UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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, Saint Louis, Missouri 63141
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(Address of Principal Executive Offices) (Zip Code)
WAVE TECHNOLOGIES INTERNATIONAL, INC.
PROFIT SHARING AND 401(k) PLAN
WAVE TECHNOLOGIES INTERNATIONAL, INC.
EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
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)
with a copy to:
Mary Anne O'Connell
Husch & Eppenberger, LLC
100 North Broadway, Suite 1300
St. Louis, Missouri 63102
CALCULATION OF REGISTRATION FEE
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Title of securities Amount to be Proposed maximum Proposed maximum Amount of
Title of Plan to be registered registered offering price per share/2/ aggregate offering price/2/ registration fee/2/
- ------------- ---------------- ---------- --------------------------- --------------------------- -------------------
Profit Sharing Common Stock,
and 401(k) Plan par value $.50 450,000/1/ $3.84375 $1,729,687.50 $456
Employee Stock Common Stock,
Purchase Plan par value $.50 300,000/1/ $3.84375 $1,153,125.00 $305
Total Common Stock,
par value $.50 750,000 $3.84375 $2,882,812.50 $761
- -----------------------------------------------------------------------------------------------------------------------------------
__________________________
1 This registration statement includes the rights issued and attached to the
Common Stock pursuant to the Rights Agreement dated as of September 17,
1998, between Wave Technologies International, Inc. and ChaseMellon
Shareholder Services, L.L.C. In addition, pursuant to Rule 416 under the
Securities Act of 1933, this registration statement also covers an
indeterminate amount of interests to be offered or sold pursuant to the
Wave Technologies International, Inc. Profit Sharing and 401(k) Plan, as
well as such indefinite additional number of shares as may be issued as a
result of stock dividends or stock splits, or as the result of anti-
dilution provisions in the Employee Stock Purchase Plan.
2 Computed solely for the purpose of calculating the amount of the
registration fee, pursuant to Rule 457(c) and (h), based on the average of
the high and low prices reported for the Common Stock on the Nasdaq
National Market on December 17, 1999.
Part II
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
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The SEC allows us to incorporate by reference the information we file
with them, which means:
- incorporated documents are considered part of the prospectus;
- we can disclose important information to you by referring you to
those documents; and
- information that we file with the SEC will automatically update
and supersede this incorporated information.
We incorporate by reference the documents listed below which were
filed with the SEC under the Securities Exchange Act of 1934:
(a) Our Annual Report on Form 10-K for the fiscal year ended April
30, 1999;
(b) Our Quarterly Reports on Form 10-Q for the fiscal quarters ended
July 31, 1999 and October 31, 1999; and
(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.
We also incorporate by reference each of the following documents that
we will file with the SEC after the date of this registration statement until
this offering is completed:
- reports filed under Section 13(a) and (c) of the Securities
Exchange Act of 1934;
- definitive proxy or information statements filed under Section 14
of the Securities Exchange Act of 1934 in connection with any
subsequent stockholders' meeting; and
- any reports filed under Section 15(d) of the Securities Exchange
Act of 1934.
Item 4. DESCRIPTION OF SECURITIES
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Not applicable; the class of securities to be offered is registered
under Section 12(g) of the Securities Exchange Act of 1934.
Item 5. INTEREST OF NAMED EXPERTS AND COUNSEL
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The Opinion of Counsel was prepared by Husch & Eppenberger, LLC. One
member of the firm and his immediate family members hold an aggregate of 5751
shares of the registrant's common stock and one member of the firm is married to
the registrant's Chairman of the Board, President and Chief Executive Officer.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
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The Registrant is incorporated under the 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 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 purchased
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 to this Registration Statement, which Index is incorporated herein by
reference.
The Registrant will submit or has submitted the Plan and any
amendments thereto to the Internal Revenue Service ("IRS") and has made or will
make all changes required by the IRS in order to qualify the Plan under Section
401 of the Internal Revenue Code.
Item 9. UNDERTAKINGS
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The undersigned registrant hereby undertakes:
(a) (1) 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
formation set forth in the registration statement;
(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.
(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 post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
(b) 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.
(h) 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.
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
December, 1999.
WAVE TECHNOLOGIES INTERNATIONAL, INC
By:/s/ Kenneth W. Kousky
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Kenneth W. Kousky
Title: Chairman of the Board, President
and Chief Executive Officer (principal
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/her true and lawful attorneys-in-fact and agents with full power of
substitution, for him/her and in his/her 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/she 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/her 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.
Signature Title Date
--------- ----- ----
/s/ Kenneth W. Kousky Chairman of the Board, President December 20, 1999
- ----------------------------- Chief Executive Officer and Director
Kenneth W. Kousky (Principal Executive Officer)
/s/ J. Michael Bowles Chief Financial Officer (Principal December 20, 1999
- ----------------------------- Financial and Principal Accounting
J. Michael Bowles Officer)
/s/ Raymond J. Kalinowski Director December 20, 1999
- -----------------------------
Raymond J. Kalinowski
/s/ David W. Kemper Director December 20, 1999
- -----------------------------
David W. Kemper
/s/ Robert E. Lefton Director December 20, 1999
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Robert E. Lefton
Director December 20, 1999
- -----------------------------
Walter N. Torous
/s/ Zev A. Rosenthal Director December 20, 1999
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Zev A. Rosenthal
Pursuant to the requirements of the Securities Act of 1933, the trustees
(or other persons who administer the employee benefit plan) have 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
December 20, 1999.
WAVE TECHNOLOGIES INTERNATIONAL, INC.
PROFIT SHARING AND 401(k) PLAN
(As Amended and Restated Effective January 1, 1999)
By: /s/ Kenneth W. Kousky
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Kenneth W. Kousky
Title: Trustee
EXHIBIT INDEX
Exhibit
Number Description of Documents
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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 Rights Agreement, dated as of September 17, 1998, between the
Registrant and ChaseMellon Shareholder Services, L.L.C., as
Rights Agent, which includes the Certificate of Designations for
the Series B Junior Participating Preferred Stock as Exhibit A,
the form of Right Certificate as Exhibit B, and the Summary of
Rights to Purchase Preferred Stock as Exhibit C (filed as
Exhibit 4.1 to the Registrant's Form 8-K on September 25, 1998
and incorporated herein by reference).
5 Opinion of Counsel.
23.1 Consent of Independent Auditor.
23.2 Consent of Counsel (included in Exhibit 5).
24 Power of Attorney (included on Signature Page of the
Registration Statement).