<PAGE>
As filed with the Securities and Exchange Commission on June 9, 1998
Registration No. 333-
-------------------
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------
Copper Mountain Networks, Inc.
(Exact name of Registrant as specified in its charter)
---------------------
Delaware 33-0702004
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
2470 Embarcadero Way
Palo Alto, California 94303
(650) 858-8500
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
---------------------
1996 EQUITY INCENTIVE PLAN
1999 EMPLOYEE STOCK PURCHASE PLAN
1999 NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN
OPTIONS GRANTED OUTSIDE ANY PLAN
(Full title of the plans)
---------------------
Richard S. Gilbert
President and Chief Executive Officer
Copper Mountain Networks, Inc.
2470 Embarcadero Way
Palo Alto, California 94303
(650) 858-8500
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
---------------------
Copies to:
Lance W. Bridges, Esq.
COOLEY GODWARD LLP
4365 Executive Drive, Suite 1100
San Diego, CA 92121
(619) 550-6000
---------------------
<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
========================================================================================================================
Proposed Proposed
Maximum Maximum Amount of
Title of Securities Amount to Offering Price Aggregate Registration
To be Registered be Registered Per Share (1) Offering Price (1) Fee
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.001 par value 7,195,587 .066667 - $62.625 $149,325,796.35 $41,512.57
========================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457. The price per share and aggregate
offering price are based upon (a) the actual exercise price for shares
subject to outstanding stock options previously granted under the
Registrant's 1996 Equity Incentive Plan, 1999 Non-Employee Directors' Stock
Option Plan, and outside of any plan, and (b) the average of the high and
low sales prices of Registrant's Common Stock on June 4, 1999, as reported
on the Nasdaq National Market, for shares issuable under the Company's 1996
Equity Incentive Plan, 1999 Employee Stock Purchase Plan, and 1999 Non-
Employee Directors' Stock Option Plan. The following chart shows the
calculation of the registration fee.
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------
Aggregate
Type of Shares Number of Shares Offering Price Per Share Offering Price
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Common Stock issuable pursuant to outstanding 170,995 $0.066667 11,399.72
options under the 1996 Equity Incentive Plan
- -------------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant to outstanding 384,040 $0.226667 87,049.19
options under the 1996 Equity Incentive Plan
- -------------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant to outstanding 2,085,191 $0.320000 667,261.12
options under the 1996 Equity Incentive Plan
- -------------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant to outstanding 435,245 $0.533333 232,130.52
options under the 1996 Equity Incentive Plan
- -------------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant to outstanding 256,500 $1.333333 341,999.91
options under the 1996 Equity Incentive Plan
- -------------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant to outstanding 147,000 $5.000000 735,000.00
options under the 1996 Equity Incentive Plan
- -------------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant to outstanding 391,500 $7.000000 2,740,500.00
options under the 1996 Equity Incentive Plan
- -------------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant to outstanding 67,000 $8.5000000 569,500.00
options under the 1996 Equity Incentive Plan
- -------------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant to outstanding 690,000 $12.000000 8,280,000.00
options under the 1996 Equity Incentive Plan
- -------------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant to outstanding 141,000 $21.000000 2,961,000.00
options under the 1996 Equity Incentive Plan
- -------------------------------------------------------------------------------------------------------------
Common Stock issuable under the 1996 Equity 1,566,147 $62.625000 98,079,955.88
Incentive Plan
- -------------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant to options 200,000 $12.000000 2,400,000.00
granted outside of any plan
- -------------------------------------------------------------------------------------------------------------
Common Stock issuable under the 1999 Employee 300,000 $62.625000 18,787,500.00
Stock Purchase Plan
- -------------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant to outstanding 180,000 $12.000000 2,160,000.00
options under the 1999 Non-Employee
Directors' Stock Option Plan
- -------------------------------------------------------------------------------------------------------------
Common Stock issuable under the 1999 180,000 $62.625000 11,272,500.00
Non-Employee Directors' Stock Option Plan
- -------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The prospectus contained in the Form S-1 Registration Statement (No. 333-
73153) filed by Copper Mountain Networks, Inc. (the "Registrant") with the
Securities and Exchange Commission (the "Commission") on March 1, 1999, as
amended through the date hereof (the "Form S-1"), is hereby incorporated by
reference into this Registration Statement. The Registrant has not filed, and
has not been required to file, any reports pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as of the
date hereof. A description of the Registrant's Common Stock which is contained
in the Form S-1, including any amendment or reports filed for the purpose of
updating such description, is hereby incorporated by reference into this
Registration Statement. All documents filed by the Registrant with the
Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act
after the date of this Registration Statement and 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 into this Registration Statement and to be a part
hereof from the date of filing of such documents. Any statement contained in a
document incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
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 Company by Cooley Godward LLP, San Diego, California. As of the
date of this Prospectus, certain members and associates of Cooley Godward own an
aggregate of 60,943 shares of Common Stock through an investment partnership.
Item 6. Indemnification of Directors and Officers.
Under Section 145 of the Delaware General Corporation Law, the 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 "Securities Act").
1.
<PAGE>
The Registrant's Certificate of Incorporation and Bylaws include
provisions to (i) eliminate the personal liability of its directors for monetary
damages resulting from breaches of their fiduciary duty to the extent permitted
by Section 102(b)(7) of the General Corporation Law of Delaware (the "Delaware
Law") and (ii) require the Registrant to indemnify its Directors and officers to
the fullest extent permitted by Section 145 of the Delaware Law, including
circumstances in which indemnification is otherwise discretionary. Pursuant to
Section 145 of the Delaware Law, a corporation generally has the power to
indemnify its present and former directors, officers, employees and agents
against expenses incurred by them in connection with any suit to which they are,
or are threatened to be made, a party by reason of their serving in such
positions so long as they acted in good faith and in a manner they reasonably
believed to be in or not opposed to, the best interests of the corporation and
with respect to any criminal action, they had no reasonable cause to believe
their conduct was unlawful. The Registrant believes that these provisions are
necessary to attract and retain qualified persons as Directors and officers.
These provisions do not eliminate the Directors' duty of care, and, in
appropriate circumstances, equitable remedies such as injunctive or other forms
of non-monetary relief will remain available under Delaware Law. In addition,
each Director will continue to be subject to liability for breach of the
Director's duty of loyalty to the Registrant, for acts or omissions not in good
faith or involving intentional misconduct, for knowing violations of law, for
acts or omissions that the Director believes to be contrary to the best
interests of the Registrant or its stockholders, for any transaction from which
the Director derived an improper personal benefit, for acts or omissions
involving a reckless disregard for the Director's duty to the Registrant or its
stockholders when the Director was aware or should have been aware of a risk of
serious injury to the Registrant or its stockholders, for acts or omissions that
constitute an unexcused pattern of inattention that amounts to an abdication of
the Director's duty to the Registrant or its stockholders, for improper
transactions between the Director and the Registrant and for improper
distributions to stockholders and loans to Directors and officers. The provision
also does not affect a Director's responsibilities under any other law, such as
the federal securities law or state or federal environmental laws.
The Registrant has entered into indemnity agreements with each of its
Directors and certain executive officers that require the Registrant to
indemnify such persons against expenses, judgments, fines, settlements and other
amounts incurred (including expenses of a derivative action) in connection with
any proceeding, whether actual or threatened, to which any such person may be
made a party by reason of the fact that such person is or was a Director or an
executive officer of the Registrant or any of its affiliated enterprises,
provided that such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the
Registrant and, with respect to any criminal proceeding, had no reasonable cause
to believe his conduct was unlawful. The indemnification agreements also set
forth certain procedures that will apply in the event of a claim for
indemnification thereunder.
At present, there is no pending litigation or proceeding involving a
Director or officer of the Registrant as to which indemnification is being
sought nor is the Registrant aware of any threatened litigation that may result
in claims for indemnification by any officer or Director.
2.
<PAGE>
The Registrant has an insurance policy covering the officers and
Directors of the Registrant with respect to certain liabilities, including
liabilities arising under the Securities Act or otherwise.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<C> <S>
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Cooley Godward LLP. Reference is made to Exhibit 5.1.
24.1 Power of Attorney is contained on the signature page.
* 99.1 Amended and Restated 1996 Equity Incentive Plan
(the "1996 Plan").
* 99.2 Form of Stock Option Agreement pursuant to the 1996 Plan.
* 99.3 1999 Employee Stock Purchase Plan and related offering documents.
* 99.4 1999 Non-Employee Directors' Stock Option Plan.
* 99.5 Form of Nonqualified Stock Option for use with 1999 Non-Employee Directors' Stock
Option Plan.
</TABLE>
_______________________
* Filed as an exhibit to Registration Statement on Form S-1 (No. 333-73153)
originally filed on March 1, 1999, as amended through the date hereof, and
incorporated herein by reference.
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 of 1933;
(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
3.
<PAGE>
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 (1)(a)(i) and (1)(a)(ii) above do
not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the Registrant pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934 that are incorporated by reference
in this Registration Statement.
(b) That, for the purpose of determining any liability under the
Securities Act of 1934, 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.
(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 of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Exchange Act of 1934) 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.
3. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 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 Act and will
be governed by the final adjudication of such issue.
4.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of San Diego,
County of San Diego, State of California, on June 3, 1999.
By: /s/ John A. Creelman
--------------------
John A. Creelman
Vice President of Finance, Chief
Financial Officer and Secretary
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Richard S. Gilbert and John A. Creelman
and each of them, as his true and lawful attorneys-in-fact and agents, with full
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, exhibits thereto and other documents in connection
therewith) to this Registration Statement and any subsequent registration
statement filed by the registrant pursuant to Rule 462(b) of the Securities Act
of 1933, as amended, which relates 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 substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
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/ Richard S. Gilbert President, Chief Executive Officer and June 3, 1999
- -------------------------------------------------------------- Director
Richard S. Gilbert (Principal Executive Officer)
/s/ John A. Creelman Vice President of Finance, Chief June 3, 1999
- -------------------------------------------------------------- Financial Officer, and Secretary
John A. Creelman (Principal Financial and Accounting
Officer)
/s/ Joseph D. Markee Chief Technical Officer and Chairman of June 4, 1999
- -------------------------------------------------------------- the Board
Joseph D. Markee
/s/ Robert L. Bailey Director June 3, 1999
- --------------------------------------------------------------
Robert L. Bailey
/s/ Tench Coxe Director June 4, 1999
- --------------------------------------------------------------
Tench Coxe
/s/ Roger Evans Director June 4, 1999
- --------------------------------------------------------------
Roger Evans
/s/ Richard H. Kimball Director June 4, 1999
- --------------------------------------------------------------
Richard H. Kimball
/s/ Raymond V. Thomas Director June 4, 1999
- --------------------------------------------------------------
Raymond V. Thomas
/s/ Andrew W. Verhalen Director June 8, 1999
- --------------------------------------------------------------
Andrew W. Verhalen
</TABLE>
5.
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Sequential
Exhibit No. Description Page No.
- ------------ ----------- ----------
<S> <C> <C>
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
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.
* 99.1 Amended and Restated 1996 Equity Incentive Plan (the "1996 Plan")
* 99.2 Form of Stock Option Agreement pursuant to the 1996 Plan.
* 99.3 1999 Employee Stock Purchase Plan and related offering documents.
* 99.4 1999 Non-Employee Directors' Stock Option Plan.
* 99.5 Form of Nonqualified Stock Option for use with 1999 Non-Employee Directors' Stock Option Plan.
</TABLE>
- ------------------------
* Filed as an exhibit to Registration Statement on Form S-1 (No. 333-73153)
originally filed on March 1, 1999, as amended through the date hereof, and
incorporated herein by reference.
6.
<PAGE>
EXHIBIT 5.1
COOLEY GODWARD LLP
- ------------------
<TABLE>
<S> <C> <C>
ATTORNEYS AT LAW Palo Alto, CA
650 843-5000
One Maritime Plaza Menlo Park, CA
20th Floor 650 843-5000
San Francisco, CA San Diego, CA
94111-3580 619 550-6000
Main 415 693-2000 Boulder, CO
Fax 415 951-3699 303 546-4000
June 9, 1999 Denver, CO
303 606-4800
Kirkland, WA
Copper Mountain Networks, Inc. www.cooley.com 425 893-7700
2470 Embarcadero Way LANCE W. BRIDGES
Palo Alto, California 94303 619 550-6019
[email protected]
</TABLE>
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by Copper Mountain Networks, Inc. (the "Company") of a
Registration Statement on Form S-8 (the "Registration Statement") with the
Securities and Exchange Commission, covering the registration of up to 7,195,587
shares of the Company's 1999 Common Stock, $.001 par value (the "Shares"), for
issuance (i) pursuant to the Company's 1999 Employee Stock Purchase Plan, 1996
Equity Incentive Plan, and 1999 Non-Employee Directors' Stock Option Plan
(collectively, the "Plans"), and (ii) upon the exercise of outstanding options
granted under the Company's 1996 Equity Incentive Plan, 1999 Non-Employee
Directors' Stock Option Plan and upon the exercise of outstanding options
granted outside of the Plans (the "Options").
In connection with this opinion, we have examined and relied upon the
Registration Statement, the Plans, the Company's Certificate of Incorporation
and Bylaws and the originals or copies certified to our satisfaction of such
records, documents, certificates, memoranda and other instruments as in our
judgment are necessary or appropriate to enable us to render the opinion
expressed below. 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 Registration
Statement, the Plans, options granted thereunder and the Options, will be
validly issued, fully paid, and nonassessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Sincerely,
Lance W. Bridges
<PAGE>
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the 1996 Equity Incentive Plan, 1999 Employee Stock Purchase
Plan, 1999 Non-Employee Directors' Stock Option Plan, and Options Granted
Outside Any Plan of Copper Mountain Networks, Inc. of our report dated February
25, 1999, except for the sixteenth paragraph of Note 5, as to which the date is
April 23, 1999 and Note 10, as to which the date is April 13, 1999, with respect
to the financial statements of Copper Mountain Networks, Inc. and the related
financial statement schedule, included in its Registration Statement on Form S-1
(No 333-73153), filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
San Diego, California
June 7, 1999
