<PAGE>
As filed with the Securities and Exchange Commission on November 18, 1998
Registration No. 333-63173
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------
AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
BLUE WAVE SYSTEMS INC.
(Exact name of registrant as specified in its charter)
Delaware 41-1425902
(State of incorporation) (I.R.S. employer identification no.)
2410 Luna Road
Carrollton, Texas 75006
972-277-4600
(Address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
-------------------
Charles D. Brockenbush
Vice President-Finance and Chief Financial Officer
Blue Wave Systems Inc.
2410 Luna Road
Carrollton, Texas 75006
972-277-4600
(Name, address including zip code, and telephone number, including area
code, of agents for service)
-------------------
Copy to:
Bruce H. Hallett
Crouch & Hallett, L.L.P.
717 N. Harwood St., Suite 1400
Dallas, Texas 75201
(214) 953-0053
-------------------
Approximate date of commencement of proposed sale to the public: As soon as
practicable after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
--------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------
Title of Each Class Proposed Maximum Proposed Maximum Amount of
of Securities Being Amount Being Offering Price Per Aggregate Offering Registration
Registered Registered Share(1) Price Fee
- ---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.01 7,876,964
par value shares $2.8125 $22,153,962 $6,536
- ---------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for purposes of calculating the amount of the
registration fee pursuant to the provisions of Rule 457(c) under the Securities
Act of 1933 based on the average of the high and low prices for the Common Stock
as reported on the Nasdaq National Market on September 2, 1998.
-------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+ Information contained herein is subject to completion or amendment. A +
+ registration statement relating to these securities has been filed with +
+ the Securities and Exchange Commission. These securities may not be +
+ sold nor may an offer to buy be accepted prior to the time the +
+ registration statement becomes effective. This prospectus shall not +
+ constitute an offer to sell or the solicitation of an offer to buy, nor +
+ shall there be any sale of these securities in any state in which such +
+ offer, solicitation or sale would be unlawful prior to registration or +
+ qualification under the securities laws of any such State. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
Subject to Completion, dated November 18, 1998
BLUE WAVE SYSTEMS INC.
----------------
7,876,964 SHARES
COMMON STOCK, $0.01 PAR VALUE
----------------
The 7,876,964 shares (the "Shares") of Common Stock, $0.01 par value
(the "Common Stock"), of Blue Wave Systems Inc., a Delaware corporation (the
"Company"), offered hereby are being sold by the Selling Stockholders (as
defined). See "Selling Stockholders." The Company will not receive any of the
proceeds from the sale of the Shares offered hereby.
The Shares may be offered by the Selling Stockholders from time to
time in open market transactions (which may include block transactions) or
otherwise in the over-the-counter market through the Nasdaq National Market (the
"NMS"), or in private transactions at prices relating to prevailing market
prices or at negotiated prices. The Selling Stockholders may effect such
transactions by selling the Shares to or through broker-dealers, and such
broker-dealers may receive compensation in the form of discounts, concessions or
commissions from the Selling Stockholders and/or purchasers of the Shares for
whom such broker-dealers may act as agent or to whom they sell as principal or
both (which compensation as to a particular broker-dealer might be in excess of
customary commissions). The Selling Stockholders and any broker-dealer acting
in connection with the sale of the Shares offered hereby may be deemed to be
"underwriters" within the meaning of the Securities Act of 1933, as amended (the
"Act"), in which event any discounts, concessions or commissions received by
them, which are not expected to exceed those customary in the types of
transactions involved, or any profit on resales of the Shares by them, may be
deemed to be underwriting commissions or discounts under the Act. The offering
contemplated hereby will terminate as to the Shares upon the earlier to occur of
(i) April 27, 2001, or (ii) such time as all of the Shares either have been sold
by the Selling Stockholders or have become eligible for resale under the Act
without the volume limitations of Rule 144 under the Act, pursuant to an
agreement to which the Company and Blue Wave Systems Limited (f/k/a Loughborough
Sound Images Limited), a company registered in England and Wales ("Blue Wave
Sub"), are parties. Blue Wave Sub, which is a wholly owned subsidiary of the
Company, was acquired by the Company from the Selling Stockholders. See
"Selling Stockholders."
The Company's principal offices are located at 2410 Luna Road,
Carrollton, Texas 75006, and its telephone number is 972-277-4600.
The costs, expenses and fees incurred in connection with the
registration of the Shares, which are estimated to be $50,000 (excluding selling
commissions and brokerage fees incurred by the Selling Stockholders), will be
paid by the Company, which has also agreed to indemnify certain of the Selling
Stockholders against certain liabilities, including liabilities under the Act.
SEE "RISK FACTORS" BEGINNING ON PAGE 2 HEREOF FOR A DISCUSSION OF CERTAIN
FACTORS THAT SHOULD BE CONSIDERED BY POTENTIAL PURCHASERS OF THE COMMON STOCK.
The Common Stock is traded on the NMS under the symbol "BWSI." The
last reported sale price of the Common Stock on the NMS on November 17, 1998
was $2.81 per share.
----------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
----------------
The date of this Prospectus is November 18, 1998.
<PAGE>
RISK FACTORS
Prospective investors should carefully consider the following factors in
addition to the other information set forth in this Prospectus before making an
investment in the Shares.
Technological Change. The market for high performance computer sub-systems
and components has traditionally experienced short product life cycles and rapid
technological change, requiring high levels of expenditures for research and
development. The Company has introduced several digital signal processing
("DSP") products during the past five years and, in order to retain its
competitive position, must continue to enhance its existing products, including
Blue Wave Sub's products, and must successfully develop and introduce new
products to the market. In the event the Company does not continue to
incorporate new advances in DSP technology into its products, the Company's
business will be adversely affected. To the extent that technologies other than
those offered by the Company prove to be superior for the high performance
applications required by the Company's customers, the Company's business would
be significantly impaired.
Quarterly Fluctuations. The Company's quarterly financial results may vary
significantly depending upon factors such as the timing of significant orders
and the timing and success of new product introductions by the Company and Blue
Wave Sub and their competitors. In the most recent fiscal years, the Company's
business has been increasingly dominated by longer and larger customer
contracts, and Blue Wave Sub is increasingly entering into larger volume
customer contracts. Therefore, the procurement or loss of a single contract, or
the change in delivery schedules thereunder, can significantly affect quarterly
financial results. Factors such as quarterly variations in financial results
could cause the market price of the Common Stock to fluctuate substantially.
Integration of the Company's and Blue Wave Sub's Operations. The Company
and Blue Wave Sub may not be able to successfully continue to integrate their
operations, facilities and management. Such integration could also have an
adverse effect upon the Company and Blue Wave Sub's respective relationships
with customers, suppliers and key employees. The diversion of management time
towards such integration may also adversely affect customer support of existing
products and the development of new products.
Defense Industry Customer Concentration. The Company's largest single
concentration of customers are prime contractors in the United States Military
and Aerospace Industry. The United States federal government has reduced overall
defense spending and, in certain cases, delayed or deferred funding for defense
applications, which in turn has, in certain occasions, adversely affected the
Company's revenues. The Company believes, however, that reduced defense spending
has increased the demand for efficiency and for upgraded electronics in new and
existing defense electronics systems. There can be no assurance that continued
defense cutbacks would not adversely affect the Company's customers and its
business. Additionally, there has been extensive consolidation of companies in
the defense industry, and further consolidation is possible in the future. There
can be no assurance that such consolidation will not adversely affect the
Company. The combination between the Company and Blue Wave Sub lessened this
customer concentration for the Company.
2
<PAGE>
Dependence upon Suppliers and Subcontractors. All of the Company's products
incorporate electronic components available from a limited number of sources. In
the event of shortages of any of the single source components, the Company would
be severely impacted. The vendors of these single source components include
Texas Instruments, Cypress Semiconductor, Linear Technology, Matsushita,
Motorola, Philips, Quality Semiconductor, Quick Logic, Advanced Interconnection
Technology and Xilinx. In addition, neither the Company nor Blue Wave Sub has
internal manufacturing capability. In the event that one or more of the several
qualified subcontractors currently used by the Company should cease operations
or become unable or unwilling to handle the Company's requirements, the Company
may be adversely affected. In many cases, the Company's contracts with its key
customers contain remedial and penalty clauses that could be triggered as a
result of non-performance by one of the Company's suppliers or subcontractors.
Dependence on Key Personnel. The Company and Blue Wave Sub are highly
dependent on their key sales and technical personnel. The Company's future
success will also depend, in part, on its ability to attract and retain highly
qualified personnel, which are in high demand in the job marketplace. There can
be no assurance that the Company will be successful in hiring or retaining
qualified personnel. The loss of key personnel, or the inability to hire and
retain qualified personnel, could have an adverse effect on the Company's
business, financial condition and results of operations.
Competition. The Company participates in a highly competitive industry,
which is subject to rapid and innovative technological change. There can be no
assurance that future technological changes or the development of new or
competitive products by others will not render the Company's or Blue Wave Sub's
current or planned products less competitive or obsolete. Additionally, many of
the companies with which the Company competes have significantly greater
financial and other resources than the Company.
Historical Operating Losses. Recently, the Company has incurred significant
operating losses, including approximately $1,084,000, $311,000 and $9,770,000
(including a non-recurring provision of $8,426,000 for merger and realignment
expenses) in the second, third and fourth quarters of fiscal 1998, respectively.
The Company also reported a $760,000 operating loss in its first quarter of
fiscal 1999, ended September 30, 1998. The recent losses are due primarily to a
decrease in the Company's revenues and, to a lesser extent, increased spending
for product and market development. The decline in revenues is attributable
to the risks identified in "Risk Factors", specifically "Technological Change",
"Quarterly Fluctuations", "Dependence upon Suppliers and Subcontractors", and
"Defense Industry Concentration." Many of the Company's potential customers,
including those involved in telecommunications and defense industries, are
evaluating new DSP microprocessor technology for their next generation products,
which appear to have dramatic performance enhancements as compared to the
current, widely available DSP microprocessors. Since many customers are in an
evaluation stage, and availability of certain new DSP microprocessors is
limited, the Company's ability to generate significant revenues from new DSP
microprocessors is currently limited. The Company's ability to begin to generate
future profits will, in large part, depend on market acceptance of the Company's
new products which incorporate these next generation DSP microprocessors.
Year 2000 Compliance. Currently, there is significant uncertainty in the
software industry and among software users regarding the impact of the year 2000
on installed software. Software database modifications, and/or implementation
modifications, will be required to enable such software to distinguish between
21/st/ and 20/th/ century dates. The Company has implemented a plan ("Y2K Plan")
to attempt to assess and mitigate the potential impact of the Year 2000 problem
throughout the Company. The Company uses third-party system software which will
need to be modified or replaced in order to address Year 2000 compliance.
Although the Company believes that its Y2K Plan will adequately address the
potential impact caused by the Year 2000 problem, there can be no assurance that
the Company's Y2K Plan will be sufficiently comprehensive or that it will be
completed on a timely basis. In addition, there can be no assurance that the
systems of other companies on which the Company's systems rely will be Y2K
compliant, or that a failure to convert by a supplier or customer, or a
conversion that is incompatible with the Company's systems, would not have a
material adverse affect on the Company. If a key supplier of the Company fails
to be Y2K compliant, the Company could suffer a material loss of business or
incur significant additional expenses. The Company has developed the framework
for contingency plans in the event it or third parties are unable to complete
system modifications to address the Year 2000 issue.
3
<PAGE>
SELLING STOCKHOLDERS
The Selling Stockholders acquired their shares of Common Stock from the
Company pursuant to its acquisition (the "Acquisition") of all of the
outstanding share capital of Blue Wave Sub, which was effected on April 27,
1998. In connection with the Acquisition, former holders of securities issued by
Blue Wave Sub received approximately 8,441,000 shares of Common Stock (including
shares issuable under options of the Company exchanged for similar options that
had been granted by Blue Wave Sub prior to the Acquisition). The Selling
Shareholders include all the former shareholders and certain former option
holders of Blue Wave Sub who received the Shares in the Acquisition. The Company
is registering the Shares of the Selling Stockholders pursuant to certain
registration rights granted to them pursuant to a Letter Agreement dated March
24, 1998, whereby the Share Purchase Agreement between Blue Wave Sub and the
Company, which provided for the Acquisition, was amended to extend the closing
date, remove the requirement that the Shares be registered before the
Acquisition and grant such registration rights to the Selling Stockholders. The
offering of the Shares contemplated hereby will terminate on April 27, 2001, or
such earlier date as all Shares offered hereby either have been sold or have
become eligible for resale under the Act without the volume limitations of Rule
144 under the Act.
The table below sets forth the beneficial ownership of the Common Stock by
the persons selling shares of Common Stock pursuant to this Prospectus (the
"Selling Stockholders") at August 1, 1998, and after giving effect to the sale
of the shares of Common Stock offered hereby. Except as otherwise noted, each of
the persons named below has sole voting and investment power with respect to the
shares of Common Stock beneficially owned by him or it. For the purposes of
reporting beneficial ownership herein, a person is considered the beneficial
owner of the shares over which such person holds or shares voting or investment
power, including the power to direct the disposition of such shares, or over
which such a person can acquire such power within 60 days, for example, by the
exercise of stock options or the conversion of securities.
<TABLE>
<CAPTION>
Percentage of
Outstanding Shares
Name of Shares Owned Shares Shares Owned Owned After
Shareholder Before the Offering Offered Hereby After the Offering/(1)/ the Offering/(1)/
- ----------- ------------------- -------------- ----------------------- ------------------
<S> <C> <C> <C> <C>
David John Quarmby/(2)/ 1,519,126 1,519,126 -- --
Rhoda Mary Quarmby/(3)/ 1,519,126 1,519,126 -- --
Rhoda Mary Quarmby & 94,632 94,632 -- --
A. M.C. Dalgleish
(As Trustees for
Quarmby Family
Settlement Account
QAU6)
Dr. G. M. Duck/(4)/ 1,746,811 1,746,811 -- --
E. A. Duck/(5)/ 1,746,811 1,746,811 -- --
Dr. G. M. Duck & E. A. 83,465 83,465 -- --
Duck (As Trustees of
G. M. Duck Children's
Settlement Trust)
Simon Yates/(6)(7)/ 2,561,402 2,473,868 -- --
</TABLE>
4
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
The Regent Trust 227,116 227,116 -- --
Company Limited (As
Trustee of the A.
Christofi
Settlement)
Steve Warman/(8)/ 296,481 296,481 -- --
O. H. Securities 170,337 170,337 -- --
Limited (As Nominee
for RHB Trust Co.
Ltd)/(9)/
March Investments 117,627 117,627 -- --
Party Ltd.
R. S. Management Party 236,958 236,958 -- --
John Forrest/(10)/ 18,926 18,926 -- --
Eagle Trustees Limited 223,142 223,142 -- --
(As Trustee of the
Loughborough Sound
Images PLC, Employee
Share Trust)
Brian T. Newall/(11)/ 312,568 265,726 -- --
Pauline Elizabeth 312,568 265,726 -- --
Newall/(12)/
Brian T. Newall & 42,300 42,300 -- --
Pauline Elizabeth
Newall (As Trustees
of the Newall
Children's Trust)
Kevin Parslow/(13)(7)/ 446,565 198,819 -- --
Robert N. Shaddock & 52,520 52,520 -- --
Robert P. Harris/(14)/
Shelley M. Shaddock/(15)/ 693,366 605,832 -- --
Robert N. 693,366 605,832 -- --
Shaddock/(16)(7)/
Kevin Parslow & Robert 98,038 98,038 -- --
P. Harris (as
Trustees for "No. 1
Holding RNS" and "No.
2 Holding RNS")/(17)/
Cornhill Holdings 56,873 56,873 -- --
Limited
Seonaid R. Dudley 9,463 9,463 -- --
Sylvia H. Thomas 9,463 9,463 -- --
N. J. Keeling/(18)(7)/ 4,068 946 -- --
Angela Dunton/(7)/ 4,069 4,069 -- --
R. Weir/(7)/ 4,069 4,069 -- --
Kevin Pott/(7)/ 4,069 4,069 -- --
John Anthony Edwards/(7)/ 4,069 4,069 -- --
Steven Hendry/(7)/ 4,069 4,069 -- --
</TABLE>
5
<PAGE>
- -------------------
(1) Assumes that all of the Shares offered hereby are sold.
(2) Served as a director of Blue Wave Sub from its formation until the
Acquisition. Includes 123,021 shares beneficially owned by his spouse,
Rhoda Mary Quarmby, of which 94,632 shares are held as trustee for the
Quarmby Family Settlement Account QAU6.
(3) Includes 94,632 shares held as trustee for the Quarmby Family Settlement
Account QAU6 and 1,396,105 shares beneficially owned by her spouse, David
John Quarmby.
(4) Served as Joint Chairman of Blue Wave Sub until September 30, 1995, and
served thereafter as a non-executive director of Blue Wave Sub until the
Acquisition. Includes 83,465 shares held by Dr. Duck as trustee for the G.
M. Duck Children's Settlement Trust and 101,445 shares beneficially owned
by his spouse, E. A. Duck.
(5) Includes 83,465 shares held by Mrs. E. A. Duck as trustee for the G. M.
Duck Children's Settlement Trust and 1,561,901 shares owned by her spouse,
Dr. Duck.
(6) Serves as the Chief Executive Officer and President and Director of the
Company, and has served as the sole managing director of Blue Wave Sub
since 1995. Includes 1,903,616 shares held by Mr. Yates as trustee under a
voting trust agreement for the benefit of Boston Holdings Limited, a former
shareholder of Blue Wave Sub and 87,534 shares issuable upon exercise of
options for shares of Common Stock issued by the Company in the
Acquisition.
(7) Current or former employee of the Company and/or Blue Wave Sub.
(8) Includes 170,337 shares held by RHB Trust Co. Ltd. for the benefit of Mr.
Warman.
(9) Held by RHB Trust Co. Ltd. for the benefit of Steve Warman.
(10) Served as a non-executive director of Blue Wave Sub until the Acquisition,
after which he has served as a director of the Company.
(11) Served as a director of Blue Wave Sub until 1995. Includes 138,825 shares
owned as nominee for Bentley Investments Ltd., 42,300 shares held with his
spouse as trustees for Newall Children's Trust, 84,601 additional shares
beneficially owned by his spouse, Pauline Elizabeth Newell, and 46,842
shares issuable upon the exercise of options for shares of Common Stock
issued by the Company in the Acquisition.
(12) Includes 42,300 shares held with her spouse as trustees for the Newall
Children's Trust and 185,667 additional shares beneficially owned by her
spouse, Brian T. Newall, 46,842 of which are issuable upon the exercise of
options for shares of Common Stock issued by the Company in the
Acquisition.
(13) Served as sales director of Blue Wave Sub since 1994, and was named Vice
President, Worldwide Sales of the Company after the Acquisition. Includes
52,520 shares held by Robert N. Shaddock and Robert Harris for the benefit
of Mr. Parslow, 98,038 shares held as trustee for the benefit of Robert N.
Shaddock and 247,746 shares issuable upon exercise of options for shares of
Common Stock issued by the Company in the Acquisition.
(14) Held for the benefit of Kevin Parslow.
(15) Includes 608,765 shares beneficially owned by her spouse, Robert N.
Shaddock, of which 52,520 are held as trustee, 98,038 are held in trusts
for his benefit and 87,534 are issuable upon the exercise of options for
shares of Common Stock issued by the Company in the Acquisition.
(16) Served as marketing director of Blue Wave Sub since 1997, and was named
Executive Vice President of the Company after the Acquisition. Includes
84,601 shares held by his spouse, Shelley M. Shaddock, 52,520 shares held
as trustee with Robert Harris for the benefit of Kevin Parslow, 98,038
shares held by Kevin Parslow and Robert P. Harris as trustees for the
benefit of Mr. Shaddock, and 87,534 shares issuable upon the exercise of
options for shares of Common Stock issued by the Company in the
Acquisition.
(17) Held for the benefit of Robert N. Shaddock.
(18) Includes 3,122 shares issuable upon the exercise of options for shares of
Common Stock issued by the Company in the Acquisition.
6
<PAGE>
LEGAL MATTERS
The validity of the Shares offered hereby has been passed upon by Crouch &
Hallett, L.L.P., Dallas, Texas.
EXPERTS
The financial statements and schedule of Blue Wave Systems Inc. as of June
30, 1998 and for the three years in the period ended June 30, 1998, incorporated
by reference in this prospectus and elsewhere in the registration statement,
have been audited by Arthur Andersen LLP, independent public accountants, as set
forth in their report. In the report, that firm states that with respect to
certain subsidiaries, and for certain periods, its opinion is based on the
report of other independent public accountants, namely PricewaterhouseCoopers,
independent accountants. The financial statements and supporting schedule
referred to above have been included in reliance upon the authority of those
firms as experts in giving said reports.
The financial statements of Loughborough Sound Images Limited (n/k/a Blue
Wave Systems Ltd.), as of September 30, 1997 and for the two years in the period
ended September 30, 1997, not presented separately herein, have been audited by
PricewaterhouseCoopers, independent accountants, whose report thereon is
incorporated by reference herein. The report on such financial statements has
been so incorporated in reliance on such independent accountants given on the
authority of such firm as experts in auditing and accounting.
7
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934 (the "Exchange Act") and in accordance therewith files
reports and other information with the Securities and Exchange Commission (the
"Commission"). Reports, proxy statements and other information concerning the
Company can be inspected and copied at the public reference facilities
maintained by the Commission at its offices at Room 1024, 450 Fifth Street,
N.W., Washington, D.C. 20549, and at the Commission's Regional Offices at
Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661 and 7 World Trade Center, Suite 1300, New York, New York 10046.
Copies of such material can be obtained from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed
rates. In addition, such material can be inspected at the offices of the Nasdaq
Stock Market, Inc., 1735 K Street, N.W., Washington, D.C. 20006.
Reports, proxy statements and other information concerning the Company can
also be obtained electronically through a variety of databases, including among
others, the Commission's Electronic Data Gathering, Analysis and Retrieval
program, Knight-Ridder Information, Inc., Federal Filings/Dow Jones and
Lexis/Nexis. Additionally, the Commission maintains a Website (at
http://www.sec.gov) that contains such information regarding the Company.
DOCUMENTS INCORPORATED BY REFERENCE
The following documents filed by the Company with the Commission are
incorporated in this Prospectus by reference:
1. the Company's Annual Report on Form 10-K for the year ended June 30,
1998, as amended to date;
2. the Company's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1998; and
3. the description of the Common Stock which is contained in the
Company's latest registration statement filed under the Exchange Act, including
any amendments or reports filed for the purpose of updating such description.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act prior to the termination of the offering
of the Shares hereunder shall be deemed to be incorporated herein by reference
and shall be a part hereof from the date of the filing of such documents. Any
statements contained in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or replaced for purposes of this
Prospectus to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or replaces such statement. Any such statement so
modified or replaced shall not be deemed, except as so modified or replaced, to
constitute a part of this Prospectus.
The Company will provide without charge to each person, including any
beneficial owner of Common Stock to whom a Prospectus is delivered, upon written
or oral request of such person, a copy of the documents incorporated by
reference herein, other than exhibits to such documents not specifically
incorporated by reference. Such requests should be directed to Blue Wave
Systems Inc., 2410 Luna Road, Carrollton, Texas 75006, Attention: Investor
Relations (telephone (972) 277-4600).
8
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
-------------------------------------------
The following expenses will be paid by the Company:
Item Amount (1)
- ---- ----------
SEC registration fee $ 6,972
Legal fees and expenses 8,000
Accounting fees 20,000
Printing 10,000
Miscellaneous 5,028
---------
Total $ 50,000
________
(1) All items other than SEC registration fee are estimated
Item 15. Indemnification of Directors and Officers.
-----------------------------------------
The Registrant's Certificate of Incorporation eliminates to the fullest
extent permissible under the General Corporation Law of Delaware the liability
of directors of the Registrant and the stockholders for monetary damages for
breach of fiduciary duty as a director. This provision does not eliminate
liability (a) for any breach of a director's duty of loyalty to the Registrant
or its stockholders; (b) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of the law; (c) in
connection with payment of any illegal dividend or illegal stock repurchase; or
(d) for any transaction from which the director derives an improper personal
benefit. In addition, these provisions do not apply to equitable remedies such
as injunctive relief.
The Bylaws of the Registrant provide that indemnification of directors and
officers shall be provided to the fullest extent permitted under Delaware law
and the Registrant's Certificate of Incorporation. Reference is also made to the
indemnification and contribution provisions of the Underwriting Agreement filed
as an exhibit to this Registration Statement.
The Registrant has entered into Indemnification Agreements with each of its
directors contractually requiring the Registrant to provide such indemnification
to the extent permitted by law.
II-1
<PAGE>
Item 16. Exhibits.
--------
2.1 Share Purchase Agreement, dated November 17, 1997, between the
Registrant and Loughborough Sound Images Limited (formerly
Loughborough Sound Images plc) (1)
2.2 Letter Agreement dated March 24, 1998, between the Registrant and
Loughborough Sound Images Limited. (1)
3.1 Certificate of Incorporation of the Registrant, as amended. (3)
3.2 Bylaws, as amended, of the Registrant. (2)
5 Opinion of Crouch & Hallett, L.L.P. (3)
10.1 Form of Indemnification and Hold Harmless Agreement. (2)
10.2 Commercial Quad-C40 Program ("Commercial") by and between Texas
Instruments, Incorporated ("TI") and the Registrant dated October 9,
1992. (2)
10.3 Amendment 1 to Commercial dated March 19, 1993. (2)
10.4 Amendment 2 to Commercial dated July 1, 1993. (2)
10.5 Amendment 3 to Commercial dated January 12, 1995. (2)
10.6 MIL-SPEC Quad-C40 Program ("MIL-SPEC") by and between TI and the
Registrant dated January 20, 1993. (2)
10.7 Amendment 1 to MIL-SPEC dated March 19, 1993. (2)
10.8 Amendment 2 to MIL-SPEC dated July 1, 1993. (2)
10.9 ASP048 License Agreement ("ASP048 License Agreement") by and between
TI and the Registrant dated December 29, 1992. (2)
10.10 Amendment 1 to ASP048 License Agreement dated July 15, 1993. (2)
10.11 MIL-SPEC Octal-C40 Program ("MIL-SPEC Octal") by and between TI and
the Registrant dated March 28, 1994. (2)
10.12 Dual MVP Digital Computer Board License Agreement by and between TI
and the Registrant dated January 12, 1995. (2)
23.1 Consent of Arthur Andersen, LLP. (3)
23.2 Consent of PricewaterhouseCoopers. (3)
23.3 Consent of Crouch & Hallett, L.L.P. (included in Exhibit 5)
24 Power of Attorney (included on p. II-4)
- --------------------
(1) Filed as an exhibit to the Registrant's Current Report on Form 8-K
dated May 12, 1998.
(2) Filed as an exhibit to the Registrant's Registration Statement on Form
S-1 (File No. 33-95852).
(3) Previously filed.
Item 17. Undertakings.
------------
(a) Rule 415 Offering
The registrant hereby undertakes (1) to file, during any period in
which offers or sales are being made of the Shares registered hereby, a post-
effective amendment to this Registration Statement 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; (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
herein, 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 at the termination of the offering.
II-2
<PAGE>
(b) Filings Incorporating Subsequent Exchange Act Documents by Reference
The registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Company's annual
report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act
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 herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Indemnification for Liability under the Securities Act of 1933
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.
II-3
<PAGE>
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-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of Carrollton and State of Texas on the 18th day of
November, 1998.
BLUE WAVE SYSTEMS INC.
By /s/ SIMON YATES
--------------------------------------------------
Simon Yates, President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed below by the following persons in
the capacities indicated and on November 18, 1998.
Signature Title
- --------- -----
/s/ SIMON YATES
- ------------------------------ President and Chief Executive Officer
Simon Yates (Chief Executive Officer)
/s/ CHARLES BROCKENBUSH
- ------------------------------ Vice President Finance and Chief Financial
Charles Brockenbush Officer (Chief Financial and Accounting
Officer)
/s/ SAM SMITH*
- ------------------------------ Chairman of the Board
Sam Smith
/s/ JOHN FORREST*
- ------------------------------ Director
John Forrest
/s/ JOHN RYNEARSON*
- ------------------------------ Director
John Rynearson
/s/ ROB SHADDOCK*
- ------------------------------ Director and Executive Vice President
Rob Shaddock
*By /s/ CHARLES BROCKENBUSH
--------------------------
Charles Brockenbush
Attorney-in-fact
II-4
