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As filed with the Securities and Exchange Commission on September 10, 1999
Registration No. 333-
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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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AIRONET WIRELESS COMMUNICATIONS, INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 34-1758180
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
3875 EMBASSY PARKWAY
AKRON, OH 44333
(Address of Principal Executive Offices)
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1999 EMPLOYEE STOCK PURCHASE PLAN
1999 OMNIBUS STOCK INCENTIVE PLAN
1999 STOCK OPTION PLAN FOR NON-EMPLOYEE DIRECTORS
(Full Title of the Plans)
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ROGER J. MURPHY, JR. JAY R. FAEGES, ESQ.
PRESIDENT & CHIEF EXECUTIVE OFFICER GOODMAN WEISS MILLER LLP
3875 EMBASSY PARKWAY 100 ERIEVIEW PLAZA, 27TH FLOOR
AKRON, OH 44333 CLEVELAND, OH 44114
TELEPHONE: (330) 664-7900 TELEPHONE: (216) 696-3366
FAX: (330) 664-7922 FAX: (216) 363-5835
(Name, Address, and Telephone Number, Including Area Code, (Agent to Receive Comments and Other
of Agent for Service) Communications)
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CALCULATION OF REGISTRATION FEE
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TITLE OF EACH CLASS OF AMOUNT TO BE PROPOSED PROPOSED AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED(1) MAXIMUM MAXIMUM REGISTRATION
OFFERING PRICE AGGREGATE FEE(2)
PER UNIT OFFERING
PRICE
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1999 EMPLOYEE STOCK PURCHASE PLAN 500,000
Common Stock ($.01 par value per share) shares $14.07 $ 7,035,000 $ 1,955.73
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1999 OMNIBUS STOCK INCENTIVE PLAN 1,765,817
Common Stock ($.01 par value per share) shares $14.07 $24,845,045.19 $ 6,906.92
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1999 STOCK OPTION PLAN FOR NON-EMPLOYEE 250,000
DIRECTORS shares $14.07 $ 3,517,500 $ 977.87
Common Stock ($.01 par value per share)
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<FN>
(1) The subject shares of Common Stock of the Registrant may be issued pursuant to the 1999 Employee Stock
Purchase Plan, the 1999 Omnibus Stock Incentive Plan or the 1999 Stock Option Plan for Non-Employee
Directors (the "1999 Plans"). In accordance with Rule 416 of the Securities Act of 1933, as amended,
this Registration Statement also covers an indeterminate number of additional securities as may become
issuable pursuant to the antidilution provisions of each such plan in the event of any stock splits,
stock dividends or similar transactions specified in the 1999 Plans.
(2) Estimated solely for the purpose of calculating the registration fee, in accordance with Rule 457(c)
and (h) of the Act, on the basis of the average of the high ($14.88) and low ($13.25) prices of the
Common Stock of Aironet Wireless Communications, Inc. as reported on the Nasdaq National Market on
September 8, 1999.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I, Items 1 and 2, will be included in
documents sent or given to participants in the 1999 Plans pursuant to Rule
428(b)(1) of the Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, previously filed with the Securities and
Exchange Commission (the "Commission"), are by this reference incorporated in
this Registration Statement:
(a) The Registrant's prospectus filed with the Commission on July
30, 1999 pursuant to Rule 424(b) of the Securities Act of
1933, as amended, in connection with Registration Statement
No. 333-78507 on Form S-1 filed with the Commission on May 14,
1999, together with any and all amendments thereto, in which
there is audited financial statements for the Registrant's
fiscal years ended March 31, 1998 and 1999;
(b) All other reports filed pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934, as amended, since the end
of the fiscal year covered by the prospectus referred to in
(a) above; and
(c) The Registrant's Registration Statement No. 000-26747 on Form
8-A filed with the Commission on July 16, 1999, together with
any and all amendments thereto, pursuant to Section 12(g) of
the Securities Exchange Act of 1934, as amended.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, after
the date of this Registration Statement and prior to the filing of a
post-effective amendment which indicates that all securities offered pursuant to
this Registration Statement have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the securities being offered pursuant to this
Registration Statement has been passed upon for the Registrant by the law firm
of Goodman Weiss Miller LLP. Certain attorneys of such firm, in the aggregate,
own 17,050 shares of the Registrant's Common Stock. Mr. Jay R. Faeges, an
attorney at Goodman Weiss Miller LLP, is the Secretary of the Registrant.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law provides that a
corporation may indemnify directors and officers as well as other employees and
individuals against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement in connection with specified actions, suits or
proceedings, whether civil,
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criminal, administrative or investigative (other than an action by or in the
right of the corporation, a "derivative action") if they acted in good faith and
in a manner they reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, if they had no reasonable cause to believe their conduct was
unlawful. A similar standard is applicable in the case of derivative actions,
except that indemnification only extends to expenses (including attorneys' fees)
incurred in connection with the defense or settlement of such actions, and the
statute requires court approval before there can be any indemnification where
the person seeking indemnification has been found liable to the corporation. The
statute provides that it is not exclusive of other indemnification that may be
granted by a corporation's bylaws, disinterested director vote, stockholder
vote, agreement or otherwise.
The Registrant's Amended and Restated Certificate of Incorporation (the
"Certificate") provides that each person who was or is made a party or is
threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that such person, or a person of whom such person is the legal
representative, is or was one of the Registrant's directors or officers or is or
was serving at the Registrant's request as a director, officer, employee or
agent of another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans, whether
the basis of such proceeding is an alleged action in an official capacity as a
director, officer, employee or agent or in any other capacity while serving as a
director, officer, employee or agent, will be indemnified and held harmless by
the Registrant to the fullest extent authorized by the Delaware General
Corporation Law, as the same exists or may hereafter be amended (but, in the
case of any such amendment, only to the extent that such amendment permits the
Registrant to provide broader indemnification rights than the law permitted
prior to such amendment), against all expense, liability and loss reasonably
incurred or suffered by such person in connection therewith. Such right to
indemnification includes the right to have the Registrant pay the expenses
incurred in defending any such proceeding in advance of its final disposition,
subject to the provisions of the Delaware General Corporation Law. Such rights
are not exclusive of any other right which any person may have or thereafter
acquire under any statute, provision of the certificate, bylaws, agreement, vote
of stockholders or disinterested directors or otherwise. No repeal or
modification of such provision will in any way diminish or adversely affect the
rights of any of the Registrant's directors, officers, employees or agents
thereunder in respect of any occurrence or matter arising prior to any such
repeal or modification. The Certificate also specifically authorizes the
Registrant to maintain insurance and to grant similar indemnification rights to
the Registrant employees or agents.
The Delaware General Corporation Law permits a corporation to provide
in its certificate of incorporation that a director of the corporation shall not
be personally liable to the corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, except for liability for (i) any
breach of the director's duty of loyalty to the corporation or its stockholders,
(ii) acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) payments of unlawful dividends or unlawful
stock repurchases or redemptions, or (iv) any transaction from which the
director derived an improper personal benefit.
The Certificate provides that the Registrant's directors will not be
personally liable to the Registrant or the Registrant's stockholders for
monetary damages for breach of fiduciary duty as a director, except, if required
by the Delaware General Corporation Law as amended from time to time, for
liability (i) for any breach of the director's duty of loyalty to the Registrant
or the Registrant's stockholders, (ii) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law, (iii)
under Section 174 of the Delaware General Corporation Law, which concerns
unlawful payments of dividends, stock purchases or redemptions, or (iv) for any
transaction from which the director derived an improper personal benefit.
Neither the amendment nor repeal of such provision will eliminate or reduce the
effect of such provision in respect of any matter occurring, or any cause of
action, suit or claim that, but for such provision, would accrue or arise prior
to such amendment or repeal.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1+ Amended and Restated Certificate of Incorporation of the Registrant
4.2 Second Amended and Restated Bylaws of the Registrant (filed as Exhibit
3.2 to Registrant's Registration Statement No. 333-78507 on Form S-1
and incorporated by reference herein)
4.3 Specimen of certificate for shares of Registrant's common stock (filed
as Exhibit 4.1 to Registrant's Registration Statement No. 333-78507 on
Form S-1 and incorporated by reference herein)
4.4+ Rights Agreement between the Registrant and Harris Trust and Savings
Bank, as Rights Agent, dated as of June 25, 1999
4.5 Warrant certificate issued to Funeaux & Company, LLC (filed as Exhibit
4.3 to Registrant's Registration Statement No. 333-78507 on Form S-1
and incorporated by reference herein)
4.6 Registration Rights Agreement by and among Registrant and certain of
its security holders, dated as of March 31, 1998 (filed as Exhibit
10.4.3 to Registrant's Registration Statement No. 333-78507 on Form S-1
and incorporated by reference herein)
5+ Opinion of Goodman Weiss Miller LLP
23.1+ Consent of PricewaterhouseCoopers LLP
23.2+ Consent of Goodman Weiss Miller LLP (included in Exhibit 5)
24+ Power of Attorney (included on page 7)
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+ Filed herewith.
ITEM 9. UNDERTAKINGS.
(a) 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:
(i) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933, as amended;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of this 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 this Registration Statement;
and
(iii) 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.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by
the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934, as amended, that are incorporated by
reference in this Registration Statement.
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(2) That, for the purpose of determining any liability under the
Securities Act of 1933, as amended, 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.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, as amended, each
filing of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934, as amended, 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.
(c) Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended, 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 Commission such
indemnification is against public policy as expressed in the Securities Act of
1933, as amended, 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 Securities
Act of 1933, as amended, 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 Akron, State of Ohio, on September 10, 1999.
AIRONET WIRELESS COMMUNICATIONS, INC.
By: /s/ Roger J. Murphy, Jr.
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Roger J. Murphy, Jr.
President and Chief Executive Officer
POWER OF ATTORNEY AND SIGNATURES
Each of the undersigned Directors and Officers of AIRONET WIRELESS
COMMUNICATIONS, INC., a Delaware corporation (the "Registrant"), does hereby
make, constitute and appoint Roger J. Murphy, Jr. and Richard G. Holmes, and
each of them, his true and lawful attorneys-in-fact and agents. Each has full
power to act alone or together, without any other, and with power of
substitution and resubstitution, to execute for and on his behalf in his name
and in his capacity as a Director and/or Officer of the Registrant, and to
deliver and file or cause to be delivered and filed with the Commission a
Registration Statement on Form S-8 under the provisions of the Securities Act of
1933, as amended (the "Act"), with respect to shares of Registrant's Common
Stock, par value $.01 per share, that may be issued pursuant to the 1999
Employee Stock Purchase Plan, the 1999 Omnibus Stock Incentive Plan and the 1999
Stock Option Plan for Non-Employee Directors, together with any participation
interests under said which may constitute securities within the meaning of the
Act and any and all amendments to such Registration Statement, including all
exhibits thereto and other documents required in connection therewith, granting
to said attorneys-in-fact and agents, and each of them, full power and authority
to do and perform each and every act and thing whatsoever as said
attorneys-in-fact and agents may deem necessary or advisable to carry out fully
the intent of the foregoing as the undersigned might or could do personally or
in the capacity as aforesaid, hereby ratifying and confirming all such acts and
things.
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/ Roger J. Murphy, Jr. President and Chief Executive Officer September 10, 1999
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Roger J. Murphy, Jr.
/s/ Richard G. Holmes Senior Vice President and Chief Financial Officer September 10, 1999
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Richard G. Holmes
/s/ James H. Furneaux Director, Chairman of the Board September 10, 1999
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James H. Furneaux
/s/ Samuel F. McKay Director September 10, 1999
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Samuel F. McKay
/s/ John W. Paxton, Sr. Director September 10, 1999
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John W. Paxton, Sr.
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INDEX TO EXHIBITS
4.1+ Amended and Restated Certificate of Incorporation of the Registrant
4.2 Second Amended and Restated Bylaws of the Registrant (filed as Exhibit
3.2 to Registrant's Registration Statement No. 333-78507 on Form S-1
and incorporated by reference herein)
4.3 Specimen of certificate for shares of Registrant's common stock (filed
as Exhibit 4.1 to Registrant's Registration Statement No. 333-78507 on
Form S-1 and incorporated by reference herein)
4.4+ Rights Agreement between the Registrant and Harris Trust and Savings
Bank, as Rights Agent, dated as of June 25, 1999
4.5 Warrant certificate issued to Funeaux & Company, LLC (filed as Exhibit
4.3 to Registrant's Registration Statement No. 333-78507 on Form S-1
and incorporated by reference herein)
4.6 Registration Rights Agreement by and among Registrant and certain of
its security holders, dated as of March 31, 1998 (filed as Exhibit
10.4.3 to Registrant's Registration Statement No. 333-78507 on Form S-1
and incorporated by reference herein)
5+ Opinion of Goodman Weiss Miller LLP
23.1+ Consent of PricewaterhouseCoopers LLP
23.2+ Consent of Goodman Weiss Miller LLP (included in Exhibit 5)
24+ Power of Attorney (included on page 7)
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+ Filed herewith.
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