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As filed with the Securities and Exchange Commission on June 21, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
________________
PHONE.COM, INC.
(Exact name of Registrant as specified in its charter)
Delaware 94-3219054
(State of incorporation) (I.R.S. Employer Identification No.)
800 Chesapeake Drive
Redwood City, California 94063
(Address of principal executive offices)
_______________________
1999 Employee Stock Purchase Plan
1996 Stock Plan
1995 Stock Plan
1999 Directors' Stock Option Plan
(Full title of the Plan)
Alain Rossmann
Chairman and Chief Executive Officer
Phone.com, Inc.
800 Chesapeake Drive
Redwood City, California 94063
(650) 562-0200
(Name, address and telephone number, including area code, of agent for service)
_______________________
Copy to:
Mark A. Medearis
Carl L. Spataro, Jr.
Venture Law Group
A Professional Corporation
2775 Sand Hill Road
Menlo Park, California 94025
(650) 854-4488
Page 1 of 9 Pages
Exhibit Index on Page 7
(Calculation of Registration Fee on following page)
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<TABLE>
<CAPTION>
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Maximum Maximum Maximum Amount of
Amount to be Offering Price Aggregate Registration Fee
Title of Securities to be Registered Registered(1) Per Share Offering Price
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<S> <C> <C> <C> <C>
1999 Employee Stock Purchase Plan
Common Stock,
$0.001 par value........................... 600,000 Shares $28.90(2) $17,340,000.00 $ 4,820.52
1996 Stock Plan
Common Stock,
$0.001 par value.......................... 3,034,910 Shares $ 2.88(3) $ 8,740,540.80 $ 2,429.87
Common Stock,
$0.001 par value.......................... 4,159,959 Shares $34.00(4) $141,438,606.00 $39,319.93
1995 Stock Plan
Common Stock,
$0.001 par value.......................... 445,166 Shares $0.17(3) $75,678.22 $ 21.04
1999 Directors' Stock Option Plan
Common Stock,
$0.001 par value........................... 600,000 Shares $34.00(4) $ 20,400,000.00 $ 5,671.20
TOTAL 8,840,035 Shares $187,994,825.02 $52,262.56
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(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under any Plan being registered pursuant
to this Registration Statement by reason of any stock dividend, stock
split, recapitalization or any other similar transaction effected without
the receipt of consideration which results in an increase in the number of
the Registrant's outstanding shares of Common Stock.
(2) Estimated in accordance with Rule 457(h) under the Securities Act of 1933
(the "Securities Act") solely for the purpose of calculating the
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registration fee. The computation is based upon the average of the high
and low sale prices of the Common Stock as reported on The Nasdaq National
Market on June 15, 1999, multiplied by 85%, which is the percentage of the
trading purchase price applicable to purchases under the referenced Plan.
(3) Computed in accordance with Rule 457(h) under the Securities Act solely for
the purpose of calculating the registration fee. The computation is based
on the weighted average per share exercise price (rounded to nearest cent)
of outstanding options under the referenced plan, the shares issuable under
which are registered hereby.
(4) Estimated in accordance with Rule 457(h) under the Securities Act solely
for the purpose of calculating the registration fee. The computation with
respect to unissued options is based upon the average high and low sale
prices of the Common Stock as reported on the Nasdaq National Market on
June 15, 1999.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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The Securities and Exchange Commission (the "SEC") requires us to
"incorporate by reference" certain of our publicly-filed documents into this
prospectus, which means that information included in those documents is
considered part of this prospectus. Information that we file with the SEC
after the effective date of this prospectus will automatically update and
supersede this information. We incorporate by reference the documents listed
below and any future filings made with the SEC under Sections 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act of 1934, as amended, (the "Exchange
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Act"), until we terminate the effectiveness of this registration statement.
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The following documents filed with the SEC are hereby incorporated by
reference:
(a) Our Registration Statement on Form S-1 filed on March 29, 1999, as
amended (No. 333-75219), which contains audited financial statements for our
latest fiscal year for which such statements have been filed.
(b) Not Applicable.
(c) The description of our Common Stock in our Registration Statement on
Form 8-A filed with the SEC under Section 12 of the Exchange Act on April 1,
1999 (File No. 0-25687), including any amendments or reports filed for the
purpose of updating such description.
We will furnish without charge to you, on written or oral request, a copy
of any or all of the documents incorporated by reference, other than exhibits to
those documents. You should direct any requests for documents to Alan Black, 800
Chesapeake Drive, Redwood City, California 94063, telephone: (650) 562-0200.
Item 4. Description of Securities. Not applicable.
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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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Our Certificate of Incorporation reduces the liability of a director to
the corporation or its shareholders for monetary damages for breaches of his
or her fiduciary duty of care to the fullest extent permissible under Delaware
law. Our Bylaws further provide for indemnification of corporate agents to the
maximum extent permitted by the Delaware General Corporation Law. In addition,
we have entered into indemnification agreements with our officers and
directors.
Item 7. Exemption from Registration Claimed. Not applicable.
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Item 8. Exhibits.
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Exhibit
Number
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5.1 Opinion of Venture Law Group, a Professional Corporation
23.1 Consent of Venture Law Group, a Professional Corporation
(included in Exhibit 5.1).
23.2 Consent of Independent Auditors
24.1 Powers of Attorney (see signature page).
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Item 9. Undertakings.
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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 purposes 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.
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 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.
Insofar as the 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
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 a
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, the Registrant will, unless in the opinion of its counsel
the question has already been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question of 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.
[Signature Pages Follow]
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant,
Phone.com, Inc., a corporation organized and existing under the laws of the
State of Delaware, 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 Redwood City, State of California, on this 21st
day of June, 1999.
Phone.com, Inc.
By: /s/ ALAN BLACK
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Alan Black
Chief Financial Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Alan Black and Bill Bradley, jointly and
severally, his or her attorneys-in-fact and agents, each with the power of
substitution and resubstitution, for him or her and in his or her name, place or
stead, in any and all capacities, to sign any amendments to this Registration
Statement on Form S-8, and to file such amendments, together with exhibits and
other documents in connection therewith, with the Securities and Exchange
Commission, granting to each 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 and about the premises, as fully as he or she might or could do in
person, and ratifying and confirming all that the attorneys-in-fact and agents,
or his or her substitute or substitutes, may 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
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<S> <C> <C>
/s/ ALAIN ROSSMANN Chief Executive Officer and June 21, 1999
- ----------------------------------------- Chairman (Principal Executive Officer)
Alain Rossmann
/s/ ALAN BLACK Vice President, Finance and June 21, 1999
- ----------------------------------------- Administration, Chief Financial Officer
Alan Black and Treasurer (Principal Financial and
Accounting Officer)
/s/ ROGER EVANS Director June 21, 1999
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Roger Evans
/s/ CHARLES PARRISH Executive Vice President and Director June 21, 1999
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Charles Parrish
- ----------------------------------------- Director
David Kronfeld
/s/ ANDREW VERHALEN Director June 21, 1999
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Andrew Verhalen
- ----------------------------------------- Director
Reed Hundt
</TABLE>
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INDEX TO EXHIBITS
Exhibit
Number
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5.1 Opinion of Venture Law Group, a Professional Corporation
23.1 Consent of Venture Law Group, a Professional Corporation
(included in Exhibit 5.1).
23.2 Consent of Independent Auditors
24.1 Powers of Attorney (see signature page)
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EXHIBIT 5.1
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Venture Law Group,
A Professional Corporation
2800 Sand Hill Road
Menlo Park, CA 94025
Tel: (650) 854-4488
Fax: (650) 854-1121
June 21, 1999
Phone.com, Inc.
800 Chesapeake Drive
Redwood City, California 94063
Registration Statement on Form S-8
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Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 (the "Registration
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Statement") filed by you with the Securities and Exchange Commission (the
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"Commission") on June 21, 1999 in connection with the registration under the
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Securities Act of 1933, as amended, of a total of 8,840,035 shares of your
Common Stock (the "Shares") reserved for issuance under the 1999 Employee Stock
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Purchase Plan, 1995 Stock Plan, 1996 Stock Plan and 1999 Directors' Stock Option
Plan. As your counsel in connection with this transaction, 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.
It is our opinion that upon conclusion of the proceedings being taken or
contemplated by us, as your counsel, to be taken prior to the issuance of the
Shares, and upon completion of the proceedings being taken in order to permit
such transactions to be carried out in accordance with the securities laws of
the various states where required, the Shares when issued and sold in the manner
described in the Registration Statement will be legally and validly issued,
fully paid and non-assessable.
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 appearing in the
Registration Statement, including the Prospectus constituting a part thereof,
and in any amendment thereto.
Very truly yours,
VENTURE LAW GROUP
A Professional Corporation
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EXHIBIT 23.2
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CONSENT OF INDEPENDENT AUDITORS
We consent to incorporation herein by reference of our report dated April 12,
1999, relating to the consolidated balance sheets of Phone.com, Inc. and
subidiaries as of June 30, 1997 and 1998, and March 31, 1999, and the related
consolidated statements of operations, stockholders' equity, and cash flows
for each of the years in the three-year period ended June 30, 1998, and for
the nine months ended March 31, 1999, which report appears in the Registration
Statement (No. 333-75219) on Form S-1 of Phone.com Inc.
/s/ KPMG LLP
Mountain View, California
June 21, 1999
