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As filed with the Securities and Exchange Commission on December 19, 2000
Registration No. 333
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
AETHER SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 52-2186634
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
11460 CRONRIDGE DRIVE
OWINGS MILLS, MARYLAND 21117
(Address of Principal Executive Offices)
(410) 654-6400
(Registrant's telephone number, including area code)
AETHER SYSTEMS, INC. ACQUISITIONS INCENTIVE PLAN
(Full title of the plan)
DAVID S. OROS
CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER
AETHER SYSTEMS, INC.
11460 CRONRIDGE DRIVE
OWINGS MILLS, MARYLAND 21117
(410) 654-6400
(Name and address, including zip code, and telephone number,
including area code, of agent for service)
With a copy to:
R. SCOTT KILGORE, ESQ.
WILMER, CUTLER & PICKERING
2445 M STREET, N.W.
WASHINGTON, D.C. 20037
CALCULATION OF REGISTRATION FEE
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<CAPTION>
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Title of
Securities Amount Proposed Maximum Proposed Maximum Amount of
to be to be Offering Price Aggregate Offering Registration
Name of Plan Registered Registered Per Share (1) Price (1) Fee (1)
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<S> <C> <C> <C> <C> <C>
Aether Acquisitions Common Stock, 1,900,000 $47.875 $90,962,500 $24,015
Incentive Plan (the $.01 par value
"Acquisitions Plan")
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(1) In accordance with Rule 457(h) and Rule 457(c) the aggregate offering price
and the amount of the registration fee are computed on the basis of
1,900,000 shares issuable pursuant to the plan and, $47.875, the average of
the high and low prices reported in the Nasdaq Stock Market on December 18,
2000. Also registered hereunder are such additional number of shares of
Common Stock, presently indeterminable, as may be necessary to satisfy the
antidilution provisions of the Plan to which this Registration Statement
relates.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Note: The document(s) containing the information required by Item 1 of
Form S-8 and the statement of availability of registrant information and any
other information required by Item 2 of Form S-8 will be sent or given to
participants as specified by Rule 428 under the Securities Act of 1933, as
amended (the "Securities Act"). In accordance with Rule 428 and the requirements
of Part I of Form S-8, such documents are not being filed with the SEC either as
part of this Registration Statement or as prospectuses or prospectus supplements
pursuant to Rule 424 under the Securities Act. Aether Systems, Inc. (the
"Registrant" or the "Company") shall maintain a file of such documents in
accordance with the provisions of Rule 428. Upon request, the Registrant shall
furnish the SEC or its staff a copy or copies of all of the documents included
in such file.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Incorporation of Documents by Reference
The Company hereby incorporates by reference the documents listed in (a)
through (c) below. In addition, all documents subsequently filed by the Company
pursuant to Section 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act") (prior to 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 in this Registration Statement and to be a part hereof
from the date of filing of such documents.
(a) The Company's Annual Report on Form 10-K filed March 24, 2000.
(b) The Company's Quarterly Reports on Form 10-Q filed May 15, 2000,
August 14, 2000 and November 14, 2000; and the Company's Reports on Form 8-K
filed April 14, 2000 (as amended) and September 28, 2000.
(c) The description of the Company's Common Stock which is
incorporated by reference in the Prospectus on Form 424B3 filed by the Company
on September 27, 2000, including any amendment or report filed for the purpose
of updating such description.
ITEM 4. Description of Securities
Not applicable.
ITEM 5. Interests of Named Experts and Counsel
The validity of the shares of Company Common Stock that may be issued
under options granted under the Acquisition Plan is being passed upon for the
Company by Wilmer, Cutler & Pickering. George P. Stamas, a member of the Board
of Directors, is a consultant to Wilmer, Cutler & Pickering. Mr. Stamas owns
options to purchase 12,550 shares of Common Stock, and he holds a non-voting
interest in Telcom-ATI Investors, which owns 4,951,274 shares of common stock.
ITEM 6. Indemnification of Directors and Officers
Under Section 145 of the General Corporate law of the State of Delaware,
Aether Systems 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"). Aether Systems'
bylaws also provide for mandatory indemnification of its directors and executive
officers, and permissive indemnification of its employees and agents, to the
fullest extent permissible under Delaware law.
Aether's certificate of incorporation provides that the liability of its
directors for monetary damages shall be eliminated to the fullest extent
permissible under Delaware law. Pursuant to Delaware law, this includes
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elimination of liability for monetary damages for breach of the directors'
fiduciary duty of care to Aether and its stockholders. 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 Aether,
for acts or omissions not in good faith or involving intentional misconduct, for
knowing violations of law, for any transaction from which the director derived
an improper personal benefit, 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 laws, such as
the federal securities laws or state or federal environmental laws.
Aether also has obtained a policy of directors' and officers' liability
insurance that insures Aether's directors and officers against the cost of
defense, settlement or payment of a judgment under certain circumstances.
ITEM 7. Exemption from Registration Claimed
Not applicable.
ITEM 8. Exhibits
The Exhibit Index attached to this Registration Statement is incorporated
herein by reference.
ITEM 9. Undertakings
(a) 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:
(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
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;
(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 paragraphs (a)(1)(i) and (a)(1)(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 registrant pursuant to section 13
or section 15(d) of the Exchange Act that are incorporated by
reference in the registration statement.
(2) 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 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.
(b) 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 any employee
benefit plan's annual report pursuant to section 15(d) of the Exchange
Act) that is incorporated by reference in this Registration Statement
shall
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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
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 SEC
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 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.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Owings Mills, Maryland on the 19th day of December, 2000.
AETHER SYSTEMS, INC.
By:
/s/ David S. Oros
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David S. Oros
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below
under the heading "Signature" constitutes and appoints David S. Oros and David
C. Reymann as his or her true and lawful attorney-in-fact each acting alone,
with full power of substitution and resubstitution, for him or her and in his or
her name, place and stead, in any and all capacities to sign any or 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 attorney-in-fact 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 for all intents and purposes as he or she might or could do in person,
hereby ratifying and confirming all that said attorney-in-fact, or his or her
substitute, acting alone, may lawfully 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.
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<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ David S. Oros Chairman of the Board and December 19, 2000
----------------- Chief Executive Officer
David S. Oros
/s/ David C. Reymann Chief Financial Officer (Principal December 19, 2000
-------------------- Accounting and Financial Officer)
David C. Reymann
/s/ J. Carter Beese Director December 19, 2000
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J. Carter Beese, Jr.
Director December , 2000
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Frank A. Bonsal, Jr.
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<TABLE>
<S> <C> <C>
Director December , 2000
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Mark D. Ein
/s/ Rahul C. Prakash Director December 19, 2000
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Rahul C. Prakash
/s/ Janice M. Roberts Director December 19, 2000
----------------------
Janice M. Roberts
Director December , 2000
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Dr. Rajendra Singh
Director December , 2000
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George P. Stamas
/s/ Devin N. Wenig Director December 19, 2000
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Devin N. Wenig
Thomas E. Wheeler Director December 19, 2000
-----------------
Thomas E. Wheeler
Robin T. Vassan Director December 19, 2000
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Robin T. Vassan
</TABLE>
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EXHIBIT INDEX
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<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
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<S> <C>
4.1 Aether Acquisitions Incentive Plan
5 Opinion of Wilmer, Cutler & Pickering as to the legality of the
securities being registered
23.1 Consent of KPMG LLP
23.2 Consent of PricewaterhouseCoopers LLP
23.3 Consent of KPMG LLP
23.4 Consent of KPMG LLP
24 Power of attorney (included on signature pages of this Registration
Statement)
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