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As filed with the Securities and Exchange Commission on November 13, 1998
Registration No. 333-_______
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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 42-1073196
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1500 NORTHWEST 118TH STREET, DES MOINES, IOWA 50325
(Address of Principal Executive Offices) (Zip Code)
1995 STOCK OPTION PLAN
(Full title of the plan)
Kenneth B. Kaplan
MICROWARE SYSTEMS CORPORATION
1500 Northwest 118th Street
Des Moines, Iowa 50325
(Name and address of agent for service)
(515) 223-8000
(Telephone number, including area code, of agent for service)
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<CAPTION>
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Amount maximum maximum Amount of
securities to to be offering price aggregate registration
be registered registered per share offering price fee
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<S> <C> <C> <C> <C>
Common Stock,
no par value 296,000 shares (a) $ 2.50 (b) $ 740,000 (b) $ 205.72 (e)
Common Stock,
no par value 654,000 shares (c) See note (d) $3,838,375 (d) $1,067.07 (e)
Total Registration Fee: $1,272.79
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(a) Represents the maximum number of shares which could be purchased upon
exercise of all options which may be hereafter granted under the provisions
of the amendments to the 1995 Stock Option Plan, which increase by 950,000
the number of shares that can be issued under the 1995 Stock Option Plan.
(b) 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
November 12, 1998, as reported by the Nasdaq National Market System.
(c) Represents the maximum number of shares which could be purchased upon
exercise of all options now outstanding under the 1995 Stock Option Plan,
not previously registered.
(d) Exercise prices per share for outstanding options range from $5.13 to
$6.6250 per share.
(e) Registration Fee computed pursuant to Rule 457(h)(1)
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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, 1998.
(b) The Company's quarterly reports on Form 10-Q for the quarters
ended June 30, 1998, and September 30, 1998.
(c) The description of the Company's Common Stock 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. Mr. Arthur Don, a
Director of the Company and a partner of D'Ancona & Pflaum, beneficially owns
100 shares of the registrant's Common Stock, and has the right to acquire up
to 40,000 shares of the Common Stock pursuant to outstanding options. Other
partners at D'Ancona & Pflaum beneficially own additional shares of the
Company's Common Stock, which ownership is not material.
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 attorney's
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
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Registrant shall indemnify its directors and such of its officers, employees
and agents as the Board of Directors may determine from 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, File 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, File 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
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amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the 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 registrant 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, 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all the requirements for filing on Form S-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
10th day of November, 1998.
MICROWARE SYSTEMS CORPORATION
(Company)
By: /s/ Kenneth B. Kaplan
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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 and M. Denis Connaghan their
true and lawful attorneys-in-fact and agents, with full power and
substitution and re-substitution, for them and in their name, place and
stead, in any and all capacities, to sign 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
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/s/ Kenneth B. Kaplan Chairman of the Board, November 10, 1998
- --------------------- President and Chief Executive
Kenneth B. Kaplan Officer
(Principal Executive Officer)
/s/ M. Denis Connaghan Director, Executive Vice President November 10, 1998
- ---------------------- and Chief Operating Officer
M. Denis Connaghan
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/s/ George E. Leonard Executive Vice President, November 10, 1998
- --------------------- - Treasurer and Chief Financial
George E. Leonard Officer
(Principal Financial Officer)
/s/ Kent Thompson Controller November 12, 1998
- --------------------- (Chief Accounting Officer)
Kent Thompson
/s/ James A. Gordon Director November 10, 1998
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James A. Gordon
/s/ Daniel P. Howell Director November 10, 1998
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Daniel P. Howell
/s/ Dennis E. Young Director November 10, 1998
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Dennis E. Young
/s/ Arthur Don Director November 10, 1998
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Arthur Don
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EXHIBIT 5.1
November 12, 1998
Microware Systems Corporation
1500 N.W. 118th Street
Des Moines, Iowa 50325
Ladies & Gentlemen:
We have acted as counsel for Microware Systems Corporation (the
"Company") in connection with the filing with the Securities and Exchange
Commission of a Registration Statement on Form S-8 (the "Registration
Statement") relating to the offer and proposed registration of 950,000
additional shares of the Company's common stock, no par value ("Common
Stock"), under the terms of the Company's 1995 Stock Option Plan, as amended
(the "Stock Option Plan"), described in the Registration Statement.
In arriving at this opinion, we have examined the Company's Articles of
Incorporation, its Bylaws, the records of the corporate proceedings of the
Company authorizing the issuance and sale of the shares of Common Stock
covered by the Registration Statement, the Stock Option Plan and such other
instruments and documents as we have deemed appropriate.
Based upon the foregoing, we are of the opinion that said shares of
Common Stock are duly authorized, and upon delivery of same to the
participants under the Stock Option Plan against payment therefor upon the
terms set forth in the Stock Option Plan, said shares of Common Stock will be
validly issued, fully paid and non-assessable shares of Common Stock of the
Company.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm in such Registration
Statement.
Very truly yours,
D'ANCONA & PFLAUM
SC/MAF/KB By: /s/ Steve Curtis
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Steve Curtis, Partner
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EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in the Registration Statement of
Microware Systems Corporation on Form S-8 pertaining to the 1995 Stock Option
Plan of our report dated April 24, 1998, with respect to the consolidated
financial statements of Microware Systems Corporation included in its Annual
Report on Form 10-K for the year ended March 31, 1998, filed with the
Securities and Exchange Commission.
/s/ KPMG Peat Marwick LLP
Des Moines, Iowa
November 10, 1998
