-----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, Bn88+4uQsaXWSjLCMoOVd2hyNAM3gUQ4FkpEHooXMcgWm9NbQKeu1f8ct5KpoOpe PW5Jzs0Ke856zLYIoK856g== 0001086844-01-000006.txt : 20010307 0001086844-01-000006.hdr.sgml : 20010307 ACCESSION NUMBER: 0001086844-01-000006 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 20010228 EFFECTIVENESS DATE: 20010228 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: SEC FILE NUMBER: 333-56352 FILM NUMBER: 1557848 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 0001.txt As filed with the Securities and Exchange Commission on February 28, 2001. File 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 Issuer as Specified in its Charter) DELAWARE 58-2422929 (State or Other Jurisdiction of (I.R.S. Employer Incorporation or Organization) Identification Number) HARRIS TOWER, SUITE 1700 233 PEACHTREE STREET, N.W. ATLANTA, GA 30303 (404) 525-7272 (Address, including zip code, and telephone number of Principal Executive Offices) AIRGATE PCS, INC. 2001 EMPLOYEE STOCK PURCHASE PLAN AIRGATE PCS, INC. 2001 NON-EXECUTIVE STOCK OPTION PLAN (Full Title of the Plans) BARBARA L. BLACKFORD COPY TO: AIRGATE PCS, INC. LAURA G. THATCHER HARRIS TOWER, SUITE 1700 ALSTON & BIRD LLP 233 PEACHTREE STREET, N.W. ONE ATLANTIC CENTER ATLANTA, GA 30303 1201 WEST PEACHTREE STREET, NW (404) 832-6170 ATLANTA, GEORGIA 30309-3424 (Name, address, including zip code, and (404) 881-7546 telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE Proposed Proposed Amount of Title of Securities . . . Amount to Maximum Maximum Registration Fee to be Registered. . . . be Registered (1) Offering Price Aggregate Per Unit Offering Price Common Stock. . . . 350,000 (2) $43.8125(2) $15,334,375 (2) $3,834 0.01 par value per share
(1) Includes 200,000 shares currently reserved or available for issuance pursuant to the AirGate PCS, Inc. 2001 Employee Stock Purchase Plan and 150,000 shares currently reserved or available for issuance pursuant to the AirGate PCS, Inc. 2001 Non-Executive Stock Option Plan (the "Plans"). 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 Plans as the result of a stock split, stock dividend or similar adjustment of the outstanding Common Stock of AirGate PCS, Inc. pursuant to 17 C.F.R. 230.416(a). (2) Estimated solely for the purpose of determining the registration fee pursuant to Rule 457(h), as determined by the average of the high and low prices quoted on the Nasdaq National Market as reported in the Wall Street Journal on February 23, 2001, which was $43.8125 per share. PART I INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS (a) The documents constituting Part I of this Registration Statement will be sent or given to participants in the Plan as specified by Rule 428(b)(1) under the Securities Act of 1933, as amended. (b) Upon written or oral request, the Registrant will provide, without charge, the documents incorporated by reference in Item 3 of Part II of this Registration Statement. The documents are incorporated by reference in the Section 10(a) prospectus. The Registrant will also provide, without charge, upon written or oral request, other documents required to be delivered to employees pursuant to Rule 428(b). Requests for the above mentioned information, should be directed to Barbara L. Blackford, Corporate Secretary, at (404) 832-6170. PART II. INFORMATION REQUIRED IN REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE The following documents have been filed by AirGate PCS, Inc. (the "Registrant") with the Securities and Exchange Commission (the "Commission") pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and are deemed to be a part hereof from the date of the filing of such documents: (1) The Registrant's Annual Report on Form 10-K for the year ended September 30, 2000; (2) All other reports filed by the Registrant pursuant to Section 13(a) or 15(d) of the Exchange Act since September 30, 2000; (3) The description of Registrant's Common Stock contained in Registrant's Form 8-A (File No. 0-27455), as filed with the SEC pursuant to Section 12(g) of the Exchange Act and Rule 12b-15 promulgated thereunder, on September 24, 1999; and (4) All other documents subsequently filed by the Registrant pursuant to Section 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective amendment to this Registration Statement that indicates that all securities offered have been sold or that deregisters all securities that remain unsold. Any statement contained in a document incorporated or deemed incorporated herein by reference shall be deemed to be modified or superseded for the purpose of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document which also is, or is deemed to be, incorporated herein by reference 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. The common stock to be offered pursuant to the Plan has been registered pursuant to Section 12 of the Exchange Act. Accordingly, a description of the common stock is not required herein. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not Applicable. The validity of the Common Stock offered hereby has been passed upon by Alston & Bird LLP, Atlanta, Georgia, for the Registrant. 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), judgements, 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 of being advanced expenses, a committee, consisting or 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 approved 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's determination not to grant indemnification or advance expenses by commencing a legal proceeding. Failure of the committee to make a indemnification determination or the termination of any claim by judgement, 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 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 AirGate, PCS, Inc.'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 securities, an indemnified person will not be required to contribute any amount in excess of the lessor 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 Exhibit Number Description -------------- ------------------------------------------------------- 4.1 Amended and Restated Certificate of Incorporation of the Registrant (incorporated by reference from 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 By-laws of the Registrant (incorporated by reference from 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 by reference from 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 Counsel 23.1 Consent of Counsel (included in Exhibit 5.1) 23.2 Consent of KPMG LLP 24.1 Power of Attorney 99.1 AirGate PCS, Inc. 2001 Employee Stock Purchase Plan 99.2 AirGate PCS, Inc. 2001 Non-Executive Stock Option Plan ITEM 9. UNDERTAKINGS (a) The undersigned Company hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) 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; (iii) To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement; Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply if the Registration Statement is on Form S-3, Form S-8 or Form F-3, and 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 Securities Exchange Act of 1934 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 being offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned Company hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in this 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 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. (signatures on following page) ------ 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, State of Georgia, on February 27, 2001. AirGate PCS, Inc. By: /s/ THOMAS M. DOUGHERTY ------------------------------ Thomas M. Dougherty 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 indicated as of February 27, 2001. Name Title /s/ THOMAS M. DOUGHERTY President, Chief Executive - ---------------------------- Officer and Director Thomas M. Dougherty (Principal Executive Officer) February 27, 2001 /s/ ALAN B. CATHERALL Chief Financial Officer - --------------------------- (Principal Financial and Accounting Officer) Alan B. Catherall February 27, 2001 /s/ W. CHRIS BLANE* Vice President of Business - --------------------------- Development and Director W. Chris Blane February 27, 2001 /s/ THOMAS D. BODY, III* Vice President of Strategic - ---------------------------- Development and Director Thomas D. Body, III February 27, 2001 /s/ Barry Schiffman * Director - ---------------------------- Barry Schiffman February 27, 2001 /s/ GILL COGAN* Director - --------------------------- Gill Cogan February 27, 2001 /s/ ROBERT A. FERCHAT* Director - ---------------------------- Robert A. Ferchat February 27, 2001 /s/ JOHN R. DILLON* Director - ---------------------------- John R. Dillon February 27, 2001 * By Barbara L. Blackford, Attorney in Fact, pursuant to Power of Attorney filed herewith as Exhibit 24.1. EXHIBIT INDEX TO REGISTRATION STATEMENT ON FORM S-8 Exhibit Number Description -------------- ------------------------------------------------------- 4.1 Amended and Restated Certificate of Incorporation of the Registrant (incorporated by reference from 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 By-laws of the Registrant (incorporated by reference from 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 by reference from 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 Counsel 23.1 Consent of Counsel (included in Exhibit 5.1) 23.2 Consent of KPMG LLP 24.1 Power of Attorney 99.1 AirGate PCS, Inc. 2001 Employee Stock Purchase Plan 99.2 AirGate PCS, Inc. 2001 Non-Executive Stock Option Plan EX-5.1 2 0002.txt OPINION OF COUNSEL Exhibit 5.1 Opinion of Alston & Bird LLP Alston&Bird LLP One Atlantic Center 1201 West Peachtree Street Atlanta, Georgia 30309-3424 404-881-7000 Fax: 404-881-7777 Telex: 54-2996 February 27, 2001 AirGate PCS, Inc. Harris Tower, Suite 1700 233 Peachtree Street Atlanta, Georgia 30303 Re: Form S-8 Registration Statement -- AirGate PCS, Inc. 2001 Employee Stock Purchase Plan AirGate PCS, Inc. 2001 Non-Executive Stock Option Plan Ladies and Gentlemen: We have acted as counsel to AirGate PCS, Inc., a Delaware corporation (the "Corporation"), in connection with the filing of the above-referenced Registration Statement on Form S-8 (the "Registration Statement") with the Securities and Exchange Commission (the "Commission") to register under the Securities Act of 1933, as amended (the "Securities Act"), 350,000 shares of the Corporation's common stock, $0.01 par value per share ("Common Stock"), that may be issued pursuant to the AirGate PCS, Inc. 2001 Employee Stock Purchase Plan and the AirGate PCS, Inc. 2001 Non-Executive Stock Option Plan (the "Plans"). This opinion letter is rendered pursuant to Item 8 of Form S-8 and Item 601(b)(5) of the Commission's Regulation S-K. We have examined the Plans, the Amended and Restated Certificate of Incorporation of the Corporation, the Amended and Restated Bylaws of the Corporation, records of proceedings of the Board of Directors of the Corporation deemed by us to be relevant to this opinion letter, the Registration Statement and other documents and agreements we deemed necessary for purposes of expressing the opinion set forth herein. We also have made such further legal and factual examinations and investigations as we deemed necessary for purposes of expressing the opinion set forth herein. As to certain factual matters relevant to this opinion letter, we have relied upon certificates and statements of officers of the Corporation and certificates of public officials. Except to the extent expressly set forth herein, we have made no independent investigations with regard thereto, and, accordingly, we do not express any opinion as to matters that might have been disclosed by independent verification. This opinion letter is provided to the Corporation and the Commission for their use solely in connection with the transactions contemplated by the Registration Statement and may not be used, circulated, quoted or otherwise relied upon by any other person or for any other purpose without our express written consent. The only opinion rendered by us consists of those matters set forth in the sixth paragraph hereof, and no opinion may be implied or inferred beyond those expressly stated. Our opinion set forth below is limited to the General Corporation Law of the State of Delaware, applicable provisions of the Constitution of the State of Delaware and reported judicial decisions interpreting such General Corporation Law and Constitution, and we do not express any opinion herein concerning any other laws. Based on the foregoing, it is our opinion that the 350,000 shares of Common Stock covered by the Registration Statement and to be issued pursuant to the Plans, when issued in accordance with the terms and conditions of the Plans, will be legally and validly issued, fully paid and nonassessable. We consent to the filing of this opinion letter as an exhibit to the Registration Statement and to the use of our name wherever appearing in the Registration Statement. In giving such consent, we do not thereby admit that we are 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. Sincerely, ALSTON & BIRD LLP By: /s/ Laura G. Thatcher ------------------------ Laura G. Thatcher, Partner EX-23.2 3 0003.txt CONSENT OF KPMG Exhibit 23.2 Consent of KPMG LLP INDEPENDENT ACCOUNTANTS' CONSENT 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. of our report dated November 10, 2000, relating to the consolidated balance sheets of AirGate PCS, Inc. and subsidiaries as of September 30, 2000 and 1999, and the related consolidated statements of operations, stockholders' equity (deficit), and cash flows for the year ended September 30, 2000, the nine month period ended September 30, 1999, and the year ended December 31, 1998, which report appears in the September 30, 2000, annual report on Form 10-K of AirGate PCS, Inc. KPMG LLP Atlanta, Georgia February 28, 2001 EX-24.1 4 0004.txt POWER OF ATTORNEY Exhibit 24.1 Power of Attorney POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below, as a Director or Officer of AirGate PCS, Inc. (the "Company"), a Delaware corporation with its general offices in Atlanta, Georgia, does hereby make, constitute and appoint Thomas M. Dougherty, Alan B. Catherall, or Barbara L. Blackford, or any one of them acting alone, his or her true and lawful attorneys-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign a Registration Statement on Form S-8 to register shares of the Company's common stock for issuance pursuant to the AirGate PCS, Inc, 2001 Employee Stock Purchase Plan and the AirGate PCS, Inc. 2001 Non-Executive Stock Option Plan, and any or all amendments (including post-effective amendments) to such Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of the, or their or his or her substitutes, may lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, the undersigned as caused this Power of Attorney to be executed as of this 26th day of February 2001. /s/ W. Chris Blane - --------------------------- W. Chris Blane, Director and V.P. of Business Development /s/ Thomas D. Body, III /s/ Thomas M. Dougherty - -------------------------------- --------------------------- Thomas D. Body, III, Director and Thomas M. Dougherty, Director and V.P. of Strategic Development President and CEO /s/ Gill Cogan /s/ Robert A. Ferchat - --------------------------- ------------------------------- Gill Cogan, Director Robert A. Ferchat, Director /s/ John R. Dillon /s/ Barry Schiffman - ----------------------------- ------------------------------- John R. Dillon, Director Barry Schiffman, Director EX-99.1 5 0005.txt AIRGATE PCS, INC. 2001 EMPLOYEE STOCK PURCHASE PLAN Exhibit 99.1 AIRGATE PCS, INC. 2001 EMPLOYEE STOCK PURCHASE PLAN TABLE OF CONTENTS ARTICLE I - BACKGROUND i 1.1 Establishment of the Plan i 1.2 Applicability of the Plan i 1.3 Purpose i ARTICLE II - DEFINITIONS i 2.1 Administrator i 2.2 Board i 2.3 Code i 2.4 Committee i 2.5 Common Stock ii 2.6 Compensation ii 2.7 Contribution Account ii 2.8 Corporation ii 2.9 Direct Registration System ii 2.10 Effective Date ii 2.11 Eligible Employee ii 2.12 Employee ii 2.13 Employer iii 2.14 Fair Market Value iii 2.15 Offering Date iii 2.16 Offering Period iii 2.17 Option iii 2.18 Participant iii 2.19 Plan iii 2.20 Purchase Date iii 2.21 Purchase Price iii 2.22 Request Form iii 2.23 Stock Account iii 2.24 Subsidiary iv 2.25 Trading Date iv ARTICLE III - ELIGIBILITY AND PARTICIPATION iv 3.1 Eligibility iv 3.2 Initial Participation iv 3.3 Leave of Absence v ARTICLE IV - STOCK AVAILABLE v 4.1 In General v 4.2 Adjustment in Event of Changes in Capitalization v 4.3 Dissolution or Liquidation vi 4.4 Merger or Asset Sale vi ARTICLE V. - OPTION PROVISIONS vi 5.1 Purchase Price vi 5.2 Calendar Year $25,000 Limit vi 5.3 Offering Period Limit vii ARTICLE VI - PURCHASING COMMON STOCK vii 6.1 Participant's Contribution Account vii 6.2 Payroll Deductions, Dividends vii 6.3 Discontinuance viii 6.4 Leave of Absence; Transfer of Ineligible Status viii 6.5 Automatic Exercise viii 6.6 Listing, Registration, and Qualification of Shares ix ARTICLE VII - WITHDRAWALS, DISTRIBUTIONS ix 7.1 Discontinuance of Deductions; Leave of Absence; Transfer to Ineligible Status ix 7.2 In-Service Withdrawals ix 7.3 Termination of Employment for Reasons Other Than Death x 7.4 Death x 7.5 Registration x ARTICLE VIII - AMENDMENT AND TERMINATION xi 8.1 Amendment xi 8.2 Termination xi ARTICLE IX - MISCELLANEOUS xi 9.1 Employment Rights xi 9.2 Tax Withholding xii 9.3 Rights Not Transferable xii 9.4 No Repurchase of Stock by Corporation xii 9.5 Governing Law xii 9.6 Stockholder Approval; Registration xii AIRGATE PCS, INC. 2001 EMPLOYEE STOCK PURCHASE PLAN ARTICLE I BACKGROUND 1.1 ESTABLISHMENT OF THE PLAN. AirGate PCS, Inc. (the "Corporation") hereby establishes a stock purchase plan to be known as the "AirGate PCS, Inc. 2001 Employee Stock Purchase Plan" (the "Plan"), as set forth in this document. The Plan is intended to be a qualified employee stock purchase plan within the meaning of Section 423 of the Internal Revenue Code of 1986, as amended, and the regulations and rulings thereunder. 1.2 APPLICABILITY OF THE PLAN. The provisions of this Plan are applicable only to certain individuals who, on or after the Effective Date (as defined herein), are employees of the Corporation and its Subsidiaries participating in the Plan. The Committee shall indicate from time to time which of its Subsidiaries, if any, are participating in the Plan. 1.3 PURPOSE. The purpose of the Plan is to enhance the proprietary interest among the employees of the Corporation and its participating subsidiaries through ownership of Common Stock of the Corporation. ARTICLE II DEFINITIONS Whenever capitalized in this document, the following terms shall have the respective meanings set forth below. 2.1 ADMINISTRATOR. Administrator shall mean the person or persons (who may be officers or employees of the Corporation) selected by the Committee to operate the Plan, perform day-to-day administration of the Plan, and maintain records of the Plan. 2.2 BOARD. Board shall mean the Board of Directors of the Corporation. 2.3 CODE. Code shall mean the Internal Revenue Code of 1986, as amended from time to time, and the regulations thereunder. 2.4 COMMITTEE. Committee shall mean a committee which consists of members of the Board and which has been designated by the Board to have the general responsibility for the administration of the Plan. Unless otherwise designated by the Board, the Compensation Committee of the Board of Directors of the Corporation shall serve as the Committee administering the Plan. Subject to the express provisions of the Plan, the Committee shall have plenary authority in its sole and absolute discretion to interpret and construe any and all provisions of the Plan, to adopt rules and regulations for administering the Plan, and to make all other determinations necessary or advisable for administering the Plan. The Committee's determinations on the foregoing matters shall be conclusive and binding upon all persons. 2.5 COMMON STOCK. Common Stock shall mean the common stock, par value $0.01, of the Corporation. 2.6 COMPENSATION. Compensation shall mean, for any Participant, for any Offering Period, the Participant's gross wages for the respective period, including without limitation salary, bonus, and commission, but subject to appropriate adjustments that would exclude items such as non-cash compensation and reimbursement of moving, travel, trade or business expenses. 2.7 CONTRIBUTION ACCOUNT. Contribution Account shall mean the bookkeeping account established by the Administrator on behalf of each Participant, which shall be credited with the amounts deducted from the Participant's Compensation pursuant to Article VI. The Administrator shall establish a separate Contribution Account for each Participant for each Offering Period. 2.8 CORPORATION. Corporation shall mean AirGate PCS, Inc., a Delaware corporation. 2.9 DIRECT REGISTRATION SYSTEM. Direct Registration System shall mean a direct registration system approved by the Securities and Exchange Commission and by the Nasdaq National Market or any securities exchange on which the Common Stock is then listed, whereby shares of Common Stock may be registered in the holder's name in book-entry form on the books of the Corporation. 2.10 EFFECTIVE DATE. Effective Date shall mean the effective date of the Plan, which shall be the later to occur of (i) the date the Plan is approved by the stockholders of the Corporation, or (ii) the effective date of the Corporation's registration statement on Form S-8 filed under the Securities Act of 1933, as amended, covering the shares to be issued under the Plan. 2.11 ELIGIBLE EMPLOYEE. An Employee eligible to participate in the Plan pursuant to Section 3.1. 2.12 EMPLOYEE. Employee shall mean an individual employed by an Employer who meets the employment relationship described in Treasury Regulation Sections 1.423-2(b) and Section 1.421-7(h). 2.13 EMPLOYER. Employer shall mean the Corporation and any Subsidiary designated by the Committee as an employer participating in the Plan. 2.14 FAIR MARKET VALUE. Fair Market Value of a share of Common Stock, as of any designated date, shall mean the closing sales price of the Common Stock on the Nasdaq National Market on such date or on the last previous date on which such stock was traded. 2.15 OFFERING DATE. Offering Date shall mean the first Trading Date of each Offering Period. 2.16 OFFERING PERIOD. Offering Period shall mean the period of time during which offers to purchase Common Stock are outstanding under the Plan. The Committee shall determine the length of each Offering Period, which need not be uniform; provided that that no Offering Period shall exceed twenty-four (24) months in length. Until specified otherwise by the Committee, the Offering Periods will be the 12-month periods beginning January 1 of each year, but the initial Offering Period shall be the period beginning on the Effective Date and ending on December 31, 2001. No payroll deductions shall be taken until the Effective Date. 2.17 OPTION. Option shall mean the option to purchase Common Stock granted under the Plan on each Offering Date. 2.18 PARTICIPANT. Participant shall mean any Eligible Employee who has elected to participate in the Plan under Section 3.2. 2.19 PLAN. Plan shall mean the AirGate PCS, Inc. 2001 Employee Stock Purchase Plan, as amended and in effect from time to time. 2.20 PURCHASE DATE. Purchase Date shall mean the last Trading Date of each Offering Period. 2.21 PURCHASE PRICE. Purchase Price shall mean the purchase price of Common Stock determined under Section 5.1. 2.22 REQUEST FORM. Request Form shall mean an Employee's authorization either in writing on a form approved by the Administrator or through electronic communication approved by the Administrator which specifies the Employee's payroll deduction in accordance with Section 6.2, and contains such other terms and provisions as may be required by the Administrator. 2.23 STOCK ACCOUNT. Stock Account shall mean the account established by the Administrator on behalf of each Participant, which shall be credited with shares of Common Stock purchased pursuant to the Plan and dividends thereon until distributed in accordance with the terms of the Plan. 2.24 SUBSIDIARY. Subsidiary shall mean any present or future corporation which is a "subsidiary corporation" of the Corporation as defined in Code Section 424(f). 2.25 TRADING DATE. Trading Date shall mean a date on which shares of Common Stock are traded on the Nasdaq National Market. Except when otherwise indicated by the context, the definition of any term herein in the singular may also include the plural. ARTICLE III ELIGIBILITY AND PARTICIPATION 3.1 ELIGIBILITY. Each Employee who is an Employee regularly scheduled to work at least 20 hours each week and at least five months each calendar year shall be eligible to participate in the Plan as of the later of: (a) the Offering Date immediately following the Employee's last date of hire by an Employer; or (b) the Effective Date. On each Offering Date, Options will automatically be granted to all Employees then eligible to participate in the Plan; provided, however, that no Employee shall be granted an Option for an Offering Period if, immediately after the grant, the Employee would own stock, and/or hold outstanding options to purchase stock, possessing five percent or more of the total combined voting power or value of all classes of stock of the Corporation or any Subsidiary. For purposes of this Section, the attribution rules of Code Section 424(d) shall apply in determining stock ownership of any Employee. If an Employee is granted an Option for an Offering Period and such Employee does not participate in the Plan for such Offering Period, such Option will be deemed never to have been granted for purposes of applying the $25,000 annual limitation described in Section 5.2. 3.2 INITIAL PARTICIPATION. An Eligible Employee having been granted an Option under Section 3.1 may submit a Request Form to the Administrator to participate in the Plan for an Offering Period. The Request Form shall authorize a regular payroll deduction from the Employee's Compensation for the Offering Period, subject to the limits and procedures described in Article VI. A Participant's Request Form authorizing a regular payroll deduction shall remain effective from Offering Period to Offering Period until amended or canceled under Section 6.3. 3.3 LEAVE OF ABSENCE. For purposes of Section 3.1, an individual on a leave of absence from an Employer shall be deemed to be an Employee for the first 90 days of such leave, or for such longer period of time that his or her entitlement to return to work is protected by statute or agreement with the Employer, if applicable. For purposes of this Plan, such individual's employment with the Employer shall be deemed to terminate at the close of business on the 90th day of the leave, unless the individual has returned to regular employment with an Employer before the close of business on such 90th day or his entitlement to return to work is protected by statute or agreement with the employer. Termination of any individual's leave of absence by an Employer, other than on account of a return to employment with an Employer, shall be deemed to terminate an individual's employment with the Employer for all purposes of the Plan. ARTICLE IV STOCK AVAILABLE 4.1 IN GENERAL. Subject to the adjustments in Sections 4.2 and 4.3, an aggregate of 200,000 shares of Common Stock shall be available for purchase by Participants pursuant to the provisions of the Plan. These shares may be authorized and unissued shares or may be shares issued and subsequently acquired by the Corporation. If an Option under the Plan expires or terminates for any reason without having been exercised in whole or part, the shares subject to such Option that are not purchased shall again be available for subsequent Option grants under the Plan. If the total number of shares of Common Stock for which Options are exercised on any Purchase Date exceeds the maximum number of shares then available under the Plan, the Committee shall make a pro rata allocation of the shares available in as nearly a uniform manner as shall be practicable and as it shall determine to be equitable; and the balance of the cash credited to Participants' Contribution Accounts shall be distributed to the Participants as soon as practicable. 4.2 ADJUSTMENT IN EVENT OF CHANGES IN CAPITALIZATION. In the event of a stock dividend, stock split or combination of shares, recapitalization or other change in the Corporation's capitalization, or other distribution with respect to holders of the Corporation's Common Stock other than normal cash dividends, an automatic adjustment shall be made in the number and kind of shares as to which outstanding Options or portions thereof then unexercised shall be exercisable and in the available shares set forth in Section 4.1, so that the proportionate interest of the Participants shall be maintained as before the occurrence of such event. This adjustment in outstanding Options shall be made without change in the total price applicable to the unexercised portion of such Options and with a corresponding adjustment in the Purchase Price per share; provided, however, that in no event shall any adjustment be made that would cause any Option to fail to qualify as an option pursuant to an employee stock purchase plan within the meaning of Section 423 of the Code. 4.3 DISSOLUTION OR LIQUIDATION. In the event of a proposed dissolution or liquidation of the Corporation, the Offering Period then in progress shall be shortened by setting a new Purchase Date (the "New Purchase Date"), and shall terminate immediately prior to the consummation of the dissolution or liquidation, unless otherwise provided by the Committee. The Corporation shall notify each Participant, at least ten (10) business days prior to the New Purchase Date, that the Purchase Date has been changed to the New Purchase Date and that the Participant's Option shall be exercised automatically on the New Purchase Date, unless the Participant has withdrawn from the Offering Period, as provided in Section 6.3 hereof, prior to the New Purchase Date. 4.4 MERGER OR ASSET SALE. In the event of a reorganization, merger, or consolidation of the Corporation with one or more corporations in which the Corporation is not the surviving corporation (or survives as a direct or indirect subsidiary of other such other constituent corporation or its parent), or upon a sale of substantially all of the property or stock of the Corporation to another corporation, then, in the discretion of the Board or the Committee, (i) each outstanding Option shall be assumed, or an equivalent option substituted, by the successor corporation or its parent, or (ii) the Offering Period then in progress shall be shortened by setting a New Purchase Date, which shall be before the date of the proposed transaction. If the Committee sets a New Purchase Date, the Corporation shall notify each Participant, at least ten (10) business days prior to the New Purchase Date, that the Purchase Date has been changed to the New Purchase Date and that the Participant's Option shall be exercised automatically on the New Purchase Date, unless the Participant has withdrawn from the Offering Period, as provided in Section 6.3 hereof, prior to the New Purchase Date. In lieu of the foregoing, the Committee may terminate the Plan in accordance with Section 8.2. ARTICLE V OPTION PROVISIONS 5.1 PURCHASE PRICE. The Purchase Price of a share of Common Stock purchased for a Participant pursuant to each exercise of an Option shall be the lesser of: (a) 85 percent of the Fair Market Value of a share of Common Stock on the Offering Date; or (b) 85 percent of the Fair Market Value of a share of Common Stock on the Purchase Date. 5.2 CALENDAR YEAR $25,000 LIMIT. Notwithstanding anything else contained herein, no Employee may be granted an Option for any Offering Period which permits such Employee's rights to purchase Common Stock under this Plan and any other qualified employee stock purchase plan (within the meaning of Code Section 423) of the Corporation and its Subsidiaries to accrue at a rate which exceeds $25,000 of Fair Market Value of such Common Stock for each calendar year in which an Option is outstanding at any time. For purposes of this Section, Fair Market Value shall be determined as of the Offering Date. 5.3 OFFERING PERIOD LIMIT. Notwithstanding anything else contained herein, the maximum number of shares of Common Stock that an Eligible Employee may purchase in any Offering Period is 2,500 shares. ARTICLE VI PURCHASING COMMON STOCK 6.1 PARTICIPANT'S CONTRIBUTION ACCOUNT. The Administrator shall establish a book account in the name of each Participant for each Offering Period. As discussed in Section 6.2 below, a Participant's payroll deductions shall be credited to the Participant's Contribution Account, without interest, until such cash is withdrawn, distributed, or used to purchase Common Stock as described below. During such time, if any, as the Corporation participates in a Direct Registration System, shares of Common Stock acquired upon exercise of an Option shall be directly registered in the name of the Participant. If the Corporation does not participate in a Direct Registration System, then until distribution is requested by a Participant pursuant to Article VII, stock certificates evidencing the Participant's shares of Common Stock acquired upon exercise of an Option shall be held by the Corporation as the nominee for the Participant. These shares shall be credited to the Participant's Stock Account. Certificates shall be held by the Corporation as nominee for Participants solely as a matter of convenience. A Participant shall have all ownership rights as to the shares credited to his or her Stock Account, and the Corporation shall have no ownership or other rights of any kind with respect to any such certificates or the shares represented thereby. All cash received or held by the Corporation under the Plan may be used by the Corporation for any corporate purpose. The Corporation shall not be obligated to segregate any assets held under the Plan. 6.2 PAYROLL DEDUCTIONS; DIVIDENDS. (a) Payroll Deductions. By submitting a Request Form at any time before an Offering Period in accordance with rules adopted by the Committee, an Eligible Employee may authorize a payroll deduction to purchase Common Stock under the Plan for the Offering Period. The payroll deduction shall be effective on the first pay period during the Offering Period commencing after receipt of the Request Form by the Administrator. The payroll deduction shall be in any whole dollar amount or percentage up to a maximum of twenty percent (20%) of such Employee's Compensation payable each pay period, and at any other time an element of Compensation is payable. A Participant's payroll deduction shall not be less than one percent (1%) of such Employee's Compensation payable each payroll period. (b) Dividends. Cash or stock dividends paid on Common Stock which is credited to a Participant's Stock Account as of the dividend payment date shall be credited to the Participant's Stock Account and paid or distributed to the Participant as soon as practicable. 6.3 DISCONTINUANCE. A Participant may discontinue his or her payroll deductions for an Offering Period by filing a new Request Form with the Administrator. This discontinuance shall be effective on the first pay period commencing at least 15 days after receipt of the Request Form by the Administrator. A Participant who discontinues his or her payroll deductions for an Offering Period may not resume participation in the Plan until the following Offering Period. Any amount held in the Participant's Contribution Account for an Offering Period after the effective date of the discontinuance of his or her payroll deductions will either be refunded or used to purchase Common Stock in accordance with Section 7.1. 6.4 LEAVE OF ABSENCE; TRANSFER TO INELIGIBLE STATUS. If a Participant either begins a leave of absence, is transferred to employment with a Subsidiary not participating in the Plan, or remains employed with an Employer but is no longer eligible to participate in the Plan, the Participant shall cease to be eligible for payroll deductions to his or her Contribution Account pursuant to Section 6.2. The cash standing to the credit of the Participant's Contribution Account shall become subject to the provisions of Section 7.1. If the Participant returns from the leave of absence before being deemed to have ceased employment with the Employer under Section 3.3, or again becomes eligible to participate in the Plan, the Request Form, if any, in effect immediately before the leave of absence or disqualifying change in employment status shall be deemed void and the Participant must again complete a new Request Form to resume participation in the Plan. 6.5 AUTOMATIC EXERCISE. Unless the cash credited to a Participant's Contribution Account is withdrawn or distributed as provided in Article VII, his or her Option shall be deemed to have been exercised automatically on each Purchase Date, for the purchase of the number of full and fractional shares of Common Stock which the cash credited to his or her Contribution Account at that time will purchase at the Purchase Price. Any other cash balance remaining in the Participant's Contribution Account at the end of an Offering Period shall be refunded to the Participant, without interest. The amount of cash that may be used to purchase shares of Common Stock may not exceed the Compensation restrictions set forth in Section 6.2 or the applicable limitations of Sections 5.2.or 5.3. Except as provided in the preceding paragraph, if the cash credited to a Participant's Contribution Account on the Purchase Date exceeds the applicable Compensation restrictions of Section 6.2 or exceeds the amount necessary to purchase the maximum number of shares of Common Stock available during the Offering Period under the applicable limitations of Section 5.2.or Section 5.3, such excess cash shall be refunded to the Participant. Except as provided in the preceding paragraph, the excess cash may not be used to purchase shares of Common Stock nor retained in the Participant's Contribution Account for a future Offering Period. Each Participant shall receive a statement on not less than an annual basis indicating the number of shares credited to his or her Stock Account, if any, under the Plan. 6.6 LISTING, REGISTRATION, AND QUALIFICATION OF SHARES. The granting of Options for, and the sale and delivery of, Common Stock under the Plan shall be subject to the effecting by the Corporation of any listing, registration, or qualification of the shares subject to that Option upon any securities exchange or under any federal or state law, or the obtaining of the consent or approval of any governmental regulatory body deemed necessary or desirable for the issuance or purchase of the shares covered. ARTICLE VII WITHDRAWALS; DISTRIBUTIONS 7.1 DISCONTINUANCE OF DEDUCTIONS; LEAVE OF ABSENCE; TRANSFER TO INELIGIBLE STATUS. In the event of a Participant's complete discontinuance of payroll deductions under Section 6.3 or a Participant's leave of absence or transfer to an ineligible status under Section 6.4, the cash balance then standing to the credit of the Participant's Contribution Account shall be-- (a) returned to the Participant, in cash, without interest, as soon as practicable, upon the Participant's written request received by the Administrator at least 30 days before the next Purchase Date; or (b) held under the Plan and used to purchase Common Stock for the Participant under the automatic exercise provisions of Section 6.5. 7.2 IN-SERVICE WITHDRAWALS. During such time, if any, as the Corporation participates in a Direct Registration System, shares of Common Stock acquired upon exercise of an Option shall be directly registered in the name of the Participant and the Participant may withdraw certificates in accordance with the applicable terms and conditions of such Direct Registration System. If the Corporation does not participate in a Direct Registration System, a Participant may, while an Employee of the Corporation or any Subsidiary, withdraw certificates for some or all of the shares of Common Stock credited to his or her Stock Account at any time, upon 30 days' written notice to the Administrator. If a Participant requests a distribution of only a portion of the shares of Common Stock credited to his or her Stock Account, the Administrator will distribute the oldest securities held in the Participant's Stock Account first, using a first in-first out methodology. The Administrator may at any time distribute certificates for some or all of the shares of Common Stock credited to a Participant's Stock Account, whether or not the Participant so requests. 7.3 TERMINATION OF EMPLOYMENT FOR REASONS OTHER THAN DEATH. If a Participant terminates employment with the Corporation and the Subsidiaries for reasons other than death, the cash balance in the Participant's Contribution Account shall be returned to the Participant in cash, without interest, as soon as practicable. Certificates for the shares of Common Stock credited to his or her Stock Account shall be distributed to the Participant as soon as practicable, unless the Corporation then participates in a Direct Registration System, in which case, the Participant shall be entitled to evidence of ownership of such shares in such form as the terms and conditions of such Direct Registration System permit. 7.4 DEATH. In the event a Participant dies, the cash balance in his or her Contribution Account shall be distributed to the Participant's estate, in cash, without interest, as soon as practicable. Certificates for the shares of Common Stock credited to the Participant's Stock Account shall be distributed to the estate as soon as practicable, unless the Corporation then participates in a Direct Registration System, in which case, the estate shall be entitled to evidence of ownership of such shares in such form as the terms and conditions of such Direct Registration System permit. 7.5 REGISTRATION. Whether represented in certificate form or by direct registration pursuant to a Direct Registration System, shares of Common Stock acquired upon exercise of an Option shall be directly registered in the name of the Participant or, if the Participant so indicates on the Request Form, (a) in the Participant's name jointly with a member of the Participant's family, with the right of survivorship, (b) in the name of a custodian for the Participant (in the event the Participant is under a legal disability to have stock issued in the Participant's name), (c) in a manner giving effect to the status of such shares as community property, or (d) in street name for the benefit of any of the above with a broker designated by the Participant. No other names may be included in the Common Stock registration. The Corporation shall pay all issue or transfer taxes with respect to the issuance or transfer of shares of such Common Stock, as well as all fees and expenses necessarily incurred by the Corporation in connection with such issuance or transfer. ARTICLE VIII AMENDMENT AND TERMINATION 8.1 AMENDMENT. The Committee shall have the right to amend or modify the Plan, in full or in part, at any time and from time to time; provided, however, that no amendment or modification shall: (a) affect any right or obligation with respect to any grant previously made, unless required by law, or (b) unless previously approved by the stockholders of the Corporation, where such approval is necessary to satisfy federal securities laws, the Code, or rules of any stock exchange on which the Corporation's Common Stock is listed: (1) in any manner materially affect the eligibility requirements set forth in Sections 3.1 and 3.3, or change the definition of Employer as set forth in Section 2.13, or (2) increase the number of shares of Common Stock subject to any options issued to Participants (except as provided in Sections 4.2 and 4.3). 8.2 TERMINATION. The Committee may terminate the Plan at any time in its sole and absolute discretion. The Plan shall be terminated by the Committee if at any time the number of shares of Common Stock authorized for purposes of the Plan is not sufficient to meet all purchase requirements, except as specified in Section 4.1. Upon termination of the Plan, the Administrator shall give notice thereof to Participants and shall terminate all payroll deductions. Cash balances then credited to Participants' Contribution Accounts shall be distributed as soon as practicable, without interest. ARTICLE IX MISCELLANEOUS 9.1 EMPLOYMENT RIGHTS. Neither the establishment of the Plan, nor the grant of any Options thereunder, nor the exercise thereof shall be deemed to give to any Employee the right to be retained in the employ of the Corporation or any Subsidiary or to interfere with the right of the Corporation or any Subsidiary to discharge any Employee or otherwise modify the employment relationship at any time. 9.2 TAX WITHHOLDING. The Administrator may make appropriate provisions for withholding of federal, state, and local income taxes, and any other taxes, from a Participant's Compensation to the extent the Administrator deems such withholding to be legally required. 9.3 RIGHTS NOT TRANSFERABLE. Rights and Options granted under this Plan are not transferable by the Participant other than by will or by the laws of descent and distribution and are exercisable only by the Participant during his or her lifetime. 9.4 NO REPURCHASE OF STOCK BY CORPORATION. The Corporation is under no obligation to repurchase from any Participant any shares of Common Stock acquired under the Plan. 9.5 GOVERNING LAW. The Plan shall be governed by and construed in accordance with the laws of the State of Delaware except to the extent such laws are preempted by the laws of the United States. 9.6 STOCKHOLDER APPROVAL; REGISTRATION. The Plan was adopted by the Board of Directors of the Corporation on November 15, 2000 to be effective as of the Effective Date, provided that no payroll deductions may begin until a registration statement on Form S-8 filed under the Securities Act of 1933, as amended, covering the shares to be issued under the Plan, has become effective. The Plan is subject to approval by the stockholders of the Corporation within 12 months of approval by the Board of Directors. * * * * * * * * * * * * * * The foregoing is hereby acknowledged as being the AirGate PCS, Inc. 2001 Employee Stock Purchase Plan as adopted by the Board of Directors of the Corporation on November 15, 2001 and approved by the stockholders of the Company on January 30, 2001. AIRGATE PCS, INC. By: Barbara L. Blackford Its: Vice President, General Counsel and Secretary EX-99.2 6 0006.txt AIRGATE PCS, INC. 2001 NON-EXECUTIVE STOCK OPTION PLAN Exhibit 99.2 AIRGATE PCS, INC. 2001 NON-EXECUTIVE STOCK OPTION PLAN TABLE OF CONTENTS ARTICLE 1 PURPOSE 1 1.1 General 1 ARTICLE 2 EFFECTIVE DATE 1 2.1 Effective Date 1 ARTICLE 3 DEFINITIONS 1 3.1 Definitions 1 ARTICLE 4 ADMINISTRATION 5 4.1 Administration 5 4.2 Scope of Authority 5 4.3 Decisions Binding 6 ARTICLE 5 SHARES SUBJECT TO THE PLAN 6 5.1 Number of Shares 6 5.2 Replenishment of Shares 6 5.3 Source of Stock 7 ARTICLE 6 ELIGIBILITY 7 6.1 General 7 ARTICLE 7 STOCK OPTIONS 7 7.1 General 7 ARTICLE 8 PROVISIONS APPLICABLE TO AWARDS 8 8.1 Limits on Transfer 8 8.2 Beneficiaries 8 8.3 Stock Certificates 9 8.4 Acceleration for Any Reason 9 8.5 Effect of Acceleration 9 8.6 Termination of Employment 9 ARTICLE 9 CHANGES IN CAPITAL STRUCTURE 9 9.1 General 9 ARTICLE 10 AMENDMENT, MODIFICATION AND TERMINATION 11 10.1 Amendment, Modification and Termination 11 10.2 Awards Previously Granted 11 ARTICLE 11 GENERAL PROVISIONS 11 11.1 No Rights to Awards 11 11.2 No Stockholder Rights 11 11.3 Withholding 11 11.4 No Right to Employment 12 11.5 Unfunded Status of Awards 12 11.6 Relationship to Other Benefits 12 11.7 Expenses 12 11.8 Titles and Headings 12 11.9 Gender and Number 12 11.10 Fractional Shares 12 11.11 Government and Other Regulations 12 11.12 Governing Law 13 11.13 Additional Provisions 13 AIRGATE PCS, INC. 2001 NON-EXECUTIVE STOCK OPTION PLAN ARTICLE I PURPOSE 1.1 GENERAL. The purpose of the AirGate PCS, Inc. 2001 Non-Executive ------- Stock Option Plan (the "Plan") is to promote the success, and enhance the value, of AirGate PCS, Inc. (the "Company"), by linking the personal interests of its employees to those of Company stockholders and by providing such persons with an incentive for outstanding performance. The Plan is further intended to provide flexibility to the Company in its ability to motivate, attract, and retain the services of employees upon whose judgment, interest, and special effort the successful conduct of the Company's operation is largely dependent. Accordingly, the Plan permits the grant of incentive awards from time to time to selected employees. The Plan is intended to be a "broadly based plan" for purposes of Section 4460(i)(A) of the NASD Manual. No awards shall be granted under the Plan to its Officers or Directors (as defined below). ARTICLE 2 EFFECTIVE DATE 2.1 EFFECTIVE DATE. The Plan shall be effective as of the date upon --------------- which it shall be approved by the Board (the "Effective Date"). ARTICLE 3 DEFINITIONS 3.1 DEFINITIONS. When a word or phrase appears in this Plan with the ----------- initial letter capitalized, and the word or phrase does not commence a sentence, the word or phrase shall generally be given the meaning ascribed to it in this Section or in Section 1.1 unless a clearly different meaning is required by the context. The following words and phrases shall have the following meanings: (a) "Board" means the Board of Directors of the Company. (b) "Change in Control" means the occurrence of any of the following events: (i) individuals who, on the Effective Date, constitute the Board of Directors of the Company (the "Incumbent Directors") cease for any reason to constitute at least a majority of such Board, provided that any person becoming a director after the Effective Date and whose election or nomination for election was approved by a vote of at least a majority of the Incumbent Directors then on the Board of Directors shall be an Incumbent Director; provided, however, that no individual initially elected or nominated as a - ------- director of the Company as a result of an actual or threatened election contest with respect to the election or removal of directors ("Election Contest") or other actual or threatened solicitation of proxies or consents by or on behalf of any "person" (such term for purposes of this definition being as defined in Section 3(a)(9) of the Exchange Act and as used in Section 13(d)(3) and 14(d)(2) of the Exchange Act) other than the Board of Directors ("Proxy Contest"), including by reason of any agreement intended to avoid or settle any Election Contest or Proxy Contest, shall be deemed an Incumbent Director; or (ii) any person is or becomes a "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of either (i) 35% or more of the then-outstanding shares of common stock of the Company ("Company Common Stock") or (ii) securities of the Company representing 35% or more of the combined voting power of the Company's then outstanding securities eligible to vote for the election of directors (the "Company Voting Securities"); provided, -------- however, that for purposes of this paragraph (b), the following acquisitions - ------- shall not constitute a Change of Control: (A) an acquisition directly from the - --- Company, (B) an acquisition by the Company or a Subsidiary of the Company, (C) an acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company or any Subsidiary of the Company, or (D) an acquisition pursuant to a Non-Qualifying Transaction (as defined in paragraph (c) below); or (iii) the consummation of a reorganization, merger, consolidation, statutory share exchange or similar form of corporate transaction involving the Company or a Subsidiary (a "Reorganization"), or the sale or other disposition of all or substantially all of the Company's assets (a "Sale") or the acquisition of assets or stock of another corporation (an "Acquisition"), unless immediately following such Reorganization, Sale or Acquisition: (A) all or substantially all of the individual and entities who were the beneficial owners, respectively, of the outstanding Company Common Stock and outstanding Company Voting Securities immediately prior to such Reorganization, Sale or Acquisition beneficially own, directly or indirectly, more than 55% of, respectively, the then outstanding shares of common stock and the combined voting power of the then outstanding voting securities entitled to vote generally in the election of directors, as the case may be, of the corporation resulting from such Reorganization, Sale or Acquisition (including, without limitation, a corporation which as a result of such transaction owns the Company or all or substantially all of the Company's assets or stock either directly or through one or more subsidiaries, the "Surviving Corporation") in substantially the same proportions as their ownership, immediately prior to such Reorganization, Sale or Acquisition, of the outstanding Company Common Stock and the outstanding Company Voting Securities, as the case may be, and (B) no person (other than (x) the Company or any Subsidiary of the Company, (y) the Surviving Corporation or its ultimate parent corporation, or (z) any employee benefit plan (or related trust) sponsored or maintained by any of the foregoing is the beneficial owner, directly or indirectly, of 35% or more of the total common stock or 35% or more of the total voting power of the outstanding voting securities eligible to elect directors of the Surviving Corporation, and (C) at least a majority of the members of the board of directors of the Surviving Corporation were Incumbent Directors at the time of the Board's approval of the execution of the initial agreement providing for such Reorganization, Sale or Acquisition (any Reorganization, Sale or Acquisition which satisfies all of the criteria specified in (A), (B) and (C) above shall be deemed to be a "Non-Qualifying Transaction"); or (iv) approval by the stockholders of the Company of a complete liquidation or dissolution of the Company. (c) "Code" means the Internal Revenue Code of 1986, as amended from time to time. (d) "Committee" means the Compensation Committee of the Board. (e) "Company" means AirGate PCS, Inc., a Delaware corporation, or its successor(s). (f) "Director" shall mean a member of the Board of Directors of the Company. (g) "Disability" of a Participant means a physical or mental inability that causes the Participant to be considered disabled under the disability income plan applicable to such Participant, whether or not such Participant actually receives such disability benefits, or in the event there is no such disability income plan applicable to the Participant, as determined by the Committee. (h) "Effective Date" has the meaning assigned such term in Section 2.1. (i) "Eligible Participant" means an individual who is an employee of the Company or a Parent or Subsidiary, but who is not an Officer or Director and who is not a recipient of options under the Company's 1999 Stock Option Plan or any subsequent plan under which stock options are or may be granted to senior managers of the Company. (j) "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. (k) "Non-Qualified Stock Option" means an Option that is not intended to meet the requirements of Section 422 of the Code or any successor provision thereto. (l) "NASD" means the National Association of Securities Dealers, Inc. (m) "Officer", when used as a capitalized term, shall mean an "officer" of the Company as defined in Rule 16a-1(f) under the 1934 Act (or such other definition of the term "officer" as the NASD may subsequently adopt for purposes of its "broadly based plan" exemption for the shareholder approval requirements of Section 4460(i)(A) of the NASD Manual). (n) "Option" means a right granted to a Participant under this Plan to purchase Stock at a specified price during specified time periods. Any Option granted under the Plan shall be a Non-Qualified Stock Option. (o) "Option Agreement" means any written agreement, contract, or other instrument or document evidencing an Option. (p) "Parent" means a corporation which owns or beneficially owns a majority of the outstanding voting stock or voting power of the Company. (q) "Participant" means a an Eligible Participant who has been granted an Option under the Plan. (r) "Plan" means the AirGate PCS, Inc. 2001 Non-Executive Stock Option Plan, as amended from time to time. (s) "Stock" means the $.01 par value common stock of the Company and such other securities of the Company as may be substituted for Stock pursuant to Article 9. (t) "Subsidiary" means any corporation, limited liability company, partnership or other entity of which a majority of the outstanding voting stock or voting power is beneficially owned directly or indirectly by the Company. (u) "1933 Act" means the Securities Act of 1933, as amended from time to time. (v) "1934 Act" means the Securities Exchange Act of 1934, as amended from time to time. ARTICLE 4 ADMINISTRATION 4.1 ADMINISTRATION. The Plan shall be administered by the Committee. -------------- Any authority granted to the Committee may be exercised by the Board. In exercising such authority, the Board shall have all the powers of the Committee hereunder, and any reference herein to the Committee (other than in this Section 4.1) shall include the Board. The Committee may delegate its authority under this Plan to one or more committees or to senior managers of the Company, and may authorize further delegation by any such committee to senior managers of the Company, except the right to amend or terminate this Plan. 4.2 SCOPE OF AUTHORITY. The Committee shall have full power and -------------------- authority to administer this Plan, to administer and interpret this Plan and to adopt such rules, regulations, agreements, guidelines and instruments for the administration of this Plan as the Committee deems necessary or advisable. The Committee's powers include, but are not limited to, the power to do the following:: (a) Designate Participants; (b) Determine the type or types of Options to be granted to each Participant; (c) Determine the number of Options to be granted and the number of shares of Stock to which an Option will relate; (d) Determine the terms and conditions of any Option granted under the Plan, including but not limited to, the exercise price, grant price, or purchase price, any restrictions or limitations on the Option, any schedule for lapse of forfeiture restrictions or restrictions on the exercisability of an Option; (e) Prescribe the form of each Option Agreement, which need not be identical for each Participant; (f) Accelerate the vesting, exercisability or lapse of restrictions of any outstanding Option, based in each case on such considerations as the Committee in its sole discretion determines; (g) Decide all other matters that must be determined in connection with an Option; (h) Establish, adopt or revise any rules and regulations as it may deem necessary or advisable to administer the Plan; (i) Make all other decisions and determinations that may be required under the Plan or as the Committee deems necessary or advisable to administer the Plan; (j) Amend the Plan or any Option Agreement as provided herein; and (k) Adopt such modifications, procedures, and subplans as may be necessary or desirable to comply with provisions of the laws of non-U.S. jurisdictions in which the Company or any Parent or Subsidiary may operate, in order to assure the viability of the benefits of Options granted to participants located in such other jurisdictions and to meet the objectives of the Plan; and (l) Delegate its general administrative duties under the Plan to an officer or employee or committee of officers or employees of the Company. 4.3. DECISIONS BINDING. The Committee's interpretation of the Plan, ------------------ any Options granted under the Plan, any Option Agreement and all decisions and determinations by the Committee with respect to the Plan are final, binding, and conclusive on all parties. No member of the Committee shall be liable for any act done in good faith. ARTICLE 5 SHARES SUBJECT TO THE PLAN 5.1. NUMBER OF SHARES. Subject to adjustment as provided in Section ------------------ 9.1, the aggregate number of shares of Stock reserved and available for Options granted under the Plan shall be 150,000. 5.2. REPLENISHMENT OF SHARES. To the extent that an Option is ------------------------- canceled, terminates, expires or lapses for any reason, any shares of Stock subject to the Option will again be available for the grant of Options under the Plan. Any shares of Stock delivered to the Company in payment of the exercise price of an Option or in whole or partial satisfaction of tax withholding obligations in connection with the exercise of an Option shall be available for the grant of Options under this Plan. 5.3. SOURCE OF STOCK. Any Stock distributed pursuant to an Option may --------------- consist, in whole or in part, of authorized and unissued Stock, treasury Stock or Stock purchased on the open market. ARTICLE 6 ELIGIBILITY 6.1. GENERAL. Options may be granted only to Eligible Participants. ------- ARTICLE 7 STOCK OPTIONS 7.1. GENERAL. The Committee is authorized to grant Options to ------- Participants on the following terms and conditions: (a) EXERCISE PRICE. The exercise price per share of Stock under an --------------- Option shall be determined by the Committee, provided that the exercise price for any Option shall not be less than the Fair Market Value as of the date of the grant. (b) TIME AND CONDITIONS OF EXERCISE. The Committee shall determine the time ------------------------------- or times at which an Option may be exercised in whole or in part, subject to Section 7.1(e). The Committee also shall determine the performance or other conditions, if any, that must be satisfied before all or part of an Option may be exercised or vested. The Committee may waive any exercise or vesting provisions at any time in whole or in part based upon factors as the Committee may determine in its sole discretion so that the Option becomes exerciseable or vested at an earlier date. The Committee may permit an arrangement whereby receipt of Stock upon exercise of an Option is delayed until a specified future date. (c) PAYMENT. The Committee shall determine the methods by which the ------- exercise price of an Option may be paid, the form of payment, including, without limitation, cash, shares of Stock, or other property (including "cashless exercise" arrangements or "attestation" of shares previously owned), and the methods by which shares of Stock shall be delivered or deemed to be delivered to Participants; provided that if shares of Stock are used to pay the exercise price of an Option (either by attestation or actual delivery), such shares must have been held by the Participant for at least six months. Payment of the exercise price of an Option may be made in a single payment or transfer, in installments, or on a deferred basis, in each case determined in accordance with rules adopted by, and at the discretion of, the Committee. (d) EVIDENCE OF GRANT. All Options shall be evidenced by a written Option ------------------- Agreement between the Company and the Participant, initially in the form attached hereto as Exhibit A. The Option Agreement shall include such provisions, not inconsistent with the Plan, as may be specified by the Committee, and the form of Option Agreement may be modified by the Committee from time to time. (e) EXERCISE TERM. In no event may any Option be exercisable for more than -------------- ten years from the date of its grant. ARTICLE 8 PROVISIONS APPLICABLE TO AWARDS 8.1. LIMITS ON TRANSFER. No right or interest of a Participant in any ------------------ Option may be pledged, encumbered, or hypothecated to or in favor of any party other than the Company or a Parent or Subsidiary, or shall be subject to any lien, obligation, or liability of the Participant to any other party other than the Company or a Parent or Subsidiary. No Option shall be assignable or transferable by a Participant other than by will or the laws of descent and distribution or pursuant to a domestic relations order that would satisfy Section 414(p)(1)(A) of the Code if such Section applied to an Option under the Plan; provided, however, that the Committee may (but need not) permit other transfers where the Committee concludes that such transferability is appropriate and desirable, taking into account any factors deemed relevant, including without limitation, any state or federal tax or securities laws or regulations applicable to transferable Options. An Option may be exercised during the lifetime of the Participant only by the Participant or any permitted transferee. 8.2. BENEFICIARIES. Notwithstanding Section 8.1, a Participant may, ------------- in the manner determined by the Committee, designate a beneficiary to exercise the rights of the Participant and to receive any distribution with respect to any Option upon the Participant's death. A beneficiary, legal guardian, legal representative, or other person claiming any rights under the Plan is subject to all terms and conditions of the Plan and any Option Agreement applicable to the Participant, except to the extent the Plan and Option Agreement otherwise provide, and to any additional restrictions deemed necessary or appropriate by the Committee. If no beneficiary has been designated or survives the Participant, the Option may be exercised by the legal representative of the Participant's estate, and payment shall be made to the Participant's estate. Subject to the foregoing, a beneficiary designation may be changed or revoked by a Participant at any time provided the change or revocation is filed with the Company. 8.3. STOCK CERTIFICATES. All Stock issuable under the Plan is subject ------------------ to any stop-transfer orders and other restrictions as the Committee deems necessary or advisable to comply with federal or state securities laws, rules and regulations and the rules of any national securities exchange or automated quotation system on which the Stock is listed, quoted, or traded. The Committee may place legends on any Stock certificate or issue instructions to the transfer agent to reference restrictions applicable to the Stock. 8.4. ACCELERATION FOR ANY REASON. The Committee may in its sole ------------------------------ discretion at any time determine that all or a portion of a Participant's Options shall become fully or partially exercisable as of such date as the Committee may, in its sole discretion, declare. The Committee may discriminate among Participants and among Options granted to a Participant in exercising its discretion pursuant to this Section 8.4. 8.5 EFFECT OF ACCELERATION. If an Option is accelerated, the ------------------------ Committee may, in its sole discretion, provide (i) that the Option will expire after a designated period of time after such acceleration to the extent not then exercised, (ii) that the Option will be settled in cash rather than Stock, (iii) that the Option will be assumed by another party to the transaction giving rise to the acceleration or otherwise be equitably converted in connection with such transaction, or (iv) any combination of the foregoing. The Committee's determination need not be uniform and may be different for different Participants whether or not such Participants are similarly situated. 8.6. TERMINATION OF EMPLOYMENT. Whether military, government or other --------------------------- service or other leave of absence shall constitute a termination of employment shall be determined in each case by the Committee at its discretion, and any determination by the Committee shall be final and conclusive. A termination of employment shall not occur in (i) a circumstance in which a Participant transfers from the Company to one of its Parents or Subsidiaries, transfers from a Parent or Subsidiary to the Company, or transfers from one Parent or Subsidiary to another Parent or Subsidiary, or (ii) in the discretion of the Committee as specified prior to such occurrence, in the case of a spin-off, sale or disposition of the Participant's employer from the Company or any Parent or Subsidiary. ARTICLE 9 CHANGES IN CAPITAL STRUCTURE 9.1. GENERAL. In the event of a corporate transaction involving the ------- Company (including, without limitation, any stock dividend, stock split, extraordinary cash dividend, recapitalization, reorganization, merger, consolidation, split-up, spin-off, combination or exchange of shares), the authorization limits under Section 5.1 shall be adjusted proportionately, and the Committee may adjust Options to preserve the benefits or potential benefits of the Options. Action by the Committee may include: (i) adjustment of the number and kind of shares which may be delivered under the Plan; (ii) adjustment of the number and kind of shares subject to outstanding Options; (iii) adjustment of the exercise price of outstanding Options; and (iv) any other adjustments that the Committee determines to be equitable. Without limiting the foregoing, in the event a stock dividend or stock split is declared upon the Stock, the authorization limits under Section 5.1 shall be increased proportionately, and the shares of Stock then subject to each Option shall be increased proportionately without any change in the aggregate purchase price therefor. ARTICLE 10 AMENDMENT, MODIFICATION AND TERMINATION 10.1. AMENDMENT, MODIFICATION AND TERMINATION. The Board or the ------------------------------------------ Committee may, at any time and from time to time, amend, modify or terminate the Plan without stockholder or Participant approval; provided, however, that the Board or Committee may condition any amendment or modification on the approval of stockholders of the Company if such approval is necessary or deemed advisable with respect to tax, securities or other applicable laws, policies or regulations. No amendment, modification or termination of the Plan shall adversely affect any Option previously granted under the Plan, without the written consent of the Participant. 10.2 AWARDS PREVIOUSLY GRANTED. At any time and from time to time, --------------------------- the Committee may amend, modify or terminate any outstanding Option without approval of the Participant; provided, however, that, subject to the terms of the applicable Option Agreement, such amendment, modification or termination shall not, without the Participant's consent, reduce or diminish the value of such Option determined as if the Option had been exercised, vested, cashed in or otherwise settled on the date of such amendment or termination. ARTICLE 11 GENERAL PROVISIONS 11.1. NO RIGHTS TO AWARDS. No person shall have any claim to be ---------------------- granted any Option under the Plan, and neither the Company nor the Committee is obligated to treat Participants or eligible Participants uniformly. 11.2. NO STOCKHOLDER RIGHTS. No Option gives the Participant any of ----------------------- the rights of a stockholder of the Company unless and until shares of Stock are in fact issued to such person in connection with such Option. 11.3. WITHHOLDING. The Company or any Parent or Subsidiary shall have ----------- the authority and the right to deduct or withhold, or require a Participant to remit to the Company, an amount sufficient to satisfy federal, state, and local taxes (including the Participant's FICA obligation) required by law to be withheld with respect to any taxable event arising as a result of the Plan. With respect to withholding required upon any taxable event under the Plan, the Committee may, at the time the Option is granted or thereafter, require or permit that any such withholding requirement be satisfied, in whole or in part, by withholding from the Option shares of Stock having a Fair Market Value on the date of withholding equal to the minimum amount (and not any greater amount) required to be withheld for tax purposes, all in accordance with such procedures as the Secretary of the Company establishes. 11.4. NO RIGHT TO EMPLOYMENT. Nothing in the Plan or any Option ------------------------- Agreement shall interfere with or limit in any way the right of the Company or any Parent or Subsidiary to terminate any Participant's employment, nor confer upon any Participant any right to continue as an employee of the Company or any Parent or Subsidiary. l1.5. UNFUNDED STATUS OF AWARDS. The Plan is intended to be an ---------------------------- "unfunded" plan for incentive and deferred compensation. With respect to any payments not yet made to a Participant pursuant to an Option, nothing contained in the Plan or any Option Agreement shall give the Participant any rights that are greater than those of a general creditor of the Company or any Parent or Subsidiary. 11.6. RELATIONSHIP TO OTHER BENEFITS. No payment under the Plan shall ------------------------------ be taken into account in determining any benefits under any pension, retirement, savings, profit sharing, group insurance, welfare or benefit plan of the Company or any Parent or Subsidiary unless provided otherwise in such other plan. 11.7. EXPENSES. The expenses of administering the Plan shall be borne -------- by the Company and its Parents or Subsidiaries. 11.8. TITLES AND HEADINGS. The titles and headings of the Sections in ------------------- the Plan are for convenience of reference only, and in the event of any conflict, the text of the Plan, rather than such titles or headings, shall control. 11.9. GENDER AND NUMBER. Except where otherwise indicated by the ------------------- context, any masculine term used herein also shall include the feminine; the plural shall include the singular and the singular shall include the plural. 11.10. FRACTIONAL SHARES. No fractional shares of Stock shall be ------------------ issued and the Committee shall determine, in its discretion, whether such fractional shares shall be disregarded or eliminated by rounding up. 11.11. GOVERNMENT AND OTHER REGULATIONS. The obligation of the ----------------------------------- Company to make payment of awards in Stock or otherwise shall be subject to all applicable laws, rules, and regulations, and to such approvals by government agencies as may be required. The Company shall be under no obligation to register under the 1933 Act, or any state securities act, any of the shares of Stock issued in connection with the Plan. The shares issued in connection with the Plan may in certain circumstances be exempt from registration under the 1933 Act, and the Company may restrict the transfer of such shares in such manner as it deems advisable to ensure the availability of any such exemption. 11.12. GOVERNING LAW. To the extent not governed by federal law, the --------------- Plan and all Option Agreements shall be construed in accordance with and governed by the laws of the State of Delaware. 11.13. ADDITIONAL PROVISIONS. Each Option Agreement may contain such ---------------------- other terms and conditions as the Committee may determine; provided that such other terms and conditions are not inconsistent with the provisions of this Plan. The foregoing is hereby acknowledged as being the AirGate PCS, Inc. 2001 Non-Executive Stock Option Plan as adopted by the Board of Directors of the Company on January 30, 2001. AIRGATE PCS, INC. By: Barbara L. Blackford Its: Vice President, General Counsel and Secretary -----END PRIVACY-ENHANCED MESSAGE-----