As filed with the Securities and Exchange Commission on September 23, 1998
Registration No. 333-
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
EIP MICROWAVE, INC.
(Exact name of registrant as specified in its charter)
Delaware 95-2148645
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
6950 S.W. Hampton Street, Suite 200, Portland, Oregon 97223
(Address of Principal Executive Offices) (Zip Code)
EIP MICROWAVE, INC.
1998 STOCK PLAN
(Full title of the plan)
J. Bradford Bishop
Chairman and Chief Executive Officer
EIP Microwave, Inc.
6950 S.W. Hampton Street, Suite 200
Portland, Oregon 97223
(Name and address of agent for service)
(503) 598-2600
(Telephone number, including area code, of agent for service)
Copies of all communications to:
Michael E. Johnson, Esq.
Bainbridge Group, A Law Corporation
18301 Von Karman Avenue, Suite 410
Irvine, California 92612-1009
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Total pages 12
Exhibit Index on page 9
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE (1)
<S> <C> <C> <C> <C>
Proposed Proposed
Title of Amount to be Maximum Maximum
Securities registered offering price Aggregate Amount of
to be registered per share (1) Offering price (1) registration fee
- ---------------------- -------------------- --------------------- --------------------- ----------------
Common Stock ($0.01 1,500,000 shares $1.15 $1,733,963 $511.52(3)
par value) (2)
- ---------------------- -------------------- --------------------- --------------------- ----------------
</TABLE>
(1) Estimated solely for the purpose of computing the registration fee and
computed in accordance with Rule 457(h). The proposed maximum offering
price is the sum of (i) the product of the number of outstanding
options previously granted (680,000) and the weighted average of the
exercise prices of such options ($0.64) and (ii) the product of the
remaining shares available under the plan (820,000) and the average of
the closing bid and asked prices of the Registrant's Common Stock on
September 18, 1998 (which were $1.375 and $1.531, respectively).
(2) As presently constituted, plus such indeterminate number of shares as
may become subject to the 1998 Stock Plan as a result of adjustment
provisions set forth in the Plan and agreements entered into pursuant
thereto.
(3) The amount of the registration fee is calculated at 0.000295 multiplied
by the maximum aggregate offering price.
Proposed sale to take place as soon after the effective date of the Registration
Statement as options or stock purchase rights granted under the plan are
exercised.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The information called for in Part I of Form S-8 is not being prepared
with or included in this Form S-8 (by incorporation by reference or otherwise)
in accordance with the rules and regulations of the Securities and Exchange
Commission (the "Commission").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by EIP Microwave, Inc. (the "Company")
with the Commission are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-KSB, as amended on Form
10-KSB/A for its fiscal year ended September 30, 1997, filed pursuant to Section
13 of the Securities Exchange Act of 1934, as amended (the "Exchange Act").
(b) All other reports filed pursuant to Sections 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the Annual Report
referred to in (a) above.
(c) The description of the Company's Common Stock, which is contained
in the Company'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 such description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference herein and to be a part hereof from the
respective dates of the 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 other 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.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Bainbridge Group, A Law Corporation ("Bainbridge Group") provides
ongoing legal services for the Company and has given the opinion attached as
Exhibit 5 hereto. Michael E.
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Johnson serves as a member of the Board of Directors of the Company and is
President of Bainbridge Group. Mr. Johnson has acquired 245,000 shares of
Registrant's Common Stock pursuant to Stock Purchase Rights granted under the
1998 Stock Plan (the "Plan"), has been granted an option to purchase 30,000
shares under the Plan and may receive additional awards under the Plan from time
to time as determined by the Registrant's Board of Directors or any committee
thereof administering the Plan.
Item 6. Indemnification of Directors and Officers.
Under Delaware corporation law, a corporation is authorized to
indemnify officers, directors, employees and agents who are made or threatened
to be made parties to any civil, criminal, administrative or investigative suit
or proceeding by reason of the fact that they are or were a director, officer,
employee or agent of the corporation or are or were acting in the same capacity
for another entity at the request of the corporation. Such indemnification
includes expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by such persons if they acted in
good faith and in a manner reasonably believed to be in or not opposed to the
best interests of the corporation or, with respect to any criminal action or
proceeding, if they had no reasonable cause to believe their conduct was
unlawful. In the case of any action or suit by or in the right of the
corporation against such persons, the corporation is authorized to provide
similar indemnification, provided that, should any such persons be adjudged to
be liable for negligence or misconduct in the performance of duties to the
corporation, the court conducting the proceeding must determine that such
persons are nevertheless fairly and reasonably entitled to indemnification. To
the extent any such persons are successful on the merits in defense of any such
action, suit or proceeding, Delaware law provides that they shall be indemnified
against reasonable expenses, including attorneys fees. A corporation is
authorized to advance anticipated expenses for such suits or proceedings upon an
undertaking by the person to whom such advance is made to repay such advances if
it is ultimately determined that such person is not entitled to be indemnified
by the corporation. Indemnification and payment of expenses provided by Delaware
law are not deemed exclusive of any other rights by which an officer, director,
employee or agent may seek indemnification or payment of expenses or may be
entitled to under any by-law, agreement, or vote of stockholders or
disinterested directors. In such regard, a Delaware corporation is empowered to,
and may, purchase and maintain liability insurance on behalf of any person who
is or was a director, officer, employee or agent of the corporation.
Article Ninth of the Company's Certificate of Incorporation eliminates,
to the fullest extent permitted by law, the personal liability of directors for
monetary damages in certain instances for breach of a director's fiduciary duty
of care. Article IX of the Company's Bylaws provides that (i) each director,
officer and employee of the Company shall be indemnified by the Company to the
fullest extent authorized by Delaware law subject to certain limitations, (ii)
each indemnitee is entitled to be paid by the Company for its expenses in
defending proceedings in advance of final determination, (iii) the right of
indemnification provided therein shall not be exclusive, (iv) the Company is
authorized to enter into contracts with any director, officer, employee or agent
of the Company which provide for indemnification equivalent to or greater than
provided in Article IX, and (v) the Company is required to maintain insurance to
the extent reasonably available to protect itself and any such director,
officer, employee or agent. These provisions do not impact the availability of
equitable relief under the federal securities laws.
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Consistent with Article IX of the Company's Bylaws, the Company has
entered into individual Indemnification Agreements with its directors and
officers. The Indemnification Agreements, among other things, provide mandatory
indemnification protection in excess of that provided by Delaware corporation
law. The Indemnification Agreements provide certain procedures relating to
indemnification and advancement of expenses.
In addition, the Company currently carries limited insurance coverage
for its directors and officers. The Indemnification Agreements provide
protections beyond those currently available from the Company's existing
director's and officer's liability insurance.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4(a) EIP Microwave, Inc. 1998 Stock Plan, previously filed on
January 14, 1998, as an attachment to the Company's definitive
Proxy Statement on Schedule 14A, and incorporated herein by
reference.
5 Opinion (and consent) of Bainbridge Group, a Law Corporation
23(a) Consent of Meredith, Cardozo, Lanz & Chiu LLP
23(b) Consent of Bainbridge Group, a Law Corporation (set forth as
part of Exhibit 5 above).
23(c) Consent of Price Waterhouse LLP
24 Power of Attorney (included on the signature page to this
Registration Statement)
Item 9. Undertakings.
(a) Undertaking Pursuant to Rule 415.
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:
(i) include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933, as amended (the "Securities Act");
(ii) 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 this Registration
Statement;
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(iii) include any material information with respect to the
plan of distribution not previously disclosed in this
Registration Statement or any material change to such
information in this Registration Statement;
Provided, however, That paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the registration statement is on Form S-8, and 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 Registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference in
this 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) Undertaking Regarding Documents Subsequently Filed Under the
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Exchange Act.
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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 this 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) Undertaking Regarding Registration Statement on Form S-8.
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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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Newport Beach, State of California, on this 2nd day
of September, 1998.
EIP MICROWAVE, INC.
By: /s/ J. Bradford Bishop
----------------------------
J. Bradford Bishop
Chairman of the Board, Chief Executive
Officer and Director
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints J. Bradford Bishop and Michael E.
Johnson, and each or either of them, his true and lawful attorneys-in-fact 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 any or all
amendments to this Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys 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 any of them, or their
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 on Form S-8 has been signed below by the following
persons in the capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE CAPACITY DATE
- --------- -------- ----
<S> <C> <C>
/s/ J. Bradford Bishop Chairman of the Board, Chief Executive September 2, 1998
- ---------------------------
J. Bradford Bishop Officer and Director (Principal Executive
Officer)
/s/ John F. Bishop Vice Chairman and Director September 2, 1998
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John F. Bishop
/s/ Michael E. Johnson Director September 2, 1998
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Michael E. Johnson
/s/ Robert D. Johnson Director September 2, 1998
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Robert D. Johnson
Director September __, 1998
J. Sidney Webb
/s/ James N. Cutler, Jr. Director September 2, 1998
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James N. Cutler, Jr.
/s/ William J. Stanners, Jr. Chief Financial Officer, Treasurer and September 2, 1998
- ----------------------------
William J. Stanners, Jr. Assistant Secretary (Principal Financial
Officer)
</TABLE>
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<PAGE>
INDEX TO EXHIBITS
Sequentially
Exhibit Numbered
Number Description Page
- ------- ----------- ----
4(a) EIP Microwave, Inc. 1998 Stock Plan, previously filed on
January 14, 1998, as an attachment to the definitive Proxy
Statement on Schedule 14A, and incorporated herein by
reference.
5 Opinion (and consent) of Bainbridge Group, a Law Corporation 10
23(a) Consent of Meredith, Cardoza, Lanz & Chiu LLP 11
23(b) Consent of Bainbridge Group, A Law Corporation (set forth 10
as part of Exhibit 5 above)
23(c) Consent of Pricewaterhouse Coopers LLP 12
24 Power of Attorney (included on the signature page to this 8
Registration Statement)
9
September 18, 1998
EIP Microwave, Inc.
6950 S.W. Hampton Streete, Ste. 200
Portand, OR 97223
Re: 1998 Stock Plan
Gentlemen:
We have acted as counsel for EIP Microwave, Inc., a Delaware
corporation (the "Company"), in connection with the Company's 1998 Stock Plan
(the "Plan"). We have examined such documents, records and matters of law as we
have deemed necessary for purposes of this opinion, and based thereon we are of
the opinion that the shares of the Company's common stock, $.01 par value per
share (the "Common Stock"), that may be issued and sold pursuant to the Plan
(and the authorized form of Stock Option Agreements and Restricted Stock
Agreements thereunder) will be, when issued and sold in accordance with such
Plan and Agreements, duly authorized, validly issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement on Form S-8 to be filed by the Company on or about
September 21, 1998 to effect registration of the shares of Common Stock issued
and sold pursuant to the Plan under the Securities Act of 1933, as amended.
Very truly yours,
BAINBRIDGE GROUP,
A Law Corporation
By: /s/ Michael E. Johnson
-----------------------
Michael E. Johnson
10
Exhibit 23(a)
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated November 20, 1997 which appears on
page 28 of EIP Microwave, Inc.'s Annual Report on Form 10-KSB for the fiscal
year ended September 30, 1997.
/s/ Meredith, Cardozo, Lanz & Chiu LLP
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MEREDITH, CARDOZO, LANZ & CHIU LLP
San Jose, California
September 17, 1998
11
Exhibit 23(c)
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 of EIP Microwave, Inc. of our report dated December 23,
1996, except for the third paragraph of Note 1 and the second paragraph of Note
6 and Note 9, which are as of October 23, 1997 appearing on page 18 of the
Company's Annual Report on Form 10-KSB/A for the year ended September 30, 1997.
/s/ Pricewaterhouse Coopers LLP
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PRICEWATERHOUSE COOPERS LLP
San Jose, California
September 17, 1998
12
