<PAGE>
As filed with the Securities and Exchange Commission on August 23, 2000
Registration No. 333-
________________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------------------
Evoke Communications, Inc.
(Exact name of registrant as specified in its charter)
Delaware 84-1407805
(State of Incorporation) (I.R.S. Employer Identification No.)
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1157 Century Drive
Louisville, Colorado 80027
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(Address of principal executive offices)
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2000 Equity IncentivePlan
2000 Employee Stock Purchase Plan
Contigo 1999 Stock Option Plan
Contigo 1999 Section 25102(o) Stock Option/Stock Issuance Plan
----------------------------
(Full title of the plans)
Paul A. Berberian
President and Chief Executive Officer
Evoke Communications, Inc.
1157 Century Drive
Louisville, Colorado 80027
(800) 878-7326
----------------------------
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
----------------------------
Copies to:
Michael L. Platt, Esq.
Jonathan J. Taylor, Esq.
Cooley Godward LLP
2595 Canyon Boulevard, Suite 250
Boulder, Colorado 80302
(303) 546-4000
----------------------------
<PAGE>
CALCULATION OF REGISTRATION FEE
================================================================================
<TABLE>
<CAPTION>
=====================================================================================================================
Proposed Maximum Proposed
Title of Securities Amount to be Offering Price Per Maximum Aggregate Amount of
to be Registered Registered Share (1) Offering Price (1) Registration Fee
---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par
value $.0015 per 13,641,498 shares $5.36 $73,080,414.06 $19,293.23
share
=====================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rules 457(c) and (h)(1) under the Securities
Act of 1933, as amended (the "Securities Act"). The price per share and
aggregate offering price are based upon (i) the weighted average exercise
price for shares subject to options previously granted under the
Registrant's 2000 Equity Incentive Plan, 2000 Employee Stock Purchase Plan,
Contigo 1999 Stock Option Plan and Contigo 1999 Section 25102(o) Stock
Option/Stock Issuance Plan pursuant to Rule 457(h)(1) under the Securities
Act, and (b) for shares granted after the date hereof, the average of the
high and low prices of the Registrant's Common Stock on August 17, 2000, as
reported on The Nasdaq Stock Market (National Market). The following chart
illustrates our calculation of the registration fee:
<TABLE>
<CAPTION>
=========================================================================================================================
Type of Shares Number of Shares Offering Price Per Share Aggregate Offering Price
-------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Shares issuable pursuant to
options outstanding under the 5,558,747 $6.46(a) $35,909,505.62
2000 Equity Incentive Plan
-------------------------------------------------------------------------------------------------------------------------
Shares issuable upon exercise of
options available for grant
under the 2000 Equity Incentive 6,107,920 $5.29(b) $32,310,896.80
Plan
-------------------------------------------------------------------------------------------------------------------------
Shares issuable upon exercise of
options available for grant
under the 2000 Employee Stock 400,000 $5.29(b) $ 2,116,000
Purchase Plan
-------------------------------------------------------------------------------------------------------------------------
Shares issuable pursuant to
options outstanding under the
Contigo 1999 Stock Option Plan 1,442,390 $1.66(a) $ 2,394,367.40
-------------------------------------------------------------------------------------------------------------------------
Shares issuable pursuant to
options outstanding under the
Contigo 1999 Section 25102(o) 132,441 $2.64(a) $ 349,644.24
Stock Option/Stock Issuance Plan
=========================================================================================================================
</TABLE>
(a) Based on the weighted average exercise price of options outstanding.
(b) Based on the proposed maximum offering price of the Registrant's
securities computed in accordance with Rule 457(h) under the
Securities Act.
================================================================================
Approximate date of commencement of proposed sale to the public: As soon
as practicable after this Registration Statement becomes effective.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Evoke Communications, Inc. (the "Company")
with the Securities and Exchange Commission (the "Commission") are incorporated
by reference into this Registration Statement:
(a) The Registrant's Prospectus dated July 24, 2000 filed pursuant to Rule
424(b) under the Securities Act that contains audited financial statements for
the Registrant's latest fiscal year for which such statements have been filed
and a description of the Registrant's Common Stock.
(b) All reports and other documents filed by the Registrant with the
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") after the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all of the securities offered hereby have been sold or
which deregisters all such securities then remaining unsold.
(c) The description of the Company's Common Stock contained in the
Registrant's Registration Statement on Form S-1 (File No. 000-30708) filed under
the Securities Act, including any amendment or report filed for the purpose of
updating such description.
Any statement contained in a document incorporated, or deemed to be
incorporated, by reference herein or contained in this Registration Statement
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.
DESCRIPTION OF SECURITIES
Not Applicable.
INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant's Restated Certificate of Incorporation provides to the
fullest extent permitted by Delaware law, the Registrant's directors will not be
liable for monetary damages for breach of the directors' fiduciary duty to the
Registrant and its stockholders. Delaware law provides that directors of a
corporation will not be personally liable for monetary damages for breach of
their fiduciary duties as directors except liability for breach of their duty of
loyalty to the corporation or its stockholders, acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
unlawful payments of dividends or unlawful stock repurchases or redemptions, or
any transaction from which the director derived an improper personal benefit.
Such limitation of liability does not apply to liabilities arising under the
federal or state securities laws and does not affect the availability of
equitable remedies such as injunctive relief or rescission.
The Registrant's Bylaws provide that it shall indemnify its directors and
executive officers and may indemnify other officers, employees and agents to the
fullest extent permitted by law. The Registrant's Bylaws also permit it to
secure insurance on behalf of any person required or permitted to be
indemnified.
The Registrant has entered into indemnity agreements with each of its
directors and executive officers under which each director and executive officer
will be indemnified against expenses and losses incurred for claims brought
against them by reason of their being a director or executive officer of
Registrant. Registrant's board of directors has authorized the officers of
Registrant to investigate and obtain directors' and officers' liability
insurance.
3
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EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description
<S> <C>
4.1 Restated Certificate of Incorporation of the Registrant (incorporated by reference to Exhibit 3.2 to
the Registrant's Registration Statement on Form S-1 (Registration No. 333-30708)).
4.2 Bylaws of the Registrant (incorporated by reference to Exhibit 3.4 to the Registrant's Registration
Statement on Form S-1 (Registration No. 333-30708)).
4.3 Specimen stock certificate (incorporated by reference to Exhibit 4.2 to the Registrant's
Registration Statement on Form S-1 (Registration No. 333-30708)).
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of KPMG LLP.
23.2 Consent of Cooley Godward LLP (included in Exhibit 5.1).
24.1 Power of Attorney (included on page 6).
99.1 2000 Equity Incentive Plan (incorporated by reference to Exhibit 10.1 to the Registrant's
Registration Statement on Form S-1 (Registration No. 333-30708)).
99.2 2000 Employee Stock Purchase Plan (incorporated by reference to Exhibit 10.2 to the Registrant's
Registration Statement on Form S-1 (Registration No. 333-30708)).
99.3 Contigo 1999 Stock Option Plan.
99.4 Contigo 1999 Section 25102(o) Stock Option/Stock Issuance Plan.
</TABLE>
UNDERTAKINGS
1. The undersigned registrant hereby undertakes:
(a) 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) (Section 230.424(b) of this
chapter) if, in the aggregate, the changes in volume and price represent no more
than a 20%
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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)(i) and (a)(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 with or furnished to the
Commission by the Registrant pursuant to section 13 or section 15(d) of the
Exchange Act that are incorporated by reference herein.
(b) 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 herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) 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.
2. 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 herein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
3. 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 of 1933, as amended, 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 Louisville, State of Colorado on August 23, 2000.
Evoke Communications, Inc.
By: /s/ PAUL A. BERBERIAN
---------------------
Paul A. Berberian
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 A. Berberian his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorney-in-fact and agent, full power and authority to do and perform
each and every act and thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ PAUL A. BERBERIAN Chairman of the Board, Chief Executive August 23, 2000
------------------------------------------ Officer and President (Principal
Paul A. Berberian Executive Officer)
/s/ JAMES M. LEJEAL Chief Operating Officer, Secretary, August 23, 2000
------------------------------------------ Treasurer and Director (Principal
James M. LeJeal Accounting Officer)
/s/ TERENCE G. KAWAJA Executive Vice President and Chief August 23, 2000
------------------------------------------ Financial Officer (Principal Financial
Terence G. Kawaja Officer)
/s/ BRADLEY A. FELD Director August 23, 2000
------------------------------------------
Bradley A. Feld
/s/ CAROL DEB. WHITAKER Director August 23, 2000
------------------------------------------
Carol deB. Whitaker
/s/ DONALD P. HUTCHISON Director August 23, 2000
------------------------------------------
Donald P. Hutchison
/s/ STEVEN C. HALSTEDT Director August 23, 2000
------------------------------------------
Steven C. Halstedt
/s/ ANDRE MEYER Director August 23, 2000
------------------------------------------
Andre Meyer
/s/ MASSIH TAYEBI Director August 23, 2000
------------------------------------------
Massih Tayebi
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
<S> <C>
4.1 Restated Certificate of Incorporation of the Registrant (incorporated by reference to Exhibit 3.2 to
the Registrant's Registration Statement on Form S-1 (Registration No. 333-30708)).
4.2 Bylaws of the Registrant (incorporated by reference to Exhibit 3.4 to the Registrant's Registration
Statement on Form S-1 (Registration No. 333-30708)).
4.3 Specimen stock certificate (incorporated by reference to Exhibit 4.2 to the Registrant's
Registration Statement on Form S-1 (Registration No. 333-30708)).
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of KPMG LLP.
23.2 Consent of Cooley Godward LLP (included in Exhibit 5.1).
24.1 Power of Attorney (included on page 6).
99.1 2000 Equity Incentive Plan (incorporated by reference to Exhibit 10.1 to the Registrant's
Registration Statement on Form S-1 (Registration No. 333-30708)).
99.2 2000 Employee Stock Purchase Plan (incorporated by reference to Exhibit 10.2 to the Registrant's
Registration Statement on Form S-1 (Registration No. 333-30708)).
99.3 Contigo 1999 Stock Option Plan.
99.4 Contigo 1999 Section 25102(o) Stock Option/Stock Issuance Plan.
</TABLE>
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