As filed with the Securities and Exchange Commission on November 15, 1996
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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MOBILE TELECOMMUNICATION TECHNOLOGIES CORP.
(Name of Registrant as Specified in Its Charter)
Delaware 64-0518209
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
200 South Lamar Street
Mtel Centre, South Building
Jackson, Mississippi 39201
(601) 944-1300
(Address, including zip code, and telephone number,
including area code, of principal executive offices)
Leonard G. Kriss, Esq.
Senior Vice President,
General Counsel and Secretary
200 South Lamar Street
Mtel Centre, South Building
Jackson, Mississippi 39201
(601) 944-1300
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copy to:
Martha E. McGarry, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, New York 10022
(212) 735-3000
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Approximate date of commencement of proposed sale to the
public: From time to time after this Registration Statement becomes
effective.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please check
the following box. |_|
If any of the securities registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection
with dividend or interest reinvestment plans, check the following box. |X|
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act of 1933, please
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 delivery of the prospectus is expected to be made pursuant
to Rule 434, please check the following box. |_|
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Title of Each Proposed Maximum Proposed Maximum
Class of Amount Offering Aggregate Amount of
Securities to to be Price Per Offering Registration
be Registered Registered Security (1) Price (1) Fee
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Series A 7.5% Cumulative
Convertible Accruing 30,000
Pay-In-Kind Preferred Stock, par
value $.01 per share ("Series A
Preferred Stock")(2)
Series B 7.5% Cumulative 12,500
Convertible Accruing Pay-In-
Kind Preferred Stock, par value
$.01 per share ("Series B Preferred
Stock")(2)
Series C 7.5% Cumulative 15,000
Convertible Accruing Pay-In-
Kind Preferred Stock, par value
$.01 per share ("Series C Preferred
Stock")(2)
Common Stock, par value $.01 3,187,797 $12.75 $40,644,412 $12,317
per share, issuable upon con-
version of the Series A Preferred,
Series B Preferred and
Series C Preferred(3)
<FN>
- ---------------
(1) Estimated solely for purposes of calculating the registration
fee pursuant to Rule 457(c) based on the average of the high
and low sale prices of the Common Stock on November 11, 1996,
as reported by the Nasdaq National Market.
(2) Includes shares of PIK Preferred Stock which may be issued from
time to time as dividends on the currently outstanding PIK
Preferred Stock.
(3) Represents shares of Common Stock that may be issued from time
to time upon conversion of the PIK Preferred Stock being
registered hereunder. The conversion price for the Series A
Preferred Stock, Series B Preferred Stock and Series C
Preferred Stock is $17.90, $18.19 and $18.19 per share,
respectively. Since no separate consideration will be received
in respect of such conversion, no additional registration fee
is required.
</TABLE>
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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 the Registration Statement shall 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.
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with
the Securities and Exchange Commission. These securities may not be
sold nor may offers to buy be accepted prior to the time the
registration statement becomes effective. This prospectus shall not
constitute an offer to sell or the solicitation of an offer to buy nor
shall there be any sale of these securities in any state in which such
offer, solicitation or sale would be unlawful prior to registration or
qualification under the securities laws of any such state.
SUBJECT TO COMPLETION, DATED NOVEMBER 15, 1996
PROSPECTUS
MOBILE TELECOMMUNICATION TECHNOLOGIES CORP.
30,000 Shares of Series A 7.5% Cumulative Convertible Accruing
Pay-In-Kind Preferred Stock
12,500 Shares of Series B 7.5% Cumulative Convertible Accruing
Pay-In-Kind Preferred Stock
15,000 Shares of Series C 7.5% Cumulative Convertible Accruing
Pay-In-Kind Preferred Stock
3,187,797 Shares of Common Stock
This Prospectus relates to (a) 30,000 shares of Series A 7.5%
Cumulative Convertible Accruing Pay-In-Kind Preferred Stock, par value
$.01 per share (the "Series A Preferred Stock"), of Mobile
Telecommunication Technologies Corp., a Delaware corporation ("Mtel" or the
"Company"), (b) 12,500 shares of Series B 7.5% Cumulative Convertible
Accruing Pay-In-Kind Preferred Stock (the "Series B Preferred Stock") of
the Company, and (c) 15,000 shares of Series C 7.5% Cumulative Convertible
Accruing Pay-In-Kind Preferred Stock (the "Series C Preferred Stock", and
together with the Series A Preferred Stock and Series B Preferred Stock,
the "PIK Preferred Stock") which, in each case, may be offered and sold
from time to time by and for the account of certain stockholders of the
Company (the "Selling Stockholders"). See "Selling Stockholders". This
prospectus also relates to 3,187,797 shares of common stock, par value $.01
per share (the "Common Stock") of the Company which are issuable upon
conversion of the Preferred Stock. The shares of Common Stock and PIK
Preferred Stock are collectively referred to herein as the "Offered
Shares".
The Common Stock is quoted on the Nasdaq National Market
("Nasdaq National Market") under the symbol "MTEL." Application will be
made to have all of the shares of Common Stock issuable upon conversion of
the PIK Preferred Stock approved for quotation on the Nasdaq National
Market. There is currently no trading market for the PIK Preferred Stock.
On November 11, 1996, the last reported sale price of the Common Stock on
the Nasdaq National Market was $12 1/2 per share.
The Selling Stockholders may sell Offered Shares directly,
through agents, underwriters or dealers as designated from time to time, on
the Nasdaq National Market or such other national securities exchange or
automated interdealer quotation system on which shares of Common Stock are
then listed, through negotiated transactions or through a combination of
such methods. The Selling Stockholders may sell their Offered Shares on
terms to be determined at the time of sale at market prices prevailing at
the time of the sale or at negotiated prices. See "Plan of Distribution."
The Company will not receive any of the proceeds from the sale of any of
the Offered Shares by the Selling Stockholders.
The Company has agreed to pay substantially all the expenses
incurred by the Selling Stockholders and the Company incident to the
registration of the Offered Shares (the "Offering") and to indemnify the
Selling Stockholders and certain agents, brokers and underwriters against
certain liabilities under the Securities Act of 1933, as amended (the
"Securities Act").
See "Risk Factors" beginning on page 4 for a discussion of certain factors
that should be considered by prospective purchasers of the Common Stock
offered hereby.
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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 November , 1996.
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"). The
Registration Statement (with exhibits), as well as such reports, proxy
statements and other information filed by the Company with the Commission,
may be inspected and copied at the public reference facilities maintained
by the Commission at its principal offices at Judiciary Plaza, 450 Fifth
Street, N.W., Room 1024, Washington D.C. 20549, and at the following
Regional Offices of the Commission: 7 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 from the Public
Reference Section of the Commission at 450 Fifth Street. N.W., Room 1024,
Washington, D.C. 20549, at prescribed rates. The Commission also maintains
a Web site that contains reports, proxy and information statements and
other information at http://www.sec.gov. The Common Stock is listed on The
Nasdaq National Market and such reports, proxy and information statements
and other information concerning the Company can be inspected and copied at
The Nasdaq National Market, 1735 K Street, N.W., Washington, D.C.
20006-1506.
The Company has filed with the Commission a Registration
Statement on Form S-3 (the "Registration Statement") under the Securities
Act with respect to the securities offered by this Prospectus. This
Prospectus does not contain all of the information set forth in the
Registration Statement, certain parts of which are omitted in accordance
with the rules and regulations of the Commission. For further information
with respect to the Company and this offering, reference is made to the
Registration Statement, including the exhibits filed therewith, which may
be inspected without charge at the Commission's principal office at 450
Fifth Street, N.W., Washington, DC 20549. Copies of the Registration
Statement may be obtained from the Commission at its principal office upon
payment of prescribed fees. Statements contained in this Prospectus as to
the contents of any contract or other document are not necessarily complete
and, where the contract or other document has been filed as an exhibit to
the Registration Statement, each such statement is qualified in all
respects by reference to the applicable document filed with the Commission.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company incorporates by reference into this Prospectus the
documents listed below:
(1) The Company's Annual Report on Form 10-K for the year ended
December 31, 1995 (the "Form 10-K");
(2) The Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1996;
(3) The Company's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1996;
(4) The Company's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1996; and
(5) The amended description of the Common Stock contained in
the Company's Form 8 Amendment to the Registration Statement on Form 10
under the Exchange Act, filed with the Commission on April 4, 1989, as
amended by any amendment or report filed for the purpose of amending such
description.
All subsequent annual, quarterly and other reports filed by the
Registrant pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act prior to the termination of the offering of Common Stock or PIK
Preferred Stock hereunder shall be deemed to be incorporated by reference
into this Prospectus.
The Company hereby undertakes to provide, without charge, to
each person to whom a copy of this Prospectus has been delivered, upon the
written request of any such person, a copy of any and all of the documents
or other information that have been or may be incorporated herein by
reference, other than exhibits to such documents, unless such exhibits are
specifically incorporated herein by reference. Requests for such documents
should be directed to Leonard G. Kriss, Esq., Senior Vice President,
General Counsel and Secretary of the Company, at the Company's principal
executive offices at 200 South Lamar Street, Mtel Centre, South Building,
Jackson, Mississippi 39201, telephone (601) 944-1300.
All information appearing in this Prospectus or in any document
incorporated herein by reference is not necessarily complete, is qualified
in its entirety by the information and financial statements (including
notes thereto) appearing in the documents incorporated by reference herein
and should be read together with such information and documents.
Any statements contained in a document incorporated or deemed
to be incorporated herein by reference shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any subsequently filed document that is also
incorporated by reference herein modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Prospectus.
THE COMPANY
The Company is the leading provider of nationwide and
international one-way wireless messaging services to mobile professionals
in the United States and selected international markets. The Company,
through its wholly-owned subsidiary, SkyTel Corp. ("SkyTel"), provides
one-way messaging services in the United States by means of SkyTel's
ground-based transmitter system, leased satellite facilities and
proprietary messaging technology and software utilizing two dedicated
channels on the 931 MHz frequency (collectively, the "931 MHz Frequencies")
licensed by the Federal Communications Commission ("FCC").
On September 19, 1995, the Company commenced commercial
operation of the first two-way wireless messaging network in the United
States ("Narrowband PCS") that utilizes frequencies allocated by the FCC
for narrowband personal communication services. The Narrowband PCS network
utilizes a proprietary system architecture designed and developed by the
Company and offers various communications services, including
acknowledgment messaging, wireless two-way messaging and information
services. See "Risk Factors."
The Company's executive offices are located at: 200 South Lamar
Street, Mtel Centre, South Building, Jackson, Mississippi 39201 and its
telephone number is (601) 944-1300.
RISK FACTORS
An investment in the shares of Common Stock or PIK Preferred
Stock offered hereby involves a high degree of risk. In addition to the
information contained elsewhere in this Prospectus, prospective purchasers
should carefully consider the following risk factors concerning the Company
and its business in evaluating an investment in the Common Stock or PIK
Preferred Stock offered hereby.
History of Losses
The Company incurred net losses of approximately $52 million
and $19.8 million for the years ended December 31, 1995 and 1994
respectively, and approximately $89.8 million in the nine-month period
ended September 30, 1996, primarily as a result of developmental expenses,
depreciation and amortization and marketing costs related to SkyTel's
nationwide messaging operations and the Company's continuing international
development efforts. Additionally, substantial capital expenditures were
required during 1994 and 1995, as well as the nine-month period ended
September 30, 1996, related to the acquisition of narrowband personal
communication services licenses, construction and development of the
Narrowband PCS network, the purchase of messaging units required to support
significant growth in SkyTel one-way units in service and international
development activities. Management expects the Company to incur operating
losses in the fourth quarter of 1996 and in 1997 as a result of continuing
start-up losses related to Narrowband PCS and continuing losses associated
with its international operations, most of which are also in the early
stages of development.
New Technology and Expansion
The Company has invested approximately $378.8 million in assets
and spectrum related to the Narrowband PCS network at December 31, 1995,
and the Company expects to incur significant capital expenditures to
complete development and expansion of the network and the related
subscriber base. Management believes that the Company's investment in the
assets of Narrowband PCS will be recovered through future operating cash
flows of Narrowband PCS. The ability of Narrowband PCS to generate
sufficient levels of operating cash flow is dependent on the addition of a
significant number of units in service, market acceptance of the product
and the availability of sufficient capital resources to continue the
development of the network and fund its operating losses. Management's
estimates of the cash flows generated by Narrowband PCS and the capital
resources needed and available to complete its development could change,
and such change could differ materially from the estimates used to evaluate
the Company's ability to realize its investment.
Uncertainty of Market Acceptance of Narrowband PCS
As is the case with the development and introduction of any new
technology, consumer acceptance of the technology may be slow and
commercially acceptable performance levels may not be achieved on a
consistent basis until a period of stabilization and optimization has been
completed. The Company believes that the performance of the Narrowband PCS
network to date has not met the Company's high standards for reliability
and performance, and that system performance has affected the level of
customer acceptance of Narrowband PCS services.
Additional Capital Requirements
The Company's business plan calls for substantial growth in its
SkyTel one-way and Narrowband PCS subscriber bases and for continued
development and expansion of the Narrowband PCS network. This growth
requires the availability of significant capital resources to fund capital
expenditures for network expansion and messaging unit additions. Growth in
the subscriber bases of both one-way messaging and Narrowband PCS will also
be required in order for the Company to achieve consolidated operating
profitability and positive operating cash flows. If such subscriber growth
is not achieved or adequate capital resources are not available, the
Company may not be able to complete its business plan or remain in
compliance with its borrowing agreements.
In August 1996, the lending banks and the Company agreed to
amend the terms of the bank credit facility. Pursuant to such amendment the
banks consented to the amendments of the indenture relating to the 13.5%
Senior Notes due 2002 (the "Senior Notes") approved by the holders of the
Senior Notes in July 1996 and limited the aggregate borrowings that may be
incurred by the Company under the bank credit facility to an amount not to
exceed $160 million in the third quarter of 1996 and $175 million in the
fourth quarter, pending the approval by the lending banks of the 1997
business plan and a further amendment to the bank loan agreement
appropriately modifying certain financial covenants which the Company
expects to complete on or before December 31, 1996.
Potential Adverse Effects of Competition
The Company experiences competition in its SkyTel one-way
messaging services and its Narrowband PCS network markets. Such competitors
include MobileMedia, Motorola, Paging Network, Inc. ("PageNet"), Airtouch,
Inc., AT&T and certain Bell operating companies. Certain of SkyTel's
competitors in the United States such as AT&T, Motorola and PageNet possess
substantially greater financial resources than the Company and could have a
substantial competitive impact on SkyTel. The Company also expects to
experience competition from companies providing wireless messaging services
based on technology that is different from Narrowband PCS technology
including: (i) the existing two-way data networks operated by Ardis and
RAM; (ii) specialized mobile radio services ("SMR") such as Nextel
Communications Corporation's ESMR network; (iii) cellular and paging
carriers; and (iv) cellular digital packet data ("CDPD"), a protocol to
send data over existing analog cellular networks. Continuing technological
advances in the communications industry and regulatory and legislative
developments make it impossible to predict the extent of future competition
in the businesses in which the Company operates. Such technological
advances and regulatory and legislative developments may, for example, make
available other alternatives to the services provided by the Company,
thereby creating additional sources of competition.
Regulatory Uncertainty
SkyTel's one-way and two-way messaging operations in the United
States, as well as most of the Company's other domestic businesses, are
subject to regulation by the FCC under the Communications Act of 1934, as
amended. Changes in the regulation of or the enactment of legislation
affecting the Company's domestic or international operations or the
allocation of spectrum for services that compete with such businesses could
adversely affect the Company's results of operation.
Risks Associated With Holding Company Structure
The Company serves primarily as a holding company for its
operating subsidiaries. Because the operations of the Company are conducted
primarily through its subsidiaries, the Company's cash flow and its ability
to service debt, including the Company's bank credit facility, the Senior
Notes and the 6.75% Convertible Subordinated Debentures due 2002, are
dependent upon the cash flow of its subsidiaries and the payment of funds
by those subsidiaries in the form of loans, dividends or otherwise.
The Company's bank credit facility restricts the ability of the
Company's subsidiaries to pay dividends or make other distributions to the
Company. In addition, the ability of the Company's subsidiaries to make
such payments will be subject to applicable state law as well as the laws
of foreign jurisdictions.
Uncertainty With Respect to Payment of Dividends
The Company has never paid dividends on Mtel Common Stock and
the Company does not intend to pay any such dividends in the foreseeable
future.
USE OF PROCEEDS
All of the shares of Common Stock and PIK Preferred Stock being
offered hereby are being offered by the Selling Stockholders. The Company
will not receive any proceeds from the sale of Common Stock or PIK
Preferred Stock by such Selling Stockholders.
DIVIDEND POLICY
The Company has not paid any dividends on its Common Stock. The
payment of dividends, if any, in the future is within the discretion of the
Board of Directors and will depend on the Company's earnings, its capital
requirements and financial condition. It is the current intention of the
Board of Directors to retain all earnings, if any, for use in the Company's
business operations, and accordingly, the Board of Directors does not
expect to declare or pay any dividends in the foreseeable future. With
respect to the Preferred Stock, the holders of the Series A Preferred
Stock, Series B Preferred Stock and Series C Preferred Stock are each
entitled to receive dividends, subject to certain limitations, out of funds
legally available therefor at an annual rate of 7.5% (or $75 per share of
Series A Preferred Stock), accruable quarterly as of each March 15, June
15, September 15 and December 15. The Company will have the option,
however, to pay dividends on the Series A Preferred Stock in the form of
additional shares of Series A Preferred Stock through the later of the
fifth anniversary of the date of issuance or until cash dividends are
permitted under the Company's bank credit facility and the indenture
relating to the Senior Notes. Dividends on the Series A Preferred stock
will be cumulative and will accrue from the date of original issue. The
Company will have the option to determine the timing of the actual
declarations and payment of such dividends.
SELLING STOCKHOLDERS
The following table sets forth certain information as of the
date of this Prospectus, including, the names of the Selling Stockholders,
the number of shares of Common Stock and Preferred Stock beneficially owned
by such stockholders and the number of Offered Shares offered by each
stockholder. The PIK Preferred Stock was acquired by the Selling
Stockholders directly from the Company in a series of private placements
during the first and second quarters of 1996. Because the Selling
Stockholders may sell all or part of their shares of Common Stock or
Preferred Stock offered hereby, no estimate can be given as to the number
of shares of Common Stock or Preferred Stock that will be held by any
Selling Stockholder upon termination of any offering made hereby.
SHARES SHARES TO
BENEFICIALLY BE REGISTERED
NAME OF SELLING OWNED PRIOR HEREBY IN
STOCKHOLDER SECURITY OFFERING (1)(2) OFFERING (1)(2)
- ----------- -------- ---------------- ---------------
NUMBER PERCENT(3)
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Microsoft Corporation Series A
Preferred 25,000 83.0%
Common Stock 3,151,032(4) 5.65%
Kleiner, Perkins,
Caufield & Series A
Byers VII, L.P. Preferred 4,875 16.25%
Common Stock 272,347 *
KPCB Information Series A
Sciences Zaibatsu Preferred 125 *
Fund II Common Stock 6,983 *
Chase Securities Inc. Series B
Preferred 10,000 80.0%
Series C
Preferred 7,000 46.67%
Common Stock 934,580 1.69%
High Point Keller Series B
Limited Partnership Preferred 2,500 20.0%
Common Stock 182,438(5) *
The Oppenheimer Series C
Bond Fund For Growth Preferred 5,000 33.33%
Common Stock 409,431(6) *
John N. Palmer Series C
Preferred 1,500 10.0%
Common Stock 1,913,122(7) 3.43%
Jai P. Bhagat Series C
Preferred 500 3.33%
Common Stock 487,326(8) *
OMC Realty Series C
Corporation Profit Preferred 500 3.33%
Sharing
Plan and Trust(9) Common Stock 265,700(10) *
St. Dominic Health Series C 500 3.33%
Sources, Inc. Preferred
Common Stock 27,488 *
Total Series A Preferred 30,000
Series B Preferred 12,500
Series C Preferred 15,000
Common Stock 7,650,445
=========
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* Less than 1%.
1 May be increased to include shares of PIK Preferred Stock
acquired as dividends. See "Description of Capital Stock."
2 May be increased to include shares of Common Stock acquired
through conversion of PIK Preferred Stock. See "Description of
Capital Stock."
3 Applicable percentage of ownership is based on 54,402,688
shares of Common Stock outstanding on November 12, 1996.
4 Includes 1,396,648 shares of Common Stock issuable upon
conversion of the Series A Preferred. Gregory B. Maffei, the
Treasurer of the Microsoft Corporation, was elected Director of
the Company in May 1995. Mr. Maffei beneficially owns 5,000
shares of Common Stock and 50,000 shares of Common Stock
obtainable upon exercise of options.
5 Includes (a) 137,438 shares of Common Stock issuable upon
conversion of the Series B Preferred, (b) 12,000 shares of
Common Stock owned by R.B. Keller and (c) 5,000 shares of
Common Stock owned by Richard B. Keller II.
6 Includes (a) 274,876 shares of Common Stock issuable upon
conversion of the Series C Preferred Stock and (b) 134,554
shares of Common Stock issuable upon conversion of the $2.25
Cumulative Convertible Exchangeable Preferred Stock.
7 Includes (a) 82,463 shares of Common Stock issuable upon
conversion of the Series C Preferred and (b) 1,275,000 shares
of Common Stock obtainable as of March 1, 1996 or within 60
days thereof by Mr. Palmer exercisable of options.
8 Includes (a) 27,488 shares of Common Stock issuable upon
conversion of the Series C Preferred and (b) 398,338 shares of
Common Stock obtainable as of March 1, 1996 or within 60 days
thereof by Mr. Bhagat upon exercise of options.
9 Shares are held by R. Fraser Triplett M.D. and Don Q. Mitchell,
M.D. in their capacity as acting trustees of OMC Realty
Corporation Profit Sharing Plan and Trust. Dr. Triplett has
been a director of the Company since May of 1989. Dr. Triplett
is an officer, director and a majority owner of a corporation
that provides travel related services to the Company and to
which the Company paid approximately $3.6 million in 1995. A
substantial portion of this amount represents reimbursement to
this corporation for payments made to third-party vendors.
10 Includes (a) 27,488 shares of Common Stock issuable to OMC
Realty Corporation Profit Sharing Plan and Trust upon
conversion of the Series C Preferred, (b) 107,600 shares owned
by Mr. Triplett in his individual capacity, (c) 70,000 shares
of Common Stock obtainable by Dr. Triplett in his individual
capacity upon exercise of options, (d) 11,448 shares of Common
Stock owned by Dr. Triplett's children, (e) 24,132 shares of
Common Stock owned by the Mississippi Allergy Clinic, P.A.
Trust and (f) 900 shares of Common Stock held by Dr. Triplett's
wife. The OMC Realty Corporation Profit Sharing Plan and Trust
disclaims beneficial ownership of the Common Shares owned by
Dr. Triplett, his wife and children and the other trusts in
which Dr. Triplett acts as trustee.
- -----------------
Except for John N. Palmer and Jai P. Bhagat, none of the
Selling Stockholders has held any position, office or material relationship
with the Company or any of its affiliates within the past three years. Mr.
Palmer has served as Chairman of the Board of Directors since October 1988
and he also served as Chief Executive Officer of the Company from October
1988 until May 1995. Mr. Palmer also served as acting Chief Executive
Officer from January 1996 until August 1996.
Jai P. Bhagat served as Vice Chairman of the Company since May
1995 and Executive Vice President since 1988. Mr. Bhagat has also served as
President and Chief Executive Officer of SkyTel Corp. since May 1995. In
March 1995, Mr. Bhagat sold his 40% equity interest in, and Mr. Bhagat and
his wife resigned as directors and officers of, a company located in
Jackson, Mississippi that provides pager repair and maintenance services to
a subsidiary of the Company. Through the period January 1995 through March
1995, the Company's subsidiary paid Mr. Bhagat's former company an
aggregate of approximately $527,003 for such services. In addition, during
the same period, Mr. Bhagat's former company purchased obsolete equipment
from the Company for an aggregate consideration of approximately $256,000.
In 1994, the Company also loaned Mr. Bhagat $400,000 on an unsecured
interest-free basis in connection with the relocation of his residence in
January 1994. Mr. Bhagat repaid this loan in full in April 1996.
Gregory B. Maffei is the Treasurer of the Microsoft
Corporation, one of the Selling Stockholders.
DESCRIPTION OF CAPITAL STOCK
Authorized Stock
The Restated Certificate of Incorporation authorizes the
issuance of 100,000,000, consisting of 75,000,000 shares of the Common
Stock and 25,000,000 shares of preferred stock, par value $.01 per share
(the "Preferred Stock"), of the Company, of which 54,402,688 shares of the
Common Stock and 3,807,500 shares of the Preferred Stock were issued and
outstanding as of November 12, 1996. The Board of Directors of the Company
is authorized to provide for the issuance of Preferred Stock from time to
time in one or more series, and by filing a certificate (a "Preferred Stock
Designation") pursuant to the General Corporation Law of the State of
Delaware (the "DGCL"), to establish from time to time the number of shares
to be included in each such series, and to fix the designation, powers,
preferences and rights of the shares of each such series and the
qualifications, limitations and restrictions thereof. The Common Stock is
subject to the express terms of the Preferred Stock and any series thereof.
Common Stock
The holders of the Company Common Stock are entitled to one
vote per share on all matters voted on by stockholders, including elections
of directors, and, except as otherwise required by law or provided in any
resolution adopted by the Company Board of Directors with respect to any
series of the Preferred Stock, the holders of such shares exclusively
possess all voting power. The Restated Certificate of Incorporation does
not provide for cumulative voting in the election of directors. Subject to
any preferential rights of any outstanding series of the Preferred Stock,
the holders of the Common Stock are entitled to such dividends as may be
declared from time to time by the Board of Directors from funds available
therefor, and upon liquidation are entitled to receive pro rata all assets
of the Company available for distribution to such holders. All shares of
the Common Stock when issued are fully paid and nonassessable and the
holders thereof do not have preemptive rights. As of November 12, 1996,
54,402,688 shares of the Common Stock were issued and outstanding.
Preferred Stock
The Restated Certificate of Incorporation of the Company
authorizes the Board of Directors to establish from time to time the number
of shares to be included in each such series, and to fix the designation,
powers, preferences and rights of the shares of each such series and the
qualifications, limitations and restrictions of the Preferred Stock as the
Board, in its sole discretion, may determine without further vote or action
by the stockholders. The rights, preferences, privileges, and restrictions
or qualifications of different series of Preferred Stock may differ with
respect to dividend rates, amounts payable on liquidation, voting rights,
conversion rights, redemption provisions, sinking fund provisions, and
other matters. The issuance of Preferred Stock could decrease the amount of
earnings and assets available for distribution to holders of Common Stock
or could adversely affect the rights and powers, including voting rights,
of holders of Common Stock.
The existence of the Preferred Stock, and the power of the
Board of Directors of the Company to set its terms and issue a series of
Preferred Stock at any time without stockholder approval, could have
certain anti-takeover effects. These effects include that of making the
Company a less attractive target for a "hostile" takeover bid or rendering
more difficult or discouraging the making of a merger proposal, assumption
of control through the acquisition of a large block of Common Stock or
removal of incumbent management, even if such actions could be beneficial
to the stockholders of the Company.
The description set forth below of the terms and conditions of
the Series A Preferred Stock, Series B Preferred Stock and Series C
Preferred Stock are only meant to be summaries and are qualified in their
entirety by reference to the Certificate of Designations of the Series A
Preferred Stock, Series B Preferred Stock and Series C Preferred Stock,
respectively, each of which were filed as exhibits to the Company's
Quarterly Report on Form 10-Q for the quarter ended June 30, 1996.
Series A 7.5% Cumulative Convertible Accruing Pay-In-Kind Preferred Stock.
30,000 shares of Series A 7.5% Cumulative Convertible Accruing
Pay-In-Kind Preferred Stock (the "Series A Preferred Stock") have been
authorized, of which 30,000 shares have been issued and are outstanding, as
of the date of this Prospectus, in connection with a private placement.
The holders of the Series A Preferred Stock are entitled,
subject to certain limitations, to receive dividends out of funds legally
available therefor at an annual rate of 7.5% (or $75 per share of Series A
Preferred Stock), accruable quarterly as of each March 15, June 15,
September 15 and December 15. The Company will have the option, however, to
pay dividends on the Series A Preferred Stock in the form of additional
shares of Series A Preferred Stock through the later of the fifth
anniversary of the date of issuance or until cash dividends are permitted
under the Company's bank credit facility and the indenture relating to the
Senior Notes. Dividends on the Series A Preferred stock will be cumulative
and will accrue from the date of original issue. The Company will have the
option to determine the timing of the actual declarations and payment of
such dividends.
The Series A Preferred Stock ranks junior in right of payment
to the Company's outstanding $2.25 Cumulative Convertible Exchangeable
Preferred Stock (the "$2.25 Preferred Stock") and any other series of
Preferred Stock established by the Board of Directors which provide that
such securities shall rank senior to Series A Preferred Stock and pari
passu to the Series B Preferred Stock and Series C Preferred Stock. In the
event of any liquidation, dissolution or winding up of the Company, holders
of Series A Preferred Stock will be entitled to receive, following payment
in full to the holders of the $2.25 Preferred Stock of all amounts to which
such holders are entitled, a liquidation preference in the amount of $1,000
per share of Series A Preferred Stock, plus accrued and unpaid dividends,
before any payment is made or assets are distributed to holders of the
Common Stock or any other class of stock of the Company ranking junior to
the Series A Preferred Stock as to rights upon liquidation, dissolution or
winding up of the Company.
Except as required by law or with respect to the creation or
amendment of senior classes of preferred stock, holders of Series A
Preferred Stock will not have voting rights unless quarterly dividends on
the Company's $2.25 Preferred Stock are in arrears for two consecutive
quarters, in which case, the number of directors of the Company will be
increased by one and the holders of Series A Preferred Stock along with the
Series B Preferred Stock and Series C Preferred Stock and any other classes
of stock which ranks on parity with the Series A Preferred Stock, voting
separately as a class, will be entitled to elect one director until the
dividend arrearage has been paid. In the event quarterly dividends on the
Company's $2.25 Preferred Stock are in arrears for four consecutive
quarters, the number of directors of the Company will be increased again by
one, and the holders of Series A Preferred Stock, along with the Series B
Preferred Stock and Series C Preferred Stock and any other classes of stock
which ranks on parity with the Series A Preferred Stock, will be entitled
to elect an additional director. The Company is not subject to a sinking
fund provision with respect to the Series A Preferred Stock.
Each share of Series A Preferred Stock is convertible at any
time at the option of the holder into Common Stock of the Company at a
conversion price of $17.90 per share of Common Stock, subject to adjustment
upon the occurrence of certain events. The Company may redeem the Series A
Preferred Stock, in whole or in part, (a) after April 1, 1997, if the
average trading price of the Common Stock for any 20 business day period
equals or exceeds 175% of the conversion price, or (b) after April 1, 1998,
in each case, at $1,000 per share, plus accrued and unpaid dividends. The
Company is obligated to redeem 25% of the originally issued Series A
Preferred Stock on April 1, in each of the years 2003 through 2005, at
$1,000 per share, plus accrued and unpaid dividends, which, at the
Company's option, may be paid in either cash or in shares of Common Stock.
The Company is obligated, to the extent permitted by the bank credit
facility and the indenture relating to the Senior Notes, to redeem all
remaining shares of Series A Preferred Stock on April 1, 2006 at $1,000 per
share, plus accrued and unpaid dividends. In the event of a change in
control, the Series A Preferred Stock is redeemable at the holder's option
at $1,000 per share, plus accrued and unpaid dividends.
As of the date of this Prospectus, no shares of Common Stock
have been issued by the Company upon conversion of shares of Series A
Preferred Stock.
Series B 7.5% Cumulative Accruing Pay-In-Kind Preferred Stock.
130,000 shares of Series B 7.5% Cumulative Convertible Accruing
Pay-In-Kind Preferred Stock (the "Series B Preferred Stock") have been
authorized, of which 12,500 shares have been issued and are, as of the date
of this Prospectus, outstanding. The terms and conditions of the Series B
Preferred Stock are identical to the terms and conditions of the Series A
Preferred Stock, except as follows: (i) each share of Series B Preferred
Stock is convertible at any time at the option of the holder into Common
Stock of the Company at a conversion price of $18.19 per share of Common
Stock subject to adjustment upon the occurrence of certain events; (ii) the
Company may redeem the Series B Preferred Stock, in whole or in part, (a)
after April 17, 1997, if the average trading price of the Common Stock for
any 20 business day period equals or exceeds 175% of the conversion price,
or (b) after April 17, 1998, in each case, at $1,000 per share plus accrued
and unpaid dividends; (iii) the Company is obligated to redeem 25% of the
originally issued Series B Preferred Stock on April 17, in each of the
years 2003 through 2005, at $1,000 per share, plus accrued and unpaid
dividends, which, at the Company's option, may be paid in either cash or in
shares of Common Stock; and (iv) the Company is obligated, to the extent
permitted by the bank credit facility and the indenture related to the
Senior Notes, to redeem to all remaining shares of Series B Preferred Stock
on April 1, 2006 at $1,000 per share, plus accrued and unpaid dividends.
As of the date of this Prospectus, no shares of Common Stock
have been issued by the Company upon conversion of shares of Series B
Preferred Stock.
Series C 7.5% Cumulative Accruing Pay-In-Kind Preferred Stock.
130,000 shares of Series C 7.5% Cumulative Convertible Accruing
Pay-In-Kind Preferred Stock (the "Series C Preferred Stock") have been
authorized, of which 15,000 shares have been issued and, as of the date of
this Prospectus, are outstanding. The terms and conditions of the Series C
Preferred Stock are identical to the terms and conditions of the Series A
Preferred Stock, except as follows: (i) each share of Series C Preferred
Stock is convertible at any time at the option of the holder into Common
Stock of the Company at a conversion price of $18.19 per share of Common
Stock, subject to adjustment upon the occurrence of certain events; (ii)
the Company may redeem the Series C Preferred Stock, in whole or in part,
(a) after May 7, 1997, if the average trading price of the Common Stock for
any 20 business day period equals or exceeds 175% of the conversion price,
or (b) after May 7, 1998, in each case, at $1,000 per share plus accrued
and unpaid dividends; (iii) the Company is obligated to redeem 25% of the
originally issued Series A Preferred Stock on May 7, in each of the years
2003 through 2005, at $1,000 per share, plus accrued and unpaid dividends,
which, at the Company's option, may be paid in either cash or in shares of
Common Stock; and (iv) the Company is obligated, to the extent permitted by
the bank credit facility and the indenture related to the Senior Notes, to
redeem all remaining shares of Series C Preferred Stock on April 1, 2006 at
$1,000 per share, plus accrued and unpaid dividends.
As of the date of this Prospectus, no shares of Common Stock
have been issued by the Company upon conversion of shares of Series C
Preferred Stock.
Transfer Agent and Registrar
ChaseMellon Shareholder Services L.L.C. is the transfer agent
and registrar for the Common Stock and PIK Preferred Stock.
PLAN OF DISTRIBUTION
The Offered Shares are being registered by the Company at the
request of the Selling Stockholders.
Pursuant to this Prospectus, the Offered Shares may be sold by
the Selling Stockholder directly, though agents, underwriters or dealers as
designated from time to time while the Registration Statement to which this
Prospectus relates is effective, on the Nasdaq National Market or such
other national securities exchange or automated interdealer quotation
system on which shares of Common Stock are then listed, through negotiated
transactions or through a combination of such methods. The Selling
Stockholders may sell their Offered Shares on terms to be determined at the
time of sale at market prices prevailing at the time of sale or at
negotiated prices.
Although none of the Selling Stockholders has advised the
Company of the manner in which it currently intends to sell the Offered
Shares pursuant to this Registration Statement, the Selling Stockholders
may choose to sell all or a portion of such Offered Shares from time to
time in any manner described herein. The methods by which the Offered
Shares may be sold by the Selling Stockholder include: (i) through brokers,
acting as principal or agent, in transactions (which may involve block
transactions) on the Nasdaq National Market or such other national
securities exchange or interdealer quotation system on which the Offered
Shares are then listed, at market prices obtainable at the time of sale, at
prices related to such prevailing market prices, at negotiated prices or at
fixed prices; (ii) to underwriters who will acquire Offered Shares for
their own account and resell them in one or more transactions, including
negotiated transactions, at a fixed public offering price or at varying
prices determined at the time of sale (any public offering price and any
discount or concessions allowed or reallowed or paid to dealers may be
changed from time to time); (iii) directly by the Selling Stockholders or
through brokers or agents in private sales at negotiated prices; or (iv) by
any other legally available means. In addition, any Offered Shares covered
by this Prospectus that qualify for sale pursuant to Rule 144 under the
Securities Act may be sold under Rule 144 rather than pursuant to this
Prospectus.
Offers to purchase Offered Shares may also be solicited by
agents designated by the Selling Stockholders from time to time.
Underwriters or other agents participating in an offering made pursuant to
this Prospectus (as amended or supplemented from time to time) may receive
underwriting discounts and commissions under the Securities Act, and
discounts or concessions may be allowed or reallowed or paid to dealers,
and brokers or agents participating in such transactions may receive
brokerage or agent's commissions or fees.
There is currently no established trading market for the PIK
Preferred Shares, and it is uncertain whether there will be a trading
market for the PIK Preferred Shares. It is not presently anticipated that
the PIK Preferred Shares will be listed for trading on the Nasdaq National
Market or otherwise.
At the time a particular offering of any Offered Shares is made
hereunder, to the extent required by law, a Prospectus Supplement will be
distributed which will set forth the number of Offered Shares being offered
and the terms of the offering, including the purchase price or public
offering price, the name or names of any underwriters, dealers or agents,
the purchase price paid by any underwriter for any Offered Shares purchased
from the Selling Stockholders, any discounts, commissions and other items
constituting compensation from the Selling Stockholders and any discounts,
commissions or concessions allowed or paid to dealers.
In order to comply with the securities laws of certain
jurisdictions, the Offered Shares offered hereby will be offered and sold
hereunder in such jurisdictions only through registered or licensed brokers
or dealers. In addition, in certain jurisdictions the Offered Shares
offered hereby may not be offered or sold hereunder unless the Offered
Shares have been registered or qualified for sale in such jurisdictions or
an exemption from registration or qualification is available and complied
with.
The Company has been advised that, as of the date hereof, the
Selling Stockholders have made no arrangement with any broker for the sale
of their Common Stock. The Selling Stockholders and any underwriters,
brokers or dealers involved in the sale of the Common Stock hereunder may
be deemed to be "underwriters" within the meaning of Section 2(11) of the
Securities Act, and any compensation received by them and any profit on any
resale of the Common Stock as principals may be deemed to be underwriting
discounts and commissions under the Securities Act.
Under applicable rules and regulations under the Exchange Act,
any person engaged in the distribution of the Common Stock offered hereby
may not simultaneously engage in market making activities with respect to
the Common Stock for a period of two business days prior to the
commencement of such distribution. In addition, and without limiting the
foregoing, the Registering Stockholders will be subject to applicable
provisions of the Exchange Act and the rules and regulations thereunder,
including, without limitation, Rules 10b-6 and 10b-7, which may limit the
timing of purchases and sales by the Selling Stockholders. The foregoing
may limit the marketability of the shares of Common Stock and the ability
of any underwriter, broker, dealer or agent to engage in market making
activities.
The Company will pay substantially all the expenses incurred by
the Selling Stockholders and the Company incident to the Offering, but
excluding any underwriting discounts, fees and commissions.
In addition, pursuant to the Amended and Restated Registration
Rights Agreement, by and among the Company and the Selling Stockholders
(the "Registration Rights Agreement"), the Company has agreed to indemnify
the Selling Stockholders, their officers, directors and agents and each
person who controls such Selling Stockholder (and each underwriter and
selling broker) against certain liabilities, including liabilities under
the Securities Act, which may be incurred in connection with the sale of
the Common Stock and PIK Preferred Stock under this Prospectus. In
addition, the Selling Stockholders have agreed to indemnify the Company
against certain liabilities. The Registration Rights Agreement also
provides for rights of contribution if such indemnification is not
available.
The Company has informed the Selling Stockholders of the need
for delivery of copies of this Prospectus under certain circumstances.
RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The following table sets for the Company's ratio of earnings to
combined fixed charges and preferred stock dividends for the periods
indicated.
Nine Months
Ended Fiscal Years Ended August 3
September 30, 1996 1995 1994 1993 1992 1991
------------------ ---- ---- ---- ---- ---
Ratio of Earnings as Combined (1) (1) (1) (1) (1) (1)
Fixed Charges and Preferred
Stock Dividends
The ratio of earnings to combined fixed charges and preferred stock
dividends is calculated by dividing earnings before income taxes plus fixed
charges by the sum of (a) fixed charges which consist of interest expense,
amortization of financing costs and the portion of rental expense which is
deemed to be representative of the interest component of rental expense and
(b) preferred stock dividends.
(1) Earnings did not cover fixed charges by $101,904,000, $87,607,000,
$33,231,000 and $10,452,000 for the nine months ended September 30, 1996
and the years ended December 31, 1995, 1994 and 1991, respectively. The
ratio of earnings to fixed charges and preferred dividends for the years
ended December 31, 1993 and 1992 was 1.88 and 1.14, respectively.
LEGAL MATTERS
The validity of the Common Stock and PIK Preferred Stock
offered hereby will be passed upon for the Company by Leonard Kriss, Esq.,
Senior Vice President, General Counsel and Secretary of the Company.
EXPERTS
The consolidated financial statements of the Company at
December 31, 1995 and 1994 and for each of the three years in the period
ended December 31, 1995 incorporated by reference in this Prospectus and
Registration Statement have been audited by Arthur Andersen LLP,
independent public accountants, and are incorporated by reference herein in
reliance upon their report thereon given upon the authority of such firm as
experts in accounting and auditing.
==============================================================================
No dealer, salesperson or other person
has been authorized to give any Mobile Telecommunication
information or to make any Technologies Corp.
representations other than those
contained in this Prospectus or any
related Prospectus Supplement in 3,187,797 shares of Common Stock
connection with the offer contained
herein, and, if given or made, such 30,000 shares of Series A 7.5%
information or representations must not Cumulative Convertible Accruing
be relied upon as having been Pay-In-Kind Preferred Stock
authorized. Neither this Prospectus nor
any related Prospectus Supplement 12,500 Shares of Series B 7.5%
constitutes an offer of any securities Cumulative Convertible Accruing
other than those to which it relates or Pay-In-Kind Preferred Stock
an offer to sell, or
a solicitation of an offer to buy, 15,000 Shares of Series C 7.5%
those to which it relates in any Cumulative Convertible Accruing
jurisdiction to any person to whom it is Pay-In-Kind Preferred Stock
unlawful to make such offer in such ____________
jurisdiction. Neither the delivery of
this Prospectus nor any related PROSPECTUS
Prospectus Supplement at any time shall _____________
imply that the information herein or
therein is correct as of any time
subsequent to its date.
_____________
TABLE OF CONTENTS
Page
Available Information............................
Incorporation of Certain Documents
by Reference................................
The Company......................................
Risk Factors.....................................
Use of Proceeds..................................
Dividend Policy..................................
Selling Stockholders.............................
Description of Capital Stock
Plan of Distribution.............................
Legal Matters ...................................
Experts..........................................
===============================================================================
PART II
Item 14. Other Expenses of Issuance and Distribution.
The expenses incurred by the Company in connection with this
Offering are estimated to be as follows. All amounts except the SEC
registration fee and the Nasdaq additional listing fee are estimated.
SEC registration fee.............................. $12,317
Nasdaq additional listing fee..................... *
Accounting fees and expenses...................... *
Legal fees and expenses........................... *
Blue sky fees and expenses........................ *
Miscellaneous..................................... _
Total $ *
- -----------
* To be supplied by amendment.
The Company agreed to pay all expenses incident to the issuance
and registration of the Common Stock and Preferred Stock being registered
hereby. The Company did not agree to pay any out-of-pocket expenses
incurred by any of the Selling Stockholders, or any underwriting discounts,
commissions, brokerage fees or transfer taxes payable in connection with
the sale and distribution of any of the shares of Common Stock or PIK
Preferred Stock, all of which shall be paid by each of the respective
Selling Stockholders with respect to its/his own shares of Common Stock or
PIK Preferred Stock.
Item 15. Indemnification of Directors and Officers.
Set forth below is a description of certain provisions of the
Company's Restated Certificate of Incorporation, the Company's Bylaws and
the DGCL, as such provisions related to the indemnification of the
directors and officers of the Company. This description is intended only as
a summary and is qualified in its entirety by reference to the Company's
Restated Certificate of Incorporation, the Company's Bylaws and the DGCL.
Elimination of Liability in Certain Circumstances
The Restated Certificate of Incorporation provides that to the
full extent permitted by the DGCL or any other applicable laws presently or
hereinafter in effect, no director of the Company shall be personally
liable to the Company or its stockholders for or with respect to any acts
or omissions in the performance of his or her duties as a director of the
Company. The DGCL provides that a corporation may limit or eliminate a
director's personal liability for monetary damages to the corporation or
its stockholders, except for liability for (i) any breach of the director's
duty of loyalty to the Company or its stockholders, (ii) acts or omissions
not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) paying a dividend or approving a stock repurchase
in violation of Section 174 of the DGCL or (iv) any transaction from which
the director derived an improper personal benefit.
While the Restated Certificate of Incorporation provides
directors with protection from awards for monetary damages for breaches of
the duty of care, it does not eliminate the directors' duty of care.
Accordingly, the Restated Certificate of Incorporation will have no effect
on the availability of equitable remedies such as an injunction or recision
based on a director's breach of the duty of care. The provisions the
Restated Certificate of Incorporation as described above apply to officers
of the Company only if they are directors of the Company and are acting in
their capacity as directors, and does not apply to officers of the Company
who are not directors.
Indemnification
The indemnification of officers and directors of the Company is
governed by Section 145 of the DGCL which permits indemnification of a
director, officer, employee or agent in civil, criminal, administrative or
investigative actions, suits or proceedings (other than an action by or in
the right of the corporation) to which such person is a party or is
threatened to be made a party by reason of the fact of such relationship
with the corporation or the fact that such person is or was serving in a
similar capacity with another entity at the request of the corporation
against expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him if such person
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, if he had no reasonable cause to believe his
conduct was unlawful.
No indemnification may be made in any such suit to any person
adjudged to be liable to the corporation unless and only to the extent that
the Delaware Court of Chancery or the court in which the action was brought
determines that, despite the adjudication of liability, such person is
under all circumstances, fairly and reasonably entitled to indemnity for
such expenses which such court shall deem proper.
Under the DGCL, to the extent that a director, officer,
employee or agent is successful, on the merits or otherwise, in the defense
of any action, suit or proceeding or any claim, issue or matter therein
(whether or not the suit is brought by or in the right of the corporation),
he shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by him.
In all cases in which indemnification is permitted (unless
ordered by a court), it may be made by the corporation only as authorized
in the specific case upon a determination that the applicable standard of
conduct has been met by the party to be indemnified. The determination must
be made by a majority vote of a quorum consisting of the directors who were
not parties to the action or, if such a quorum is not obtainable, or even
if obtainable, if a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion, or by the shareholders. The
statute authorizes the corporation to pay expenses incurred by an officer
or director in advance of a final disposition of a proceeding upon receipt
of an undertaking by or on behalf of the person to whom the advance will be
made, to repay the advances if it shall ultimately be determined that he
was not entitled to indemnification. The DGCL provides that indemnification
and advances of expenses permitted thereunder are not to be exclusive of
any rights to which those seeking indemnification or advancement of
expenses may be entitled under any by-law, agreement, vote of stockholders
or disinterested directors, or otherwise. The DGCL also authorizes the
corporation to purchase and maintain liability insurance on behalf of its
directors, officers, employees and agents regardless of whether the
corporation would have the statutory power to indemnify such persons
against the liabilities insured.
Article EIGHTH of the Restated Certificate of Incorporation
provides indemnification to directors and officers to the full extent
permitted from time to time by the DGCL or any other applicable laws as
presently or hereafter in effect, thereby affording the directors and
officers of the Company the protection available to directors and officers
of Delaware corporations. Article EIGHTH of the Restated Certificate of
Incorporation also authorizes the Company to enter into one or more
agreements with any person which provide for indemnification greater or
different than that provided in Article EIGHTH.
The Company has obtained directors, and officers, liability and
company reimbursement insurance which, among other things, provides $25
million of coverage for (i) payment on behalf of its officers and directors
against loss as defined in the policy stemming from acts committed by
directors and officers in their capacity as such and (ii) payment on behalf
of the Company against such loss but only when the Company shall be
required or permitted to indemnify directors or officers for such loss
pursuant to statutory or common law or pursuant to duly effective
certificate of incorporation provisions.
Item 16. Exhibits and Financial Statement Schedules.
(a) Exhibits
The following exhibits are filed as part of this Registration
Statement. Where such filing is made by incorporation by reference to a
previously filed statement or report, such statement or report is
identified in parentheses.
Exhibit
No. Description
3.1 Restated Certificate of Incorporation of Mtel (Exhibit 3.3 to
the Registration Statement on Form 10 filed on November 18,
1988 and effective on December 29, 1988)*
3.2 Bylaws of Mtel, as amended (Exhibit 3.4 to the Registration
Statement on Form 10 of Mtel filed on November 18, 1988 and
effective on December 29, 1988)*
4.1 Certificate of Designations of Series C Junior Participating
Preferred Stock of Mtel (Exhibit 3 to the Registration
Statement on Form 8-A of Mtel filed on August 3, 1989)*
4.2 Certificate of Designation of the Series A 7.5% Cumulative
Convertible Accruing Pay-In-Kind Preferred Stock of Mtel
(Exhibit 4.1 to Mtel's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1996)*
4.3 Certificate of Designation of the Series B 7.5% Cumulative
Convertible Accruing Pay-In-Kind Preferred Stock of Mtel
(Exhibit 4.2 to Mtel's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1996)*
4.4 Certificate of Designation of the Series C 7.5% Cumulative
Convertible Accruing Pay-In-Kind Preferred Stock of Mtel
(Exhibit 4.3 to Mtel's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1996)*
5. Opinion of Leonard Kriss, Esq. regarding legality of the sale
of the shares being registered**
10.1 Form of Stock Purchase Agreement relating to the Sale of the
Series A, Series B and Series C 7.5% Cumulative Convertible
Accruing Pay-In-Kind Preferred Stock (Exhibit 10.1 to Mtel's
Quarterly Report on Form 10-Q for the quarter ended March 31,
1996)*
10.2 Stockholder Agreement, dated as of March 29, 1996, by and
between the Company and Microsoft Corporation (Exhibit 10.2 to
Mtel's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1996)*
10.3 Form of Registration Rights Agreement relating to the Series A,
Series B and Series C 7.5% Cumulative Convertible Accruing
Pay-In-Kind Preferred Stock (Exhibit 10.3 to Mtel's Quarterly
Report on Form 10-Q for the quarter ended March 31, 1996)*
12 Statement regarding computation of ratios.
23.1 Consent of Arthur Andersen L.L.P.
25 Powers of Attorney (set forth on the signature pages of the
Registration Statement).
* Exhibit is being incorporated by reference as indicated.
** Exhibit to be filed by amendment.
Item 17. Undertakings.
The undersigned Registrant 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 any employee benefit plan's annual report pursuant to 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.
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 is the successful defense
of any action, suit or proceeding) is asserted by such director, officer or
controlling person is 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.
The undersigned Registrant hereby undertakes: (1) That, for the
purpose of determining any liability under the Securities Act of 1933, each
such post-effective amendment shall be deemed a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof; and (2) 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.
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
Jackson, State of Mississippi, on the 15th day of November, 1996.
MOBILE TELECOMMUNICATION TECHNOLOGIES CORP.
By: /s/ John T. Stupka
---------------------
John T. Stupka
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints John T. Stupka, Robert
Kaiser and Leonard G. Kriss and each of them, his true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective
amendments) to this 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 attorney 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 might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their or his substitute or
substitute, may lawfully do or cause to be done 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 date indicated.
Signature Title Date
/s/ John N. Palmer Chairman of the Board November 15, 1996
- -----------------------
John N. Palmer
/s/ John T. Stupka Director; President and November 15, 1996
- ----------------------- Chief Executive Officer
John T. Stupka (principal executive officer)
/s/ Robert Kaiser Senior Vice President-Finance; November 15, 1996
- ----------------------- Chief Financial
Robert Kaiser Officer (principal financial
and accounting officer)
/s/ Jai P. Bhagat Director November 15, 1996
- ----------------------
Jai P. Bhagat
- ------------------------ Director November 15, 1996
Gregory B. Maffei
/s/ Haley Barbour Director November 15, 1996
- -----------------------
Haley Barbour
/s/ Thomas G. Barksdale Director November 15, 1996
- ------------------------
Thomas G. Barksdale
/s/ R. Faser Triplett Director November 15, 1996
- ------------------------
R. Faser Triplett
/s/ R. Gerald Turner Director November 15, 1996
- ------------------------
R. Gerald Turner
- ------------------------ Director November 15, 1996
E. Lee Walker
/s/ John E.Welsh III Director November 15, 1996
- ------------------------
John E. Welsh III
Exhibit List
Exhibit
No. Description
3.1 Restated Certificate of Incorporation of Mtel (Exhibit 3.3 to the
Registration Statement on Form 10 filed on November 18, 1988 and
effective on December 29, 1988)*
3.2 Bylaws of Mtel, as amended (Exhibit 3.4 to the Registration Statement
on Form 10 of Mtel filed on November 18, 1988 and effective on
December 29, 1988)*
4.1 Certificate of Designations of Series C Junior Participating Preferred
Stock of Mtel (Exhibit 3 to the Registration Statement on Form 8-A of
Mtel filed on August 3, 1989)*
4.2 Certificate of Designation of the Series A 7.5% Cumulative Convertible
Accruing Pay-In-Kind Preferred Stock of Mtel (Exhibit 4.1 to Mtel's
Quarterly Report on Form 10-Q for the quarter ended June 30, 1996)*
4.3 Certificate of Designation of the Series B 7.5% Cumulative Convertible
Accruing Pay-In-Kind Preferred Stock of Mtel (Exhibit 4.2 to Mtel's
Quarterly Report on Form 10-Q for the quarter ended June 30, 1996)*
4.4 Certificate of Designation of the Series C 7.5% Cumulative Convertible
Accruing Pay-In-Kind Preferred Stock of Mtel (Exhibit 4.3 to Mtel's
Quarterly Report on Form 10-Q for the quarter ended June 30, 1996)*
5. Opinion of Leonard Kriss, Esq. regarding legality of the sale of the
shares being registered**
10.1 Form of Stock Purchase Agreement relating to the Sale of the Series A,
Series B and Series C 7.5% Cumulative Convertible Accruing Pay-
In-Kind Preferred Stock (Exhibit 10.1 to Mtel's Quarterly Report on
Form 10-Q for the quarter ended March 31, 1996)*
10.2 Stockholder Agreement, dated as of March 29, 1996, by and between the
Company and Microsoft Corporation (Exhibit 10.2 to Mtel's Quarterly
Report on Form 10-Q for the quarter ended March 31, 1996)*
10.3 Form of Registration Rights Agreement relating to the Series A, Series
B and Series C 7.5% Cumulative Convertible Accruing Pay-In-Kind
Preferred Stock (Exhibit 10.3 to Mtel's Quarterly Report on Form 10-Q
for the quarter ended March 31, 1996)*
12 Statements regarding computation of ratios.
23.1 Consent of Arthur Andersen L.L.P.
25 Powers of Attorney (set forth on the signature pages of the
Registration Statement).
- --------
* Exhibit is being incorporated by reference as indicated.
** Exhibit to be filed by amendment.
<TABLE>
<CAPTION>
EXHIBIT 12
MOBILE TELECOMMUNICATION TECHNOLOGIES CORP.
EXHIBIT 12 - RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C>
9/30/96 1995 1994 1993 1992 1991
------------------------------------------------------------------------------------------
Earnings:
Income (loss) before income taxes
and equity losses (87,862) (53,230) (21,893) 15,001 2,509 (8,985)
Fixed charges, net of capitalized
interest 37,919 19,234 8,991 9,845 7,468 5,122
------------------------------------------------------------------------------------------
Earnings (49,943) (33,996) (12,902) 24,846 9,977 (3,863)
Fixed Charges:
Interest expressed 32,310 11,755 4,331 5,694 3,931 2,014
Interest capitalized 5,686 25,939 2,900 1,700 1,300 1,467
Amortization of financing costs -- -- 333 515 500 500
Interest factor of rent expense 5,609 7,479 4,327 3,636 3,037 2,608
Preferred dividend requirement 8,356 8,438 8,438 1,697 -- --
-----------------------------------------------------------------------------------------
Total Fixed Charges 51,961 53,611 20,329 13,242 8,768 6,589
Ratio of earnings to fixed 1.88 1.14
charges
Deficiency of earnings to (101,904) (87,607) (33,231) (10,452)
fixed charges
</TABLE>
The ratio of earnings to combined fixed charges and preferred stock dividends
is calculated by dividing earnings before income taxes plus fixed charges
by the sum of (a) fixed charges which consist of interest expense, amortiza-
tion of financing costs and the portion of rental expense which is deemed
to be representative of the interest component of rental expense and (b)
preferred stock dividends.
Earnings did not cover fixed charges by $101,904,000, $87,607,000,
$33,231,000 and $10,452,000 for the nine months ended September 30, 1996
and the years ended December 31, 1995, 1994 and 1991, respectively. The
ratio of earnings to fixed charges and preferred dividends for the years
ended December 31, 1993 and 1992 was 1.88 and 1.14, respectively.
Exhibit 23.1
Consent of Independent Public Accountants
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement on Form S-3
of our report dated April 1, 1996 included in Mobile Telecommunication
Technologies Corp.'s Form 10-K for the year ended December 31, 1995 and
to all references to our Firm included in this registration statement.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Jackson, Mississippi,
November 12, 1996.
