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As filed with the Securities and Exchange Commission on June 26, 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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SMITH MICRO SOFTWARE, INC.
(Exact name of issuer as specified in its charter)
DELAWARE 33-0029027
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
51 COLUMBIA, ALISO VIEJO, CALIFORNIA 92656
(Address of principal executive offices) (Zip Code)
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SMITH MICRO SOFTWARE, INC. 1995 STOCK OPTION/STOCK ISSUANCE PLAN
(Full title of the plan)
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WILLIAM W. SMITH, JR.
President and Chief Executive Officer
SMITH MICRO SOFTWARE, INC.
51 Columbia, Aliso Viejo, California 92656
(Name and address of agent for service)
(949) 362-5800
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered(1) per Share(2) Price(2) Fee
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<S> <C> <C> <C> <C>
Common Stock: 1,750,000 shares $6.8125 $11,921,875 $3,147.38
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(1) This Registration Statement shall also cover any additional shares of
Registrant's Common Stock which become issuable under the 1995 Stock
Option/Stock Issuance Plan by reason of any stock dividend, stock split,
recapitalization or other similar transaction effected without the
Registrant's receipt of consideration which results in an increase in the
number of the outstanding shares of Registrant's Common Stock.
(2) Calculated solely for purposes of this offering under Rule 457(h) of the
Securities Act of 1933 on the basis of the average of the high and low
prices per share of Registrant's Common Stock on June 21, 2000, as reported
by the Nasdaq National Market System.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
Smith Micro Software, Inc. (the "Registrant") hereby incorporates
by reference into this Registration Statement the following documents previously
filed with the Securities and Exchange Commission (the "Commission"):
(a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1999, filed with the Commission on
March 30, 2000;
(b) The Registrant's Quarterly Report on Form 10-Q for the
fiscal quarter ended March 31, 2000 filed with the
Commission on May 2, 2000; and;
(c) The Registrant's Registration Statement No. 000-26536 on
Form 8-A filed with the Commission on July 31, 1995,
together with Amendment No. 1 filed with the Commission on
September 7, 1995, in which there is described the terms,
rights and provisions applicable to the Registrant's
outstanding Common Stock.
All reports and definitive proxy or information statements filed
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934, as amended (the "1934 Act") after the date of this Registration Statement
and prior to the filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all securities
then remaining unsold shall be deemed to be incorporated by reference into this
Registration Statement and to be a part hereof from the date of filing of such
documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein 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 subsequently filed document which also 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.
ITEM 4. DESCRIPTION OF CAPITAL STOCK
Inapplicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Inapplicable.
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS
Under Section 145 of the Delaware General Corporation Law, the
Registrant has broad powers to indemnify its directors and officers against
liabilities they may incur in such capacities, including liabilities under the
Securities Act of 1933, as amended (the "1933 Act"). The Registrant's Bylaws
(the "Bylaws") provide that the Registrant will indemnify its directors and
officers to the fullest extent permitted by Delaware law. The Bylaws require the
Registrant to advance litigation expenses in the case of stockholder derivative
actions or other actions, against an undertaking by the directors and officers
to repay such advances if it is ultimately determined that the directors and
officers are not entitled to indemnification. The Bylaws further provide that
rights conferred under such Bylaws shall not be deemed to be exclusive of any
other right such persons may have or acquire under any agreement, vote of
stockholders or disinterested directors, or otherwise. The Registrant believes
that indemnification under its Bylaws covers at least negligence and gross
negligence.
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In addition, the Registrant's Certificate of Incorporation (the
"Certificate of Incorporation") provides that the Registrant shall indemnify its
directors and officers if such persons acted (i) in good faith, (ii) in a manner
reasonably believed to be in or not opposed to the best interests of the
Registrant, and (iii) with respect to any criminal action or proceeding, with
reasonable cause to believe such conduct was lawful. The Certificate of
Incorporation also provides that, pursuant to Delaware law, no director shall be
liable for monetary damages for breach of the director's fiduciary duty of care
to the Registrant and its stockholders. This provision in the Certificate of
Incorporation does not eliminate the duty of care, and in appropriate
circumstances, equitable remedies such as injunctive or other forms of
non-monetary relief will remain available under Delaware law. In addition, each
director will continue to be subject to liability for breach of the director's
duty of loyalty to the Registrant for acts or omissions not in good faith or
involving intentional misconduct, for knowing violations of law, for actions
leading to improper personal benefit to the director, and for payment of
dividends or approval of stock repurchases or redemptions that are unlawful
under Delaware law. The provision also does not affect a director's
responsibilities under any other law, such as the federal securities laws or
state or federal environmental laws. The Certificate of Incorporation further
provides that the Registrant is authorized to indemnify its directors and
officers to the fullest extent permitted by law through the Bylaws, or any
agreement, vote of stockholders or disinterested directors, or otherwise.
The Registrant obtained directors' and officers' liability
insurance in connection with its initial public offering.
In addition, the Registrant has entered into agreements to
indemnify its directors in addition to the indemnification provided for in the
Certificate of Incorporation and Bylaws. These agreements will, among other
things, indemnify the Registrant's directors for certain expenses (including
attorneys fees), judgments, fines and settlement amounts incurred by such person
in any action or proceeding, including any action by or in the right of the
Registrant, on account of services by that person as a director or officer of
the Registrant, or as a director or officer of any subsidiary of the Registrant,
or as a director or officer of any other company or enterprise that the person
provides services to at the request of the Registrant.
The Underwriting Agreement filed pursuant to the initial public
offering of the Registrant provides for indemnification by the Underwriters of
the Registrant and its officers and directors, for certain liabilities arising
under the 1933 Act or otherwise.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Inapplicable.
ITEM 8. EXHIBITS
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Exhibit Number Exhibit
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4.1 Instruments Defining Rights of Stockholders. Reference is made
to Registrant's Registration Statement No. 000-26536 on Form
8-A, as amended, including the exhibits thereto, which is
incorporated herein by reference pursuant to Item 3(d).
5.1 Opinion of Brobeck, Phleger & Harrison LLP.
23.1 Consent of Deloitte & Touche LLP, Independent Auditors.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in
Exhibit 5.
24.1 Power of Attorney. Reference is made to pages II-4 of this
Registration Statement.
99.1 Smith Micro Software, Inc. 1995 Stock Option/Stock Issuance
Plan (as amended and restated on March 27, 1998 and as further
amended and restated on March 31, 2000).
99.2 Form of Stock Option Agreement.
99.3 Form of Stock Option Agreement for Automatic Option Grants.
99.4* Form of Notice of Grant.
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99.5* Form of Notice of Grant for Initial Automatic Option Grants.
99.6* Form of Notice of Grant for Annual Automatic Option Grants.
99.7 Form of Stock Issuance Agreement.
99.8* Form of Stock Purchase Agreement.
99.9 Form of Stock Purchase Agreement for Automatic Option Grants.
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* Exhibits 99.4, 99.5, 99.6 and 99.8 are incorporated herein by reference to
Exhibits 99.4, 99.5, 99.6 and 99.8, respectively, to Registrant's Registration
Statement No. 33-2418 on Form S-8, filed with the Commission on March 11,
1996.
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 (i) to include any prospectus required
by Section 10(a)(3) of the 1933 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 this
Registration Statement, and (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 this Registration
Statement; provided, however, that clauses (1)(i) and (1)(ii) shall not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the 1934 Act that are incorporated by reference
into the Registration Statement; and (2) that, for the purpose of determining
any liability under the 1933 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; and (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 Registrant's 1995 Stock Option/Stock
Issuance Plan.
B. The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the 1933 Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
1934 Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the 1934 Act) that is incorporated by
reference into 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
1933 Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the indemnification provisions summarized in Item 6, or
otherwise, the Registrant has been advised that in the opinion of the Commission
such indemnification is against public policy as expressed in the 1933 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 1933 Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the 1933 Act, 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 Aliso Viejo, State of California, on this 26th day of
June, 2000.
SMITH MICRO SOFTWARE, INC.
By /s/ William W. Smith, Jr.
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William W. Smith, Jr.
President, Chief Executive Officer and
Chairman of the Board
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned officers and directors of Smith Micro
Software, Inc., a Delaware corporation, do hereby constitute and appoint William
W. Smith, Jr. and Richard C. Bjorkman, and each of them, the lawful attorneys
and agents, with full power and authority to do any and all acts and things and
to execute any and all instruments which said attorneys and agents, and any one
of them, determine may be necessary or advisable or required to enable said
corporation to comply with the 1933 Act, and any rules or regulations or
requirements of the Commission in connection with this Registration Statement.
Without limiting the generality of the foregoing power and authority, the powers
granted include the power and authority to sign the names of the undersigned
officers and directors in the capacities indicated below to this Registration
Statement, to any and all amendments, both pre-effective and post-effective, and
supplements to this Registration Statement, and to any and all instruments or
documents filed as part of or in conjunction with this Registration Statement or
amendments or supplements thereof, and each of the undersigned hereby ratifies
and confirms all that said attorneys and agents, or any of them, shall do or
cause to be done by virtue hereof. This Power of Attorney may be signed in
several counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this
Power of Attorney as of the date indicated.
Pursuant to the requirements of the 1933 Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated.
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Signatures Title Date
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/s/ William W. Smith, Jr. President, Chief Executive Officer and June 26, 2000
-------------------------------- Chairman of the Board (Principal
William W. Smith, Jr. Executive Officer)
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<S> <C> <C>
/s/ Richard C. Bjorkman Vice President of Finance and June 26, 2000
------------------------------------ Chief Financial Officer
Richard C. Bjorkman (Principal Financial and Accounting
Officer)
/s/ Rhonda L. Smith Vice Chairman of the Board, Secretary, June 26, 2000
------------------------------------ Treasurer and Director
Rhonda L. Smith
/s/ Robert W. Scheussler Senior Vice President, Chief Operating June 26, 2000
------------------------------------ Officer and Director
Robert W. Scheussler
/s/ David Sperling Vice President, Chief June 26, 2000
------------------------------------ Technical Officer
David Sperling
/s/ Thomas G. Campbell Director June 26, 2000
------------------------------------
Thomas G. Campbell
/s/ David M. Stastny Director June 26, 2000
------------------------------------
David M. Stastny
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
EXHIBITS
TO
FORM S-8
UNDER
SECURITIES ACT OF 1933
SMITH MICRO SOFTWARE, INC.
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EXHIBIT INDEX
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Exhibit Number Exhibit
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<S> <C>
4.1 Instruments Defining Rights of Stockholders. Reference is made
to Registrant's Registration Statement No. 000-26536 on Form
8-A, as amended, including the exhibits thereto, which is
incorporated herein by reference pursuant to Item 3(d).
5.1 Opinion of Brobeck, Phleger & Harrison LLP.
23.1 Consent of Deloitte & Touche LLP, Independent Auditors.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in
Exhibit 5.
24.1 Power of Attorney. Reference is made to pages II-4 of this
Registration Statement.
99.1 Smith Micro Software, Inc. 1995 Stock Option/Stock Issuance
Plan (as amended and restated on March 27, 1998 and as further
amended and restated on March 31, 2000).
99.2 Form of Stock Option Agreement.
99.3 Form of Stock Option Agreement for Automatic Option Grants.
99.4* Form of Notice of Grant.
99.5* Form of Notice of Grant for Initial Automatic Option Grants.
99.6* Form of Notice of Grant for Annual Automatic Option Grants.
99.7 Form of Stock Issuance Agreement.
99.8* Form of Stock Purchase Agreement.
99.9 Form of Stock Purchase Agreement for Automatic Option Grants.
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* Exhibits 99.4, 99.5, 99.6 and 99.8 are incorporated herein by reference to
Exhibits 99.4, 99.5, 99.6 and 99.8, respectively, to Registrant's Registration
Statement No. 33-2418 on Form S-8, filed with the Commission on March 11,
1996.
