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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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WAVE TECHNOLOGIES INTERNATIONAL, INC.
(Exact name of Registrant as specified in its charter)
Missouri 43-1481443
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(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
10845 Olive Boulevard, Suite 250, St. Louis, Missouri 63141
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(Address of Principal Executive Offices) (Zip Code)
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WAVE TECHNOLOGIES INTERNATIONAL, INC.
1997 STOCK OPTION PLAN
(Full title of the plan)
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KENNETH W. KOUSKY, President
Wave Technologies International, Inc.
10845 Olive Boulevard, Suite 250
St. Louis, Missouri 63141
(Name and address of agent for service)
(314) 692-1954
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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Amount to
Title of securities be Proposed maximum Proposed maximum Amount of
to be registered registered offering price per share/1/ aggregate offering price/1/ registration fee/1/
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<S> <C> <C> <C> <C>
Common Stock, par 400,000/2/ $7.375 $2,950,000 $870.25
value $.50 per share shares
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/1/ Computed solely for the purpose of calculating the amount of the
registration fee, pursuant to Rule 457(c) and (h), based on the high and low
prices reported for the Common Stock on the Nasdaq National Market for February
17, 1998.
/2/ Plus such additional shares as may be issued pursuant to antidilution
provisions.
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Part II.
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
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The following documents are incorporated by reference in this
registration statement:
(a) Registrant's Annual Report on Form 10-KSB for the fiscal year
ended April 30, 1997; and
(b) (i) Registrant's Quarterly Report on Form 10-QSB for the quarter
ended July 31, 1997, filed pursuant to Section 13(a) of the
Exchange Act.
(ii) Registrant's Quarterly Report on Form 10-QSB for the quarter
ended October 31, 1997, filed pursuant to Section 13(a) of
the Exchange Act.
(c) The description of Registrant's Common Stock contained in the
Registration Statement on Form 8-A dated June 28, 1994
(registration number 0-24454) pursuant to Section 12 of the
Securities Exchange Act of 1934, including any amendment or
report filed for the purpose of updating such description.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934 after the date of
this registration statement and prior to the filing of a post-effective
amendment to this registration statement which indicates that all securities
offered hereunder have been sold, or which deregisters all securities then
remaining unsold under this registration statement, 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
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Not applicable; the class of securities to be offered is registered
under Section 12 of the Securities Exchange Act of 1934.
Item 5. INTEREST OF NAMED EXPERTS AND COUNSEL
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Not Applicable.
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Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
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The Registrant is incorporated under the General and Business
Corporation Law of Missouri ("BCL"). The BCL permits a corporation to indemnify
its directors and officers against expenses, judgments, settlement payments and
other costs incurred in connection with litigation and similar proceedings,
subject to certain limitations. The BCL also provides that the statutory
indemnification is not exclusive of other indemnification rights arising under
any bylaw, agreement, vote of stockholders, or otherwise. Pursuant thereto, the
Registrant's Articles of Incorporation broadly direct the Registrant to
indemnify its directors and officers to the full extent permitted by law, and
the Registrant's Bylaws set forth those indemnification rights. The Bylaws
provide that the Registrant shall indemnify directors and officers against
certain liabilities, settlements and expenses actually and reasonably incurred
by them in connection with any threatened or pending legal action, proceeding or
investigation (other than actions brought by or in the right of the Registrant)
to which any of them is, or is threatened to be, made a party by reason of their
status as a director or officer of the Registrant or of an employee benefit plan
or other entity; provided that a determination is made by specified parties that
such person acted in good faith in a manner reasonably believed to be in or not
opposed to the best interest of the Registrant and, with respect to any criminal
proceedings, had no reasonable cause to believe his or her conduct was unlawful.
With respect to any action brought by or in the right of the Registrant, the
Registrant shall indemnify directors and officers against expenses actually and
reasonably incurred by them in connection with such action if they acted in good
faith and in a manner they reasonably believed to be in or not opposed to the
best interest of the Registrant; provided that such director or officer was not
adjudged liable for negligence or misconduct in the performance of his duties to
the Registrant, unless the court in which such action was brought determined in
view of the circumstances that indemnity is proper. The Bylaws further require
indemnification of directors and officers for all reasonable expenses incurred
in connection with the successful defense (on the merits or otherwise) of any
covered proceeding and provide for partial indemnification in the case of any
partially successful defense.
As permitted by the BCL, the Articles of Incorporation of the Registrant
provide that a director of the Registrant shall not be personally liable to the
Registrant or its shareholders for monetary damages for breach of fiduciary duty
as a director, except for liability (i) for any breach of the director's duty of
loyalty to the Registrant or its shareholders, (ii) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under the Missouri statutory provision making directors personally
liable for unlawful dividends or unlawful stock repurchases or redemptions or
(iv) for any transaction from which the director derived an improper personal
benefit. The effect of this provision in the Articles is to eliminate the rights
of the Registrant and its shareholders to recover monetary damages against a
director's breach of fiduciary duty of care as a director (including breaches
resulting from negligent or grossly negligent behavior), except in the
situations described above. It does not affect the availability of equitable
remedies such as
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injunction or rescission based upon a director's breach of his duty of care, and
does not relieve a director from any violations of statutory law such as certain
liabilities imposed on directors under the federal securities laws.
As permitted by the BCL and its Bylaws, the Registrant has applied to
purchase directors' and officers' liability insurance under which each director
and officer of the Registrant will be insured, subject to the limits of the
policy, against certain losses arising from claims made against such directors
and officers by reason of any acts or omissions covered under such policy in
their respective capacities as directors or officers.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
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Not applicable.
Item 8. EXHIBITS
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The Exhibits to this Registration Statement are listed in the Exhibit Index
on Page 8 of this Registration Statement, which Index is incorporated herein by
reference.
Item 9. UNDERTAKINGS
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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) For the purpose of determining 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.
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 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.
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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 St. Louis, State of Missouri, on the 20th day of
February, 1998.
WAVE TECHNOLOGIES INTERNATIONAL, INC.
By: /s/ Kenneth W. Kousky
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Kenneth W. Kousky, President, Chairman of the
Board, Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each individual whose signature appears
below constitutes and appoints Kenneth W. Kousky and J. Michael Bowles, and each
of them, his true and lawful attorneys-in-fact and agents with full power of
substitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement and any other documents and instruments
incidental thereto, and to file the same, with all exhibits thereto, and all
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do 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, thereby ratifying and confirming all
that said attorneys-in-fact and agents and/or any of them, or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
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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Signature Title Date
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<S> <C> <C>
/s/ Kenneth W. Kousky President, Chairman of the February 20, 1998
- -------------------------------------- Board and Chief Executive
Kenneth W. Kousky Officer
(Principal Executive Officer)
/s/ J. Michael Bowles Chief Financial Officer, February 20, 1998
- -------------------------------------- Secretary
J. Michael Bowles (Principal Financial and
Accounting Officer)
/s/ David W. Kemper Director February 20, 1998
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David W. Kemper
/s/ Walter N. Torous Director February 20, 1998
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Walter N. Torous
/s/ Robert E. Lefton Director February 20, 1998
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Robert E. Lefton
/s/ Raymond J. Kalinowski Director February 20, 1998
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Raymond J. Kalinowski
/s/ Maxine K. Clark Director February 20, 1998
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Maxine K. Clark
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EXHIBIT INDEX
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Exhibit Sequentially
Number Description of Documents Numbered Page
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<C> <S> <C>
4.1 Articles of Incorporation of Registrant, as amended
and restated (filed as Exhibit 3.1 to the Registrant's
Registration Statement on Form SB-2 (Registration
No. 33-805556) and incorporated herein by reference)
4.2 Restated By-Laws of Registrant (filed as Exhibit 3.2
to the Registrant's Annual Report on Form 10-KSB
for the fiscal year ended April 30, 1997 and
incorporated herein by reference)
4.3 Wave Technologies International, Inc.
1997 Stock Option Plan (filed as Exhibit 10.18 to the
Registrant's Quarterly Report on Form 10-QSB for
the quarter ended October 31, 1997 and incorporated
herein by reference).
5.1 Opinion of Husch & Eppenberger, L.L.C. 9
(filed herewith)
23.1 Consent of Deloitte & Touche, L.L.P. 10
(filed herewith)
23.2 Consent of Counsel (contained in Exhibit 5.1)
24.1 Power of Attorney (included on Signature Page)
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EXHIBIT 5.1
February 23, 1998
Wave Technologies International, Inc.
Suite 250
10845 Olive Boulevard
St. Louis, MO 63141
Gentlemen:
We refer to the Registration Statement on Form S-8 of Wave Technologies
International, Inc., a Missouri corporation (the "Company"), to be filed with
the Securities and Exchange Commission on February 23, 1998, for the purpose of
registering under the Securities Act of 1933, 400,000 shares of Common Stock,
par value $.50 per share ("Common Stock"), of the Company. These shares are
proposed to be issued upon the exercise of stock options pursuant to the
Company's 1997 Stock Option Plan.
We have examined the Articles of Incorporation, as amended and restated,
the By-laws of the Company, as presently in effect, minutes of the applicable
meetings of the Board of Directors and shareholders of the Company, or
statements of unanimous consent in lieu of such meetings, together with such
other corporate records, certificates of public officials and other documents as
we have deemed relevant to this opinion.
Based upon the foregoing, it is our opinion that all of the aforesaid
400,000 shares of Common Stock as shall be issued from authorized but unissued
stock of the Company and paid for as described in such Registration Statement
shall be, when so issued, legally issued, fully paid and non-assessable.
We hereby consent to the inclusion of this opinion in the Registration
Statement as an exhibit thereto.
Very truly yours,
HUSCH & EPPENBERGER, LLC
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EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Wave Technologies International, Inc. on Form S-8 of our report dated June 6,
1997, appearing in the Annual Report on Form 10-KSB of Wave Technologies
International, Inc. for the year ended April 30, 1997.
/s/ Deloitte & Touche, L.L.P.
St. Louis, Missouri
February 23, 1998
