As filed with the Securities and Exchange Commission
on May 12, 2004, Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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 19312
Berwyn, Pennsylvania (Zip Code)
(Address of Principal Executive Offices)
TRITON PCS HOLDINGS, INC.
STOCK AND INCENTIVE PLAN
(Full title of plan)
DOW, LOHNES & ALBERTSON, PLLC
Counsel
1200 New Hampshire Avenue, N.W.
Suite 800
Washington, D.C. 20036
(Name and Address of agent for service)
Telephone number of agent for service:
(202) 776-2000
CALCULATION OF REGISTRATION FEE
------------------------ --------------------- ------------------------ --------------------- -----------------------
Title of Securities Amount Being Proposed Maximum Proposed Maximum Amount Of
Being Registered Registered(*) Offering Price(**) Aggregate Offering Registration Fee
Price(**)
======================== ===================== ======================== ===================== =======================
Class A Common Stock, 3,000,000 $4.06 $12,180,000 $1,543.21
$0.01 par value per
share
------------------------ --------------------- ------------------------ --------------------- -----------------------
(*) In addition, pursuant to Rule 416(a) under the Securities Act of 1933 (the
"Securities Act"), this registration statement also covers an indeterminate
number of additional shares which may be offered and issued in accordance with
the Plan terms to prevent dilution from stock splits, stock dividends or similar
transactions.
(**) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act. This estimate is
based on the average of the high and low per share as reported on the New York
Stock Exchange on May 11, 2004.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing information specified in the instructions to
Part I of Form S-8 will be sent or given to employees participating in the Plan
as specified by Rule 428(b)(1) of the Securities Act. Those documents and the
documents incorporated by reference into this Registration Statement pursuant
to Item 3 of Part II of this Registration Statement, taken together, constitute
a prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
Triton PCS Holdings, Inc. (the "Company") incorporates the
following documents filed with the Securities and Exchange Commission (the
"Commission") herein by reference, other than information furnished under cover
of a Current Report on Form 8-K:
1. The Company's Annual Report of Form 10-K for the fiscal year ended
December 31, 2003;
2. The Company's Quarterly Report of Form 10-Q for the fiscal quarter
ended March 31, 2004;
3. The Company's Current Report of Form 8-K dated and filed with the
Commission May 10, 2004;
4. The Company's Current Report of Form 8-K dated and filed with the
Commission February 26, 2004; and
5. The Company's Form 8-A Registration Statement filed with the
Commission July 13, 2001.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Securities Exchange Act of 1934, as amended, subsequent to the
date of this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, other than information
furnished under cover of a Current Report on Form 8-K, are deemed to be
incorporated by reference in this Registration Statement and are a part hereof
from the date of filing such documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Delaware General Corporation Law authorizes corporations to limit
or eliminate the personal liability of directors of 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 the Company's directors
to the Company or its stockholders to the fullest extent permitted by the
Delaware statute. Specifically, the directors of the Company will not be
personably 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 the Company 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 the Company 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 proceeding 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
the Company the power to indemnify its officers, directors, employees and
agents to the full extent permitted by Delaware law.
The Company has entered into indemnification agreements with each of
its directors which generally provide for indemnification of the director to the
fullest extent provided by law. In addition, the Company has purchased
directors' and officers' liability insurance coverage for its directors and
certain of its officers in amounts customary for similarly situated
companies.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits.
Exhibit Number Description of Exhibit Page
============= ====================== ====
4.1 Amended and Restated Stock and Incentive Plan, as amended
(incorporated by reference to Exhibit 10.4
of the Company's Form 10-Q for the
quarter ended March 31, 2004)
5.1 Opinion of Dow, Lohnes & Albertson, PLLC 6
23.1 Consent of Independent Accountants 8
23.2 Consent of Dow, Lohnes & Albertson, PLLC 6
(contained in their opinion in Exhibit 5.1)
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement
to include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
Annual Report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of the
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 Securities Act and will be governed by
the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of Berwyn, Commonwealth of Pennsylvania on this 5th day
of May, 2004.
TRITON PCS HOLDINGS, INC.
By:/s/ Michael E. Kalogris
----------------------------
Michael E. Kalogris
Chief Executive Officer
(Principal Executive Officer)
Pursuant to the requirements of the Securities Act, this Registration
Statement is to be signed by the following persons in the capacities and on the
dates indicated.
Signature Capacity Date
========================== ======================================= ============
/s/ Michael E. Kalogris Chief Executive Officer (Principal May 5, 2004
-------------------------- Executive Officer) and Chairman of the
Michael E. Kalogris Board of Directors
/s/ David D. Clark Executive Vice President, Chief May 5, 2004
-------------------------- Financial Officer (Principal Financial
David D. Clark Officer) and Secretary
/s/ William A. Robinson Senior Vice President and Controller May 5, 2004
-------------------------- (Principal Accounting Officer)
William A. Robinson
/s/ Scott I. Anderson Director May 5, 2004
--------------------------
Scott I. Anderson
/s/ Arnold L. Chavkin Director May 5, 2004
--------------------------
Arnold L. Chavkin
/s/ Rohit M. Desai Director May 5, 2004
---------------------------
Rohit M. Desai
/s/ Mathias DeVito Director May 5, 2004
---------------------------
Mathias DeVito
/s/ Eric Haskell Director May 5, 2004
---------------------------
Eric Haskell
/s/ David N. Watson Director May 5, 2004
---------------------------
David N. Watson
Exhibit 5.1
Dow, Lohnes & Albertson, pllc
ATTORNEYS AT LAW
WASHINGTON, D.C.
1200 NEW HAMPSHIRE AVENUE, N.W. SUITE 800 WASHINGTON, D.C. 20036-6802
TELEPHONE 202 776 2000 FACSIMILE 202 776 2222
May 12, 2004
Triton PCS Holdings, Inc.
1100 Cassatt Road
Berwyn, Pennsylvania 19312
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as special counsel for Triton PCS Holdings, Inc., a
Delaware corporation ("Triton"), in connection with the preparation of the
Registration Statement on Form S-8 (the "Registration Statement") pertaining to
an additional 3,000,000 shares (the "Shares") of Class A Common Stock, $0.01 par
value per share, being registered for issuance by Triton pursuant to the Triton
PCS Holdings, Inc. Stock and Incentive Plan, as amended and restated ("the
Plan").
In preparing this opinion we have reviewed the following: (a) the
Registration Statement; (b) Triton's Second Restated Certificate of
Incorporation and Second Amended and Restated Bylaws; (c) the Plan; and (d) a
certificate of the Corporate Secretary of Triton relating to certain corporate
matters including, without limitation, the resolutions approving the Plan.
With respect to the foregoing documents, we have assumed: (i) the
authenticity of all documents submitted to us as originals, the conformity with
authentic original documents of all documents submitted to us as copies or
forms, the genuineness of all signatures and the legal capacity of natural
persons, and (ii) that the foregoing documents, in the forms thereof submitted
for our review, have not been altered, amended or repealed in any respect
material to our opinion as stated herein. We have not reviewed any documents
other than the documents listed above for purposes of rendering our opinion as
expressed herein, and we assume that there exists no provision of any such other
document that bears upon or is inconsistent with our opinion as expressed
herein. We have conducted no independent factual investigation of our own but
rather have relied solely upon the foregoing documents, thestatements, and
information set forth therein and the additional matters recited or assumed
herein, all of which we assume to be true, complete and accurate in all material
respects.
We are members of the Bar of the District of Columbia and do not
purport to be experts on, or generally familiar with, or certified to express
legal conclusions based upon, the laws of any other jurisdiction. As to matters
of law set forth below, our opinion is limited to matters of law arising under
the General Corporation Law of the State of Delaware (the "Applicable Law");
provided, however, that the term Applicable Law includes only those laws and
regulations that a lawyer exercising customary professional diligence would
reasonably recognize as being directly applicable to the issuance and sale of
the Shares pursuant to the Plan and does not include laws of the type described
in Section 19 of the Legal Opinion Accord of the American Bar Association
Section of Business Law (1991). We express no opinion as to conflicts of law
rules or the laws of any states or jurisdictions, including state or federal
laws regulating securities, or the rules and regulations of stock exchanges or
any other regulatory body, other than as specified above.
Based upon and subject to the foregoing and any other qualifications
stated herein, we are of the opinion that the Shares, when and to the extent
issued and paid for pursuant to the provisions of the Plan, will be validly
issued, fully paid and non-assessable, subject to limitations imposed by
bankruptcy, insolvency, reorganization, moratorium or similar laws and related
court decisions of general applicability relating to or affecting creditors'
rights generally.
We hereby consent to the use of this opinion as Exhibit 5.1 to the
Registration Statement and to all references to our firm in the Registration
Statement, provided, that in giving such consent we do not admit that we come
within the category of persons whose consent is required under Section 7 of the
Securities Act or the Rules and Regulations of the Commission thereunder.
Very truly yours,
DOW, LOHNES & ALBERTSON, PLLC
By:/s/Michael A. Hepburn
------------------------
Michael A. Hepburn
Member
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 6, 2004, except for Note 2,
as to which the date is February 17, 2004 relating to the financial statements
and financial statement schedules of Triton PCS Holdings, Inc. (the "Company"),
which appears in the Company's Annual Report on Form 10-K for the year ended
December 31, 2003.
/s/ PricewaterhouseCoopers LLP
Philadelphia, Pennsylvania
May 10, 2004