As filed with the Securities and Exchange Commission on March 6, 2002
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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REGISTRATION STATEMENT
ON FORM S-8
UNDER
THE SECURITIES ACT OF 1933
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SOMERA COMMUNICATIONS, INC.
(Exact name of Registrant as specified in its charter)
5383 Hollister Avenue
Delaware Santa Barbara, California 93111 77-0521878
(State of (Address of principal executive (IRS Employer
Incorporation) offices, including zip code) Identification Number)
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Stock Option Agreements
(Full title of the plans)
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Gary J. Owen
Chief Financial Officer
SOMERA COMMUNICATIONS, INC.
5383 Hollister Avenue
Santa Barbara, California 93111
(805) 681-3322
(Name, address and telephone number of agent for service)
Copy to:
Jeffrey D. Saper, Esq.
WILSON SONSINI GOODRICH & ROSATI, P.C.
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304-1050
CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum
Amount to be Offering Price Per Aggregate Offering Amount of
Title of Securities to be Registered Registered Share(1) Price Registration Fee
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Common Stock, $0.001 per value per share, to be
issued pursuant to stock option agreements 3,247,000 $4.50 $14,611,500 $1,345
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(1) Exercise price per share for each stock option agreement being registered
pursuant to this registration statement.
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PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Explanatory Note:
This Registration Statement is being filed to register an aggregate of
3,247,000 shares of Common Stock of Somera Communications, Inc. (the
"Registrant" or the "Company") that may be issued pursuant to certain
stand-alone stock option agreements between the Company and Rick Darnaby
(2,747,000 shares), its President and Chief Executive Officer, and the Company
and Dan Firestone (500,000 shares), its Executive Chairman of the Board, in
connection with employment agreements signed between the Company and such
individuals in September 2001.
Item 3. Incorporation of Documents by Reference.
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The Registrant hereby incorporates by reference into this Registration Statement
the following documents and information previously filed with the Securities and
Exchange Commission (the "Commission"):
1. The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 2000;
2. The Registrant's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 2001, June 30, 2001, and September 30, 2001;
3. The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A filed pursuant to Section
12(g) of 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 documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act on or after the date of this Registration
Statement and 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 in this
Registration Statement and to be part hereof from the date of filing of such
documents.
Item 4. Description of Securities.
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Not applicable.
Item 5. Interests of Named Experts and Counsel.
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Not applicable.
Item 6. Indemnification of Directors and Officers.
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The Company's Certificate of Incorporation limits the liability of
directors to the maximum extent permitted by Delaware law. Delaware law provides
that directors of a company will not be personally liable for monetary damages
for breach of their fiduciary duties as directors, except for liability (i) for
any breach of their duty of loyalty to the company or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or
knowing violation of law, (iii) for unlawful payments or dividends or
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unlawful stock repurchases or redemptions as provided Section 174 of Delaware
General Corporation Law or (iv) for transactions from which the director derived
an improper personal benefit.
The Company's Bylaws provide that the Company shall indemnify its officers
and directors and may indemnify its employees and other agents to the fullest
extent provided by Delaware law, including those circumstances where
indemnification would otherwise be discretionary under Delaware law. The Company
believes that indemnification under its Bylaws covers at least negligence on the
part of indemnified parties. The Bylaws authorize the use of indemnification
agreements and the Company has entered into such agreements with each of its
directors and officers.
The Company carries officer and director liability insurance with respect
to certain matters, including matters arising under the Securities Act.
Delaware law does not permit a corporation to eliminate a director's duty
of care, and the provisions of the Company's Certificate of Incorporation have
no effect on the availability of equitable remedies such as injunction or
rescission, based upon a director's breach of the duty of care. Insofar as
indemnification for liabilities arising under the Securities Act may be
permitted to foregoing provisions and agreements, the Company has been informed
that in the opinion of the staff of the Commission such indemnification is
against public policy as expressed in the Securities Act and is therefore
unenforceable.
Item 7. Exemption from Registration Claimed.
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Not applicable.
Item 8. Exhibits.
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Exhibit
Number Description
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5.1 Opinion of Wilson Sonsini Goodrich & Rosati, P.C.
10.1 Form of Stock Option Agreement
23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants
23.2 Consent of Wilson Sonsini Goodrich & Rosati, P.C.
(contained in Exhibit 5.1)
24.1 Power of Attorney (see page II-4)
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Item 9. Undertakings.
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A. 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 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.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, as amended (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.
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(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.
B. 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
Securities Exchange Act of 1934, as amended (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.
C. 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, 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 Santa Barbara, State of California, on March 6,
2002.
SOMERA COMMUNICATIONS, INC.
By: /s/ GARY J. OWEN
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Gary J. Owen
Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Rick Darnaby and Gary J. Owen, jointly
and severally, his or her attorneys-in-fact, each with the power of
substitution, for him in any and all capacities, to sign any amendments to this
Registration Statement on Form S-8, and to file the same, with exhibits thereto
and other documents in connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that each of said
attorneys-in-fact, or his substitution or substitutes, may do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed on March 6, 2002 by the following persons in the
capacities indicated.
Signature Title
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/s/ RICK DARNABY
- ----------------------------- President, Chief Executive Officer and Director
Rick Darnaby (Principal Executive Officer)
/s/ GARY J. OWEN
- ----------------------------- Chief Financial Officer (Principal Financial
Gary J. Owen and Accounting Officer)
/s/ DAN FIRESTONE
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Dan Firestone Executive Chairman of the Board
/s/ WALTER G. KORTSCHAK
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Walter G. Kortschak Director
/s/ PETER Y. CHUNG
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Peter Y. Chung Director
/s/ BARRY PHELPS
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Barry Phelps Director
/s/ GIL VARON
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Gil Varon Director
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INDEX TO EXHIBITS
Exhibit
Number Description
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5.1 Opinion of Wilson Sonsini Goodrich & Rosati, P.C.
10.1 Form of Stock Option Agreement
23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants
23.2 Consent of Wilson Sonsini Goodrich & Rosati, P.C.
(contained in Exhibit 5.1)
24.1 Power of Attorney (see page II-4)
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