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Registration No. 333-__________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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NOTIFY TECHNOLOGY CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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CALIFORNIA 77-0382248
(STATE OF INCORPORATION) (I.R.S. EMPLOYER
IDENTIFICATION NO.)
1054 S. DE ANZA BLVD. SUITE 105
SAN JOSE, CALIFORNIA 95129
(408) 777-7920
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
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1997 STOCK OPTION PLAN
(FULL TITLE OF THE PLAN)
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PAUL F. DEPOND
CHAIRMAN OF THE BOARD, PRESIDENT
AND CHIEF EXECUTIVE OFFICER
NOTIFY TECHNOLOGY CORPORATION
1054 S. DE ANZA BLVD. SUITE 105
SAN JOSE, CALIFORNIA 95129
(408) 777-7920
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
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Copies to:
Henry P. Massey, Jr., Esq.
Bradley A. Bugdanowitz, Esq.
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304-1050
650-493-9300
CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum
Title of Securities Amount to Offering Price Aggregate Offering Amount of
to be Registered be Registered Per Share (1) Price Registration Fee
- ----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.001 par value 200,000 $2.4375 $487,500 $144
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(1) Estimated in accordance with Rule 457(h) under the Securities Act of 1933,
as amended, solely for the purpose of calculating the total registration fee.
The average of the high and low prices of the Common Stock as reported on the
Nasdaq SmallCap Market on July 14, 1998 was $2.4375.
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PART II: INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INFORMATION INCORPORATED BY REFERENCE.
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The following documents and information heretofore filed with the
Securities and Exchange Commission are hereby incorporated by reference:
ITEM 3(a)
The Registrant's Annual Report on Form 10-KSB for the fiscal year
ended September 30, 1997, filed on December 29, 1997 pursuant to Section 13
of the Securities Exchange Act of 1934, as amended (the "Exchange Act").
ITEM 3(b)
The Registrant's Quarterly Report on Form 10-QSB for the quarterly
period ended December 31, 1997, filed on February 13, 1998 and the
Registrant's Quarterly Report on Form 10-QSB for the quarterly period ended
March 31, 1998, filed on May 14, 1998.
ITEM 3(c)
The description of the Company's Common Stock as set forth in the
Company's Registration Statement on Form SB-2, Registration Number 333-
23369, filed on March 14, 1997, as amended by Amendment No. 1, filed on May
29, 1997, Amendment No. 2, filed on August 15, 1997, Amendment No. 3, filed
on August 27, 1997, Post-Effective Amendment No. 1, filed on January 29,
1998 and Post-Effective Amendment No. 2, filed on July 2, 1998.
Item 1 of the Registrant's Registration Statement on Form 8-A, filed
on August 22, 1997, pursuant to Section 12 of the Exchange Act.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, 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.
--------------------------------------
Not Applicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
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Section 317 of the California Corporation Code authorizes a court to award,
or a corporation's Board of Directors to grant, indemnity to any person who is
or was a director or officer in terms sufficiently broad to permit such
indemnification under certain circumstances for liabilities (including
reimbursement for expenses incurred) arising under the Securities Act. Article V
of the Company's Amended and Restated Articles of Incorporation (see Exhibit
4.1) provides for indemnification of its directors, officers, employees and
other agents to the maximum extent permitted under California law. Section 29 of
the Company's Bylaws provides for indemnification of its directors, officers,
employees and other agents to the maximum extent permitted under California law.
In addition, the Company has entered into Indemnification Agreements with its
officers and directors. Reference is also made to the Underwriting Agreement
entered into in connection with the Company's initial public offering, pursuant
to which the underwriters of the Company's initial public offering agreed to
indemnify officers and directors of the Company against certain liabilities (See
Exhibit 1.1 to the Registrant's Registration Statement on Form SB-2,
Registration Number 333-23369, filed on March 14, 1997).
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
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Not Applicable.
ITEM 8. EXHIBITS.
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Exhibit
Number Document
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4.1 1997 Stock Option Plan -- incorporated by reference to
exhibit 10.7 of the Registrant's Registration Statement
on Form SB-2, Registration No. 333-23369, declared
effective on August 28, 1997.
5.1 Opinion of Counsel as to Legality of Securities Being
Registered.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Counsel (contained in Exhibit 5.1 hereto).
24.1 Power of Attorney (See Page 5).
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, 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
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, the Registrant, Notify
Technology Corporation, a corporation organized and existing under the laws of
the State of California, 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 Jose, State of California, on June
11, 1998.
NOTIFY TECHNOLOGY CORPORATION
By: /s/ Paul F. DePond
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Paul F. DePond, President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Paul F. DePond and Gerald W. Rice,
jointly and severally, his or her attorneys-in-fact, each with the power of
substitution, for him or her 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 substitute 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 by the following persons in the capacities and on the
dates indicated.
SIGNATURE TITLE DATE
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/s/ Paul F. DePond President, Chief Executive Officer and June 11, 1998
- ---------------------- Chairman (Principal Executive Officer)
Paul F. DePond
/s/ Gerald W. Rice Chief Financial Officer (Principal June 11, 1998
- ---------------------- Financial and Accounting Officer)
Gerald W. Rice
/s/ Gaylan I. Larson Vice President, Operations and Director June 11, 1998
- ----------------------
Gaylan I. Larson
Director
- ----------------------
Michael Ballard
Director
- ----------------------
Andrew Plevin
/s/ Michael Smith Director June 12, 1998
- ----------------------
Michael Smith
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INDEX TO EXHIBITS
Exhibit
Number Document
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4.1 1997 Stock Option Plan.
5.1 Opinion of Counsel as to Legality of Securities Being Registered.
23.1 Consent of Ernst & Young LLP, Independent Auditors (see page 8).
23.2 Consent of Counsel (contained in Exhibit 5.1 hereto).
24.1 Power of Attorney (see page 5).
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EXHIBIT 5.1
July 17, 1998
Notify Technology Corporation
1054 S. De Anza Blvd. Suite 105
San Jose, California 95129
RE: REGISTRATION STATEMENT ON FORM S-8
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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 July 17, 1998 (the
"Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended, of a total of 200,000 shares of your Common
Stock (the "Shares") reserved for issuance under the 1997 Stock Option Plan (the
"Plan"). As legal counsel for Notify Technology Corporation, 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 agreement which accompanies each 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 amendments thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ Wilson Sonsini Goodrich & Rosati
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Exhibit 23.1
CONSENT OF ERNST & YOUNG LLP INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the 1997 Stock Option Plan of Notify Technology
Corporation of our report dated October 17, 1997, with respect to the financial
statements of Notify Technology Corporation included in its Annual Report
(Form 10-KSB) for the year ended September 30, 1997 filed with the Securities
and Exchange Commission.
/s/ ERNST & YOUNG LLP
San Jose, California
July 15, 1998
