-----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, SXxImQ6PqRHszLaBlreCFyO0t3JCoM8hF0tM9fpXxA1mWiot/QqHrDW3FkNxfDL9 e0tODyzjyo1vrzKfzZLDZw== 0000950149-00-000327.txt : 20000217 0000950149-00-000327.hdr.sgml : 20000217 ACCESSION NUMBER: 0000950149-00-000327 CONFORMED SUBMISSION TYPE: 8-K/A PUBLIC DOCUMENT COUNT: 2 CONFORMED PERIOD OF REPORT: 20000201 ITEM INFORMATION: ITEM INFORMATION: FILED AS OF DATE: 20000216 FILER: COMPANY DATA: COMPANY CONFORMED NAME: METRICOM INC / DE CENTRAL INDEX KEY: 0000884318 STANDARD INDUSTRIAL CLASSIFICATION: RADIO & TV BROADCASTING & COMMUNICATIONS EQUIPMENT [3663] IRS NUMBER: 770294597 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K/A SEC ACT: SEC FILE NUMBER: 000-19903 FILM NUMBER: 547174 BUSINESS ADDRESS: STREET 1: 980 UNIVERSITY AVE CITY: LOS GRATOS STATE: CA ZIP: 95030 BUSINESS PHONE: 4083998200 MAIL ADDRESS: STREET 1: 980 UNIVERSITY AVE CITY: LOS GATOS STATE: CA ZIP: 95030 8-K/A 1 AMENDMENT NO. 1 TO FORM 8-K DATED 2/1/2000 1 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 Amendment No. 1 to FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 Date of Report (Date of earliest event reported): February 1, 2000 METRICOM, INC. METRICOM FINANCE, INC. (Exact name of registrant as specified (Exact name of registrant as specified in its charter) in its charter) DELAWARE DELAWARE (State or other jurisdiction (State of or other jurisdiction of of incorporation) incorporation) 77-0294597 77-0529272 (IRS Employer Identification No.) (IRS Employer Identification No.) 0-19903 333-91359-01 (Commission File Number) (Commission File Number) 980 UNIVERSITY AVENUE, LOS GATOS, CALIFORNIA 95030-2375 (Address of principal executive offices and zip code) Registrants' telephone number, including area code: (408) 399-8200 2 ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS. (C) Exhibits. EXHIBIT NO. DESCRIPTION 1.3 Terms Agreement dated February 2, 2000 among Metricom, Inc., Metricom Finance, Inc. and the underwriters named therein relating to the issuance and sale of $300,000,000 aggregate principal amount of their 13% Senior Notes due 2010. 2. 3 SIGNATURES OF METRICOM, INC. Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. Date: February 15, 2000 METRICOM, INC. By: /s/ James E. Wall ---------------------------- James E. Wall Chief Financial Officer SIGNATURES OF METRICOM FINANCE, INC. Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. Date: February 15, 2000 METRICOM FINANCE, INC. By: /s/ James E. Wall ---------------------------- James E. Wall Chief Financial Officer 3. 4 EXHIBIT INDEX
EXHIBIT NUMBER DESCRIPTION - ------ ----------- 1.3 Terms Agreement dated February 2, 2000 among Metricom, Inc., Metricom Finance, Inc. and the underwriters named therein relating to the issuance and sale of $300,000,000 aggregate principal amount of their 13% Senior Notes due 2010.
EX-1.3 2 TERMS AGREEMENT DATED FEBRUARY 2, 2000 1 EXHIBIT 1.3 LEHMAN BROTHERS INC. SALOMON SMITH BARNEY INC. CHASE SECURITIES INC. J. P. MORGAN SECURITIES INC. MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED As Representatives of the Several Underwriters C/O LEHMAN BROTHERS INC. 3 World Financial Center New York, New York 10285 Debt Securities TERMS AGREEMENT Dated: February 2, 2000 To: METRICOM, INC. METRICOM FINANCE, INC. 980 University Avenue Los Gatos, California 95032 Re: Underwriting Agreement dated February 1, 2000. Dear Sirs: We (the "Representatives") understand that Metricom, Inc., a Delaware corporation, and Metricom Finance, Inc. (each individually a "Company" and collectively, the "Issuers"), propose to issue and sell $300,000,000 aggregate principal amount of their 13% Senior Notes due 2010 (the "Senior Notes") and associated warrants to purchase an aggregate of 1,425,000 shares of Common Stock of Metricom, Inc. This agreement is a Terms Agreement referred to in the underwriting agreement dated February 1, 2000 (the "Underwriting Agreement"). Terms used herein but not otherwise defined shall have the meaning ascribed to such terms in the Underwriting Agreement, the Indenture, dated as of December 29, 1999, as supplemented by the First Supplemental Indenture thereto, dated as of February 7, 2000, relating to the Senior Notes (the "Indenture") and the Warrant Agreement, dated as of February 7, 2000. Subject to the terms and conditions set forth herein or incorporated by reference herein, the Underwriters named below (the "Underwriters") offer to purchase, severally and not jointly, the amount of Senior Notes and at the terms set forth below. 2
PRINCIPAL AMOUNT OF UNDERWRITER SENIOR NOTES ----------- ------------------- Lehman Brothers Inc. $141,000,000 Salomon Smith Barney Inc. 72,000,000 Chase Securities Inc. 34,500,000 J. P. Morgan Securities Inc. 34,500,000 Merrill Lynch, Pierce, Fenner & Smith Incorporated 18,000,000 ------------ TOTAL $300,000,000 ============
TERMS TITLE OF DEBT SECURITIES: Senior Notes SENIOR OR SUBORDINATED: Senior CURRENCY: US Dollars CURRENT RATINGS: B-/B3 INTEREST RATE OR FORMULA: 13% INTEREST PAYMENT DATES: February 15 and August 15 of each year commencing August 15, 2000. DATE OF MATURITY: February 15, 2010 UNITS: Each Senior Note must be purchased with an associated warrant to purchase 4.75 shares of Common Stock of the Company (the "Warrants"). Each unit will consist of a Warrant and $1,000 principal amount of Senior Notes. The Senior Notes and Warrants will not be separately transferable until the Separation Date, which will be the earlier of (i) August 15, 2000, (ii) the occurrence of an Event of Default under the Indenture, (iii) the occurrence of an Exercise Event, as defined in the Warrant Agreement; dated as of February 7, 2000, in connection with the Warrants and (iv) such other date as Lehman Brothers Inc. shall determine in its sole discretion. REDEMPTION PROVISIONS: Optional Redemption - Issuers may pay redeem a part or all of the Senior Notes on or after February 15, 2005, at the following redemption prices:
Year Redemption Price ---- ---------------- 2005 108.00%
2 3 2006 106.00% 2007 104.00% 2008 102.00% 2009 and thereafter 100.00%
There is no provision for mandatory redemption; however, the Issuers are required to offer to purchase the outstanding Senior Notes at a purchase price equal to 101% of their principal amount in the event of a Change of Control or with the Excess Proceeds of certain Asset Sales. SINKING FUND REQUIREMENTS: None PUBLIC OFFERING PRICE: 100% PURCHASE PRICE: $229,881,495 LISTING REQUIREMENT: None CONVERTIBLE: No CONVERSION PROVISIONS: None DELIVERY DATE AND LOCATION: Senior Notes in definitive global form, registered in the name of Cede & Co., as nominee of The Depository Trust Company, having an aggregate amount corresponding to the aggregate principal amount of the Senior Notes will be delivered on February 7, 2000 at the offices of Weil, Gotshal & Manges LLP, 2882 Sandhill Road, Suite 280, Menlo Park, California 94025 at 10:00 a.m., New York City time. ADDITIONAL REPRESENTATIONS, WARRANTIES AND AGREEMENTS: The Company represents, warrants and agrees as follows: 1. To use the proceeds from the sale of the Senior Notes in the manner described in the prospectus supplement relating to the Senior Notes under the caption "Use of Proceeds," and not to voluntarily claim, and to resist actively any attempts to claim, the benefit of any usury laws against the holders of any Senior Notes. 2. Not to take, directly or indirectly, any action designed to, or that might reasonably be expected to, cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Senior Notes in violation of the Exchange Act or any applicable rules of the Nasdaq National Market. Except as permitted by the Securities Act, neither the Company nor any future Guarantor will distribute any (i) Prospectus, (ii) Prospectus Supplement, or (iii) other offering material in connection with the offering and sale of the Senior Notes. Neither the Company nor any of its subsidiaries has (A) taken, directly or indirectly, any action designed to, or that might reasonably be expected to, cause or result in 3 4 stabilization or manipulation of the price of any security of the Company or any of its subsidiaries to facilitate the sale or resale of the Senior Notes or (B) since the date of the Preliminary Prospectus Supplement (1) sold, bid for, purchased or paid any person any compensation for soliciting purchases of the Senior Notes or (2) paid or agreed to pay to any person any compensation for soliciting another to purchase any other securities of the Company or any of its subsidiaries. 3. None of the execution, delivery and performance of this Agreement, the issuance and sale of the Senior Notes, the application of the proceeds from the issuance and sale of the Senior Notes and the consummation of the transactions contemplated thereby as set forth in the Prospectus and Prospectus Supplement, will violate Regulations T, U or X promulgated by the Board of Governors of the Federal Reserve System or analogous foreign laws and regulations. 4. The Company does not intend to, and does not believe that it will, incur debts beyond its ability to pay such debts as they mature. The present fair saleable value of the assets of the Company exceeds the amount that will be required to be paid on or in respect of its existing debts and other liabilities (including contingent liabilities) as they become absolute and matured. The assets of the Company do not constitute unreasonably small capital to carry out its business as conducted or as proposed to be conducted. Upon the issuance or assumption, as applicable, of the Senior Notes, the present fair saleable value of the assets of the Company will exceed the amount that will be required to be paid on or in respect of its existing debts and other liabilities (including contingent liabilities) as they become absolute and matured. Upon the issuance or assumption, as applicable, of the Senior Notes, the assets of the Company will not constitute unreasonably small capital to carry out its business as now conducted, including the capital needs of those entities, taking into account the projected capital requirements and capital availability. 5. There exist no conditions that would constitute a material default (or an event which with notice or the lapse of time, or both, would constitute a material default) under the Indenture, any supplemental indenture, the Underwriting Agreement or any other Terms Agreement relating thereto or the Senior Notes. 6. Each certificate signed by any officer of the Company and delivered to the Representatives or counsel for the Representatives on the Delivery Date shall be deemed to be a representation and warranty by the Company, as the case may be, to the Representatives as to the matters covered thereby. 7. All licenses and authorizations issued by the Federal Communications Commission ("FCC") and state authorities governing telecommunications matters (the "Licenses") required for the operation of the business of the Company and its subsidiaries are in full force and effect there are no pending modifications, amendments or revocation proceedings which would adversely affect the operation of any of the telecommunications business currently owned by the Company and its subsidiaries (the "Businesses"). All fees requested by governmental authorities 4 5 pursuant to the rules governing Licenses have been paid. No event has occurred with respect to the Licenses held by the Company, or its subsidiaries, which, with the giving of notice or the lapse of time or both, would constitute grounds for revocation of any Licenses. Each of the Company and its subsidiaries is in compliance in all material respects with the terms of the Licenses, as applicable, and there is no condition, event or occurrence existing, nor is there any proceeding being conducted of which the Company has received notice, nor, to the Company's knowledge, is there any proceeding threatened, by any governmental authority, which would cause the termination, suspension, cancellation or non-renewal of any of the Licenses, or the imposition of any penalty or fine (that is material to the Company and its subsidiaries, taken as a whole) by any regulatory authority. No registrations, filings, applications, notices, transfers, consents, approvals, audits, qualifications, waivers or other action of any kind is required by virtue of the execution, delivery and performance of this Terms Agreement or any other agreement relating to the transactions contemplated hereby by the Company and the consummation of the transactions contemplated hereby and thereby, and the issuance and delivery of the Senior Notes, to avoid the loss of any such License, permit, consent, concession or other authorization or any asset, property or right pursuant to the terms thereof, or the violation or breach of any applicable law thereto. 8. The Company and its subsidiaries have reviewed the areas within their business and operations which could reasonably be expected to have an "Year 2000 Problem" (that is, the risk that computer applications used by the Company and its subsidiaries may be unable to recognize and perform properly date-sensitive functions involving certain dates prior to and any date after December 31, 1999) that would have a material adverse effect on the Company and have developed a program to address on a timely basis any such problem, and (ii) based on such review and program, the "Year 2000 Problem" will not, or is not reasonably likely to, have a material adverse effect on the Company, and further, the statements contained under the caption "Risk Factors - We face risks in connection with the year 2000" in the Preliminary Prospectus Supplement and the Prospectus Supplement relating to the Common Stock are true. LOCK-UP PROVISIONS: N/A NUMBER OF OPTION SECURITIES: N/A OTHER TERMS AND CONDITIONS: 1. The respective obligations of the Underwriters hereunder are subject to the accuracy when made on the Delivery Date, of the representations and warranties of the Company contained herein and in the Underwriting Agreement, to the performance by the Company of its obligations hereunder and thereunder, and to each of the following terms and conditions: 5 6 a. Prior to the applicable Delivery Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. b. The Company and the Trustee shall have entered into the supplemental indenture and the Representatives shall have received copies of executed counterparts thereof. c. On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any securities of the Company (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or any securities of the Company by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Senior Notes than that on which the Senior Notes were marketed. d. Cooley Godward LLP shall have furnished to the Representatives their written opinion, as counsel to the Company, addressed to the Underwriters and dated the applicable Delivery Date, in form and substance reasonably satisfactory to the Representatives, to the effect that: i) The statements contained in the Prospectus under the captions "Description of Debt Securities" and in the Prospectus Supplement under the captions "Management -- Executive Compensation," "Principal Stockholders" and "Description of the Notes," and insofar as they describe charter documents, contracts, statutes, rules and regulations and other legal matters, constitute an accurate summary thereof in all material respects; ii) The statements contained in the Prospectus Supplement under the caption "Certain U.S. Federal Income Tax Consequences," insofar as they describe federal statutes, rules and regulations, constitute an accurate summary thereof in all material respects. e. The Company, Metricom Finance, Inc., the Trustee and the Escrow Agent shall have entered into the Pledge Agreement and each of the Representatives shall have received copies of executed counterparts thereof. 6 7 f. The Company, Metricom Finance, Inc., the Warrant Agent and the Initial Warrant Agent shall have entered into the Warrant Agreement and each of the Representatives shall have received copies of executed counterparts thereof. g. The Company, Metricom Finance, Inc., or an affiliate thereof shall have deposited cash or U.S. Government Securities in amounts sufficient to cover the first four cash interest payments on the Notes. h. The offering of Warrants (the "Warrants Offering") shall have been completed, it being understood that the Warrants Offering is conditioned upon the offering of Senior Notes contemplated herein. 2. In accordance with Section 7(a) of the Underwriting Agreement, the Underwriters severally confirm and the Company acknowledges that the statements with respect to the public offering of the Senior Notes by the Underwriters set forth in the last paragraph on the cover page of, and the information contained in the paragraphs entitled "Miscellaneous" under the caption "Underwriting" in, the Prospectus Supplement are correct and constitute the only information concerning such Underwriters furnished in writing to the Company by or on behalf of the Underwriters specifically for inclusion in the Registration Statement, Prospectus and Prospectus Supplement. 3. Notices to Underwriters: Lehman Brothers Inc. Three World Financial Center New York, New York 10285 Attention: World Financial Center Salomon Smith Barney Inc. 388 Greenwich Street New York, New York 10013 Attention: Legal Department 7 8 Very truly yours, Lehman Brothers Inc. Salomon Smith Barney Inc. Chase Securities Inc. J. P. Morgan Securities Inc. Merrill Lynch, Pierce, Fenner & Smith Incorporated For itself, as Sole Book-Running Manager and as Representative of the several Underwriters named above By LEHMAN BROTHERS INC. By: /s/ Perry Hoffmeister --------------------------------------- Perry Hoffmeister Managing Director Accepted: METRICOM, INC. By /s/ Timothy A. Dreisbach -------------------------------- Name: Timothy A. Dreisbach Title: President and CEO METRICOM FINANCE, INC. By /s/ Timothy A. Dreisbach -------------------------------- Name: Timothy A. Dreisbach Title: President and CEO 8 -----END PRIVACY-ENHANCED MESSAGE-----