FORM S-8
PHONE.COM, INC.
(Exact name of Registrant as specified in its charter)
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CALCULATION OF REGISTRATION FEE
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Proposed
Maximum Proposed
Maximum Amount Offering Maximum
to be Price Per Aggregate Amount of
Title of Securities to be Registered Registered(1) Share Offering Price Registration Fee
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1999 Employee Stock Purchase Plan
Common Stock,
$0.001 par value................... 828,163 Shares $75.33125(2) $ 62,386,554 $16,470.05
1996 Stock Plan
Common Stock,
$0.001 par value................... 3,000,000 Shares $88.625(3) $265,875,000 $70,191.00
TOTAL 3,828,163 Shares $328,261,554 $86,661.05
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(3) 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 September 13, 2000.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
The following documents filed with the SEC are hereby incorporated by reference:
(a) Our Annual Report on Form 10-K for the fiscal year ended June 30, 2000 filed on August 31, 2000 which contains audited financial statements for the last fiscal year for which such statements have been filed;
(b) All other reports we have filed with the SEC pursuant to Section 13(a) or Section 15(d) of the Exchange Act since the end of the fiscal year covered by the Annual Report referred to in (a) above including our Current Report on Form 8-K filed on August 17, 2000.
(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) and our Registration Statement on Form 8-A filed with the SEC under Section 12 of the Exchange Act on August 17, 2000 (File No. 001- 16073), 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 Steve Peters, 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.
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
24.1 Powers of Attorney (see signature page).
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 19th day of September, 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
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/s/ DONALD LISTWIN President and Chief Executive Officer September 19, 2000
----------------------------------------- (Principal Executive Officer)
Donald Listwin
/s/ ALAIN ROSSMANN Executive Vice President and September 19, 2000
----------------------------------------- Chairman
Alain Rossmann
/s/ ALAN BLACK Senior Vice President of Corporate September 19, 2000
----------------------------------------- Affairs, Chief Financial Officer and
Alan Black Treasurer (Principal Financial and
Accounting Officer)
/s/ ROGER EVANS Director September 19, 2000
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Roger Evans
/s/ DAVID KRONFELD Director September 19, 2000
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David Kronfeld
/s/ ANDREW VERHALEN Director September 19, 2000
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Andrew Verhalen
/s/ REED HUNDT Director September 19, 2000
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Reed Hundt
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INDEX TO EXHIBITS
23.1 Consent of Venture Law Group, a Professional Corporation (included in Exhibit 5.1).
23.2 Consent of KPMG 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
September 19, 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,
/s/ VENTURE LAW GROUP A Professional Corporation |
We consent to the incorporation herein by reference of our report dated July 19, 2000, except as to Note 10 which is as of August 11, 2000, relating to the consolidated balance sheets of Phone.com, Inc. and subsidiaries as of June 30, 1999 and 2000, and the related consolidated statements of operations, stockholders' equity and comprehensive loss, and cash flows for each of the years in the three-year period ended June 30, 2000, and the related financial statement schedule, which report appears in the June 30, 2000 Annual Report on Form 10-K of Phone.com, Inc.
/s/ KPMG LLP
Mountain View, California
September 14, 2000
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