<PAGE>
Registration No. 33-________
As filed with the Securities and Exchange Commission on December 4, 1995.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------------------------
FORM S-4
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
COMMNET CELLULAR INC.
---------------------
(Exact name of registrant as specified in its charter)
<TABLE>
<CAPTION>
<S> <C> <C>
Colorado 4811 84-0924904
- ------------------------ ---- ----------
(State or other juris- (Primary Standard Industrial (I.R.S. Employer
diction of incorporation Classification Code Number) Identification No.)
or organization)
</TABLE>
5990 Greenwood Plaza Boulevard
Englewood, Colorado 80111
(303) 694-3234
--------------
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
Amy M. Shapiro, Esq.
Senior Vice President and General Counsel
CommNet Cellular Inc.
5990 Greenwood Plaza Boulevard
Englewood, Colorado 80111
(303) 694-3234
--------------
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
with a copy to:
Mark J. Sather, Esq.
Ireland, Stapleton, Pryor & Pascoe, P.C.
1675 Broadway, 26th Floor
Denver, Colorado 80202
(303) 623-2700
----------------------------------------
Approximate date of commencement of proposed sale to the public: From time to
time after this Registration Statement becomes effective.
<PAGE>
If the only securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [_]
The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933, as amended, or until the Registration Statement shall
become effective on such date as the Commission, acting pursuant to said Section
8(a), may determine.
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of each class of Proposed maximum Proposed maximum
securities to be Amount to be offering price per aggregate offering Amount of
registered registered share price registration fee
<S> <C> <C> <C> <C>
====================================================================================================================================
Common Stock, $.001 par
value per share 1,000,000 $26.8125* $26,812,500* $9,246
====================================================================================================================================
</TABLE>
_______________________________________
* Estimated, pursuant to Rule 457(c), solely for the purpose of calculating the
registration fee based on the average of the high and low prices reported on the
Nasdaq National Market on November 30, 1995.
ii
<PAGE>
COMMNET CELLULAR INC.
Cross-Reference Sheet Pursuant to Item 501(b) of Regulation S-K
<TABLE>
<CAPTION>
Form S-4 Item Number and Heading Caption or Location in Prospectus
- -------------------------------- ---------------------------------
<S> <C> <C>
1 Forepart of Registration Statement
and Outside Front Cover Page of
Prospectus............................ Outside Front Cover of
Prospectus; Facing Page
2 Inside Front and Outside Back Cover
Pages of Prospectus................... Available Information;
Incorporation of Certain
Information by Reference; Table
of Contents
3 Risk Factors, Ratio of Earnings to
Fixed Charges and Other Information... Summary; Risk Factors; Selected
Consolidated Financial Data
4 Terms of the Transaction.............. Not Applicable
5 Pro Forma Financial Information....... Not Applicable
6 Material Contacts with the Company
Being Acquired........................ Not Applicable
7 Additional Information Required for
Reoffering by Persons and Parties
Deemed to be Underwriters............. Not Applicable
8 Interests of Named Experts and
Counsel............................... Legal Matters
9 Disclosure of Commission Position on
Indemnification for Securities Act
Liabilities........................... Not Applicable
10 Information with Respect to S-3
Registrants........................... Incorporation of Certain
Information by Reference
11 Incorporation of Certain Information
by Reference.......................... Incorporation of Certain
Information by Reference
12 Information with Respect to S-2 or
S-3 Registrants....................... Not Applicable
13 Incorporation of Certain Information
by Reference.......................... Not Applicable
</TABLE>
iii
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
14 Information with Respect to
Registrants Other than S-3 or S-2
Registrants........................... Not Applicable
15 Information with Respect to S-3
Companies............................. Not Applicable
16 Information with Respect to S-2 or
S-3 Companies......................... Not Applicable
17 Information with Respect to
Companies Other than S-2 or S-3
Companies............................. Not Applicable
18 Information if Proxies, Consents or
Authorizations are to be Solicited.... Not Applicable
19 Information if Proxies, Consents or
Authorizations are not to be Solicited
or in an Exchange Offer............... Not Applicable
</TABLE>
iv
<PAGE>
PROSPECTUS
1,000,000 Shares
COMMNET CELLULAR INC.
COMMON STOCK
----------------------------------------
This Prospectus relates to shares of Common Stock which may be offered
from time to time in connection with acquisitions by CommNet Cellular Inc. (the
"Company") of direct or indirect interests in certain entities holding FCC
licenses to own and operate cellular telephone systems. These shares will
ordinarily represent consideration paid by the Company upon the acquisition of
such interests. The terms of such acquisitions generally will be determined by
direct negotiations with the owners of the interests to be acquired and will not
involve the payment of underwriting fees or discounts, except that finders' fees
may be paid to persons in connection with the acquisitions. It is anticipated
that the shares of Common Stock issued in any such acquisition will be valued at
a price reasonably related to the market value of the Common Stock at the time
the terms of the acquisition are agreed upon, at or about the time of closing or
during the period prior to the delivery of the shares. See "Summary - The
Offering." All expenses relating to the distribution of the Common Stock will
be paid by the Company.
SEE "RISK FACTORS" FOR A DISCUSSION OF CERTAIN FACTORS WHICH PROSPECTIVE
INVESTORS SHOULD CONSIDER PRIOR TO AN INVESTMENT IN THE COMMON STOCK.
The Common Stock is listed on the Nasdaq National Market under the
trading symbol "CELS." On December __, 1995, the last reported sale price of
the Common Stock was $_____.
----------------------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
The date of this Prospectus is December ___, 1995.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Available Information.............................. 3
Incorporation of Certain Information by Reference.. 4
The Company........................................ 5
Risk Factors....................................... 5
Selected Consolidated Financial Data............... 9
The Offering....................................... 10
Legal Matters...................................... 10
Experts............................................ 10
</TABLE>
-2-
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information may be inspected and copied at the offices of
the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, and at its
regional offices located at Seven World Trade Center, 13th Floor, New York, New
York 10048 and 500 West Madison Street, Suite 1400, Chicago, Illinois 60661.
Copies of such material may be obtained at prescribed rates by addressing
written requests for such copies to the Public Reference Section of the
Commission at its Washington, D.C. facility.
The Company has filed with the Commission a registration statement on
Form S-4 (such registration statement, together with all amendments and
exhibits, the "Registration Statement") under the Securities Act of 1933, as
amended (the "Securities Act"). This Prospectus does not contain all of the
information set forth in the Registration Statement. The Registration Statement
may be inspected and copied at the public reference facilities maintained by the
Commission at the addresses set forth in the preceding paragraph.
No person is authorized to give any information or to make any
representations other than as contained in this Prospectus in connection with
this offering and, if given or made, such information or representations must
not be relied upon as having been authorized by the Company. Neither the
delivery of this Prospectus nor any sale made hereunder shall under any
circumstances create any implication that the information herein is correct as
of any time subsequent to the date hereof. This Prospectus does not constitute
an offer to sell or the solicitation of an offer to buy by anyone in any state
in which such offer or solicitation is not authorized or in which the person
making such offer or solicitation is not qualified to do so or to any person to
whom it is unlawful to make such offer or solicitation.
-3-
<PAGE>
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents which have been filed with the Commission
pursuant to the Exchange Act are hereby incorporated by reference in this
Prospectus:
(1) the Company's Annual Report on Form 10-K for the fiscal year
ended September 30, 1994, as amended by Form 10-K/A No. 1 dated January 11,
1995, Form 10-K/A No. 2 dated May 25, 1995 and Form 10-K/A No. 3 dated June 16,
1995;
(2) the Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended December 31, 1994, as amended by Form 10-Q/A No. 1 dated May 25,
1995;
(3) the Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 1995, as amended by Form 10-Q/A No. 1 dated June 16,
1995;
(4) the Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended June 30, 1995;
(5) all other documents filed by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this
Prospectus and prior to the termination of the offering of the shares to which
this Prospectus relates;
(6) the description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed October 6, 1986; and
(7) the description of the Company's Preferred Stock Purchase Rights
contained in the Company's Registration Statement on Form 8-A filed December 20,
1990.
Any statement contained herein or in a document incorporated or deemed to be
incorporated by reference herein (an "Incorporated Document") shall be deemed to
be modified or superseded for all purposes to the extent that a statement
contained in this Prospectus or in any other subsequently filed Incorporated
Document or in an accompanying prospectus supplement modifies or supersedes such
statement.
This Prospectus is accompanied by the Company's latest Annual Report to
Shareholders and latest quarterly report on Form 10-Q.
THIS PROSPECTUS INCORPORATES DOCUMENTS BY REFERENCE WHICH ARE NOT
PRESENTED HEREIN OR DELIVERED HEREWITH. THESE DOCUMENTS ARE AVAILABLE UPON
REQUEST FROM STOCKHOLDER RELATIONS, COMMNET CELLULAR INC., 5990 GREENWOOD PLAZA
BOULEVARD, ENGLEWOOD, COLORADO 80111 OR BY CALLING (303) 694-3234. IN ORDER TO
INSURE TIMELY DELIVERY OF THE DOCUMENTS, ANY REQUEST SHOULD BE MADE BY FIVE
BUSINESS DAYS PRIOR TO THE DATE ON WHICH A FINAL INVESTMENT DECISION MUST BE
MADE.
-4-
<PAGE>
THE COMPANY
The Company is engaged in the operation, management and financing of
cellular telephone systems in which its affiliates hold an ownership interest.
The Company was incorporated in Colorado in October 1983 and maintains its
registered office and executive offices at Suite 300, 5990 Greenwood Plaza
Boulevard, Englewood, Colorado 80111. Its telephone number is (303) 694-3234.
References to the Company herein shall be deemed to refer to the Company and its
consolidated subsidiaries, unless the context requires otherwise.
RISK FACTORS
Prospective investors should consider carefully the following specific
factors, as well as the other information set forth in this Prospectus or
otherwise incorporated by reference herein.
Highly Leveraged Financial Position; Debt Service Requirements. The Company
is highly leveraged and has substantial debt service requirements. At June 30,
1995, the Company had outstanding long-term debt of $278,530,979, compared to
stockholders' equity of $8,087,325. Interest expense was $21,339,000 for fiscal
year 1994, $9,731,000 of which was payable on a cash basis and the balance of
which constituted accretion on the Company's 11 3/4% Senior Subordinated
Discount Notes. The credit agreements (collectively, the "Credit Agreements")
between Cellular, Inc. Financial Corporation ("CIFC"), the Company's wholly-
owned financing subsidiary, and CoBank, ACB ("CoBank") provide for the
reborrowing of any loan repayments made to CoBank until the revolving
commitments under the Credit Agreements terminate in December 1996. Upon such
termination, amounts due under the Credit Agreements are converted into term
loans requiring quarterly cash amortization payments through December 31, 2000.
The Company's ability to meet its debt service requirements will require
significant and sustained growth in cash flow by the Company and its affiliates.
Historically, the Company has been able to make required interest payments on
its indebtedness from borrowings under bank loans and from equity and debt
financings. The Company will require continued access to such financing sources
until such time as the Company generates sufficient positive cash flow from
operations to service its debt and, to the extent that the Company's leverage
increases, the Company's access to such financing sources may be curtailed or
made more expensive. There can be no assurance that the Company will experience
the necessary growth in cash flow or will be able to access the financing
sources described above.
Operating Losses and Net Losses. The Company has experienced operating
losses from inception and net losses from inception. The Company anticipates
that losses will continue over the next several years. Operating losses in
fiscal years 1992, 1993 and 1994 were $18,344,000, $15,431,000 and $5,669,000,
respectively (including depreciation, amortization and write-downs of switch
assets related to an upgrade program of $14,115,000, $19,951,000 and
$15,767,000, respectively), and net losses for the same periods were
$17,042,000, $22,666,000 and $16,751,000, respectively. Operating and net losses
for the nine months ended June 30, 1995 were $1,874,328 and $15,820,091,
respectively. There is no assurance that future operations will be profitable or
generate positive cash flow.
Holding Company Structure; Credit Agreement Restrictions. A substantial
portion of the Company's assets and operations are located in its subsidiaries
and affiliates and, to that extent, the Company is effectively a holding
company. The Company must rely on dividends, loan repayments and other
intercompany cash flows from its subsidiaries and affiliates to generate the
funds necessary to meet
-5-
<PAGE>
the Company's debt service obligations. The Credit Agreements contain
restrictions on the ability of any subsidiary or affiliate of the Company which
has borrowed from CIFC to make distributions to the Company. The Company has
guaranteed the obligations of CIFC to CoBank and has granted a first security
interest in all of the assets of the Company as security for such guaranty. The
assets of affiliates which borrow funds from CIFC are pledged to CIFC, which in
turn assigns such pledges to CoBank. Claims of other creditors of the Company's
subsidiaries and affiliates, including CoBank, tax authorities, trade creditors
and creditors of those affiliates which have financing sources in addition to
the Company, will generally have priority as to the assets of such subsidiaries
and affiliates over the claims of the Company.
Restrictions Under Debt Instruments. The Company's operations and financial
performance are subject to covenants contained in certain agreements related to
the Company's indebtedness, including the Credit Agreements and the indenture
governing the 11 3/4% Senior Subordinated Discount Notes. Among other things,
those agreements (i) limit the Company's ability to incur additional
indebtedness, including guarantees, sell or create liens upon its assets, pay
dividends on and make other distributions with respect to its capital stock and
enter into new lines of business and (ii) require the Company to meet certain
financial performance tests and use portions of the net proceeds from the sale
of certain assets and the issuance of debt securities by the Company to repay
obligations under certain agreements. These restrictions could limit the
Company's ability to effect future acquisitions or financing or otherwise
restrict corporate activities.
Nature of Company's Ownership of Licenses. Many of the Company's interests
in cellular systems are owned through affiliates that are partners in limited
partnerships which are the licensees for their respective systems. In those
partnerships in which the Company's affiliate is a limited partner or is one of
several general partners, certain decisions, such as the timing and amount of
cash distributions and sale or liquidation of the partnership, may not be
subject to a vote of the limited partners or may require a greater percentage
vote than that owned by the Company's affiliate. In those partnerships that are
not managed by the Company, the Company is dependent on the managing partner to
meet the licensee's obligations under the FCC's rules and regulations. There can
be no assurance that any partnership in which the Company holds an interest will
make decisions on such matters which will be in the Company's best interest or
that other partners' conduct and character will not adversely affect the
continuing qualification of licensees in which the Company holds an interest.
Limited Operating History; New Industry. Cellular operations within the
network began in 1988 and, accordingly, the Company's operating history is
limited. Moreover, its operations to date have concentrated on the acquisition
of interests in cellular systems licenses and licensees and the construction and
initial operation of cellular systems. A substantial majority of the cellular
telephone systems in which the Company holds an interest have been operational
for less than five years. While there are a substantial number of cellular
telephone systems operating in the United States and in other countries,
cellular telecommunications is a relatively new industry with a limited history.
Moreover, most of the cellular systems in which the Company holds an interest
are in RSA markets, which have an even more limited operating history than the
larger MSA markets. Based on demographic factors, including population size and
density, traffic patterns and other relevant market characteristics, the Company
believes that successful commercial exploitation of the RSA and MSA markets in
which the Company holds interests can be achieved. However, there can be no
assurance that this will be the case.
-6-
<PAGE>
Competition; New Technologies; Obsolescence. The FCC licenses two cellular
carriers in each market. Competition for customers between the two systems is
principally on the basis of quality, service and price. The Company's
competitors may have financial resources which are substantially greater than
those of the Company and its partners. In addition, FCC policy requires cellular
licensees to provide, on a nondiscriminatory basis, cellular service to
resellers that purchase blocks of mobile telephone numbers and then resell them
to the public. This may create added competition at the retail level.
Competition may also arise from other technologies, including conventional
mobile telephone services, mobile satellite systems, wireless data services,
paging services and Specialized Mobile Radio ("SMR") systems. The FCC has
recently given approval for the creation of enhanced SMR ("ESMR") systems, which
combine multiple SMR systems in a cellular structure and employ frequency reuse,
like cellular, thereby potentially eliminating much of the current technological
distinction between SMR and cellular.
The FCC has also allocated radio channels for personal communications services
("PCS"). Among other possible uses, PCS will be capable of providing a two-way
mobile voice and data telephone service that is similar to cellular service. PCS
will be a digital, wireless communications system that will utilize technology
that could allow it to compete effectively with cellular systems, particularly
in densely populated areas. Licenses will be awarded by competitive bidding.
Auctions for the first two spectrum blocks have been completed. Absent delays
caused by any judicial proceedings, PCS systems can be expected to commence
operation in major metropolitan areas as early as the end of calendar year 1995.
Continuing advances in the communications field make it impossible to predict
the extent of additional future competition for cellular systems, but it is
certain that in the future there will be more potential substitutes for cellular
service. There can be no assurance that the Company will not face significant
future competition or that cellular technology will not eventually become
obsolete.
Value of Cellular Licenses Dependent Upon Success of Operations and
Industry. A substantial portion of the Company's assets consists of interests
in cellular licenses and in entities holding cellular licenses. The value of
cellular licenses will depend significantly upon the success of the operations
of such licensees and the growth of the industry generally. Although a market
for interests in cellular licenses currently exists and the Company believes
that such a market will continue, there can be no assurance that this will be
the case. Even if a market does continue in the future, the values obtainable
for interests in cellular licenses in such a market may be significantly lower
than current values.
Regulatory Considerations. The licensing, construction, operation, sale and
acquisition of cellular systems are regulated by the FCC. In addition, certain
aspects of cellular operations, including but not limited to rates and resale of
cellular services, may be subject to public utility regulation in the state in
which the service is provided. The ongoing operations of the Company may require
permits, licenses and other authorization from regulatory authorities (including
but not limited to the FCC) not now held by the Company. In addition, licensing
proceedings and applications for granting and transferring construction permits
and operating licenses have been subject to substantial delays by the FCC. While
the Company expects that it will receive requisite authorizations and approvals
in the ordinary course of business, no assurance can be given that the
applicable regulatory authority will grant such approvals in a timely manner, if
at all. Moreover, changes in regulation, such as increased price regulation or
deregulation of interconnection arrangements, could adversely affect the
Company's financial condition and operating results. Under the FCC rules,
licenses for cellular systems are generally issued for ten-year terms. Although
a licensee may apply for renewal and, under certain circumstances, may be
entitled to
-7-
<PAGE>
a renewal expectancy, renewal is not automatic. The Company's renewal
applications may be subject to petitions to deny or competing applications.
Therefore, no assurance can be given that any license will be renewed.
Radiofrequency Emission Concerns. Media reports have suggested that certain
radiofrequency ("RF") emissions from portable cellular telephones might be
linked to cancer. Concerns over RF emissions may have the effect of discouraging
the use of cellular telephones, which could have an adverse effect upon the
Company's business. The FCC has a rulemaking proceeding pending to update the
guidelines and methods it uses for evaluating RF emissions from radio equipment,
including cellular telephones. The proposal would impose more restrictive
standards on RF emissions from lower power devices such as portable cellular
telephones.
Dependence on Key Personnel. The Company's affairs are managed by a small
number of key personnel, the loss of which could have an adverse impact on the
Company.
-8-
<PAGE>
SELECTED CONSOLIDATED FINANCIAL DATA
The following selected consolidated financial data as of and for each
of the five years in the period ended September 30, 1994 are derived from
consolidated financial statements of the Company that have been audited by Ernst
& Young LLP, independent auditors. The data should be read in conjunction with
the financial statements and other financial information incorporated by
reference in this Prospectus.
<TABLE>
<CAPTION>
Year Ended September 30,
------------------------
STATEMENT OF OPERATIONS DATA: 1990 1991 1992 1993 1994
------------- ------------- ------------- ------------- -------------
<S> <C> <C> <C> <C> <C>
Revenues................................ $ 1,024,676 $ 4,908,170 $ 14,906,349 $ 33,689,311 $ 61,360,051
Costs and expenses:
Cellular Operations................... 2,419,515 11,940,438 18,138,532 30,288,634 50,855,637
Corporate (net of amounts
allocated to affiliates)............ 1,518,498 (592,798) 997,157 (1,119,298) 406,638
Depreciation and amortization......... 1,855,678 8,569,325 14,114,817 19,950,508 12,650,855
Write-down of property and
equipment........................... -- -- -- -- 3,116,256
------------ ------------ ------------ ------------ ------------
Operating Loss.......................... (4,769,015) (15,008,795) (18,344,157) (15,430,533) (5,669,335)
Equity in net loss of affiliates........ (5,071,980) (10,931,161) (8,851,753) (6,339,145) (5,092,484)
Minority interest in equity of -- -- -- -- (543,607)
affiliates.............................
Gains on sales of affiliates and
other................................. -- -- 14,339,063 7,821,424 3,811,943
Interest expense........................ (6,894,329) (11,245,394) (14,800,908) (16,427,796) (21,338,505)
Interest income......................... 9,028,813 8,484,298 10,616,024 10,701,511 12,080,836
------------ ------------ ------------ ------------ ------------
Loss before extraordinary charge........ (7,706,511) (28,701,052) (17,041,731) (19,674,539) (16,751,152)
Extraordinary charge.................... -- -- -- (2,991,673) --
------------ ------------ ------------ ------------ ------------
Net loss................................ $ (7,706,511) $(28,701,052) $(17,041,731) $(22,666,212) $(16,751,152)
============ ============ ============ ============ ============
Net loss per common share............... $(1.68) $(6.00) $(2.44) $(2.65) $(1.45)
============ ============ ============ ============ ============
BALANCE SHEET DATA (AT PERIOD END):
Working capital......................... $ 32,058,078 $ 15,317,636 $ 29,477,995 $ 63,560,591 $ 25,524,500
Investment in and advances to
affiliates............................ 39,456,182 50,745,576 52,019,577 55,892,372 61,908,761
Net property and equipment.............. 13,923,725 33,555,291 44,209,682 53,460,296 79,917,727
Total assets............................ 149,528,094 181,972,276 208,363,573 269,290,185 281,752,821
Long-term debt.......................... 131,299,631 183,208,596 189,430,430 259,676,224 243,913,168
Total liabilities....................... 143,221,602 204,059,999 204,123,685 278,711,956 265,846,354
Stockholders' equity (deficit).......... 6,306,492 (22,087,723) 4,239,888 (9,421,771) 15,906,467
</TABLE>
-9-
<PAGE>
THE OFFERING
This Prospectus relates to shares of Common Stock that may be offered
and issued from time to time in connection with acquisitions by the Company of
direct or indirect interests in certain entities holding FCC licenses to own and
operate cellular telephone systems. These shares will ordinarily represent
consideration paid by the Company upon the acquisition of such interests. The
terms of, including the consideration for, such acquisitions generally will be
determined by direct negotiations with the owners of the interests to be
acquired and will not involve the payment of underwriting fees or discounts,
except that finders' fees may be paid to persons in connection with the
acquisitions. It is anticipated that the shares of Common Stock issued in any
such acquisition will be valued at a price reasonably related to the market
price of the Common Stock at the time the terms of the acquisition are agreed
upon, at or about the time of closing or during the period prior to the delivery
of the shares. Other than the interests acquired, there will be no proceeds to
the Company from this offering.
The acquisitions may involve the exchange of the Common Stock for (i)
stock of an affiliate held by the affiliate's other shareholders, (ii)
partnership interests held by the other partners in an affiliate or (iii) assets
of an affiliate. Under certain circumstances, the consideration offered by the
Company in an acquisition may include cash, debt, other securities of the
Company or the assumption of liabilities by the Company.
The shares of Common Stock received pursuant to this Prospectus may be
subject to the resale provisions of Rule 145(d) under the Securities Act.
Generally, that rule provides that a person may not sell in any three month
period more than the greater of one percent of the number of shares outstanding
or the average weekly trading volume for the four weeks preceding the date of
sale.
LEGAL MATTERS
The validity of the shares of Common Stock offered by this Prospectus
will be passed upon for the Company by Amy M. Shapiro, Vice-President, Secretary
and General Counsel for the Company. As of November 30, 1995, Ms. Shapiro was
the beneficial owner (for purposes of the Exchange Act) of 41,175 shares of
Common Stock.
EXPERTS
The consolidated financial statements of the Company at September 30,
1994 and 1993 and for each of the three years in the period ended September 30,
1994, incorporated by reference in the Company's Annual Report (Form 10-K) as
amended by Form 10-K/A No. 1 filed January 11, 1995, Form 10-K/A No. 2 filed May
25, 1995 and Form 10-K/A No. 3 filed June 16, 1995, have been audited by Ernst &
Young LLP, independent auditors, as set forth in their report thereon included
therein and incorporated herein by reference. Such consolidated financial
statements are incorporated herein by reference in reliance upon such report
given upon the authority of such firm as experts in accounting and auditing.
-10-
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article IX of the Company's Articles of Incorporation provides
in part:
B. The Corporation shall, to the fullest extent permitted by applicable
law, (i) indemnify, and (ii) advance litigation expenses prior to the final
disposition of an action, to any person made or threatened to be made a party to
an action or proceeding, whether criminal, civil, administrative or
investigative, by reason of the fact that he or she is or was a director or
officer of the Corporation or served any other enterprise as a director or
officer at the request of the Corporation and such rights of indemnification and
to advancement of litigation expenses shall also be applicable to the heirs,
executors, administrators and legal representatives of such director or officer.
C. The foregoing provisions of Article IX shall be deemed to be a contract
between the Corporation and each director and officer who serves in such
capacity at any time while this Article IX is in effect, and any repeal or
modification hereof shall not affect the rights or obligations then or therefore
existing or any action, suit or proceeding theretofore or thereafter brought
based in whole or in part upon any such stated facts.
D. The foregoing rights to indemnification and to advancement of litigation
expenses shall not be deemed exclusive of any other rights to which a director
or officer or his or her legal representatives may be entitled apart from the
provisions of this Article IX.
ITEM 21. EXHIBITS.
3.1 Articles of Incorporation, as amended, of the Company.
Incorporated herein by reference to Exhibit 3.1 to the Company's
registration statement on Form S-8, SEC File No. 33-47755.
3.2 Bylaws, as amended, of the Company. Incorporated herein by
reference to Exhibit 3.2 to the Company's registration statement on
Form S-8, SEC File No. 33-47755.
*5.1 Opinion of Amy M. Shapiro, regarding the legality of the Common
Stock being registered.
*23.1 Consent of Ernst & Young LLP, independent auditors.
*23.2 Consent of Amy M. Shapiro (included in the opinion filed as
Exhibit 5.1).
____________________
* Filed herewith.
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ITEM 22. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement: (i) to include
any prospectus required by section 10(a)(3) of the Securities Act of 1933; (ii)
to reflect in the prospectus any facts or events arising after the effective
date of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement; (iii) to include any
material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report pursuant
to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(5) To deliver or cause to be delivered with the prospectus, to each
person to whom the prospectus is sent or given, the latest annual report to
security holders that is incorporated by reference in the prospectus and
furnished pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3
under the Securities Exchange Act of 1934; and, where interim financial
information required to be presented by Article 3 of Regulation S-X are not set
forth in the prospectus, to deliver, or cause to be delivered to each person to
whom the prospectus is sent or given, the latest quarterly report that is
specifically incorporated by reference in the prospectus to provide such interim
financial information.
(6) That prior to any public reoffering of the securities registered
hereunder through use of a prospectus which is a part of this registration
statement, by any person or party who is deemed to be an underwriter within the
meaning of Rule 145(c), the issuer undertakes that such reoffering prospectus
will contain the information called for by the applicable registration form with
respect to reofferings by persons who may be deemed underwriters, in addition to
the information called for by the other Items of the applicable form.
(7) That every prospectus (i) that is filed pursuant to paragraph (5)
immediately preceding, or (ii) that purports to meet the requirements of section
10(a)(3) of the Act and is used in connection with an offering of securities
subject to Rule 415, will be filed as a part of an amendment to the registration
statement and will not be used until such amendment is effective, and that, for
purposes
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of determining any liability under the Securities Act of 1933, each such post-
effective amendment shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(8) 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 described in
Item 15 above 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.
(9) To respond to requests for information that is incorporated by
reference into the prospectus pursuant to Items 4, 10(b), 11, or 13 of this
Form, within one business day of receipt of such request, and to send the
incorporated documents by first class mail or other equally prompt means. This
includes information contained in documents filed subsequent to the effective
date of the registration statement through the date of responding to the
request.
(10) To supply by means of a post-effective amendment all information
concerning a transaction, and the company being acquired involved therein, that
was not the subject of and included in the registration statement when it became
effective.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Englewood,
State of Colorado, on December 4, 1995.
COMMNET CELLULAR INC.
By: /s/ ARNOLD C. POHS
------------------
Arnold C. Pohs, President
POWER OF ATTORNEY
The undersigned directors and/or officers of the Registrant, by virtue
of their signatures to this Registration Statement appearing below, hereby
constitute and appoint Daniel P. Dwyer and Amy M. Shapiro or either of them,
with full power of substitution, as attorneys-in-fact in their names, places and
steads to execute any and all amendments to this Registration Statement in the
capacities set forth opposite their names and hereby ratify all that said
attorneys-in-fact may do by virtue hereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933 THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------ --------------------------------------- ----------------
<S> <C> <C>
/s/ ARNOLD C. POHS Chairman of the Board, President December 4, 1995
- ------------------------ and Chief Executive Officer
Arnold C. Pohs (Principal Executive Officer)
/s/ DANIEL P. DWYER Vice President-Finance, Treasurer, December 4, 1995
- ------------------------ Chief Financial Officer and Director
Daniel P. Dwyer (Principal Financial Officer)
/s/ ANDREW J. GARDNER Assistant Vice President-Accounting/Tax December 4, 1995
- ------------------------ (Principal Accounting Officer)
Andrew J. Gardner
/s/ JOHN E. HAYES, JR. Director December 4, 1995
- ------------------------
John E. Hayes, Jr.
/s/ ROBERT J. PADEN Director December 4, 1995
- ------------------------
Robert J. Paden
/s/ DAVID E. SIMMONS Director December 4, 1995
- ------------------------
David E. Simmons
</TABLE>
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Exhibit 5.1
December 4, 1995
CommNet Cellular Inc.
5990 Greenwood Plaza Boulevard, Suite 300
Englewood, CO 80111
Re: Registration Statement on Form S-4 covering offering of 1,000,000 shares
of Common Stock of CommNet Cellular Inc.
Ladies and Gentlemen:
I am General Counsel for CommNet Cellular Inc., a Colorado corporation (the
"Company"), and in such capacity have examined the Company's Registration
Statement on Form S-4 (the "Registration Statement"), being filed with the
Securities and Exchange Commission in connection with the registration under the
Securities Act of 1933, as amended, of the offering of a maximum of 1,000,000
shares (the "Shares") of the Company's Common Stock. I am familiar with the
proceedings undertaken by the Company in connection with the authorization of
the Registration Statement and the authorization, issuance and sale of the
Shares. Additionally, I have examined such questions of law and fact as I have
considered necessary or appropriate for purposes of this opinion.
Based on the foregoing, I am of the opinion that the Shares have been duly
authorized and, upon issuance, delivery and payment therefor as contemplated by
the Registration Statement, will be validly issued, fully paid and
nonassessable.
I hereby consent to your filing this opinion as an exhibit to the
Registration Statement and to the reference under "Legal Matters" contained in
the prospectus forming a part of the Registration Statement.
Very truly yours,
/s/ AMY M. SHAPIRO
Amy M. Shapiro
Senior Vice President
and General Counsel
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EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-4) and related Prospectus of CommNet Cellular
Inc. for the registration of 1,000,000 shares of its common stock and to the
incorporation by reference therein of our report dated December 2, 1994, with
respect to the consolidated financial statements and schedules of CommNet
Cellular Inc. included in its Annual report (Form 10-K), as amended, for the
year ended September 30, 1994, filed with the Securities and Exchange
Commission.
ERNST & YOUNG LLP
December 1, 1995
