<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 of principal executive offices)
ADVISORY BOARD STOCK OPTIONS
(Full title of the plans)
ROBERT P. DILWORTH
PRESIDENT AND CHIEF EXECUTIVE OFFICER
METRICOM, INC.
1980 UNIVERSITY AVENUE
LOS GATOS, CALIFORNIA 95030-2375
(408) 399-8200
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
KENNETH L. GUERNSEY, ESQ.
COOLEY GODWARD CASTRO HUDDLESON & TATUM
ONE MARITIME PLAZA
SAN FRANCISCO, CALIFORNIA 94111
(415) 693-2000
Page 1 of 16
Exhibit Index at Page 8
<PAGE> 2
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===================================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED SHARE (1) PRICE (1) REGISTRATION FEE
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Stock Options and
Common Stock (par
value $.001) 225,000 $17.59 avg. $3,957,750 $1,365
===================================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(h). The price per share
and aggregate offering price are based upon the prices at which the
options may be exercised.
Approximate date of commencement of proposed sale to the public: As
soon as practicable after this Registration Statement becomes effective.
2.
<PAGE> 3
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Metricom, Inc. (the "Company") with
the Securities and Exchange Commission are incorporated by reference into this
Registration Statement:
(a) The Company's latest annual report on Form 10-K filed pursuant to
Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), or either (1) the Company's latest prospectus filed pursuant to
Rule 424(b) under the Securities Act of 1933, as amended (the "Act"),
that contains audited financial statements for the Company's latest fiscal year
for which such statements have been filed, or (2) the Company's effective
registration statement on Form 10 or 20-F filed under the Exchange Act
containing audited financial statements for the Company's latest fiscal year.
(b) All other reports filed pursuant to Sections 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the annual reports, the
prospectus or the registration statement referred to in (a) above.
(c) The description of the Company's Common Stock which is contained in
a registration statement filed under the Exchange Act, including any amendment
or report filed for the purpose of updating such description.
All reports and other documents subsequently filed by the Company
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 herein and to be a part of this
registration statement from the date of the filing of such reports and
documents.
DESCRIPTION OF SECURITIES
Not applicable.
INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of shares of Common Stock offered hereby will be passed
upon for the Company by Cooley Godward Castro Huddleson & Tatum, San Francisco,
California.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Bylaws provide that the Company will indemnify its
directors, officers, employees and other agents to the fullest extent permitted
by Delaware law. The Company is also empowered under its Bylaws to enter into
indemnification contracts with its directors and officers and to purchase
insurance on behalf of any person whom it is required or permitted to indemnify.
In addition, the Company's Amended and Restated Certificate of
Incorporation (the "Amended Certificate") provides that, to the fullest extent
permitted by Delaware law, the Company's directors will not be liable for
monetary damages for breach of the directors' fiduciary duty of care to the
Company and its stockholders. This provision in the Amended Certificate does not
eliminate the duty of care, and, in appropriate circumstances, equitable
remedies such as an injunction or other forms of non-monetary relief would
remain available under Delaware law. In addition, each director will continue to
be subject to liability for breach of the director's duty of loyalty to the
Company, for acts or omissions not in good faith or involving intentional
misconduct or knowing violations of law, for acts or omissions that the director
believes to be contrary to the best interests of the Company or its
stockholders, for any transaction from which the director derived an improper
personal benefit and for improper distributions to stockholders and improper
loans to directors and officers. This 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.
3.
<PAGE> 4
EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
<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 is
contained in Exhibit 5 to this Registration Statement
24 Power of Attorney is contained on the signature pages.
99 Form of Nonstatutory Option Agreement used in connection with
the Nonstatutory Options granted outside of Registrant's stock
option plans.
</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.
UNDERTAKINGS
1. The undersigned registrant hereby undertakes:
(a) 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 Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the 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 the
registration statement. Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be
4.
<PAGE> 5
reflected in the form of prospectus filed with the Commission pursuant to Rule
424(b) (Section 230.424(b) of this chapter) if, in the aggregate, the changes in
volume and price represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in the
effective registration statement.
(iii) 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;
Provided, however, that paragraphs (a)(i) and (a)(ii) do not apply if
the registration statement is on Form S-3 or Form S-8 and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the issuer pursuant to section 13 or
section 15(d) of the Exchange Act that are incorporated by reference in the
registration statement.
(b) That, for the purpose of determining any liability under
the Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) 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.
2. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the 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 herein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
3. Insofar as indemnification for liabilities arising under the 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 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 Act and will be governed
by the final adjudication of such issue.
5.
<PAGE> 6
SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the Securities Act of
1933, as amended, 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
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.
6.
<PAGE> 7
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 July 26, 1996
- ---------------------------- Officer and Director
Robert P. Dilworth (Principal Executive Officer)
/s/ William D. Swain Chief Financial Officer (Principal July 26, 1996
- ---------------------------- Financial and Accounting Officer)
William D. Swain
/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>
7.
<PAGE> 8
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION SEQUENTIAL PAGE NUMBER
<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 9
23.1 Consent of Arthur Andersen LLP 10
23.2 Consent of Cooley Godward Castro Huddleson & Tatum is contained in --
Exhibit 5 to this Registration Statement
24 Power of Attorney is contained on the signature pages. --
99 Form of Nonstatutory Option Agreement used in connection with the 11
Nonstatutory Options granted outside of Registrant's stock option plans.
</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.
8.
<PAGE> 1
Exhibit 5.1
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 225,000 shares of the Company's Common
Stock, $.001 par value, (the "Shares") pursuant to nonstatutory option grants
(the "Options") outside of any of the Company's plans.
In connection with this opinion, we have examined the Registration Statement and
related Prospectus, your and the options Amended and Restated Certificate of
Incorporation and Bylaws, as amended, 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 Options, 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
deferred 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
Option No. BAB-__
Vesting Commencement
Date: ______________
Option Grant Date: _____________
METRICOM, INC.
NONSTATUTORY STOCK OPTION
______________, Optionee:
Metricom, Inc. (the "Company") has this day granted to you, the
optionee named above, an option to purchase shares of the common stock of the
Company ("Common Stock"). This option is not intended to qualify and will not be
treated as an "incentive stock option" within the meaning of Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code").
The details of your option are as follows:
1. The total number of shares of Common Stock subject to this option is
______________ (_________). Subject to the limitations contained herein, this
option shall be exercisable with respect to each installment shown below on or
after the date of vesting applicable to such installment, as follows:
<TABLE>
<CAPTION>
NUMBER OF SHARES (INSTALLMENT) DATE OF EARLIEST EXERCISE (VESTING)
- ---------------- -------------------------
<S> <C>
____ shares One year from Vesting Commencement
Date
_____ shares Two years from Vesting Commencement
Date
_____ shares Three years from Vesting Commencement
Date
_____ shares Four years from Vesting Commencement
Date
</TABLE>
1.
<PAGE> 2
2. (a) The exercise price of this option is _______ ($_______) per
share, being not less than the fair market value of the Common Stock on the date
of grant of this option.
(b) Payment of the exercise price per share is due in full in cash
(including check) upon exercise of all or any part of each installment which has
become exercisable by you. Notwithstanding the foregoing, this option may be
exercised pursuant to a program developed under Regulation T as promulgated by
the Federal Reserve Board which results in the receipt of cash (or check) by the
Company prior to the issuance of Common Stock.
3. The minimum number of shares with respect to which this option may
be exercised at any one time is Five Hundred (500), except with respect to the
final exercise of this option this minimum shall not apply. In no event may this
option be exercised for any number of shares which would require the issuance of
anything other than whole shares.
4. Notwithstanding anything to the contrary contained herein, this
option may not be exercised unless the shares issuable upon exercise of this
option are then registered under the Securities Act of 1933, as amended (the
"Act") or, if such shares are not then so registered, the Company has determined
that such exercise and issuance would be exempt from the registration
requirements of the Act. The Company will use its reasonable best efforts to
cause the conditions to this paragraph to be satisfied.
5. The term of this option commences on the date hereof and, unless
sooner terminated as set forth below, terminates on the date that is ten (10)
years minus one day from the date hereof. This option shall terminate prior to
the expiration of its term as follows: three (3) months after the termination of
your relationship as a director or consultant of the Company or an affiliate of
the Company for any reason or for no reason unless such termination is due to
your death, in which event the option shall terminate on the earlier of the date
set forth above or eighteen (18) months after your death.
6. (a) This option may be exercised, to the extent specified above, by
delivering a notice of exercise (in a form designated by the Company) together
with the exercise price to the Secretary of the Company, or to such other person
as the Company may designate, during regular business hours, together with such
additional documents as the Company may then require as set forth below.
The Company may require the optionee, or any person or entity to whom
the option is transferred pursuant to paragraph 7, as a condition of exercising
the option, (1) to give written assurances satisfactory to the Company as to the
person's or entity'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, she or it 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
or entity is acquiring the stock subject to the option for such person's or
entity'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
2.
<PAGE> 3
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
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.
(b) By exercising this option you agree that the Company may require
you to enter into an arrangement providing for the cash payment by you to the
Company of any tax withholding obligation of the Company arising by reason of:
(1) the exercise of this option; (2) the lapse of any substantial risk of
forfeiture to which the shares are subject at the time of exercise; or (3) the
disposition of shares acquired upon such exercise.
7. This option is only transferable by will or by the laws of descent
and distribution, and is exercisable during your life only by you.
8. This option is not an employment contract and nothing in this option
shall be deemed to create in any way whatsoever any obligation on your part to
continue in the employ of the Company, or of the Company to continue your
employment with the Company. In the event that this option is granted to you in
connection with the performance of services as a consultant, director or member
of the Industry Advisory Board, references to employment, employee and similar
terms shall be deemed to include the performance of services as a consultant,
director or member of the Industry Advisory Board, as the case may be, provided,
however, that no rights as an employee shall arise by reason of the use of such
terms.
9. Any notices provided for in this option shall be given in writing
and shall be deemed effectively given upon receipt or, in the case of notices
delivered by the Company to you, five (5) days after deposit in the United
States mail, postage prepaid, addressed to you at the address specified below or
at such other address as you hereafter designate by written notice to the
Company.
10. The Board or a committee to which the Board may have delegated
administration of the option (the "Committee") shall have the power to
accelerate the time during which the option may be exercised or the time during
which the option or any part thereof will vest pursuant to paragraph 1,
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 12.
11. Neither the optionee nor any person or entity to whom the option is
transferred under paragraph 7 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 or entity has satisfied all requirements for
exercise of the option pursuant to its terms.
12. (a) If any change is made in the stock subject to the option
(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 option will be appropriately adjusted in the class
and maximum number of shares subject to the option.
3.
<PAGE> 4
(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 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, then to the extent permitted by applicable law, (i) any surviving
corporation shall assume the option or shall substitute a similar option, or
(ii) the option shall continue in full force and effect. In the event any
surviving corporation elects not to assume or continue the option, or to
substitute a similar option, then, if the optionee is still a member of the
Board or Industry Advisory Board or is still rendering mutually agreed upon
services to the Company, as the case may be, the time at which the option may
first be exercised shall be accelerated, the optionee shall be given reasonable
notice of such acceleration and the option terminated if not exercised prior to
such event. In the event of a dissolution or liquidation of the Company, the
option shall terminate if not exercised prior to such event.
Dated as of the Option Grant Date.
Very truly yours,
Metricom, Inc.
By_____________________________________________
Duly authorized on behalf
of the Board of Directors
4.
<PAGE> 5
The undersigned:
(a) Acknowledges receipt of the foregoing option and the attachments
referenced therein and understands that all rights and liabilities with respect
to this option are set forth in the option;
(b) Acknowledges that as of the date of grant of this option, it sets
forth the entire understanding between the undersigned optionee and the Company
and its affiliates regarding the acquisition of stock in the Company and
supersedes all prior oral and written agreements on that subject with the
exception of the following agreements only:
NONE_______________________
(Initial)
OTHER ______
______
ATTACHMENTS:
Form of Exercise
5.
<PAGE> 6
NOTICE OF EXERCISE
Metricom, Inc.
980 University Avenue
Los Gatos, CA 95030-2375 Date of Exercise:______________
Ladies and Gentlemen:
This constitutes notice under my stock option that I elect to purchase
the number of shares for the price set forth below.
Nonstatutory Stock Option
Option No.: ________________________________________
Stock option dated: ________________________________________
Number of shares as
to which option is
exercised: ________________________________________
Certificates to be
issued in name of: ________________________________________
Total exercise price: $_______________________________________
Cash payment delivered
herewith: $_______________________________________
By this exercise, I agree (i) to provide such additional documents as
you may require pursuant to the terms of the option grant agreement, and (ii) to
provide for the payment by me to you (in the manner designated by you) of your
withholding obligation, if any, relating to the exercise of this option.
Very truly yours,
________________________________________
Optionee
