<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 23, 1999
REGISTRATION NO. 333-91359
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
<TABLE>
<S> <C>
METRICOM, INC. METRICOM FINANCE, INC.
(EXACT NAME OF REGISTRANT AS (EXACT NAME OF REGISTRANT AS
SPECIFIED IN ITS CHARTER) SPECIFIED IN ITS CHARTER)
DELAWARE DELAWARE
(STATE OF INCORPORATION) (STATE OF INCORPORATION)
77-0294597 77-0529272
(I.R.S. EMPLOYER IDENTIFICATION (I.R.S. EMPLOYER IDENTIFICATION
NO.) NO.)
</TABLE>
980 UNIVERSITY AVENUE
LOS GATOS, CALIFORNIA 95030-2375
(408) 399-8200
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANTS' PRINCIPAL EXECUTIVE OFFICES)
TIMOTHY A. DREISBACH
PRESIDENT AND CHIEF EXECUTIVE OFFICER
METRICOM, INC.
980 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:
<TABLE>
<S> <C>
KENNETH L. GUERNSEY JEREMY W. DICKENS
CYDNEY S. POSNER WEIL, GOTSHAL & MANGES LLP
LAURA RANDALL WOODHEAD 767 FIFTH AVENUE
COOLEY GODWARD LLP NEW YORK, NEW YORK 10153
ONE MARITIME PLAZA, 20TH FLOOR (212) 310-8000
SAN FRANCISCO, CALIFORNIA 94111
(415) 693-2000
</TABLE>
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the registration statement becomes effective
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act, as
amended, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<S> <C> <C>
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
TITLE OF EACH CLASS OF SECURITIES PROPOSED MAXIMUM AMOUNT OF
TO BE REGISTERED OFFERING PRICE(1) REGISTRATION FEE(2)
- --------------------------------------------------------------------------------------------------------------------
Debt Securities(3).......................................... (4) (4)
- --------------------------------------------------------------------------------------------------------------------
Common Stock of Metricom, Inc., $0.001 par value per
share(5).................................................. (4) (4)
- --------------------------------------------------------------------------------------------------------------------
Guarantees of Metricom, Inc. with respect to debt
securities(6)............................................. (4) (4)
- --------------------------------------------------------------------------------------------------------------------
Total.............................................. $1,200,000,000(7) $333,600
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) The proposed maximum aggregate offering price per class of security will be
determined from time to time by the registrants in connection with the
issuance by the registrants of the securities registered hereunder.
(2) Calculated pursuant to Rule 457(o) under the Securities Act. The amount of
the registration fee was paid in connection with the initial filing of the
registration statement.
(3) Subject to note 7 below, there is being registered hereunder, by Metricom,
Inc. and Metricom Finance, Inc., an indeterminate principal amount of their
debt securities as may be sold, from time to time, by either of the
registrants. If any debt securities are issued at an original issue
discount, then the offering price shall be in such greater principal amount
at maturity as shall result in aggregate gross proceeds to the registrants
not to exceed $1.2 billion less the gross proceeds attributable to any
securities previously issued pursuant to this registration statement.
(4) Not required to be included in accordance with General Instruction II.D. of
Form S-3.
(5) Subject to note 7 below, there is being registered hereunder, solely by
Metricom, Inc., an indeterminate number of shares of common stock of
Metricom, Inc. as may be sold from time to time.
(6) Subject to note (7) below, there is being registered hereunder an
indeterminate principal amount of Guarantees of Metricom. Inc. with respect
to the obligation of Metricom Finance, Inc. under such debt securities as
may be sold, from time to time, as to which Metricom Finance, Inc. will be a
co-issuer and co-obligor. Under the Guarantees, the obligation of Metricom
Finance, Inc. under the debt securities will be fully and unconditionally
guaranteed by Metricom, Inc. as described more fully in the registration
statement.
(7) Except as permitted by Rule 462 under the Securities Act, in no event will
the aggregate offering price of all securities issued from time to time
pursuant to this registration statement exceed $1.2 billion. The securities
registered hereunder may be sold separately or as units with other
securities registered hereunder.
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE
ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY
DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED.
WE MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED
WITH SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS
NOT AN OFFER TO SELL THESE SECURITIES AND WE ARE NOT SOLICITING OFFERS
TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT
PERMITTED.
SUBJECT TO COMPLETION, DATED DECEMBER 23, 1999
PROSPECTUS
$1,200,000,000
METRICOM, INC.
[LOGO]
COMMON STOCK
DEBT SECURITIES
GUARANTEES OF DEBT SECURITIES
METRICOM FINANCE, INC.
DEBT SECURITIES
GUARANTEED AS SET FORTH IN THIS PROSPECTUS BY METRICOM, INC.
Metricom, Inc. may offer shares of common stock from time to time at
prices and on terms to be determined by market conditions at the time it makes
the offer. Metricom and Metricom Finance, Inc., a wholly-owned subsidiary of
Metricom, referred to as Finance, may, as co-issuers and co-obligors, offer one
or more series of debt securities from time to time at prices and on terms to be
determined by market conditions at the time of the offering. The obligation of
Finance under these securities will be fully and unconditionally guaranteed by
Metricom as set forth in this prospectus. We will provide the specific terms of
each series of debt securities in supplements to this prospectus. Before you
invest in the securities, you should carefully read this prospectus and the
prospectus supplement related to the securities offered.
Metricom's common stock is traded on the Nasdaq National Market under the
symbol "MCOM." On December 21, 1999, the last reported sale price of the common
stock on the Nasdaq National Market was $80 5/8 per share.
------------------------
THE SECURITIES WE MAY OFFER INVOLVE A HIGH DEGREE OF RISK. SEE "RISK FACTORS"
COMMENCING ON PAGE 5.
------------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
------------------------
If we sell the securities through agents or underwriters, we will include
their names and the fees, commissions and discounts they will receive, as well
as the net proceeds to us, in the applicable prospectus supplement.
The date of this prospectus is December , 1999
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Prospectus Summary.................... 3
Risk Factors.......................... 5
Forward-Looking Information........... 5
Deficiency of Earnings to Fixed
Charges............................. 5
Use of Proceeds....................... 5
Description of Debt Securities........ 6
</TABLE>
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Description of Capital Stock.......... 16
Plan of Distribution.................. 19
Legal Matters......................... 19
Experts............................... 19
Where You Can Get More Information.... 20
</TABLE>
-------------------------
No dealer, sales person or other person is authorized to give any
information or to represent anything not contained in this prospectus. You must
not rely on any unauthorized information or representations. This prospectus is
an offer to sell only the securities offered hereby, but only under
circumstances and in jurisdictions where it is lawful to do so. The information
contained in this prospectus is current only as of its date.
Metricom(R) and Ricochet(R) are Metricom trademarks. Trade names and
trademarks of other companies appearing in this prospectus are the property of
their respective holders.
2
<PAGE> 4
PROSPECTUS SUMMARY
The following is a summary of Metricom's business. This summary highlights
selected information from this prospectus and does not contain all the
information that may be important to you. To understand the terms of the
securities, you should read this prospectus with the accompanying prospectus
supplement carefully. Together, these documents describe the specific terms of
the securities we are offering. You should also carefully read the section
entitled "Risk Factors" in this prospectus and the accompanying prospectus
supplement and the documents identified under the caption "Where You Can Get
More Information." References to "Metricom" refer to Metricom, Inc. and
references to "Finance" refers to Metricom Finance, Inc. Unless the context
requires otherwise, references to "we," "us" or "our" refer to Metricom and
Finance, collectively.
Metricom is a leading provider of mobile wireless data access to corporate
networks and the Internet. Metricom has designed its new high speed service,
marketed under the Ricochet(R) brand name, to meet the needs of the growing
number of professionals who require full access to their corporate networks and
the Internet while away from the office. Metricom's service will also appeal to
consumers who desire high-speed mobile access to the Internet. Simply by
attaching a wireless modem to a laptop computer or personal electronic device,
users can access their corporate networks and the Internet whenever they want
and wherever they are within Metricom's coverage areas.
Metricom was incorporated in California in December 1985 and
reincorporated in Delaware in April 1992. Its principal office is located at 980
University Avenue, Los Gatos, California 95030-2375. Its telephone number at
that location is (408) 399-8200, and its Web sites are located at
www.metricom.com and www.ricochet.net. Information contained on these Web sites
does not constitute part of this prospectus.
Finance is a wholly owned subsidiary of Metricom, newly formed for the
purpose of allowing Metricom to consummate a holding company reorganization. A
holding company reorganization is a transaction effected either as a result of
the transfer of all or substantially all of Metricom's assets to Finance, the
merger of a wholly owned subsidiary of Finance with Metricom, or a merger of
Metricom into a single-member limited liability company owned by Finance, after
which the debt securities will become solely the obligation of a holding
company.
THE SECURITIES WE MAY OFFER
Metricom may offer shares of its common stock, and Metricom and Finance
may offer various series of debt securities, with a total value of up to $1.2
billion, from time to time, under this prospectus at prices and on terms to be
determined by market conditions at the time of offering. This prospectus
provides you with a general description of the securities we may offer. Each
time we offer a type or series of securities, we will provide a prospectus
supplement that will describe the specific amounts, prices and other important
terms of the securities, including, to the extent applicable:
- designation or classification;
- aggregate principal amount or aggregate offering price;
- maturity, if applicable;
- rates and times of payment of interest or dividends, if any;
- redemption, conversion or sinking fund terms, if any;
- voting or other rights, if any;
- conversion prices, if any; and
- important federal income tax considerations.
3
<PAGE> 5
The prospectus supplement may also add, update or change information
contained in this prospectus or in documents we have incorporated by reference.
THIS PROSPECTUS MAY NOT BE USED TO COMPLETE ANY SALE OF SECURITIES UNLESS IT IS
ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
We may sell the securities directly to or through agents, underwriters or
dealers. We, and our agents or underwriters, reserve the right to accept or
reject all or part of any proposed purchase of securities. If we do offer
securities through agents or underwriters, we will include in the applicable
prospectus supplement:
- the names of those agents or underwriters;
- applicable fees, discounts and commissions, to be paid to them; and
- the net proceeds to us.
Common Stock. Metricom may issue its common stock from time to time.
Holders of common stock are entitled to one vote per share on all matters
submitted to a vote of stockholders, except those matters that are submitted
solely to a vote of the holders of preferred stock. Subject to any preferences
of outstanding shares of preferred stock, holders of common stock are entitled
to dividends when and if declared by the board of directors.
Debt Securities. We may offer debt securities from time to time, in one or
more series, as either senior or subordinated debt or as senior or subordinated
convertible debt. The senior debt securities will rank equally with all of our
other unsecured and unsubordinated debt. The subordinated debt securities will
be subordinate and junior in right of payment, to the extent and in the manner
described in the instrument governing that debt, to all of our senior
indebtedness. Convertible debt securities will be convertible into Metricom's
common stock. Conversion may be mandatory or at your option and would be at
prescribed conversion rates.
The debt securities will be issued under indentures between us and Bank
One Trust Company, N.A., referred to as Bank One, as trustee. In this
prospectus, we have summarized certain general features of the debt securities.
We urge you, however, to read the prospectus supplements related to the series
of debt securities being offered, as well as the complete indentures, which
contain the terms of the debt securities. The indentures have been filed as
exhibits to the registration statement of which this prospectus is a part.
Guarantees. Metricom will fully and unconditionally guarantee the
obligations of Finance under the debt securities. Each guarantee with respect to
senior debt securities will constitute part of Metricom's senior debt. Each
guarantee with respect to subordinated debt securities will be subordinated to
Metricom's senior indebtedness on the same basis as the applicable security.
Upon the completion of a holding company reorganization, that guarantee
automatically, and without further notice to or action by the holders of the
debt securities, will be released entirely and will cease to be of any force and
effect. After that time, all references in the indenture and any supplemental
indentures to an obligor of the debt securities will refer only to the holding
company.
4
<PAGE> 6
RISK FACTORS
The prospectus supplement applicable to each type or series of securities
we offer will contain a discussion of risks applicable to an investment in
Metricom and/or Finance and to the particular types of securities that we are
offering under that supplement. Prior to making a decision about investing in
our securities, you should carefully consider the specific factors discussed
under the caption "Risk Factors" in the applicable prospectus supplement,
together with all of the other information contained in the prospectus
supplement or appearing or incorporated by reference in the registration
statement of which this prospectus is a part.
FORWARD-LOOKING INFORMATION
This prospectus contains forward-looking statements, within the meaning of
Section 27A of the Securities Act of 1933 and Section 21E of the Securities
Exchange Act of 1934, that are based on the current expectations that we have
about Metricom and its industry. Words such as "expect," "anticipate,"
"estimate," "believe," "intend," "plan" and other similar expressions are used
to identify some forward-looking statements, but not all forward-looking
statements include these words. Some of these forward-looking statements relate
to commercial acceptance of Metricom's service and the holding company
reorganization. All forward-looking statements involve risks and uncertainties.
Metricom's actual results may differ significantly from our expectations and
from the results expressed in or implied by these forward-looking statements.
The section captioned "Risk Factors" that appears in Metricom's annual report on
Form 10-K, as amended, for the year ended December 31, 1998 and Metricom's
current report on Form 8-K filed with the SEC on July 9, 1999, as well as the
section captioned "Risk Factors" that will appear in prospectus supplements
accompanying this prospectus describe some, but not necessarily all, of the
factors that could cause these differences. We urge you to read those sections
carefully. Except as may be required by law, we undertake no obligation to
publicly update any forward-looking statements for any reason, even if new
information becomes available or other events occur in the future.
DEFICIENCY OF EARNINGS TO FIXED CHARGES
Metricom's earnings were insufficient to cover fixed charges during each
of the periods described below. For the purpose of these calculations,
"earnings" consist of income before taxes, plus fixed charges, and "fixed
charges" consist of interest expense incurred and the portion of rental expense
deemed by Metricom to be representative of the interest factor of rental
payments under leases.
<TABLE>
<CAPTION>
NINE MONTHS
YEAR ENDED ENDED
DECEMBER 31, SEPTEMBER 30,
----------------------------------------- --------------
1994 1995 1996 1997 1998 1998 1999
----- ----- ----- ----- ----- ----- -----
(DOLLARS IN MILLIONS) (UNAUDITED)
<S> <C> <C> <C> <C> <C> <C> <C>
Deficiency of earnings to fixed charges..... $11.7 $23.5 $39.3 $59.3 $84.2 $45.9 $48.2
</TABLE>
USE OF PROCEEDS
Unless otherwise described in a prospectus supplement, we will use the net
proceeds from the offering of the securities for deployment and
commercialization of Metricom's network and for other general corporate
purposes, principally working capital, funding operating losses and capital
expenditures and operating expenses related to Metricom. When we offer a
particular type or series of securities, the prospectus supplement relating to
those securities will describe our intended use of the net proceeds we will
receive from the sale of those securities. Unless otherwise described in a
prospectus supplement, pending application for specific purposes, the net
proceeds of any offering of securities may be invested in short-term investments
and marketable securities.
5
<PAGE> 7
DESCRIPTION OF DEBT SECURITIES
We may offer the debt securities from time to time as either senior or
subordinated debt or as senior or subordinated convertible debt. We will issue
senior debt securities under an indenture between us, as joint and several
obligors, and Bank One, as trustee. We will issue subordinated debt securities
under another indenture between us, as joint and several obligors, and Bank One,
as trustee. The terms of the indentures are also governed by the provisions of
the Trust Indenture Act. The following is a summary of the material provisions
of the debt securities; however, we urge you to review the senior debt
indentures and the subordinated debt indenture, which are filed as exhibits to
the registration statement of which this prospectus is a part. See "Where You
Can Find More Information." Unless the context requires otherwise, whenever we
refer to the indentures, we also are referring to any supplemental indentures
that specify the terms of a particular series of debt securities. In this
description, the phrases "we", "our" and similar terms refer only to Metricom
and Finance as co-obligors and not to any future subsidiaries that Metricom,
Inc. may create or acquire.
GENERAL
The indentures allow us to issue debt securities in series up to the
aggregate amount we authorize from time to time for each series. We will
describe the following terms of the debt securities, to the extent those terms
are applicable, and other information that we consider relevant relating to a
particular series of debt securities in a prospectus supplement:
- the designation and title of the debt securities;
- the classification of those securities as senior or subordinated debt
securities;
- the aggregate principal amount, or principal amount at maturity, as
applicable, of the debt securities;
- the percentage of the principal amount, or principal amount at maturity,
as applicable, at which we will issue and sell the debt securities;
- the date or dates on which the debt securities will mature;
- the rate or rates per annum, if any, which may be fixed or variable, at
which the debt securities will bear or accrete interest, or the method
of determination of the interest rate or rates;
- the times and places at which the interest, if any, will be payable;
- provisions for sinking, purchase or other analogous funds, if any;
- the date or dates or particular events, if any, after which we may, or
must, redeem the debt securities, as well as the redemption price or
prices;
- the date or dates or particular events, if any, after which we must
offer to repurchase the debt securities from their holders, as well as
the repurchase price or prices;
- the date or the dates, if any, after which the holders may convert the
debt securities into shares of our common stock and the terms for that
conversion; and
- any other material terms of, including any covenants or defined terms
applicable to, the debt securities.
We will pay the principal, premium, if any, and interest, if any, on debt
securities by wire transfer of immediately available funds to the holder of any
debt securities held in global form and at the office of the trustee maintained
for that purpose with respect to any certificated notes. With respect to
certificated debt securities, we may pay interest, if any, at our option by
check mailed to the address of the person entitled to payment as it appears in
our security register or by wire transfer of immediately available funds in
accordance with instructions provided by the registered holders of certificated
debt securities. Debt securities will be transferable at the office of the
trustee maintained for that purpose.
6
<PAGE> 8
We may issue debt securities in registered form and, unless otherwise
specified in the applicable prospectus supplement, only in denominations of
$1,000 and integral multiples of $1,000. We may also issue debt securities in
book-entry form, without certificates. We will describe the procedures relating
to an issue of book-entry debt securities in the prospectus supplement relating
to those debt securities. We will not require a service charge for any transfer
or exchange of the debt securities, but we or the trustee may require payment of
a sum sufficient to cover any transfer tax or other similar government charge
payable in connection with a transfer or exchange.
We may issue debt securities under the indentures at a substantial
discount from their stated principal amount at maturity. We will describe any
United States federal income tax consequences and other considerations
applicable to debt securities issued with "original issue discount" in the
prospectus supplement relating to those debt securities.
METRICOM FINANCE, INC.
Finance is a wholly owned subsidiary of Metricom, newly formed for the
purpose of allowing Metricom to consummate a holding company reorganization.
Although, at the time the notes are issued, there will not be any debt senior in
right of payment to the notes, given our growth plans, we believe it is possible
that we may desire to incur senior indebtedness and that the senior lender may
desire that the notes be both contractually and structurally subordinated to the
senior indebtedness. In anticipation of that possibility, the notes expressly
provide that, subject to specified constraints designed to assure no materially
adverse tax consequences to either the holders of the notes or to the obligors
under the notes, we can reorganize our assets and liabilities to accommodate
this type of senior indebtedness.
A holding company reorganization is a transaction after which, all or
substantially all our assets and operations will be owned and operated by a
subsidiary corporation or limited liability company wholly owned by a holding
company, and the holding corporation will remain as the sole obligor in respect
of the notes. We currently expect that this type of reorganization of our
operations may be effected either as a result of the transfer of all or
substantially all of our assets to Finance, the merger of a wholly owned
subsidiary of Finance with Metricom, or a merger of Metricom into a
single-member limited liability company owned by Finance, after which the debt
securities will become solely the obligation of a holding company. That holding
company will have no material assets other than the capital stock of its
subsidiaries. If Metricom completes a holding company reorganization, the debt
securities will be effectively junior to all of the liabilities, including
credit facilities, other indebtedness and trade payables that the holding
company's subsidiaries may incur, all of which subsidiary debt also could be
secured by liens. Metricom does not currently intend to undertake a holding
company reorganization; however, because of Metricom's ambitious growth plans
and in order to preserve its flexibility to create a corporate structure that
may facilitate its ability to raise additional capital in the future, Metricom
anticipates the possibility of a change in that current plan and has structured
the debt securities to allow it to reorganize if it chooses to do so.
Prior to completing a holding company reorganization, Finance will not
have any operations or any material assets and will not have any revenues. As a
result, prospective investors should not expect Finance to contribute to the
amounts required to be paid on the debt securities. Moreover, Metricom has fully
and unconditionally guaranteed the obligations of Finance with respect to the
debt securities solely for the purpose of enabling Metricom and Finance to
register the debt securities, as co-obligors, on the registration statement of
which this prospectus is a part. Upon the completion of a holding company
reorganization, the notes will, by their terms, be the obligation solely of a
holding company, meaning a company the only asset of which is the stock or an
ownership interest in either a corporate subsidiary (or subsidiaries) or a
limited liability company, and the guarantee automatically, and without further
notice to or action by the holders of the debt securities, will be released
entirely and will cease to be of any force and effect. After that time, all
references in the indenture and any supplemental indentures to an obligor of the
debt securities will refer to the holding company.
7
<PAGE> 9
LIMITATIONS ON ACTIVITIES OF FINANCE
Prior to the consummation of a holding company reorganization, neither
Finance nor any wholly owned subsidiary of Finance formed solely for the purpose
of consummating the holding company reorganization will:
- hold any material assets;
- consolidate or merge with or into any other entity or person, other than
in connection with the holding company reorganization;
- become liable or pay for any indebtedness or other obligations;
provided, however, that Finance may:
- become liable for or pay for its obligations under the indenture, the
supplemental indentures and the debt securities;
- become liable for or pay for any judgments;
- be a co-obligor with respect to indebtedness if Metricom is also an
obligor of that indebtedness and the net proceeds of that indebtedness
are received by Metricom or one or more of its restricted subsidiaries
other than Finance; or
- engage in any business activities other than incident to maintaining
its corporate existence or consummating a holding company
reorganization.
Upon consummation of the holding company reorganization, the obligation of
Finance with respect to the debt securities will automatically be extinguished
and only Metricom will continue as the sole obligor on the debt securities, if
the holding company reorganization is completed by Metricom's contribution of
its assets to Finance. Metricom's obligation with respect to the debt securities
will automatically be extinguished and only Finance will continue as the sole
obligor on the debt securities, if the holding company reorganization is
completed by a merger of a subsidiary of Finance with Metricom. In connection
with the completion of a holding company reorganization, the trustee shall, at
the request of either obligor, enter into a supplemental indenture to evidence
the release of Metricom or Finance, as the case may be, from its obligations on
the debt securities and to evidence the release of Metricom's guarantee of the
obligations of Finance with respect to the debt securities.
CONVERSION RIGHTS
The prospectus supplement will describe, if applicable, the terms on which
the holders may convert debt securities into common stock. The conversion may be
mandatory or may be at the option of the holder of debt securities. The
prospectus supplement will describe how the number of shares of common stock to
be received upon conversion would be calculated.
MERGER, CONSOLIDATION AND SALE OF ASSETS
Unless we provide otherwise in the prospectus supplement relating to a
particular series of debt securities, the indentures will not permit us to
consolidate with or merge into any other person or sell, convey, transfer or
lease all or substantially all of our properties and assets as an entirety to
any person, unless:
- the person formed by the consolidation or into which we are merged, or
the person that acquires our properties and assets by sale, conveyance
or transfer or which leases our properties and assets substantially as
an entirety:
- is a corporation, validly existing under the laws of the United States
of America, any state of the United States, or the District of
Columbia, and
- expressly assumes, by a supplemental indenture, executed and delivered
to the trustee, in form reasonably satisfactory to the trustee, our
obligations for the due and punctual payment of the principal of,
premium, if any, and interest on all the debt securities and the
performance and observance of every covenant of the indentures;
8
<PAGE> 10
- immediately after giving effect to the transaction, no default or event
of default shall have occurred and be continuing with respect to the
applicable debt securities; and
- the person formed by the consolidation or surviving the merger or
acquiring or leasing our properties and assets delivers an officers'
certificate and an opinion of counsel to the trustee, each stating that
the consolidation, merger, conveyance, transfer or lease and the
supplemental indenture comply with these provisions of the indentures
and that all conditions precedent provided for under the indentures that
relate to the transaction have been satisfied.
These provisions apply only to a merger or consolidation in which we are
not the surviving corporation and to sales, conveyances, leases and transfers by
us as transferor or lessor. We use the term "person" to mean any individual,
corporation, partnership, limited liability company, joint venture, association,
joint-stock company, trust, unincorporated organization or government or any
agency or political subdivision of a government entity.
The indentures also provide that, upon completion of any of the
transactions described above in accordance with the preceding paragraphs, the
person formed by the consolidation or surviving the merger or acquiring or
leasing our properties and assets will be substituted for us and will succeed
to, and may exercise, all of our rights and powers under the indentures with the
same effect as if that person had been named as the obligor under the
indentures. Also, upon completion of any of these transactions, except in the
case of a lease, we will be discharged from all our obligations and covenants
under the indentures and the debt securities.
Notwithstanding the foregoing provisions, nothing in this "Merger,
Consolidation or Sale of Assets" covenant will prohibit us from completing
holding company reorganization, provided that the completion of that transaction
is solely for the purpose of effecting the holding company reorganization and
not for the purpose of circumventing any other provision of the indenture or any
supplemental indentures.
EVENTS OF DEFAULT
Unless we provide otherwise in the prospectus supplement relating to a
particular series of debt securities, the following will be events of default
under the indentures:
(1) default in the payment of interest on any debt securities when
the interest becomes due and payable, if the default continues for 30
days; or
(2) default in the payment of the principal of, or premium, if any,
on, any debt securities of that series at its maturity or upon any
redemption; or
(3) default in the deposit of any sinking fund payment when and as
due pursuant to the terms of the debt securities of that series and the
indentures and such default shall continue for a period of 30 days; or
(4) default in the performance, or breach, of any covenant or
warranty in the indentures, other than a default in the performance, or
breach, of a covenant or warranty that is specifically dealt with
elsewhere under this "events of default" section, if the default or breach
continues for 60 days after the trustee or the holders of at least 25% in
principal amount, or principal amount at maturity, as applicable, deliver
a written "notice of default" to us specifying the default or breach and
requiring it to be remedied; or
(5) the entry of a decree or order by a court with appropriate
jurisdiction adjudging us bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjustment or
composition with regard to us under the Federal Bankruptcy Code or any
other applicable federal or state law, or appointing a receiver,
liquidator, assignee, trustee, sequestrator, or other similar official
with regard to us or any substantial part of our property, or ordering the
winding up or liquidation of our affairs, if such a decree or order
continues unstayed and in effect for a period of 60 consecutive days; or
9
<PAGE> 11
(6) our institution of proceedings to be adjudicated bankrupt or
insolvent, or our consent to the institution of bankruptcy or insolvency
proceedings against us, or our filing of a petition or answer or consent
seeking reorganization or relief under the Federal Bankruptcy Code or any
other applicable federal or state law, or our consent, to the filing of
any such petition or to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator, or other similar official regarding us or
of any substantial part of our property, or our making of an assignment
for the benefit of creditors; or
(7) any other event of default provided with respect to debt
securities of that series.
In each case, "default" means any event which is, or after notice or
passage of time or both would be, an event of default.
Unless we provide otherwise in the prospectus supplement relating to a
particular series of debt securities, if an event of default described in clause
(1), (2), (3), (4) or (7) above occurs and is continuing, then in every case the
trustee or the holders of not less than 25% in principal amount, or principal
amount at maturity, as applicable, of the outstanding debt securities of that
series may declare the principal amount or, if the debt securities of that
series are original issue discount securities, the portion of the principal
amount as may be specified in the terms of that series, of all of the debt
securities of that series to be due and payable immediately, by a notice in
writing to us, and to the trustee if given by holders, and upon any declaration
the principal amount or specified portion of the principal amount will become
immediately due and payable. If an event of default described in clause (5) or
(6) above occurs and is continuing, then the principal amount of all the debt
securities will automatically be immediately due and payable without any
declaration or other act on the part of the trustee or any holder of those debt
securities.
At any time after a declaration of acceleration with respect to debt
securities of any series or all series, as applicable, has been made, the
holders of a majority in principal amount, or principal at maturity, as
applicable, of the outstanding debt securities of that series, or of all series,
as the case may be, by written notice to us and the trustee, may rescind and
annul the declaration and its consequences if the rescission would not conflict
with any judgment or decree and if all existing events of default have been
cured or waived except nonpayment of principal or interest that has become due
solely because of acceleration. Such a rescission will not affect any subsequent
default or impair any right consequent to a subsequent rescission.
Except as otherwise provided in each indenture, or any supplement thereto,
the holders of not less than a majority in principal amount, or principal amount
at maturity, as applicable, of the outstanding debt securities of any series
may, on behalf of the holders of all the debt securities of such series, waive
any past default, described in clause (1), (2), (3), (4) or (7) of the first
paragraph of this section, or, in the case of a default described in clause (5)
or (6) of the first paragraph of this section, the holders of not less than a
majority in principal amount, or principal amount at maturity, as applicable, of
all outstanding debt securities may waive any such past default, and its
consequences, except a default:
- respect of the payment of the principal of, or premium, if any, on, or
interest on any debt security, or
- in respect of a covenant or provision which under the indentures cannot
be modified or amended without the consent of the holders of all or more
than a majority in principal amount, or principal amount at maturity, as
applicable, of the outstanding debt security of the affected series.
A default will cease to exist upon a waiver and any event of default
arising from that default will be deemed to have been cured for every purpose of
the indentures, but the waiver will not extend to any subsequent or other
default or event of default.
Except to enforce the right to receive payment of principal, premium, if
any, or interest on any debt security, no holder of any debt security of any
series will have any right to institute any proceeding, judicial or otherwise,
with respect to the indentures, or for the appointment of a receiver or trustee,
or for any other remedy thereunder, unless:
- that holder has previously given written notice to the trustee of a
continuing event of default with respect to the debt securities of that
series;
10
<PAGE> 12
- the holders of not less than 25% in principal amount, or principal
amount at maturity, as applicable, of the outstanding debt securities of
that series in the case of any event of default under clause (1), (2),
(3), (4) or (7) of the first paragraph of this section, or, in the case
of any event of default described in clause (5) or (6) of the first
paragraph of this section, the holders of not less than 25% in principal
amount, or principal amount at maturity, as applicable, of all
outstanding debt securities delivers a written request to the trustee to
institute proceedings in respect of the event of default in its own name
as trustee under each of the indentures;
- that holder or holders offer the trustee reasonable indemnity against
the costs, expenses and liabilities to be incurred in compliance with
the request to institute proceedings;
- the trustee fails to institute a proceeding for 60 days after receiving
the notice, request and offer of indemnity; and
- no direction inconsistent with such written request has been given to
the trustee during such 60-day period by the holders of at least a
majority in principal amount, or principal amount at maturity, as
applicable, of the outstanding debt securities of that series in the
case of any default under clause (1), (2), (3), (4) or (7) of the first
paragraph of this section, or, in the case of any event of default
described in clause (5) or (6) of the first paragraph of this section,
by the holders of at least a majority in principal amount, or principal
amount at maturity, as applicable, of all outstanding debt securities.
During the existence of an event of default, the trustee must exercise the
rights and powers vested in it under either indenture in good faith. Subject to
the provisions of the indentures relating to the duties of the trustee, in case
an event of default occurs and is continuing, the trustee under the indentures
is not under any obligation to exercise any of its rights or powers under the
indentures at the request or direction of any of the holders unless these
holders offer the trustee reasonable indemnity. Subject to provisions of the
indentures concerning the rights of the trustee, with respect to the debt
securities of any series, the holders of not less than a majority in principal
amount, or principal amount at maturity, as applicable, of the outstanding debt
securities of that series will have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the trustee, or
exercising any trust or power conferred on the trustee under the indentures.
Within 90 days after the occurrence of any default with respect to debt
securities of any series, the trustee will transmit notice of any default known
to it to the holders of the affected debt securities in the manner and to the
extent provided in Section 313(c) of the Trust Indenture Act, unless the default
is cured or waived; however, except in the case of a default in the payment of
the principal of, or premium, if any, on, or interest on any debt securities of
that series, or in the payment of any sinking fund installment with respect to
debt securities of that series, the trustee will be protected in withholding
that notice if and so long as the trustee in good faith determines that the
withholding of that notice is in the interest of the holders of debt securities
of that series.
We are required to deliver a brief certificate of our compliance with all
of the conditions and covenants under the indentures to the trustee within 120
days after the end of each fiscal year.
DEFEASANCE OR COVENANT DEFEASANCE
We may, at our option and at any time, terminate our obligations with
respect to the outstanding debt securities of any series, referred to as
"defeasance." Defeasance means that we will be deemed to have paid and
discharged the entire indebtedness represented by the outstanding debt
securities, except for the following provisions, which will survive until
otherwise terminated or discharged under the indentures:
- the rights of holders of the outstanding debt securities
- to receive, solely from the trust fund described in the indentures,
payments in respect of the principal of, and premium, if any, on, and
interest on those debt securities when those payments are due, and
11
<PAGE> 13
- to receive shares of common stock or other securities from us upon
conversion of any convertible debt securities issued thereunder;
- our obligations to issue temporary debt securities, register the
transfer or exchange of any debt securities, replace mutilated,
destroyed, lost or stolen debt securities, maintain an office or agency
for payments in respect of the debt securities and, if we act as our own
paying agent, hold in trust, money to be paid to the persons entitled to
payment, and with respect to "additional amounts," if any, on those debt
securities as contemplated in the indentures;
- the rights, powers, trusts, duties and immunities of the trustee under
the indentures; and
- the defeasance provisions of the indentures.
In addition, we may, at our option and at any time, elect to terminate our
obligations with respect to selected covenants that are set forth in the
indentures and any omission to comply with those obligations will not constitute
a default or an event of default with respect to the debt securities, referred
to as "covenant defeasance."
In order to exercise either defeasance or covenant defeasance:
- we must irrevocably deposit or cause to be deposited with the trustee,
in trust, for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of the
holders of the applicable debt securities,
- money, or
- Government Obligations that mature not later than one day before the
due date of any payment of principal, premium, if any, and interest,
under the applicable debt securities, or
- a combination of money and Government Obligations as described
immediately above,
- the money or Government Obligations, or both, must in any case, be
sufficient, in the opinion of a nationally recognized firm of
independent public accountants, to pay and discharge
- the principal of, and any premium and all installments of interest on,
the outstanding debt securities on the stated maturity date (or any
redemption date that we select, if applicable), and
- any mandatory sinking fund payments or analogous payments applicable
to the outstanding debt securities on the day on which those payments
are due and payable; however, we must deliver to the trustee
irrevocable instructions to apply the money or the proceeds of the
Government Obligations to the payments required to be made with
respect to those debt securities;
- the defeasance or covenant defeasance of the debt securities will not
result in a breach or violation of, or constitute a default under, the
indentures or any other material agreement or instrument to which we
are a party or by which we are bound;
- we must effect the defeasance or covenant defeasance of the debt
securities in compliance with any additional or substitute terms,
conditions or limitations set forth in the prospectus supplement
relating to a particular series of debt securities; and
- we must deliver an officers' certificate and an opinion of counsel to
the trustee, each stating that all conditions precedent under the
indentures to either defeasance or covenant defeasance, as the case
may be, have been satisfied.
"Government Obligations" means direct obligations, or certificates
representing an ownership interest in such obligations, of the United States,
including any agency or instrumentality of the United States, for the payment of
which the full faith and credit of the United States is pledged and which are
not callable or redeemable at the issuer's option.
Before we make a deposit to effect a defeasance or covenant defeasance of
the debt securities, we may give to the trustee, in accordance with the
redemption provisions in the indentures, a notice of our election to
12
<PAGE> 14
redeem all or any portion of the outstanding debt securities at a future date in
accordance with the terms of the debt securities of that series and the
redemption provisions of the indentures, which notice must be irrevocable. If we
deliver such an irrevocable redemption notice, it will be given effect in
applying the foregoing.
With respect to subordinated debt securities, money and securities held in
trust pursuant to the defeasance and covenant defeasance provisions of the
indentures, will not be subject to the subordination provisions of the
subordinated indenture.
SATISFACTION AND DISCHARGE
The indentures will, upon a written request or order signed by one of our
designated officers and delivered to the trustee, cease to be of further effect
with respect to any series of debt securities, except as to any surviving rights
of registration of transfer or exchange or conversion of debt securities of that
series expressly provided for, and the trustee will be required to execute
proper instruments acknowledging satisfaction and discharge of such indenture as
to that series when either:
- we have delivered to the trustee for cancellation all debt securities of
that series previously authenticated and delivered, other than:
- debt securities that have been destroyed, lost or stolen and which
have been replaced or paid, as provided in the indentures, and
- debt securities for which money sufficient to make all payment on the
debt securities has previously been deposited in trust with the
trustee or any paying agent or segregated and held in trust by us with
any remaining amounts to thereafter be repaid to us, as provided in
the indentures, or
- all debt securities, other than convertible debt securities, of the
series:
- have become due and payable, or
- will become due and payable at their stated maturity within one year,
or
- if redeemable at our option, are to be called for redemption within
one year under arrangements reasonably satisfactory to the trustee for
the giving of notice of redemption by the trustee in the name, and at
our expense; and
we irrevocably deposit or cause to be deposited with the trustee as
trust funds in trust an amount of money or Government Obligations
sufficient to pay and discharge the entire indebtedness on those debt
securities not previously delivered to the trustee for cancellation,
including all principal of and any premium and installments of interest
to the date of such deposit in the case of debt securities which have
become due and payable or to the stated maturity or redemption date of
the debt securities, as applicable.
In addition, in order to satisfy and discharge the securities, we will be
required to:
- pay or cause to be paid all other sums payable under the debt securities
by us; and
- deliver an officers' certificate and an opinion of counsel to the
trustee, each stating that all conditions precedent provided for
relating to the satisfaction and discharge of the indentures as to such
series have been satisfied.
AMENDMENTS AND WAIVERS
Under the indentures, we and the trustee may at any time and from time to
time, without the consent of any holder of debt securities, enter into one or
more supplemental indentures to:
- cure ambiguities, defects or inconsistencies, or to make any other
provisions with respect to questions or matters arising under the
indentures;
13
<PAGE> 15
- effect or maintain the qualification of the indentures under the Trust
Indenture Act;
- secure any debt securities;
- add covenants for the protection of the holders of debt securities;
- establish the forms or terms of debt securities of any series;
- make any other change that does not adversely affect in any material
respect the rights under such indenture of the holders of debt
securities thereunder;
- add a guarantee of our payment obligations under the indentures by a
subsidiary or other party;
- evidence the acceptance of appointment by a successor trustee;
- evidence the succession of another person to us and the assumption by
any such successor of our obligations in accordance with the indentures
and the debt securities; and
- evidence the release of any obligations of a co-obligor or guarantor in
connection with holding company reorganization.
Other amendments and modifications of the indentures or the debt securities may
be made by us and the trustee with the consent of the holders of not less than a
majority of the aggregate principal amount, or principal amount at maturity, as
applicable, of all of the then outstanding debt securities of the affected
series; however, no such modification or amendment may, without the consent of
the holder of each outstanding debt security affected thereby,
- change the stated maturity of the principal of, or any installment of
interest on, any debt security;
- reduce the principal amount or the rate of interest or any premium
payable upon the redemption of any debt security;
- change any obligation of us to pay any "additional amounts" contemplated
by each indenture (except as contemplated and permitted by certain
provisions of the indentures);
- reduce the accreted amount of an original issue discount security that
would be due and payable upon a declaration of acceleration of the
maturity of the debt securities under the indentures or the amount of
the debt securities provable in bankruptcy pursuant to the indentures;
- adversely affect, after the event giving rise to any right of repayment
occurs, any right of repayment at the option of any holder of any debt
security, or change any place of payment described in the indentures
where any debt security or any premium or the interest thereon is
payable;
- impair the right to institute suit for the enforcement of any payment on
or after the stated maturity of the debt securities, or, in the case of
redemption or repayment of the debt securities, on or after the
redemption date or repayment date, as applicable;
- adversely affect any right to convert any debt securities as may be
provided under the indentures; or
- reduce the percentage in principal amount, or principal amount at
maturity, as applicable, of the outstanding debt securities of any
series, the consent of whose holders is required for any such
supplemental indenture, for any waiver of compliance with provisions of
the indentures or defaults thereunder and their consequences provided
for in the indentures.
SENIOR DEBT
The debt securities that will be senior debt securities will be issued
under the senior debt indenture and will rank on an equal basis with all of our
other unsecured and unsubordinated debt.
14
<PAGE> 16
SUBORDINATED DEBT
The debt securities that will be subordinated debt securities will be
issued under the subordinated debt indenture and will be subordinate and junior
in right of payment, to the extent and in the manner set forth in the
subordinated debt indenture, to all of our "Senior Indebtedness." Unless we
provide otherwise in the prospectus supplement relating to a particular series
of debt securities, the subordinated debt indenture will define "Senior
Indebtedness" as obligations, or obligations guaranteed or assumed by us, for
borrowed money or evidenced by bonds, debentures, notes or other similar
instruments, and amendments, renewals, extensions, modifications and refundings
of any such indebtedness or obligations, other than nonrecourse obligations, the
subordinated debt securities or any other obligations specifically designated as
not constituting, or as being subordinate in right of payment to, Senior
Indebtedness.
In the event:
- of any insolvency or bankruptcy proceedings, or any receivership,
liquidation, reorganization or other similar proceedings in respect of
us or a substantial part of our property, or
- that a default occurs with respect to the payment of principal of, and
any premium or interest on, or other monetary amounts due and payable on
any Senior Indebtedness or
- that there occurs an event of default, other than a default in the
payment of principal, and any premium or interest, or other monetary
amounts due and payable, with respect to any Senior Indebtedness,
permitting the holder or holders of that Senior Indebtedness to
accelerate the maturity of that Senior Indebtedness, with notice or
lapse of time, or both, and such event of default continues beyond the
period of grace, if any, in respect of that default or event of default,
and the default or event of default is not cured or waived or ceases to
exist, or
- that the principal of and accrued interest on, or the accreted amount
of, the subordinated debt securities is declared due and payable as a
result of an event of default of the subordinated debt indenture and
that declaration is not rescinded and annulled as provided under the
subordinated debt indenture,
then the holders of all Senior Indebtedness will be entitled to receive
payment, in cash or cash equivalents, of the full amount unpaid on that
Senior Indebtedness first, or provision will be made for that payment in
money or money's worth, before the holders of any of the subordinated debt
securities are entitled to receive a payment on account of the principal
of, and any premium or interest on, the indebtedness evidenced by such
subordinated debt securities.
If this prospectus is being delivered in connection with a series of
subordinated debt securities, the accompanying prospectus supplement or the
information incorporated by reference will set forth the approximate amount of
Senior Indebtedness outstanding as of the end of the most recent fiscal quarter.
Moreover, that prospectus supplement will contain more specifically the
subordination provisions applicable to the particular series of subordinated
debt securities being offered.
GUARANTEES
The obligations of Finance under the debt securities will be fully and
unconditionally guaranteed by Metricom. Each guarantee of Finance's obligations
under senior debt securities will constitute part of the senior debt of the
Metricom and will rank pari passu with all other unsecured and unsubordinated
debt of Metricom. Each guarantee with respect to subordinated debt securities
will be subordinated to Metricom's senior indebtedness on the same basis as
provided above with respect to the subordination of the relevant subordinated
debt securities to senior indebtedness of Finance. Upon completion of a holding
company reorganization, the guarantee automatically, and without further notice
to or action by the holders of the debt securities, will be released entirely
and will cease to be of any force and effect.
15
<PAGE> 17
GOVERNING LAW
The indentures and the debt securities will be governed by and construed
in accordance with the laws of the State of New York. The indentures are subject
to the provisions of the Trust Indenture Act that are required to be a part
thereof and will, to the extent applicable, be governed by such provisions.
DESCRIPTION OF CAPITAL STOCK
GENERAL
Metricom has authorized capital stock of 150 million shares of common
stock, $0.001 par value per share, and 80 million shares of preferred stock,
$0.001 par value per share. As of October 29, 1999, there were 21,982,627 shares
of Metricom's common stock and 60 million shares of its preferred stock
outstanding.
Finance has authorized capital stock of 1,000 shares of common stock,
$0.001 par value. As of December 22, 1999, 1,000 shares were issued, outstanding
and held of record by Metricom.
Metricom's Restated Bylaws divide its board of directors into three
classes as nearly equal in size as possible with staggered three-year terms.
Finance's board of directors will be divided into three classes upon the
effectiveness of the registration, if any, of a class of equity securities under
the Securities Exchange Act of 1934, as amended. The classification of the board
of directors could delay or deter a third party from acquiring control of
Metricom or Finance.
Each of Metricom and Finance are currently subject to the provisions of
Section 203 of the Delaware General Corporation Law regulating corporate
takeovers. Section 203 prevents certain Delaware corporations, including those
whose securities are listed on the Nasdaq National Market, from engaging, under
certain circumstances, in a "business combination," which includes a merger or
sale of more than 10% of the corporation's assets, with any interested
stockholder for three years following the date that the stockholder became an
interested stockholder. An interested stockholder is a stockholder who acquired
15% or more of the corporation's outstanding voting stock without the prior
approval of the corporation's board of directors. At Metricom's annual meeting
of stockholders held on October 15, 1999, its stockholders elected not to be
governed by Section 203. The election will become effective 12 months after
adoption of the election. Finance's stockholder has made the same election,
which election is currently effective.
The following summaries of certain provisions of our common stock and
preferred stock do not purport to be complete and are subject to, and are
qualified in their entirely, by the provisions of Metricom's Certificate of
Incorporation Restated and Amended and Restated Bylaws and Finance's Certificate
of Incorporation, as amended, and Bylaws, which are incorporated by reference
into the registration statement of which this prospectus is a part.
COMMON STOCK
Subject to preferences that may apply to shares of preferred stock
outstanding at the time, the holders of outstanding shares of common stock are
entitled to receive dividends out of assets legally available for the payment of
dividends at the times and in the amounts that the board of directors may
determine from time to time. Except, with regard to Metricom, as discussed below
under the caption "Preferred Stock," each stockholder is entitled to one vote
for each share of common stock held on all matters submitted to a vote of
stockholders. Cumulative voting for the election of directors is not provided
for in Metricom's restated certificate or Finance's certificate, which means
that the holders of a majority of the shares voted can elect all of the
directors then standing for election (other than directors to be elected solely
by the holders of the series of preferred stock). The common stock is not
entitled to preemptive rights and is not subject to conversion or redemption.
Upon a liquidation, dissolution or winding-up, the assets legally available for
distribution to stockholders are distributable ratably among the holders of the
common stock and any participating preferred stock outstanding at that time
after payment of liquidation preferences, if any, on any outstanding preferred
stock and payment of other claims of creditors. Each outstanding share of common
stock is, and all shares of common stock to be outstanding upon completion of
this offering will be validly issued, fully paid and nonassessable.
16
<PAGE> 18
The transfer agent and registrar for Metricom's common stock is Boston
Equiserve.
PREFERRED STOCK
Metricom's Restated Certificate authorizes 80 million shares of preferred
stock, of which 36 million shares are designated Series A1 preferred stock, 36
million shares are designated Series A2 preferred stock and 8 million shares are
not currently designated. The material terms of the Series A1 and Series A2
preferred stock are summarized below. Metricom's board of directors has the
authority to issue the remaining undesignated shares of preferred stock in
additional series and to fix the rights, preferences, privileges and
restrictions of any new series, including dividend rights, dividend rates,
conversion rights, voting rights, terms of redemption, redemption prices,
liquidation preferences and the number of shares constituting any series or the
designation of such series, without further vote or action by our stockholders,
subject to rights of the holders of outstanding preferred stock. The preferred
stock may have the effect of delaying, deferring or preventing a change in our
control without further action by Metricom's stockholders and may adversely
affect the voting and other rights of the holders of Metricom's common stock,
including the loss of voting control of others. Finance's certificate of
incorporation does not currently authorize preferred stock.
SERIES A1 AND A2 PREFERRED STOCK OF METRICOM
Dividends. The holders of shares of each of the Series A1 preferred and
Series A2 preferred have the right to receive cumulative dividends payable, at
our option, in cash or additional shares of Series A1 preferred or Series A2
preferred, as the case may be, at the annual rate of 6.5% of the original issue
price of $10 per share, until November 15, 2002 after which date the right to
such cumulative dividends shall terminate, and holders of shares of each of the
Series A1 and Series A2 preferred stock shall be entitled to dividends only
when, as and if declared by the Board of Directors. Cumulative dividends payable
to the holders of Series A1 preferred stock will be prior and in preference to
any dividends payable to the holders of common stock and Series A2 preferred
stock. Cumulative dividends payable to the holders of Series A2 preferred stock
will be prior and in preference to the dividends payable to the holders of
common stock.
Voting Rights. For so long as more than 7.5 million shares of each of the
Series A1 preferred and Series A2 preferred are outstanding, the affirmative
vote of the holders of at least a majority of the outstanding shares of each of
the Series A1 and Series A2 preferred will be required to:
- amend any provision of our restated certificate that changes the rights
and preferences of that series so as to adversely affect the rights of
the Series A1 preferred or Series A2 preferred, as the case may be, in a
manner different from other classes or series of stock;
- issue any new class or series of stock ranking senior in liquidation
preference or dividends to the Series A1 preferred or Series A2
preferred, as the case may be;
- issue any debt securities convertible into Metricom's equity securities
at a price lower than $10 per share, subject to adjustment for any stock
dividend, split, combination or other similar event;
- redeem or repurchase, under specified circumstances, any series of stock
junior to the Series A1 preferred or Series A2 preferred, as the case
may be; or
- declare or pay any dividend on outstanding common stock, subject to
specified exceptions.
In addition, for so long as more than 7.5 million shares of either of the
Series A1 preferred or Series A2 preferred are outstanding, the holders of
shares of those series of preferred stock, voting as separate classes, will be
entitled to elect one member of Metricom's board of directors to represent each
series. Holders of outstanding shares of Series A1 preferred may waive this
right from time to time and instead designate an observer to attend meetings of
the board of directors.
17
<PAGE> 19
Liquidation Rights. If Metricom is liquidated, dissolved or wound up, the
holders of Series A1 preferred and holders of Series A2 preferred will be
entitled to be paid out of Metricom's assets, before any distribution to the
holders of common stock, an amount equal to the greater of the original issue
price plus accrued but unpaid dividends or the amount the holders would have
received if the shares had been converted to common stock. For this purpose,
"liquidation" includes:
- a consolidation, merger or other reorganization in which Metricom's
stockholders prior to the transaction own less than 50% of its voting
power after such transaction or other transaction or series of
transactions to which Metricom is a party in which over 50% of its
voting power is transferred; or
- a sale, lease or other disposition of all or substantially all of
Metricom's assets.
Redemption. On November 15, 2009, Metricom must redeem all outstanding
shares of Series A1 and Series A2 preferred. In the event of a change of control
or major acquisition by Metricom, each holder of Series A1 and Series A2
preferred will have the right to require Metricom to redeem all, but not less
than all, of the shares of preferred stock held by that holder. For purposes of
this provision, a "change of control" means an event by which any person or
group, other than Vulcan, MCI WorldCom and their respective affiliates:
- becomes a beneficial owner of more than 30% of Metricom's outstanding
equity securities, or
- acquires the right to elect at least 30% of the board of directors.
For purposes of this provision, a "major acquisition" means the
acquisition by Metricom of more than 50% of the outstanding equity securities or
all or substantially all of the assets of any entity, or Metricom's merger with
another entity in which Metricom is the surviving entity, in each case, for
equity consideration exceeding 25% of Metricom's outstanding equity securities.
Conversion. Holders of each of the Series A1 and Series A2 preferred have
the right to convert their shares into common stock, subject to the limitation
that Series A1 preferred shares do not become convertible until May 2002, at
which time 25% of the Series A1 preferred stock originally issued will become
convertible. Following each six-month period thereafter, an additional 25% of
the Series A1 preferred stock originally issued will become convertible. Each
share of Series A1 and Series A2 preferred is initially convertible into one
share of common stock. The conversion rates and prices for each of the Series A1
and Series A2 preferred will be adjusted in the event of any stock split or
combination, dividend payment or distribution on the common stock,
reclassification or other change to the common stock, or reorganization, merger
or sale of assets. Each of the Series A1 and Series A2 preferred will
automatically be converted into shares of common stock in the event that shares
of either series are transferred by the original purchaser to a person other
than Vulcan, MCI WorldCom or their respective affiliates. If the holders of the
Series A2 preferred stock exercise their right to convert their shares into
common stock, then upon conversion we must pay to those holders who convert all
accrued but unpaid dividends on the shares being converted. Dividends may not be
paid on Series A2 preferred stock until all dividends payable on Series A1
preferred stock are fully paid, or declared and funds set aside for payment.
Therefore, a conversion by holders of Series A2 preferred stock into common
stock will also require us to pay all accrued but unpaid dividends on the Series
A1 preferred stock and to declare and set aside funds for the then-current
dividend period.
Registration Rights. Under Metricom's Amended and Restated Registration
Rights Agreement, dated November 15, 1999, the holders of Metricom's currently
outstanding series of preferred stock are entitled to certain registration
rights with respect to the shares of common stock issuable upon conversion of
the preferred stock. Holders that, in the aggregate, hold at least 500,000
shares of registrable securities have the right to demand registration under the
Securities Act of their registrable securities the anticipated offering price of
which, net of underwriting discounts and commissions, would exceed $10,000,000.
Additionally, all holders of registrable securities may "piggyback" on primary
or secondary registered public offerings of Metricom's securities, but excluding
registration statements relating to employee benefit plans or with respect to
corporate reorganizations or other transactions under Rule 145 of the Securities
Act. All holders of registrable securities also have the right to request that
Metricom effect short-form registrations; however, Metricom is not required to
effect more than two registrations on Form S-3 in any 12-month period, unless
the
18
<PAGE> 20
registration is requested by Vulcan Ventures Incorporated or MCI WorldCom, Inc.
or certain of their affiliates, except if Metricom has effected one or more
registrations upon such holder's request within the preceding 12-month period.
PLAN OF DISTRIBUTION
We may sell the securities being offered by this prospectus through
agents, underwriters or dealers.
Agents designated by us from time to time may solicit offers to purchase
the securities offered by this prospectus. Any agent involved in the offer or
sale of those securities may be deemed to be an underwriter under the Securities
Act and we will name that agent and describe any commissions payable by us to
that agent in a prospectus supplement. Any agent appointed by us will be acting
on a reasonable efforts basis for the period of its appointment or, if indicated
in the applicable prospectus supplement, on a firm commitment basis. We may be
obligated under agreements with these agents to indemnify them against civil
liabilities, including liabilities under the Securities Act. These agents may
also engage in transactions with or perform services for us in the ordinary
course of business.
If we utilize any underwriters in any sale of the securities in respect of
which this prospectus is delivered, we will enter into an underwriting agreement
with those underwriters at the time of sale to them and the names of the
underwriters and the terms of the transaction will be set forth in the
prospectus supplement. That prospectus supplement will be used by the
underwriters to make resales of the securities in respect of which this
prospectus is delivered to the public. We may be obligated under the
underwriting agreements with these underwriters to indemnify them against civil
liabilities, including liabilities under the Securities Act. These underwriters
may also engage in transactions with or perform services for us in the ordinary
course of business.
If we utilize a dealer in any sale of the securities in respect of which
the prospectus is delivered, we will sell the securities to the dealer, as
principal. The dealer may then resell those securities to the public at varying
prices to be determined by the dealer at the time of resale. We may be obligated
under agreements with these dealers to indemnify them against civil liabilities,
including liabilities under the Securities Act. These dealers may also engage in
transactions with or perform services for us in the ordinary course of business.
If so indicated in the applicable prospectus supplement, we will authorize
agents, underwriters or dealers to solicit offers from purchasers to purchase
the securities from us at the public offering price set forth in the prospectus
supplement under delayed delivery contracts providing for payment and delivery
of those securities on a specified date in the future. These delayed delivery
contracts will be subject to only those conditions set forth in the prospectus
supplement, and we will set forth the commission payable for solicitation of
these offers in the prospectus supplement.
LEGAL MATTERS
Cooley Godward LLP, San Francisco, California will provide us with an
opinion as to the legality of the securities we are offering. Weil, Gotshal &
Manges LLP, New York, New York, will serve as counsel to underwriters, dealers
or agents purchasing any of the securities we are offering by this prospectus.
EXPERTS
The audited financial statements and schedules incorporated by reference
in this prospectus and elsewhere in the registration statement have been audited
by Arthur Andersen LLP, independent public accountants, as indicated in their
reports with respect thereto, and are included herein in reliance upon the
authority of said firm as experts in giving said reports.
19
<PAGE> 21
WHERE YOU CAN GET MORE INFORMATION
Metricom files annual, quarterly and current reports, proxy statements and
other information with the SEC. We have filed with the SEC a registration
statement on Form S-3 under the Securities Act. This prospectus does not contain
all of the information set forth in the registration statement and the exhibits
to the registration statement. For further information with respect to us and
the securities we are offering under this prospectus, we refer you to the
registration statement and the exhibits and schedules filed as a part of the
registration statement. You may read and copy the registration statement, as
well as Metricom's reports, proxy statements and other information at the SEC's
public reference rooms at Room 1024, 450 Fifth Street, N.W., Washington, D.C.
20549, as well as at the SEC's regional offices at 500 West Madison Street,
Suite 1400, Chicago, Illinois, 60661 and at Seven World Trade Center, New York,
New York 10048. You can request copies of these documents by writing to the SEC
and paying a fee for the copying cost. Please call the SEC at 1-800-SEC-0330 for
more information about the operation of the public reference rooms. Metricom's
SEC filings are also available at the SEC's web site at "http://www.sec.gov." In
addition, you can read and copy Metricom's SEC filings at the office of the
National Association of Securities Dealers, Inc at 1735 K Street, N.W.,
Washington, D.C. 20006.
The SEC allows us to "incorporate by reference" information that we file
with it, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this prospectus. This prospectus and the information that
we file later with the SEC may update and supersede the information incorporated
by reference. We incorporate by reference the documents listed below and any
future filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of
the Securities Exchange Act of 1934 prior to the termination of the offering of
all securities to which this prospectus relates:
- Annual Report on Form 10-K of Metricom for the year ended December 31,
1998, as amended;
- Quarterly Report on Form 10-Q of Metricom for the quarter ended March
31, 1999;
- Quarterly Report on Form 10-Q of Metricom for the quarter ended June 30,
1999;
- Quarterly Report on Form 10-Q of Metricom for the quarter ended
September 30, 1999;
- Current Report on Form 8-K of Metricom filed with the SEC on July 9,
1999, as amended; and
- The description of common stock of Metricom contained in our
registration statement on Form 8-A filed with the SEC on February 28,
1992.
You may request of copy of these filings at no cost, by writing or
telephoning us at the following address:
Corporate Secretary
Metricom, Inc.
980 University Avenue
Los Gatos, California 94030
(408) 399-8200
20
<PAGE> 22
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the estimated costs and expenses, other
than the underwriting discounts and commissions, payable by the registrant in
connection with the offering of the Securities being registered. All the amounts
shown are estimates, except for the registration fee.
<TABLE>
<S> <C>
SEC Registration Fee........................................ $333,600
*Accounting fees and expenses...............................
*Legal fees and expenses....................................
*Miscellaneous..............................................
--------
Total............................................. $
========
</TABLE>
- ---------------
* To be provided by amendment.
Metricom will pay all fees and expenses associated with filing this
registration statement.
ITEM 15. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
Section 145 of the Delaware General Corporation Law, or the DGCL,
authorizes a court to award or a corporation's board of directors to grant
indemnification to directors and officers in terms sufficiently broad to permit
such indemnification under certain circumstances for liabilities (including
reimbursement for expenses incurred) arising under the Securities Act.
Metricom's Restated Certificate of Incorporation and Restated Bylaws and
Finance's certificate of incorporation and Bylaws provide for mandatory
indemnification of our respective directors and permissive indemnification of
officers, employees and other agents to the maximum extent permitted by the
DGCL. Metricom has entered into indemnification agreements with its directors
and certain officers. The indemnification agreements provide the registrants'
directors with further indemnification to the maximum extent permitted by the
DGCL. We also have obtained directors and officers insurance to insure our
directors and officers against certain liabilities, including liabilities under
the securities laws.
The form of underwriting agreement filed as Exhibit 1.1 to the
registration statement provides for indemnification by the underwriters of the
registrants and their officers and directors for certain liabilities under the
Securities Act or otherwise.
II-1
<PAGE> 23
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
------- -----------------------
<C> <S>
1.1 Form of Underwriting Agreement.*
4.1 Restated Certificate of Incorporation of Metricom, Inc.**
4.2 Certificate of Incorporation, as amended, of Metricom
Finance, Inc.*
4.3 Bylaws of Metricom Finance, Inc. *
4.4 Form of Senior Debt Indenture to be entered into between
Metricom and Bank One Trust Company, N.A., as trustee.*
4.5 Form of Subordinated Debt Indenture to be entered into
between Metricom and Bank One Trust Company, N.A., as
trustee.*
5.1 Opinion of Cooley Godward LLP.*
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Cooley Godward LLP (included in Exhibit 5.1).*
24.1 Power of Attorney for Metricom, Inc.**
24.2 Power of Attorney for Metricom Finance, Inc. (included on
signature page for Metricom Finance, Inc.).
25.1 Statement of Eligibility and Qualification on Form T-1 of
Bank One Trust Company, N.A. to act as trustee under
indenture.*
</TABLE>
- ---------------
* To be filed by amendment or incorporated by reference to the extent
applicable in connection with an offering.
** Previously filed.
ITEM 17. UNDERTAKINGS.
The undersigned registrants undertake that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the registrants'
annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act
of 1934 that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers, and controlling persons of
the registrants pursuant to the provisions described in Item 15 or otherwise,
the registrants have 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 registrants 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, each of the registrants
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.
The undersigned registrants undertake to file an application for the
purpose of determining the eligibility of the trustee to act under subsection
(a) of Section 310 of the Trust Indenture Act in accordance with the rules and
regulations prescribed by the Commission under Section 305(b)(2) of the Act.
II-2
<PAGE> 24
The undersigned registrants further undertake that:
(1) 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 of 1933,
(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 a
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
a 20 percent change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
registration statement, and
(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)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Forms S-3, Form S-8 or Form
F-3, and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
with or furnished to the Commission by the registrant pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
II-3
<PAGE> 25
SIGNATURES
(METRICOM, INC.)
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-3 and has duly caused this
amendment to registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Los Gatos, State of
California, on December 23, 1999.
Metricom, Inc.
By: /s/ TIMOTHY A. DREISBACH
--------------------------------------
Timothy A. Dreisbach
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this amendment to registration statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <C> <S>
/s/ TIMOTHY A. DREISBACH President and Chief December 23, 1999
- ----------------------------------------------------- Executive Officer (Principal
Timothy A. Dreisbach Executive Officer) and
Director
/s/ JAMES E. WALL Chief Financial Officer December 23, 1999
- ----------------------------------------------------- (Principal Financial and
James E. Wall Accounting Officer)
* Director December 23, 1999
- -----------------------------------------------------
Robert S. Cline
* Director December 23, 1999
- -----------------------------------------------------
Ralph Derrickson
* Director December 23, 1999
- -----------------------------------------------------
Robert P. Dilworth
* Director December 23, 1999
- -----------------------------------------------------
Justin L. Jaschke
* Director December 23, 1999
- -----------------------------------------------------
David Moore
* Director December 23, 1999
- -----------------------------------------------------
William D. Savoy
*By: /s/ TIMOTHY A DREISBACH
---------------------------------------------------
Timothy A. Dreisbach
Attorney-in-Fact
</TABLE>
II-4
<PAGE> 26
SIGNATURES
(METRICOM FINANCE, INC.)
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-3 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 December 23,
1999.
Metricom Finance, Inc.
By: /s/ TIMOTHY A. DREISBACH
------------------------------------
Timothy A. Dreisbach
President and Chief Executive
Officer
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Timothy A. Dreisbach, Dale W. Marquart
and James E. Wall, 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 and registration
statements filed pursuant to Rule 462) 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, 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, as amended,
this registration statement has been signed below by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <C> <S>
/s/ TIMOTHY A. DREISBACH President and Chief December 23, 1999
- ----------------------------------------------------- Executive Officer (Principal
Timothy A. Dreisbach Executive Officer) and
Director
/s/ JAMES E. WALL Chief Financial Officer December 23, 1999
- ----------------------------------------------------- (Principal Financial and
James E. Wall Accounting Officer) and
Director
/s/ DALE W. MARQUART Director December 23, 1999
- -----------------------------------------------------
Dale W. Marquart
</TABLE>
II-5
<PAGE> 27
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
- ------- -----------------------
<S> <C>
1.1 Form of Underwriting Agreement.*
4.1 Restated Certificate of Incorporation of Metricom, Inc.**
4.2 Certificate of Incorporation, as amended, of Metricom
Finance, Inc.*
4.3 Bylaws of Metricom Finance, Inc.*
4.4 Form of Senior Debt Indenture to be entered into between
Metricom and Bank One Trust Company, N.A., as Trustee.*
4.5 Form of Subordinated Debt Indenture to be entered into
between Metricom and Bank One Trust Company, N.A., as
Trustee.*
5.1 Opinion of Cooley Godward LLP.*
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Cooley Godward LLP (included in Exhibit 5.1).*
24.1 Power of Attorney for Metricom, Inc.**
24.2 Power of Attorney for Metricom Finance, Inc. (included on
signature page for Metricom Finance, Inc.).
25.1 Statement of Eligibility and Qualification on Form T-1 of
Bank One Trust Company, N.A. to act as trustee under
indenture.*
</TABLE>
- -------------------------
* To be filed by amendment or incorporated by reference to the extent
applicable in connection with an offering.
** Previously filed.
<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 reports dated
February 1, 1999 (except with respect to the matter discussed in Note 12, as to
which the date is November 17, 1999) included in the Metricom, Inc.'s Form
10-K/A for the year ended December 31, 1998, and to all references to our Firm
included in this registration statement.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
San Jose, California
December 22, 1999
