCC's most recent broadband PCS auction
could be returned to NextWave. While we did not acquire rights to any licenses
held by NextWave, Lafayette Communications, in which we hold a 39% interest, was
a successful bidder for some of those licenses.
State Regulation
We previously described, in our Form 10-K for the year ended December
31, 2001, which is incorporated by reference herein, certain efforts to limit
the use of wireless devices by drivers. Since that disclosure, the State of New
York has enacted a statute that makes it unlawful to use a handheld mobile phone
while driving. The use of a headset or other hands-free device is not
prohibited by this statute. Although we do not provide service in New York,
such laws could affect the amount of traffic carried over wireless networks,
including our network, if enacted on a broad scale.
Other Recent Developments
For other recent developments, we refer you to our most recent and future
filings under the Securities Act of 1934.
2
RISK FACTORS
An investment in our securities involves a high degree of risk. In addition
to the other information in this prospectus and the documents incorporated and
deemed to be incorporated herein by reference, you should carefully consider the
following risks before making an investment decision. Our business, financial
condition and results of operations could be harmed were any of the following
risks or uncertainties to develop into actual events. In such case, the value of
our securities could decline and you might lose all or part of your investment.
We have and may continue to incur operating losses.
We have incurred operating losses during the development and construction
of our personal communications services network and may continue to incur such
losses as we build our customer base. Now that we have completed Phase I and
Phase II of our network build-out, our operating profitability will primarily
depend on our ability to:
o market our services successfully;
o achieve our projected market penetration;
o manage customer turnover rates effectively; and
o price our services competitively.
We may not be able to successfully accomplish these tasks, and if we do not, we
may not be able to achieve operating profitability or positive cash flow from
operating activities in the future. Personal communications services systems
have a limited operating history in the United States, and our operation of
these systems in our markets may not become profitable.
If AT&T Wireless is not successful as a provider of wireless communications, we
may not be successful.
Our results of operations are highly dependent on our relationship with
AT&T Wireless and AT&T, and the success of their wireless strategy. AT&T
Wireless is subject, to varying degrees, to the economic, administrative,
logistical and other risks set forth in this prospectus. Because we market our
products under the AT&T brand name, our results of operations could be adversely
affected if either AT&T Wireless's or AT&T's reputation as a communication
services provider declines.
We depend on our agreements with AT&T and AT&T Wireless for our success, and we
would have difficulty operating without them.
Our results of operations are dependent upon agreements we have entered
into with AT&T and AT&T Wireless in several ways:
o We market our products using equal emphasis co-branding with AT&T in
accordance with a license agreement with AT&T, which we believe provides
us with significant marketing advantages. The license agreement has an
initial five-year term expiring February 2003 and may be terminated if
we fail to comply with any of its material provisions.
o Most of our roaming revenues have historically been derived from AT&T
Wireless's wireless customers traveling through our areas. Our roaming
agreement with AT&T Wireless provides that the per minute roaming rate
charges to AT&T Wireless for its customers roaming onto our network will
decline over the next several years. In addition, the roaming rate
charges are subject to renegotiation by the parties from time to time on
or after September 1, 2005. The roaming agreement has a 20-year term
expiring in 2018 and may be terminated by AT&T Wireless if we breach any
of its material provisions. Our ability to offer plans with low roaming
rates would be adversely affected if this agreement were to be
terminated.
In addition, if AT&T or its affiliates combine with specified entities with
over $5 billion in annual revenues from telecommunications activities, that
derive less than one-third of their aggregate revenues from the provision of
wireless telecommunications and that have personal communications services or
cellular licenses that cover at least
3
25% of the people covered by our licenses, then AT&T Wireless PCS may terminate
its exclusivity obligations with us in markets that overlap with markets of
those entities. Other providers could then enter into agreements with AT&T
Wireless in those markets, exposing us to increased competition, and we could
lose access to customers.
Our results of operations would be adversely affected if any of our
agreements with AT&T or AT&T Wireless are terminated.
AT&T Wireless may compete with us, which could cause it to obtain subscribers
who otherwise might use our AT&T-licensed services.
Under the terms of our stockholders' agreement, we are required to enter
into a resale agreement at AT&T Wireless PCS's request. The resale agreement
will allow AT&T Wireless to sell access to, and usage of, our services in our
licensed area on a nonexclusive basis and using the AT&T brand. AT&T Wireless
may be able to develop its own customer base in our licensed area during the
term of the resale agreement.
Our inability to effectively manage our planned rapid growth could adversely
affect our operations.
We have experienced rapid growth and development in a relatively short
period of time and expect to continue to experience rapid growth in the future.
The management of such growth will require, among other things, continued
development of our financial and management controls and management information
systems, stringent control of costs, increased marketing activities, ability to
attract and retain qualified management personnel and the training of new
personnel. We intend to hire additional personnel in order to manage our
expected growth and expansion. Failure to successfully manage our expected rapid
growth and development and difficulties in managing the build-out of our network
could have a material adverse effect on our business, results of operations and
financial condition.
Our future growth may require additional significant capital, and our
substantial indebtedness could impair our ability to fund our capital
requirements.
We believe that we have sufficient funds to complete the build-out of our
network, but we may require additional capital in the event of significant
departures from our current business plan, unforeseen delays, cost overruns,
unanticipated expenses, regulatory changes, engineering design changes and other
technological risks or if we acquire additional licenses. For example, AT&T
Wireless has announced its intention to add a global system for mobile
communications overlay and the general packet radio service, or "GPRS",
technology to its networks throughout the country, to be followed by a further
upgrade to "EDGE" and then "UMTS" technology, each of which promises faster
transmission speeds and increased capacity. If we decide to follow AT&T Wireless
and adopt this technological upgrade plan, we will be required to spend
significant amounts that are not in our current capital budget. In addition, we
engage, from time to time, in discussions with AT&T Wireless regarding possible
acquisitions of additional personal communications services licenses from them.
We may also engage in discussions regarding future acquisitions of cellular
licenses within our currently licensed area. Sources of funding for our future
capital requirements may include any or all of the following:
o public offerings or private placements of equity and debt securities;
o commercial bank loans; and
o equipment lease financing.
Due to our highly leveraged capital structure, additional financing may not
be available to us, or, if it were available, it may not be available on a
timely basis, on terms acceptable to us and within the limitations contained in
the indentures governing our 11% senior subordinated discount notes due 2008 and
our 9 3/8% senior subordinated notes due 2011, our credit facility and any new
financing arrangements. Failure to obtain any appropriate financing, should the
need for it develop, could result in the delay or abandonment of our development
and expansion plans and our failure to meet regulatory requirements. It could
also impair our ability to meet our debt service requirements, and could have a
material adverse effect on our business.
4
We have substantial indebtedness, and servicing our indebtedness could reduce
funds available to grow our business.
We are highly leveraged. As of May 31, 2001, we had total consolidated
long-term obligations of approximately $1.3 billion. Our high level of
indebtedness could interfere with our ability to grow. For example, it could:
o increase our vulnerability to general adverse economic and industry
conditions;
o limit our ability to obtain additional financing;
o require the dedication of a substantial portion of our cash flow from
operations to the payment of principal of, and interest on, our
indebtedness;
o limit our flexibility in planning for, or reacting to, changes in our
business and the industry; and
o place us at a competitive disadvantage relative to less leveraged
competitors.
Our ability to generate sufficient cash flow from operations to pay the
principal of, and interest on, our indebtedness is uncertain. In particular, if
we do not meet our anticipated revenue growth and operating expense targets, our
future debt service obligations could exceed cash available to us. Further, we
may not be able to refinance any of our indebtedness on commercially reasonable
terms or at all.
Competitors who entered the wireless communications market before we did may be
better positioned than we are to attract customers.
Competitors who entered the wireless communications services market before
we did may have a significant time-to-market advantage over us. We may have to
engage in significant and prolonged discounting to attract customers, which
would materially adversely affect our business. We may not be able to compete
successfully with competitors who have a significant time-to-market advantage.
We have many competitors in our markets that have substantial coverage areas,
which makes it difficult for us to acquire and maintain a strong competitive
position.
We compete in our markets with most of the major cellular and personal
communications services companies in the United States. Many of our competitors
have substantially greater financial, technological, marketing and sales and
distribution resources than we do. Airtime and monthly access rates may continue
to decline due to competition, and we may have to significantly discount our
prices over a long period of time to attract customers, which would put downward
pressure on our prices and make it more difficult for us to achieve positive
cash flow.
We expect competition to intensify as a result of the consolidation of the
industry, the entrance of new competitors, the development of new technologies,
products and services and the auction of additional spectrum. The wireless
communications industry has been experiencing significant consolidation, and we
expect this trend will continue. For example, Cingular Wireless, Voicestream and
Verizon Wireless have all been recently formed as national carriers from the
combination of several smaller carriers, which has doubled the number of large
national wireless competitors. This consolidation trend may create additional
large, well-capitalized competitors with substantial financial, technical,
marketing and other resources.
Some competitors may have different or better technology than we do and may
attract more customers.
We compete with companies that use other communications technologies,
including paging and digital two-way paging, enhanced specialized mobile radio
and domestic and global mobile satellite service. We may compete in the future
with companies who offer new technologies. These technologies may have
advantages over our technology and may attract our customers.
5
Competitors who offer more services than we do may attract customers.
Some of our competitors market other services, such as traditional
telephone services, cable television access and access to the Internet, together
with their wireless communications services, which may make their services more
attractive to customers.
In addition, we expect that in the future, providers of wireless
communications services will compete more directly with providers of traditional
landline telephone services, energy companies, utility companies and cable
operators who expand their services to offer communications services.
We are dependent upon roaming revenue, and its seasonality will subject our
revenue and net income to seasonal fluctuations.
In 1999, 2000 and the first quarter of this year, approximately 33.2%,
27.6% and 22.7%, respectively, of our revenues were derived from roaming charges
incurred by other wireless providers for use of our network by their customers
who had traveled within our coverage area. Most of that revenue was derived from
AT&T Wireless's customers. Our coverage area includes a number of resort areas
that contribute to our roaming revenue. As a result, our roaming revenue
increases during vacation periods, introducing a measure of seasonality to our
revenue and net income.
The wireless industry is experiencing rapid technological change, and we may
lose customers if we fail to keep up with these changes.
The wireless telecommunications industry is experiencing significant
technological change, as evidenced by the increasing pace of digital upgrades in
existing analog wireless systems, ongoing improvements in the capacity and
quality of digital technology, the development and commercial acceptance of
advanced wireless data services, shorter development cycles for new products and
enhancements and changes in end-user requirements and preferences. We may lose
customers if we fail to keep up with these changes.
Difficulties in obtaining infrastructure equipment may affect our ability to
construct our network, meet our development requirements and compete in the
wireless communications industry.
We have obtained a substantial majority of our network equipment from
Ericsson. The equipment that we require to construct our network is in high
demand, and Ericsson could have a substantial backlog of orders. Accordingly,
the lead time for the delivery of this equipment may be long. Some of our
competitors purchase large quantities of communications equipment and may have
established relationships with the manufacturers of this equipment, such as
Ericsson. Consequently, they may receive priority in the delivery of this
equipment. We also purchase a significant amount of handsets from a few
providers. Handsets are in high demand, and some providers have had a
substantial backlog of orders. If Ericsson or any other vendor fails to deliver
equipment to us in a timely manner, we may be unable to provide wireless
communications services comparable to those of our competitors. In addition, we
may be unable to satisfy the requirements regarding the construction of our
network contained in FCC regulations and our agreements with AT&T Wireless and
its affiliates. Any of these outcomes could lessen our revenue.
Many personal communications services providers have experienced a high rate of
customer turnover which, if it affects us, may reduce our revenues.
Many providers in the personal communications services industry have
experienced a high rate of customer turnover as compared to cellular industry
averages. The rate of customer turnover may be the result of several factors,
including network coverage, reliability issues such as blocked and dropped
calls, handset problems, non-use of phones, change of employment, affordability,
customer care concerns and other competitive factors. Our strategy to address
customer turnover may not be successful, or the rate of customer turnover may be
unacceptable. Price competition and other competitive factors could also cause
increased customer turnover. A high rate of customer turnover could reduce our
revenues and have a material adverse effect on our competitive position and
results of operations.
6
We are dependent on our FCC licenses, and our business could be harmed by
adverse regulatory changes.
The FCC regulates the licensing, construction, operation, sale and
interconnection arrangements of wireless telecommunications systems to varying
degrees, as do some state and local regulatory agencies. In addition, the FCC,
in conjunction with the FAA, regulates tower marking and lighting. We cannot
assure you that either the FCC, the FAA or the state and local agencies having
jurisdiction over our business will not adopt regulations or take other actions
that would adversely affect our business.
Our principal assets are our licenses from the FCC to provide cellular and
personal communications services. Our loss of any of those licenses would have a
material adverse effect on our business. Our FCC licenses are subject to renewal
in 2005, except for our cellular license for Myrtle Beach which is subject to
renewal in 2010, and revocation.
Our success depends on our ability to attract and retain qualified personnel.
A small number of key executive officers manage our business. Their loss
could have a material adverse effect on our operations. We believe that our
future success will also depend in large part on our continued ability to
attract and retain highly qualified technical and management personnel. We
believe that there is, and will continue to be, intense competition for
qualified personnel in the personal communications services industry as the
emerging personal communications services market develops, and we cannot assure
you that we will be successful in retaining our key personnel or in attracting
and retaining other highly qualified technical and management personnel. We do
not presently maintain key-man life insurance on any of our executives or other
employees.
We will likely incur operating costs due to unauthorized use of our network.
As do most companies in the wireless industry, we will likely incur costs
associated with the unauthorized use of our network, including administrative
and capital costs associated with detecting, monitoring and reducing the
incidence of fraud. Fraud impacts interconnection costs, capacity costs,
administrative costs, fraud prevention costs and payments to other carriers for
unbillable fraudulent roaming.
The technologies that we use may become obsolete, which would limit our ability
to compete effectively and may result in increased costs to adopt a new
technology.
If our technologies become obsolete, we may need to purchase and install
equipment necessary to allow us to convert to new technologies to compete in the
wireless communications marketplace. We have employed digital wireless
communications technology using the current time division multiple access/IS-136
standards. Other digital technologies such as code division multiple access and
global system for mobile communications may ultimately prove to be more
advantageous than time division multiple access. For example, code division
multiple access technology-based providers own licenses covering virtually all
of the United States population. In addition, it is possible that a digital
transmission technology other than time division multiple access technology
(including global system for mobile communications, the prevalent standard in
Europe) may gain sufficient acceptance in the United States to adversely affect
the resources currently devoted by vendors to improving time division multiple
access technology. If another technology becomes the preferred industry
standard, we may be at a competitive disadvantage, and competitive pressures may
require us to change our digital technology at substantial cost. We may not be
able to respond to those pressures and implement new technology on a timely
basis, or at an acceptable cost. If time division multiple access technology
becomes obsolete at some time in the future, and we are unable to effect a
cost-effective migration path, it could materially and adversely affect our
financial condition, results of operations and liquidity. Time division multiple
access/IS-136 standards may not always meet or exceed the capabilities and
quality of other technologies.
Although all three standards are digital transmission technologies and
share certain basic characteristics that differentiate them from analog
transmission technology, they are not compatible or interchangeable with each
other. In order to roam in other markets where no personal communications
services licensee utilizes the time division multiple access technology
standard, our subscribers must utilize tri-mode handsets to use an analog or
digital cellular system in such markets. Generally, tri-mode handsets are more
expensive than single-or dual-mode handsets. The higher cost of these handsets
may impede our ability to attract subscribers or achieve positive cash flow as
planned.
7
In addition, if AT&T Wireless and its affiliates discontinue the use of
time division multiple access digital technology and adopt a new technology, and
we do not adopt the new technology, our exclusivity rights will terminate under
our agreements with AT&T Wireless and its affiliates. We may not be able to
successfully purchase and install the equipment necessary to allow us to convert
to a new or different technology or to adopt a new or different technology at an
acceptable cost, if at all. In addition, the technologies that we choose to
invest in may not lead to successful implementation of our business plan. AT&T
Wireless has announced that it will adopt the global system for mobile
communications based general packet radio service technology standard for
development of advanced services such as high speed transmission of data. To the
extent that AT&T Wireless supplements its network with such technology, we may
not be able to offer AT&T Wireless's customers all such advanced services, and
we may lose the ability to collect roaming revenues from these services unless
we also supplement our network with such technology.
If hand-held phones pose health and safety risks, we may be subject to new
regulations, and there may be a decrease in demand for our services.
Media reports have suggested that, and studies are currently being
undertaken to determine whether, certain radio frequency emissions from wireless
handsets may be linked to various health concerns, including cancer, and may
interfere with various electronic medical devices, including hearing aids and
pacemakers. In addition, lawsuits have been filed against other participants in
the wireless industry alleging various adverse health consequences as a result
of wireless phone usage. If consumers' health concerns over radio frequency
emissions increase, they may be discouraged from using wireless handsets, and
regulators may impose restrictions on the location and operation of cell sites.
These concerns could have an adverse effect on the wireless communications
industry and expose wireless providers to further litigation, which, even if not
successful, can be costly to defend. These concerns have recently received
increased focus, including the adoption in July 2000 by the leading industry
trade group of a policy under which member handset manufacturers will disclose
emission levels. Additional studies of radio frequency emissions are ongoing.
The ultimate findings of these studies will not be known until they are
completed and made public. We cannot assure you that government authorities will
not increase regulation of wireless handsets and cell sites as a result of these
health concerns or that wireless companies will not be held liable for costs or
damages associated with these concerns. The actual or perceived risk of radio
frequency emissions could also adversely affect us through a reduced subscriber
growth rate, a reduction in subscribers, reduced network usage per subscriber or
reduced financing available to the wireless communications industry. During the
past two years, the FCC has updated the guidelines and methods it uses for
evaluating radio frequency emissions from radio equipment, including wireless
handsets. In addition, interest groups have requested that the FCC investigate
claims that time division multiple access and other digital technologies pose
health concerns and cause interference with hearing aids and other medical
devices. Although the updates impose new restrictive standards on radio
frequency emissions from lower power devices such as wireless handsets, all
wireless handsets that we offer our customers comply with the proposed
standards.
Our use of the SunCom brand name for marketing may link our reputation with
another SunCom company.
We use the SunCom brand name to market our products and services in
conjunction with another member of the AT&T Wireless Network, TeleCorp PCS, in
order to broaden our marketing exposure and share the costs of advertising. It
is possible that our reputation for quality products and services under the
SunCom brand name will be associated with the reputation of TeleCorp PCS, and
any unfavorable consumer reaction to TeleCorp PCS could harm consumer perception
of the SunCom brand name and, in turn, could adversely affect our own
reputation.
Our ability to obtain access to additional radio frequency spectrum through
Lafayette Communications is subject to various uncertainties.
We may need additional spectrum in the future to meet demand for voice
services or the deployment of next generation data services. One of our primary
means to obtain access to additional spectrum for our personal communications
services network is through participation in FCC auctions. The FCC concluded the
bidding phase of its re-auction of licenses in the personal communications
services C and F Blocks in the 1900 MHz band on January 26, 2001. Although we
did not participate in the auction, we have a non-controlling equity interest in
Lafayette Communications, which did participate in the auction. Of the 422
licenses offered, Lafayette Communications was announced the winning bidder of
thirteen 10 MHz C Block licenses and one 10 MHz F Block license. Many, but not
all, of these licenses are subject to the NextWave litigation. See "Prospectus
Summary--Recent Developments."
8
Although we anticipate negotiating an agreement with Lafayette
Communications, subject to FCC requirements, for use of such spectrum and the
spectrum it is acquiring from Carolina PCS, there can be no assurance that we
will be successful in negotiating such an agreement. In addition, there can be
no assurance that Lafayette Communications will receive all such licenses or
that the licenses will not be subject to court challenge, which could cause a
delay in issuance of the licenses. In either case, we may need to obtain
additional spectrum from other sources which may not be available to us on
commercially reasonable terms or at all.
As a holding company, we depend on distributions from our subsidiaries to meet
our obligations, and our subsidiaries are subject to various agreements and laws
that restrict their ability to distribute funds to us.
We are a holding company with no direct operations and no significant
assets other than the stock of our subsidiaries. We depend on the cash flows of
our subsidiaries to meet our obligations and to pay any potential dividends. The
ability of our subsidiaries to distribute funds to us is and will be restricted
by the terms of existing and future indebtedness, including our credit facility
and indentures, and by applicable state laws that limit the payments of
dividends.
Our debt instruments contain restrictive covenants that may limit our operating
flexibility.
Our credit facility and the indentures governing our 11% senior
subordinated discount notes due 2008 and our 9 3/8% senior subordinated notes
due 2011 contain significant covenants that limit our ability to engage in
various transactions and, in the case of our credit facility, require
satisfaction of specified financial performance criteria. In addition, under
each of these documents, the occurrence of specific events, in some cases after
notice and grace periods, would constitute an event of default permitting
acceleration of the respective indebtedness.
These events include:
o failure to comply with a document's covenants;
o material inaccuracies of representations and warranties;
o specified defaults under or acceleration of other indebtedness; and
o events of bankruptcy or insolvency.
The limitations imposed by our outstanding indebtedness are substantial,
and failure to comply with them could have a material adverse effect on our
business. We are in full compliance with our debt covenants as of the date of
this prospectus.
A limited number of stockholders own a large amount of our stock; if they decide
to vote their shares together in furtherance of their own interests and those
interests are different from yours, the result could be that we will take
actions that are not in your interest.
J.P. Morgan Partners (23A SBIC), LLC, J.P. Morgan SBIC LLC and its
affiliates, Desai Capital Management Incorporated, Toronto Dominion Capital
(U.S.A.), Inc., First Union Affordable Housing Community Development Corporation
and its affiliates and Duff Ackerman Goodrich & Assoc. L.P., our initial
institutional investors, in the aggregate, currently control approximately 55%
of our total voting power, and Michael Kalogris and Steven Skinner control
approximately 9% of our total voting power, in the aggregate. Those
stockholders, other than J.P. Morgan SBIC LLC, have agreed that they will vote
their shares together to elect two of our directors and, so long as AT&T
Wireless PCS has the right to nominate a director under our certificate of
incorporation, to elect AT&T Wireless PCS's nominee. As a result of their share
ownership, these institutional investors and our management, if their interests
are aligned or if they decide to vote their shares together, have the ability to
control our future operations and strategy. Conflicts of interest between the
institutional investors and management stockholders and our public stockholders
may arise with respect to sales of shares of Class A common stock owned by the
institutional investors and management stockholders or other matters. For
example, sales of shares by the institutional investors and management
stockholders could result in a change of control under our credit facility,
which would constitute an event of default under the credit facility, and under
our indentures, which would require us to offer to repurchase our 11% senior
subordinated discount notes due 2008 and our 9 3/8% senior subordinated notes
due 2011. In addition, the interests of our institutional investors and other
existing stockholders regarding any proposed merger or sale may differ from the
9
interests of our public stockholders, especially if the consideration
to be paid for the Class A common stock is less than the price paid by public
stockholders.
In an investors' agreement, our initial institutional investors, other than
AT&T Wireless PCS, have agreed that investors holding 66 2/3% or more of the
Class A common stock and Class B non-voting common stock held by these
investors, in the aggregate, who propose to sell their shares of common stock
may require the other investors to also participate in any such sale. As a
result, such investors may have the effective right to sell control of Triton.
Our institutional investors invest in other personal communications services
companies, and conflicts of interest may arise from these investments and from
other directorships held by our directors that may not be resolved in our favor.
Our principal institutional investors, or their affiliates, currently have
significant investments in personal communications services companies other than
Triton. These institutional investors may in the future invest in other entities
that compete with us. In addition, several of our directors serve as directors
of other communications services companies. As a result, these directors may be
subject to conflicts of interest during their tenure as directors of Triton.
Because of these potential conflicts, these directors may be required to
disclose periodically financial or business opportunities to us and to the other
companies to which they owe fiduciary duties.
We do not intend to pay dividends in the foreseeable future.
We have never declared or paid any cash dividends on our common stock. For
the foreseeable future, we intend to retain any earnings to finance the
development and expansion of our business, and we do not anticipate paying any
cash dividends on our common stock. Payment of any future dividends on our
common stock will depend upon our earnings and capital requirements, the terms
of our debt instruments and preferred stock and other factors our board of
directors considers appropriate. See "--As a holding company, we depend on
distributions from our subsidiaries to meet our obligations, and our
subsidiaries are subject to various agreements and laws that restrict their
ability to distribute funds to us."
Our stock price is highly volatile.
The market price of our stock is highly volatile and subject to wide
fluctuations in response to factors such as the following, some of which are
beyond our control:
o quarterly variations in our operating results;
o operating results that vary from the expectations of securities analysts
and investors;
o changes in expectations as to our future financial performance,
including financial estimates by securities analysts and investors;
o changes in market valuations of other personal communications and
telecommunications services companies;
o announcements of technological innovations or new services by us or our
competitors; announcements by us or our competitors of significant
contracts, acquisitions, strategic partnerships, joint ventures or
capital commitments;
o additions or departures of key personnel;
o future sales of our securities; and
o stock market price and volume fluctuations.
Stock markets in the United States often experience extreme price and
volume fluctuations. Market fluctuations, as well as general political and
economic conditions such as a recession or interest rate or currency rate
fluctuations, could adversely affect the market price of our stock.
10
Anti-takeover provisions affecting us could prevent or delay a change of control
that is beneficial to you.
Provisions of our certificate of incorporation and bylaws, provisions of
our debt instruments and other agreements, and provisions of applicable Delaware
law and applicable federal and state regulations may discourage, delay or
prevent a merger or other change of control that holders of our securities may
consider favorable. These provisions could:
o have the effect of delaying, deferring or preventing a change in control
of our company;
o discourage bids for our securities at a premium over the market price;
o adversely affect the market price of, and the voting and other rights of
the holders of, our securities; or
o impede the ability of the holders of our securities to change our
management.
In addition, our stockholders' agreement, credit facility and indentures
for our outstanding public debt contain limitations on our ability to enter into
change of control transactions.
Our business is subject to regulation by the FCC and state regulatory
commissions or similar state regulatory agencies in the states in which we
operate. The FCC and some states have statutes or regulations that would require
an investor who acquires a specified percentage of our securities or the
securities of one of our subsidiaries to obtain approval to own those securities
from the FCC or the applicable state commission.
Your ownership interest could be diluted upon conversion of our Series A
preferred stock.
AT&T Wireles owns 786,253 shares of our Series A preferred stock. The
Series A preferred stock has a liquidation value of $100 per share with
dividends accruing at an annual rate of $10 per share, compounding quarterly
from March 31, 1998. On or after February 4, 2006, AT&T Wireless may convert
each share of Series A preferred stock into a number of shares of common stock
equal to:
o $100 plus unpaid dividends on the share of Series A preferred stock
divided by
o the market price of one share of Class A common stock on the date of
conversion.
As a result, AT&T Wireless will be entitled to a larger number of shares of
Class A common stock if the market value of the Class A common stock declines.
Any conversion by AT&T Wireless will dilute the ownership interest of our
existing shares of Class A common stock, which could cause the price of shares
of our Class A common stock to decline.
Limitation of Liability and Indemnification Matters
The Delaware General Corporation Law authorizes corporations to limit or
eliminate the personal liability of directors to corporations and their
stockholders for monetary damages for breach of directors' fiduciary duty of
care. The duty of care requires that, when acting on behalf of the corporation,
directors must exercise an informed business judgment based on all material
information reasonably available to them. In the absence of the limitations
authorized by the Delaware statute, directors could be accountable to
corporations and their stockholders for monetary damages for conduct that does
not satisfy their duty of care. Although the statute does not change directors'
duty of care, it enables corporations to limit available relief to equitable
remedies such as injunction or rescission. Our certificate of incorporation
limits the liability of our directors to Triton or our stockholders to the
fullest extent permitted by the Delaware statute. Specifically, the directors
will not be personally liable for monetary damages for breach of a director's
fiduciary duty as a director, except for liability:
o for any breach of the director's duty of loyalty to Triton or its
stockholders;
o for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law;
11
o under Section 174 of the Delaware General Corporation Law (which relates
to the unlawful payment of dividends or unlawful stock purchase or
redemption by a corporation); or
o for any transaction from which a director derived an improper personal
benefit.
The inclusion of this provision in our certificate of incorporation may
have the effect of reducing the likelihood of derivative litigation against
directors and may discourage or deter stockholders or management from bringing a
lawsuit against directors for breach of their duty of care, even though such an
action, if successful, might otherwise have benefited Triton and its
stockholders. In addition, we have purchased directors' and officers' liability
insurance coverage for our directors and certain of our officers in amounts
customary for similarly situated companies. Under the applicable provisions of
the Delaware General Corporation Law, in general, a corporation may indemnify
its directors, officers, employees or agents against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by them in connection with any action, suit or proceedings
brought by third parties to which they may be made parties by reason of their
being or having been directors, officers, employees or agents and shall so
indemnify such persons only if they acted in good faith and in a manner they
reasonably believed to be in or not opposed to the best interests of the
corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe their conduct was unlawful. Our certificate of
incorporation gives us the power to indemnify our officers, directors, employees
and agents to the fullest extent permitted by Delaware law. We have entered into
indemnification agreements with each of our directors and certain of our
executive officers which generally provide for indemnification of the director
or executive officer to the fullest extent provided by law.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers or persons controlling us
pursuant to our certificate of incorporation, we have been informed 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.
12
USE OF PROCEEDS
Unless we state otherwise in the accompanying prospectus supplement, we
intend to use the net proceeds from the sale of the securities offered by us in
such prospectus supplement to fund in part:
o capital expenditures;
o working capital as required;
o general corporate purposes; and
o potential acquisitions.
RATIO OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDENDS
The following table sets forth our deficiency of earnings to combined fixed
charges and preferred stock dividends for the periods indicated. The ratio of
earnings to combined fixed charges and preferred stock dividends is computed by
dividing the combination of fixed charges and preferred stock dividends into
earnings, as defined. Earnings include income before taxes, plus fixed charges,
plus amortization of capitalized interest, less capitalized interest costs.
Fixed charges include interest expense, capitalized interest, amortization of
debt discount, amortization of capitalized expenses related to debt and
one-third of rental expense attributable to the interest factor. On this basis,
earnings for the periods shown were not adequate to cover fixed charges and
preferred stock dividends; therefore, the amount of the deficiency is shown.
Three Months Ended
Year Ended December 31, March 31,
------------------------------------------- ---------
1997 1998 1999 2000 2000 2001
-------- ------- ------ ------ ------ ------
(in thousands)
---------------------------------- -
Deficiency of earnings to combined fixed
charges and preferred dividends........ $3,961 $42,998 $170,385 $194,313 $48,890 $47,036
13
DESCRIPTION OF CAPITAL STOCK
The following description of Triton's capital stock sets forth general
terms and provisions of the particular issuance of capital stock to which any
prospectus supplement may relate. The prospectus supplement will describe the
particular terms of any sale of capital stock and the extent, if any, to which
such general provisions will not apply to such sale. The following description
also sets forth selected provisions of Triton's second restated certificate of
incorporation and amended and restated bylaws. This description is a summary
only and is qualified in its entirety by Triton's certificate of incorporation
and bylaws, which are incorporated as exhibits to the registration statement of
which this prospectus is a part.
Our authorized capital stock consists of:
o 580,000,000 shares of common stock, par value $0.01 per share,
including:
(a) 520,000,000 shares designated Class A common stock; and
(b) 60,000,000 shares designated Class B non-voting common stock; and
o 70,000,000 shares of preferred stock, par value $0.01 per share,
including:
(a) 1,000,000 shares designated Series A convertible preferred stock;
(b) 50,000,000 shares designated Series B preferred stock;
(c) 3,000,000 shares designated Series C convertible preferred stock;
and
(d) 16,000,000 shares designated Series D convertible preferred stock.
As of June 30, 2001, there were outstanding: 59,094,499 shares of Class A
common stock; 8,210,827 shares of Class B non-voting common stock; 786,253
shares of Series A preferred stock; no shares of Series B preferred stock or
Series C preferred stock; and 543,683 shares of Series D preferred stock.
Common Stock
Class A Common Stock. Each holder of Class A common stock is entitled to
one vote for each share of Class A common stock on all matters on which
stockholders generally are entitled to vote and to all other rights, powers and
privileges of stockholders under Delaware law. Upon the dissolution, liquidation
or winding up of Triton, after any preferential amounts to be distributed to the
holders of the preferred stock then outstanding have been paid or declared and
funds sufficient for payment in full have been set apart for payment, the
holders of the Class A common stock and the Class B non-voting common stock will
be entitled to receive all the remaining assets of Triton legally available for
distribution to its stockholders in proportion to the number of shares of common
stock held by them.
Class B Non-Voting Common Stock. The Class B non-voting common stock is
identical in all respects to the Class A common stock, except that holders of
shares of Class B non-voting common stock shall not have the right to vote on
any matters to be voted on by our stockholders. Shares of Class B non-voting
common stock are convertible at the option of the holder at any time on a
one-for-one basis into shares of Class A common stock, except that shares of
Class B non-voting common stock held by J.P. Morgan SBIC LLC are convertible
only upon receipt by Triton of a written opinion of counsel to the effect that
J.P. Morgan SBIC LLC should not be considered an affiliate of Triton after
giving effect to the conversion. In addition, shares of Class B non-voting
common stock transferred by J.P. Morgan SBIC LLC to anyone other than its
affiliates, after giving effect to the conversion, convert automatically on a
one-for-one basis into shares of Class A common stock.
Preferred Stock
Subject to the approval of the holders of shares of certain series of
preferred stock in specified circumstances, Triton may issue preferred stock
with such designations, powers, preferences and other rights and qualifications,
limitations and restrictions as Triton's board of directors may authorize,
including, but not limited to:
14
o the distinctive designation of each series and the number of shares that
will constitute the series;
o the voting rights, if any, of shares of the series;
o the dividend rate on the shares of the series, any restriction,
limitation or condition upon the payment of dividends, whether dividends
will be cumulative and the dates on which dividends are payable;
o the prices at which, and the terms and conditions on which, the shares
of the series may be redeemed, if the shares are redeemable;
o the purchase or sinking fund provisions, if any, for the purchase or
redemption of shares in the series;
o any preferential amount payable upon shares of the series in the event
of the liquidation, dissolution or winding up of Triton or the
distribution of its assets; and
o the prices or rates of conversion at which, and the terms and conditions
on which, the shares of such series may be converted into other
securities, if such shares are convertible.
The table below summarizes the principal terms of our preferred stock:
Principal Terms of Preferred Stock
Terms Series A Series B Series C Series D
-------------- -------------------------- ---------------- ---------------------- -----------------
Dividends...... Quarterly cash dividends Same as Series A No fixed dividends, but Same as Series C
at annual rate of 10% of the participates with Class
accreted value of Series A common stock on an as-
A, but cash dividend converted basis
payments may be deferred
until June 30, 2008
No dividends may be paid No dividend or distribution
on any junior preferred may be paid on common
stock or common stock stock unless Series C
without the consent of receives a dividend or
the Series A holders distribution as well,
payment to be based on a
formula
Convertibility. At the holder's option, None At the holder's option, at At the holder's option, at
on or after February 4, any time for a fixed any time at a rate of one
2006, each share of Series A number of shares of Class share of Series C for each
preferred stock will convert A common stock for each share of Series D (subject
into a number of shares of share of Series C (subject to anti-dilution
Class A common stock equal to to anti-dilution provisions) provisions)
$100 plus all unpaid dividends
on such Series A preferred share
divided by the fair market
value of a share of Class A
common stock
15
Principal Terms of Preferred Stock
Terms Series A Series B Series C Series D
---------- ----------------- --------------- --------------- -------------
At the holder's option,
at any time at a rate of 23
shares of Class A common
stock for each share of
Series D (subject to
anti-dilution provisions)
Holder may elect, by Holder may elect by Holder may elect by
written notice, to receive written notice, to receive written notice, to receive
shares of Class B non- shares of Class B non- shares of Class B non-
voting common stock voting common stock voting common stock
instead of Class A common instead of Class A common instead of Class A common
stock stock stock
Liquidation
Preference......... $100 per share plus all Same as Series A $100 per share (subject to $100 per share (subject to
accrued but unpaid customary anti-dilution customary anti-dilution
dividends, whether or not provisions), but junior to provisions), but junior to
declared (subject to Series A and Series B and Series A and Series B and
customary anti-dilution junior to Series D with senior to Series C with
provisions) respect to a statutory respect to a statutory
liquidation liquidation
Voting............. Limited class voting rights Limited class voting Votes with Class A Limited class voting rights
rights common stock on an as-
converted basis
Entitled to nominate one of Additional class voting
the Class II directors so rights
long as initial holder owns
at least two-thirds of the
Series A shares it owned on
February 4, 1998
Redemtion......... At our option on or after At our option at any At our option, requires Same as Series C
February 4, 2008 time prior affirmative vote or
written consent of all
holders of outstanding
Series C shares, all holders
of outstanding Series D
shares and any other
holders of capital stock as
required by the certificate
of incorporation
At the holder's option on Same as Series A
or after February 4, 2018
Anti-Takeover Provisions
Delaware law, our certificate of incorporation, our bylaws and the
stockholders' agreement contain provisions that could have the effect of
delaying, deterring or preventing the acquisition of control of Triton by means
of changes to our governing documents or a proxy contest.
Delaware Law. We are subject to the provisions of Section 203 of the
Delaware General Corporation Law, which prohibits a Delaware corporation from
engaging in a broad range of business combinations with interested stockholders
for a period of three years following the time that person became an interested
stockholder, unless any of the following occurs:
o the transaction resulting in a person's becoming an interested
stockholder, or the business combination, is approved by the board of
directors of the corporation before the person becomes an interested
stockholder;
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o the interested stockholder acquires 85% or more of the outstanding
voting stock of the corporation in the same transaction that makes the
person an interested stockholder, excluding shares owned by persons who
are both officers and directors of the corporation and shares held by
employee stock ownership plans; or
o on or after the date the person became an interested stockholder, the
business combination is approved by the corporation's board of directors
and by the holders of at least 66 2/3% of the corporation's outstanding
voting stock at a stockholder meeting, excluding shares held by the
interested stockholder.
An interested stockholder is defined as any person that is:
o the owner of 15% or more of the outstanding voting stock of the
corporation; or
o an affiliate or associate of the corporation and was the owner of 15% or
more of the outstanding voting stock of the corporation at any time
within the three-year period immediately prior to the date on which it
is sought to be determined whether the person is an interested
stockholder.
Nomination and Election of Directors. Our certificate of incorporation,
bylaws and the stockholders' agreement contain provisions which affect the
nomination and election of directors to our board. Our board of directors
consists of seven directors, and each director serves until his or her successor
has been duly elected and qualified, or until his or her earlier death,
resignation or removal. Our board of directors is divided into three classes of
directors. Each class serves a staggered three-year term. As a result,
approximately one-third of the board of directors are elected each year.
Generally a director will stand for election only once every three years. The
classified board provision could have the effect of discouraging a third party
from making a tender offer or otherwise attempting to obtain control of us, even
though the attempt might be beneficial to us and our stockholders. In addition,
the classified board provision could delay stockholders who do not agree with
the policies of the board from removing a majority of the board for two years.
Under our certificate of incorporation, as long as AT&T Wireless PCS owns at
least two-thirds of the number of shares of Series A preferred stock that it
owned on February 4, 1998, it has the exclusive right, voting separately as a
single class, to nominate one of the Class II directors. Each of the
stockholders party to the stockholders' agreement, other than J. P. Morgan SBIC
LLC, has agreed to vote all its shares of Series C preferred stock or Class A
common stock held of record by it to cause the election of two directors
selected by the cash equity investors and the election of the nominee selected
by AT&T Wireless PCS and their continuation in office. Any amendment to our
certificate of incorporation must be approved by the affirmative vote of the
holders of shares of Series C preferred stock and Class A common stock
representing at least two-thirds of the votes entitled to be cast for the
election of directors, voting together as a single class, subject to the
separate class vote requirements relating to any class or series of preferred
stock. Our bylaws may be amended in the same manner as provided in our
certificate of incorporation or, alternatively, by a resolution adopted by a
majority of our board of directors at any special or regular meeting of the
board or by unanimous written consent, although amendments to the provisions
regarding election of directors require the approval of the holders of capital
stock entitled to nominate any of our directors.
Other Provisions. Our certificate of incorporation and bylaws provide, in
general, that:
o the directors in office will fill any vacancy or newly created
directorship on the board of directors, with any new director to serve
for the remaining term of the class of directors to which he is elected,
except that any vacancy that was left by a nominee of a stockholder
entitled to nominate such nominee will be filled by a new director
selected by such holder; and
o directors may be removed only for cause and only by the affirmative vote
of the holders of a majority of the outstanding shares of voting stock
cast, at an annual or special meeting or by written consent, except any
director nominated by any stockholders having the right to nominate such
director may be removed and replaced by such stockholders with or
without cause.
The bylaws also require that stockholders wishing to bring any business,
including director nominations, before an annual meeting of stockholders deliver
written notice to us not less than 60 days or more than 90 days prior to the
date of the annual meeting of stockholders. If, however, less than 70 days'
notice or prior public disclosure of the date of the meeting is given or made to
stockholders, notice by the stockholder must be delivered to us not later than
the close of business on the tenth day following the day on which we publicly
announce the date of our annual meeting. The bylaws further require that the
notice by the stockholder set forth, among other things:
o a description of the business to be brought before the meeting,
including information with respect to a nominated director;
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o the reasons for conducting the business at the meeting;
o specific information concerning the stockholder proposing the business
and the beneficial owner, if any, on whose behalf the proposal is made;
o a description of all arrangements and understandings between or among
the stockholder delivering the notice and any other person or persons,
including any director nominee where applicable, with a material
interest in the business to be brought before the meeting; and
o with respect to notice nominating a director, any other information
relating to the director nominee and the nominating stockholder that
would be required to be disclosed in a proxy statement or other similar
filing with the SEC.
The foregoing provisions regarding director nomination procedures do not
apply to holders of our capital stock who have the right to nominate directors.
The provisions of the certificate of incorporation and bylaws relating to
removal of directors and advance notice of stockholder proposals may discourage
or make more difficult the acquisition of control of us by means of a tender
offer, open market purchase, proxy contest or otherwise. These provisions may
have the effect of discouraging specific types of coercive takeover practices
and inadequate takeover bids and may encourage persons seeking to acquire
control of us first to negotiate with the board of directors.
Transfer Agent
The transfer agent and registrar for the Class A common stock is Equiserve
(BankBoston).
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DESCRIPTION OF WARRANTS AND OTHER RIGHTS
We may issue warrants and other rights to purchase our securities,
including rights to receive payment in cash or securities based on the value,
rate or price of one or more specified commodities, currencies or indices, or
securities of other issuers or any combination of the foregoing. Warrants or
rights may be issued independently or together with any securities and may be
attached to or separate from such securities. Each series of warrants or rights
will be issued under a separate warrant or rights agreement to be entered into
between us and a warrant or rights agent. The following description sets forth
certain general terms and provisions of the warrants and rights offered hereby.
Further terms of the warrants and rights and the applicable warrant or rights
agreement will be set forth in the applicable prospectus supplement.
The applicable prospectus supplement will describe the following terms of
any warrants or rights in respect of which this prospectus is being delivered:
o the title of such warrants or rights;
o the aggregate number of such warrants or rights;
o the price or prices at which such warrants or rights will be issued;
o the currency or currencies, including composite currencies, in which the
price of such warrants or rights may be payable;
o the securities or other securities or rights of ours, including rights
to receive payment in cash or securities based on the value, rate or
price of one or more specified commodities, currencies or indices, or
securities of other issuers or any combination of the foregoing
purchasable upon exercise of such warrants or rights;
o the price at which and the currency or currencies, including composite
currencies, in which the securities purchasable upon exercise of such
warrants or rights may be purchased;
o the date on which the right to exercise such warrants or rights shall
commence and the date on which such right shall expire;
o if applicable, the minimum or maximum amount of such warrants or rights
which may be exercised at any one time;
o if applicable, the designation and terms of the securities with which
such warrants or rights are issued and the number of such warrants or
rights issued with each such security;
o if applicable, the date on and after which such warrants or rights and
the related securities will be separately transferable;
o information with respect to book-entry procedures, if any;
o if applicable, a discussion of certain United States Federal income tax
considerations; and
o any other terms of such warrants or rights, including terms, procedures
and limitations relating to the exchange and exercise of such warrants
or rights.
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PLAN OF DISTRIBUTION
Triton may sell securities to one or more underwriters or dealers for
public offering and sale by them, or it may sell the securities to investors
directly or through agents. The accompanying prospectus supplement will set
forth the terms of the offering and the method of distribution and will identify
any firms acting as underwriters, dealers or agents in connection with the
offering, including:
o the name or names of any underwriters;
o the purchase price of the securities;
o any underwriting discounts and other items constituting underwriters'
compensation;
o any public offering price and the net proceeds we will receive from such
sale;
o any discounts or concessions allowed or reallowed or paid to dealers;
and
o any securities exchange or market on which the securities offered in the
prospectus supplement may be listed.
Only those underwriters identified in such prospectus supplement are deemed
to be underwriters in connection with the securities offered in the prospectus
supplement.
Triton may distribute securities from time to time in one or more
transactions at a fixed price or prices, which may be changed, or at prices
determined as the prospectus supplement specifies. Triton may sell securities
through a rights offering, forward contracts or similar arrangements. In
connection with the sale of the securities, underwriters, dealers or agents may
be deemed to have received compensation from Triton in the form of underwriting
discounts or commissions and also may receive commissions from securities
purchasers for whom they may act as agent. Underwriters may sell the securities
to or through dealers, and such dealers may receive compensation in the form of
discounts, concessions or commissions from the underwriters or commissions from
the purchasers for whom they may act as agent. Some of the underwriters, dealers
or agents who participate in the securities distribution may engage in other
transactions with, and perform other services for, Triton and its subsidiaries
in the ordinary course of business.
Any underwriting discounts or other compensation which we pay to
underwriters or agents in connection with the securities offering, and any
discounts, concessions or commissions which underwriters allow to dealers, will
be set forth in the prospectus supplement. Underwriters, dealers and agents
participating in the securities distribution may be deemed to be underwriters,
and any discounts and commissions they receive and any profit they realize on
the resale of the securities may be deemed to be underwriting discounts and
commissions under the Securities Act of 1933. The maximum discount or commission
to be paid to any member of the NASD or any independent broker-dealer for the
sale of the shares will not exceed 8%. Underwriters and their controlling
persons, dealers and agents may be entitled, under agreements entered into with
Triton to indemnification against and contribution toward specific civil
liabilities, including liabilities under the Securities Act.
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LEGAL MATTERS
Dow, Lohnes & Albertson, PLLC, Washington, D.C., will pass upon the
validity of the securities offered hereby for Triton. Certain members of Dow,
Lohnes & Albertson, PLLC own shares of Holdings' Class A common stock.
EXPERTS
The consolidated financial statements of Triton PCS Holdings, Inc.
incorporated in this prospectus by reference to the Annual Report on Form 10-K
of Triton PCS Holdings, Inc. for the year ended December 31, 2000, have been so
incorporated in reliance on the report of PricewaterhouseCoopers LLP,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
WHERE YOU CAN FIND MORE INFORMATION
Triton is subject to the informational requirements of the Securities
Exchange Act of 1934 and files reports, proxy statements and other information
with the Securities and Exchange Commission. Our Securities and Exchange
Commission filings are available over the Internet at the Securities and
Exchange Commission's web site at http://www.sec.gov. You also may read and copy
any document that we file at the Securities and Exchange Commission's public
reference rooms located at 450 Fifth Street, N.W., Washington, D.C. 20549, and
at the regional offices of the Securities and Exchange Commission located at 7
World Trade Center, Suite 1300, New York, New York 10048 and Citicorp Center,
500 West Madison Street, Suite 1400, Chicago, Illinois 60661 or obtain copies of
such materials by mail. Please call the Securities and Exchange Commission at
1-800-SEC-0330 for more information on the public reference rooms and their copy
charges, as well as the Public Reference Section's charges for mailing copies of
the documents that we have filed.
INFORMATION INCORPORATED BY REFERENCE
Triton files periodic reports with the Securities and Exchange Commission.
Securities and Exchange Commission rules permit Triton to incorporate these
filings by reference into this prospectus. By incorporating Triton's Securities
and Exchange Commission filings by reference, the following documents are made a
part of this prospectus:
o Triton's quarterly report on Form 10-Q for the quarter ended March 31,
2001;
o Triton's annual report on Form 10-K for the year ended December 31,
2000;
o Triton's definitive proxy statement for the 2001 annual meeting of
stockholders, dated April 2, 2001;
o Triton's definitive additional materials for the 2001 annual meeting of
stockholders, dated April 27, 2001;
o Triton's registration statement on Form 8-A filed on September 23, 1999;
o Triton's registration statement on Form 8-A filed on July 13, 2001;
o Triton's Current Report on Form 8-K, dated January 12, 2001; and
o Triton's Current Report on Form 8-K, dated June 15, 2001.
All documents which Triton will file with the Securities and Exchange
Commission, under the terms of Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, as amended, after the date of this prospectus
and prior to the termination of any offering of securities offered by this
prospectus shall be deemed to be incorporated by reference in, and to be a part
of, this prospectus from the date such documents are filed. Triton's Securities
and Exchange Commission file number for Exchange Act documents is 1-15325.
Triton will provide without charge, to any person who receives a copy of this
prospectus and the accompanying prospectus supplement, upon such recipient's
written or oral request, a copy of any document this prospectus incorporates by
reference, other
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than exhibits to such incorporated documents, unless such
exhibits are specifically incorporated by reference in such incorporated
document. Requests should be directed to:
Daniel E. Hopkins
Senior Vice President & Treasurer
Triton PCS Holdings, Inc.
1100 Cassatt Road
Berwyn, Pennsylvania 19312
Telephone: (610) 651-5900
Any statement contained in this prospectus or in a document incorporated
in, or deemed to be incorporated by reference to, this prospectus shall be
deemed to be modified or superseded, for purposes of this prospectus, to the
extent that a statement contained in:
o the prospectus;
o the accompanying prospectus supplement; or
o any other subsequently filed document which also is incorporated by
reference in, or is deemed to be incorporated by reference to, this
prospectus;
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.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following are the expenses of issuance and distribution of the
securities registered hereunder on Form S-3, other than underwriting discounts
and commissions. All amounts except the registration and NASD filing fee are
estimated.
Registration fee.......................................................................... $55,200
NASD filing fee........................................................................... 30,500
Legal fees and expenses................................................................... 250,000
Accounting fees and expenses.............................................................. 75,000
Printing and engraving expenses........................................................... 75,000
Miscellaneous............................................................................. 10,000
-------
Total.............................................................................. $495,700
=======
All of the above expenses have been or will be paid by Triton.
---------------------------
Item 15. Indemnification of Directors and Officers.
The Delaware General Corporation Law authorizes corporations to limit
or eliminate the personal liability of directors to corporations and their
stockholders for monetary damages for breach of directors' fiduciary duty of
care. The duty of care requires that, when acting on behalf of the corporation,
directors must exercise an informed business judgment based on all material
information reasonably available to them. In the absence of the limitations
authorized by the Delaware statute, directors could be accountable to
corporations and their stockholders for monetary damages for conduct that does
not satisfy their duty of care. Although the statute does not change directors'
duty of care, it enables corporations to limit available relief to equitable
remedies such as injunction or rescission. The second restated certificate of
incorporation limits the liability of Triton's directors to Triton or its
stockholders to the fullest extent permitted by the Delaware statute.
Specifically, the directors of Triton will not be personally liable for monetary
damages for breach of a director's fiduciary duty as a director, except for
liability (i) for any breach of the director's duty of loyalty to Triton or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174 of
the Delaware General Corporation Law (which relates to the unlawful payment of
dividend or unlawful stock purchase or redemption by a corporation) or (iv) for
any transaction from which a director derived an improper personal benefit. The
inclusion of this provision in the second restated certificate of incorporation
may have the effect of reducing the likelihood of derivative litigation against
directors and may discourage or deter stockholders or management from bringing a
lawsuit against directors for breach of their duty of care, even though such an
action, if successful, might otherwise have benefited Triton and its
stockholders. Under the applicable provisions of the Delaware General
Corporation Law, in general, a corporation may indemnify its directors,
officers, employees or agents against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by them in connection with any action, suit or proceedings brought by third
parties to which they may be made parties by reason of their being or having
been directors, officers, employees or agents and shall so indemnify such
persons only if they acted in good faith and in a manner they reasonably
believed to be in or not opposed to the best interests of the corporation and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe their conduct was unlawful. The second restated certificate of
incorporation gives Triton the power to indemnify its officers, directors,
employees and agents to the full extent permitted by Delaware law, and Triton
has entered into indemnification agreements with each director and certain
executive officers which generally provide for indemnification of the director
or executive officer to the fullest extent provided by law.
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Item 16. Exhibits.
Exhibit
Number Description
------ -----------
1.1--Form of Underwriting Agreement (incorporated by reference to Exhibit
1.1 of Triton's Registration Statement on Form S-3 (File No.
333-49974)).
3.1--Second Restated Certificate of Incorporation of Triton PCS Holdings,
Inc. (incorporated by reference to Exhibit 3.4 of Triton's
Registration Statement on Form S-1 (File No. 333-85149)).
3.2--Second Amended and Restated Bylaws of Triton PCS Holdings, Inc.
(incorporated by reference to Exhibit 3.6 of Triton's Registration
Statement on Form S-1 (File No. 333-85149)).
4.1--Form of warrant agreement (incorporated by reference to Exhibit 4.1
of Triton's Registration Statement on Form S-3 (File No. 333-49974)).
4.2--Indenture, dated as of May 4, 1998, among Triton PCS, Inc., the
Guarantors party thereto and PNC Bank, National Association
(incorporated by reference to Exhibit 4.1 to the Form S-4 Registration
Statement of Triton PCS, Inc. and its subsidiaries (File No.
333-57715)).
4.3--First Supplemental Indenture, dated as of March 30, 1999, to the
Indenture dated as of May 4, 1998 (incorporated by reference to
Exhibit 4.1 to the Form 10-Q of Triton PCS, Inc. and its subsidiaries,
for the quarter ended March 31, 1999).
4.4--Second Supplemental Indenture, dated as of December 21, 1999, to the
Indenture dated as of May 4, 1998 (incorporated by reference to
Exhibit 4.4 to Triton's Registration Statement on Form S-3 (File No.
333-49974)).
4.5--Indenture, dated as of January 19, 2001, among Triton PCS, Inc., the
Guarantors party thereto and The Bank of New York, trustee
(incorporated by reference to Exhibit 4.5 to Triton's Registration
Statement on Form S-3 (File No. 333-49974)).
4.6--First Amended and Restated Stockholders' Agreement, dated as of
October 27, 1999, among AT&T Wireless PCS LLC., Triton PCS Holdings,
Inc., and the cash equity investors and management stockholders party
thereto (incorporated by reference to Exhibit 10.47 to Triton's Form
10-Q for the quarter ended September 30, 1999).
4.7--Investors Stockholders' Agreement, dated as of February 4, 1998,
among CB Capital Investors, L.P., J.P. Morgan Investment Corporation,
Sixty Wall Street SBIC Fund, L.P., Private Equity Investors III, L.P.,
Equity-Linked Investors-II, Toronto Dominion Capital (USA), Inc.,
First Union Capital Partners, Inc., DAG-Triton PCS, L.P., and the
stockholders named therein (incorporated by reference to Exhibit 10.10
to the Form S-4 Registration Statement of Triton PCS, Inc. and its
subsidiaries (File No. 333-57715)).
4.8--Amendment No. 1 to Investors Stockholders' Agreement, dated as of
October 27, 1999, among CB Capital Investors, L.P., J.P. Morgan
Investment Corporation, Sixty Wall Street SBIC Fund, L.P., Private
Equity Investors III, L.P., Equity-Linked Investors-II, Toronto
Dominion Capital (USA), Inc., First Union Capital Partners, Inc.,
DAG-Triton PCS, L.P., and the stockholders named therein (incorporated
by reference to Exhibit 10.48 to Triton's Form 10-Q for the quarter
ended September 30, 1999).
*5.1--Opinion of Dow, Lohnes & Albertson, PLLC.
12.1--Statement setting forth computation of ratio of earnings to combined
fixed charges and preferred stock dividends.
23.1--Consent of PricewaterhouseCoopers LLP.
*23.2--Consent of Dow, Lohnes & Albertson, PLLC (contained in their opinion
filed as Exhibit 5.1).
24.1--Powers of Attorney (included on the signature page).
-----------------------
* To be filed by pre-effective amendment.
Item 17. Undertakings.
The undersigned Registrant hereby undertakes:
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(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(a) to include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(b) to reflect in the prospectus any facts or events arising
after the effective date of this 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 this registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(c) to include any material information with respect to the
plan of distribution not previously disclosed in this registration
statement or any material change to such information in this
registration statement;
provided, however, that the undertakings set forth in paragraphs (a) and (b)
above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed with or furnished to the Commission by the Registrant pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of 1934, as amended, that are
incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of a registrant's annual report pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934 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.
(5) If any of the securities are offered at competitive bidding, (a) to
use its best efforts to distribute prior to the opening of bids, to prospective
bidders, underwriters, and dealers, a reasonable number of copies of a
prospectus which at that time meets the requirements of Section 10(a) of the
Securities Act of 1933, and relating to the securities offered at competitive
bidding, as contained in the registration statement, together with any
supplements thereto, and (b) to file an amendment to the registration statement
reflecting the results of bidding, the terms of the reoffering and related
matters to the extent required by the applicable form, not later than the first
use, authorized by the issuer after the opening of bids, of a prospectus
relating to the securities offered at competitive bidding, unless no further
public offering of such securities by the issuer and no reoffering of such
securities by the purchasers is proposed to be made.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 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 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.
The Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act of 1933 shall be deemed to be part of this
registration statement as of the time it was declared effective.
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(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Triton PCS
Holdings, Inc. certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Berwyn, Commonwealth of Pennsylvania, on July
24, 2001.
TRITON PCS HOLDINGS, INC.
By: /s/ Michael E. Kalogris
-----------------------------------------------------
Michael E. Kalogris
Chief Executive Officer and Chairman of the
Board of Directors
POWER OF ATTORNEY
Triton PCS Holdings, Inc., a Delaware corporation, and each person whose
signature appears below, constitutes and appoints Michael E. Kalogris and
David D. Clark, and either of them, with full power to act without the other,
such person's true and lawful attorneys-in-fact, with full power of
substitution and resubstitution, for him or her and in his or her name, place
and stead, in any and all capacities, to sign this registration statement, any
subsequent related registration statement filed pursuant to Rule 462(b) or
Rule 462(d) promulgated under the Securities Act of 1933, and any and all
amendments to such registration statements and other documents in connection
therewith, and to file the same, and all exhibits thereto and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact, and each of them, full power and authority to do
and perform each and every act and thing necessary or desirable to be done in
and about the premises, as fully to all intents and purposes as he or she
might or could do in person, thereby ratifying and confirming all that said
attorneys-in-fact, or any of them, or their or his or her substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed below by the following persons on
behalf of Triton PCS Holdings, Inc. and in the capacities and on the dates
indicated.
Signature Title Date
/s/ Michael E. Kalogris
------------------------------------ Chief Executive Officer and Chairman of July 24, 2001
Michael E. Kalogris the Board of Directors
(Principal Executive Officer)
/s/ Steven R. Skinner
------------------------------------ President, Chief Operating July 24, 2001
Steven R. Skinner Officer and Director
/s/ David D. Clark
------------------------------------ Executive Vice President, Chief Financial July 24, 2001
David D. Clark Officer and Secretary
(Principal Financial Officer)
/s/ Andrew M. Davies
------------------------------------ Vice President and Controller July 24, 2001
Andrew M. Davies (Principal Accounting Officer)
/s/ Scott I. Anderson
------------------------------------ Director July 24, 2001
Scott I. Anderson
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Signature Title Date
/s/ John D. Beletic
----------------------------- Director July 24, 2001
John D. Beletic
/s/ Arnold L. Chavkin
------------------------------ Director July 24, 2001
Arnold L. Chavkin
/s/ John W. Watkins
------------------------------ Director July 24, 2001
John W. Watkins
/s/ William W. Hague
------------------------------ Director July 24, 2001
William W. Hague
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