-----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, SGUc/jq9CflnG8+G1r71ypRep+PhhwAReoFEGYesdIIWn3TVMLnsLkaxyoUlwnzB 54ox1bH+C9bRuxSg3wLQYw== 0000950149-00-000547.txt : 20000320 0000950149-00-000547.hdr.sgml : 20000320 ACCESSION NUMBER: 0000950149-00-000547 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20000317 EFFECTIVENESS DATE: 20000317 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: S-8 SEC ACT: SEC FILE NUMBER: 333-32718 FILM NUMBER: 572574 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 S-8 1 FORM S-8 FOR METRICOM,INC. 1 As filed with the Securities and Exchange Commission on March 17, 2000 Registration No. 333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ---------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ---------------- METRICOM, INC. (Exact name of registrant as specified in its charter) DELAWARE 77-0294597 (State of Incorporation) (I.R.S. Employer Identification No.) 980 UNIVERSITY AVENUE LOS GATOS, CALIFORNIA 95030-2375 (Address of principal executive offices) NONSTATUTORY STOCK OPTION (NON-PLAN) (Full title of the plans) TIMOTHY A. DREISBACH PRESIDENT AND CHIEF EXECUTIVE OFFICER METRICOM, INC. 980 UNIVERSITY AVENUE LOS GATOS, CALIFORNIA 95030-2375 (408) 399-8200 (Name, address, including zip code, and telephone number, including area code, of agent for service) ---------------- Copies to: KENNETH L. GUERNSEY, ESQ. CYDNEY S. POSNER, ESQ. COOLEY GODWARD LLP ONE MARITIME PLAZA, 20TH FLOOR SAN FRANCISCO, CA 94111 ---------------- CALCULATION OF REGISTRATION FEE
======================================================================================================================== Proposed Maximum Proposed Maximum Title of Securities Offering Aggregate Amount of to be Registered Amount to be Registered Price per Share (1) Offering Price (1) Registration Fee - ------------------------------------------------------------------------------------------------------------------------ Shares of Common Stock, 511,457 $10.375 $5,306,366.38 $1,400.88 par value $0.001 per share ========================================================================================================================
(1) Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(h). The price per share and aggregate offering price are based upon the price at which the option may be exercised. 2 INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The following documents filed by Metricom, Inc. (the "Company") with the Securities and Exchange Commission are incorporated by reference into this Registration Statement: (a) The Company's latest annual report on Form 10-K filed pursuant to Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or either (1) the Company's latest prospectus filed pursuant to Rule 424(b) under the Securities Act of 1933, as amended (the "Act"), that contains audited financial statements for the Company's latest fiscal year for which such statements have been filed, or (2) the Company's effective registration statement on Form 10 or 20-F filed under the Exchange Act containing audited financial statements for the Company's latest fiscal year. (b) All other reports filed pursuant to Sections 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the annual reports, the prospectus or the registration statement referred to in (a) above. (c) The description of the Company's Common Stock which is contained in a registration statement filed under the Exchange Act, including any amendment or report filed for the purpose of updating such description. All reports and other documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part of this registration statement from the date of the filing of such reports and documents. DESCRIPTION OF SECURITIES Not applicable. INTERESTS OF NAMED EXPERTS AND COUNSEL Not applicable. INDEMNIFICATION OF DIRECTORS AND OFFICERS Under Section 145 of the Delaware General Corporation Law the Company has broad powers to indemnify its directors and officers against liabilities they may incur in such capacities, including liabilities under the Securities Act. The Company's By-laws require the Company to indemnify its directors and executive officers, and permit the Company to indemnify its other officers, employees and other agents, to the extent permitted by Delaware law. Under the Company's By-laws, indemnified parties are entitled to indemnification for negligence, gross negligence and otherwise to the fullest extent permitted by law. The By-laws also require the Company to advance litigation expenses in the case of stockholder derivative actions or other actions, against an undertaking by the indemnified party to repay such advances if it is ultimately determined that the indemnified party is not entitled to indemnification. The Company has entered into indemnity agreements with each of its directors and executive officers. Such indemnity agreements contain provisions which are in some respects broader than the specific indemnification provisions contained in Delaware law. In addition, the Company's Restated Certificate of Incorporation ("Restated Certificate") provides that, to the fullest extent permitted by Delaware law, the Company's directors will not be liable for monetary damages for breach of the directors' fiduciary duty of care to the Company and its stockholders. This provision in the Restated Certificate does not eliminate the duty of care and, in appropriate circumstances, equitable remedies such as an injunction or other forms of non-monetary relief would remain available under Delaware law. In addition, each 2 3 director will continue to be subject to liability for breach of the director's duty of loyalty to the Company, for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law, for any transaction from which the director derived an improper personal benefit and for improper payment of dividends or unlawful stock repurchases or redemptions. This provision also does not affect a director's responsibilities under any other laws, such as the federal securities laws or state or federal environmental laws. 3 4 EXEMPTION FROM REGISTRATION CLAIMED Not Applicable. CONSULTANTS AND ADVISORS Not Applicable. EXHIBITS
EXHIBIT NUMBER DESCRIPTION 5.1 Opinion of Cooley Godward LLP. 23.1 Consent of Arthur Andersen LLP. 23.2 Consent of Cooley Godward LLP. Reference is made to Exhibit 5.1. 24.1 Power of Attorney. Reference is made to page 5 of this Registration Statement. 99.1 Nonstatutory Stock Option (Non-Plan)
4 5 UNDERTAKINGS 1. The undersigned registrant hereby undertakes: (a) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by section 10(a)(3) of the Securities Act; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; (iii) 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; Provided, however, that paragraphs (a)(i) and (a)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the issuer pursuant to section 13 or section 15(d) of the Exchange Act that are incorporated by reference herein. (b) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) 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. 2. 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 (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 herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. 3. 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. 5 6 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Los Gatos, State of California, on March 15, 2000. METRICOM, INC. By: /s/ James E. Wall -------------------------------------- James E. Wall Title: Chief Financial Officer POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Timothy A. Dreisbach and James E. Wall, and each or any one of them, his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his or her substitutes or substitute, may lawfully 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/ Timothy A. Dreisbach President, Chief Executive March 15, 2000 - -------------------------------------------- Officer and Director (Principal (Timothy A. Dreisbach) Executive Officer) /s/ James E. Wall Chief Financial Officer March 15, 2000 - -------------------------------------------- (Principal Financial and (James E. Wall) Accounting Officer)
6 7
Director March 15, 2000 /s/ Robert S. Cline - ------------------------------------ (Robert S. Cline) /s/ Ralph Derrickson Director March 15, 2000 - ------------------------------------ (Ralph Derrickson) /s/ Robert P. Dilworth Director March 15, 2000 - ------------------------------------ (Robert P. Dilworth) /s/ Justin L. Jaschke Director March 15, 2000 - ------------------------------------ (Justin L. Jaschke) /s/ David M. Moore Director March 15, 2000 - ------------------------------------ (David M. Moore) /s/ William D. Savoy Director March 15, 2000 - ------------------------------------ (William D. Savoy)
7 8 EXHIBIT INDEX
EXHIBIT NUMBER DESCRIPTION 5.1 Opinion of Cooley Godward LLP. 23.1 Consent of Arthur Andersen LLP. 23.2 Consent of Cooley Godward LLP. Reference is made to Exhibit 5.1. 24.1 Power of Attorney. Reference is made to the signature page to this Registration Statement. 99.1 Nonstatutory Stock Option (Non-Plan)
8 EX-5.1 2 OPINION OF COOLEY GODWARD LLP. 1 EXHIBIT 5.1 March 15, 2000 Metricom, Inc. 980 University Avenue Los Gatos, CA 95030 Ladies and Gentlemen: You have requested our opinion with respect to certain matters in connection with the filing by Metricom, Inc. (the "Company") of a Registration Statement on Form S-8 (the "Registration Statement") with the Securities and Exchange Commission covering the offering of up to 511,457 shares of the Company's Common Stock, par value $0.001 per share, (the "Shares") pursuant to a nonstatutory stock option (the "Option") granted outside of any of the Company's option plans. In connection with this opinion, we have examined the Registration Statement and related Prospectus, your Certificate of Incorporation and By-laws, each as amended, and such other documents, records, certificates, memoranda and other instruments as we deem necessary as a basis for this opinion. We have assumed the genuineness and authenticity of all documents submitted to us as originals, the conformity to originals of all documents submitted to us as copies thereof, and the due execution and delivery of all documents where due execution and delivery are a prerequisite to the effectiveness thereof. On the basis of the foregoing, and in reliance thereon, we are of the opinion that the Shares, when sold and issued in accordance with the Option, the Registration Statement and related Prospectus, will be validly issued, fully paid, and nonassessable (except as to shares issued pursuant to certain deferred payment arrangements, which will be fully paid and nonassessable when such deferred payments are made in full). We consent to the filing of this opinion as an exhibit to the Registration Statement. Very truly yours, Cooley Godward LLP By: /s/ Kenneth L. Guernsey ------------------------------------ Kenneth L. Guernsey EX-23.1 3 CONSENT OF ARTHUR ANDERSEN LLP 1 EXHIBIT 23.1 CONSENT OF ARTHUR ANDERSEN LLP As independent public accountants, we hereby consent to the incorporation by reference in this registration statement of our reports dated February 1, 1999 (except with respect to the matter discussed in Note 12, as to which the date is November 17, 1999) included in the Metricom, Inc. Form 10-K/A for the year ended December 31, 1998, and to all references to our Firm included in this registration statement. /s/ Arthur Andersen LLP - -------------------------------- San Jose, California March 15, 2000 EX-99.1 4 NONSTATUTORY STOCK OPTION 1 EXHIBIT 99.1 METRICOM, INC. NONSTATUTORY STOCK OPTION (NON-PLAN) TIMOTHY A. DREISBACH, Optionee: METRICOM, INC. (the "Company"), has granted to you, the optionee named above, a nonstatutory stock option to purchase shares of the common stock of the Company ("Common Stock"). The details of your option are as follows: 1. TOTAL NUMBER OF SHARES SUBJECT TO THIS OPTION. The total number of shares of Common Stock subject to this option is five hundred eleven thousand four hundred fifty-seven (511,457). 2. VESTING. (a) NORMAL VESTING. Subject to the limitations contained herein, 131,416 of the total number of shares granted hereunder shall vest on May 8, 1999, and thereafter 10,951.33 of the remaining number of shares shall vest on the 8th of each month for the remainder of calendar year 1999; 10,655.33 of the remaining shares shall vest on the 8th of each month during calendar years 2000 and 2001; and 9,530.73 of the remaining shares shall vest on the 8th of each month during calendar year 2,002 until all of the shares are fully vested; provided however, that during the entire period prior to each vesting date, you have continuously served as an employee or director of or consultant to the Company, whereupon the option shall become fully exercisable with respect to that portion of the shares represented by that installment. (b) ACCELERATED VESTING. The vesting of the shares provided for in subsection 2(a) shall accelerate as follows: (i) acceleration of vesting of 100% of the unvested shares following a Change in Control if, within 90 days prior to or 180 days following such Change in Control, (A) your employment is terminated by the Company (or its successor) for any reason other than for Cause or (B) you terminate your employment with the Company (or its successor) for Good Reason; and (ii) acceleration of vesting of 127,862 shares if, within 180 days following the Effective Date of your employment with the Company (as indicated in your Employment Agreement), (A) your employment is terminated by the Company for any reason other than for Cause or (B) you terminate your employment with the Company for Good Reason; provided, however, that if such termination of employment occurs within the period 181 days 2 through 365 days following the Effective Date of your employment with the Company, then the acceleration of vesting of such shares shall be equal to 127,862 multiplied by a fraction, the numerator of which is the number of days you have been employed with the Company and the denominator of which is 365. 3. EXERCISE PRICE. The exercise price of this option is $10.375 per share, being not less than the fair market value of the Common Stock on the date of grant of this option. 4. METHOD OF PAYMENT. Payment of the exercise price is due in full upon exercise of all or any part of your option. You may elect to make payment of the exercise price by one or more of the following: (a) Payment of the exercise price per share in cash (including check) at the time of exercise; (b) In the Company's sole discretion at the time your option is exercised and provided that at the time of exercise the Common Stock is publicly traded and quoted regularly in The Wall Street Journal, pursuant to a program developed under Regulation T as promulgated by the Federal Reserve Board which, prior to the issuance of Common Stock, results in either the receipt of cash (or check) by the Company or the receipt of irrevocable instructions to pay the aggregate exercise price to the Company from the sales proceeds; and (c) Provided that at the time of exercise the Common Stock is publicly traded and quoted regularly in The Wall Street Journal, by delivery of already-owned shares of Common Stock, held for the period required to avoid a charge to the Company's reported earnings (generally six months) or were not acquired, directly or indirectly from the Company, owned free and clear of any liens, claims, encumbrances or security interests, and valued at its Fair Market Value on the date of exercise. "Delivery" for these purposes, in the sole discretion of the Company at the time your option is exercised, shall include delivery to the Company of your attestation of ownership of such shares of Common Stock in a form approved by the Company. Notwithstanding the foregoing, your option may not be exercised by tender to the Company of Common Stock to the extent such tender would constitute a violation of the provisions of any law, regulation or agreement restricting the redemption of the Company's stock. 5. INTERPRETATION OF THE OPTION TERMS. To the extent not inconsistent with the terms hereof, the Company shall interpret the terms not explicitly defined in this option in accordance with its interpretation of provisions of its 1997 Equity Incentive Plan and Sections 5 and 6 of your Employment Agreement, as applicable. 6. WHOLE SHARES. Your option may only be exercised for whole shares. 7. SECURITIES LAW COMPLIANCE. Notwithstanding anything to the contrary contained herein, your option may not be exercised unless the shares issuable upon exercise of your option are then registered under the Securities Act or, if such shares are not then so registered, the Company has determined that such exercise and issuance would be exempt from the registration requirements of the Securities Act. The exercise of your option must also 3 comply with other applicable laws and regulations governing the option, and the option may not be exercised if the Company determines that the exercise would not be in material compliance with such laws and regulations. 8. TERM. The term of your option commences on May 8, 1998 (the "Grant Date") and expires upon the EARLIEST of the following: (a) the tenth (10th) anniversary of the Grant Date; (b) ninety (90) days after the termination of your employment with the Company if you voluntarily terminate your employment without Good Reason; and (c) two (2) years after the termination of your employment with the Company if you are terminated by the Company without Cause or you voluntarily terminate your employment for Good Reason. 9. EXERCISE. (a) You may exercise the vested portion of your option during its term by delivering a Notice of Exercise (in a form designated by the Company) together with the exercise price to the Secretary of the Company, or to such other person as the Company may designate, during regular business hours, together with such additional documents as the Company may then require. (b) By exercising your option you agree that, as a condition to any exercise of your option, the Company may require you to enter an arrangement providing for the payment by you to the Company of any tax withholding obligation of the Company arising by reason of (1) the exercise of your option, (2) the lapse of any substantial risk of forfeiture to which the shares are subject at the time of exercise, or (3) the disposition of shares acquired upon such exercise. 10. TRANSFERABILITY. Your option is not transferable, except by will or by the laws of descent and distribution, and is exercisable during your life only by you. Notwithstanding the foregoing, by delivering written notice to the Company, in a form satisfactory to the Company, you may designate a third party who, in the event of your death, shall thereafter be entitled to exercise your option. 11. WITHHOLDING OBLIGATIONS. (a) At the time your option is exercised, in whole or in part, or at any time thereafter as requested by the Company, you hereby authorize withholding from payroll and any other amounts payable to you, and otherwise agree to make adequate provision for (including by means of a Cashless Exercise to the extent permitted by the Company), any sums required to satisfy the federal, state, local and foreign tax withholding obligations of the Company or an Affiliate, if any, which arise in connection with your option. (b) Upon your request and subject to approval by the Company, in its sole discretion, and compliance with any applicable conditions or restrictions of law, the Company 4 may withhold from fully vested shares of Common Stock otherwise issuable to you upon the exercise of your option a number of whole shares having a Fair Market Value, determined by the Company as of the date of exercise, not in excess of the minimum amount of tax required to be withheld by law. If the date of determination of any tax withholding obligation is deferred to a date later than the date of exercise of your option, share withholding pursuant to the preceding sentence shall not be permitted unless you make a proper and timely election under Section 83(b) of the Code, covering the aggregate number of shares of Common Stock acquired upon such exercise with respect to which such determination is otherwise deferred, to accelerate the determination of such tax withholding obligation to the date of exercise of your option. Notwithstanding the filing of such election, shares shall be withheld solely from fully vested shares of Common Stock determined as of the date of exercise of your option that are otherwise issuable to you upon such exercise. Any adverse consequences to you arising in connection with such share withholding procedure shall be your sole responsibility. (c) Your option is not exercisable unless the tax withholding obligations of the Company and/or any Affiliate are satisfied. Accordingly, you may not be able to exercise your option when desired even though your option is vested, and the Company shall have no obligation to issue a certificate for such shares or release such shares from any escrow provided for herein. 12. OPTION NOT A SERVICE CONTRACT. Your option is not an employment or service contract, and nothing in your option shall be deemed to create in any way whatsoever any obligation on your part to continue in the employ of the Company or an Affiliate, or of the Company or an Affiliate to continue your employment. In addition, nothing in your option shall obligate the Company or an Affiliate, their respective shareholders, Boards of Directors, Officers or Employees to continue any relationship that you might have as a Director or Consultant for the Company or an Affiliate. 13. NOTICES. Any notices provided for in your option or the Plan shall be given in writing and shall be deemed effectively given upon receipt or, in the case of notices delivered by the Company to you, five (5) days after deposit in the United States mail, postage prepaid, addressed to you at the last address you provided to the Company. 14. GOVERNING PLAN DOCUMENT. Your option is subject to all the provisions of the Plan, the provisions of which are hereby made a part of your option, and is further subject to all interpretations, amendments, rules and regulations which may from time to time be promulgated and adopted pursuant to the Plan. In the event of any conflict between the provisions of your option and those of the Plan, the provisions of the Plan shall control. 5 Dated the ____ day of May, 1998. METRICOM, INC. OPTIONEE: By: ------------------------------ ------------------------------ Duly authorized on behalf Timothy A. Dreisbach of the Board of Directors -----END PRIVACY-ENHANCED MESSAGE-----