-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, JCGhfeViGkWol1NBZ7h5cOEfn48n0ZegH/4IykQmrdYgISQZKE3uTfkKPaixSmjf HepzF8tytn8/dMojbi3cSg== 0000950131-01-504492.txt : 20020413 0000950131-01-504492.hdr.sgml : 20020413 ACCESSION NUMBER: 0000950131-01-504492 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20011213 EFFECTIVENESS DATE: 20011213 FILER: COMPANY DATA: COMPANY CONFORMED NAME: AIRGATE PCS INC /DE/ CENTRAL INDEX KEY: 0001086844 STANDARD INDUSTRIAL CLASSIFICATION: TELEPHONE COMMUNICATIONS (NO RADIO TELEPHONE) [4813] IRS NUMBER: 582422929 STATE OF INCORPORATION: DE FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-75024 FILM NUMBER: 1812786 BUSINESS ADDRESS: STREET 1: 233 PEACHTREE ST NE STREET 2: SUITE 1700 CITY: ATLANTA STATE: GA ZIP: 30303 BUSINESS PHONE: 4045257272 MAIL ADDRESS: STREET 1: 233 PEACHTREE ST STREET 2: SUITE 1700 CITY: ATLANTA STATE: GA ZIP: 30303 S-8 1 ds8.txt FORM S-8 As filed with the Securities and Exchange Commission on December 13, 2001 Registration No. 333- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ----------------- FORM S-8 REGISTRATION STATEMENT Under The Securities Act of 1933 ----------------- AirGate PCS, Inc. (Exact name of registrant as specified in its charter) ----------------- Delaware 58-2422929 (State or Other (I.R.S. Jurisdiction EmployerIdentification ofIncorporation or No.) Organization) Harris Tower, Suite 1700 233 Peachtree Street, N.E. Atlanta, Georgia 30303 (404) 525-7272 (Address, including Zip Code, and Telephone Number of Principal Executive Offices) ----------------- AirGate PCS, Inc. Amended and Restated 2000 Long Term Incentive Plan (Full Title of the Plan) ----------------- Barbara L. Blackford Vice President, General Counsel and Corporate Secretary Harris Tower, Suite 1700 233 Peachtree Street, N.E. Atlanta, Georgia 30303 (Name and Address of Agent for Service) (404) 525-7272 (Telephone Number, Including Area Code, of Agent for Service) ----------------- Copy to: Robert F. Wall, Esq. R. Cabell Morris, Esq. Winston & Strawn 35 West Wacker Drive Chicago, Illinois 60601 (312) 558-5600 ----------------- CALCULATION OF REGISTRATION FEE - -------------------------------------------------------------------------------- - --------------------------------------------------------------------------------
Proposed Proposed Amount Maximum Maximum to be Offering Price Aggregate Amount of Title of Securities to be Registered Registered(1) Per Share Offering Price Registration fee - ----------------------------------------------------------------------------------------------------------- Common Stock, par value $0.01 per share 478,417 shares (2) $32.04 (3) $15,328,481 (3) $3,664 - ----------------------------------------------------------------------------------------------------------- Common Stock, par value $0.01 per share 628,992 shares (4) $53.38 (5) $33,575,593 (5) $8,025
- -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- (1) Pursuant to Rule 416(c) under the Securities Act of 1933, as amended (the "1933 Act"), this Registration Statement also covers an indeterminate amount of interests to be offered or sold pursuant to the long-term incentive plan described herein. (2) Options for 478,417 shares of the registrant's common stock have been issued for a weighted-average exercise price of $32.04 per share. (3) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h)(1) under the 1933 Act on the basis of the weighted-average exercise price of the outstanding options. (4) There are currently 628,992 shares of the registrant's common stock reserved or available for issuance as options pursuant to the AirGate PCS, Inc. Amended and Restated 2000 Long Term Incentive Plan (the "Plan"). The number of shares being registered includes an indeterminate number of additional shares which may be necessary to adjust the number of shares reserved for issuance pursuant to the Plan as the result of a stock split, stock dividend or similar adjustment of the outstanding common stock of the registrant pursuant to Rule 416(a). (5) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h)(1) and (c) under the 1933 Act on the basis of the average of the high and low closing prices of the registrant's common stock on the Nasdaq National Market on December 7, 2001. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The following documents previously filed with the Securities and Exchange Commission (the "Commission") by AirGate PCS, Inc. (the "Registrant") pursuant to the Securities Exchange Act of 1934, as amended (the "1934 Act"), are incorporated by reference herein: (1) The Registrant's Annual Report on Form 10-K for the fiscal year ended September 30, 2001. (2) The Registrant's Current Reports on Form 8-K filed with the Securities and Exchange Commission on November 14, November 16, November 27 and November 30, 2001. (3) The description of the Registrant's common stock, $0.01 par value ("Common Stock"), contained in the Registrant's Registration Statement on Form 8-A (File No. 0-27455) filed under the 1934 Act, including any amendment thereto or report filed for the purpose of updating such description. All documents subsequently filed with the Commission by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the 1934 Act, prior to the filing of a post-effective amendment (i) which indicates that all securities offered herein have been sold or (ii) which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be part hereof from the respective dates of filing of such documents. Any statement contained herein or in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes hereof or of the related prospectus to the extent that a statement contained herein or in any other subsequently filed document which is also incorporated or deemed to be incorporated herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. Item 4. Description of Securities. Not applicable. Item 5. Interests of Named Experts and Counsel. None. Item 6. Indemnification of Directors and Officers. In accordance with General Corporation Law of the State of Delaware (being chapter 1 of Title 8 of the Delaware code), the Registrant's Certificate of Incorporation provides as follows: The Registrant shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Registrant to procure a judgment in its favor by reason of the fact that such person acted in any of the capacities set forth above, against expenses (including attorney's fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if such person acted under similar standards, provided that the Registrant receives a written undertaking by or on behalf of the director or officer to repay such amount if it is ultimately determined that that such person is not entitled to be indemnified by the Registrant. To the extent that a director or officer of the Registrant has been successful in the defense of any action, suit or proceeding referred to above or in the defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorney's fees) actually and reasonably incurred by him or her in connection therewith, that indemnification provided for by the Certificate of Incorporation shall not be deemed exclusive of any other rights to which the indemnified party may be entitled; and that the Registrant is empowered to purchase and maintain insurance on behalf of a director or officer of the Registrant against any liability asserted against him or her in any such capacity, or arising out of such person's status as such, whether or not the Registrant would have the power to indemnify him against such liabilities under the Certificate of Incorporation. In addition to indemnification provided to the Registrant's officers and directors in the Certificate of Incorporation and under the laws of Delaware, the Registrant has entered into indemnification agreements with certain officers and directors to provide further assurances and protection from liability that they may incur in their respective positions and duties in connection with the public offering or as a fiduciary of the Registrant and its shareholders. The Registrant has agreed to indemnify and hold harmless, to the extent permitted under Delaware law, each person and affiliated person (generally, any director, officer, employee, controlling person, agent, or fiduciary of the indemnified person), provided that the indemnified person was acting or serving at the Registrant's request in his capacity as either an officer, director, employee, controlling person, fiduciary or other agent or affiliate of the Registrant. Under the indemnification agreements, each person is indemnified against any and all losses, claims, damages, expenses and liabilities, joint or several, (including attorney's fees, expenses and amount in settlement) that occur in connection with any threatened, pending or completed action, suit, proceeding, alternative dispute resolution mechanism or hearing, inquiry or investigation that such indemnified person believes in good faith may lead to the institution of such action, under the Securities Act of 1933, Securities Exchange Act of 1934 or other federal or state statutory law or regulation, at common law or otherwise, which relate directly or indirectly to the registration, purchase, sale or ownership of any securities of the Registrant or to any fiduciary obligation owed with respect to the Registrant and its stockholders. As a condition to receiving indemnification, indemnified persons are required to give notice in writing of any claim for which indemnification may be sought under such agreement. The agreement provides that an indemnified person may receive indemnification against (1) expenses (including attorney's fees and other costs, expenses and obligations incurred), judgments, fines and penalties; (2) amounts paid in settlement (approved by the Registrant); (3) federal, state, local taxes imposed as a result of receipt of any payments under the indemnification agreement; and (4) all interest, assessments and other charges paid or payable in connection with any expenses, costs of settlement or taxes. An indemnified person will be indemnified against expenses to the extent that he is successful on the merits or otherwise, including dismissal of an action without prejudice, in defense of any action, suit, proceeding, inquiry or investigation. Expenses that the indemnified person have or will incur in connection with a suit or other proceeding may be received in advance within 10 days of written demand to the Registrant. Prior to receiving indemnification or being advanced expenses, a committee, consisting of either members of the board of directors or any person appointed by the board of directors, must make a determination of whether the indemnified person is entitled to indemnification under Delaware law. If there is a change in control (as defined in the indemnification agreement) that occurs without majority approval of the board of directors, then the committee will consist of independent legal counsel selected by the indemnified person and approval by the Registrant to render a written opinion as to whether and the extent of indemnification that the indemnified person is entitled, which will be binding on the Registrant Under the indemnification agreement, an indemnified person may appeal a determination by the committee not to grant indemnification or advance expenses by commencing a legal proceeding. Failure of the committee to make an indemnification determination or the termination of any claim by judgment, order, settlement, plea of nolo contendere, or conviction does not create a presumption that either (1) the indemnified person did not meet a particular standard of conduct or belief or (2) that the court has determined that indemnification is not available. Under the indemnification agreement, an indemnified person is entitled to contribution from the Registrant for losses, claims, damages, expenses or liabilities as well as other equitable considerations upon the determination of a court of competent jurisdiction that indemnification is not available. The amount contributed 2 by the Registrant will be in proportion, as appropriate, to reflect the relative benefits received by the Registrant and the indemnified person or, if such contribution is not permitted under Delaware law, then the relative benefit will be considered with the relative fault of both parties. In connection with the registration of Registrant's securities, the relative benefits received by the Registrant and indemnified person will be deemed to be in the same respective proportions of the net proceeds from the offering (less expenses) received by the Registrant and the indemnified person. The relative fault of the Registrant and the indemnified person is determined by reference to whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Registrant or the indemnified person and their relative intent, knowledge, access to information and opportunity to correct such statement or omission. Contribution paid takes into account the equitable considerations, if any, instead of a pro rata or per capital allocation. In connection with the offering of the Registrant's securities, an indemnified person will not be required to contribute any amount in excess of the lesser of (1) the proportion of the total of such losses, claims, damages, or liabilities indemnified against equal to the proportion of the total securities sold under the registration statement sold by the indemnified person or (2) the proceeds received by the indemnified person from the sale of securities under the registration statement. Contribution will not be available if such person is found guilty of fraudulent misrepresentation, as defined in the agreement. In the event that the Registrant is also obligated under a claim and upon written notice to the indemnified person, the Registrant is entitled to assume defense of the claim and select counsel which is approved by the indemnified person. Upon receipt of the indemnified person's approval, the Registrant will directly incur the legal expenses and as a result will have the right to conduct the defense as it sees fit in its sole discretion, including the right to settle any claim against any indemnified party without consent of the indemnified person. Item 7. Exemption from Registration Claimed. Not Applicable. Item 8. Exhibits. The following documents are filed as exhibits to this Registration Statement:
Exhibit No. Description - ----------- ----------- 4.1 Amended and Restated Certificate of Incorporation of the Registrant (incorporated herein by reference to Exhibit 3.1 to the Registration Statement on Form S-1/A, filed by the Registrant with the Commission on June 15, 1999 (SEC File Nos. 333-79189-02 and 333-79189-01)). 4.2 Amended and Restated Bylaws of the Registrant (incorporated herein by reference to Exhibit 3.2 to the Registration Statement on Form S-1/A, filed by the Registrant with the Commission on June 15, 1999 (SEC File Nos. 333-79189-02 and 333-79189-01)). 4.3 Specimen certificate representing the Common Stock (incorporated herein by reference to Exhibit 4.1 to the Registration Statement on Form S-1/A, filed by the Registrant with the Commission on June 15, 1999 (SEC File Nos. 333-79189-02 and 333-79189-01)). 5.1 Opinion of Winston & Strawn. 23.1 Consent of KPMG LLP. 23.2 Consent of Deloitte & Touche LLP. 23.3 Consent of Winston & Strawn (included in Exhibit 5.1). 24.1 Powers of attorney (incorporated herein by reference to Exhibit 24.1 to the Registration Statement on Form S-3, filed by the Registrant with the Commission on November 13, 2001). 99.1 AirGate PCS, Inc. Amended and Restated 2000 Long Term Incentive Plan.
3 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: (i) To include any prospectus required by Section 10(a)(3) of the 1933 Act; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. 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% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in this registration statement; and (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the 1934 Act that are incorporated by reference in the registration statement. (2) That, for the purpose of determining any liability under the 1933 Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The Registrant hereby undertakes that, for purposes of determining any liability under the 1933 Act, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the 1934 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 1933 Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the 1933 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 1933 Act and will be governed by the final adjudication of such issue. 4 SIGNATURES The Registrant. Pursuant to the requirements of the Securities Act of 1933, 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 Atlanta, the State of Georgia, on December 13, 2001. AIRGATE PCS, INC. By: /s/ THOMAS M. DOUGHERTY Name: Thomas M. Dougherty Title: President and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the date indicated.
Signature Title Date --------- ----- ---- /s/ THOMAS M. DOUGHERTY President, Chief Executive Officer and December 13, 2001 - ----------------------- Director (Principal Executive Officer) Thomas M. Dougherty /s/ ALAN B. CATHERALL Chief Financial Officer December 13, 2001 - ----------------------- (Principal Financial and Accounting Alan B. Catherall Officer) * Director December 13, 2001 - ----------------------- Bernard A. Bianchino /s/ MICHAEL S. CHAE Director December 13, 2001 - ----------------------- Michael S. Chae * Director December 13, 2001 - ----------------------- John R. Dillon * Director December 13, 2001 - ----------------------- Robert A. Ferchat * Director December 13, 2001 - ----------------------- Sidney E. Harris * Director December 13, 2001 - ----------------------- Barry J. Schiffman /s/ TIMOTHY M. YAGER Director December 13, 2001 - ----------------------- Timothy M. Yager
* /s/ THOMAS M. DOUGHERTY - ----------------------- Pursuant to a Power-Of-Attorney filed as Exhibit 24.1 to the Registration Statement on Form S-3, filed by the Registrant with the Securities and Exchange Commission on November 13, 2001. 5 INDEX TO EXHIBITS
Exhibit No. Description - ----------- ----------- 4.1 Amended and Restated Certificate of Incorporation of the Registrant (incorporated herein by reference to Exhibit 3.1 to the Registration Statement on Form S-1/A, filed by the Registrant with the Commission on June 15, 1999 (SEC File Nos. 333-79189-02 and 333-79189-01)). 4.2 Amended and Restated Bylaws of the Registrant (incorporated herein by reference to Exhibit 3.2 to the Registration Statement on Form S-1/A, filed by the Registrant with the Commission on June 15, 1999 (SEC File Nos. 333-79189-02 and 333-79189-01)). 4.3 Specimen certificate representing the Common Stock (incorporated herein by reference to Exhibit 4.1 to the Registration Statement on Form S-1/A, filed by the Registrant with the Commission on June 15, 1999 (SEC File Nos. 333-79189-02 and 333-79189-01)). 5.1 Opinion of Winston & Strawn. 23.1 Consent of KPMG LLP. 23.2 Consent of Deloitte & Touche LLP. 23.3 Consent of Winston & Strawn (included in Exhibit 5.1). 24.1 Powers of attorney (incorporated herein by reference to Exhibit 24.1 to the Registration Statement on Form S-3, filed by the Registrant with the Commission on November 13, 2001). 99.1 AirGate PCS, Inc. Amended and Restated 2000 Long Term Incentive Plan.
6 EX-5.1 3 dex51.txt OPINION OF WINSTON & STRAWN Exhibit 5.1 [LETTERHEAD OF WINSTON & STRAWN] December 13, 2001 AirGate PCS, Inc. Harris Tower, Suite 1700 233 Peachtree Street, N.E. Atlanta, Georgia 30303 Ladies and Gentlemen: We have acted as special counsel for AirGate PCS, Inc., a Delaware corporation (the "Company"), in connection with the Form S-8 Registration Statement (the "Registration Statement") relating to the registration of 1,107,409 shares (the "Shares") of the Company's common stock, par value $0.01 per share ("Common Stock"), issuable pursuant to the terms and in the manner set forth in the AirGate PCS, Inc. Amended and Restated 2000 Long Term Incentive Plan (the "Plan"). This opinion letter is delivered in accordance with the requirements of Item 601(b)(5) of Regulation S-K promulgated under the Securities Act of 1933, as amended (the "Act"). In connection with this opinion letter, we have examined and are familiar with originals or copies, certified or otherwise identified to our satisfaction, of: (i) the Registration Statement, to be filed with the Securities and Exchange Commission (the "Commission") under the Act; (ii) the Restated Certificate of Incorporation of the Company, as currently in effect; (iii) the Restated Bylaws of the Company, as currently in effect; (iv) the Plan; and (v) resolutions of the Board of Directors of the Company relating to, among other things, the approval of the Plan, the reservation for issuance of the Shares of Common Stock under the Plan and the filing of the Registration Statement. We have also examined such other documents as we have deemed necessary or appropriate as a basis for the opinions set forth below. In our examination, we have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as certified or photostatic copies and the authenticity of the originals of such latter documents. As to any facts material to this opinion letter that we did not independently establish or verify, we have relied upon oral or written statements and representations of officers and other representatives of the Company and others. Based upon and subject to the foregoing, we are of the opinion that the Shares of Common Stock have been duly authorized by the requisite corporate action on the part of the Company and, when issued pursuant to the terms and in the manner set forth in the Plan, will be validly issued, fully paid and nonassessable. The foregoing opinions are limited to the laws of the United States and the General Corporation Law of the State of Delaware, including the applicable provisions of the Delaware Constitution and reported judicial decisions interpreting these laws. We express no opinion as to the application of the securities or blue sky laws of the various states to the issuance or sale of the Shares or the resale of the Shares. We hereby consent to the filing of this opinion letter with the Commission as an exhibit to the Registration Statement. In giving such consent, we do not concede that we are experts within the meaning of the Act or the rules and regulations thereunder or that this consent is required by Section 7 of the Act. Very truly yours, /S/ WINSTON & STRAWN Winston & Strawn EX-23.1 4 dex231.txt CONSENT OF KPMG LLP. Exhibit 23.1 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS The Board of Directors AirGate PCS, Inc.: We consent to the incorporation by reference in this Registration Statement on Form S-8 of AirGate PCS, Inc. and subsidiaries of our reports dated November 9, 2001, with respect to the consolidated balance sheets of AirGate PCS, Inc. and subsidiaries as of September 30, 2001 and 2000, and the related consolidated statements of operations, stockholders' equity (deficit), and cash flows for the years ended September 30, 2001 and 2000, and the nine months ended September 30, 1999, and the related financial statement schedule, which reports appear in the September 30, 2001, annual report on Form 10-K of AirGate PCS, Inc. and subsidiaries. /s/ KPMG LLP Atlanta, Georgia December 11, 2001 EX-23.2 5 dex232.txt CONSENT OF DELOITTE & TOUCHE LLP. Exhibit 23.2 INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in this Registration Statement of AirGate PCS, Inc. on Form S-8 of our report dated November 5, 2001 on the consolidated financial statements of iPCS, Inc. and Subsidiaries and Predecessor as of September 30, 2001 and December 31, 2000 and for the nine months ended September 30, 2001, for the year ended December 31, 2000 and for the period from January 22, 1999 (date of inception) through December 31, 1999, appearing in the Current Report on Form 8-K of AirGate PCS, Inc. filed on November 30, 2001. /s/ DELOITTE & TOUCHE LLP Davenport, Iowa December 11, 2001 EX-99.1 6 dex991.txt AIRGATE AMENDED & RESTATED 2000 LONG TERM INCENTIV Exhibit 99.1 AIRGATE PCS, INC. AMENDED AND RESTATED 2000 LONG TERM INCENTIVE PLAN AIRGATE PCS, INC. AMENDED AND RESTATED 2000 LONG TERM INCENTIVE PLAN 1. History, Purpose and Effective Date. The iPCS, Inc. 2000 Long Term Incentive Plan (the "Original Plan") was adopted by the Board of Directors of iPCS, Inc. ("iPCS") on May 5, 2000 and was established to increase stockholder value and to advance the interests of iPCS and its subsidiaries by awarding equity and performance based incentives designed to attract, retain and motivate employees, directors who are not employees of iPCS or its subsidiaries and consultants who perform services for iPCS or its subsidiaries. Pursuant to a Plan of Merger and Agreement between AirGate PCS, Inc. ("AirGate"), and iPCS dated August 28, 2001 (the "Merger Agreement"), iPCS merged with and into a wholly-owned subsidiary of AirGate with iPCS surviving the merger as a wholly-owned subsidiary of AirGate. Under the Merger Agreement, AirGate agreed to assume the obligations of iPCS under the Original Plan and the options granted under the Original Plan to acquire iPCS common stock were converted into the right to acquire common stock of AirGate. AirGate desires to amend and restate the Original Plan to: (a) Assume the Original Plan as provided in the Merger Agreement; (b) Assume the ability of iPCS to make awards to directors and employees of AirGate and its subsidiaries, including iPCS (collectively, the "Company"); (c) Adjust the shares authorized to reflect the application of the exchange ratio provided for in the Merger Agreement; (d) Modify the definition of Change in Control of the Company as provided herein; and (e) Make other changes it deems necessary or appropriate in connection with the assumption of the Original Plan as amended and restated hereby. As used in the Plan, the term "subsidiary" means any business, whether or not incorporated, in which AirGate or iPCS have an ownership interest. The following constitutes an amendment, restatement and continuation of the Original Plan in the form of "AirGate PCS, Inc. Amended and Restated 2000 Long Term Incentive Plan" (the "Plan"), which amendment and restatement shall become effective as of the date (the "Effective Date") it is adopted by the Board of Directors of AirGate (the "Board"). The Plan shall be unlimited in duration and, in the event of Plan termination, shall remain in effect as long as any Awards (as defined in Section 3) under it are outstanding; provided, however, that no Incentive Stock Options (as defined in subsection 5.1) may be granted under the Plan on a date that is more than ten years from the date the Plan is adopted. 2. Administration. 2.1. Administration by Board or Committee. The Plan shall be administered by the Compensation Committee of the Board (the "Committee"), which Committee shall include at least two persons who constitute "non-employee directors" within the meaning of Rule 16b-3 promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange Act") and "outside directors" within the meaning of Treas. Reg. (S) 1.162-27(e)(3). Notwithstanding the foregoing, the Plan shall be administered by the Board with respect to Awards to directors who are not employees of the Company and, with respect to such Awards, the term "Committee" as used herein shall be deemed to refer to the Board. 2.2. Authority. Subject to the provisions of the Plan, the Committee shall have the authority to (a) manage and control the operation of the Plan, (b) conclusively interpret and construe the provisions of the Plan, and prescribe, amend and rescind rules, regulations and procedures relating to the Plan, (c) make Awards under the Plan, in such forms and amounts and subject to such restrictions, limitations and conditions as it deems appropriate, including, without limitation, Awards which are made in combination with or in tandem with other Awards (whether or not contemporaneously granted) or compensation or in lieu of current or deferred compensation, (d) modify the terms of, cancel and reissue, or repurchase outstanding Awards (including, but not limited to, repurchasing or settling any Option (as defined in subsection 5.1) in cash upon a Change in Control (as defined in subsection 11.2)), (e) prescribe the form of agreement, certificate or other instrument evidencing any Award under the Plan, (f) correct any defect or omission and reconcile any inconsistency in the Plan or in any Award hereunder, (g) extend the exercise or vesting date of any Award under the Plan, (h) accelerate the vesting or exercise date of any Award under the Plan, and (i) make all other determinations and take all other actions as it deems necessary or desirable for the implementation and administration of the Plan; provided, however, that only after approval of the Board may the Committee cancel or modify any Option granted for the purpose of reissuing an additional option to the option holder at a lower exercise price. The determination of the Committee on matters within its authority shall be conclusive and binding on the Company and all other persons. The Committee's determinations under the Plan need not be uniform and may be made selectively among persons who receive, or are eligible to receive, Awards, whether or not such persons are similarly situated. 2.3. Delegation to Officers. Notwithstanding the foregoing provisions of this Section 2, the Committee, subject to the terms and conditions of the Plan, may delegate to any officer of the Company, if such individual is then serving as a member of the Board, the authority to act as a subcommittee of the Committee for purposes of making Awards under the Plan with respect to such number of shares as the Committee shall designate annually, to such employees of the Company who are not subject to section 16(a) of the Exchange Act as such officer shall determine in his or her sole discretion, and such officer shall have the authority and duties of the Committee with respect to such grants. 3. Participation. Subject to the terms and conditions of the Plan, the Committee shall determine and designate, from time to time, from among the employees, directors and consultants who provide services to the Company those persons who will be granted one or more Awards under the Plan, and thereby become "Participants" in the Plan. For purposes of the preceding sentence, in the case of any director who is appointed by a stockholder pursuant to the right reserved to such stockholder (the "Director Stockholder") in accordance with the terms of its investment, the "director" for purposes of the grant of Awards under the Plan shall be, at the election of the Director Stockholder, the Director Stockholder and, to the extent the Award is made to the Director Stockholder in accordance with the Director Stockholder's election, the individual appointed as a director by the Director Stockholder shall have no rights hereunder as a director or Participant with respect to such Award. In the discretion of the Committee, and subject to the terms of the Plan, a Participant may be granted any Award permitted under the provisions of the Plan, and more than one Award may be granted to a Participant; provided, however, that Incentive Stock Options under the Plan may only be awarded to employees of AirGate and its subsidiary corporations (as defined in section 424(f) of the Internal Revenue Code of 1986, as amended (the "Code")). Except as otherwise agreed by the Committee and the Participant, or except as otherwise provided in the Plan, an Award under the Plan shall not affect any previous Award under the Plan or an award under any other plan maintained by the Company. For purposes of the Plan, the term "Award" shall mean any award or benefit granted to any Participant under the Plan. In the event any Award is made to a Director Stockholder the date on which the Director Stockholder ceases to be a Director Stockholder shall be treated as the date on which the Director Stockholder terminates its service. 4. Shares Subject to the Plan. 4.1. Number of Shares Reserved. The shares of common stock of AirGate ("Stock") with respect to which Awards may be made under the Plan shall be shares currently authorized but unissued or currently held or subsequently acquired by AirGate as treasury shares, including shares purchased in the open market or in private transactions. The aggregate maximum number of shares of Stock which may be issued with respect to Awards under the Plan shall be 1,107,409 (subject to adjustments described in subsection 4.4) as increased on December 31 of each year from and including December 31, 2001 by a number of shares equal to one percent (1%) of the number of shares of Stock outstanding on such date; provided, however, that any such increase shall be made only to the extent that AirGate has sufficient authorized and unreserved Stock for such purpose; and further provided that the maximum aggregate number of shares to be issued under the Plan shall not exceed 1,274,954 (subject to adjustments described in subsection 4.4). Subject to the maximum aggregate number of shares that may be issued under the Plan, the increase provided by the preceding sentence shall be made each December 31, regardless of the number of shares remaining available for issuance under the Plan on such date. 4.2. Individual Limits on Awards. Notwithstanding any other provision of the Plan to the contrary, the maximum aggregate number of shares of Stock that may be granted or awarded to any Participant under the Plan for any calendar year shall be 103,590 (as adjusted in accordance with subsection 4.4) and there shall be no limit on cash payouts with respect to grants or awards under the Plan in any calendar year to any Covered Employee (within the meaning of section 162(m) of the Code). The determination made under the foregoing provisions of this subsection 4.2 shall be based on the shares subject to the Awards at the time of grant, regardless of when the Awards become exercisable. 4.3. Reusage of Shares. (a) In the event of the termination (by reason of forfeiture, expiration, cancellation, surrender or otherwise) of any Award under the Plan, that number of shares of Stock that was subject to the Award but not delivered shall again be available for Awards under the Plan. (b) In the event that shares of Stock are delivered under the Plan as a Stock Award (as defined in Section 7) and are thereafter forfeited or reacquired by the Company pursuant to rights reserved upon the award thereof, such forfeited or reacquired shares shall again be available for Awards under the Plan. (c) Notwithstanding the provisions of paragraphs (a) or (b), the following shares shall not be available for reissuance under the Plan: (i) shares with respect to which the Participant has received the benefits of ownership (other than voting rights), either in the form of dividends or otherwise; (ii) shares which are withheld from any Award or payment under the Plan to satisfy tax withholding obligations (as described in subsection 10.5); and (iii) shares which are surrendered to fulfill tax obligations (as described in subsection 10.5). 4.4. Adjustments to Shares Reserved. In the event of any merger, consolidation, reorganization, recapitalization, spinoff, stock dividend, stock split, reverse stock split, exchange or other distribution with respect to shares of Stock or other change in the corporate structure or capitalization affecting the Stock, the type and number of shares of Stock which are or may be subject to Awards under the Plan (including the individual limits described in subsection 4.2) and the terms of any outstanding Awards (including the price at which shares of Stock may be issued pursuant to an outstanding award) shall be equitably adjusted by the Committee, in its sole discretion, to preserve the value of benefits awarded or to be awarded to Participants under the Plan. 5. Options. 5.1. Definitions. The grant of an "Option" under this Section 5 entitles the Participant to purchase shares of Stock at the Option Price (as defined in subsection 5.3), subject to the terms of this Section 5. Options granted under this Section 5 may be either Incentive Stock Options or Non-Qualified Stock Options, as determined in the discretion of the Committee. An "Incentive Stock Option" is an Option that is intended to satisfy the requirements applicable to an "incentive stock option" described in section 422(b) of the Code. A "Non-Qualified Stock Option" is an Option that is not intended to be an "incentive stock option" as that term is described in section 422(b) of the Code. 5.2. Restrictions Relating to Incentive Stock Options. To the extent that the aggregate fair market value of Stock with respect to which Incentive Stock Options are exercisable for the first time by any individual during any calendar year (under all plans of AirGate and its subsidiaries (as defined in section 424(f) of the Code)) exceeds $100,000, such options shall be treated as Non-Qualified Stock Options, to the extent required by section 422 of the Code. 5.3. Option Price. The price at which shares of Stock may be purchased upon the exercise of an Option (the "Option Price") shall be established by the Committee or shall be determined by a method established by the Committee at the time the Option is granted; provided, however, that in no event shall such price be less than the greater of: (i) 100% of the Fair Market Value (as defined in subsection 10.11) of a share of Stock as of the date on which the Option is granted; or (ii) the par value of a share of Stock on such date. 5.4. Vesting. An Option shall become exercisable as determined by the Committee. 5.5. Termination of Service. Unless otherwise designated by the Committee, in the event of termination of the Participant's employment or other service with the Company unexercised, unexpired Options shall be affected as follows: (a) If a Participant's employment or other service terminates for any reason other than for cause, retirement, death, or disability (as each such term is defined in a written agreement between such Participant and the Company, or if no such agreement exists, then as such terms are defined by the Committee from time to time), then all unexercised, unexpired Options, to the extent exercisable immediately before such termination, may be exercised in whole or in part, not later than the 90th day after such termination (but no later than the stated Expiration Date). (b) If a Participant's employment or other service terminates due to retirement (any termination of employment after age 65 other than for cause) from the Company, then all unexercised, unexpired Options, whether or not exercisable on the date of such termination, would be exercisable in whole or in part within one year after such termination date (but no later than the stated Expiration Date). (c) If a Participant's employment or other service terminates due to death or disability, then all unexercised, unexpired Options, whether or not exercisable on the date of such termination, may be exercised, in whole or in part, within six months after such termination (but no later than the stated Expiration Date). If such termination is due to death, the Option would be exercisable during the applicable period by the Participant's (i) personal representative or by the person to whom the Option is transferred by will or the applicable laws of descent and distribution, or (ii) a beneficiary designated in accordance with the Committee's rules. (d) If a Participant's employment or other service is terminated by the Company for cause (as determined by the Committee), all Options (whether or not then exercisable) which the Participant holds will automatically terminate effective immediately upon such termination. (e) Notwithstanding the foregoing, the Committee, in its sole discretion, may extend any of the time limits set forth in this Section 5.5 so as to permit any unexercised portion thereof to be exercised at any time within the time period established by the Committee. In no event shall the term of any Option be extended beyond the 10th anniversary of date an Option is granted. 5.6. Exercise. Except as otherwise expressly provided in the Plan, an Option may be exercised, in whole or in part, in accordance with terms and conditions established by the Committee at the time of grant (or, if allowed by the Plan, terms and conditions established by the Committee at any time prior to date on which the Option is exercised); provided, however, that no Option shall be exercisable after the Expiration Date (as defined in Section 9) applicable to that Option. The full Option Price of each share of Stock purchased upon the exercise of any Option shall be paid at the time of such exercise and, as soon as practicable thereafter, a certificate representing the shares so purchased shall be delivered to the person entitled thereto. The Option Price shall be payable in cash, in shares of Stock previously acquired by the Participant, which have been held by the Participant for at least six months (valued at Fair Market Value as of the day of exercise), in any combination of cash and Stock, or pursuant to any other method of payment approved in advance by the Committee. The exercise of an Option will result in the surrender of the corresponding rights under a tandem Stock Appreciation Right, if any. 6. Stock Appreciation Rights. 6.1. Definition. Subject to the terms of this Section 6, a "Stock Appreciation Right" granted under the Plan entitles the Participant to receive, in cash or Stock, value equal to all or a portion of the excess of: (a) the Fair Market Value of a specified number of shares of Stock at the time of exercise; over (b) a specified price which shall not be less than 100% of the Fair Market Value of the Stock at the time the Stock Appreciation Right is granted, or, if granted in tandem with an Option, the exercise price with respect to shares under the tandem Option. 6.2. Exercise. If a Stock Appreciation Right is not in tandem with an Option, then the Stock Appreciation Right shall be exercisable in accordance with the terms established by the Committee in connection with such rights after the Expiration Date applicable to that Stock Appreciation Right. If a Stock Appreciation Right is in tandem with an Option, then the Stock Appreciation Right shall be exercisable at the time the tandem Option is exercisable. The exercise of a Stock Appreciation Right will result in the surrender of the corresponding rights under the tandem Option. 6.3. Settlement of Award. Upon the exercise of a Stock Appreciation Right, the value to be distributed to the Participant, in accordance with subsection 6.1, shall be distributed in shares of Stock (valued at their Fair Market Value at the time of exercise), in cash, or in a combination thereof, in the discretion of the Committee. 6.4. Post-Exercise Limitations. The Committee, in its discretion, may impose such restrictions on shares of Stock acquired pursuant to the exercise of a Stock Appreciation Right as it determines to be desirable, including, without limitation, restrictions relating to disposition of the shares and forfeiture restrictions based on service, performance, ownership of Stock by the Participant, and such other factors as the Committee determines to be appropriate. 7. Stock Awards. 7.1. Definition. Subject to the terms of this Section 7, a "Stock Award" under the Plan is a grant of shares of Stock to a Participant, the earning, vesting or distribution of which is subject to one or more conditions established by the Committee. Such conditions may relate to events (such as performance or continued service) occurring before or after the date the Stock Award is granted, or the date the Stock is earned by, vested in or delivered to the Participant. If the vesting of Stock Awards is subject to conditions occurring after the date of grant, the period beginning on the date of grant of a Stock Award and ending on the vesting or forfeiture of such Stock (as applicable) is referred to as the "Restricted Period". Stock Awards may provide for delivery of the shares of Stock at the time of grant, or may provide for a deferred delivery date. 7.2. Terms and Conditions of Awards. Beginning on the date of grant (or, if later, the date of distribution) of shares of Stock comprising a Stock Award, and including any applicable Restricted Period, the Participant, as owner of such shares, shall have the right to vote such shares; provided, however, that payment of dividends with respect to Stock Awards shall be subject to the following: (a) On and after the date that a Participant has a fully earned and vested right to the shares comprising a Stock Award, and the shares have been distributed to the Participant, the Participant shall have all dividend rights (and other rights) of a stockholder with respect to such shares. (b) Prior to the date that a Participant has a fully earned and vested right to the shares comprising a Stock Award, the Committee, in its sole discretion, may award Dividend Rights (as defined below) with respect to such shares. (c) On and after the date that a Participant has a fully earned and vested right to the shares comprising a Stock Award, but before the shares have been distributed to the Participant, the Participant shall be entitled to Dividend Rights with respect to such shares, at the time and in the form determined by the Committee. A "Dividend Right" with respect to shares comprising a Stock Award shall entitle the Participant, as of each dividend payment date, to an amount equal to the dividends payable with respect to a share of Stock multiplied by the number of such shares. Dividend Rights shall be settled in cash or in shares of Stock, as determined by the Committee, shall be payable at the time and in the form determined by the Committee, and shall be subject to such other terms and conditions as the Committee may determine. 8. Performance Units. 8.1. Definition. Subject to the terms of this Section 8, the Award of "Performance Units" under the Plan entitles the Participant to receive value for the units at the end of a Performance Period to the extent provided under the Award. The number of units earned, and the value received for them, will be contingent on the degree to which the performance measures established at the time of grant of the Award are met. For purposes of the Plan, the "Performance Period" with respect to the award of any Performance Units shall be the period over which the applicable performance is to be measured. 8.2. Terms and Conditions of Awards. For each Participant, the Committee will determine the value of Performance Units, which may be stated either in cash or in units representing shares of Stock; the performance measures used for determining whether the Performance Units are earned; the Performance Period during which the performance measures will apply; the relationship between the level of achievement of the performance measures and the degree to which Performance Units are earned; whether, during or after the Performance Period, any revision to the performance measures or Performance Period should be made to reflect significant events or changes that occur during the Performance Period; and the number of earned Performance Units that will be paid in cash and the number of earned Performance Units to be paid in shares of Stock. 8.3. Settlement. Settlement of Performance Units shall be subject to the following: (a) The Committee will compare the actual performance to the performance measures established for the Performance Period and determine the number of units as to which settlement is to be made, and the value of such units. (b) Settlement of units earned shall be wholly in cash, wholly in Stock or in a combination of the two, to be distributed in a lump sum or installments, as determined by the Committee. (c) For Performance Units stated in units representing shares of Stock when granted, one share of Stock will be distributed for each unit earned, or cash will be distributed for each unit earned equal to either (A) the Fair Market Value of a share of Stock as of the last day of the Performance Period or (B) the average Stock value over a period determined by the Committee. (d) For Performance Units stated in cash when granted, the value of each unit earned will be distributed in its initial cash value, or shares of Stock will be distributed based on the cash value of the units earned divided by (A) the Fair Market Value of a share of Stock at the end of the Performance Period or (B) the average Stock value over a period determined by the Committee. (e) Shares of Stock distributed in settlement of the units shall be subject to such vesting requirements and other conditions, if any, as the Committee shall determine. 8.4. Termination During Performance Period. If a Participant's termination of employment or other service with the Company occurs during a Performance Period with respect to any Performance Units granted to him, the Committee may determine that the Participant will be entitled to settlement of all or any portion of the Performance Units as to which he would otherwise be eligible, and may accelerate the determination of the value and settlement of such Performance Units or make such other adjustments as the Committee, in its sole discretion, deems desirable. 9. Expiration of Awards. The "Expiration Date" with respect to an Award under the Plan means the date established as the Expiration Date by the Committee at the time of the grant; provided, however, that the Expiration Date with respect to any Award shall not be later than the ten-year anniversary of the date on which the Award is granted. If a Stock Appreciation Right is in tandem with an Option, then the "Expiration Date" for the Stock Appreciation Right shall be the Expiration Date for the related Option. 10. Miscellaneous. 10.1. Compliance with Applicable Laws; Limits on Distribution. Distribution of shares of Stock or other amounts under the Plan shall be subject to the following: (a) Notwithstanding any other provision of the Plan, AirGate shall have no liability to deliver any shares of Stock under the Plan or make any other distribution of benefits under the Plan unless such delivery or distribution would comply with all applicable laws and the applicable regulations or requirements of any securities exchange or similar entity. (b) In the case of a Participant who is subject to Section 16(a) and 16(b) of the Exchange Act, the Committee may, at any time, add such conditions and limitations to any Award to such Participant, or any feature of any such Award, as the Committee, in its sole discretion, deems necessary to comply with Section 16(a) or 16(b) of the Exchange Act and the rules and regulations thereunder or to obtain any exemption therefrom. (c) To the extent that the Plan provides for issuance of certificates to reflect the transfer of shares of Stock, the transfer of such shares may be effected on a non-certificated basis, to the extent not prohibited by applicable law or the rules of any securities exchange or similar entity. (d) Prior to the delivery of any shares of Stock under the Plan, if the Committee deems it necessary to comply with applicable securities laws, AirGate may require a written statement that the recipient is acquiring the shares for investment and not for the purpose or with the intention of distributing the shares and will not dispose of them in violation of the registration requirements of the Securities Act of 1933. 10.2. Performance-Based Compensation. To the extent that the Committee determines that it is necessary or desirable to conform any Awards under the Plan with the requirements applicable to "Performance-Based Compensation", as that term is used in section 162(m)(4)(C) of the Code, it may, at or prior to the time an Award is granted, take such steps and impose such restrictions with respect to such Award as it determines to be necessary or desirable. 10.3. Transferability. Each Award granted hereunder shall not be assignable or transferable other than by will or the laws of descent and distribution and may be exercised, during the Participant's lifetime, only by the Participant or his or her guardian or legal representative, except that a Participant may in a manner and to the extent permitted by the Committee (a) designate in writing a beneficiary to exercise an Award after his or her death (provided, however, that no such designation shall be effective unless received by the office of AirGate designated for that purpose prior to the Participant's death) and (b) if the Award expressly permits, transfer an Option (other than an Incentive Stock Option) for no consideration to any (i) spouse, children or grandchildren of the Participant (such individuals to be referred to as "Immediate Family"), (ii) trust solely for the benefit of the Participant or any or all members of the Participant's Immediate Family, (iii) partnership whose only partners are the Participant or members of the Participant's Immediate Family, or (iv) revocable inter vivos trust of which the Participant is both the settlor and a trustee; provided, however, that the transferee shall agree to be subject to all of the terms and conditions applicable to such Award prior to such transfer. 10.4. Notices. Any notice or document required to be filed with the Committee under the Plan will be properly filed if delivered or mailed by registered mail, postage prepaid, to the Committee, in care of AirGate, at its principal executive offices. The Committee may, by advance written notice to affected persons, revise such notice procedure from time to time. Any notice required under the Plan (other than a notice of election) may be waived by the person entitled to notice. 10.5. Withholding. The Company shall be entitled to deduct from any payment under the Plan the amount of any tax required by law to be withheld with respect to such payment or may require any participant to pay such amount to the Company prior to and as a condition of making such payment. In addition, the Committee may, in its discretion and subject to such rules as it may adopt from time to time, permit a Participant to elect to have the Company withhold from any payment under the Plan (or to have the Company accept from the participant), for tax withholding purposes, shares of Stock, valued at their Fair Market Value, but in no event shall the Fair Market Value of the number of shares so withheld (or accepted) exceed the amount necessary to meet the minimum Federal, state and local marginal tax rates then in effect that are applicable to the Participant and to the particular transaction. 10.6. Form and Time of Elections. Unless otherwise specified herein, each election required or permitted to be made by any Participant or other person entitled to benefits under the Plan, and any permitted modification or revocation thereof, shall be in writing filed with the Committee at such times, in such form, and subject to such restrictions and limitations, not inconsistent with the terms of the Plan, as the Committee shall require. 10.7. Agreement With AirGate. At the time of an Award to a Participant under the Plan, the Committee may require a Participant to enter into an agreement with AirGate (the "Agreement") in a form specified by the Committee, agreeing to the terms and conditions of the Plan and to such additional terms and conditions, not inconsistent with the Plan, as the Committee may, in its sole discretion, prescribe. 10.8. Limitation of Implied Rights. (a) Neither a Participant nor any other person shall, by reason of the Plan, acquire any right in or title to any assets, funds or property of the Company whatsoever, including, without limitation, any specific funds, assets, or other property which the Company, in its sole discretion, may set aside in anticipation of a liability under the Plan. A Participant shall have only a contractual right to benefits or amounts, if any, payable under the Plan, unsecured by any assets of the Company. Nothing contained in the Plan shall constitute a guarantee by the Company that the assets of the Company shall be sufficient to pay any amounts or benefits to any person. (b) The Plan does not constitute a contract of employment or continued service, and selection as a Participant will not give any person the right to be retained in the employ or service of the Company, nor any right or claim to any benefit or payment under the Plan, unless such right or claim has specifically accrued under the terms of the Plan. Except as otherwise provided in the Plan, no Award under the Plan shall confer upon the holder thereof any right as a stockholder of AirGate prior to the date on which he fulfills all service requirements and other conditions for receipt of such rights. 10.9. Evidence. Evidence required of anyone under the Plan may be by certificate, affidavit, document or other information that the person acting on it considers pertinent and reliable, and signed, made or presented by the proper party or parties. 10.10. Gender and Number. Where the context admits, words in one gender shall include the other gender, words in the singular shall include the plural and the plural shall include the singular. 10.11. Definition of Fair Market Value. For purposes of the Plan, the "Fair Market Value", on any date, means (i) if the Stock is listed on a securities exchange or traded over the Nasdaq National Market, the average of the high and low market prices reported in The Wall Street Journal at which a share of Stock shall have been sold on such day or on the next preceding trading day if such date was not a trading day, or (ii) if the Stock is not listed on a securities exchange or traded over the Nasdaq National Market, the mean between the bid and offered prices as quoted by Nasdaq for such date, provided that if it is determined that the fair market value is not properly reflected by such Nasdaq quotations, Fair Market Value will be determined by such other method as the Committee determines in good faith to be reasonable. 11. Change in Control. All Options, Stock Appreciation Rights, Stock Awards and Performance Units may vest upon a change in control as established by the Committee. 12. Amendment and Termination. The Board may, at any time, amend or terminate the Plan or any Award, provided that, subject to subsection 4.4 (relating to certain adjustments to shares), no amendment or termination may materially adversely affect the rights of any Participant or beneficiary under any Award made under the Plan prior to the date such amendment is adopted by the Board. Notwithstanding the foregoing or any other provision of the Plan or any Award agreement, the Board or the Committee may amend the Plan or the terms of any Award to the extent it deems necessary to preserve pooling-of-interest accounting treatment for any transaction which is intended to be accounted for through such accounting method. -----END PRIVACY-ENHANCED MESSAGE-----