As filed with the Securities and Exchange Commission on May 19, 1999.
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
__________
WIRELESS ONE, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 72-1300837
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
2506 LAKELAND DRIVE
JACKSON, MISSISSIPPI 39208
(Address, including zip code, of registrant's
principal executive offices)
WIRELESS ONE, INC. 1995 LONG-TERM PERFORMANCE INCENTIVE PLAN
(Full title of the plan)
__________
THOMAS G. NOULLES
SENIOR VICE PRESIDENT AND GENERAL COUNSEL
WIRELESS ONE, INC.
2506 LAKELAND DRIVE
JACKSON, MISSISSIPPI 39208
(601) 936-1515
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy to:
W. PHILIP CLINTON
JONES, WALKER, WAECHTER, POITEVENT, CARRERE & DENEGRE, L.L.P.
201 ST. CHARLES AVENUE
NEW ORLEANS, LOUISIANA 70170-5100
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed maximum Proposed maximum Amount of
Title of Amount to be offering price aggregate registration
securities to be registered registered(1) per unit offering price fee
- ----------------------------- ---------------- ----------------- ----------------- -------------
<S> <C> <C> <C> <C>
Common Stock (par value $.01
per share) 400,000 Shares $ 2.65625(2) $ 1,062,500.00(2) $ 295.38(2)
</TABLE>
(1) Upon a stock split, stock dividend or similar transaction in the future
and during the effectiveness of this Registration Statement involving
Common Stock of the Company, the number of shares registered shall be
automatically increased to cover the additional shares in accordance with
Rule 416(a) under the Securities Act of 1933.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933, based on the
average of the high and low price per share of the Common Stock on the
over-the-counter market on May 12, 1999.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which have been filed by Wireless One, Inc.
(the "Company") with the Securities and Exchange Commission (the "SEC"),
are incorporated herein by reference:
(1) The Company's Annual Report on Form 10-K for the year ended
December 31, 1998, filed pursuant to Section 13 of the Securities Exchange
Act of 1934 (the "Exchange Act");
(2) The Company's Current Report on Form 8-K dated January 15, 1999,
filed pursuant to Section 13 of the Exchange Act;
(3) The Company's Current Report on Form 8-K dated February 10, 1999,
filed pursuant to Section 13 of the Exchange Act, as amended by the
Company's Current Report on Form 8-K/A-1 dated February 11, 1999, filed
pursuant to Section 13 of the Exchange Act;
(4) The Company's Current Report on Form 8-K dated March 15, 1999,
filed pursuant to Section 13 of the Exchange Act;
(5) The Company's Current Report on Form 8-K dated May 17, 1999,
filed pursuant to Section 13 of the Exchange Act;
(6) The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1999, filed pursuant to Section 13 of the Exchange Act;
(7) All other reports filed by the Company pursuant to Section 13 of
the Exchange Act since December 31, 1998; and
(8) The description of the Company's Common Stock included in the
Company's Registration Statement on Form 8-A filed September 22, 1995,
pursuant to Section 12 of the Exchange Act, including any amendment thereto
or report filed for the purpose of updating such description.
All documents filed by the Company with the SEC pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date of
this Registration Statement and prior to the filing of a post-effective
amendment that indicates that all securities offered have been sold or that
deregisters all securities then remaining unsold shall, except to the
extent otherwise provided by Regulation S-K or any other rule promulgated
by the SEC, be deemed to be incorporated by reference in this Registration
Statement and to be part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. 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
if the person seeking the 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 X of the Company's Restated Certificate of Incorporation (the
"Restated Certificate") and Article V of the Company's By-laws require
indemnification of directors and officers of the Company to the fullest
extent authorized by the DGCL, as the same exists or may hereafter be
amended (but, in the case of any such amendment, only to the extent that
such amendment permits the Company to provide broader indemnification
rights than those indemnification rights prior thereto). The Company
maintains officers' and directors' liability insurance that insures against
liabilities that officers and directors of the Company 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 or purchases of shares, or
(iv) for any breach of a director's duty of loyalty to the corporation or
its stockholders. Article X of the Restated Certificate includes such a
provision.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
5 Opinion of Jones, Walker, Waechter, Poitevent, Carrere &
Denegre, L.L.P.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Jones, Walker, Waechter, Poitevent, Carrere &
Denegre, L.L.P. (included in Exhibit 5).
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement to
include any material information with respect to the plan of distribution
not previously disclosed in the registration statement or any material
change to such information in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act 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.
(b) The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing
of the registrant's annual report pursuant to section 13(a) or section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to section
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 therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions,
or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense
of any action, suit or proceedings) 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 of whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
<PAGE>
SIGNATURES
THE REGISTRANT. 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-8 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Jackson, State of Mississippi, on May
18, 1999.
WIRELESS ONE, INC.
By: /S/ HENRY M. BURKHALTER
Henry M. Burkhalter
President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
/S/ HANS J. STERNBERG Director and Chairman of the Board May 18, 1999
Hans J. Sternberg
/S/ HENRY M. BURKHALTER Director, President May 18, 1999
Henry M. Burkhalter and Chief Executive Officer
(Principal Executive Officer)
/S/ ERNEST D. YATES, JR. Director, Executive Vice President May 18, 1999
Ernest D. Yates, Jr. and Chief Operating Officer
/S/ HENRY G. SCHOPFER, III Executive Vice President, May 18, 1999
Henry G. Schopfer, III Chief Financial Officer and Secretary
(Principal Financial Officer)
/S/ WILLIAM D. GRAY Controller May 18, 1999
William D. Gray (Principal Accounting Officer)
Director May __, 1999
Arnold L. Chavkin
<PAGE>
/S/ MARJEAN HENDERSON Director May 14, 1999
Marjean Henderson
/S/ CARROLL D. MCHENRY Director May 14, 1999
Carroll D. McHenry
<PAGE>
EXHIBIT INDEX
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION OF EXHIBITS PAGE
5 Opinion of Jones, Walker, Waechter, Poitevent, Carrere &
Denegre, L.L.P.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Jones, Walker, Waechter, Poitevent, Carrere &
Denegre, L.L.P. (included in Exhibit 5).
JONES, WALKER
WAECHTER, POITEVENT
CARRERE & DENEGRE, L.L.P.
May 18, 1999
Wireless One, Inc.
2506 Lakeland Drive
Jackson, Mississippi 39208
Gentlemen:
We have acted as counsel for Wireless One, Inc., a Delaware
corporation (the "Company"), in connection with the preparation of a
Registration Statement on Form S-8 (the "Registration Statement") to be
filed by the Company with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, relating to the offering by the Company
of 400,000 additional shares (the "Shares") of Company common stock, $.01
par value for each share, pursuant to the terms of the 1995 Long-Term
Performance Incentive Plan (the "Plan") of the Company.
Based upon the foregoing and upon our examination of such matters as
we deem necessary to furnish this opinion, we are of the opinion that the
Shares have been duly authorized and, when issued for at least par value
upon the terms described in the Plan and the Registration Statement, will
be validly issued and outstanding, fully paid and nonassessable.
We consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
JONES, WALKER, WAECHTER,
POITEVENT, CARRERE & DENEGRE, L.L.P.
By: /S/ CARL C. HANEMANN
Carl C. Hanemann, Partner
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Wireless One, Inc.:
We consent to the use of our report incorporated herein by reference.
Our report dated March 18, 1999, contains an explanatory paragraph that
states that the Company has incurred substantial operating and net losses
and cash flow deficits, and in February 1999, commenced a voluntary
proceeding under Chapter 11 of the United States Bankruptcy Code. These
matters raise substantial doubt about the Company's ability to continue as
a going concern. The consolidated financial statements do not include any
adjustments that might result from the outcome of these uncertainties.
/S/ KPMG PEAT MARWICK LLP
KPMG Peat Marwick LLP
Jackson, Mississippi
May 18, 1999
