-----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, INDdl9bpCK7vF0G9f+YZPGc7JmYfQtQDVQS/gr+SvKJHE/tea255FaIlToKw5gO8 ZbIrHLBudgu4/4lNwymQIg== /in/edgar/work/0001032210-00-002099/0001032210-00-002099.txt : 20001102 0001032210-00-002099.hdr.sgml : 20001102 ACCESSION NUMBER: 0001032210-00-002099 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20001031 EFFECTIVENESS DATE: 20001031 FILER: COMPANY DATA: COMPANY CONFORMED NAME: METAWAVE COMMUNICATIONS CORP CENTRAL INDEX KEY: 0001028361 STANDARD INDUSTRIAL CLASSIFICATION: [3663 ] IRS NUMBER: 911673152 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-48978 FILM NUMBER: 749629 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 0001.txt FORM S-8 As filed with the Securities and Exchange Commission on October 31, 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) _______________________ 1997 Adaptive Telecom, Inc. Stock Plan (Full title of the Plan) _______________________ 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: Mark J. Handfelt John W. Robertson Venture Law Group A Professional Corporation 4750 Carillon Point Kirkland, Washington 98033 (425) 739-8700 (Calculation of Registration Fee on following page)
- ------------------------------------------------------------------------------------------------------------- CALCULATION OF REGISTRATION FEE - ------------------------------------------------------------------------------------------------------------- Proposed Proposed Maximum Maximum Maximum Amount of Amount to be Offering Price Aggregate Registration Title of Securities to be Registered Registered(1) Per Share(2) Offering Price Fee - ------------------------------------------------------------------------------------------------------------- Adaptive Telecom, Inc. 1997 Stock Option Plan Common Stock, $0.001 par value.......................... 124,377 Shares $19.69 $2,449,276.52 $646.53
_______________________ (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. (2) Computed in accordance with Rule 457(h) under the Securities Act of 1933 (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. -2- 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) All other reports filed 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 Prospectus referred to in (a) above. (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 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. 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 reduce 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. 6). -3- 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) -4- 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 31st day of October 2000. Metawave Communications Corporation By: /s/ Robert H. Hunsberger ---------------------------------------- Robert H. Hunsberger President and Chief Executive Officer -5- POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Robert H. Hunsberger and Stuart W. Fuhlendorf, 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 President and Chief Executive Officer October 31, 2000 - ------------------------------------- Robert H. Hunsberger (Principal Executive Officer) /s/ Stuart W. Fuhlendorf Senior Vice President and Chief Financial October 31, 2000 - ------------------------------------- Stuart W. Fuhlendorf Officer (Principal Financial and Accounting Officer) /s / Douglas O. Reudink Chief Technical Officer and Chairman of the October 31, 2000 - ------------------------------------- Douglas O. Reudink Board of Directors /s / Bandel L. Carano Director October 31, 2000 - ------------------------------------- Bandel L. Carano /s/ Bruce C. Edwards Director October 31, 2000 - ------------------------------------- Bruce C. Edwards /s/ David R. Hathaway Director October 31, 2000 - ------------------------------------- David R. Hathaway /s/ Scot B. Jarvis Director October 31, 2000 - ------------------------------------- Scot B. Jarvis /s/ Jennifer Gill Roberts Director October 31, 2000 - ------------------------------------- Jennifer Gill Roberts /s/ David A. Twyver Director October 31, 2000 - ------------------------------------- David A. Twyver
-6- 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. 6). EX-5.1 2 0002.txt OPINION OF VENTURE LAW GROUP, A PROFESSIONAL CORP. EXHIBIT 5.1 VENTURE LAW GROUP 4750 CARILLON POINT KIRKLAND, WASHINGTON 98033 (425) 739-8700 (425) 739-8750 (facsimile) October 31, 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 October 31, 2000 in connection with the registration under the ---------- Securities Act of 1933, as amended, of a total of 124,377 shares of your Common Stock (the "Shares") reserved for issuance under the Adaptive Telecom, Inc. 1997 ------ Stock 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 MJH EX-23.2 3 0003.txt 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 1997 Adaptive Telecom, Inc. Stock Plan of our report dated February 11, 2000 with respect to the consolidated financial statements of Metawave Communications Corporation included in its Prospectus dated April 27, 2000, filed with the Securities and Exchange Commission. /s/ Ernst & Young LLP Seattle, WA October 30, 2000 ERNST & YOUNG LLP -----END PRIVACY-ENHANCED MESSAGE-----