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As filed with the Securities and Exchange Commission on August 28, 2000
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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METRICOM, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 77-0294597
(State of Incorporation) (I.R.S. Employer Identification No.
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980 UNIVERSITY AVENUE
LOS GATOS, CALIFORNIA 95030-2375
(Address of principal executive offices)
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2000 EQUITY INCENTIVE PLAN
(Full title of the plans)
TIMOTHY A. DREISBACH
PRESIDENT AND CHIEF EXECUTIVE OFFICER
METRICOM, INC.
333 WEST JULIAN STREET
SAN JOSE, CALIFORNIA 95110
(408) 252-3000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copies to:
KENNETH L. GUERNSEY, ESQ.
CYDNEY S. POSNER, ESQ.
COOLEY GODWARD LLP
ONE MARITIME PLAZA, 20TH FLOOR
SAN FRANCISCO, CA 94111
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES TO BE AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING PRICE AMOUNT OF REGISTRATION
REGISTERED REGISTERED SHARE (1) PRICE (1) FEE
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<S> <C> <C> <C> <C>
Shares of Common Stock, 642,462 $35.50(1)(a) $22,807,401 $6,021.15
par value $.001 per share,
subject to outstanding
options granted under the
2000 Equity Incentive Plan
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Shares of Common Stock, 857,538 $34.28125(1)(b) $29,397,475 $7,760.93
par value $.001 per share,
reserved for future grant
under the 2000 Equity
Incentive Plan
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Totals 1,500,000 $34.28125-$35.50 $52,204,876 $13,782.08
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</TABLE>
(1) (1) Estimated solely for the purpose of calculating the amount of the
registration fee. The offering price per share and aggregate offering
price are based upon (a) the weighted average exercise price, for
shares subject to options previously granted under the Metricom, Inc.
("Registrant" or "Company") 1997 Equity Incentive Plan (pursuant to
Rule 457(h) under the Securities Act of 1933, as amended (the "Act"))
and (b) the average of the high and low prices of the Company's Common
Stock as reported on the Nasdaq National Market on August 21, 2000 for
shares available for future grant pursuant to the 2000 Equity Incentive
Plan and shares available for future issuance pursuant to the 1991
Employee Stock Purchase Plan (pursuant to Rule 457(c) under the Act).
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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
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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.
EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
CONSULTANTS AND ADVISORS
Not Applicable.
EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
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 2000 Equity Incentive Plan and forms of grant thereunder.
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UNDERTAKINGS
1. The undersigned registrant hereby undertakes:
(A) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(I) To include any prospectus required by section 10(a)(3) of the
Securities Act;
(II) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) 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.
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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 August 25, 2000.
METRICOM, INC.
By: /s/ James E. Wall
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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 Officer and August 25, 2000
-------------------------------------------- Director (Principal Executive Officer)
(Timothy A. Dreisbach)
/s/ James E. Wall Chief Financial Officer (Principal August 25, 2000
-------------------------------------------- Financial and Accounting Officer)
(James E. Wall)
</TABLE>
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<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
Director
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(Bram Johnson)
/s/ Ralph Derrickson Director August 23, 2000
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(Ralph Derrickson)
/s/ Rob ert P. Dilworth Director August 25, 2000
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(Robert P. Dilworth)
/s/ Justin L. Jaschke Director August 25, 2000
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(Justin L. Jaschke)
/s/ David M. Moore Director August 25, 2000
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(David M. Moore)
/s/ William D. Savoy Director August 25, 2000
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(William D. Savoy)
</TABLE>
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
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 2000 Equity Incentive Plan and forms of grant thereunder.
