<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 7, 1996
REGISTRATION NO. 333-5109
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- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
AMENDMENT NO. 4 TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
WIRELESS ONE, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 72-1300837 4841
(STATE OR OTHER (I.R.S. EMPLOYER IDENTIFICATION NO.)
JURISDICTION OF (PRIMARY STANDARD
INCORPORATION OR INDUSTRIAL CLASSIFICATION
ORGANIZATION) CODE NUMBER)
11301 INDUSTRIPLEX BOULEVARD
SUITE 4
BATON ROUGE, LOUISIANA 70809-4115
TELEPHONE: 504-293-5000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
---------------
MR. HANS J. STERNBERG
CHAIRMAN OF THE BOARD
WIRELESS ONE, INC.
11301 INDUSTRIPLEX BOULEVARD
SUITE 4
BATON ROUGE, LOUISIANA 70809-4115
TELEPHONE: 504-293-5000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
---------------
COPIES TO:
LANCE C. BALK, ESQ. JEREMIAH L. THOMAS III, ESQ.
KIRKLAND & ELLIS SIMPSON THACHER & BARTLETT
153 EAST 53RD STREET 425 LEXINGTON AVENUE
NEW YORK, NEW YORK 10022 NEW YORK, NEW YORK 10017
TELEPHONE: 212-446-4800 TELEPHONE: 212-455-2000
---------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, 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. [_]
---------------
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.
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<PAGE>
EXPLANATORY NOTE
This Amendment No. 4 to the Registration Statement (Registration No. 333-
5109) consists only of a cover page, this explanatory note, Part II to the
Registration Statement, and the Exhibit Index and all exhibits. This Amendment
is being filed for the purpose of filing a revised Exhibit 8.1 to the
Registration Statement and no changes are being made to the Prospectus
constituting a part of this Registration Statement.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. 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, other than
underwriting discounts and commissions. All of the amounts shown are estimated
except the Securities and Exchange Commission registration fee and the NASD
filing fee.
<TABLE>
<S> <C>
SEC registration fee............................................. $ 60,345
NASD filing fee.................................................. 18,000
Rating agency fee................................................ 20,000
Blue sky fees and expenses....................................... 15,000
Printing and engraving expenses.................................. 600,000
Legal fees and expenses.......................................... 350,000
Accounting fees and expenses..................................... 150,000
Trustee fees..................................................... 10,000
Miscellaneous.................................................... 776,655
----------
Total.......................................................... $2,000,000
==========
</TABLE>
The Registrant will bear all of the foregoing fees and expenses.
ITEM 14. 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 will enter into indemnity agreements with its directors (a form
of which is filed as Exhibit 10.6 to this Registration Statement), 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.
II-1
<PAGE>
Reference is made to the form of Underwriting Agreement filed as Exhibit 1.1
to this Registration Statement which provides for indemnification of the
directors and officers of the Registrant signing this Registration Statement
and certain controlling persons of the Registrant against certain liabilities,
including those arising under the Securities Act of 1933, as amended (the
"Securities Act"), in certain instances by the Underwriters.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
(a) In the Heartland Transaction, the Registrant issued shares of Common
Stock to the following persons in exchange for shares of common stock of Old
Wireless One:
<TABLE>
<CAPTION>
INVESTORS SHARES
--------- ---------
<S> <C>
The Lamar Corporation.............................................. 341,517
Hans Sternberg..................................................... 281,802
Hendrix Family Trust............................................... 245,692
KBBS, Inc.......................................................... 163,795
Wireless Investment Co............................................. 163,795
Gulf Coast Services, Inc........................................... 163,795
Otelco Investments, LLC............................................ 163,795
EATEL, Inc......................................................... 149,053
William C. Norris, Jr.............................................. 102,372
Robert A. Hart..................................................... 102,372
Fort Bend Telephone Co............................................. 81,897
Columbia Cellular, Inc............................................. 81,897
Hart Wireless LTD Partnership...................................... 51,595
G.T. Investments, Inc.............................................. 45,044
Sean Reilly........................................................ 15,636
Chase Manhattan Capital Corporation................................ 2,413,656
Premier Venture Capital Corporation................................ 754,268
Advantage Capital Partners Limited Partnership..................... 452,561
Advantage Capital Partners II Limited Partnership.................. 150,853
First Commerce Capital, Inc........................................ 150,853
Wireless Investment Company........................................ 150,853
Concord Telephone.................................................. 75,426
Ronald L. Daniels.................................................. 75,426
OPCO Senior Executive Investment Partnership, L.P.................. 45,255
R.C. Corr & Doris Corr, Joint Survivors............................ 30,171
Deborah Sternberg.................................................. 12,672
Donna Sternberg.................................................... 12,672
Erich Sternberg.................................................... 12,672
Julie Sternberg.................................................... 12,672
Mark Sternberg..................................................... 12,672
Insa Abraham....................................................... 12,672
Allyn Madere....................................................... 3,017
Arthur G. Scanlan II............................................... 3,017
Paul Boudreaux..................................................... 3,017
---------
Total............................................................ 6,538,462
=========
</TABLE>
The Registrant also issued 3,461,538 shares of Common Stock and the
Heartland Notes to certain subsidiaries of Heartland Wireless Communications,
Inc. in connection with the Heartland Transaction.
The Registrant also issued warrants to GKM to purchase 300,000 shares of
Common Stock in connection with the Heartland Transaction.
II-2
<PAGE>
(b) In the TruVision Transaction, the Registrant issued shares of Common
Stock to the following persons in exchange for shares of common stock of
TruVision
<TABLE>
<CAPTION>
INVESTORS SHARES
--------- ---------
<S> <C>
Mississippi Wireless TV, L.P. ..................................... 1,702,406
Chase Venture Capital Associates, L.P. ............................ 1,517,979
Vision Communications, Inc. ....................................... 180,000
VanCom, Inc. ...................................................... 42,560
---------
Total.............................................................. 3,442,945
=========
</TABLE>
(c) The Company issued 48,752 shares of Common Stock to Volunteer Wireless,
Inc. within the past 12 months.
Except as set forth above, the Registrant has not sold any securities.
All transactions described above were effected in reliance upon the
exemption from the registration requirements of the Securities Act contained
in Section 4(2) of the Securities Act and Regulation D promulgated thereunder
on the basis that such transactions did not involve any public offering.
II-3
<PAGE>
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION OF EXHIBIT
------- ----------------------
<C> <S>
1.1 Form of Underwriting Agreement between the Registrant and the
Underwriters***
2.1 TruVision Merger Agreement among the Registrant, TruVision and
Wireless One MergerSub, Inc., dated April 25, 1996***
3.1 Amended and Restated Certificate of Incorporation of the Registrant+++
3.2 Bylaws of the Registrant+++
4.1 Indenture between the Registrant and United States Trust Company of
New York, as Trustee dated October 24, 1995+++
4.2 Warrant Agreement between the Registrant and United States Trust
Company of New York, as Warrant Agent dated October 24, 1995+++
4.3 Escrow and Disbursement Agreement between the Registrant and Bankers
Trust Corporation, as Escrow Agent dated October 24, 1995+++
4.4 Unit Agreement between the Registrant and United States Trust Company
of New York, as Unit Agent dated October 24, 1995+++
4.5 Form of Supplemental Indenture between the Registrant and United
States Trust Company of New York as Trustee***
4.6 Form of Indenture between the Registrant and United States Trust
Company of New York as Trustee***
4.7 Form of Warrant Agreement between the Registrant and United States
Trust Company of New York, as Warrant Agent***
4.8 Form of Unit Agreement between the Registrant and United States Trust
Company of New York, as Unit Agent***
5.1 Opinion of Kirkland & Ellis (including the consent of such firm) as to
the validity of the notes being offered***
8.1 Opinion of Kirkland & Ellis as to certain tax matters**
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+++
10.2 Escrow Agreement among the parties to Exhibit 10.1 dated October 24,
1995+++
10.3 1995 Long-Term Performance Incentive Plan of the Registrant++
10.4 1995 Director's Stock Option Plan of the Registrant++
10.5 Warrant Agreement between the Registrant and GKM (including form of
warrant certificate) dated October 18, 1995+++
10.6 Form of Amended and Restated Registration Rights Agreement among the
Registrant, Heartland and certain stockholders+***
10.7 Form of Amended and Restated Stockholders Agreement among the
Registrant, and certain stockholders+***
10.8 Standard forms of MDS License Agreement of the Registrant+++
10.9 Standard forms of ITFS License Agreement of the Registrant+++
10.10 Form of Employment Agreement between the Registrant and certain
executive officers+***
10.11 Acquisition and Market Escrow Agreement among the parties to Exhibit
2.1 dated July 29, 1996.***
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION OF EXHIBIT
------- ----------------------
<C> <S>
11.1 Statement re: Computation of Ratio of Per Share Earnings***
12.1 Statement re: Computation of Ratio of Earnings to Fixed Charges of the
Company***
21.1 Subsidiaries of the Registrant***
23.1 Consent of Kirkland & Ellis (included in Exhibit 5.1)***
23.2 Consent of KPMG Peat Marwick LLP (Dallas, Texas)***
23.3 Consent of KPMG Peat Marwick LLP (New Orleans, Louisiana)***
23.4 Consent of Arthur Andersen & Co. LLP (Jackson, Mississippi)***
24.1 Powers of Attorney***
25.1 Statement of Eligibility of Trustee***
</TABLE>
- --------
** Filed herewith.
*** Previously filed.
+ Management contract or compensatory plan or arrangement.
++Incorporated herein by reference to the exhibit to the Registrant's
Registration Statement on Form S-1 (Registration Number 33-94942) as
declared effective by the Commission on October 18, 1995.
(b) Financial Statement Schedules
Independent Auditors' Report on Financial Statement Schedule and Consent
Schedule II--Valuation and Qualifying Accounts
All other schedules are omitted because they are inapplicable or the
requested information is shown in the consolidated financial statements or
related notes.
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 Registrant hereby undertakes:
(1) That, for purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon
II-5
<PAGE>
Rule 430A and contained in the form of prospectus filed by the Registrant
pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall
be deemed to be part of this registration statement as of the time it was
declared effective.
(2) That, for the purpose of determining any liability under the
Securities Act, each post-effective amendment that contains a form of
prospectus 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.
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 of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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.
II-6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Amendment to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Baton Rouge, State of Louisiana, on
the 7th day of August, 1996.
Wireless One, Inc.
By: *
___________________________________
HENRY M. BURKHALTER
PRESIDENT AND VICE CHAIRMAN OF THE
BOARD
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed on the 7th day of August, 1996, by the following
persons in the capacities indicated:
SIGNATURE TITLE
Chairman of the Board
*
____________________________________
HANS J. STERNBERG
* President and Vice Chairman of the
____________________________________ Board
HENRY M. BURKHALTER
* Chief Executive Officer and Director
____________________________________ (Principal Executive Officer)
SEAN E. REILLY
* Executive Vice President--Operations
____________________________________ (Principal Financial and Accounting
ALTON C. RYE Officer)
Director
____________________________________
WILLIAM K. LUBY
* Director
____________________________________
ARNOLD L. CHAVKIN
* Director
____________________________________
DANIEL L. SHIMER
* Director
____________________________________
J.R. HOLLAND, JR.
____________________________________ Director
WILLIAM J. VAN DEVENDER
II-7
<PAGE>
_____________________________________ Director
DAVID E. WEBB
/s/ Michael C. Ellis
*By:
_________________________________
MICHAEL C. ELLIS,
AS ATTORNEY-IN-FACT
II-8
<PAGE>
[LETTERHEAD OF KIRKLAND & ELLIS]
August 7, 1996
Wireless One, Inc.
11301 Industriplex Boulevard
Suite 4
Baton Rouge, Louisiana 70809-4115
Gentlemen:
We have acted as counsel to Wireless One, Inc., a Delaware corporation
("Wireless One") in connection with the preparation and filing with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "Securities Act"), of a registration statement on Form
S-1 (Registration No. 333-5109) and the amendments thereto (the "Registration
Statement") relating to the issuance and sale of units (collectively, the
"Units") consisting of (a) senior discount notes due 2006 (the "Notes") and (b)
warrants (the "Warrants") to purchase of shares of the Company's common stock,
par value $0.01 per share. The Notes are to be issued under that certain
indenture to be entered into by and between Wireless One and the United States
Trust Company of New York, as trustee, and the Warrants are to be issued under
that certain warrant agreement between the Company and the United States Trust
Company of New York, as warrant agent.
As such counsel, we have reviewed or participated in the preparation
of the Registration Statement and other agreements and documents relating to the
transactions therein contemplated, and we have examined and relied upon
originals (or copies certified or otherwise identified to our satisfaction) of
such documents, corporate records and other instruments as we have deemed
necessary or advisable for the purposes of this opinion. Furthermore, in
preparing this opinion we have relied on the certificate provided to us by
Wireless One, and attached hereto as Exhibit A, with respect to certain factual
matters.
The opinion set forth herein is based on and limited to the federal
laws of the United States. This opinion is based on the laws, regulations,
rulings and decisions now in effect, all of which are subject to change or
different interpretation, perhaps with retroactive effect.
Our opinion with respect to the principal U.S. federal income tax
consequences of the purchases, ownership and disposition of the Notes and
Warrants is set forth in the prospectus constituting part of the Registration
Statement (the "Prospectus") under the heading "United States Federal Income Tax
Matters."
<PAGE>
Wireless One, Inc.
August 6, 1996
Page 2
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement and the use of our name in the Prospectus in the first
sentence under the caption "United States Federal Income Tax Matters." In
giving such consent, we do not thereby concede that we are within the category
of persons whose consent is required under Section 7 of the Securities Act and
the regulations promulgated by the Commission thereunder.
Very truly yours,
KIRKLAND AND ELLIS
By: /s/ Kirkland & Ellis
------------------------------
<PAGE>
EXHIBIT A
WIRELESS ONE, INC.
------------------
The undersigned acknowledges that Kirkland & Ellis has acted as
counsel to Wireless One, Inc., a Delaware corporation ("Wireless One"), in
connection with the preparation and filing with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, of a registration
statement on Form S-1 (Registration No. 333-5109) and amendments thereto
relating to the issuance and sale of units (collectively, the "Units")
consisting of (a) senior discount notes due 2006 (the "Notes") and (b) warrants
(the "Warrants") to purchase an equal number of shares of the Company's common
stock, par value $0.01 per share. The Notes are to be issued under that certain
indenture to be entered into by and between Wireless One and the United States
Trust Company of New York, as trustee, and the Warrants are to be issued under
that certain warrant agreement between the Company and the United States Trust
Company of New York, as warrant agent.
The undersigned, as an officer of and on behalf of Wireless One,
hereby certifies to Kirkland & Ellis, as of the date hereof, that:
1. Based on all facts and circumstances as of the issue date, it is
significantly more likely that payments will be made according to
the Notes' stated payment schedule than that the Notes will be
redeemed before their scheduled maturity.
2. The interest that accrues and is payable semi-annually on the
Notes beginning on February 1, 2002 will be computed at a rate
that is approximately equal to, but does not exceed, the overall
yield on the Notes (determined by assuming that the Notes remain
outstanding until their final maturity date).
3. The redemption price of the Notes on each optional redemption
date will be equal to or greater than the sum of (i) the adjusted
issue price (as defined in Section 1272(a)(4) of the Internal
Revenue Code of 1986, as amended (the "Code")) of the Notes at
the start of the accrual period in which such optional redemption
date occurs plus (ii) the original issue discount (as defined in
Section 1273 of the Code) that has accrued on the Notes from the
beginning of such accrual period through such optional redemption
date.
4. During the term of the Notes, the Company will not pay or incur
interest in any taxable year in excess of $5,000,000 that is
attributable to an obligation evidenced by a bond, debenture,
note, certificate or other evidence of indebtedness ("Debt")
issued to provide direct or indirect consideration for the
acquisition (an "Acquisition") of (A) stock in another
corporation (an "acquired corporation") or (B) assets of another
corporation (an "acquired corporation") pursuant to a plan under
which at least two-thirds (in value) of
<PAGE>
all the assets (excluding money) used in trades and business
carried on by such corporation are acquired. For this purpose,
Debt issued to provide consideration for an Acquisition includes
(without limitation):
(i) Debt issued directly in exchange for the acquired
corporation's stock or assets;
(ii) Debt issued to raise the money necessary to purchase the
acquired corporation's stock or assets, including,
without limitation, where the Company, when it issued
the Debt, anticipated the Acquisition and the Debt would
not have been issued if the Company had not so
anticipated such Acquisition; and
(iii) Debt issued to replace the Company working capital spent
to acquire the acquired corporation where the Company,
when it used working capital to purchase the acquired
corporation, foresaw or reasonably should have foreseen
that it would be required to issue the Debt, which it
would not otherwise have been required to issue if the
Acquisition had not occurred, in order to meet its
future economic needs.
IN WITNESS WHEREOF, the undersigned has executed this certificate as
of August 6, 1996.
WIRELESS ONE, INC.
By: /s/ Michael C. Ellis
---------------------------------------
Name: Michael C. Ellis
Title: Vice President
