<PAGE> 1
As filed with the Securities and Exchange Commission on March 17, 2000
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
METRICOM, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 77-0294597
(State of Incorporation) (I.R.S. Employer Identification No.)
980 UNIVERSITY AVENUE
LOS GATOS, CALIFORNIA 95030-2375
(Address of principal executive offices)
NONSTATUTORY STOCK OPTION (NON-PLAN)
(Full title of the plans)
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:
KENNETH L. GUERNSEY, ESQ.
CYDNEY S. POSNER, ESQ.
COOLEY GODWARD LLP
ONE MARITIME PLAZA, 20TH FLOOR
SAN FRANCISCO, CA 94111
----------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
========================================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities Offering Aggregate Amount of
to be Registered Amount to be Registered Price per Share (1) Offering Price (1) Registration Fee
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Shares of Common Stock, 511,457 $10.375 $5,306,366.38 $1,400.88
par value $0.001 per share
========================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(h). The price per share and
aggregate offering price are based upon the price at which the option
may be exercised.
<PAGE> 2
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Metricom, Inc. (the "Company") with the
Securities and Exchange Commission are incorporated by reference into this
Registration Statement:
(a) The Company's latest annual report on Form 10-K filed pursuant to
Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), or either (1) the Company's latest prospectus filed pursuant to
Rule 424(b) under the Securities Act of 1933, as amended (the "Act"), that
contains audited financial statements for the Company's latest fiscal year for
which such statements have been filed, or (2) the Company's effective
registration statement on Form 10 or 20-F filed under the Exchange Act
containing audited financial statements for the Company's latest fiscal year.
(b) All other reports filed pursuant to Sections 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the annual reports, the
prospectus or the registration statement referred to in (a) above.
(c) The description of the Company's Common Stock which is contained in
a registration statement filed under the Exchange Act, including any amendment
or report filed for the purpose of updating such description.
All reports and other documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference herein and to be a part of this
registration statement from the date of the filing of such reports and
documents.
DESCRIPTION OF SECURITIES
Not applicable.
INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Section 145 of the Delaware General Corporation Law the Company
has broad powers to indemnify its directors and officers against liabilities
they may incur in such capacities, including liabilities under the Securities
Act. The Company's By-laws require the Company to indemnify its directors and
executive officers, and permit the Company to indemnify its other officers,
employees and other agents, to the extent permitted by Delaware law. Under the
Company's By-laws, indemnified parties are entitled to indemnification for
negligence, gross negligence and otherwise to the fullest extent permitted by
law. The By-laws also require the Company to advance litigation expenses in the
case of stockholder derivative actions or other actions, against an undertaking
by the indemnified party to repay such advances if it is ultimately determined
that the indemnified party is not entitled to indemnification.
The Company has entered into indemnity agreements with each of its
directors and executive officers. Such indemnity agreements contain provisions
which are in some respects broader than the specific indemnification provisions
contained in Delaware law.
In addition, the Company's Restated Certificate of Incorporation
("Restated Certificate") provides that, to the fullest extent permitted by
Delaware law, the Company's directors will not be liable for monetary damages
for breach of the directors' fiduciary duty of care to the Company and its
stockholders. This provision in the Restated Certificate does not eliminate the
duty of care and, in appropriate circumstances, equitable remedies such as an
injunction or other forms of non-monetary relief would remain available under
Delaware law. In addition, each
2
<PAGE> 3
director will continue to be subject to liability for breach of the director's
duty of loyalty to the Company, for acts or omissions not in good faith or that
involve intentional misconduct or a knowing violation of law, for any
transaction from which the director derived an improper personal benefit and for
improper payment of dividends or unlawful stock repurchases or redemptions. This
provision also does not affect a director's responsibilities under any other
laws, such as the federal securities laws or state or federal environmental
laws.
3
<PAGE> 4
EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
CONSULTANTS AND ADVISORS
Not Applicable.
EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
<S> <C>
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Cooley Godward LLP. Reference is made to Exhibit 5.1.
24.1 Power of Attorney. Reference is made to page 5 of this Registration Statement.
99.1 Nonstatutory Stock Option (Non-Plan)
</TABLE>
4
<PAGE> 5
UNDERTAKINGS
1. The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
Provided, however, that paragraphs (a)(i) and (a)(ii) do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the issuer pursuant to
section 13 or section 15(d) of the Exchange Act that are incorporated by
reference herein.
(b) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
2. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to section 15(d) of the Exchange
Act) that is incorporated by reference in the Registration Statement
shall be deemed to be a new registration statement relating to the
securities offered herein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
3. Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other
than the payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion
of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such
issue.
5
<PAGE> 6
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-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Los Gatos, State of California, on March 15,
2000.
METRICOM, INC.
By: /s/ James E. Wall
--------------------------------------
James E. Wall
Title: Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Timothy A. Dreisbach and James E. Wall,
and each or any one of them, his or her true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for him or her and in
his or her name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration Statement,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be done
in connection therewith, as fully to all intents and purposes as he or she might
or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their or his or her substitutes
or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ Timothy A. Dreisbach President, Chief Executive March 15, 2000
- -------------------------------------------- Officer and Director (Principal
(Timothy A. Dreisbach) Executive Officer)
/s/ James E. Wall Chief Financial Officer March 15, 2000
- -------------------------------------------- (Principal Financial and
(James E. Wall) Accounting Officer)
</TABLE>
6
<PAGE> 7
<TABLE>
<CAPTION>
<S> <C> <C>
Director March 15, 2000
/s/ Robert S. Cline
- ------------------------------------
(Robert S. Cline)
/s/ Ralph Derrickson Director March 15, 2000
- ------------------------------------
(Ralph Derrickson)
/s/ Robert P. Dilworth Director March 15, 2000
- ------------------------------------
(Robert P. Dilworth)
/s/ Justin L. Jaschke Director March 15, 2000
- ------------------------------------
(Justin L. Jaschke)
/s/ David M. Moore Director March 15, 2000
- ------------------------------------
(David M. Moore)
/s/ William D. Savoy Director March 15, 2000
- ------------------------------------
(William D. Savoy)
</TABLE>
7
<PAGE> 8
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
<S> <C>
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Cooley Godward LLP. Reference is made to Exhibit 5.1.
24.1 Power of Attorney. Reference is made to the signature page
to this Registration Statement.
99.1 Nonstatutory Stock Option (Non-Plan)
</TABLE>
8
<PAGE> 1
EXHIBIT 5.1
March 15, 2000
Metricom, Inc.
980 University Avenue
Los Gatos, CA 95030
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by Metricom, Inc. (the "Company") of a Registration Statement on
Form S-8 (the "Registration Statement") with the Securities and Exchange
Commission covering the offering of up to 511,457 shares of the Company's Common
Stock, par value $0.001 per share, (the "Shares") pursuant to a nonstatutory
stock option (the "Option") granted outside of any of the Company's option
plans.
In connection with this opinion, we have examined the Registration Statement and
related Prospectus, your Certificate of Incorporation and By-laws, each as
amended, and such other documents, records, certificates, memoranda and other
instruments as we deem necessary as a basis for this opinion. We have assumed
the genuineness and authenticity of all documents submitted to us as originals,
the conformity to originals of all documents submitted to us as copies thereof,
and the due execution and delivery of all documents where due execution and
delivery are a prerequisite to the effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the Shares, when sold and issued in accordance with the Option, the
Registration Statement and related Prospectus, will be validly issued, fully
paid, and nonassessable (except as to shares issued pursuant to certain deferred
payment arrangements, which will be fully paid and nonassessable when such
deferred payments are made in full).
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
Cooley Godward LLP
By: /s/ Kenneth L. Guernsey
------------------------------------
Kenneth L. Guernsey
<PAGE> 1
EXHIBIT 23.1
CONSENT OF ARTHUR ANDERSEN LLP
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. 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
- --------------------------------
San Jose, California
March 15, 2000
<PAGE> 1
EXHIBIT 99.1
METRICOM, INC.
NONSTATUTORY STOCK OPTION
(NON-PLAN)
TIMOTHY A. DREISBACH, Optionee:
METRICOM, INC. (the "Company"), has granted to you, the optionee named
above, a nonstatutory stock option to purchase shares of the common stock of the
Company ("Common Stock").
The details of your option are as follows:
1. TOTAL NUMBER OF SHARES SUBJECT TO THIS OPTION. The total number of
shares of Common Stock subject to this option is five hundred eleven thousand
four hundred fifty-seven (511,457).
2. VESTING.
(a) NORMAL VESTING. Subject to the limitations contained herein,
131,416 of the total number of shares granted hereunder shall vest on May 8,
1999, and thereafter 10,951.33 of the remaining number of shares shall vest on
the 8th of each month for the remainder of calendar year 1999; 10,655.33 of the
remaining shares shall vest on the 8th of each month during calendar years 2000
and 2001; and 9,530.73 of the remaining shares shall vest on the 8th of each
month during calendar year 2,002 until all of the shares are fully vested;
provided however, that during the entire period prior to each vesting date, you
have continuously served as an employee or director of or consultant to the
Company, whereupon the option shall become fully exercisable with respect to
that portion of the shares represented by that installment.
(b) ACCELERATED VESTING. The vesting of the shares provided for
in subsection 2(a) shall accelerate as follows:
(i) acceleration of vesting of 100% of the unvested shares
following a Change in Control if, within 90 days prior to or 180 days following
such Change in Control, (A) your employment is terminated by the Company (or its
successor) for any reason other than for Cause or (B) you terminate your
employment with the Company (or its successor) for Good Reason; and
(ii) acceleration of vesting of 127,862 shares if, within 180
days following the Effective Date of your employment with the Company (as
indicated in your Employment Agreement), (A) your employment is terminated by
the Company for any reason other than for Cause or (B) you terminate your
employment with the Company for Good Reason; provided, however, that if such
termination of employment occurs within the period 181 days
<PAGE> 2
through 365 days following the Effective Date of your employment with the
Company, then the acceleration of vesting of such shares shall be equal to
127,862 multiplied by a fraction, the numerator of which is the number of days
you have been employed with the Company and the denominator of which is 365.
3. EXERCISE PRICE. The exercise price of this option is $10.375 per
share, being not less than the fair market value of the Common Stock on the date
of grant of this option.
4. METHOD OF PAYMENT. Payment of the exercise price is due in full upon
exercise of all or any part of your option. You may elect to make payment of the
exercise price by one or more of the following:
(a) Payment of the exercise price per share in cash (including
check) at the time of exercise;
(b) In the Company's sole discretion at the time your option is
exercised and provided that at the time of exercise the Common Stock is publicly
traded and quoted regularly in The Wall Street Journal, pursuant to a program
developed under Regulation T as promulgated by the Federal Reserve Board which,
prior to the issuance of Common Stock, results in either the receipt of cash (or
check) by the Company or the receipt of irrevocable instructions to pay the
aggregate exercise price to the Company from the sales proceeds; and
(c) Provided that at the time of exercise the Common Stock is
publicly traded and quoted regularly in The Wall Street Journal, by delivery of
already-owned shares of Common Stock, held for the period required to avoid a
charge to the Company's reported earnings (generally six months) or were not
acquired, directly or indirectly from the Company, owned free and clear of any
liens, claims, encumbrances or security interests, and valued at its Fair Market
Value on the date of exercise. "Delivery" for these purposes, in the sole
discretion of the Company at the time your option is exercised, shall include
delivery to the Company of your attestation of ownership of such shares of
Common Stock in a form approved by the Company. Notwithstanding the foregoing,
your option may not be exercised by tender to the Company of Common Stock to the
extent such tender would constitute a violation of the provisions of any law,
regulation or agreement restricting the redemption of the Company's stock.
5. INTERPRETATION OF THE OPTION TERMS. To the extent not inconsistent
with the terms hereof, the Company shall interpret the terms not explicitly
defined in this option in accordance with its interpretation of provisions of
its 1997 Equity Incentive Plan and Sections 5 and 6 of your Employment
Agreement, as applicable.
6. WHOLE SHARES. Your option may only be exercised for whole shares.
7. SECURITIES LAW COMPLIANCE. Notwithstanding anything to the contrary
contained herein, your option may not be exercised unless the shares issuable
upon exercise of your option are then registered under the Securities Act or, if
such shares are not then so registered, the Company has determined that such
exercise and issuance would be exempt from the registration requirements of the
Securities Act. The exercise of your option must also
<PAGE> 3
comply with other applicable laws and regulations governing the option, and the
option may not be exercised if the Company determines that the exercise would
not be in material compliance with such laws and regulations.
8. TERM. The term of your option commences on May 8, 1998 (the "Grant
Date") and expires upon the EARLIEST of the following:
(a) the tenth (10th) anniversary of the Grant Date;
(b) ninety (90) days after the termination of your employment
with the Company if you voluntarily terminate your employment without Good
Reason; and
(c) two (2) years after the termination of your employment with
the Company if you are terminated by the Company without Cause or you
voluntarily terminate your employment for Good Reason.
9. EXERCISE.
(a) You may exercise the vested portion of your option during its
term by delivering a Notice of Exercise (in a form designated by the Company)
together with the exercise price to the Secretary of the Company, or to such
other person as the Company may designate, during regular business hours,
together with such additional documents as the Company may then require.
(b) By exercising your option you agree that, as a condition to
any exercise of your option, the Company may require you to enter an arrangement
providing for the payment by you to the Company of any tax withholding
obligation of the Company arising by reason of (1) the exercise of your option,
(2) the lapse of any substantial risk of forfeiture to which the shares are
subject at the time of exercise, or (3) the disposition of shares acquired upon
such exercise.
10. TRANSFERABILITY. Your option is not transferable, except by will or
by the laws of descent and distribution, and is exercisable during your life
only by you. Notwithstanding the foregoing, by delivering written notice to the
Company, in a form satisfactory to the Company, you may designate a third party
who, in the event of your death, shall thereafter be entitled to exercise your
option.
11. WITHHOLDING OBLIGATIONS.
(a) At the time your option is exercised, in whole or in part, or
at any time thereafter as requested by the Company, you hereby authorize
withholding from payroll and any other amounts payable to you, and otherwise
agree to make adequate provision for (including by means of a Cashless Exercise
to the extent permitted by the Company), any sums required to satisfy the
federal, state, local and foreign tax withholding obligations of the Company or
an Affiliate, if any, which arise in connection with your option.
(b) Upon your request and subject to approval by the Company, in
its sole discretion, and compliance with any applicable conditions or
restrictions of law, the Company
<PAGE> 4
may withhold from fully vested shares of Common Stock otherwise issuable to you
upon the exercise of your option a number of whole shares having a Fair Market
Value, determined by the Company as of the date of exercise, not in excess of
the minimum amount of tax required to be withheld by law. If the date of
determination of any tax withholding obligation is deferred to a date later than
the date of exercise of your option, share withholding pursuant to the preceding
sentence shall not be permitted unless you make a proper and timely election
under Section 83(b) of the Code, covering the aggregate number of shares of
Common Stock acquired upon such exercise with respect to which such
determination is otherwise deferred, to accelerate the determination of such tax
withholding obligation to the date of exercise of your option. Notwithstanding
the filing of such election, shares shall be withheld solely from fully vested
shares of Common Stock determined as of the date of exercise of your option that
are otherwise issuable to you upon such exercise. Any adverse consequences to
you arising in connection with such share withholding procedure shall be your
sole responsibility.
(c) Your option is not exercisable unless the tax withholding
obligations of the Company and/or any Affiliate are satisfied. Accordingly, you
may not be able to exercise your option when desired even though your option is
vested, and the Company shall have no obligation to issue a certificate for such
shares or release such shares from any escrow provided for herein.
12. OPTION NOT A SERVICE CONTRACT. Your option is not an employment or
service contract, and nothing in your option shall be deemed to create in any
way whatsoever any obligation on your part to continue in the employ of the
Company or an Affiliate, or of the Company or an Affiliate to continue your
employment. In addition, nothing in your option shall obligate the Company or an
Affiliate, their respective shareholders, Boards of Directors, Officers or
Employees to continue any relationship that you might have as a Director or
Consultant for the Company or an Affiliate.
13. NOTICES. Any notices provided for in your option or the Plan shall
be given in writing and shall be deemed effectively given upon receipt or, in
the case of notices delivered by the Company to you, five (5) days after deposit
in the United States mail, postage prepaid, addressed to you at the last address
you provided to the Company.
14. GOVERNING PLAN DOCUMENT. Your option is subject to all the
provisions of the Plan, the provisions of which are hereby made a part of your
option, and is further subject to all interpretations, amendments, rules and
regulations which may from time to time be promulgated and adopted pursuant to
the Plan. In the event of any conflict between the provisions of your option and
those of the Plan, the provisions of the Plan shall control.
<PAGE> 5
Dated the ____ day of May, 1998.
METRICOM, INC. OPTIONEE:
By:
------------------------------ ------------------------------
Duly authorized on behalf Timothy A. Dreisbach
of the Board of Directors
