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As Filed With the Securities and Exchange Commission on September 23, 1996
Registration Statement No. 333-1198
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
----------------------
WAVEPHORE, INC.
(Exact Name of registrant as specified in its Charter)
Indiana 86-0491428
- - ------------------------------- ---------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3311 North 44th Street
Phoenix, Arizona 85018
(602) 952-5500
(Address, including zip code, and telephone number,
including area code, of principal executive offices)
David E. Deeds, Chief Executive Officer
WavePhore, Inc.
3311 North 44th Street
Phoenix, Arizona 85282
(602) 952-5500
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copies to:
Steven D. Pidgeon, Esq.
Snell & Wilmer L.L.P.
One Arizona Center
Phoenix, Arizona 85004-0001
(602) 382-6000
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 being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, 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, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. /X/ No. 333-1198
----------------
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. / /
CALCULATION OF REGISTRATION FEE
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Additional Proposed Maximum Proposed Maximum Amount of
Title of Each Class of Amount to be Offering Price Aggregate Registration
Securities to be Registered Registered(1) Per Unit Offering Price Fee(2)
- - --------------------------------------------------------------------------------------------------------------
Common Shares 1,500,000 Shares $6.75(3) $10,125,000(3) $ 3,492.00
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(1) Issuable upon conversion of Shares of Series A Convertible
Preferred and Series B Convertible Preferred Shares of the Company
issued in private placements that may be sold by selling
securityholders.
(2) The amount of $17,708.00 of the registration fee was previously paid
at the time of filing of the initial registration statement covering the
registration of 3,335,000 common shares, 165,000 warrants to purchase
common shares, and 165,000 common shares issuable upon exercise of the
warrants. The amount of $3,492.00 representing the registration fee
for the additional 1,500,000 shares registered hereby will be paid at
the time of the filing of this post-effective registration statement.
(3) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c), based upon the last reported sales price of
the Common Shares on September 16, 1996, as reported by the Nasdaq
National Market.
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PART I
INCORPORATION BY REFERENCE OF REGISTRATION
STATEMENT ON FORM S-3, REGISTRATION STATEMENT NO. 333-1198
WavePhore, Inc., an Indiana corporation (the "Company") has filed this
Post-Effective Amendment No. 1 to its Registration Statement on Form S-3 to
register an additional 1,500,000 shares of its common shares, no par value (the
"Common Shares"), pursuant to Rule 462(b) under the Securities Act of 1933, as
amended. The Company had previously filed with the Securities and Exchange
Commission (the "Commission") a Registration Statement on Form S-3 (SEC File
No. 333-1198) on February 8, 1996 (the "Form S-3"), relating to the offering by
certain selling securityholders of (i) an indeterminate number of Common Shares
issuable upon conversion of outstanding shares of Series A and Series B
Convertible Preferred Shares of the Company; (ii) 165,000 warrants ("Warrants")
to purchase Common Shares, and (iii) 165,000 Common Shares purchaseable upon
exercise of the Warrants. The Company hereby incorporates by reference into
this Post-Effective Amendment No. 1 to its Registration Statement on Form S-3
in its entirety the Form S-3 declared effective on February 13, 1996 by the
Commission.
PART II
Item 16. Exhibits.
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Exhibit
Number Exhibit
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5 Opinion of Snell & Wilmer L.L.P. regarding legality
of the securities being registered.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Price Waterhouse LLP.
23.3 Consent of Snell & Wilmer L.L.P. (included in Exhibit 5).
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Phoenix, State of Arizona, on September 20,
1996.
WAVEPHORE, INC.
By /s/ David E. Deeds
-----------------------------
David E. Deeds, Chairman, Chief
Executive Officer and President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated.
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<S> <C> <C>
Signatures Title Date
- - ---------- ----- ----
/s/ David E. Deeds
- - ---------------------- Chairman of the Board, Chief September 20, 1996
David E. Deeds Executive Officer and President
(Principal Executive Officer)
*
- - ---------------------- Executive Vice President, Chief September 20, 1996
R. Glenn Williamson Operating Officer, and Director
*
- - ---------------------- Chief Financial Officer and September 20, 1996
Kenneth D. Swenson Treasurer (Principal Financial
Officer and Principal Accounting
Officer)
*
- - ----------------------- Director September 20, 1996
C. Roland Haden
*
- - ----------------------- Director September 20, 1996
Glenn Scolnik
*
- - ----------------------- Director September 20, 1996
J. Robert Collins
/s/ David E. Deeds
- - ----------------------- Director September 20, 1996
By: David E. Deeds
Attorney-In-Fact
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EXHIBIT 5
September 20, 1996
WavePhore, Inc.
3311 North 44th Street
Phoenix, Arizona 85018
Re: Post-Effective Amendment to Form S-3 Registration Statement
(SEC File No. 333-1198)
Ladies and Gentlemen:
We have acted as counsel to WavePhore, Inc., an Indiana corporation
(the "Company"), in connection with the preparation and filing with the United
States Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Securities Act"), of the Company's
Post-Effective Amendment No. 1 to Registration Statement on Form S-3 (the
"Post-Effective Amendment"), relating to the registration of 1,500,000
additional shares of the Company's common shares, no par value (the "Common
Shares"), pursuant to Rule 462(b) of the Securities Act. In arriving at the
opinions expressed below, we have reviewed the Post-Effective Amendment and the
exhibits thereto. In addition, we have reviewed the originals, or copies
certified or otherwise identified to our satisfaction, of all such corporate
records of the Company and such other instruments and certificates of public
officials, officers, and representatives of the Company and other persons, and
have made such investigations of law, as we have deemed appropriate as a basis
for the opinions expressed below. In rendering the opinions expressed below,
we have assumed that the signatures on all documents that we have reviewed are
genuine and that the Common Shares will conform in all material respects to the
description thereof set forth in the Registration Statement. Capitalized terms
used but not otherwise defined herein shall have the meanings ascribed to them
in the Registration Statement.
Based upon the foregoing, we advise you that in our opinion, when the
following events have occurred:
(a) The Post-Effective Amendment has become effective under the
Securities Act;
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WavePhore, Inc.
September 19, 1996
Page 2
(b) The due authorization, registration, and delivery of the
certificate or certificates evidencing the Common Shares has occurred; and
(c) The Common Shares have been issued and sold in the manner
specified in the Post-Effective Amendment and Registration Statement on Form
S-3 (SEC File No. 333-1198) to which such Amendment relates and the exhibits
thereto; then
(1) The Common Shares to be issued by you will be legally issued,
fully-paid and nonassessable.
The foregoing opinions are limited to the federal law of the United
States of America and the general corporation law of the State of Indiana. We
express no opinion as to the application of the various states' securities laws
to the offer, sale, issuance or delivery of the Common Shares.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Post-Effective Amendment.
Very truly yours,
SNELL & WILMER L.L.P.
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EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" incorporated
by reference into this Post-Effective Amendment No. 1 to the Registration
Statement (Form S-3) and related Prospectus of WavePhore, Inc. for the
registration of 1,500,000 shares of its common stock and to the incorporation by
reference therein of our reports (a) dated February 23, 1996, with respect to
the consolidated financial statements of WavePhore, Inc. included in its Annual
Report on Form 10-K for the fiscal year ended December 31, 1995, and (b) dated
February 23, 1996, with respect to the financial statements of Mainstream Data,
Inc. for the year ended December 31, 1995 included in WavePhore, Inc.'s Current
Report on Form 8-K dated December 27, 1995 (as amended by Form 8-K/A filed on
March 11, 1996), both filed with the Securities and Exchange Commission.
Ernst & Young LLP
Phoenix, Arizona
September 19, 1996
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EXHIBIT 23.2
[LETTERHEAD OF PRICE WATERHOUSE LLP]
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of the Registration Statement on Form S-3 (No. 333-1198) of
WavePhore, Inc. of our report dated March 17, 1995 relating to the financial
statements of Mainstream Data, Inc., which appears in the Current Report on
Form 8-K/A of WavePhore, Inc. dated March 8, 1996.
/s/ Price Waterhouse LLP
Phoenix, Arizona
September 19, 1996
