As filed with the Securities and Exchange Commission on December 4, 2001
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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WIRE ONE TECHNOLOGIES, INC.
(Exact Name of Registrant as Specified in its Charter)
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 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. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
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CALCULATION OF REGISTRATION FEE
=========================================== ================ ==================== ==================== ===============
Proposed Maximum Proposed Maximum Amount of
Title of Each Class of Amount to Offering Price Aggregate Offering Registration
Securities to be Registered be Registered Per Share (1) Price (1) Fee
- ------------------------------------------- ---------------- -------------------- -------------------- ---------------
Common Stock, $0.0001 par value per share 320,973 $ 6.41 $ 2,057,437 $ 492
- ------------------------------------------- ---------------- -------------------- -------------------- ---------------
(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 November 28, 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.
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PROSPECTUS
320,973 Shares
[WIRE ONE LOGO]
Common Stock
This prospectus relates to 320,973 shares of our common stock which may be
sold from time to time by the selling stockholder listed on page 9, including
its transferees, pledgees or donees or its successors.
The shares are being registered to permit the selling stockholder to sell
the shares from time to time in the public market. The selling stockholder 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 10.
Our common stock is quoted on the Nasdaq National Market under the symbol
"WONE". On November 30, 2001, the last reported sale price for the common stock
on the Nasdaq National Market was $6.91 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 our common stock involves risks. See "Risk Factors" beginning
on page 3 of this prospectus.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
The date of this prospectus is , 2001.
TABLE OF CONTENTS
Page
----
Forward-Looking Statements................................................................................ 1
About Wire One............................................................................................ 2
Risk Factors.............................................................................................. 3
Use of Proceeds........................................................................................... 9
Selling Stockholder....................................................................................... 9
Plan of Distribution...................................................................................... 10
Description of Common Stock............................................................................... 11
Experts................................................................................................... 12
Legal Matters............................................................................................. 12
Where You Can Find More Information....................................................................... 12
Incorporation of Certain Documents by Reference........................................................... 13
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED IN THIS DOCUMENT OR TO WHICH
WE HAVE REFERRED YOU. WE HAVE NOT AUTHORIZED ANYONE TO PROVIDE YOU WITH
INFORMATION THAT IS DIFFERENT. THIS DOCUMENT MAY BE USED ONLY WHERE IT IS LEGAL
TO SELL THESE SECURITIES. THE INFORMATION IN THIS DOCUMENT MAY BE ACCURATE ONLY
ON THE DATE OF THIS DOCUMENT.
FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated herein by reference
include "forward-looking statements" within the meaning of Section 27A of the
Securities Act and Section 21E of the Exchange Act. All statements other than
statements of historical fact are "forward-looking statements" for purposes of
these provisions, including any projections of earnings, revenues or other
financial items, any statements of the plans and objectives of management for
future operations, any statements concerning proposed new products or services,
any statements regarding future economic conditions or performance, and any
statement of assumptions underlying any of the foregoing. In some cases,
forward-looking statements can be identified by the use of terminology such as
"may", "will", "expects", "plans", "anticipates", "estimates", "potential", or
"continue" or the negative thereof or other comparable terminology. Although we
believe that the expectations reflected in the forward-looking statements
contained in this prospectus and in the incorporated documents are reasonable,
we cannot assure you that such expectations or any of the forward-looking
statements will prove to be correct, and actual results could differ materially
from those projected or assumed in the forward-looking statements. Our future
financial condition and results of operations, as well as any forward-looking
statements, are subject to inherent risks and uncertainties, including but not
limited to the risk factors set forth herein and for the reasons described
elsewhere in this prospectus. These factors, risks and uncertainties include
market acceptance and availability of new products and services; the
nonexclusive and terminable-at-will nature of our reseller agreements with
manufacturers; rapid technological change affecting products and services; the
impact of competitive products and services, as well as competition from other
resellers and service providers; possible delays in the shipment of new
products; and the availability of sufficient financial resources to enable us to
expand our operations. All forward-looking statements and reasons why results
may differ included in this prospectus are made as of the date hereof, and we
assume no obligation to update any such forward-looking statement or reason why
actual results might differ.
1
ABOUT WIRE ONE
Wire One is a leading full-service provider of a complete range of
video communications solutions, including Glowpoint, a subscription-based
service providing customers with broadband access to a two-way video
communications network utilizing a dedicated internet protocol ("IP") backbone.
We provide customers with a single point of contact for all of their video
communications requirements, including consultation, procurement, integration
and operation of their video communications systems. We offer our customers
video communications products from leading manufacturers such as PictureTel
Corporation, Polycom, Inc., RADVision Ltd., SONY Electronics, Inc. and VCON
Telecommunications, Ltd. and provide a comprehensive suite of video and data
services including bridging, on-site technical assistance, customized training,
engineering and maintenance. Our current customer base includes over 3,000
companies with approximately 15,000 videoconferencing endpoints in the
commercial, federal and state government, medical and education marketplaces
nationwide and across the globe.
Our Glowpoint network, which we believe is the first subscriber service
for video communications over IP, provides customers with a high-quality
platform for video communications 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, gateway services to ISDN
standards-based video communications equipment, video streaming and
store-and-forward applications from our network operations center. Leading IP
video communications and video networking equipment suppliers, including Cisco
Systems, Inc., PictureTel, Polycom, RADVision and VCON, have already announced
that their products will be compatible with Glowpoint.
We also distribute data products from companies such as Adtran, Lucent,
Madge Networks N.V. and RADVision to provide our customers with remote access
into LANs, permitting them to acquire bandwidth on demand and to digitally
transmit data.
2
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 Relating to Our Business
We Have Incurred Significant Losses. We May Continue to Incur Losses and We May
Never Achieve and Sustain Profitability.
During the year ended December 31, 2000, and for the nine-month period
ended September 30, 2001, we have incurred significant operating losses and
negative cash flows from operating activities. We expect to continue to make
significant expenditures in connection with expanding and adapting our national
network infrastructure and support services. We may continue to experience
losses in future periods. 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.
We Depend upon Suppliers and Have Limited Sources of Supply for Certain Products
and Services.
We rely on other companies to supply some key products and services that we
sell and some components of our network infrastructure. Some of the products and
services that we resell, and certain components that we require for our network,
are available only from limited sources. We could be adversely affected if such
sources were to become unavailable to us on commercially reasonable terms. We
cannot assure you that, on an ongoing basis, we will be able to obtain
third-party products and services cost-effectively and on the scale and within
the timeframes we require, or at all. Failure to obtain or to continue to make
use of such third-party products and services would have a material adverse
effect on our business, financial condition and results of operations.
Our Future Success Is Dependent on the Continued Employment of Richard Reiss.
Wire One's success will be highly dependent on the experience and continued
employment of Richard Reiss, our chairman of the board, chief executive officer
and president, the loss of whose services would have a material adverse effect
on our business. We have entered into an employment agreement with Mr. Reiss,
which agreement expires on December 31, 2003.
The Loss of Our Professionals Would Make It Difficult to Complete Existing
Projects, Which Could Adversely Affect Our Businesses and Results of Operations.
Our business is labor-intensive, and our success depends on identifying,
hiring, training and retaining professionals. If a significant number of our
current employees or any of our senior managers or key project managers leave,
we may be unable to complete or retain existing projects.
We Depend upon Our Network and Facilities Infrastructure.
Our success depends upon our ability to implement, expand and adapt our
national network infrastructure and support services to accommodate an
increasing amount of video traffic and evolving customer requirements at an
acceptable cost. This has required and will continue to require that we enter
into agreements with providers of infrastructure capacity, equipment, facilities
and support services on an ongoing basis. We cannot assure you that any of these
agreements can be obtained on terms and conditions satisfactory to us. 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.
3
Our Network Could Fail, Which Could Negatively Impact Our Revenues.
Our success depends upon our ability to deliver reliable, high-speed access
to our partners' data centers and upon the ability and willingness of our
telecommunications providers to deliver reliable, high-speed telecommunications
service through their networks. Our network and facilities, and other networks
and facilities providing services to us, are vulnerable to damage, unauthorized
access, or cessation of operations from human error and tampering, breaches of
security, fires, earthquakes, severe storms, power losses, telecommunications
failures, software defects, intentional acts of vandalism including computer
viruses, and similar events, particularly if the events occur within a high
traffic location of the network or at one of our data centers. The occurrence of
a natural disaster or other unanticipated problems at the network operations
center, key sites at which we locate routers, switches and other computer
equipment that make up the backbone of our network infrastructure, or at one or
more of our partners' data centers, could substantially and adversely impact our
business. We cannot assure you that we will not experience failures or 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.
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 making strategic acquisitions of other
videoconferencing companies. Our continued growth will depend 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 acquisition growth strategy include:
o expenses and difficulties in identifying potential targets and the costs
associated with incomplete acquisitions;
o higher prices for acquired companies because of greater competition for
attractive acquisition targets;
o expenses, delays and difficulties of integrating the acquired company into
our existing organization;
o greater impact of the goodwill of acquired companies on our results of
operations because pooling of interests accounting for acquisitions is no
longer available;
o ability of management to improve our operational and financial systems,
procedures and controls and expand, train, retain and manage our employee
base;
o competition for qualified professionals;
o possible dilution of existing stockholders if we sell stock to the public
to raise cash for acquisitions;
o diversion of management's attention;
o expenses of amortizing the acquired companies' intangible assets; and
o expenses of any undisclosed or potential legal liabilities of the acquired
companies.
4
If realized, any of these risks could have a material adverse effect on our
business, results of operations, financial condition and cash flows.
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.
5
A Decrease in the Number and/or Size of Our Projects May Cause Our Results to
Fall Short of Investors' Expectations and Adversely Affect the Price of Our
Common Stock.
If the number or average size of our projects decreases in any quarter,
then our revenues and operating results may also decrease. If our operating
results (including the growth of our Glowpoint network) fall short of investors'
expectations, the trading price of our common stock could decrease materially,
even if the quarterly results do not represent any longer-term problems.
We Will Be 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 4% of our revenues was derived from sales to foreign
markets, and we expect that a portion of our revenues will continue to be
derived from sales to 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 operating margins and results of operations.
These risks include:
o shipping delays;
o increased credit risks;
o trade restrictions;
o export duties and tariffs; and
o international, political, regulatory and economic developments.
We intend to expand our sales and marketing activities to 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 to 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 the our business. We also anticipate
that the expansion of foreign operations will require us to devote significant
resources to system installation, training and service.
Risks Related to Our Industry
Our Success is Highly Dependent on the Evolution of Our Overall Market.
The market for videoconferencing services is evolving rapidly. Although
certain industry analysts project significant growth for this market, their
projections may not be realized. Our 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
videoconferencing equipment or our new IP subscriber network. If we are unable
to react quickly to changes in the market, if the market fails to develop, or
develops more slowly than expected, or if our services do not achieve market
acceptance, then we are unlikely to become or remain profitable.
6
We Compete in a Highly Competitive Market and Many of Our Competitors Have
Greater Financial Resources and Established Relationships with Major Corporate
Customers.
The video communications industry is highly competitive. We compete with
other integrators of video communications equipment, which include Avaya,
Emergent and Forgent. Other telecommunications carriers and other corporations
that have entered into the video communications market include MCI WorldCom,
some of the Regional Bell Operating Companies ("RBOC's"), Sprint and Qwest. Many
of these organizations have substantially greater financial and other resources
than Wire One, furnish many of the same products and services provided by Wire
One, and have established relationships with major corporate customers that have
policies of purchasing directly from them. We believe that as the demand for
video communications systems continues to increase, additional competitors, many
of which may have greater resources than Wire One, may continue to enter the
video communications market.
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
There is Potential for an Adverse Effect on Our Stock Price from Shares Eligible
for Future Sale.
Future sales of substantial amounts of our common stock in the public
market, including the shares covered by this prospectus, or the perception that
such sales could occur, could adversely affect the market price of our common
stock. As of November 29, 2001, we had outstanding 25,119,173 shares of common
stock, plus 10,181,212 shares of common stock reserved for issuance upon the
exercise of outstanding options and warrants, of which options and warrants to
acquire 7,493,427 shares of common stock are currently exercisable.
Substantially all of the outstanding shares of our common stock are either
freely salable or salable subject to certain volume restrictions and manner of
sale restrictions pursuant to Rule 144 of the Securities Act.
7
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 November 29, 2001, there were outstanding warrants to acquire an
aggregate of 3,717,938 shares of our common stock. Some of these warrants,
unlike the common stock, provide for anti-dilution protection upon the issuances
of stock below the exercise price of such warrants. If such a dilution event
occurs, the number of shares of common stock that may be acquired upon
conversion or exercise would increase resulting in dilution for holders of
common stock.
Our Stock Price May Be Volatile Due to Factors Outside of Our Control.
Our stock price could fluctuate due to the following factors, among others:
o Announcements of operating results and business conditions by our
customers;
o Announcements by our competitors relating to new customers or technological
innovations or new services;
o Economic developments in the telecommunications or multimedia industries as
a whole;
o Political and economic developments in countries in which we have
operations; and
o General market conditions.
Our Anti-Takeover Defense Provisions May Deter Potential Acquirors 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, control of Wire One.
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
Wire One stockholders to effect corporate actions. In addition, Section 203 of
the Delaware General Corporation Law has the effect of restricting combinations
between our company and certain of our stockholders without the approval of our
board of directors.
8
USE OF PROCEEDS
The selling stockholder will receive all of the proceeds from the sale of
the securities sold pursuant to this prospectus. See "Selling Stockholder" for
the entity receiving proceeds from the sales of these shares.
SELLING STOCKHOLDER
The following table sets forth (i) the name of the selling stockholder,
(ii) the number of shares of common stock owned beneficially by it as of
November 29, 2001, (iii) the number of shares which may be offered pursuant to
this prospectus and (iv) the number of shares and percentage of class to be
owned by the selling stockholder after this offering. The selling stockholder
may sell all, some or none of its shares in this offering. See "Plan of
Distribution." We have filed a registration statement, of which this prospectus
forms a part, in order to permit the selling stockholder to resell to the public
the shares of common stock that it acquired in connection with our acquisition
of certain of the assets of the selling stockholder pursuant to an Asset
Purchase Agreement among Wire One Technologies, Inc., the selling stockholder
and certain shareholders of the selling stockholder. The following information
is based upon information provided by the selling stockholder. The selling
stockholder has not held any position or office or had any other material
relationship with us or any of our affiliates within the past three years other
than as a result of its ownership of shares of equity securities. Because the
selling stockholder may offer all, some or none of its common stock, no
definitive estimate as to the number of shares that will be held by the selling
stockholder after this offering can be provided.
The selling stockholder named in the table has sole voting and investment
power with respect to all shares of common stock shown as beneficially owned by
it. A person is considered the beneficial owner of any securities as of a given
date that can be acquired within 60 days of such date through the exercise of
any option, warrant or 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 25,119,173 shares of common stock
outstanding as of November 29, 2001.
Common Shares Common Shares Percentage of
Beneficially Common Shares Beneficially Common Shares
Owned Prior to Offered by this Owned After Beneficially
Name of Selling Stockholder Offering Prospectus Offering Owned After Offering
- ------------------------------------ ---------------------- -------------------- ----------------- ------------------------
Axxis, Inc....................... 320,973 320,973 - *
- ---------------------
* Less than 1%
9
PLAN OF DISTRIBUTION
The selling stockholder, 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 stockholder 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 stockholder may also transfer shares by gift. We do not know of
any arrangements by the selling stockholder for the sale of any of the common
stock.
In effecting sales, brokers and dealers engaged by the selling stockholder
may arrange for other brokers or dealers to participate. Broker-dealers may
agree with the selling stockholder 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 the 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 stockholder 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, the selling stockholder may pledge, hypothecate or grant
a security interest in some or all of the shares owned by it. The pledgees,
secured parties or persons to whom such securities have been hypothecated will,
upon foreclosure in the event of default, be deemed to be selling stockholders.
In addition, the 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 the selling stockholder's 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 the selling stockholder and/or purchasers of the
selling stockholder's shares of common stock, for whom they may act (which
compensation as to a particular broker-dealer might be in excess of customary
commissions).
10
The selling stockholder 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.
The 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 the selling
stockholder, including, without limitation, in connection with distributions of
the common stock by such broker-dealers. The 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. The 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 stockholder and other persons participating in the sale or
distribution of the shares will be subject to the applicable provisions of the
Securities and Exchange Act of 1934, including Regulation M. With certain
exceptions, Regulation M precludes any selling stockholder, any affiliated
purchasers, and any broker-dealer or other person who participates in such
distribution from bidding for or purchasing, or attempting to induce any person
to bid or purchase any security which is the subject of the distribution until
the entire distribution is complete. Regulation M also prohibits any bids or
purchases made in order to stabilize the price of a security in connection with
the distribution of that security. All of the foregoing may affect the
marketability of our common stock.
We have agreed to indemnify the selling stockholder against certain
liabilities, including liabilities under the Securities Act of 1933. The selling
stockholder has 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 stockholder 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 will pay all expenses in connection with this offering other than fees
and expenses of counsel and other advisers to the selling stockholder or
underwriting discounts, brokerage fees and commissions.
DESCRIPTION OF COMMON STOCK
We are authorized to issue 100,000,000 shares of common stock, par value
$.0001 per share. At the close of business on November 29, 2001 there were
25,119,173 shares of our common stock outstanding. Each holder of common stock
is entitled to one vote for each share owned on all matters voted upon by
stockholders, including the election of directors. Subject to the rights of any
then outstanding shares of preferred stock, holders of common stock are entitled
to dividends that the board of directors may declare. The decision to declare
dividends is made by the board of directors in its sole discretion, but the
board of directors may declare dividends only if there are funds legally
available to pay for the dividends. Holders of common stock are entitled to
share ratably in our net assets upon liquidation after payment or provision for
all liabilities and any preferential liquidation rights of any preferred stock
then outstanding. Holders of common stock have no preemptive rights to purchase
shares of our stock. Shares of common stock are not subject to any redemption
provisions and are not convertible into any other securities of Wire One.
11
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
are being passed upon by Morrison & Foerster LLP, New York, New York.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the Securities and Exchange Commission a registration
statement on Form S-3 under the Securities Act with respect to the common stock
offered by this prospectus. This prospectus, which is a part of the registration
statement, does not contain all of the information set forth in the registration
statement. For further information about us and the common stock offered by this
prospectus, we refer you to the registration statement and the exhibits and
schedules filed as a part of the registration statement. Statements contained in
this prospectus as to the contents of any contract or other document filed as an
exhibit to the registration statement are not necessarily complete. If a
contract or document has been filed as an exhibit to the registration statement,
we refer you to the copy of the contract or document that has been filed. The
registration statement, including exhibits, may be inspected without charge at
the principal office of the Securities and Exchange Commission in Washington,
D.C. and copies of all or any part of which may be inspected and copied at the
public reference facilities maintained by the Securities and Exchange Commission
at 450 Fifth Street, N.W., Judiciary Plaza, Room 1024, Washington, D.C. 20549,
and at the Commission's regional offices located at Citicorp Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661-2511. Copies of such
material can also be obtained at 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.
12
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 Reports on Form 10-Q for the fiscal quarters ended March
31, 2001, June 30, 2001 and September 30, 2001; and
4. Our Current Report on Form 8-K filed with the Commission on August 1,
2001 and the amendments thereto filed on October 1, 2001 and October 3,
2001.
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
13
320,973 Shares
[WIRE ONE LOGO]
Common Stock
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 stockholder for brokerage, accounting, tax
or legal services or any other expenses incurred by the selling stockholder in
disposing of the shares). All amounts shown are estimates except for the
Securities and Exchange Commission registration fee.
SEC registration fee...................... $ 492.00
Accounting fees and expenses.............. 7,000.00
Legal fees and expenses................... 10,000.00
Printing costs............................ 2,000.00
Miscellaneous............................. 5,508.00
-------------
Total..................................... $ 25,000.00
=============
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.
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. (2)
3.3 Amended and Restated Bylaws.(1)
4.1 Specimen Common Stock Certificate.(2)
5.1 Opinion of Morrison & Foerster LLP as to the legality of the common
stock. (3)
10.1 Asset Purchase Agreement, dated as of November 26, 2001, among Wire
One Technologies, Inc., Axxis, Inc. and the shareholders of Axxis,
Inc. listed on the signature page thereto.(3)
23.1 Consent of BDO Seidman, LLP.(3)
23.2 Consent of Morrison & Foerster LLP. (included in their opinion filed
as Exhibit 5.1)
24.1 Power of Attorney (included in the signature page contained in Part
II of the Registration Statement). (3)
(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 Wire One Technologies, Inc.'s Registration Statement
on Form S-1 (Registration No. 333-42518), and incorporated herein by
reference.
(3) 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) 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;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registration
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement.
II-2
(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) That, for 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 Section 15(d) of the Securities 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 this Registration
Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, Wire One has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, Wire One will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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 Hillside, State of New Jersey, on December 4, 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 December 4, 2001.
Signature Title
- --------- -----
/s/ Richard Reiss Chairman, President and Chief Executive Officer
- ---------------------------- (Principal Executive Officer)
Richard Reiss
/s/ Christopher Zigmont Chief Financial Officer
- ---------------------------- (Principal Financial and Accounting Officer)
Christopher Zigmont
/s/ Leo Flotron Chief Operating Officer and Director
- ----------------------------
Leo Flotron
/s/ Jonathan Birkhahn Executive Vice President Business Affairs,
- ---------------------------- General Counsel, Secretary and Director
Jonathan Birkhahn
II-4
/s/ Lewis Jaffe Director
- ----------------------------
Lewis Jaffe
/s/ James Kuster Director
- ----------------------------
James Kuster
/s/ Dean Hiltzik Director
- ----------------------------
Dean Hiltzik
/s/ Peter N. Maluso Director
- ----------------------------
Peter N. Maluso
II-5
Exhibit Index
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. (2)
3.3 Amended and Restated Bylaws.(1)
4.1 Specimen Common Stock Certificate.(2)
5.1 Opinion of Morrison & Foerster LLP as to the legality of the common
stock. (3)
10.1 Asset Purchase Agreement, dated as of November 26, 2001, among Wire
One Technologies, Inc., Axxis, Inc. and the shareholders of Axxis,
Inc. listed on the signature page thereto.(3)
23.1 Consent of BDO Seidman, LLP.(3)
23.2 Consent of Morrison & Foerster LLP. (included in their opinion filed
as Exhibit 5.1)
24.1 Power of Attorney (included in the signature page contained in Part
II of the Registration Statement). (3)
(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 Wire One Technologies, Inc.'s Registration
Statement on Form S-1 (Registration No. 333-42518), and incorporated
herein by reference.
(3) Filed herewith.