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As filed with the Securities and Exchange Commission on April 18, 2000
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 77-0282248
State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
1054 S. De Anza Blvd. Suite 105
San Jose, California 95129
(Address of principal executive offices)
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1997 Stock Plan
Stock Option Agreement dated November 11, 1999
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Paul F. DePond
Chairman of the Board, President
and Chief Executive
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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Copy to:
Henry P. Massey, Jr., Esq.
Wilson Sonsini Goodrich & Rosati, P.C.
650 Page Mill Road
Palo Alto, California 94304
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CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum Amount of
Amount to be Offering Price Aggregate Registration
Title of Securities to be Registered Registered(1) Per Share Offering Price Fee
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<S> <C> <C> <C> <C>
Common Stock, $.001 par value,to be issued 40,000 $7.906(2) $ 316,240 $ 83
Pursuant to a Stock Option Agreement
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Common Stock, $.001 par value, 500,000 $4.875(3) $2,437,500 $644
to be issued under the 1997 Stock Plan
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Total 540,000 $2,753,740 $727
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(1) For the sole purpose of calculating the registration fee, the number of
shares to be registered under this Registration Statement is the number of
shares underlying a stock option granted to an employee of the Registrant
and the number of additional shares authorized to be issued under the 1997
Stock Plan.
(2) $7.906 represents the exercise price per share of Common Stock.
(3) 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. Computation based upon the average of the high and low reported prices
of the Common Stock as reported on the Nasdaq Small Cap Market on April 17,
2000 because the exercise prices for the options to be granted in the future
and the prices at which shares will be purchased in the future are not
currently determinable
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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, 1999, filed on December 28, 1999 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, 1999, filed on February 14, 2000.
Item 3(c)
The description of our common stock which is contained in our
registration statement on Form 8-A filed on August 22, 1997, pursuant to
Section 12(g) 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.
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Not Applicable.
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Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
-----------------------------------------
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 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. Article VI of the Company's
Amended and Restated Bylaws (see Exhibit 4.2) 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 Amendment No. 1 to the
Registrant's Registration Statement on Form SB-2, Registration Number 333-23369,
filed on May 29, 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 Restated Articles of Incorporation of the Registrant.
(incorporated herein by reference to exhibit 3.1 to the
Registrant's Registration Statement on Form SB-2,
Registration No. 333-23369, filed on March 14, 1997.)
4.2 Amended and Restated Bylaws of Registrant. (incorporated
herein by reference to exhibit 3.2 to Post-Effective
Amendment No. 4 to the Registrant's Registration
Statement on Form SB-2, Reg. No. 333-23369, filed on
April 18, 2000)
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 II-4).
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
April 12, 2000.
NOTIFY TECHNOLOGY CORPORATION
By: /s/ Paul F. DePond
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Paul F. DePond, President and Chief Executive Officer
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.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ Paul F. DePond President, Chief Executive Officer and April 12, 2000
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Paul F. DePond Chairman (Principal Executive Officer)
/s/ Gerald W. Rice Chief Financial Officer (Principal April 11, 2000
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Gerald W. Rice Financial and Accounting Officer)
/s/ Gaylan I. Larson Vice President, Operations and Director April 12, 2000
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Gaylan I. Larson
Director
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Michael Ballard
/s/ Andrew Plevin Director April 13, 2000
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Andrew Plevin
Director
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David Brewer
</TABLE>
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INDEX TO EXHIBITS
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Exhibit Number Document
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<C> <S>
4.1 Restated Articles of Incorporation of the Registrant. (incorporated herein by
reference to exhibit 3.2 to the Registrant's Registration Statement on Form SB-2,
Registration No. 333-23369, filed on March 14, 1997)
4.2 Amended and Restated Bylaws of Registrant. (incorporated herein by reference to
exhibit 3.2 to Post-Effective Amendment No. 4 to the Registrant's Registration
Statement on Form SB-2, Reg. No. 333-23369, filed on April 18, 2000)
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 II-4).
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EXHIBIT 5.1
April 17, 2000
Notify Technology Corporation
1054 S. De Anza Blvd. Suite 105
San Jose, California 95129
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 April 18, 2000 (the
"Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended, of 40,000 shares (the "Agreement Shares") of
your Common Stock reserved for issuance to an employee pursuant to a Stock
Option Agreement, dated November 11, 1999, between Dane Russell and Notify
Technology Corporation (the "Stock Option Agreement") and 500,000 shares (the
"Plan Shares") of your Common Stock reserved for issuance under the 1997 Stock
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 Plan Shares
under the Plan and of the Agreement Shares pursuant to the Stock Option
Agreement.
It is our opinion that, when issued and sold in the manner referred to in
the Stock Option Agreement, the Agreement Shares will be legally and validly
issued, fully paid and nonassessable, and 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 Plan 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,
/s/ Wilson Sonsini Goodrich & Rosati
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
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Exhibit 23.1
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CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the 1997 Stock Plan and Stock Option Agreement dated November
11, 1999 of Notify Technology Corporation, of our report dated October 25, 1999,
with respect to the financial statements of Notify Technology Corporation
included in its Annual Report (Form 10-KSB) for the year ended September 30,
1999, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
San Jose, California
April 11, 2000
