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SECURITIES AND EXCHANGE COMMISSION |
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Washington, DC 20549 |
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____________________
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FORM S-8 |
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REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 |
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____________________
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SOCKET COMMUNICATIONS, INC. |
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(Exact name of Registrant as specified in its charter) |
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____________________ |
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DELAWARE |
94-3155066 |
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(State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification Number) |
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37400 Central Court |
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(Address of principal executive offices) |
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____________________
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2004 EQUITY INCENTIVE PLAN |
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(Full title of the plans) |
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____________________ |
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David W. Dunlap |
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(Name, address, and telephone number, including area code, of agent for service) |
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____________________ |
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Copy to: |
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Herbert P. Fockler, Esq. |
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CALCULATION OF
REGISTRATION FEE
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Title of Each Class of Securities to be Registered |
Amount to be Registered |
Proposed Maximum |
Proposed |
Amount of |
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Common Stock, par value $0.001 per share
(1)
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1,260,566
shares
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$1.24 |
$ 1,563,101.84
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$ 183.98 |
(1) Shares of Common Stock of Socket Communications, Inc. to be registered under
the 2004 Equity Incentive Plan.
(2) Estimated in accordance with Rules 457(c) and 457(h) under the Securities
Act of 1933 solely for the purpose of calculating registration fee. In accordance
with Rules 457(c) and 457(h), the computation is based on the average of the
high and low sale prices for the Common Stock of Socket Communications, Inc.
reported by the Nasdaq National Market on March 7, 2006.
SOCKET COMMUNICATIONS,
INC.
REGISTRATION STATEMENT ON FORM S-8
PART II
INFORMATION
REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following
documents and information previously filed with the Securities and Exchange
Commission by Socket Communications, Inc. (the "Registrant") are hereby incorporated
by reference in this Registration Statement:
(a) The Registrant's
Annual Report on Form 10-K for the fiscal year ended December 31, 2005 filed
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
(b) The current report of the Registrant on Form 8-K filed pursuant to Section 13 of the Exchange Act on February 14, 2006.
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 this 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 and officers and authorize indemnification of 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.
Insofar as indemnification by Registrant for liabilities arising under the Securities Act may be permitted to its directors, officers and controlling persons pursuant to the provisions referenced above 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 Registrant of expenses incurred or paid by one of Registrant's directors, officers, or controlling persons 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 hereunder, Registrant will, unless in the opinion of Registrant's 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.
Item 7.
Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
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Exhibit |
Description |
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4.1 (1) |
2004 Equity Incentive Plan. |
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5.1
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Opinion of Wilson Sonsini Goodrich & Rosati, P.C. |
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23.1 |
Consent of Wilson Sonsini Goodrich & Rosati, P.C. (contained in Exhibit 5.1). |
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23.2 |
Consent of Moss Adams LLP, Independent Registered Public Accounting Firm. |
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23.3 |
Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm. |
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24.1 |
Power of Attorney. (see page II-5) |
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(1) Incorporated by reference to the Company's Definitive Proxy Statement
filed on April 29, 2004 |
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 thereof) 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 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 paragraphs (a)(1)(i) and (a)(1)(ii) 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 Securities and Exchange 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.
(4) That, for the purpose of determining liability of the Registrant under the Securities Act to any purchaser in the initial distribution of the securities, the Registrant undertakes that in a primary offering of securities of the Registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the Registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: (i) any preliminary prospectus or prospectus of the Registrant relating to the offering required to be filed pursuant to Rule 424; (ii) any free writing prospectus relating to the offering prepared by or on behalf of the Registrant or used or referred to by the Registrant; (iii) the portion of any other free writing prospectus relating to the offering containing material information about the Registrant or its securities provided by or on behalf of the Registrant; and (iv) any other communication that is an offer in the offering made by the Registrant to the purchaser.
(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 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 foregoing provisions, 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.
SIGNATURES
THE
REGISTRANT
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 6th day of March, 2006.
SOCKET
COMMUNICATIONS, INC.
By: /s/ David W. Dunlap
David W. Dunlap
Chief Financial Officer and
Vice President of
Finance and Administration
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints, jointly and severally, Kevin J. Mills and David Dunlap, and each one of them individually, as his attorneys-in-fact, each with the power of substitution, for him 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 attorney-in-fact, or his 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 on behalf of the Registrant and in the capacities and on the dates indicated.
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Signature |
Title |
Date |
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/s/Kevin Mills Kevin Mills |
President and Chief Executive Officer (Principal Executive Officer) and Director |
March 6, 2006 |
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/s/ David W.
Dunlap |
Chief Financial Officer and Vice President of Finance and Administration (Principal Financial and Accounting Officer) |
March 6, 2006 |
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/s/ Charlie Bass |
Chairman of the Board |
March 6, 2006 |
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/s/ Micheal Gifford |
Executive Vice President and Director |
March 6, 2006 |
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/s/ Enzo Torresi |
Director |
March 6, 2006 |
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/s/ Gianluca Rattazzi |
Director |
March 6, 2006 |
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/s/ Peter Sealey |
Director |
March 6, 2006 | ||
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/s/ Leon Malmed |
Director |
March 6, 2006 |
THE PLAN
Pursuant to the requirements of the Securities Act of 1933, the Registrant, as administrator of the 2004 Equity Incentive Plan of Socket Communications, Inc., 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 the 6th day of March, 2006.
By: /s/ David W. Dunlap
David W. Dunlap
Chief Financial Officer and Vice President of
Finance and Administration
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
SOCKET
COMMUNICATIONS, INC.
INDEX TO EXHIBITS
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Exhibit |
Description |
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4.2 (1) |
2004 Equity Incentive Plan. |
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5.1
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Opinion of Wilson Sonsini Goodrich & Rosati, P.C. |
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23.1 |
Consent of Wilson Sonsini Goodrich & Rosati, P.C. (contained in Exhibit 5.1). |
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23.2 |
Consent of Moss Adams LLP, Independent Registered Public Accounting Firm. |
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23.3 |
Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm. |
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24.1 |
Power of Attorney. (see page II-5) |
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(1) Incorporated by reference to the Company's Definitive Proxy Statement
filed on April 29, 2004 |