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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 24, 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
State or Other Jurisdiction 77-0016028
of Incorporation or Organization) (I.R.S. Employer Identification No.)
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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Calculation of Registration Fee
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Proposed Proposed
Title of Number of Maximum Maximum Amount of
Securities to shares to be Offering Price Aggregate Registration
be Registered Registered Per Share Offering Price Fee
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Common Stock 2,500,000 $13.72* $34,300,000 $10,118.50
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* 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 March 23, 1998.
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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 "1933 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 2,500,000 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 1933 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
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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.
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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
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<CAPTION>
Exhibit No. Description
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<S> <C>
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).
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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 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
under the 1933 Act, each such post-effective
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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
March 24, 1998.
DIGITAL MICROWAVE CORPORATION
By: /s/ CHARLES D. KISSNER
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Charles D. Kissner
Chairman of the Board and
Chief Executive Officer
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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.
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<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ CHARLES D. KISSNER
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Charles D. Kissner Chairman of the Board and March 24, 1998
Chief Executive Officer
/s/ RICHARD C. ALBERDING
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Richard C. Alberding Director March 24, 1998
/s/ JOHN W. COMBS
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John W. Combs Director March 24, 1998
/s/ CLIFFORD H. HIGGERSON
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Clifford H. Higgerson Director March 24, 1998
/s/ JAMES D. MEINDL
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James D. Meindl Director March 24, 1998
/s/ BILLY B. OLIVER
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Billy B. Oliver Director March 24, 1998
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Howard Oringer Director
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Signature Title Date
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/s/ CARL A. THOMSEN
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Carl A. Thomsen Vice President, Chief Financial March 24, 1998
Officer and Secretary (Principal
Financial and Accounting Officer)
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EXHIBIT 5.1
March 24, 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 2,500,000
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 2,500,000 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 2,500,000 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
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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, 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
March 20, 1998
