As filed with the Securities and Exchange Commission on December 5, 2000
Registration No. 333-49306
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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WebLink Wireless, Inc.
(Exact name of Registrant as specified in its charter)
Delaware 75-2575229
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
3333 Lee Parkway
Suite 100
Dallas, TX 75219
Phone: (214) 765-4000
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
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Frederick G. Anderson, Esq.
Vice President, General Counsel and Secretary
WebLink Wireless, Inc.
3333 Lee Parkway
Suite 100
Dallas, TX 75219
Phone: (214) 765-4536
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copies to:
John G. Crowley, Esq.
Davis Polk & Wardwell
450 Lexington Avenue
New York, NY 10017
Phone: (212) 450-4550
Facsimile: (212) 450-3550
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Approximate date of commencement of proposed sale to the public: From time
to time after this Registration Statement becomes effective. If the only
securities being registered on this Form are being offered pursuant to dividend
or interest reinvestment plans, please check the following box. |_|
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. |X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. |_| _________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
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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 said Section 8(a),
may determine.
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The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and we are not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
PROSPECTUS (Subject to Completion)
Dated December 5, 2000
8,500,000 Shares
WEBLINK WIRELESS, INC.
Class A Convertible Common Stock
This prospectus relates to offerings from time to time of a total of 8,500,000
shares of our Class A Convertible common stock.
We will provide specific terms of these shares in supplements to this
prospectus. You should read this prospectus and any supplement carefully before
you invest.
Our common stock is listed on the Nasdaq National Market System under the symbol
"WLNK".
Investing in our common stock involves certain risks. See "Risk Factors"
beginning on page 2.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is a
criminal offense.
_______ __, 2000
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TABLE OF CONTENTS
Page
WebLink Wireless...............................................................1
Risk Factors...................................................................2
Special Note Regarding Forward-looking Statements..............................6
Use of Proceeds................................................................7
Dividend Policy................................................................7
Market Price Information.......................................................8
Shares Eligible for Future Sale................................................9
Plan of Distribution..........................................................10
Legal Matters.................................................................11
Experts.......................................................................11
Where You Can Find More Information...........................................11
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In this prospectus, "WebLink Wireless," "we," "us" and "our" refer to
WebLink Wireless, Inc., and "common stock" refers to our Class A Convertible
common stock, par value $.0001 per share.
You should rely only on the information contained in this prospectus. We
have not authorized anyone to provide you with information different from that
contained in this prospectus. We are offering to sell, and seeking offers to
buy, shares of common stock only in jurisdictions where offers and sales are
permitted. The information contained in this prospectus is accurate only as of
the date of this prospectus, regardless of the time of delivery of this
prospectus or of any sale of the common stock.
We have not taken any action to permit a public offering of the shares of
common stock outside the United States or to permit the possession or
distribution of this prospectus outside the United States. Persons outside the
United States who come into possession of this prospectus must inform themselves
about and observe any restrictions relating to this offering of the shares of
common stock and the distribution of this prospectus outside the United States.
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WEBLINK WIRELESS
WebLink Wireless is a leading provider of wireless data and traditional
one-way paging services. We have positioned ourselves to move aggressively into
wireless data services, building upon our vision of WebLink Wireless as a
provider of services using the World Wide Web to link people to other people and
information in ways that make their lives more fun, informative and productive.
In April 1999, we substantially completed the construction of our nationwide
Internet protocol ("IP") based, two-way wireless data network that covers
approximately 90% of the U.S. population. This was the culmination of over four
years of development efforts and, as of September 30, 2000, we have invested
about $450 million in capital expenditures for infrastructure and frequency
licenses for our internet-protocol- based network. In December 1999, we changed
our name to WebLink Wireless, Inc., reflecting our strategic move toward
Internet-based products and services in which wireless Internet subscriber
devices are used for sending and receiving messages and information. In February
2000, we began providing full two-way wireless data services, and in June 2000
we received our first shipments of the Motorola Talkabout T900 subscriber
device, an affordable device about the size of a jumbo pack of gum with a flip
up screen and full QWERTY keyboard. The availability of the Motorola T900
resulted in a 55.2% increase in wireless data net subscriber additions from the
second to the third quarter of 2000. We had 32,722, 52,512 and 81,055 wireless
data net subscriber additions in the first, second and third quarter of 2000,
respectively.
Our principal executive offices are located at 3333 Lee Parkway, Suite 100,
Dallas, Texas 75219 and our telephone number is (214) 765-4000. Our worldwide
web site address is www.weblinkwireless.com. The information on our web site is
not part of this prospectus.
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RISK FACTORS
You should carefully consider each of the risks and uncertainties described
below and all of the other information in this prospectus or incorporated by
reference before deciding to invest in shares of our common stock. The risks and
uncertainties described below are not the only ones facing our company.
Additional risks and uncertainties not presently known to us or that we
currently believe to be immaterial may also adversely affect our business.
If any of the following risks and uncertainties develop into actual events,
our business, financial condition or results of operations could be materially
and adversely affected. In such case, the trading price of our common stock
could decline.
Our future success will depend on the commercial viability of wireless data
services.
We cannot assure you that wireless data services, including wireless
e-mail, peer to peer messaging and information on demand, which are new products
to the market, will be accepted in the marketplace and be commercially viable.
Wireless data services could be affected by matters beyond our control. These
matters include:
o the degree of market acceptance;
o the future availability and cost of subscriber devices;
o technological changes affecting wireless data services;
o marketing and pricing strategies of competitors; and
o regulatory developments and general economic conditions.
We have a long history of operating losses and we expect these losses to
continue for at least the next couple of years.
We sustained consolidated operating losses in each year of operations
through 1997. Although we recognized a $2.5 million operating profit in 1998, we
sustained an aggregate $32.9 million operating loss for the three year period
ended December 31, 1999. We had a $33.3 million operating loss in the first nine
months of 2000. We expect to continue to incur operating losses at least through
2002. Although we had positive EBITDA of $27.3 million for 1997, $45.9 million
for 1998 and $45.4 million for 1999, prior to 1996 we had negative EBITDA in
each year of our operations, which resulted principally from expenditures
associated with the growth of our subscriber base.
We expect that our traditional paging operations will continue to generate
EBITDA at a declining rate over at least the next couple of years, which will be
used primarily to help fund our wireless data operations for the next few years.
We cannot assure you that our traditional paging operations will continue to
generate EBITDA or that our consolidated operations will become profitable or
continue to generate positive EBITDA. If we cannot achieve operating
profitability or continue to generate EBITDA, we may not be able to fund our
operations or make required debt service payments.
We have substantial cash requirements and cannot assure you that we will be
able to finance them.
In addition to funding our operating losses, we expect to require at least
$75 million for capital expenditures, including expenditures for subscriber
units leased to customers, for the five quarters ending December 31, 2001. More
capital expenditures may be required if we participate in auctions for
additional frequency licenses. Our 15% Senior Discount Notes due 2005 require
cash payments of interest in the amount of $15.5 million in February 2001 and in
August 2001. Our ability to incur indebtedness is limited by the covenants
contained in our debt indentures and bank credit facility. The lenders'
commitment to lend additional amounts in both our vendor financing arrangement
and the $75 million term loan portion of our credit facility expires on December
31, 2000, although the commitment to lend up to $25 million of revolving loans
does not expire until June 30, 2003. As a result, any additional financing may
need
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to be in the form of new equity capital. We cannot assure you that sufficient
financing will be available and, if available, on attractive terms.
We operate in a highly competitive market and we may be unable to compete
effectively, especially against competitors with greater financial and other
resources.
We face significant competition in all of our markets. Many of our
competitors, which include regional and national paging companies, providers of
broadband personal communications services and certain regional telephone
companies, possess significantly greater financial, technical and other
resources. Our competitors could adversely affect our results of operations by
devoting additional resources to the wireless data or traditional paging
business or focusing their strategy on our marketing and product niches. For
competitive and marketing reasons, we sell new subscriber units in our retail
distribution channel for less than their acquisition cost. In addition, a number
of telecommunications companies (including PCS providers) have constructed or
are in the process of constructing nationwide networks that offer services
similar to our services, including wireless data services such as two-way
messaging.
Our high level of indebtedness could adversely affect your investment.
We are highly leveraged, primarily as a result of debt financing incurred
to fund the construction of our nationwide wireless data network, the growth of
our subscriber base and the acquisition of the narrowband PCS licenses. At
September 30, 2000, our long-term debt was $477.2 million and our stockholders'
deficit was $163.8 million. In addition, the accretion of original issue
discount on our outstanding indebtedness will cause a substantial increase in
indebtedness. Our deficiency of earnings before fixed charges to cover fixed
charges for each of 1997, 1998, 1999 and the first nine months of 2000 was $43.9
million, $70.5 million, $97.6 million and $74.4 million, respectively.
Restrictive covenants in our indentures and credit facility may adversely
affect us.
The indentures governing our 11 1/4% Senior Subordinated Discount Exchange
Notes due 2008 and 15% Senior Discount Exchange Notes due 2005 and our bank
credit facility contain covenants that limit our ability to engage in certain
transactions. The restrictions affect our ability to:
o incur additional indebtedness;
o make prepayments of certain indebtedness;
o pay dividends;
o make investments;
o engage in transactions with affiliates;
o issue capital stock of certain subsidiaries;
o create liens;
o sell assets; and
o engage in mergers and consolidations.
These restrictions are subject to a number of important qualifications and
exceptions. Although the indentures will generally restrict our ability to incur
indebtedness, they will permit an unlimited amount of additional indebtedness to
finance the acquisition of equipment, inventory and network assets. However, one
indenture prohibits us from granting liens to secure more than $175 million of
indebtedness (other than intercompany indebtedness).
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After the close of the fourth quarter, we may not be in compliance with certain
covenants in our credit facility.
Our credit facility also contains financial covenants based on our
traditional paging business. As wireless data emerges as our primary business,
our traditional paging units in service are declining. Due to that decline, we
expect that, after the close of the fourth quarter of this year, we will not be
in compliance with certain covenants in our credit facility related to the
traditional paging business. We have begun discussions with our banks to modify
the covenants to reflect more fully the importance of our wireless data
business. We believe we will be successful in doing so. However, there is no
assurance that we will be able to amend our credit facility, or, if
noncompliance occurs, borrow additional amounts under the credit facility or not
be subject to early repayment of outstanding debt under the credit facility.
Our ability to generate sufficient revenue for our financial needs depends
on our ability to achieve our growth strategy.
The successful implementation of our strategy to increase cash flow through
the expansion of our wireless data subscriber base by marketing wireless data
services is necessary for us to meet our capital expenditures, working capital
and debt service requirements. We expect to continue to incur operating losses
for the next few years. Our strategy assumes that the wireless data services
industry will grow rapidly. We cannot assure you that we will be able to achieve
the growth contemplated by our business strategy. We may not be able to make
required payments on our outstanding indebtedness and may have to refinance our
outstanding indebtedness in order to repay such obligations. We cannot assure
you that we will be able to refinance our outstanding indebtedness.
Subscriber disconnections can adversely affect our business.
Our results of operations are significantly affected by subscriber
disconnections. In order to realize net growth in units in service, disconnected
users must be replaced, and additional users must be added. The sales and
marketing costs associated with attracting new subscribers are substantial
relative to the costs of providing service to existing customers. Expenses
associated with placement of units through our national retail distribution
channel exceed the sales price and service initiation fee. For 1997, 1998, 1999
and the three months ended September 30, 2000 average monthly disconnection
rates were 2.5%, 3.2%, 3.1% and 3.6%, respectively.
Our business depends on our key personnel.
Our future success depends to a significant extent on the continued
services of our key executive officers. We have a retention agreement only with
John D. Beletic, our Chairman and Chief Executive Officer. We have entered into
non-competition agreements with all of our current executive officers. The loss
or unavailability of one or more of our executive officers, or our inability to
attract or retain key employees in the future, could adversely affect our
operations.
Our future success depends on our ability to manage future growth.
Our future performance will depend upon our ability to manage our growth
effectively. We need to improve and expand our operating, financial, accounting,
information and customer service systems, and to expand, train and manage our
employee base. Any inability to expand in accordance with our plans or to manage
our growth could have a material adverse effect on our business, financial
condition and results of operations.
Because of the fast pace of technological change in the telecommunications
industry, there is a risk that we will fall behind or will fail to successfully
address this change, which could harm our ability to compete and could
materially and adversely affect our business and results of operations.
The telecommunications industry is characterized by rapid technological
change. Future technology advances in the industry may result in the
availability of new services or products that could compete directly with our
wireless data and paging services. Changes in technology could also lower the
cost of competitive products and services to a level where our products and
services become less competitive or we are required to reduce the prices of our
services.
We depend on key suppliers that we do not control.
We do not manufacture any of the subscriber units or infrastructure
equipment used in our operations. We buy subscriber units primarily from
Motorola and Glenayre and are dependent on such manufacturers to obtain
sufficient
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inventory for new subscriber and replacement needs. We purchase terminals,
transmitters, receivers and other infrastructure equipment primarily from
Glenayre. We are dependent on Glenayre for sufficient infrastructure equipment
to meet our expansion and replacement requirements. We cannot assure you that we
will obtain subscriber units and infrastructure equipment in the future as
needed. Like many other national paging companies, our network depends on the
continued availability of satellite communications. We utilize two satellites to
control most of our network. Each satellite has the additional capacity to
provide the service now provided by both. The mechanical failure of a satellite
would create a service outage in the part of our network served by that
satellite until we are able to re-orient the satellite dish antennas at each
transmission site to receive signals from the other satellite or a back-up
satellite. The simultaneous failure of both satellites could have an adverse
material effect on our operations. We do not carry insurance against this type
of event.
Our operations are subject to various government regulations.
We and the rest of the wireless communications industry are subject to
regulation by the FCC and various state regulatory agencies. From time to time,
legislation and regulations could be adopted that could adversely affect our
business.
Our existing principal stockholders control a substantial amount of our
voting shares and will be able to significantly influence any matter requiring
shareholder approval.
At September 30, 2000, The Morgan Stanley Leveraged Equity Fund II, L.P.,
Morgan Stanley Capital Partners III, L.P., Morgan Stanley Capital Investors,
L.P., Morgan Stanley Venture Capital Fund, L.P., Morgan Stanley Venture Capital
Fund II, L.P., Morgan Stanley Venture Capital Fund II C.V., MSCP III 892
Investors, L.P. and Morgan Stanley Venture Investors, L.P. owned approximately
37% of our outstanding Class A Convertible common stock, which is the only class
of voting common stock, and 42% of all classes combined of our outstanding
common stock. The general partner and/or the managing general partner of each of
the general partners of the Morgan Stanley shareholders is a wholly-owned
subsidiary of Morgan Stanley, Dean Witter & Co. Three of the seven directors of
the Company are employees of Morgan Stanley & Co. Incorporated, which is a
wholly-owned subsidiary of Morgan Stanley, Dean Witter & Co. As a result of
their ownership interest, the Morgan Stanley shareholders have a significant
influence over our affairs.
Sales of large amounts of our common stock or the perception that sales
could occur may depress our stock price.
Future sales of a substantial number of shares of common stock in the
public market, or the perception that sales could occur, could hurt the market
price of the stock. The shares that we sell to the public in this offering of
our common stock will be freely tradable without restriction under the
Securities Act of 1933 by persons other than our "affiliates," as defined under
the Securities Act.
Anti-takeover provisions could adversely affect the price of our common
stock.
Provisions of our certificate of incorporation, by-laws and Delaware law
may discourage, delay or prevent a merger or other change of control that
stockholders may consider favorable. This could adversely affect the price of
our common stock and could discourage offers to acquire our stock at prices that
represent a premium over then-current market prices.
Our commitments to issue additional common stock may adversely affect the
market price of our common stock and may impair our ability to raise capital.
We currently have outstanding commitments, in the form of options,
convertible securities and warrants, to issue a substantial number of new shares
of our common stock. The shares subject to these issuance commitments will to
some degree be issued in transactions registered with the Securities and
Exchange Commission and thus will be freely tradable.
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SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
Certain statements contained or incorporated by reference in this
prospectus are forward-looking statements concerning our operations, economic
performance and financial condition. Forward-looking statements within the
meaning of Section 27A of the Securities Act of 1933, as amended, and within the
meaning of Section 21E of the Securities Exchange Act of 1934, as amended, are
included, for example, in the discussions about:
o our strategy;
o product sales and revenues;
o new product development or product introduction;
o expenses, EBITDA and net income; and
o our operational and legal risks.
These statements involve risks and uncertainties. Actual results may differ
materially from those expressed or implied in those statements. Factors that
could cause such differences include, but are not limited to, those discussed
under "Risk Factors".
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USE OF PROCEEDS
Unless otherwise indicated in a prospectus supplement, the net proceeds
from the sale of the securities will be used for general corporate purposes,
primarily to fund our operations and capital expenditures, and a portion of the
net proceeds may be used to pay interest.
DIVIDEND POLICY
We have not paid dividends on our common stock since our organization in
1989, and we do not anticipate doing so in the foreseeable future. We currently
intend to retain future earnings for the development of our business. Our Board
of Directors will determine our future dividend policy on the basis of various
factors, including our results of operations, financial condition, capital
requirements and investment opportunities. In addition, our debt instruments
substantially restrict (and currently prohibit) the payment of cash dividends.
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MARKET PRICE INFORMATION
Our common stock is listed and traded on the Nasdaq National Market under
the symbol "WLNK." The following table sets forth the high and low sales prices
of our common stock for the periods indicated.
Common Stock Price
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High Low
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Year ended 1998
First Quarter.......................................... $ 10 7/16 $ 7
Second Quarter......................................... 10 7/8 8 7/16
Third Quarter.......................................... 10 1/6 6 1/4
Fourth Quarter......................................... 8 3/4 5
Year ended 1999
First Quarter.......................................... 7 1/4 4 13/16
Second Quarter......................................... 7 9/16 3 3/4
Third Quarter.......................................... 8 1/8 4 5/8
Fourth Quarter......................................... 18 5/8 5
Year Ended 2000
First Quarter.......................................... 27 1/4 12 3/8
Second Quarter......................................... 14 4 3/8
Third Quarter.......................................... 16 1/2 6 1/16
Fourth Quarter (through December 4, 2000).............. 10 3/16 2 17/32
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SHARES ELIGIBLE FOR FUTURE SALE
The shares of our common stock sold pursuant to this prospectus will be
freely tradable without restriction under the Securities Act of 1933 except for
any such shares which may be acquired by one of our affiliates as that term is
defined in Rule 144 promulgated under the Securities Act of 1933, which shares
will remain subject to the resale limitations of Rule 144.
Generally, Rule 144 provides that a person who has beneficially owned
"restricted" shares for at least one year will be entitled to sell on the open
market in brokers' transactions within any three month period a number of shares
that does not exceed the greater of:
o 1% of the then outstanding shares of common stock; and
o the average weekly trading volume in the common stock on the open market
during the four calendar weeks preceding such sale.
Sales under Rule 144 are also subject to certain other requirements
regarding the manner of sale, notice and availability of current public
information about us.
In the event that any person, who is deemed to be our affiliate, purchases
shares of our common stock or acquires shares of our common stock pursuant to
one of our employee benefit plans, the shares held by such person are required
under Rule 144 to be sold in brokers' transactions, subject to the volume
limitations described above. Shares properly sold in reliance upon Rule 144 to
persons who are not our affiliates are thereafter freely tradable without
restriction.
Sales of substantial amounts of our common stock in the open market, or the
availability of such shares for sale, could adversely affect the price of our
common stock. Shares sold pursuant to this prospectus will be eligible for
immediate resale in the public market without restrictions by persons other than
our affiliates. Our affiliates would be subject to the restrictions of Rule 144
described above.
At September 30, 2000, we had outstanding 42,527,287 shares of Class A
Convertible common stock, 3,809,363 shares of Class B common stock, no shares of
Class C common stock, and 131,250 shares of Class D common stock. Shares of
Class B, C and D common stock are convertible, subject to certain ownership and
regulatory restrictions, at the option of the holder into an equal number of
shares of Class A Convertible common stock. At September 30, 2000, the Company
had outstanding 6,678,726 options to purchase shares of Class A Convertible
common stock pursuant to the Non-Employee Directors Stock Option Plan, the Fifth
Amended and Restated 1991 Stock Option Plan and the 2000 Flexible Incentive
Plan, and 1,075,000 phantom stock units pursuant to the 2000 Flexible Incentive
Plan. All of these shares were registered pursuant to a Form S-8 registration
statement. In addition, at September 30, 2000, 1,134,088 shares of Class A
Convertible common stock are issuable upon the exercise of outstanding warrants.
At September 30, 2000, 41,813,001 shares of Class A Convertible common stock
were freely transferable, subject to the restrictions on resale by affiliates
under Rule 144 discussed above.
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PLAN OF DISTRIBUTION
We may sell the shares of common stock in any of three ways (or in any
combination): (a) through underwriters or dealers; (b) directly to a limited
number of purchasers or to a single purchaser; or (c) through agents. The
prospectus supplement will set forth the terms of the offering of the shares,
including
(a) the name or names of any underwriters, dealers or agents and the
amounts of securities underwritten or purchased by each of them,
and
(b) the initial public offering price of the securities and the
proceeds to us and any discounts, commissions or concessions
allowed or reallowed or paid to dealers.
Any public offering price and any discounts or concessions allowed or
reallowed or paid to dealers may be changed from time to time.
If underwriters are used in the sale of the shares, the shares will be
acquired by the underwriters for their own account and may be resold from time
to time in one or more transactions, including negotiated transactions, at a
fixed public offering price or at varying prices determined at the time of sale.
The securities may be either offered to the public through underwriting
syndicates represented by managing underwriters, or directly by underwriters.
Generally, the underwriters' obligations to purchase the securities will be
subject to certain conditions precedent. The underwriters will be obligated to
purchase all of the securities if they purchase any of the securities.
We may sell the securities through agents from time to time. The prospectus
supplement will name any agent involved in the offer or sale of the securities
and any commissions we pay to them. Generally, any agent will be acting on a
best efforts basis for the period of its appointment.
We may authorize underwriters, dealers or agents to solicit offers by
certain purchasers to purchase the securities from us at the public offering
price set forth in the prospectus supplement pursuant to delayed delivery
contracts providing for payment and delivery on a specified date in the future.
The contracts will be subject only to those conditions set forth in the
prospectus supplement, and the prospectus supplement will set forth any
commissions we pay for solicitation of these contracts.
Agents and underwriters may be entitled to indemnification by us against
certain civil liabilities, including liabilities under the Securities Act, or to
contribution with respect to payments which the agents or underwriters may be
required to make in respect thereof. Agents and underwriters may be customers
of, engage in transactions with, or perform services for us in the ordinary
course of business.
We have engaged on a best efforts basis Ladenburg Thalmann & Co. Inc. as
our exclusive placement agent for a limited period of time with respect to an
offering of up to $50,000,000 of our common stock. Ladenburg Thalmann has agreed
with us that it will seek to identify institutional investors who may wish to
purchase our common stock from time to time on specific terms to be negotiated
between us and the institutional investors. Ladenburg Thalmann is not committed
to purchase, and except as disclosed in a further supplement to this prospectus
Ladenburg Thalmann will not purchase, any of our securities for its own account
or for any discretionary accounts managed by it, regardless of whether it does
or does not successfully identify others to purchase any shares of our
securities.
We have agreed to pay Ladenburg Thalmann a placement fee equal to 3% of the
gross proceeds from each sale of securities. We have also agreed to pay
Ladenburg Thalmann a $35,000 non-accountable expense allowance which was paid
upon the engagement of Ladenburg Thalmann. In addition, we have agreed to
indemnify Ladenburg Thalmann against liabilities under the Securities Act of
1933.
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LEGAL MATTERS
Certain legal matters relating to the shares of common stock offered hereby
will be passed upon for WebLink Wireless by Frederick G. Anderson, Esq., General
Counsel of WebLink Wireless.
EXPERTS
The consolidated financial statements and schedule incorporated by
reference in this prospectus and elsewhere in the registration statement 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 said firm as experts in giving said
reports.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other
information with the SEC. We have also filed with the SEC a registration
statement on Form S-3 to register the shares of common stock being offered in
this prospectus. This prospectus, which forms part of the registration
statement, does not contain all of the information included in the registration
statement. For further information about us and the shares of common stock
offered in this prospectus, you should refer to the registration statement and
its exhibits and our other SEC filings.
You may read and copy any document we file with the SEC at the SEC's Public
Reference Room at 450 Fifth Street, N.W., Washington, D.C. 20549. Please call
the SEC at 1-800-SEC-0330 for further information on the operation of the Public
Reference Room. We file our SEC materials electronically with the SEC, so you
can also review our filings by accessing the website maintained by the SEC at
http://www.sec.gov. This website contains reports, proxy and information
statements and other information regarding issuers that file electronically with
the SEC.
The SEC allows us to "incorporate by reference" the information we file
with it, which means we can disclose important information to you by referring
you to those documents. The information included in the following documents is
incorporated by reference and is considered to be a part of this prospectus. The
most recent information that we file with the SEC automatically updates and
supersedes more dated information. We have previously filed the following
documents with the SEC and incorporate them by reference into this prospectus:
1. Our annual report on Form 10-K for the year ended December 31, 1999;
2. Our current report on Form 8-K dated March 13, 2000;
3. Our proxy statement for the 2000 annual meeting of stockholders;
4. Our quarterly report on Form 10-Q for the quarters ended March 31, 2000,
June 30, 2000 and September 30, 2000; and
5. The description of our capital stock under the caption "Description of
Capital Stock" in our registration statement on Form S-1 (File No. 333-03012).
We also incorporate by reference all documents subsequently filed by us
pursuant to Section 12, 13(a), 13(c), 14 or 15(d) of the Exchange Act until all
of the shares being offered in this prospectus are sold.
We will provide without charge to each person to whom a prospectus is
delivered a copy of any or all of the information that has been incorporated by
reference in this prospectus. If you would like to obtain this information from
us, please direct your request, either in writing or by telephone, to WebLink
Wireless, Inc., 3333 Lee Parkway, Suite 100, Dallas, Texas 75219, Attention
Kelly Prentiss (214) 765-3874.
11
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth the costs and expenses payable by the
Registrant in connection with the sale of the securities being registered
hereby. All amounts are estimates except the registration fee.
Amount to be
Paid
-----------
Registration fee................................................ $ 17,426
Legal fees and expenses......................................... 75,000
Nasdaq additional share listing fee............................. 17,500
Transfer agent's fees........................................... 6,000
Accounting fees and expenses.................................... 50,000
Miscellaneous................................................... 50,000
TOTAL........................................................ $ 215,926
=========
Item 15. Indemnification of Directors and Officers
Our certificate of incorporation limits, to the fullest extent permitted by
Delaware corporate law, the personal liability of directors for monetary damages
for breach of their fiduciary duties.
Section 145 of the General Corporation Law of the State of Delaware (the
"DGCL") provides, in summary, that directors and officers of Delaware
corporations are entitled, under certain circumstances, to be indemnified
against all expenses and liabilities (including attorneys' fees) incurred by
them as a result of suits brought against them in their capacity as a director
or officer, 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, if they had no reasonable cause to
believe their conduct was unlawful; provided, that no indemnification may be
made against expenses in respect of any claim, issue or matter as to which they
shall have been adjudged to be liable to the corporation, unless and only to the
extent that the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, they are fairly and reasonably entitled to
indemnity for such expenses which the court shall deem proper. Any such
indemnification may be made by the corporation only as authorized in each
specific case upon a determination by the stockholders or disinterested
directors that indemnification is proper because the indemnitee has met the
applicable standard of conduct.
Our board of directors may provide similar indemnification of our officers,
employees and agents as they deem appropriate and as authorized by Delaware law.
We may purchase insurance on behalf of any director, officer, employee or agent
against any expense incurred by such person in his or her capacity.
Item 16. Exhibits and Financial Statement Schedules
(a) The following exhibits are filed as part of this Registration
Statement:
Exhibit No. Document
----------- --------
* 1.1 Underwriting Agreement
** 5.1 Opinion of Frederick G. Anderson, Esq., General Counsel of WebLink
Wireless, Inc.
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<PAGE>
*** 23.1 Consent of Arthur Andersen LLP, Independent Auditors
** 23.2 Consent of Frederick G. Anderson, Esq., General Counsel of WebLink
Wireless, Inc. (included in Exhibit 5.1)
** 24.1 Power of Attorney (included on the signature page of the
Registration Statement)
-----------------
* To be filed as an amendment to this Registration Statement or as an exhibit
to a Current Report on Form 8-K.
** Included with the original filing of this Registration Statement on
November 3, 2000.
*** Filed herewith.
Item 17. Undertakings
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:
(a) To include any prospectus required by Section 10(a)(3) of the
Securities Act,
(b) 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
a 20 percent change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
registrant statement,
(c) 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 clauses (a) and (b) do not apply if the information
required to be included in a post-effective amendment by such clauses is
contained in periodic reports filed with or furnished to the Securities and
Exchange Commission by the Registrant pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 (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 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 purposes of determining any liability under the Securities
Act, each filing of the Registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Exchange Act that is incorporated by
reference in this 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.
Insofar as the 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 provisions referenced in Item 15 of this
Registration Statement, or otherwise, the registrant has been advised that in
the opinion of the Securities and Exchange Commission
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<PAGE>
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 hereunder, 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.
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 the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Dallas, State of Texas,
on the 5th day of December, 2000.
WebLink Wireless, Inc.
By: /s/ John D. Beletic
---------------------------------------
Name: John D. Beletic
Title: Chairman and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
---------- ----- ----
/s/ John D. Beletic Chairman and Chief Executive December 5, 2000
-------------------- Officer (Principal Executive
John D. Beletic Officer)
/s/ John R. Hauge Vice President, Finance, Chief December 5, 2000
-------------------- Financial Officer and Treasurer
John R. Hauge Principal Financial and Accounting
Officer)
* Director December 5, 2000
--------------------
Leigh J. Abramson
* Director December 5, 2000
--------------------
Albert C. Black
* Director December 5, 2000
--------------------
Guy L. De Chazal
* Director December 5, 2000
--------------------
Steven B. Dodge
* Director December 5, 2000
--------------------
Michael C. Hoffman
Director December 5, 2000
--------------------
Pamela D.A. Reeve
----------
* An asterisk denotes execution by John R. Hague, as attorney-in-fact.
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<PAGE>
EXHIBIT INDEX
Exhibit No. Document
* 1.1 Underwriting Agreement
** 5.1 Opinion of Frederick G. Anderson, Esq., General Counsel of WebLink
Wireless, Inc.
*** 23.1 Consent of Arthur Andersen LLP, Independent Auditors
** 23.2 Consent of Frederick G. Anderson, Esq., General Counsel of WebLink
Wireless, Inc. (included in Exhibit 5.1)
** 24.1 Power of Attorney (included on the signature page of the
Registration Statement)
--------------------
* To be filed as an amendment to this Registration Statement or as an exhibit
to a Current Report on Form 8-K.
** Included with the original filing of this Registration Statement on
November 3, 2000.
*** Filed herewith.
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