-----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, TGC21I7rXSPzpKVYD+r1XwrHT9TqQNL7AZa6CE6seB1BMDu+e5b6uuW7cvtq0i1q MEkHW7yerGraoMaARGWUuA== 0001012870-02-001029.txt : 20020415 0001012870-02-001029.hdr.sgml : 20020415 ACCESSION NUMBER: 0001012870-02-001029 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20020306 EFFECTIVENESS DATE: 20020306 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SOMERA COMMUNICATIONS INC CENTRAL INDEX KEY: 0001094243 STANDARD INDUSTRIAL CLASSIFICATION: WHOLESALE-ELECTRONIC PARTS & EQUIPMENT, NEC [5065] IRS NUMBER: 770521878 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-83794 FILM NUMBER: 02567773 BUSINESS ADDRESS: STREET 1: 5383 HOLLISTER AVENUE CITY: SANTA BARBARA STATE: CA ZIP: 93111 BUSINESS PHONE: 8056813322 MAIL ADDRESS: STREET 1: 5383 HOLLISTER AVENUE CITY: SANTA BARBARA STATE: CA ZIP: 93111 S-8 1 ds8.txt FORM S-8 As filed with the Securities and Exchange Commission on March 6, 2002 Registration No. 333-_____ ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 -------------------------------------------- REGISTRATION STATEMENT ON FORM S-8 UNDER THE SECURITIES ACT OF 1933 ---------------------------------------------- SOMERA COMMUNICATIONS, INC. (Exact name of Registrant as specified in its charter) 5383 Hollister Avenue Delaware Santa Barbara, California 93111 77-0521878 (State of (Address of principal executive (IRS Employer Incorporation) offices, including zip code) Identification Number) ---------------------------------------------- Stock Option Agreements (Full title of the plans) ---------------------------------------------- Gary J. Owen Chief Financial Officer SOMERA COMMUNICATIONS, INC. 5383 Hollister Avenue Santa Barbara, California 93111 (805) 681-3322 (Name, address and telephone number of agent for service) Copy to: Jeffrey D. Saper, Esq. WILSON SONSINI GOODRICH & ROSATI, P.C. Professional Corporation 650 Page Mill Road Palo Alto, CA 94304-1050 CALCULATION OF REGISTRATION FEE
================================================================================================================================ Proposed Maximum Proposed Maximum Amount to be Offering Price Per Aggregate Offering Amount of Title of Securities to be Registered Registered Share(1) Price Registration Fee - -------------------------------------------------------------------------------------------------------------------------------- Common Stock, $0.001 per value per share, to be issued pursuant to stock option agreements 3,247,000 $4.50 $14,611,500 $1,345 ================================================================================================================================
(1) Exercise price per share for each stock option agreement being registered pursuant to this registration statement. ================================================================================ PART II INFORMATION REQUIRED IN REGISTRATION STATEMENT Explanatory Note: This Registration Statement is being filed to register an aggregate of 3,247,000 shares of Common Stock of Somera Communications, Inc. (the "Registrant" or the "Company") that may be issued pursuant to certain stand-alone stock option agreements between the Company and Rick Darnaby (2,747,000 shares), its President and Chief Executive Officer, and the Company and Dan Firestone (500,000 shares), its Executive Chairman of the Board, in connection with employment agreements signed between the Company and such individuals in September 2001. Item 3. Incorporation of Documents by Reference. --------------------------------------- The Registrant hereby incorporates by reference into this Registration Statement the following documents and information previously filed with the Securities and Exchange Commission (the "Commission"): 1. The Registrant's Annual Report on Form 10-K for the fiscal year ended December 31, 2000; 2. The Registrant's Quarterly Reports on Form 10-Q for the quarters ended March 31, 2001, June 30, 2001, and September 30, 2001; 3. The description of the Registrant's Common Stock contained in the Registrant's Registration Statement on Form 8-A filed pursuant to Section 12(g) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), including any amendment or report filed for the purpose of updating such description. All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act on or after the date of this Registration Statement and 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 in this Registration Statement and to be 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. -------------------------------------- Not applicable. Item 6. Indemnification of Directors and Officers. ----------------------------------------- The Company's Certificate of Incorporation limits the liability of directors to the maximum extent permitted by Delaware law. Delaware law provides that directors of a company will not be personally liable for monetary damages for breach of their fiduciary duties as directors, except for liability (i) for any breach of their duty of loyalty to the company or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or knowing violation of law, (iii) for unlawful payments or dividends or II-1 unlawful stock repurchases or redemptions as provided Section 174 of Delaware General Corporation Law or (iv) for transactions from which the director derived an improper personal benefit. The Company's Bylaws provide that the Company shall indemnify its officers and directors and may indemnify its employees and other agents to the fullest extent provided by Delaware law, including those circumstances where indemnification would otherwise be discretionary under Delaware law. The Company believes that indemnification under its Bylaws covers at least negligence on the part of indemnified parties. The Bylaws authorize the use of indemnification agreements and the Company has entered into such agreements with each of its directors and officers. The Company carries officer and director liability insurance with respect to certain matters, including matters arising under the Securities Act. Delaware law does not permit a corporation to eliminate a director's duty of care, and the provisions of the Company's Certificate of Incorporation have no effect on the availability of equitable remedies such as injunction or rescission, based upon a director's breach of the duty of care. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to foregoing provisions and agreements, the Company has been informed that in the opinion of the staff of the Commission such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable. Item 7. Exemption from Registration Claimed. ----------------------------------- Not applicable. Item 8. Exhibits. -------- Exhibit Number Description ------ ----------- 5.1 Opinion of Wilson Sonsini Goodrich & Rosati, P.C. 10.1 Form of Stock Option Agreement 23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants 23.2 Consent of Wilson Sonsini Goodrich & Rosati, P.C. (contained in Exhibit 5.1) 24.1 Power of Attorney (see page II-4) - ---------- 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 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, as amended (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. II-2 (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, 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 (the "Exchange Act") (and, where applicable, each filing of an employee benefit plan's annual report pursuant to 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. C. 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 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 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-3 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 Santa Barbara, State of California, on March 6, 2002. SOMERA COMMUNICATIONS, INC. By: /s/ GARY J. OWEN ------------------------------------- Gary J. Owen Chief Financial Officer POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Rick Darnaby and Gary J. Owen, jointly and severally, his or her attorneys-in-fact, each with the power of substitution, for him in any and all capacities, to sign any amendments to this Registration Statement on Form S-8, and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said attorneys-in-fact, or his substitution or substitutes, may do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act, this Registration Statement has been signed on March 6, 2002 by the following persons in the capacities indicated. Signature Title --------- ----- /s/ RICK DARNABY - ----------------------------- President, Chief Executive Officer and Director Rick Darnaby (Principal Executive Officer) /s/ GARY J. OWEN - ----------------------------- Chief Financial Officer (Principal Financial Gary J. Owen and Accounting Officer) /s/ DAN FIRESTONE - ----------------------------- Dan Firestone Executive Chairman of the Board /s/ WALTER G. KORTSCHAK - ----------------------------- Walter G. Kortschak Director /s/ PETER Y. CHUNG - ----------------------------- Peter Y. Chung Director /s/ BARRY PHELPS - ----------------------------- Barry Phelps Director /s/ GIL VARON - ----------------------------- Gil Varon Director II-4 INDEX TO EXHIBITS Exhibit Number Description ------ ----------- 5.1 Opinion of Wilson Sonsini Goodrich & Rosati, P.C. 10.1 Form of Stock Option Agreement 23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants 23.2 Consent of Wilson Sonsini Goodrich & Rosati, P.C. (contained in Exhibit 5.1) 24.1 Power of Attorney (see page II-4) - ---------- EX-5.1 3 dex51.txt OPINION OF WILSON SONSINI GOODRICH ROSATI EXHIBIT 5.1 March 6, 2002 Somera Communications, Inc. 5383 Hollister Avenue Santa Barbara, California 93111 Re: Registration Statement on Form S-8 ---------------------------------- Ladies and Gentlemen: We have examined the Registration Statement on Form S-8 to be filed by you with the Securities and Exchange Commission on or about March 6, 2002 (the "Registration Statement") in connection with the registration under the Securities Act of 1933, as amended, of 3,247,000 shares of Common Stock (the "Shares") to be issued pursuant to stand-alone stock option agreements with Rick Darnaby and Dan Firestone (the "Option Agreements"). As your legal counsel, we have examined the proceedings taken and are familiar with the proceedings proposed to be taken by you in connection with the issuance and sale of the Shares pursuant to the Option Agreements. It is our opinion that the Shares, when issued and sold in the manner referred to in the Option Agreements, 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 and any amendments thereto. Very truly yours, WILSON SONSINI GOODRICH & ROSATI Professional Corporation /S/ WILSON SONSINI GOODRICH & ROSATI EX-10.1 4 dex101.txt FORM OF STOCK AGREEMENT EXHIBIT 10.1 SOMERA COMMUNICATIONS, INC. FORM OF STAND-ALONE STOCK OPTION AGREEMENT I. NOTICE OF STOCK OPTION GRANT ---------------------------- ------------------------- ------------------------- ------------------------- You have been granted a Nonstatutory Stock Option to purchase Common Stock of the Company, subject to the terms and conditions of this Agreement, as follows: Date of Grant ------------------------------------------------- Vesting Commencement Date ------------------------------------------------- Exercise Price per Share $ ------------------------------------------------- Total Number of Shares Granted ------------------------------------------------- Total Exercise Price $ ------------------------------------------------- Term/Expiration Date: ------------------------------------------------- Vesting Schedule: - ---------------- This Option shall vest and may be exercised, in whole or in part, in accordance with the following schedule: 25% of the Shares subject to the Option shall vest one year after the Vesting Commencement Date, and 1/48th of the Shares subject to the Option shall vest each month thereafter, so that the Option shall be fully vested four (4) years from the Date of Grant, subject to the Optionee continuing to be a Service Provider on such dates, provided, that such vesting shall be subject to -------- acceleration in certain events pursuant to Section 5(e) of the Employment Agreement between Optionee and the Company. Termination Period ------------------ This Option may be exercised for three (3) months after Optionee ceases to be a Service Provider in accordance with Section 7 of this Agreement, provided, -------- however, that in the event that Optionee's employment with the Company is - ------- "Constructively Terminated" or involuntarily terminated other than for "Cause" (as such terms are defined in the Employment Agreement between Optionee and the Company), then this Option may be exercised for six (6) months after Optionee ceases to be a Service Provider. Upon the death or Disability of the Optionee, this Option may be exercised for one year after the Optionee ceases to be a Service Provider in accordance with Section 8 or 9 of this Agreement. In no event shall this Option be exercised later that the Term/Expiration Date provided. II. AGREEMENT --------- 1. Definitions. As used herein, the following definitions shall apply: ----------- (a) "Agreement" means this stock option agreement between the Company --------- and Optionee evidencing the terms and conditions of this Option. (b) "Applicable Laws" means the requirements relating to the --------------- administration of stock options under U.S. state corporate laws, U.S. federal and state securities laws, the Code, any stock exchange or quotation system on which the Common Stock is listed or quoted and the applicable laws of any foreign country or jurisdiction that may apply to this Option. (c) "Board" means the Board of Directors of the Company or any ----- committee of the Board that has been designated by the Board to administer this Agreement. (d) "Code" means the Internal Revenue Code of 1986, as amended. ---- (e) "Common Stock" means the common stock of the Company. ------------ (f) "Company" means Somera Communications, Inc., a Delaware ------- corporation. (g) "Consultant" means any person, including an advisor, engaged by ---------- the Company or a Parent or Subsidiary to render services to such entity. (h) "Director" means a member of the Board. -------- (i) "Disability" means total and permanent disability as defined in ---------- Section 22(e)(3) of the Code. (j) "Employee" means any person, including Officers and Directors, -------- employed by the Company or any Parent or Subsidiary of the Company. A Service Provider shall not cease to be an Employee in the case of (i) any leave of absence approved by the Company or (ii) transfers between locations of the Company or between the Company, its Parent, any Subsidiary, or any successor. Neither service as a Director nor payment of a director's fee by the Company shall be sufficient to constitute "employment" by the Company. (k) "Exchange Act" means the Securities Exchange Act of 1934, as ------------ amended. -2- (l) "Fair Market Value" means, as of any date, the value of Common ----------------- Stock determined as follows: (1) If the Common Stock is listed on any established stock exchange or a national market system, including without limitation the Nasdaq National Market or The Nasdaq SmallCap Market of The Nasdaq Stock Market, its Fair Market Value shall be the closing sales price for such stock (or the closing bid, if no sales were reported) as quoted on such exchange or system for the last market trading day prior to the time of determination, as reported in The Wall Street Journal or such other source as the Board deems reliable; (2) If the Common Stock is regularly quoted by a recognized securities dealer but selling prices are not reported, its Fair Market Value shall be the mean between the high bid and low asked prices for the Common Stock on the last market trading day prior to the day of determination; or (3) In the absence of an established market for the Common Stock, the Fair Market Value thereof shall be determined in good faith by the Board. (m) "Nonstatutory Stock Option" means an Option not intended to ------------------------- qualify as an incentive stock option within the meaning of Section 422 of the Code and the regulations promulgated thereunder. (n) "Notice of Grant" means a written notice, in Part I of this --------------- Agreement, evidencing certain of the terms and conditions of this Option grant. The Notice of Grant is part of the Option Agreement. (o) "Officer" means a person who is an officer of the Company within ------- the meaning of Section 16 of the Exchange Act and the rules and regulations promulgated thereunder. (p) "Option" means this stock option. ------ (q) "Optioned Stock" means the Common Stock subject to this Option. -------------- (r) "Optionee" means the person named in the Notice of Grant or such -------- person's successor. (s) "Parent" means a "parent corporation," whether now or hereafter ------ existing, as defined in Section 424(e) of the Code. (t) "Service Provider" means an Employee, Director or Consultant. ---------------- (u) "Share" means a share of the Common Stock, as adjusted in ----- accordance with Section 10 of this Agreement. (v) "Subsidiary" means a "subsidiary corporation", whether now or ---------- hereafter existing, as defined in Section 424(f) of the Code. 2. Grant of Option. The Board hereby grants to the Optionee named in the --------------- Notice of Grant attached as Part I of this Agreement the Option to purchase the number of Shares, as set forth in the Notice of Grant, at the exercise price per share set forth in the Notice of Grant (the "Exercise Price"), subject to the terms and conditions of this Agreement. -3- 3. Exercise of Option. ------------------ (a) Right to Exercise. This Option is exercisable during its term in ----------------- accordance with the Vesting Schedule set out in the Notice of Grant and the applicable provisions of this Agreement. (b) Method of Exercise. This Option is exercisable by delivery of an ------------------ exercise notice, in the form attached as Exhibit A (the "Exercise Notice"), --------- which shall state the election to exercise the Option, the number of Shares in respect of which the Option is being exercised (the "Exercised Shares"), and such other representations and agreements as may be required by the Company. The Exercise Notice shall be completed by the Optionee and delivered to Secretary of the Company. The Exercise Notice shall be accompanied by payment of the aggregate Exercise Price as to all Exercised Shares. This Option shall be deemed to be exercised upon receipt by the Company of such fully executed Exercise Notice accompanied by such aggregate Exercise Price. (c) Legal Compliance. No Shares shall be issued pursuant to the ---------------- exercise of this Option unless such issuance and exercise complies with Applicable Laws. Assuming such compliance, for income tax purposes the Exercised Shares shall be considered transferred to the Optionee on the date the Option is exercised with respect to such Exercised Shares. (d) Buyout Provisions. The Board may at any time offer to buy out for ----------------- a payment in cash or Shares an Option previously granted based on such terms and conditions as the Board shall establish and communicate to the Optionee at the time that such offer is made. 4. Method of Payment. Payment of the aggregate Exercise Price shall be by ----------------- any of the following, or a combination thereof, at the election of the Optionee: (a) cash or check; (b) consideration received by the Company under a cashless exercise program implemented by the Company; or (c) surrender of other Shares which (i) in the case of Shares acquired upon exercise of an option, have been owned by the Optionee for more than six (6) months on the date of surrender, and (ii) have a Fair Market Value on the date of surrender equal to the aggregate Exercise Price of the Exercised Shares. 5. Limited Transferability of Option. This Option may not be transferred in --------------------------------- any manner other than (i) by will or by the laws of descent or distribution, or (ii) with the Board's consent and pursuant to such procedures as the Board (in its discretion) may specify, in a manner which would not prevent this Option from being registered on Form S-8 in the reasonable judgment of the Company's legal counsel. This Option may be exercised during the lifetime of Optionee only by the Optionee or a valid transferee. The terms of this Option Agreement shall be binding upon the executors, administrators, heirs, successors and assigns of the Optionee and in order to effect a valid transfer, the transferee shall execute an assignment agreeing to the terms of this Option Agreement. -4- 6. Term of Option. This Option may be exercised only within the term set -------------- out in the Notice of Grant, and may be exercised during such term only in accordance with the terms of this Agreement. 7. Termination of Relationship as a Service Provider. If the Optionee ------------------------------------------------- ceases to be a Service Provider (other than for death or Disability), this Option may be exercised for a period of three (3) months after the date of such termination (but in no event later than the expiration date of this Option as set forth in the Notice of Grant) to the extent that the Option is vested on the date of such termination, provided, however, that in the event that Optionee's -------- ------- employment with the Company is "Constructively Terminated" or involuntarily terminated other than for "Cause" (as such terms are defined in the Employment Agreement between Optionee and the Company), then this Option may be exercised for six (6) months after Optionee ceases to be a Service Provider (but in no event later than the expiration date of this Option as set forth in the Notice of Grant) to the extent that the Option is vested on the date of such termination. To the extent that the Optionee does not exercise this Option within the time specified herein, the Option shall terminate. 8. Disability of Optionee. If the Optionee ceases to be a Service Provider ---------------------- as a result of the Optionee's Disability, this Option may be exercised for a period of twelve (12) months after the date of such termination (but in no event later than the expiration date of this Option as set forth in the Notice of Grant) to the extent that the Option is vested on the date of such termination. To the extent that Optionee does not exercise this Option within the time specified herein, the Option shall terminate. 9. Death of Optionee. If the Optionee dies while a Service Provider, the ----------------- Option may be exercised at any time within twelve (12) months following the date of death (but in no event later than the expiration date of this Option as set forth in the Notice of Grant), by the Optionee's estate or by a person who acquired the right to exercise the Option by bequest or inheritance, but only to the extent that the Optionee was entitled to exercise the Option at the date of death. If, after death, the Optionee's estate or a person who acquired the right to exercise the Option by bequest or inheritance does not exercise the Option within the time specified herein, the Option shall terminate. 10. Adjustments upon Changes in Capitalization, Dissolution, Merger or ------------------------------------------------------------------ Asset Sale. - ---------- (a) Changes in Capitalization. Subject to any required action by the ------------------------- stockholders of the Company, the number of shares of Common Stock covered by this Option, as well as the price per share of Common Stock covered by this Option, shall be proportionately adjusted for any increase or decrease in the number of issued shares of Common Stock resulting from a stock split, reverse stock split, stock dividend, combination or reclassification of the Common Stock, or any other increase or decrease in the number of issued shares of Common Stock effected without receipt of consideration by the Company; provided, however, that conversion of any convertible securities of the Company shall not be deemed to have been "effected without receipt of consideration." Such adjustment shall be made by the Board, whose determination in that respect shall be final, binding and conclusive. Except as expressly provided herein, no issuance by the Company of shares of stock of any class, or securities convertible into shares of stock of any class, shall affect, and no adjustment by reason thereof shall be made with respect to, the number or price of shares of Common Stock subject to this Option. -5- (b) Dissolution or Liquidation. In the event of the proposed -------------------------- dissolution or liquidation of the Company, the Board shall notify Optionee as soon as practicable prior to the effective date of such proposed transaction. The Board in its discretion may provide for the Optionee to have the right to exercise his or her Option until fifteen (15) days prior to such transaction as to all of the Optioned Stock covered thereby, including Shares as to which the Option would not otherwise be exercisable. To the extent it has not been previously exercised, the Option will terminate immediately prior to the consummation of such proposed transaction. (c) Merger or Asset Sale. In the event of a merger of the Company with -------------------- or into another corporation, or the sale of substantially all of the assets of the Company, the Option shall be assumed or an equivalent option substituted by the successor corporation or a Parent or Subsidiary of the successor corporation. In the event that the successor corporation refuses to assume or substitute for the Option, the Optionee shall fully vest in and have the right to exercise the Option as to all of the Optioned Stock, including Shares as to which it would not otherwise be vested or exercisable. If the Option becomes fully vested and exercisable in lieu of assumption or substitution in the event of a merger or sale of assets, the Board shall notify the Optionee in writing or electronically that the Option shall be fully exercisable for a period of fifteen (15) days from the date of such notice, and the Option shall terminate upon the expiration of such period. For the purposes of this paragraph, the Option shall be considered assumed if, following the merger or sale of assets, the option confers the right to purchase or receive, for each Share of Optioned Stock subject to the Option immediately prior to the merger or sale of assets, the consideration (whether stock, cash, or other securities or property) received in the merger or sale of assets by holders of Common Stock for each Share held on the effective date of the transaction (and if holders were offered a choice of consideration, the type of consideration chosen by the holders of a majority of the outstanding Shares); provided, however, that if such consideration received in the merger or sale of assets is not solely common stock of the successor corporation or its Parent, the Board may, with the consent of the successor corporation, provide for the consideration to be received upon the exercise of the Option, for each Share of Optioned Stock subject to the Option, to be solely common stock of the successor corporation or its Parent equal in fair market value to the per share consideration received by holders of Common Stock in the merger or sale of assets. 11. Notices. Any notice to be given to the Company hereunder shall be in ------- writing and shall be addressed to the Company. at its then current principal executive office or to such other address as the Company may hereafter designate to the Optionee by notice as provided in this Section. Any notice to be given to the Optionee hereunder shall be addressed to the Optionee at the address set forth beneath his signature hereto, or at such other address as the Optionee may hereafter designate to the Company by notice as provided herein. All notices, requests, demands and other communications called for hereunder shall be in writing and shall be deemed given if (i) delivered personally or by facsimile, (ii) one (1) day after being sent by Federal Express or a similar commercial overnight service, or (iii) three (3) days after being mailed by registered or certified mail, return receipt requested, prepaid and addressed to the parties or their successors in interest. 12. Tax Consequences. Some of the federal tax consequences relating to this ---------------- Option, as of the date of this Option, are set forth below. THIS SUMMARY IS NECESSARILY INCOMPLETE, AND THE TAX LAWS AND REGULATIONS ARE SUBJECT TO CHANGE. THE OPTIONEE SHOULD CONSULT A TAX ADVISER BEFORE EXERCISING THIS OPTION OR DISPOSING OF THE SHARES. -6- (a) Exercising the Option. The Optionee may incur regular federal --------------------- income tax liability upon exercise of a Nonstatutory Stock Option (an "NSO"). The Optionee will be treated as having received compensation income (taxable at ordinary income tax rates) equal to the excess, if any, of the Fair Market Value of the Exercised Shares on the date of exercise over their aggregate Exercise Price. If the Optionee is an Employee or a former Employee, the Company will be required to withhold from his or her compensation or collect from Optionee and pay to the applicable taxing authorities an amount in cash equal to a percentage of this compensation income at the time of exercise, and may refuse to honor the exercise and refuse to deliver Shares if such withholding amounts are not delivered at the time of exercise. (b) Disposition of Shares. If the Optionee holds NSO Shares for at --------------------- least one year, any gain realized on disposition of the Shares will be treated as long-term capital gain for federal income tax purposes. 13. Entire Agreement; Governing Law. This Agreement constitutes the entire ------------------------------- agreement of the parties with respect to the subject matter hereof and supersedes in their entirety all prior undertakings and agreements of the Company and Optionee with respect to the subject matter hereof, and may not be modified adversely to the Optionee's interest except by means of a writing signed by the Company and Optionee. This agreement is governed by the internal substantive laws, but not the choice of law rules, of California. 14. NO GUARANTEE OF CONTINUED SERVICE. OPTIONEE ACKNOWLEDGES AND AGREES --------------------------------- THAT THE VESTING OF SHARES PURSUANT TO THE VESTING SCHEDULE HEREOF IS EARNED ONLY BY CONTINUING AS A SERVICE PROVIDER AT THE WILL OF THE COMPANY (AND NOT THROUGH THE ACT OF BEING HIRED, BEING GRANTED AN OPTION OR PURCHASING SHARES HEREUNDER). OPTIONEE FURTHER ACKNOWLEDGES AND AGREES THAT THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREUNDER AND THE VESTING SCHEDULE SET FORTH HEREIN DO NOT CONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF CONTINUED ENGAGEMENT AS A SERVICE PROVIDER FOR THE VESTING PERIOD, FOR ANY PERIOD, OR AT ALL, AND SHALL NOT INTERFERE WITH OPTIONEE'S RIGHT OR THE COMPANY'S RIGHT TO TERMINATE OPTIONEE'S RELATIONSHIP AS A SERVICE PROVIDER AT ANY TIME, WITH OR WITHOUT CAUSE. -7- By your signature and the signature of the Company's representative below, you and the Company agree that this Option is granted under and governed by the terms and conditions of this Agreement. Optionee has reviewed this Agreement in its entirety, has had an opportunity to obtain the advice of counsel prior to executing this Agreement and fully understands all provisions of this Agreement. Optionee hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Board upon any questions relating to this Agreement. Optionee further agrees to notify the Company upon any change in the residence address indicated below. OPTIONEE SOMERA COMMUNICATIONS, INC. - ------------------------------------- --------------------------------------- Signature By - ------------------------------------- --------------------------------------- Print Name Title - ------------------------------------- Residence Address - ------------------------------------- - ------------------------------------- -8- CONSENT OF SPOUSE The undersigned spouse of Optionee has read and hereby approves the terms and conditions of this Agreement. In consideration of the Company's granting her spouse the right to purchase Shares as set forth in this Agreement, the undersigned hereby agrees to be irrevocably bound by the terms and conditions of this Agreement and further agrees that any community property interest shall be similarly bound. The undersigned hereby appoints the undersigned's spouse as attorney-in-fact for the undersigned with respect to any amendment or exercise of rights under this Agreement. ------------------------------------- Spouse of Optionee EXHIBIT A --------- SOMERA COMMUNICATIONS, INC. EXERCISE NOTICE Somera Communications, Inc. 5383 Hollister Avenue Santa Barbara, CA 93111 Attention: Controller 1. Exercise of Option. Effective as of today, ________________, 200__, the ------------------ undersigned ("Purchaser") hereby elects to purchase ______________ shares (the "Shares") of the Common Stock of Somera Communications, Inc. (the "Company") under and pursuant to the Stand-Alone Stock Option Agreement dated ______________ (the "Option Agreement"). The purchase price per share for the Shares shall be [$_______], as required by the Option Agreement. 2. Delivery of Payment. Purchaser herewith delivers to the Company the full ------------------- purchase price for the Shares. 3. Representations of Purchaser. Purchaser acknowledges that Purchaser has ---------------------------- received, read and understood the Option Agreement and agrees to abide by and be bound by its terms and conditions. 4. Rights as Shareholder. Until the issuance (as evidenced by the --------------------- appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company) of the Shares, no right to vote or receive dividends or any other rights as a stockholder shall exist with respect to the Optioned Stock, notwithstanding the exercise of the Option. The Shares so acquired shall be issued to the Optionee as soon as practicable after exercise of the Option. No adjustment will be made for a dividend or other right for which the record date is prior to the date of issuance, except as provided in Section 10 of the Option Agreement. 5. Tax Consultation. Purchaser understands that Purchaser may suffer ---------------- adverse tax consequences as a result of Purchaser's purchase or disposition of the Shares. Purchaser represents that Purchaser has consulted with any tax consultants Purchaser deems advisable in connection with the purchase or disposition of the Shares and that Purchaser is not relying on the Company for any tax advice. 6. Successors and Assigns. The Company may assign any of its rights under ---------------------- this Exercise Notice to single or multiple assignees, and this Exercise Notice shall inure to the benefit of the successors and assigns of the Company. Subject to the restrictions on transfer herein set forth, this Exercise Notice shall be binding upon Optionee and his or her heirs, executors, administrators, successors and assigns. -2- 7. Interpretation. Any dispute regarding the interpretation of this -------------- Exercise Notice shall be submitted by Optionee or by the Company forthwith to the Board which shall review such dispute at its next regular meeting. The resolution of such a dispute by the Board shall be final and binding on all parties. 8. Entire Agreement; Governing Law. The Option Agreement is incorporated ------------------------------- herein by reference. This Exercise Notice and the Option Agreement constitute the entire agreement of the parties with respect to the subject matter hereof and supersede in their entirety all prior undertakings and agreements of the Company and Purchaser with respect to the subject matter hereof, and may not be modified adversely to the Purchaser's interest except by means of a writing signed by the Company and Purchaser. This agreement is governed by the internal substantive laws, but not the choice of law rules, of California. Submitted by: Accepted by: OPTIONEE SOMERA COMMUNICATIONS, INC. - ------------------------------------- --------------------------------------- Signature - ------------------------------------- --------------------------------------- Print Name Title - ------------------------------------- Address - ------------------------------------- - ------------------------------------- Date Received: ------------------------- -3- EX-23.1 5 dex231.txt CONSENT OF PRICEWATERHOUSECOOPERS EXHIBIT 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS We consent to the incorporation by reference in this Registration Statement of Somera Communications, Inc. on Form S-8 dated March 6, 2002 of our reports dated January 26, 2001 with respect to the consolidated financial statements and financial statement schedule of Somera Communications, Inc. included in the Annual Report on Form 10-K filed with the Securities and Exchange Commission on March 29, 2001. /s/ PRICEWATERHOUSECOOPERS LLP San Jose, California March 6, 2002 -----END PRIVACY-ENHANCED MESSAGE-----