-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, TSOcJk7pBE0ztwGmk+0/dYc/39J+zB3JR+tgV02OHeLnBP0UKTMCqLfBMYVhx7kp 6ppCj8MyJv2u8RZ66YAQkw== 0001032210-00-000845.txt : 20000501 0001032210-00-000845.hdr.sgml : 20000501 ACCESSION NUMBER: 0001032210-00-000845 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20000428 EFFECTIVENESS DATE: 20000428 FILER: COMPANY DATA: COMPANY CONFORMED NAME: METAWAVE COMMUNICATIONS CORP CENTRAL INDEX KEY: 0001028361 STANDARD INDUSTRIAL CLASSIFICATION: RADIO & TV BROADCASTING & COMMUNICATIONS EQUIPMENT [3663] IRS NUMBER: 911673152 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-35926 FILM NUMBER: 613938 BUSINESS ADDRESS: STREET 1: 10735 WILLOWS ROAD NE STREET 2: P O BOX 97069 CITY: REDMOND STATE: WA ZIP: 98073-9769 BUSINESS PHONE: 4257025648 MAIL ADDRESS: STREET 1: 10735 WILLOWS ROAD NE STREET 2: P O BOX 97069 CITY: REDMOND STATE: WA ZIP: 98073-9769 S-8 1 FORM S-8 As filed with the Securities and Exchange Commission on April 28, 2000. Registration No. 333- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ---------------- FORM S-8 REGISTRATION STATEMENT under THE SECURITIES ACT OF 1933 ---------------- Metawave Communications Corporation (Exact name of Registrant as specified in its charter) Delaware 91-1673152 (State of incorporation) (I.R.S. Employer Identification No.) 10735 Willows Road NE Redmond, WA 98052 (Address of principal executive offices) ---------------- 2000 Employee Stock Purchase Plan 2000 Stock Plan Amended and Restated 1998 Stock Option Plan Third Amended and Restated 1995 Stock Option Plan 1998 Directors' Stock Option Plan (Full title of the Plans) ---------------- Robert H. Hunsberger President and Chief Executive Officer Metawave Communications Corporation 10735 Willows Road NE Redmond, WA 98052 (425) 702-5600 (Name, address and telephone number, including area code, of agent for service) ---------------- Copy to: Sonya F. Erickson John W. Robertson Venture Law Group A Professional Corporation 4750 Carillon Point Kirkland, CA 98033-7355 (425) 739-8700 (Calculation of Registration Fee on following page)
======================================================================================================================= CALCULATION OF REGISTRATION FEE - ----------------------------------------------------------------------------------------------------------------------- Proposed Maximum Proposed Maximum Amount Offering Maximum to be Price Per Aggregate Amount of Title of Securities to be Registered Registered(1) Share Offering Price Registration Fee - ----------------------------------------------------------------------------------------------------------------------- 2000 Employee Stock Purchase Plan Common Stock, $0.0001 par value................ 2,899,993 Shares $7.65(2) $22,184,947 $ 5,856.83 2000 Stock Plan Common Stock, $0.0001 par value................ 0 Shares $ 0(3) $ 0 $ 0 Common Stock, $0.0001 par value................ 21,333,333 Shares $9.00(4) $191,999,997 $50,688.00 Amended and Restated 1998 Stock Option Plan Common Stock, $0.0001 par value................ 1,620,853 Shares $8.33(3) $ 13,501,706 $ 3,564.46 Common Stock, $0.0001 par value................ 203,184 Shares $9.00(4) $ 1,828,056 $ 482.77 Third Amended and Restated 1995 Stock Option Plan Common Stock, $0.0001 par value................ 1,305,520 Shares $4.69(3) $ 6,122,889 $ 1,616.45 Common Stock, $0.0001 par value................ 49,116 Shares $9.00(4) $ 442,044 $ 116.70 1998 Directors' Stock Option Plan Common Stock, $0.0001 par value................ 133,334 Shares $7.50(3) $ 1,000,005 $ 264.01 Common Stock, $0.0001 par value................ 316,666 Shares $9.00(4) $ 2,849,994 $ 752.40 TOTAL 26,507,363 Shares $239,930,238 $63,341.62
_______________________ (1) This Registration Statement shall also cover any additional shares of Common Stock which become issuable under any of the Plans being registered pursuant to this Registration Statement by reason of any stock dividend, stock split, recapitalization or any other similar transaction effected without the receipt of consideration which results in an increase in the number of the Registrant's outstanding shares of Common Stock. In addition, this Registration Statement also covers (a) 2,666,660 additional shares of Common Stock that will become issuable under the 2000 Employee Stock Purchase Plan pursuant to a provision that provides that the number of shares authorized under the 2000 Employee Stock Purchase Plan will automatically increase on the first day of each of the ten years beginning in 2001 and ending in 2010, in an amount equal to the lesser of one percent of the number of shares of Common Stock outstanding on December -2- 31 of the immediately preceding calendar year, or 266,666 in any year, or such lower amount as determined by the Board of Directors, and (b) 20,000,000 additional shares of Common Stock that will become issuable under the 2000 Stock Plan pursuant to a provision that provides that the number of shares authorized under the 2000 Stock Plan will automatically increase on the first day of each of the nine years beginning in 2001 and ending in 2009, in an amount equal to the lesser of five percent of the number of shares of Common Stock outstanding on December 31 of the immediately preceding calendar year, or 2,000,000 shares in any year, or such lower amount as determined by the Board of Directors. (2) Estimated in accordance with Rule 457(h) under the Securities Act of 1933 (the "Securities Act") solely for the purpose of calculating the registration fee. The computation is based upon the average of the high and low sale prices of the Common Stock as reported on The Nasdaq National Market on April 26, 2000, multiplied by 85%, which is the percentage of the trading purchase price applicable to purchases under the referenced Plan. (3) Computed in accordance with Rule 457(h) under the Securities Act solely for the purpose of calculating the registration fee. Computation based on the weighted average per share exercise price (rounded to nearest cent) of outstanding options under the referenced plan, the shares issuable under which are registered hereby. (4) Estimated in accordance with Rule 457(h) under the Securities Act solely for the purpose of calculating the registration fee. The computation with respect to unissued options is based upon the average high and low sale prices of the Common Stock as reported on the Nasdaq National Market on April 26, 2000. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. --------------------------------------- The following documents filed with the Securities and Exchange Commission (the "Commission") are hereby incorporated by reference: (a) The Registrant's Prospectus filed on April 27, 2000 pursuant to Rule 424(b) of the Securities Act, which contains audited financial statements for the Registrant's latest fiscal year for which such statements have been filed. (b) Not Applicable. (c) The description of the Registrant's Common Stock contained in the Registrant's Registration Statement on Form 8-A filed with the Commission under Section 12 of the Securities Exchange Act of 1934 (the "Exchange Act") on April 21, 2000, including any amendment or report filed for the purpose of updating such description. 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 hereby 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 part hereof from the date of filing such documents. -3- Item 4. Description of Securities. Not applicable. ------------------------- Item 5. Interests of Named Experts and Counsel. Not applicable. -------------------------------------- Item 6. Indemnification of Directors and Officers. ----------------------------------------- The Registrant's Certificate of Incorporation reduces the liability of a director to the corporation or its shareholders for monetary damages for breaches of his or her fiduciary duty of care to the fullest extent permissible under Delaware law. The Bylaws of the Registrant further provide for indemnification of corporate agents to the maximum extent permitted by the Delaware General Corporation Law. In addition, the Registrant has entered into Indemnification Agreements with its officers and directors. Item 7. Exemption from Registration Claimed. Not applicable. ----------------------------------------------------- Item 8. Exhibits. -------- Exhibit Number ------- 5.1 Opinion of Venture Law Group, a Professional Corporation. 23.1 Consent of Venture Law Group, a Professional Corporation (included in Exhibit 5.1). 23.2 Consent of Ernst & Young LLP, Independent Auditors. 24.1 Powers of Attorney (see p. 7). _______________ -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 the registration statement or any material change to such information in the registration statement. (2) that, for purposes 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 Section 15(d) of the Exchange Act 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. Insofar as the indemnification for liabilities arising under the Securities Act 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 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 a successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered hereunder, the Registrant will, unless in the opinion of its counsel the question has already been settled by controlling precedent, submit to a court of appropriate jurisdiction the question of 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. [Signature Pages Follow] -5- SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant, Metawave Communications Corporation, a corporation organized and existing under the laws of the State of Delaware, 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 Redmond, State of Washington, on this 28th day of April, 2000. Metawave Communications Corporation By: /s/ Kathy Surace-Smith -------------------------------- Kathy Surace-Smith General Counsel and Secretary -6- KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Kathy Surace-Smith and Robert H. Hunsberger, jointly and severally, his or her attorneys-in-fact and agents, each with the power of substitution and resubstitution, for him or her and in his or her name, place or stead, in any and all capacities, to sign any amendments to this Registration Statement on Form S-8, and to file such amendments, together with exhibits and other documents in connection therewith, with the Securities and Exchange Commission, granting to each attorney-in-fact and agent, 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 as he or she might or could do in person, and ratifying and confirming all that the attorneys-in-fact and agents, or his or her substitute or substitutes, may 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 dates indicated.
Signature Title Date --------- ----- ---- /s/ Robert H. Hunsberger Robert H. Hunsberger (Chief Executive - ------------------------------------- Officer and President) April 28, 2000 Robert H. Hunsberger /s/ Stuart Fuhlendorf Stuart Fuhlendorf (Principal Financial and - ------------------------------------- Accounting Officer) April 28, 2000 Stuart Fuhlendorf /s/ Bandel L. Carano Director April 28, 2000 - ------------------------------------- Bandel L. Carano /s/ Bruce C. Edwards Director April 28, 2000 - ------------------------------------- Bruce C. Edwards /s/ David R. Hathaway Director April 28, 2000 - ------------------------------------- David R. Hathaway /s/ Scot B. Jarvis Director April 28, 2000 - ------------------------------------- Scot B. Jarvis /s/ Jennifer Gill Roberts Director April 28, 2000 - ------------------------------------- Jennifer Gill Roberts /s/ David A. Twyver Director April 28, 2000 - ------------------------------------- David A. Twyver
-7- INDEX TO EXHIBITS Exhibit Number ------- 5.1 Opinion of Venture Law Group, a Professional Corporation. 23.1 Consent of Venture Law Group, a Professional Corporation (included in Exhibit 5.1). 23.2 Consent of Ernst & Young LLP, Independent Auditors. 24.1 Powers of Attorney (see p. 7). EX-5.1 2 OPINION OF VENTURE LAW GROUP EXHIBIT 5.1 April 27, 2000 Metawave Communications Corporation 10735 Willows Road NE Redmond, WA 98052 Registration Statement on Form S-8 ---------------------------------- Ladies and Gentlemen: We have examined the Registration Statement on Form S-8 (the "Registration Statement") filed by you with the Securities and Exchange Commission (the "Commission") on April 28, 2000 in connection with the registration under the Securities Act of 1933, as amended, of a total of 26,507,363 shares of your Common Stock (the "Shares") reserved for issuance under the Third Amended and Restated 1995 Stock Option Plan, 1998 Amended and Restated Stock Option Plan, 2000 Stock Plan, 1998 Amended and Restated Directors' Stock Option Plan, and 2000 Employee Stock Purchase Plan. As your counsel in connection with this transaction, we have examined the proceedings taken and are familiar with the proceedings proposed to be taken by you in connection with the sale and issuance of the Shares. It is our opinion that upon conclusion of the proceedings being taken or contemplated by us, as your counsel, to be taken prior to the issuance of the Shares, and upon completion of the proceedings being taken in order to permit such transactions to be carried out in accordance with the securities laws of the various states where required, the Shares when issued and sold in the manner described in the Registration Statement will be legally and validly issued, fully paid and non-assessable. We consent to the use of this opinion as an exhibit to the Registration Statement and further consent to the use of our name wherever appearing in the Registration Statement, including the Prospectus constituting a part thereof, and in any amendment thereto. Very truly yours, VENTURE LAW GROUP A Professional Corporation /s/ Venture Law Group SFE EX-23.2 3 CONSENT OF ERNST & YOUNG LLP EXHIBIT 23.2 CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS -------------------------------------------------- We consent to the incorporation by reference in the Registration Statement on Form S-8 pertaining to the 2000 Employee Stock Purchase Plan, the 2000 Stock Option Plan, the Amended and Restated 1998 Stock Option Plan, the Third Amended and Restated 1995 Stock Option Plan and the 1998 Directors' Stock Option Plan of our report dated February 11, 2000 with respect to the consolidated financial statements of Metawave Communications Corporation included in its Registration Statement (Form S-1 No. 333-30568), filed with the Securities and Exchange Commission. Seattle, WA ERNST & YOUNG LLP April 27, 2000 -----END PRIVACY-ENHANCED MESSAGE-----