Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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CIDCO INCORPORATED
(Exact name of registrant as specified in its charter)
Delaware 13-3500734
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
220 Cochrane Circle
Morgan Hill, California 95037
(Address of Principal Executive Offices) (Zip Code)
CIDCO INCORPORATED
NON-QUALIFIED STOCK OPTION AGREEMENT
WITH DANIEL L. EILERS
(Full title of the plan)
Richard D. Kent
Vice President, Finance and Administration
and Chief Financial Officer
CIDCO Incorporated
220 Cochrane Circle
Morgan Hill, California 95037
(Name and address of agent for service)
(408) 779-1162
(Telephone number, including area code, of agent for service)
Copy to:
James E. Abbott, Esq.
Carter, Ledyard & Milburn
2 Wall Street
New York, New York 10005
(212) 732-3200
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price per offering registration
registered registered share price fee
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Common Stock,
par value $.01
per share . . . .600,000 shs. $14.25(1) $8,550,000 $2,590.91
Preferred Share
Purchase Rights..600,000 rights -- (2) -- (2) -0-
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(1) Calculated pursuant to Rule 457(h) on the basis of the per share exercise
price of the option provided for in the Non-Qualified Stock Option
Agreement.
(2) Included in the offering price of the Common Stock being registered hereby.
Until the Distribution Date, as defined in the Rights Agreement providing
for the Preferred Share Purchase Rights (the "Rights"), the Rights will be
attached to, and transferable only with, the Common Stock and will be
evidenced by the certificates evidencing the Common Stock.
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This Registration Statement shall become effective immediately upon filing
as provided in Rule 462(a) under the Securities Act of 1933.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registrant hereby incorporates by reference the following documents
(Commission File No. 0-23296) into this Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996;
(b) The Registrant's Current Report on Form 8-K bearing cover date of
January 27, 1997;
(c) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A dated January 28, 1994, for
the registration of the Common Stock pursuant to Section 12(g) of the
Securities Exchange Act of 1934 (the "Exchange Act"), and any amendment or
report hereafter filed by the Registrant for the purpose of updating such
description; and
(d) The description of the Rights contained in the Registrant's
Registration Statement on Form 8-A dated February 3, 1997, for the
registration of the Rights under Section 12(g) of the Exchange Act, and any
amendment or report hereafter filed by the Registrant for the purpose of
updating such description.
In addition, all 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 to this Registration Statement which indicates that
all securities offered hereby have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference in and
made a part of this Registration Statement from the date of filing of such
documents.
Item 4. Description of Securities.
Not required, inasmuch as the Registrant's Common Stock and the Rights are
registered under Section 12 of the Exchange Act.
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Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145(a) of the General Corporation Law of the State of Delaware (the
"Law") provides, in general, that a corporation shall have power to indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the corporation), by reason of the fact that the person is or was a
director or officer of the corporation. Such indemnity may be against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by the person in connection with such action,
suit or proceeding, if the person acted in good faith and in a manner the person
reasonably believed to be in or not opposed to the best interests of the
corporation; with respect to any criminal action or proceeding, the indemnitee
must not have had reasonable cause to believe his conduct was unlawful.
Section 145(b) of the Law provides, in general, that a corporation shall
have power to indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action or suit by or in the
right of the corporation to procure a judgment in its favor by reason of the
fact that the person is or was a director or officer of the corporation against
expenses (including attorneys' fees) actually and reasonably incurred by the
person in connection with the defense or settlement of such action or suit if
the person acted in good faith and in a manner the person reasonably believed to
be in or not opposed to the best interests of the corporation. However, no
indemnification shall be made in respect of any claim, issue or matter as to
which a person shall have been adjudged to be liable to the corporation unless
and only to the extent that the Delaware Court of Chancery or the court in which
such action was brought shall determine that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses as the court shall
deem proper.
Section 145(g) of the Law provides in general that a corporation shall have
power to purchase and maintain insurance on behalf of any person who is or was a
director or officer of the corporation against any liability asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the corporation would have the
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power to indemnify him against such liability under the provisions of the Law.
The Registrant's Certificate of Incorporation provides that, pursuant to
Delaware law, its directors will not be liable for monetary damages for breach
of the directors' fiduciary duty to the Registrant and its stockholders. This
provision in the Certificate of Incorporation does not eliminate the directors'
duty of care, and, in appropriate circumstances, equitable remedies such as
injunctive or other forms of non-monetary relief will remain available under
Delaware law. In addition, each director will continue to be subject to
liability for breach of the directors' duty of loyalty to the Registrant or its
stockholders, for acts of omissions not in good faith or involving intentional
misconduct or knowing violations of law, for actions leading to improper
personal benefits to the director, and for payment of dividends or approval of
stock repurchases or redemptions that are unlawful under Delaware law. The
provision also does not affect a director's responsibilities under any other
law, such as the federal securities laws or state or federal environmental laws.
Section 8.1 of the Registrant's By-Laws provides that the Registrant shall
indemnify its directors, officers, employees, and in some cases, its agents to
the fullest extent and in the manner set forth in and permitted by the Law, and
any other applicable law, from time to time in effect, and that such right of
indemnification shall not be deemed exclusive of any other rights to which the
Registrant's directors and officers may be entitled.
In addition, the Registrant has entered into agreements to indemnify its
directors and certain of its officers beyond the indemnification provided for in
the Certificate of Incorporation and By-Laws. These agreements will, among other
things, indemnify the Registrant's directors and its officers for certain
expenses (including attorneys' fees), judgments, fines and settlement amounts
incurred by such persons in any action or proceeding, including any action by or
in the right of the Registrant, on account of services as a director or officer
of the Registrant, or as a director or officer of any other company or
enterprise to which the person provides services at the request of the
Registrant.
Item 7. Exemption from Registration Claimed.
Not applicable.
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Item 8. Exhibits.
The Exhibit Index appears below on page 10.
Item 9. Undertakings.
(1) The undersigned Registrant issuer 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 of 1933, unless the information required to be included
in such post-effective amendment is contained in periodic reports
filed by the Registrant pursuant to Section 13 or 15(d) of the
Exchange Act that are incorporated herein by reference;
(ii) to reflect in the prospectus any facts or events arising
after the effective date of this registration statement (or the most
recent post-effective amendment hereof) which, individually or in the
aggregate, represent a fundamental change in the information in this
registration statement, unless the information required to be included
in such post-effective amendment is contained in periodic reports
filed by the Registrant pursuant to Section 13 or 15(d) of the
Securities Exchange Act that are incorporated herein by reference;
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in this registration
statement, or any material change to such information in this
registration statement;
(b) That, for the purpose of determining 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
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.
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(d) That, for the 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 Section 15(d) of the Exchange Act that is
incorporated by reference in this 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.
(2) 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 6 above, 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 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 Act and will
be governed by the final adjudication of such issue.
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SIGNATURES
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Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets 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 Town of Morgan Hill, State of California, on May 1, 1997.
CIDCO Incorporated
By/s/Richard D. Kent
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Richard D. Kent
Vice President, Finance and
Administration
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POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes Richard D.
Kent and James E. Abbott, and each of them singly, his true and lawful
attorneys-in-fact with full power to execute in the name of such person, in the
capacities stated below, and to file with the Securities and Exchange
Commission, such one or more amendments to this Registration Statement as the
Registrant deems appropriate, and generally to do all such things in the name
and on behalf of such person, in the capacities stated below, to enable the
Registrant to comply with the provisions of the Securities Act of 1933, as
amended, and all requirements of the Securities and Exchange Commission
thereunder, hereby ratifying and confirming the signature of such person as may
be signed by said attorneys-in-fact, or any one of them, to any and all
amendments to this Registration Statement.
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Pursuant to the requirements of the Securities Act of 1933, this
registration statement and the above power of attorney have been signed on May
1, 1997, by the following persons in the capacities indicated.
Signature Title
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/s/Paul G. Locklin Chairman of the Board and Director
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Paul G. Locklin
/s/Daniel L. Eilers President, Chief Executive Officer
- ------------------- and Director (Principal Executive
Daniel L. Eilers Officer)
/s/Richard D. Kent
- ------------------ Vice President, Finance and
Richard D. Kent Administration and Chief
Financial Officer (Principal
Financial and Accounting Officer)
- ------------------ Director
Joseph A. Graziano
/s/Ernest K. Jacquet
- -------------------- Director
Ernest K. Jacquet
/s/Scott C. McDonald
- -------------------- Director
Scott C. McDonald
/s/Richard M. Moley
- ------------------- Director
Richard M. Moley
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EXHIBIT INDEX
Exhibit No.
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4(a)* - Rights Agreement dated as of January 27, 1997,
between the Registrant and United States Trust
Company of New York, as Rights Agent, filed on
February 4, 1997, as Exhibit 1 to the
Registrant's Registration Statement on Form
8-A (the "Form 8-A") for the registration
under Section 12(g) of the Exchange Act of
Rights to Purchase the Registrant's Series A
Junior Participating Preferred Stock.
4(b)* - Form of Right Certificate (attached as Exhibit
B to the Rights Agreement listed as Exhibit
4(a) above).
4(c)* - Form of Certificate of Designation, Number,
Powers, Preferences and Relative,
Participating, Optional and Other Special
Rights and Qualifications, Limitations,
Restrictions and Other Distinguishing
Characteristics of the Registrant's Series A
Junior Participating Preferred Stock (attached
as Exhibit A to the Rights Agreement listed as
Exhibit 4(a) above).
5 - Opinion of Carter, Ledyard & Milburn
23(a) - Consent of Carter, Ledyard & Milburn (included
in Exhibit 5)
23(b) - Consent of Price Waterhouse LLP
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*Incorporated herein by reference.
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E X H I B I T 5
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CARTER, LEDYARD & MILBURN
COUNSELLORS AT LAW
2 WALL STREET
NEW YORK, N.Y. 10005
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(212) 732-3200
FAX: (212) 732-3232
May 1, 1997
Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: CIDCO Incorporated
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Ladies and Gentlemen:
We have acted as counsel for CIDCO Incorporated, a Delaware corporation
(the "Corporation"), in connection with the preparation, execution and delivery
of a Non-Qualified Stock Option Agreement (the "Agreement") entered into on
March 12, 1997, by and between the Corporation and Daniel L. Eilers (the
"Optionee"). In the Agreement, the Corporation granted the Optionee an option to
purchase, at a price of $14.25 per share, up to 600,000 shares (the "Shares") of
the Common Stock, par value $.01 per share, of the Corporation and up to 600,000
Preferred Share Purchase Rights (the "Rights"). Each Right will be issued in
connection with the issuance of one of the Shares and, prior to the Distribution
Date (as defined in the Rights Agreement providing for the Rights), will be
transferable with and only with, and will be evidenced by the certificate
evidencing, such Share.
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Securities and Exchange Commission -2-
We have examined originals, or copies certified or otherwise identified to
our satisfaction, of such corporate records and such other documents as we have
deemed relevant as a basis for our opinion hereinafter expressed.
Based on the foregoing, we are of the opinion that the Shares and Rights,
when issued and paid for in accordance with the terms of the Agreement, will be
legally issued, and the Shares, when so issued, will be fully paid and
non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Corporation's Form S-8 Registration Statement relating to the Shares and Rights
issuable pursuant to the Agreement.
Very truly yours,
/s/Carter, Ledyard & Milburn
JEA:lrh
E X H I B I T 23(b)
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Exhibit 23(b)
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated January 27, 1997 which appears in
CIDCO Incorporated's Annual Report on Form 10-K for the year ended December 31,
1996.
/s/Price Waterhouse LLP
Price Waterhouse LLP
San Jose, California
April 30, 1997
