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As filed with the Securities and Exchange Commission on October 11, 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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OMNISKY CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 77-0516363
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
1001 ELWELL COURT
PALO ALTO, CALIFORNIA 94303
(650) 969-7700
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
OMNISKY CORPORATION 1999 STOCK PLAN
OMNISKY CORPORATION 2000 STOCK PLAN
OMNISKY CORPORATION 2000 EMPLOYEE STOCK PURCHASE PLAN
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PATRICK S. MCVEIGH
CHIEF EXECUTIVE OFFICER
1001 ELWELL COURT
PALO ALTO, CALIFORNIA 94303
(650) 969-7700
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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Copies to:
JOHN L. DONAHUE, ESQ.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304
(650) 493-9300
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
TITLE OF SECURITIES TO BE REGISTERED REGISTERED(1)(2) PER SHARE(3) PRICE(3) FEE
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<S> <C> <C> <C> <C>
Common Stock, $0.001 par value 14,408,563 $7.5754 $109,150,492 $28,816
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(1) This registration statement shall also cover any additional shares of
Common Stock which become issuable under the plans being registered
pursuant to this registration statement by reason of any stock dividend,
stock split, recapitalization or 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. In addition, pursuant
to Rule 416(c) under the Securities Act of 1933, as amended (the
"Securities Act") this registration statement also covers an indeterminate
amount of interests to be offered or sold pursuant to the employee benefit
plans described herein.
(2) Includes 9,508,134 shares of Common Stock issuable under the OmniSky
Corporation 1999 Stock Plan, 4,150,429 shares of Common Stock issuable
under the OmniSky Corporation 2000 Stock Plan and 750,000 shares of Common
Stock issuable under the OmniSky Corporation 2000 Employee Stock Purchase
Plan.
(3) The Proposed Maximum Offering Price Per Share represents a weighted average
of the following estimates calculated in accordance with Rule 457(h) under
the Securities Act. With respect to 9,508,134 shares of Common Stock
subject to outstanding options granted under the OmniSky Corporation 1999
Stock Plan, the Proposed Maximum Offering Price Per Share is equal to the
weighted average exercise price of $4.48 per share. With respect to
1,912,900 shares of Common Stock subject to outstanding options granted
under the OmniSky Corporation 2000 Stock Plan, the Proposed Maximum
Offering Price Per Share is equal to the weighted average exercise price of
$12.00 per share. With respect to 2,987,529 shares of Common Stock
available for future grant under the OmniSky Corporation 2000 Stock Plan
and OmniSky Corporation 2000 Employee Stock Purchase Plan, the Proposed
Maximum Offering Price Per Share was determined pursuant to Rule 457(c)
under the Securities Act to be equal to the average of the high and low
prices reported in The Nasdaq Stock Market's National Market on October 6,
2000, which average was $14.59375.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
There are hereby incorporated by reference into this registration statement
the following documents and information heretofore filed with the Securities and
Exchange Commission (the "Commission"):
1. The registrant's prospectus filed pursuant to Rule 424(b) under the
Securities Act of 1933, as amended, relating to the registrant's registration
statement on Form S-1, as amended (SEC File No. 333-39446), on September 21,
2000.
2. The description of registrant's Common Stock to be offered hereby
which is contained in registrant's registration statement on Form 8-A as filed
pursuant to Section 12(g) of the Securities Exchange Act of 1934 on September 6,
2000.
All documents filed by the registrant pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934 after the date of this
registration statement and prior to the filing of a post-effective amendment
indicating that all securities offered hereunder have been sold or deregistering
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.
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 permits a corporation
to include in its charter documents, and in agreements between the corporation
and its directors and officers, provisions expanding the scope of
indemnification beyond that specifically provided by the current law.
Article IX of the registrant's Amended and Restated Certificate of
Incorporation provides for the indemnification of directors to the fullest
extent permissible under Delaware law.
Article VI of the registrant's Amended and Restated Bylaws provides for the
indemnification of officers, directors and third parties acting on behalf of the
registrant if such person acted in good faith and in a manner reasonably
believed to be in and not opposed to the best interest of the registrant, and,
with respect to any criminal action or proceeding, the indemnified party had no
reason to believe his or her conduct was unlawful.
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The registrant has entered into indemnification agreements with its
directors and executive officers, in addition to indemnification provided for in
the registrant's Amended and Restated Bylaws, and intends to enter into
indemnification agreements with any new directors and executive officers in the
future.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DOCUMENT
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<S> <C>
4.1* Specimen Common Stock Certificate
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation, with respect to the legality of the securities being
registered.
10.1* 1999 Stock Plan and form of agreement thereunder.
10.2 2000 Stock Plan and form of agreement thereunder.
10.3* 2000 Employee Stock Purchase Plan.
23.1 Consent of Independent Auditors.
23.3 Consent of Counsel (contained in Exhibit 5.1).
24.1 Power of Attorney (See page II-5).
</TABLE>
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* Previously filed as an exhibit to registrant's registration statement on
Form S-1 (File No. 333-39446), declared effective September 20, 2000 and
incorporated herein by reference.
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 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.
(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 this registration statement shall be
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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 provisions described in Item 6 hereof, 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, 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 Palo Alto, State of California, on October 11, 2000.
OMNISKY CORPORATION
By: /s/ PATRICK S. MCVEIGH
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Patrick S. McVeigh
Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Patrick S. McVeigh and Lawrence S.
Winkler and each of them acting individually, as his attorney-in-fact, with full
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 attorneys-in-fact 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/ PATRICK S. MCVEIGH Chief Executive Officer October 11, 2000
-------------------------------- and Chairman of the Board
Patrick S. McVeigh (Principal Executive Officer)
/s/ LAWRENCE S. WINKLER Chief Financial Officer October 11, 2000
-------------------------------- (Principal Financial Officer)
Lawrence S. Winkler
/s/ MICHAEL J. MALESARDI Vice President, Controller October 11, 2000
-------------------------------- (Principal Accounting Officer)
Michael J. Malesardi
/s/ DAVID S. OROS Director October 11, 2000
--------------------------------
David S. Oros
/s/ JANICE M. ROBERTS Director October 11, 2000
--------------------------------
Janice M. Roberts
/s/ STEPHEN M. DIAMOND Director October 11, 2000
--------------------------------
Stephen M. Diamond
/s/ THOMAS E. WHEELER Director October 11, 2000
--------------------------------
Thomas E. Wheeler
/s/ LACHLAN K. MURDOCH Director October 11, 2000
--------------------------------
Lachlan K. Murdoch
/s/ ALEX MANDL Director October 11, 2000
--------------------------------
Alex Mandl
/s/ TIMOTHY WELLER Director October 11, 2000
--------------------------------
Timothy Weller
</TABLE>
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INDEX TO EXHIBITS
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DOCUMENT
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<S> <C>
4.1* Specimen Common Stock Certificate
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation, with respect to the legality of the securities being
registered.
10.1* 1999 Stock Plan and form of agreement thereunder.
10.2 2000 Stock Plan and form of agreement thereunder.
10.3* 2000 Employee Stock Purchase Plan.
23.1 Consent of Independent Auditors.
23.3 Consent of Counsel (contained in Exhibit 5.1).
24.1 Power of Attorney (See page II-5).
</TABLE>
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* Previously filed as an exhibit to registrant's registration statement on
Form S-1 (File No. 333-39446), declared effective September 20, 2000 and
incorporated herein by reference.
