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As filed with the Securities and Exchange Commission on July 25, 1997
Registration No. 333-______
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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METRICOM, INC.
(Exact name of registrant as specified in its charter)
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DELAWARE 77-0294597
(State of incorporation) (I.R.S. Employer Identification No.)
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980 UNIVERSITY AVENUE
LOS GATOS, CALIFORNIA 95030-2375
(408) 399-8200
(Address and telephone number of Principal Executive Offices)
1997 EQUITY INCENTIVE PLAN
1997 NON-OFFICER EQUITY INCENTIVE PLAN
(Full title of the plan)
ROBERT P. DILWORTH
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)
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Copies to:
KENNETH L. GUERNSEY, ESQ.
COOLEY GODWARD LLP
ONE MARITIME PLAZA, 20TH FLOOR
SAN FRANCISCO, CA 94111-3580
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
======================================================================================================================
Title of Amount Proposed maximum Proposed mamimum
securities to be to be offering price aggregate Amount of registration
registered registered per share(1) offering price(1) fee
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<S> <C> <C> <C> <C>
Common Stock
(par value $.001) 1,350,000 shares $5.59375-$6.375 $8,205,858 $ 2,486.38
======================================================================================================================
</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) $5,339,062, the exercise price of 837,500
outstanding options and (ii) $2,866,796, the average of the high and low
sales price of Registrant's Common Stock on June 30, 1997 as reported on the
Nasdaq National Market System, for 512,500 shares reserved for issuance
pursuant to options for which the exercise price is not known.
Total Number of Pages: 10
Exhibit Index at Pages: 4 & 8
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PART II
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:
1. 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.
2. 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.
3. 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
Not applicable.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Bylaws provide that the Company will indemnify its
directors and executive officers and may indemnify its other 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. Pursuant to these provisions, the Company
has entered into indemnity agreements with each of its directors and executive
officers and has obtained director and officer liability insurance.
In addition, 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 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
2.
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an improper personal benefit and for 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.
EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
3.
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EXHIBITS
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<CAPTION>
Exhibit No. Description
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<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)
4.5 Form of 8% Convertible Subordinated Note due 2003.(3)
4.6 Indenture dated as of August 15, 1996 between the Company and
U.S. Trust Company of California N.A.(3)
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Cooley Godward LLP. Reference is made to Exhibit
5.1.
24.1 Power of Attorney. Reference is made to page 6 of this
Registration Statement.
99.1 1997 Equity Incentive Plan and Form of Agreement used
thereunder.(4)
99.2 1997 Non-Officer Equity Incentive Plan and Form of Agreement
used thereunder.(4)
</TABLE>
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(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.
(3) Filed as an exhibit to the Company's Form 10-K for the year ended
December 31, 1996, and incorporated herein by reference.
(4) Filed as an exhibit to the Company's Form 10-Q for the quarter ended
March 31, 1997, and incorporated herein by reference.
4.
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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 Securities 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 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 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 herein.
(b) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered 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 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 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
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.
5.
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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 25,
1997.
METRICOM, INC.
By /s/ Robert P. Dilworth
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Robert P. Dilworth
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 Vanessa A. Wittman
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.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
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<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ Robert P. Dilworth Chief Executive Officer and July 25, 1997
- ---------------------------- Chairman of the Board
Robert P. Dilworth (Principal Executive Officer)
/s/ Vanessa A. Wittman Vice President, Finance (Principal July 25, 1997
- ---------------------------- Financial and Accounting Officer)
Vanessa A. Wittman
</TABLE>
6.
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<TABLE>
<S> <C> <C>
/s/ Cornelius C. Bond, Jr. Director July 25, 1997
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Cornelius C. Bond, Jr.
/s/ Robert S. Cline Director July 25, 1997
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Robert S. Cline
/s/ Justin L. Jaschke Director July 25, 1997
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Justin L. Jaschke
/s/ George W. Levert Director July 25, 1997
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George W. Levert
/s/ Donald Rumsfeld Director July 25, 1997
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Donald Rumsfeld
Director
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Donald F. Wood
/s/ Jerry Yang
- ----------------------------- Director July 25, 1997
Jerry Yang
</TABLE>
7.
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EXHIBIT INDEX
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Exhibit No. Description
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<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)
4.5 Form of 8% Convertible Subordinated Note due 2003.(3)
4.6 Indenture dated as of August 15, 1996 between the Company and
U.S. Trust Company of California N.A.(3)
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Cooley Godward LLP. Reference is made to Exhibit
5.1.
24.1 Power of Attorney. Reference is made to page 6 of this
Registration Statement.
99.1 1997 Equity Incentive Plan and Form of Agreement used
thereunder.(4)
99.2 1997 Non-Officer Equity Incentive Plan and Form of Agreement
used thereunder.(4)
</TABLE>
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(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 May
31, 1993, and incorporated herein by reference.
(3) Filed as an exhibit to the Company's 10-K for the year ended December
31, 1996, and incorporated herein by reference.
(4) Filed as an exhibit to the Company's Form 10-Q for the quarter ended
March 31, 1997, and incorporated herein by reference.
8.
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5.1
July 25, 1997
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 1,350,000 shares of the Company's
Common Stock, $.001 par value, (the "Shares") pursuant to its 1997 Equity
Incentive Plan and 1997 Non-Officer Equity Incentive Plan (collectively, the
"Plans").
In connection with this opinion, we have examined the Registration Statement,
your Amended and Restated Certificate of Incorporation, as amended, your 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 issued and paid for in accordance with the Plans, the
Registration Statement and Related Prospectuses 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 LLP
By: /s/ Kenneth L. Guernsey
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Kenneth L. Guernsey
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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 reports dated January 22,
1997 included in the Company's Form 10-K for the year ended December 31, 1996,
as amended by Form 10-K/A, and to all references to our Firm in this
registration statement.
/s/ Arthur Andersen LLP
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ARTHUR ANDERSEN LLP
San Jose, California
July 25, 1997
