As filed with the Securities and Exchange Commission on August 20, 1999
Registration No. 333-
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UNITED STATES
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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SOCKET COMMUNICATIONS, INC.
(Exact name of Registrant as specified in its charter)
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DELAWARE 94-3155066
(State of incorporation) (I.R.S. Employer Identification No.)
37400 Central Court
Newark, CA 94560
(Address of principal executive offices)
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1995 STOCK PLAN (AS AMENDED JUNE 16, 1999
1999 NONSTATUATORY STOCK PLAN
(Full title of the Plan)
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DAVID W. DUNLAP
Chief Financial Officer
SOCKET COMMUNICATIONS, INC.
37400 Central Court
Newark, CA 94560
510-744-2700
(Name, address, and telephone number, including area code,
of agent for service)
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COPIES TO:
BARRY E. TAYLOR, ESQ.
ROBERT G. O'CONNER, ESQ.
WILSON, SONSINI, GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304-1050
(650) 493-9300
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed Proposed
Maximum Maximum
Amount Offering Aggregate Amount of
Title of Securities to be Price Per Offering Registration
to be Registered Registered Share Price Fee
- ------------------------------ ---------- --------- ------------ ------------
<S> <C> <C> <C> <C>
Common Stock, $0.001 par value:
To be issued under 1995
Stock Plan................. 1,200,000 $0.710 (1) $852,000.00 $236.86
To be issued under 1999
Nonstatutory Stock Plan.... 1,000,000 $0.670 (2) $670,000.00 $186.26
---------- ------------ ------------
TOTAL 2,200,000 1,522,000 424
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</TABLE>
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(1) Computed in accordance with Rule 457(c) and Rule 457(h) under the
Securities Act of 1933. Such computation is the weighted average exercise
price of $0.57 per share with respect to 265,000 shares subject to options
outstanding and $0.75 per share which is the average of the bid and ask
prices as reported on the OTC Bulletin Board on August 17, 1999, with
respect to 935,000 shares reserved for options not yet granted.
(2) Computed in accordance with Rule 457(c) and Rule 457(h) under the
Securities Act of 1933. Such computation is the weighted average exercise
price of $0.57 per share with respect to 440,000 shares subject to options
outstanding and $0.75 per share which is the average of the bid and ask
prices as reported on the OTC Bulletin Board on August 17, 1999, with
respect to 560,000 shares reserved for options not yet granted.
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<PAGE>
SOCKET COMMUNICATIONS, INC.
REGISTRATION STATEMENT ON FORM S-8
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
There are hereby incorporated by reference in this Registration
Statement the following documents and information heretofore filed with the
Securities and Exchange Commission (the "Commission"):
(a) The description of the Registrant's Common Stock contained in the
Registration Statement on Form 8-A filed pursuant to Section 12(b) of the
Exchange Act on April 11, 1995 and amended on June 15, 1995.
(b) The Registrant's Annual Report on Form 10-KSB for the fiscal year
ended December 31, 1998.
(c) The Registrant's Quarterly Reports on Form 10-QSB for the fiscal
quarters ended March 31, 1999 and June 30, 1999.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act subsequent to the filing of this
Registration Statement, and 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 the 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 (the "Delaware Law")
authorizes a court to award, or a corporation's Board of Directors to grant,
indemnity to directors and officers in terms sufficiently broad to permit
such indemnification under certain circumstances for liabilities (including
reimbursement for expenses incurred) arising under the Securities Act of
1933, as amended (the "Securities Act"). Article VII of the Registrant's
Certificate of Incorporation and Article VI of the Registrant's Bylaws
provide for indemnification of the Registrant's directors, officers,
employees and other agents to the maximum extent permitted by Delaware Law.
In addition, the Registrant has entered into Indemnification Agreements with
its officers and directors and certain 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 for liability (i) for any breach of their duty of
loyalty to the corporation or its stockholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) for unlawful payments of dividends or unlawful stock
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<PAGE>
repurchases or redemptions as provided in Section 174 of the Delaware Law, or
(iv) for any transaction from which the director derived an improper personal
benefit.
The Registrant also maintains insurance for the benefit of its directors
and executive officers insuring such persons against certain liabilities,
including liabilities under the securities laws.
See also the undertakings set out in response to Item 9 herein.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Number Description
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4.1 1995 Stock Plan. (1)
4.2 Amendment to 1995 Stock Plan
4.3 1999 Nonstatutory Stock Option Plan. (2)
5.1 Opinion of Wilson Sonsini Goodrich &
Rosati, P.C. as to legality of
securities being registered.
23.1 Consent of Wilson Sonsini Goodrich &
Rosati, P.C. (contained in
Exhibit 5.1).
23.2 Consent of Independent Public
Accountants.
24.1 Power of Attorney (see page II-4).
-------------------------
(1) Incorporated by reference to Exhibit
10.3 of the Registrant's Annual Report on
Form 10-KSB for the fiscal year ended
December 31, 1998.
(2) Incorporated by reference to Exhibit
10.1 of the Registrant's Quarterly Report
on Form 10-QSB for the fiscal quarters
ended June 30, 1999.
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 liability under the
Securities Act, to treat each post-effective amendment as a new registration
statement of the securities offered therein, and the offering of the
securities at that time shall be deemed to be the initial bona fide offering
therein.
(3) To remove from registration by means of a post-effective
amendment any of the securities that remain unsold at the termination of the
offering.
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(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 an 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 Delaware General Corporation Law,
the Certificate of Incorporation of the Registrant, the Bylaws of the
Registrant, Indemnification Agreements entered into between the Registrant
and its officers and directors, 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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<PAGE>
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 Newark, State of California, on
this 20th day of August, 1999.
SOCKET COMMUNICATIONS, INC.
By: /s/ CHARLIE BASS
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Charlie Bass
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints, jointly and severally, Charlie Bass
and David Dunlap, and each one of them, individually and without the other,
his or her attorney-in-fact, each with full power of substitution, for him or
her 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, 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 below by the following persons in the
capacities and on this 20th day of August, 1999.
<TABLE>
<CAPTION>
Signature Title
- ---------------------------------- ------------------------------------------
<S> <C>
/s/ CHARLIE BASS Chairman of the Board and Chief Executive
- ---------------------------------- Officer (Principal Executive Officer)
Charlie Bass
/s/ DAVID DUNLAP Vice President of Finance and Administration
- ---------------------------------- and Chief Financial Officer (Principal
David Dunlap Financial and Accounting Officer)
/s/ MICHEAL GIFFORD Executive Vice President
- ---------------------------------- and Director
Micheal Gifford
/s/ JACK CARSTEN Director
- ----------------------------------
Jack Carsten
/s/ EDWARD M. ESBER, JR. Director
- ----------------------------------
Edward M. Esber, Jr.
/s/ GIANLUCA RATTAZZI Director
- ----------------------------------
Gianluca Rattazzi
/s/ LARS LINDGREN Director
- ----------------------------------
Lars Lindgren
</TABLE>
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<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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EXHIBITS
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Registration Statement on Form S-8
SOCKET COMMUNICATIONS, INC.
August 20, 1999
<PAGE>
INDEX TO EXHIBITS
Exhibit
Number Description
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4.1 1995 Stock Plan. (1)
4.2 Amendment to 1995 Stock Plan
4.3 1999 Nonstatutory Stock Option Plan. (2)
5.1 Opinion of Wilson Sonsini Goodrich &
Rosati, P.C. as to legality of
securities being registered.
23.1 Consent of Wilson Sonsini Goodrich &
Rosati, P.C. (contained in
Exhibit 5.1).
23.2 Consent of Independent Public
Accountants.
24.1 Power of Attorney (see page II-4).
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(1) Incorporated by reference to Exhibit
10.3 of the Registrant's Annual Report on
Form 10-KSB for the fiscal year ended
December 31, 1998.
(2) Incorporated by reference to Exhibit
10.1 of the Registrant's Quarterly Report
on Form 10-QSB for the fiscal quarters
ended June 30, 1999.
<PAGE>
Exhibit 4.2
SOCKET COMMUNICATIONS, INC.
AMENDMENT TO 1995 STOCK PLAN
Pursuant to resolutions adopted by the board of directors of Socket
Communications, Inc. (the "Company") at a meeting held on March 17, 1999
and the approval of the stockholders of the Company obtained at the Annual
Meeting of Stockholders held on June 16, 1999, Section 3 of the 1995 Stock
Plan of the Company is hereby amended, effective as of June 16, 1999, to
read as follows:
"3. STOCK SUBJECT TO THE PLAN. Subject to the provisions of
Section 13 of the Plan, the maximum aggregate number of Shares which may be
optioned and sold under the Plan is 2,935,000 Shares. The Shares may be
authorized but unissued, or reacquired Common Stock.
If an Option or Stock Purchase Right expires or becomes
unexercisable without having been exercised in full, or is surrendered
pursuant to an Option Exchange Program, the unpurchased Shares which were
subject thereto shall become available for future grant or sale under the
Plan (unless the Plan has terminated). However, Shares that have actually
been issued under the Plan, upon exercise of either an Option or Stock
Purchase Right, shall not be returned to the Plan and shall not become
available for future distribution under the Plan, except that if Shares of
Restricted Stock are repurchased by the Company at their original purchase
price, such Shares shall become available for future grant under the Plan."
<PAGE>
Exhibit 5.1
August 19, 1999
Socket Communications, Inc.
37400 Central Court
Newark, CA 94560
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 August 20, 1999
(the "Registration Statement") in connection with the registration under
the Securities Act of 1933, as amended, of an aggregate of 2,200,000 shares
of your Common Stock (the "Shares"), 1,200,000 of which are reserved for
issuance under the 1995 Stock Plan and 1,000,000 of which are reserved for
issuance under the 1999 Nonstatuatory Stock Option Plan (the "Plans"). As
your legal counsel, 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 Plans.
It is our opinion that, when issued and sold in the manner referred to
in either of the Plans and pursuant to the respective agreements which
accompany any grant under either of the Plans, 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 amendment thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ Wilson Sonsini Goodrich & Rosati
Exhibit 23.2
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the 1995 Stock Plan and 1999 Non-
Statutory Stock Plan of Socket Communications, Inc. of our report dated
February 18, 1999, with respect to the financial statements and schedule of
Socket Communications, Inc. included in its Annual Report (Form 10-KSB) for
the year ended December 31, 1998 filed with the Securities and Exchange
Commission.
/s/ Ernst & Young LLP
San Jose, California
August 19, 1999
