As filed with the Securities and Exchange Commission on May 4, 2011

Registration No. 333-            

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM S-8

REGISTRATION STATEMENT

Under

The Securities Act of 1933

 

 

RPX CORPORATION

(Exact name of registrant as specified in its charter)

 

 

 

Delaware		26-2990113
(State or other jurisdiction of incorporation or organization)		(IRS Employer Identification No.)

One Market Plaza

Suite 700

San Francisco, CA 94105

(Address of Principal Executive Offices) (Zip Code)

 

 

2008 Stock Plan

2011 Equity Incentive Plan

(Full title of the Plan)

 

 

 

John A. Amster Chief Executive Officer One Market Plaza Suite 700 San Francisco, CA 94105 (Name and address of agent for service)   (866) 779-7641 (Telephone number, including area code, of agent for service)		Copy to: Robert V. Gunderson, Jr., Esq. Bennett L. Yee, Esq. Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP 1200 Seaport Boulevard Redwood City, CA 94063 (650) 321-2400

 

 

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		¨		Accelerated filer		¨
Non-accelerated filer		x		Smaller reporting company		¨

 

 

CALCULATION OF REGISTRATION FEE

 

Title of Securities to be Registered		Amount to be Registered(1)		Proposed Maximum Offering Price per Share		Proposed Maximum Aggregate Offering Price		Amount of Registration Fee
Options and Rights to Purchase Common Stock		7,386,846		N/A		N/A		N/A
Options and Rights to Purchase Common Stock		1,828,076		N/A		N/A		N/A
Common Stock, $0.0001 par value		7,386,846 shares (2)		$5.09 (4)		$37,599,046.14 (4)		$4,365.25
Common Stock, $0.0001 par value		1,828,076 shares (3)		$19.00 (5)		$34,733,444.00 (5)		$4,032.56

(1)

This Registration Statement shall also cover any additional shares of Common Stock which become issuable under the 2008 Stock Plan and 2011 Equity Incentive Plan by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the receipt of consideration which results in an increase in the number of the outstanding shares of Common Stock of RPX Corporation.

(2)

Represents 7,386,846 shares of Common Stock reserved for future issuance upon the exercise of outstanding options under the RPX Corporation 2008 Stock Plan. Upon the effective date of the initial public offering of the Registrant’s Common Stock, as set forth in the Registrant’s Prospectus dated May 4, 2011 relating to its initial public offering, no further awards will be made under the 2008 Stock Plan. To the extent outstanding awards under the 2008 Stock Plan expire or are forfeited and would otherwise have been returned to the share reserve under the 2008 Stock Plan, the shares of Common Stock subject to such awards instead will be available for future issuance under the 2011 Equity Incentive Plan.

(3)

Represents shares of Common Stock reserved for future grant under the RPX Corporation 2011 Equity Incentive Plan consisting of (a) 1,500,000 shares of Common Stock initially available for future grants under the 2011 Equity Incentive Plan plus (b) 328,076 shares of Common Stock previously reserved but unissued under the 2008 Stock Plan that are now available for issuance under the 2011 Equity Incentive Plan. To the extent outstanding awards under the 2008 Stock Plan expire or are forfeited and would otherwise have been returned to the share reserve under the 2008 Stock Plan, the shares of Common Stock subject to such awards instead will be available for future issuance under the 2011 Equity Incentive Plan.

(4)	Estimated in accordance with Rule 457(h) solely for the purpose of calculating the amount of the registration fee on the basis of $5.09 per share, which is the weighted average exercise price of outstanding options granted under the RPX Corporation 2008 Stock Plan.

(5)	Estimated in accordance with Rule 457(h) solely for purposes of calculating the registration fee on the basis of $19.00, the initial public offering price set forth on the cover page of the Registrant’s Prospectus dated May 4, 2011 relating to its initial public offering.

 

 

 

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PART II

Information Required in the Registration Statement

 

Item 3.

Incorporation of Documents by Reference

RPX Corporation (the “Registrant”) hereby incorporates by reference into this Registration Statement the following documents previously filed with the Securities and Exchange Commission (the “SEC”):

 

(a)

The Registrant’s Prospectus filed with the SEC on May 4, 2011, pursuant to Rule 424(b) under the Securities Act of 1933, as amended (the “1933 Act”), relating to the Registration Statement on Form S-1, as amended (File No. 333-171817), which contains the Registrant’s audited financial statements for the latest fiscal year for which such statements have been filed;

 

(b)

The description of the Registrant’s outstanding Common Stock contained in the Registrant’s Registration Statement No. 001-35146 on Form 8-A filed with the SEC on April 18, 2011, pursuant to Section 12 of the Securities Exchange Act of 1934, as amended (the “1934 Act”), including any amendment or report filed for the purpose of updating such description.

All reports and definitive proxy or information statements filed pursuant to Section 13(a), 13(c), 14 or 15(d) of 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.

 

Item 4.

Description of Securities

Not applicable.

 

Item 5.

Interests of Named Experts and Counsel

Not applicable.

 

Item 6.

Indemnification of Directors and Officers

The Registrant’s amended and restated certificate of incorporation contains provisions that eliminate, to the maximum extent permitted by the General Corporation Law of the State of Delaware, the personal liability of the Registrant’s directors and executive officers for monetary damages for breach of their fiduciary duties as directors or officers. The Registrant’s amended and restated certificate of incorporation and bylaws provide that the Registrant must indemnify its directors and executive officers and may indemnify its employees and other agents to the fullest extent permitted by the General Corporation Law of the State of Delaware.

Sections 145 and 102(b)(7) of the General Corporation Law of the State of Delaware provide that a corporation may indemnify any person made a party to an action by reason of the fact that he or she was a director, executive officer, employee or agent of the corporation or is or was serving at the request of a corporation against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or her in connection with such action if he or she acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful, except that, in the case of an action by or in right of the corporation, no indemnification may generally be made in respect of any claim as to which such person is adjudged to be liable to the corporation.

The Registrant has entered into indemnification agreements with its directors and executive officers, in addition to the indemnification provided for in its amended and restated certificate of incorporation and bylaws, and intends to enter into indemnification agreements with any new directors and executive officers in the future. In addition, certain of our directors representing investment funds have contractual indemnification rights provided by their investment funds in connection with their service on our board of directors.

 

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The Registrant has purchased and intends to maintain insurance on behalf of any person who is or was a director or officer of the Registrant against any loss arising from any claim asserted against him or her and incurred by him or her in any such capacity, subject to certain exclusions.

 

Item 7.

Exemption from Registration Claimed

Not applicable.

 

Item 8.

Exhibits

 

Exhibit Number		Description
4.1		Amended and Restated Certificate of Incorporation of the Registrant (incorporated by reference to Exhibit 3.2 of Registrant’s Registration Statement on Form S-1, originally filed with the SEC on January 21, 2011).
4.2		Amended and Restated Bylaws of the Registrant (incorporated by reference to Exhibit 3.4 of Registrant’s Registration Statement on Form S-1, originally filed with the SEC on January 21, 2011).
5.1		Opinion of Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP.
23.1		Consent of PricewaterhouseCoopers LLP, Independent Registered Public Accounting Firm.
23.2		Consent of Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP is contained in Exhibit 5.1.
24.1		Power of Attorney. Reference is made to page II-5 of this Registration Statement.
99.1		RPX Corporation 2008 Stock Plan (incorporated by reference to Exhibit 10.8 to Registrant’s Registration Statement on Form S-1, as amended, originally filed with the SEC on January 21, 2011).
99.2		RPX Corporation 2011 Equity Incentive Plan (incorporated by reference to Exhibit 10.25 to Registrant’s Registration Statement on Form S-1, as amended, originally filed with the SEC on January 21, 2011).

 

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 1933 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 SEC 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]; and (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 clauses (1)(i) and (1)(ii) shall not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the Registrant pursuant to Section 13 or Section 15(d) of the 1934 Act that are incorporated by reference in this 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 and (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.

 

II-2

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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 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 the initial bona fide offering thereof.

C. Insofar as indemnification for liabilities arising under the 1933 Act may be permitted to directors, officers or 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 SEC, 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.

 

II-3

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SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, as amended, 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 San Francisco, State of California on this 4th day of May, 2011.

 

 

II-4

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POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS:

That the undersigned officers and directors of RPX Corporation, a Delaware corporation, do hereby constitute and appoint John A. Amster and Martin E. Roberts, and either 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 either 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 either 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 Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.

 

Signature		Title		Date
/s/ John A. Amster		Chief Executive Officer and Director (Principal Executive Officer)		May 4, 2011
John A. Amster
/s/ Adam C. Spiegel		Chief Financial Officer and Treasurer (Principal Financial and Accounting Officer)		May 4, 2011
Adam C. Spiegel
/s/ Geoffrey T. Barker		Chief Operating Officer and Director		May 4, 2011
Geoffrey T. Barker
/s/ Shelby W. Bonnie		Director		May 4, 2011
Shelby W. Bonnie
/s/ Eran Zur		President and Director		May 4, 2011
Eran Zur
/s/ Izhar Armony		Director		May 4, 2011
Izhar Armony
/s/ Randy Komisar		Director		May 4, 2011
Randy Komisar
/s/ Thomas O. Ryder		Director		May 4, 2011
Thomas O. Ryder
/s/ Giuseppe Zocco		Director		May 4, 2011
Giuseppe Zocco

 

II-5

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EXHIBIT INDEX

 

Exhibit Number		Description
4.1		Amended and Restated Certificate of Incorporation of the Registrant (incorporated by reference to Exhibit 3.2 of Registrant’s Registration Statement on Form S-1, originally filed with the SEC on January 21, 2011).
4.2		Amended and Restated Bylaws of the Registrant (incorporated by reference to Exhibit 3.4 of Registrant’s Registration Statement on Form S-1, originally filed with the SEC on January 21, 2011).
5.1		Opinion of Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP.
23.1		Consent of PricewaterhouseCoopers LLP, Independent Registered Public Accounting Firm.
23.2		Consent of Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP is contained in Exhibit 5.1.
24.1		Power of Attorney. Reference is made to page II-5 of this Registration Statement.
99.1		RPX Corporation 2008 Stock Plan (incorporated by reference to Exhibit 10.8 to Registrant’s Registration Statement on Form S-1, as amended, originally filed with the SEC on January 21, 2011).
99.2		RPX Corporation 2011 Equity Incentive Plan (incorporated by reference to Exhibit 10.25 to Registrant’s Registration Statement on Form S-1, as amended, originally filed with the SEC on January 21, 2011).

Exhibit 5.1

May 4, 2011

RPX Corporation

One Market Plaza

Steuart Tower

Suite 700

San Francisco, CA 94105

 

Re:	RPX Corporation (the “Company”)

Registration Statement on Form S-8

Ladies and Gentlemen:

We refer to your registration statement on Form S-8 (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Act”) in connection with the registration of (i) 7,386,846 shares of Common Stock (the “SOP Shares”) issuable under the 2008 Stock Plan (the “Stock Plan”) and (ii) 1,828,076 shares of Common Stock (the “EIP Shares”) issuable under the 2011 Equity Incentive Plan (the “EIP”). The SOP Shares and the EIP Shares are collectively referred to as the “Shares.”

As your counsel, we have examined such matters of fact and questions of law as we have deemed necessary in order to render the opinion set forth herein. In connection with our opinion expressed below, we have relied as to certain factual matters on information obtained from public officials, officers of the Company and other sources believed by us to be responsible. We express no opinion as to matters governed by any laws other than the laws of the Delaware General Corporation Law and the federal laws of the United States.

Based upon and subject to the foregoing, we advise you that, in our opinion, when the Shares have been issued and sold pursuant to the applicable provisions of the Stock Plan or the EIP (as applicable), and in accordance with the Registration Statement on Form S-8, such Shares will be validly issued, fully paid and nonassessable shares of the Company’s Common Stock.

We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act.

Very truly yours,

/s/ Gunderson Dettmer Stough

Villeneuve Franklin & Hachigian, LLP

GUNDERSON DETTMER STOUGH

VILLENEUVE FRANKLIN & HACHIGIAN, LLP

Exhibit 23.1

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated March 4, 2011 relating to the consolidated financial statements which appears in the Prospectus dated May 4, 2011 filed by RPX Corporation pursuant to Rule 424(b) under the Securities Act of 1933, relating to the Registration Statement on Form S-1 (No. 333-171817).

/s/ PricewaterhouseCoopers LLP

San Jose, California

May 4, 2011