<PAGE>
As filed with the Securities and Exchange Commission on July 29, 1996
Registration Statement No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------------
OneWave, Inc.
(Exact name of Registrant as specified in its charter)
Delaware 04-3249618
(State of incorporation) (I.R.S. Employer Identification Number)
One Arsenal Marketplace
Watertown, Massachusetts 02172
(617) 923-6500
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
OneWave, Inc. 1995 Stock Plan
OneWave, Inc. 1996 Stock Plan
OneWave, Inc. Employee Stock Purchase Plan
(Full Title of the Plans)
----------------------------
Klaus P. Besier
President and Chief Executive Officer
OneWave, Inc.
One Arsenal Marketplace
Watertown, Massachusetts 02172
(617) 923-6500
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
----------------------------
With copies to:
John J. Egan III, Esq.
Goodwin, Procter & Hoar LLP
Exchange Place
Boston, Massachusetts 02109
(617) 570-1514
---------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================
Proposed Proposed
Maximum Maximum Amount
Offering Aggregate of
Title of Securities to be Amount to be Price Per Offering Registration
Registered Registered (1) Share Price Fee
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock (2) 40,000 $.015 $600 $1
446,267 $1.50 $669,400 $231
636,533 $4.50 $2,864,400 $988
667 $5.00 $3,335 $2
1,281,333 $7.50 $9,610,000 $3,314
951,800 $12.00 $11,421,600 $3,938
- --------------------------------------------------------------------------------
Common Stock 943,400 $13.875(3) $13,089,675 $4,514
================================================================================
</TABLE>
(1) This Registration Statement also relates to such indeterminate number of
additional shares as may be issuable pursuant to the OneWave, Inc. 1995
Stock Plan, the OneWave, Inc. 1996 Stock Plan and the OneWave, Inc.
Employee Stock Purchase Plan as a result of a stock dividend, reverse stock
split, split-up, recapitalization or other similar event.
(2) The aggregate offering price and fee are computed based on the exercise
price of the options to purchase shares of Common Stock of OneWave, Inc.,
par value $.001 per share, which have been granted to date under the
OneWave, Inc. 1995 Stock Plan and the OneWave, Inc. 1996 Stock Plan in
accordance with Rule 457(h) under the Securities Act of 1933.
(3) This estimate is based on the average of the high and low prices of the
Common Stock of OneWave, Inc., par value $.001 per share, as reported on
the Nasdaq National Market on July 25, 1996, pursuant to Rule 457(c) and
(h) under the Securities Act of 1933, solely for purposes of determining
the registration fee with respect to the shares of Common Stock to be
issued under the OneWave, Inc. Employee Stock Purchase Plan and OneWave,
Inc. 1996 Stock Plan.
=============================================================================
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUSES
Item 1. Plan Information.*
----------------
Item 2. Registrant Information and Employee Plan Annual Information.*
-----------------------------------------------------------
* Information required by Part I to be contained in the Section 10(a)
Prospectuses is omitted from this Registration Statement in accordance with the
Introductory Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
---------------------------------------
OneWave, Inc. (the "Registrant") hereby incorporates by reference the
documents listed in (a) through (c) below, which have previously been filed
with the Securities and Exchange Commission (the "Commission").
(a) The Registrant's prospectus, filed with the Commission on July 3,
1996 pursuant to Rule 424(b) of the Securities Act of 1933;
(b) All other reports filed with the Commission since December 31,
1995 pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934; and
(c) The description of the Registrant's Common Stock contained in its
Registration Statement on Form 8-A, filed with the Commission on
May 30, 1996, pursuant to Section 12(g) of the Securities
Exchange Act of 1934, and any amendments or reports filed for the
purpose of updating such description.
In addition, all documents subsequently filed with the Commission by
the Registrant pursuant to Sections 13(a) and 13(c), Section 14 and Section
15(d) of the Securities Exchange Act of 1934, prior to the filing of a post-
effective amendment which indicates that all securities offered hereunder 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
a part hereof from the date of filing of such documents. Any statement contained
in a document incorporated or deemed incorporated by reference herein shall be
deemed to be modified or superseded for purposes hereof to the extent that a
statement contained herein or in any subsequently filed document which also is
incorporated or deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
Item 4. Description of Securities.
-------------------------
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
--------------------------------------
Not Applicable.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
Section 145 of the Delaware General Corporation Law provides that a
corporation may indemnify a director, officer, employee or agent against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement in respect of or in successful defense of any action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful.
Article VII of the Registrant's Third Amended and Restated Certificate
of Incorporation provides that a director of the Registrant shall not be
personally liable to the Registrant or its stockholders for monetary damages for
breach of fiduciary duty as a director, except (to the extent provided by
applicable law) for liability (i) for any breach of the director's duty of
loyalty to the Registrant or its stockholders, (ii) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (iii) pursuant to Section 174 of the Delaware General Corporation Law or
any amendment or successor provisions thereto, or (iv) for any transaction from
which the director derived an improper personal benefit. If the Delaware General
Corporation Law is amended to authorize corporate action further eliminating or
limiting the personal liability of directors, then the liability of a director
of the Registrant shall be eliminated or limited to the fullest extent permitted
by the Delaware General Corporation Law, as so amended. Any repeal or
modification of Article VII of the Registrant's Third
<PAGE>
Amended and Restated Certificate of Incorporation shall not adversely affect any
right or protection of a director of the Registrant existing at the time of such
repeal or modification.
Article V of the Registrant's Amended and Restated By-laws provides
that the Registrant shall indemnify each person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that he is, or was, a director, officer or employee of the
Registrant, or is or was serving at the request of the Registrant, as a
director, officer or employee of any subsidiary of the Company or in any other
capacity with any other corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorney's fees), judgments, fines and
amounts paid in settlement reasonably incurred by him in connection with such
action, suit or proceeding to the maximum extent permitted by the Delaware
General Corporation Law. The terms of Article V substantially incorporate the
provisions of Section 145 of the Delaware General Corporation Law. The
indemnification provided for in Article V is expressly not exclusive of any
other rights of indemnification to which any such director or officer may be
entitled under any by-law, agreement, vote of stockholders or directors or
otherwise.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not Applicable.
Item 8. Exhibits.
--------
The following is a complete list of exhibits filed or incorporated by
reference as part of this Registration Statement:
4.1 Third Amended and Restated Certificate of Incorporation of OneWave,
Inc.
+4.2 Amended and Restated By-Laws of OneWave, Inc.
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of the
securities being registered.
23.1 Consent of Goodwin, Procter & Hoar LLP (included in their opinion
filed as Exhibit 5.1 hereto).
23.2 Consent of Arthur Andersen LLP, Independent Public Accountants.
24.1 Power of Attorney (included on the signature page of this Registra-
tion Statement).
+99.1 OneWave, Inc. 1995 Stock Plan, as amended.
+99.2 OneWave, Inc. 1996 Stock Plan, as amended.
+99.3 OneWave, Inc. Employee Stock Purchase Plan, as amended.
- -----------------------------
+ Incorporated by reference to the relevant exhibit to the OneWave, Inc.
Registration Statement on Form S-1 (File No. 333-04235) as filed with the
Commission on May 22, 1996.
Item 9. Undertakings.
------------
(a) 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, represent 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 and 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 20 percent change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement; and
2
<PAGE>
(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 (a)(1)(i) and (a)(1)(ii) herein
do not apply if the information required to be included in a post-
effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by the
undersigned 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.
(b) The undersigned Registrant hereby undertakes 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 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.
(c) 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 Securities Act of 1933, 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 Securities Act of 1933 and will be governed by the final
adjudication of such issue.
3
<PAGE>
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 of 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 Watertown, Commonwealth of Massachusetts on this
29th day of July, 1996.
ONEWAVE, INC.
By: /s/ Klaus P. Besier
--------------------
Klaus P. Besier
Chairman of the Board, President and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that we, the undersigned officers and
directors of OneWave, Inc. hereby severally constitute Klaus P. Besier, Mark J.
Gallagher and Craig Newfield and each of them singly, our true and lawful
attorneys with full power to them, and each of them singly, to sign for us and
in our names in the capacities indicated below, the Registration Statement filed
herewith and any and all amendments to said Registration Statement, and
generally to do all such things in our names and in our capacities as officers
and directors to enable OneWave, Inc. to comply with the provisions of the
Securities Act of 1933, and all requirements of the Securities and Exchange
Commission, hereby ratifying and confirming our signatures as they may be signed
by our said attorneys, or any of them, to said Registration Statement and any
and all amendments thereto.
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
date indicated.
<TABLE>
<CAPTION>
SIGNATURE CAPACITY DATE
--------- -------- ----
<S> <C> <C>
/s/ Klaus P. Besier
- -------------------------- Chairman of the Board, President July 29, 1996
Klaus P. Besier and Chief Executive Officer
(Principal Executive Officer)
/s/ Mark J. Gallagher
- -------------------------- Chief Financial Officer July 29, 1996
Mark J. Gallagher (Principal Financial Officer
and Principal Accounting Officer)
/s/ Albert Carnesale
- -------------------------- Director July 29, 1996
Albert Carnesale
/s/ Manuel Diaz
- -------------------------- Director July 29, 1996
Manuel Diaz
/s/ Stephen Levy
- -------------------------- Director July 29, 1996
Stephen Levy
/s/ Ofer Nemirovsky
- -------------------------- Director July 29, 1996
Ofer Nemirovsky
/s/ Sundar Subramaniam
- -------------------------- Director July 29, 1996
Sundar Subramaniam
</TABLE>
4
<PAGE>
EXHIBIT INDEX
-------------
Exhibit No. Description
- ----------- -----------
4.1 Third Amended and Restated Certificate of Incorporation of
OneWave, Inc.
+4.2 Amended and Restated By-Laws of OneWave, Inc.
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of the
securities being registered.
23.1 Consent of Goodwin, Procter & Hoar LLP (included in their opinion
filed as Exhibit 5.1 hereto).
23.2 Consent of Arthur Andersen LLP, Independent Public Accountants.
24.1 Power of Attorney (included on the signature page of this
registration statement).
+99.1 OneWave, Inc. 1995 Stock Plan, as amended.
+99.2 OneWave, Inc. 1996 Stock Plan, as amended.
+99.3 OneWave, Inc. Employee Stock Purchase Plan, as amended.
- --------------------------------
+ Incorporated by reference to the relevant exhibit to the OneWave, Inc.
Registration Statement on Form S-1 (File No.333-04235) as filed with the
Commission on May 22, 1996.
<PAGE>
EXHIBIT 4.1
THIRD AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ONEWAVE, INC.
OneWave, Inc., a corporation organized and existing under the laws of the
State of Delaware (the "Corporation"), hereby certifies as follows:
1. The name of the Corporation is OneWave, Inc. The date of the filing of
its original Certificate of Incorporation with the Secretary of State of the
State of Delaware was January 19, 1994. The name under which the Corporation
filed its original Certificate of Incorporation was Object Power, Incorporated.
2. This Third Amended and Restated Certificate of Incorporation amends,
restates and integrates the provisions of the Second Amended and Restated
Certificate of Incorporation of the Corporation filed with the Secretary of
State of the State of Delaware on May 29, 1996, as heretofore amended (the
"Certificate of Incorporation"), and was duly adopted by the Board of Directors
of the Corporation in accordance with the provisions of Sections 141(f), 242 and
245 of the General Corporation Law of the State of Delaware (the "DGCL") and was
duly adopted by the written consent of the stockholders of the Corporation, with
written notice thereof having been given to all stockholders of the Corporation
who have not given their written consent, all in accordance with the applicable
provisions of Sections 228, 242 and 245 of the DGCL.
3. The text of the Certificate of Incorporation is hereby amended and
restated in its entirety to provide as herein set forth in full.
ARTICLE I
NAME
----
The name of the Corporation is ONEWAVE, INC.
<PAGE>
ARTICLE II
REGISTERED OFFICE
-----------------
The address of the Corporation's registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, in the City of
Wilmington, County of New Castle. Its registered agent at such address is The
Corporation Trust Company.
ARTICLE III
PURPOSES
--------
The business or purpose of the Corporation is to engage in any lawful
act or activity for which corporations may be organized under the DGCL.
ARTICLE IV
CAPITAL STOCK
-------------
The total number of shares of capital stock which the Corporation
shall have the authority to issue is Fifty-Five Million (55,000,000) shares of
which (A) Fifty Million (50,000,000) shares shall be Common Stock, par value
$.001 per share (the "Common Stock") and (B) Five Million (5,000,000) shares
shall be preferred stock, $1.00 par value per share (the "Preferred Stock"). As
set forth in this Article IV, the Board of Directors or any authorized committee
thereof is authorized from time to time to establish and designate one or more
series of Preferred Stock, to fix and determine the variations in the relative
rights and preferences as between the different series of Preferred Stock in the
manner hereinafter set forth in this Article IV, and to fix or alter the number
of shares comprising any such series and the designation thereof to the extent
permitted by law.
The number of authorized shares of the class of Preferred Stock may be
increased or decreased (but not below the number of shares outstanding) by the
affirmative vote of the holders of a majority of the Common Stock entitled to
vote, without a vote of the holders of the Preferred Stock, pursuant to the
resolution or resolutions establishing the class of Preferred Stock or this
Third Amended and Restated Certificate of Incorporation, as it may be amended
from time to time.
The powers, preferences, rights, qualifications, limitations and
restrictions granted to or imposed upon the Common Stock and the Preferred Stock
are as follows:
2
<PAGE>
A. COMMON STOCK
------------
1. Voting. Each holder of record shall be entitled to one vote for
------
each share of Common Stock standing in his name on the books of the Corporation.
2. Dividends. Subject to applicable law, the holders of Common Stock
---------
shall be entitled to receive dividends out of funds legally available therefor
at such times and in such amounts as the Board of Directors may determine in its
sole discretion, with each share of Common Stock sharing equally, share for
share, in such dividends.
3. Liquidation. Upon any liquidation, dissolution or winding up of
-----------
the Corporation, whether voluntary or involuntary (a "Liquidation Event"), after
the payment or provision for payment of all debts and liabilities of the
Corporation and all preferential amounts to which the holders of Preferred Stock
are entitled with respect to the distribution of assets in liquidation, the
holders of Common Stock shall be entitled to share ratably in the remaining
assets of the Corporation available for distribution.
4. Notices. In the event that the Corporation provides any notice,
-------
report or statement to any holder of Common Stock, the Corporation shall at the
same time provide a copy of any such notice, report or statement to each holder
of outstanding Common Stock.
B. PREFERRED STOCK.
---------------
1. Issuance. Subject to any limitations prescribed by law or this
--------
Certificate of Incorporation, the Board of Directors of the Corporation or an
authorized committee thereof is expressly authorized to provide for the issuance
of the shares of Preferred Stock in one or more classes or one or more series of
stock within any class, and by filing a certificate pursuant to applicable law
of the State of Delaware, to establish or change from time to time the number of
shares to be included in each such class or series, and to fix the designation,
voting powers, preferences, qualifications, privileges and rights of the shares
of each such class or series and any qualifications, limitations and
restrictions thereof. Any action of the Board of Directors or an authorized
committee thereof under this paragraph B shall require an affirmative vote of a
majority of the Directors then in office or a majority of the members of such
committee. The Board of Directors or an authorized committee thereof shall have
the right to determine or fix one or more of the following with respect to each
class or series of such Preferred Stock to the extent permitted by law:
(a) The distinctive class or serial designation and the number of
shares constituting such class or series;
3
<PAGE>
(b) The dividend rates or the amount of dividends to be paid on
the shares of such class or series, whether dividends shall be cumulative and,
if so, from which date or dates, the payment date or dates for dividends, and
the participating and other rights, if any, with respect to dividends;
(c) The voting powers, full or limited, if any, of the shares of
such class or series;
(d) Whether the shares of such class or series shall be redeemable
and, if so, the price or prices at which, and the terms and conditions on which,
such shares may be redeemed;
(e) The amount or amounts payable upon the shares of such class or
series and any preferences applicable thereto in the event of voluntary or
involuntary liquidation, dissolution or winding up of the Corporation;
(f) Whether the shares of such class or series shall be entitled
to the benefit of a sinking or retirement fund to be applied to the purchase or
redemption of such shares, and if so entitled, the amount of such fund and the
manner of its application, including the price or prices at which such shares
may be redeemed or purchased through the application of such fund;
(g) Whether the shares of such class or series shall be
convertible into, or exchangeable for, shares of any other class or classes or
of any other series of the same or any other class or classes of stock of the
Corporation and, if so convertible or exchangeable, the conversion price or
prices, or the rate or rates of exchange, and the adjustments thereof, if any,
at which such conversion or exchange may be made, and any other terms and
conditions of such conversion or exchange;
(h) The price or other consideration for which the shares of such
class or series shall be issued;
(i) Whether the shares of such class or series which are redeemed
or converted shall have the status of authorized but unissued shares of
Preferred Stock and whether such shares may be reissued as shares of the same or
any other class or series of stock; and
(j) Such other powers, preferences, rights, qualifications,
limitations and restrictions thereof as the Board of Directors of the
Corporation or an authorized committee thereof may deem advisable.
4
<PAGE>
Subject to the authority of the Board of Directors as set forth in
clause (i) above, any shares of Preferred Stock shall, upon reacquisition
thereof by the Corporation, be restored to the status of authorized but unissued
Preferred Stock under this paragraph B.
ARTICLE V
STOCKHOLDER ACTION
------------------
Any action required or permitted to be taken by the stockholders of
the Corporation at any annual or special meeting of stockholders of the
Corporation must be effected at a duly called annual or special meeting of
stockholders and may not be taken or effected by a written consent of
stockholders in lieu thereof.
ARTICLE VI
DIRECTORS
---------
1. General.
-------
The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors except as otherwise provided
herein or required by law.
2. Election of Directors.
---------------------
Election of Directors need not be by written ballot unless the
By-laws of the Corporation shall so provide.
3. Terms of Directors.
------------------
The number of Directors of the Corporation shall be fixed by
resolution duly adopted from time to time by the Board of Directors. The
Directors, other than those who may be elected by the holders of any series of
Preferred Stock of the Corporation, shall be classified, with respect to the
term for which they severally hold office, into three classes, as nearly equal
in number as possible. The initial Class I Directors of the Corporation shall
be Nemirovsky and Subramaniam; the initial Class II Directors of the Corporation
shall be Carnesale and Levy; and the initial Class III Directors of the
Corporation shall be Besier and Diaz. The initial Class I Directors shall serve
for a term expiring at the annual meeting of stockholders to be held in 1997,
the initial Class II Directors shall serve for a term expiring at the annual
meeting of stockholders to be held in 1998, and the initial Class III Directors
shall serve for a
5
<PAGE>
term expiring at the annual meeting of stockholders to be held in 1999. At each
annual meeting of stockholders, the successor or successors of the class of
Directors whose term expires at that meeting (other than Directors elected by
any series of Preferred Stock) shall be elected by a plurality of the votes cast
at such meeting and shall hold office for a term expiring at the annual meeting
of stockholders held in the third year following the year of their election. The
Directors elected to each class (other than Directors elected by any series of
Preferred Stock) shall hold office until their successors are duly elected and
qualified or until their earlier resignation or removal.
Notwithstanding the foregoing, whenever, pursuant to the provisions of
Article IV of this Third Amended and Restated Certificate of Incorporation, the
holders of any one or more series of Preferred Stock shall have the right,
voting separately as a series or together with holders of other such series, to
elect Directors at an annual or special meeting of stockholders, the election,
term of office, filling of vacancies and other features of such directorships
shall be governed by the terms of this Third Amended and Restated Certificate of
Incorporation and any certificate of designations applicable thereto, and such
Directors so elected shall not be divided into classes pursuant to this
Section 3.
During any period when the holders of any series of Preferred Stock
have the right to elect additional Directors as provided for or fixed pursuant
to the provisions of Article IV hereof, then upon commencement and for the
duration of the period during which such right continues: (i) the then otherwise
total authorized number of Directors of the Corporation shall automatically be
increased by such specified number of Directors, and the holders of such
Preferred Stock shall be entitled to elect the additional Directors so provided
for or fixed pursuant to said provisions, and (ii) each such additional Director
shall serve until such Director's successor shall have been duly elected and
qualified, or until such Director's right to hold such office terminates
pursuant to said provisions, whichever occurs earlier, subject to such
Director's earlier death, disqualification, resignation or removal. Except as
otherwise provided by the Board in the resolution or resolutions establishing
such series, whenever the holders of any series of Preferred Stock having such
right to elect additional Directors are divested of such right pursuant to the
provisions of such stock, the terms of office of all such additional Directors
elected by the holders of such stock, or elected to fill any vacancies resulting
from the death, resignation, disqualification or removal of such additional
Directors, shall forthwith terminate and the total and authorized number of
Directors of the Corporation shall be reduced accordingly.
4. Vacancies.
---------
Subject to the rights, if any, of the holders of any series of
Preferred Stock to elect Directors and to fill vacancies in the Board of
Directors relating thereto, any and all vacancies in the Board of Directors,
however occurring, including, without limitation, by reason of an
6
<PAGE>
increase in size of the Board of Directors, or the death, resignation,
disqualification or removal of a Director, shall be filled solely by the
affirmative vote of a majority of the remaining Directors then in office, even
if less than a quorum of the Board of Directors. Any Director appointed in
accordance with the preceding sentence shall hold office for the remainder of
the full term of the class of Directors in which the new directorship was
created or the vacancy occurred and until such Director's successor shall have
been duly elected and qualified or until his or her earlier resignation or
removal. Subject to the rights, if any, of the holders of any series of
Preferred Stock to elect Directors, when the number of Directors is increased or
decreased, the Board of Directors shall determine the class or classes to which
the increased or decreased number of Directors shall be apportioned; provided,
however, that no decrease in the number of Directors shall shorten the term of
any incumbent Director. In the event of a vacancy in the Board of Directors,
the remaining Directors, except as otherwise provided by law, may exercise the
powers of the full Board of Directors until the vacancy is filled.
5. Removal.
-------
Subject to the rights, if any, of any series of Preferred Stock to
elect Directors and to remove any Director whom the holders of any such stock
have the right to elect, any Director (including persons elected by Directors to
fill vacancies in the Board of Directors) may be removed from office (i) only
with cause and (ii) only by the affirmative vote of at least two-thirds of the
total votes which would be eligible to be cast by stockholders in the election
of such Director. At least 30 days prior to any meeting of stockholders at
which it is proposed that any Director be removed from office, written notice of
such proposed removal shall be sent to the Director whose removal will be
considered at the meeting. For purposes of this Third Amended and Restated
Certificate of Incorporation, "cause," with respect to the removal of any
Director shall include (i) conviction of a felony, (ii) declaration of unsound
mind by order of court, (iii) gross dereliction of duty, (iv) commission of any
action involving moral turpitude, or (v) commission of an action which
constitutes intentional misconduct or a knowing violation of law if such action
in either event results both in an improper substantial personal benefit and a
material injury to the Corporation.
ARTICLE VII
LIMITATION OF LIABILITY
-----------------------
A Director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a Director, except for liability (i) for any breach of the Director's
duty of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional
7
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misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL or
(iv) for any transaction from which the Director derived an improper personal
benefit. If the DGCL is amended after the effective date of this Third Amended
and Restated Certificate of Incorporation to authorize corporate action further
eliminating or limiting the personal liability of Directors, then the liability
of a Director of the Corporation shall be eliminated or limited to the fullest
extent permitted by the DGCL, as so amended.
Any repeal or modification of this Article VII by either of (i) the
stockholders of the Corporation or (ii) an amendment to the DGCL, shall not
adversely affect any right or protection existing at the time of such repeal or
modification with respect to any acts or omissions occurring before such repeal
or modification of a person serving as a Director at the time of such repeal or
modification.
ARTICLE VIII
AMENDMENT OF BY-LAWS
--------------------
1. Amendment by Directors.
----------------------
Except as otherwise provided by law, the By-laws of the Corporation
may be amended or repealed by the Board of Directors by the affirmative vote of
a majority of the Directors then in office.
2. Amendment by Stockholders.
-------------------------
The By-laws of the Corporation may be amended or repealed at any
annual meeting of stockholders, or special meeting of stockholders called for
such purpose, by the affirmative vote of at least two-thirds of the shares
present in person or represented by proxy at such meeting and entitled to vote
on such amendment or repeal, voting together as a single class; provided,
however, that if the Board of Directors recommends that stockholders approve
such amendment or repeal at such meeting of stockholders, such amendment or
repeal shall only require the affirmative vote of a majority of the shares
present in person or represented by proxy at such meeting and entitled to vote
on such amendment or repeal, voting together as a single class.
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ARTICLE IX
AMENDMENT OF CERTIFICATE OF INCORPORATION
-----------------------------------------
The Corporation reserves the right to amend or repeal this Third
Amended and Restated Certificate of Incorporation in the manner now or hereafter
prescribed by statute and this Third Amended and Restated Certificate of
Incorporation, and all rights conferred upon stockholders herein are granted
subject to this reservation. No amendment or repeal of this Third Amended and
Restated Certificate of Incorporation shall be made unless the same is first
approved by the Board of Directors pursuant to a resolution adopted by the Board
of Directors in accordance with Section 242 of the DGCL, and, except as
otherwise provided by law, thereafter approved by the stockholders. Whenever
any vote of the holders of voting stock is required to amend or repeal any
provision of this Third Amended and Restated Certificate of Incorporation, and
in addition to any other vote of holders of voting stock that is required by
this Third Amended and Restated Certificate of Incorporation, or by law, the
affirmative vote of a majority of the shares present in person or represented by
proxy at a duly constituted meeting of stockholders called expressly for such
purpose, which shares are entitled to vote on such amendment or repeal, voting
together as a single class, shall be required to amend or repeal any provisions
of this Third Amended and Restated Certificate of Incorporation; provided,
however, that the affirmative vote of not less than 80% of the shares present in
person or represented by proxy at such meeting and entitled to vote on such
amendment or such repeal, voting together a single class, shall be required to
amend or repeal any of the provisions of Article V, Article VI, Article VII or
Article IX of this Third Amended and Restated Certificate of Incorporation.
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I, Klaus P. Besier, President of the Corporation, for the purpose of
amending and restating the Corporation's Certificate of Incorporation pursuant
to the General Corporation Law of the State of Delaware, do make this
certificate, hereby declaring and certifying that this is my act and deed on
behalf of the Corporation this 8th day of July, 1996.
/s/ Klaus P. Besier
----------------------------------
Klaus P. Besier, President and CEO
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EXHIBIT 5.1
July 26, 1996
OneWave, Inc.
One Arsenal Marketplace
Watertown, MA 02172
Re: Legality of Securities to be Registered Under
Registration Statement on Form S-8
-----------------------------------------------
Ladies and Gentlemen:
This opinion is furnished in connection with the filing of a Registration
Statement on Form S-8 (the "Registration Statement"), pursuant to the Securities
Act of 1933, as amended (the "Securities Act"), of 4,233,334 shares (the
"Shares") of common stock, par value $.001 per share (the "Common Stock"), of
OneWave, Inc., a Delaware corporation (the "Company").
In connection with rendering this opinion, we have examined the Third
Amended and Restated Certificate of Incorporation of the Company, as amended and
restated to the date hereof and on file with the Delaware Secretary of State;
the Amended and Restated By-laws of the Company; such records of the corporate
proceedings of the Company as we deem appropriate for the purposes of this
opinion; the Registration Statement; and the OneWave, Inc. 1995 Stock Plan,
OneWave, Inc. 1996 Stock Plan and OneWave, Inc. Employee Stock Purchase Plan
(the "Plans").
We are attorneys admitted to practice in The Commonwealth of Massachusetts.
We express no opinion concerning the laws of any jurisdictions other than the
laws of the United States of America, the laws of The Commonwealth of
Massachusetts and the Delaware General Corporation Law.
Based upon the foregoing, we are of the opinion that when the Shares have
been issued and paid for in accordance with the terms of the Plans, such Shares
will be duly authorized, validly issued, fully paid and non-assessable.
The foregoing assumes that all requisite steps will be taken to comply with
the requirements of the Securities Act and applicable requirements of state laws
regulating the offer and sale of securities.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Goodwin, Procter & Hoar LLP
GOODWIN, PROCTER & HOAR LLP
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in the Registration Statement on Form S-8, pertaining to the OneWave,
Inc. 1995 Stock Plan, 1996 Stock Plan and Employee Stock Purchase Plan, of our
reports on the financial statements included in the Company's Registration
Statement on Form S-1 (File No. 333-04235).
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Boston, Massachusetts
July 25, 1996
