SC 13D/A 1 dsc13da.txt AMENDMENT NO.1 TO SCHEDULE 13D Schedule 13D Page 1 of 8 UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D/A Under the Securities Exchange Act of 1934 (Amendment No. 1)* Be Incorporated -------------------------------------------------------------------------------- (Name of Issuer) COMMON STOCK -------------------------------------------------------------------------------- (Title of Class of Securities) 69664210-7 -------------------------------------------------------------------------------- (CUSIP Number) JUDY BRUNER Senior Vice President and Chief Financial Officer PALM, INC. 5470 Great America Parkway Santa Clara, California 95052 (408) 878-9000 -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) August 16, 2001 -------------------------------------------------------------------------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Sections 240.13-1(e), 240.13d-(f) or 240.13d-1(g), check the following box [_]. Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Section 240.13d-7(b)for other parties to whom copies are to be sent. * The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). Schedule 13D Page 2 of 8 CUSIP No. 69664210-7 ------------------------------------------------------------------------------ NAMES OF REPORTING PERSON 1 S.S. or I.R.S. IDENTIFICATION NO. OF ABOVE PERSON. Palm, Inc. I.R.S. Identification No.: 94-3150688 ------------------------------------------------------------------------------ CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* 2 (a) [_] (b) [_] Not applicable ------------------------------------------------------------------------------ SEC USE ONLY 3 ------------------------------------------------------------------------------ SOURCE OF FUNDS* 4 OO ------------------------------------------------------------------------------ CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] 5 ------------------------------------------------------------------------------ CITIZENSHIP OR PLACE OF ORGANIZATION 6 State of Delaware ------------------------------------------------------------------------------ SOLE VOTING POWER 7 NUMBER OF 51,877 (See (1) below) SHARES ----------------------------------------------------------- SHARED VOTING POWER BENEFICIALLY 8 OWNED BY 6,383,567 (See (2) below) ----------------------------------------------------------- EACH SOLE DISPOSITIVE POWER 9 REPORTING 51,877 (See (1) below) PERSON ----------------------------------------------------------- SHARED DISPOSITIVE POWER WITH 10 N/A ------------------------------------------------------------------------------ AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 11 6,435,444 (See (1) and (2) below) ------------------------------------------------------------------------------ CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* 12 [_] ------------------------------------------------------------------------------ PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 13 Approximately 17.5 percent (See (3) below) ------------------------------------------------------------------------------ TYPE OF REPORTING PERSON* 14 CO ------------------------------------------------------------------------------ *See Instructions Before Filling Out. Page 3 of 8 (1) Based upon 51,877 shares of Be Common Stock owned by Eric Benhamou, a director of Palm. (2) 6,383,567 shares of Be Common Stock are subject to Stockholder Support Agreements ("Support Agreements") between Palm and certain officers and directors of Be, as described in Items 3 and 4 below, of which 1,422,497 shares are issuable upon the exercise of outstanding options which are either vested or will vest within 60 days of August 16, 2001. Palm expressly disclaims beneficial ownership of any of the shares of Be Common Stock subject to the Support Agreements. (3) Based upon 36,792,523 shares of Be Common Stock outstanding as of August 16, 2001. This Amendment No. 1 ("Amendment No. 1") to that certain statement on Schedule 13D of Palm, Inc. ("Palm") filed on August 24, 2001 (the "Original Statement") hereby amends and restates Item 5 of the Original Statement as provided herein. Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Original Statement. Item 5. Interest in Securities of the Issuer This Amendment No. 1 amends and restates Item 5 of the Original Statement in its entirety. (a)-(b) As a result of the Support Agreements, Palm may be deemed to be the beneficial owner of at least 6,383,567 shares of Be Common Stock as of August 16, 2001. Such Be Common Stock constitutes approximately 17.5% of the issued and outstanding shares of Be Common Stock, based on the 36,792,523 shares of Be Common Stock outstanding as of August 16, 2001 (as represented by Be) and assuming the issuance of 1,422,497 shares of Be Common Stock upon the exercise of outstanding options which are either vested or will vest within 60 days of August 16, 2001. Palm also may be deemed to have shared support power with respect to the foregoing shares of Be Common Stock with respect to those matters described above. However, Palm (a) is not entitled to any rights as a stockholder of Be as to the foregoing shares of Be Common Stock, and (b) disclaims any beneficial ownership of the shares of Be Common Stock which are covered by the Support Agreements. Eric Benhamou, Chairman of the Board of Directors of Palm, owns 51,877 shares of Be Common Stock and has the sole power to vote and to dispose those shares. Such Be Common Stock constitutes approximately 0.1% of the issued and outstanding shares of Be Common Stock. To the knowledge of Palm, no other person listed on Schedule A hereto has an equity or other ownership interest in Be. Set forth on Schedule B hereto is the name of those stockholders of Be that have entered into a Support Agreement with Palm, and to the knowledge of Palm, each of their respective present principal occupation or employment, including the name, principal business and address of any corporation or other organization in which such employment is conducted. (c) To the knowledge of Palm, no transactions in the class of securities reported on this Statement have been effected during the past 60 days by the persons named in response to Item 5(a) and Item 2. (d) To the knowledge of Palm, no other person has the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the class of securities reported on this Statement. (e) Not applicable. Page 4 of 8 Signature After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this Statement is true, complete and correct. October 1, 2001 -------------------------------------------------------------------------------- Date /s/ Stephen Yu -------------------------------------------------------------------------------- Signature Stephen Yu, Vice President, General Counsel and Secretary -------------------------------------------------------------------------------- Name/Title SCHEDULE A DIRECTORS AND EXECUTIVE OFFICERS OF PALM, INC. The following table sets forth the name, business address and present principal occupation or employment of each executive officer and director of Palm. Except as otherwise indicated below, the business address of each person set forth on this Schedule A is: c/o Palm, Inc., 5470 Great America Parkway, Santa Clara, California 95052.
Name of Executive Officer Title and Present Principal Occupation ------------------------------------------------- --------------------------------------------------------------------- Carl J. Yankowski Chief Executive Officer Judy Bruner Senior Vice President and Chief Financial Officer R. Todd Bradley Executive Vice President and Chief Operating Officer, Solutions Group Stephen Yu Vice President, General Counsel and Secretary Stewart Gill Chief Human Resources Officer Name of Director Title and Present Principal Occupation ------------------------------------------------- --------------------------------------------------------------------- Carl J. Yankowski Chief Executive Officer of Palm Eric A. Benhamou Chairman of the Board of Directors 3Com Corporation Santa Clara Site 5400 Bayfront Plaza Santa Clara, CA 95052 Gordon A. Campbell President and Chairman of the Board Techfarm, Inc. 200 W. Evelyn Ave., Suite 100 Mountain View, CA 94041 Gareth C.C. Chang Chairman and Managing Partner GC3 & Associates International, LLC P.O. Box 1780 Manhattan Beach, CA 90287-1780 Jean-Jacques Damlamian* Group Executive Vice President France Telecom 6 place d'Alleray 75505 Paris Cedex 15 Michael Homer Chief Executive Officer Zodiac Networks, Inc. 1350 Villa Avenue Mountain View, CA 94041 David C. Nagel President and Chief Technology Officer AT&T Labs 295 North Maple Avenue Basking Ridge, New Jersey 07920 Susan G. Swenson President, Chief Operating Officer and Director
Leap Wireless International, Inc. 10307 Pacific Center Ct. San Diego, CA 92121 * citizen of France -2- Page 1 of 1 SCHEDULE B STOCKHOLDERS PARTY TO A SUPPORT AGREEMENT WITH PALM, INC. The following table sets forth the name and present principal occupation or employment of each Stockholder of Be that has entered into a Support Agreement with Palm in connection with the Purchase Agreement, and the aggregate number of shares of Be Common Stock beneficially owned by each such Stockholder as of August 16, 2001. Except as otherwise indicated below, the business address of each Stockholder set forth on this Schedule B is: c/o Be, Inc., 800 El Camino Real #300, Menlo Park, CA 94025.
Stockholder Party to Support Agreement Shares Beneficially Owned -------------------------------------------------------------------------------- ---------------------------------------------- Jean-Louis Gassee .............................................................. 4,305,511 (1) Chief Executive Officer of Be Incorporated Stewart Alsop .................................................................. 93,750 (2) General Partner New Enterprise Associates 2490 Sand Hill Road Menlo Park, CA 94025 Garrett P. Gruener ............................................................. 158,937 (3) Managing Director Alta Partners One Embarcadero Center Suite 4050 San Francisco, CA 94111 Barry M. Weinman ............................................................... 841,396 (4) Managing Director Media Technology Equity Partners 185 Berry St. Suite 3600 San Francisco, CA 94107 Steve M. Sakoman ............................................................... 782,610 (5) Chief Operating Officer of Be Incorporated William F. Zuendt .............................................................. 47,916 (6) Director of Be Incorporated Andrei M. Manoliu .............................................................. 45,948 (7) Independent Business Consultant and Director of Be Incorporated P.C. Berndt .................................................................... 107,499 (8) Chief Financial Officer of Be Incorporated
____________________ (1) Includes 3,981,761 outstanding shares of Be Common Stock, and 323,750 shares of Be Common Stock issuable upon the exercise of options to purchase Be Common Stock which are exercisable within 60 days of August 16, 2001. (2) Includes no outstanding shares of Be Common Stock, and 93,750 shares of Be Common Stock issuable upon the exercise of options to purchase Be Common Stock which are exercisable within 60 days of August 16, 2001. (3) Includes 65,187 outstanding shares of Be Common Stock, and 93,750 shares of Be Common Stock issuable upon the exercise of options to purchase Be Common Stock which are exercisable within 60 days of August 16, 2001. (4) Includes 745,646 outstanding shares of Be Common Stock held by AV1 Capital, L.P. and 2,000 shares held by Virginia Weinman, the wife of Mr. Weinman. AV1 Capital Management, L.P. is the general partner of AV1 Capital, L.P. Mr. Weinman is a general partner of AV1 Capital Management. Mr. Weinman disclaims beneficial ownership of these shares except to the extent of his pecuniary interest therein. Also includes 93,750 shares of Be Common Stock issuable upon the exercise of options to purchase Be Common Stock which are exercisable within 60 days of August 16, 2001. (5) Includes 160,111 outstanding shares of Be Common Stock, and 622,499 shares of Be Common Stock issuable upon the exercise of options to purchase Be Common Stock which are exercisable within 60 days of August 16, 2001. (6) Includes no outstanding shares of Be Common Stock, and 47,916 shares of Be Common Stock issuable upon the exercise of options to purchase Be Common Stock which are exercisable within 60 days of August 16, 2001. (7) Includes 6,365 outstanding shares of Be Common Stock held by the Manoliu-Neimat Living Trust, of which Mr. Manoliu is a trustee, and 39,583 shares of Be Common Stock issuable upon the exercise of options to purchase Be Common Stock which are exercisable within 60 days of August 16, 2001. (8) Includes no outstanding shares of Be Common Stock, and 107,499 shares of Be Common Stock issuable upon the exercise of options to purchase Be Common Stock which are exercisable within 60 days of August 16, 2001. -2-