<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
SCHEDULE 13E-4/A
(Amendment No. 1)
Issuer Tender Offer Statement
(Pursuant to Section 13(e)(1) of the Securities Exchange Act of 1934)
-----------------------
WAVEPHORE, INC.
(Name of Issuer)
WAVEPHORE, INC.
(Name of Person(s) Filing Statement)
496,813 shares of Series A Convertible Preferred Stock
and
64,595 shares of Series B Convertible Preferred Stock
Issuable on Conversion of Outstanding Warrants to
Purchase Series B Convertible Preferred Stock
(Title of Class of Securities)
-----------
(CUSIP Number of Class of Securities)
None
Douglas J. Reich
General Counsel
WavePhore, Inc.
3311 North 44th Street
Phoenix, Arizona 85018
(602) 952-5500
(Name, Address and Telephone Number of Person Authorized
to Receive Notice and Communications on Behalf
of the Person(s) Filing Statement)
--------------------
Copy to:
Steven D. Pidgeon
Snell & Wilmer L.L.P.
One Arizona Center
Phoenix, Arizona 85004-0001
(602) 382-6000
September 24, 1996
(Date Tender Offer First Published,
Sent or Given to Security Holders)
<TABLE>
<CAPTION>
C A L C U L A T I O N O F F I L I N G F E E
- -----------------------------------------------------------------------------
TRANSACTION VALUATION* AMOUNT OF FILING FEE
- -----------------------------------------------------------------------------
<S> <C>
$3,703,638.00 $741.00
- -----------------------------------------------------------------------------
</TABLE>
* Assumes deemed exchange of 496,813 shares of Series A Convertible Preferred
Stock (the "Series A Preferred") and 64,595 shares of Series B Convertible
Preferred Stock (the "Series B Preferred") issuable on exercise of Warrants
to purchase Series B Preferred (the "Series B Warrants") for warrants and new
preferred shares. Also assumes deemed exchange of the Series B Warrants for
new Series B Warrants.
** Calculated based on the transaction valuation (determined on the basis of the
book value of the common stock ($1.94 per share) into which the Series A
Preferred and the Series B Preferred are convertible) multiplied by one-fiftieth
of one percent.
[X] Check box if any part of the fee is offset as provided by Rule 0-11(a)(2)
and identify the filing with which the offsetting fee was previously paid.
Identify the previous filing by registration statement number, or the Form or
Schedule and the date of its filing.
Amount Previously Paid: $741.00 Filing Party: WavePhore, Inc.
Form or Registration No.: Schedule 13E-4 Date Filed: September 25, 1996
(File No. 5-46959)
The Company's Schedule 13E-4 Issuer Tender Offer Statement (File No. 5-46959)
previously filed with the Commission on September 25, 1996, is hereby amended
as follows:
<PAGE> 2
EXCEPT AS SPECIFIED TO THE CONTRARY IN THIS AMENDMENT, THE INFORMATION IN
THE SCHEDULE 13E-4 REMAINS UNCHANGED. The terms defined in the Schedule 13E-4
and not separatly defined herein shall have the meanings specified in the
Schedule 13E-4.
To the extent inconsistent, the third paragraph on page 2 of the Consent
Solicitation Statement is hereby amended by the third paragraph of the
Company's letter dated October 18, 1996, to the holders of its outstanding
Preferred Shares and Series B Warrants, a copy of which has been filed as new
Exhibit (a)(10) to the Consent Solicitation Statement (the "Supplemental
Letter").
The Expiration Date (defined on the cover page of the Consent Solicitation
Statement and referred to throughout such Statement) is hereby extended from
October 21, 1996 to October 28, 1996, as set forth in paragraph 2 of the
Supplemental Letter.
To the extent inconsistent, the second paragraph under the caption
"Effectiveness of Proposals" in the Consent Solicitation Statement is hereby
amended by the fourth paragraph of the Supplemental Letter.
The information set forth under the caption "Risk Factors" in the Consent
Solicitation Statement is hereby supplemented by the fifth paragraph of the
Supplemental Letter.
To the extent inconsistent, Appendix a to the Consent Solicitation
Statement (Warrant Agreement and Form of Warrant) is hereby amended,
supplemented and clarified by paragraphS six through eight of the Supplemental
Letter.
2
<PAGE> 3
ITEM 9. MATERIAL TO BE FILED AS EXHIBITS.
Item 9 is hereby amended by the addition of the following
Exhibit:
(a)(10) Letter to holders of Preferred Shares and Series B Warrants
dated October 18, 1996.
After due inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
WAVEPHORE, INC.,
an Indiana corporation
By /s/ David E. Deeds
-------------------------
David E. Deeds
President
Dated: October 21, 1996
3
<PAGE> 4
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<S> <C>
(a)(10) Letter to holders of Preferred Shares and Series B Warrants dated
October 18, 1996.
</TABLE>
4
<PAGE> 1
EXHIBIT (a)(10)
October 18, 1996
RE: Consent Solicitation Pertaining to our Series A & Series B
Convertible Preferred Stock and Warrants to Purchase Series B
Convertible Preferred Stock.
Dear Security Holder:
This letter supplements our Consent Solicitation Statement dated
September 23, 1996 (the "Consent Solicitation Statement") regarding the
above-referenced securities and clarifies, modifies and/or supersedes, as
indicated, certain information contained therein. Capitalized terms used but
not defined herein shall have the meaning ascribed to them in the Consent
Solicitation Statement.
The Expiration Date set forth in the Consent Solicitation Statement has
been extended from October 21, 1996 to October 28, 1996. Accordingly, the
Solicitation will expire at 5:00 p.m., Arizona time, on October 28, 1996.
Page 2 of the Consent Solicitation Statement included a statement to
the effect that the Consent Solicitation Statement includes "forward-looking
statements" within the meaning of Section 27A of the Securities Act of 1933, as
amended, and Section 21E of the Securities Exchange Act of 1934, as amended,
and implies that such statements are protected by the "safe harbor" provisions
of the Private Securities Litigation Reform Act of 1995 (the "Act"). The staff
of the Securities and Exchange Commission has advised the Company that this
transaction constitutes a tender offer which is not afforded the protection of
the Act in respect of forward-looking statements.
Paragraph 2 under the caption "Effectiveness of the Proposals" on Page
9 of the Consent Solicitation Statement requires that a holder of Series B
Warrants who is also a Holder of Preferred Shares must consent to the Proposals
with respect to all of such Holder's Series B Warrants and Preferred Shares,
including Preferred Shares held by all affiliates or other persons controlled
by or managed by such persons, in order to receive the benefits offered
pursuant to the Consent Solicitation Statement. As a matter of clarification,
the Company is only requiring that
<PAGE> 2
October 18, 1996
Page 2
Holders consent as to all Series B Warrants and Preferred Shares beneficially
owned by them.
With respect to the Proposals, we supplementally advise you that we
believe that the consents requested in the Consent Solicitation Statement are
in the nature of amendments to existing agreements, specifically, the Preferred
Stock Investment Agreements, or waivers of rights under the Company's Articles
of Incorporation, in each case which do not create a new class of preferred
stock requiring stockholder approval under Indiana law. However, the Company
has not received an opinion of independent Indiana counsel to this effect.
As set forth in Section 2.3(a) of the Warrant Agreement (Appendix A to
the Consent Solicitation Statement), the Company may redeem such Warrant, on
the terms and conditions set forth in such Section, only to the extent such
Warrant has not yet been exercised by the holder, and only to the extent then
exercisable. Thus, the Company may not redeem any portion of the Warrant which
is not then exercisable, and such unexercised portion will continue in effect in
accordance with its terms provided the related Preferred Stock continues to be
held by the Holder, even though the portion then exercisable may have been
redeemed.
Section 2.3(b) of such Warrant Agreement provides that the Company
shall mail, by first class postage period, notice of redemption at least five
business days prior to the date fixed for such redemption. Rather than use the
mails, the Company will provide any such notice of redemption to the Warrant
holders by facsimile and/or overnight delivery.
Section 10(b) of such Warrant Agreement provides that the Company will
utilize its reasonable best efforts to cause a Registration Statement to be
filed under the Securities Act for the purpose of registering the Shares
issuable upon exercise of the Warrant for resale by the Warrant holder and to
cause such Registration Statement to become effective on or before 180 days
following the Deemed Issuance Date. Section 10(e) also provides that the
Company will use its best efforts to keep such Registration Statement effective
until December 31, 1998 or such earlier date as all Common Shares covered by
such Registration Statement have been disposed of pursuant thereto. Please be
advised that the Company will not exercise its right to redeem any such
outstanding Warrant if the Common Shares issuable upon exercise of such Warrant
are not registered for resale by such holders at the time notice of redemption
is given by the Company and during the five day period thereafter.
<PAGE> 3
October 18, 1996
Page 3
If you have any questions regarding the foregoing or the Consent
Solicitation Statement, please call Douglas J. Reich, General Counsel of the
Company, at 602-952-5500.
Very truly yours,
/s/ David E. Deeds
DED:mmb
