As filed with the Securities and Exchange Commission on September 22, 1999
Registration No. 333- 82313
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
U.S. Wireless Corporation
(Exact name of Registrant as specified in Charter)
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Delaware 4812 13-3704059
(State of (Primary standard industrial I.R.S. employer
Incorporation) classification code) identification No.
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2303 Camino Ramon
San Ramon, California 94583
(Address and telephone number of Principal Offices)
Dr. Oliver Hilsenrath, Chief Executive Officer
2303 Camino Ramon
San Ramon, California 94583
(925) 327-6200
(Name, Address and Telephone Number of Agent for Service)
Approximate date of commencement of proposed sale to the public: As soon as
practicable after this Registration Statement becomes effective.
If any of the securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, check the following box: [
]
If any of the securities being registered on this Form S-3 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 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, please check the following box and list the Securities
Act registration number of the earlier effective registration statement for the
same offering. [ ]
If delivery of a prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
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Title of each class Proposed maximum Proposed maximum aggregate Amount of
of securities Amount to be Registered offering price offering price registration fee
to be registered per share
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Common Stock, 2,000,000(1) $2.50(2) $5,000,000 $1,724
$.01 par value
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Totals (3) $5,000,000 $1,724
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(1) Equals the number of shares of Common Stock underlying stock options
granted to officers, directors and employees of the Company which are currently
vested and exercisable. Estimated pursuant to Rule 457 of Regulation C solely
for the purpose of calculating the registration fee. The proposed maximum
offering price per share with respect to the shares issuable upon the exercise
of stock options granted has been estimated pursuant to Rule 457(h) under which
Rule the per share price of options to purchase stock in accordance with option
agreements may be estimated by reference to the exercise price of such options.
The average exercise price of the shares subject to the outstanding options,
which are vested and exercisable, is $2.50. This table reflects the
de-registration of the sale of 6,000,000 shares of Common Stock underlying the
Company's Series B Preferred Stock. The registration fee was paid with the
initial filing.
(2) The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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CROSS REFERENCE SHEET
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Item in Form S-3 Prospectus Caption
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1. Forepart of the Registration Cover Page and Cover Page of
Statement and Outside Front Registration Statement
Cover Page of Prospectus
2. Inside Front and Outside Continued Front Page
Back Cover Pages of
Prospectus
3. Summary Information, Risk Prospectus Summary, Risk Factors
Factors and Ratio of Earnings
to Fixed Charges
4. Use of Proceeds Use of Proceeds
5. Determination of Offering Plan of Distribution, Cover Page, Risk
Price Factors
6. Dilution Risk Factors
7. Selling Security Holders Selling Securityholders
8. Plan of Distribution Cover Page, Plan of Distribution
9. Description of Securities Incorporation of Certain Documents by
to be Registered Reference
10. Interests of Named Experts Legal Opinions, Experts
and Counsel
11. Material Changes Prospectus Summary
12. Incorporation of Certain Incorporation of Certain
Information by Reference Documents by Reference
13. Disclosure of Commission Position Item 15. Indemnification of
on Securities Act Liabilities Officers and Directors
-iii-
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Subject to Completion Dated September 22, 1999
PROSPECTUS
2,000,000 SHARES
U.S. Wireless Corporation
COMMON STOCK
This Prospectus covers the sale of up to 2,000,000 shares (the "Shares") of
common stock, par value $.01 per share (the "Common Stock"), of U.S. Wireless
Corporation (the "Company"), which shares are issuable upon the exercise
options, which are presently vested and exercisable, granted to officers,
directors, and employees of the Company. The options have been granted in
accordance with the Company's compensation programs. The Company has set up an
account with Morgan Stanley Dean Witter to enable the simultaneous exercise of
options, in whole or in part and the resale of the share(s) purchased by the
holder (the holders of the options are referred to as the "Selling
Stockholders"), whereby, the Company would received the exercise price and the
holder the difference between the sale price and exercise price, less
commissions. See "Plan of Distribution."
The registration statement of which this Prospectus is a part, initially
included the registration for resale of 6,000,000 shares of Common Stock
underlying the Company's Series B Preferred Stock. The holders of the Series B
Preferred Stock have waived there current registration right for a future demand
right and therefore, the Company has deregistered shares underlying the Series B
Preferred Stock.
The shares of Common Stock underlying the options granted by the Company
may be sold from time to time, subject to the vesting provisions in each
individual option agreement, in negotiated transactions, at fixed prices, which
may be changed, and at market prices prevailing at the time of sale, or a
combination thereof.
The Company's Common Stock is quoted on the Nasdaq SmallCap Stock Market
("Nasdaq") under the symbol "USWC". Quotation on Nasdaq does not imply that
there is a meaningful sustained market for the Common Stock, or that if one is
developed, that it will be sustained for any period of time. In the absence of a
listing on Nasdaq, the Common Stock will be available for trading in the
over-the-counter market on the OTC Bulletin Board.
THE SECURITIES INVOLVE A HIGH DEGREE OF RISK.
SEE "RISK FACTORS."
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION, NOR HAS THE 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 September 22, 1999.
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The Selling Securityholders will be required to represent that they have
knowledge of Regulation M promulgated under the Exchange Act of 1934, as amended
(the "Exchange Act"), which proscribe certain manipulative and deceptive
practices in connection with a distribution of securities.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Exchange
Act and, in accordance therewith, files reports and other information with the
Securities and Exchange Commission (the "Commission"). Reports, proxy and
information statements and other information filed by the Company with the
Commission pursuant to the informational requirements of the Exchange Act may be
inspected and copies at the public reference facilities maintained by the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549. Copies of such
material may be obtained from the public reference section of the Commission at
450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates. The
Commission maintains a World Wide Web site that contains reports, proxy, and
information statements, and other information regarding registrants, including
the Company, that file electronically with the Commission. The address of the
Commission's site is http://www.sec.gov.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, heretofore filed by the Company with the
Commission pursuant to the Exchange Act, are hereby incorporated by reference,
except as superseded or modified herein:
1. The Company's Annual Report on Form 10-KSB for the fiscal year ended
March 31, 1999; and
2. The Company's Quarterly Report on Form 10-QSB for the quarter ended June
30, 1999; and
3. A description of the Company's securities is contained in the Company's
registration statement on Form 8-A filed October 27, 1994; and
4. All other reports filed by the Registrant pursuant to Section 13(a) or
15(d) of the Exchange Act, since the end of the fiscal year covered by the
Annual Report referred to in (1) above, are incorporated herein by reference.
Each document filed subsequent to the date of this Prospectus pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold termination of
the offering shall be deemed to be incorporated by reference incorporated by
reference in this registration statement and prospectus.
The Company will provide without charge to each person to whom a copy of
this Prospectus is delivered, upon the written or oral request of any such
person, a copy of any document described above (other than exhibits). Requests
for such copies should be directed to U.S. Wireless Corporation, Attn: Director
of Corporate Communications, 2303 Camino Ramon, San Ramon, California 94583,
telephone (925) 327-6200.
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Summary
The following summary is intended to set forth certain pertinent facts and
highlights from material contained in the body of this Prospectus. The summary
is qualified in its entirety by, and should be read in conjunction with, the
detailed information and financial statements appearing elsewhere in this
Prospectus and the Company's annual report on Form 10-KSB for the fiscal year
ended March 31, 1999 and the Company's quarterly report on Form 10-QSB for the
quarter ended June 30, 1999. Statements contained in this Prospectus which are
not historical facts are forward looking statements as defined under the Private
Securities Litigation Reform Act of 1995. These forward looking statements
include statements with respect to plans, projections or future performance of
the Company and are subject to risks and uncertainties which could cause actual
results to differ materially from those projected.
General
The Company has developed a network-based location systems designed to enable
wireless carriers and others to provide their customers with valued-added
location-based services and applications, including enhanced 911, live
navigation assistance, enhanced 411, asset and vehicle tracking, ITS systems and
network management systems.
The RadioCameraTM system, is a geographic location ("geo-location") system that
pinpoints the locations of mobile telephone subscribers within a wireless
network. Using location fingerprinting, ("Location Fingerprinting" or "LF"),
proprietary technology developed by the Company, the RadioCamera system measures
the radio frequency pattern or the phase (i.e., the timing and the amplitude
path) of all the radio frequency signals from a caller to a single cell site.
The Company believes that this technology has distinct advantages over the
competing technologies that use triangulation or the global positioning system
("GPS").
Corporate Strategy
The Company intends to establish a leadership position within the industry by
leveraging the technical, market timing, and economic advantages of its
RadioCamera technology. Presently, the Company is evaluating the possibility of
designing, building and operating a nationwide location network, through which
it will develop and promote location-based applications to accommodate all
standards and protocols, and provide an efficient and uniform networking
platform for delivering location information.
Location Fingerprinting Technology
The RadioCamera system utilizes a network-based architecture to operate the
Company's Location Fingerprinting technology, which uses pattern recognition as
its fundamental principle to determine location. The RadioCamera system
identifies and "fingerprints" the RF (radio frequency) pattern (multipath phase
and amplitude characteristics) of an operating cellular telephone or other
wireless device. It then compares the RF pattern fingerprint to a database of
previously identified RF fingerprints and their corresponding geographic
locations within the calibrated network. The RadioCamera system uses the
existing cellular infrastructure, not requiring modifications to the antennae,
base station equipment or user handsets. The Company has recently developed
modifications to its RadioCamera system for the CDMA and iDEN standards, in
addition to the AMPS and TDMA systems. Industry Overview
There are approximately 75 million people using wireless telephones in the
United States today, and that number is expected to grow by the year 2000 to an
estimated 90 million, with some estimates reaching 120 million (Cellular
Telecommunications Industry Association, March 1999), with an estimated 200
million worldwide. To accommodate the increased consumer demand for wireless
services, the industry has aggressively continued its buildup of wireless
infrastructure, and has implemented more efficient standards and digital
technologies such as TDMA, CDMA, GSM and iDEN. The introduction of these
standards into the market has additionally served as a selling point for
manufacturers and service providers in the already extremely competitive arena
of telecommunications.
With the increase in the usage of wireless telephones comes an increase in
emergency calls. As a result of these and other safety issues, the FCC in June
1996 issued a mandate formalizing certain performance requirements, and
implementing a schedule for wireless service providers to establish geolocation
capabilities. The mandate requires an accuracy of 125 meters in 67% of all
cases, using root mean square techniques, to be implemented by October 1, 2001.
In addition to emergency applications, there is the potential for additional
wireless value-added applications, including enhanced 411 (caller-location based
information services), asset tracking, vehicle location, personal safety,
roadway and highway management (Intelligent Transportation Systems or "ITS"),
data base management and network management. Value-added services facilitated by
location-sensitive applications have the potential to further expand the market
for wireless communications by allowing service providers to increase
revenue-generating traffic on their networks.
Research and Development/Trials
The Company is currently conducting field trials within the Western Wireless
network in Billings, Montana; within the Bell Atlantic Mobile wireless network
in Baltimore, Maryland; and in Company-operated test sites in Oakland,
California. In addition, the Company is scheduling a field trial of the iDEN
RadioCamera, within the Nextel network, to begin later this year. In April 1999,
the Billings, Montana trial extended to a State of Montana sponsored "end to
end" evaluation of the RadioCamera's functionality, from the location of the
caller, to the delivery of the location information at the Public Safety
Answering Points or "PSAPs" (regional emergency call centers). The system
identifies a caller's phone number, location coordinates and nearest street
address. The information is sent to the appropriate PSAP, where it is displayed
on an electronic map at an operator's workstation. The RadioCamera continuously
updates the location information, allowing the PSAP to monitor the caller's
location throughout the call. The trial does not monitor emergency calls due to
liability issues, and instead uses a substitute number to establish the
efficiency and reliability of the system.
1999 Private Placement
In March 1999, the Company commenced an undertaking to raise additional capital
in a private placement offering of its securities. In April 1999, the Company
received stockholders approval for the offering and completed the private
offering of its securities, in which the Company raised gross proceeds of
$6,000,000 through the sale of 60,000 shares of the Company's newly created
Series B Preferred Stock. In addition, the Company offered its officers,
directors and employees the right to purchase an aggregate of 405,000 shares of
Common Stock at $1.00 per share, in which all shares were subscribed. Employees
had the right to pay for the shares through a two-month salary deduction. In
July 1999, the Company raised additional gross proceeds of $500,000 through the
sale of 149,254 shares of the Company's Common Stock. The proceeds of the
offering will be used for general working capital.
Holders of the Series B Preferred Stock have the right to convert each share
into 100 shares of the Company's Common Stock, at any time, commencing 90 days
from issuance, however, if conversion is elected within 12 months of issuance,
each share of Series B Preferred Stock is convertible into only 67 shares of
Common Stock. Additionally, there is a mandatory conversion provision,
commencing 12 months from issuance if the closing price for a share of Common
Stock has been $5.00 or more for 30 consecutive trading days. Holders of the
Series B Preferred Stock have the right, as a separate voting group, to elect
one member to the Company's Board of Directors until such time as one of the
following events occurs: (i) when 50% of the shares of Series B Preferred Stock
have been voluntarily converted into Common Stock or (ii) if a mandatory
conversion of the shares of Series B Preferred Stock occurs, an aggregate of 50%
of the total number of shares of Common Stock issued upon conversion, whether
voluntary or mandatory, have been resold. The holders of Series B Preferred
Stock also have the right to vote on (i) the issuance of any stock that ranks
senior to or on parity with the Series B Preferred Stock and (ii) any change in
terms of the Series B Preferred Stock. The Series B Preferred Stock has a
liquidation preference of $100 per share.
The Company agreed to file a registration statement to register the shares of
Common Stock underlying the Series B Preferred Stock within 90 days of the
Company's April 5, 1999 special meeting of stockholders. The Company filed a
registration statement in July 1999 registering for resale the shares of Common
Stock underlying the Series B Preferred Stock. The holders of the Series B
Preferred Stock have since waived this right in return for a future demand
registration right. The Company has deregistered the resale of the shares of
Common Stock underlying the Series B Preferred Stock.
The Company's principal executive offices are located at 2303 Camino Ramon, San
Ramon, California 94583, telephone: (925) 830-8801, facsimile (925) 830-8821.
The Company's home page can be located on the World Wide Web at
http://www.uswcorp.com.
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The Offering
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Common Stock Outstanding 14,175,481 Shares
Prior to the Offering (1)
Common Stock To Be 16,175,481 Shares
Outstanding After the
Offering (2)
Risk Factors This offering involves a high degree of risk. See "Risk Factors."
Use of Proceeds All of the proceeds of this offering will be paid to the respective
Selling Securityholders and none of the proceeds will be received by
the Company. All the expenses of this Offering will be paid by the
Company. The Company shall use the proceeds from the exercise of any
options for general working capital purposes. See "Use of Proceeds."
NASDAQ Symbols (3) Common Stock - USWC
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1. Does not include (i) the shares of Common Stock issuable upon the
conversion of the shares of the Series A Preferred stock or the shares of Series
A Preferred Stock issuable in accordance with the dividend on said shares or the
shares of Common Stock into which those dividend shares may be, (ii) the shares
of Common Stock issuable upon conversion of the shares of the Series B
Preferred, or (iii) any shares of Common Stock underlying any outstanding
warrants or options issued by the Company. Includes 1,698,325 shares, which
shares are subject to the vesting milestones of the exchange offer in accordance
with the March 1998 consolidation of Labyrinth Communications Technologies
Group, Inc. with and into the Company.
2. Includes 2,000,000 shares issuable upon the exercise of vested options
issued to officers, directors, and employees of the Company. Does not include
(i) the shares of Common Stock issuable upon the conversion of the shares of the
Series A Preferred stock or the shares of Series A Preferred Stock issuable in
accordance with the dividend on said shares or the shares of Common Stock into
which those dividend shares may be, (ii) the shares of Common Stock issuable
upon conversion of the shares of the Series B Preferred Stock, (iii) any shares
of Common Stock underlying any outstanding warrants or options issued by the
Company to officers, directors and employees which are not presently vested and
exercisable, or (iv) any shares of Common Stock underlying any outstanding
warrants or options issued by the Company to consultants and advisors.
3. Quotation on Nasdaq does not imply that there is a meaningful market for
the Company's securities or that if a market is developed that it will be
sustained for any period of time. In the absence of a listing on Nasdaq, the
Company's securities will be available for trading on the OTC Bulletin Board.
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RISK FACTORS
An investment in the securities offered hereby are speculative and involve a
high degree of risk. In addition to the other information contained in this
Prospectus, the following factors should be carefully considered before
purchasing the securities offered by this Prospectus. The purchase of the
securities offered hereby should not be considered by anyone who cannot afford
the risk of loss of their entire investment. Statements contained in this
registrations statement which are not historical facts may be considered forward
looking information with respect to plans, projections, or future performance of
the Company as defined under the Private Securities Litigation Reform Act of
1995. These forward-looking statements are subject to risks and uncertainties
which could cause actual results to differ materially from those projected.
1. Development Stage Company; No Revenues from Operations. The Company is a
development stage company with no revenues from operations. Its activities to
date have consisted of its formation, obtaining financing, and the research,
development, and testing of the Company's RadioCamera and Location
Fingerprinting technology. The Company's operations are subject to all of the
risks inherent in the establishment and development of a business enterprise,
including the absence of a substantial operating history. The likelihood of the
success of the Company must be considered in light of the problems, expenses,
difficulties, complications, and delays frequently encountered in connection
with a developing and emerging stage business and the competitive and unexplored
environment in which the Company anticipates operating. The Company has not
deployed a fully commercial system to date. There can be no assurances that any
of the Company's product lines will be profitably produced, marketed, and/or
operated, or that the Company will be able to attract and retain the management
and skilled employees needed. Further, there can be no assurances that the
Company's management will be able to successfully implement its business plan.
2. Emerging Market for Location Technologies: Market Uncertainty. Presently
there is a limited market for location-based technologies within the wireless
industry. With the FCC mandate requiring geolocation of cellular subscribers
dialing 911, there is the planned emergence of a market for location-based
technologies for wireless systems. There can be no assurances that the FCC
mandate will not be revised or amended, delaying or eliminating the necessity
for geolocation information. In addition, there can be no assurances that there
will develop additional applications and offerings of value-added services based
upon location-based information. Recently the FCC issued a notice for discussion
indicating that it was considering granting waivers to cellular carriers in
order to allow time for technologies to be implemented. The Company is therefore
developing a product and technology for which there is no clear market size and
no assurances as to when and if one will develop. The success of the Company's
product lines, if any, shall be contingent on their acceptance in the market
place. Though the Company may be successful in developing its product lines,
there can be no assurances that competitors will not produce products, which are
either technically superior, price cost-effective or that, which make the
Company's products obsolete. The lack of acceptance of the Company's product
lines in the marketplace would have an adverse effect on its operations.
3. Development of Business; Need for Additional Financing. The Company has not
generated any operating revenues to date and can not accurately predict when and
if substantial revenues will be generated, therefore, its cost of operations
shall continue to be borne solely from its financing activities. The Company
will require additional capital for operations to implement its business plan
and corporate strategy of deploying a nationwide system. The Company may also
seek additional funding if the operating timetable for the development,
manufacturing, marketing, and sales of its products are unable to meet the
Company's costs of operations. The primary expense of the Company is the
salaries of its employees. The Company's limited resources in addition to its
anticipated continuation of its research, development and testing operations,
may cause significant strain on the Company's management, technical, financial,
and other resources. To manage its development, the Company must continue to
improve and expand its existing resources and management information systems and
must attract, train, and motivate qualified technical, management and general
personnel. There can be no assurance, however, that the Company will
successfully be able to achieve these goals.
4. Rapid Technological Change. The wireless communications and informational
services industries are subject to rapid technological change. There can be no
assurances that the Company will be able to keep pace with the technological
developments in the telecommunication industry or to implement or change its
product lines to meet new demands within the industry. Competitors with greater
resources may develop products and/or technologies superior to or more cost
effective than those marketed by the Company. See "Risk Factor No. 5-
Competition."
5. Competition. The emerging market for location-based technologies is highly
competitive, with many companies engaging in the technological development of
product lines which may presently or which may in the future compete with those
of the Company. The Company believes that the initial deployment of location
systems within the industry will shape the competitive marketplace and its
players. There can be no assurances that the Company will be successful in
entering the marketplace or, if successful, maintain a share therein. If any of
the Company's products are found to be obsolete or not widely used or
applicable, the Company may not be able to compete in the markets it
anticipates. Further, the Company cannot offer any assurance that one or more of
its current competitors will not develop and market products technologically
superior or more cost effective than those which may be marketed by the Company
or in a more timely manner than the Company, nor can the Company assure that
other companies will not enter the marketplace with technologically superior
product.
6. Protection of Intellectual Property. The Company has filed 14 patent
applications with the Patent & Trademark Office and has received notices of
allowance for 2 of the Company's key patent applications. In addition, the
Company anticipates filing continuations and additional patent applications in
the future. Dr. Oliver Hilsenrath, President and Chief Executive Officer of the
Company, and all other employees of the Company have agreed to, and upon the
filing of all patent applications will, assign any and all rights, title and
interest to said patents to the Company. There can be no assurances that any
pending patent application will be approved. There can be no assurance that any
particular aspect of the Company's technology will not be found to infringe on
the products of other companies or that other companies will not infringe on the
patents of the Company. In the event the Company were to become engaged in
litigation either as a result of a claimed infringement by the Company or as a
result of an infringement of any of the Company's patents by a third party,
there can be no assurance that the Company would be able to fund such litigation
or, if funded, would be successful in any such litigation.
7. Government Regulations. The FCC regulates the wireless communications
industry. In particular, the FCC regulates, monitors and grants rights to the
use of radio waves for all frequencies of the spectrum. On June 12, 1996, the
FCC adopted a Report & Order which established performance goals and timetables
for the identification of a wireless caller's phone number and physical
location. Commencing in April 1998, wireless service providers must initiate
action to comply with Phase I by developing the ability to provide callback
numbers and cell or sector origination information to any qualified Public
Safety Answering Point (PSAP) within their coverage zone who requests such
information. The service provider must commence providing such information to
qualified requesting PSAPs within six months of the PSAP's request. By October
1, 2001 wireless carriers must be able to locate, in 67% of all cases, a 911
caller within 125 meters. While the Company believes the RadioCamera will enable
service providers to comply with these regulations, there are no assurances that
the RadioCamera will meet this requirement. The Company's future expansion is
largely reliant upon the implementation of Phase II and the subsequent creation
of a market for its location technology. Any change by the FCC to the Phase II
mandate may have an adverse effect on the Company. See "Risk Factor No. 2 -
Emerging Market for Location Technologies: Market Uncertainty."
Additionally, the Company is required to comply with a wide range of other state
and local rules and regulations applicable to its business. The ability to adapt
the Company's product lines in order to comply with the current and anticipated
broad federal, state, and local regulatory network is essential and may be
costly. The failure to comply with such regulations may have an adverse effect
on the Company's operations.
8. Dependence on Management and Key Personnel; Covenants Not To Compete. The
Company is dependent upon the personal efforts and abilities of Dr. Oliver
Hilsenrath; the Company's President and Chief Executive Officer, as well as its
team of executive officers and senior management. The ability to retain these
executives and to attract and retain other highly competent executives, sales
personnel and technicians is critical to the ongoing success of the Company.
While the Company has not experienced difficulty in attracting and retaining
qualified personnel, there can be no assurance that it will not encounter such
problems in the future. In addition, due to the technical nature of the
Company's research and development, all executive officers and senior management
of the Company are required to enter into employment agreements with the Company
containing non-disclosure and non-compete covenants which restrict the
information that they can disseminate and future employment. Several of the
Company's employment agreements with senior management expire in 1999. While the
Company intends to extend or execute new agreements with these members of
management, there can be no assurance that the Company will be successful in
doing so and no assurance that the Company will not lose the services of these
employees upon expiration of their agreements. Furthermore, many states,
including California, do not acknowledge certain provisions and types of
restrictive non-competition covenants. It is therefore possible that a court
will find that the non-competition clauses in any or all the employment
agreements are not enforceable, whereby employees would be able to work for
competitors of the Company. All employees of the Company are required to sign
non-disclosure and confidentiality agreement prior to commencing their
employment. Although the Company plans to aggressively protect its proprietary
information, there can be no assurances that the Company will be able to
prohibit former employees from using knowledge learned from working for the
Company.
9. Indemnification of Officers and Directors. As permitted under the Delaware
General Corporation Law, the Company's Certificate of Incorporation provides for
the indemnification and elimination of the personal liability of the officers
and directors to the Company or any of its shareholders for damages for breaches
of their fiduciary duty as officers and/or directors. As a result of the
inclusion of such provision, shareholders may be unable to recover damages
against officers and/or directors for actions taken by them which constitute
negligence or gross negligence or for actions that are in violation of their
fiduciary duties. In addition the Company has provided indemnification
agreements to its outside officers and directors and recently amended its
by-laws to provide indemnification to the fullest extent of the law. The
inclusion of this provision in the Company's Certificate of Incorporation,
by-laws, and the indemnification agreements may reduce the likelihood of
derivative litigation against directors and other types of shareholder
litigation.
10. No Dividends and None Anticipated. The Company has not paid any dividends
nor, because of its present financial status and its contemplated
financial requirements, does it contemplate or anticipate paying any dividends
upon its Common Stock in the foreseeable future. The dividend issuable in
accordance with the Series A Preferred Stock is payable in cash or in kind at
the Company's option, upon the earlier of conversion or redemption of the Series
A shares.
11. Shares Available for Resale. There are presently 14,175,481 shares of Common
Stock outstanding, 70,000 shares of Series A Preferred Stock, and 60,000 shares
of Series B Preferred Stock. Of the 14,175,481 shares currently outstanding,
approximately 8.7 million shares are "restricted securities", with the balance
freely tradable. Of such restricted shares, 1,698,325 shares are subject to the
vesting milestones of the exchange offer in accordance with the March 1998
consolidation of Labyrinth Communications Technologies Group, Inc. This
registration statement registers for resale two million shares of Common Stock
underlying options granted to officers, directors and employees of the Company,
as to the portion of each option which is vested and exercisable. In addition,
the Company had previously registered for resale the shares underlying the
Series A Preferred Stock and shares and options granted in the Company's prior
private placements, in two Form S-3 registration statements in June 1997 and
October 1998, both of which have been deregistered and the shares not previously
sold under those registrations are no longer registered for resale, however, the
holders still may sell such shares under Rule 144 under the Act, as applicable.
The majority of the balance of issued and outstanding shares of Common Stock
have been held for more than one year and therefore may be sold pursuant Rule
144 under the Act. The Company cannot predict the effect, if any, that market
sales of the shares of the Selling Securityholders or the availability for
future sales of shares in accordance with Rule 144 will have on the market price
of the Common Stock prevailing from time to time. The present prevailing markets
price and after the market price after the Offering could be adversely affected
by future sales of substantial amounts of Common Stock. See "Plan of
Distribution."
12. Effect of Outstanding Options, Warrants and Convertible Securities. The
Company presently has outstanding options to purchase an aggregate of up to
approximately 5,500,000 shares of Common Stock with exercise prices between
$2.00 per share and $5.00 per share. The Company also has outstanding 70,000
shares of Series A Preferred Stock and 60,000 shares of Series B Preferred
Stock, convertible into approximately 480,000 shares and 6,000,0000 shares of
Common Stock, respectively. Each share of Series A Preferred Stock carries a 6%
dividend, payable at the discretion of the Company, in cash or in kind, and is
convertible at any time into shares of Common Stock. The exercise of any such
outstanding warrants, stock options or conversion rights will dilute the
percentage ownership of the Company's stockholders, and any sales in the public
market of Common Stock underlying such warrants, stock options or convertible
preferred stock may adversely affect prevailing market prices for the Common
Stock. Moreover, the terms upon which the Company will be able to obtain
additional equity capital may be adversely affected, since the holders of such
outstanding securities can be expected to exercise them at a time when the
Company, in all likelihood, would be able to obtain any needed capital on terms
more favorable to the Company than those provided in such warrants, stock
options and convertible preferred stock.
13. Possible Future Dilution. The Company has authorized capital stock of
40,000,000 shares of Common Stock, par value $.01 per share and 1,000,000 shares
of Preferred Stock of which 300,000 have been designated as Series A Preferred
Stock and 60,000 have been designated as Series B Preferred Stock and the
balance subject to designation of rights and preferences to be determined by the
Company's Board of Directors. Inasmuch as the Company may use authorized but
unissued shares of Common Stock or Preferred Stock or securities convertible or
exercisable in to capital stock, without stockholder approval in order to
acquire businesses, to obtain additional financing or for other corporate
purposes, there may be further dilution of the stockholders' interests.
14. Potential Adverse Effects of Issuance of Preferred Stock: Anti-takeover
Provisions. The Company is authorized to issue up to 1,000,000 shares of
preferred stock, $.01 par value ("Preferred Stock"). Preferred Stock may be
issued in one or more series, the terms of which may be determined at the timed
of issuance by the Board of Directors, without further action by stockholders,
and may include voting rights (including the right to vote as a series on
particular matters), preferences as to dividends and liquidation, conversion and
redemption rights and sinking fund provisions. 300,000 shares of Series A
Preferred Stock and 60,000 shares of Series B Preferred Stock have been
authorized to date, of which 70,000 shares and 60,0000 shares, respectively, are
currently outstanding. Issuance of additional Preferred Stock, depending upon
the rights, preferences and designations thereof, may have the effect of
delaying, deterring or preventing a change in control of the Company, or could
result in the dilution of the voting power of the Common Stock purchased in this
Offering. In addition, certain "anti-takeover" provisions of the Delaware
General Corporation Law, among other things, may restrict the ability of the
stockholders to effect a merger or business combination or to obtain control of
the Company.
15. Possible Delisting of Securities from NASDAQ System; Risks of Low Priced
Stocks. The Company's Common Stock is currently traded on the Nasdaq SmallCap
Stock Market ("Nasdaq") which has certain minimum financial and market activity
requirements that must be met in order to maintain continued listing. While the
Company currently meets the continued listing requirements, there is no
assurance that it will continue to do so. In the event the Company's Common
Stock is delisted from Nasdaq, trading, if any, in the Common Stock would
thereafter be conducted in the over-the-counter market on the OTC Bulletin
Board. Consequently, an investor may find it more difficult to dispose of, or to
obtain accurate quotations as to the price of the Company's Common Stock.
16. Penny Stock Regulation. Broker-dealer practices in connection with
transactions in "penny stocks" are regulated by certain penny stock rules
adopted by the Securities and Exchange Commission. Penny stocks generally are
equity securities with a price of less than $5.00 (other than securities
registered on certain national securities exchanges or quoted on Nasdaq provided
that current price and volume information with respect to transactions in such
securities is provided by the exchange or system). The penny stock rules require
a broker-dealer, prior to a transaction in a penny stock not otherwise exempt
from the rules, to deliver a standardized risk disclosure document that provides
information about penny stocks and the risks in the penny stock market. The
broker-dealer also must provide the customer with current bid and offer
quotations for the penny stock, the compensation of the broker-dealer and its
salesperson in connection with the transaction, and monthly account statements
showing the market value of each penny stock held in the customer's account. In
addition, the penny stock rules generally require that prior to a transaction in
a penny stock, the broker-dealer must make a special written determination that
the penny stock is a suitable investment for the purchaser and receive the
purchaser's written agreement to the transaction. These disclosure requirements
may have the effect of reducing the level of trading activity in the secondary
market for a stock that becomes subject to the penny stock rules. If the
Company's securities become subject to the penny stock rules, investors in this
Offering may find it more difficult to sell their securities in the secondary
market.
17. Possible Volatility of Stock Price. The market price of the shares of the
Company's Common Stock, like that of the common stock of many other high
technology companies, is likely to be highly volatile. Additionally, the
Company's Common Stock is not heavily traded, which could increase the
volatility of such stock. Factors such as the registration rights referenced
above, the announcement of technological innovations or new products by the
Company or its competitors, governmental regulation, developments in patent or
other proprietary rights of the Company or its competitors, litigation,
fluctuations in the Company's operating results, and market conditions for high
technology stocks in general could have a significant impact on the future price
of the Company's Common Stock.
18. Year 2000 Issues. The Company does not believe that the impact of the year
2000 computer issue will have a significant or direct impact on its operations
or financial position or that it will be required to significantly modify its
internal computer systems or products currently under development. However, if
internal systems do not correctly recognize date information when the year
changes to 2000, there could be adverse impact on the Company's operations.
Furthermore, there can be no assurance that another entity's failure to ensure
year 2000 capability would not have an adverse effect on the Company.
SELLING SECURITYHOLDERS
This Prospectus covers the sale of up to an aggregate of 2,000,000 shares of
Common Stock of the Company, which shares are issuable upon the exercise
options, which are presently vested and exercisable, granted to officers,
directors and employees of the Company. The options have been granted in
accordance with the Company's compensation programs. The Company has set up an
account with Morgan Stanley Dean Witter to enable the simultaneous exercise of
the options, in whole or in part by the holders. The Company shall authorize the
resale of an aggregate of 2,000,000 shares underlying options granted to
officers, directors and employees of the Company, in accordance with a schedule
supplied by the Company, providing a breakdown of each individuals vested
portion of their granted options. The exercise of the options and resale of
shares shall be strictly monitored by the Company and Morgan Stanley Dean
Witter.
PLAN OF DISTRIBUTION
The Company has set up an account with Morgan Stanley Dean Witter to enable the
simultaneous exercise of the options, in whole or in part by the holders, and
the resale of the shares purchased, whereby, the Company would received the
exercise price and the holder the difference between the sale price and exercise
price, less a commission. Dean Witter, in accordance with the Company's
instructions would also deduct an amount from each sale for income tax purposes,
which would be paid to the government on the employees behalf. The Company may
in the future engage other brokerage firms to implement this option exercise
program. All references to "Agent" shall refer to Morgan Stanley Dean Witter or
such other brokerage firm engaged by the Company to facilitate this option
exercise program. The Company shall authorize its Agent to resell an aggregate
of 2,000,000 shares underlying options granted to officers, directors and
employees of the Company, in accordance with a schedule supplied by the Company,
providing a breakdown of each individuals vested portion of their granted
options. The exercise of the options and resale of shares shall be strictly
monitored by the Company.
This Prospectus shall be delivered by each Selling Securityholder upon the sale
of any shares by said holders. Shares of Common Stock issuable upon the exercise
of vested options, may be sold, from time to, by the Selling Securityholders.
Sales of such shares or even the potential of such sales at any time may have an
adverse effect on the market prices of the Company's shares offered hereby. See
"Risk Factors."
In the event that any holder desires to exercise his option, as vested, in whole
and part and not resell the shares immediately, the holder may resell the shares
in accordance with this prospectus as described below. The sale of the shares by
the Selling Securityholders may be effected from time to time in negotiated
transactions, at fixed prices, which may be changed, and at market prices
prevailing at the time of sale, or a combination thereof. The Selling
Securityholders may effect such transactions by selling directly to purchasers
or to or through broker-dealers which may act as agents or principals, including
in a block trade transaction in which the broker or dealer will attempt to sell
the shares as agent but may position and resell a portion of the block as
principal to facilitate the transactions or purchases by a broker or dealer as
principal and resale by such broker or dealer for its own account pursuant to
this Prospectus, or in ordinary brokerage transactions and transactions in which
the broker solicits purchasers. In effecting sales, brokers or dealers engaged
by the Selling Securityholders may arrange for other brokers or dealers to
participate. Such broker-dealers may receive compensation in the form of
discounts, concessions, or commissions from the Selling Securityholders and/or
the purchasers of the shares, as applicable, for which such broker-dealers may
act as agents or to whom they sell as principal, or both (which compensation as
to a particular broker-dealer might be in excess of customary commissions). The
Selling Securityholders and any broker-dealers that act in connection with the
sale of the shares of Common Stock and/or by the Selling Securityholders might
be deemed to be "underwriters" within the meaning of Section 2(11) of the Act.
In that connection, the Company has agreed to indemnify the Selling
Securityholders and the Selling Securityholders have agreed to indemnify the
Company, against certain civil liabilities including liabilities under the Act.
At the time a particular offer of its shares is made by or on behalf of the
Selling Securityholders, to the extent required, a prospectus supplement will be
distributed which will set forth the number of shares of Common Stock being
offered and the terms of the offering, including the name or names of any
underwriters, dealers or agents, the purchase price paid by any underwriter for
shares purchased from the Selling Securityholders and any discounts, commission
or concessions allowed or re-allowed or paid to dealers, and the proposed
selling price to the public.
Under the Exchange Act, and the rules and regulations thereunder, any person
engaged in a distribution of Company's Shares offered by this Prospectus may not
simultaneously engage in market-making activities with respect to such Company
shares during the applicable "cooling off" period (nine days) prior to the
commencement of such distribution. In addition, and without limiting the
foregoing, the Selling Securityholders will be subject to applicable provisions
of the Exchange Act and rules and regulations thereunder, including without
limitation, Regulation M in connection with transactions in such shares, which
provisions may limit the timing of purchases and sales of Company shares by the
Selling Securityholders.
Reports to Shareholders
The Company has adopted March 31 as its fiscal year end. The Company furnishes
annual reports to its shareholders containing audited consolidated financial
statements, together with an opinion by independent certified public
accountants. In addition, the Company may, in its discretion, furnish to
shareholders interim quarterly reports containing unaudited financial
information.
LEGAL OPINIONS
Legal matters relating to shares of Common Stock offered hereby will be
passed on for the Company by its general counsel, David S. Klarman, Esq.
EXPERTS
The consolidated financial statements of the Company for the years ended March
31, 1999 and 1998 included in Form 10-KSB for the Company's fiscal year ended
March 31, 1999, incorporated by reference in this Prospectus, have been audited
by Haskell & White LLP, Independent Certified Public Accountants, to the extent
and for the periods set forth in their report incorporated herein by reference,
and are incorporated herein in reliance upon such report given upon the
authority of said firm as experts in auditing and accounting.
AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission a Registration
Statement on Form S-3 under the Securities Act of 1933, as amended with respect
to the shares of Common Stock to which this Prospectus relates. As permitted by
the rules and regulations of the Commission, this Prospectus does not contain
all of the information set forth in the Registration Statement, some of which is
incorporated by reference from prior filings of the Company. For further
information with respect to the Company and the shares offered hereby, reference
is made to the Registration Statement and all reports incorporated herein by
reference, including the exhibits thereto, which may be copied and inspected at
the Public Reference Section of the Commission at its principal office at 450
Fifth Street, N.W., Washington, D.C., 20549. The address of the site is
http://www.sec.gov.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
SEC Registration Fee ...................................... $ 1,724
Accounting Fees ........................................... 3,000
Printing and Electronic Filing Fees ....................... 2,500
Nasdaq Additional Listing Fees ............................ 7,500
Miscellaneous ............................................. 1,276
-------
Total ..................................................... $16,000(1)
-------
(1) Estimated.
Item 15. Indemnification of Directors and Officers.
As permitted under the Delaware Corporation Law, the Company's Certificate
of Incorporation and By-laws provide for indemnification of a director or
officer under certain circumstances against reasonable expenses, including
attorneys fees, actually and necessarily incurred in connection with the defense
of an action brought against him by reason of his being a director or officer.
In addition, the Company's charter documents provide for the elimination of
directors' liability to the Company or its shareholders for monetary damages
except in certain instances of bad faith, intentional misconduct, a knowing
violation of law or illegal personal gain.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Company pursuant to any charter, provision, by-law, contract, arrangement,
statute or otherwise, the Company has been advised that in the opinion of the
Securities and Exchange Commission, such indemnification is against public
policy as expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Company of expenses incurred or paid
by a director, officer, or controlling person of the Company in the successful
defense of any such action, suit or proceeding) is asserted by such director,
officer or controlling person of the Company in connection with the securities
being registered, the Company 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.
Item 16. Exhibits.
The following exhibits are hereby filed with the Commission with the
Company's Registration Statement on Form S-3.
<TABLE>
<CAPTION>
<S> <C>
5.1 - Opinion of David S. Klarman, Esq.
23(a) - Consent of Haskell & White LLP
23(b) - Consent of David S. Klarman, Esq. is included in the opinion filed as Exhibit 5.1
</TABLE>
Item 17. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement to include any
material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) 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.
(c) 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 Registrant's Bylaws, indemnification
agreements, 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.
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the Company,
pursuant to the foregoing provisions, or otherwise, the Company 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 Company of expenses incurred or
paid by a director, officer or controlling person of the Company in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Company 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.
<PAGE>
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
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 San Ramon, California on the 16th day of September, 1999.
U.S. Wireless Corporation
By: \s\ Dr. Oliver Hilsenrath
Dr. Oliver Hilsenrath
Chief Executive Officer
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 dates indicated.
<TABLE>
<CAPTION>
<S> <C> <C>
\s\ Dr. Oliver Hilsenrath Chief Executive Officer 09/16/99
Dr. Oliver Hilsenrath President and director Date
\s\ Dennis Francis Director 09/16/99
Dennis Francis Date
\s\ Barry West Director 09/16/99
Barry West Date
\s\ David Tamir Director 09/16/99
David Tamir Date
\s\ Irwin Gross Director 09/16/99
Irwin Gross Date
</TABLE>
Exhibit 5.1
Opinion of David S. Klarman, Esq.
DAVID S. KLARMAN
2303 Camino Ramon, Suite 200
San Ramon, CA 94583
Board of Directors September 21, 1999
U.S. Wireless Corporation
2303 Camino Ramon, Suite 200
San Ramon, CA 94583
Re: U.S. Wireless Corporation
Registration Statement on Form S-3
File No. 333-82313
Gentlemen:
I have acted as counsel to U.S. Wireless Corporation (the "Company"), a
Delaware corporation, in connection with its registration, pursuant to a
registration statement on Form S-3 (the "Registration Statement"), of 2,000,000
shares (the "Shares") are issuable upon the exercise of options granted to the
officers, directors and employees of the Company pursuant to option agreements.
For purposes of this opinion letter, I have examined copies of the
following documents:
An executed copy of the Registration Statement. A form copy of the Company
option agreement. The Certificate of Incorporation of the Company, as amended.
The By-laws of the Company, as amended.
8. Resolutions of the Board of Directors of the Company.
In my examination of the aforesaid documents, I have assumed the
genuineness of all signatures, the legal capacity of natural persons, the
authenticity, accuracy and completeness of all documents submitted to us as
originals, and the conformity with the original documents of all documents
submitted to us as certified, telecopied, photostatic, or reproduced copies.
This opinion letter is given, and all statements herein are made, in the context
of the foregoing.
This opinion letter is based as to matters of law solely on Delaware
corporate law. I express no opinion herein as to any other laws, statutes,
regulations, or ordinances.
Based upon, subject to, and limited by the foregoing, I am of the opinion
that the Shares, when issued and delivered in the manner and on the terms
contemplated in the Registration Statement and stock option agreements (with the
Company having received the consideration therefor as specified in accordance
with applicable law), will be validly issued, fully paid and non-assessable
under Delaware corporate law.
I assume no obligation to advise you of any changes in the foregoing
subsequent to the delivery of this opinion letter. This opinion letter has been
prepared solely for your use in connection with the filing of the Registration
Statement on or about the date of this opinion letter, and should not be quoted
in whole or in part or otherwise be referred to, nor be filed with or furnished
to any governmental agency or other person or entity, without the prior written
consent of this firm.
I hereby consent to the filing of this opinion letter as Exhibit 5.1 to the
Registration Statement. In giving this consent, I do not thereby admit that I am
an "expert" within the meaning of the Securities Act of 1933, as amended.
Very truly yours,
David S. Klarman, Esq.
Vice President and General Counsel
<PAGE>
Exhibit 23(a)
Consent of Haskell & White LLP
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the incorporation, by reference, in this Amendment No. 1 to
the Registration Statement of U.S. Wireless Corporation on Form S-3 of our
report dated May 13, 1999 appearing in the Annual Report on Form 10-KSB of U.S.
Wireless Corporation for the year ended March 31, 1999, and to the reference to
us under the heading "Experts" in the Prospectus, which is part of this
Registration Statement.
HASKELL & WHITE LLP
Newport Beach California
September 21, 1999
