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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 18, 2000
REGISTRATION NO. 333-39446
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 6
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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OMNISKY CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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<S> <C> <C>
DELAWARE 4812 77-0516363
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
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1001 ELWELL COURT
PALO ALTO, CALIFORNIA 94303
(650) 969-7700
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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PATRICK S. MCVEIGH
CHIEF EXECUTIVE OFFICER
OMNISKY CORPORATION
1001 ELWELL COURT
PALO ALTO, CALIFORNIA 94303
(650) 969-7700
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
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COPIES TO:
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<S> <C>
Aaron J. Alter, Esq. Danielle Carbone, Esq.
John L. Donahue, Esq. Shearman & Sterling
Richard S. Arnold, Jr., Esq. 1550 El Camino Real, Suite 100
Wilson Sonsini Goodrich & Rosati Menlo Park, California 94025
Professional Corporation (650) 330-2200
650 Page Mill Road
Palo Alto, California 94304
(650) 493-9300
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after the effective date of this Registration Statement.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ] __________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ] __________
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ] __________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF NUMBER OF SHARES OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED TO BE REGISTERED PER SHARE PRICE(1) REGISTRATION FEE
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Common Stock, $0.001 par value... 10,465,000 $12.00 $125,580,000 $33,154(2)
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(1) Estimated solely for the purpose of computing the amount of the registration
fee pursuant to Rule 457(o) under the Securities Act.
(2) Previously paid.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL HEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SUCH SECTION 8(a),
MAY DETERMINE.
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<PAGE> 2
EXPLANATORY NOTE
The purpose of this Amendment No. 6 is solely to file certain exhibits to
the Registration Statement as set forth below in Item 16(a) of Part II.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) EXHIBITS
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<CAPTION>
EXHIBIT
NUMBER
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<S> <C>
1.1** Form of Underwriting Agreement.
3.1** Amended and Restated Certificate of Incorporation of the
Registrant.
3.2** Bylaws of the Registrant.
3.3** Form of Amended and Restated Certificate of Incorporation of
Registrant to be effective upon the closing of this
offering.
3.4** Form of Amended and Restated Bylaws of Registrant to be
effective upon the closing of this offering.
3.5** Certificate of Amendment of the Restated Certificate of
Incorporation of the Registrant.
4.1** Specimen Common Stock Certificate.
5.1** Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation.
10.1** Form of Indemnification Agreement between the Registrant and
each of its directors and officers.
10.2** 1999 Stock Plan and form of agreement thereunder.
10.3** Form of 2000 Stock Plan.
10.4** Form of 2000 Employee Stock Purchase Plan.
10.5** Second Amended and Restated Investors Rights Agreement dated
April 24, 2000.
10.6** Lease at 1001 Elwell Court, Palo Alto, CA.
10.7 Palm Computing Software License dated January 6, 2000.
10.8+ AT&T Wireless Services Value Added Reseller Agreement dated
December 2, 1999.
10.9** The News Corporation Limited Joint Venture Agreement dated
April 18, 2000.
10.10+ Novatel Wireless, Inc. Supply Agreement dated July 15, 1999,
as amended in October 1999.
10.11** Aether Technologies International, L.L.C. Software License
Agreement dated August 9, 1999.
10.12** Lease at One Market Street, San Francisco, CA.
10.13+ Tellus Technology Incorporated Supply Agreement.
10.14 Riverbed Technologies ScoutIT Software License and Services
Agreement dated November 15, 1999.
10.15 Aether Software ScoutWeb Software License and Services
Agreement dated July 7, 2000.
10.16 America Online, Inc. Common Stock Purchase Agreement dated
as of August 31, 2000.
10.17+ America Online, Inc. Strategic Marketing and Content
Agreement, dated as of August 31, 2000.
23.1** Consent of Independent Accountants.
23.2 Consent of Counsel (see Exhibit 5.1).
24.1** Power of Attorney.
27.1** Financial Data Schedules.
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** Previously filed.
+ The registrant is seeking confidential treatment on certain portions of this
exhibit from the Commission. The omitted portions have been filed separately
with the Commission.
(b) FINANCIAL STATEMENT SCHEDULES
Schedules not listed above have been omitted because the information
required to be set forth therein is not applicable or is shown in the financial
statements or notes thereto.
<PAGE> 3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant has duly caused this Amendment to the Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Palo Alto, State of California, on the 18th day of September 2000.
OMNISKY CORPORATION
By: /s/ PATRICK S. MCVEIGH
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Patrick S. McVeigh
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Amendment to the Registration Statement has been signed by the following
persons in the capacities and on the dates indicated below.
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SIGNATURE TITLE DATE
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<C> <C> <S>
/s/ PATRICK S. MCVEIGH Chief Executive Officer and September 18, 2000
------------------------------------------------ Chairman of the Board
Patrick S. McVeigh (Principal Executive Officer)
/s/ LAWRENCE S. WINKLER Chief Financial Officer September 18, 2000
------------------------------------------------ (Principal Financial Officer)
Lawrence S. Winkler
/s/ MICHAEL J. MALESARDI Vice President, Controller September 18, 2000
------------------------------------------------ (Principal Accounting Officer)
Michael J. Malesardi
* Director September 18, 2000
------------------------------------------------
David S. Oros
* Director September 18, 2000
------------------------------------------------
Janice M. Roberts
* Director September 18, 2000
------------------------------------------------
Stephen M. Diamond
* Director September 18, 2000
------------------------------------------------
Thomas E. Wheeler
* Director September 18, 2000
------------------------------------------------
Lachlan K. Murdoch
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*By /s/ LAWRENCE S. WINKLER
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Attorney-in-fact
II-6
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EXHIBIT INDEX
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<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION OF DOCUMENT PAGE
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<S> <C> <C>
1.1** Form of Underwriting Agreement.
3.1** Amended and Restated Certificate of Incorporation of the
Registrant.
3.2** Bylaws of the Registrant.
3.3** Form of Amended and Restated Certificate of Incorporation of
Registrant to be effective upon the closing of this
offering.
3.4** Form of Amended and Restated Bylaws of Registrant to be
effective upon the closing of this offering.
3.5** Certificate of Amendment of the Restated Certificate of
Incorporation of the Registrant.
4.1** Specimen Common Stock Certificate.
5.1** Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation.
10.1** Form of Indemnification Agreement between the Registrant and
each of its directors and officers.
10.2** 1999 Stock Plan and form of agreement thereunder.
10.3** Form of 2000 Stock Plan.
10.4** Form of 2000 Employee Stock Purchase Plan.
10.5** Second Amended and Restated Investors Rights Agreement dated
April 24, 2000.
10.6** Lease at 1001 Elwell Court, Palo Alto, CA.
10.7 Palm Computing Software License dated January 6, 2000.
10.8+ AT&T Wireless Services Value Added Reseller Agreement dated
December 2, 1999.
10.9** The News Corporation Limited Joint Venture Agreement dated
April 18, 2000.
10.10+ Novatel Wireless, Inc. Supply Agreement dated July 15, 1999,
as amended in October 1999.
10.11** Aether Technologies International, L.L.C. Software License
Agreement dated August 9, 1999.
10.12** Lease at One Market Street, San Francisco, CA.
10.13+ Tellus Technology Incorporated Supply Agreement.
10.14 Riverbed Technologies ScoutIT Software License and Services
Agreement dated November 15, 1999.
10.15 Aether Software ScoutWeb Software License and Services
Agreement dated July 7, 2000.
10.16 America Online, Inc. Common Stock Purchase Agreement dated
as of August 31, 2000.
10.17+ America Online, Inc. Strategic Marketing and Content
Agreement, dated as of August 31, 2000.
23.1** Consent of Independent Accountants.
23.2 Consent of Counsel (see Exhibit 5.1).
24.1** Power of Attorney.
27.1** Financial Data Schedules.
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** Previously filed.
+ The registrant is seeking confidential treatment on certain portions of this
exhibit from the Commission. The omitted portions have been filed separately
with the Commission.
