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As filed with the Securities and Exchange Commission on May 31, 2001
Registration No. 333-__________
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
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CALCULATION OF REGISTRATION FEE
================================================================================================
AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED(1) PER SHARE(2) OFFERING PRICE(2) FEE
- ------------------------------------------------------------------------------------------------
Class A Common Stock 400,000 $1.76 $704,000 $176
================================================================================================
(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
selling prices per share of Registrant's Common Stock on May 15, 2001,
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, 2000, filed with the Commission on
March 29, 2001;
(b) The Registrant's Quarterly Report on Form 10-Q for the
fiscal quarter ended March 31, 2000 filed with the
Commission on May 14, 2001; 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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Inapplicable.
ITEM 8. EXHIBITS
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 to date).
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:
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(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 the 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 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 the Registration Statement or
any material change to such information in the Registration Statement; provided,
however, that clauses (1)(i) and (1)(ii) do not apply if the Registration
Statement is on Form S-8 and 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 1934 Act that are incorporated by reference into the
Registration Statement.
(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.
(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 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 31st day of
May, 2001.
SMITH MICRO SOFTWARE, INC.
By WILLIAM W. SMITH, JR.
_____________________________________
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-in-fact 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 Securities Act of 1933, as
amended, and any rules or regulations or requirements of the Securities and
Exchange 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 one 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.
Signatures Title Date
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WILLIAM W. SMITH, JR President, Chief Executive Officer and May 31, 2001
- ---------------------------- Chairman of the Board (Principal
William W. Smith, Jr. Executive Officer)
RICHARD C. BJORKMAN Vice President of Finance and May 31, 2001
- ---------------------------- Chief Financial Officer
Richard C. Bjorkman (Principal Financial and Accounting Officer)
RHONDA L. SMITH Vice Chairman of the Board, Secretary, May 31, 2001
- ---------------------------- Treasurer and Director
Rhonda L. Smith
ROBERT W. SCHEUSSLER Senior Vice President, Chief Operating May 31, 2001
- ---------------------------- Officer and Director
Robert W. Scheussler
DAVID SPERLING Vice President, Chief May 31, 2001
- ---------------------------- Technical Officer
David Sperling
THOMAS G. CAMPBELL Director May 31, 2001
- ----------------------------
Thomas G. Campbell
DAVID M. STASTNY Director May 31, 2001
- ----------------------------
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
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 and amendments thereto which are incorporated herein by
reference pursuant to Item 3(d).
5.1 Opinion of Brobeck, Phleger & Harrison LLP.
23.1 Consent of Deloitte and 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 to date).