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As filed with the Securities and Exchange Commission on June 22, 2000
Registration No. 333-
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UNITED STATES
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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LIBERATE TECHNOLOGIES
(Exact name of registrant as specified in its charter)
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<S> <C> <C>
DELAWARE 7372 94-3245315
(State or other jurisdiction (Primary Standard Industrial (IRS Employer
of incorporation or organization) Classification Code Number) Identification No.)
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2 CIRCLE STAR WAY
SAN CARLOS, CA 94070
(650) 701-4100
(Address of principal executive offices) (Zip Code)
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MORECOM, INC. 1998 STOCK OPTION PLAN
MORECOM, INC. 2000 STOCK OPTION PLAN
(Full title of the Plans)
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MITCHELL E. KERTZMAN
PRESIDENT AND CHIEF EXECUTIVE OFFICER
LIBERATE TECHNOLOGIES
2 CIRCLE STAR WAY
SAN CARLOS, CA 94070
(Name and address of agent for service)
(650) 701-4100
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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Title of Proposed Maximum Proposed Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered (1) per Share Price Fee
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MoreCom, Inc.
1998 Stock Option Plan
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Options N/A N/A N/A
Common Stock (par value $0.01) 719,180 $24.25(2) $17,440,115(2) $4,604.19
MoreCom, Inc.
2000 Stock Option Plan
----------------------
Options N/A N/A N/A
Common Stock (par value $0.01) 450,000 $24.25(2) $10,912,500(2) $2,880.90
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(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the MoreCom, Inc. 1998 Stock
Option Plan and the MoreCom, Inc. 2000 Stock Option Plan by reason of any
stock dividend, stock split, recapitalization or other similar transaction
effected without the receipt of consideration which results in an increase
in the number of the outstanding shares of Common Stock of Liberate
Technologies.
(2) Calculated solely for purposes of this offering under Rule 457(h) of the
Securities Act of 1933, as amended, on the basis of the fair market value
per share of Common Stock of Liberate Technologies on June 16, 2000.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
Liberate Technologies ("Liberate" or the "Company") hereby incorporates by
reference into this Registration Statement the following documents previously
filed with the Securities and Exchange Commission (the "SEC"):
(a) The Company's Registration Statement No. 333-95139 on Form S-1 filed
with the SEC on January 21, 2000, together with any and all amendments
thereto, in which there is set forth audited financial statements for
the Company's fiscal years ended May 31, 1998 and 1999;
(b) The Company's Quarterly Reports on Form 10-Q filed with the SEC on
April 13, 2000, for the fiscal quarter ended February 29, 2000, on
January 14, 2000, for the fiscal quarter ended November 30, 1999, and
on October 13, 1999 for the fiscal quarter ended August 31, 1999.
(c) The Company's Current Report on Form 8-K filed with the SEC on March
16, 2000.
(d) The Company's Registration Statement No. 000-26565 on Form 8-A filed
with the SEC on July 1, 1999, together with all amendments thereto,
pursuant to Section 12 of the Securities Exchange Act of 1934, as
amended (the "1934 Act") in which there is described the terms, rights
and provisions applicable to the Company's outstanding Common Stock.
All reports and definitive proxy or information statements filed pursuant
to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act after the date of this
Registration Statement and 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 into this Registration Statement and to be a part
hereof from the date of filing of such documents.
Item 4. Description of Securities
Not Applicable.
Item 5. Interests of Named Experts and Counsel
Not Applicable.
Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law authorizes a court to
award or a corporation's board of directors to grant indemnification to
directors and officers in terms sufficiently broad to permit such
indemnification under certain circumstances for liabilities (including
reimbursement for expenses incurred) arising under the 1933 Act. Article VI,
Section 6.1, of the Company's Bylaws provides for mandatory indemnification of
its directors and officers and permissible indemnification of employees and
other agents to the maximum extent permitted by the Delaware General Corporation
Law. The Company's Fifth Amended and Restated Certificate of Incorporation
provides that, pursuant to Delaware law, its directors shall not be liable for
monetary damages for breach of the directors' fiduciary duty as directors to the
Company and its stockholders. This provision in the Fifth Amended and Restated
Certificate of Incorporation does not eliminate the directors' fiduciary duty,
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 Company for acts or omissions not in good
faith or involving intentional misconduct, for knowing violations of law, for
actions leading to improper personal benefit to the director, and for payment of
dividends or approval of stock repurchases or redemptions that are unlawful
under Delaware law. The provision also does not affect a director's
responsibilities under any other law, such as the federal securities laws or
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state or federal environmental laws. The Company has entered into
Indemnification Agreements with its officers and directors. The Indemnification
Agreements provide the Company's officers and directors with further
indemnification to the maximum extent permitted by the Delaware General
Corporation Law. The Company maintains liability insurance for its directors and
officers.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
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Exhibit Number Exhibit
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4 Instrument Defining Rights of Stockholders. Reference is made to Company's Registration
Statement No. 000-26565 on Form 8-A, together with all amendments thereto, which is incorporated
herein by reference pursuant to Item 3(b) of this Registration Statement.
5 Opinion and consent of Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP.
23.1 Consent of Arthur Andersen LLP, Independent Auditors.
23.2 Consent of Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP is contained in
Exhibit 5.
24 Power of Attorney. Reference is made to page II-3 of this Registration Statement.
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Item 9. Undertakings
A. The undersigned Company hereby undertakes: (1) 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 1933 Act, (ii) to reflect in the prospectus any facts or events
arising after the effective date of this 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 this
Registration Statement and (iii) to include any material information with
respect to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information in this
Registration Statement; provided, however, that clauses (1)(i) and (1)(ii) shall
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 SEC by the Company pursuant to Section 13 or Section 15(d) of
the 1934 Act that are incorporated by reference in this Registration Statement;
(2) that for the purpose of determining any liability under the 1933 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 and
(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
Company's MoreCom, Inc. 1998 Stock Option Plan and the MoreCom, Inc. 2000 Stock
Option Plan.
B. The undersigned Company hereby undertakes that, for purposes of
determining any liability under the 1933 Act, each filing of the Company's
annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act that is
incorporated by reference in this 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.
C. Insofar as indemnification for liabilities arising under the 1933 Act
may be permitted to directors, officers or controlling persons of the Company
pursuant to the indemnification provisions summarized in Item 6 or otherwise,
the Company has been advised that, in the opinion of the SEC, such
indemnification is against public policy as expressed in the 1933 Act, and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Company of expenses incurred or
paid by a director, officer or controlling person of the Company 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 Company 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 1933 Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Company 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 Redwood Shores, State of California on this 21st day
of June, 2000.
LIBERATE TECHNOLOGIES
By: /s/ MITCHELL E. KERTZMAN
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Mitchell E. Kertzman
President, Chief Executive Officer
and Director
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of Liberate Technologies, a
Delaware corporation, do hereby constitute and appoint Mitchell E. Kertzman and
Nancy J. Hilker, and either of them, the lawful attorneys-in-fact and agents
with full power and authority to do any and all acts and things and to execute
any and all instruments which said attorneys and agents, and either one of them,
determine may be necessary or advisable or required to enable said corporation
to comply with the Securities Act of 1933, as amended, and any rules or
regulations or requirements of the Securities and Exchange Commission in
connection with this Registration Statement. Without limiting the generality of
the foregoing power and authority, the powers granted include the power and
authority to sign the names of the undersigned officers and directors in the
capacities indicated below to this Registration Statement, to any and all
amendments, both pre-effective and post-effective, and supplements to this
Registration Statement, and to any and all instruments or documents filed as
part of or in conjunction with this Registration Statement or amendments or
supplements thereof, and each of the undersigned hereby ratifies and confirms
all that said attorneys and agents, or either one of them, shall do or cause to
be done by virtue hereof. This Power of Attorney may be signed in several
counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of
Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
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Signature Title Date
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/s/ MITCHELL E. KERTZMAN President, Chief Executive Officer and Director June 21, 2000
----------------------------------- (Principal Executive Officer)
Mitchell E. Kertzman
/s/ NANCY J. HILKER Vice President and Chief Financial Officer June 21, 2000
----------------------------------- (Principal Financial and Accounting Officer)
Nancy J. Hilker
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Signature Title Date
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/s/ DAVID J. ROUX Director June 21, 2000
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David J. Roux
Director
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James L. Barksdale
/s/ CHARLES CORFIELD Director June 21, 2000
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Charles Corfield
/s/ MITCHELL KERTZMAN Director, President and Chief Executive Officer June 21, 2000
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Mitchell Kertzman
Director
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David Nagel
/s/ BRADLEY P. DUSTO Director June 21, 2000
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Bradley P. Dusto
/s/ BARRY SCHULER Director June 21, 2000
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Barry Schuler
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EXHIBIT INDEX
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Exhibit Number Exhibit
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4 Instrument Defining Rights of Stockholders. Reference is made to Company's Registration
Statement No. 000-26565 on Form 8-A, together with all amendments thereto, which is incorporated
herein by reference pursuant to Item 3(b) of this Registration Statement.
5 Opinion and consent of Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP.
23.1 Consent of Arthur Andersen LLP, Independent Auditors.
23.2 Consent of Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP is contained in
Exhibit 5.
24 Power of Attorney. Reference is made to page II-3 of this Registration Statement.
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