As filed with the Securities and Exchange Commission on October 21, 1996.
Registration No. 333-12449
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------------------
POST-EFFECTIVE AMENDMENT NO. 1
ON FORM S-3
TO FORM S-1
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
(504) 231-2000
(Name, address, including zip code,
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. [X]
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. [ ]
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. [ ]
------------------------------
This Post-Effective Amendment No. 1 on Form S-3 shall become effective
in accordance with Section 8(c) of the Securities Act of 1933 on such date as
the Commission, acting pursuant to Section 8(c), may determine.
PROSPECTUS
994,059 Shares
Wireless One, Inc.
Common Stock
($0.01 par value per share)
This Prospectus relates to 994,059 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 by the Company exclusively to the
holders, and upon the exercise, of certain warrants previously issued by the
Company.
In October 1995, the Company issued units consisting of $1,000
principal amount of 13% Senior Notes due 2003 (the "13% Notes") and three
warrants to purchase Common Stock (the "1995 Debt Offering," and together
with the initial public offering of the Company's Common Stock in October
1995, the "1995 Offerings"). Each warrant issued as part of the 1995 Debt
Offering entitles the holder to purchase one share of Common Stock at
$11.55 per share (the "1995 Warrants"). The 1995 Warrants are exercisable
at any time after October 23, 1996, until 5:00 p.m. New York City local time
on October 24, 2000. There are currently 450,000 1995 Warrants outstanding.
In August 1996, the Company issued units consisting of $1,000 principal
amount of 13-1/2% Senior Discount Notes due 2006 (the "Discount Notes")
and one warrant to purchase 2.274 shares of Common Stock (the "1996 Debt
Offering"). Each Warrant issued as part of the 1996 Debt Offering entitles
the holder to purchase 2.274 shares of Common Stock at $16.6375 per share
(the "1996 Warrants"). The 1996 Warrants are exercisable at any time after
August 11, 1997, until 5:00 p.m. New York City local time on August 12, 2001.
There are currently 239,252 1996 Warrants outstanding, which entitle their
holders to purchase, in the aggregate, 544,059 shares of Common Stock. All
of the shares of Common Stock offered hereby are being offered by the
Company exclusively to holders of the 1995 and 1996 Warrants.
The Common Stock is listed for quotation on the Nasdaq Stock Market
National Market under the symbol "WIRL". On October 17, 1996, the last
reported sales price of the Common Stock on the Nasdaq Stock Market National
Market was $11.75.
SEE "RISK FACTORS" BEGINNING ON PAGE 4 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.
Price to Underwriting Proceeds to
Public Discounts Company<F2>
and Commissions<F1>
Per share, upon exercise of:
1995 Warrant $11.55 $0.00 $11.55
1996 Warrant $16.6375 $0.00 $16.6375
Total $5,197,500 $0.00 $5,197,500
$9,051,781 $0.00 $9,051,781
<F1> The Common Stock underlying the 1995 and 1996 Warrants is being offered
by the Company through the Prospectus and no commissions, bonuses, or
other fees will be paid to any person in connection with the offer and
sale of the Common Stock.
<F2> Before deducting expenses estimated at $60,000.
------------------------------
The date of this Prospectus is October ____, 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.
TruVision has entered into several definitive agreements with holders
of wireless cable channel rights to expand the Company's markets in the
southeastern United States from Mississippi to western Tennessee and
portions of Alabama 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, (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 and (iii) a purchase and sale agreement with Arden to acquire rights
to 12 wireless cable channels in the Chattanooga, Tennessee market for
$517,000 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.
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 1998 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, 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). 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.
Dilution
On a pro forma combined basis, at June 30, 1996, the net tangible book
value of the Common Stock was $(3.05) per share. Assuming that all of the
1995 and 1996 Warrants were exercised at exercise prices of $11.55 and
$16.6375 per share, respectively, the adjusted pro forma net tangible book
value per share would have been $(1.99) as of that date. Accordingly,
holders of Common Stock issuable upon the exercise of the 1995 and 1996
Warrants would experience immediate dilution in net tangible book value of
$13.54 and $17.77 per share, respectively. See "Dilution."
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.
USE OF PROCEEDS
The net proceeds to the Company, if any, from the Offering will be up to
$14,249,614 net of estimated expenses of the Offering payable by the
Company. The Company currently intends to use the net proceeds of the
Stock Offering, if any, to finance the launch, initial development and
expansion of the Company's Markets. There can be no assurance that any of
the 1995 or 1996 Warrants will be exercised before such Warrants expire
and, as a result, that the Company will receive any proceeds from this
Offering. Even if exercised, the Company cannot predict when the 1995 or
1996 Warrants will be exercised and the proceeds received.
DILUTION
On a pro forma combined basis after giving effect to the consummation of
the TruVision Transaction, the net tangible book value of the Company at
June 30, 1996 would have been $(53.5 million), or $(3.05) per share of
Common Stock. "Net tangible book value per share" represents the amount of
the Company's total tangible assets less the Company's total liabilities
(excluding deferred tax liabilities) divided by the number of shares of
Common Stock outstanding. After giving effect to the exercise of all of
the 1995 and 1996 Warrants at exercise prices of $11.55 and $16.6375 per
share, respectively, the pro forma net tangible book value of the Company
at June 30, 1996 would have been $(36.9 million) or $(1.99) per share,
representing an immediate increase in net tangible book value of $1.05 per
share to existing stockholders and an immediate, substantial dilution of
$13.54 and $17.77 per share, respectively, to investors exercising 1995 or
1996 Warrants, as the case may be. Dilution in net tangible book value
represents the difference between the price per share to be paid by
purchasers upon exercise of the 1995 and 1996 Warrants and the pro forma
combined net tangible book value as of June 30, 1996.
PLAN OF DISTRIBUTION
The Common Stock offered hereby is being offered by the Company
exclusively to the holders of the Company's 1996 and 1995 Warrants. The
Company does not have any agreement with any underwriter or other party for
the distribution of the Common Stock offered hereby. The Common Stock is
being offered by the Company through this Prospectus, and no commissions or
other remunerations will be paid to any person for soliciting the exercise
of the 1996 and 1995 Warrants and the sale of the Common Stock.
The Company has agreed to maintain the effectiveness of the registration
statement of which this Prospectus forms a part until October 24, 2000,
with respect to the 1995 Warrants, and August 12, 2001, with respect to the
1996 Warrants. As a result, the Common Stock issuable upon exercise of the
1995 and 1996 Warrants will be freely transferable by the holders thereof
(other than affiliates of the Company).
Certain persons who acquire Common Stock upon exercise of the 1996 and
1995 Warrants may be deemed to be "issuers" under the Securities Act of
1933, as amended (the "Securities Act"), because of their relationship with
the Company ("Affiliates") and, therefore, may be required to deliver a
copy of this Prospectus, including a Prospectus Supplement, to any person
who purchases shares of Common Stock acquired by such Affiliate through
exercise of the 1996 and/or 1995 Warrants ("Restricted Shares"). In
addition, any broker or dealer participating in any distribution of the
Restricted Shares may be deemed to be an "underwriter" within the meaning
of the Securities Act and, therefore, may be required to deliver a copy of
this Prospectus, including a Prospectus Supplement, to any person who
purchases any Restricted Shares from or through such broker or dealer.
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-1 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 and October 1, 1996, (iv) 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, and (v) the Index to Financial Statements and the financial
statements of Heartland Division, TruVision Wireless, Inc., Madison
Communications, Inc. and Beasley Communications, Inc., and BarTel, Inc. set
forth in the Company's prospectus included in Registration Statement No.
333-5109 at effectiveness.
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.
944,059 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
Plan of Distribution...........10
Legal Matters..................10
Experts........................11
Available Information..........11
Incorporation of Certain
Documents by Reference.......11
October ____, 1996
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 $ 2,328
Blue sky fees and expenses 2,672
Legal fees and expenses 22,000
Accounting fees and expenses 33,000
Miscellaneous
----------
Total $ 60,000
==========
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<F1>
3.1(i) Amended and Restated Certificate of Incorporation of
the Registrant<F2>
3.1(ii) Bylaws of the Registrant<F3>
4.1 Indenture between the Registrant and United States
Trust Company of New York, as Trustee, dated October
24, 1995<F3>
4.2 Warrant Agreement between the Registrant and United
States Trust Company of New York, as Warrant Agent,
dated October 24, 1995<F3>
4.3 Escrow and Disbursement Agreement between the
Registrant and Bankers Trust Corporation, Escrow
Agent, dated October 24, 1995<F3>
4.4 Supplemental Indenture between the Registrant and
United States Trust Company of New York, as Trustee,
dated July 26, 1996<F4>
4.5 Indenture between the Registrant and United States
Trust Company of New York as Trustee, dated August 12,
1996 <F4>
4.6 Warrant Agreement between the Registrant and United
States Trust Company of New York, as Warrant Agent,
dated August 12, 1996<F4>
4.7 Unit Agreement between the Registrant and United
States Trust Company of New York, as Unit Agent, dated
August 12, 1996<F4>
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<F4>
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<F3>
10.2 Escrow Agreement among the parties to Exhibit 10.1
dated October 24, 1995<F3>
10.3 1995 Long-Term Performance Incentive Plan of the
Registrant<F3>
10.4 1996 Director's Stock Option Plan of the Registrant<F4>
10.5 Warrant Agreement between the Registrant and GKM
(including form of warrant certificate) dated October
18, 1995<F3>
10.6 Amended and Restated Registration Rights Agreement
among the Registrant, Heartland and certain
stockholders dated July 29, 1996<F4>
10.7 Amended and Restated Stockholders Agreement among the
Registrant, and certain stockholders dated July 29,
1996<F4>
10.8 Standard forms of MDS License Agreement of the
Registrant<F2>
10.9 Standard forms of ITFS License Agreement of the
Registrant<F2>
10.10 Form of Employment Agreement between the Registrant
and certain executive officers<F1>
10.11 Acquisition and Market Escrow Agreement among the
parties to Exhibit 2.1 dated July 29, 1996<F1>
10.12 Amendment to Amended and Restated Stockholders
Agreement among the Registrant, and certain
stockholders dated as of September 17, 1996<F5>
23.1 Consent of Jones, Walker, Waechter, Poitevent, Carrere
& Denegre L.L.P. (included in Exhibit 5.1)<F4>
23.2 Consent of KPMG Peat Marwick LLP (Dallas, TX)<F5>
23.3 Consent of KPMG Peat Marwick LLP (New Orleans, LA)<F5>
23.4 Consent of Arthur Andersen & Co. LLP (Jackson,
Mississippi)<F5>
24.1 Powers of Attorney (Included on Signature Page)<F4>
______________________
<F1> Incorporated herein by reference from the Registrant's
Registration Statement Form S-1 (Registration Number 333-05109)
as declared effective by the Commission on August 7, 1996
<F2> 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.
<F3> Incorporated herein by reference from the Registrant's
Quarterly Report on Form 10-Q for the fiscal quarter ended
September 30, 1995.
<F4> Previously filed.
<F5> 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 Amendment No. 1 on Form S-3 to Registration Statement No. 333-12449 to
be signed on its behalf by the undersigned, thereunto duly authorized, in
the City of Baton Rouge, State of Louisiana on the 18th day of October,
1996.
WIRELESS ONE, INC.
By: Henry M. Burkhalter*
-----------------------------
Henry M. Burkhalter
President and Vice Chairman
of the Board
Pursuant to the requirements of the Securities Act of 1933, this
Amendment No. 1 on Form S-3 to Registration Statement No. 333-12449 has
been signed on the 18th day of October, 1996, by the following persons in
the capacities indicated.
Signature Title
Hans J. Sternberg* Chairman of the Board
- ----------------------------------
Hans J. Sternberg
Henry M. Burkhalter* President and Vice Chairman of the
- ---------------------------------- Board
Henry M. Burkhalter
Sean E. Reilly* Chief Executive Officer and Director
- ---------------------------------- (Principal Executive Officer)
Sean E. Reilly
/s/Michael C. Ellis Vice President and Controller
- ---------------------------------- (Principal Financial and Accounting
Micahel C. Ellis Officer)
William K. Luby* Director
- ----------------------------------
William K. Luby
Arnold L. Chavkin* Director
- ----------------------------------
Arnold L. Chavkin
Daniel L. Shimer* Director
- ----------------------------------
Daniel L. Shimer
J. R. Holland, Jr.* Director
- ----------------------------------
J. R. Holland, Jr.
William J. Van Devender* Director
- ----------------------------------
William J. Van Devender
David E. Webb* Director
- ----------------------------------
David E. Webb
*By: /s/ Michael C. Ellis
------------------------------
Michael C. Ellis
Agent and Attorney-in-Fact
EXHIBIT INDEX
-------------
Exhibit No. Description Page
2.1 TruVision Merger Agreement among the Registrant,
TruVision and Wireless One MergerSub, Inc., dated
April 25, 1996<F1>
3.1(i) Amended and Restated Certificate of Incorporation of
the Registrant<F2>
3.1(ii) Bylaws of the Registrant<F3>
4.1 Indenture between the Registrant and United States
Trust Company of New York, as Trustee, dated October
24, 1995<F3>
4.2 Warrant Agreement between the Registrant and United
States Trust Company of New York, as Warrant Agent,
dated October 24, 1995<F3>
4.3 Escrow and Disbursement Agreement between the
Registrant and Bankers Trust Corporation, Escrow
Agent, dated October 24, 1995<F3>
4.4 Supplemental Indenture between the Registrant and
United States Trust Company of New York, as Trustee,
dated July 26, 1996<F4>
4.5 Indenture between the Registrant and United States
Trust Company of New York as Trustee, dated August 12,
1996 <F4>
4.6 Warrant Agreement between the Registrant and United
States Trust Company of New York, as Warrant Agent,
dated August 12, 1996<F4>
4.7 Unit Agreement between the Registrant and United
States Trust Company of New York, as Unit Agent, dated
August 12, 1996<F4>
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<F4>
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<F3>
10.2 Escrow Agreement among the parties to Exhibit 10.1
dated October 24, 1995<F3>
10.3 1995 Long-Term Performance Incentive Plan of the
Registrant<F3>
10.4 1996 Director's Stock Option Plan of the Registrant<F4>
10.5 Warrant Agreement between the Registrant and GKM
(including form of warrant certificate) dated October
18, 1995<F3>
10.6 Amended and Restated Registration Rights Agreement
among the Registrant, Heartland and certain
stockholders dated July 29, 1996<F4>
10.7 Amended and Restated Stockholders Agreement among the
Registrant, and certain stockholders dated July 29,
1996<F4>
10.8 Standard forms of MDS License Agreement of the
Registrant<F2>
10.9 Standard forms of ITFS License Agreement of the
Registrant<F2>
10.10 Form of Employment Agreement between the Registrant
and certain executive officers<F1>
10.11 Acquisition and Market Escrow Agreement among the
parties to Exhibit 2.1 dated July 29, 1996<F1>
10.12 Amendment to Amended and Restated Stockholders
Agreement among the Registrant, and certain
stockholders dated as of September 17, 1996<F5>
23.1 Consent of Jones, Walker, Waechter, Poitevent, Carrere
& Denegre L.L.P. (included in Exhibit 5.1)<F4>
23.2 Consent of KPMG Peat Marwick LLP (Dallas, TX)<F5>
23.3 Consent of KPMG Peat Marwick LLP (New Orleans, LA)<F5>
23.4 Consent of Arthur Andersen & Co. LLP (Jackson,
Mississippi)<F5>
24.1 Powers of Attorney (Included on Signature Page)<F4>
______________________
<F1> Incorporated herein by reference from the Registrant's
Registration Statement Form S-1 (Registration Number 333-05109)
as declared effective by the Commission on August 7, 1996
<F2> 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.
<F3> Incorporated herein by reference from the Registrant's
Quarterly Report on Form 10-Q for the fiscal quarter ended
September 30, 1995.
<F4> Previously filed.
<F5> Filed herewith.
AMENDMENT TO AMENDED AND
RESTATED STOCKHOLDERS AGREEMENT
THIS AMENDMENT ("Amendment"), dated as of September 17, 1996, is by and
among Chase Venture Capital Associates ("CVCA"), the Persons named on
Schedule I hereto (the "TruVision Stockholders'), Sean Reilly ("Reilly"),
Hans Sternberg ("Sternberg") and those persons named on Schedule II hereto
(together with Reilly and Sternberg, the "Wireless One Stockholders"), Chase
Manhattan Capital Corporation ("CMCC"), Baseball Partners ("Baseball"),
Heartland Wireless Communications, Inc., a Delaware Corporation
("Heartland") and Wireless One, Inc., a Delaware Corporation (the
"Company"), who are the parties to that certain Amended and Restated
Stockholders Agreement made as of July 29, 1996 (the "Stockholders
Agreement"), a copy of which is attached to this Amendment as Exhibit A.
Capitalized terms not otherwise defined in this Amendment have the meanings
ascribed to them in the Stockholders Agreement.
WHEREAS, the parties to this Amendment, who constitute the requisite
Persons to amend the Stockholders Agreement, desire to amend the
Stockholders Agreement for the purpose of deleting as parties thereto the
Wireless One Stockholders.
NOW, THEREFORE, the parties to this Amendment hereby agree as follows:
The Stockholders Agreement is amended as follows:
1. The following Persons are deleted as parties to the Agreement,
to wit: Reilly, Sternberg and the Wireless One Stockholders, who
are, together with Reilly and Sternberg, Advantage Capital
Partners, Limited Partnership, Advantage Capital Partners II,
Limited Partnership and Premier Venture Capital Corporation.
2. The following sections of the Agreement are deleted in their
entireties, to wit: Section 1(a)(iii), Section 1(a)(vi), Section
1(a)(x) and Section 1(a)(xiv).
3. All references in the Agreement to the following terms are
deleted, to wit: Initial Wireless One Share Quantity, Majority
Wireless One Holders, Wireless One Share Consideration, Wireless
One Shares and Wireless One Stockholders.
4. The final sentence of Section 2 is amended to read in its
entirety as follows:
The legend set forth above shall be removed from the
certificates evidencing any shares which cease to be
Stockholder Shares for any reason, including any amendment to
this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment on
the day and year first written above.
CHASE MANHATTAN CAPITAL CORPORATION
By: /s/ Donna R. Carter
-------------------------------------
Name: Donna R. Carter
Title:
BASEBALL PARTNERS
By: /s/ Donna R. Carter
-------------------------------------
Name: Donna R. Carter
Title:
PREMIER VENTURE CAPITAL CORPORATION
By: /s/ Thomas J. Adamek
-------------------------------------
Name: Thomas J. Adamek
Title: President
HEARTLAND WIRELESS COMMUNICATIONS,
INC.
By: /s/ John R. Bailey
-------------------------------------
Name: John R. Bailey
Title: Senior Vice President - Finance
WIRELESS ONE, INC.
By: /s/ Henry M. Burkhalter
-------------------------------------
Name: Henry M. Burkhalter
Title:
MISSISSIPPI WIRELESS TV, L.P.
By: WIRELESS TV, INC.
ITS: General Partner
By: /s/ Henry M. Burkhalter
-------------------------------------
Name: Henry M. Burkhalter
Title:
CHASE VENTURE CAPITAL ASSOCIATES
By: /s/ Arnold L. Chavkin
-------------------------------------
Name: Arnold L. Chavkin
Title: General Partner
VANCOM, INC.
By: /s/ William J. Van Devender
-------------------------------------
Name: William J. Van Devender
Title: President
VISION COMMUNICATIONS, INC.
By: /s/ Henry M. Burkhalter
-------------------------------------
Name: Henry M. Burkhalter
Title:
/s/ Hans Sternberg
----------------------------------------
Hans Sternberg
/s/ Sean E. Reilly
----------------------------------------
Sean E. Reilly
/s/ Henry M. Burkhalter
----------------------------------------
Henry M. Burkhalter
/s/ Bill R. Byer, Jr.
----------------------------------------
Bill R. Byer, Jr.
/s/ Laurence O. Wollhiser, Jr.
----------------------------------------
Laurence 0. Woolhiser, Jr.
----------------------------------------
Walter Eilers
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
/s/ KPMG Peat Marwick LLP
Dallas, Texas
October 18, 1996
EXHIBIT 23.3
INDEPENDENT AUDITORS' REPORT ON
FINANCIAL STATEMENT SCHEDULE AND CONSENT
The Board of Directors
Wireless One, Inc.
The audits referred to in our report dated March 22, 1996, except as
to Note 15 which is as of August 12, 1996, included the related financial
statement schedule for the period from February 3, 1993 (inception)
through December 31, 1993 and the years ended December 31, 1994 and 1995,
incorporated by reference in the registration statement. This financial
statement schedule is the responsibility of the Company's management.
Our responsibility is to express an opinion, on this financial statement
schedule based on our audits. In our opinion such financial statement
schedule, when considered in relation to the basic consolidated financial
statements taken as a whole, presents fairly in all material respects the
information set forth therein.
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
/s/ KPMG Peat Marwick LLP
New Orleans, Louisiana
October 18, 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.
/s/ Arthur Andersen LLP
Jackson, Mississippi
October 17, 1996.
