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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 4, 1997
REGISTRATION STATEMENT NO.
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
WAVEPHORE, INC.
(Exact name of registrant as specified in its charter)
INDIANA 86-0491428
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
WAVEPHORE, INC.
3311 NORTH 44TH STREET
PHOENIX, ARIZONA 85018
(602) 952-5500
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices and place of business)
1997 INCENTIVE PLAN
(Full Title of Plans)
DAVID E. DEEDS, CHIEF EXECUTIVE OFFICER
WAVEPHORE, INC.
3311 NORTH 44TH STREET
PHOENIX, ARIZONA 85018
(602) 952-5500
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
COPY TO:
DOUGLAS J. REICH, ESQ.
WAVEPHORE, INC.
3311 NORTH 44TH STREET
PHOENIX, ARIZONA 85018
(602) 952-5500
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==================================================================================================
Proposed Proposed
Maximum Maximum
Amount Offering Aggregate Amount of
Title of Securities to be Price Per Offering Registration
to be Registered Registered(1) Share Price Fee
==================================================================================================
<S> <C> <C> <C> <C>
Common Shares 300,000 $ 6.625(2) $ 1,987,500(2) $ 586.31
Common Shares 352,750 $ 7.125(2) $ 2,513,344(2) $ 741.44
Common Shares 25,000 $ 7.00(2) $ 175,000(2) $ 51.63
Common Shares 668,500 $ 7.32(2) $ 4,893,420(2) $ 1,443.56
Common Shares 27,500 $ 9.75(2) $ 268,125(2) $ 79.10
Common Shares 65,000 $ 10.25(2) $ 666,250(2) $ 196.54
Common Shares 3,000 $ 10.063(2) $ 30,189(2) $ 8.91
Common Shares 2,558,250 $ 9.531(3) $24,382,681(3) $ 7,192.89
---------- -------------
Total 4,000,000 $ 10,300.38
==================================================================================================
</TABLE>
(footnotes on following page)
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(1) In the event of a stock split, stock dividend, or similar transaction
involving Common Shares of the Company, in order to prevent dilution, the
number of shares registered shall be automatically increased to cover the
additional shares in accordance with Rule 416(a) under the Securities Act of
1933, as amended.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) and based upon the exercise price of outstanding
options to purchase Common Shares.
(3) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) and (h), and based upon the average of the high and
low sales prices of the Common Shares on December 3, 1997, as reported by
the Nasdaq National Market.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Document(s) containing the information specified by Part I of Form S-8
will be sent or given to participants in the 1997 Incentive Plan of WavePhore,
Inc. as specified in Rule 428(b)(1) under the Securities Act of 1933, as amended
(the "Act"), and are not being filed with the Commission, either as part of this
Registration Statement or as Prospectuses or Prospectus Supplements pursuant to
Rule 424 under the Act, pursuant to the instructions to Part I. Such documents
and the documents incorporated by reference pursuant to Item 3 of Part II of
this Registration Statement, taken together, constitute a Prospectus that meets
the requirements of Section 10(a) of the Act.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents have been filed by the Company with the
Securities and Exchange Commission pursuant to the Securities Exchange Act of
1934, as amended ( the "Exchange Act"), and are incorporated herein by
reference:
(a) Annual Report on Form 10-K for the fiscal year ended December 31,
1996;
(b) Quarterly Reports on Form 10-Q for the quarters ended March 31,
1997, June 30, 1997 and September 30, 1997, Form 8-K Reports filed
on June 12, 1997 and August 1, 1997, and Form 8-K/A Report filed on
August 12, 1997;
(c) All other reports filed with the Commission by the Company pursuant
to Section 13(a) or 15(d) of the Exchange Act since December 31,
1996;
(d) Description of the Company's Common Shares as set forth under the
caption "Description of Capital Shares - Common Shares" contained
in the Prospectus included in Amendment No. 2 to the Company's
Registration Statement on Form S-1 (Registration No. 33-79316)
filed with the Commission on September 15, 1994, which was
incorporated by reference in Item 1 of the Company's Registration
Statement on Form 8-A, as filed with the Commission on September
26, 1994, and all amendments or reports filed for the purpose of
updating such description.
All documents subsequently filed by the Company pursuant to Section 13(a),
13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be a part hereof
from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Unless limited by a
corporation's articles of incorporation, the Indiana Business Corporation Law
(the "IBCL") requires that a corporation indemnify a director who was wholly
successful, on the merits or otherwise, in the defense of any proceeding to
which the director was a party because the director is or was a director of the
corporation against reasonable expenses incurred by the director in connection
with the proceeding. The IBCL permits a corporation to indemnify an individual
made a party to a proceeding because the individual is or was a director against
liability incurred in the proceeding if: (1) the individual's conduct was in
good faith; and (2) the individual reasonably believed: (A) in the case of
conduct in the individual's official capacity with the corporation, that the
individual's conduct was in its best interest; and (B) in all other cases, that
the individual's conduct was at least not opposed to its best interests; and (3)
in the case of any criminal proceeding, the individual either: (A) had
reasonable cause to believe the individual's conduct was lawful; or (B) had no
reasonable cause to believe the individual's conduct was unlawful. Unless a
corporation's articles of incorporation provide otherwise, an officer of the
corporation, whether or not a director, is entitled to mandatory and
court-ordered indemnification to the same extent as a director; and the
corporation may indemnify an officer, employee or agent of the corporation,
whether or not a director, to the same extent as a director, and to the extent,
consistent with public policy, that may be provided by its articles of
incorporation, bylaws, general or specific action of its board of directors, or
contract. The indemnification provisions of the IBCL are not exclusive of any
rights to indemnification that a person may have under the corporation's
articles of incorporation or bylaws, a resolution of the board of directors or
of the shareholders, or any other authorization, whenever adopted, after notice,
by a majority vote of all of the voting shares then issued and outstanding.
The IBCL provides that a director is not liable for any action taken as a
director, or any failure to take any action, unless: (1) the director has
breached or failed to perform the duties of the director's office in compliance
with Section 23-1-35-1 of the IBCL; and (2) the breach or failure to perform
constitutes willful misconduct or recklessness. Section 23-1-35-1 of the IBCL
provides that a director shall, based upon the facts then known to the director,
discharge the duties as a director, including the director's duties as a member
of a committee: (1) in good faith; (2) with the care an ordinarily prudent
person in a like position would exercise under similar circumstances; and (3) in
a manner the director reasonably believes to be in the best interests of the
corporation. In discharging the director's duties, a director is entitled to
rely upon information, opinions, reports, or statements, including financial
statements and other financial data, if prepared or presented by: (1) one or
more officers or employees of the corporation whom a director reasonably
believes to be reliable and competent in the matters presented; (2) legal
counsel, public accountants, or other persons as to matters the director
reasonably believes are within the person's professional or expert competence;
or (3) a committee of the board of directors of which the director is not a
member if the director reasonably believes the committee merits confidence. A
director is not acting in good faith if the director has knowledge concerning
the matter in question that makes reliance otherwise permitted by the foregoing
provisions unwarranted. A director may, in considering the best interests of a
corporation, consider the affects of any action on shareholders, employees,
suppliers, and customers of the corporation,
5
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and communities in which offices or other facilities of the corporation are
located, and any other factors the director considers pertinent.
The Company's Articles of Incorporation provide that the corporation
shall 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,
whether civil, criminal, administrative or investigative (including any action
or suit by or in the right of the corporation) by reason of the fact that he is
or was a director, officer, employee or agent of the corporation or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, to the maximum extent permitted under the IBCL. Such indemnification
shall not be deemed exclusive of any other rights to which those indemnified may
be entitled under any statute, bylaw, agreement, vote of shareholders or
disinterested directors, or otherwise.
The Company's Code of Bylaws provides that the corporation shall
indemnify any individual who is or was a director or officer of the corporation,
or is or was serving at the request of the corporation as a director, officer,
partner or trustee of another foreign or domestic corporation, partnership,
joint venture, trust, employee benefit plan or enterprise whether or not for
profit, against liability and expenses, including attorneys fees, incurred by
him in any action, suit or proceeding, whether civil, criminal, administrative,
investigative, and whether formal or informal, in which he has made or
threatened to be made a party by reason of being or having been in any such
capacity, or arising out of his status a such, except (i) in the case of any
action, suit, or proceeding terminated by judgment, order or conviction, in
relation to matters as to which he is adjudged to have breached or failed to
perform the duties of his office and the breach or failure to perform
constituted willful misconduct or recklessness; and (ii) in any other situation,
in relation to matters as to which it is found by a majority of a committee
composed of all directors not involved in the matter in controversy (whether or
not a quorum) that the person breached or failed to perform the duties of his
office and the breach or failure to perform constituted willful misconduct or
recklessness.
The directors and officers of the Company are covered by an insurance
policy indemnifying against certain liabilities, including liabilities under the
Securities Act of 1933, as amended (the "Act"), in certain circumstances.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Restated Articles of Incorporation (incorporated by reference to
Exhibit 4 to the
6
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Company's Quarterly Report on Form 10-Q for the quarter ended September
30, 1994).
4.2 Articles of Amendment to the Company's Articles of Incorporation dated
December 27, 1995 (incorporated by reference to Exhibit 3 to the
Company's Current Report on Form 8-K dated December 27, 1995).
4.3 Articles of Amendment to the Company's Articles of Incorporation dated
February 7, 1996 (incorporated by reference to Exhibit 4.3 to the
Company's Registration Statement No. 333-1198 on Form S-3).
4.4 Articles of Amendment to the Company's Articles of Incorporation dated
July 23, 1997 (incorporated by reference to Exhibit 3.1 to the
Company's Current Report on Form 8-K filed on August 1, 1997).
4.5 Restated Code of Bylaws (incorporated by reference to Exhibit 4.2 to
the Company's Registration Statement No. 33-80343 on Form S-8).
5 Opinion of Barnes & Thornburg regarding legality.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of KPMG Peat Marwick LLP.
23.3 Consent of Barnes & Thornburg (included in Exhibit 5).
ITEM 9. UNDERTAKINGS.
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 to include any
material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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;
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
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The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's Annual Report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange of 1934 (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in the 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.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the 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 Act and will be governed by the final adjudication of
such issue.
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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 Phoenix, State of Arizona, on December 4, 1997.
WAVEPHORE, INC.
By: /s/ David E. Deeds
----------------------------------
David E. Deeds, Chairman,
Chief Executive Officer and President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ David E. Deeds Chairman of the Board, Chief December 4, 1997
David E. Deeds Executive Officer and President
(Principal Executive Officer)
/s/ R. Glenn Williamson Executive Vice President, Chief December 4, 1997
R. Glenn Williamson Operating Officer and
Director
/s/ Kenneth D. Swenson Executive Vice President, December 4, 1997
Kenneth D. Swenson Chief Financial Officer,
Treasurer (Principal Financial
Officer and Principal Accounting
Officer) and Director
/s/ C. Roland Haden
C. Roland Haden Director December 4, 1997
/s/ Glenn Scolnik Director December 4, 1997
Glenn Scolnik
/s/ J. Robert Collins Director December 4, 1997
J. Robert Collins
9
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EXHIBIT 5
WAVEPHORE, INC. December 2, 1997
3311 North 44th Street
Phoenix, Arizona 85018
Re: Registration of Common Shares on Form S-8
Gentlemen:
You have requested our opinion in connection with the Registration
Statement on Form S-8 (the "Registration Statement") of WavePhore, Inc., an
Indiana corporation (the "Corporation"), relating to the offer and sale of up to
4,000,000 shares of the Common Stock, no par value per share, of the Corporation
(the "Common Shares") under the WavePhore, Inc. 1997 Incentive Plan (the
"Plan"). In connection with your request, we have made such examination of the
corporate records and proceedings of the Corporation and considered such
questions of law and taken such further action as we deemed necessary or
appropriate to enable us to render this opinion.
Based upon such examination, we are of the opinion that, when the
Common Shares have been purchased and the purchase price therefor has been paid
as described in the Plan and when the Corporation has complied with the
Securities Act of 1933, as amended, and with the securities laws of the State of
Indiana and all other jurisdictions in which Common Shares are to be sold
pursuant to the exercise of stock options or stock appreciation rights or the
issuance of phantom stock or restricted stock granted under the Plan, the Common
Shares will be legally issued, fully paid and nonassessable.
This opinion letter is limited to the current federal laws of the
United States and the current internal laws of the state of Indiana (without
giving effect to any conflict of law principles thereof) and we have not
considered, and express no opinion on, the laws of any other jurisdiction. This
opinion letter is dated and speaks as of the date of delivery.
We consent to the filing of this opinion as Exhibit 5 to the
Registration Statement. In giving this consent, however, we do not admit that we
are in the category of persons whose consent is required under Section 7 of the
Securities Act of 1933, as amended, or the Rules and Regulations of the
Securities and Exchange Commission thereunder.
Very truly yours,
/s/ Barnes & Thornburg
<PAGE> 1
EXHIBIT 23.1
Consent of Ernst & Young LLP, Independent Auditors
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the 1997 Incentive Plan of WavePhore, Inc. of our
report dated February 14, 1997, with respect to the consolidated financial
statements of WavePhore, Inc. included in its Annual Report (Form 10-K) for the
year ended December 31, 1996, filed with the Securities and Exchange Commission.
Ernst & Young LLP
Phoenix, Arizona
December 1, 1997
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EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
The Board of Directors
Paracel Online Systems, Inc.
We consent to the incorporation by reference in the registration statement on
Form S-8 and related Prospectus of WavePhore, Inc. for the registration of
4,000,000 shares of its common stock, of our report dated July 3, 1997, with
respect to the balance sheets of Paracel Online Systems, Inc. (formerly Carthage
International, Inc.), a wholly owned subsidiary of Paracel, Inc., as of December
31, 1996 and 1995, and the related statements of operations, stockholders'
equity (deficiency) and cash flows for the period from January 1, 1995 to
December 4, 1995 (Predecessor), the period from December 5, 1995 (acquisition)
to December 31, 1995 and the year ended December 31, 1996 (Successor), which
report appears in Form 8-K/A of WavePhore, Inc. dated August 12, 1997.
KPMG Peat Marwick LLP
Los Angeles, California
November 25, 1997
