As filed with the Securities and Exchange Commission on November 3, 2000
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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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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<TABLE>
CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum
Title of Each Class Amount to be Offering Price Per Aggregate Offering Amount of
of Securities to be Registered Registered Share(1) Price(1) Registration Fee
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<S> <C> <C> <C> <C>
Class A Convertible Common Stock, par value 8,500,000 shares $7.7655 $66,006,750 $17,426
$.0001 per share
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</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to rule 457 (c), based upon the average of the high and low
prices of the common stock on the Nasdaq National Market on October 27,
2000.
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 November 3, 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
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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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-i-
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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 June 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 an $18.3 million operating loss in the
first six 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 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. 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
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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 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 $164.7 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 six months of 2000 was $43.9
million, $70.5 million, $97.8 million and $44.1 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).
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, but there is no
assurance that we will.
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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 June 30, 2000 average monthly disconnection rates
were 2.5%, 3.2%, 3.1% and 3.0%, 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 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
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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
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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 October 27, 2000)..... 8 1/2 5 3/16
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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
and June 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.
II-1
<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.
** 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 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)
II-2
<PAGE>
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.
II-3
<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 2nd day of November, 2000.
WebLink Wireless, Inc.
By: /s/ John D. Beletic
-----------------------------------
Name: John D. Beletic
Title: Chairman and Chief Executive
Officer
II-4
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints John D. Beletic and John R. Hauge, and
each or any one of them, his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capabilities, to sign any and all amendments
(including post-effective amendments) to this registration statement and any
and all additional registration statements pursuant to Rule 462(b) of the
Securities Act of 1933, as amended, and to file the same, with all exhibits
thereto, and all other documents in connection therewith, with the Securities
and Exchange Commission, granting unto said attorneys-in-fact and agents, and
each of them, full power and authority to do and perform each and every act and
thing requisite and necessary to be done in connection therewith, as fully to
all intents and purposes as he might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents, or any of them, or
their or his substitutes or substitute, may lawfully do or cause to be done by
virtue hereof.
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 November 2, 2000
----------------------------- Executive Officer
John D. Beletic (Principal Executive
Officer)
/s/ John R. Hauge Vice President, Finance, November 2, 2000
----------------------------- Chief (Financial Officer
John R. Hauge and Treasurer Principal
Financial and Accounting
Officer)
/s/ Leigh J. Abramson Director November 2, 2000
-----------------------------
Leigh J. Abramson
/s/ Albert C. Black Director November 2, 2000
-----------------------------
Albert C. Black
/s/ Guy L. De Chazal Director November 2, 2000
-----------------------------
Guy L. De Chazal
/s/ Steven B. Dodge Director November 2, 2000
-----------------------------
Steven B. Dodge
/s/ Michael C. Hoffman Director November 2, 2000
-----------------------------
Michael C. Hoffman
Director November 2, 2000
-----------------------------
Pamela D.A. Reeve
II-5
<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.
** Filed herewith.
