As filed with the Securities and Exchange Commission on September 6, 2006
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF 1933
METRO ONE TELECOMMUNICATIONS, INC.
(Exact name of Registrant as specified in its charter)
Oregon |
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93-0995165 |
(State or other Jurisdiction of |
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(I.R.S. Employer |
Incorporation or Organization) |
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Identification No.) |
11200
Murray Scholls Place
Beaverton, Oregon 97007
(Address of Registrants Principal Executive Offices) (Zip Code)
2006 STOCK INCENTIVE PLAN
(Full Title of Plan)
GARY E.
HENRY
President and Chief Executive Officer
Metro One Telecommunications, Inc.
11200 Murray Scholls Place
Beaverton, Oregon 97007
(Name and Address of Agent for Service)
(503)
643-9500
(Telephone Number, Including Area Code, of Agent for Service)
With a Copy to:
JEFFRY
A. SHELBY, Esq.
Heller Ehrman LLP
701 Fifth Avenue, Suite 6100
Seattle, Washington 98104
(206) 447-0900
CALCULATION OF REGISTRATION FEE
Title of Securities |
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Amount to |
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Proposed |
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Proposed |
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Amount of |
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Common Stock |
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945,283 shares |
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$ |
2.05 |
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$ |
1,937,830.15 |
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$ |
207.35 |
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(1) The provisions of Rule 416 under the Securities Act of 1933 shall apply to this Registration Statement, and the number of shares registered on this Registration Statement automatically shall increase or decrease as a result of stock splits, stock dividends or similar transactions. The number of shares being registered equals (a) 1,380,000 shares, being the maximum number of shares available under the Registrants 1994 Stock Incentive Plan (the 1994 Plan) and the Registrants 2004 Stock Incentive Plan (the 2004 Plan), minus (b) the number of shares issued or issuable upon exercise of options granted under the 1994 Plan and 2004 Plan prior to the date of approval of the 2006 Stock Incentive Plan (the 2006 Plan) and the number of shares awarded or sold under the 1994 Plan and the 2004 Plan, plus (c) the number of any shares subject to stock options granted under the 1994 Plan and 2004 Plan which have expired or could expire, or for any reason have been or could be cancelled or terminated, without being exercised, plus (d) the number of any shares of restricted stock granted under the 1994 Plan and 2004 Plan that have been or could be forfeited, terminated, cancelled or otherwise reacquired by the Registrant without having become vested.
(2) Estimated solely for purposes of determining the registration fee pursuant to Rule 457. The estimated Proposed Maximum Offering Price Per Share was determined pursuant to Rule 457(h) to be the average of the high and low prices reported on the Nasdaq National Stock Market on August 30, 2006, which average was equal to $2.05 per share.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange Commission (SEC) are incorporated in this Registration Statement by reference:
· Annual Report on Form 10-K of Metro One Telecommunications, Inc. (the Registrant) for the year ended December 31, 2005;
· Quarterly Reports on Form 10-Q of the Registrant for the quarters ended March 31, 2006 and June 30, 2006;
· Current Reports on Form 8-K filed with the SEC on January 1, 2006, January 24, 2006, February 16, 2006, February 21, 2006, April 28, 2006, June 2, 2006, July 6, 2006, July 25, 2006 and August 7, 2006; and
· Registration Statement on Form 8-A filed with the SEC under Section 12(g) of the Exchange Act on October 18, 1995.
All documents filed by Registrant pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the Exchange Act), subsequent to the date of the filing of this Registration Statement and prior to the filing of a post-effective amendment to the Registration Statement which indicates that all securities registered under this Registration Statement 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 the filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
As an Oregon corporation, the Registrant is subject to the Oregon Business Corporation Act (OBCA) and the exculpation from liability and indemnification provisions contained therein. Pursuant to Section 60.047(2)(d) of the OBCA, Article X of the Registrants Third Restated Articles of Incorporation (the Articles) eliminates the liability of the Companys directors to the Registrant or its shareholders, except for any liability related to breach of the duty of loyalty, actions not in good faith and certain other liabilities. The Articles require the Registrant to indemnify its directors and officers to the fullest extent not prohibited by law.
II-1
Section 60.387, et seq., of the OBCA allows corporations to indemnify their directors and officers against liability where the director or officer has acted in good faith and with a reasonable belief that actions taken were in the best interests of the corporation or at least not adverse to the corporations best interests and, if in a criminal proceeding, the individual had no reasonable cause to believe the conduct in question was unlawful. Under the OBCA, corporations may not indemnify against liability in connection with a claim by or in the right of the corporation in which the director or officer was adjudged liable to the corporation, but may indemnify against the reasonable expenses associated with such claims. Corporations may not indemnify against breaches of the duty of loyalty. The OBCA mandates indemnification against all reasonable expenses incurred in the successful defense of any claim made or threatened, whether or not such claim was by or in the right of the corporation. Finally, a court may order indemnification if it determines that the director or officer is fairly and reasonably entitled to indemnification in view of all the relevant circumstances whether or not the director or officer met the good faith and reasonable belief standards of conduct set out in the statute. The OBCA also provides that the statutory indemnification provisions are not deemed exclusive of any other rights to which directors or officers may be entitled under a corporations articles of incorporation or bylaws, any agreement, general or specific action of the board of directors, vote of shareholders or otherwise.
In addition to the provisions contained in the Articles, the Amended and Restated Bylaws of the Registrant (the Bylaws) also require the Company to indemnify its directors and officers to the fullest extent permitted by the OBCA. In addition, the Bylaws deem that all rights to indemnification under the Bylaws are deemed to be contractual rights and are to be effective to the same extent as if provided for in a contact between the Registrant and the director or officer who serves in such capacity. the Registrant has also entered into indemnification agreements with each of its officers and directors.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
5.1 |
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Opinion of Heller Ehrman LLP |
10.1 |
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2006 Stock Incentive Plan (incorporated by reference from Appendix A to the Registrants Definitive Proxy Statement on Schedule 14-A filed with the SEC on May 1, 2006) |
23.1 |
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Consent of Heller Ehrman LLP (included in Exhibit 5.1) |
23.2 |
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Consent of Deloitte & Touche LLP |
24.1 |
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Power of Attorney of certain officers and directors (included on page II-5) |
II-2
Item 9. Undertakings.
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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
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 Beaverton, Oregon on September 5, 2006.
METRO ONE TELECOMMUNICATIONS, INC. |
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By |
/s/ Gary E. Henry |
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Gary E. Henry, President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Gary E. Henry and Duane C. Fromhart, or either of them, the undersigneds attorneys-in-fact, with full power of substitution, for the undersigned in any and all capacities, to sign any amendments to this Registration Statement, 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 said attorneys-in-fact, or their substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature |
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Title |
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Date |
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/s/ GARY E. HENRY |
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President, Chief Executive |
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September 5, 2006 |
GARY E. HENRY |
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Officer and Director (Principal |
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Executive Officer) |
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/s/ DUANE C. FROMHART |
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Senior Vice President, Chief |
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September 5, 2006 |
DUANE C. FROMHART |
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Financial Officer (Principal |
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Financial and Accounting |
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Officer) |
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/s/ WILLIAM D. RUTHERFORD |
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Chairman of the Board |
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September 5, 2006 |
WILLIAM D. RUTHERFORD |
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/s/ELCHANAN (NANI) MAOZ |
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Director |
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August 29, 2006 |
ELCHANAN (NANI) MAOZ |
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/s/ MARY H. OLDSHUE |
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Director |
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August 30, 2006 |
MARY H. OLDSHUE |
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/s/ MURRAY L. SWANSON |
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Director |
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August 28, 2006 |
MURRAY L. SWANSON |
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/s/ JAMES M. USDAN |
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Director |
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September 5, 2006 |
JAMES M. USDAN |
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II-5
EXHIBIT INDEX
Exhibit No. |
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Description |
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5.1 |
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Opinion of Heller Ehrman LLP |
10.1 |
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2006 Stock Incentive Plan (incorporated by reference from Appendix A to the Registrants Definitive Proxy Statement on Schedule 14-A filed with the SEC on May 1, 2006) |
23.1 |
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Consent of Heller Ehrman LLP (included in Exhibit 5.1) |
23.2 |
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Consent of Deloitte & Touche LLP |
24.1 |
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Power of Attorney of certain officers and directors (included on page II-5) |