-----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, UCBNbGf3j6JWTf2rRP8NhBgOTFZOtpFCxpWpadwuQKVzm8Nq/OlaCR4OmOS/Rt/d ron6S4kRBXmBGTmniaHwvg== 0000895921-99-000007.txt : 19990818 0000895921-99-000007.hdr.sgml : 19990818 ACCESSION NUMBER: 0000895921-99-000007 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19990817 EFFECTIVENESS DATE: 19990817 FILER: COMPANY DATA: COMPANY CONFORMED NAME: BE INC CENTRAL INDEX KEY: 0000895921 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-COMPUTER INTEGRATED SYSTEMS DESIGN [7373] IRS NUMBER: 943123667 STATE OF INCORPORATION: CA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-85411 FILM NUMBER: 99694788 BUSINESS ADDRESS: STREET 1: 800 EL CAMINO RD STREET 2: SUITE 300 CITY: MENLO PARK STATE: CA ZIP: 94025 BUSINESS PHONE: 6504624100 MAIL ADDRESS: STREET 1: 800 EL CAMINO REAL STREET 2: SUITE 300 CITY: MENLO PARK STATE: CA ZIP: 94025 S-8 1 FORM S-8 As filed with the Securities and Exchange Commission on August 17, 1999 Registration No. 333- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 BE INCORPORATED (Exact name of registrant as specified in its charter) Delaware 94-3123667 (State of Incorporation) (I.R.S. Employer Identification No.) 800 El Camino Real Suite 400 Menlo Park, CA 94025 (650) 462-4100 (Address of principal executive offices) 1992 Stock Option Plan 1999 Equity Incentive Plan 1999 Non-Employee Directors' Stock Option Plan Employee Stock Purchase Plan ----------------- (Full title of plans) Jean-Louis F. Gassee Chief Executive Officer Be Incorporated 800 El Camino Real Suite 400 Menlo Park, CA 94025 (650) 462-4100 (Name, address, including zip code, and telephone number, including area code, of agent for service) Copies to: Andrei M. Manoliu, Esq. Cooley Godward llp Five Palo Alto Square 3000 El Camino Real Palo Alto, CA 94306-2155 (650) 843-5000
CALCULATION OF REGISTRATION FEE - ------------------------------------------------------------------------------------------------------------------------------------ Title of Securities to be Amount to be Proposed Maximum Offering Proposed Maximum Aggregate Amount of Registered Registered Price Per Share (1)(2) Offering Price (1)(2) Registration Fee - ------------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------------ Stock Options and Common Stock (par value $.001) 10,801,396 $0.3024 - $6.0000 $51,708,041 $14,375 - ------------------------------------------------------------------------------------------------------------------------------------ - ---------------- (1) Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(h) under the Securities Act of 1933, as amended. The offering price per share and aggregate offering price are based upon the weighted average exercise price for shares subject to outstanding options granted pursuant to registrant's (i) 1992 Stock Option Plan; (ii) 1999 Equity Incentive Plan; (iii) 1999 Non-Employee Directors' Stock Option Plan; and (iv) Employee Stock Purchase Plan. (2) Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(h) under the Securities Act of 1933, as amended. The offering price per share and aggregate offering price are based upon the average of the high and low prices of registrant's Common Stock on August 11, 1999 [within 5 days of filing] as reported on the Nasdaq National Market.
The chart below details the calculation of the registration fee:
- ---------------------------------------- ------------------------------ ------------------------ --------------------- Offering Price Per Aggregate Offering Securities Number of Shares Share Price - ---------------------------------------- ------------------------------ ------------------------ --------------------- Shares issuable pursuant to outstanding options under the 1992 Stock Option Plan, or in the event of the cancellation or termination of such options, issuable upon exercise of options available for grant under the 1999 Equity Incentive Plan. 1,617,315 $0.3024 (1) $489,076 - ---------------------------------------- ------------------------------ ------------------------ --------------------- Shares issuable pursuant to the 1992 Stock Option Plan 0 N/A N/A - ---------------------------------------- ------------------------------ ------------------------ --------------------- Shares issuable pursuant to outstanding options under the 1999 Equity Incentive Plan 3,437,457 $5.0442 (1) $17,339,221 - ---------------------------------------- ------------------------------ ------------------------ --------------------- Shares issuable pursuant to the 1999 Equity Incentive Plan 2,746,624 $6.00(2) $16,479,744 - ---------------------------------------- ------------------------------ ------------------------ --------------------- Shares issuable pursuant to outstanding options granted under the 1999 Non-Employee Directors' Stock Option Plan 600,000 $5.00 (1) $3,000,000 - ---------------------------------------- ------------------------------ ------------------------ --------------------- Shares issuable pursuant to the 1999 Non-Employee Directors' Stock Option Plan 900,000 $6.00 (2) $5,400,000 - ---------------------------------------- ------------------------------ ------------------------ --------------------- Shares issuable pursuant to outstanding options granted under the Employee Stock Purchase Plan 0 N/A N/A - ---------------------------------------- ------------------------------ ------------------------ --------------------- Shares issuable pursuant to the Employee Stock Purchase Plan 1,500,000 $6.00 (2) $9,000,000 - ---------------------------------------- ------------------------------ ------------------------ --------------------- Proposed Maximum Aggregate Offering Price 10,801,396 $51,708,041 - ---------------------------------------- ------------------------------ ------------------------ --------------------- Registration Fee $14,375 - ---------------------------------------- ------------------------------ ------------------------ ---------------------
Approximate date of commencement of proposed sale to the public: as soon as practical after this registration statement becomes effective. Part II Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The following documents filed by the registrant with the Securities and Exchange Commission are incorporated by reference into this registration statement: (a) Registrant's prospectus filed pursuant to Rule 424(b) under the Securities Act of 1933, as amended (the "Securities Act"),on July 20, 1999 (file No. 333-77855). (b) The description of the registrant's Common Stock which is contained in the Registration Statement on Form 8-A filed on June 16, 1999, under 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 reports and other 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 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. Item 4. DESCRIPTION OF SECURITIES Not applicable. Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL The validity of the shares of Common Stock offered hereby will be passed upon for the registrant by Cooley Godward LLP, Palo Alto, California. As of the date of this registration statement, certain attorneys of Cooley Godward own, individually and/or through an investment partnership, an aggregate of 57,500 shares of the registrant's Common Stock. Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS Under Section 145 of the Delaware General Corporation Law registrant has broad powers to indemnify its directors and officers against liabilities they may incur in such capacities, including liabilities under the Securities Act of 1933, as amended. The registrant's Amended and Restated Certificate of Incorporation provides that directors of the registrant shall not be liable to the registrant or its stockholders for monetary damages for breach of fiduciary duty as a director, to the fullest extent permitted by Delaware General Corporation Law. Registrant's Bylaws require it to indemnify its directors and officers, and permit registrant to indemnify its other employees and agents, to the fullest extent permitted by Delaware law. The Bylaws also require registrant 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. Registrant has entered into indemnity agreements with each of its directors and officers which provide indemnification under certain circumstances for acts and omissions which may not be covered by any directors' and officers' liability insurance. The registrant also maintains an insurance policy for its directors and officers insuring against certain liabilities arising out of certain matters, including matters arising under the Securities Act. Item 7. EXEMPTION FROM REGISTRATION CLAIMED Not Applicable. II-1 Item 8. EXHIBITS
Exhibit Number - ------ 4.1* Amended and Restated Certificate of Incorporation of the registrant. 4.2* Bylaws of the registrant 4.3* Form of Common Stock Certificate 5.1 Opinion of Cooley Godward LLP 23.1 Consent of PricewaterhouseCoopers LLP, independent accountants 23.2 Consent of Cooley Godward LLP (Included in Exhibit 5.1) 24.1 Power of Attorney (See signature page) 99.1.1* 1992 Stock Option Plan 99.1.2* Form of 1992 Stock Option Agreement 99.2.1* 1999 Equity Incentive Plan 99.2.2* Form of 1999 Stock Option Grant Notice 99.2.3* Form of 1999 Equity Incentive Plan Stock Option Agreement 99.3.1* 1999 Non-Employee Directors' Stock Option Plan 99.3.2* Form of Nonstatutory Stock Option 99.4.1* Employee Stock Purchase Plan 99.4.2* Form of Employee Stock Purchase Plan Offering - ---------- * Incorporated by reference from the registrant's Registration Statement on Form S-1, as amended (file No. 333-77855), filed with the Securities and Exchange Commission.
II-2 Item 9. 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, and (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. II-3 SIGNATURES ---------- Pursuant to the requirements of the Securities Act, 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 Menlo Park, State of California, on August 17, 1999. Be Incorporated By:/s/ JEAN-LOUIS F. GASSEE Jean-Louis F. Gassee President, Chief Executive Officer and Director POWER OF ATTORNEY ----------------- KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Jean-Louis F. Gassee and Wesley S. Saia, and each of them, his true and lawful attorney-in-fact, each with the power of substitution and resubstitution, for him and in his 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 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 substitutes or substitute, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
Signature Title Date /s/ JEAN-LOUIS F. GASSEE President, Chief Executive Officer and August 17, 1999 Jean-Louis F. Gassee Director (Principal Executive Officer) /s/ WESLEY S. SAIA Vice President and Chief Financial August 17, 1999 Wesley S. Saia Officer (Principal Financial Officer) /s/ ALBERT LOMBARDO Corporate Controller August 17, 1999 Albert Lombardo /s/ CHRISTIAN E. MARCHANDISE Director August 17, 1999 Christian E. Marchandise /s/ BARRY M. WEINMAN Director August 17, 1999 Barry M. Weinman /s/ GARRETT P. GRUENER Director August 17, 1999 Garrett P. Gruener /s/ STEWART ALSOP Director August 17, 1999 Stewart Alsop
II-4 EXHIBIT INDEX -------------
Exhibit Number Description - ------ ----------- 4.1* Amended and Restated Certificate of Incorporation of the registrant. 4.2* Bylaws of the registrant 4.3* Form of Common Stock Certificate 5.1 Opinion of Cooley Godward LLP 23.1 Consent of PricewaterhouseCoopers LLP, independent accountants 23.2 Consent of Cooley Godward LLP. (Included in Exhibit 5.1) 24.1 Power of Attorney (See signature page) 99.1.1* 1992 Stock Option Plan 99.1.2* Form of 1992 Stock Option Agreement 99.2.1* 1999 Equity Incentive Plan 99.2.2* Form of 1999 Stock Option Grant Notice 99.2.3* Form of 1999 Equity Incentive Plan Stock Option Agreement 99.3.1* 1999 Non-Employee Directors' Stock Option Plan 99.3.2* Form of Nonstatutory Stock Option 99.4.1* Employee Stock Purchase Plan 99.4.2* Form of Employee Stock Purchase Plan Offering
- ------------- * Incorporated by reference from the registrant's Registration Statement on Form S-1, as amended (file No. 333-77855), filed with the Securities and Exchange Commission. EX-5.01 2 OPINION OF COOLEY GODWARD LLP August 16, 1999 Exhibit 5.1 Be Incorporated 800 El Camino Real, Suite 400 Menlo Park, CA 94025 Ladies and Gentlemen: You have requested our opinion with respect to certain matters in connection with the filing by Be Incorporated (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 an aggregate of 10,801,396 shares of the Company's Common Stock, $.001 par value (the "Shares"), with respect to (a) 1,617,315 of the Shares issuable pursuant to its 1992 Stock Option Plan (the "Option Plan"); (b) 6,184,081 of the Shares issuable pursuant to its 1999 Equity Incentive Plan (the "Incentive Plan"); (c) 1,500,000 of the Shares issuable pursuant to its 1999 Non-Employee Directors' Stock Option Plan (the "Non-Employee Directors' Plan") and (d) 1,500,000 of the Shares issuable pursuant to its Employee Stock Purchase Plan (the "Employee Purchase Plan") In connection with this opinion, we have examined the Registration Statement and related prospectus, the Company's Certificate of Incorporation, as amended, and Bylaws, 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 Plan, the Incentive Plan, the Non-Employee Directors' Plan and the Employee Purchase Plan, 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/ ANDREI M. MANOLIU --------------------- Andrei M. Manoliu, Esq. EX-23.01 3 CONSENT OF PRICEWATERHOUSECOOPERS LLP Exhibit 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated April 2, 1999 relating to the financial statements of Be Incorporated, which appears in Be Incorporated's Registration Statement on Form S-1 (Registration Number 333-77855) which became effective on July 20, 1999. We also consent to the incorporation by reference of our report dated April 2, 1999 related to the financial statement schedule which appears in such registration statement on form S-1. /s/ PricewaterhouseCoopers LLP San Jose, California August 16, 1999 -----END PRIVACY-ENHANCED MESSAGE-----