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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 28, 2000
REGISTRATION NO.
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
METRICOM, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE
(STATE OF INCORPORATION)
77-0294597
(I.R.S. EMPLOYER IDENTIFICATION NO.)
980 UNIVERSITY AVENUE
LOS GATOS, CALIFORNIA 95030-2375
(408) 399-8200
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICE)
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:
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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
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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
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TITLE OF EACH CLASS OF SECURITIES PROPOSED MAXIMUM AMOUNT OF
TO BE REGISTERED OFFERING PRICE(1) REGISTRATION FEE(2)
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COMMON STOCK, $0.001 PAR VALUE PER SHARE(3)................. (4) (4)
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WARRANTS TO PURCHASE COMMON STOCK(5)........................ (4) (4)
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TOTAL.............................................. $500,000,000(6) $132,000
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(1) The proposed maximum aggregate offering price per class of security will be
determined from time to time by the registrant in connection with the
issuance by the registrant of the securities registered hereunder.
(2) Calculated pursuant to Rule 457(o) under the Securities Act.
(3) Subject to note (6) below, there is being registered hereunder an
indeterminate number of shares of common stock as may be sold from time to
time.
(4) Not required to be included in accordance with General Instruction II.D. of
Form S-3.
(5) Subject to note (6) below, there is being registered hereunder an
indeterminate amount and number of warrants to purchase common stock.
(6) 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 $500,000,000. The securities
registered hereunder may be sold separately or with other securities
registered hereunder or with debt securities offered and sold by Metricom,
Inc. and Metricom Finance, Inc. pursuant to previously filed registration
statements (Nos. 333-91359 and 333-91359-01).
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT 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.
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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 JANUARY 28, 2000
PROSPECTUS
$500,000,000
METRICOM, INC.
COMMON STOCK
WARRANTS TO PURCHASE COMMON STOCK
We may offer shares of common stock or warrants to purchase common stock
from time to time at prices and on terms to be determined by market conditions
at the time we make the offer. These securities may be offered and sold
concurrently with the offer and sale of debt securities by us and our wholly
owned subsidiary, Metricom Finance, Inc., pursuant to a separate prospectus. We
will provide the specific terms of the warrants and common stock 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.
Our common stock is traded on the Nasdaq National Market under the symbol
"MCOM." On January 27, 2000, the last reported sale price of the common stock on
the Nasdaq National Market was $103.50 per share.
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THE SECURITIES WE MAY OFFER INVOLVE A HIGH DEGREE OF RISK. SEE "RISK FACTORS" ON
PAGE 5.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY OTHER REGULATORY BODY 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.
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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 , 2000
RICHOCHET LOGO
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TABLE OF CONTENTS
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PAGE
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Prospectus Summary.................... 3
Risk Factors.......................... 5
Forward-Looking Information........... 5
Use of Proceeds....................... 5
Description of Capital Stock.......... 6
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Description of Warrants............... 9
Plan of Distribution.................. 9
Legal Matters......................... 10
Experts............................... 10
Where You Can Find More Information... 10
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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.
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PROSPECTUS SUMMARY
The following is a summary of our 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 Find
More Information." References to "Metricom" refer to Metricom, Inc. and
references to "Metricom Finance" refers to Metricom Finance, Inc., a wholly
owned subsidiary of Metricom. Unless the context requires otherwise, references
to "we," "us" or "our" refer to Metricom.
We are a leading provider of mobile wireless data access to corporate
networks and the Internet. We have designed our 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. Our service will also appeal to consumers
who desire high-speed mobile access to the Internet. Simply by connecting 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 our service areas, just as they would with a wired modem.
We were incorporated in California in December 1985 and reincorporated in
Delaware in April 1992. Our principal office is located at 980 University
Avenue, Los Gatos, California 95030-2375. Our telephone number at that location
is (408) 399-8200, and our 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.
THE SECURITIES WE MAY OFFER
We may offer shares of our common stock or warrants to purchase shares of
our common stock, 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:
- aggregate offering price;
- rates and times of payment of dividends, if any;
- voting or other rights, if any;
- in the case of a warrant, procedures and limitations relating to the
exercise of the warrant, including its termination date, exercise price,
duration and anti-dilution provisions;
- in the case of a warrant offered under this prospectus concurrently with
the offer of a debt security issued by us or Metricom Finance pursuant
to a separate prospectus, if applicable, the date on and after which the
warrant may be transferred separately from the debt security, and
- important federal income tax considerations.
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.
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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.
We may also deliver this prospectus in connection with the sale of any
shares of common stock issued upon the exercise of any warrants to purchase
common stock we may issue or sell pursuant to the registration statement of
which this prospectus is a part.
Common Stock. We may offer our 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.
Warrants. We may offer warrants to purchase shares of common stock from
time to time. Unless provided otherwise in the relevant prospectus supplement,
holders of warrants will not generally be entitled to receive dividends paid on
the common stock. Holders of warrants will not be stockholders. We do not intend
to list the warrants on any securities exchange or to apply for their inclusion
for quotation on the Nasdaq Stock Market. If we offer warrants pursuant to this
prospectus concurrently with the offer of debt securities of us or Metricom
Finance pursuant to a separate prospectus, we may provide as a term of the
warrants that the warrants may not be transferred separately from the debt
securities for a period of time as specified in the applicable prospectus
supplement.
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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 to the particular types of securities that we are offering under
that prospectus 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 us and our 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 our service. All forward-looking statements involve risks and
uncertainties. Our 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 our annual
report on Form 10-K, as amended, for the year ended December 31, 1998 and our
current report on Form 8-K filed with the SEC on July 9, 1999, as subsequently
amended, 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.
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 our network and for other general corporate purposes,
principally working capital, funding our operating losses, capital expenditures
and operating expenses. 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.
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DESCRIPTION OF CAPITAL STOCK
GENERAL
We have 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 December 31, 1999, there were 24,344,697 shares of our
common stock and 60 million shares of our preferred stock outstanding.
Our restated bylaws divide our board of directors into three classes as
nearly equal in size as possible with staggered three-year terms. The
classification of the board of directors could delay or deter a third party from
acquiring control of us.
We 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 our annual meeting of stockholders held on October 15, 1999,
our stockholders elected not to be governed by Section 203. The election will
become effective 12 months after adoption of the election.
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 our restated certificate of
incorporation and amended and restated 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 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 our restated
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.
The transfer agent and registrar for our common stock is Boston Equiserve.
PREFERRED STOCK
Our 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. Our 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, deterring or preventing a change in our
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control without further action by our stockholders and may adversely affect the
voting and other rights of the holders of our common stock, including the loss
of voting control of others.
SERIES A1 AND A2 PREFERRED STOCK
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 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 our 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.
Liquidation Rights. If we are 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 our 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 our
stockholders prior to the transaction own less than 50% of our voting
power after such transaction or other transaction or series of
transactions to which we are party in which over 50% of our voting power
is transferred; or
- a sale, lease or other disposition of all or substantially all of our
assets.
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Redemption. On November 15, 2009, we must redeem all outstanding shares of
Series A1 and Series A2 preferred. In the event of a change of control or major
acquisition by us, each holder of Series A1 and Series A2 preferred will have
the right to require us 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
Ventures Incorporated, MCI WorldCom, Inc. and their respective affiliates:
- becomes a beneficial owner of more than 30% of our outstanding equity
securities, or
- acquires the right to elect at least 30% of our board of directors.
For purposes of this provision, a "major acquisition" means the
acquisition by us of more than 50% of the outstanding equity securities or all
or substantially all of the assets of any entity, or our merger with another
entity in which we are the surviving entity, in each case, for equity
consideration exceeding 25% of our 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 our Amended and Restated Registration Rights
Agreement, dated November 15, 1999, the holders of 60,000,000 shares of our
currently outstanding series of redeemable convertible preferred stock are
entitled to certain registration rights with respect to the shares of common
stock issuable upon conversion of the preferred stock. Subject to certain
exceptions, including our right to defer a demand registration under specified
conditions, holders that, in the aggregate, hold at least 500,000 shares of
registrable securities have the right to require that we use our best efforts to
register under the Securities Act their registrable securities, the anticipated
offering price of which, net of underwriting discounts and commissions, would
exceed $10,000,000. Additionally, in the event that we register any of our
common stock, either for our own account or for the account of any other
stockholder, we are required to notify holders of registrable securities and,
subject to certain limitations, to include in that registration the registrable
securities of holders requesting registration. Registrable securities need not
be included in registration statements relating to employee benefit plans or
with respect to corporate reorganizations or other transactions under Rule 145
of the Securities Act. We are also required, subject to certain limitations, to
give notice of and effect certain short-term registrations upon request of
holders of registrable securities. We are not required to effect more than two
registrations on Form S-3 in any 12-month period unless the registration is
requested by Vulcan Ventures or MCI WorldCom or certain of their affiliates;
however we are not required to effect this registration if it has effected one
or more registrations upon one of these holders' requests within the preceding
12-month period.
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DESCRIPTION OF WARRANTS
GENERAL
We may issue warrants to purchase shares of our common stock. We may issue
these warrants independently or together with one or more series of debt
securities or shares of common stock offered and sold by us and Metricom Finance
pursuant to a separate prospectus. These warrants may be attached to those debt
securities or shares of common stock or may be issued separately from those
securities. We will issue each series of warrants under a separate warrant
agreement entered into with Boston Equiserve or another bank or trust company,
as warrant agent, all as set forth in the applicable prospectus supplement. Any
warrant agent will act solely as our agent and will not assume any obligation or
relationship of agency or trust for or with any holders of warrants or
beneficial owners of warrants. The following is a summary of the material
provisions of the warrant agreement and warrants; however, we urge you to review
the forms of warrant agreement and warrants, which we have filed as exhibits to
the registration statement of which this prospectus is a part.
TERMS OF THE WARRANTS
The prospectus supplement relating to the particular issue of warrants
will set forth the terms of those warrants, including, where applicable, the
following:
- the number of shares of common stock purchasable upon exercise of the
warrants and the exercise price per share;
- the date on which the right to exercise the warrants will commence and
the date on which the right to exercise the warrants will expire;
- any material U.S. federal income taxes applicable to the warrants;
- procedures and limitations relating to the exercise of the warrants;
- the other terms of the warrants, including whether they will be issued in
registered or global form; and
- in the case of a warrant offered under this prospectus concurrently with
the offer of a debt security issued by us or Metricom Finance pursuant to
a separate prospectus, if applicable, the date on and after which the
warrant may not be transferred separately from the debt security.
Each warrant will entitle the holder to purchase a number of shares of
common stock at the exercise price specified in, or calculable from, the
applicable prospectus supplement. The exercise price of the warrants may be
subject to adjustment upon the occurrence of events specified in the applicable
prospectus supplement. After the close of business on the last day on which a
holder may exercise any warrant, unexercised warrants will become void. The
applicable prospectus supplement will describe the place or places where, and
the manner in which, holders may exercise warrants.
WARRANTHOLDERS
Unless otherwise specified in the applicable prospectus supplement, prior
to the exercise of any warrants, holders of warrants will not have any rights of
holders of common stock, including the right to receive payments of dividends,
if any. Moreover, prior to the exercise of the warrants, holders of warrants
will not have any right to vote on matters submitted to a vote of common
stockholders.
PLAN OF DISTRIBUTION
We may sell the securities being offered by this prospectus directly or
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
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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.
If we sell any warrants pursuant to this prospectus and an applicable
prospectus supplement, we may deliver the prospectus in connection with the sale
of our common stock upon the exercise of the applicable warrants.
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.
Attorneys with Cooley Godward LLP own an aggregate of 1,675 shares of our common
stock.
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.
WHERE YOU CAN FIND MORE INFORMATION
We file 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
10
<PAGE> 12
registration statement. You may read and copy the registration statement, as
well as our 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. Our SEC
filings are also available at the SEC's web site at "http://www.sec.gov." In
addition, you can read and copy our 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 for the year ended December 31, 1998, as
amended;
- Quarterly Report on Form 10-Q for the quarter ended March 31, 1999;
- Quarterly Report on Form 10-Q for the quarter ended June 30, 1999;
- Quarterly Report on Form 10-Q for the quarter ended September 30, 1999;
- Current Report on Form 8-K filed with the SEC on July 9, 1999, as
subsequently amended;
- Current Report on Form 8-K filed with the SEC on January 28, 2000; and
- The description of our common stock 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
11
<PAGE> 13
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........................................ $132,000
Accounting fees and expenses................................ 20,000
Legal fees and expenses..................................... 50,000
Miscellaneous............................................... 48,000
--------
Total............................................. $250,000
========
</TABLE>
We 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. Our
Restated Bylaws provide for mandatory indemnification of our directors and
executive officers and permissive indemnification of other officers, employees
and other agents to the maximum extent permitted by the DGCL. We have entered
into indemnification agreements with our directors and certain officers. The
indemnification agreements provide our 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
registrant and its officers and directors for certain liabilities under the
Securities Act or otherwise.
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 Form of Warrant Agreement, including form of warrant
certificate.**
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 (included in the signature page).*
</TABLE>
- ---------------
* Filed herewith.
** To be filed by amendment or incorporated by reference from reports filed
under the Securities and Exchange Act of 1934.
*** Filed as Exhibit 4.1 to the Registration Statements filed by Metricom and
Metricom Finance on Form S-3, as amended (Nos. 333-91359 and 333-91359-01)
and incorporated herein by reference.
II-1
<PAGE> 14
ITEM 17. UNDERTAKINGS.
The undersigned registrant undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the registrant's
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 registrant pursuant to the provisions described in Item 15 or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit, or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
The undersigned registrant further undertakes 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 (1)(i) and (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-2
<PAGE> 15
SIGNATURES
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 January 28,
2000.
Metricom, 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, as 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 January 28, 2000
- ----------------------------------------------------- Executive Officer (Principal
Timothy A. Dreisbach Executive Officer) and
Director
/s/ JAMES E. WALL Chief Financial Officer January 28, 2000
- ----------------------------------------------------- (Principal Financial and
James E. Wall Accounting Officer)
/s/ ROBERT S. CLINE Director January 28, 2000
- -----------------------------------------------------
Robert S. Cline
/s/ RALPH DERRICKSON Director January 28, 2000
- -----------------------------------------------------
Ralph Derrickson
/s/ ROBERT P. DILWORTH Director January 28, 2000
- -----------------------------------------------------
Robert P. Dilworth
/s/ JUSTIN L. JASCHKE Director January 28, 2000
- -----------------------------------------------------
Justin L. Jaschke
</TABLE>
II-3
<PAGE> 16
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <C> <S>
/s/ DAVID MOORE Director January 28, 2000
- -----------------------------------------------------
David Moore
/s/ WILLIAM D. SAVOY Director January 28, 2000
- -----------------------------------------------------
William D. Savoy
</TABLE>
II-4
<PAGE> 17
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.***
4.3 Form of Warrant Agreement, including form of warrant
certificate.**
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 (included in the signature page).*
</TABLE>
- -------------------------
* Filed herewith.
** To be filed by amendment or incorporated by reference from reports filed
under the Securities and Exchange Act of 1934.
*** Filed as Exhibit 4.1 to the Registration Statements filed by Metricom and
Metricom Finance on Form S-3, as amended (Nos. 333-91359 and 333-91359-01)
and incorporated herein by reference.
<PAGE> 1
EXHIBIT 5.1
January 28, 2000
Metricom, Inc.
980 University Avenue
Los Gatos, CA 95030-2375
Ladies and Gentlemen:
We have acted as counsel to Metricom, Inc., a Delaware corporation ("Metricom"),
in connection with the registration under the Securities Act of 1933, as amended
(the "Securities Act"), on Form S-3 (file no. ________) of (i) shares of common
stock, par value $0.001, of Metricom (the "Common Stock") and (ii) warrants to
purchase such common stock (the "Warrants"), to be offered and sold by Metricom
from time to time pursuant to Rule 415 of the General Rules and Regulations
promulgated under the Securities Act (the "Securities Act Rules"), with
aggregate gross proceeds of up to $500,000,000, in each case pursuant to terms
and conditions to be designated by Metricom at the time of offering. The Common
Stock, the Warrants and the shares of common stock into which the Warrants (the
"Warrant Stock") may be exercised are collectively referred to as the
"Securities."
In connection with this opinion, we have examined and relied upon the originals,
or copies certified to our satisfaction, of such records, documents,
certificates, opinions, memoranda and other instruments as in our judgment are
necessary or appropriate to enable us to render the opinion expressed below. As
to certain factual matters, we have relied upon certificates of the officers of
Metricom and have not sought to independently verify such matters.
In rendering this opinion, we have assumed: the genuineness and authenticity of
all signatures on original documents; the authenticity of all documents
submitted to us as originals; the conformity to originals of all documents
submitted to us as copies; the accuracy, completeness and authenticity of
certificates of public officials; and the due authorization, execution and
delivery of all documents where authorization, execution and delivery are
prerequisites to the effectiveness of such documents.
In rendering this opinion, we have also assumed that, prior to any offering and
sale of Securities, the Board of Directors (or a special committee thereof
authorized to act on its behalf) of Metricom will duly authorize the terms of
and the prices at which the Common Stock and the Warrants are to be issued and
sold, and upon exercise of the Warrants, the shares of Warrant Stock that are
to be issued and sold.
We express no opinion herein concerning any laws other than the federal laws of
the United States, the laws of the State of California and the Delaware General
Corporation Law, as well as applicable provisions of the Constitution of the
State of Delaware and applicable case law. We express no opinion as to whether
the laws of any jurisdiction other than those identified above are applicable to
the subject matter hereof. We are not rendering any opinion as to compliance
with any antifraud law, rule or regulation relating to securities or to the sale
or issuance thereof.
On the basis of the foregoing and in reliance thereon, and subject to the
qualifications herein stated, we are of the opinion that:
1.
<PAGE> 2
With respect to any offering of the Securities, when (i) the
Registration Statement, as finally amended (including all necessary
post-effective amendments), has become effective; (ii) an appropriate Prospectus
Supplement with respect to the Securities has been prepared, delivered and filed
in compliance with the Securities Act and the applicable Securities Act Rules
thereunder; (iii) if the Securities are sold pursuant to a purchase agreement or
underwriting agreement with respect to the Securities, such purchase agreement
or underwriting agreement has been duly authorized, executed and delivered by
Metricom and the other parties thereto and will be valid and binding agreements
of the Company, except as enforcement may be limited by applicable bankruptcy,
insolvency, reorganization, arrangement, moratorium or other similar laws
affecting creditors rights, and subject to general equity principles and
limitations on availability of equitable relief, including specific performance;
(iv) the Board of Directors, including any appropriate committee appointed
thereby, and appropriate officers of Metricom have taken all necessary corporate
action to approve the issuance and terms of the Securities and related matters;
(v) if the Securities are to be sold in connection with debt securities, such
debt securities have been duly authorized, executed and delivered by Metricom
and other parties thereto and sold pursuant to a valid and effective
registration statement ; and (vi) the terms of the Securities and of their
issuance and sale have been duly established in conformity with the operative
certificate of incorporation and by-laws of Metricom so as not to violate any
applicable law, the operative certificate of incorporation or by-laws of
Metricom or result in a default under or breach of any agreement or instrument
binding upon Metricom and so as to comply with any requirement or restriction
imposed by any court or governmental body having jurisdiction over Metricom, and
the Common Stock, when issued and sold, and the Warrant Stock, when issued and
sold upon exercise of the Warrants, will be duly authorized, validly issued,
fully paid and nonassessable, assuming that a sufficient number of shares of
common stock are authorized or reserved and available for issuance and that the
consideration for the issuance and sale of such shares of Common Stock and
Warrant Stock is not less than the par value of the common stock.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and the reference to this firm under the caption "Legal
Matters" in the Prospectus forming a part of the Registration Statement.
Sincerely,
Cooley Godward LLP
/s/ KENNETH L. GUERNSEY
Kenneth L. Guernsey
2.
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our report dated
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 Company's Form 10-K for
the year ended December 31, 1998, as amended by Form 10-K/A, and all references
to our Firm included in this registration statement.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
San Jose, California
January 27, 2000
