As filed with the Securities and Exchange Commission
on February 14, 1997
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SYMMETRICOM, INC.
(Exact name of registrant as specified in its charter)
CALIFORNIA 95-1906306
(State of incorporation) (I.R.S. Employer Identification No.)
85 West Tasman Drive
San Jose, California 95134-1703
(Address, including zip code, of principal executive offices)
1990 EMPLOYEE STOCK PLAN
(Full Title of the Plan)
William D. Rasdal
SymmetriCom, Inc.
85 West Tasman Drive
San Jose, California 95134-1703
(Name and address of agent for service)
(408) 943-9403
(Telephone number, including area code, of agent for service)
Copies to:
FRANCIS S. CURRIE, ESQ.
WILSON, SONSINI, GOODRICH & ROSATI
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304
CALCULATION OF REGISTRATION FEE
Title of Amount Proposed Proposed Amount of
Securities to be Maximum Offering Maximum Aggregate Registration
to be Regis- Price Per Share Offering Price Fee
Registered tered(1) (2) (2)
Common Stock,
no par value 467,102 $17.7673 $8,299,141.37 $2514.90
(1) Pursuant to Rule 429 of the Securities Act of 1933, as amended
(the "Securities Act"), the prospectus delivered to
participants under the registrant's 1990 Employee Stock Plan
also relates to an aggregate of 2,200,000 shares initially
registered under Form S-8 registration nos. 33-38384, 33-56042
and 333-00333.
(2) The Proposed Maximum Offering Price Per Share was estimated in
part pursuant to Rule 457(h) under the Securities Act of 1933,
as amended (the "Act"), and, in part, pursuant to Rule 457(c)
under the Act. With respect to (i) 4,625 shares which are
subject to outstanding options to purchase Common Stock under
the Plan, the Proposed Maximum Offering Price Per Share was
estimated pursuant to Rule 457(h) under which Rule the per
share price of options to purchase stock under an employee
stock option plan may be estimated by reference to the
exercise price of such options. The weighted average exercise
price of the 4,625 shares subject to outstanding options under
the Plan is $13.25. With respect to (i) 462,477 shares of
Common Stock available for future grant under the Plan, the
estimated Proposed Maximum Offering Price Per Share was
estimated pursuant to Rule 457(c) whereby the per share price
was determined by reference to the average between the high
and low price reported in the Nasdaq National Market on
February 12, 1997, which average was $17.8125. The number
referenced above in the table entitled "Proposed Maximum
Offering Price per Share" represents a weighted average of the
foregoing estimates calculated in accordance with Rules 457(h)
and 457(c).
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
There are hereby incorporated by reference in this
Registration Statement the following documents and information
heretofore filed with the Securities and Exchange Commission:
(a) The Registrant's Annual Report on Form 10-K for the
fiscal year ended June 30, 1996, filed pursuant to Section 13 of the
Securities Exchange Act of 1934 (the "Exchange Act").
(b) The Registrant's Quarterly Report on Form 10-Q for the
quarters ended September 30, 1996 and December 31, 1996, filed
pursuant to Section 13 of the Exchange Act.
(c) The description of the Registrant's Common Stock
contained in the Registrant's registration statement filed pursuant
to the Exchange Act, including any amendment or report filed for the
purpose of updating such description.
(d) The description of the Registrant's Common Share
Purchase Rights contained in the Registrant's registration statement
on Form 8-A dated December 18, 1990, filed pursuant to Section 12 of
the Exchange Act, 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 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.
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 317 of the California Corporations Code ("Section
317") authorizes a corporation to indemnify a person against
expenses and liabilities arising from third party or derivative
actions to which the person is or is threatened to be made a party
by reason of the fact that such person is or was an agent of the
corporation, so long as such person acted in good faith and in a
manner the person reasonably believed to be in the best interest of
the corporation and, in the case of a criminal proceeding, had no
reasonable cause to believe the conduct of the person was unlawful.
Section 317 requires a corporation to indemnify an agent who has
been successful on the merits in defense of any third party or
derivative action against expenses actually and reasonably incurred
in connection therewith. The indemnification authorized by Section
317 is not exclusive of additional indemnification rights which an
agent may have.
In accordance with Section 204 of the California Corporations
Code, the Registrant's Articles of Incorporation eliminate the
liability of directors for monetary damages to the fullest extent
permissible under California law. The Registrant's Articles of
Incorporation also authorize the Registrant to indemnify the
directors and officers to the fullest extent permissible under
California law.
The Registrant's Bylaws require the Registrant to indemnify
directors and officers of the Registrant, and authorize the
Registrant to indemnify other agents, to the maximum extent
permitted under the California Corporations Code. Such provisions
also apply to former directors, officers and agents of the
Registrant, and persons serving as directors, officers or agents of
another entity at the request of the Registrant.
The Registrant has entered into indemnification agreements
with its directors and officers providing for indemnification of
such directors and officers to the maximum extent permitted by law,
including future changes to the law permitting broader
indemnification than that currently permitted. These agreements
also resolve certain procedural and substantive matters that are not
covered, or are covered in less detail, in the California
Corporations Code or the Registrant's Bylaws.
The Registrant currently maintains liability insurance for its
directors and officers.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Number
4.1* 1990 Employee Stock Plan
4.2** Forms of Stock Option Agreement, Restricted
Stock Purchase Agreement, Tandem Stock
Option/SAR Agreement, and Stock Appreciation
Right Agreement for use with 1990 Employee
Stock Plan
5.1 Opinion of Wilson, Sonsini, Goodrich &
Rosati, P.C., as to legality of securities
being registered
23.1 Independent Auditors' Consent
23.2 Consent of Counsel (contained in Exhibit 5.1)
24.1 Power of Attorney (See signature page)
________
* Incorporated by reference to the exhibit filed with the
Registrant's registration statement on Form S-8 (File
No. 333-00333) filed with the Securities and Exchange
Commission on January 19, 1996.
** Incorporated by reference to the exhibit filed with the
Registrant's registration statement on Form S-8 (File
No. 33-38384) filed with the Securities and Exchange
Commission on December 24, 1990.
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 registra-
tion statement to include any material information with respect to
the plan of distribution not previously disclosed in the registra-
tion statement or any material change to such information in the
registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, as amended (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 an employee benefit plan's annual report pursuant to
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.
(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 Securities and Exchange Commission such indemni-
fication 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 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Registrant 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 San
Jose, State of California, on February 14, 1997.
SYMMETRICOM, INC.
By: /s/ William D. Rasdal
William D. Rasdal,
Chairman of the Board and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints William D. Rasdal
and J. Scott Kamsler, jointly and severally, his attorneys-in-fact,
each with the power of substitution, for him in any and all
capacities, to sign any amendments to this registration statement on
Form S-8, and to file the same, with exhibits thereto and other
documents in connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that each of said
attorney-in-fact, or his 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.
SIGNATURE TITLE DATE
/s/ William D. Rasdal Chairman of the Board and February 14, 1997
(William D. Rasdal) Chief Executive Officer
(Principal Executive Officer)
/s/ J. Scott Kamsler Vice President, Finance February 14, 1997
(J. Scott Kamsler) and Chief Financial Officer
(Principal Financial and
Accounting Officer)
/s/ Roger A. Strauch Director February 14, 1997
(Roger A. Strauch)
/s/ Robert M. Wolfe Director February 14, 1997
(Robert M. Wolfe)
SYMMETRICOM, INC.
REGISTRATION STATEMENT ON FORM S-8
INDEX TO EXHIBITS
Exhibit
Number Description
4.1* 1990 Employee Stock Plan
4.2** Forms of Stock Option Agreement, Restricted Stock Purchase
Agreement, Tandem Stock Option/SAR Agreement, and Stock
Appreciation Right Agreement for use with 1990 Employee
Stock Plan
5.1 Opinion of Wilson, Sonsini, Goodrich & Rosati, P.C., as to
legality of securities being registered
23.1 Independent Auditors' Consent
23.2 Consent of Counsel (contained in Exhibit 5.1)
24.1 Power of Attorney (See signature page).
___________
* Incorporated by reference to the exhibit filed with the
Registrant's
registration statement on Form S-8 (File No. 333-00333) filed with
the Securities and Exchange Commission on January 19, 1996.
** Incorporated by reference to the exhibit filed with the
Registrant's
registration statement on Form S-8 (File No. 33-38384) filed with the
Securities and Exchange Commission on December 24, 1990.
EXHIBIT 5.1
February 12, 1997
SymmetriCom, Inc.
85 West Tasman Drive
San Jose, CA 95134-1703
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have examined the Registration
Statement on Form S-8 to be filed by you with
the Securities and Exchange Commission on or
about February 14, 1997 (the "Registration
Statement"), in connection with the registration
under the Securities Act of 1933, as amended,
467,102 shares of your Common Stock (the
"Shares") reserved for issuance under the 1990
Employee Stock Plan (the "Plan"). As your legal
counsel, we have examined the proceedings taken
and proposed to be taken in connection with the
issuance, sale and payment of consideration for
the Shares to be issued under the Plan.
It is our opinion that, when issued and
sold in compliance with applicable prospectus
delivery requirements and in the manner referred
to in the Plan and pursuant to the agreements
which accompany the Plan, the Shares 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 and any
amendments thereto.
Sincerely,
WILSON, SONSINI, GOODRICH & ROSATI
Professional Corporation
/s/Wilson, Sonsini, Goodrich & Rosati
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of SymmetriCom, Inc. on Form S-8 of our report dated July
23, 1996, appearing in and incorporated by reference in the Annual
Report on Form 10-K of SymmetriCom, Inc. for the year ended June 30,
1996.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
San Jose, California
February 14, 1997
