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As filed with the Securities and Exchange Commission on April 28, 2000.
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
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Metawave Communications Corporation
(Exact name of Registrant as specified in its charter)
Delaware 91-1673152
(State of incorporation) (I.R.S. Employer Identification No.)
10735 Willows Road NE
Redmond, WA 98052
(Address of principal executive offices)
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2000 Employee Stock Purchase Plan
2000 Stock Plan
Amended and Restated 1998 Stock Option Plan
Third Amended and Restated 1995 Stock Option Plan
1998 Directors' Stock Option Plan
(Full title of the Plans)
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Robert H. Hunsberger
President and Chief Executive Officer
Metawave Communications Corporation
10735 Willows Road NE
Redmond, WA 98052
(425) 702-5600
(Name, address and telephone number, including area code, of agent for service)
----------------
Copy to:
Sonya F. Erickson
John W. Robertson
Venture Law Group
A Professional Corporation
4750 Carillon Point
Kirkland, CA 98033-7355
(425) 739-8700
(Calculation of Registration Fee on following page)
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<TABLE>
<CAPTION>
=======================================================================================================================
CALCULATION OF REGISTRATION FEE
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Proposed
Maximum Proposed
Maximum Amount Offering Maximum
to be Price Per Aggregate Amount of
Title of Securities to be Registered Registered(1) Share Offering Price Registration Fee
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
2000 Employee Stock Purchase Plan
Common Stock, $0.0001 par value................ 2,899,993 Shares $7.65(2) $22,184,947 $ 5,856.83
2000 Stock Plan
Common Stock, $0.0001 par value................ 0 Shares $ 0(3) $ 0 $ 0
Common Stock, $0.0001 par value................ 21,333,333 Shares $9.00(4) $191,999,997 $50,688.00
Amended and Restated 1998 Stock Option Plan
Common Stock, $0.0001 par value................ 1,620,853 Shares $8.33(3) $ 13,501,706 $ 3,564.46
Common Stock, $0.0001 par value................ 203,184 Shares $9.00(4) $ 1,828,056 $ 482.77
Third Amended and Restated 1995 Stock Option Plan
Common Stock, $0.0001 par value................ 1,305,520 Shares $4.69(3) $ 6,122,889 $ 1,616.45
Common Stock, $0.0001 par value................ 49,116 Shares $9.00(4) $ 442,044 $ 116.70
1998 Directors' Stock Option Plan
Common Stock, $0.0001 par value................ 133,334 Shares $7.50(3) $ 1,000,005 $ 264.01
Common Stock, $0.0001 par value................ 316,666 Shares $9.00(4) $ 2,849,994 $ 752.40
TOTAL 26,507,363 Shares $239,930,238 $63,341.62
</TABLE>
_______________________
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under any of the Plans being registered
pursuant to this Registration Statement by reason of any stock dividend,
stock split, recapitalization or any other similar transaction effected
without the receipt of consideration which results in an increase in the
number of the Registrant's outstanding shares of Common Stock. In addition,
this Registration Statement also covers (a) 2,666,660 additional shares of
Common Stock that will become issuable under the 2000 Employee Stock
Purchase Plan pursuant to a provision that provides that the number of
shares authorized under the 2000 Employee Stock Purchase Plan will
automatically increase on the first day of each of the ten years beginning
in 2001 and ending in 2010, in an amount equal to the lesser of one percent
of the number of shares of Common Stock outstanding on December
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31 of the immediately preceding calendar year, or 266,666 in any year, or
such lower amount as determined by the Board of Directors, and (b)
20,000,000 additional shares of Common Stock that will become issuable
under the 2000 Stock Plan pursuant to a provision that provides that the
number of shares authorized under the 2000 Stock Plan will automatically
increase on the first day of each of the nine years beginning in 2001 and
ending in 2009, in an amount equal to the lesser of five percent of the
number of shares of Common Stock outstanding on December 31 of the
immediately preceding calendar year, or 2,000,000 shares in any year, or
such lower amount as determined by the Board of Directors.
(2) Estimated in accordance with Rule 457(h) under the Securities Act of 1933
(the "Securities Act") solely for the purpose of calculating the
registration fee. The computation is based upon the average of the high and
low sale prices of the Common Stock as reported on The Nasdaq National
Market on April 26, 2000, multiplied by 85%, which is the percentage of the
trading purchase price applicable to purchases under the referenced Plan.
(3) Computed in accordance with Rule 457(h) under the Securities Act solely for
the purpose of calculating the registration fee. Computation based on the
weighted average per share exercise price (rounded to nearest cent) of
outstanding options under the referenced plan, the shares issuable under
which are registered hereby.
(4) Estimated in accordance with Rule 457(h) under the Securities Act solely
for the purpose of calculating the registration fee. The computation with
respect to unissued options is based upon the average high and low sale
prices of the Common Stock as reported on the Nasdaq National Market on
April 26, 2000.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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The following documents filed with the Securities and Exchange Commission
(the "Commission") are hereby incorporated by reference:
(a) The Registrant's Prospectus filed on April 27, 2000 pursuant to Rule
424(b) of the Securities Act, which contains audited financial statements for
the Registrant's latest fiscal year for which such statements have been filed.
(b) Not Applicable.
(c) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A filed with the Commission under
Section 12 of the Securities Exchange Act of 1934 (the "Exchange Act") on April
21, 2000, including any amendment or report filed for the purpose of updating
such description.
All 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 hereby 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 such documents.
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Item 4. Description of Securities. Not applicable.
-------------------------
Item 5. Interests of Named Experts and Counsel. Not applicable.
--------------------------------------
Item 6. Indemnification of Directors and Officers.
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The Registrant's Certificate of Incorporation reduces the liability of a
director to the corporation or its shareholders for monetary damages for
breaches of his or her fiduciary duty of care to the fullest extent permissible
under Delaware law. The Bylaws of the Registrant further provide for
indemnification of corporate agents to the maximum extent permitted by the
Delaware General Corporation Law. In addition, the Registrant has entered into
Indemnification Agreements with its officers and directors.
Item 7. Exemption from Registration Claimed. Not applicable.
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Item 8. Exhibits.
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Exhibit
Number
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5.1 Opinion of Venture Law Group, a Professional
Corporation.
23.1 Consent of Venture Law Group, a Professional
Corporation (included in Exhibit 5.1).
23.2 Consent of Ernst & Young LLP, Independent Auditors.
24.1 Powers of Attorney (see p. 7).
_______________
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Item 9. Undertakings.
------------
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 purposes 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 therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(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.
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 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.
Insofar as the 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 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 a
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered hereunder, the Registrant will, unless in the opinion of its counsel
the question has already been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question of 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.
[Signature Pages Follow]
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant,
Metawave Communications Corporation, a corporation organized and existing under
the laws of the State of Delaware, 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 Redmond, State of
Washington, on this 28th day of April, 2000.
Metawave Communications Corporation
By: /s/ Kathy Surace-Smith
--------------------------------
Kathy Surace-Smith
General Counsel and Secretary
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KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Kathy Surace-Smith and Robert H.
Hunsberger, jointly and severally, his or her attorneys-in-fact and agents, each
with the power of substitution and resubstitution, for him or her and in his or
her name, place or stead, in any and all capacities, to sign any amendments to
this Registration Statement on Form S-8, and to file such amendments, together
with exhibits and other documents in connection therewith, with the Securities
and Exchange Commission, granting to each attorney-in-fact and agent, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully as he or she might or
could do in person, and ratifying and confirming all that the attorneys-in-fact
and agents, or his or her substitute or substitutes, may 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.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Robert H. Hunsberger Robert H. Hunsberger (Chief Executive
- ------------------------------------- Officer and President) April 28, 2000
Robert H. Hunsberger
/s/ Stuart Fuhlendorf Stuart Fuhlendorf (Principal Financial and
- ------------------------------------- Accounting Officer) April 28, 2000
Stuart Fuhlendorf
/s/ Bandel L. Carano Director April 28, 2000
- -------------------------------------
Bandel L. Carano
/s/ Bruce C. Edwards Director April 28, 2000
- -------------------------------------
Bruce C. Edwards
/s/ David R. Hathaway Director April 28, 2000
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David R. Hathaway
/s/ Scot B. Jarvis Director April 28, 2000
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Scot B. Jarvis
/s/ Jennifer Gill Roberts Director April 28, 2000
- -------------------------------------
Jennifer Gill Roberts
/s/ David A. Twyver Director April 28, 2000
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David A. Twyver
</TABLE>
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INDEX TO EXHIBITS
Exhibit
Number
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5.1 Opinion of Venture Law Group, a Professional Corporation.
23.1 Consent of Venture Law Group, a Professional Corporation
(included in Exhibit 5.1).
23.2 Consent of Ernst & Young LLP, Independent Auditors.
24.1 Powers of Attorney (see p. 7).
<PAGE>
EXHIBIT 5.1
April 27, 2000
Metawave Communications Corporation
10735 Willows Road NE
Redmond, WA 98052
Registration Statement on Form S-8
----------------------------------
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 (the "Registration
Statement") filed by you with the Securities and Exchange Commission (the
"Commission") on April 28, 2000 in connection with the registration under the
Securities Act of 1933, as amended, of a total of 26,507,363 shares of your
Common Stock (the "Shares") reserved for issuance under the Third Amended and
Restated 1995 Stock Option Plan, 1998 Amended and Restated Stock Option Plan,
2000 Stock Plan, 1998 Amended and Restated Directors' Stock Option Plan, and
2000 Employee Stock Purchase Plan. As your counsel in connection with this
transaction, we have examined the proceedings taken and are familiar with the
proceedings proposed to be taken by you in connection with the sale and issuance
of the Shares.
It is our opinion that upon conclusion of the proceedings being taken or
contemplated by us, as your counsel, to be taken prior to the issuance of the
Shares, and upon completion of the proceedings being taken in order to permit
such transactions to be carried out in accordance with the securities laws of
the various states where required, the Shares when issued and sold in the manner
described in the Registration Statement 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, including the Prospectus constituting a part thereof,
and in any amendment thereto.
Very truly yours,
VENTURE LAW GROUP
A Professional Corporation
/s/ Venture Law Group
SFE
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EXHIBIT 23.2
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
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We consent to the incorporation by reference in the Registration Statement on
Form S-8 pertaining to the 2000 Employee Stock Purchase Plan, the 2000 Stock
Option Plan, the Amended and Restated 1998 Stock Option Plan, the Third Amended
and Restated 1995 Stock Option Plan and the 1998 Directors' Stock Option Plan of
our report dated February 11, 2000 with respect to the consolidated financial
statements of Metawave Communications Corporation included in its Registration
Statement (Form S-1 No. 333-30568), filed with the Securities and Exchange
Commission.
Seattle, WA ERNST & YOUNG LLP
April 27, 2000
