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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CIDCO INCORPORATED
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(Exact name of registrant as specified in its charter)
Delaware 13-3500734
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(State or other jurisdiction (I.R.S. employer identification no.)
of incorporation or organization)
220 Cochrane Circle
Morgan Hill, CA 95037
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(Address of principal executive offices)
CIDCO INCORPORATED
Amended and Restated 1998
Nonstatutory Stock Option Plan
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(Full title of the plan)
Richard D. Kent
Vice President Finance,
Chief Operating Officer and Chief Financial Officer
220 Cochrane Circle
Morgan Hill, CA 95037
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(Name and address of agent for service)
Telephone number, including area code, of agent for service: (408) 779-1162.
This registration statement shall hereafter become effective in accordance with
Rule 462 promulgated under the Securities Act of 1933, as amended.
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CALCULATION OF REGISTRATION FEE
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Title of Amount Proposed maximum Proposed maximum Amount of
Securities to to be offering price aggregate offering registration
be registered(1) registered(2) per share(3) price(3) fee
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Amended and
Restated 1998
Nonstatutory
Stock Option Plan
Common Stock, 303,246 $ 4.18 $ 1,267,568.28
par value $ 0.01 396,754 $ 2.1832 $ 866,193.33
TOTALS 700,000 $ 2,133,761.61 $ 593.19
(1) The securities to be registered include options to acquire Common Stock.
(2) Pursuant to Rule 416(a), this registration statement also covers any
additional securities that may be offered or issued in connection with any stock
split, stock dividend or similar transaction.
(3) Estimated pursuant to Rule 457 solely for purposes of calculating the
registration fee. As to shares subject to outstanding but unexercised options
under the Amended and Restated 1998 Nonstatutory Stock Option Plan, the price is
computed on the basis of the weighted average exercise price. As to the
remaining shares under the Amended and Restated 1998 Nonstatutory Stock Option
Plan, the price is based upon the average of the high and low prices of the
Common Stock on February 1, 1999, as reported on the Nasdaq National Market.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
CIDCO Incorporated (the "Company") hereby incorporates by
reference in this registration statement the following documents:
(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"), containing audited financial statements for the Company's latest fiscal
year ended December 31, 1997 as filed with the Securities and Exchange
Commission on March 31, 1998.
(b) The Registrant's Current Report on Form 8-K filed February 12, 1997 for the
period ending January 27, 1997.
(c) The description of the Company's Common Stock contained in the Company's
Registration Statement on Form 8-A filed on February 4, 1997 under the Exchange
Act, including any amendment or report filed for the purpose of updating such
description.
All 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 to this registration statement which indicates that
all securities offered hereby have been sold or which deregisters all securities
remaining unsold, shall be deemed to be incorporated by reference in this
registration statement and to be a part hereof from the date of filing of such
documents.
Item 4. Description of Securities
The class of securities to be offered is registered under
Section 12 of the Exchange Act.
Item 5. Interests of Named Experts and Counsel
Inapplicable.
Item 6. Indemnification of Directors and Officers
Section 102(b) of the Delaware General Corporation Law
authorizes a corporation to provide in its Certificate of Incorporation that a
director of the corporation shall not be personally liable to corporation or its
stockholders for monetary damages for breach or alleged breach of the director's
"duty of care." While this statute does not change directors' duty of care, it
enables corporations to limit available relief to equitable remedies such as
injunction or rescission. The statute has no effect on a director's duty of
loyalty or liability for acts or omissions not in good faith or involving
intentional misconduct or knowing violations of law, illegal payment of
dividends or stock redemptions or repurchases, or for any transaction from which
the director derives an improper personal benefit. As permitted by the statute,
the Company has adopted provisions in its Certificate of Incorporation which
eliminate to the fullest extent permissible under Delaware law the personal
liability of its directors to the Company and its stockholders for monetary
damages for breach or alleged breach of their duty of care.
Section 145 of the General Corporation Law of the State of
Delaware provides for the indemnification of officers, directors, employees and
agents of a corporation. The Bylaws of the Company provide for indemnification
of its directors, officers, employees and agents to the full extent permitted by
under Delaware law, including those circumstances in which indemnification would
otherwise be discretionary under Delaware law. The Company's Bylaws also empower
it to enter into indemnification agreements with its directors and officers and
to purchase insurance on behalf of any person whom it is required or permitted
to indemnify. The Company has entered into agreements with its directors and
certain of its executive officers that require the Company to indemnify such
persons to the fullest extent permitted under Delaware law against expenses,
judgments, fines, settlements and other amounts actually and reasonably incurred
(including expenses of a derivative action) in connection with any proceeding,
whether actual or threatened, to which any such person may be made a party by
reason of the fact that such person is or was a director or an executive officer
of the Company or any of its affiliated enterprises. The indemnification
agreements also set forth certain procedures that will apply in the event of a
claim for indemnification thereunder.
Section 145 of the General Corporation Law of the State of
Delaware provides for indemnification in terms sufficiently broad to indemnify
such individuals, under certain circumstances, for liabilities (including
reimbursement of expenses incurred) arising under the Securities Act of 1933, as
amended (the "Securities Act").
Item 7. Exemption From Registration Claimed
Inapplicable.
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Item 8. Exhibits
See Exhibit Index.
Item 9. Undertakings
The undersigned registrant hereby undertakes:
(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;
(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;
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 (l)(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 registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the registration statement.
(2) 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 therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(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.
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 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 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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SIGNATURE
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 Town of Morgan Hill, State of California, on January 26,
1999.
CIDCO Incorporated
By: /s/
Richard D. Kent
Vice President Finance, Chief Operating Officer and
Chief Financial Officer
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SIGNATURES AND POWER OF ATTORNEY
The officers and directors of CIDCO Incorporated whose signatures
appear below, hereby constitute and appoint Paul G. Locklin and Richard D. Kent
and each of them, their true and lawful attorneys and agents, with full power of
substitution, each with power to act alone, to sign and execute on behalf of the
undersigned any amendment or amendments to this registration statement on Form
S-8, and each of the undersigned does hereby ratify and confirm all that each of
said attorney and agent, or their or his substitutes, shall 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.
Signature Title Date
/s/ Chairman of the Board, Chief Executive January 26, 1999
Paul G. Locklin Officer and President (Principal
Executive Officer)
/s/ Vice President Finance, Chief Operating January 26, 1999
Richard D. Kent Officer and Chief
Financial Officer (Principal
Financial and Accounting Officer)
/s/ Director January 26, 1999
Daniel L. Eilers
/s/ Director January 26, 1999
Joseph A. Graziano
/s/ Director January 26, 1999
Ernest K. Jacquet
/s/ Director January 26, 1999
Richard M. Moley
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EXHIBIT INDEX
3.1 Certificate of Incorporation of the Company is incorporated by
reference to Exhibit 3.1 to the Company's Registration Statement on
Form S-1 filed with the Securities and Exchange Commission on
January 14, 1994 ( No. 33-74114).
3.2 Amended & Restated Bylaws of the Company are incorporated by
reference to Exhibit 3.2 to the Company's Quarterly Report filed on
Form 10-Q filed with the Securities and Exchange Commission on
August 14, 1997 (No.000-23296).
5 Opinion re: legality
23.1 Consent of Gray Cary Ware & Freidenrich LLP (included in Exhibit 5)
23.2 Consent of PricewaterhouseCoopers LLP 24 Power of Attorney (included
in signature pages to this registration statement)
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EXHIBIT 5
[LETTERHEAD OF GRAY CARY WARE & FREIDENRICH LLP]
February 1, 1999
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
As legal counsel for CIDCO Incorporated, a Delaware corporation (the "Company"),
we are rendering this opinion in connection with the registration under the
Securities Act, as amended, of up to 700,000 shares of the Common Stock, $0.01
par value, of the Company which may be issued pursuant to the exercise of
options granted under the CIDCO Incorporated Amended and Restated 1998
Nonstatutory Stock Option Plan (the "Plan").
We have examined all instruments, documents and records which we deemed relevant
and necessary for the basis of our opinion hereinafter expressed. In such
examination, we have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals and the conformity to
the originals of all documents submitted to us as copies. We are admitted to
practice only in the State of California and we express no opinion concerning
any law other than the law of the State of California, the corporation laws of
the State of Delaware and the federal law of the United States. As to matters of
Delaware corporation law, we have based our opinion solely upon our examination
of such laws and the rules and regulations of the authorities administering such
laws, all as reported in standard, unofficial compilations. We have not obtained
opinions of counsel licensed to practice in jurisdictions other than the State
of California.
Based on such examination, we are of the opinion that the 700,000 shares of
Common Stock which may be issued upon exercise of options granted under the Plan
are duly authorized shares of the Company's Common Stock, and, when issued
against receipt of the consideration therefor in accordance with the provisions
of the Plan, will be validly issued, fully paid and nonassessable. We hereby
consent to the filing of this opinion as an exhibit to the Registration
Statement referred to above and the use of our name wherever it appears in said
Registration Statement.
Respectfully submitted,
/s/
GRAY CARY WARE & FREIDENRICH LLP
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EXHIBIT 23.2
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 19, 1998, which appears on
page 26 of CIDCO Incorporated's Annual Report on Form 10-K for the year ended
December 31, 1997.
/s/
PricewaterhouseCoopers LLP
San Jose, California
February 1, 1999
