As filed with the Securities and Exchange
Commission on August 29, 1996
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
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FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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MICROWARE SYSTEMS CORPORATION
(Exact name of registrant as specified in its charter)
Iowa 42-1073916
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1900 Northwest 114th Street, Des Moines, 50325-7077
(Address of Principal Executive Offices) (Zip Code)
1989 STOCK OPTION PLAN
1991 STOCK OPTION PLAN
1992 STOCK OPTION PLAN
1995 STOCK OPTION PLAN
(Full title of the plans)
Kenneth B. Kaplan
MICROWARE SYSTEMS CORPORATION
1900 Northwest 114th Street
Des Moines, Iowa 50325-7077
(Name and address of agent for service)
(515) 223-8000
(Telephone number, including area code, of agent for service)
<TABLE>
CALCULATION OF REGISTRATION FEE
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<CAPTION>
Proposed Proposed
maximum maximum
Title of Amount offering aggregate Amount of
securities to to be price offering registration
be registered registered(a) per unit price fee
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<S> <C> <C> <C> <C>
Common Stock,
no par value 656,000 shares(b) $0.50(g) $328,000(g) $113.10
Common Stock,
no par value 468,000 shares(c) $0.9375(g) $438,750(g) $151.29
Common Stock,
no par value 352,000 shares(d) $1.3125(g) $462,000(g) $159.31
Common Stock,
no par value 757,150 shares(e) $3.125(g) $2,366,094(g) $815.89
Common Stock,
no par value 361,350 shares(f) $14.875(h) $5,375,081(h) $1,853.48
Total Registration Fee $3,093.07
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<FN>
(a) Represents the maximum number of shares which could be purchased
upon exercise of all stock options which are outstanding currently
or which may hereafter be granted under the 1989, 1991, 1992 and
1995 Stock Option Plans.
(b) Represents the maximum number of shares which could be purchased
upon exercise of all options now outstanding under the 1989 Stock
Option Plan.
(c) Represents the maximum number of shares which could be purchased
upon exercise of all options now outstanding under the 1991 Stock
Option Plan.
(d) Represents the maximum number of shares which could be purchased
upon exercise of all options now outstanding under the 1992 Stock
Option Plan.
(e) Represents the maximum number of shares which could be purchased
upon exercise of all options now outstanding under the 1995 Stock
Option Plan.
(f) Represents the maximum number of shares which could be purchased
upon exercise of options not yet granted but authorized under the
1995 Stock Option Plan.
(g) Represents actual average per share and aggregate exercise prices
of outstanding options under the 1989, 1991, 1992 or 1995 Stock
Option Plans, as applicable.
(h) Estimated solely for purposes of calculating the registration fee
and based on the average high and low prices of the Company's
Common stock on August 23, 1996, as reported on the Nasdaq National
Market.
</FN>
</TABLE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The documents listed in (a) through (c) below are incorporated by
reference in this Registration Statement, and all documents subsequently
filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of
the Securities Exchange Act of 1934, prior to the filing of a post-
effective amendment which indicates that all securities offered have
been sold or which deregisters all securities then remaining unsold,
shall be deemed to be incorporated by reference in this Registration
Statement and to be part thereof from the date of filing of such
documents:
(a) The Company's annual report on Form 10-K for the year ended
March 31, 1996.
(b) The Company's quarterly report on Form 10-Q for the quarter
ended June 30, 1996.
(c) The description of the Company's Common Stock which is
contained in the Registration Statement on Form 8-A filed
March 14, 1996, File No. 0-27988, including any amendment
or report filed for the purpose of updating such
description.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the shares of Common Stock offered hereby will be
passed upon by D'Ancona & Pflaum, Chicago, Illinois. Arthur Don, a
Director of the Company and a partner of D'Ancona & Pflaum, has the
right to acquire up to 40,000 shares of the Common Stock pursuant to
outstanding options. Other partners and associates at D'Ancona & Pflaum
own an aggregate of approximately 3,825 shares of Common Stock.
Item 6. Indemnification of Directors and Officers.
Sections 851 and 856 of the Iowa Business Corporation Act ("Iowa
BCA") empower a corporation, subject to certain limitations, to
indemnify its directors and officers against expenses (including
attorneys' fees, judgments, fines and certain settlements) actually and
reasonably incurred by them in connection with any suit or proceeding to
which they are a party so long as they acted in good faith and in a
manner reasonably believed to be in or not opposed to the best interests
of the corporation, and, with respect to a criminal action or
proceedings, so long as they had no reasonable cause to believe their
conduct to have been unlawful. The Registrant's By-laws provide that
the Registrant shall indemnify its directors and such of its officers,
employees and agents as the Board of Directors may determine form time
to time, to the fullest extent permitted by Iowa law.
Section 832 of the Iowa BCA permits an Iowa corporation to include
in its articles of incorporation a provision eliminating or limiting a
director's liability to a corporation or its shareholders for monetary
damages for breaches of fiduciary duty. The enabling statute provides,
however, that liability for breaches of the duty of loyalty, acts or
omissions not in good faith or involving intentional misconduct, or
knowing violation of the law, and the unlawful purchase or redemption of
stock or payment of unlawful dividends or the receipt of improper
personal benefits cannot be eliminated or limited in this manner. The
Registrant's Articles of Incorporation include a provision which
eliminates, to the fullest extent permitted, director liability for
monetary damages for breaches of fiduciary duty.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
4.1 Articles of Incorporation of the Company, filed as Exhibit
3.1(a) to Pre-Effective Amendment No. 3 to the Company's
Registration Statement on Form S-1, Reg. No. 33-99160, and
hereby incorporated by reference.
4.2 Bylaws of the Company, filed as Exhibit 3.2(a) to Pre-
Effective Amendment No. 3 to the Company's Registration
Statement on Form S-1, Reg. No. 33-99160, and hereby
incorporated by reference.
5.1 Opinion of D'Ancona & Pflaum.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of D'Ancona & Pflaum (included in Exhibit 5.1).
24.1 Powers of Attorney (included herein).
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act of 1933;
(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, represents a
fundamental change in the information set forth in the
registration statement; notwithstanding the foregoing,
any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would
not exceed that which was registered) and any deviation
from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent
no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement;
(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 registration statement is on Form S-3, Form S-8 or Form F-3
and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
by the registrant pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in
the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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 shall be deemed to be the initial bona fide
offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
The undersigned Company hereby undertakes that, for the purposes of
determining any liability under the Securities Act of 1933, each filing
of the Company's annual report pursuant to section 13(a) or 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 Company 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 Company 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 Company 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.
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 Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Des Moines, State of Iowa, on
the 23rd day of August, 1996.
MICROWARE SYSTEMS CORPORATION
(Company)
By: \S\ KENNETH B. KAPLAN
----------------------
Kenneth B. Kaplan, President and
Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that the undersigned directors and
officers of Microware Systems Corporation, an Iowa corporation, which is
filing a Registration Statement on Form S-8 with the Securities and
Exchange Commission, under the provisions of the Securities Act of 1933,
as amended, hereby constitute and appoint Kenneth B. Kaplan, Lawrence A.
Crane and George J. Barry their true and lawful attorneys-in-fact and
agents, with full power and substitution and re-substitution, for him or
her and in his or her name, place and stead, in any and all capacities,
to sign such Registration Statement and any or all pre-effective and
post-effective amendments to the Registration Statement, and all other
documents in connection therewith to be filed with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully
to all interests and purposes as each of them might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact
and agents or their 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 and on the dates indicated.
Signature Title Date
--------- ----- ----
\S\ KENNETH B. KAPLAN Chairman, President and August 23, 1996
---------------------
Kenneth B. Kaplan Chief Executive Officer
(Principal Executive
Officer)
\S\ GEORGE J. BARRY Chief Financial Officer, August 23, 1996
---------------------
George J. Barry Executive Vice President-
Finance and Treasurer
(Principal Financial and
Accounting Officer)
\S\ LAWRENCE A. CRANE Director August 23, 1996
---------------------
Lawrence A. Crane
--------------------- Director
Charles R. Ball
\S\ ARTHUR DON Director August 23, 1996
---------------------
Arthur Don
\S\ JAMES A. GORDON Director August 23, 1996
---------------------
James A. Gordon
\S\ ROBERT L. GROWNEY Director August 23, 1996
---------------------
Robert L. Growney
\S\ DANIEL P. HOWELL Director August 23, 1996
---------------------
Daniel P. Howell
\S\ DENNIS E. YOUNG Director August 23, 1996
---------------------
Dennis E. Young
August 28, 1996
Microware Systems Corporation
1900 N.W. 114th Street
Des Moines, IA 50325-7077
Gentlemen:
In connection with the proposed registration under the Securities
Act of 1933, as amended by Microware Systems Corporation, an Iowa
corporation (the "Company"), on Form S-8, of an aggregate of 2,570,500
shares of its Common Stock, no par value (the "Shares"), issuable upon
exercise of stock options under the Company's 1989, 1991, 1992 and 1995
Stock Option Plans (the "Plans"), we hereby advise you that as general
counsel for the Company we have examined the original or certified
copies of the Certificate of Incorporation of the Company and all
amendments thereto, the By-Laws of the Company, as amended, the minute
books of the Company, and such other documents and records as we have
deemed necessary for the purposes of this opinion.
Based upon such examination, it is our opinion that:
1. The Company is a validly organized and existing corporation
under the laws of the State of Iowa.
2. The Shares are duly authorized and, when issued upon the
exercise of stock options pursuant to the terms of the Plans,
will be legally issued, fully paid and nonassessable.
Very truly yours,
D'ANCONA & PFLAUM
By: \S\ MERRILL A. FREED
----------------
Merrill A. Freed
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement on Form S-8 of Microware Systems Corporation of our report
dated May 2, 1996, except as to the last paragraph of note 15 which is
as of May 9, 1996, relating to the consolidated balance sheets of
Microware Systems Corporation and subsidiaries as of March 31, 1995 and
1996 and the related consolidated statements of operations,
shareholders' equity, and cash flows for each of the years in the three-
year period ended March 31, 1996, which report appears in the March 31,
1996 annual report on Form 10-K of Microware Systems Corporation.
Des Moines, Iowa KPMG Peat Marwick LLP
August 28, 1996
