As filed with the Securities and Exchange Commission on September 23, 2003
Registration No. 333-______________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
LIBERATE TECHNOLOGIES
(Exact name of registrant as specified in its charter)
Delaware |
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94-3245315 |
2 Circle Star Way
San Carlos, CA 94070
(Address of principal executive offices) (Zip Code)
SHARES ACQUIRED UNDER A WRITTEN COMPENSATORY AGREEMENT FOR STEPHEN NICOLLE
SIGMA SYSTEMS GROUP (CANADA) INC. AMENDED AND RESTATED 2002 CALIFORNIA STOCK INCENTIVE PLAN
SIGMA SYSTEMS GROUP (CANADA) INC. AMENDED AND RESTATED 2002 STOCK INCENTIVE PLAN
(Full title of the Plans)
David Lockwood
LIBERATE TECHNOLOGIES
2 Circle Star Way
San Carlos, CA 94070
(Name and address of agent for service)
(650) 701-4000
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Title of Securities to be Registered |
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Amount to
be |
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Proposed |
|
Proposed |
|
Amount of |
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|
|
|
|
|
|
|
Options, Stock Appreciation Rights, Restricted Shares and Stock Units to Purchase Common Stock |
|
5,200,303 |
|
N/A |
|
N/A |
|
N/A |
Common Stock, $0.01 par value |
|
5,200,303 shares(2) |
|
$3.584(5) |
|
$18,637,885.95(5) |
|
$1,507.80 |
|
|
|
|
|
|
|
|
|
Options to Purchase Common Stock |
|
5,900,000(3) |
|
N/A |
|
N/A |
|
N/A |
Common Stock, $0.01 par value |
|
5,900,000 shares |
|
$1.95(6) |
|
$11,505,000(6) |
|
$930.75 |
|
|
|
|
|
|
|
|
|
Options to Purchase Common Stock |
|
319,296(4) |
|
N/A |
|
N/A |
|
N/A |
Common Stock, $0.01 par value |
|
319,296 shares |
|
$1.97(6) |
|
$629,013.12(6) |
|
$50.89 |
(1) This Registration Statement shall also cover any additional shares of Common Stock which become issuable under the 1999 Equity Incentive Plan, Shares Acquired under Written Compensatory Agreements for Certain Individuals, Shares acquired under a Written Compensatory Agreement for Stephen Nicolle, Sigma Systems Group (Canada) Inc. Amended and Restated 2002 California Stock Incentive Plan and the Sigma Systems Group (Canada) Inc. Amended and Restated 2002 Stock Incentive Plan by reason of any
stock dividend, stock split, recapitalization or other similar transaction effected without the receipt of consideration which results in an increase in the number of the outstanding shares of Common Stock of Liberate Technologies.
(2) Represents the automatic evergreen share increase under the 1999 Equity Incentive, such that on June 1, 2003, 5,200,303 shares were automatically added to the 1999 Equity Incentive Plan.
(3) Represents the aggregate number of shares of Common Stock subject to options granted pursuant to Written Compensatory Agreements for Certain Individuals.
(4) Represents the aggregate number of shares of Common Stock subject to options assumed from the Sigma Systems Group (Canada) Inc., Amended and Restated 2002 California Stock Incentive Plan, the Sigma Systems Group (Canada) Inc., Amended and Restated 2002 Stock Incentive Plan and the Written Compensatory Agreement for Stephen Nicolle.
(5) Calculated solely for purposes of this offering under Rule 457(h) of the Securities Act of 1933, as amended, on the basis of the average of the high and low prices per share of Common Stock of Liberate Technologies as reported by Pink Sheets LLC on September 18, 2003.
(6) Calculated solely for purposes of this offering under Rule 457(h) of the Securities Act of 1933, as amended, on the basis of the weighted average exercise price of the outstanding options.
(7) Fee calculated pursuant to Section 6(b) of the Securities Act of 1933, as amended.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Liberate Technologies (Liberate or the Company) hereby incorporates by reference into this Registration Statement the following documents previously filed with the Securities and Exchange Commission (the SEC):
All reports and definitive proxy or information statements filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act after the date of this Registration Statement and prior to the filing of a post-effective amendment 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 into this Registration Statement and to be a part hereof from the date of filing of such documents.
Not Applicable.
Not Applicable.
Section 145 of the Delaware General Corporation Law authorizes a court to award or a corporations board of directors to grant indemnification to directors and officers in terms sufficiently broad to permit such indemnification under certain circumstances for liabilities (including reimbursement for expenses incurred) arising under the Securities Act of 1933, as amended (the 1933 Act). Article VI, Section 6.1, of the Companys Bylaws provides for mandatory indemnification of its directors and officers and permissible indemnification of employees and other agents to the maximum extent permitted by the Delaware General Corporation Law. The Companys Sixth Amended and Restated Certificate of Incorporation provides that, pursuant to Delaware law, its directors shall not be liable for monetary damages for breach of the directors fiduciary duty as directors to the Company and its stockholders. This provision in the Sixth Amended and Restated Certificate of Incorporation does not eliminate the directors fiduciary duty, 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 Company for acts or omissions not in good faith or involving intentional misconduct, for knowing violations of law, for actions leading to improper personal benefit 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 directors responsibilities under any other law, such as the federal securities laws or state or federal environmental laws. The Company has entered into Indemnification Agreements with its officers and directors. The Indemnification Agreements provide the Companys officers and directors with further indemnification to the maximum extent permitted by the Delaware General Corporation Law. The Company maintains liability insurance for its directors and officers.
Not Applicable.
II-1
Exhibit Number |
|
Exhibit |
4 |
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Instrument Defining Rights of Stockholders. Reference is made to the Companys Registration Statement No. 000-26565 on Form 8-A, together with all amendments thereto, which is incorporated herein by reference pursuant to Item 3(c) of this Registration Statement. |
5 |
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Opinion and consent of Liberate Technologies General Counsel. |
23.1 |
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Consent of PricewaterhouseCoopers LLP, Independent Accountants. |
23.2 |
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Consent of Liberate Technologies General Counsel is contained in Exhibit 5. |
24 |
|
Power of Attorney. Reference is made to page II-3 of this Registration Statement. |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the Company 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 San Carlos, State of California on the 23rd day of September, 2003.
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LIBERATE TECHNOLOGIES |
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By: |
/s/ DAVID LOCKWOOD |
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David Lockwood |
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Chairman of the Board and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of Liberate Technologies, a Delaware corporation, do hereby constitute and appoint David Lockwood and Gregory S. Wood, and either of them, the lawful attorneys-in-fact and agents with full power and authority to do any and all acts and things and to execute any and all instruments which said attorneys and agents, and either one of them, determine may be necessary or advisable or required to enable said corporation to comply with the Securities Act of 1933, as amended, and any rules or regulations or requirements of the Securities and Exchange Commission in connection with this Registration Statement. Without limiting the generality of the foregoing power and authority, the powers granted include the power and authority to sign the names of the undersigned officers and directors in the capacities indicated below to this Registration Statement, to any and all amendments, both pre-effective and post-effective, and supplements to this Registration Statement, and to any and all instruments or documents filed as part of or in conjunction with this Registration Statement or amendments or supplements thereof, and each of the undersigned hereby ratifies and confirms all that said attorneys and agents, or either one of them, shall do or cause to be done by virtue hereof. This Power of Attorney may be signed in several counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities indicated, on the 23rd day of September, 2003.
Signature |
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Title |
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/s/ DAVID LOCKWOOD |
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Chairman of the Board and Chief
Executive Officer |
David Lockwood |
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/s/ GREGORY S. WOOD |
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Executive Vice President and Chief Financial
Officer |
Gregory S. Wood |
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II-3
Signature |
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Title |
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/s/ CHARLES N. CORFIELD |
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Director |
Charles N. Corfield |
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/s/ PATRICK S. JONES |
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Director |
PATRICK S. JONES |
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/s/ DR. DAVID C. NAGEL |
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Director |
Dr. David C. Nagel |
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/s/ ROBERT R. WALKER |
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Director |
Robert R. Walker |
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II-4
EXHIBIT INDEX
Exhibit Number |
|
Exhibit |
4 |
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Instrument Defining Rights of Stockholders. Reference is made to the Companys Registration Statement No. 000-26565 on Form 8-A, together with all amendments thereto, which is incorporated herein by reference pursuant to Item 3(c) of this Registration Statement. |
5 |
|
Opinion and consent of Liberate Technologies General Counsel. |
23.1 |
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Consent of PricewaterhouseCoopers LLP, Independent Accountants. |
23.2 |
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Consent of Liberate Technologies General Counsel is contained in Exhibit 5. |
24 |
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Power of Attorney. Reference is made to page II-3 of this Registration Statement. |