<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 29, 1999
REGISTRATION NO. 333-87693
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 3
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
AIRNET COMMUNICATIONS CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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<S> <C> <C>
DELAWARE 3663 59-3218138
(STATE OR OTHER JURISDICTION (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
OF INCORPORATION OR CLASSIFICATION CODE NUMBER) IDENTIFICATION NO.)
ORGANIZATION)
</TABLE>
100 RIALTO PLACE
SUITE 300
MELBOURNE, FLORIDA 32901
(407) 953-6600
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
GERALD Y. HATTORI
AIRNET COMMUNICATIONS CORPORATION
100 RIALTO PLACE
SUITE 300
MELBOURNE, FLORIDA 32901
(407) 953-6600
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
------------------------
COPIES TO:
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JOHN G. IGOE, ESQ. PHILIP J. BOECKMAN, ESQ.
EDWARDS & ANGELL, LLP CRAVATH, SWAINE & MOORE
250 ROYAL PALM WAY 825 EIGHTH AVENUE
PALM BEACH, FL 33480 NEW YORK, NY 10019
(561) 833-7700 (212) 474-1000
</TABLE>
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effectiveness of this Registration Statement.
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. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) 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 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 this Form is a post-effective amendment filed pursuant to Rule 462(d)
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,
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 THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SECTION 8(a), MAY
DETERMINE.
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<PAGE> 2
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following sets forth the estimated expenses and costs (other than
underwriting discounts and commissions) expected to be incurred in connection
with the issuance and distribution of our common stock registered hereby:
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SEC registration fee........................................ $ 22,859
NASD fee.................................................... 8,725
Printing and engraving expenses............................. 150,000
Accounting fees and expenses................................ 400,000
Legal fees and expenses..................................... 400,000
Blue Sky fees and expenses.................................. --
Nasdaq/NMS application fee.................................. 95,000
Transfer agent fees and expenses............................ 25,000
Miscellaneous............................................... 140,376
----------
Total............................................. $1,241,960
</TABLE>
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Our officers and directors are covered by provisions of the Delaware
General Corporation Law and our certificate of incorporation and bylaws, which
serve to limit, and, in some instances, to indemnify them against, liabilities
which they may incur in their respective capacities. Our certificate of
incorporation limits the liability of our directors to the fullest extent
permitted by Delaware law. Specifically, the directors of the Company will not
be personally liable for monetary damages for breach of a director's fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Company or its shareholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing violation
of law, (iii) for unlawful payments of dividends or unlawful stock repurchases
or redemptions, or (iv) for any transaction from which the director derived an
improper personal benefit.
Our bylaws provide for the indemnification of our directors and officers
(as well as certain other persons) if the person acted in good faith and in a
manner reasonably believed to be in or not opposed to our best interests, and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe the conduct was unlawful. In an action by or in the right of the
Company, no indemnification may be made if the person shall have been adjudged
to be liable to the Company unless the court in which the action was brought
determines upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, the person is fairly and reasonably
entitled to indemnity for the expenses which the court deems proper. Our bylaws
also provide that any indemnification (unless ordered by a court) may be made by
the Company only as authorized in the specific case upon a determination that
indemnification is proper in the circumstances because the person has met the
applicable standard of conduct. This determination must be made (i) by the board
of directors by a majority vote of a quorum consisting of directors who were not
parties to the action, (ii) if a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal
counsel in a written opinion, or (iii) by the shareholders of the Company. If an
indemnified person has been successful on the merits or otherwise in defense of
any action described above, or in the defense of any matter in the action, the
person will be indemnified against expenses (including attorneys' fees) incurred
in connection with the action, without the necessity of authorization in the
specific case. Expenses incurred in defending or investigating a threatened or
pending action may be paid by us in advance of the final disposition of the
action upon receipt of an undertaking by the person to repay the amount if it is
ultimately determined that indemnification is not proper. The indemnification
and advancement of expenses provided by or granted
II-1
<PAGE> 3
under our bylaws are not exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any bylaw,
agreement, contract, vote of shareholders or disinterested directors or
otherwise, it being our policy that indemnification of the persons specified in
the bylaws shall be made to the fullest extent permitted by law. The
indemnification and advancement of expenses provided by our bylaws, unless
otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and inure to the benefit of the heirs,
executors and administrators of that person.
We carry directors' and officers' liability insurance.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
During the past three years, we have issued unregistered securities to a
limited number of persons as described below:
In April 1997, we raised approximately $9.0 million from the sale of
an aggregate of 8,093,022 shares of Series D Preferred Stock to 66
investors in an offering at $1.10 per share. We paid Robertson, Stephens &
Company LLC $145,096.98 and issued an additional 81,027 shares of Series D
Preferred Stock to Robertson, Stephens & Company LLC as consideration for
its services as a placement agent in connection with the Series D offering.
In the second half of 1997, we raised approximately $15.4 million from
the sale of an aggregate of 431,327,408 shares of Series E Preferred Stock
to 49 investors in an offering at $.035619838954 per share. We paid
BankAmerica Robertson Stephens a placement agent fee in the amount of
$32,040 as consideration for its services as a placement agent in
connection with the Series E offering.
In late 1998, we raised approximately $15.7 million from the sale of
an aggregate of 283,471,155 shares of Series F Preferred Stock to 31
investors in an offering at $0.05526523774 per share.
On June 11, 1999 and August 2, 1999, we raised approximately $6.0
million and $338,187, respectively, from the sale of convertible promissory
notes along with warrants to purchase shares of our common stock to certain
of our existing stockholders. These loans were evidenced by convertible
promissory notes and $6.3 million of the notes automatically converted into
shares of Series G Preferred Stock upon the closing of the offering of
Series G Preferred Stock.
In September 1999, we raised $30 million from the sale of an aggregate
of 230,769,231 shares of Series G Preferred Stock to 45 investors in an
offering at $0.13 per share.
From January 1, 1996 through October 26, 1999, (the most recent
practicable date), we granted stock options to purchase an aggregate of
148,517,725 shares of our common stock at prices ranging from $.066 to
$10.62 per share to employees, consultants and directors (net of options
forfeited for failure to exercise prior to expiration date).
From January 1, 1996 through October 26, 1999, (the most recent
practicable date), we issued and sold an aggregate of 18,499,659 shares of
our common stock to employees, consultants and directors for aggregate
consideration of $225,012 pursuant to exercise of stock options and grant
of stock awards.
For additional information concerning these sales of unregistered
securities, see "Certain Transactions" in the form of prospectus included in
this registration statement.
Except where otherwise provided above, none of these unregistered sales
transactions involved any underwriters, underwriting discounts or commissions,
or any public offering. We believe that each transaction was exempt from the
registration requirements of the Securities Act by virtue of Section 4(2) of the
Securities Act, Regulation D promulgated under Section 4(2) or Rule 701 pursuant
to compensatory benefit plans and contracts relating to compensation as provided
under Rule 701. The recipients in these transactions represented their intention
to acquire the securities for investment only and not with a view to or for sale
in connection with any distribution of the securities, and appropriate legends
II-2
<PAGE> 4
were affixed to the share certificates and instruments issued in the
transactions. All recipients had adequate access, through their relationships
with us, to information about us.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
a. Exhibits:
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*1.1 Form of Underwriting Agreement.
*3.1 Sixth Amended and Restated Certificate of Incorporation.
*3.2 Second Amended and Restated Bylaws.
*4.1 Specimen Certificate evidencing shares of Common Stock.
*4.2 Second Amended and Restated Shareholders' and Registration
Rights Agreement dated as of April 16, 1997.
*4.3 First Amendment to Second Amended and Restated Shareholders'
and Registration Rights Agreement dated as of September 20,
1999.
*4.4 Second Amended and Restated Agreement Among Series E, Series F
and Series G Second Preferred Stockholders and Senior
Registration Rights Agreement dated as of September 7, 1999.
*4.5 First Amendment to Second Amended and Restated Agreement
Among Series E, Series F and Series G Preferred Stockholders
and Senior Registration Rights Agreement dated as of
September 20, 1999.
*5.1 Opinion of Edwards & Angell, LLP regarding legality of the
Common Stock.
*10.1 AirNet Communications Corporation 1999 Equity Incentive
Plan.
*10.2 OEM and Patent License Option Agreement dated January 27,
1995 between Motorola, Inc. and AirNet Communications
Corporation.
*10.3 Employee Noncompete and Post-Termination Benefits Agreement
dated October 26, 1999 between AirNet Communications
Corporation and R. Lee Hamilton, Jr.
*11.1 Statement regarding computation of per share earnings.
*16.1 Letter from Ernst & Young regarding Change in Independent
Accountants.
*23.1 Consent of Edwards & Angell, LLP (included in Exhibit 5.1).
*23.2 Consent of Deloitte & Touche LLP.
*23.3 Consent of Ernst & Young LLP.
*24.1 Power of Attorney (included on signature page).
27.1 Financial Data Schedule, June 30, 1999.
27.2 Financial Data Schedule, December 31, 1998.
27.3 Financial Data Schedule, September 30, 1999.
</TABLE>
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* Previously filed
b. Financial Statement Schedules:
Financial Statement Schedules have been omitted because of the absence of
conditions under which they would be required or because the required
information has been included in the financial statements.
ITEM 17. UNDERTAKINGS.
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 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
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<PAGE> 5
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.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of Prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in
a 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) For the purpose of determining any liability under the Securities
Act of 1933, 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 this offering of such securities at
that time shall be deemed to be the initial bona fide offering thereof.
The undersigned registrant hereby undertakes to provide to the underwriters
at the closing specified in the underwriting agreements, certificates in such
denominations and registered in such names as required by the underwriters to
permit prompt delivery to each purchaser.
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<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment No. 3 to Form S-1 Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Melbourne, State of Florida, on November 29, 1999.
AIRNET COMMUNICATIONS CORPORATION
By: *
------------------------------------
Name: R. Lee Hamilton, Jr.
Title: President and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 3 to the registration statement has been signed by the following persons in
the capacities indicated on November 29, 1999.
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* Director, President and Chief Executive Officer
- ---------------------------------------------
R. Lee Hamilton, Jr.
/s/ GERALD Y. HATTORI Vice President of Finance, Chief Financial Officer,
- --------------------------------------------- Treasurer and Secretary
Gerald Y. Hattori
* Director
- ---------------------------------------------
Joel P. Adams
* Director
- ---------------------------------------------
James W. Brown
* Director
- ---------------------------------------------
Robert M. Chefitz
* Director
- ---------------------------------------------
Richard G. Coffey
Director
- ---------------------------------------------
Bruce R. DeMaeyer
* Director
- ---------------------------------------------
Milo D. Harrison
* Director
- ---------------------------------------------
J. Douglass Mullins
*By: /s/ GERALD Y. HATTORI
--------------------------------------
Gerald Y. Hattori, Attorney-in-Fact
</TABLE>
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<PAGE> 7
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
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*1.1 Form of Underwriting Agreement.
*3.1 Sixth Amended and Restated Certificate of Incorporation.
*3.2 Second Amended and Restated Bylaws.
*4.1 Specimen Certificate evidencing shares of Common Stock.
*4.2 Second Amended and Restated Shareholders' and Registration
Rights Agreement dated as of April 16, 1997.
*4.3 First Amendment to Second Amended and Restated Shareholders'
and Registration Rights Agreement dated as of September 20,
1999.
*4.4 Second Amended and Restated Agreement Among Series E, Series
F and Series G Preferred Stockholders and Senior
Registration Rights Agreement dated as of September 7, 1999.
*4.5 First Amendment to Second Amended and Restated Preferred
Stockholders and Senior Registration Rights Agreement dated
as of September 20, 1999.
*5.1 Opinion of Edwards & Angell, LLP regarding legality of the
Common Stock.
*10.1 AirNet Communications Corporation 1999 Equity Incentive
Plan.
*10.2 OEM and Patent License Option Agreement dated January 27,
1995 between Motorola, Inc. and AirNet Communications
Corporation.
*10.3 Employee Noncompete and Post-Termination Benefits Agreement
dated October 26, 1999 between AirNet Communications
Corporation and R. Lee Hamilton, Jr.
*11.1 Statement regarding computation of per share earnings.
*16.1 Letter from Ernst & Young regarding Change in Independent
Accountants.
*23.1 Consent of Edwards & Angell, LLP (included in Exhibit 5.1).
*23.2 Consent of Deloitte & Touche LLP.
*23.3 Consent of Ernst & Young LLP.
*24.1 Power of Attorney (included on signature page).
27.1 Financial Data Schedule, June 30, 1999.
27.2 Financial Data Schedule, December 31, 1998.
27.3 Financial Data Schedule, September 30, 1999.
</TABLE>
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* Previously filed
<TABLE> <S> <C>
<ARTICLE> 5
<RESTATED>
<MULTIPLIER> 1
<CURRENCY> U. S. DOLLARS
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> JUN-30-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> JUN-30-1999
<EXCHANGE-RATE> 1
<CASH> 9,731,725
<SECURITIES> 0
<RECEIVABLES> 5,124,714
<ALLOWANCES> 1,515,100
<INVENTORY> 7,970,018
<CURRENT-ASSETS> 21,483,127
<PP&E> 10,305,978
<DEPRECIATION> 7,018,882
<TOTAL-ASSETS> 24,917,785
<CURRENT-LIABILITIES> 12,747,604
<BONDS> 5,986,754
0
8,554,402
<COMMON> 423
<OTHER-SE> (2,371,398)
<TOTAL-LIABILITY-AND-EQUITY> 24,917,785
<SALES> 4,373,227
<TOTAL-REVENUES> 4,373,227
<CGS> 2,912,271
<TOTAL-COSTS> 10,211,826
<OTHER-EXPENSES> (93,078)
<LOSS-PROVISION> 10,100
<INTEREST-EXPENSE> 32,577
<INCOME-PRETAX> (8,657,792)
<INCOME-TAX> 0
<INCOME-CONTINUING> (8,657,792)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (8,657,792)
<EPS-BASIC> (31.97)
<EPS-DILUTED> (31.97)
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<RESTATED>
<MULTIPLIER> 1
<CURRENCY> U. S. DOLLARS
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-01-1998
<PERIOD-END> DEC-31-1998
<EXCHANGE-RATE> 1
<CASH> 7,580,482
<SECURITIES> 0
<RECEIVABLES> 4,515,106
<ALLOWANCES> 1,505,000
<INVENTORY> 7,806,876
<CURRENT-ASSETS> 18,633,186
<PP&E> 9,420,197
<DEPRECIATION> 6,161,388
<TOTAL-ASSETS> 22,016,587
<CURRENT-LIABILITIES> 7,394,159
<BONDS> 0
0
8,554,402
<COMMON> 365
<OTHER-SE> 5,908,246
<TOTAL-LIABILITY-AND-EQUITY> 22,016,587
<SALES> 4,462,001
<TOTAL-REVENUES> 4,462,001
<CGS> 2,867,076
<TOTAL-COSTS> 20,447,992
<OTHER-EXPENSES> (76,819)
<LOSS-PROVISION> 1,490,500
<INTEREST-EXPENSE> 373,242
<INCOME-PRETAX> (18,776,248)
<INCOME-TAX> 0
<INCOME-CONTINUING> (18,776,248)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (18,776,248)
<EPS-BASIC> (81.88)
<EPS-DILUTED> (81.88)
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<RESTATED>
<MULTIPLIER> 1
<CURRENCY> U. S. DOLLARS
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> SEP-30-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> SEP-30-1999
<EXCHANGE-RATE> 1
<CASH> 26,995,929
<SECURITIES> 0
<RECEIVABLES> 8,278,094
<ALLOWANCES> 1,515,100
<INVENTORY> 9,863,461
<CURRENT-ASSETS> 44,247,019
<PP&E> 10,626,090
<DEPRECIATION> 7,406,364
<TOTAL-ASSETS> 47,689,126
<CURRENT-LIABILITIES> 14,009,213
<BONDS> 0
0
10,862,095
<COMMON> 468
<OTHER-SE> 22,587,296
<TOTAL-LIABILITY-AND-EQUITY> 47,689,126
<SALES> 11,076,852
<TOTAL-REVENUES> 11,076,852
<CGS> 7,084,222
<TOTAL-COSTS> 15,430,461
<OTHER-EXPENSES> (105,138)
<LOSS-PROVISION> 10,100
<INTEREST-EXPENSE> 193,668
<INCOME-PRETAX> (11,332,693)
<INCOME-TAX> 0
<INCOME-CONTINUING> (11,332,693)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (11,332,693)
<EPS-BASIC> (70.95)
<EPS-DILUTED> (70.95)
</TABLE>
