<PAGE>
As filed with the Securities and Exchange Commission on August 31, 2000
Registration No. 333-
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
____________________
WESTERN MULTIPLEX CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
<TABLE>
<S> <C>
Delaware 59-219-8231
(State or Other Jurisdiction of (I.R.S. Employer Identification Number)
Incorporation or Organization)
</TABLE>
1196 Borregas Avenue
Sunnyvale, California 94089
(Address, including Zip Code, of Registrant's Principal Executive Offices)
Western Multiplex Corporation 2000 Stock Option Plan for Non-Employee Directors
Western Multiplex Corporation Employee Stock Purchase Plan
1999 Western Multiplex Corporation Stock Incentive Plan
Ubiquity Communication, Inc. 1999 Stock Plan
Ubiquity Communication, Inc. 1998 Stock Plan
Ubiquity Communication, Inc. 1997 Stock Option Plan
(Full Title of the Plan)
____________________
Jonathan N. Zakin
Chief Executive Officer
Western Multiplex Corporation
1196 Borregas Avenue
Sunnyvale, California 94089
(408) 542-5200
(Name, Address, including Zip Code, and
Telephone Number, including Area Code, of Registrant's Agent for Service)
With Copies to:
William B. Brentani, Esq.
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
(212) 455-2000
____________________
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration Statement.
CALCULATION OF REGISTRATION FEE
===============================================================================
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<S> <C> <C> <C> <C>
Proposed Proposed
Maximum Maximum Amount of
Amount to be Offering Price Aggregate Offering Registration
Title of Securities to be Registered Registered Per Share(3) Price(3) Fee(3)
_________________________________________________________________________________________________________________________________
Stock options and Class A common stock,
par value $.01 per share 6,498,727 (1) $3.18 $20,665,951.86 $5,455.81
---------------------------------------------------------------------------------------------------------------------------------
Stock options and Class A common stock, 6,639,000 (2) $14.88 $98,788,320.00 $26,080.12
par value $.01 per share
=================================================================================================================================
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(1) Represents all shares reserved for issuance upon the exercise of options
under the Western Multiplex Corporation 2000 Stock Option Plan for Non-
Employee Directors, 1999 Western Multiplex Corporation Stock Incentive
Plan, Ubiquity Communication, Inc. 1999 Stock Plan, Ubiquity Communication,
Inc. 1998 Stock Plan and Ubiquity Communication, Inc. 1997 Stock Option
Plan, which are currently outstanding.
(2) Represents all shares reserved for issuance upon the exercise of options
reserved for grant under the Western Multiplex Corporation 2000 Stock
Option Plan for Non-Employee Directors, Western Multiplex Corporation
Employee Stock Purchase Plan and 1999 Western Multiplex Corporation Stock
Incentive Plan.
(3) Pursuant to Rule 457(h) under the Securities Act of 1933, the proposed
maximum offering price per share, the proposed maximum aggregate offering
price and the amount of registration fee have been computed as follows: (a)
with respect to 6,498,727 shares of Class A common stock as to which
outstanding options were granted prior to the date of this Registration
Statement, the registration fee is based on the weighted average exercise
price per share of $3.18 and (b) with respect to the balance of 6,639,00
shares being registered, the registration fee is based on a price of $14.88
per share, which is the average of the high and low prices of the Class A
common stock on the Nasdaq National Market on August 28, 2000 (within 5
business days before the filing date of this Registration Statement).
===============================================================================
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
Not required in the Registration Statement.
Item 2. Registrant Information and Employee Plan Annual Information.
Not required in the Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, previously filed by Western Multiplex Corporation
(the "Company" or the "Registrant") with the Securities and Exchange Commission
(the "Commission") are hereby incorporated by reference in this Registration
Statement:
(a) The Registrant's Prospectus filed on August 1, 2000 pursuant to Rule
424(b) of the Securities Act of 1933, as amended (the "Securities
Act"), which contains audited financial statements for the
Registrant's latest fiscal year for which such statements have been
filed. (File No. 333-35200).
(b) None.
(c) The description of the Registrant's Class A common stock contained in
the Registrant's Registration Statement on Form 8-A filed with the
Commission under Section 12 of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), on July 11, 2000, including any
amendment or report filed for the purpose of updating such
description.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 and
15(d) of the Exchange Act, after the date of this Registration Statement and
prior to the filing of a post-effective amendment to this Registration Statement
indicating that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference into 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 to be incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any subsequently filed document which also is
or is 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.
See Item 3(c) above.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
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Item 6. Indemnification of Directors and Officers.
Reference is made to Section 102(b)(7) of the Delaware General Corporation
Law (the "DGCL"), which enables a corporation in its original certificate of
incorporation or an amendment to its certificate of incorporation to eliminate
or limit the personal liability of a director for monetary damages for
violations of the director's fiduciary duty, except (1) for any breach of a
director's duty of loyalty to the corporation or its stockholders, (2) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (3) pursuant to Section 174 of the DGCL, providing for
liability of directors for unlawful payment of dividends or unlawful stock
purchases or redemption, or (4) for any transaction from which a director
derived an improper personal benefit.
Reference also is made to Section 145 of the DGCL which provides that a
corporation may indemnify any persons, including officers and directors, who
are, or are threatened to be made, parties to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, other than an action by or in the right of the corporation, by
reason of the fact that the person was an officer, director, employee or agent
of the corporation, or is or was serving at the request of the corporation or
other enterprise. The indemnity may include expenses, including attorneys' fees,
judgments, fines and amounts paid in settlement actually and reasonably incurred
by the person in connection with the action, suit or proceeding, provided the
officer, director, employee or agent acted in good faith and in a manner he
reasonably believed to be in or not opposed to the corporation's best interests
and, for a criminal proceeding, had no reasonable cause to believe that his
conduct was unlawful. A Delaware corporation may indemnify officers and
directors in an action by or in the right of the corporation under the same
conditions, except that no indemnification is permitted without judicial
approval if the officer or director is adjudged to be liable to the corporation.
Where an officer or director is successful on the merits or otherwise in the
defense of any action referred to above, the corporation must indemnify him
against the expenses, including attorneys' fees, which the officer or director
actually and reasonably incurred.
The Amended and Restated Certificate of Incorporation of the Registrant
provides for indemnification of officers and directors to the fullest extent
permitted by applicable law.
In addition, the Registrant has also entered into employment agreements with
some of its officers and directors which provide for their indemnification with
respect to certain matters. The Registrant has purchased directors' and
officers' liability insurance for all of its directors and executive officers.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The following exhibits are filed pursuant to Item 601 of Regulation S-K.
Exhibit No. Description of Exhibit
----------- ----------------------
4.1 Form of Amended and Restated Articles of Incorporation of the
Registrant (incorporated herein by reference to Exhibit 3.1 of
Amendment No. 2 to the Registration Statement on Form S-1 filed with
the Commission on June 9, 2000 (File No. 333-35200)).
4.2 Form of Amended and Restated By-laws of the Registrant (incorporated
herein by reference to Exhibit 3.2 of Amendment No. 2 to the
Registration Statement on Form S-1 filed with the Commission on June 9,
2000 (File No. 333-35200)).
5.1* Opinion of Simpson Thacher & Bartlett.
23.1* Consent of Independent Public Accountants.
2
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24.1 Power of Attorney (included on signature page to this Registration
Statement).
99.1 1999 Western Multiplex Corporation Stock Incentive Plan (incorporated
herein by reference to Exhibit 10.15 of Amendment No. 1 to the
Registration Statement on Form S-1 filed with the Commission on May 5,
2000 (File No. 333-35200)).
99.2 Western Multiplex Corporation Employee Stock Purchase Plan
(incorporated herein by reference to Exhibit 10.16 of Amendment No. 2
to the Registration Statement on Form S-1 filed with the Commission on
June 9, 2000 (File No. 333-35200)).
99.3 Western Multiplex Corporation 2000 Stock Option Plan for Non-Employee
Directors (incorporated herein by reference to Exhibit 10.17 of
Amendment No. 2 to the Registration Statement on Form S-1 filed with
the Commission on June 9, 2000 (File No. 333-35200)).
99.4 Amendment No. 1 to 1999 Western Multiplex Corporation Stock Incentive
Plan, dated June 8, 2000 (incorporated herein by reference to Exhibit
10.28 of Amendment No. 2 to the Registration Statement on Form S-1
filed with the Commission on June 9, 2000 (File No. 333-35200)).
99.5 Ubiquity Communication, Inc. 1997 Stock Option Plan (incorporated
herein by reference to Exhibit 10.31 of Amendment No. 3 to the
Registration Statement on Form S-1 filed with the Commission of July
3, 2000 (File No. 333-35200)).
99.6 Ubiquity Communication, Inc. 1998 Stock Plan (incorporated herein by
reference to Exhibit 10.32 of Amendment No. 3 to the Registration
Statement on Form S-1 filed with the Commission on July 3, 2000 (File
No. 333-35200)).
99.7 Ubiquity Communication, Inc. 1999 Stock Plan (incorporated herein by
reference to Exhibit 10.33 of Amendment No. 3 to the Registration
Statement on Form S-1 filed with the Commission on July 3, 2000 (File
No. 333-35200)).
99.8 Amendment No. 1 to Western Multiplex Corporation 2000 Stock Option
Plan for Non-Employee Directors, dated June 19, 2000 (incorporated
herein by reference to Exhibit 10.34 of Amendment No. 3 to the
Registration Statement on Form S-1 filed with the Commission on July
3, 2000 (File No. 333-35200)).
_______________
* Filed herewith.
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 to include any
material information with respect to the plan of distribution not
previously disclosed herein or any material change to such information in
this Registration Statement.
(2) That, for the purposes 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 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 this Registration Statement shall be deemed to be a new
3
<PAGE>
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 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.
4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 New York, State of New York, on this 31st day of
August, 2000.
WESTERN MULTIPLEX CORPORATION
(Registrant)
By /s/ Nancy Huber
-----------------------
Nancy Huber
Chief Financial Officer,
Vice President, Finance and
Secretary
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Nancy Huber, Amir Zoufonoun and Jeffrey M.
Hendren, and each of them, individually, as his true and lawful attorneys-in-
fact and agents, with full power of substitution and resubstitution, for him and
in his name, place and stead in any and all capacities, to sign this
Registration Statement and any and all amendments to the Registration Statement,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, and does
grant 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 intents and purposes as he 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, as amended, this
Registration Statement has been signed by the following persons in the
capacities indicated on August 31, 2000.
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Signature Title
--------- -----
<S> <C>
/s/ Jonathan N. Zakin Chairman, Chief Executive Officer and Director
------------------------ (Principal Executive Officer)
Jonathan N. Zakin
/s/ Nancy Huber Chief Financial Officer (Principal Financial
------------------------ Officer), Vice President, Finance (Principal
Nancy Huber Accounting Officer) and Secretary
President, Chief Operating Officer and Director
------------------------
Amir Zoufonoun
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5
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<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ Michael Seedman Director
------------------------
Michael Seedman
/s/ Timothy Collins Director
------------------------
Timothy C. Collins
/s/ Jeffrey M. Hendren Director
------------------------
Jeffrey M. Hendren
/s/ Hironori Aihara Director
------------------------
Hironori Aihara
/s/ Michael J. Boskin Director
------------------------
Michael J. Boskin
Director
------------------------
Peter O. Crisp
Director
------------------------
Stanley S. Shuman
</TABLE>
6
<PAGE>
EXHIBIT INDEX
Exhibit No. Description of Exhibit
----------- ----------------------
4.1 Form of Amended and Restated Articles of Incorporation of the
Registrant (incorporated herein by reference to Exhibit 3.1 of
Amendment No. 2 to the Registration Statement on Form S-1 filed with
the Commission on June 9, 2000 (File No. 333-35200)).
4.2 Form of Amended and Restated By-laws of the Registrant (incorporated
herein by reference to Exhibit 3.2 of Amendment No. 2 to the
Registration Statement on Form S-1 filed with the Commission on June 9,
2000 (File No. 333-35200)).
5.1* Opinion of Simpson Thacher & Bartlett.
23.1* Consent of Independent Public Accountants.
23.2 Consent of Simpson Thacher & Bartlett (contained in Exhibit 5.1).
24.1 Power of Attorney (included on signature page to this Registration
Statement).
99.1 1999 Western Multiplex Corporation Stock Incentive Plan (incorporated
herein by reference to Exhibit 10.15 of Amendment No. 1 to the
Registration Statement on Form S-1 filed with the Commission on May 5,
2000 (File No. 333-35200)).
99.2 Western Multiplex Corporation Employee Stock Purchase Plan
(incorporated herein by reference to Exhibit 10.16 of Amendment No. 2
to the Registration Statement on Form S-1 filed with the Commission on
June 9, 2000 (File No. 333-35200)).
99.3 Western Multiplex Corporation 2000 Stock Option Plan for Non-Employee
Directors (incorporated herein by reference to Exhibit 10.17 of
Amendment No. 2 to the Registration Statement on Form S-1 filed with
the Commission on June 9, 2000 (File No. 333-35200)).
99.4 Amendment No. 1 to 1999 Western Multiplex Corporation Stock Incentive
Plan, dated June 8, 2000 (incorporated herein by reference to Exhibit
10.28 of Amendment No. 2 to the Registration Statement on Form S-1
filed with the Commission on June 9, 2000 (File No. 333-35200)).
99.5 Ubiquity Communication, Inc. 1997 Stock Option Plan (incorporated
herein by reference to Exhibit 10.31 of Amendment No. 3 to the
Registration Statement on Form S-1 filed with the Commission of July 3,
2000 (File No. 333-35200)).
99.6 Ubiquity Communication, Inc. 1998 Stock Plan (incorporated herein by
reference to Exhibit 10.32 of Amendment No. 3 to the Registration
Statement on Form S-1 filed with the Commission on July 3, 2000 (File
No. 333-35200)).
99.7 Ubiquity Communication, Inc. 1999 Stock Plan (incorporated herein by
reference to Exhibit 10.33 of Amendment No. 3 to the Registration
Statement on Form S-1 filed with the Commission on July 3, 2000 (File
No. 333-35200)).
<PAGE>
99.8 Amendment No. 1 to Western Multiplex Corporation 2000 Stock Option Plan
for Non-Employee Directors, dated June 19, 2000 (incorporated herein by
reference to Exhibit 10.34 of Amendment No. 3 to the Registration
Statement on Form S-1 filed with the Commission on July 3, 2000 (File
No. 333-35200)).
