<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 28, 1997.
REGISTRATION NO. 333-______
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
DIGITAL MICROWAVE CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 77-0016028
(State or Other Jurisdiction (I.R.S. Employer Identification No.)
of Incorporation or Organization)
170 ROSE ORCHARD WAY, SAN JOSE, CA 95134
(Address of Principal Executive Offices) (Zip Code)
DIGITAL MICROWAVE CORPORATION
1994 STOCK INCENTIVE PLAN
(Full Title of the Plan)
CHARLES D. KISSNER
CHAIRMAN OF THE BOARD, PRESIDENT AND CHIEF EXECUTIVE OFFICER
DIGITAL MICROWAVE CORPORATION
170 ROSE ORCHARD WAY
SAN JOSE, CA 95134
(Name and Address of Agent For Service)
408/943-0777
(Telephone Number, Including Area Code,
of Agent For Service)
With a copy to:
Bruce Alan Mann, Esq.
Morrison & Foerster LLP
425 Market Street
San Francisco, CA 94105
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<PAGE>
Calculation of Registration Fee
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------
Proposed Proposed
Maximum Maximum
Title of Securities Number of shares Offering Price Per Aggregate Amount of
to be Registered to be Registered Share Offering Price Registration Fee
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 150,000 $23.50* $3,525,000 $1,068.18
- --------------------------------------------------------------------------------------------------
</TABLE>
* Calculated solely for purposes of this offering under Rule 457(h) of the
Securities Act of 1933 on the basis of the average of the high and low price per
share of Digital Microwave Corporation's Common Stock on the Nasdaq National
Market on April 22, 1997.
<PAGE>
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Pursuant to General Instruction E to Form S-8 under the Securities
Act of 1933, as amended (the "Act"), this Registration Statement is filed for
the purpose of registering additional securities of the same class as those
registered under the currently effective Registration Statement on Form S-8
(Registration No. 333-11385) relating to the 1994 Stock Incentive Plan (the
"1994 Plan") of Digital Microwave Corporation (the "Registrant") and the
contents of that Registration Statement, including any future amendments
thereto or subsequent filings incorporated therein by reference, are
incorporated herein by this reference. The additional securities registered
hereby consist of 150,000 shares of the Registrant's Common Stock, par value
$0.01 per share, which are reserved for issuance to participants under the
1994 Plan, except that such shares may not be issued as incentive stock
options to such participants.
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Registrant hereby incorporates by reference into this Registration
Statement the following documents previously filed with the Securities and
Exchange Commission (the "SEC").
(a) The Registrant's latest prospectus filed pursuant to Rule 424(b)
under the Act on March 14, 1997.
(b) The Registrant's Annual Report on Form 10-K for the fiscal year
ended March 31, 1996 filed with the SEC on June 28, 1996.
(c) The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended June 30, 1996 filed with the SEC on August 14,
1996.
(d) The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended September 30, 1996 filed with the SEC on November
13, 1996.
(e) The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended December 31, 1996 filed with the SEC on January 16,
1997.
(f) The Registrant's Registration Statement No. 0-15895 on Form 8-A
filed with the SEC on May 22, 1987, in which there is described
the terms, rights and provisions applicable to the Registrant's
outstanding Common Stock.
All reports and definitive proxy or information statements filed
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934, as amended (the "1934 Act"), after the date of this Registration Statement
and 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 into this
Registration Statement and to be a part hereof from the date of filing of such
documents.
II-1
<PAGE>
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 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 8. EXHIBITS
EXHIBIT NO. DESCRIPTION
- ------------ -----------
5.1 Opinion of Morrison & Foerster LLP as to the legality of the
securities being registered.
23.1 Consent of Arthur Andersen LLP, Independent Public
Accountants.
23.2 Consent of Morrison & Foerster LLP (contained in the opinion
of counsel filed as Exhibit 5.1 to this Registration
Statement).
24.1 Power of Attorney (set forth on the signature page of this
Registration Statement).
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 San Jose, State of California, on April 28, 1997.
DIGITAL MICROWAVE CORPORATION
By: /s/ CHARLES D. KISSNER
----------------------
Charles D. Kissner
Chairman of the Board, President
and Chief Executive Officer
II-2
<PAGE>
POWER OF ATTORNEY AND ADDITIONAL SIGNATURES
Each person whose signature appears below constitutes and appoints
Charles D. Kissner and Carl A. Thomsen, and each of them, 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 any or all amendments to this Registration Statement,
including post-effective amendments, 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-in-fact and agents full
power and authority to do so 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 thereof.
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.
Signature Title Date
- ------------------------- -------------------------- -----------------------
/s/ CHARLES D. KISSNER
- ------------------------- Chairman of the Board, April 28, 1997
Charles D. Kissner President and Chief
Executive Officer
/s/ RICHARD C. ALBERDING
- ------------------------- Director April 28, 1997
Richard C. Alberding
- ------------------------- Director
Clifford H. Higgerson
/s/ JAMES D. MEINDL
- ------------------------- Director April 28, 1997
James D. Meindl
/s/ BILLY B. OLIVER
- ------------------------- Director April 28, 1997
Billy B. Oliver
II-3
<PAGE>
Signature Title Date
- ------------------------- -------------------------- -----------------------
/s/ CARL A. THOMSEN
- ------------------------- Vice President, Chief April 28, 1997
Carl A. Thomsen Financial Officer and
Secretary (Principal
Financial and Accounting
Officer)
II-4
<PAGE>
EXHIBIT 5.1
OPINION OF MORRISON & FOERSTER LLP
April 28, 1997
Digital Microwave Corporation
170 Rose Orchard Way
San Jose, California 95134
Ladies and Gentlemen:
At your request, we have examined the Registration Statement on Form
S-8 to be filed by Digital Microwave Corporation, 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 150,000 additional
shares of the Company's Common Stock, $0.01 par value (the "Common Stock").
As counsel to the Company, we have examined the proceedings taken by
the Company in connection with the issuance of the 150,000 additional shares of
the Common Stock to be reserved for issuance under the Company's 1994 Stock
Incentive Plan.
It is our opinion that the 150,000 shares of Common Stock which may be
issued and sold by the Company, when issued and sold in the manner referred to
in the Registration Statement, 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 and further consent to all references to us in the
Registration Statement and any further amendments thereto.
Very truly yours,
/s/ MORRISON & FOERSTER LLP
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports dated April 22, 1996
included or incorporated by reference in Digital Microwave Corporation's
Form 10-K for the year ended March 31, 1996.
/s/ ARTHUR ANDERSEN LLP
San Jose, California
April 23, 1997
