<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 2, 1999
REGISTRATION STATEMENT NO. 333-
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)
NON QUALIFIED STOCK OPTION
(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 ................... 445,000 $4.125(2) $1,835,625(2) $511
===================================================================================================================================
</TABLE>
(footnotes on following page)
<PAGE> 2
(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 such option.
2
<PAGE> 3
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 the participant in the Non Qualified Stock Option 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.
3
<PAGE> 4
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, 1998;
(b) Current Report on Form 8-K filed on January 12, 1999;
(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, 1998;
(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.
4
<PAGE> 5
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
<PAGE> 6
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 as 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
<PAGE> 7
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.
10.1 Non Qualified Stock Option Agreement between the Company and
David E. Deeds, dated October 12, 1998.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 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
7
<PAGE> 8
securities being registered which remain unsold at the termination of the
offering.
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.
8
<PAGE> 9
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 March , 1999.
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.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ David E. Deeds Chairman of the Board, Chief March 31, 1999
- ------------------ Executive Officer and President
David E. Deeds (Principal Executive Officer)
/s/ R. Glenn Williamson Executive Vice President, Chief March 31, 1999
- ----------------------- Operating Officer and
R. Glenn Williamson Director
/s/ Kenneth D. Swenson Executive Vice President, March 31, 1999
- ---------------------- Chief Financial Officer,
Kenneth D. Swenson Treasurer (Principal Financial
Officer and Principal Accounting
Officer) and Director
/s/ C. Roland Haden
- ----------------------
C. Roland Haden Director March 31, 1999
/s/ Glenn Scolnik Director March 31, 1999
- -----------------
Glenn Scolnik
/s/ J. Robert Collins Director March 31, 1999
- ---------------------
J. Robert Collins
</TABLE>
9
<PAGE> 10
INDEX TO EXHIBITS
4.1 Restated Articles of Incorporation (incorporated by reference
to Exhibit 4 to the 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.
10.1 Non Qualified Stock Option Agreement between the Company and
David E. Deeds, dated October 12, 1998.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Barnes & Thornburg (included in Exhibit 5).
10
<PAGE> 1
EXHIBIT 5
WAVEPHORE, INC. March 31, 1999
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 445,000 shares (the "Shares") of the Common Stock, no par value per
share, of the Corporation, which Shares consist of shares that have been
reserved for issuance upon the exercise of an option (the "Option") evidenced by
that certain under the Non-Qualified Stock Option Agreement between the
Corporation and David E. Deeds dated October 12, 1998 (the "Option Agreement").
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 Shares have been duly purchased upon the exercise of the Option and the
purchase price therefor has been paid as described in the Option Agreement, 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 Shares may be issued pursuant to the exercise of the Option, the 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 10.1
WAVEPHORE, INC.
NON QUALIFIED STOCK OPTION AGREEMENT
This OPTION AGREEMENT is made this 12th day of October, 1998, between
WavePhore, Inc., an Indiana corporation (the "Company"), 3311 North 44th Street,
Phoenix, AZ 85018, and David E. Deeds ("the Optionee"), 3311 North 44th Street,
Phoenix, AZ 85018.
In consideration of the mutual covenants hereinafter set forth and for
other good and valuable consideration, the parties hereto agree as follows:
1. GRANT OF OPTION. The Company hereby grants to the Optionee, subject
to the terms and conditions hereinafter set forth, the right and option to
purchase from the Company all or any part of an aggregate of 445,000 of the
Company's Common Shares (the "Common Shares") at the purchase price of $4.125
per share (the "Shares"), such option to be exercised as hereinafter provided.
The option (the "Option") is not intended to be, and will not be treated as, an
Incentive Stock Option within the meaning of Section 422 of the Internal Revenue
Code of 1986, as amended. The number of Shares with respect to which the Option
is exercisable, and the purchase price with respect to each Share to be acquired
pursuant to the exercise of the Option herein granted, each are subject to
adjustment under certain circumstances as more fully set forth in Section 6
hereof. The term "Common Shares" as used herein shall include any other class of
stock or other securities resulting from any such adjustment.
2. EXERCISE OF OPTION. The Option herein granted shall be exercisable
as to all 445,000 shares commencing on October 12, 1998, and, to the extent that
it has not theretofore been exercised, shall expire at 11:59 P.M., Mountain
Time, on October 11, 2008.
3. OPTION EXERCISE. The Option granted hereunder, to the extent then
exercisable, may be exercised in whole or in any part, and may be exercised in
part from time to time, all subject to the limitations on exercise set forth
herein provided that no partial exercise of the Option shall be for an aggregate
exercise price of less than $1,000 unless such partial exercise is for the last
remaining unexercised portion of the Option. The partial exercise of the Option
shall not cause the expiration, termination or cancellation of the remaining
portion thereof. The Option may be exercised by delivering written notice, in
the form attached hereto, to the principal office of the Company, to the
attention of its Secretary, no less than one business day in advance of the
effective date of the proposed exercise. Such notice shall be accompanied by
this Option Agreement and shall specify the number of Common Shares with respect
to which the Option is being exercised and the effective date of the proposed
exercise, and shall be signed by the Optionee. The Optionee may withdraw such
notice at any time prior to the close of business on the business day
immediately preceding the effective date of the proposed exercise, in which case
this Option Agreement shall be returned to the Optionee.
<PAGE> 2
4. PAYMENT OF THE PURCHASE PRICE. Payment for Common Shares to be
purchased upon the exercise of the Option shall be made on the effective date of
such exercise either (i) in cash, by certified check, bank cashier's check or
wire transfer, or (ii) subject to the approval of the Company's Board of
Directors (the "Board"), in Common Shares owned by the Optionee and valued at
their Fair Market Value on the effective date of such exercise (determined in
accordance with the method for establishing Fair Market Value as set forth
below), or partly in Common Shares with the balance in cash, by certified check,
bank cashier's check or wire transfer. Any payment in Common Shares shall be
effected by the delivery of such Shares to the Secretary of the Company, duly
endorsed in blank or accompanied by stock powers duly executed in blank,
together with any other documents and evidences as the Secretary of the Company
shall require from time to time.
The "Fair Market Value of Common Shares with respect to any day shall
be (i) the closing sale price on the immediately preceding business day of
Common Shares as reported on the principal securities exchange on which Common
shares are then listed or admitted to trading, or (ii) if not so reported, the
average of the closing bid and ask prices on the immediately preceding business
day as reported on the National Association of Securities Dealers Automated
Quotation System, or (iii) if not so reported, as furnished by any member of the
National Association of Securities Dealers, Inc. selected by the Board. In the
event that the price of Common Shares shall not be so reported, the Fair Market
Value of Common Shares shall be determined by the Board in its absolute
discretion.
Provided that the Common Shares to be purchased upon exercise of the
Option may be sold in compliance with applicable securities laws, the Option may
be exercised by a broker-dealer acting on behalf of the Optionee if (i) the
broker-dealer has received from the Optionee or the Company a
fully-and-duly-endorsed agreement evidencing the Option and instructions signed
by the Optionee requesting that the Company deliver the Common Shares subject to
the Option to the broker-dealer on behalf of the Optionee and specifying the
account into which such Shares should be deposited, (ii) adequate provision has
been made with respect to the payment of any withholding taxes due upon such
exercise and (iii) the broker-dealer and the Optionee have otherwise complied
with Section 220.3(e)(4) of Regulation T, 12 CFR Part 220.
Certificates for Common Shares purchased upon the exercise of the
Option shall be issued in the name of the Optionee and delivered to the Optionee
as soon as practicable following the effective date on which the Option is
exercised.
5. EFFECT OF TERMINATION AS EMPLOYEE. This Option shall not be subject
to termination in the event that the Optionee's employment by the Company shall
terminate.
6. ADJUSTMENTS AND CORPORATE REORGANIZATIONS If the Company's Common
Shares subject to this Option are increased or decreased, or changed into or
exchanged for a different number or kind of shares or securities, as a result of
one or more reorganizations, recapitalizations, stock splits, reverse stock
splits, stock dividends or the like, appropriate adjustments shall be made in
the number and/or kind of shares or securities for which the unexercised
portions of this Option may thereafter be exercised, all without any change in
the aggregate exercise price applicable to the unexercised portions of this
Option, but with a corresponding adjustment in the exercise price per share or
other unit. No fractional share of
<PAGE> 3
stock shall be issued under this Option or in connection with any such
adjustment. Such adjustment shall be made by or under the authority of the
Company's Board of Directors whose determinations as to what adjustments shall
be made, and the extent thereof, shall be final, binding and conclusive.
7. INVESTMENT REPRESENTATIONS. The Optionee hereby represents, agrees
and warrants to the Company that unless a registration statement under the
Securities Act of 1933, as amended (the "Securities Act"), is in effect as to
shares purchased upon any exercise of the Option:
(a) Any and all Shares so purchased shall be acquired for the
Optionee's personal account for investment only, and not with a view
to, or for sale in connection with, any distribution of the Shares in
violation of the Securities Act, any rule or regulation under the
Securities Act, or any applicable state securities law.
(b) The Optionee has had such opportunity as the Optionee has
deemed adequate to obtain from representatives of the Company such
information as is necessary to permit the Optionee to evaluate the
merits and risks of his investment in the Company.
(c) The Optionee is able to bear the economic risk of holding
any Shares acquired pursuant to the exercise of the Option for an
indefinite period.
Upon each exercise of the Option, the Optionee shall be deemed to have
reaffirmed, as of the date of such exercise, the representations made in this
Section 7.
8. SECURITIES LAW MATTERS. As soon as practicable, Company shall
register pursuant to the Securities Act all Shares which may be issued pursuant
the Option and to effect similar compliance under any state securities laws.
Notwithstanding anything to the contrary, the Company shall not be obligated to
cause to be issued or delivered any certificates evidencing the Shares purchased
pursuant to the Option unless and until the Company is advised by its counsel
that the issuance and delivery of such certificates is in compliance with, and
will not cause the Company to incur any liability under, any applicable federal,
state or other laws, any other requirement of law, regulation of governmental
authority or of any regulatory body having jurisdiction over the Company, and
the requirements of any securities exchange on which the Common Shares are
traded. The Company may, in its sole discretion, defer the effectiveness of any
exercise of the Option in order to allow the issuance of Common Shares pursuant
to the Option to be made pursuant to registration or an exemption from the
registration or other methods for compliance available under federal or state
securities laws. The Company shall inform the Optionee in writing of its
decision to defer the effectiveness of the exercise of the Option. During the
period that the effectiveness of the exercise of the Option has been deferred,
the Optionee may, by written notice, withdraw such exercise and obtain the
refund of any amount paid with respect thereto.
9. WITHHOLDING TAXES. The Company's obligation to deliver Shares upon
exercise of the Option shall be subject to the Optionee's satisfaction of all
applicable federal, state and local tax withholding requirements.
<PAGE> 4
At the election of the Optionee, and subject to the approval of the
Board, when Common Shares are to be issued upon the exercise of the Option, in
lieu of the cash remittance required hereby, the Optionee may (i) tender to the
Company a number of Common Shares determined by the Optionee, the Fair Market
Value of which at the tender date the Board determines to be sufficient to
satisfy the federal, state and local withholding tax requirements, if any,
attributable to such exercise and is not greater than the Optionee's estimated
total federal, state and local tax obligations associated with such exercise; or
(ii) request that the Company withhold a number of such Common Shares determined
by the Optionee, the Fair Market Value of which at the exercise date the Board
determines to be sufficient to satisfy the federal, state and local withholding
tax requirements, if any, attributable to such exercise and is not greater than
the Optionee's estimated total federal, state and local tax obligations
associated with such exercise.
10. LEGEND ON STOCK CERTIFICATE. Unless a registration statement under
the Securities Act is in effect as to shares purchased upon any exercise of the
Option, all stock certificates representing Common Shares issued to the Optionee
upon exercise of the Option shall have affixed thereto a legend substantially in
the following form, in addition to any other legend required by applicable law
or deemed necessary or advisable by the Company:
"The shares of stock represented by this certificate have not
been registered under the Securities Act of 1933, as amended,
and may not be transferred, sold or otherwise disposed of in
the absence of an effective registration statement with
respect to the shares evidenced by this certificate, or an
opinion of counsel satisfactory to the Company to the effect
that registration under such Act is not required."
11. NONTRANSFERABILITY. Unless the Board provides otherwise, (i) no
right or interest of Optionee in the Option may be pledged, encumbered, or
hypothecated to or in favor of any party other than the Company or a Subsidiary,
or shall be subject to any lien, obligation, or liability of Optionee to any
other party other than the Company or a Subsidiary, and (ii) the Option shall
not be assignable or transferable by Optionee other than by will or the laws of
descent and distribution.
12. RIGHTS OF SHAREHOLDER. The Optionee shall have no rights as a
shareholder with respect to any Shares subject to the Option until the date of
the issuance of a stock certificate with respect to such Shares. Except as
otherwise expressly provided herein, no adjustment to the Option shall be made
for dividends or other rights for which the record date occurs prior to the date
such stock certificate is issued.
13. NO SPECIAL RIGHTS CREATED. Nothing contained in the Option or the
Plan shall confer upon the Optionee any right with respect to the continuation
of his status as an employee of the Company.
14. NOTICES. Any notice required or permitted hereunder shall be given
in writing and shall be deemed effectively given upon personal delivery or by
registered or certified mail, or
<PAGE> 5
facsimile, addressed to a party at the address set forth herein or at such other
address as such party may designate by notice in accordance with this paragraph.
15. GOVERNING LAW. This Option Agreement has been executed and
delivered by the Company in the State of Arizona and shall be construed and
enforced in accordance with the laws of such State.
IN WITNESS WHEREOF, the Company has caused this Option Agreement to be
executed by its duly authorized officer, and the Optionee has executed this
Agreement, both as of the day and year first above written.
OPTIONEE: WAVEPHORE, INC.
___________________________ By: _______________________________
David E. Deeds R. Glenn Williamson,
Executive Vice President and
Chief Operating Officer
<PAGE> 6
OPTION EXERCISE FORM
TO: WAVEPHORE, INC.
3311 North 44th Street
Phoenix, Arizona
Attention: Secretary
RE: Notice of Intention to Exercise Option
I am the Optionee under the Non Qualified Stock Option Agreement (the
"Agreement") entered into with WavePhore, Inc. (the "Company"), dated October
12, 1998. Pursuant to such Agreement, I hereby provide you with official notice
that I elect to exercise my Option to purchase the Company's Common Shares as
follows:
Number of Shares: ________________________________________
Effective Date of Exercise: ______________________________
I understand that payment for the Common Shares to be purchased by me
pursuant to the exercise of the Option must be made on the effective date of
exercise in accordance with the Agreement. I further understand and agree that
the Company shall have the right to require me to remit to the Company in cash
an amount sufficient to satisfy federal, state and local withholding tax
requirements, if any, attributable to my exercise of the Option prior to the
delivery of any certificate or certificates for such Shares.
I understand that this election to exercise the Option is irrevocable
once it is effective in accordance with the terms and conditions of the Plan.
The certificate for the Shares should be delivered to me at the address
listed below:
NAME OF OPTIONEE:
_______________________________________________________________________________
Please typewrite or print
ADDRESS:
_______________________________________________________________________________
_______________________________________________________________________________
SOCIAL SECURITY NUMBER:
_______________________________________________________________________________
DATED:______________, 19__ __________________________________
Signature of Optionee
<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 Non Qualified Stock Option Agreement between the Company
and David E. Deeds, dated October 12, 1998, of our report dated January 25,
1999, with respect to the consolidated financial statements of WavePhore, Inc.
included in its Annual Report (Form 10-K) for the year ended December 31, 1998,
filed with the Securities and Exchange Commission.
Ernst & Young LLP
Phoenix, Arizona
March 29, 1999
