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0001125282-03-002666.txt : 20030401
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20030401084652
ACCESSION NUMBER: 0001125282-03-002666
CONFORMED SUBMISSION TYPE: S-3/A
PUBLIC DOCUMENT COUNT: 6
FILED AS OF DATE: 20030401
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: WIRE ONE TECHNOLOGIES INC
CENTRAL INDEX KEY: 0000746210
STANDARD INDUSTRIAL CLASSIFICATION: WHOLESALE-ELECTRONIC PARTS & EQUIPMENT, NEC [5065]
IRS NUMBER: 770312442
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-3/A
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-103227
FILM NUMBER: 03632730
BUSINESS ADDRESS:
STREET 1: 225 LONG AVENUE
CITY: HILLSIDE
STATE: NJ
ZIP: 07205
BUSINESS PHONE: 8054828277
MAIL ADDRESS:
STREET 1: 225 LONG AVENUE
CITY: HILLSIDE
STATE: NJ
ZIP: 07205
FORMER COMPANY:
FORMER CONFORMED NAME: VIEWTECH INC
DATE OF NAME CHANGE: 19950418
FORMER COMPANY:
FORMER CONFORMED NAME: VIEW TECH INC
DATE OF NAME CHANGE: 19950418
S-3/A
1
b323062_s3.htm
AMENDMENT NO. 1 TO REGISTRATION STATEMENT
Prepared and Filed by St Ives Burrups
Click
here for Contents |
As filed with
the Securities and Exchange Commission on March 31, 2003 |
Registration
No. 333-103227 |
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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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WIRE ONE
TECHNOLOGIES, INC.
(Exact Name of Registrant as Specified in its Charter) |
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Delaware |
5065 |
77-0312442 |
(State or other jurisdiction of
incorporation or organization)
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(Primary Standard Industrial
Classification Code Number) |
(I.R.S. Employer
Identification Number) |
225 Long Avenue
Hillside, New Jersey 07205
(973) 282-2000
(Address, including zip code, and telephone number, including area code of Registrant's
principal executive offices) |
|
Richard Reiss
Chief Executive Officer
Wire One Technologies, Inc.
225 Long Avenue
Hillside, New Jersey 07205
(973) 282-2000
(Name, address, including zip code, and telephone number, including area code,
of agent for service) |
|
Copy to:
Michael J.W. Rennock, Esq.
Morrison & Foerster LLP
1290 Avenue of the Americas
New York, New York 10104
(212) 468-8000 |
|
Title of Each Class of
Securities to be Registered |
Amount to
be Registered
|
Proposed Maximum
Offering Price
Per Share (4)
|
Proposed Maximum
Aggregate Offering
Price (4)
|
Amount of
Registration Fee (5) |
Common Stock, $0.0001 par value per share(1) |
3,959,284
|
$ 1.75 |
$ 6,928,747 |
$ 638 |
Common Stock, $0.0001 par value per share(2) |
130,000
|
$ 1.75 |
$ 227,500 |
$ 21 |
Common Stock, $0.0001 par value per share(3) |
119,550
|
$ 1.75 |
$ 209,213 |
$ 20 |
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(1) |
Pursuant to the issuance under the Note and Warrant Purchase Agreement
dated as of December 17, 2002 of subordinated convertible notes in the
aggregate principal amount of $4,888,000 bearing interest at the rate of
eight percent per annum and warrants to purchase an aggregate of 814,668
shares of common stock, includes 120% of: (i) the 2,036,667 shares of common
stock issuable upon the conversion of such subordinated convertible notes
at a conversion price of $2.40 per share, (ii) the 814,668 shares of common
stock issuable upon exercise of such outstanding warrants, and (iii) the
aggregate shares of common stock reserved for issuance as payment of interest
on the subordinated convertible notes, which interest may be paid in cash
or in common stock at the option of the Registrant. Pursuant to Rule 416
under the Securities Act of 1933, this registration statement shall be
deemed to cover any additional securities issuable pursuant to the anti-dilution
provisions of these notes from stock splits, stock dividends or similar
transactions. |
(2) |
Represents shares of common stock issuable upon exercise of outstanding
warrants with piggyback rights on this offering. Pursuant to Rule 416 under
the Securities Act of 1933, this registration statement shall be deemed
to cover any additional securities issuable pursuant to the anti-dilution
provisions of these warrants from stock splits, stock dividends or similar
transactions. |
(3) |
Represents (i) shares of common stock with piggyback rights on this offering
and (ii) shares of common stock issuable upon exercise of outstanding warrants
with piggyback rights on this offering. Pursuant to Rule 416 under the
Securities Act of 1933, this registration statement shall be deemed to
cover any additional securities issuable pursuant to the anti-dilution
provisions of these warrants from stock splits, stock dividends or similar
transactions. |
(4) |
Estimated solely for the purpose of computing the registration fee, based
on the average of the high and low sales prices of the common stock as
reported by the Nasdaq National Market on February 12, 2003 in accordance
with Rule 457 under the Securities Act of 1933. |
(5) |
Previously paid. |
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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, as amended, 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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Click here for Contents
The information
contained in this prospectus is not complete and may be changed. We may
not sell these securities until the Securities and Exchange Commission
makes the registration statement that includes this prospectus effective.
PRELIMINARY
PROSPECTUS SUBJECT TO COMPLETION, DATED MARCH 31, 2003
4,208,834 Shares
Common Stock
This prospectus relates to 4,208,834 shares of our common stock which may
be sold from time to time by the selling stockholders listed beginning on
page 6 including their transferees, pledgees or donees or their successors.
The
shares are being registered to permit the selling stockholders to sell the
shares from time to time in the public market. The stockholders may sell the
common stock through ordinary brokerage transactions, directly to market makers
of our shares or through any other means described in the section Plan of Distribution beginning
on page 8.
Our common stock is quoted on the Nasdaq National Market
under the symbol WONE. On March 25, 2003, the last reported sale price
for the common stock on the Nasdaq National Market was $2.04 per share.
Investment in our common stock involves risks. See Risk Factors beginning
on page 2 of this prospectus.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is ,
2003.
TABLE OF CONTENTS
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED
IN THIS DOCUMENT OR TO WHICH WE HAVE REFERRED YOU. WE HAVE NOT AUTHORIZED
ANYONE TO PROVIDE YOU WITH INFORMATION THAT IS DIFFERENT. THIS DOCUMENT
MAY BE USED ONLY WHERE IT IS LEGAL TO SELL THESE SECURITIES. THE INFORMATION
IN THIS DOCUMENT MAY BE ACCURATE ONLY ON THE DATE OF THIS DOCUMENT.
FORWARD-LOOKING STATEMENTS
This prospectus and the
documents incorporated herein by reference include forward-looking statements within
the meaning of Section 27A of the Securities Act and Section 21E of the Exchange
Act. All statements other than statements of historical fact are forward-looking
statements for purposes of these provisions, including any projections
of earnings, revenues or other financial items, any statements of the plans and
objectives of management for future operations, any statements concerning proposed
new products or services, any statements regarding future economic conditions
or performance, and any statement of assumptions underlying any of the foregoing.
In some cases, forward-looking statements can be identified by the use of terminology
such as may, will, expects, plans, anticipates, estimates,
potential, or continue or the negative thereof or other
comparable terminology. Although we believe that the expectations reflected
in the forward-looking statements contained in this prospectus and in the incorporated
documents are reasonable, we cannot assure you that such expectations or any
of the forward-looking statements will prove to be correct, and actual results
could differ materially from those projected or assumed in the forward-looking
statements. Our future financial condition and results of operations, as well
as any forward-looking statements, are subject to inherent risks and uncertainties,
including but not limited to the risk factors set forth herein and for the reasons
described
elsewhere in this prospectus. These factors, risks and uncertainties include
market acceptance and availability of new products and services; the nonexclusive
and terminable-at-will nature of our reseller agreements with manufacturers;
rapid technological
change affecting products and
services; the impact of competitive products and services, as well as competition
from other resellers and service providers; possible delays in the shipment of
new products; and the availability of sufficient financial resources to enable
us to expand our operations. All forward-looking statements and reasons why results
may differ included in this prospectus are made as of the date hereof, and we
assume no obligation to update any such forward-looking statement or reason why
actual results might differ.
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ABOUT WIRE ONE
Wire One Technologies, Inc. a Delaware corporation,
was formed in May 2000 by the merger of All Communications Corporation,
a reseller and integrator of video, voice and network communications design
and service solutions, into View Tech, Inc., a provider of video, voice and
data communications equipment and services.
Wire One is a leading single source provider of video
communications solutions that encompass the entire video communications
value chain. We are a leading integrator for major video communications equipment
manufacturers, including the number one market share leader, Polycom, Inc.,
as well as Tandberg, RADVision, Sony, Cisco Systems and others. We integrate
equipment from these manufacturers into comprehensive video and network solutions
and resell them to end users and resellers. Our current customer base includes
over 3,000 companies with approximately 21,000 videoconferencing endpoints.
We also operate our Glowpoint network service, which provides our customers
with two-way video communications with high quality of service. With Glowpoint,
which we believe to be the first subscriber network to provide such communications
by utilizing an Internet network and broadband access dedicated solely to
transporting video using the H.323 Internet Protocol standard, we offer our
customers a single point of contact for all their video communications requirements.
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RISK FACTORS
You should carefully consider the risks described
below in evaluating Wire One and our business. If any of the following risks
actually occur, our business could be harmed. This could cause the price
of our stock to decline. This offering memorandum contains, in addition to
historical information, forward-looking statements, including statements
about future plans, objectives, and intentions, that involve risks and uncertainties.
Our actual results may differ materially from the results discussed in the
forward-looking statements. Factors that might cause or contribute to these
differences include those discussed below and elsewhere in this offering
memorandum.
Risks Related to This Offering |
|
We do not pay cash dividends. |
We have never paid dividends on our common stock and
do not currently intend to pay any dividends in the foreseeable future.
Sales of our common stock may cause our stock price to decline. |
The sale of shares of our common stock by the selling
security holders under the registration statement filed in connection with
this Offering, or even the potential of such sale, may have an adverse effect
on the price of our common stock. The sale of shares of our common stock in
the future may also have an adverse effect on the price of our common stock.
If our stockholders sell substantial amounts of our common stock, including
shares issued upon the exercise of outstanding options and warrants, the market
price of our common stock could fall. Such sales also might make it more difficult
for us to sell equity or equity-related securities in the future at a time
and price that we deem appropriate.
The exercise of outstanding options and or warrants could result in substantial numbers of additional shares being issued, which will dilute your potential ownership interest and may cause our stock price to decline. |
As of December 31, 2002, there were outstanding warrants
to acquire an aggregate of approximately 5,517,847 shares of common stock,
and there were outstanding options to acquire an aggregate of approximately
7,009,421 shares of common stock. If exercised, these securities will dilute
your percentage ownership of common stock. Certain of these securities, unlike
the common stock, provide for anti-dilution protection upon the occurrence
of stock splits, redemptions, mergers, reclassifications, reorganizations and
other similar corporate transactions, and, in some cases, major corporate announcements.
If one or more of these events occurs, the number of shares of common stock
that may be acquired upon conversion or exercise would increase.
During the respective terms of the warrants and options
granted or to be granted under our stock option plans or outside the plans,
the holders thereof are given an opportunity to benefit from a rise in the
market price of the common stock, with a resultant dilution of the interests
of existing stockholders. The existence of these warrants and options could
make it more difficult for us to obtain additional financing while such securities
are outstanding. The holders may be expected to exercise their rights to acquire
common stock and sell at a time when we would, in all likelihood, be able to
obtain needed capital through a new offering of securities on terms more favorable
than those provided by these warrants and options.
We may issue additional shares and dilute your potential ownership interest. |
Some events over which you have no control could result
in the issuance of additional shares of our common stock, which would dilute
your ownership percentage in Wire One. We may issue additional shares of common
stock or preferred stock:
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to raise additional capital or finance acquisitions; |
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upon the exercise or conversion of outstanding options, warrants and shares of convertible preferred stock; and or |
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in lieu of cash payment of dividends or interest on our outstanding convertible subordinated notes. |
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The market price of our stock may be adversely affected by market volatility. |
The market price of our common stock is likely to be
volatile and could fluctuate widely in response to many factors, including:
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potential acquisitions or divestitures; |
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announcements of technological innovations by us or our competitors; |
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announcements of new products, services, customers or new contracts by us or our competitors; |
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developments with respect to patents or proprietary rights; |
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economic developments in the telecommunications or multimedia industries as a whole; |
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actual or anticipated variations in our operating results due to the level of development expenses and other factors; |
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changes in financial estimates by securities analysts and whether our earnings meet or exceed such estimates; |
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new accounting standards; |
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general economic, political and market conditions and other factors; and |
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the occurrence of any of the risks described in these Risk Factors. |
In the past, following periods of volatility in the
market price of the securities of companies in many industries, securities
class action litigation has often been instituted against those companies.
If we face such litigation in the future, it would result in substantial costs
and a diversion of management attention and resources, which would negatively
impact our business.
Wire Ones anti-takeover defense provisions may deter potential acquirors of Wire One and may depress its stock price. |
Wire Ones certificate of incorporation and
bylaws contain provisions that could have the effect of making it more difficult
for a third party to acquire, or of discouraging a third party from attempting
to acquire, control of Wire One. These provisions provide for a classified
board of directors and allow Wire One to issue preferred stock with rights
senior to those of its common stock and impose various procedural and other
requirements that could make it more difficult for Wire One stockholders to
effect corporate actions.
Risks Related to Our Business |
|
Our history of substantial net losses may continue indefinitely and may make it difficult to fund our operations. |
Wire One was formed by the merger of All Communications
Corporation and View Tech, Inc. in May 2000. We reported a substantial
loss from operations in 2000 and 2001, as well as in the initial three fiscal
quarters of 2002. In the fourth quarter of 2002, we completed the process of
quantifying the goodwill impairment loss and recorded a $40.0 million charge.
We cannot
assure you that Wire One will achieve revenue growth or profitability or generate
positive cash flow on a quarterly or annual basis in the future, or at all.
If we do not become profitable in the future, the value of our common stock
may fall and we could have difficulty obtaining funds to continue our operations.
The loss of our professionals would make it difficult to complete existing projects, which could adversely affect our businesses and results of operations. |
Our business is labor intensive, and our success depends
on identifying, hiring, training and retaining professionals. If a significant
number of our current employees or any of our senior managers or key project
managers leave, we may be unable to complete or retain existing projects. In
particular, our success may be dependent on the experience and continued employment
of Richard Reiss, our chairman of the board and chief executive officer, the
loss of whose services could have a material adverse effect on our business.
We have entered into an employment agreement with Mr. Reiss, which agreement
expires on December 31, 2003.
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Our success is highly dependent on the evolution of our overall market. |
The market for videoconferencing services is evolving
rapidly. Although certain industry analysts project significant growth for
this market, their projections may not be realized. Our Glowpoint network service
utilizes IP (H.323) standards. As a result, our future growth, if any, will
depend on the continued trend of businesses to migrate to the more advanced
IP (H.323) based standards and away from the older, less reliable Integrated
Services Digital Network (ISDN) technology. There can be no assurance that
the market for our services will grow, that our services will be adopted, or
that businesses will use IP (H.323) based videoconferencing equipment or our
IP subscriber network. If we are unable to react quickly to changes in the
market, if the market fails to develop, or develops more slowly than expected,
or if our services do not achieve market acceptance, then we are unlikely to
become or remain profitable.
We depend upon our network and facilities infrastructure. |
Our success depends upon our ability to implement, expand
and adapt our national network infrastructure and support services to accommodate
an increasing amount of video traffic and evolving customer requirements at
an acceptable cost. This has required and will continue to require that we
enter into agreements with providers of infrastructure capacity, equipment,
facilities and support services on an ongoing basis. We cannot assure you that
any of these agreements can be obtained on satisfactory terms and conditions.
We also anticipate that future expansions and adaptations of our network infrastructure
facilities may be necessary in order to respond to growth in the number of
customers served.
We depend upon suppliers and have limited sources of supply for certain products and services. |
We rely on other companies to supply some key products
and services that we resell and some components of our network infrastructure.
Some of the products and services that we resell, and certain components that
we require for our network, are available only from limited sources. We could
be adversely affected if such sources were to become unavailable to us on commercially
reasonable terms. We cannot assure you that, on an ongoing basis, we will be
able to obtain third-party products and services cost-effectively and on the
scale and within the timeframes we require, or at all. Failure to obtain or
to continue to make use of such third-party products and services would have
a material adverse effect on our business, financial condition and results
of operations.
Our reseller contracts are typically nonexclusive and terminable at will and may not protect us from intellectual property infringement claims. |
The nonexclusive and terminable at will nature of
our reseller agreements with manufacturers would allow our key resellers to
enter into similar agreements with our competitors or to terminate our agreements
altogether without notice. While our typical reseller agreements contain provisions
that indemnify Wire One in the event that the products we resell are found
to violate the intellectual property rights of others, we cannot assure you
that Wire One would not incur significant litigation and other costs in the
event of an infringement claim.
Our network could fail, which could negatively impact our revenues. |
Our success depends upon our ability to deliver reliable,
high-speed access to our partners data centers and upon the ability and
willingness of our telecommunications providers to deliver reliable, high-speed
telecommunications service through their networks. Our network and facilities,
and other networks and facilities providing services to us, are vulnerable
to damage, unauthorized access, or cessation of operations from human error
and tampering, breaches of security, fires, earthquakes, severe storms, power
losses, telecommunications failures, software defects, intentional acts of
vandalism including computer viruses, and similar events, particularly
if the events occur within a high traffic location of the network or at one
of our data centers. The occurrence of a natural disaster or other unanticipated
problems at the network operations center, key sites at which we locate routers,
switches and other computer equipment that make up the backbone of our network infrastructure, or at one or more
of our partners data centers, could substantially and adversely impact
our business. We cannot assure you that we will not experience failures or
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shutdowns relating to individual
facilities or even catastrophic failure of the entire network. Any damage
to or failure of our systems or service providers could result in reductions
in, or terminations of, services supplied to our customers, which could have
a material adverse effect on our business. In addition, we rely upon MCI/Worldcom
for a portion of our Internet network, and, although we have backup network
access with other providers, MCI/Worldcoms recent financial difficulties
could undermine its performance and have a material adverse effect on our
network.
Our network depends upon telecommunications carriers who could become direct competitors and limit or deny us access to their network, which would have a material adverse effect on our business. |
We rely upon the ability and willingness of certain
telecommunications carriers and other corporations to provide us with reliable,
high-speed telecommunications service through their networks, including MCI/WorldCom.
While these organizations are presently focusing on the market for ISDN bridging,
they may decide to enter the video communications market by providing video
services over their Internet network, in which case they would directly compete
with us. If this occurs, we cannot assure you that these telecommunications
carriers and other corporations would continue to provide service to us through
their networks at reasonable prices, if at all. Failure to continue to be able
to use such services would have a material adverse effect on our business.
A decrease in the number and or size of our projects may cause our results to fall short of investors expectations and adversely affect the price of our common stock. |
If the number or average size of our projects decreases
in any quarter, then our revenues and operating results may also decrease.
If our operating results (including the growth of our Glowpoint network) fall
short of investors expectations, the trading price of our common stock
could decrease materially, even if the quarterly results do not represent any
longer-term problems.
We compete in a highly competitive market and many of our competitors have greater financial resources and established relationships with major corporate customers. |
The video communications industry is highly competitive.
We compete with other independent distributors of video communications equipment.
In addition, a number of telecommunications carriers and other corporations
including AT&T, MCI, Sprint and some of the regional Bell companies have
entered into the video communications industry. Many of these organizations
have substantially greater financial and other resources than Wire One, furnish
many of the same products and services provided by Wire One, and have established
relationships with major corporate customers that have policies of purchasing
directly from them. We believe that as the demand for video communications
systems continues to increase, additional competitors, many of which may have
greater resources than Wire One, will continue to enter the video communications
market.
USE OF PROCEEDS
The selling stockholders will receive all of the proceeds
from the sale of the securities sold pursuant to this prospectus, although
we may receive as much as approximately $2,916,671 upon exercise of the outstanding
warrants, if the warrants are exercised in full and the purchase price is paid
in cash. The proceeds from the exercise of warrants would be used for working
capital purposes. See Selling Stockholders for a list of those
persons and entities receiving proceeds from the sales of these shares.
SELLING STOCKHOLDERS
The following table sets forth (i) the names of the
selling stockholders, (ii) the number of shares of common stock owned beneficially
by each of them as of March 28, 2003, (iii) the number of shares which may
be offered pursuant to this prospectus and (iv) the number of shares and percentage
of class to be owned by each selling stockholder after this offering. The selling
stockholders may sell all, some or none of their shares in this offering. See Plan
of Distribution. Pursuant to various agreements with some of the selling
stockholders, we have filed a registration statement, of which this prospectus
forms a part, in order to permit those stockholders to sell to the public the
shares of common stock that they acquired or may acquire in
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connection with our private placement
of convertible subordinated notes and warrants to purchase common stock conducted
in December 2002. Holders of certain other warrants may exercise their rights
to exercise their warrants and sell to the public the common stock issuable
upon such exercise under this registration statement. The following information
is based upon information provided by the selling stockholders. Except as
otherwise set forth in the footnotes to the table, none of the selling stockholders
has held any position or office or has had any other material relationship
with us or any of our affiliates within the past three years other than as
a result of his or her ownership of shares of equity securities. Because
the selling stockholders may offer all, some or none of their common stock, no
definitive estimate as to the number of shares that will be held by the selling
stockholders after this offering can be provided.
Except as set forth in the footnotes to the table,
the persons named in the table have sole voting and investment power with respect
to all shares of common stock shown as beneficially owned by them, subject
to community property laws, where applicable. A person is considered the beneficial
owner of any securities as of a given date that can be acquired within 60 days
of such date through the exercise of any option, warrant or other right. Shares
of common stock subject to options, warrants or other rights which are currently
exercisable or exercisable within 60 days are considered outstanding for computing
the ownership percentage of the person holding such options, warrants or other
rights, but are not considered outstanding for computing the ownership percentage
of any other person.
The Common Shares Beneficially Owned after Offering column
assumes the sale of all shares offered. The Percentage of Common Shares
Beneficially Owned after Offering column is based on 29,054,189 shares
of common stock outstanding as of March 25, 2003.
Name of Selling Stockholder |
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Common Shares Beneficially Owned Prior to Offering |
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Common Shares Offered by this Prospectus |
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Common Shares Beneficially Owned After Offering |
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Percentage of Common Shares Beneficially Owned After Offering |
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DMG Legacy Fund LLC(1) |
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97,471 |
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97,471 |
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* |
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DMG Legacy Institutional Fund Ltd.(2) |
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906,471 |
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906,471 |
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* |
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DMG Legacy International Ltd.(3) |
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945,460 |
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945,460 |
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* |
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RBC Dominion(4) |
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1,350,001 |
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1,350,001 |
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* |
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JPMorgan Chase Bank(5) |
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100,000 |
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100,000 |
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* |
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Water Mill Partners, LLC(6) |
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30,000 |
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30,000 |
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* |
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H.C. Wainwright & Co., Inc.(7) |
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126,121 |
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63,351 |
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62,770 |
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* |
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Jason Adelman(8) |
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306,453 |
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49,832 |
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256,621 |
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* |
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Matthew Balk(9) |
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187,674 |
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3,367 |
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184,307 |
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* |
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Eric Singer(10) |
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154,421 |
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3,000 |
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151,421 |
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* |
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(1) |
Includes 60,166 shares
of common stock which are issuable upon conversion of $144,400 principal
amount of currently convertible subordinated notes at the initial conversion
price of $2.40 per share, 24,067 shares of common stock which are issuable
upon exercise of currently exercisable warrants and 13,23 shares of
common stock which represent the aggregate shares of common stock reserved
for issuance as payment of interest on the subordinated convertible
notes, which interest may be paid in cash or in common stock at the
option of the Registrant. |
|
|
(2) |
Includes 559,550 shares
of common stock which are issuable upon conversion of $1,342,920 principal
amount of currently convertible subordinated notes at the initial conversion
price of $2.40 per share, 223,820 shares of common stock which are
issuable upon exercise of currently exercisable warrants and 123,101 shares
of common stock which represent the aggregate shares of common stock
reserved for issuance as payment of interest on the subordinated convertible
notes, which interest may be paid in cash or in common stock at the
option of the Registrant. |
|
|
(3) |
Includes 583,617 shares
of common stock which are issuable upon conversion of $1,400,680 principal
amount of currently convertible subordinated notes at the initial conversion
price of $2.40 per share, 233,447 shares of common stock which are
issuable upon exercise of currently exercisable warrants and 128,396
shares of common stock which represent the aggregate shares of common
stock reserved for issuance as payment of |
6
|
interest on the subordinated convertible notes, which interest may be paid in
cash or in common stock at the option of the Registrant. |
|
|
|
(4) |
Includes 833,334 shares
of common stock which are issuable upon conversion of $2,000,000 principal
amount of currently convertible subordinated notes at the initial conversion
price of $2.40 per share, 333,334 shares of common stock which are
issuable upon exercise of currently exercisable warrants and 183,334 shares
of common stock which represent the aggregate shares of common stock
reserved for issuance as payment of interest on the subordinated convertible
notes, which interest may be paid in cash or in common stock at the
option of the Registrant. RBC Dominion purchased the notes and warrants
in the ordinary course of business and at the time of such purchase
had no agreements or understandings, directly or indirectly, with any
person to distribute them. |
|
|
(5) |
Consists of 100,000 shares
of common stock which are issuable upon exercise of currently exercisable
warrants. JPMorgan Chase obtained the warrants in the ordinary course
of its business and at the time the warrants were issued, JPMorgan
Chase had no agreements or understandings, directly or indirectly,
with any person to distribute them. |
|
|
(6) |
Consists of 30,000 shares
of common stock which are issuable upon exercise of currently exercisable
warrants. |
|
|
(7) |
Includes 63,395 shares
of common stock which are issuable upon exercise of currently exercisable
warrants. H.C. Wainwright obtained its common stock and warrants in
the ordinary course of its business, and at the time the common stock
and warrants were issued, H.C. Wainwright had no agreements or understandings,
directly or indirectly, with any person to distribute them. |
|
|
(8) |
Includes 130,500 shares
of common stock which are issuable upon exercise of currently exercisable
warrants. Mr. Adelmans shares also include 126,121 shares held
by H.C. Wainwright & Co., Inc. Mr. Adelman is a managing director
of H.C. Wainwright and disclaims beneficial ownership of Wire One shares
held by H.C. Wainwright. |
|
|
(9) |
Includes 61,553 shares
of common stock which are issuable upon exercise of currently exercisable
warrants. Mr. Balks shares also include 126,121 shares held by
H.C. Wainwright. Mr. Balk is a managing director of H.C. Wainwright
and disclaims beneficial ownership of Wire One shares held by H.C.
Wainwright. |
|
|
(10) |
Includes 25,300 shares
of common stock which are issuable upon exercise of currently exercisable
warrants. Mr. Singers shares also include 126,121 shares held
by H.C. Wainwright. Mr. Singer is a managing director of H.C. Wainwright
and disclaims beneficial ownership of Wire One shares held by H.C.
Wainwright. Mr. Singers shares also include 1,110 shares issuable
upon exercise of currently exercisable warrants held by Eric T. Singer
as Custodian for Brett Singer UGMA NY; 1,110 shares issuable upon exercise
of currently exercisable warrants held by Eric T. Singer as Custodian
for Jamison Singer UGMA NY; 1,110 shares issuable upon exercise of
currently exercisable warrants held by Guarantee and Trust for Benefit
of Aet P. Singer; and 1,110 shares issuable upon exercise of currently
exercisable warrants held by Guarantee and Trust for Benefit of Eric
Singer. |
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PLAN OF DISTRIBUTION
The selling stockholders, or pledgees, donees, transferees, or
other successors in interest, may sell the common stock from time to time on
the Nasdaq National Market, in the over-the-counter market, in privately negotiated
transactions or otherwise, at fixed prices that may be changed, at market prices
prevailing at the time of sale, at prices related to such prevailing market
prices or at prices otherwise negotiated. The common stock may be sold by the
selling stockholders by one or more of the following methods, without limitation:
|
(a) |
block trades in which the
broker or dealer so engaged will attempt to sell the shares as agent
but may position and resell a portion of the block as principal to
facilitate the transaction; |
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(b) |
purchases by a broker or
dealer as principal and resale by such broker or dealer for its account
pursuant to this prospectus; |
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(c) |
an exchange distribution in accordance with the rules of such exchange; |
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(d) |
ordinary brokerage transactions and transactions in which the broker solicits purchases; |
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(e) |
privately negotiated transactions; |
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(g) |
through the writing of options on the shares; |
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(h) |
one or more underwritten offerings on a firm commitment or best efforts basis; and |
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(i) |
any combination of such methods of sale. |
The selling stockholders may also transfer shares
by gift. We do not know of any arrangements by the selling stockholders for
the sale of any of the common stock.
In effecting sales, brokers and dealers engaged by
the selling stockholders may arrange for other brokers or dealers to participate.
Broker-dealers may agree with the selling stockholders to sell a specified
number of such shares at a stipulated price per share. To the extent such broker-dealer
is unable to do so acting as agent for a selling stockholder, it may purchase
as principal any unsold shares at the stipulated price. Broker-dealers who
acquire shares as principals may thereafter resell such shares from time to
time in transactions on the Nasdaq National Market at prices and on terms then
prevailing at the time of sale, at prices related to the then-current market
price or in negotiated transactions. Broker-dealers may use block transactions
and sales to and through broker-dealers, including transactions of the nature
described above. The selling stockholders may also sell the shares in accordance
with Rule 144 under the Securities Act of 1933, rather than pursuant to this prospectus, regardless of whether
such shares are covered by this prospectus.
From time to time, one or more of the selling stockholders
may pledge, hypothecate or grant a security interest in some or all of the
shares owned by them. The pledgees, secured parties or persons to whom such
securities have been hypothecated will, upon foreclosure in the event of default,
be deemed to be selling stockholders. In addition, a selling stockholder may,
from time to time, sell short our common stock, and, in such instances, this
prospectus may be delivered in connection with such short sales and the shares
offered under this prospectus may be used to cover short sales.
To the extent required under the Securities Act of
1933, the aggregate amount of selling stockholders shares of common stock
being offered and the terms of the offering, the names of any such agents,
brokers, dealers or underwriters and any applicable commission with respect
to a particular offer will be set forth in an accompanying prospectus supplement.
Any underwriters, dealers, brokers or agents participating in the distribution
of the common stock may receive compensation in the form of underwriting discounts,
concessions, commissions or fees from a selling stockholder and/or purchasers
of selling stockholders shares of common stock, for whom they may act
(which compensation as to a particular broker-dealer might be in excess of
customary commissions).
The selling stockholders and any broker-dealers that
participate in the distribution of the common stock may be deemed to be underwriters within
the meaning of the Securities Act of 1933, and any commissions
8
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received by them and any profit on
the resale of the common stock sold by them may be deemed to be underwriting
discounts and commissions.
A selling stockholder may enter into hedging transactions
with broker-dealers and the broker-dealers may engage in short sales of the
common stock in the course of hedging the positions they assume with such selling
stockholder, including, without limitation, in connection with distributions
of the common stock by such broker-dealers. A selling stockholder may enter
into option or other transactions with broker-dealers that involve the delivery
of the shares offered hereby to the broker-dealers, who may then resell or
otherwise transfer such shares. A selling stockholder may also loan or pledge
the shares offered hereby to a broker-dealer and the broker-dealer may sell
the shares offered hereby so loaned or upon a default may sell or otherwise
transfer the pledged shares offered hereby.
The selling stockholders and other persons participating
in the sale or distribution of the shares will be subject to the applicable
provisions of the Securities Exchange Act of 1934, including Regulation M.
With certain exceptions, Regulation M precludes any selling stockholder, any
affiliated purchasers, and any broker-dealer or other person who participates
in such distribution from bidding for or purchasing, or attempting to induce
any person to bid for or purchase any security which is the subject of the
distribution until the entire distribution is complete. Regulation M also prohibits
any bids or purchases made in order to stabilize the price of a security in
connection with the distribution of that security. All of the foregoing may
affect the marketability of our common stock.
We have agreed to indemnify certain of the selling
stockholders against certain liabilities, including liabilities under the Securities
Act of 1933. The selling stockholders have agreed to indemnify us in certain
circumstances against certain liabilities, including liabilities under the
Securities Act of 1933.
We will pay all expenses in connection with this offering
(including the legal fees and expenses of certain of the selling stockholders),
but excluding discounts, commissions, fees of underwriters, selling brokers,
dealer managers or similar securities industry professionals.
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DESCRIPTION OF COMMON STOCK
We are authorized to issue 100,000,000 shares of common
stock, par value $.0001 per share. At the close of business on February 10,
2003 there were 29,044,064 shares of our common stock outstanding. Each holder
of common stock is entitled to one vote for each share owned on all matters
voted upon by stockholders, including the election of directors. Subject to
the rights of any then outstanding shares of preferred stock, holders of common
stock are entitled to dividends that the board of directors may declare. The
decision to declare dividends is made by the board of directors in its sole
discretion, but the board of directors may declare dividends only if there
are funds legally available to pay for the dividends. Holders of common stock
are entitled to share ratably in our net assets upon liquidation after payment
or provision for all liabilities and any preferential liquidation rights of
any preferred stock then outstanding. Holders of common stock have no preemptive rights to purchase shares of our stock.
Shares of common stock are not subject to any redemption provisions and are
not convertible into any other securities of Wire One.
EXPERTS
The audited consolidated financial statements of Wire
One incorporated by reference in this prospectus to Wire Ones annual
report on Form 10-K for the year ended December 31, 2002 have been audited
by BDO Seidman, LLP, independent certified public accountants, to the extent
and for the periods set forth in their report incorporated herein by reference,
and are incorporated herein in reliance upon such report given upon the authority
of said firm as experts in auditing and accounting.
LEGAL MATTERS
Legal matters with respect to the validity of the
securities offered hereby are being passed upon by Morrison & Foerster
LLP, New York, New York.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the Securities and Exchange Commission
a registration statement on Form S-3 under the Securities Act with respect
to the common stock offered by this prospectus. This prospectus, which is a
part of the registration statement, does not contain all of the information
set forth in the registration statement. For further information about us and
the common stock offered by this prospectus, we refer you to the registration
statement and the exhibits and schedules filed as a part of the registration
statement. Statements contained in this prospectus as to the contents of any
contract or other document filed as an exhibit to the registration statement
are not necessarily complete. If a contract or document has been filed as an
exhibit to the registration statement, we refer you to the copy of the contract
or document that has been filed. The registration statement, including exhibits,
may be inspected without charge at the
principal office of the Securities and Exchange Commission in Washington, D.C.
and copies of all or any part of which may be inspected and copied at the public
reference facilities maintained by the Securities and Exchange Commission at
450 Fifth Street, N.W., Judiciary Plaza, Room 1024, Washington, D.C. 20549
and at the Commissions regional office located at Citicorp Center, 500
West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such material
can also be obtained as prescribed rates by mail from the Public Reference
Section of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549.
You may obtain information on the operation of the public reference room by
calling the Commission at 1-800-SEC-0330. In addition, the Commission maintains
a website at http://www.sec.gov that contains reports, proxy and information
statements and other information regarding registrants that file electronically
with the Commission.
We are subject to the information and reporting requirements
of the Securities Exchange Act of 1934, as amended, and, in accordance therewith
we are required to file annual and quarterly reports, proxy statements and
other information with the Commission. These reports, proxy statements and
other information are available for inspection and copying at the Commissions
public reference rooms and the Commissions website referred to above.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Commission requires us to incorporate into
this prospectus information that we file with the Commission in other documents.
This means that we can disclose important information to you by referring to
other documents that contain that information. The information incorporated
by reference is considered to be part of this prospectus. Information contained
in this prospectus and information that we file with the Commission in the
future and incorporate by reference in this prospectus automatically updates
and supersedes previously filed information. We incorporate by reference our
documents listed below and any future filings we make with the Commission under
Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934,
as amended, prior to the sale of all shares covered by this prospectus:
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1. |
Our Annual Report on Form 10-K for the fiscal year ended December 31, 2002; |
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2. |
Our Definitive Proxy Statement for the 2003 Annual Meeting of Stockholders; and |
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3. |
The description of our
common stock contained in our registration statement on Form 8-A, filed
with the Commission on May 14, 1998, including any amendment or
report filed for the purpose of updating such description. |
You may request a copy of these filings, at no cost, by writing or telephoning us at the following address:
Wire One Technologies Inc.
225 Long Avenue
Hillside, New Jersey 07205
Attention: Investor Relations
Telephone: (973) 282-2000
11
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4,208,834 Shares
of
Common Stock
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. |
Other Expenses of Issuance and Distribution |
The following table sets forth the various expenses, all
of which will be borne by the Registrant, in connection with the sale and distribution
of the securities being registered (except any underwriting discounts and commissions
and expenses incurred by the selling stockholders for brokerage, accounting,
tax or legal services or any other expenses incurred by the selling stockholders
in disposing of the shares). All amounts shown are estimates except for the
Securities and Exchange Commission registration fee.
SEC registration fee |
|
$ |
679 |
|
Accounting fees and expenses |
|
$ |
5,000 |
|
Legal fees and expenses |
|
$ |
42,500 |
|
Printing costs |
|
$ |
7,500 |
|
Miscellaneous |
|
$ |
4,321 |
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Total |
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$ |
60,000 |
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Item 15. |
Indemnification of Directors and Officers |
Reference is made to Section 102(b)(7) of the Delaware General
Corporation Law (the DGCL), which permits a corporation in its
certificate of incorporation or an amendment thereto to eliminate or limit
the personal liability of a director for violations of the directors
fiduciary duty, except (1) for any breach of the directors fiduciary
duty of loyalty to the corporation or its stockholders, (2) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing violation
of law, (3) pursuant to Section 174 of the DGCL (providing for liability of
directors for unlawful payment of dividends or unlawful stock purchases or
redemptions), or (4) for any transaction from which the director derived an
improper personal benefit. Our Certificate of Incorporation contains provisions
permitted by Section 102(b)(7) of the DGCL. Reference is made to Section 145
of the DGCL which provides that a corporation may indemnify any persons, including directors and officers, who are,
or are threatened to be made, parties to any threatened, pending or completed
legal action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of such corporation),
by reason of the fact that such person is or was a director, officer, employee
or agent of such corporation, or is or was serving at the request of such corporation
as a director, officer, employee or agent of another corporation or enterprise.
The indemnity may include expenses (including attorneys fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by such
person in connection with such action, suit or proceeding, provided such director,
officer, employee or agent acted in good faith and in a manner he reasonably
believed to be in or not opposed to the corporations best interests and,
with respect to any criminal actions or proceedings, had no reasonable cause to believe that his conduct was unlawful. A Delaware corporation may
indemnify directors and/or officers in an action or suit by or in the right
of the corporation under the same conditions, except that no indemnification
is permitted without judicial approval if the director or officer is adjudged
to be liable to the corporation. Where a director or officer is successful
on the merits or otherwise in the defense of any action referred to above,
the corporation must indemnify him or her against the expenses which such director
or officer actually and reasonably incurred.
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Exhibit
Number |
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Description |
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4.1 |
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Specimen Common Stock Certificate.(2) |
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4.2 |
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Form of Subordinated Convertible Promissory Note, dated December 17, 2002 (3) |
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4.3 |
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Form of Warrant to Purchase Common Stock, dated December 17, 2002 (3) |
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5.1 |
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Opinion of Morrison & Foerster LLP as to the legality of the common stock. (6) |
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10.1 |
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Form of Note and Warrant Purchase Agreement, dated December 17, 2002 (3) |
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10.2 |
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Form of Registration Rights
Agreement, dated as of December 17, 2002 between Wire One Technologies,
Inc. and the investors listed on the signature pages thereto. (3) |
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10.3 |
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Amendment to Employment Agreement with Richard Reiss, dated as of January 1, 2003. (5) |
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10.4 |
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Amendment to Employment Agreement with Leo Flotron, dated as of January 1, 2003. (5) |
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10.5 |
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Amendment to Employment Agreement with Christopher Zigmont, dated as of January 1, 2003.(5) |
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10.6 |
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Amendment to Employment Agreement with Michael Brandofino, dated as of January 1, 2003.(5) |
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10.7 |
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Consulting Agreement with Jonathan Birkhahn, dated January 21, 2003. (5) |
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10.8 |
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Consulting Agreement with Kelly Harman, dated January 21, 2003. (5) |
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10.9 |
|
Third Amendment to Lease
Agreement, dated as of June 1, 2000, between All Communications Corporation
and Vitamin Realty Associates, L.L.C. (4) |
|
10.10 |
|
Fifth Amendment to Lease
Agreement, dated as May 1, 2001, between Wire One Technologies, Inc. and
Vitamin Realty Associates, L.L.C. (4) |
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10.11 |
|
Sixth Amendment to Lease Agreement, dated as of May 1, 2002, between Wire One Technologies, Inc. and Vitamin Realty Associates, L.L.C. (4) |
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10.12 |
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Amendment No. 4 to the Credit Agreement with JPMorgan Chase Bank. (4) |
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10.13 |
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Asset Purchase Agreement dated March 7, 2003, between Wire One Technologies, Inc. and Signal Perfection Limited. (4) |
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23.1 |
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Consent of BDO Seidman, LLP.(6) |
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23.2 |
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Consent of Morrison & Foerster LLP. (included in their opinion filed as Exhibit 5.1) |
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24.1 |
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Power of Attorney (included in the signature page contained in Part II of the Registration Statement). (5) |
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(1) |
Filed as an appendix to View Tech Inc.s Registration Statement on Form S-4 (File No. 333-95145) and incorporated herein by reference. |
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(2) |
Filed as an exhibit to Wire One Technologies, Inc.s Registration Statement on Form S-1 (Registration No. 333-42518), and incorporated herein by reference. |
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(3) |
Filed as an exhibit to the Companys Current Report on Form 8-K filed with the Commission on December 23, 2002, and incorporated herein by reference. |
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(4) |
Filed as an exhibit to Wire One Technologies, Inc.s Annual Report on Form 10-K for the fiscal year ended December 31, 2002, and incorporated herein by reference. |
The undersigned Registrant hereby undertakes the following:
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(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: |
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(i) To include any prospectus required by Section 10(a)(3) of the Securities Act; |
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(ii) To reflect
in the prospectus any facts or events arising after the effective date
of the Registration Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental
change in the information 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 |
II-2
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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 Registration Statement;
and |
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(iii) To include
any material information with respect to the plan of distribution not
previously disclosed in the Registration Statement or any material
change to such information in the Registration Statement; |
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provided, however, that
paragraphs (1)(i) and (1)(ii) do not apply if the information required
to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the registration pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated
by reference in this Registration Statement. |
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(2) That, for the
purpose of determining any liability under the Securities Act, each
such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering
of such securities at that time to be the initial bona fide offering
thereof. |
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(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. |
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(4) That, for
purposes of determining any liability under the Securities Act of 1933,
each filing of the Registrants annual report pursuant to Section
13(a) or Section 15(d) of the Securities Act of 1934 (and, where applicable,
each filing of an employee benefit plans annual report pursuant
to Section 15(d) of the Securities Exchange Act of 1934) 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 indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
Wire One has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities 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, Wire One will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed
in the Securities Act and will be governed by the final adjudication of such
issue.
The undersigned Registrant hereby undertakes that,
for the purposes of determining any liability under the Securities Act of 1933,
each filing of the registrants annual report pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plans annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is incorporated by reference
in the registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act
of 1933, the Registrant certifies that it has reasonable grounds to believe
that it meets all the requirements for filing on Form S-3 and has duly caused
this Amendment No. 1 to the Registration Statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Hillside, State
of New Jersey, on March 31, 2003.
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WIRE ONE TECHNOLOGIES, INC. |
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By: |
/s/ RICHARD REISS |
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Richard Reiss
Chairman and Chief
Executive Officer |
Pursuant to the requirements of the Securities Act
of 1933, this Amendment No. 1 to the Registration Statement has been signed
by the following persons in the capacities indicated on March 31, 2003.
Signature |
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Title |
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/s/
RICHARD REISS
Richard Reiss |
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Chairman and Chief Executive Officer
(Principal Executive Officer) |
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/s/ CHRISTOPHER ZIGMONT*
Christopher Zigmont |
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Chief Financial Officer (Principal Financial and Accounting Officer) |
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/s/ LEO FLOTRON*
Leo Flotron |
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President and Chief Operating Officer and Director |
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/s/ JONATHAN BIRKHAHN*
Jonathan Birkhahn |
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Director |
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/s/ MICHAEL STERNBERG*
Michael Sternberg
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Director |
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/s/ JAMES KUSTER*
James Kuster |
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Director |
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/s/ DEAN HILTZIK*
Dean Hiltzik
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Director |
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/s/ PETER N. MALUSO*
Peter N. Maluso |
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Director |
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/s/ MICHAEL TOPOREK
Michael Toporek |
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Director |
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/s/ LEWIS JAFFE*
Lewis Jaffe |
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Director |
|
|
*By: |
/s/
RICHARD REISS
|
|
|
Richard Reiss
attorney-in-fact |
|
II-4
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end
EX-5.1
6
b323062_ex5-1.txt
EXHIBIT 5.1
Exhibit 5.1
[LETTERHEAD OF MORRISON & FOERSTER LLP]
March 31, 2003
Wire One Technologies, Inc.
225 Long Avenue
Hillside, New Jersey 07205
Ladies and Gentlemen:
At your request, we have examined the Registration Statement
on Form S-3 filed by Wire One Technologies, Inc., a Delaware corporation (the
"Company"), with the Securities and Exchange Commission (the "Commission") on
March 31, 2003 (Registration No. 333-103227) (the "Registration Statement"), as
amended by Amendment No. 1 on March 31, 2003, relating to the registration under
the Securities Act of 1933, as amended (the "Act"), of 4,208,834 shares of the
Company's common stock, par value $.0001 per share (the "Shares") being offered
by certain selling shareholders (the "Selling Stockholders").
This opinion is being delivered in accordance with the
requirements of Item 601(b)(5) of Regulation S-K under the Act. All capitalized
terms used herein and not otherwise defined shall have the respective meanings
assigned to them in the Registration Statement.
As counsel to the Company, we have examined the proceedings
taken by the Company in connection with the authorization of the issuance by the
Company of the Shares to the Selling Stockholders. In such examination, we have
assumed the genuineness of all signatures and the authenticity of all items
submitted to us as originals and the conformity with originals of all items
submitted to us as copies. In making our examination of documents executed by
entities other than the Company, we have assumed that each other entity has the
power and authority (or, in the case of individuals, the capacity) to execute
and deliver, and to perform and observe the provisions of such documents, and
the due authorization by each such entity of all requisite action and the due
execution and delivery of such documents by each such entity.
[LETTERHEAD OF MORRISON & FOERSTER LLP]
Wire One Technologies, Inc.
March 31, 2003
Page Two
In connection with this opinion, we have examined originals or
copies of the certificate of incorporation and the bylaws, each as amended to
date, of the Company. In addition, we have examined such records, documents,
certificates of public officials and the Company, made such inquiries of
officials of the Company and considered such questions of law as we have deemed
necessary for the purpose of rendering the opinions set forth herein.
Based upon and subject to the foregoing, we are of the opinion
that the Shares that may be sold by the Selling Stockholders have been duly
authorized for issuance by all necessary corporate action on the part of the
Company and, when so issued, will be validly issued, fully paid and
non-assessable.
We express no opinion as to matters governed by any laws other
than the General Corporation Law of the State of Delaware as in effect on the
date hereof.
We hereby consent to the filing of this opinion with the
Commission in connection with the filing of the Registration Statement and any
amendments thereto. We also consent to the use of our name in the related
prospectus under the heading "Legal Matters". In giving this consent, we do not
thereby admit that we are in the category of persons whose consent is required
under Section 7 of the Act.
Very truly yours,
Morrison & Foerster LLP
EX-23.1
7
b323062_ex23-1.txt
EXHIBIT 23.1
Exhibit 23.1
Consent of Independent Certified Public Accountants
To the Board of Directors of Wire One Technologies, Inc.
We hereby consent to the incorporation by reference in the Prospectus
constituting a part of this Registration Statement of our report dated March 7,
2003, relating to the consolidated financial statements of Wire One
Technologies, Inc. and subsidiaries appearing in the Company's Annual Report on
Form 10-K for the year ended December 31, 2002. We also consent to the reference
to us under the caption "Experts" in the Prospectus.
/s/ BDO Seidman, LLP
- ------------------------------
BDO Seidman, LLP
Boston, Massachusetts
March 31, 2003
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