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As filed with the Securities and Exchange Commission on June 6, 2000
Registration No. 333-________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
INTERWAVE COMMUNICATIONS INTERNATIONAL, LTD.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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<S> <C> <C>
BERMUDA 3663 98-0155633
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER INDENTIFICATION
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) NUMBER)
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CLARENDON HOUSE, 2 CHURCH STREET
P.O. BOX HM 1022
HAMILTON HM DX, BERMUDA
(441) 295-5950
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
1994 STOCK PLAN
1999 OPTION PLAN
1999 EMPLOYEE SHARE PURCHASE PLAN
(FULL TITLE OF THE PLANS)
THOMAS W. HUBBS
INTERWAVE COMMUNICATIONS, INC.
312 CONSTITUTION DRIVE
MENLO PARK, CA 94025-1164
(650) 838-2000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE
AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
COPY TO:
CHRISTOPHER D. MITCHELL, ESQ.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CALIFORNIA 94304-1050
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
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, check the following box. /X/
CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TO BE OFFERING AGGREGATE REGISTRATION
TITLE OF SECURITIES TO BE REGISTERED REGISTERED PRICE PER SHARE OFFERING PRICE FEE
------------------------------------------------------ ------------------ ------------------- ------------------- ----------------
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1994 Stock Plan Common Shares,
(currently outstanding options) (1) 5,330,046 $ 2.75 $14,657,627 $3,870
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------------------------------------------------------ ------------------ ------------------- ------------------- ----------------
1999 Option Plan Common Shares,
(currently outstanding options) (1) 359,000 $18.48 $ 6,634,320 $1,752
------------------------------------------------------ ------------------ ------------------- ------------------- ----------------
1999 Option Plan Common Shares,
(options available for future grant) (2) 1,468,763 $ 8.59 $12,622,255 $3,332
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TOTAL 1999 STOCK PLAN SHARES REGISTERED: 1,827,763 $10.54 $19,256,575 $5,084
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1999 Employee Share Purchase Plan Common Shares (1)
(currently outstanding options) 40,960 $11.05 $ 384,717 $ 101
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1999 Employee Share Purchase Plan Common Shares (3)
(options available for future grant) 259,040 $ 8.59 $ 1,892,217 $ 500
------------------------------------------------------ ------------------ ------------------- ------------------- ----------------
TOTAL 1999 EMPLOYEE SHARE PURCHASE PLAN SHARES
REGISTERED: 300,000 $ 7.59 $ 2,276,934 $ 601
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Total Maximum Aggregate Offering Price $36,191,136
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TOTAL REGISTRATION FEES: $9,555
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(1) The Proposed Maximum Offering Price Per Share has been computed in
accordance with Rule 457(h) under the Securities Act of 1933 solely for the
purpose of calculating the registration fee and is based upon the weighted
average exercise price per share of approximately $2.75 as to 5,330,046
outstanding but unexercised options to purchase Common Shares under the
1994 Stock Plan, approximately $18.48 as to 359,000 outstanding but
unexercised options to purchase Common Shares under the 1999 Option Plan
and approximately $11.05 as to 40,960 Employee Share Purchase Plan Common
Shares.
(2) The Proposed Maximum Offering Price Per Share has been estimated in
accordance with Rule 457(c) under the Securities Act of 1933 as to the
remaining 1,468,763 Common Shares authorized for issuance pursuant to the
1999 Option Plan, solely for the purpose of calculating the registration
fee. No options have been granted with respect to such shares. The
computation is based upon the average of the high and low price of the
Common Shares as reported on the Nasdaq National Market on May 30, 2000
because the price at which the options to be granted in the future may be
exercised is not currently determinable.
(3) The Proposed Maximum Offering Price Per Share has been estimated in
accordance with Rule 457(h) under the Securities Act of 1933 solely for the
purpose of calculating the registration fee. The computation is based upon
85% (see explanation in following sentence) of the average of the high and
low price of the Common Shares as reported on the Nasdaq National Market on
May 30, 2000 because the price at which the options to be granted in the
future may be exercised is not currently determinable. Pursuant to the 1999
Employee Share Purchase Plan, which plan is incorporated by reference
herein, the Purchase Price of a Common Share shall mean an amount equal to
85% of the Fair Market Value of a Common Share on the Enrollment Date or
the Exercise Date, whichever is lower.
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INTERWAVE COMMUNICATIONS INTERNATIONAL, LTD.
REGISTRATION STATEMENT ON FORM S-8
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. PLAN INFORMATION.
Not required to be filed with this Registration Statement.
Item 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not required to be filed with this Registration Statement.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
There are hereby incorporated by reference in this Registration
Statement the following documents and information heretofore filed with the
Securities and Exchange Commission:
(a) The Registrant's Registration Statement on Form F-1, dated
January 28, 2000 and related Prospectus dated January 31, 2000
filed pursuant to Rule 424(b)(4) under the Securities Act of
1933 on January 31, 2000.
(b) The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended December 31, 1999 and March 31, 2000.
(c) The description of the Registrant's Common Shares contained in
the Registration Statement on Form 8-A filed pursuant to Section
12 of the Exchange Act on January 24, 2000.
(d) All documents filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities and Exchange Act of 1934,
as amended (the "Exchange Act") on or after the date of this
Registration Statement and 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 hereof from the
date of filing of such documents.
Item 4. DESCRIPTION OF SECURITIES.
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Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the securities being registered by this Registration
Statement will be passed upon for the Company by Conyers Dill & Pearman,
Bermuda. Certain legal matters relating to the securities being registered are
being passed upon for us by Wilson Sonsini Goodrich & Rosati, Professional
Corporation, Palo Alto, California. As of the date of this Registration
Statement, certain employees of Wilson Sonsini Goodrich & Rosati, own an
aggregate of 18,000 of the Registrant's common shares.
Mario M. Rosati and Christopher D. Mitchell, members of Wilson Sonsini
Goodrich & Rosati, are Secretary and Assistant Secretary, respectively, of the
Registrant.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant has adopted provisions in its bye-laws that eliminate
the personal liability of its directors and officers for monetary damages
arising from a breach of their fiduciary duties in certain circumstances to the
fullest extent permitted by law and authorizes the Registrant to indemnify its
directors and officers to the fullest extent permitted by law.
The Registrant's bye-laws provide that the Registrant's shareholders
agree to waive any claims or right of actions the shareholders may have against
any of its directors or executive officers on account of any action taken by the
directors or executive officers in their capacity for the Registrant. This
waiver does not apply to claims arising under the U.S. federal securities laws.
In addition, the Registrant's bye-laws permit the Registrant to secure insurance
on behalf of any officer, director, employee or other agent for any liability
arising out of his or her actions in such capacity, regardless of whether the
bye-laws expressly permit indemnification.
The Registrant has entered into indemnification agreements with its
officers and directors which may require the Company, among other things, to
indemnify such officers and directors against certain liabilities that may arise
by reason of their status or service as directors or officers (other than
liabilities arising from willful misconduct of a culpable nature) and to advance
their expenses incurred as a result of any proceeding against them as to which
they could be indemnified.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
Item 8. EXHIBITS.
The Exhibits listed on the accompanying Index to Exhibits are filed as
part hereof, or incorporated by reference into, this Registration Statement.
(See Index below).
Item 9. UNDERTAKINGS.
A. The undersigned registrant hereby undertakes:
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(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement 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.
(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 (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant, interWAVE Communications International, Ltd., 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
Menlo Park, State of California, on June 5, 2000.
INTERWAVE COMMUNICATIONS
INTERNATIONAL, LTD.
By: /s/ Priscilla M. Lu
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Priscilla M. Lu
Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Priscilla M. Lu and Thomas W. Hubbs,
jointly and severally, his attorneys-in-fact, each with the power of
substitution, for him in any and all capacities to sign any amendments to this
Registration Statement on Form S-8, and to file the same, with exhibits thereto
and other documents in connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that each of said
attorneys-in-fact, or his substitute or substitutes, may do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
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SIGNATURE TITLE DATE
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/s/ Priscilla M. Lu
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Priscilla M. Lu Authorized Representative June 5, 2000
/s/ Priscilla M. Lu
---------------------------------------- Chief Executive Officer and Chairman of the Board
Priscilla M. Lu (Principal Executive Officer) June 5, 2000
/s/ Thomas W. Hubbs
---------------------------------------- Executive Vice President and Chief Financial
Thomas W. Hubbs Officer (Principal Financial and Accounting Officer) June 5, 2000
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Pascal Debon Director May __, 2000
/s/ Kevin Fong
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Kevin Fong Director May 31, 2000
/s/ William J. Harding
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William J. Harding Director May 31, 2000
/s/ James Loh
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James Loh Director May 31, 2000
/s/ Moses Tsang
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Moses Tsang Director May 31, 2000
/s/ Lork Sang Chow
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Lork Sang Chow Director May 31, 2000
/s/ Andrew Wang
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Andrew Wang Director May 31, 2000
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INTERWAVE COMMUNICATIONS INTERNATIONAL, LTD.
REGISTRATION STATEMENT ON FORM S-8
INDEX TO EXHIBITS
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EXHIBIT DESCRIPTION
NO.
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5.1 Opinion of counsel as to legality of securities being
registered.
*10.1 Form of Indemnification Agreement between the Company and each of
its Directors and Officers
*10.2 1994 Stock Plan and form of stock option agreement and restricted
stock purchase agreement
*10.3 1999 Option Plan and form of subscription agreement
*10.4 1999 Employee Share Purchase Plan and form of subscription agreement
23.1 Consent of KPMG LLP.
23.2 Consent of counsel (contained in Exhibit 5.1).
24.1 Power of Attorney (see page II-5).
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* Incorporated by reference to the same number exhibit filed with Registrant's
Registration Statement on Form F-1 (File No. 333-92967), as amended.
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