<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 5, 1998.
REGISTRATION NO. 333-______
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
ON FORM S-8
TO
FORM S-4
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)
MAS TECHNOLOGY LIMITED 1997 STOCK OPTION PLAN
(Full Title of the Plans)
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
- --------------------------------------------------------------------------------
<PAGE>
EXPLANATORY NOTE
This Post-Effective Amendment No. 1 on Form S-8 amends Registration
Statement No. 333-45053 which was previously filed on Form S-4 (the "Original
Registration Statement") in connection with the merger (the "Merger") of MAS
Technology Limited ("MAS Technology") with and into a wholly owned subsidiary of
Digital Microwave Corporation (the "Registrant"). In connection with the filing
of the Original Registration Statement, 8,600,000 shares of the Registrant's
Common Stock, $0.01 par value per share (the "Common Stock"), were registered
with the Securities and Exchange Commission and the applicable filing fee was
paid. The number of shares registered pursuant to the Original Registration
Statement were those shares of Common Stock expected to be distributed to
holders of ordinary shares of MAS Technology in connection with the Merger. All
of the shares of Common Stock included in this Post-Effective Amendment No. 1
were included in and registered on the Original Registration Statement. Such
shares include 440,002 shares of Common Stock issuable upon exercise of
options outstanding under the MAS Technology 1997 Stock Option Plan.
<PAGE>
Part I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in Part I of
Form S-8 (plan information and registrant information and employee plan annual
information) will be sent or given to employees as specified by Rule 428(b)(1)
of the Securities Act of 1933, as amended (the "Securities Act"). Such document
need not be filed with the Securities and Exchange Commission either as part of
this Registration Statement or as prospectuses or prospectus supplements
pursuant to Rule 424 of the Securities Act. These documents and the documents
incorporated by reference in this Registration Statement pursuant to Item 3 of
Form S-8 (Part II hereof), taken together, constitute a prospectus that meets
the requirements of Section 10(a) of the Securities Act.
I-1
<PAGE>
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
Digital Microwave Corporation (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 September 9, 1998.
(b) The Registrant's latest Annual Report on Form 10-K and on
Form 10-K/A for the fiscal year ended March 31, 1998, filed with
the SEC on June 29, 1998 and July 20, 1998, respectively,
pursuant to Section 13(a) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act").
(c) The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended June 30, 1998 filed with the SEC on August 14,
1998, pursuant to Section 13(a) of the Exchange Act.
(d) The Registrant's Current Reports on Form 8-K dated April 3, 1998,
July 23, 1998 and October 20, 1998, each filed pursuant to
Section 13(a) of the Exchange Act.
(e) 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 Exchange 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 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.
II-1
<PAGE>
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 or she 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 or she 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 or her 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 or
she 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 or she 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.
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.
II-2
<PAGE>
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
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<S> <C>
5.1 Opinion of Morrison & Foerster LLP as to the legality of the
8,600,000 shares of Common Stock which were previously
registered and included on the Registration Statement on
Form S-4 (No. 333-45053). Incorporated by reference to
Exhibit 5.1 of such Registration Statement on Form S-4.
23.1 Consent of Arthur Andersen LLP, Independent Public Accountants.
23.2 Consent of Morrison & Foerster LLP with respect to the use of
its opinion as an exhibit to the Registration Statement on
Form S-4 (No. 333-45053). Incorporated by reference to
Exhibit 5.1 of such Registration Statement on Form S-4.
24.1 Power of Attorney (set forth on the signature page of this
Registration Statement).
</TABLE>
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 Exchange Act that are incorporated by reference into this
Registration Statement; (2) that for the purpose of determining any liability
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
II-3
<PAGE>
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 1933 Act, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the Exchange 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 November 5, 1998.
DIGITAL MICROWAVE CORPORATION
By: /s/ Charles D. Kissner
------------------------------------
Charles D. Kissner
Chairman of the Board and Chief
Executive Officer
II-4
<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.
Further, 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.
<TABLE>
<CAPTION>
Signature Title Date
- -------------------------- -------------------------------- --------------------
<S> <C> <C>
/s/ Charles D. Kissner
- --------------------------
Charles D. Kissner Chairman of the Board and November 5, 1998
Chief Executive Officer
/s/ Richard C. Alberding
- --------------------------
Richard C. Alberding Director November 5, 1998
/s/ Paul S. Bachow
- --------------------------
Paul S. Bachow Director November 5, 1998
/s/ John W. Combs
- --------------------------
John W. Combs Director November 5, 1998
/s/ Clifford H. Higgerson
- --------------------------
Clifford H. Higgerson Director November 5, 1998
/s/ James D. Meindl
- --------------------------
James D. Meindl Director November 5, 1998
/s/ V. Frank Mendicino
- --------------------------
V. Frank Mendicino Director November 5, 1998
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
- -------------------------- -------------------------------- --------------------
<S> <C> <C>
/s/ Billy B. Oliver
- --------------------------
Billy B. Oliver Director November 5, 1998
- --------------------------
Howard Oringer Director November __, 1998
/s/ Carl A. Thomsen
- --------------------------
Carl A. Thomsen Vice President, Chief Financial November 5, 1998
Officer and Secretary (Principal
Financial and Accounting Officer)
</TABLE>
II-6
<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 21, 1998
included in or incorporated by reference in Digital Microwave Corporation's
Form 10-K for the year ended March 31, 1998.
/s/ ARTHUR ANDERSEN LLP
San Jose, California
November 4, 1998
