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SECURITIES AND EXCHANGE COMMISSION |
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Washington, DC 20549 |
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____________________
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FORM S-8 |
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REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 |
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____________________
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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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____________________
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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 |
Proposed |
Amount of |
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Common
Stock, par value $0.001 per share(1)
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964,559
shares
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$1.78 |
$
1,716,915
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$ 138.90 |
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Common
Stock, par value $0.001 per share (3), (4)
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500,000
shares
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$1.78 |
$
890,000
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$ 72.00 |
(1) Shares of Common Stock of Socket Communications, Inc. to
be registered under the Amended and Restated 1995 Sock Option Plan.
(2) 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 June 20, 2003.
(3) Shares of Common Stock of Socket Communications, Inc. to be registered under
the Socket Communications, Inc. 401(k) Plan. Pursuant to Rule 416(a) under the
Securities Act of 1933, as amended (the "Securities Act"), this registration
statement shall also cover any additional shares of Common Stock of Socket Communications,
Inc. that became issuable under the Socket Communications, Inc. 401(k) Plan
described herein by reason of any stock dividend, stock split, recapitalization
or any similar transaction effected without Socket Communications, Inc.'s receipt
of consideration and results in an increase in the number of shares of Common
Stock of Socket Communications, Inc. outstanding.
(4) Associated with Common Stock are Common Stock Purchase Rights that will
not be exercisable until the occurrence of certain prescribed events, none of
which has occurred. In addition, pursuant to Rule 416(c) under the Securities
Act, this Registration Statement also covers an indeterminate amount of interests
to be offered and sold pursuant to the Socket Communications, Inc. 401(k) Plan.
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 Annual Report on Form 10-K for the fiscal year ended December 31, 2002 filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 as amended (the "Exchange Act") on March 31, 2003.
(b) The Registrant's Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2003 filed pursuant to Section 13(a) or 15(d) of the Exchange Act on May 15, 2003.
(c) The current reports of Registrant on Form 8-K filed pursuant to Section 13 of the Exchange Act on March 25, 2003, April 23,2003, and June 10, 2003.
(d) The description of the Registrant's Common Stock contained in the Registration Statement on Form 8-A/A filed pursuant to Section 12(b) of the Exchange Act on April 11, 1995 and amended on June 15, 1995.
(e) 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 and officers and authorize indemnification of 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.
Insofar
as indemnification by Registrant for liabilities arising under the Securities
Act may be permitted to its directors, officers and controlling persons pursuant
to the provisions referenced above 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 Registrant of expenses incurred or paid by one of
Registrant's 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,
Registrant will, unless in the opinion of Registrant's 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 |
Description |
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4.1 (1) |
Amended and Restated 1995 Stock Plan. |
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4.2 |
Socket Communications, Inc. 401(k) Plan (Kaufmann & Goble Associates, Inc. Prototype Standardized Profit Sharing Plan). |
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4.3 |
Socket Communications, Inc. 401(k) Plan (Kaufmann & Goble Associates, Inc. 401(k) Plan Adoption Agreement #009). |
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5.1
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Opinion of Wilson Sonsini Goodrich & Rosati, P.C. |
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5.2
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Opinion Letter from Internal Revenue Service to Kaufmann & Goble Associates, Inc., dated November 19, 2001. |
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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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(1) Incorporated by reference to exhibits filed
with the Company's Form S-8 filed on July 27, 2001
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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;
(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;
(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 Exchange Act that are incorporated by reference in this 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.
(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 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.
(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 Commission such indemnification is a joint 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.
SIGNATURES
THE
REGISTRANT
Pursuant to the requirements of the Securities Exchange 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 Newark, State of California, on this 25th day of June, 2003.
SOCKET
COMMUNICATIONS, INC.
By: /s/ David W. Dunlap
David W. Dunlap
Chief Financial Officer and
Vice President of
Finance and Administration
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, and each one of them individually, 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 (Principal Executive Officer) and Director |
June 25, 2003 |
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/s/ David W.
Dunlap |
Vice President of Finance and Administration and Chief Financial Officer (Principal Financial and Accounting Officer) |
June 25, 2003 |
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/s/ Charlie Bass |
Chairman of the Board |
June 25, 2003 |
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/s/ Michael Gifford |
Executive Vice President and Director |
June 25, 2003 |
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/s/ Enzo Torresi |
Director |
June 25, 2003 |
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/s/ Gianluca Rattazzi |
Director |
June 25, 2003 |
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/s/ Peter Sealey |
Director |
June 25, 2003 | ||
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/s/ Leon Malmed |
Director |
June 25, 2003 |
Pursuant to the requirements of the Securities Act of 1933, the Registrant, as administrator of the Socket Communications 401(k) Plan, 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 the 25th day of June, 2003.
By: /s/ David W. Dunlap
David W. Dunlap
Chief Financial Officer and Vice President of
Finance and Administration
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 |
Description |
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4.1 (1) |
Amended and Restated 1995 Stock Plan. |
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4.2 |
Socket Communications, Inc. 401(k) Plan (Kaufmann & Goble Associates, Inc. Prototype Standardized Profit Sharing Plan). |
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4.3 |
Socket Communications, Inc. 401(k) Plan (Kaufmann & Goble Associates, Inc. 401(k) Plan Adoption Agreement #009). |
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5.1
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Opinion of Wilson Sonsini Goodrich & Rosati, P.C. |
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5.2
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Opinion Letter from Internal Revenue Service to Kaufmann & Goble Associates, Inc., dated November 19, 2001. |
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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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(1)
Incorporated by reference to exhibits filed with the Company's Form S-8
filed on July 27, 2001
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Exhibit 5.1
Wilson Sonsini
Goodrich & Rosati
650 Page Mill Road
Palo Alto, CA 94304-1050
June 20, 2003
Socket Communications,
Inc.
37400 Central Court
Newark, CA 94560
Re: Registration Statement on Form S-8
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 June 24, 2003 (the "Registration Statement") in connection
with the registration under the Securities Act of 1933, as amended, of 1,464,559
shares of your Common Stock (the "Shares") reserved for issuance under
the Amended and Restated 1995 Stock Plan (the "Stock Plan") and the
Socket Communications, Inc. 401(k) Plan (the "401(k) 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 Stock Plan and 401(k) Plan.
It is our opinion that,
when issued and sold in the manner referred to in the Stock Plan and the 401(k)
Plan and pursuant to the standard agreements which accompany any sale under
the Stock Plan and 401(k) 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.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ Wilson Sonsini Goodrich & Rosati
Exhibit 23.2
CONSENT
OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement on Form S-8 (No. 333-____) pertaining to the Amended and Restated 1995 Stock Plan and Socket Communications, Inc. 401(k) Plan of our report dated February 10, 2003 (except Note 14, as to which the date is March 28, 2003), with respect to the consolidated financial statements of Socket Communications, Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 2002, filed with the Securities and Exchange Commission.
/s/ ERNST
& YOUNG LLP
San Jose, California
June 23, 2003