As filed with the Securities and Exchange Commission on March 5, 1998
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
SYMMETRICOM, INC.
(Exact name of registrant as specified in its charter)
CALIFORNIA 95-1906306
(State of incorporation) (I.R.S.Employer Identification No.)
2300 Orchard Parkway
San Jose, California 95131-1017
(Address, including zip code, of principal executive offices)
1990 EMPLOYEE STOCK PLAN
(Full Title of the Plan)
William D. Rasdal
SymmetriCom, Inc.
2300 Orchard Parkway
San Jose, California 95131-1017
(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
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CALCULATION OF REGISTRATION FEE
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Title of Amount Proposed Proposed Amount of
Securities to to be Maximum Offering Maximum Aggregate Registration
be Registered Registered(1) Price Per Share(2) Offering Price(2) Fee
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Common Stock,
no par value 476,384 $9.1563 $4,361,915 $1,286.76
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(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
2,667,102 shares initially registered under Form S-8 registration nos.
33-38384, 33-56042, 333-00333 and 333-21815.
(2) Estimated pursuant to Rule 457(c) of the Securities Act of 1933, as
amended (the "Act"), solely for the purpose of calculating the amount of
the registration fee on the basis of the average of the high and low
prices of the Common Stock reported in the Nasdaq National Market on March
3, 1998, which average was $9.1563
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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, 1997, 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, 1997, and December 31, 1997 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.
II-1
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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.
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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)
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*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 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 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.
III-3
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(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 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 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.
III-4
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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 March 5, 1998.
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.
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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 March 5, 1998
(William D. Rasdal) Chief Executive Officer
(Principal Executive Officer)
/s/ J. Scott Kamsler Senior Vice President, Finance March 5, 1998
(J. Scott Kamsler) and Chief Financial Officer
(Principal Financial and
Accounting Officer)
/s/ Richard W. Oliver Director March 5, 1998
(Richard W. Oliver)
/s/ Roger A. Strauch Director March 5, 1998
(Roger A. Strauch)
/s/ Robert M. Wolfe Director March 5, 1998
(Robert M. Wolfe)
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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).
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* 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.
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EXHIBIT 5.1
March 5, 1998
SymmetriCom, Inc.
2300 Orchard Parkway
San Jose, CA 95131-1017
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 March 5, 1998 (the
"Registration Statement"), in connection with the registration under the
Securities Act of 1933, as amended, 476,384 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 reports dated July 22, 1997 and September
23, 1997, appearing in the Annual Report on Form 10-K of SymmetriCom, Inc. for
the year ended June 30, 1997.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
San Jose, California
March 4, 1998
