As filed with the Securities and Exchange Commission on June 14, 2001
Registration No. 333-42518
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
POST EFFECTIVE AMENDMENT NO. 1
TO
FORM S-1
ON
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
WIRE ONE TECHNOLOGIES, INC.
(Exact Name of Registrant as Specified in its Charter)
Delaware 5065 77-0312442
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) 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
President and 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)
----------------
Copies to:
Jonathan Birkhahn Michael J.W. Rennock, Esq.
Executive VP of Business Affairs Morrison & Foerster LLP
and General Counsel 1290 Avenue of the Americas
Wire One Technologies, Inc. New York, New York 10104
225 Long Avenue (212) 468-8000
Hillside, New Jersey 07205
(973) 282-2000
Approximate Date of Commencement of Proposed Sale of the Securities to the
Public: As soon as practicable after the effective date of this Registration
Statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box.|X|
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.|_|
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.|_|
----------------
CALCULATION OF REGISTRATION FEE
============================================================================================================================
Proposed Maximum Proposed Maximum
Title of Each Class of Amount to Offering Price Aggregate Offering Amount of
Securities to be Registered be Registered Per Unit(1) Price Registration Fee
- - ----------------------------------------------------------------------------------------------------------------------------
Common Stock, $0.0001 par value per share 902,145 $6.345 $5,724,110.03 $1,431.03
- - ----------------------------------------------------------------------------------------------------------------------------
(1) 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 June 11, 2001 in accordance with Rule 457
under the Securities Act of 1933.
----------------
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.
Explanatory Note
This Post-Effective Amendment No. 1 on Form S-3 (this "Amendment") is being
filed to convert the Registration Statement on Form S-1 (No. 333-42518) (the
"S-1 Registration Statement") into a Registration Statement on Form S-3. The S-1
Registration Statement related to an aggregate of 5,046,122 shares of common
stock of Wire One Technologies, Inc. to be offered from time to time for the
account of certain stockholders of Wire One Technologies, Inc., including
2,450,000 shares of common stock issuable to holders of 2,450 shares of series A
preferred stock upon conversion at a then fixed conversion rate of $7.00 per
share. This Amendment registers 902,145 shares of common stock that may be
issued to, and sold by, holders of the series A preferred stock should they
elect to convert their shares at an alternative conversion price below the $7.00
per share. Beginning on June 14, 2001, holders of series A preferred stock can
choose an alternative conversion price equal to the higher of (i) 70% of the
fixed conversion price then in effect or (ii) a price on any conversion date,
equal to the average of the closing sale prices of the common stock during the
20 consecutive trading days immediately preceding such conversion date. The
lowest possible alternative conversion price is $4.90 per share. As of the date
of this Amendment, approximately 345,000 shares of common stock have been issued
upon conversion of series A preferred stock at a conversion rate of $7.00 per
share. The prospectus contained herein relates to the 5,046,122 shares of Common
Stock that may be sold by the selling stockholders registered under the S-1
Registration Statement as well as the 902,145 shares which are being registered
hereunder.
PROSPECTUS
5,948,267 Shares
[Wire One Logo]
Common Stock
This prospectus relates to 5,948,267 shares of our common stock which may be
sold from time to time by the selling securityholders, 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 21. We cannot assure you that the selling
securityholders will sell all or any portion of the common stock offered under
this prospectus.
Our common stock is quoted on the Nasdaq National Market under the symbol
"WONE". On June 11, 2001, the last reported sale price for the common stock on
the Nasdaq National Market was $6.26 per share.
Our corporate offices are located at 225 Long Avenue, Hillside, New Jersey
07205. Our telephone number at that location is (973) 282-2000.
Investment in the securities involves risks. See "Risk Factors" beginning on
page 4 of this prospectus.
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.
The date of this prospectus is June , 2001.
TABLE OF CONTENTS
Page
----
Prospectus Summary ...................................................... 1
Forward Looking Statements .............................................. 3
Risk Factors ............................................................ 4
Use of Proceeds ......................................................... 10
Business ................................................................ 10
Selling Stockholders .................................................... 16
Plan of Distribution .................................................... 21
Experts ................................................................. 22
Legal Matters ........................................................... 22
Where You Can Find More Information ..................................... 22
Incorporation of Certain Documents by Reference ......................... 23
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.
i
PROSPECTUS SUMMARY
Because this is a summary, it may not contain all information that may be
important to you. You should read this entire prospectus, including the
information incorporated by reference and the financial data and related notes,
before making an investment decision. Unless otherwise indicated, all references
to "Wire One," "we," "our" and "us" refer to Wire One Technologies, Inc. and its
subsidiaries.
The Company
Wire One Technologies, Inc., a Delaware corporation, was formed in May 2000
by the merger of All Communications Corporation ("ACC"), a value-added
integrator of video, voice and network communications solutions since 1991, into
View Tech, Inc. ("VTI"), a provider of video, voice and data communications
equipment and services since 1992.
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 and number two market share leaders, PictureTel
Corporation ("PictureTel") and Polycom, Inc. ("Polycom"), respectively, which
together account for over 50% of the installed videoconferencing endpoints in
the United States. Our current customer base includes over 2,500 companies with
approximately 13,000 videoconferencing endpoints. We also offer voice
communications products manufactured by Lucent Technologies, Inc. ("Lucent") and
the Business Telephone Systems Division of Panasonic Communications and Systems
Company ("Panasonic"), among others. In December 2000 we introduced our
Glowpoint network service, providing our customers with two-way video
communications with high quality of service. With the introduction of Glowpoint,
we now offer our customers a single point of contact for all their video
communications requirements. Furthermore, we believe Glowpoint is the first
dedicated network to provide two-way video communications by utilizing a
dedicated internet protocol ("IP") backbone and broadband access.
The Offering
Common Stock offered by selling
stockholders....................5,948,267
Use of Proceeds.................the selling stockholders will receive all of
the proceeds from the sale of securities in this
offering, although Wire One may receive up to
approximately $14.4 million upon exercise of
outstanding warrants and options underlying
those securities
Nasdaq National Market Symbol...WONE
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Recent Developments
On June 4, 2001, we acquired the assets of GeoVideo Networks, Inc.
("GeoVideo"), a Lucent Technologies venture.
Chief among these assets, in addition to GeoVideo's cash on hand of at least
$2,500,000, is GeoVideo's browser. The browser is a software tool based upon
proprietary Bell Labs technology that allows up to six simultaneous, real- time,
bi-directional high-bandwidth IP video sessions to be conducted over a standard
desktop PC.
Beginning next year, we expect to integrate GeoVideo's browser and other
products to be developed under GeoVideo's joint development agreement with Bell
Labs, which agreement we also acquired, into our Glowpoint IP video
communications network services. We may also license the GeoVideo browser
technology for other video applications.
In exchange for the acquired assets, we issued a total of 815,661 shares of
Wire One common stock, together with warrants to purchase 501,733 additional
shares of Wire One stock at $5.50 per share and 520,123 shares at $7.50 per
share. We will issue additional shares in the event there is any cash in excess
of $2,500,000 remaining after GeoVideo winds up its affairs. We have undertaken
to register for public sale all shares, as well as warrants (which have a 5-year
term), issued in connection with the acquisition.
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FORWARD-LOOKING STATEMENTS
In addition to the other information contained in this prospectus and the
documents that are and will be incorporated into this prospectus, investors
should carefully consider the risk factors disclosed in this prospectus,
including those beginning on page 4, in evaluating an investment in the common
stock issuable upon conversion of the series A preferred shares and exercise of
the related warrants. 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 below and for the reasons described
elsewhere in this prospectus. 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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RISK FACTORS
You should carefully consider the risks and uncertainties described below and
the other information contained in this prospectus before deciding whether to
invest in our common stock. Additional risks and uncertainties not presently
known to us or that we currently deem immaterial may also impair our business
operations. If any of the following risks actually occur, our business,
financial condition or operating results could be materially adversely affected.
In such case, the trading price of our common stock could decline and you may
lose part or all of your investment.
Risks Related to Our Business
Prior To The Merger, ACC, One Of The Predecessor Companies Of Wire One, Had A
Limited History Of Profitable Operations And VTI, The Other Predecessor Company,
Had Been Experiencing Losses, And There Is No Guarantee 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.
ACC reported moderate losses in the second half of 1997 and 1998 and reported
only very small profits in 1999. While VTI reported moderate profits in 1997, it
reported substantial losses from continuing operations for 1998 and 1999. Wire
One reported a substantial loss from operations in 2000. We cannot assure you
that we will achieve revenue growth or profitability or generate positive cash
flow on a quarterly or annual basis in the future, or at all.
Our Growth Is Dependent In Part Upon The Acceptance of Glowpoint.
Although we have historically offered customers single-vendor sourcing for
all aspects of their video communications and technology requirements, our
Glowpoint service is new. We may encounter problems or delays in the rollout of
Glowpoint related to technology, personnel or other factors which we may not be
able to anticipate today. We have committed, and will continue to dedicate,
significant financial and other resources to the development and commercial
introduction of Glowpoint to the enterprise market. The failure of Glowpoint to
meet the video quality and reliability expectations of the enterprise market
could have a material adverse effect on our business, financial condition and
results of operations.
We Depend Upon Third Party Suppliers For Glowpoint.
We currently rely on Exodus Communications ("Exodus") to provide dedicated
capacity on its backbone network and data center to colocate our points of
presence ("POP"s) for Glowpoint. In addition, we have strategic relationships
with Covad Communications ("Covad") and other broadband access companies and
expect to enter into relationships with additional broadband access companies to
provide dedicated broadband access to the Glowpoint network. If our relationship
with Exodus, Covad or other broadband access providers were to deteriorate, we
might not be able to obtain similar relationships on commercially reasonable
terms, if at all. In addition, our suppliers, which may be better capitalized
than us, may choose to offer a solution in the marketplace that competes with
Glowpoint. We cannot assure you that, on an ongoing basis, we will be able to
maintain our relationships with Exodus, Covad or other broadband access
providers, or that we will be able to obtain comparable third-party
relationships cost-effectively and on the scale and within the time frames we
require, or at all. If we are unable to obtain additional relationships to
provide a high performance backbone or dedicated broadband access for Glowpoint
in a commercially reasonable manner or at all, our ability to offer Glowpoint
could be hindered, and this could have a material adverse effect on our
business, financial condition and results of operations.
In addition, we rely on other companies to supply key components for our
Glowpoint network. We could be adversely affected if these suppliers were to
experience delays or their equipment were to contain defects that we are unaware
of when first introduced. Although we pre-test equipment, we may not be able to
discover defects in equipment until after such equipment is deployed in our
Glowpoint network. These defects could result in damage to our Glowpoint network
as well as damage to our reputation, delays in or loss of market acceptance of
our products and unexpected expenses and diversion of resources to remedy
errors. We cannot assure you that, on an ongoing basis, we will be able to
obtain third-party products and
4
services on commercially reasonable terms and on the scale and within the time
frames we require, or at all. Failure to obtain or to continue to make use of
such third-party products and services could have a material adverse effect on
our business, financial condition and results of operations.
Our Business May Be Adversely Affected If We Lose Key Executive Officers Or Are
Unable to Attract And Retain Additional Highly Skilled Personnel.
Our future success depends in substantial part on the experience and
continued employment of our senior management. In particular, we rely upon
Richard Reiss, our chairman of the board, chief executive officer and president
and Leo Flotron, our chief operating officer, the loss of either of whose
services would have a material adverse effect on our business. We have entered
into employment agreements with Messrs. Reiss and Flotron that expire on
December 31, 2003.
We believe that our future success will also depend upon our ability to hire,
train and retain other highly-skilled personnel. We compete in a relatively new
market and there are a limited number of people who have acquired the skills to
provide the services that our clients demand. Competition for quality personnel
is intense. We cannot be sure that we will be successful in hiring, assimilating
or retaining the necessary personnel, and our failure to do so could adversely
affect our business and financial condition.
We Depend Upon Our National 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, while evolving to meet customer requirements
at a reasonable 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.
In addition, 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 which
make up the backbone of our network infrastructure, or at one or more of our
partners' data centers, could substantially impact our business. We cannot
assure you that we will not experience failures or 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, financial condition and
results of operations.
We May Be Unable To Implement Our Acquisition Growth Strategy, Which Could Harm
Our Business And Competitive Position In The Industry.
Our business strategy includes strategic acquisitions of other video
communications companies. Our continued growth will depend in part on our
ability to identify and acquire companies that complement or enhance our
business on acceptable terms. We may not be able to identify or complete future
acquisitions or realize the anticipated results of future acquisitions. Some of
the risks that we may encounter in implementing our recent acquisitions and in
continuing our acquisition growth strategy include:
o expenses and difficulties in identifying potential acquisition targets and
the costs associated with terminated or ongoing acquisition discussions;
o higher acquisition costs because of greater competition for attractive
acquisition targets;
o expenses, delays and difficulties integrating operations, personnel,
technologies, products and information systems of acquired businesses;
5
o potentially adverse effects on our reported results of operations from
acquisition-related charges and amortization of goodwill;
o potential loss of key employees of acquired businesses;
o potential dilution of current stockholders from the issuance of
additional equity securities;
o diversion of management's attention from other business concerns; and
o expenses of any undisclosed or potential legal liabilities of the
acquired company.
If realized, any of these risks could have a material adverse effect on our
business, results of operations and financial condition.
We May Need To Obtain Additional Financing And We Cannot Be Certain That
Additional Financing Will Be Available When Needed Or On Terms Favorable To Us
Or Our Stockholders.
Our future capital requirements will depend on many factors, including but
not limited to:
o market acceptance of Glowpoint;
o promotion and marketing expenditures required to maintain a competitive
position in the marketplace;
o investments in new technology and improvements of existing technology;
and
o the response of competitors to our introduction of Glowpoint and other
new products and services.
We believe that our existing cash balances and funds generated from
operations will provide us with sufficient funds to finance our operations for
approximately the next 12 months. To the extent that existing resources are
insufficient to fund our activities over the long-term, we may need to raise
additional funds through equity or debt financing or from other sources. The
sale of equity or convertible debt may result in dilution to our stockholders.
To the extent that we rely upon debt financing, we will incur the obligation to
repay the funds borrowed with interest and may become subject to covenants and
terms that restrict our operating flexibility. We cannot assure you additional
equity or debt financing will be available or that, if available, it will be on
terms favorable to us or our stockholders. Failure to obtain necessary financing
could have a material adverse effect on our business, financial condition or
results of operations.
We May Be Unable To Adequately Protect Our Intellectual Property Rights.
Our success depends on our ability to protect the intellectual property
imbedded into our proprietary network architecture. If we do not adequately
protect our intellectual property, our customers, network infrastructure
providers or competitors could use the intellectual property we have developed
to enhance their products and services to our detriment, and may develop and
offer competing solutions to the marketplace. We rely on a combination of trade
secret laws, confidentiality agreements and other contractual provisions to
protect our intellectual property rights, but these legal measures provide only
limited protection. Currently, we have no patents or patent applications
pending.
Third Parties May Claim That We Have Breached Their Intellectual Property
Rights, Which Could Result In Significant Additional Costs Or Prevent Us From
Providing All Of Our Services.
Third parties may bring claims of copyright or trademark infringement, patent
violation or misappropriation of creative ideas or formats against us with
respect to content that we distribute or our technology or marketing techniques
and terminology. Claims of this kind, even if without merit, could be
time-consuming to defend, result in costly litigation, divert management
attention, require us to enter into costly royalty or licensing arrangements or
prevent us from distributing certain content or utilizing important
technologies, ideas or formats.
6
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, our
revenues and operating results may also decrease. If our operating results 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 Are Subject To The Risks Associated With The Conduct Of Business In Foreign
Markets Including Increased Credit Risks, Trade Restrictions, Export Duties And
Tariffs And Fluctuations In Exchange Rates Of Foreign Currency, Any Of Which
Could Have A Material Adverse Effect On Our Operating Margins And Results Of
Operations.
In 2000, approximately 10% of our revenues were derived from sales in foreign
markets and we expect that a portion of our revenues will continue to be derived
from sales in foreign markets in the future. Accordingly, we will be subject to
all of the risks associated with foreign trade, which could have a material
adverse effect on our financial condition and results of operations. These risks
include:
o shipping delays;
o increased credit risks;
o trade restrictions;
o export duties and tariffs;
o fluctuations in the exchange rates of foreign currency; and
o international, political, regulatory and economic developments.
We intend to expand our sales and marketing activities in foreign markets by,
among other ways, seeking to establish relationships with foreign governmental
agencies that typically operate telecommunications networks. To the extent that
we are able to successfully expand sales of our products in foreign markets, we
will become increasingly subject to foreign political and economic factors
beyond our control, including governmentally imposed moratoriums on new business
development as a result of budgetary constraints or otherwise, which could have
a materially adverse effect on our business. We also anticipate that the
expansion of foreign operations will require us to devote significant resources
to system integration, training and service.
Risks Related to Our Industry
Our Success Is Highly Dependent On The Evolution Of Our Overall Market.
The market for video communication services is evolving rapidly. Our future
growth, if any, will depend on the continued trend of businesses to migrate to
IP (H.323) based standards. 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 video communications equipment or our new Glowpoint
service. 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 Compete In A Highly Competitive Market And Many Of Our Competitors Have
Greater Financial Resources And Established Relationships With Major Corporate
Customers.
We compete primarily with manufacturers and resellers of video communications
systems, some of which are larger, have longer operating histories, and have
greater financial resources and industry recognition than us. These competitors
include Avaya, FVC.com, PictureTel, Tandberg and VTEL Corporation. Our
competitors in the voice communications sector include Lucent, Northern Telecom,
Toshiba America, Inc., Siemens Corporation and NEC Corporation. We also compete
with other dealers of voice communication products. We also compete with
providers of video communications transport services, including AT&T
Corporation, MCI WorldCom, Qwest Communications, Sprint Corporation and several
other regional bell
7
operating companies and carriers. In the future, competition may increase from
new and existing resellers, from manufacturers that choose to sell direct to end
users and from existing and new telecommunications services providers, many of
which have greater financial resources than us.
With our recent introduction of Glowpoint, we now compete with a variety of
companies that offer broadcast, streaming and other video technologies and
services in addition to network service providers that may offer video services
in addition to voice, data or other applications over their networks, some of
which are larger, have longer operating histories, and have greater financial
resources and industry recognition than us. These companies include CUseeMe
Networks, Inc., Evoke Communications Inc. Genesys SA (Vialog Corporation),
RealNetworks, Inc. and WebEx Communications, Inc. We believe that, as the demand
for video communications systems continues to increase, additional competitors,
many of which have greater financial resources, more extensive customer bases
and greater name recognition than us, may enter the video communications market.
These competitors may be able to undertake more extensive promotional
activities, adopt more aggressive pricing policies and offer more attractive
terms to customers than we can. In addition, our suppliers, which may be better
capitalized than us, may choose to offer a solution in the marketplace that
competes with Glowpoint. If we fail to compete successfully against current or
future competitors, we could lose customers or fail to gain new customers, which
could have a material adverse effect on our business, financial condition and
results of operations.
Our Failure To Keep Pace With Rapid Change In The Video Communications Industry
Could Have A Material Adverse Effect On Our Business, Financial Condition or
Results Of Operations.
The video communications industry is characterized by rapid change and
frequent new product introductions. Our future success will depend in part on
our ability to anticipate and to respond to changes in industry standards and
advances in new technologies. We expect to update features and functions of
Glowpoint. However, there can be no assurance that we will be able to introduce
or integrate these new features and functions of our Glowpoint network in a
timely manner consistent with the market opportunity or that, once introduced,
these services will gain the market acceptance we expect. Delays in the
introduction of new features and functions for Glowpoint or other new
technologies could have a material adverse affect on our business, financial
condition and results of operations.
Government Regulation Of Video Communications May Impact Our Business By
Directly Or Indirectly Increasing Our Costs.
We offer video communications services, in part, through data transmission
over public telephone lines. These transmissions are governed by regulatory
policies establishing charges and terms for wireline communications. We
currently are not subject to direct regulation by the Federal Communications
Commission ("FCC") or any other governmental agency, other than regulations
applicable to businesses generally.
In the future, however, we could become subject to regulations by the FCC or
other regulatory agencies as a provider of basic telecommunications services.
Changes in the regulatory environment relating to the application of access
charges and other regulatory changes that directly or indirectly affect costs
imposed on telecommunications providers or increase the likelihood or scope of
competition, could harm our business, financial condition or results of
operations.
Risks Related to Our Stock
The Conversion Of The Series A Preferred Shares And The Exercise Of The Related
Warrants Could Result In Substantial Numbers Of Additional Shares Being Issued
If Our Market Price Declines.
The series A preferred shares convert into common stock at a fixed rate of
$7.00 per share. However, beginning on June 14, 2001, holders can choose an
alternative conversion price which equals the higher of (i) 70% of the fixed
conversion price then in effect or (ii) a price on any conversion date, equal to
the average of the closing sale prices of the common stock during the 20
consecutive trading days immediately preceding such conversion date. As a
result, the lower the price of our common stock at the time of conversion, the
greater the number of shares of such stock the holder will receive. To date, 345
shares of our
8
series A preferred stock have been converted into 345,000 shares of common
stock. Accordingly, beginning on June 14, 2001, assuming all outstanding shares
of series A preferred stock are converted at the lowest possible conversion
price of $4.90 per share, we would, upon conversion of the remaining 2,105
outstanding shares of series A preferred stock, be required to issue 902,145
shares of our common stock in addition to the 2,105,000 shares of such stock
that we would be required to issue in any event.
To the extent that either the series A preferred stock is converted or the
related warrants are exercised, a significant number of shares of common stock
may be sold into the market, which could decrease the price of our common stock
and encourage short sales by selling securityholders or others. Short sales
could place further downward pressure on the price of our common stock. In that
case, we could be required to issue an increasingly greater number of shares of
our common stock upon future conversions of the series A preferred shares, sales
of which could further depress the price of our common stock.
We May Issue Additional Shares And Dilute Your Ownership Percentage.
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:
o to raise additional capital or finance acquisitions,
o upon the exercise or conversion of outstanding options, warrants and
shares of convertible preferred stock, and/or
o in lieu of cash payment of dividends.
As of June 11, 2001, other than the 857,500 warrants issued to the holders of
series A preferred stock, there were outstanding warrants to acquire an
aggregate of 1,826,438 shares of common stock, and there were outstanding
options to acquire an aggregate of 6,874,405 shares of common stock. If
converted or exercised, these securities will dilute your percentage ownership
of common stock. 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. In addition, the number of
shares that may be issued upon conversion of or payment of dividends in lieu of
cash on the series A preferred shares could increase substantially if the market
price of our common stock decreases during the period the series A preferred
shares are outstanding.
Substantial Sales Of Our Common Stock Could Cause Our Stock Price To Fall.
If our stockholders sell substantial amounts of our common stock, including
shares issued upon the exercise of outstanding options and upon conversion of
and issuance of common stock dividends on the series A preferred shares and
exercise of the related 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. As of June 11, 2001, we had outstanding 18,274,205 shares of common
stock and options to acquire an aggregate of 6,874,405 shares of common stock,
of which 4,697,604 options were vested and exercisable. Of the shares
outstanding, as of June 11, 2001, 16,177,615 were freely tradable in the public
market and 2,096,590 were tradable in the public market subject to the
restrictions, if any, applicable under Rule 144 and Rule 145 of the Act. All
shares acquired upon exercise of options will be freely tradable in the public
market.
In general, under Rule 144 as currently in effect, a person who has
beneficially owned restricted securities for at least one year would be entitled
to sell within any three-month period a number of shares that does not exceed
the greater of (a) one percent of the number of shares of common stock then
outstanding (which for Wire One was 182,742 shares as of June 11, 2001) or (b)
the average weekly trading volume of the common stock during the four calendar
weeks preceding the sale. Sales under Rule 144 are also subject to requirements
with respect to manner of sale, notice, and the availability of current public
information about us. Under Rule 144(k), a person who is not deemed to have been
our affiliate at any time during the three months preceding a sale, and who has
beneficially owned the shares proposed to be sold for at least two
9
years, is entitled to sell such shares without complying with the manner of
sale, public information, volume limitation or notice provisions of Rule 144.
Your Percentage Of Ownership And Voting Power, And The Price Of Our Common Stock
May Decrease Because We Have Issued, And May Issue, A Substantial Number Of
Shares Of Common Stock, Or Securities Convertible Or Exercisable Into Our Common
Stock.
We have the authority to issue without stockholder approval up to 100,000,000
shares of our common stock, of which, as of June 11, 2001, 18,274,205 are
currently issued and outstanding and 5,000,000 shares of our preferred stock, of
which 2,450 shares have been designated series A preferred stock, and of which
2,105 shares of such series A preferred stock are currently issued and
outstanding. We may also issue options and warrants to purchase shares of our
common stock. These future issuances could be at values substantially below the
price paid for our common stock by current stockholders. We may conduct
additional future offerings of our common stock, preferred stock, or other
securities with rights to convert the securities into shares of our common
stock, which may result in a decrease in the value or market price of our common
stock. Further, the issuance of preferred stock could have the effect of
delaying, deferring or preventing a change of ownership without further vote or
action by the stockholders and may adversely affect the voting and other rights
of the holders of common stock.
Our Anti-Takeover Defense Provisions May Deter Potential Acquirers And May
Depress Our Stock Price.
Our 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 or control us. These
provisions provide for a classified board of directors and allow us to issue
preferred stock with rights senior to those of our common stock, and impose
various procedural and other requirements that could make it more difficult for
our stockholders to effect corporate actions.
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 will receive up to
approximately $14.4 million upon exercise of the outstanding warrants and
options that underlie those securities. See "Selling Stockholders" for a list
of those persons and entities receiving proceeds from sales of these shares. We
are registering these shares to satisfy various obligations we have to the
selling stockholders.
BUSINESS
Overview
Wire One was formed in May 2000 by the merger of ACC, a value-added
integrator of video, voice and network communications solutions since 1991, into
VTI, a provider of video, voice and data communications equipment and services
since 1992.
We are 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 and number two market share leaders, PictureTel and Polycom,
respectively, which together account for over 50% of the installed
videoconferencing endpoints in the United States. Our current customer base
includes over 2,500 companies with approximately 13,000 videoconferencing
endpoints. We also offer voice communications products manufactured by Lucent
and Panasonic, among others. In December 2000 we introduced our Glowpoint
network service, providing our customers with two-way video communications with
high quality of service. With the introduction of Glowpoint, we now offer our
customers a single point of contact for all their video communications
requirements. Furthermore, we believe Glowpoint is the first dedicated network
to provide two-way video communications by utilizing a dedicated IP backbone and
broadband access.
10
Industry Overview
In today's fast-paced business environment, many companies seek more
efficient and cost effective ways to communicate with an increasingly mobile and
widely distributed network of employees, customers, suppliers and partners.
Video communications technology enables two or more parties in different
locations to use audio and video to communicate simultaneously in real-time.
Moreover, video provides an effective means of communication that offers the
benefit of "face to face" interaction when participants are unable to meet in a
common location. The video communications market is a large and rapidly growing
market. According to Frost & Sullivan, the total video communications market in
the United States totaled $2.2 billion in 1999 and is expected to grow to $5.8
billion by 2005.
Historically, video communications principally involved point-to-point
communication from designated rooms equipped with large, expensive equipment.
Users tolerated cumbersome set-up procedures, which often required the
assistance of an administrator or a trained technician. Moreover, bandwidth
constraints and room availability often limited the functionality, usability and
reliability of these systems.
Video Communications Evolution
In recent years, video equipment manufacturers have built smaller devices and
units for use with personal computers and also adopted standards to help improve
compatibility and user acceptance. Many of the older room systems have been
replaced as most users migrated to Integrated Services Digital Network ("ISDN")
standards-based video communications systems. While superior to earlier
technologies, ISDN still has several shortcomings, including high transmission
costs and poor quality of service ("QoS") due primarily to the fact that ISDN is
fundamentally a narrowband technology. We believe that this low quality and high
cost of video communications using ISDN has impeded the growth of the video
communications market. More recently, the development of IP has promised new
standards for broadband communications, and the industry has thus adopted IP
standards-based technologies that provide guaranteed QoS and lower transmission
costs than ISDN. The ability to perform video communications over IP is expected
to increase user adoption and to help make two-way video communications
widespread in the enterprise and, ultimately, the consumer markets. Frost &
Sullivan expects that video communications using IP- based technology will
surpass usage of legacy ISDN technology and represent a larger portion of the
video communications market by 2003.
IP Market Opportunity
IP-Based Video Communications
While many business users have private networks that could theoretically
support IP video communications, most are reluctant to run a video
communications application over networks that support enterprise data and other
mission-critical applications. When using video communications applications over
a non-dedicated network, the video and audio transmissions must share bandwidth
with other applications on the network. Allocating enough bandwidth in a
corporate local area network ("LAN") or intranet to handle both real-time
transmission of sounds and images as well as e-mail and file transfer
applications is difficult and can create congestion that impedes network
performance. In addition, most businesses already find it difficult to
effectively maintain and manage existing applications due to the shortage of
information technology and network personnel. As a result, businesses
increasingly require a dedicated network solution that enables them to manage
video communications distinct from their other applications and existing
communications infrastructure.
An effective video network must also be easily scalable in much the same way
that a company can simply add more phone lines as its employee base and
operations grow. Moreover, widespread adoption by both enterprise and consumer
users requires a video communications solution that provides the same
reliability as public telephone service. We believe there exists a significant
opportunity to provide an IP-based video communications solution that is
scalable, dependable and will ultimately be as commonplace as voice telephony.
11
Products And Services
We are a single source provider of video products and services that assist
customers with systems procurement and integration, maintenance and operation of
their video communications systems and requirements. We offer our customers
video communications products from leading manufacturers such as Accord
Telecommunications, Inc. ("Accord"), PictureTel, Polycom, RADVision, SONY
Electronics, Inc. ("SONY") and VCON Telecommunications, Ltd. ("VCON") and
provide a comprehensive suite of video and data services including integration,
bridging, on-site technical assistance, customized training, engineering and
maintenance. We also offer voice communications products for major manufacturers
in this industry. With the introduction of Glowpoint, we believe we offer the
first subscriber service designed exclusively for video communications over IP.
Glowpoint
Our Glowpoint network provides customers with a high-quality platform for
video communications over IP and related applications. The Glowpoint service
offers subscribers substantially reduced transmission costs and superior video
communications quality, remote management of all videoconferencing endpoints
utilizing simple network management protocol ("SNMP"), gateway services to ISDN
standards-based video communications equipment, video streaming and
store-and-forward applications from our network operations center ("NOC").
To provide our Glowpoint service, we have contracted with Exodus for access
to its IP backbone network and co-location facilities. We have contracted with
Covad Communications and others, and plan to contract with additional broadband
access providers, for dedicated broadband access to the Glowpoint network using
either digital subscriber lines ("DSL"), or dedicated 1.5 Mbps ("T1") or 45 Mbps
("T3") lines. Leading IP video communications and video networking equipment
suppliers, including Cisco Systems, PictureTel, Polycom, RADVision and VCON,
have already announced that their products will be compatible with Glowpoint.
Video Communications And Data Products
We market and sell a full range of video, audio and data products and systems
on a world-wide basis from Accord, PictureTel, Polycom, SONY and VCON. We also
distribute data products from companies such as Adtran, Lucent, Madge Networks
and RADVision to provide our customers with remote access into LANs, permitting
them to acquire bandwidth on demand and to digitally transmit data. We configure
single or multi-vendor video and data conferencing platforms for our clients and
integrate systems and components into a complete solution designed to suit each
customer's particular communications requirements.
Video Communications Services
We offer our customers the convenience of single vendor sourcing for
virtually all aspects of their video communications requirements. In addition,
we provide consulting services that include an assessment of customer needs and
existing communications equipment.
After designing a customer's video communications solution, we deliver,
install and test the communications equipment. When the system is functional, we
provide training to all levels of our customer's organization, including
executives, managers, management information systems and data-processing
administrators, technical staff and end users. Training includes instruction in
system operation as well as the planning and administration of meetings. By
means of thorough training, we help to ensure that our customers understand the
functionality of the systems and are able to apply the technology effectively.
Our One Care service covers a customer's entire video communications system
deployment for an annual fee. One Care encompasses installation and maintenance
service products that provide comprehensive customer support after the sale and
help ensure that our customers experience reliable, effortless video
communications. Our installation service places minimal demands on a customers'
time and resources. Our maintenance service provides technical support
representatives and engineers, a 24x7 help desk, nationwide
12
on-site diagnostic repair and replacement service, nationwide network trouble
coordination and a 24-hour video test facility.
We also provide advanced telecommunications consulting and engineering
services through our ProServices department. Our engineers have in-depth
experience with networks (T1/ISDN to IP/ATM ), microprocessors, software
development and IT management, as well as the design, deployment and repair of
video telecommunications products and technology. Our engineers use this
experience to provide expert advice and assistance in evaluating and deploying
the appropriate visual communications technology to meet a customer's project
goals and objectives. These services include application consulting and network
design, laboratory testing, product application and industry research, and
technology trial assistance.
We also sell multi-point video and audio bridging services through a program
called Multiview Network Services. We employ state-of-the-art conferencing
servers that provide seamless connectivity for all switched digital networks at
an affordable rate. Because of the significant expense associated with procuring
multipoint conferencing equipment, our customers typically elect to use our
Multiview Network when bridging is required.
Voice Communications Products
We offer our customers Lucent and Panasonic digital key and hybrid telephone
systems, PBX telephone systems, voice processing systems and CTI solutions.
Lucent and Panasonic manufacture digital key and hybrid telephone systems which
contain multi-featured fully electronic digital telephones, common control
units, central processing units and associated common equipment to provide
service in the approximately 2,000 line-and under-marketplace. We distribute
Lucent-manufactured PBX (private branch exchange) systems, which have a capacity
expandable up to 25,000 ports. We also distribute a Panasonic-manufactured PBX
system with a maximum capacity of nearly 600 ports. A key telephone system
provides each telephone with direct access to multiple outside trunk lines and
internal communications through intercom lines. A PBX system, through a central
switching system, permits the connection of internal and external lines. A
hybrid switching system provides, in a single system, both key telephone and PBX
features. Key telephone equipment may be used with PBX equipment.
We are involved in the sale, installation and servicing of Panasonic products
throughout the United States both through our own employees and through
subcontractors. We sell Lucent products through our direct sales force. The
installation and servicing of the Lucent products are provided by our employees
and through subcontracting arrangements with Lucent directly and with other
Lucent dealers.
Sales And Marketing
We market and sell our video, data and voice products and services to the
commercial, government, medical and educational markets through a direct sales
force of account executives, telemarketers and through resellers. These efforts
are supported by sales engineers, a marketing department, a call center and a
professional services and engineering group. As of June 12, 2001, we had 103
additional sales and marketing personnel.
Our marketing department concentrates on activities that will generate leads
for our sales force and create brand awareness for Wire One and the Glowpoint
network including direct marketing campaigns, select advertising, a call center,
public relations, participation in trade shows and the coordination of seminars
throughout the country. We host these seminars to demonstrate video
communications systems to prospective customers and to educate them on
technological advancements in video and data communications. We also provide our
sales force with ongoing training to ensure that it has the necessary expertise
to effectively market and promote our business and solutions.
In conjunction with manufacturer-sponsored programs, we provide existing and
prospective customers with sales, advertising and promotional materials. We
maintain up-to-date systems for demonstration purposes in all of our offices.
Our technical and training personnel periodically attend installation and
service training sessions offered by video communications manufacturers to
enhance their knowledge and expertise in the installation and maintenance of the
systems.
13
Customers
We have sold our products and services to over 2,500 customers who
collectively have approximately 13,000 videoconferencing endpoints.
Select customers in each of our market segments who have purchased in excess
of $50,000 of our products and services in the year ended December 31, 2000
include:
Commercial Medical Educational Governments and Agencies
- - -------------------------------- ------------------------- --------------------- -------------------------------
American Re-Insurance Co. Aventis Pharmaceutical Howard University Commonwealth of Virginia
Arthur Andersen Bear River Health Dept. Indiana University State of New Mexico
AT&T Corporation Bracco Diagnostics U. of California State of Louisiana
Bayerische Landesbank Bristol-Myers Squibb Co. University of Houston Texas Dept. of Criminal Justice
Boston Scientific Corporation Centura Health University of Judaism U.S. Dept. of Corrections
Cisco Systems Deaconess Billings Clinic University of Texas U.S. Secret Service
MCI WorldCom Partners Healthcare United Nations
New York Times Pfizer Virginia Dept. of Mental Health
Seibel Systems Schering Plough
Telecordia Technologies St. Jude Childrens'
Visa International Research
Technology
The Glowpoint Network
Glowpoint employs a proprietary network architecture consisting of state of
the art equipment co-located at Exodus data centers across the country, each one
constituting a Glowpoint POP, and dedicated capacity on Exodus' high
performance, redundant backbone. This backbone network connects all of
Glowpoint's POPs, using multiple high-speed OC-3 and OC-12 lines which virtually
eliminate the risk of a single point of failure. Our POPs consist of the best
available technology from multiple vendors combined in a unique proprietary
architecture and co-located in a secure and monitored environment at Exodus.
This configuration of equipment at the POPs and their distributed locations
across the country are expected to provide industry-leading throughput,
scalability and mission-critical resiliency. Currently, we have ten POPs
strategically located throughout the country. We have contracted with Covad and
others, and plan to contract with additional broadband access providers, for
dedicated broadband access to the Glowpoint network using either DSL, T1 or T3.
Network Equipment
Our network consists of the best available technology from multiple vendors
combined in a unique proprietary architecture. This configuration of specialized
equipment and technology is purchased from industry leading vendors. All
equipment on the network complies with current H.323 (IP) standards.
Network Operations Center
We maintain a state-of-the-art NOC at our headquarters from which we monitor
the operations of Glowpoint on a 24x7 basis. The NOC's primary functions are to
monitor the network, manage and support all backbone equipment, provide usage
information for billing, provide utilization data for capacity planning and
provide value-added customer services. No actual video communications traffic
will pass through the NOC, only usage information and authentication packets.
Technology in the NOC includes gatekeepers, routers and switches, servers,
firewalls and load balancing devices. The NOC uses redundant circuits to connect
directly to our backbone. In the future, we plan to add another NOC.
Research And Development
As of June 12, 2001, we employed a staff of 15 software and hardware
engineers who evaluate, test and develop proprietary applications. The costs of
this team of engineers in the quarter ended March 31, 2001 totaled approximately
$300,000. To augment these resources, we employ independent consultants. We
14
expect that we will continue to commit resources to research and development
in the future to further develop our proprietary network solutions.
Employees
As of June 12, 2001, we had 295 full-time employees. Of these employees,
103 are in sales and marketing, 160 in installation services, technical services
and customer support and 32 in finance and administration. None of our employees
is represented by a labor union. We believe that our employee relations are
good.
Competition
We compete primarily with manufacturers and resellers of video communications
systems, some of which are larger, have longer operating histories and have
greater financial resources and industry recognition than us. These competitors
include Avaya, FVC.com, PictureTel, Tandberg and VTEL Corporation. Our
competitors in the voice communications sector include Lucent, Northern Telecom,
Toshiba America, Inc., Siemens Corporation and NEC Corporation. We also compete
with other dealers of voice communication products.
We also compete with providers of video communications transport services,
including AT&T Corporation, MCI WorldCom, Qwest Communications, Sprint
Corporation and several other regional bell operating companies and carriers. In
the future, competition may increase from new and existing resellers, from
manufacturers that choose to sell direct to end users and from existing and new
telecommunications services providers, which may include certain of our
suppliers or network providers, many of which have greater financial resources
than us.
With the introduction of Glowpoint, we now compete with a variety of
companies that offer broadcast, streaming and other video technologies and
services in addition to network service providers that may offer video services
in addition to voice, data or other applications over their networks. These
companies include CUseeMe Networks, Inc., Evoke Communications Inc., Genesys SA
(Vialog Corporation), RealNetworks, Inc. and WebEx Communications, Inc.
We compete primarily on the basis of our:
o primary focus on the video communications industry;
o breadth of video product and service offering;
o relationships with video equipment manufacturers;
o nationwide presence;
o technical expertise;
o knowledgeable sales, service and training personnel; and
o commitment to customer service and support.
We believe that our ability to compete successfully will depend on a number
of factors both within and outside our control, including the adoption and
evolution of technologies relating to our business, the pricing policies of our
competitors and suppliers, our ability to hire and retain key technical and
management personnel and industry and general economic factors.
15
SELLING STOCKHOLDERS
The following table sets forth the names of the selling stockholders, the
number of shares of common stock owned beneficially by each of them as of June
11, 2001, calculated in the manner described below, the number of shares which
may be offered pursuant to this prospectus and 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." We will not receive any proceeds from the
sale of the common stock 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. This information is based upon
information provided by the selling stockholders. 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.
The number of shares set forth in the second column of the table represents
an estimate, as of June 11, 2001, of the number of shares of common stock to be
offered by the selling stockholders. The information set forth in the table
assumes conversion of the series A preferred stock and exercise of the related
warrants as of June 11, 2001, and assumes a conversion price of $4.90.
The actual number of shares of common stock issuable upon conversion of the
series A preferred stock and exercise of the warrants is indeterminate, is
subject to adjustment and could be materially less or more than such estimated
number depending on factors which cannot be predicted by us at this time,
including, among other factors, the future market price of the common stock.
Pursuant to its terms, the series A preferred stock and the related warrants
are convertible or exercisable by the series A holder only to the extent that
the number of shares of common stock thereby issuable, together with the number
of shares of common stock owned by the series A holder and its affiliates (but
not including shares of common stock underlying unconverted or unexercised
options, warrants or convertible securities), would not exceed 4.99% of the then
outstanding common stock as determined in accordance with Section 13(d) of the
Securities Exchange Act of 1934. Accordingly, the number of shares of common
stock set forth in the table as beneficially owned by the series A holder before
and after the offering may exceed the number of shares of common stock that it
could own beneficially at any given time as a result of its ownership of the
series A preferred stock and the related warrants.
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
that can be acquired within 60 days from the date of this prospectus through the
exercise of any option, warrant or right. Shares of common stock subject to
options, warrants or 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 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 18,274,205 shares of common stock outstanding as of
June 11, 2001.
16
Percentage of
Common Shares Common Shares Common Shares
Beneficially Common Shares Beneficially Beneficially
Name of Selling Stockholder Owned Prior Offered By Owned Owned After
--------------------------- to Offering This Prospectus After Offering Offering
------------- --------------- -------------- -------------
Adrien Mauerman Testamentary Trust 8/6/82(1) ................. 337,929 337,929 -- *
Matthew Balk(2) .............................................. 210,091 210,091 -- *
Steve Barrett(3) ............................................. 151,097 151,097 -- *
Baystar Capital, L.P.(4) ..................................... 444,643 444,643 -- *
Baystar International, Ltd.(5) ............................... 190,307 190,307 -- *
Spence Beal(6) ............................................... 6,750 6,750 -- *
Ivan Berkowitz(7) ............................................ 88,929 88,929 -- *
Carnes Investment L.P.(8) .................................... 81,000 81,000 -- *
Castle Creek Technology Partners LLC(9) ...................... 498,000 498,000 -- *
David Wilstein and Susan Wilstein, trustees of Century
Trust(10)................................................... 17,786 17,786 -- *
Cranshire Capital, L.P.(11) .................................. 193,050 193,050 -- *
Eric Elliot(12) .............................................. 17,786 17,786 -- *
GlobalEuroNet Group, Inc.(13) ................................ 71,143 71,143 -- *
Chris Healy(14) .............................................. 27,000 27,000 -- *
Richard and Ricki Hoffman JTWROS(15) ......................... 17,786 17,786 -- *
Michael Kooper(16) ........................................... 13,500 13,500 -- *
Norman Spivock Trust 1993(17) ................................ 35,571 35,571 -- *
Peconic Fund Ltd.(18) ........................................ 1,271,679 1,271,679 -- *
Polycom, Inc.(19) ............................................ 254,336 254,336 -- *
Robert B. Prag(20) ........................................... 53,357 53,357 -- *
R&G Partners(21) ............................................. 53,357 53,357 -- *
Reinhard Stadler Revocable Trust(22) ......................... 6,750 6,750 -- *
Gene Salkind(23) ............................................. 252,857 252,857 -- *
Leopold Salkind(24) .......................................... 252,857 252,857 -- *
Eric Singer(25) .............................................. 145,061 145,061 -- *
The dotCOM Fund LLC(26) ...................................... 97,200 97,200 -- *
Scott Weisman(27) ............................................ 194,128 194,128 -- *
William J. Nightengale(28) ................................... 3,999 3,999 -- *
Stephen J. Hopkins(29) ....................................... 44,828 44,828 -- *
Michael R. D'Appolonia(30) ................................... 27,574 27,574 -- *
Kevin I. Dowd(31) ............................................ 23,635 23,635 -- *
S. Douglas Hopkins(32) ....................................... 56,764 56,764 -- *
Howard S. Hoffman(33) ........................................ 22,060 22,060 -- *
Dennis J. Duckett(34) ........................................ 34,140 34,140 -- *
David Millet(35) ............................................. 164,079 37,500 126,579 *
Paul C. O'Brien(36) .......................................... 668,791 37,500 631,291 3.5
Franklin A. Reece, III(37) ................................... 369,915 18,750 351,165 1.9
Ali Inanilan(38) ............................................. 143,500 37,500 106,000 *
Colin Cunningham(39) ......................................... 37,500 37,500 -- *
Sam Schwartz(40) ............................................. 150,000 150,000 -- *
Jack Gilbert(41) ............................................. 37,500 37,500 -- *
Traver Clinton Smith, Jr.(42) ................................ 117,022 18,750 98,272 *
Dean Hiltzik(43) ............................................. 99,885 82,500 17,385 *
Rick Eisenberg(44) ........................................... 214,500 214,500 -- *
James Caplan(45) ............................................. 313,500 313,500 -- *
Eisenberg Communications(46) ................................. 82,500 82,500 -- *
Buttonwood Advisory Group(47) ................................ 123,750 123,750 -- *
Jason Adelman(48) ............................................ 224,811 224,811 -- *
H.C. Wainwright & Co., Inc.(49) .............................. 133,311 133,311 -- *
Silver City Communications, Inc. (50) ........................ 33,000 33,000 --
- - ---------------
* Less than 1%
(footnotes continued on next page)
17
(1) Includes 271,429 shares of common stock issuable upon conversion of the
series A preferred stock and up to 66,500 shares of common stock issuable
upon exercise of the warrants issued in connection therewith.
(2) Includes up to 8,750 shares of common stock issuable upon exercise of the
warrants issued in connection therewith. Also includes 11,375 shares of
common stock and warrants to purchase 121,936 shares of common stock
owned by H.C. Wainwright & Co., Inc., of which Mr. Balk is a managing
director and 35,468 shares subject to presently exercisable warrants
owned by Mr. Balk.
(3) Includes 14,286 shares of common stock issuable upon conversion of the
series A preferred stock and up to 3,500 shares of common stock issuable
upon exercise of the warrants issued in connection therewith. Also
includes 11,375 shares of common stock and warrants to purchase 121,936
shares of common stock owned by H.C. Wainwright & Co., Inc. of which Mr.
Barrett is chief executive officer.
(4) Includes 357,143 shares of common stock issuable upon conversion of the
series A preferred stock and up to 87,500 shares of common stock issuable
upon exercise of the warrants issued in connection therewith.
(5) Includes 152,857 shares of common stock issuable upon conversion of the
series A preferred stock and up to 37,450 shares of common stock issuable
upon exercise of the warrants issued in connection therewith.
(6) Includes up to 1,750 shares of common stock issuable upon exercise of the
warrants issued in connection therewith.
(7) Includes 71,429 shares of common stock issuable upon conversion of the
series A preferred stock and up to 17,500 shares of common stock issuable
upon exercise of the warrants issued in connection therewith.
(8) Includes up to 21,000 shares of common stock issuable upon exercise of the
warrants issued in connection therewith.
(9) Includes 400,000 shares of common stock issuable upon conversion of the
series A preferred stock and up to 98,000 shares of common stock issuable
upon exercise of the warrants issued in connection therewith.
(10) Includes 14,286 shares of common stock issuable upon conversion of the
series A preferred stock and up to 3,500 shares of common stock issuable
upon exercise of the warrants issued in connection therewith.
(11) Includes up to 50,050 shares of common stock issuable upon exercise of the
warrants issued in connection therewith.
(12) Includes 14,286 shares of common stock issuable upon conversion of the
series A preferred stock and up to 3,500 shares of common stock issuable
upon exercise of the warrants issued in connection therewith.
(13) Includes 57,143 shares of common stock issuable upon conversion of the
series A preferred stock and up to 14,000 shares of common stock issuable
upon exercise of the warrants issued in connection therewith.
(14) Includes up to 7,000 shares of common stock issuable upon exercise of the
warrants issued in connection therewith.
(15) Includes 14,286 shares of common stock issuable upon conversion of the
series A preferred stock and up to 3,500 shares of common stock issuable
upon exercise of the warrants issued in connection therewith.
(16) Includes up to 3,500 shares of common stock issuable upon exercise of the
warrants issued in connection therewith.
(17) Includes 28,571 shares of common stock issuable upon conversion of the
series A preferred stock and up to 7,000 shares of common stock issuable
upon exercise of the warrants issued in connection therewith.
(18) Includes 1,021,429 shares of common stock issuable upon conversion of the
series A preferred stock and up to 250,250 shares of common stock issuable
upon exercise of the warrants issued in connection therewith.
(19) Includes 204,286 shares of common stock issuable upon conversion of the
series A preferred stock and up to 50,050 shares of common stock issuable
upon exercise of the warrants issued in connection therewith.
(20) Includes 42,857 shares of common stock issuable upon conversion of the
series A preferred stock and up to 10,500 shares of common stock issuable
upon exercise of the warrants issued in connection therewith.
(21) Includes 42,857 shares of common stock issuable upon conversion of the
series A preferred stock and up to 10,500 shares of common stock issuable
upon exercise of the warrants issued in connection therewith.
(footnotes continued on next page)
18
(22) Includes up to 1,750 shares of common stock issuable upon exercise of the
warrants issued in connection therewith.
(23) Includes 142,857 shares of common stock issuable upon conversion of the
series A preferred stock and up to 35,000 shares of common stock issuable
upon exercise of the warrants issued in connection therewith. Also includes
warrants to purchase 25,000 shares of common stock.
(24) Includes 142,857 shares of common stock issuable upon conversion of the
series A preferred stock and up to 35,000 shares of common stock issuable
upon exercise of the warrants issued in connection therewith. Also includes
warrants to purchase 25,000 shares of common stock.
(25) Includes up to 1,750 shares of common stock issuable upon exercise of the
warrants issued in connection therewith. Also includes 11,375 shares of
common stock and warrants to purchase 121,936 shares of common stock
owned by H.C. Wainwright & Co., Inc., of which Mr. Singer is a managing
director and 5,000 shares subject to presently exercisable warrants owned
by Mr. Singer.
(26) Includes up to 25,200 shares of common stock issuable upon exercise of the
warrants issued in connection therewith.
(27) Includes 14,286 shares of common stock issuable upon conversion of the
series A preferred stock and up to 3,500 shares of common stock issuable
upon exercise of the warrants issued in connection therewith. Also
includes 11,375 shares of common stock and warrants to purchase 121,936
shares of common stock owned by H.C. Wainwright & Co., Inc., of which Mr.
Weisman is a managing director and 35,469 shares subject to presently
exercisable warrants owned by Mr. Weisman.
(28) Includes 2,194 shares issuable upon exercise of options.
(29) Includes 18,136 shares issuable upon exercise of options and warrants to
purchase 3,924 shares of common stock.
(30) Includes 14,106 shares issuable upon exercise of options and warrants to
purchase 621 shares of common stock.
(31) Includes 12,091 shares issuable upon exercise of options and warrants to
purchase 533 shares of common stock.
(32) Includes 25,909 shares issuable upon exercise of options and warrants to
purchase 3,622 shares of common stock.
(33) Includes 11,284 shares issuable upon exercise of options and warrants to
purchase 498 shares of common stock.
(34) Includes 13,780 shares issuable upon exercise of options and warrants to
purchase 3,302 shares of common stock.
(35) Former director of VTI until May 18, 2000. Includes 8,000 shares upon
exercise of options and warrants to purchase 12,500 shares of common stock.
(36) Former chairman of VTI's board of directors until May 18, 2000. Includes
341,500 shares of common stock and warrants to purchase 162,500 shares of
common stock currently owned by Telecom Holding, LLC of which Mr. O'Brien
is a managing member, warrants to purchase 53,125 shares of common stock
owned by Mr. O'Brien individually and 8,000 shares issuable upon the
exercise of options.
(37) Former president of VTI until October 8, 1999 and former director of VTI
through May 18, 2000. Includes 103,301 shares issuable upon exercise of
options and warrants to purchase 6,250 shares of common stock.
(38) Former chief financial officer of VTI until June 1999. Includes warrants to
purchase 12,500 shares of common stock.
(39) Includes warrants to purchase 12,500 shares of common stock.
(40) Includes warrants to purchase 50,000 shares of common stock.
(41) Includes warrants to purchase 12,500 shares of common stock.
(42) Includes warrants to purchase 6,250 shares of common stock.
(43) Director of Wire One since May 18, 2000. Wire One also receives financial
and tax advice from an accounting firm in which Mr. Hiltzik is a partner.
Includes 91,575 shares subject to presently exercisable stock options.
(44) Includes 82,500 shares subject to presently exercisable options held by
Eisenberg Communications, of which Mr. Eisenberg is a principal. Eisenberg
Communications is Wire One's public relations firm.
(footnotes continued on next page)
19
(45) Includes 82,500 shares subject to presently exercisable options held by
Eisenberg Communications, of which Mr. Caplan is a principal. Eisenberg
Communications is Wire One's public relations firm.
(46) Includes 82,500 shares subject to presently exercisable stock options.
Eisenberg Communications is Wire One's public relations firm.
(47) Includes 123,750 shares subject to presently exercisable stock options.
(48) Includes 75,500 shares subject to presently exercisable warrants. Also
includes 11,375 shares of common stock and warrants to purchase 121,936
shares of common stock owned by H.C. Wainwright & Co., Inc., of which Mr.
Adelman is a vice president.
(49) Includes warrants to purchase 121,936 shares of common stock.
(50) Includes 33,000 shares subject to presently exercisable options.
20
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;
(b) purchases by a broker or dealer as principal and resale by such broker
or dealer for its account pursuant to this prospectus;
(c) an exchange distribution in accordance with the rules of such
exchange;
(d) ordinary brokerage transactions and transactions in which the broker
solicits purchases;
(e) privately negotiated transactions;
(f) short sales;
(g) through the writing of options on the shares;
(h) one or more underwritten offerings on a firm commitment or best
efforts basis; and
(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. The number of a selling stockholder's shares offered under
this prospectus will decrease as and when it takes such actions. The plan of
distribution for such selling stockholder's shares will otherwise remain
unchanged. 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).
21
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 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, and the rules and regulations thereunder, which
provisions may limit the timing of purchases and sales of any of the shares of
the selling stockholders or any other such person. The foregoing may affect the
marketability of the shares.
We have agreed to indemnify in certain circumstances the selling stockholders
and the broker-dealers and agents who may be deemed to be underwriters, if any,
of the securities covered by the registration statement, 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.
The shares of common stock offered hereby were originally issued to the
selling stockholders pursuant to an exemption from the registration requirements
of the Securities Act of 1933. We agreed to register the common stock under the
Securities Act of 1933. We have agreed to pay all reasonable legal expenses of
the series A holder incident to the filing of this registration statement, other
than underwriting discounts and commissions, and incurred in the purchase of the
series A preferred stock and related warrants.
We cannot assure you that the selling stockholders will sell all or any
portion of the common stock offered hereby.
We will pay all expenses in connection with this offering and will not
receive any proceeds from sales of any common stock by the selling stockholders.
EXPERTS
The audited consolidated financial statements of Wire One incorporated by
reference in this prospectus to Wire One's annual report on Form 10-K for the
year ended December 31, 2000 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
have been 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
22
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
Commission's regional offices located at Citicorp Center, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661-2511 and 7 World Trade Center, Suite
1300, New York, New York 10048. 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 Commission's public
reference rooms and the Commission's website referred to above.
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:
1. Our Annual Report on Form 10-K for the fiscal year ended December 31,
2000;
2. Our Definitive Proxy Statement for the 2001 Annual Meeting of
Stockholders, as supplemented;
3. Our Quarterly Report on Form 10-Q for the fiscal quarter ended March
31, 2001; and
4. The description of our common stock contained in our Registration
Statement on Form S-1 filed July 28, 2000, as amended.
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: Kate McCrary Shuster
Telephone: (973) 282-2000
23
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............. $ 1,431.03
Accounting fees and expenses..... 10,000.00
Legal fees and expenses.......... 25,000.00
Printing costs................... 6,000.00
Miscellaneous.................... 2,568.97
----------
Total ......................... $45,000.00
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 director's fiduciary duty, except
(1) for any breach of the director's 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
attorney's 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
corporation's 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. Our
amended and restated Certificate of Incorporation filed as Exhibit 3.1 to this
Amendment provides indemnification of our directors and officers to the fullest
extent permitted by the DGCL.
II-1
Item 16. Exhibits
Exhibit
Number Description
- - ------ -----------
3.1 Amended and Restated Certificate of Incorporation.(1)
3.2 Certificate of Amendment of View Tech, Inc. changing its name to Wire One Technologies, Inc. (6)
3.3 Certificate of Designations, Preferences and Rights of series A preferred stock of Wire One Technologies, Inc.(2)
3.4 Amended and Restated Bylaws.(1)
4.1 Specimen Common Stock Certificate.(6)
4.2 Warrant Agreement dated as of June 28, 1995 between View Tech, Inc. and U.S. Stock Transfer Corporation.(3)
4.3 Form of Warrant between View Tech, Inc. and Telecom Holding, LLC.(4)
4.4 Form of Warrant of Wire One Technologies, Inc. dated June 14, 2000.(2)
4.5 Registration Rights Agreement dated as of June 14, 2000 among Wire One Technologies, Inc. and the Investors set forth
therein.(2)
4.6 Form of View Tech, Inc. Warrant dated April 24, 2000.(6)
4.7 Amendment No. 1, Exhibit A, dated as of October 14, 1998, to the Common Stock Purchase Warrant, dated as of November 21,
1997, for the purchase of common stock of View Tech, Inc., a Delaware corporation, by Imperial Bank.(5)
4.8 Amendment No. 1, Exhibit B, dated as of October 14, 1998, to the Common Stock Purchase Warrant, dated as of November 21,
1997, for the purchase of common stock of View Tech, Inc., a Delaware corporation, by BankBoston, N.A.(5)
4.9 Wire One Technologies, Inc. 2000 Stock Incentive Plan.(7)
5.1 Opinion of Morrison & Foerster LLP as to the legality of Common Stock of Wire One Technologies, Inc., together with
consent. (8)
23.1 Consent of BDO Seidman, LLP.(8)
23.2 Consent of Morrison & Foerster LLP. (included in their opinion filed as Exhibit 5.1)
24.1 Power of Attorney. (8)
- - ---------------
(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.
(2) Filed as an exhibit to the Company's Current Report on Form 8-K dated June
14, 2000, and incorporated herein by reference.
(3) Filed as an exhibit to View Tech, Inc.'s Annual Report on Form 10-KSB for
the fiscal year ended June 30, 1995, and incorporated herein by reference.
(4) Filed as an exhibit to View Tech, Inc.'s Registration Statement on Form
SB-2 (Registration No. 333-19597), and incorporated herein by reference.
(5) Filed as an exhibit to View Tech, Inc.'s Quarterly Report on Form 10-Q for
the fiscal quarter ended September 30, 1998, and incorporated herein by
reference.
(6) 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.
(7) Filed as an exhibit to Wire One Technologies, Inc.'s Quarterly Report on
Form 10-Q for the fiscal quarter ended September 30, 2000, and incorporated
herein by reference.
(8) Filed herewith.
Item 17. Undertakings
The undersigned Registrant hereby undertakes the following:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
II-2
(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 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
(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.
(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.
(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) 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
registrant's 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
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
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.
II-3
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 Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York, on June 14, 2001.
WIRE ONE TECHNOLOGIES, INC.
By: /s/ Richard Reiss
------------------------------------------
Richard Reiss
Chairman, President and Chief
Executive Officer
POWER OF ATTORNEY
The undersigned hereby constitutes and appoints Richard Reiss and Jonathan
Birkhahn, and each of them, as his true and lawful attorneys-in-fact and agents,
jointly and severally, with full power of substitution and resubstitution, for
and in his stead, in any and all capacities, to sign on his behalf this
Registration Statement on Form S-3 in connection with the offering of common
stock by the registrant and to execute any amendments thereto (including
post-effective amendments), including a registration statement filed pursuant to
Rule 462(b), or certificates that may be required in connection with this
Registration Statement, and to file the same, with all exhibits thereto, and all
other documents in connection therewith, with the Securities and Exchange
Commission and granting unto said attorneys-in-fact and agents, and each of
them, jointly and severally, the full power and authority to do and perform each
and every act and thing necessary or advisable 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, jointly or severally, or their or
his substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities indicated
on June 14, 2001.
Signature Title
- - --------- -----
/s/ Richard Reiss
- - -----------------------------
Richard Reiss Chairman, President and Chief Executive Officer
(Principal Executive Officer)
/s/ Christopher Zigmont
- - -----------------------------
Christopher Zigmont Chief Financial Officer
(Principal Financial and Accounting Officer)
/s/ Leo Flotron
- - -----------------------------
Leo Flotron Chief Operating Officer and Director
/s/ Jonathan Birkhahn
- - -----------------------------
Jonathan Birkhahn Executive Vice President Business Affairs,
General Counsel, Secretary and Director
/s/ Louis Capolino
- - -----------------------------
Louis Capolino Director
/s/ Eric Friedman
- - -----------------------------
Eric Friedman Director
/s/ Dean Hiltzik
- - -----------------------------
Dean Hiltzik Director
/s/ Peter N. Maluso
- - -----------------------------
Peter N. Maluso Director
S-1