As filed with the Securities and Exchange Commission on March 13, 2009
Registration No. 333-               
 
 
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
 
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
 
Glu Mobile Inc.
(Exact Name of Registrant as Specified in Its Charter)
     
Delaware
(State or Other Jurisdiction of
Incorporation or Organization) 		  91-2143667
(I.R.S. Employer
Identification No.)
2207 Bridgepointe Parkway, Suite 250
San Mateo, California 94404
(Address of Principal Executive Offices)
2007 Equity Incentive Plan
2007 Employee Stock Purchase Plan
(Full Titles of the Plans)
 
L. Gregory Ballard
President and Chief Executive Officer
Glu Mobile Inc.
2207 Bridgepointe Parkway, Suite 250
San Mateo, California 94404
(650) 532-2400
(Name and Address of Agent For Service)
 
Copies to:
     
Kevin S. Chou, Esq.
Vice President and General Counsel
Glu Mobile Inc.
2207 Bridgepointe Parkway
Suite 250
San Mateo, CA 94404 		  David A. Bell, Esq.
Mark C. Stevens, Esq.
Fenwick & West LLP
801 California Street
Mountain View, CA 94041
     
     Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
     
Large accelerated filer  o Accelerated filer  þ   Non-accelerated filer  o
(Do not check if a smaller reporting company) 		Smaller reporting company  o
CALCULATION OF REGISTRATION FEE
                                             
 
                  Proposed maximum     Proposed maximum     Amount of  
  Title of each class of securities     Amount to be     offering price     aggregate offering     registration  
  to be registered     Registered (1)     Per unit     price     fee  
 
Common Stock, $0.0001 par value
      887,524 (2)     $ 0.4850 (4)     $ 430,449.14 (4)     $ 16.92    
 
Common Stock, $0.0001 par value
      295,841 (3)     $ 0.4123 (5)     $ 121,975.24 (5)     $ 4.79    
 
Total
      1,183,365                 $ 552,424.38       $ 21.71    
 
 
(1)   Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “ Securities Act ”), this Registration Statement shall also cover any additional shares of the Registrant’s Common Stock that become issuable under the 2007 Equity Incentive Plan and/or the 2007 Employee Stock Purchase Plan by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the receipt of consideration that increases the number of the Registrant’s outstanding shares of Common Stock.
 
(2)   Represents an automatic increase in the number of shares available for issuance under the 2007 Equity Incentive Plan equal to 3% of 29,584,145 shares, the total outstanding shares of the Registrant’s Common Stock as of December 31, 2008. This automatic increase was effective as of January 1, 2009.
 
(3)   Represents an automatic increase in the number of shares available for issuance under the 2007 Employee Stock Purchase Plan equal to 1% of 29,584,145 shares, the total outstanding shares of the Registrant’s Common Stock as of December 31, 2008. This automatic increase was effective as of January 1, 2009.
 
(4)   Estimated solely for the purpose of calculating the registration fee in accordance with Rules 457(c) and 457(h) under the Securities Act of 1933, and based upon the average of the high and low sales prices of the Registrant’s Common Stock as reported by The Nasdaq Global Market on March 9, 2009.
 
(5)   Estimated solely for the purpose of calculating the registration fee in accordance with Rules 457(c) and 457(h) under the Securities Act of 1933, based upon 85% of the average of the high and low sales prices of the Registrant’s Common Stock as reported by The Nasdaq Global Market on March 9, 2009. Pursuant to the 2007 Employee Stock Purchase Plan, the purchase price of a share is 85% of the fair market value of the Common Stock.
 
 

 

 

PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
     The Registrant will provide documents containing the information specified in Part I of Form S-8 to employees as specified by Rule 428(b)(1) under the Securities Act. Pursuant to the instructions to Form S-8 and Rule 424 under the Securities Act, the Registrant is not required to file these documents either as part of this Registration Statement or as prospectuses or prospectus supplements. Such documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II of this Form, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
     The following documents filed by the Registrant with the Securities and Exchange Commission (the “Commission”) are incorporated into this Registration Statement by this reference:
  (a)   The Registrant’s Annual Report on Form 10-K for the year ended December 31, 2008;
 
  (b)   All other reports filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (the “Exchange Act”) since the end of the fiscal year covered by the Registrant’s Annual Report referred to in (a) above; and
 
  (c)   The description of the Registrant’s common stock contained in the Registrant’s Registration Statement on Form 8-A, filed with the Commission on March 16, 2007 under Section 12(b) of the Exchange Act, and including any amendment or report filed for the purpose of updating such description.
     All reports and definitive proxy or information statements filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the filing of this Registration Statement and prior to the filing of a post-effective amendment that indicates that all securities offered by this Registration Statement have been sold or which de-registers 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 such documents, except as to specific sections of such statements as set forth therein. Unless expressly incorporated into this Registration Statement, a report furnished on Form 8-K prior or subsequent to the date hereof shall not be incorporated by reference into this Registration Statement. 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 in any subsequently filed document which also is deemed to be incorporated by reference herein modifies or supersedes such statement.
Item 4. Description of Securities.
     Not applicable.
Item 5. Interests of Named Experts and Counsel.
     Kevin S. Chou, Esq., Vice President, General Counsel and Corporate Secretary of the Registrant, will pass upon the validity of the issuance of the shares of Common Stock offered by this Registration Statement. As of March 1, 2009, Mr. Chou held 3,333 shares of Common Stock and options to purchase 174,999 shares of Common Stock (of which options to purchase 66,038 shares are exercisable within 60 days of March 1, 2009). As an employee of the Registrant, Mr. Chou is eligible to receive awards under the 2007 Equity Incentive Plan and is eligible to participate in the 2007 Employee Stock Purchase Plan.
Item 6. Indemnification of Directors and Officers.
     Section 145 of the Delaware General Corporation Law authorizes a court to award, or a corporation’s board of directors to grant, indemnity to directors and officers under certain circumstances and subject to certain limitations. The terms of Section 145 of the Delaware General Corporation Law are sufficiently broad to permit indemnification under certain circumstances for liabilities, including reimbursement of expenses incurred, arising under the Securities Act.

 

 

     As permitted by the Delaware General Corporation Law, the Registrant’s restated certificate of incorporation contains provisions that eliminate the personal liability of its directors for monetary damages for any breach of fiduciary duties as a director, except liability for the following:
  •   any breach of the director’s duty of loyalty to the Registrant or its stockholders;
 
  •   acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law;
 
  •   under Section 174 of the Delaware General Corporation Law (regarding unlawful dividends and stock purchases); or
 
  •   any transaction from which the director derived an improper personal benefit.
     As permitted by the Delaware General Corporation Law, the Registrant’s restated bylaws provide that:
  •   the Registrant is required to indemnify its directors and officers to the fullest extent permitted by the Delaware General Corporation Law, subject to very limited exceptions;
 
  •   the Registrant may indemnify its other employees and agents as set forth in the Delaware General Corporation Law;
 
  •   the Registrant is required to advance expenses, as incurred, to its directors and officers in connection with a legal proceeding to the fullest extent permitted by the Delaware General Corporation Law, subject to very limited exceptions; and
 
  •   the rights conferred in the bylaws are not exclusive.
     The Registrant entered into indemnity agreements with each of its current directors and executive officers to provide these directors and executive officers additional contractual assurances regarding the scope of the indemnification set forth in the Registrant’s restated certificate of incorporation and restated bylaws and to provide additional procedural protections. At present, there is no pending litigation or proceeding involving a director, executive officer or employee of the Registrant regarding which indemnification is sought. The indemnification provision in the Registrant’s restated certificate of incorporation, restated bylaws and the indemnification agreements entered into between the Registrant and each of its directors and executive officers may be sufficiently broad to permit indemnification of the Registrant’s directors and executive officers for liabilities arising under the Securities Act.
     Certain of Registrant’s directors (Hany S. Nada, A. Brooke Seawell and Daniel L. Skaff) are also indemnified by their respective employers with regards to their serving on the Registrant’s board.
     See also the undertakings set out in response to Item 9 hereof.
Item 7. Exemption from Registration Claimed
     Not applicable.
Item 8. Exhibits.
     (a) Exhibits. The exhibits listed on the Exhibit Index (following the Signatures section of this Registration Statement) are included, or incorporated by reference, in this Registration Statement.
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 Securities Act;
          (ii) To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment of this Registration Statement) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement. Notwithstanding the foregoing, any increase or decrease in the 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) if, in the aggregate, the changes in volume and price represent no more than a 20 percent 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 this Registration Statement or any material change to such information in this Registration Statement;
provided , however , that clauses (a)(1)(i) and (a)(1)(ii) above 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 in this 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 deemed to be a new registration statement relating to the securities offered in this Registration Statement, 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 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 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 hereby, 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.

 

 

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 San Mateo, State of California, on March 13, 2009.
         
  GLU MOBILE INC.
  		 
  By:   /s/ L. Gregory Ballard    
    L. Gregory Ballard   
    President and Chief Executive Officer   
 
POWER OF ATTORNEY
     KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints L. Gregory Ballard and Eric R. Ludwig, and each of them acting individually, as 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 any substitute, may do or cause to be done by virtue hereof. This Power of Attorney may be signed in several counterparts.
     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 date indicated:
         
Signature   Title   Date
   
 
   
/s/ L. Gregory Ballard
 
L. Gregory Ballard 		  President, Chief Executive Officer
and Director
(Principal Executive Officer) 		  March 13, 2009
/s/ Eric R. Ludwig
 
Eric R. Ludwig 		  Senior Vice President and Chief
Financial Officer
(Principal Financial and Accounting Officer) 		  March 13, 2009
/s/ Daniel L. Skaff
 
Daniel L. Skaff 		  Lead Independent Director   March 13, 2009
/s/ Ann Mather
 
Ann Mather 		  Director   March 13, 2009
/s/ William J. Miller
 
William J. Miller 		  Director   March 13, 2009
/s/ Richard A. Moran
 
Richard A. Moran 		  Director   March 13, 2009
/s/ Hany M. Nada
 
Hany M. Nada 		  Director   March 13, 2009
/s/ A. Brooke Seawell
 
A. Brooke Seawell 		  Director   March 13, 2009
/s/ Ellen F. Siminoff
 
Ellen F. Siminoff 		  Director   March 13, 2009

 

 

EXHIBIT INDEX
                                 
            Incorporated by Reference    
Exhibit                       Filing   Filed
Number   Exhibit Description   Form   File No.   Exhibit   Date   Herewith
       
 
                       
4.01    
Restated Certificate of Incorporation of Glu Mobile Inc.
  S-1/A   333-139493     3.02     02/14/07    
       
 
                       
4.02    
Amended and Restated Bylaws of Glu Mobile Inc.
  8-K   001-33368     99.01     10/28/08    
       
 
                       
4.03    
Form of Registrant’s Common Stock Certificate.
  S-1/A   333-139493     4.01     02/14/07    
       
 
                       
4.04    
Amended and Restated Investors’ Rights Agreement, dated as of March 29, 2006, by and among Glu Mobile Inc. and certain investors of Glu Mobile Inc. and the Amendment No. 1 and Joinder to the Amended and Restated Investor Rights Agreement dated May 5, 2006, by and among Glu Mobile Inc. and certain investors of Glu Mobile Inc.
  S-1   333-139493     4.02     12/19/06    
       
 
                       
4.05    
2007 Equity Incentive Plan and forms of (a) Notice of Stock Option Grant, Stock Option Award Agreement and Stock Option Exercise Agreement, (b) Notice of Restricted Stock Award and Restricted Stock Agreement, (c) Notice of Stock Appreciation Right Award and Stock Appreciation Right Award Agreement, (d) Notice of Restricted Stock Unit Award and Restricted Stock Unit Agreement and (e) Notice of Stock Bonus Award and Stock Bonus Agreement.
  S-1/A   333-139493     10.03     02/16/07    
       
 
                       
4.07    
Forms of Stock Option Award Agreement (Immediately Exercisable) and Stock Option Exercise Agreement (Immediately Exercisable) under the Glu Mobile Inc. 2007 Equity Incentive Plan.
  10-Q   001-33368     10.05     08/14/08    
       
 
                       
4.06    
2007 Employee Stock Purchase Plan, as amended on April 20, 2007.
  10-Q   001-33368     10.02     08/14/08    
       
 
                       
4.07    
2007 Employee Stock Purchase Plan, as amended on January 22, 2009
  10-K   001-33368     10.05     03/13/09    
       
 
                       
5.01    
Opinion of Kevin S. Chou, Esq.
                      X
       
 
                       
23.01    
Consent of Kevin S. Chou, Esq. (included in Exhibit 5.01).
                      X
       
 
                       
23.02    
Consent of PricewaterhouseCoopers LLP, independent registered public accounting firm.
                      X
       
 
                       
24.01    
Power of Attorney (included on signature page to this Registration Statement).
                      X

 

Exhibit 5.01
[ GLU MOBILE LETTERHEAD ]
March 13, 2009
Glu Mobile Inc.
2207 Bridgepointe Parkway
Suite 250
San Mateo, California 94404
Ladies and Gentlemen:
This opinion is provided in connection with the registration statement on Form S-8 (the “Registration Statement”) being filed on or about March 13, 2009 by Glu Mobile Inc., a Delaware corporation (the “Company”), under the Securities Act of 1933, as amended. The Registration Statement registers an aggregate of 1,183,404 shares of the Company’s common stock, $0.0001 par value per share (the “Shares”) as follows: up to 887,524 of such Shares to be issued and sold pursuant to the Glu Mobile Inc. 2007 Equity Incentive Plan (the “EIP Plan”) and up to 295,841 of such Shares to be issued and sold pursuant to the Glu Mobile Inc. 2007 Employee Stock Purchase Plan (the “ESPP Plan” and, collectively with the EIP Plan, the “Plans” and each individually a “Plan”).
In connection with this opinion, I have reviewed and am familiar with originals or copies, certified or otherwise identified to my satisfaction, of such documents as I have deemed necessary or appropriate as a basis for the opinion set forth below including (1) the Registration Statement, (2) the prospectuses prepared in connection with the Registration Statement (each a “Prospectus”), (3) the Plans and the forms of agreements and documents related thereto, (4) the Certificate of Incorporation and Bylaws of the Company, each as amended to date, (5) a confirmation from the Company’s transfer agent as to the number of outstanding shares of the Company’s capital stock, dated as of March 12, 2009, (7) a list of the Company’s option and warrant holders and of any other rights to purchase the Company’s capital stock and (8) resolutions of the Company’s board of directors and stockholders relating to the Plans. In rendering the opinion expressed herein, I have assumed the genuineness of all signatures, the authenticity of all documents, instruments and certificates purporting to be originals, the conformity with the original documents, instruments and certificates of all documents, instruments and certificates purporting to be copies, and the legal capacity to sign of all individuals executing documents, instruments and certificates.
Based upon and subject to the foregoing and the effectiveness of the Registration Statement, I am of the opinion that when the Shares are issued, sold and delivered (and the consideration therefor received) pursuant to the applicable Plan and the provisions of the agreements to be entered into under the applicable Plan, and in the manner and for the consideration stated in the Registration Statement and the relevant Prospectus, such Shares will be validly issued, fully paid and nonassessable.
I hereby consent to the filing of this opinion letter as Exhibit 5.01 to the Registration Statement. I further consent to the reference to me in Item 5 (“Interests of Named Experts and Counsel”) in Part II of the Registration Statement.
This opinion letter is rendered as of the date first written above and I disclaim any obligation to advise you of facts, circumstances, events or developments which hereafter may be brought to my attention and which may alter, affect or modify the opinion expressed herein. My opinion is expressly limited to the matters set forth above and I render no opinion, whether by implication or otherwise, as to any other matters relating to the Company, the Plans, or the Shares.
         
  Very truly yours,
  		 
  /s/ Kevin S. Chou    
  Kevin S. Chou   
  Vice President and General Counsel,
Glu Mobile Inc.  		 

 

         
Exhibit 23.02
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
     We hereby consent to the incorporation by reference in this Registration Statement on Form S-8, of our report dated March 13, 2009 relating to the financial statements, and the effectiveness of internal control over financial reporting, which appears in Glu Mobile Inc.’s Annual Report on Form 10 K for the year ended December 31, 2008.
/s/ PricewaterhouseCoopers LLP
San Jose, California
March 13, 2009