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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 26, 1999.
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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<TABLE>
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Calculation of Registration Fee
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Proposed Maximum Proposed Maximum
Offering Price Per Aggregate Offering Amount of
Title of Securities to Number of shares to Share Price Registration Fee
be Registered be Registered
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<S> <C> <C> <C> <C>
Common Stock 300,000 $7.6255 $2,287,650 $635.97
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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 19, 1999.
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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.
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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 "Securities 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.
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 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 Quarterly Report on Form 10-Q for the fiscal
quarter ended September 30, 1998 filed with the SEC on
November 16, 1998.
(e) The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended December 31, 1998 filed with the SEC on February
16, 1999.
(f) The Registrant's Current Reports on Form 8-K dated April 3, 1998,
July 29, 1998 and October 20, 1998, each filed pursuant to
Section 13(a) of the Exchange Act.
(g) 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
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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.
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 or her 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
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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.
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 Securities 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
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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 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; 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 Securities 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
Securities 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 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.
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 26, 1999.
DIGITAL MICROWAVE CORPORATION
By: /s/ CHARLES D. KISSNER
-------------------------------------
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.
<TABLE>
<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 February 26, 1999
Chief Executive Officer
/s/ RICHARD C. ALBERDING
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Richard C. Alberding Director February 26, 1999
/s/ PAUL S. BACHOW
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Paul S. Bachow Director February 26, 1999
/s/ JOHN W. COMBS
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John W. Combs Director February 26, 1999
/s/ CLIFFORD H. HIGGERSON
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Clifford H. Higgerson Director February 26, 1999
/s/ JAMES D. MEINDL
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James D. Meindl Director February 26, 1999
/s/ V. FRANK MENDICINO
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V. Frank Mendicino Director February 26, 1999
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<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ BILLY B. OLIVER
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Billy B. Oliver Director February 26, 1999
/s/ HOWARD ORINGER
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Howard Oringer Director February 26, 1999
/s/ CARL A. THOMSEN
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Carl A. Thomsen Vice President, Chief Financial February 26, 1999
Officer and Secretary (Principal
Financial and Accounting Officer)
</TABLE>
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EXHIBIT 5.1
February 26, 1999
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 shares of
the Company's common stock, $0.01 par value per share (the "Common Stock").
As counsel to the Company, we have examined the proceedings taken by the
Company in connection with the reservation 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
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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, 1998 included 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
February 25, 1999
