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As filed with the Securities and Exchange Commission on October 8, 1998
Registration No. 333-__________
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SECURITIES AND EXCHANGE COMMISSION
Washington. D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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POWERWAVE TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
Delaware 11-2723423
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
2026 McGaw Avenue, Irvine, California 92614
(Address of Principal Executive Offices) (Zip Code)
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1996 STOCK INCENTIVE PLAN
1996 DIRECTOR STOCK OPTION PLAN
(Full titles of the plans)
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Nick E. Yocca, Esq.
Stradling Yocca Carlson & Rauth, a Professional Corporation
660 Newport Center Drive, Suite 1600, Newport Beach, California 92660
(949) 725-4000
(Telephone number, including area code, of agent for service)
Copies to:
Bruce C. Edwards
President and Chief Executive Officer
Powerwave Technologies, Inc.
2026 McGaw Avenue, Irvine, California 92614
(949) 757-0530
Page 1 of 6 Pages
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Title of Securities Amount To Be Proposed Maximum Proposed Maximum Amount of
To Be Registered Registered(1) Offering Aggregate Offering Price Registration Fee
Price Per Share
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<S> <C> <C> <C> <C>
Common Stock,
$0.0001 par value 1,700,000 shares $7.61(2) $12,937,000(2) $3,816.42
====================================================================================================================
</TABLE>
(1) Includes additional shares of Common Stock that may become issuable
pursuant to the anti-dilution adjustment provisions of the 1996 Stock
Incentive Plan (the "1996 Plan") and the 1996 Directors Stock Option Plan
(the "Directors Plan").
(2) In accordance with Rule 457(h), the aggregate offering price of the
1,700,000 shares of Common Stock issuable under the 1996 Plan and the
Directors Plan registered hereby is estimated, solely for purposes of
calculating the registration fee, on the basis of the price of securities
of the same class, as determined in accordance with Rule 457(c), using the
average of the high and low price reported by the Nasdaq Market for the
Common Stock on October 6, 1998, which was $7.61 per share.
2
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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The following documents are incorporated herein by reference:
(a) The Registrant's Prospectus dated December 6, 1996 filed pursuant to
Rule 424(b) of the Securities Act of 1933, as amended (the "Act").
(b) All other reports filed by the Registrant pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
since the end of the fiscal year covered by the Prospectus referred to in (a)
above.
(c) The description of the Registrant's Common Stock that is contained in
the Registrant's Registration Statement on Form 8-A filed under Section 12 of
the Exchange Act, including any amendment or report filed for the purpose of
updating that description.
(d) All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-
effective amendment which indicates that all securities offered have been sold
or which deregisters all of such securities then remaining unsold, shall be
deemed to be incorporated herein by reference and to be a part hereof from the
date of filing of such documents, except as to any portion of any future annual
or quarterly report to shareholders or document that is not deemed filed under
such provisions. For the purposes of this registration statement, any statement
in a document incorporated by reference shall be deemed to be modified or
superseded to the extent that a statement contained in this registration
statement modifies or supersedes a statement in such document. Any 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.
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(a) As permitted by the Delaware General Corporation Law, the Registrant's
Amended and Restated Certificate of Incorporation eliminates the liability of
directors to the Registrant or its shareholders for monetary damages for breach
of fiduciary duty as a director, except to the extent otherwise required by the
Delaware General Corporation Law.
(b) The Registrant's Amended and Restated Bylaws provide that the
Registrant will indemnify each person who was or is made a party to any
proceeding by reason of the fact that such person is or was a director or
officer of the Registrant against all expense, liability and loss reasonably
incurred or suffered by such person in connection therewith to the fullest
extent authorized by the Delaware General Corporation Law.
(c) The Amended and Restated Bylaws also gives the Registrant the ability
to enter into indemnification agreements with each of its officers and
directors. The Registrant has entered into indemnification agreements with each
of its directors and executive officers. The indemnification agreements provide
for the indemnification of directors and officers of the against any and all
expenses, judgments, fines, penalties and amounts paid in settlement, to the
fullest extent permitted by law.
Item 7. Exemption from Registration Claimed.
- --------------------------------------------
Not applicable.
3
<PAGE>
Item 8. Exhibits.
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The following exhibits are filed as part of this Registration Statement:
Number Description
------ -----------
4.1 Powerwave Technologies, Inc. 1996 Stock Incentive Plan
(incorporated by reference to Exhibit 10.4 to the Company's
Registration Statement on Form S-1, Registration No. 333-13679).
4.2 Form of Stock Option Agreement for the 1996 Plan (incorporated
by reference to Exhibit 10.5 to the Company's Registration
Statement on Form S-1, Registration No. 333-13679).
4.3 Form of Restricted Stock Purchase Agreement for the 1996 Plan
(incorporated by reference to Exhibit 10.6 to the Company's
Registration Statement on Form S-1, Registration No. 333-13679).
4.4 Powerwave Technologies, Inc. 1996 Director Stock Option Plan
(incorporated by reference to Exhibit 10.7 to the Company's
Registration Statement on Form S-1, Registration No. 333-13679).
4.5 Form of Stock Option Agreement for the Director Plan
(incorporated by reference to Exhibit 10.8 to the Company's
Registration Statement on Form S-1, Registration No. 333-13679).
4.6 Amendment No. 2 to Powerwave Technologies, Inc. 1996 Stock
Incentive Plan.
4.7 Amendment No. 1 to Powerwave Technologies, Inc. 1996 Director
Stock Option Plan.
5.1 Opinion of Stradling Yocca Carlson & Rauth, a Professional
Corporation, Counsel to the Registrant.
23.1 Consent of Stradling Yocca Carlson & Rauth, a Professional
Corporation (included in the Opinion filed as Exhibit 5.1).
23.2 Consent of Deloitte & Touche LLP, independent auditors.
24.1 Power of Attorney (included on signature page to the Registration
Statement at page S-1).
4
<PAGE>
Item 9. Undertakings.
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(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;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this 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;
(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) shall not
-------- -------
apply if the information required to be included in a post-effective amendment
by these paragraphs is contained in periodic reports filed by the registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time 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, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act 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 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 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 and will be governed by the final adjudication of such issue.
5
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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 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 Irvine, State of California, on the 8th day of
October, 1998.
POWERWAVE TECHNOLOGIES, INC.
By: /s/ Bruce C. Edwards
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Bruce C. Edwards
President and Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Powerwave Technologies, Inc.,
do hereby constitute and appoint Bruce C. Edwards and Kevin T. Michaels, or
either of them, our true and lawful attorneys-in-fact and agents, each with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments to this
Registration Statement, and to file the same, with exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite or
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that each of said attorneys-in-fact and agents, 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 and on the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Alfonso G. Cordero Chairman of the Board October 8, 1998
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Alfonso G. Cordero
/s/ John L. Clendenin Director October 8, 1998
- ------------------------------------
John L. Clendenin
/s/ Bruce C. Edwards President, Chief Executive Officer and October 8, 1998
- ------------------------------------ Director (Principal Executive Officer)
Bruce C. Edwards
/s/ Eugene L. Goda Director October 8, 1998
- ------------------------------------
Eugene L. Goda
/s/ David L. George Director October 8, 1998
- ------------------------------------
David L. George
/s/ Andrew J. Sukawaty Director October 8, 1998
- ------------------------------------
Andrew J. Sukawaty
</TABLE>
S-1
<PAGE>
EXHIBIT 4.6
AMENDMENT NO. 2 TO POWERWAVE TECHNOLOGIES, INC.
1996 STOCK INCENTIVE PLAN
Adopted August 4, 1998
Section 4.1 of the POWERWAVE TECHNOLOGIES, INC. 1996 STOCK INCENTIVE PLAN
(the "Plan") is amended and restated in its entirety to read as follows:
"4.1 Shares Subject to the Plan. The total number of shares of Common
Stock which may be issued under the Plan shall be equal to 3,000,000 shares,
plus such number of additional shares as shall be available for grant under the
Company's 1995 Stock Option Plan, including shares underlying lapsed options
granted thereunder subject to adjustment as to the number and kind of shares
pursuant to Section 4.2 hereof. For purposes of this limitation, in the event
that (a) all or any portion of any Option or Right to Purchase granted or
offered under the Plan can no longer under any circumstances be exercised, or
(b) any shares of Common Stock are reacquired by the Company pursuant to an
Incentive Option Agreement, Nonqualified Option Agreement or Stock Purchase
Agreement, the shares of Common Stock allocable to the unexercised portion of
such Option or such Right to Purchase, or the shares so reacquired, shall again
be available for grant or issuance under the Plan."
<PAGE>
EXHIBIT 4.7
AMENDMENT NO. 1 TO POWERWAVE TECHNOLOGIES, INC.,
1996 DIRECTOR STOCK OPTION PLAN
Adopted August 4, 1998
Section 3 of the POWERWAVE TECHNOLOGIES, INC. 1996 DIRECTOR STOCK OPTION
PLAN (the "Plan") is amended and restated in its entirety to read as follows:
"3. Stock Subject to the Plan. Subject to the provisions of Section 10 of
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the Plan, the maximum aggregate number of Shares which may be optioned and sold
under the Plan is 400,000 Shares (the "Pool") of Common Stock. The Shares may
be authorized but unissued, or reacquired Common Stock.
If an Option should expire or become unexercisable for any reason
without having been exercised in full, the unpurchased Shares which were subject
thereto shall, unless the Plan shall have been terminated, become available for
future grant under the Plan."
<PAGE>
EXHIBIT 5.1
Stradling Yocca Carlson & Rauth
A PROFESSIONAL CORPORATION SAN FRANCISCO OFFICE
ATTORNEYS AT LAW 44 MONTGOMERY STREET, SUITE 2950
660 NEWPORT CENTER DRIVE, SUITE 1600 SAN FRANCISCO, CALIFORNIA 94104
NEWPORT BEACH, CALIFORNIA 92660-6441 TELEPHONE (415) 765-9180
TELEPHONE (949) 725-4000 FACSIMILE (415) 765-9187
FACSIMILE (949) 725-4100
October 7, 1998
Powerwave Technologies, Inc.
2026 McGaw Avenue
Irvine, California 92614
Re: Registration Statement on Form S-8 (Director Stock Option Plan
and 1996 Stock Incentive Plan)
Ladies and Gentlemen:
At your request, we have examined the form of Registration Statement on
Form S-8 (the "Registration Statement") being filed by Powerwave Technologies,
Inc., a Delaware corporation (the "Company"), with the Securities and Exchange
Commission in connection with the registration under the Securities Act of 1933,
as amended, of an aggregate of 200,000 shares of the Company's common stock,
$.0001 par value ("Common Stock"), issuable under the Company's Director Stock
Option Plan (the "Director Plan") and 1,500,000 shares of the Company's Common
Stock issuable under the 1996 Stock Incentive Plan (the "1996 Plan").
We have examined the proceedings heretofore taken and are familiar with the
additional proceedings proposed to be taken by the Company in connection with
the authorization, issuance and sale of the securities referred to above.
Based on the foregoing, it is our opinion that:
1. Stock options, when issued in accordance with the Director Plan and
1996 Plan, will be legally issued and binding obligations of the Company; and
2. 1,700,000 shares of Common Stock, when issued under the Director Plan
and 1996 Plan and against full payment therefor in accordance with the
respective terms and conditions of the Director Plan and 1996 Plan, will be
legally and validly issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/s/ STRADLING YOCCA CARLSON & RAUTH
<PAGE>
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in the Registration Statement (No.
333-20549) of Powerwave Technologies, Inc. on Form S-8 of our reports dated
January 14, 1998, appearing in the Annual Report on Form 10-K for the year
ended December 28, 1997.
DELOITTE & TOUCHE LLP
Costa Mesa, California
October 7, 1998
