<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 13, 1996
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
-------------------------
AMERICAN TELECASTING, INC.
(Exact name of registrant as specified in its charter)
-------------------------
<TABLE>
<S> <C> <C>
DELAWARE 4841 54-14869888
(State or other jurisdiction (Primary Standard Industrial Classification (I.R.S. Employer
of incorporation or organization) Code Number) Identification No.)
</TABLE>
-------------------------
5575 TECH CENTER DRIVE, SUITE 300
COLORADO SPRINGS, COLORADO 80919
(719) 260-5533
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
-------------------------
ROBERT D. HOSTETLER
PRESIDENT AND CHIEF EXECUTIVE OFFICER
AMERICAN TELECASTING, INC.
5575 TECH CENTER DRIVE, SUITE 300
COLORADO SPRINGS, COLORADO 80919
(719) 260-5533
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
-------------------------
Copies to:
ROBERT N. JENSEN, ESQ.
MCDERMOTT, WILL & EMERY
1850 K STREET, N.W.
WASHINGTON, D.C. 20006
-------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon
as practicable after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or 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 conjunction 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.[ ]
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.[ ]
<PAGE> 2
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==========================================================================================================
Title of Each Proposed Maximum Proposed Maximum
Class of Amount to be Offering Price per Aggregate Offering Amount of
Securities to be Registered Share(1) Price(1) Registration Fee
Registered
- ----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common stock, par
value $.01 per share 4,082,436 shares $9 5/8 (2) $39,293,447 $13,550
==========================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration
fee.
(2) Calculated in accordance with Rule 457(c) under the Securities Act
based upon the last reported sale price of securities of the same
class on November 12, 1996, as quoted on the Nasdaq National Market.
-------------------------
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 THIS REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
<PAGE> 3
SUBJECT TO COMPLETION
November 13, 1996
***************************************************************************
* *
* 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. *
* *
***************************************************************************
[AMERICAN TELECASTING, INC. LOGO]
4,082,436 SHARES OF COMMON STOCK
-------------------------
All of the 4,082,436 shares (the "Shares") of Class A Common Stock,
par value $0.01 per share (the "Common Stock"), of American Telecasting,
Inc. ("ATI") offered hereby are being offered by the Selling Shareholders
named herein under the caption "Selling Shareholders" (the "Selling
Shareholders") and are presently outstanding. ATI will not receive any
proceeds from the sale of the Shares by the Selling Shareholders. The
Shares were, or will be, issued by ATI to the Selling Shareholders upon the
conversion of outstanding shares of ATI's Series B Convertible Preferred
Stock sold to the Selling Shareholders in a private placement in October
1996, as more fully described herein. This Prospectus is to be used in
connection with the sale of the Shares from time to time by the Selling
Shareholders.
ATI has agreed with the Selling Shareholders to register the Shares
offered hereby. ATI has also agreed to pay certain fees and expenses
incident to such registration. It is estimated that the fees and expenses
payable by ATI in connection with the registration of the Shares will be
approximately $50,000. ATI intends to keep the registration statement, of
which this Prospectus is a part, effective for a period of no longer than
365 days from the date of this Prospectus.
The Common Stock is quoted on The Nasdaq Stock Market (National
Market) under the symbol "ATEL." On November 12, 1996, the last reported
sale price for the Common Stock was $9 5/8 per share.
The Selling Shareholders may, from time to time, sell all or part
of the Shares offered hereby on the Nasdaq Stock Market or any other
securities exchange on which the Common Stock is then traded or in the
over-the-counter market, at prices and at terms then prevailing, or in
negotiated transactions or otherwise. The price at which any of the Shares
may be sold, and the commissions, if any, paid in connection with any sale,
are unknown and may vary from transaction to transaction. See "Plan of
Distribution." Upon the sale of the Shares offered hereby, Selling
Shareholders and participating agents, brokers or dealers may be deemed to
be "underwriters" within the meaning of the Securities Act of 1933 (the
"Securities Act") and commissions or discounts or any profit received on
the sale of such securities by them may be deemed to be underwriting
commissions or discounts under the Securities Act. The Selling
Shareholders have advised ATI that, as of the date hereof, they have made
no arrangements with any brokerage firm for the sale of their Shares.
-------------------------
THE COMMON STOCK OFFERED HEREBY INVOLVES A HIGH DEGREE OF RISK.
SEE "RISK FACTORS" BEGINNING ON PAGE 7 FOR A DISCUSSION OF CERTAIN FACTORS
THAT SHOULD BE CONSIDERED BY PROSPECTIVE INVESTORS.
-------------------------
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 , 1996.
<PAGE> 4
AVAILABLE INFORMATION
ATI has filed with the Securities and Exchange Commission (the
"Commission") a Registration Statement on Form S-3 (together with all
amendments, exhibits, schedules and supplements thereto, the "Registration
Statement") under the Securities Act, for the registration of the
securities offered hereby. This Prospectus, which constitutes a part of
the Registration Statement, does not contain all of the information set
forth in the Registration Statement, certain items of which are contained
in exhibits and schedules to the Registration Statement as permitted by the
rules and regulations of the Commission. For further information with
respect to ATI and the securities offered hereby, reference is made to the
Registration Statement, including the exhibits thereto, and financial
statements and notes incorporated by reference herein. Statements made in
this Prospectus concerning the contents of any document referred to herein
are not necessarily complete. With respect to each such document filed
with the Commission as an exhibit to the Registration Statement, reference
is made to the exhibit for a more complete description of the matter
involved, and each such statement shall be deemed qualified in its entirety
by such reference.
ATI is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith, files reports and other information with the Commission. Such
reports, proxy statements and other information filed by ATI with the
Commission may be inspected at the public reference facilities maintained
by the Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C.
20549, or at its regional offices located at the Northwestern Atrium
Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661 and 7
World Trade Center, Suite 1300, New York, New York 10048. Copies of such
material can be obtained from the public reference section of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed
rates.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents have been filed by ATI with the Commission
pursuant to the requirements of the Exchange Act and are hereby
incorporated herein by reference and made a part of this Prospectus:
(i) ATI's Annual Report on Form 10-K for the fiscal year ended
December 31, 1995;
(ii) ATI's Proxy Statement for its 1996 Annual Meeting of
Stockholders;
(iii) ATI's Quarterly Report on Form 10-Q for the quarterly
period ended March 31, 1996;
(iv) ATI's Quarterly Report on Form 10-Q for the quarterly
period ended June 30, 1996;
(v) ATI's Quarterly Report on Form 10-Q for the quarterly
period ended September 30, 1996;
(vi) ATI's Current Report on Form 8-K dated May 10, 1995;
(vii) ATI's Current Report on Form 8-K dated December 28, 1995;
(viii) ATI's Current Report on Form 8-K dated January 5, 1996;
(ix) ATI's Current Report on Form 8-K dated January 22, 1996;
(x) ATI's Current Report on Form 8-K dated April 1, 1996;
(xi) ATI's Current Report on Form 8-K dated July 29, 1996;
(xii) ATI's Current Report on Form 8-K dated August 7, 1996; and
(xiii) ATI's Current Report on Form 8-K dated August 7, 1996.
All reports and other documents filed with the Commission by ATI
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of this Prospectus and prior to the termination of
the offering made by this Prospectus shall be deemed to be incorporated by
reference into this Prospectus and to be a part hereof from the date of
filing of such documents. Any statement incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified, replaced,
or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other subsequently filed document that
also is or is deemed to be 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.
2
<PAGE> 5
ATI will provide without charge to each person to whom a copy of this
Prospectus is delivered, upon the written or oral request of such person, a
copy of any or all of the documents incorporated by reference herein (other
than exhibits to such documents, unless such exhibits are specifically
incorporated by reference into this Prospectus). Requests should be
directed to:
American Telecasting, Inc.
5575 Tech Center Drive, Suite 300
Colorado Springs, Colorado 80919
Attention: Securityholder Relations
Telephone number: (719) 260-5533
3
<PAGE> 6
THE COMPANY
GENERAL
The Company is a leading operator of wireless cable television
systems. As of September 30, 1996, the Company provided subscription
television service to approximately 179,500 subscribers through 39
operational systems located in 19 states. In addition to its operational
systems, as of September 30, 1996, the Company held significant channel
interests in 16 other markets where it expects to construct wireless cable
systems in the future, assuming, among other factors, the availability of
financing as discussed herein. As of September 30, 1996, the Company had
approximately 11.0 million Estimated Households in Service Area (as defined
herein) in its operational or target markets, although some of these
households will be "shadowed" and unable to receive the Company's service
due to certain characteristics of the particular market, such as
transmitter height and transmission power, terrain and foliage
("Line-of-Sight Constraints"). The percentage of Estimated Households in
Service Area that may be shadowed due to Line-of-Sight Constraints
generally ranges from 10 to 50% depending upon the market.
Wireless cable systems use microwave frequencies authorized by the
Federal Communications Commission (the "FCC") to broadcast from a single
transmission site to a receiving antenna at each customer's location.
Wireless cable technology provides a relatively low cost medium to transmit
video entertainment and information services to customers in single family
homes, multiple dwelling unit properties and commercial properties. Unlike
traditional franchise cable systems, wireless cable systems do not require
extensive coaxial cable networks, amplifiers and related equipment. As a
result, capital costs and transmission-related operating costs are
substantially less than those of a typical franchise cable system. Due to
this comparative economic advantage, the Company generally has been able to
charge 20 to 30% less than its franchise cable competitors. The Company
expects to maintain its cost and pricing advantage despite the deployment
of other emerging technologies, such as fiber optic systems and direct
broadcast satellite transmission, by existing and new competitors in the
subscription television industry.
The Company differentiates itself from its franchise cable
competitors both by utilizing its lower cost structure to offer customers
lower prices and by emphasizing its strong commitment to customer service.
The Company focuses primarily on developing wireless cable systems in
mid-sized markets where terrain and other conditions are conducive to
economical delivery of wireless cable services. The Company targets
value-conscious customers in both cabled and uncabled areas with its
programming, which includes ESPN, CNN, USA Network, Nickelodeon, Discovery,
regional sports channels, MTV, local broadcast channels and other "basic"
channels. The Company also offers Home Box Office, Showtime and The Disney
Channel as "premium" channels, as well as selected pay-per-view services.
During 1996, the Company has focused on managing its existing
systems through more efficient and cost-effective methods, planning for the
implementation of a digital technology strategy for video and other
services in select markets, and developing strategic alliances. During the
remainder of 1996 and in 1997, the Company intends to continue the growth
of certain of its analog wireless cable systems that management believes
can achieve stable customer bases with a favorable balance of customer
growth, subscriber capital investment, and expenses. Other systems
operated by the Company will not be managed for customer growth, but rather
for optimal cash flow from existing customers. In these systems, the
Company intends to focus its marketing efforts on new commercial and
multiple dwelling unit customers.
RECENT DEVELOPMENTS
Operating Results. The number of subscribers to the Company's
wireless cable service increased from 106,500 to 173,700 in 1995.
Approximately 37% of this growth was due to systems acquired during the
year and approximately 63% resulted from internal growth. During 1995, the
Company acquired eight operating wireless cable systems and completed
construction and commenced operation of systems in Ft. Collins and
Greeley, Colorado; Yuba City, California; and Lincoln, Nebraska. As of
September 30, 1996, the Company provided subscription television service to
approximately 179,500 subscribers.
4
<PAGE> 7
Financing Activities. In August 1995, the Company completed an
offering of units consisting of 14 1/2% Senior Discount Notes due 2005 and
warrants to purchase an aggregate of 943,956 shares of Common Stock ("the
1995 Units Offering"), resulting in net proceeds to the Company of
approximately $94.9 million. In May 1996, the Company completed a public
offering (the "1996 Primary Offering") of 1,700,000 shares of its Common
Stock at a price of $12 5/8 per share, resulting in net proceeds to the
Company of approximately $19.9 million. In August 1996, the Company
completed a private placement of 100,000 shares of Series B Convertible
Preferred Stock (the "1996 Private Placement"), resulting in net proceeds
to the Company of $9.4 million. On October 25, 1996, the Company completed
a private placement (the "October 1996 Private Placement") of an additional
150,000 shares of Series B Convertible Preferred Stock, resulting in net
proceeds to the Company of $14.3 million.
Acquisitions. Since May 1993, the Company has acquired 22
operational wireless cable systems and wireless cable channel rights in 18
additional markets. On January 30, 1995, the Company acquired an operating
wireless cable system in Medford, Oregon (the "Medford Acquisition"), which
served approximately 900 subscribers as of the date of acquisition. On
March 7, 1995, the Company acquired an operating wireless cable system in
Sheridan, Wyoming (the "Sheridan Acquisition"), which served approximately
600 subscribers as of the date of acquisition. On May 10, 1995, the
Company completed the acquisition of a 65% ownership interest in Fresno
MMDS Associates (the "Fresno Partnership"), a partnership that operates
wireless cable systems in each of Fresno, Visalia and Merced, California
(the "FWCTI Acquisition"). The systems acquired in the FWCTI Acquisition
collectively served approximately 14,200 subscribers as of the date of
acquisition. On July 14, 1995, the Company acquired an operating wireless
cable system in Redding, California, which served approximately 200
subscribers as of June 30, 1995. On September 15, 1995, the Company
acquired (the "Superchannels Acquisition") 58% of the outstanding common
stock of Superchannels of Las Vegas, Inc. ("Superchannels"). Superchannels
operates a wireless cable system in Las Vegas, Nevada, which served
approximately 4,300 subscribers as of the date of acquisition. On November
30, 1995, the Company acquired an operating wireless cable system serving
Rapid City, South Dakota (the "Rapid City Acquisition"), which served
approximately 4,500 subscribers as of the date of acquisition.
On June 28, 1996, the Company entered into a definitive agreement
to acquire wireless cable channel rights and certain other subscription
television assets in Cincinnati, Ohio (the "Cincinnati Acquisition") for
aggregate consideration of approximately $5.2 million (of which
approximately $2.2 million has been paid). Also on June 28, 1996, the
Company acquired certain of the Cincinnati subscription television assets,
and entered into a management agreement to operate the subscription
television assets that it has not yet acquired. The subscription
television assets acquired or to be acquired by the Company in connection
with the Cincinnati Acquisition served approximately 3,100 subscribers as
of June 28, 1996. On July 29, 1996, the Company and CS Wireless Systems,
Inc. ("CS") executed a non-binding letter of intent pursuant to which the
Company will exchange all of its wireless cable assets in Louisville,
Kentucky; Little Rock, Arkansas; Oklahoma City, Oklahoma and Wichita,
Kansas (the "ATI Systems") for all of CS's wireless cable assets in
Minneapolis, Minnesota; and Stockton, Modesto and Bakersfield, California
(the "CS Markets") plus approximately $5.5 million in cash (the "CS
Exchange"). The ATI Systems currently serve approximately 27,000 customers
in service areas consisting of approximately 1.3 million households. The
CS Markets currently serve approximately 13,500 subscribers in service
areas consisting of approximately 1.5 million households. In connection
with the CS Exchange, ATI will transfer the BTA (as defined herein) license
for the Wichita market to CS and CS will cause to be transferred to ATI the
BTA licenses for Minneapolis, Stockton, Modesto and Bakersfield. Except
as described above, as of the date of this Prospectus, the Company has no
written agreements, arrangements or understandings to acquire any material
wireless cable businesses or assets, although the Company continuously
pursues opportunities to acquire, sell or exchange businesses and channel
rights consistent with its business plan. There can be no assurance that a
definitive agreement will be reached with respect to the CS Exchange or
that the CS Exchange or the Cincinnati Acquisition will be consummated.
In October 1996, the Company completed the sale of its Yankton,
South Dakota wireless cable system and its wireless cable channel assets in
Sioux Falls, South Dakota for cash consideration totaling $3.0 million (of
which approximately $400,000 is being held in escrow pending completion of
certain post closing events).
5
<PAGE> 8
RBOC Investments. A significant recent development in the wireless
cable industry has been the investment by regional Bell operating companies
("RBOCs") in wireless cable companies. For example, during 1995, Bell
Atlantic and NYNEX invested $100.0 million in CAI Wireless Systems, Inc.
("CAI") and Pacific Telesis ("PacTel") acquired both Cross Country
Wireless, Inc. ("Cross Country") and Wireless Holdings, Inc. ("Wireless
Holdings") for aggregate purchase prices of approximately $175.0 million
each. The Company is pursuing opportunities to enter into strategic
relationships with RBOCs or other providers of telecommunications
services. Such relationships could involve, among other things, joint
ventures, sales or exchanges of stock or assets, or loans to or investments
in the Company by strategic partners. As of the date of this Prospectus,
the Company has not reached any agreements or understandings with respect
to such relationships, and there can be no assurance that any such
agreements or understandings will be reached.
BTA Auction. The Company participated in the FCC's recent auction
of the rights to apply for and obtain available Multipoint Distribution
Service ("MDS") licenses in 493 designated basic trading areas ("BTAs")
throughout the United States. The winning bidder in each BTA obtained the
exclusive right to apply for available MDS licenses in that BTA and will
receive the channel authorizations as long as it has paid the FCC the
balance due on its bid and its station proposals comply with the FCC's
interference requirements and other rules. However, in order to provide
wireless cable service in these markets, the BTA winner must secure the
right to use a site for a transmission facility and also may need to obtain
the consent of other parties for the acceptance of interference from its
proposed stations. The Company was the winning bidder in 59 BTAs and has
filed either applications for new stations or statements of intention
indicating its future plans with respect to each such BTA. The FCC must
approve the applications before the MDS authorizations will be issued.
Competing applications cannot be filed but the FCC will consider petitions
to deny the auction winners' applications. Petitions to deny or similar
pleadings have been filed against certain of the Company's post-auction
applications and statements of intention. The Company has filed responses
to such submissions with the FCC. To date, the FCC has issued public
notices announcing that it is ready to grant authorizations to the Company
for 55 of the BTAs for which the Company was the winning bidder and the
Company has paid the FCC the balance due on its bids for such BTAs. The
authorizations for many of these BTAs have not yet been issued by the FCC.
There can be no assurance that the FCC will approve all of the Company's
applications, and the Company cannot reasonably predict when such approvals
will be given, or, even if granted, whether the Company will ultimately
have access to a sufficient number of channels to have a viable system in
each BTA for which it was the winning bidder. Regardless of whether the
Company initially applied for additional MDS authorizations in any of its
BTAs, as long as the Company continues to hold the BTA rights, other
entities seeking new licenses or certain modifications to existing licenses
within the Company's BTAs must seek approval from the Company, as the BTA
owner. Similarly, to the extent the Company wishes to obtain new licenses
or certain modifications to its existing licenses in markets in which it
was not the BTA winner, it will be required to negotiate with the BTA owner
for approval of such licenses or modifications. See "Risk
Factors--Regulation."
Recent Legislation. On February 8, 1996, the Telecommunications
Act of 1996 (the "1996 Act") was enacted. Among other things, the 1996 Act
eliminates the cable/telephone cross-ownership restriction, allowing a
telephone company the option of providing video programming within its
telephone service area over a cable system or other video delivery system.
Conversely, cable companies are now permitted to provide telephone
services. As a result of these developments, the Company may experience
increased competition from telephone companies, which have significantly
greater financial and other resources than the Company.
ATI was incorporated in Delaware in December 1988 and has its
principal executive offices at 5575 Tech Center Drive, Suite 300, Colorado
Springs, Colorado 80919. ATI's telephone number is (719) 260-5533. ATI
operates its wireless cable systems through its subsidiaries. Except as
otherwise indicated, references in this prospectus to ATI refer solely to
American Telecasting, Inc. and references to the "Company" refer to
American Telecasting, Inc. and its subsidiaries collectively.
6
<PAGE> 9
RISK FACTORS
In addition to the other information contained or incorporated by
reference in this Prospectus, the following factors should be considered
carefully in evaluating an investment in the Common Stock offered by this
Prospectus.
Cash Flow Required to Service Substantial Indebtedness. The Company
is highly leveraged. As of September 30, 1996, the Company had $275.5
million of outstanding indebtedness and stockholders' equity of $29.7
million. The indentures (the "Indentures") relating to the Company's 14
1/2% Senior Discount Notes due 2004 (the "2004 Notes") and the 2005 Notes
(collectively, the "Notes") may permit the Company to incur additional
indebtedness in the future, subject to certain limitations. Subject to the
terms of the Indentures, certain indebtedness of ATI's subsidiaries may be
secured by the assets of ATI and its subsidiaries. The Company has one
revolving credit facility (the "Credit Facility") under which maximum
potential borrowings currently aggregate $8.5 million, although no amounts
are currently available for borrowing under such Credit Facility.
Effective June 30, 1996, the Credit Facility was amended (the "Amended
Agreement") to, among other things, modify certain of the financial and
other operating covenants specified in the original agreement. In
addition, past violations of certain financial and other operating
covenants associated with the Credit Facility were waived by the bank. In
exchange for the bank's entering into the Amended Agreement, the Company
agreed to cause the bank's participation in the Credit Facility to be
eliminated, by March 31, 1997, through prepayment by the Company of all
amounts due, assignment of the bank's participation to a third party lender
or lenders, which may include ATI, or some combination of the foregoing.
In connection therewith, as of September 30, 1996 ATI has purchased, in the
aggregate, a $3.5 million participation in the Credit Facility from the
bank. The bank's participation in the Credit Facility is required to be
further reduced by $2.0 million on December 31, 1996, with any remaining
participation by the bank to be fully reduced by March 31, 1997. As of
September 30, 1996, the Company was not in compliance with the maximum
indebtedness per subscriber covenant of the Credit Facility. The Company
and the bank have agreed in principle upon the terms of an amendment to the
Credit Facility which would waive such noncompliance and modify certain
future financial covenants. In connection with the amendment, ATI has
agreed to guaranty the outstanding indebtedness under the Credit Facility.
Effectiveness of the amendment is subject to definitive documentation. As
of September 30, 1996, $5.0 million was outstanding under the Credit
Facility. Outstanding borrowings under the Credit Facility bear interest
at the bank's prime rate plus 2.25% (10.50% at September 30, 1996).
Since inception, the Company's cash flow from operations has been
insufficient to cover its fixed charges. There can be no assurance that
ATI will be able to generate sufficient cash flow in the future to cover
required interest and principal payments associated with its outstanding
indebtedness. Commencing December 15, 1999, cash interest on the 2004
Notes will be payable at the rate of 14.5% per annum (approximately $28.5
million per annum). Commencing February 15, 2001, cash interest on the
2005 Notes will be payable at the rate of 14.5% per annum (approximately
$29.2 million per annum). The full principal amount of the 2004 Notes,
which is approximately $196.9 million, will become due on June 15, 2004.
The full principal amount of the 2005 Notes, which is approximately $201.7
million, will become due on August 15, 2005. Many factors, some of which
will be beyond ATI's control, will affect its cash flow from operations
and, thereby, its ability to service its indebtedness. If ATI were to be
unable to meet interest and principal payments on its outstanding
indebtedness in the future, it may, depending upon the circumstances which
then exist, find it necessary to seek additional equity or debt financing,
refinance its existing indebtedness or sell assets to raise funds to repay
its indebtedness. Any such actions may require the approval of existing
and future lenders to ATI or its subsidiaries or be limited by the terms of
the instruments relating to their indebtedness, including the Indentures.
There can be no assurance that sufficient equity or debt financing would be
available or, if such financing were available, that it would be on terms
acceptable to ATI. In addition, there can be no assurance that ATI would
be able to refinance its existing indebtedness or that sufficient funds
could be raised through asset sales.
History of Losses and Negative Operating Cash Flow. The Company has
incurred negative cash flow from operations, as well as operating and net
losses, in each year since its inception in 1988. As of September 30,
1996, the Company had an accumulated deficit of approximately $149.3
million. Losses incurred since inception are attributable primarily to
start-up costs, interest expense and depreciation of assets required to
develop wireless cable systems in various markets. The Company expects to
incur additional operating and net losses in the foreseeable future,
depending upon its rate of growth and future acquisitions. There can be no
assurance that the Company will ever generate sufficient operating revenues
to achieve or sustain positive cash flow from operations.
7
<PAGE> 10
Significant Future Capital Needs. The development of wireless cable
systems requires substantial investment on an ongoing basis to finance
capital expenditures and other expenses necessary to achieve subscriber
growth. The Company will require additional equity, debt or other
financing to fund its projected needs for working capital (including debt
service), as well as its capital expenditure requirements for its existing
systems and markets not yet launched (including costs associated with
conversion of certain of its existing systems to digital operations).
Management plans to meet its future cash needs through a combination of
equity, subordinated debt and bank financing, and from cash generated from
operations. In addition, the Company may finance its future development of
wireless cable systems, acquisitions of wireless cable systems and channel
rights, and general corporate activities through joint ventures or other
arrangements. Without such additional financing, the Company will be
required to significantly curtail its operations and expansion plans. As a
result of certain covenants in the Indentures, the Company's additional
borrowing capacity (other than debt which may be issued to a strategic
investor that is subordinated to the Notes) was limited to approximately
$5.7 million as of September 30, 1996. Accordingly, the Company's ability
to finance ongoing working capital and system expansion requirements from
borrowings under existing or future credit facilities is currently limited
by the terms of the Indentures, and may also be limited by the Company's
inability to generate sufficient earnings to cover its fixed charges. As a
result, the bulk of the Company's current financing requirements can be met
only through equity financing or subordinated debt provided by a strategic
investor, and not through other sources of debt financing. See " -- Cash
Flow Required to Service Substantial Indebtedness." There can be no
assurance that the Company will be able to obtain additional debt or equity
capital on satisfactory terms, or at all, to meet its future financing
needs. The Company's future capital requirements will depend upon a number
of factors, including marketing expenses, staffing levels, and subscriber
growth and turnover, as well as other factors that are not within the
Company's control, such as competitive conditions, programming costs and
capital costs. The lack of available additional capital could have a
significant negative effect on the Company's growth rate and its ability to
compete successfully in the subscription television industry.
Possible Non-Consummation of Strategic Relationships. The Company
is pursuing opportunities to enter into strategic relationships with RBOCs
or other providers of telecommunications services. As of the date of this
Prospectus, the Company has not reached any agreements or understandings
with respect to such relationships, and there can be no assurance that any
such agreements or understandings will ever be reached. If any agreements
or understandings are reached, consummation of such strategic relationships
likely will require the consent of holders of the Notes.
Limited Operating History; Early Stage Company. The Company first
began providing subscription television service in December 1989.
Prospective investors, therefore, have limited historical financial
information about the Company upon which to base an evaluation of the
Company's performance and an investment in the Common Stock. In addition,
prospective investors should be aware of the difficulties encountered by
enterprises in early stages of development, especially in view of the
intense competition that is characteristic of the subscription television
industry. Given the Company's limited operating history, there can be no
assurance that it will be able to develop a sufficiently large subscriber
base to achieve or sustain positive cash flow from operations and to
compete successfully in the subscription television industry.
Prohibition on Subsidiaries Transferring Funds to ATI. The Credit
Facility contains covenants prohibiting certain of ATI's subsidiaries from
transferring funds in the form of cash dividends, loans or advances to ATI.
ATI's ability to use operating cash flow from one system to support
development of other systems and to pay ATI's administrative expenses is
limited by such covenants. In addition, the Indentures prohibit ATI from
declaring cash dividends, among other things.
Competition and New Technologies. The subscription television
industry is a highly competitive business. Wireless cable systems
typically compete with both franchise cable companies (locally authorized
providers of subscription television service that use coaxial cable, fiber
optic or other continuous network distribution media to deliver
programming) and satellite delivery systems, although recent regulatory
changes and technological developments have encouraged new competitors,
such as telephone companies, to enter the subscription television business.
Many of the Company's existing or potential competitors have substantially
greater name recognition and financial, technical and human resources than
the Company and may be better equipped to develop and operate systems
providing subscription television service. While the Company believes that
its ability to charge lower prices provides a competitive advantage,
aggressive price competition by any existing or new company in the
subscription television industry would have a material adverse effect on
the Company's results of operations and financial condition. Subscription
television providers also compete with conventional television stations and
video rental stores, among
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others. In addition, within each market, the Company initially must
compete with others to acquire, from the limited number of channel licenses
issued, a minimum number of channels needed to establish a viable system.
New and advanced technologies for the subscription television
industry, such as digital compression, fiber optic networks, direct
broadcast satellite transmission, and 28 GHz microwave transmission, are in
various stages of development. These technologies are being developed and
supported by entities, such as franchise cable companies and regional
telephone companies, that have significantly greater financial and other
resources than the Company. When deployed, these new technologies could
have a material adverse effect on the demand for wireless cable service.
There can be no assurance that the Company will be able to compete
successfully with existing competitors or new entrants in the market for
subscription television services.
Regulation. The right to broadcast on wireless cable frequencies is
heavily regulated by the FCC. In each metropolitan statistical area, the
FCC has authorized only up to 33 channels for transmission of wireless
cable programming. Up to 13 channels typically can be owned by commercial
operators for full-time usage without programming restrictions. The
remaining 20 channels typically are authorized for educational purposes,
although excess capacity can be leased by wireless cable operators, subject
to certain programming restrictions. Licenses for both commercial and
educational channels are granted based upon applications filed with the
FCC. FCC approval also is required for assignment of existing licenses or
transfer of control of license holders. Recently, the FCC conducted an
auction of the rights to apply for and obtain available MDS licenses in 493
designated BTAs. While the Company was the winning bidder in 59 BTAs, it
did not win the BTA rights in all of its operational or target markets. To
the extent that the Company wishes to obtain new licenses or certain
modifications to its existing licenses in these BTAs, it will be required
to negotiate with the BTA owner for approval of such licenses or
modifications. The requirement for approval of new licenses and certain
license modifications by the FCC, as well as the BTA owner in BTAs not
owned by the Company, could delay or impede the Company's ability to launch
new systems and/or expand the capacity of its existing systems. FCC
licenses are limited in duration and subject to renewal procedures. While
current FCC rules are intended to promote development of a competitive
subscription television industry, the rules and regulations affecting the
subscription television industry could change, and any future changes in
FCC rules, regulations, policies or procedures could have a negative impact
on the industry as a whole and the Company in particular.
The FCC has recently adopted rules that would permit MDS and ITFS
facilities to operate using digital compression. The Company is preparing
and filing applications to permit certain of its operational systems to
convert to digital operations. While digital compression will allow the
Company to increase the variety and amount of the programming that it
provides, there is substantial cost involved in applying for and
constructing digital systems.
The Commission has recently adopted a rule which prohibits state,
local and nongovernmental restrictions that impair the installation and
signal reception of certain MDS and ITFS antennas, unless such regulations
are for safety or historical preservation purposes. This rule should
enhance the Company's ability to provide service to subscribers.
The Communications Act of 1934 (the "Communications Act") provides
that certain types of FCC licenses shall not be held directly by
corporations of which non-U.S. citizens or entities ("Aliens") own of
record or vote more than 20% of the capital stock. In situations in which
such an FCC licensee is directly or indirectly controlled by another
corporation, Aliens may own of record or vote no more than 25% of the
controlling corporation's capital stock. ATI's Restated Certificate of
Incorporation requires that all of its officers and directors be U.S.
citizens and empowers the Board of Directors to redeem ATI's outstanding
capital stock to the extent necessary to prevent the loss or secure the
reinstatement of any license or franchise from any governmental agency if a
situation arises whereby more than the permitted number of outstanding
shares of capital stock of ATI are owned or voted by Aliens. Moreover, the
Restated Certificate of Incorporation provides that, in such a situation,
no transfers of shares may be made to Aliens and the shares which caused
the Company to exceed the statutory limit may neither be voted, receive
dividends nor be entitled to any other rights, until transferred to U.S.
citizens.
On February 8, 1996, the 1996 Act became law. Among other things,
the 1996 Act eliminates the cable/telephone cross-ownership restriction,
allowing a telephone company the option of providing video programming
within its telephone service area over a cable system or other video
delivery system. Conversely, cable companies are now permitted to provide
telephone services. The 1996 Act also limits and, in some cases,
eliminates FCC regulation of cable rates established by the Cable
Television Consumer Protection and Competition Act of 1992 (the "1992 Cable
Act"), depending upon the size of the cable system and whether the system
is subject to effective competition and the nature of the rate. The 1996
Act also provides cable operators with greater flexibility to offer lower
rates to certain of
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<PAGE> 12
their customers and, consequently, the ability to provide discounts to
subscribers served, or potentially served, by the Company. The 1996 Act
vests the FCC with exclusive jurisdiction over the provision of DBS service
and preempts the authority of local authorities to impose certain taxes on
such service. Because the FCC has not yet promulgated rules implementing
many of the provisions of the 1996 Act, management is unable to predict at
this time the impact of the 1996 Act on the Company in particular or the
wireless cable industry as a whole.
Wireless cable operators are subject to regulation by the Federal
Aviation Administration and the FCC with respect to construction of
transmission towers and certain local zoning regulations affecting
construction of towers and other facilities. There also may be
restrictions imposed by local authorities, neighborhood associations and
other similar organizations limiting the use of certain types of reception
equipment used by the Company.
Legislation has recently been introduced in several states that
would authorize state and local authorities to impose taxes on providers of
video programming, including wireless cable operators, based upon their
gross receipts. Because the nature of any such legislation if enacted, is
unknown, the Company cannot predict what impact such legislation would have
upon its results of operations and financial condition.
Future changes in the foregoing regulations, or any other
regulations applicable to the Company, could have a material adverse effect
on the Company's results of operations and financial condition.
Dependence Upon Program Material and Channel Lease Agreements. The
Company has fixed-term contracts with various program suppliers, such as
ESPN, HBO and Showtime. These contracts generally cover a period of two
years and are typically renewable upon expiration. Although the Company
has no reason to believe that these contracts will be terminated or will
not be renewed upon expiration, if the contracts are not renewed for any
reason, the Company will be required to seek program material from other
sources. While recent legislation requires that vertically integrated
multiple cable system operators sell programming to their competitors on
fair and reasonable terms, that legislation is the subject of various legal
challenges. If the legislation were to be found unconstitutional or were
superseded by legislation adopting less restrictive requirements for
programmers, programmers might raise their prices or make their programs
unavailable to the Company.
The Company is also dependent on long-term leases with third
parties for the majority of its wireless cable channels. Under FCC rules,
the term of certain of the leases cannot exceed the term of the license
granted by the FCC to the lessor (typically ten years). While many of the
Company's leases provide for automatic renewals, or require the parties to
negotiate renewals in good faith upon expiration, there can be no assurance
that these leases will be renewed or extended beyond their current terms or
on terms satisfactory to the Company. Similarly, the failure by these
lessors to comply with the terms of their FCC authorizations or the FCC's
rules could result in the termination or forfeiture of their authorizations
or denial of their renewal by the FCC. Such terminations, forfeitures or
denials of renewal by the FCC or failure to obtain renewal of channel lease
agreements would result in the Company's having to reduce the amount of
programming it offers.
Difficulties and Uncertainties of a New Industry. While wireless
cable television is not a new technology, it is a new industry with a short
operating history. Potential investors should be aware of the difficulties
and uncertainties that are normally associated with new industries, such as
lack of consumer acceptance, difficulty in obtaining financing, increasing
competition, advances in technology and changes in laws and regulations.
There can be no assurance that the wireless cable industry will develop and
survive as a viable industry.
Management of Growth. The Company has experienced rapid growth in
its number of employees, the scope of its operating and financial systems,
and the geographic area of its operations. This growth has increased the
operating complexity of the Company, and has increased the level of
responsibility for both existing and new management personnel. In managing
this growth, the Company will be required to continue to improve its
operating and financial systems and to expand, train and manage its
employee base. There can be no assurance that the Company will be able to
improve its operating and financial systems to keep pace with its expected
growth or to attract and retain a sufficient number of qualified employees
to meet the Company's needs during its growth.
Physical Limitations of Wireless Cable Transmission. In order to be
effective, wireless cable transmission requires a clear "line-of-sight"
between the microwave transmitter located on the operator's transmission
antenna and the microwave receiver located on a subscriber's home or
building. A portion of the homes within a wireless cable operator's
broadcast signal area may be unable to receive wireless cable service due
to signal obstructions such as hills,
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tall buildings and dense foliage. Certain of these signal blockages can be
ameliorated by increasing transmission power and using engineering
techniques such as pre-amplifiers, beam benders and signal repeaters, which
increase the cost per subscriber. Franchise cable operators do not have
line-of-sight concerns and, therefore, may have a competitive advantage
over wireless cable operators in those areas where the reception of
wireless cable signals is difficult or impractical.
Minority Interests in Certain Subsidiaries. ATI is a holding
company that conducts most, and may in the future conduct all, of its
business through its subsidiaries. ATI's subsidiaries include
non-operating subsidiaries that hold channel interests, subsidiaries that
operate systems, and subsidiaries that do both. Certain of ATI's
subsidiaries are not wholly-owned. Although ATI has a sufficient interest
in each of its subsidiaries to be able to exercise control over them, ATI
may owe a fiduciary duty to the holders of various minority interests in
its subsidiaries, and may be required to deal with such subsidiaries on
terms no less favorable to such subsidiaries than could be obtained from
unaffiliated third parties.
Control by Existing Stockholder. As of September 30, 1996, Donald
R. DePriest, Chairman of the Board of ATI, controlled directly or
indirectly 24.8% of the total outstanding Common Stock (including the 11.8%
which was held of record by MCT Investors, L.P.). Thus, Mr. DePriest holds
a substantial ownership interest in ATI and may be in a position to
significantly influence the election of ATI's directors and otherwise
control the business and affairs of the Company.
Anti-Takeover Provisions. ATI's Restated Certificate of
Incorporation, the Delaware General Corporation Law, the Indentures and the
Credit Facility contain provisions that might diminish the likelihood that
a potential acquiror would make an offer for the Common Stock, impede a
transaction favorable to the interests of stockholders or make it difficult
to effect a change in control of ATI and replace incumbent management. The
existence of these provisions may have a negative effect on the market
price of the Common Stock. See "Description of Capital Stock-- Certain
Charter Provisions and Delaware Law."
Possible Volatility of Price of the Common Stock. The market price
of the Common Stock has been, and may continue to be, subject to wide
fluctuations in response to quarterly variations in the Company's results
of operations, changes in estimates by analysts, conditions in the wireless
cable industry, or general market or economic conditions. In addition, in
recent years the stock market has experienced extreme price and volume
fluctuations. These fluctuations have had a substantial effect on the
market prices for many emerging growth companies and are often unrelated to
the operating performance of the specific companies. Such market
fluctuations could adversely affect the price of the Common Stock.
Shares Eligible for Future Sale. The sale, or availability for
sale, of substantial amounts of Common Stock in the public market in
connection with or subsequent to this offering could adversely affect the
prevailing market price of the Common Stock and could impair the Company's
ability to raise additional capital through the sale of its securities. As
of September 30, 1996, 19,852,912 shares of Common Stock were outstanding.
Of such 19,852,912 shares, 11,191,016 shares are, and the shares sold
pursuant to this Prospectus will be, freely tradeable by persons other than
affiliates of the Company without restriction or further registration under
the Securities Act. The remainder of the outstanding shares of Common
Stock (other than certain shares issued in connection with the Company's
employee benefit plans) are currently considered "restricted" or "control"
securities within the meaning of Rule 144 under the Securities Act, and may
not be sold in the absence of registration under the Securities Act unless
an exemption from registration is available, including the exemption
contained in Rule 144. In addition, as of September 30, 1996, there were
outstanding options and warrants to purchase 2,572,856 shares. Of such
options and warrants, options and warrants to purchase 2,231,740 shares of
Common Stock currently are exercisable. Assuming exercise of all such
options and warrants, 14,000 shares would be restricted or control
securities. Holders of 8,659,376 shares of restricted and control Common
Stock (excluding shares offered by the Selling Shareholders pursuant to
this Prospectus) have been granted registration rights with respect to such
Common Stock or the Common Stock issuable upon the exercise of such options
and warrants. See "Description of Capital Stock--Shares Eligible for
Future Sale; Registration Rights."
Reliance on Existing Management Team. The Company is dependent upon
the efforts and abilities of its existing management team. The loss of one
or more members of the Company's management team at any one time could have
a material adverse effect upon the Company. The Company currently has
employment agreements with Robert D. Hostetler, its President and Chief
Executive Officer, and David K. Sentman, its Senior Vice President and
Chief Financial Officer. The Company does not maintain any key man life
insurance with respect to any of its
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executive officers or key employees. The Company's success in expanding
its operations will depend upon its ability to attract and retain qualified
employees to develop and operate its wireless cable systems.
Dividend Policy. ATI has never declared or paid any cash dividends
on the Common Stock and does not expect to declare any such dividends in
the foreseeable future. Payment of any future dividends will depend upon
earnings and capital requirements of the Company, the Company's debt
facilities and other factors the Board of Directors considers appropriate.
ATI currently intends to retain earnings, if any, to support continuing
growth and expansion. ATI's ability to declare cash dividends on the
Common Stock is affected by certain covenants in the Indentures. The
ability of ATI's subsidiaries to declare dividends and transfer funds in
the form of cash dividends, loans or advances to ATI is restricted by the
Credit Facility.
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of the
Shares offered hereby. All proceeds from the sale of the Shares will be
for the account of the Selling Shareholders described below. See "Selling
Shareholders."
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SELLING SHAREHOLDERS
The Shares offered hereby were, or will be, issued by ATI to the
Selling Shareholders upon the conversion of outstanding shares of ATI's
Series B Convertible Preferred Stock sold to the Selling Shareholders in
the October 1996 Private Placement. The Shares offered hereby have been
registered pursuant to the Company's agreement that it would register the
shares of Common Stock issued to the Selling Shareholders. See
"Description of Capital Stock - Shares Eligible For Future Sale;
Registration Rights." Certain costs, expenses and fees in connection with
the registration of the Shares will be borne by the Company.
The following table sets forth, as of November 8, 1996, the name of
each of the Selling Shareholders, the nature of any position, office, or
other material relationship which such Selling Shareholder has had with the
Company or its affiliates within the past three years, and the number of
Shares owned by each such Selling Shareholder as of the date of this
Prospectus. The table also sets forth the maximum number of shares of
Common Stock owned by each Selling Shareholder that may be offered for sale
by this Prospectus, and the number and percentage of shares of Common Stock
to be held by each such Selling Shareholder after completion of the
offering assuming the sale of the maximum number of Shares offered hereby.
No statement contained herein nor the delivery of this Prospectus in
connection with a sale by any Selling Shareholder shall be deemed an
admission by the Company or such Selling Shareholder that such Selling
Shareholder is in a "control" relationship with the Company within the
meaning of the Securities Act.
<TABLE>
<CAPTION>
SHARES BENEFICIALLY NUMBER OF SHARES
OWNED PRIOR TO THE BENEFICIALLY OWNED
OFFERING MAXIMUM NUMBER OF AFTER THE OFFERING
NAME OF SELLING ---------------------- SHARES TO BE SOLD IN --------------------
SHAREHOLDER (1) NUMBER PERCENT THE OFFERING NUMBER PERCENT
- --------------- ------ ------- ------------ ------ -------
<S> <C> <C> <C> <C> <C>
Wartone Property Holdings
Ltd. 680,406 (2) 3.1% 1,360,812 (2) - -
Haletko Ltd. 680,406 (2) 3.1% 1,360,812 (2) - -
Tarian Properties Ltd. 680,406 (2) 3.1% 1,360,812 (2) - -
</TABLE>
- -----------------------
(1) Except as otherwise noted, none of the Selling Shareholders is a
director or officer of the Company or has had any other material
relationship with the Company within the past three years, except as a
shareholder.
(2) This assumes conversion of the Series B Preferred Stock using a
prevailing market price of $9.21. In order to account for potential
decreases in the prevailing market price of the Common Stock between
the date of the October 1996 Private Placement and the date of actual
conversion, pursuant to the Stock Purchase Agreement governing the
October 1996 Private Placement (the "Stock Purchase Agreement"), the
Company agreed to register twice as many shares of Common Stock as
would have been received by such shareholders if conversion had
occurred on the day prior to filing the Registration Statement.
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DESCRIPTION OF CAPITAL STOCK
The authorized capital stock of ATI consists of 43,000,000 shares,
of which 30,000,000 shares are Common Stock, par value $0.01 per share,
10,000,000 shares are Class B Common Stock, par value $0.01 per share (the
"Class B Common Stock") and 3,000,000 shares are preferred stock, par value
$0.01 per share (the "Preferred Stock"). Of the Preferred Stock, 500,000
shares are currently designated as Series B Convertible Preferred Stock
(the "Series B Preferred Stock"). As of November 8, 1996, there were
19,852,912 shares of Common Stock outstanding and held of record by
approximately 320 stockholders, no shares of Class B Common Stock
outstanding and 150,000 shares of Series B Preferred Stock outstanding. In
addition, as of November 8, 1996, warrants to purchase an aggregate of
1,858,856 shares of Common Stock were outstanding. All of the outstanding
warrants are currently exercisable. A total of 1,525,000 shares of Common
Stock are reserved for issuance to officers and key employees of the
Company under the American Telecasting, Inc. 1990 Stock Option Program, as
amended (the "Stock Option Plan"). As of November 8, 1996, options to
acquire 714,000 shares of Common Stock were outstanding, 230,600 of which
were vested.
COMMON STOCK
The issued and outstanding shares of Common Stock are validly
issued, fully paid and nonassessable. Subject to the right of holders of
Preferred Stock, if any, the holders of outstanding shares of Common Stock
are entitled to receive dividends out of assets legally available therefor
at such times and in such amounts as the Board of Directors may from time
to time determine. The shares of Common Stock are neither redeemable nor
convertible, and the holders thereof have no preemptive or subscription
rights to purchase any securities of ATI. Upon liquidation, dissolution or
winding up of ATI, the holders of Common Stock are entitled to receive, pro
rata, the assets of ATI that are legally available for distribution, after
payment of all debts and other liabilities and subject to the prior rights
of any holders of Preferred Stock then outstanding. Each outstanding share
of Common Stock is entitled to one vote on all matters submitted to a vote
of stockholders. There is no cumulative voting in the election of
directors.
The Class B Common Stock is identical in all respects to the Common
Stock except that the holders of Class B Common Stock, if any, are not
entitled to vote on any matters submitted to the stockholders for approval,
except as otherwise provided or required by law.
SHARES ELIGIBLE FOR FUTURE SALE; REGISTRATION RIGHTS
As of September 30, 1996, 19,852,912 shares of Common Stock were
outstanding and no shares of Class B Common Stock were outstanding. Of
such 19,852,912 shares of Common Stock, 11,191,016 shares are, and the
shares sold pursuant to this Prospectus will be, freely tradeable without
restriction or further registration under the Securities Act, unless
acquired by "affiliates" (as defined in Rule 144 of the Securities Act), in
which case such shares are subject to the resale limitations of Rule 144.
The remainder of the outstanding shares of Common Stock (other than certain
shares issued in connection with the Company's employee benefit plans) are
currently considered "restricted" or "control" securities within the
meaning of the Securities Act and may not be resold in the absence of
registration under the Securities Act unless an exemption from registration
is available, including the exemption provided by Rule 144.
In addition to the shares referred to above which are freely
tradeable without restriction or further registration under the Securities
Act, the Company has registered under the Securities Act an aggregate of
1,525,000 shares reserved for issuance under the Stock Option Plan, thus
permitting the resale of such shares upon the exercise of options granted
under the plan by non-affiliates in the public market without restriction
under the Securities Act, subject to vesting requirements of the Company.
In addition, as of September 30, 1996, there were outstanding warrants to
purchase 1,858,856 shares of Common Stock. All of such warrants are
currently exercisable. Assuming exercise of all such warrants, no shares
would be restricted or control securities.
Pursuant to a series of registration rights agreements (the
"Registration Rights Agreements"), certain stockholders of the Company are
entitled to rights with respect to the registration under the Securities
Act of approximately 8,659,376 shares of outstanding Common Stock
(excluding the shares offered pursuant to this Prospectus). While the
precise terms of the Registration Rights Agreements vary, the stockholders
who are party to such agreements generally have a combination of demand and
piggyback registration rights.
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ATI can make no prediction as to the effect, if any, that sales of
shares of its Common Stock, or the availability of shares for future sale,
will have on the market price of the Common Stock prevailing from time to
time. Sales of substantial amounts of Common Stock in the public market,
or the perception that such sales could occur, could depress the prevailing
market price for the Common Stock. Such sales also may make it more
difficult for ATI to sell equity securities or equity-related securities in
the future at a time and price that it deems appropriate.
PREFERRED STOCK
ATI's Restated Certificate of Incorporation authorizes the Board of
Directors to issue the Preferred Stock in classes or series and to
establish the designations, preferences, qualifications, limitations, or
restrictions of any class or series with respect to the rate and nature of
dividends, the price and terms and conditions on which shares may be
redeemed, the terms and conditions for conversion or exchange into any
other class or series of the stock, voting rights and other terms. ATI may
issue, without approval of the holders of Common Stock, Preferred Stock
which has voting, dividend or liquidation rights superior to the Common
Stock and which may adversely affect the rights of holders of Common Stock.
The issuance of Preferred Stock, while providing flexibility in connection
with possible acquisitions and other corporate purposes, could, among other
things, adversely affect the voting power of the holders of Common Stock
and, under certain circumstances, make it more difficult for a third party
to gain control of ATI.
The holders of Series B Preferred Stock are entitled to receive
cumulative dividends, to the extent permitted by law, at the rate of five
percent per share per annum commencing on the date of issuance of the
Series B Preferred Stock and payable solely in shares of Common Stock on
the first to occur of the anniversary date of the issuance of the Series B
Preferred Stock or the date of conversion thereof. No dividends or other
distributions will be paid or declared and set aside for payment on the
Common Stock until full cumulative dividends on all outstanding shares of
Series B Preferred Stock have been paid or declared and set aside for
payment. The Series B Preferred Stock ranks senior to any other class of
capital stock of the Company as to the payment of dividends and the
distribution of assets on redemption, liquidation, dissolution or winding
up of the Company.
Each share of Series B Preferred Stock is convertible, at the
option of the holder, during the period that commences no later than the
45th day following the date of issuance and ends on the first anniversary
of the issuance thereof, into that number of shares of Common Stock that is
determined by dividing (a) the sum of (i) the original per share issuance
price for each such share of Series B Preferred Stock plus (ii) the amount
of all accrued but unpaid dividends on each share of Series B Preferred
Stock so converted, by (b) the Conversion Price (as defined herein) in
effect at the time of conversion. The "Conversion Price" at any given time
shall be equal to 80% of the prevailing market price of the Common Stock,
provided that the Conversion Price shall never be greater than $12.50 or
less than $2.00. The Company also has the right to require conversion of
the Series B Preferred Stock into Common Stock at specified conversion
ratios.
CERTAIN CHARTER PROVISIONS AND DELAWARE LAW
ATI's Restated Certificate of Incorporation contains a provision
requiring the affirmative vote of the holders of at least 66 2/3% of the
voting power of all the shares of Common Stock of ATI to remove any
director or the entire Board of Directors from office at any time, with or
without cause, except as otherwise provided. Also, ATI's Restated
Certificate of Incorporation grants the Board of Directors the power to
adopt, amend, alter, change and repeal the Bylaws of ATI. The affirmative
vote of the holders of at least 66 2/3% of the voting power of all of the
shares of Common Stock of ATI is required for the stockholders of ATI to
adopt, alter, change or repeal the Bylaws of ATI.
Section 203 of the Delaware General Corporation Law ("Section 203")
prohibits certain Delaware corporations from engaging in a "business
combination" with an "interested stockholder" for a period of three years
after the date of the transaction in which the person became an interested
stockholder unless (i) prior to the date of the business combination, the
transaction is approved by the board of directors of the corporation, (ii)
upon consummation of the transaction which resulted in the stockholder
becoming an interested stockholder, the interested stockholder owns at
least 85% of the outstanding voting stock or (iii) on or after the
consummation date the business combination is approved by the board of
directors and by the affirmative vote of at least 66 2/3% of the
outstanding voting stock that is not owned by the interested stockholder.
"Business combinations" include mergers, assets sales and other
transactions resulting in a financial benefit to the stockholder. An
"interested stockholder" is a person who, together with affiliates and
associates, owns (or within three years, did own) 15% or more of the
corporation's voting stock. A Delaware
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<PAGE> 18
corporation may "opt out" of application of Section 203 through a provision
in its certificate of incorporation or by-laws. ATI has not "opted out" of
application of Section 203.
These provisions might diminish the likelihood that a potential
acquiror would make an offer for the Common Stock, impede a transaction
favorable to the interests of stockholders or make it difficult to effect a
change in control of ATI and replace incumbent management. As a result,
the existence of these provisions may have a negative effect on the market
price of the Common Stock.
FOREIGN OWNERSHIP PROVISIONS
The Communications Act provides that certain types of FCC licenses
shall not be held directly by corporations of which Aliens own of record or
vote more than 20% of the capital stock. In situations in which such an
FCC licensee is directly or indirectly controlled by another corporation,
Aliens may own of record or vote no more than 25% of the controlling
corporation's capital stock. ATI's Restated Certificate of Incorporation
requires that all of its officers and directors be U.S. citizens and
empowers the Board of Directors to redeem ATI's outstanding capital stock
to the extent necessary to prevent the loss or secure the reinstatement of
any license or franchise from any governmental agency if a situation arises
whereby more than the permitted number of outstanding shares of capital
stock of ATI are owned or voted by Aliens. Moreover, ATI's Restated
Certificate of Incorporation provides that, in such a situation, no
transfers of shares may be made to Aliens and the shares which caused the
Company to exceed the statutory limit may neither be voted, receive
dividends nor be entitled to any other rights, until transferred to U.S.
citizens.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for the Common Stock is First
Union National Bank of North Carolina.
PLAN OF DISTRIBUTION
The Shares offered hereby have been registered pursuant to the
Stock Purchase Agreement, which requires the Company to register certain
shares of Common Stock issued to the Selling Shareholders and to keep such
registration effective as specified in such agreement. All of the Shares
have been registered to allow their sale other than as restricted
securities under the Securities Act. Pursuant to this registration,
Selling Shareholders may choose to sell all or any of their Shares from
time to time on the Nasdaq Stock Market, or any other securities exchange
on which the Common Stock is then traded or in the over-the-counter market
or otherwise at prices and at terms then prevailing or at prices related to
the then-current market price or in negotiated transactions. Selling
Shareholders may also elect to sell their Shares pursuant to Rule 144 or
Rule 144A to the extent such Shares are eligible for sale thereunder. Such
sales of Shares may be effected during such time as the Registration
Statement is effective.
The Shares may be sold in one or more of the following
transactions: (a) block trades in which the broker or dealer so engaged
will attempt to sell the Shares as agent but may position and resell a
portion of the block as principal to facilitate the transaction, (b)
purchases by a broker or dealer as principal and resale by such broker or
dealer for its account pursuant to this Prospectus, and (c) ordinary
brokerage transactions and transactions in which the broker solicits
purchasers. In effecting sales, brokers and dealers engaged by Selling
Shareholders may arrange for other brokers or dealers to participate.
Brokers or dealers will receive commissions or discounts from Selling
Shareholders in amounts to be negotiated (and, if such broker-dealer acts
as agent for the purchaser of such Shares, from such purchaser).
Broker-dealers may agree with the Selling Shareholders to sell a specified
number of Shares at a stipulated price per share, and, to the extent such
broker-dealer is unable to do so acting as agent for a Selling Shareholder,
to purchase as principal any unsold Shares at the price required to fulfill
the broker-dealer commitment to such Selling Shareholder. Broker-dealers
who acquire Shares as principal may thereafter resell such shares from time
to time in transactions (which may involve crosses and block transactions
and sales to and through other broker-dealers, including transactions of
the nature described above) on the Nasdaq Stock Market, in the over-
the-counter market or otherwise at prices and on terms then prevailing at
the time of sale, at prices related to the then-current market price or in
negotiated transactions and, in connection with such resales, may pay to or
receive from the purchasers of such Shares commissions as described above.
The Company has been advised that, as of the date hereof, none of the
Selling Shareholders have made any arrangements with any broker for the
sale of their shares.
The Selling Shareholders and any participating agents, brokers or
dealers may be deemed to be underwriters as such term is defined in the
Securities Act and commissions, discounts or any profit realized on the
16
<PAGE> 19
sale of such securities by them may be deemed to be underwriting
commissions or discounts under the Securities Act. Any dealer or broker
participating in any distribution of the Shares may be required to deliver
a copy of this Prospectus including the Prospectus Supplements, if any, to
any person who purchases any of the Shares from or through such dealer or
broker.
The Shares to be offered or sold hereby have not been registered or
qualified under the laws of any country, other than the United States. To
comply with certain states' securities laws, if applicable, the Shares will
be offered or sold in such jurisdictions only through registered or
licensed brokers or dealers. In addition, in certain jurisdictions, the
Shares may not be offered or sold unless they have been registered or
qualified for sale in such jurisdictions or an exemption from registration
or qualification is available and is complied with by the Selling
Shareholders.
Certain costs, expenses and fees in connection with the
registration of the Shares will be borne by the Company. Commissions,
discounts and transfer taxes, if any, attributable to the sales of the
Shares will be borne by the Selling Shareholders. The Selling Shareholders
generally have agreed to indemnify the Company and its affiliates,
directors, officers and controlling persons, against certain liabilities in
connection with the offering of the Shares pursuant to this Prospectus,
including liabilities arising under the Securities Act. In addition, the
Company generally has agreed to indemnify the Selling Shareholders, and any
of their respective affiliates, directors, officers and controlling
persons, against certain liabilities in connection with the offering of the
Shares pursuant to this Prospectus, including liabilities arising under the
Securities Act.
LEGAL MATTERS
The validity of the Common Stock offered hereby has been passed
upon for the Company by McDermott, Will & Emery, Washington, D.C.
EXPERTS
The audited consolidated financial statements and schedules of the
Company incorporated by reference in this Prospectus have been audited by
Arthur Andersen LLP, independent public accountants, as indicated in their
reports with respect thereto, and are incorporated by reference herein in
reliance upon the authority of said firm as experts in giving said reports.
The audited financial statements of Fresno Wireless Cable
Television, Inc. and Subsidiary incorporated by reference in this
Prospectus have been audited by McGladrey & Pullen, LLP, independent
auditors, as indicated in their reports with respect thereto, and are
incorporated by reference herein in reliance upon the authority of said
firm as experts in giving said reports.
17
<PAGE> 20
================================================================================
NO PERSON HAS BEEN AUTHORIZED IN CONNECTION WITH THE OFFERING MADE HEREBY TO
GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN THIS
PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE
RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF ANY OFFER TO BUY ANY OF THE
SECURITIES OFFERED HEREBY TO ANY PERSON OR BY ANYONE IN ANY JURISDICTION IN
WHICH IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION. NEITHER THE DELIVERY
OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES,
CREATE ANY IMPLICATION THAT THE INFORMATION CONTAINED HEREIN IS CORRECT AS OF
ANY DATE SUBSEQUENT TO THE DATE HEREOF.
-------------------------
<TABLE>
<CAPTION>
TABLE OF CONTENTS
PAGE
----
<S> <C>
Available Information . . . . . . . . . . 2
Incorporation of Certain Information by
Reference . . . . . . . . . . . . . . . 2
The Company . . . . . . . . . . . . . . . 4
Risk Factors . . . . . . . . . . . . . . 7
Use of Proceeds . . . . . . . . . . . . . 12
Selling Shareholders . . . . . . . . . . 13
Description of Capital Stock . . . . . . 14
Plan of Distribution. . . . . . . . . . . 16
Legal Matters. . . . . . . . . . . . . . 17
Experts . . . . . . . . . . . . . . . . . 17
</TABLE>
================================================================================
================================================================================
4,082,436 SHARES
[AMERICAN TELECASTING, INC. LOGO]
COMMON STOCK
-------------------------
PROSPECTUS
-------------------------
,1996
================================================================================
<PAGE> 21
PART II
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
<TABLE>
<S> <C>
SEC registration fee . . . . . . . . . . . . . . . . . . . . . . $ 13,550
Fees and expenses of counsel . . . . . . . . . . . . . . . . . . . 20,000
Fees and expenses of accountants . . . . . . . . . . . . . . . . . 5,000
Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . 11,450
------
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 50,000
======
</TABLE>
Except for the SEC registration fee, all of the foregoing expenses
have been estimated. All expenses will be paid by the Company.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Delaware law, a corporation may indemnify any person who was
or is a party or is threatened to be made a party to an action (other than
an action by or in the right of the corporation) by reason of his service
as a director or officer of the corporation, or his service, at the
corporation's request, as a director, officer, employee or agent of another
corporation or other enterprise, against expenses (including attorneys'
fees) that are actually and reasonably incurred by him ("Expenses"), and
judgments, fines and amounts paid in settlement that are actually and
reasonably incurred by him, in connection with the defense or settlement of
such action, provided that he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the corporation's best
interest, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe that his conduct was unlawful. Although
Delaware law permits a corporation to indemnify any person referred to
above against Expenses in connection with the defense or settlement of an
action by or in the right of the corporation, provided that he acted in
good faith and in a manner he reasonably believed to be in or not opposed
to corporation's best interests, if such person has been judged liable to
the corporation, indemnification is only permitted to the extent that the
Court of Chancery (or the court in which the action was brought) determines
that, despite the adjudication of liability, such person is entitled to
indemnity of such Expenses as the court deems proper. The General
Corporation Law of the State of Delaware also provides for mandatory
indemnification of any director, officer, employee or agent against
Expenses to the extent such person has been successful in any proceeding
covered by the statute. In addition, the General Corporation Law of the
State of Delaware provides the general authorization of advancement of a
director's or officer's litigation expenses in lieu of requiring the
authorization of such advancement by the board of directors in specific
cases, and that indemnification and advancement of expenses provided by the
statute shall not be deemed exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be entitled under
any bylaw, agreement or otherwise.
Article 7 of ATI's Restated Certificate of Incorporation and
Article 8 of ATI's Amended and Restated ByLaws provide for indemnification
of the Company's directors, officers, employees and other agents to the
fullest extent not prohibited by Delaware law.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or persons
controlling the Company pursuant to the foregoing provisions, the Company
has been informed that in the opinion of the Securities and Exchange
Commission, such indemnification is against public policy as expressed in
the Securities Act and is therefore unenforceable.
II-1
<PAGE> 22
ITEM 16. EXHIBITS
4.1 Specimen Common Stock Certificate (incorporated by
reference to Exhibit 4.1 to Amendment No. 1 to the
Company's Registration Statement on Form S-3 filed with
the Commission on April 26, 1996).
5.1 Opinion of McDermott, Will & Emery.
23.1 Consent of Arthur Andersen, LLP.
23.2 Consent of McGladrey Pullen, LLP.
23.3 Consent of McDermott, Will & Emery (included in Exhibit
5.1).
24.1 Power of Attorney (included on the signature page to the
Registration Statement).
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:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate,
represent a fundamental change in the information set
forth in the Registration Statement;
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in
the Registration Statement or any material change to such
information in the Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply
if the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference 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.
(a) 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.
II-2
<PAGE> 23
(c) Insofar as indemnification for liabilities arising under the
Securities Act 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
Commission such indemnification is against public policy as expressed in
the Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment
by the Registrant of expenses incurred or paid by a director, officer, or
controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer, or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
II-3
<PAGE> 24
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 Colorado Springs, State of
Colorado, on November 8, 1996.
AMERICAN TELECASTING, INC.
By: /s/ ROBERT D. HOSTETLER
------------------------------
Robert D. Hostetler
President and Chief Executive
Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Donald R. DePriest, Robert D.
Hostetler and Richard F. Seney 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 (including his capacity as a director and/or officer of American
Telecasting, Inc.) to sign any or 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 authority 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
substitutes, 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 on November 8, 1996 by the
following persons in the capacities indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
/s/ DONALD R. DEPRIEST Chairman of the Board and Director
-------------------------------
Donald R. DePriest
/s/ ROBERT D. HOSTETLER President, Chief Executive Officer and
------------------------------- Director (principal executive officer)
Robert D. Hostetler
/s/ RICHARD F. SENEY Vice Chairman of the Board, Secretary and Director
-------------------------------
Richard F. Seney
/s/ DAVID K. SENTMAN Senior Vice President, Chief Financial Officer and
------------------------------- Treasurer (principal financial officer)
David K. Sentman
/s/ JOHN R. HAGER Controller (principal accounting officer)
-------------------------------
John R. Hager
</TABLE>
II-4
<PAGE> 25
<TABLE>
<S> <C>
/s/ MITCHELL R. HAUSER Director
----------------------------
Mitchell R. Hauser
/s/ JAMES S. QUARFORTH Director
----------------------------
James S. Quarforth
/s/ CARL A. ROSBERG Director
----------------------------
Carl A. Rosberg
</TABLE>
II-5
<PAGE> 26
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<S> <C>
4.1 Specimen Common Stock Certificate (incorporated by
reference to Exhibit 4.1 to Amendment No. 1 to the
Company's Registration Statement on Form S-3 filed with
the Commission on April 26, 1996).
5.1 Opinion of McDermott, Will & Emery.
23.1 Consent of Arthur Andersen, LLP.
23.2 Consent of McGladrey Pullen, LLP.
23.3 Consent of McDermott, Will & Emery (included in Exhibit
5.1).
24.1 Power of Attorney (included on the signature page to the
Registration Statement).
</TABLE>
<PAGE> 1
Exhibit 5.1
November 12, 1996
American Telecasting, Inc.
5575 Tech Center Drive
Suite 300
Colorado Springs, CO 80907
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
You have requested our opinion in connection with the
above-referenced registration statement (the "Registration Statement"),
under which certain stockholders of American Telecasting, Inc. (the
"Company") intend to sell up to 4,082,436 shares of Common Stock, par value
$.01 per share, of the Company (all such shares, in the aggregate, the
"Offered Shares").
In arriving at the opinion expressed below, we have examined the
Registration Statement and such other documents as we have deemed necessary
to enable us to express the opinion hereinafter set forth. In addition, we
have examined and relied, to the extent we deem proper, on certificates of
officers of the Company as to factual matters, and on 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 and other persons as we have deemed
appropriate. In our examination, we have assumed the authenticity of all
documents submitted to us as originals, the conformity to the original
documents of all documents submitted to us as copies, the genuineness of
all signatures on documents reviewed by us and the legal capacity of
natural persons.
Based upon and subject to the foregoing, we are of the opinion that
the Offered Shares are duly authorized, validly issued, fully paid and
non-assessable.
We hereby consent to the references to our firm under the caption
"Legal Matters" in the Registration Statement and to the use of this
opinion as an exhibit to the Registration Statement. In giving this
consent, we do not hereby admit that we come within the category of persons
whose consent is required under Section 7 of the Securities Act of 1933, as
amended, or the rules and regulations of the Securities and Exchange
Commission thereunder.
Very truly yours,
McDermott, Will & Emery
<PAGE> 1
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our reports dated March 1,
1996 included in American Telecasting, Inc.'s Form 10-K for the year ended
December 31, 1995 and to all references to our Firm included in or made a
part of this registration statement filed on Form S-3.
ARTHUR ANDERSEN LLP
Washington, D.C.
November 8, 1996
<PAGE> 1
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference of our report, dated
March 10, 1995, relating to the consolidated financial statements of Fresno
Wireless Cable Television, Inc. and its subsidiary, Fresno MMDS Associates
(d/b/a Choice TV of Fresno), in this Registration Statement on Form S-3 for
American Telecasting, Inc. and to the reference to our Firm under the
caption "Experts" in the Prospectus.
McGLADREY & PULLEN, LLP
Elkhart, Indiana
November 8, 1996
