<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 25, 1998.
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
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 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
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<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
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<S> <C> <C> <C> <C>
Common Stock 300,000 $17.5625* $5,268,750 $1,554.28
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</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 February 18, 1998.
<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
300,000 shares of the Registrant's Common Stock, par value $0.01 per share,
which is 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 February 5, 1998.
(b) The Registrant's Annual Report on Form 10-K for the fiscal year
ended March 31, 1997 filed with the SEC on June 27, 1997.
(c) The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended June 30, 1997 filed with the SEC on August 8, 1997.
(d) The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended September 30, 1997 filed with the SEC on November
14, 1997.
(e) The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended December 31, 1997 filed with the SEC on February
13, 1998.
(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.
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
II-1
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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 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTOR AND OFFICERS
The Registrant's Restated Certificate of Incorporation provides that
no director of the Registrant will be personally liable to the Registrant or any
of its stockholders for monetary damages arising from the director's breach of
his fiduciary duties. However, such exemption from liability does not apply
with respect to any action in which the director would be liable under Section
174 of Title 8 of the Delaware General Corporation Law ("Delaware Law"), nor
does it apply with respect to any liability in which the director (i) breached
his duty of loyalty to the Registrant; (ii) did not act in good faith or, in
failing to act, did not act in good faith; (iii) acted in a manner involving
intentional misconduct or knowing violation of law or, in failing to act, acted
in a manner involving intentional misconduct or knowing violation of law; or
(iv) derived an improper personal benefit.
Pursuant to the provisions of Section 145 of Delaware Law, the
Registrant as a Delaware corporation has the power to indemnify any person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding (other than an action by or in the right
of the Registrant) by reason of the fact that he is or was a director, officer,
employee or agent of the Registrant or of any corporation, partnership, joint
venture, trust or other enterprise for which he is or was serving in such
capacity at the request of the Registrant, against any and all expenses,
judgments, fines and amounts paid in settlement which were reasonably incurred
by him in connection with such action, suit or proceeding. The power to
indemnify applies only if such person acted in good faith and in a manner he
reasonably believed to be in the best interests, or not opposed to the best
interests, of the Registrant and, with respect to any criminal action or
proceeding, if he had no reasonable cause to believe his conduct was unlawful.
The power to indemnify also applies to actions brought by or in the
right of the Registrant, but only to the extent of defense and settlement
expenses and not to the satisfaction of a judgment or settlement of the claim
itself. In such actions, however, no indemnification will be made if there is
any adjudication of negligence or misconduct, unless the court, in its
discretion, finds that in the light of all the circumstances indemnification
should apply.
<PAGE>
To the extent any such person is successful in the defense of the
actions referred to above, such person is entitled pursuant to Section 145 of
Delaware Law to indemnification as described above. Section 145 also grants the
power to advance litigation expenses upon receipt of an undertaking to reply
such advances in the event no right to indemnification is subsequently shown. A
corporation may also obtain insurance at its expense to protect anyone who might
be indemnified, or has a right to insist on indemnification, under the statute.
The Registrant has entered into indemnification agreements with its
directors and certain officers which provide for indemnification to the fullest
extent permitted by Delaware Law, including Section 145 thereof. The Registrant
may also enter into similar agreements from time to time with future directors
and/or present or future officers of the Registrant.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
Item 8. Exhibits
Exhibit No. Description
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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).
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 (i) to include any prospectus required
by Section 10(a)(3) of the Securities Act of 1933, as amended (the "1933 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 this Registration Statement,
and (iii) to 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 clauses (1)(i) and (1)(ii) shall not apply if the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the Registrant pursuant to Section 13 or
Section 15(d) of the 1934 Act that are incorporated by reference into this
Registration Statement; (2) that for the purpose of determining any liability
<PAGE>
under the 1933 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; and (3) to remove from registration by means of a
post-effective amendment any of the securities being registered which remain
unsold upon the termination of the Registrant's 1994 Stock Incentive Plan.
B. The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the 1933 Act, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act that is
incorporated by reference into 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. Insofar as indemnification for liabilities arising under the 1933
Act may be permitted to directors, officers or controlling persons of the
Registrant pursuant to the indemnity provisions summarized in Item 6 above or
otherwise, the Registrant has been informed that in the opinion of the SEC such
indemnification is against public policy as expressed in the 1933 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 1933 Act and will be governed by the final
adjudication of such issue.
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 February 25, 1998.
DIGITAL MICROWAVE CORPORATION
By: /s/ CHARLES D. KISSNER
----------------------
Charles D. Kissner
Chairman of the Board and
Chief Executive Officer
<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
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/s/ CHARLES D. KISSNER
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Charles D. Kissner Chairman of the Board and February 25, 1998
Chief Executive Officer
/s/ RICHARD C. ALBERDING
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Richard C. Alberding Director February 25, 1998
/s/ JOHN W. COMBS
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John W. Combs Director February 25, 1998
/s/ CLIFFORD H. HIGGERSON
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Clifford H. Higgerson Director February 25, 1998
/s/ JAMES D. MEINDL
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James D. Meindl Director February 25, 1998
/s/ BILLY B. OLIVER
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Billy B. Oliver Director February 25, 1998
II-3
<PAGE>
Signature Title Date
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/s/ CARL A. THOMSEN
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Carl A. Thomsen Vice President, Chief February 25, 1998
Financial Officer and
Secretary (Principal
Financial and Accounting
Officer)
II-4
<PAGE>
February 25, 1998
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 300,000
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 300,000 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 300,000 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>
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 21, 1997
included in or incorporated by reference in Digital Microwave Corporation's Form
10-K for the year ended March 31, 1997.
/s/ ARTHUR ANDERSEN LLP
San Jose, California
February 23, 1998
