As filed with the Securities and Exchange Commission on August 17, 1999
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BE INCORPORATED
(Exact name of registrant as specified in its charter)
Delaware 94-3123667
(State of Incorporation) (I.R.S. Employer Identification No.)
800 El Camino Real
Suite 400
Menlo Park, CA 94025
(650) 462-4100
(Address of principal executive offices)
1992 Stock Option Plan
1999 Equity Incentive Plan
1999 Non-Employee Directors' Stock Option Plan
Employee Stock Purchase Plan
-----------------
(Full title of plans)
Jean-Louis F. Gassee
Chief Executive Officer
Be Incorporated
800 El Camino Real
Suite 400
Menlo Park, CA 94025
(650) 462-4100
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
Andrei M. Manoliu, Esq.
Cooley Godward llp
Five Palo Alto Square
3000 El Camino Real
Palo Alto, CA 94306-2155
(650) 843-5000
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------------------------------
Title of Securities to be Amount to be Proposed Maximum Offering Proposed Maximum Aggregate Amount of
Registered Registered Price Per Share (1)(2) Offering Price (1)(2) Registration Fee
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
Stock Options and Common Stock
(par value $.001) 10,801,396 $0.3024 - $6.0000 $51,708,041 $14,375
- ------------------------------------------------------------------------------------------------------------------------------------
<FN>
- ----------------
(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(h) under the Securities Act of
1933, as amended. The offering price per share and aggregate offering
price are based upon the weighted average exercise price for shares
subject to outstanding options granted pursuant to registrant's (i)
1992 Stock Option Plan; (ii) 1999 Equity Incentive Plan; (iii) 1999
Non-Employee Directors' Stock Option Plan; and (iv) Employee Stock
Purchase Plan.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(h) under the Securities Act of
1933, as amended. The offering price per share and aggregate offering
price are based upon the average of the high and low prices of
registrant's Common Stock on August 11, 1999 [within 5 days of filing]
as reported on the Nasdaq National Market.
</FN>
</TABLE>
<PAGE>
The chart below details the calculation of the registration fee:
<TABLE>
<CAPTION>
- ---------------------------------------- ------------------------------ ------------------------ ---------------------
Offering Price Per Aggregate Offering
Securities Number of Shares Share Price
- ---------------------------------------- ------------------------------ ------------------------ ---------------------
<S> <C> <C> <C>
Shares issuable pursuant to
outstanding options under the 1992
Stock Option Plan, or in the event of
the cancellation or termination of
such options, issuable upon exercise
of options available for grant under
the 1999 Equity Incentive Plan. 1,617,315 $0.3024 (1) $489,076
- ---------------------------------------- ------------------------------ ------------------------ ---------------------
Shares issuable pursuant to the 1992
Stock Option Plan 0 N/A N/A
- ---------------------------------------- ------------------------------ ------------------------ ---------------------
Shares issuable pursuant to
outstanding options under the 1999
Equity Incentive Plan 3,437,457 $5.0442 (1) $17,339,221
- ---------------------------------------- ------------------------------ ------------------------ ---------------------
Shares issuable pursuant to the 1999
Equity Incentive Plan 2,746,624 $6.00(2) $16,479,744
- ---------------------------------------- ------------------------------ ------------------------ ---------------------
Shares issuable pursuant to
outstanding options granted under the
1999 Non-Employee Directors' Stock
Option Plan 600,000 $5.00 (1) $3,000,000
- ---------------------------------------- ------------------------------ ------------------------ ---------------------
Shares issuable pursuant to the 1999
Non-Employee Directors' Stock Option
Plan 900,000 $6.00 (2) $5,400,000
- ---------------------------------------- ------------------------------ ------------------------ ---------------------
Shares issuable pursuant to
outstanding options granted under the
Employee Stock Purchase Plan 0 N/A N/A
- ---------------------------------------- ------------------------------ ------------------------ ---------------------
Shares issuable pursuant to the
Employee Stock Purchase Plan 1,500,000 $6.00 (2) $9,000,000
- ---------------------------------------- ------------------------------ ------------------------ ---------------------
Proposed Maximum Aggregate Offering
Price 10,801,396 $51,708,041
- ---------------------------------------- ------------------------------ ------------------------ ---------------------
Registration Fee $14,375
- ---------------------------------------- ------------------------------ ------------------------ ---------------------
</TABLE>
Approximate date of commencement of proposed sale to the public: as soon as
practical after this registration statement becomes effective.
<PAGE>
Part II
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the registrant with the Securities and
Exchange Commission are incorporated by reference into this registration
statement:
(a) Registrant's prospectus filed pursuant to Rule 424(b) under the Securities
Act of 1933, as amended (the "Securities Act"),on July 20, 1999 (file No.
333-77855).
(b) The description of the registrant's Common Stock which is contained in the
Registration Statement on Form 8-A filed on June 16, 1999, under the Securities
Exchange Act of 1934, as amended (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 registrant
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.
Item 4. DESCRIPTION OF SECURITIES
Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the shares of Common Stock offered hereby will be passed
upon for the registrant by Cooley Godward LLP, Palo Alto, California. As of the
date of this registration statement, certain attorneys of Cooley Godward own,
individually and/or through an investment partnership, an aggregate of 57,500
shares of the registrant's Common Stock.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Section 145 of the Delaware General Corporation Law registrant has
broad powers to indemnify its directors and officers against liabilities they
may incur in such capacities, including liabilities under the Securities Act of
1933, as amended. The registrant's Amended and Restated Certificate of
Incorporation provides that directors of the registrant shall not be liable to
the registrant or its stockholders for monetary damages for breach of fiduciary
duty as a director, to the fullest extent permitted by Delaware General
Corporation Law. Registrant's Bylaws require it to indemnify its directors and
officers, and permit registrant to indemnify its other employees and agents, to
the fullest extent permitted by Delaware law. The Bylaws also require registrant
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.
Registrant has entered into indemnity agreements with each of its directors
and officers which provide indemnification under certain circumstances for acts
and omissions which may not be covered by any directors' and officers' liability
insurance. The registrant also maintains an insurance policy for its directors
and officers insuring against certain liabilities arising out of certain
matters, including matters arising under the Securities Act.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
II-1
<PAGE>
Item 8. EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number
- ------
<S> <C>
4.1* Amended and Restated Certificate of Incorporation of the
registrant.
4.2* Bylaws of the registrant
4.3* Form of Common Stock Certificate
5.1 Opinion of Cooley Godward LLP
23.1 Consent of PricewaterhouseCoopers LLP, independent accountants
23.2 Consent of Cooley Godward LLP (Included in Exhibit 5.1)
24.1 Power of Attorney (See signature page)
99.1.1* 1992 Stock Option Plan
99.1.2* Form of 1992 Stock Option Agreement
99.2.1* 1999 Equity Incentive Plan
99.2.2* Form of 1999 Stock Option Grant Notice
99.2.3* Form of 1999 Equity Incentive Plan Stock Option Agreement
99.3.1* 1999 Non-Employee Directors' Stock Option Plan
99.3.2* Form of Nonstatutory Stock Option
99.4.1* Employee Stock Purchase Plan
99.4.2* Form of Employee Stock Purchase Plan Offering
<FN>
- ----------
* Incorporated by reference from the registrant's Registration Statement
on Form S-1, as amended (file No. 333-77855), filed with the Securities and
Exchange Commission.
</FN>
</TABLE>
II-2
<PAGE>
Item 9. 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, and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
Provided, however, that paragraphs (a)(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.
II-3
<PAGE>
SIGNATURES
----------
Pursuant to the requirements of the Securities Act, 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 Menlo Park, State of California, on August 17, 1999.
Be Incorporated
By:/s/ JEAN-LOUIS F. GASSEE
Jean-Louis F. Gassee
President, Chief Executive Officer and Director
POWER OF ATTORNEY
-----------------
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Jean-Louis F. Gassee and Wesley S. Saia,
and each of them, his true and lawful attorney-in-fact, each with the power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this registration statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or any of
them, or their or his substitutes or substitute, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act, 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/ JEAN-LOUIS F. GASSEE President, Chief Executive Officer and August 17, 1999
Jean-Louis F. Gassee Director (Principal Executive Officer)
/s/ WESLEY S. SAIA Vice President and Chief Financial August 17, 1999
Wesley S. Saia Officer (Principal Financial Officer)
/s/ ALBERT LOMBARDO Corporate Controller August 17, 1999
Albert Lombardo
/s/ CHRISTIAN E. MARCHANDISE Director August 17, 1999
Christian E. Marchandise
/s/ BARRY M. WEINMAN Director August 17, 1999
Barry M. Weinman
/s/ GARRETT P. GRUENER Director August 17, 1999
Garrett P. Gruener
/s/ STEWART ALSOP Director August 17, 1999
Stewart Alsop
</TABLE>
II-4
<PAGE>
EXHIBIT INDEX
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<TABLE>
<CAPTION>
Exhibit
Number Description
- ------ -----------
<S> <C>
4.1* Amended and Restated Certificate of Incorporation of the
registrant.
4.2* Bylaws of the registrant
4.3* Form of Common Stock Certificate
5.1 Opinion of Cooley Godward LLP
23.1 Consent of PricewaterhouseCoopers LLP, independent accountants
23.2 Consent of Cooley Godward LLP. (Included in Exhibit 5.1)
24.1 Power of Attorney (See signature page)
99.1.1* 1992 Stock Option Plan
99.1.2* Form of 1992 Stock Option Agreement
99.2.1* 1999 Equity Incentive Plan
99.2.2* Form of 1999 Stock Option Grant Notice
99.2.3* Form of 1999 Equity Incentive Plan Stock Option Agreement
99.3.1* 1999 Non-Employee Directors' Stock Option Plan
99.3.2* Form of Nonstatutory Stock Option
99.4.1* Employee Stock Purchase Plan
99.4.2* Form of Employee Stock Purchase Plan Offering
</TABLE>
- -------------
* Incorporated by reference from the registrant's Registration Statement on
Form S-1, as amended (file No. 333-77855), filed with the Securities and
Exchange Commission.
<PAGE>
August 16, 1999 Exhibit 5.1
Be Incorporated
800 El Camino Real, Suite 400
Menlo Park, CA 94025
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by Be Incorporated (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 an aggregate of 10,801,396 shares of
the Company's Common Stock, $.001 par value (the "Shares"), with respect to (a)
1,617,315 of the Shares issuable pursuant to its 1992 Stock Option Plan (the
"Option Plan"); (b) 6,184,081 of the Shares issuable pursuant to its 1999 Equity
Incentive Plan (the "Incentive Plan"); (c) 1,500,000 of the Shares issuable
pursuant to its 1999 Non-Employee Directors' Stock Option Plan (the
"Non-Employee Directors' Plan") and (d) 1,500,000 of the Shares issuable
pursuant to its Employee Stock Purchase Plan (the "Employee Purchase Plan")
In connection with this opinion, we have examined the Registration Statement and
related prospectus, the Company's Certificate of Incorporation, as amended, and
Bylaws, 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 Plan, the
Incentive Plan, the Non-Employee Directors' Plan and the Employee Purchase Plan,
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/ ANDREI M. MANOLIU
---------------------
Andrei M. Manoliu, Esq.
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated April 2, 1999 relating to the
financial statements of Be Incorporated, which appears in Be Incorporated's
Registration Statement on Form S-1 (Registration Number 333-77855) which became
effective on July 20, 1999. We also consent to the incorporation by reference of
our report dated April 2, 1999 related to the financial statement schedule which
appears in such registration statement on form S-1.
/s/ PricewaterhouseCoopers LLP
San Jose, California
August 16, 1999
