As filed with the Securities and Exchange Commission on May 1, 2002
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION |
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Washington, DC 20549 |
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FORM S-8 |
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REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 |
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SOCKET COMMUNICATIONS, INC. |
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(Exact name of Registrant as specified in its charter) |
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____________________ |
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DELAWARE |
94-3155066 |
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(State of incorporation) |
(I.R.S. Employer Identification No.) |
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37400 Central Court |
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(Address of principal executive offices) |
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AMENDED AND RESTATED 1995 STOCK PLAN |
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(Full title of the Plan) |
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____________________ |
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DAVID W. DUNLAP |
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(Name, address, and telephone number, including area code, of agent for service) |
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____________________ |
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Copies to: |
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Herbert P. Fockler, Esq. |
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CALCULATION OF
REGISTRATION FEE
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Title of Each Class of Securities to be Registered |
Amount to be Registered |
Proposed Maximum Offering Price Per Share |
Proposed |
Amount of |
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Amended
and Restated 1995 Stock Plan Common Stock, $0.001 par value
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944,180
shares
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$1.42(1) |
$
1,340,735.60
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$ 123.35 |
(1) Estimated in accordance with Rules 457(c) and 457(h) under the Securities
Act of 1933 solely for the purpose of calculating registration fee. In accordance
with Rules 457(c) and 457(h), the computation is based on the average of the
high and low sale prices for the Common Stock of Socket Communications, Inc.
reported by the Nasdaq National Market on April 30, 2002.
SOCKET COMMUNICATIONS, INC.
REGISTRATION STATEMENT ON FORM S-8
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents and information previously filed with the Securities and Exchange Commission by Socket Communications, Inc. (the "Registrant") are hereby incorporated by reference in this Registration Statement:
(a) The Registrant's amended Annual Report on Form 10-K/A for the fiscal year ended December 31, 2001 filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act").
(b) The current reports of Registrant on Form 8-K filed pursuant to Section 13 of the Exchange Act on March 15, 2002 and April 10, 2002.
(c) The description of the Registrant's Common Stock contained in the Registration Statement on Form 8-A filed pursuant to Section 12(b) of the Exchange Act on April 11, 1995 and amended on June 15, 1995.
(d) The Registrant's Amended and Restated 1995 Stock Plan filed as an exhibit to Form S-8 on July 27, 2001.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the filing 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 the Registration Statement and to be part hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law (the "Delaware Law") authorizes a court to award, or a corporation's Board of Directors to grant, indemnity 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 "Securities Act"). Article VII of the Registrant's Certificate of Incorporation and Article VI of the Registrant's Bylaws provide for indemnification of the Registrant's directors, officers, employees and other agents to the maximum extent permitted by Delaware Law. In addition, the Registrant has entered into Indemnification Agreements with its officers and directors and certain stockholders.
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Insofar as indemnification by us for liabilities arising under the Securities Act may be permitted to our directors, officers and controlling persons pursuant to the provisions referenced above or otherwise, we have 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 us of expenses incurred or paid by one of our directors, officers, or controlling persons 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 hereunder, we will, unless in the opinion of our 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.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
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Exhibit Number |
Description |
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4.1 (1) |
Amended and Restated 1995 Stock Plan. |
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5.1
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Opinion of Wilson Sonsini Goodrich & Rosati, P.C. as to legality of securities being registered. |
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23.1 |
Consent of Wilson Sonsini Goodrich & Rosati, P.C. (contained in Exhibit 5.1). |
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23.2 |
Consent of Ernst & Young LLP, Independent Accountants. |
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24.1 |
Power of Attorney. (see page II-4) |
(1) Incorporated by reference to exhibits filed with the Company's Form S-8 on July 27, 2001
Item 9. Undertakings.
(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:
(i) To include any prospectus required by section 10(a)(3) of the Securities Act of 1933;
(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. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement;
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(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 (a)(1)(i) and (a)(1)(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 Securities Exchange Act of 1934 that are incorporated by reference in this registration statement.
(2) That, for the purpose of determining any 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 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.
(b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filling 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 an initial bona fide offering thereof.
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SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, 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 Newark, State of California, on this 30th day of April, 2002.
SOCKET COMMUNICATIONS,
INC.
By:
/s/ Kevin J. Mills
Kevin
J. Mills
President
and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints, jointly and severally, Kevin J. Mills and David Dunlap as his attorneys-in-fact, each with the power of substitution, for him in any and all capacities, to sign any and all 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 attorney-in-fact, or his substitute or substitutes, may do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the Registrant and in the capacities and on the dates indicated.
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Signature |
Title |
Date |
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/s/Kevin Mills Kevin Mills |
President and Chief Executive Officer |
April 30, 2002 |
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/s/ Charlie Bass |
Chairman of the Board |
April 30, 2002 |
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/s/ David W. Dunlap |
Vice President of Finance and Administration and Chief Financial Officer (Principal Financial and Accounting Officer) |
April 30, 2002 |
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/s/ Michael Gifford |
Executive Vice President and Director |
April 30, 2002 |
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/s/ Enzo Torresi |
Director |
April 30, 2002 |
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/s/ Gianluca Rattazzi |
Director |
April 30, 2002 |
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/s/ Burnett Donoho |
Director |
April 30, 2002 | ||
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/s/ Leon Malmed |
Director |
April 30, 2002 |
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
EXHIBITS
Registration Statement on Form S-8
SOCKET COMMUNICATIONS, INC.
INDEX TO EXHIBITS
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Exhibit Number |
Description |
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4.1 |
Amended and Restated 1995 Stock Plan. |
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5.1
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Opinion of Wilson Sonsini Goodrich & Rosati, P.C. as to legality of securities being registered. |
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23.1 |
Consent of Wilson Sonsini Goodrich & Rosati, P.C. (contained in Exhibit 5.1). |
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23.2 |
Consent of Ernst & Young LLP, Independent Auditors. |
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24.1 |
Power of Attorney. (see page II-4) |
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Exhibit 5.1
Wilson Sonsini Goodrich
& Rosati
650 Page Mill Road
Palo Alto, CA 94304-1050
April 30, 2002
Socket Communications,
Inc.
37400 Central Court
Newark, CA 94560
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by you with the Securities and Exchange Commission on or about May 1, 2002 (the "Registration Statement") in connection with the registration under the Securities Act of 1933, as amended, of 944,180 shares of your Common Stock (the "Shares") reserved for issuance under the Amended and Restated 1995 Stock Plan (the "Plan"). As your legal counsel, we have examined the proceedings taken and are familiar with the proceedings proposed to be taken by you in connection with the sale and issuance of the Shares under the Plan.
It is our opinion that, when issued and sold in the manner referred to in the Plan and pursuant to the standard agreements which accompany any grant under the Plan, the Shares will be legally and validly issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration Statement and further consent to the use of our name wherever it appears in the Registration Statement and any amendment thereto.
Professional Corporation
/s/ Wilson Sonsini Goodrich & Rosati
Exhibit 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement on Form S-8 pertaining to the Amended and Restated 1995 Stock Plan of Socket Communications, Inc. of our report dated February 12, 2002, with respect to the consolidated financial statements of Socket Communications, Inc. included in its amended Annual Report (Form 10-K/A) for the year ended December 31, 2001, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
San Jose,
California
April 30, 2002