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.)
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2000 Non-Executive 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
Edward Y. Kim
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 6
(Calculation of Registration Fee on following page)
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CALCULATION OF REGISTRATION FEE
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Proposed
Maximum Proposed Maximum
Maximum Amount to Offering Price Aggregate Amount of
Title of Securities to be Registered be Registered(1) Per Share Offering Price Registration Fee
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2000 Non-Executive Stock Option Plan
Common Stock,
$0.001 par value......................... 2,000,000 Shares $73.25(2) $146,500,000.00 $38,676.00
TOTAL 2,000,000 Shares $146,500,000.00 $38,676.00
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(2) 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 May 9, 2000.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
The following documents filed with the SEC are hereby incorporated by reference:
(a) All reports we have filed with the SEC pursuant to Section 13(a) or
Section 15(d) of the Exchange Act since June 10, 1999, including:
(1) our Annual Report on Form 10-K for the year ended June 30, 1999,
(2) our Quarterly Reports on Form 10-Q for the quarters ended September 30, 1999 and December 31, 1999, and
(3) our Current Reports on Form 8-K, as amended, filed with the SEC on November 3, 1999, February 24, 2000 and March 17, 2000.
(b) Our Registration Statement on Form S-1 filed on October 28, 1999, as amended (No. 333-89879).
(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. 000-25687), 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.
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.
23.1 Consent of Venture Law Group, a Professional Corporation (included in Exhibit 5.1).
23.2 Consent of KPMG LLP, Independent Auditors
23.3 Consent of Ernst & Young LLP, Independent Auditors
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]
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 11 day of May, 2000.
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 Alain Rossmann, 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.
Signature Title Date
--------- ----- ----
/s/ Alain Rossmann Chief Executive Officer and May 11, 2000
--------------------------- Chairman (Principal Executive
Alain Rossmann Officer)
/s/ Alan Black Vice President, Finance and May 11, 2000
--------------------------- Administration, Chief
Alan Black Financial Officer and
Treasurer (Principal
Financial and Accounting
Officer)
/s/ Roger Evans Director May 11, 2000
---------------------------
Roger Evans
Executive Vice President and
--------------------------- Director
Charles Parrish
/s/ David Kronfeld Director May 11, 2000
---------------------------
David Kronfeld
/s/ Andrew Verhalen Director May 11, 2000
---------------------------
Andrew Verhalen
Director
---------------------------
Reed Hundt
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INDEX TO EXHIBITS
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 KPMG LLP, Independent Auditors
23.3 Consent of Ernst & Young LLP, Independent Auditors
24.1 Powers of Attorney (see signature page)
Venture Law Group, A Professional Corporation 2800 Sand Hill Road Menlo Park, CA 94025 Tel: (650) 854-4488 Fax: (650) 854-1121
May 11, 2000
Phone.com, Inc.
800 Chesapeake Drive
Redwood City, California 94063
Ladies and Gentlemen:
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
/s/ Venture Law Group |
We consent to the incorporation herein by reference of our report dated July 19, 1999, except as to Note 8 which is as of October 29, 1999, relating to the consolidated balance sheets of Phone.com, Inc. and subsidiaries as of June 30, 1998 and 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, 1999, which report appears in the Registration Statement (No. 333-89879) on Form S-1 of Phone.com, Inc.
/s/ KPMG LLP
Mountain View, California
May 9, 2000
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CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We hereby consent to the incorporation by reference in the registration Statement on Form S-8 pertaining to the 2000 Non-Executive Stock Option Plan of Phone.com of our report dated August 6, 1999, with respect to the balance sheets of AtMotion Inc. (a development stage company, formerly known as Arabesque Communications, Inc.) as of June 30, 1999 and 1998, and the related statements of operations, shareholders' equity, and cash flows for the year ended June 30, 1999 and for the periods from November 10, 1997 (date of incorporation) to June 30, 1998 and 1999, included in the Form 8-K, as amended of Phone.com, Inc. filed with the Securities and Exchange Commission on February 24, 2000.
/s/ Ernst & Young LLP
San Jose, California
May 10, 2000
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