<PAGE> 1
As filed with the Securities and Exchange Commission on July 26, 1996
Registration No. 333-______
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------
METRICOM, INC.
(Exact name of registrant as specified in its charter)
-------------------
DELAWARE 77-0294597
(State of incorporation) (I.R.S. Employer Identification No.)
-------------------
980 UNIVERSITY AVENUE
LOS GATOS, CALIFORNIA 95030-2375
(408) 399-8200
(Address and telephone number of Principal Executive Offices)
1988 STOCK OPTION PLAN
1991 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
ROBERT P. DILWORTH
PRESIDENT AND CHIEF EXECUTIVE OFFICER
METRICOM, INC.
980 UNIVERSITY AVENUE
LOS GATOS, CALIFORNIA 95030-2375
(408) 399-8200
(Name, address, including zip codes and telephone number,
including are code of agent for service)
--------------------
Copies to:
KENNETH L. GUERNSEY, ESQ.
COOLEY GODWARD CASTRO HUDDLESON & TATUM
ONE MARITIME PLAZA, 20TH FLOOR
SAN FRANCISCO, CA 94111-3580
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===============================================================================================================================
Title of Amount Proposed maximum Proposed maximum Amount of
securities to be to be offering price aggregate registration
registered registered per share(1) offering price(1) fee
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock
(par value $.001) 650,000 shares $14.1505-14.375 $9,303,137 $3,208
===============================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(c) and (h)(1) of the Securities Act
of 1933, as amended. The price per share and aggregate offering price are
calculated on the basis of (i) $14.1505 the average exercise price of
180,904 outstanding options and (ii) $14.375, the average of the high
and low sales price of Registrant's Common Stock on July 23, 1996 as
reported on the Nasdaq National Market System, for 269,096 shares reserved
for issuance pursuant to options for which the exercise price is not known.
Page 1 of 29
Exhibit Index at Page 5
<PAGE> 2
PART II
INCORPORATION BY REFERENCE OF CONTENTS OF REGISTRATION
STATEMENTS ON FORM S-8 NOS. 33-47688, 33-63076, 33-63088, 33-81746 AND 33-95070
The contents of the Registration Statements on Form S-8 Nos. 33-47688,
33-63076, 33-63088, 33-81746 and 33-95070 filed with the Securities and Exchange
Commission on May 5, 1992, May 21, 1993, May 21, 1993, July 20, 1994 and July
27, 1995, respectively, are incorporated by reference herein, with those changes
set forth below.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
4.1 Registration Rights Agreement between the Registrant and the
other parties named therein, dated June 23, 1986, as
amended.(1)
4.2 Specimen stock certificate.(1)
4.3 Fifth Amendment to Registration Rights Agreement.(2)
4.4 Sixth Amendment to Registration Rights Agreement.(2)
5 Opinion of Cooley Godward Castro Huddleson & Tatum.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Cooley Godward Castro Huddleson & Tatum. Reference
is made to Exhibit 5.1.
24 Power of Attorney. Reference is made to page 3.
99.1 1988 Stock Option Plan, as amended (the "1988 Plan").
99.2 Form of Incentive Stock Option under the 1988 Plan.(1)
99.3 Form of Supplemental Stock Option under the 1988 Plan.(1)
99.4 Form of Notice of Exercise under the 1988 Plan.(1)
99.5 Form of Restricted Stock Purchase Agreement and promissory
note under the 1988 Plan.(1)
99.6 1991 Employee Stock Purchase Plan.
</TABLE>
- ---------------
(1) Filed as an exhibit to the Form S-1 Registration Statement
(Registration No. 33-46050) on February 28, 1992, and incorporated
herein by reference.
(2) Filed as an exhibit to the Company's Form 10-K for the year ended
December 31, 1993, and incorporated herein by reference.
2.
<PAGE> 3
SIGNATURES
The Registrant. 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 Los Gatos, State of California, on July 26,
1996.
METRICOM, INC.
By /s/ Robert P. Dilworth
--------------------------------------------
Robert P. Dilworth
President and Chief Executive Officer
(Principal executive officer)
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Robert P. Dilworth and William D. Swain
and each or any one of them, his true and lawful attorney-in-fact and agent,
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) 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 substitutes or substitute, may
lawfully do or cause to be done by virtue hereof.
3.
<PAGE> 4
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.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
/s/ Robert P. Dilworth President, Chief Executive Officer July 26, 1996
- ---------------------------- and Director (Principal Executive
Robert P. Dilworth Officer)
/s/ William D. Swain Chief Financial Officer and Secretary July 26, 1996
- ---------------------------- (Principal Financial and Accounting
William D. Swain Officer)
/s/ Cornelius C. Bond, Jr. Chairman of the Board July 26, 1996
- ----------------------------
Cornelius C. Bond, Jr.
/s/ Robert S. Cline Director July 26, 1996
- ----------------------------
Robert S. Cline
/s/ Justin Jaschke Director July 26, 1996
- ----------------------------
Justin Jaschke
/s/ George W. Levert Director July 26, 1996
- ----------------------------
George W. Levert
/s/ Donald Rumsfeld Director July 26, 1996
- ----------------------------
Donald Rumsfeld
/s/ Robert M. Smelick Director July 26, 1996
- ----------------------------
Robert M. Smelick
/s/ Jerry Yang Director July 26, 1996
- ----------------------------
Jerry Yang
</TABLE>
4.
<PAGE> 5
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION SEQUENTIAL
NO. PAGE NO.
- ------- ---------------------------------------------------------------- ----------
<S> <C> <C>
4.1 Registration Rights Agreement between the Registrant and the
other parties named therein, dated June 23, 1986, as amended.(1) --
4.2 Specimen stock certificate.(1) --
4.3 Fifth Amendment to Registration Rights Agreement.(2) --
4.4 Sixth Amendment to Registration Rights Agreement.(2) --
5 Opinion of Cooley Godward Castro Huddleson & Tatum. 6
23.1 Consent of Arthur Andersen LLP. 7
23.2 Consent of Cooley Godward Castro Huddleson & Tatum. Reference is
made to Exhibit 5.1. --
24 Power of Attorney. Reference is made to page 3. --
99.1 1988 Stock Option Plan, as amended (the "1988 Plan"). 8
99.2 Form of Incentive Stock Option under 1988 Plan.(1) --
99.3 Form of Supplemental Stock Option under the 1988 Plan.(1) --
99.4 Form of Notice of Exercise under the 1988 Plan.(1) --
99.5 Form of Restricted Stock Purchase Agreement and promissory note
under the 1988 Plan.(1) --
99.6 1991 Employee Stock Purchase Plan, as amended. 18
</TABLE>
- -------------------------------------------------------------------------------
(1) Filed as an exhibit to the Form S-1 Registration Statement
(Registration No. 33-46050) on February 28, 1992, and incorporated
herein by reference.
(2) Filed as an exhibit to the Company's Form 10-K for the year ended
December 31, 1993, and incorporated herein by reference.
5.
<PAGE> 1
EXHIBIT 5
COOLEY GODWARD CASTRO HUDDLESON & TATUM
July 26, 1996
Metricom, Inc.
980 University Avenue
Los Gatos, California 95030-2375
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by Metricom, Inc. (the "Company") of a Registration Statement on
Form S-8 (the "Registration Statement") with the Securities and Exchange
Commission covering the offering of up to 650,000 shares of the Company's Common
Stock, $.001 par value, (the "Shares") pursuant to the 1988 Stock Option Plan
and 1991 Employee Stock Purchase Plan (collectively the "Plans").
In connection with this opinion, we have examined the Registration Statement
and related Prospectuses, your Amended and Restated Certificate of Incorporation
and Bylaws, as amended, and the Plans and such other documents, records,
certificates, memoranda and other instruments as we deem necessary as a basis
for this opinion. 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 Plans, the
Registration Statement and related Prospectus will be validly issued, fully
paid and nonassessable (except as to shares issued pursuant to certain deferred
payment arrangements, which will be fully paid and nonassessable when such
deferrred payments are made in full).
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
COOLEY GODWARD CASTRO
HUDDLESON & TATUM
By: /s/ KENNETH L. GUERNSEY
--------------------------
Kenneth L. Guernsey
<PAGE> 1
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of our report dated January 24, 1996,
included in Metricom, Inc.'s Form 10-K for the year ended December 31, 1995.
/S/ARTHUR ANDERSEN LLP
-----------------------------------
ARTHUR ANDERSEN LLP
San Jose, California
July 24, 1996
<PAGE> 1
EXHIBIT 99.1
METRICOM, INC.
1988 STOCK OPTION PLAN
Adopted March 1988
Approved July 1988
Amended September 1989
Approved February 1990
Amended October 1990
Approved December 1990
Amended October 1991
Approved March 1992
Amended November 1, 1993
Approved December 23, 1993
Amended January 1995
Amended April 1995
Approved May 16, 1995
Amended January 1996
Approved April 24, 1996
Amended June 1996
1. PURPOSE.
(a) The purpose of the Plan is to provide a means by which
selected key employees, consultants, officers and directors (if declared
eligible under paragraph 4) of Metricom, Inc. (the "Company"), and its
Affiliates, as defined in subparagraph 1(b), may be given an opportunity to
purchase stock of the Company.
(b) The word "Affiliate" as used in the Plan means any parent
corporation or subsidiary corporation of the Company, as those terms are defined
in Sections 424(e) and (f), respectively, of the Internal Revenue Code of 1986,
as amended from time to time (the "Code").
(c) The Company, by means of the Plan, seeks to retain the
services of persons now employed by or serving as employees, consultants,
officers, directors or other service providers to the Company, to secure and
retain the services of persons capable of filling such positions, and to provide
incentives for such persons to exert maximum efforts for the success of the
Company.
(d) The Company intends that the options issued under the Plan
shall, in the discretion of the Board of Directors of the Company (the "Board")
or any committee to which responsibility for administration of the Plan has been
delegated pursuant to subparagraph 2(c), be either incentive stock options as
that term is used in Section 422 of the Code ("Incentive Stock Options"), or
options which do not qualify as incentive stock options ("Nonstatutory Stock
Options"). All options shall be separately designated Incentive Stock Options or
Nonstatutory
1.
<PAGE> 2
Stock Options at the time of grant, and in such form as issued pursuant to
paragraph 5, and a separate certificate or certificates shall be issued for
shares purchased on exercise of each type of option. An option designated as a
Nonstatutory Stock Option shall not be treated as an Incentive Stock Option.
2. ADMINISTRATION.
(a) The Plan shall be administered by the Board unless and
until the Board delegates administration to a committee, as provided in
subparagraph 2(c).
(b) The Board shall have the power, subject to, and within the
limitations of, the express provisions of the Plan:
(1) To determine from time to time which of the
persons eligible under the Plan shall be granted options; when and how the
option shall be granted; whether the option will be an Incentive Stock Option or
a Nonstatutory Stock Option; the provisions of each option granted (which need
not be identical), including the time or times during the term of each option
within which all or portions of such option may be exercised; and the number of
shares for which an option shall be granted to each such person.
(2) To construe and interpret the Plan and options
granted under it, and to establish, amend and revoke rules and regulations for
its administration. The Board, in the exercise of this power, may correct any
defect, omission or inconsistency in the Plan or in any option agreement, in a
manner and to the extent it shall deem necessary or expedient to make the Plan
fully effective.
(3) To amend the Plan as provided in paragraph 10.
(4) Generally, to exercise such powers and to perform
such acts as the Board deems necessary or expedient to promote the best
interests of the Company.
(c) The Board may delegate administration of the Plan to a
committee composed of not fewer than two (2) members (the "Committee"), all of
the members of which Committee shall be disinterested persons, if required and
as defined by the provisions of subparagraph 2(d) and may also be, in the
discretion of the Board, "outside directors" as defined in subparagraph 2(e). If
administration is delegated to a Committee, the Committee shall have, in
connection with the administration of the Plan, the powers theretofore possessed
by the Board, subject, however, to such resolutions, not inconsistent with the
provisions of the Plan, as may be adopted from time to time by the Board and
references to the Board herein shall be construed as references to the
Committee. The Board may abolish the Committee at any time and revest in the
Board the administration of the Plan.
(d) The term "disinterested person," as used in this Plan,
shall mean a director: (i) who was not during the one (1) year prior to service
as an administrator of the Plan granted or awarded equity securities pursuant to
the Plan or any other plan of the Company or
2.
<PAGE> 3
any of its affiliates entitling the participants therein to acquire equity
securities of the Company or any of its affiliates except as permitted by Rule
16b-3(c)(2)(i) promulgated under the Securities Exchange Act of 1934, as amended
(the "Exchange Act") ("Rule 16b-3(c)(2)(i)"); or (ii) who is otherwise
considered to be a "disinterested person" in accordance with Rule 16b-
3(c)(2)(i), or any other applicable rules, regulations or interpretations of the
Securities and Exchange Commission. Any such person shall otherwise comply with
the requirements of Rule 16b-3 promulgated under the Exchange Act.
(e) The term "outside director," as used in this Plan, shall
mean a director who either (i) is not a current employee of the Company or an
"affiliated corporation" (within the meaning of the Treasury regulations
promulgated under Section 162(m) of the Code), is not a former employee of the
Company or an "affiliated corporation" receiving compensation for prior services
(other than benefits under a tax qualified pension plan), was not an officer of
the Company or an "affiliated corporation" at any time, and is not currently
receiving direct or indirect remuneration from the Company or an "affiliated
corporation" for services in any capacity other than as Director, or (ii) is
otherwise considered an "outside director" for purposes of Section 162(m) of the
code.
(f) Any requirement that an administrator of the Plan be a
"disinterested person" shall not apply prior to the date of the first
registration of an equity security of the Company under Section 12 of the
Exchange Act.
3. SHARES SUBJECT TO THE PLAN.
(a) Subject to the provisions of paragraph 9 relating to
adjustments upon changes in stock, the stock that may be sold pursuant to
options granted under the Plan shall not exceed in the aggregate four million
one hundred and nineteen thousand five hundred (4,119,500) shares of the
Company's Common Stock. If any option granted under the Plan shall for any
reason expire or otherwise terminate without having been exercised in full, the
stock not purchased under such option shall again become available for the Plan.
(b) The stock subject to the Plan may be unissued shares or
reacquired shares, bought on the market or otherwise.
(c) An Incentive Stock Option may be granted to an eligible
person under the Plan only if the aggregate fair market value (determined at the
time the option is granted) of the stock with respect to which incentive stock
options (as defined in the Code) are exercisable for the first time by such
optionee during any calendar year under all incentive stock option plans of the
Company and its Affiliates does not exceed one hundred thousand dollars
($100,000). Should it be determined that an option granted under the Plan
exceeds such maximum for any reason other than the failure of a good faith
attempt to value the stock subject to the option, such option shall be
considered a Nonstatutory Stock Option to the extent, but only to the extent, of
such excess; provided, however, that should it be determined that an entire
option or any portion thereof does not qualify for treatment as an incentive
stock option by reason of exceeding such
3.
<PAGE> 4
maximum, such option or the applicable portion shall be considered a
Nonstatutory Stock Option.
4. ELIGIBILITY.
(a) Incentive Stock Options may be granted only to key
employees (including officers) of the Company or its affiliates. A director of
the Company shall not be eligible to receive Incentive Stock Options unless such
director is also a key employee of the Company or any Affiliate. Nonstatutory
Stock Options may be granted only to employees, consultants, officers, directors
or other service providers to the Company or its Affiliates.
(b) A director shall in no event be eligible for the benefits
of the Plan unless at the time discretion is exercised in the selection of the
director as a person to whom options may be granted, or in the determination of
the number of shares which may be covered by options granted to the director:
(i) the Board has delegated its discretionary authority over the Plan to a
Committee which consists solely of "disinterested persons" as defined in
subparagraph 2(d); or (ii) the Plan otherwise complies with the requirements of
Rule 16b-3 promulgated under the Exchange Act, as from time to time in effect.
The Board shall otherwise comply with the requirements of Rule 16b-3 promulgated
under the Exchange Act, as from time to time in effect. This subparagraph 4(b)
shall not apply if the Board or Committee expressly declares that such
requirement shall not apply.
(c) No person shall be eligible for the grant of an option
under the Plan if, at the time of grant, such person owns (or is deemed to own
pursuant to Section 424(d) of the Code) stock possessing more than ten percent
(10%) of the total combined voting power of all classes of stock of the Company
or of any of its Affiliates unless the exercise price of such option is at least
one hundred ten percent (110%) of the fair market value of such stock at the
date of grant and the term of the option does not exceed five (5) years from the
date of grant.
(d) Subject to the provisions of paragraph 9 relating to
adjustments upon changes in stock, no employee shall be eligible, during any
calendar year, to be granted options under the Plan to purchase in excess of
four hundred thousand (400,000) shares of the Company's Common Stock.
5. OPTION PROVISIONS.
Each option shall be in such form and shall contain such terms
and conditions as the Board or the Committee shall deem appropriate. The
provisions of separate options need not be identical, but each option shall
include (through incorporation of provisions hereof by reference in the option
or otherwise) the substance of each of the following provisions:
(a) The term of any option shall not be greater than ten (10)
years from the date it was granted.
4.
<PAGE> 5
(b) The exercise price of each option shall be not less than
(i) one hundred percent (100%) of the fair market value of the stock subject to
the option on the date the option is granted (in the case of Incentive Stock
Options) or (ii) eighty five percent (85%) of the fair market value of the stock
subject to the option on the date the option is granted (in the case of
Nonstatutory Stock Options).
(c) The purchase price of stock acquired pursuant to an option
shall be paid, to the extent permitted by applicable statutes and regulations,
as specified in the option, either (i) in cash at the time the option is
exercised, or (ii) at the discretion of the Board or the Committee, either at
the time of the grant or exercise of the option, (A) by delivery to the Company
of other common stock of the Company, (B) according to a deferred payment or
other arrangement (which may include, without limiting the generality of the
foregoing, the use of other common stock of the Company) with the person to whom
the option is granted or to whom the option is transferred pursuant to
subparagraph 5(d), or (C) in any other form of legal consideration that may be
acceptable to the Board or the Committee.
Notwithstanding the foregoing, an option may not be exercised by tender
to the Company of shares of the Company's stock to the extent such tender of
such stock would constitute a violation of the provisions of any law, regulation
and/or agreement restricting redemption of the Company's stock or would result
in an accounting charge on the Company's financial statements. Furthermore, no
promissory note shall be permitted if an exercise using a promissory note would
be a violation of any law.
In the case of any deferred payment arrangement, interest shall be
payable at least annually and shall be charged at the minimum rate of interest
necessary to avoid the treatment as interest, under any applicable provisions of
the Code, of any amounts other than amounts stated to be interest under the
deferred payment arrangement. The Board or Committee shall have the authority to
permit or require the optionee to secure any promissory note used to exercise an
option with the shares of stock acquired on exercise of the option and/or with
other collateral acceptable to the Company.
Unless otherwise provided by the Board or the Committee an option may
not be exercised by tender to the Company of shares of the Company's stock
unless such shares of stock either have been owned by the optionee for more than
six (6) months or were not acquired, directly or indirectly, from the Company.
Unless otherwise provided by the Board or the Committee, in the event
the Company at any time is subject to the regulations promulgated by the Board
of Governors of the Federal Reserve System or any other governmental entity
affecting the extension of credit in connection with the Company's securities,
any promissory note shall comply with such applicable regulations, and the
optionee shall pay the unpaid principal and accrued interest, if any, to the
extent necessary to comply with such applicable regulations.
(d) An Incentive Stock Option shall not be transferable except
by will or by the laws of descent and distribution, and shall be exercisable
during the lifetime of the person
5.
<PAGE> 6
to whom the Incentive Stock Option is granted only by such person. A
Nonstatutory Stock Option shall not be transferable except by will or by the
laws of descent and distribution or pursuant to a qualified domestic relations
order satisfying the requirements of Rule 16b-3 and the rules thereunder (a
"QDRO"), and shall be exercisable during the lifetime of the person to whom the
Option is granted only by such person or any transferee pursuant to a QDRO.
(e) The total number of shares of stock subject to an option
may, but need not, be allotted in periodic installments (which may, but need
not, be equal). From time to time during each of such installment periods, the
option may be exercised with respect to some or all of the shares allotted to
that period, and/or with respect to some or all of the shares allotted to any
prior period as to which the option was not fully exercised. During the
remainder of the term of the option (if its term extends beyond the end of the
installment periods), the option may be exercised from time to time with respect
to any shares then remaining subject to the option. The option may be subject to
such other terms and conditions on the time or times when it may be exercised
(which may be based on performance or other criteria) as the Board may deem
appropriate. The provisions of this subparagraph 5(e) are subject to any option
provisions governing the minimum number of shares as to which an option may be
exercised.
(f) The Company may require any optionee, or any person to
whom an option is transferred under subparagraph 5(d), as a condition of
exercising any such option, (1) to give written assurances satisfactory to the
Company as to the optionee's knowledge and experience in financial and business
matters and/or to employ a purchaser representative reasonably satisfactory to
the Company who is knowledgeable and experienced in financial and business
matters, and that he or she is capable of evaluating, alone or together with the
purchaser representative, the merits and risks of exercising the option; and (2)
to give written assurances satisfactory to the Company stating that such person
is acquiring the stock subject to the option for such person's own account and
not with any present intention of selling or otherwise distributing the stock.
These requirements, and any assurances given pursuant to such requirements,
shall be inoperative if (i) the issuance of the shares upon the exercise of the
option has been registered under a then currently effective registration
statement under the Securities Act of 1933, as amended (the "Securities Act"),
or (ii), as to any particular requirement, a determination is made by counsel
for the Company that such requirement need not be met in the circumstances under
the then applicable securities laws.
(g) An option shall terminate three (3) months after termination of
the optionee's employment or relationship as a director or consultant with the
Company or an Affiliate, unless (i) such termination is due to such person's
permanent and total disability, within the meaning of Section 422(c)(6) of the
Code, in which case the option may, but need not, provide that it may be
exercised at any time within one (1) year following such termination of
employment or relationship as a director or consultant; or (ii) the optionee
dies while in the employ of or while serving as a director or consultant to the
Company or an Affiliate, or within not more than three (3) months after
termination of such relationship, in which case the option may, but need not,
provide that it may be exercised at any time within eighteen (18) months
following the death of the optionee by the person or persons to whom the
optionee's rights under such option pass by will or by the laws of descent and
distribution; or (iii) the option by its terms specifies either
6.
<PAGE> 7
(a) that it shall terminate sooner than three (3) months after termination of
the optionee's employment or relationship as a director or consultant, or (b)
that it may be exercised more than three (3) months after termination of the
relationship with the Company or an Affiliate. This subparagraph 5(g) shall not
be construed to extend the term of any option or to permit anyone to exercise
the option after expiration of its term, nor shall it be construed to increase
the number of shares as to which any option is exercisable from the amount
exercisable on the date of termination of the optionee's employment or
relationship as a director or consultant.
(h) The option may, but need not, include a provision whereby
the optionee may elect at any time during the term of his or her employment or
relationship as a director with the Company or any Affiliate to exercise the
option as to any part or all of the shares subject to the option prior to the
stated vesting date of the option or of any installment or installments
specified in the option. Any shares so purchased from any unvested installment
or option may be subject to a repurchase right in favor of the Company or to any
other restriction the Board or the Committee determines to be appropriate.
(i) The option may, but need not, include a provision whereby
any tax withholding obligation of the Company, whether federal, state or local
arising by reason of the exercise of an option, the lapse of a substantial risk
of forfeiture with respect to shares acquired upon such exercise, or the
disposition of shares acquired upon such exercise may be satisfied by the
retention by the Company of shares otherwise issuable by reason of the exercise
of the option.
(j) Options granted to directors of the Company (i) must be
granted at or above the fair market price of the underlying stock on the date of
grant and (ii) shall not be exercisable for at least one year following the date
of grant. The provisions of this subparagraph 5(j) shall not apply prior to the
date of the first registration of an equity security of the Company under
Section 12 of the Exchange Act.
6. COVENANTS OF THE COMPANY.
(a) During the terms of the options granted under the Plan,
the Company shall keep available at all times the number of shares of stock
required to satisfy such options.
(b) The Company shall seek to obtain from each regulatory
commission or agency having jurisdiction over the Plan such authority as may be
required to issue and sell shares of stock upon exercise of the options granted
under the Plan; provided, however, that this undertaking shall not require the
Company to register under the Securities Act either the Plan, any option granted
under the Plan or any stock issued or issuable pursuant to any such option. If,
after reasonable efforts, the Company is unable to obtain from any such
regulatory commission or agency the authority which counsel for the Company
deems necessary for the lawful issuance and sale of stock under the Plan, the
Company shall be relieved from any liability for failure to issue and sell stock
upon exercise of such options unless and until such authority is obtained.
7.
<PAGE> 8
7. USE OF PROCEEDS FROM STOCK.
Proceeds from the sale of stock pursuant to options granted
under the Plan shall constitute general funds of the Company.
8. MISCELLANEOUS.
(a) The Board or the Committee shall have the power to
accelerate the time during which an option may be exercised or the time during
which an option or any part thereof will vest pursuant to subparagraph 5(e),
notwithstanding the provisions in the option stating the time during which it
may be exercised or the time during which it will vest. Provided, however, that
the Board or Committee shall not exercise this power as a means of circumventing
the provisions of paragraph 9(b).
(b) Neither an optionee nor any person to whom an option is
transferred under subparagraph 5(d) shall be deemed to be the holder of, or to
have any of the rights of a holder with respect to, any shares subject to such
option unless and until such person has satisfied all requirements for exercise
of the option pursuant to its terms.
(c) Throughout the term of any option granted pursuant to the
Plan, the Company shall make available to the holder of such option, not later
than one hundred twenty (120) days after the close of each of the Company's
fiscal years during the option term, upon request, such financial and other
information regarding the Company as comprises the annual report to the
shareholders of the Company provided for in the bylaws of the Company.
(d) Nothing in the Plan or any instrument executed or option
granted pursuant thereto shall confer upon any eligible employee or optionee any
right to continue in the employ of the Company or any Affiliate (or to continue
acting as a director) or shall affect the right of the Company or any Affiliate
to terminate the employment or directorship of any eligible employee or optionee
with or without cause.
9. ADJUSTMENTS UPON CHANGES IN STOCK.
(a) If any change is made in the stock subject to the Plan, or
subject to any option granted under the Plan (through merger, consolidation,
reorganization, recapitalization, stock dividend, dividend in property other
than cash, stock split, liquidating dividend, combination of shares, exchange of
shares, change in corporate structure or otherwise), the Plan and outstanding
options will be appropriately adjusted in the class(es) and maximum number of
shares subject to the Plan, the maximum number of options that may be granted to
any employee pursuant to subparagraph 4(d) and the class(es) and number of
shares and price per share of stock subject to outstanding options.
(b) In the event of: (1) a merger or consolidation in which
the Company is not the surviving corporation or (2) a reverse merger in which
the Company is the surviving corporation but the shares of the Company's common
stock outstanding immediately preceding
8.
<PAGE> 9
the merger are converted by virtue of the merger into other property, whether in
the form of securities, cash or otherwise, then to the extent permitted by
applicable law, (i) any surviving corporation shall assume any options
outstanding under the Plan or shall substitute similar options for those
outstanding under the Plan, or (ii) such options shall continue in full force
and effect. In the event any surviving corporation elects not to assume or
continue such options, or to substitute similar options for those outstanding
under the Plan, then, with respect to options held by persons then performing
services as employees or as consultants or directors for the Company, as the
case may be, the time at which such options may first be exercised shall be
accelerated and the options terminated if not exercised prior to such event. In
the event of a dissolution or liquidation of the Company, any options
outstanding under the Plan shall terminate if not exercised prior to such event.
10. AMENDMENT OF THE PLAN.
(a) The Board at any time, and from time to time, may amend
the Plan. However, except as provided in paragraph 9 relating to adjustments
upon changes in stock, no amendment shall be effective unless approved by the
vote of a majority of the outstanding shares of the Company entitled to vote, or
by the written consent of the holders of the outstanding shares of the company
entitled to vote to the extent necessary under applicable laws to obtain
incentive stock option treatment under Section 422 of the Code, within twelve
(12) months before or after the adoption of the amendment, where the amendment
will:
(i) Increase the number of shares reserved for
options under the Plan;
(ii) Materially modify the requirements as to
eligibility for participation in the Plan; or
(iii) Materially increase the benefits accruing to
participants under the Plan.
(b) It is expressly contemplated that the Board may amend the
Plan in any respect the Board deems necessary or advisable to provide optionees
with the maximum benefits provided or to be provided under the provisions of the
Code and the regulations promulgated thereunder relating to employee incentive
stock options and/or to bring the Plan and/or incentive stock options granted
under it into compliance therewith.
(c) Rights and obligations under any option granted before
amendment of the Plan shall not be impaired by any amendment of the Plan unless
(i) the Company requests the consent of the person to whom the option was
granted and (ii) such person consents in writing.
11. TERMINATION OR SUSPENSION OF THE PLAN.
(a) The Board may suspend or terminate the Plan at any time.
Unless sooner terminated, the Plan shall terminate on March 7, 1998 (which date
shall be no more than ten (10) years from the date the Plan is adopted by the
Board or approved by the stockholders of
9.
<PAGE> 10
the Company, whichever is earlier). No options may be granted under the Plan
while the Plan is suspended or after it is terminated.
(b) Rights and obligations under any option granted while the Plan
is in effect shall not be altered or impaired by suspension or termination of
the Plan, except with the consent of the person to whom the option was granted.
12. EFFECTIVE DATE OF PLAN.
The Plan shall become effective as determined by the Board,
but no options granted under the Plan shall be exercised unless and until the
Plan has been approved by the vote of the holders of a majority of the
outstanding shares of the Company entitled to vote, or by the written consent of
the holders of the outstanding shares of the Company entitled to vote to the
extent necessary under applicable laws to obtain incentive stock option
treatment under Section 422 of the Code, and, if required, an appropriate permit
has been issued by the Commissioner of Corporations of the State of California.
10.
<PAGE> 1
EXHIBIT 99.6
METRICOM, INC.
1991 EMPLOYEE STOCK PURCHASE PLAN
Adopted November 12, 1991
Amended January 1996
Approved April 24, 1996
Amended June 6, 1996
1. PURPOSE.
(a) The purpose of the Plan is to provide a means by which
employees of Metricom, Inc., a California corporation (the "Company"), and its
Affiliates, as defined in subparagraph 1(b), which are designated as provided in
subparagraph 2(b), may be given an opportunity to purchase stock of the Company.
(b) The word "Affiliate" as used in the Plan means any parent
corporation or subsidiary corporation of the Company, as those terms are defined
in Sections 424(e) and (f), respectively, of the Internal Revenue Code of 1986,
as amended (the "Code").
(c) The Company, by means of the Plan, seeks to retain the
services of its employees, to secure and retain the services of new employees,
and to provide incentives for such persons to exert maximum efforts for the
success of the Company.
(d) The Company intends that the rights to purchase stock of
the Company granted under the Plan be considered options issued under an
"employee stock purchase plan" as that term is defined in Section 423(b) of the
Code.
1.
<PAGE> 2
2. ADMINISTRATION.
(a) The Plan shall be administered by the Board of Directors
(the "Board") of the Company unless and until the Board delegates administration
to a Committee, as provided in subparagraph 2(c). Whether or not the Board has
delegated administration, the Board shall have the final power to determine all
questions of policy and expediency that may arise in the administration of the
Plan.
(b) The Board shall have the power, subject to, and within the
limitations of, the express provisions of the Plan:
(i) To determine when and how rights to purchase
stock of the Company shall be granted and the provisions of each offering of
such rights (which need not be identical).
(ii) To designate from time to time which Affiliates
of the Company shall be eligible to participate in the Plan.
(iii) To construe and interpret the Plan and rights
granted under it, and to establish, amend and revoke rules and regulations for
its administration. The Board, in the exercise of this power, may correct any
defect, omission or inconsistency in the Plan, in a manner and to the extent it
shall deem necessary or expedient to make the Plan fully effective.
(iv) To amend the Plan as provided in paragraph 13.
(v) Generally, to exercise such powers and to perform
such acts as the Board deems necessary or expedient to promote the best
interests of the Company.
(c) The Board may delegate administration of the Plan to a
Committee composed of not fewer than two (2) members of the Board (the
"Committee"). If administration is delegated to a Committee, the Committee shall
have, in connection with the administration of
2.
<PAGE> 3
the Plan, the powers theretofore possessed by the Board, subject, however, to
such resolutions, not inconsistent with the provisions of the Plan, as may be
adopted from time to time by the Board. The Board may abolish the Committee at
any time and revest in the Board the administration of the Plan.
3. SHARES SUBJECT TO THE PLAN.
(a) Subject to the provisions of paragraph 12 relating to
adjustments upon changes in stock, the stock that may be sold pursuant to rights
granted under the Plan shall not exceed in the aggregate three hundred and fifty
thousand (350,000) shares of the Company's common stock (the "Common Stock"). If
any right granted under the Plan shall for any reason terminate without having
been exercised, the Common Stock not purchased under such right shall again
become available for the Plan.
4. GRANT OF RIGHTS; OFFERING.
The Board or the Committee may from time to time grant or
provide for the grant of rights to purchase Common Stock of the Company under
the Plan to eligible employees (an "Offering") on a date or dates (the "Offering
Date(s)") selected by the Board or the Committee. Each Offering shall be in such
form and shall contain such terms and conditions as the Board or the Committee
shall deem appropriate. If an employee has more than one right outstanding under
the Plan, unless he or she otherwise indicates in agreements or notices
delivered hereunder: (1) each agreement or notice delivered by that employee
will be deemed to apply to all of his or her rights under the Plan, and (2) a
right with a lower exercise price (or an earlier-granted right, if two rights
have identical exercise prices), will be exercised to the fullest possible
extent before a right with a higher exercise price (or a later-granted right, if
two rights
3.
<PAGE> 4
have identical exercise prices) will be exercised. The provisions of separate
Offerings need not be identical, but each Offering shall include (through
incorporation of the provisions of this Plan by reference in the Offering or
otherwise) the substance of the provisions contained in paragraphs 5 through 8,
inclusive.
5. ELIGIBILITY.
(a) Rights may be granted only to employees of the Company or,
as the Board or the Committee may designate as provided in subparagraph 2(b), to
employees of any Affiliate of the Company. Except as provided in subparagraph
5(b), an employee of the Company or any Affiliate shall not be eligible to be
granted rights under the Plan, unless, on the Offering Date, such employee has
been in the employ of the Company or any Affiliate for such continuous period
preceding such grant as the Board or the Committee may require, but in no event
shall the required period of continuous employment be equal to or greater than
two (2) years. In addition, unless otherwise determined by the Board or the
Committee, no employee of the Company or any Affiliate shall be eligible to be
granted rights under the Plan, unless, on the Offering Date, such employee's
customary employment with the Company or such Affiliate is at least twenty (20)
hours per week and at least five (5) months per calendar year.
(b) The Board or the Committee may provide that, each person
who, during the course of an Offering, first becomes an eligible employee of the
Company or designated Affiliate will, on a date or dates specified in the
Offering which coincides with the day on which such person becomes an eligible
employee or occurs thereafter, receive a right under that Offering, which right
shall thereafter be deemed to be a part of that Offering. Such right shall have
the
4.
<PAGE> 5
same characteristics as any rights originally granted under that Offering, as
described herein, except that:
(i) the date on which such right is granted shall be
the "Offering Date" of such right for all purposes, including determination of
the exercise price of such right;
(ii) the Purchase Period (as defined below) for such
right shall begin on its Offering Date and end coincident with the end of such
Offering; and
(iii) the Board or the Committee may provide that if
such person first becomes an eligible employee within a specified period of time
before the end of the Purchase Period (as defined below) for such Offering, he
or she will not receive any right under that Offering.
(c) No employees shall be eligible for the grant of any rights
under the Plan if, immediately after any such rights are granted, such employee
owns stock possessing five percent (5%) or more of the total combined voting
power or value of all classes of stock of the Company or of any Affiliate. For
purposes of this subparagraph 5(d), the rules of Section 424(d) of the Code
shall apply in determining the stock ownership of any employee, and stock which
such employee may purchase under all outstanding rights and options shall be
treated as stock owned by such employee.
(d) An eligible employee may be granted rights under the Plan
only if such rights, together with any other rights granted under "employee
stock purchase plans" of the Company and any Affiliates, as specified by Section
423(b)(8) of the Code, do not permit such employee's rights to purchase stock of
the Company or any Affiliate to accrue at a rate which exceeds
5.
<PAGE> 6
twenty-five thousand dollars ($25,000) of fair market value of such stock
(determined at the time such rights are granted) for each calendar year in which
such rights are outstanding at any time.
6. RIGHTS; PURCHASE PRICE.
(a) On each Offering Date, each eligible employee, pursuant to
an Offering made under the Plan, shall be granted the right to purchase the
number of shares of Common Stock of the Company purchasable with up to fifteen
percent (15%) of such employee's Base Compensation (as defined in Section 7(a))
during the period which begins on the Offering Date (or such later date as the
Board determines for a particular Offering) and ends on the date stated in the
Offering, which date shall be no more than twenty-seven (27) months after the
Offering Date (the "Purchase Period"). In connection with each Offering made
under this Plan, the Board or the Committee shall specify a maximum number of
shares which may be purchased by any employee as well as a maximum aggregate
number of shares which may be purchased by all eligible employees pursuant to
such Offering. In addition, in connection with each such Offering, the Board or
the Committee may specify a maximum aggregate number of shares which may be
purchased by all eligible employees on any given Exercise Date (as defined in
the Offering) under the Offering. If the aggregate purchase of shares upon
exercise of rights granted under the Offering would exceed any such maximum
aggregate number, the Board or the Committee shall make a pro rata allocation of
the shares available in as nearly a uniform manner as shall be practicable and
as it shall deem to be equitable.
(b) The purchase price of stock acquired pursuant to rights
granted under the Plan shall be not less than the lesser of:
6.
<PAGE> 7
(i) an amount equal to eighty-five percent (85%) of
the fair market value of the stock on the Offering Date; or
(ii) an amount equal to eight-five percent (85%) of
the fair market value of the stock on the date of purchase.
7. PARTICIPATION; WITHDRAWAL; TERMINATION.
(a) An eligible employee may become a participant in an
Offering by delivering an agreement to the Company within the time specified in
the Offering, in such form as the Company provides. Each such agreement shall
authorize payroll deductions of up to fifteen percent (15%) of such employee's
Base Compensation during the Purchase Period. Base Compensation is defined as
total cash compensation exclusive of commissions, bonuses, overtime, allowances,
loans, educational assistance and premium pay such as shift differential, but
including amounts elected to be deferred by the employee (that would otherwise
have been paid) under the Company's 401(k) Plan. The payroll deductions made for
each participant shall be credited to an account for such participant under the
Plan and shall be deposited with the general funds of the Company. At any time
during the Purchase Period a participant may terminate his or her payroll
deductions. A participant may reduce, increase or begin such payroll deductions
after the beginning of any Purchase Period only as provided for in the Offering.
A participant may not make any additional payments into his or her account
unless expressly provided for in the Offering.
(b) If a participant terminates his or her payroll deductions,
such participant may withdraw from the Offering by delivering to the Company a
notice of withdrawal in such form as the Company provides. Such withdrawal may
be elected at any time prior to the end of the
7.
<PAGE> 8
Purchase Period. Upon such withdrawal from the Offering by a participant, the
Company shall distribute to such participant all of his or her accumulated
payroll deductions (reduced to the extent, if any, such deductions have been
used to acquire stock for the participant) under the Offering without interest,
and such participant's interest in that Offering shall be automatically
terminated. A participant's withdrawal from an Offering will have no effect upon
such participant's eligibility to participate in any other Offerings under the
Plan but such participant will be required to deliver a new participation
agreement in order to participate in other Offerings under the Plan.
(c) Rights granted pursuant to any Offering under the Plan
shall terminate immediately upon cessation of any participating employee's
employment with the Company or an Affiliate, for any reason, and the Company
shall distribute to such terminated employee all of his or her accumulated
payroll deductions (reduced to the extent, if any, such deductions have been
used to acquire stock for the terminated employee), without interest; provided,
however, that subject to the right of the terminated employee to withdraw from
the Offering and receive a distribution of his or her accumulated payroll
deductions (as described in paragraph 7(b)), in the event that a participating
employee's employment ceases within three (3) months of the next Exercise Date,
the balance in such employee's account shall be held and used to purchase Common
Stock for the terminated employee on such Exercise Date pursuant to the terms of
the ongoing Offering.
(d) Rights granted under the Plan shall not be transferable,
and shall be exercisable only by the person to whom such rights are granted.
8. EXERCISE.
8.
<PAGE> 9
(a) On each exercise date, as defined in the relevant Offering
(an "Exercise Date"), each participant's accumulated payroll deductions (without
any increase for interest) will be applied to the purchase of whole shares of
stock of the Company, up to the maximum number of shares permitted pursuant to
the terms of the Plan and the applicable Offering, at the purchase price
specified in the Offering. No fractional shares shall be issued upon the
exercise of rights granted under the Plan. The amount, if any, of accumulated
payroll deductions remaining in each participant's account after the purchase of
shares which is less than the amount required to purchase one share of stock on
the final Exercise Date of an Offering shall be held in each such participant's
account for the purchase of shares under the next Offering under the Plan,
unless such participant withdraws from such next Offering, as provided in
subparagraph 7(b), or is no longer eligible to be granted rights under the Plan,
as provided in paragraph 5, in which case such amount shall be distributed to
such participant after such Exercise Date, without interest. The amount, if any,
of accumulated payroll deductions remaining in any participant's account after
the purchase of shares which is equal to the amount required to purchase whole
shares of stock on the final Exercise Date of an Offering shall be distributed
in full to such participant after such Exercise Date, without interest.
(b) No rights granted under the Plan may be exercised to any
extent unless the Plan (including rights granted thereunder) is covered by an
effective registration statement pursuant to the Securities Act of 1933, as
amended (the "Securities Act"). If, on an Exercise Date of any Offering
hereunder, the Plan is not so registered, no rights granted under the Plan or
any Offering shall be exercised and all payroll deductions accumulated during
the purchase period shall be distributed to the participants, without interest.
9.
<PAGE> 10
9. COVENANTS OF THE COMPANY.
(a) During the terms of the rights granted under the Plan, the
Company shall keep available at all times the number of shares of stock required
to satisfy such rights.
(b) The Company shall seek to obtain from each regulatory
commission or agency having jurisdiction over the Plan such authority as may be
required to issue and sell shares of stock upon exercise of the rights granted
under the Plan. If, after reasonable efforts, the Company is unable to obtain
from any such regulatory commission or agency the authority which counsel for
the Company deems necessary for the lawful issuance and sale of stock under the
Plan, the Company shall be relieved from any liability for failure to issue and
sell stock upon exercise of such rights unless and until such authority is
obtained.
10. USE OF PROCEEDS FROM STOCK.
Proceeds from the sale of stock pursuant to rights granted
under the Plan shall constitute general funds of the Company.
11. RIGHTS AS A SHAREHOLDER.
A participant shall not be deemed to be the holder of, or to
have any of the rights of a holder with respect to, any shares subject to rights
granted under the Plan unless and until certificates representing such shares
shall have been issued.
12. ADJUSTMENTS UPON CHANGES IN STOCK.
(a) If any change is made in the stock subject to the Plan, or
subject to any rights granted under the Plan (through merger, consolidation,
reorganization, recapitalization, stock dividend, dividend in property other
than cash, stock split, liquidating dividend, combination of shares, exchange of
shares, change in corporate structure or otherwise), the Board shall make
10.
<PAGE> 11
appropriate adjustments in the maximum number of shares subject to the Plan and
the number of shares and price per share of stock subject to outstanding rights.
(b) In the event of: (1) a dissolution or liquidation of the
Company; (2) a merger or consolidation in which the Company is not the surviving
corporation; (3) a reverse merger in which the Company is the surviving
corporation but the shares of the Company's Common Stock outstanding immediately
preceding the merger are converted by virtue of the merger into other property,
whether in the form of securities, cash or otherwise; or (4) any other capital
reorganization in which more than fifty percent (50%) of the shares of the
Company entitled to vote are exchanged, then, as determined by the Board in its
sole discretion, any surviving corporation shall assume outstanding rights or
substitute similar rights for those under the Plan, such rights shall continue
in full force and effect, or such rights shall be exercised immediately prior to
such event.
13. AMENDMENT OF THE PLAN.
(a) The Board at any time, and from time to time, may amend
the Plan. However, except as provided in paragraph 12 relating to adjustments
upon changes in stock, no amendment shall be effective unless approved by the
shareholders of the Company within 12 months before or after the adoption of the
amendment, where the amendment will:
(i) Increase the number of shares reserved for rights
under the Plan; or
(ii) Modify the provisions as to eligibility for
participation in the Plan or modify the Plan in any other way to the extent such
modification requires shareholder approval in order for the Plan to obtain
employee stock purchase plan treatment under Section 423 of the Code).
11.
<PAGE> 12
It is expressly contemplated that the Board may amend the Plan in any respect
the Board deems necessary or advisable to provide eligible employees with the
maximum benefits provided or to be provided under the provisions of the Code and
the regulations promulgated thereunder relating to employee stock purchase plans
and/or to bring the Plan and/or rights granted under it into compliance
therewith.
(b) Rights and obligations under any rights granted before
amendment of the Plan shall not be altered or impaired by any amendment of the
Plan, except with the consent of the person to whom such rights were granted.
14. TERMINATION OR SUSPENSION OF THE PLAN.
(a) The Board may suspend or terminate the Plan at any time.
Unless sooner terminated, the Plan shall terminate ten (10) years from the date
the Plan is adopted by the Board or approved by the shareholders of the Company,
whichever is earlier. No rights may be granted under the Plan while the Plan is
suspended or after it is terminated.
(b) Rights and obligations under any rights granted while the
Plan is in effect shall not be altered or impaired by suspension or termination
of the Plan, except with the consent of the person to whom such rights were
granted.
15. EFFECTIVE DATE OF PLAN.
The Plan shall become effective as determined by the Board,
but no rights granted under the Plan shall be exercised unless and until the
Plan has been approved by the vote of the shareholders of the Company, and, if
required, an appropriate permit has been issued by the Commissioner of
Corporations of the State of California.
12.
