<PAGE>
As Filed With The Securities And Exchange Commission on December 18, 1998
Registration No. 333-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
--------------------------
BLUE WAVE SYSTEMS INC.
(Exact name of issuer as specified in its charter)
Delaware 41-1425902
(State of incorporation) (I.R.S. employer identification no.)
2410 Luna Road 75006
Carrollton, Texas (Zip code)
(Address of principal executive offices)
--------------------------
Blue Wave Systems Inc. Stock Option Plan
Stock Option Agreements issued for options of Loughborough Sound Images Limited
(Full title of the plan)
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 and telephone number, including area code,
of agent for service)
Bruce H. Hallett
Crouch & Hallett, L.L.P.
717 N. Harwood St., Suite 1400
Dallas, Texas 75201
214-953-0053
--------------------------
APPROXIMATE DATE OF PROPOSED COMMENCEMENT OF SALES PURSUANT TO THE PLAN: Sales
to the optionees of securities proposed to be registered hereunder will occur
from time to time after the effective date of this Registration Statement.
--------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Aggregate Amount of
to be Registered Registered Price Per Share Offering Price Registration Fee
- --------------------- ---------------- ------------------ -------------- ----------------
<S> <C> <C> <C> <C>
Common Stock,
$.01 par value (1) 250,000 Shs. $2.44 (2) $610,000 $180
Common Stock,
$.01 par value (3) 564,001 Shs. $0.39 (4) $219,961 $ 65
Total 814,001 Shs. --- $829,961 $245
</TABLE>
- --------------------------------------------------------------------------------
(1) Shares issuable under Blue Wave Systems Inc. Stock Option Plan.
(2) Estimated solely for purposes of calculating the registration fee, which
has been computed in accordance with Rule 457(h).
(3) Shares issuable under Stock Option Agreements issued in exchange for
options of Loughborough Sound Images Limited.
(4) Estimated solely for purposes of calculating the registration fee, which
has been computed in accordance with Rule 457(h)(1).
<PAGE>
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The documents listed (i) through (iii) below are hereby incorporated by
reference into this Registration Statement. All documents subsequently filed by
the Company pursuant to Section 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, as amended (the "1934 Act"), prior to 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 herein and to be a part hereof from the date of
filing of such documents:
(i) the Company's latest annual report filed pursuant to Section 13 or
15(d) of the 1934 Act or the latest prospectus filed pursuant to Rule 424(b) or
(c) under the Securities Act of 1933 (the "1933 Act"), which contains, either
directly or by incorporation by reference, certified financial statements for
the Company's latest fiscal year for which such statements have been filed;
(ii) all other reports filed pursuant to Section 13(a) and 15(d) of the
1934 Act since the end of the fiscal year covered by the annual reports or the
prospectus referred to in (i) above; and
(iii) the description of the Company's Common Stock contained in the
Company's latest registration statement filed under the 1934 Act, including any
amendments or reports filed for the purpose of updating such description.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
The Company's Certificate of Incorporation eliminates to the fullest extent
permissible under the General Corporation Law of Delaware the liability of
directors to the Company 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 Company 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 Company provide that indemnification of directors and
officers shall be provided to the fullest extent permitted under Delaware law
and the Company's Certificate of Incorporation.
The Company has entered into Indemnification Agreements with each of its
directors contractually requiring the Company to provide indemnification to the
directors to the extent permitted by applicable law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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<PAGE>
ITEM 8. EXHIBITS.
4(a) Blue Wave Systems Inc. Stock Option Plan (1)
4(b) Form of Blue Wave Systems Inc. New Stock Option
Agreement (2)
5 Opinion of Crouch & Hallett, L.L.P. (2)
23(a) Consent of Arthur Andersen LLP (2)
23(b) Consent of PricewaterhouseCoopers (2)
23(c) Consent of Crouch & Hallett, L.L.P. (included as part of
Exhibit 5).
__________________
(1) Filed as an exhibit to registration statement on Form S-1 (File No.
33-95852) and incorporated herein by reference.
(2) Filed herewith.
ITEM 9. UNDERTAKINGS.
(1) The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement (i) to
include any prospectus required by section 10(a)(3) of the Securities Act
of 1933; (ii) to reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement; and (iii) 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; and
(b) 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 the time shall be deemed to
be the initial bona fide offering thereof; and
(c) 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.
(2) 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 (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.
(3) 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 certificate of incorporation or bylaws of the
registrant 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
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<PAGE>
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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<PAGE>
SIGNATURES
----------
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Carrollton and the State of Texas, on the 17th day of
December, 1998.
BLUE WAVE SYSTEMS INC.
By: /s/ Charles D. Brockenbush
------------------------------------------
Charles D. Brockenbush, Vice President-Finance
and Chief Financial 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 on December 17, 1998.
<TABLE>
<CAPTION>
Signature Title
- --------- -----
<S> <C>
/s/ Simon Yates President, Chief Executive Officer and Director
- ----------------------------------- (Principal Executive Officer)
Simon Yates
/s/ Charles D. Brockenbush Vice President-Finance and Chief Financial Officer
- ----------------------------------- (Principal Accounting and Principal Financial Officer)
Charles D. Brockenbush
/s/ Sam K. Smith Chairman of the Board of Directors
- -----------------------------------
Sam K. Smith
/s/ Rob N. Shaddock Director
- -----------------------------------
Rob N. Shaddock
/s/ John R. Forrest Director
- -----------------------------------
John R. Forrest
/s/ John L. Rynearson Director
- -----------------------------------
John L. Rynearson
</TABLE>
II-1
<PAGE>
EXHIBIT INDEX
-------------
4(a) Blue Wave Systems Inc. Stock Option Plan (1)
4(b) Form of Blue Wave Systems Inc. New Stock Option Agreement (2)
5 Opinion of Crouch & Hallett, L.L.P. (2)
23(a) Consent of Arthur Andersen LLP (2)
23(b) Consent of PricewaterhouseCoopers (2)
23(c) Consent of Crouch & Hallett, L.L.P. (included as part of Exhibit 5).
__________________
(1) Filed as an exhibit to registration statement on Form S-1 (File No.
33-95852) and incorporated herein by reference.
(2) Filed herewith.
<PAGE>
EXHIBIT 4(b)
BLUE WAVE SYSTEMS INC.
STOCK OPTION AGREEMENT
May _________, 1998
THIS STOCK OPTION AND THE COMMON STOCK ISSUABLE HEREUNDER HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT").
IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT,
SUCH SECURITIES MAY NOT BE OFFERED, SOLD, TRANSFERRED, OR OTHERWISE DISPOSED OF,
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. IN ADDITION, SUCH SECURITIES MAY NOT BE OFFERED OR SOLD IN THE
UNITED STATES OR TO ANY "U.S. PERSON" (AS DEFINED IN REGULATION S OF THE
SECURITIES ACT), UNLESS SUCH TRANSACTION IS REGISTERED UNDER, OR EXEMPT FROM THE
REGISTRATION REQUIREMENTS OF, THE SECURITIES ACT. EXCEPT AS PERMITTED BY THE
SECURITIES ACT, THE HOLDER HEREOF SHALL NOT ENGAGE IN ANY HEDGING TRANSACTIONS
WITH RESPECT TO SUCH SECURITIES.
THIS STOCK OPTION AGREEMENT (this "Agreement") is dated May ________, 1998,
and is made between Blue Wave Systems Inc., a Delaware corporation (the
"Grantor"), and ________________________________________________________ of
_______________________________________________________________________ (the
"Grantee"). This option is assignable in accordance with the terms of this
Agreement and the expression "Optionholder" when used in this Agreement refers
to the person (or persons) for the time being entered into the Register (as
hereinafter defined) pursuant to this Agreement.
1. ASSUMPTION OF OPTION. The Grantor hereby assumes the obligations of
Loughborough Sound Images Limited, a company registered in England and Wales
("LSI"), under an option granted by LSI to Grantee, in connection with the
acquisition of LSI by Grantor pursuant to that certain share purchase agreement
dated November 17, 1997, between LSI and Grantor, as amended by that certain
letter agreement dated March 24, 1998; and, pursuant thereto, Grantee's option
for shares of LSI shall, effective as of the date hereof, become an option (the
"Option") to subscribe for ____________________________ shares of common stock,
$.01 par value, of the Grantor (the "Shares"), at a price of $ _____ per share
(the "Option Price").
2. VESTING; TIME OF EXERCISE. The Optionholder is fully vested in all of
the Shares effective as of the date hereof. The Optionholder may exercise the
Option in whole or in part at any time, subject to the terms of this Agreement.
3. EXERCISE OF OPTION. The exercise of the Option shall entitle the
Optionholder to purchase the number of Shares set forth in Section 1 above at
any time or from time to time during the term of the Option.
4. TERM OF OPTION. The Option will terminate at 5:00 p.m., Central
Standard Time, on January 31, 2003.
<PAGE>
5. WHO MAY EXERCISE. During the lifetime of the Optionholder, the Option
may be exercised only by the Optionholder.
6. RESTRICTIONS ON EXERCISE. The Option:
(a) may be exercised only with respect to full shares, and no
fractional shares of stock shall be issued; and
(b) may not be exercised in whole or in part and no cash or
certificates representing shares subject to the Option shall be
delivered, if any requisite approval or consent of any government
authority of any kind having jurisdiction over the exercise of
options shall not have been secured.
Notwithstanding anything herein to the contrary, the Grantor shall not be
obliged to issue any Shares to the Optionholder unless and until the Directors
of the Grantor are satisfied that the Optionholder (i) has paid his or her
Employer (as defined below), or such other person as the Directors of the
Grantor direct, such sums as may, in the reasonable opinion of the Directors, be
appropriate to indemnify his or her Employer in respect of any Option Tax
Liability (as defined below) or (ii) has entered into such other arrangements as
the Directors of the Grantor may direct to meet such Option Tax Liability. For
the purposes of this Section 7, the following terms shall have the following
meanings:
"Employer" means, in relation to the Optionholder, the company which
is his or her employer (as the term is defined in the NI Rules, or as
the case may be, the PAYE Regulations) or, if the Optionholder no
longer holds office or employment with a company which is controlled
by the Grantor, the company which was controlled by the Grantor with
whom he or she last held office or employment.
"NI Rules" means the laws and regulations and practices currently in
force in the United Kingdom relating to liability for the collection
of national insurance contributions.
"Option Tax Liability" means, in relation to an Optionholder, any
liability of his or her Employer or of any other person to account
under the PAYE Regulations to the Inland Revenue or the Department of
Social Security for any amount of, or representing, United Kingdom
income tax or national insurance contributions (other than secondary
contributions) which may arise on the grant or exercise of the Option.
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<PAGE>
"PAYE Regulations" means regulations made under Section 203 of the
Income and Corporation Taxes Act of 1988.
7. MANNER OF EXERCISE. Subject to such administrative regulation as the
Board of Directors of the Grantor may from time to time adopt, the Optionholder
shall, in order to exercise the Option, give written notice to the Grantor,
delivered to its registered office, of the number of Shares being purchased and
the aggregate purchase price to be paid therefore, accompanied by the following:
(a) full payment in United States dollars of the Option Price (in the
form of cash or check) for each of the Shares being purchased;
and
(b) such documents as the Grantor in its discretion deems necessary
(i) to evidence the exercise, in whole or in part, of the option
evidenced by this Agreement, (ii) to determine whether
registration is then required under the Securities Act of 1933,
or any other law, as then in effect, and (iii) to comply with or
satisfy the requirements of the Securities Act of 1933, or any
other law, as then in effect.
8. RIGHTS OF STOCKHOLDER. The Optionholder will have no rights as a
stockholder with respect to any Shares covered by the Option until the issuance
of a certificate or certificates to the Optionholder for the Shares. Except as
otherwise provided in Section 9 below, no adjustment shall be made for dividends
or other rights for which the record date is prior to the issuance of such
certificate or certificates.
9. CAPITAL ADJUSTMENTS. The number of Shares covered by this Option, and
the Option Price thereof, shall be subjected to such adjustments as the Board of
Directors of the Grantor deems appropriate to reflect any stock dividend, stock
split, share combination, exchange of shares, re-capitalization, merger,
consolidation, separation, reorganization, liquidation or the like, of or by the
Grantor.
10. APPLICABLE LAW. This Agreement is intended to be performed in the
State of Texas and shall be construed and enforced in accordance with and
governed by the laws of such State.
11. REGISTER.
(a) A Register of Optionholders ("the Register") shall be kept by the
Secretary of the Grantor at the Registered Office of the Grantor in
Carrollton, Texas or at such other place as the Grantor may from time to
time have appointed for the purpose and have notified to the Optionholders,
and there shall be entered in the Register the names and addresses of the
Optionholders, the amount of the options
-3-
<PAGE>
held by the Optionholders, the date at which the names of the Optionholders
are entered in respect of the options standing in their names and the
serial number of each option.
(b) The Optionholder shall notify any change of name or address to the
Secretary of the Grantor at the address as set out in the above clause and
it shall be entered into the Register.
(c) Optionholders may, at all reasonable times during office hours, inspect
the Register, except during such period or periods not exceeding 30 days in
total in any year when the Register is closed by the Grantor.
12. ASSIGNMENT. The Option may be assigned, transferred or otherwise
disposed of in whole or in part by the Grantee or a subsequent transferee of the
Optionholder in accordance with the following terms:
(a) The Grantor shall recognize the Optionholder as the absolute owner
thereof and shall not be bound to take notice or see to the execution
of any trust whether express, implied or constructive to which the
Option may be subject. The receipt of the Optionholder for the time
being or, in the case of joint registered Optionholders the receipt of
any of them for any monies payable in respect thereof shall be a good
discharge to the Grantor, notwithstanding any notice it may have,
whether express or otherwise of the right, title, interest or claim of
any other person to or in such Option, interest or monies. The Grantor
shall not be bound to enter notice of any trust whether express,
implied or constructive on the register in respect of the option.
(b) Every Optionholder shall be recognized by the Grantor as entitled to
his Option free from any equity set off or counter claim on behalf of
the Grantor against the original or any intermediate holder of the
Option.
(c) Every instrument of transfer must be signed by the transferor and the
transferor shall be deemed to remain the owner of the Option or
portion thereof to be transferred until the name of the transferee is
entered into the Register in respect thereof.
(d) Every instrument of transfer must be left for registration with the
Secretary of the Grantor accompanied by such other evidence as the
directors of the Grantor may require to prove the title of the
transferor or his right to transfer the Option or portion thereof and
if the instrument of transfer is executed by some other person on his
behalf the authority of that person to
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<PAGE>
do so. The transfer shall then be registered and a note of such
registration shall be entered into the Register.
(e) All instruments of transfer which shall be registered shall be
retained by the Grantor. No fees shall be charged for the registration
of any transfer or for the registration of any Probate, Letters of
Administration, Grant of Confirmation, Certificate of Marriage or
Death, Power of Attorney or other document relating to or affecting
the title to the Option.
(f) The registration of transfers may be suspended at such times and for
such periods as the Grantor may determine; provided, that such
registration shall not be suspended for more than 30 days in any one
year. The Executors or Administrators of a deceased Optionholder and
in the case of death of one or more of several joint registered
Optionholders, the survivor or survivors of such joint registered
Optionholders shall be the only person or persons recognized by the
Grantor as having any title to the Option.
(g) In consequence of the death or bankruptcy of an Optionholder or of any
other event giving rise to the transmission of an Option by operation
of law, any person becoming entitled to the option may upon producing
such evidence as the Grantor shall think sufficient be registered
themselves as the Optionholder.
(h) If any option document is defaced, lost or destroyed it may be
replaced on such terms (if any) as to evidence and indemnity as the
directors of the Grantor may require but so that in the case of
defacement the defaced option documents shall be surrendered before
the new option documents are issued.
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<PAGE>
IN WITNESS WHEREOF, The Grantor has caused this Agreement to be executed by
its duly authorized officer and the Optionholder, to evidence his consent and
approval of all the terms hereof, has duly executed this Agreement, as of the
date set forth above.
BLUE WAVE SYSTEMS INC. OPTIONHOLDER
By:
--------------------------------- ---------------------------------
Name: Name:
------------------------------ ----------------------------
Title:
------------------------------
SIGNED as a Deed by
THE GRANTEE
in presence of:
Witness:
Name: (block capitals):
Address:
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<PAGE>
EXHIBIT 5
(214) 953-0053
December 17, 1998
Blue Wave Systems Inc.
2410 Luna Road
Carrollton, Texas 75006
Gentlemen:
We have served as counsel for Blue Wave Systems Inc., a Delaware
corporation (the "Company"), in connection with the Registration Statement on
Form S-8 (the "Registration Statement") filed with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, covering the proposed
sale from time to time by the Company of a maximum of 814,001 shares (the
"Shares") of Common Stock, $0.01 par value, of the Company.
With respect to the foregoing, we have examined such documents and
questions of law as we have deemed necessary to render the opinions expressed
below. Based upon the foregoing, we are of the opinion that the Shares, when
sold and delivered in accordance with the Registration Statement, will be duly
and validly issued and outstanding and fully paid and nonassessable.
We consent to the use of this opinion as Exhibit 5 to the Registration
Statement and to the use of our name in the Registration Statement and in the
Prospectus related thereto.
Very truly yours,
CROUCH & HALLETT, L.L.P.
<PAGE>
EXHIBIT 23(a)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of our report dated August 11, 1998
included in the Blue Wave Systems Inc. Form 10-K for the year ended June 30,
1998, and to all references to our firm included in this Registration Statement
or made a part of this Registration Statement on Form S-8.
ARTHUR ANDERSEN LLP
Dallas, Texas
December 17, 1998
<PAGE>
EXHIBIT 23(b)
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of Blue Wave Systems Inc. of our report dated December 9,
1997 relating to the consolidated financial statements of Loughborough Sound
Images Limited (n/k/a Blue Wave Systems Limited) appearing in Blue Wave Systems
Inc.'s Annual Report on Form 10-K, as amended, for the year ended June 30, 1998.
PRICEWATERHOUSECOOPERS
Leicester, England
December 17, 1998
