As Filed with the Securities and Exchange Commission on May 26, 2006
Registration No.: 333-

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
 

FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
 

WAVE WIRELESS CORPORATION
(Exact Name of Registrant as Specified in its Charter)

Delaware
(State or Other Jurisdiction of
Incorporation or Organization)
77-0289371
(I.R.S. Employer
Identification No.)
   
255 Consumers Road, Suite 500
Toronto, Ontario, Canada
(Address of Principal Executive Offices)
M2J 1R4
(Zip Code)


Employee Stock Option (2002) Plan
Employee Stock Option (2000) Plan
Employee Stock Option (1997) Plan
1999 Incentive and Nonqualified Stock Option Plan
(Full Title of the Plans)
 

T. Scott Worthington
Wave Wireless Corporation
255 Consumers Road, Suite 500
Toronto, Ontario, Canada M2J 1R4
(Name and Address of Agent for Service)

(416) 502-3200
(Telephone Number, Including Area Code, of Agent for Service)
 

CALCULATION OF REGISTRATION FEE
         
Title of Each Class of
Securities to be Registered
Amount of
Shares to be
Registered(1)(2)
Proposed
Maximum
Offering Price
Per Share(3)
Proposed
Maximum
Aggregate
Offering Price(3)
Amount of
Registration Fee
Common stock, par value $0.0001 per share(4)
644,535(5)
718,890(6)
359,937(7)
402,183(8)
$0.10
$1.76
$1.70
$0.59
$64,453.50
$1,265,246.40
$611,892.90
$237,287.97
$6.90
$135.38
$65.47
$25.39
Total
2,125,545
$1.02
$2,178,980.77
$233.14
(1)
In accordance with Rule 416 under the Securities Act of 1933, as amended, this Registration Statement shall be deemed to cover any additional securities that may from time to time be offered or issued to prevent dilution resulting from stock splits, stock dividends or similar transactions.
(2)
Represents shares of the Registrant’s common stock issuable under stock options granted under the WaveRider Communications Inc. plans listed above and assumed by the Registrant on March 28, 2006 pursuant to an Agreement and Plan of Merger, dated as of January 3, 2006, as amended, by and among the Registrant, Wave Acquisition Corporation, a wholly owned subsidiary of the Registrant, and WaveRider Communications Inc.
(3)
Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h) under the Securities Act of 1933, as amended. The offering price per share and aggregate offering price are based upon the weighted average exercise prices for shares subject to outstanding options granted pursuant to each of the plans named above.
(4)
Each share includes one right to purchase shares of the Registrant’s Series A Junior Participating Preferred Stock pursuant to the Amended and Restated Rights Agreement, dated as of January 24, 2001, between the Registrant and BankBoston, N.A.
(5)
Shares subject to outstanding options as of March 28, 2006 under the WaveRider Communications Inc. Employee Stock Option (2002) Plan.
(6)
Shares subject to outstanding options as of March 28, 2006 under the WaveRider Communications Inc. Employee Stock Option (2000) Plan.
(7)
Shares subject to outstanding options as of March 28, 2006 under the WaveRider Communications Inc. Employee Stock Option (1997) Plan.
(8)
Shares subject to outstanding options as of March 28, 2006 under the WaveRider Communications Inc. 1999 Incentive and Nonqualified Stock Option Plan

 
 
 

PART II
 
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
 
Item 3. Incorporation of Documents by Reference.
 
The following documents are hereby incorporated by reference into this registration statement:
 
 
(a)
The Registrant’s Annual Report on Form 10-KSB for the fiscal year ended December 31, 2005, filed with the Securities and Exchange Commission on March 24, 2006;
 
 
(b)
All other reports filed by the Registrant pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), since the end of the fiscal year covered by the Annual Report on Form 10-KSB referred to in paragraph (a) above.
 
 
(c)
The description of the Registrant’s Common Stock, which is contained in the registration statement on Form 8-A filed with the Securities and Exchange Commission on January 12, 1995 (No. 000-25356), as amended.
 
In addition, all documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the 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 into this registration statement and to be a part hereof from the date of filing of such documents. Any statement in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for the purposes of this registration statement to the extent that a statement contained herein or in any other subsequently filed document which also is or deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement.
 
Item 4. Description of Securities.
 
Not applicable.
 
Item 5. Interests of Named Experts and Counsel.
 
Not applicable.
 
Item 6. Indemnification of Directors and Officers.
 
Section 102 of the Delaware General Corporation Law allows a corporation to include in its certificate of incorporation a provision that eliminates the personal liability of the directors of that corporation to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except where the director breached the duty of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly violated a law, authorized the payment of a dividend or approved a stock repurchase in violation of Delaware corporate law or obtained an improper personal benefit. The Registrant’s certificate of incorporation contains a provision that eliminates the personal liability of its directors in accordance with Section 102 of the Delaware General Corporation Law.
 
Section 145 of the Delaware General Corporation Law authorizes a court to award, or a corporation’s board of directors to grant, indemnification to directors and officers in terms sufficiently broad to permit such indemnification under certain circumstances for liabilities (including reimbursement for expenses incurred) arising under the Securities Act of 1933, as amended (the “Securities Act”). Article VII of the Registrant’s bylaws provides for mandatory indemnification of its directors and permissible indemnification of its officers, employees and other agents to the maximum extent permitted under the Delaware General Corporation Law. The Registrant has entered into indemnification agreements with its officers and directors, which are intended to provide the Registrant’s officers and directors with indemnification to the maximum extent permitted under the Delaware General Corporation Law.
 
 
II-1
 
 
Item 7. Exemption from Registration Claimed.
 
Not applicable.
 
Item 8. Exhibits.
 
See Index of Exhibits on page II-4.
 
Item 9. Undertakings.
 
The undersigned Registrant hereby undertakes:
 
 
(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement to include any material information with respect to the plan of distribution not previously disclosed in 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, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
 
 
(3)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
 
The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended, that is incorporated by reference into this 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.
 
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the indemnification provisions summarized in Item 6, 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 Securities 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 Securities Act and will be governed by the final adjudication of such issue.
 
 
II-2
 
 
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 Toronto, Ontario, Canada, on this 26th day of May, 2006.
 
     
  WAVE WIRELESS CORPORATION
 
 		  
 		  
 
  By:   /s/ Charles W. Brown
 
Charles W. Brown
  Chief Executive Officer
 
 
POWER OF ATTORNEY
 
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Charles W. Brown, the undersigned’s true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for the undersigned and in his name, place and stead, in any and all capacities (including the undersigned’s capacity as a director and/or officer of Wave Wireless Corporation), to sign any or all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact 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 for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact, or his or her substitute, acting alone, may lawfully do or cause to be done by virtue hereof.
 
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the date indicated.
 
Name
  
Title
  
Date
         
/s/ Charles W. Brown
Charles W. Brown
  
Chief Executive Officer
(Principal Executive Officer) and Director
  
May 26, 2006
         
/s/ T. Scott Worthington
T. Scott Worthington
  
Chief Financial Officer
(Principal Financial Officer and Principal Accounting Officer)
  
May 26, 2006
         
/s/ Daniel W. Rumsey
Daniel W. Rumsey
  
Director
  
May 26, 2006
         
/s/ Frederick R. Fromm
Frederick R. Fromm
  
Director
  
May 26, 2006
         
/s/ Richard Reiss
Richard Reiss
  
Director
  
May 26, 2006
         
/s/ D. Bruce Sinclair
D. Bruce Sinclair
  
Director
  
May 26, 2006
         
/s/ Michael Chevalier
Michael Chevalier
  
Director
  
May 26, 2006
         
/s/ Michael Milligan
Michael Milligan
  
Director
  
May 26, 2006

 
 
II-3
 
 
INDEX OF EXHIBITS
 
Exhibit Number
  
Description of Document
4.1(1)
  
Form of Common Stock Certificate
4.2(2)
  
Amended and Restated Rights Agreement, dated as of January 24, 2001, between Registrant and BankBoston, N.A.
4.3(3)
  
Employee Stock Option (2002) Plan
4.4(4)
  
Employee Stock Option (2000) Plan
4.4(5)
  
Employee Stock Option (1997) Plan, as amended.
4.5(6)
  
1999 Incentive and Nonqualified Stock Option Plan
5.1
  
Opinion of Procopio, Cory, Hargreaves & Savitch LLP
23.1
  
Consent of Procopio, Cory, Hargreaves & Savitch LLP (included in Exhibit 5.1)
23.2
  
Consent of Aidman, Piser & Company, P.A.
24.1
  
Power of Attorney (included on the signature page to this Registration Statement)
 
 
(1)
Incorporated by reference to the exhibits filed as part of the Registrant’s Registration Statement on Form S-1 (File No. 33-88492), declared effective with the Securities and Exchange Commission on March 2, 1995.
(2)
Incorporated by reference to Exhibit 4.10 to the Registrant’s Registration Statement on Form 8-A/A, filed with the Securities and Exchange Commission on May 7, 2001.
(3)
Incorporated by reference to Appendix A to the Definitive Proxy Statement on Schedule 14A of WaveRider Communications Inc., filed with the Securities Exchange Commission on May 24, 2002.
(4)
Incorporated by reference to Appendix B to the Definitive Proxy Statement on Schedule 14A of WaveRider Communications Inc., filed with the Securities Exchange Commission on May 25, 2000.
(5)
Incorporated by reference to Exhibit 4.11 to the Registration Statement on Form S-8 (File No. 333-52587) of WaveRider Communications Inc., filed with the Securities Exchange Commission on May 13, 1998.
(6)
Incorporated by reference to Appendix A to the Definitive Proxy Statement on Schedule 14A of WaveRider Communications Inc., filed with the Securities Exchange Commission on April 29, 1999.

 
II-4