As
filed with the Securities and Exchange Commission on October 24, 2014
Registration No. 333- |
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION |
Washington,
D.C. 20549 |
|
_________________________ |
FORM
S-8 |
|
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933 |
_________________________ |
|
|
SOCKET MOBILE, INC. |
(Exact
name of Registrant as specified in its charter) |
_________________________ |
|
DELAWARE |
|
94-3155066 |
(State
or other jurisdiction of incorporation or organization) |
|
(I.R.S.
Employer Identification Number) |
39700 Eureka Drive
Newark, CA 94560 |
(Address
of principal executive offices) |
|
_________________________ |
2004
EQUITY INCENTIVE PLAN |
(Full
title of the plans) |
|
_________________________ |
David W.
Dunlap
Chief
Financial Officer
Socket
Mobile, Inc.
39700
Eureka Drive
Newark,
CA 94560 |
(Name
and address of agent for service) |
|
_________________________ |
(510)
933-3000 |
(Telephone
number, including area code, of agent for service) |
|
_________________________ |
Copy
to:
Herbert P.
Fockler, Esq.
Wilson
Sonsini Goodrich & Rosati
Professional
Corporation
650
Page Mill Road
Palo
Alto, CA 94304-1050
(650)
493-9300 |
|
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. |
|
Large accelerated filer [_]
Non-accelerated filer [_]
(Do not check if a smaller reporting company) |
Accelerated filer [_]
Smaller reporting company [X] |
CALCULATION
OF REGISTRATION FEE |
Title
of Each Class of Securities to be Registered |
|
Amount
to be
Registered (1) |
|
Proposed
Maximum
Offering Price Per Share (2) |
|
Proposed
Maximum Aggregate Offering Price (2) |
|
Amount
of
Registration Fee |
Common
Stock, par value $0.001 per share (3) |
|
389,124
shares |
|
$2.15 |
|
$836,616.60 |
|
$97.21 |
| (1) | Pursuant
to Rule 416(a) of the Securities Act of 1933, this Registration Statement shall also
cover any additional shares of the Registrant’s Common Stock that become issuable
under the 2004 Equity Incentive Plan by reason of any stock dividend, stock split, recapitalization
or other similar transaction effected without receipt of consideration that increases
the number of the Registrant’s outstanding shares of common stock. |
| (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 uses $2.15 per
share price, based on the average of the high and low sale prices for the Common Stock
of Socket Mobile, Inc. reported by the OTCQB Market on October 22, 2014. |
| (3) | Shares
of Common Stock of Socket Mobile, Inc. to be registered under the 2004 Equity Incentive
Plan. |
SOCKET
MOBILE, INC.
REGISTRATION
STATEMENT ON FORM S-8
Explanatory
Statement
All
of the 389,124 shares of Common Stock of Socket Mobile, Inc. (the “Registrant”) under this Registration Statement
are to be registered under the 2004 Equity Incentive Plan as amended.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation of Documents by Reference.
The
following documents and information previously filed with the Securities and Exchange Commission by 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, 2013, filed with the Securities and Exchange
Commission on March 31, 2014 pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”).
(b)
The Registrant’s Quarterly Reports on Form 10-Q for the quarters ended: (i) March 31, 2014, filed with the SEC on May 15,
2014; and (ii) June 30, 2014, filed with the SEC on August 11, 2014.
(c)
The Registrant’s Current Reports on Form 8-K filed with the Securities and Exchange Commission on January 10, 2014, January
16, 2014, February 26, 2014, March 7, 2014, April 24, 2014, May 15, 2014, May 21, 2014, July 24, 2014 and October 6, 2014.
(d)
The description of the Registrant’s Common Stock contained in the Registrant’s Registration Statement on Form 8-A
filed with the Commission on April 11, 1995 and as amended on Form 8-A/A filed with the Commission on June 15, 1995, registering
such shares pursuant to Section 12 of the Exchange Act, including any amendment or report updating such descriptions.
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.
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.
Exhibit
Number |
Description |
4.1(1) |
2004
Equity Incentive Plan, as amended. |
5.1 |
Opinion
of Wilson Sonsini Goodrich & Rosati, P.C. |
23.1 |
Consent
of Wilson Sonsini Goodrich & Rosati, P.C. (contained in Exhibit 5.1). |
23.2 |
Consent
of Sadler Gibb & Associates, LLC, Independent Registered Public Accounting Firm. |
24.1 |
Power
of Attorney (see page 4). |
_______________
(1) Incorporated by reference
to the Company’s Definitive Proxy Statement filed on April 15, 2013.
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.
(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 20th day of October, 2014.
SOCKET
MOBILE, 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 W. 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.
Signature | |
Title | |
| Date | |
| |
| |
| | |
/s/ Kevin
J. Mills Kevin J. Mills | |
President
and Chief Executive Officer (Principal Executive Officer) and Director | |
| October 20, 2014 | |
| |
| |
| | |
/s/
David W. Dunlap David W. Dunlap | |
Chief
Financial Officer, Vice President of Finance and Administration (Principal Financial and Accounting Officer), Director | |
| October 20, 2014 | |
| |
| |
| | |
/s/ Charlie
Bass Charlie Bass | |
Chairman of the Board | |
| October 20, 2014 | |
| |
| |
| | |
/s/
Charles C. Emery, Jr. Charles C. Emery, Jr. | |
Director | |
| October 20, 2014 | |
| |
| |
| | |
/s/
Peter Sealey Peter Sealey | |
Director | |
| October 20, 2014 | |
THE
PLAN
Pursuant
to the requirements of the Securities Act of 1933, the Registrant, as administrator of the 2004 Equity Incentive Plan of Socket
Mobile, 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 20th day of October, 2014.
| 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
EXHIBITS
Registration
Statement on Form S-8
SOCKET
MOBILE, INC.
INDEX
TO EXHIBITS
Exhibit
Number |
Description |
4.1(1) |
2004
Equity Incentive Plan as amended. |
5.1 |
Opinion
of Wilson Sonsini Goodrich & Rosati, P.C. |
23.1 |
Consent
of Wilson Sonsini Goodrich & Rosati, P.C. (contained in Exhibit 5.1). |
23.2 |
Consent
of Sadler, Gibb & Associates, LLC, Independent Registered Public Accounting Firm. |
24.1 |
Power
of Attorney (see page 4). |
_______________
(1) Incorporated by reference
to the Company’s Definitive Proxy Statement filed on April 15, 2013.
Exhibit
5.1
Wilson
Sonsini Goodrich & Rosati
Professional
Corporation
650
Page Mill Road
Palo
Alto, CA 94304-1050
October
24, 2014
Socket
Mobile, Inc.
39700 Eureka Drive
Newark, CA 94560
| Re: | Registration
Statement on Form S-8 |
Ladies
and Gentlemen:
We
have examined the Registration Statement on Form S-8 to be filed by you with the Securities and Exchange Commission on or about
October 24, 2014 (the “Registration Statement”) in connection with the registration under the Securities Act of 1933,
as amended, of 389,124 shares of your Common Stock (the “Shares”) reserved for issuance under the 2004 Equity Incentive
Plan (the “Stock Plan”). As your legal counsel, we have examined the proceedings taken and are familiar
with the proceedings proposed to be taken by you in connection with the sale and issuance of the Shares under the Stock Plan.
It
is our opinion that, when issued and sold in the manner referred to in the Stock Plan and pursuant to the standard agreements
which accompany any sale under the Stock Plan, the Shares will be legally and validly issued, fully paid and nonassessable.
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
it appears in the Registration Statement and any amendment thereto.
Very
truly yours,
WILSON
SONSINI GOODRICH & ROSATI
Professional
Corporation
/s/
Wilson Sonsini Goodrich & Rosati
Exhibit
23.2
CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on Form S-8 pertaining
to the 2004 Equity Incentive Plan of Socket Mobile, Inc. of our report dated March 28, 2014, with respect to the financial statements
of Socket Mobile, Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 2013, filed with the Securities
and Exchange Commission.
/s/
Sadler Gibb & Assoc.
SADLER, GIBB AND ASSOCIATES, LLC
Salt Lake City, Utah
October 24, 2014
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