As filed with the Securities and Exchange Commission on November 4, 1996.
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
Wireless One, Inc.
(Exact name of registrant as specified in its charter)
Delaware 11301 Industriplex Boulevard, Suite 4 72-1300837
(State or other Baton Rouge, Louisiana 70809-4115 (I.R.S. Employer
jurisdiction of (504) 293-5000 Identification Number)
incorporation or (Address, including zip code, and
organization) telephone number, including area code,
of registrant's principal executive offices)
Mr. Hans J. Sternberg Copy to:
Chairman of the Board Brad J. Axelrod
Wireless One, Inc. Jones, Walker, Waechter, Poitevent,
11301 Industriplex Boulevard Carrere & Denegre, L.L.P.
Suite 4 Four United Plaza
Baton Rouge, Louisiana 70809-4115 8555 United Plaza Boulevard
(504) 293-5000 Baton Rouge, Louisiana 70809-7000
(Name, address, including zip code, (504) 231-2000
and telephone number, including
area code, of agent for service)
---------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of this registration statement
-----------------------------
If the only securities being registered on this Form are
being offered pursuant to dividend or interest reinvestment plans,
please check the following box. [ ]
If any of the securities being registered on this Form are
to be offered on a delayed or continuous basis pursuant to Rule 415
under the Securities Act of 1933, other than securities offered
only in connection with dividend or interest reinvestment plans,
check the following box. [X]
If this Form is filed to register additional securities for
an offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective registration
statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following box and
list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. [ ]
If delivery of the prospectus is expected to be made
pursuant to Rule 434, please check the following box. [ ]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=========================================================================================
Proposed Proposed
maximum maximum
Title of each Amount offering aggregate Amount of
class of securities to be price per offering registration
to be registered registered share (1) price (1) fee
- -----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.01 par 180,000 shares $13.00 $2,340,000 $710.00
value per share
=========================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the
registration fee pursuant to Rule 457(c) under the
Securities Act of 1933, based on the average of the
high and low prices per share of the Common Stock as
reported on the Nasdaq Stock Market National Market on
October 31, 1996.
-------------------------------------
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.
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement
becomes effective. This prospectus shall not constitute an offer to sell or
the solicitation of an offer to buy nor shall there be any sale of these
securities in any State in which such offer, solicitation or sale would be
unlawful prior to registration or qualification under the securities laws of
any such State.
SUBJECT TO COMPLETION, DATED NOVEMBER 4, 1996
PROSPECTUS
180,000 Shares
Wireless One, Inc.
Common Stock
($0.01 par value per share)
This Prospectus relates to the offer and sale of 180,000 shares (the
"Shares") of common stock, $0.01 par value per share (the "Common Stock"), of
Wireless One, Inc. (the "Company"), which may be offered from time to time
(the "Offering") by the selling shareholders described herein (the "Selling
Shareholders").
The Common Stock is traded on the Nasdaq National Market under the
symbol "WIRL." Shares may be sold from time to time by the Selling
Shareholders on the Nasdaq National Market or such principal securities
exchange on which the Common Stock is then trading, or in negotiated
transactions or otherwise. The Shares will be sold at prices prevailing at
the time of such sales, or at prices related to the current market prices or
at negotiated prices. From time to time the Selling Shareholders may engage
in short sales, or short sales against the box, of the Shares. Brokers
executing orders are expected to charge normal commissions, and the proceeds
to the Selling Shareholders will be net of brokerage commissions. See "Plan
of Distribution." The Company will not receive any proceeds from the sale of
the Shares. Information regarding the Selling Shareholders is set forth
herein under the heading "Selling Shareholders." All expenses of
registration incurred in connection with this offering are being borne by the
Company. All selling and other expenses incurred by the Selling Shareholders
will be borne by the Selling Shareholders.
On November 1, 1996, the last reported sales price of the Common Stock
on the Nasdaq National Market was $13.00 per share.
SEE "RISK FACTORS" BEGINNING ON PAGE 3 FOR A DISCUSSION
OF CERTAIN FACTORS THAT SHOULD BE CONSIDERED IN
EVALUATING AN INVESTMENT IN THE COMMON STOCK.
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 OR THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
The date of this Prospectus is November _____, 1996.
THE COMPANY
The Company acquires, develops, owns and operates wireless cable
television systems, primarily in small to mid-size markets in the
southeastern United States. As of October 1, 1996 the Company's markets were
located in Texas, Louisiana, Mississippi, Tennessee, Kentucky, Alabama,
Georgia, Arkansas, North Carolina, South Carolina and Florida.
Wireless cable programming is transmitted via microwave frequencies
from a headend to a small receive-site antenna at each subscriber's location,
and generally requires a direct unobstructed line-of-sight ("LOS") from the
central transmitting antenna to an antenna at the subscriber's location. The
Company targets small to mid-size markets with a significant number of LOS
households that are unpassed by traditional hard-wire cable. The Company
estimates that as of October 1, 1996 approximately 25% of its LOS households
were unpassed by traditional hard-wire cable. By comparison, in the 20
largest hard-wire cable markets in the United States, only approximately 2%
of all households are unpassed by traditional hard-wire cable. Many of the
households in the Company's markets, particularly in rural areas, also have
limited access to local off-air VHF/UHF programming from ABC, NBC, CBS and
Fox affiliates, and typically do not have access to subscription television
service except via satellite television operators, whose equipment and
subscription fees are generally are more costly than those of wireless cable,
and which are unable to retransmit local off-air channels. The Company
believes a significant number of households passed by cable in many of its
rural markets are served by local cable operators with lower quality service
and limited reception and channel lineups. As a result, the Company believes
that its wireless cable television service is an attractive alternative to
existing television choices for both passed and unpassed households.
The Company was organized as a Delaware corporation in October 1995.
The Company's executive offices are located at 11301 Industriplex Boulevard,
Suite 4, Baton Rouge, Louisiana 70809-4115, and its telephone number at such
address is (504) 293-5000.
RECENT DEVELOPMENTS
On July 29, 1996, the Company acquired all of the outstanding capital
stock of TruVision Wireless, Inc. ("TruVision") through a merger of a
subsidiary of the Company with and into TruVision (the "TruVision
Transaction").
TruVision has entered into several definitive agreements with holders
of wireless cable channel rights to expand the Company's markets in portions
of Tennessee, North Carolina and Arkansas. The agreements relating to such
acquisitions include (i) a purchase and sale agreement with SkyView Wireless
Cable, Inc. to acquire rights to 22 wireless cable channels and a
substantially completed transmission facility in the Jackson, Tennessee
market for approximately $2.7 million in cash and to acquire rights to 20
wireless cable channels in the Hot Springs, Arkansas market for approximately
$1.5 million in cash and (ii) a purchase and sale agreement with Arden Cable,
Ltd. ("Arden") to acquire rights to 16 wireless cable channels in the
Jacksonville, North Carolina market for approximately $820,000 in cash.
There can be no assurance that the pending transactions described above will
be completed, or when such transactions will be completed. See "Risk
Factors-Inability to Consummate Pending Acquisitions."
In addition, TruVision recently consummated the acquisition of (i)
rights to 20 wireless cable channels in the Gadsden, Alabama market for
aggregate consideration of approximately $950,000 in cash, which acquisition
closed on July 10, 1996, (ii) rights to wireless cable channels and equipment
in the Memphis, Tennessee market for aggregate consideration of $3.9 million
in cash, which acquisition closed on May 6, 1996, (iii) wireless cable
channels and certain other related assets in the Flippin, Tennessee market,
for aggregate consideration of $1.5 million in cash, which acquisition closed
on May 6, 1996, (iv) all the outstanding shares of BarTel, Inc., which held
rights to wireless cable channels in the Demopolis, Alabama and Tuscaloosa,
Alabama markets for aggregate consideration of $1.7 million in cash and a
$652,000 five-year 8% per annum promissory note, which acquisition closed on
February 20, 1996, (v) all of the outstanding shares of Shoals Wireless,
Inc., whose principal asset is a wireless cable system in the Lawrenceburg,
Tennessee market, for approximately $1.2 million in cash and a note, which
acquisition closed on August 2, 1996 and (vi) a wireless cable system and a
hard-wire cable system currently operating in the Huntsville, Alabama market
for approximately $6.0 million in cash, which acquisition closed on August 2,
1996 and (vii) rights to 12 wireless cable channels in the Chattanooga,
Tennessee market for $517,000 in cash, which acquisition closed on October
24, 1996.
RISK FACTORS
Prospective investors should carefully consider the following factors, in
addition to other information contained in this Prospectus, regarding an
investment in the Common Stock offered hereby.
Substantial Indebtedness of the Company; Need for Additional Financing;
Certain Covenants
The Company has incurred substantial indebtedness and expects that it and
its subsidiaries will incur substantial additional indebtedness in the
future. On a combined basis, since its inception the Company has sustained
substantial net losses and therefore has been unable to cover fixed charges.
The Company does not anticipate being able to generate net income until after
2001, and there can be no assurance that other factors, such as, but not
limited to, economic conditions, the inability to raise additional financing
or disruption in operations, will not result in further delays in generating
positive net income. Losses may increase as operations in additional markets
are commenced or acquired. Many factors, some of which will be beyond the
Company's control (such as prevailing economic conditions), may affect its
performance.
In order to finance the capital expenditures and related expenses needed
for subscriber growth and system development, the Company will require
substantial investment on a continuing basis. The Company will need to
obtain additional financing in late 1997 in order to continue to complete the
launch of markets, to add subscribers in its new and existing markets and to
cover ongoing operating losses and debt service requirements. The amount and
timing of the Company's future capital requirements will depend upon a number
of factors, many of which are not within the Company's control, including
programming costs, capital costs, marketing expenses, staffing levels,
subscriber growth, churn rates and competitive conditions. There can be no
assurance that the Company's future capital requirements will not increase as
a result of unexpected developments with respect to its markets. For
example, the Company's capital costs may increase due to a need to implement
digital technology in certain markets to meet competitive demands. There can
be no assurance that the Company's future capital requirements will be met or
will not increase as a result of future acquisitions, if any. Certain
financing agreements entered into by the Company restrict its ability to
incur additional indebtedness. Failure to obtain any required additional
financing could adversely affect the growth of the Company and, ultimately,
could have a material adverse effect on the Company.
Limited Operating History; Lack of Profitable Operations; Negative Cash Flow;
Early Stage Company
Other than the Company's limited operating history in those markets in
which it has commenced operations, it has no wireless cable operations.
Prospective investors, therefore, have limited historical financial
information about the Company upon which to base an evaluation of the
Company's performance and the investment in the Common Stock offered hereby.
Since its inception, the Company has sustained substantial net losses and
negative consolidated EBITDA due primarily to start-up costs, interest
expense and charges for depreciation and amortization arising from the
development of its wireless cable systems. The Company expects to continue
to experience negative consolidated EBITDA through at least the third quarter
of 1998, and may continue to do so thereafter while it develops and expands
its wireless cable systems, even if additional individual systems of the
Company become profitable and generate positive System EBITDA. Prospective
investors should be aware of the difficulties encountered by enterprises in
the early stages of development, particularly in light of the intense
competition characteristic of the subscription television industry. There
can be no assurance that realization of the Company's business plan,
including an increase in the number of subscribers or the launch of
additional wireless cable systems, will result in profitability or positive
consolidated EBITDA for the Company in future years.
Need to Manage Growth and Ability to Successfully Integrate TruVision
Successful implementation of the Company's business plan will require
management of rapid growth, which will result in an increase in the level of
responsibility for management personnel. To manage its growth effectively,
the Company will be required to continue to implement and improve its
operating and financial systems and controls and to expand, train and manage
its employee base. There can be no assurance that the management, systems
and controls currently in place, or to be implemented, will be adequate for
such growth, or that any steps taken to hire personnel or to improve such
systems and controls will be sufficient. Additionally, there can be no
assurance that the Company will be able to integrate successfully the
properties obtained pursuant to its merger with TruVision with its existing
and contemplated operations.
Inability to Consummate the Pending Acquisitions
The description of the Company included in this Prospectus assumes the
consummation of transactions related to the acquisition agreements more fully
described in "Recent Developments." The consummation of each of these
pending acquisitions is subject to certain conditions the satisfaction of
which, in some cases, is beyond the Company's control, including obtaining
FCC approvals and third-party consents. There can be no assurance that the
Company will be able to obtain such approvals and consents, and failure to do
so could have a material adverse effect on the Company's ability to
consummate the pending acquisitions or on the Company's operations in the
affected Markets. In addition, there can be no assurance that the FCC will
approve the pending applications relating to the lease rights that the
Company is acquiring in such acquisitions, although the approval of such
applications is not a condition to completing the acquisitions. There can be
no assurance that binding agreements will be entered into with respect to
transactions in which the Company has signed a letter of intent, or that in
the case of purchase and sale agreements, such transactions will be
consummated. See "--Uncertainty of Ability to Obtain FCC Authorizations."
Uncertainty of Ability to Obtain FCC Authorizations
Wireless cable systems transmit programming over some or all of the 33 MDS
and instructional television fixed service ("ITFS") channels that are
licensed by the FCC. Generally, the Company believes that a minimum of 12
wireless cable channels is necessary to offer a commercially viable wireless
cable service in its Markets. All of the channels comprising a wireless
cable system must operate from the same transmitter site so that subscribers
may receive a clear picture on all channels offered. In some of its Markets,
the Company does not currently have the right to operate a sufficient number
of channels from the same transmitter site, and in certain other Markets, the
Company contemplates relocating all of its channels to a new transmitter
site. In these Markets, the Company is dependent upon (i) the grant of
pending applications for new licenses or for modification of existing
licenses, and (ii) the grant of applications for new licenses and license
modification applications which have not yet been filed with the FCC.
Certain pending applications cannot be granted by the FCC until interference
agreements with nearby license holders are secured. Several of the Company's
pending ITFS applications are the subject of competing applications. There
can be no assurance that any or all of these applications will be granted by
the FCC. Although the Company does not believe that the denial of any single
application will adversely affect the Company, the denial of several of such
applications, particularly if concentrated in one or a few of the Company's
Markets, could have a material adverse effect on the ability of the Company
to serve such Market or Markets.
In certain cases, FCC approval may be dependent upon the Company's ability
to engineer its use of a wireless cable channel to avoid interference with
the reception of another channel that has been licensed or for which an
application is pending. In addition, intervening license grants and/or
auctions of MDS channels may adversely affect some of the Company's planned
applications due to interference considerations. No assurance can be given
that the Company will be able to engineer all of its channels so as to avoid
interference. See "--Interference Issues."
In addition, there is no limit on the time that may elapse between the
filing of an application with the FCC for a modification or a new license and
action thereon by the FCC. Delay by the FCC in processing applications could
delay or materially adversely affect the Company's plans with respect to one
or more of its Markets. If modification of an unbuilt station license is
anticipated, it is frequently necessary to obtain from the FCC an extension
of the period specified in the license for construction of the station. In
such case, absent FCC grant of such an extension, the license will expire.
There can be no assurance that the FCC will grant an extension in any
particular instance. In addition, FCC licenses must be renewed every ten
years and, while such renewals generally have been granted on a routine basis
in the past, there is no assurance that licenses will continue to be renewed
routinely in the future. The failure of the Company's channel lessors to
renew their respective licenses or of the FCC to grant such extensions could
have a material adverse effect on the Company.
The FCC recently concluded an auction for each of 493 BTAs. Auction
winners obtained the exclusive right to apply for all available MDS channels
in such BTAs, subject to compliance with interference standards and other
rules. The Company and TruVision were the winning bidders for FCC
authorizations in 66 BTA Markets. As is the case with other MDS and ITFS
applications, in some of the BTA Markets the Company presently lacks the
right to use a site for the location of a transmission facility. In some
instances, it may be necessary for the Company to obtain the consent of other
parties to the acceptance of interference. There can be no assurance that
the Company will be able to secure a transmission site, obtain all necessary
interference consents or secure FCC approval of its applications.
Furthermore, even though the Company was the successful bidder in the BTA
Markets, the Company may not acquire sufficient channel rights to have a
viable system in each of those Markets. See "--Interference Issues."
Government Regulation
The wireless cable industry is extensively regulated by the FCC. The FCC
governs, among other things, the issuance, renewal, assignment and
modification of licenses necessary for wireless cable systems to operate and
the time afforded license holders to construct their facilities. The FCC
imposes fees for certain applications and licenses, and mandates that certain
amounts of educational, instructional or cultural programming be transmitted
over certain of the channels used by the Company's existing and proposed
wireless cable systems. The FCC also has the authority, in certain
circumstances, to revoke and cancel licenses and impose monetary fines for
violations of its rules. No assurance can be given that new regulations will
not be imposed or that existing regulations will not be changed in a manner
that could have a material adverse effect on the wireless cable industry as a
whole and on the Company in particular. In addition, wireless cable
operators and channel license holders are subject to regulation by the
Federal Aviation Administration ("FAA") with respect to construction, marking
and lighting of transmission towers and to certain local zoning regulations
affecting the 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 and new taxes imposed by state and local
authorities. Certain states, including Florida, have legislated that no
resident of a multiple dwelling unit ("MDU") should be denied access to
programming provided by hard-wire cable systems, notwithstanding the fact
that the MDU entered into an exclusive agreement with a non-hard-wire cable
video program distributor. It is possible that such laws will be enacted in
other states in the future. In several courts, mandatory access laws have
been held unconstitutional. Such laws could increase the competition for
subscribers in MDUs. Future changes in the foregoing regulations or other
regulations applicable to the Company or its business could have a material
adverse effect on the Company's results of operations and financial
condition.
Interference Issues
Under current FCC regulations, a wireless cable operator may install
receive-site equipment and serve any point where its signal can be received.
Interference from other wireless cable systems can limit the ability of a
wireless cable system to serve any particular point. In licensing ITFS and
MDS stations, a primary concern of the FCC is avoiding situations where
proposed station signals are predicted to cause interference to the reception
of previously proposed station signals. The Company's business plan involves
moving the authorized transmitter sites of various of its MDS and ITFS
licensed stations and obtaining the grant of licenses for new stations that
the Company will use in its wireless cable systems. The FCC's interference
protection standards may make one or more of these proposed relocations or
new grants unavailable. In that event, it may be necessary to negotiate
interference agreements with the licensees of the stations which would
otherwise block such relocations or grants. There can be no assurance that
the Company will be able to obtain all necessary interference agreements with
terms acceptable to the Company. In the event that the Company cannot obtain
interference agreements required to implement the Company's plans for a
market, the Company may have to curtail or modify operations in the market,
which could have a material adverse effect on the growth of the Company. In
addition, while the Company's leases with MDS and ITFS licensees require
their cooperation, it is possible that one or more of the Company's channel
lessors may hinder or delay the Company's efforts to use the channels in
accordance with the Company's plans for the particular market.
Competition
The subscription television industry is highly competitive. Wireless
cable systems face or may face competition from several sources, such as
traditional hard-wire cable systems, DBS systems, satellite master antenna
television ("SMATV") systems, other wireless cable systems and other
alternative methods of distributing and receiving video programming.
Furthermore, premium movie services offered by cable television systems have
encountered significant competition from the home video cassette recorder
("VCR") industry. In areas where several local off-air VHF/UHF broadcast
channels can be received without the benefit of subscription television,
hard-wire and wireless cable systems also have experienced competition from
the availability of broadcast signals generally and have found market
penetration to be more difficult. In addition, within each market, the
Company must compete with others to acquire, from the limited number of
wireless cable channel licenses issued or issuable, rights to a minimum
number of wireless cable channels needed to establish a commercially viable
system. Legislative, regulatory and technological developments may result in
additional and significant competition, including competition from a proposed
new wireless service known as local multipoint distribution service ("LMDS").
In some areas, exchange telephone companies offer video programming services
via radio communications without regulation of rates or services, offer
hardwire or fiber optic cable service for hire by video programmers and
provide traditional cable service subject to local franchising requirements.
In its markets that have operational systems, the Company initially has
targeted its marketing to households that are unpassed by traditional hard-
wire cable and that have limited access to local off-air VHF/UHF programming.
Certain of the hard-wire cable companies operating in the Company's markets
currently offer a greater number of channels to their customers than the
Company offers. DBS providers currently offer a substantially greater number
of channels than hard-wire or wireless cable providers with a high picture
quality. Aggressive price competition or the passing of a substantial number
of presently unpassed households by any existing or new subscription
television service could have a material adverse effect on the Company's
results of operations and financial condition.
New and advanced technologies for the subscription television industry,
such as DBS, LMDS, digital compression and fiber optic networks, are in
operation or are in various stages of development. As they are developed,
these new technologies could have a material adverse effect on the demand for
wireless cable services. Many actual and potential competitors have greater
financial, marketing and other resources than the Company. 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.
Dependence on Channel Leases; Need for License Extensions; Loss of Licenses
by Lessors
The Company is dependent on leases with unaffiliated third parties for
substantially all of its wireless cable channel rights. The use of wireless
cable channels by the license holders is subject to regulation by the FCC,
and the Company is dependent upon the continuing compliance by channel
license holders with applicable regulations, including the requirement that
ITFS license holders must meet certain educational use requirements in order
to lease transmission capacity to wireless cable operators.
The Company's channel leases typically cover four ITFS channels and/or one
to four MDS channels each. Under a policy adopted by the FCC, the term of
the Company's ITFS channel leases cannot exceed ten years from the time the
lessee begins using the channel. The remaining initial terms of most of the
Company's ITFS channel leases are approximately five to ten years. There is
no restriction on the length of MDS channel leases, which frequently extend
beyond the term of the underlying MDS license. However, in the event an MDS
license is not renewed or is otherwise terminated, the authorization will no
longer be valid, and the Company will have no rights under its lease to
transmit on channels that are subject to such nonrenewed or terminated
license.
ITFS licenses generally are granted for a term of ten years and are
subject to renewal by the FCC. Existing MDS licenses generally will expire
on May 1, 2001 unless renewed. BTA authorizations expire ten years from the
grant thereof, unless renewed. FCC licenses also specify construction
deadlines which, if not met, could result in the loss of the license.
Requests for additional time to construct a channel may be filed and are
subject to review pursuant to FCC rules. Certain of the Company's channel
rights are subject to pending extension requests, and it is anticipated that
additional extensions will be required. There can be no assurance that the
FCC will grant any particular extension request or license renewal request.
The termination or non-renewal of a channel lease or of a channel license, or
the failure to grant an application for an extension of the time to construct
an authorized station, would result in the Company being unable to deliver
programming on the channels authorized pursuant thereto.
TruVision contracts with Mississippi EdNet Institute, Inc. ("EdNet") for
the commercial use of 20 ITFS channels in each of its Markets in the state of
Mississippi (the "EdNet Agreement"). The term of the EdNet Agreement is 10
years from the date of issuance of certain construction permits, each of
which was granted in 1992. The Company anticipates that, pursuant to the
EdNet Agreement, the lease term will terminate on or about April 1, 2002,
unless renewed prior thereto. The commercial use of these channels
represents the majority of the Company's channels in Mississippi and the
termination of, or inability to renew, the EdNet Agreement would have a
material adverse effect on the Company's operations in its Mississippi
Markets. Under the EdNet Agreement, the Company must, at its sole expense,
(i) install, operate and maintain a system sufficient to serve 95% of the
population of the licensed geographic area of Mississippi, (ii) provide,
install and maintain up to 1,100 standard receive sites, up to 11 studio
transmitter links, up to 11 electronic classrooms (each at a cost of up to
$20,000) and pay up to $1.5 million for 11 duplex, two-channel links, (iii)
acquire and install a minimum of five 10-watt transmitters per transmit site
and (iv) apply for CARS Band microwave authorizations to EdNet use, among
other obligations. The Company must complete and have operations in such
system by July 1, 1998. The Company has granted EdNet a security interest in
all of its Mississippi equipment, transmitters and rights to use certain
wireless cable channels (the "EdNet System") in order to secure the Company's
performance under the EdNet Agreement. In the event of a default by the
Company under the EdNet Agreement, EdNet will have the right to operate the
EdNet System and derive all income from its operation. If EdNet assumes the
operation of the EdNet System, the Company will be required to assign its
interest in the EdNet Agreement and the EdNet System or to forfeit its
interests in such assets. Although the Company does not believe that the
termination of or failure to renew a single channel lease, other than that
with EdNet, would materially adversely affect the Company, several of such
terminations or failures to renew in one or more Markets that the Company
actively serves could have a material adverse effect on the Company. In
addition, the termination, forfeiture, revocation or failure to renew or
extend an authorization or license held by the Company's lessors could have a
material adverse effect on the Company.
Dependence on Program Suppliers
In connection with its distribution of television programming, the Company
is dependent on fixed-term contracts with various program suppliers such as
CNN, ESPN and HBO. Although the Company has no reason to believe that any
such contracts will be canceled or will not be renewed upon expiration, if
such contracts are canceled or not renewed, the Company will have to seek
program material from other sources. There can be no assurance that other
program material will be available to the Company on acceptable terms or at
all or, if so available, that such material will be acceptable to the
Company's subscribers. The likelihood that program material will be
unavailable to the Company is significantly mitigated by the Cable Television
Consumer Protection and Competition Act of 1992 (the "1992 Cable Act") and
various FCC regulations issued thereunder which, among other things, impose
limits on exclusive programming contracts and generally prohibit cable
programmers, in which a cable operator has an attributable interest (a
"vertically integrated cable operator"), from discriminating against cable
competitors with respect to the price, terms and conditions of the sale of
programming. Only a few of the major cable television programming services
carried by the Company are not directly or indirectly owned by a vertically
integrated cable operator. The program access provisions of the 1992 Cable
Act are the subject of a legal challenge and, if the challenged provisions
were found to be unconstitutional or unlawful, program suppliers might raise
their prices or make their program material unavailable to the Company.
Difficulties and Uncertainties of a New Industry
Wireless cable 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 or continue as a
viable or profitable industry.
Physical Limitations of Wireless Cable Transmission
Wireless cable programming is transmitted via microwave frequencies from
a headend to a small receive-site antenna at each subscriber's location.
Reception of wireless cable programming generally requires a direct,
unobstructed LOS from the headend to the subscriber's receive-site antenna.
Therefore, in communities with tall trees, hilly terrain, tall buildings or
other obstructions in the transmission path, wireless cable transmission can
be difficult or impossible to receive at certain locations. Consequently,
the Company may not be able to supply service to certain potential
subscribers. While in certain instances the Company intends to employ low
power repeaters to overcome LOS obstructions, there can be no assurance that
it will be able to secure the necessary FCC authorizations. Based on the
Company's installation and operating experience, the Company believes that
its signal can be received directly by approximately 80% of the households
within the Company's signal pattern in the Markets currently in operation.
The Company also estimates that its signals in its other Markets will be
receivable by an average of approximately 70% of the households within the
Company's expected signal patterns for such Markets. The terrain in most of
the Company's Markets is generally conducive to wireless cable transmission.
In addition to limitations resulting from terrain, in limited circumstances
extremely adverse weather can damage transmission and receive-site antennas,
as well as other transmission equipment.
Dependence on Existing Management
The Company is dependent in large part on the experience and knowledge of
existing management. The loss of the services of one or more of the
Company's current executive officers could have a material adverse effect
upon the Company. The Company has employment agreements with and is
dependent on certain senior managers. Such employment agreements provide,
among other things, that the executive will not compete with the Company or
its subsidiaries within a specified area during the period of employment and
for two years thereafter. The Company has recently added new members to its
management team. The Company believes that it will require additional
management personnel as it commences operations in new Markets. The failure
of the Company to attract and retain such personnel could have a material
adverse effect on the Company.
Control by Principal Stockholders
Affiliates of The Chase Manhattan Corporation ("Chase"), Heartland and
Mississippi Wireless T.V., L.P. ("MWTV") collectively beneficially own 48.7%
of the outstanding Common Stock on a fully diluted basis. These stockholders
are parties to a stockholders agreement (the "Stockholders Agreement"),
pursuant to which they have agreed to vote their Common Stock so that the
Board of Directors of the Company will have up to nine members, up to three
of whom will be designated by Heartland, up to two of whom will be designated
by the affiliates of Chase and Baseball Partners, collectively, and one of
whom may be designated by the Former TruVision Stockholders other than Chase
Venture Capital Associates, L.P. ("CVCA"). The parties to the Stockholders
Agreement have effective control over the election of the Company's Board of
Directors and generally exercise control over the Company's affairs. Such
concentration of ownership could also have the effect of delaying, deterring
or preventing a change in control of the Company that might otherwise be
beneficial to stockholders.
Possible Volatility of Common Stock Price
The trading price of the Common Stock could be subject to wide
fluctuations in response to variations in the Company's quarterly operating
results, changes in earnings estimates by analysts, conditions in the
wireless cable industry, regulatory trends 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,
often unrelated to the operating performance of the specific companies. Such
market fluctuations could adversely affect the market price for the Common
Stock.
Shares Eligible for Future Sale
The Company has a total of 19,265,169 shares of Common Stock outstanding
(assuming the exercise of (i) the 1995 Warrants, (ii) the 1996 Warrants,
(iii) warrants issued to Gerard, Klauer & Mattison L.L.C. upon consummation
of the Heartland Transaction and (iv) certain director, management and
employee options). Of these shares 4,492,811 shares are freely transferable
by persons other than affiliates of the Company without restriction or
registration under the Securities Act (including the 944,059 shares issuable
upon exercise of the 1995 and 1996 Warrants). All Shares sold pursuant to
this Prospectus will be freely transferable by persons other than affiliates
of the Company without restriction or registration under the Securities Act.
The remaining shares (except for shares issuable upon the exercise of
director, management and employee options) are "restricted securities" as
that term is defined by Rule 144 under the Securities Act and may not be sold
other than pursuant to an effective registration statement under the
Securities Act or pursuant to an exemption from such registration
requirement. Sales of a substantial number of shares of Common Stock in the
public market or under Rule 144 or otherwise, or the perception that such
sales could occur, could adversely affect the prevailing market price of the
Common Stock.
Certain Provisions of the Company's Certificate of Incorporation and By-laws
and the DGCL
The Company's Amended and Restated Certificate of Incorporation (the
"Certificate of Incorporation") and By-laws (the "By-laws") and the Delaware
General Corporation Law (the "DGCL") contain provisions which may have the
effect of delaying, deterring or preventing a future takeover or change in
control of the Company unless such takeover or change in control is approved
by the Company's Board of Directors. Such provisions may also render the
removal of directors and management more difficult. The Company's
Certificate of Incorporation and By-laws provide for, among other things, a
classified Board of Directors serving staggered terms of three years, removal
of directors only for cause and only by the affirmative vote of the holders
of a majority of the voting power of the then outstanding voting capital
stock of the Company, voting together as a single class, exclusive authority
of the Board of Directors to fill vacancies on the Board of Directors (other
than in certain limited circumstances), advance notice requirements for
stockholder nominations of candidates for election to the Board of Directors
and certain other stockholder proposals, restrictions on who may call a
special meeting of stockholders and a prohibition on stockholder action by
written consent. Amendments to certain provisions in the Certificate of
Incorporation require the affirmative vote of the holders of at least 80% of
the total votes eligible to be cast in the election of directors, voting
together as a single class. In addition, the Company's Board of Directors
has the ability to authorize the issuance of up to 10 million shares of
preferred stock in one or more series and to fix the voting powers,
designations, preferences and relative, participating, optional and other
special rights and qualifications, limitations or restrictions thereof
without stockholder approval, which ability could be used to deter, delay or
prevent a change in control of the Company. The DGCL also contains
provisions preventing certain stockholders from engaging in business
combinations with the Company, subject to certain exceptions.
Forward-Looking Statements
The Prospectus contains certain forward-looking statements concerning the
Company's operations, economic performance and financial condition, including
in particular, the integration of the Company's recent and pending
acquisitions into the Company's existing operations. Such statements are
subject to various risks and uncertainties. Actual results could differ
materially from those currently anticipated due to a number of factors,
including those identified under "Risk Factors" and elsewhere in this
Prospectus.
Certain documents incorporated by reference in this Prospectus contain
both statements of historical fact and "forward-looking statements" within
the meaning of Section 27A of the Securities Act and Section 21E of the
Exchange Act. Examples of forward-looking statements include: (i)
projections of revenue, earnings, capital structure and other financial
items, (ii) statements of the plans and objectives of the Company or its
management, (iii) statements of future economic performance of the Company
and (iv) assumptions underlying statements regarding the Company or its
business. Important factors, risks and uncertainties that could cause actual
results to differ materially from any forward-looking statements ("Cautionary
Statements") are disclosed in certain documents incorporated by reference
herein. All subsequent written and oral forward-looking statements
attributable to the Company or persons acting on its behalf are expressly
qualified in their entirety by the Cautionary Statements.
SELLING SHAREHOLDERS
In connection with the consummation of the TruVision Transaction, the
Company issued 180,000 shares to Vision Communications, Inc. ("VCI"), a
corporation controlled by Henry M. Burkhalter, in satisfaction of certain
contractual arrangements between TruVision and Mr. Burkhalter. In addition,
the Company entered into a registration rights agreement with certain of its
shareholders, including VCI (the "Registration Rights Agreement"), pursuant
to which the Company has agreed, among other things, to bear all expenses
with respect to the registration of the Shares and to indemnify each Selling
Shareholder against certain liabilities, including liabilities arising under
the federal securities laws.
Thereafter, VCI transferred 32,400 of the Shares to William J. Van
Devender in satisfaction of a contractual arrangement between VCI and Mr. Van
Devender related to a change in control of VCI.
Mr. Burkhalter was the Chairman of the Board, President and Chief
Executive Officer of TruVision prior to the consummation of the TruVision
Transaction and is currently the President of the Company and Vice Chairman
of the Company's Board of Directors. As part of the TruVision Transaction,
the Company assumed non-qualified stock options issued by TruVision to Mr.
Burkhalter, which, as assumed by the Company, cover 78,015 shares of Common
Stock, are fully vested and have a weighted exercise price of $6.82 per
share. MWTV received 1,702,406 shares of Common Stock pursuant to the
TruVision Transaction. Mr. Burkhalter is the President and controlling
shareholder of Wireless TV, Inc. ("WTV"), which is the general partner of and
has the power to vote and dispose of all shares of Common Stock held by MWTV.
Mr. Burkhalter is also party to the Stockholders Agreement, pursuant to which
the parties thereto agreed, among other things, to vote their Common Stock so
that the holders of a majority of the shares issued to the former owners of
TruVision (as long as such shares are held by such former owners) can
designate one member of the Board of Directors. Mr. Burkhalter currently has
the power to vote a majority of such shares and serves on the Company's Board
of Directors as the designee of the former owners of TruVision.
Mr. Van Devender is currently a director of the Company. In connection
with the TruVision Transaction, VanCom, Inc. ("VanCom"), a corporation
controlled by Mr. Van Devender, was issued 42,560 shares of Common Stock.
VanCom is a party to the Stockholders Agreement, and Mr. Van Devender
currently serves on the Company's Board of Directors as a designee of Chase.
The table below sets forth certain information regarding the beneficial
ownership of Common Stock by each Selling Shareholder prior to the offering
of the Shares and as adjusted to give effect to the sales of all Shares. The
Shares are being registered to permit secondary trading of the Shares, and
the Selling Shareholders may offer the Shares for sale from time to time.
See "Plan of Distribution."
<TABLE>
<CAPTION>
Beneficial Ownership Beneficial Ownership
as of October 31, 1996 After the Offering
-------------------------- ------------------------
Number of
Number Percentage Shares Offered Number Percentage
Selling Stockholders of Shares of Class Hereby of Shares of Class
- -------------------- --------- ---------- -------------- --------- ----------
<S> <C> <C> <C> <C> <C>
Vision Communications, Inc. (1) 147,600 * 147,600 --- ---
William J. Van Devender (2) 74,960 * 32,400 42,560 *
________________
</TABLE>
*Less than 1.0%
(1) Shares beneficially owned by VCI do not include 1,812,821 shares of Common
Stock beneficially owned by Mr. Burkhalter, the controlling shareholder of
VCI.
(2) Shares beneficially owned by Mr. Van Devender include shares owned by
VanCom, a corporation controlled by Mr. Van Devender. VanCom is a limited
partner of MWTV and has a right to 22.9167% of allocations and
distributions of MWTV. No Common Stock owned by MWTV is included for Mr.
Van Devender as VanCom does not have the right to vote or dispose of such
Common Stock.
PLAN OF DISTRIBUTION
The Selling Shareholders have advised the Company that the Shares may be
sold from time to time by the Selling Shareholders, or by pledgees, donees,
transferees or other successors in interest, on the Nasdaq National Market
(or any national securities exchange or U.S. automated interdealer quotation
system of a registered national securities association on which shares of the
Common Stock are then listed), or in negotiated transactions or otherwise.
The Shares will be sold at prices and at terms then prevailing or at prices
related to the then current market prices, or at negotiated prices. The
Company has been advised that the Selling Shareholders may effect sales of
the Shares directly, or indirectly by or through agents or broker-dealers and
that the Shares may be sold by one or more of the following methods: (a) a
block trade in which the broker-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-dealer as
principal and resale by such broker-dealer for its account pursuant to this
prospectus; (c) an exchange distribution in accordance with the rules of such
exchange; and (d) ordinary brokerage transactions and transactions in which
the broker solicits purchasers. In effecting sales, broker-dealers engaged
by the Selling Shareholders may arrange for other broker-dealers to
participate in the resales.
In connection with distributions of the Shares or otherwise, the Selling
Shareholders may enter into hedging transactions with broker-dealers. In
connection with such transactions, broker-dealers may engage in short sales
of the Shares in the course of hedging the positions they assume with Selling
Shareholders. The Selling Shareholders may also sell shares short and
redeliver the shares to close out such short positions. The Selling
Shareholders may also enter into option or other transactions with broker-
dealers which require the delivery to the broker-dealer of the shares
registered hereunder, which the broker-dealer may resell or otherwise
transfer pursuant to this prospectus. The Selling Shareholders may also loan
or pledge the Shares to a broker-dealer and the broker-dealer may sell the
Shares so loaned or upon a default the broker-dealer may effect sales of the
pledged Shares pursuant to this prospectus.
Broker-dealers or agents may receive compensation in the form of
commissions, discounts or concessions from Selling Shareholders in amounts to
be negotiated in connection with the sale. Such broker-dealers and any other
participating broker-dealers may be deemed to be "underwriters" within the
meaning of the Securities Act of 1933, as amended (the "Act"), in connection
with such sales and any such commission, discount or concession may be deemed
to be underwriting discounts or commissions under the Act. In addition, any
securities covered by this prospectus which qualify for sale pursuant to Rule
144 may be sold under Rule 144 rather than pursuant to this prospectus.
All costs, expenses and fees in connection with the registration of the
shares will be borne by the Company. Commissions and discounts, if any,
attributable to the sales of the Shares will be borne by the Selling
Shareholders.
LEGAL MATTERS
The legality of the Common Stock offered hereby will be passed upon for
the Company by Jones, Walker, Waechter, Poitevent, Carrere & Denegre L.L.P.,
New Orleans, Louisiana.
EXPERTS
The consolidated financial statements and schedule of Wireless One, Inc.
and subsidiaries as of December 31, 1994 and 1995 and for the period from
February 4, 1993 (inception) through December 31, 1993 and the years ended
December 31, 1994 and 1995 and the financial statements of Heartland Division
as of December 31, 1993 and 1994 and for the years ended December 31, 1992
and 1993, the period from January 1, 1994 to August 18, 1994 and the period
from August 19, 1994 to December 31, 1994 are incorporated by reference in
this Prospectus and in the Registration Statement in reliance upon the
reports of KPMG Peat Marwick LLP, independent certified public accountants,
incorporated by reference herein and in the Registration Statement and upon
the authority of said firm as experts in accounting and auditing.
The report of KPMG Peat Marwick LLP covering the financial statements of
Heartland Division contains an explanatory paragraph that refers to a
business combination in 1994 accounted for as a purchase involving assets
comprising a portion of Heartland Division. As a result of the acquisition,
financial information of Heartland Division for periods after August 18, 1994
is presented on a different cost basis than that for periods before August
18, 1994 and, therefore, such information is not comparable.
The financial statements of TruVision Wireless, Inc., Madison
Communications, Inc. and Beasley Communications, Inc., and BarTel, Inc.
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 herein by reference in reliance
upon the authority of such firm as experts in accounting and auditing in
giving such reports.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Exchange
Act, and in accordance therewith, files, reports, proxy statements and other
information with the Commission. Such reports, proxy statements and other
information may be inspected by anyone without charge at the Public Reference
Section of the Commission at Room 1024, Judiciary Plaza, 450 Fifth Street,
N.W., Washington, D.C. 20549, and at the regional offices of the Commission
located at 7 World Trade Center, Suite 1300, New York, New York 10048 and 500
West Madison Street, Suite 1400, Chicago, Illinois 60661. A Registration
Statement on Form S-3 under the Securities Act, including amendments thereto,
relating to the Common Stock offered hereby has been filed by the Company
with the Commission. This Prospectus does not contain all of the information
set forth in the Registration Statement and the exhibits and schedules
thereto. For further information with respect to the Company and the Common
Stock offered hereby, reference is made to such Registration Statement and
exhibits and schedules filed as a part thereof. Copies of all or any portion
of the Registration Statement may be obtained from the Public Reference
Section of the Commission, 450 Fifth Street, N.W., Washington, D.C. 20549, at
prescribed rates. Additionally, the Commission maintains a web site
(http://www.sec.gov) that contains reports, proxy and information statements
and other information regarding registrants that file electronically with the
Commission, including the Company. The Company's Common Stock is quoted on
the Nasdaq National Market, and such reports, proxy statements and other
information regarding the Company can be inspected at the offices of Nasdaq
Operations, 1735 K Street, N.W., Washington, D.C. 20006.
Statements made in this Prospectus as to the contents of any contract,
agreement or other document referred to are not necessarily complete, but
such statements are complete in all material respects for the purposes herein
made. With respect to each such contract, agreement or other document filed
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.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, which have been filed by the Company with the
Commission pursuant to the Exchange Act, are by this reference incorporated
in and made a part of this Prospectus: (i) the Company's Annual Report on
Form 10-K for the fiscal year ended December 31, 1995 (File No. 0-26836);
(ii) the Company's Quarterly Reports on Form 10-Q for the fiscal quarters
ended March 31, 1996 and June 30, 1996; (iii) the Company's Current Reports
on Form 8-K dated August 14, 1996, October 1, 1996 and November 1, 1996, (iv)
the Index to Financial Statements and the Financial Statements of Heartland
Division and Bartel, Inc. set forth in the Company's prospectus included in
Registration Statement No. 333-5109 at effectiveness and (v) the description
of the Company's capital stock set forth in its Registration Statement under
the Exchange Act on Form 8-A filed with the Commission September 25, 1995.
All reports and other documents subsequently filed by the Company pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of
this Prospectus and prior to the termination of the offering of the Common
Stock offered hereby shall be deemed to be incorporated by reference herein
and to be part of this Prospectus from their respective dates of filing. Any
statement contained in a document incorporated or deemed to be incorporated
by reference herein shall be deemed to be modified or superseded to the
extent that a statement contained herein or in any other document
subsequently filed which also is or is deemed to be incorporated by reference
herein modifies or supersedes such statement. Any statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
The Company hereby undertakes to provide without charge to each person to
whom this Prospectus is delivered, upon a written or oral request, a copy of
any or all of the documents that are incorporated herein by reference (other
than exhibits to such documents, unless such exhibits are specifically
incorporated by reference into such documents). Requests should be directed
to Wireless One, Inc., Attention: Secretary, 11301 Industriplex Boulevard,
Suite 4, Baton Rouge, Louisiana 70809-4115; Telephone No. (504) 293-5000.
No dealer, salesman or other Prospectus
person has been authorized to
give any information or 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
buy any of the securities offered
hereby in any jurisdiction to any
person to whom it is unlawful to
make such offer in such
jurisdiction.
Wireless One, Inc.
=================================
180,000 Shares
Common Stock
($0.01 par value per share)
Table of Contents
The Company.................2
Recent Developments.........2
Risk Factors................3
Use of Proceeds............10
Dilution...................10
Selling Shareholders.......10
Plan of Distribution.......10
Legal Matters..............10
Experts....................11
Available Information......11 November _____, 1996
Incorporation of Certain
Documents by Reference.....11
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the various expenses in connection with
the sale and distribution of the securities being registered. All of the
amounts shown are estimated except the Securities and Exchange Commission
registration fee.
SEC registration fee $ 710
Legal fees and expenses 10,000
Accounting fees and expenses 5,000
Miscellaneous 1,290
-------------
Total $ 17,000
=============
The Registrant will bear all of the foregoing fees and expenses.
Item 15. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law (the "DGCL")
provides that a corporation may indemnify directors and officers as well as
other employees and individuals against expenses (including attorneys' fees),
judgments, fines, and amounts paid in settlement in connection with specified
actions, suits, or proceedings, whether civil, criminal, administrative, or
investigative (other than action by or in the right of the corporation-a
"derivative action"), if they acted in good faith and in a manner they
reasonably believed to be in or not opposed to the best interests of the
corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe their conduct was unlawful. A similar standard is
applicable in the case of derivative actions, except that indemnification only
extends to expenses (including attorneys' fees) incurred in connection with
the defense or settlement of such action, and the statute requires court
approval before there can be any indemnification where the person seeking
indemnification has been found liable to the corporation. The statute
provides that it is not exclusive of other indemnification that may be granted
by a corporation's charter, by-laws, disinterested director vote, stockholder
vote, agreement or otherwise. Article IX of the Registrant's By-laws requires
indemnification to the fullest extent permitted by Delaware law. In addition,
the Registrant has entered into indemnity agreements with its directors, which
obligate the Registrant to indemnify such directors to the fullest extent
permitted by the DGCL. The Registrant also intends to obtain, prior to the
effective date of this Registration Statement, officers' and directors'
liability insurance which insures against liabilities that officers and
directors of the Registrant may incur in such capacities.
Section 102(b)(7) of the DGCL permits a corporation to provide in its
certificate of incorporation that a director of the corporation shall not be
personally liable to the corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, except for liability (i) for any
transaction from which the director derives an improper personal benefit, (ii)
for acts or omissions not in good faith or that involve intentional misconduct
or a knowing violation of law, (iii) for improper payment of dividends or
redemptions of shares or (iv) for any breach of a director's duty of loyalty
to the company or its stockholders. Article VI of the Registrant's
Certificate of Incorporation includes such a provision.
Item 16. Exhibits
Exhibit No. Description
2.1 TruVision Merger Agreement among the Registrant,
TruVision and Wireless One MergerSub, Inc., dated
April 25, 1996(1)
3.1(i) Amended and Restated Certificate of Incorporation of
the Registrant(2)
3.1(ii) Bylaws of the Registrant(2)
4.1 Indenture between the Registrant and United States
Trust Company of New York, as Trustee, dated October
24, 1995(3)
4.2 Warrant Agreement between the Registrant and United
States Trust Company of New York, as Warrant Agent,
dated October 24, 1995(3)
4.3 Escrow and Disbursement Agreement between the
Registrant and Bankers Trust Corporation, Escrow
Agent, dated October 24, 1995(3)
4.4 Supplemental Indenture between the Registrant and
United States Trust Company of New York, as Trustee,
dated July 26, 1996(4)
4.5 Indenture between the Registrant and United States
Trust Company of New York as Trustee, dated August 12,
1996(4)
4.6 Warrant Agreement between the Registrant and United
States Trust Company of New York, as Warrant Agent,
dated August 12, 1996(4)
4.7 Unit Agreement between the Registrant and United
States Trust Company of New York, as Unit Agent, dated
August 12, 1996(4)
5.1 Opinion of Jones, Walker, Waechter, Poitevent, Carrere
& Denegre L.L.P. (including the consent of such firm)
as to the validity of the common stock being
offered(6)
10.1 Contribution Agreement and Plan of Merger among, inter
alia, the Registrant, Old Wireless One and its
stockholders and Heartland dated October 18, 1995(3)
10.2 Escrow Agreement among the parties to Exhibit 10.1
dated October 24, 1995(3)
10.3 1995 Long-Term Performance Incentive Plan of the
Registrant(3)
10.4 1996 Director's Stock Option Plan of the Registrant(4)
10.5 Warrant Agreement between the Registrant and GKM
(including form of warrant certificate) dated October
18, 1995(3)
10.6 Amended and Restated Registration Rights Agreement
among the Registrant, Heartland and certain
stockholders dated July 29, 1996(4)
10.7 Amended and Restated Stockholders Agreement among the
Registrant, and certain stockholders dated July 29,
1996(4)
10.8 Standard forms of MDS License Agreement of the
Registrant(2)
10.9 Standard forms of ITFS License Agreement of the
Registrant(2)
10.10 Form of Employment Agreement between the Registrant
and certain executive officers(1)
10.11 Acquisition and Market Escrow Agreement among the
parties to Exhibit 2.1 dated July 29, 1996(1)
10.12 Amendment to Amended and Restated Stockholders
Agreement among the Registrant, and certain
stockholders dated as of September 17, 1996(5)
23.1 Consent of Jones, Walker, Waechter, Poitevent, Carrere
& Denegre L.L.P. (included in Exhibit 5.1)(6)
23.2 Consent of KPMG Peat Marwick LLP (Dallas, TX)(6)
23.3 Consent of KPMG Peat Marwick LLP (New Orleans, LA)(6)
23.4 Consent of Arthur Andersen LLP (Jackson,
Mississippi)(6)
24.1 Powers of Attorney (Included on Signature Page)(6)
______________________
(1) Incorporated herein by reference from the Registrant's Registration
Statement on Form S-1 (Registration Number 333-05109) as declared
effective by the Commission on August 7, 1996
(2) Incorporated herein by reference from the Registrant's Registration
Statement on Form S-1 (Registration Number 33-94942) as declared
effective by the Commission on October 18, 1995.
(3) Incorporated herein by reference from the Registrant's Quarterly
Report on Form 10-Q for the fiscal quarter ended September 30,1995.
(4) Incorporated herein by reference from the Registrant's Registration
Statement on Form S-1 (Registration Number 333-12449) as declared
effective on October 18, 1996.
(5) Incorporated herein by reference from the Registrant's Post-Effective
Amendment No. 1 to Form S-1 on Form S-3 (Registration Number 333-12449)
as declared effective on October 21, 1996.
(6) Filed herewith.
Item 17. Undertakings
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 provisions described in Item
14 above, or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in such Securities Act, and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than 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 such Securities Act and will be governed by the final
adjudication of such issue.
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.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than 20% change
in the maximum aggregate offering price set forth in "Calculation
of Registration Fee" table in the effective 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 Registration Statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or
furnished to the Commission 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.
(4) That, for the purpose of determining any liability under the
Securities Act, each filing of the Registrant's annual report pursuant
to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in the Registration Statement shall be deemed
to be a new registration statement relating to the securities offered
herein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
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 Baton Rouge, State of Louisiana on
the 31st day of October, 1996.
WIRELESS ONE, INC.
By: /s/ Henry M. Burkhalter
_______________________________
Henry M. Burkhalter
President and Vice Chairman
of the Board
KNOWN ALL MEN BY THESE PRESENTS that each person whose signature appears
below constitutes and appoints Sean E. Reilly and Michael C. Ellis, and each
of them acting individually, his true and lawful attorney-in-fact and agent,
with full power of substitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-
effective amendments) to this Registration Statement, and to file the same
with all exhibits thereto, and other documents in connection therewith, with
the Securities and Exchange Commission, granting into said attorney-in-fact
full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact or agent 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 the 31st day of October, 1996, by
the following persons in the capacities indicated.
Signature Title
/s/ Hans J. Sternberg Chairman of the Board
------------------------------
Hans J. Sternberg
/s/ Henry M. Burkhalter President and Vice Chairman of the
------------------------------ Board
Henry M. Burkhalter
/s/ Sean E. Reilly Chief Executive Officer and Director
------------------------------ (Principal Executive Officer)
Sean E. Reilly
/s/ Michael C. Ellis Vice President and Controller
------------------------------ (Prinicpal Financial and Accounting
Michael C. Ellis Officer)
/s/ William K. Luby Director
------------------------------
William K. Luby
Director
------------------------------
Arnold L. Chavkin
Director
------------------------------
Daniel L. Shimer
/s/ J. R. Holland, Jr. Director
------------------------------
J. R. Holland, Jr.
/s/ William J. Van Devender Director
------------------------------
William J. Van Devender
Director
------------------------------
David E. Webb
EXHIBIT INDEX
Exhibit No. Description Page No.
2.1 TruVision Merger Agreement among the Registrant,
TruVision and Wireless One MergerSub, Inc., dated
April 25, 1996(1)
3.1(i) Amended and Restated Certificate of Incorporation of
the Registrant(2)
3.1(ii) Bylaws of the Registrant(2)
4.1 Indenture between the Registrant and United States
Trust Company of New York, as Trustee, dated October
24, 1995(3)
4.2 Warrant Agreement between the Registrant and United
States Trust Company of New York, as Warrant Agent,
dated October 24, 1995(3)
4.3 Escrow and Disbursement Agreement between the
Registrant and Bankers Trust Corporation, Escrow
Agent, dated October 24, 1995(3)
4.4 Supplemental Indenture between the Registrant and
United States Trust Company of New York, as Trustee,
dated July 26, 1996(4)
4.5 Indenture between the Registrant and United States
Trust Company of New York as Trustee, dated August
12, 1996(4)
4.6 Warrant Agreement between the Registrant and United
States Trust Company of New York, as Warrant Agent,
dated August 12, 1996(4)
4.7 Unit Agreement between the Registrant and United
States Trust Company of New York, as Unit Agent,
dated August 12, 1996(4)
5.1 Opinion of Jones, Walker, Waechter, Poitevent, Carrere
& Denegre L.L.P. (including the consent of such firm)
as to the validity of the common stock being offered(6)
10.1 Contribution Agreement and Plan of Merger among, inter
alia, the Registrant, Old Wireless One and its
stockholders and Heartland dated October 18, 1995(3)
10.2 Escrow Agreement among the parties to Exhibit 10.1
dated October 24, 1995(3)
10.3 1995 Long-Term Performance Incentive Plan of the
Registrant(3)
10.4 1996 Director's Stock Option Plan of the Registrant(4)
10.5 Warrant Agreement between the Registrant and GKM
(including form of warrant certificate) dated October
18, 1995(3)
10.6 Amended and Restated Registration Rights Agreement
among the Registrant, Heartland and certain
stockholders dated July 29, 1996(4)
10.7 Amended and Restated Stockholders Agreement among the
Registrant, and certain stockholders dated July 29,
1996(4)
10.8 Standard forms of MDS License Agreement of the
Registrant(2)
10.9 Standard forms of ITFS License Agreement of the
Registrant(2)
10.10 Form of Employment Agreement between the Registrant
and certain executive officers(1)
10.11 Acquisition and Market Escrow Agreement among the
parties to Exhibit 2.1 dated July 29, 1996(1)
10.12 Amendment to Amended and Restated Stockholders
Agreement among the Registrant, and certain
stockholders dated as of September 17, 1996(5)
23.1 Consent of Jones, Walker, Waechter, Poitevent, Carrere
& Denegre L.L.P. (included in Exhibit 5.1)(6)
23.2 Consent of KPMG Peat Marwick LLP (Dallas, TX)(6)
23.3 Consent of KPMG Peat Marwick LLP (New Orleans, LA)(6)
23.4 Consent of Arthur Andersen LLP (Jackson,
Mississippi)(6)
24.1 Powers of Attorney (Included on Signature Page)(6)
______________________
(1) Incorporated herein by reference from the Registrant's Registration
Statement on Form S-1 (Registration Number 333-05109) as declared
effective by the Commission on August 7, 1996
(2) Incorporated herein by reference from the Registrant's Registration
Statement on Form S-1 (Registration Number 33-94942) as declared
effective by the Commission on October 18, 1995.
(3) Incorporated herein by reference from the Registrant's Quarterly
Report on Form 10-Q for the fiscal quarter ended September 30,1995.
(4) Incorporated herein by reference from the Registrant's Registration
Statement on Form S-1 (Registration Number 333-12449) as declared
effective on October 18, 1996.
(5) Incorporated herein by reference from the Registrant's Post-Effective
Amendment No. 1 to Form S-1 on Form S-3 (Registration Number 333-12449)
as declared effective on October 21, 1996.
(6) Filed herewith.
EXHIBIT 5
[LETTERHEAD OF JONES, WALKER, WAECHTER,
POITEVENT, CARRERE & DENEGRE, L.L.P.]
November 4, 1996
Wireless One, Inc.
11301 Industriplex Blvd., Suite 4
Baton Rouge, Louisiana 70809-4115
RE: Wireless One, Inc.
Registration Statement on Form S-3
180,000 shares of Common Stock
Gentlemen:
We have acted as your counsel in connection with the preparation of the
registration statement on Form S-3 (the "Registration Statement") filed by
Wireless One, Inc. (the "Company") with the Securities and Exchange Commission
(the "Commission"), on the date hereof, with respect to the registration of
180,000 shares of Common Stock, $.01 par value per share (the "Shares"), of
the Company.
In so acting, we have examined originals, or photostatic or certified
copies, of such records of the Company, certificates of officers of the
Company and of public officials, and such other documents as we have deemed
relevant. In such examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals,
the conformity to original documents of all documents submitted to us as
certified or photostatic copies and the authenticity of the originals of such
documents.
Based upon the foregoing, we are of the opinion that the Shares, when
sold upon the terms described in the Registration Statement, will be validly
issued and outstanding, fully paid and non-assessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement and to the reference to us in the prospectus included therein under
the caption "Legal Matters." In giving this consent, we do not admit that we
are within the category of persons whose consent is required under Section 7
of the Securities Act of 1933, as amended, or the general rules and regulations
of the Commission promulgated thereunder.
Very truly yours,
/s/ Jones, Walker, Waechter, Potevent,
Carrere & Denegre, L.L.P.
JONES, WALKER, WAECHTER, POITEVENT,
CARRERE & DENEGRE, L.L.P.
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Wireless One, Inc.
We consent to the use of our report incorporated herein
by reference and to the reference to our firm under the
heading "Experts" in the prospectus.
Our report dated June 20, 1995 contains an explanatory
paragraph that refers to a business combination in 1994
accounted for as a purchase involving assets comprising a
portion of Heartland Division. As a result of the
acquisition, financial information of Heartland Division for
periods after August 18, 1994 is presented on a different cost
basis than that for periods before August 18, 1994, and,
therefore, such information is not comparable.
KPMG Peat Marwick LLP
Dallas, Texas
November 1, 1996
EXHIBIT 23.3
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Wireless One, Inc.
We consent to the use of our reports incorporated herein
by reference and to the reference to our firm under the
heading "Experts" in the prospectus.
KPMG Peat Marwick LLP
New Orleans, Louisiana
November 1, 1996
EXHIBIT 23.4
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to
the use of our reports on the financial statements of
TruVision Wireless, Inc., on the combined financial statements
of Madison Communications, Inc. and Beasley Communications,
Inc. and on the financial statements of BarTel, Inc. as of the
dates and for the periods indicated therein, and to all other
references to our firm incorporated into or made a part of
this Registration Statement.
Arthur Andersen LLP
Jackson, Mississippi
November 1, 1996.
