S-8

As filed with the Securities and Exchange Commission on August 17, 2018

Registration No. 333-

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

SMITH MICRO SOFTWARE, INC.

(Exact name of registrant as specified in its charter)

Delaware	33-0029027
(State or other jurisdiction of incorporation or organization)	(I.R.S. employer identification number)

51 Columbia

Aliso Viejo, CA 92656

(949) 362-5800

(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)

Smith Micro Software, Inc. 2015 Omnibus Equity Incentive Plan

(Full title of the Plan(s))

William W. Smith, Jr.

President and Chief Executive Officer Smith Micro Software, Inc.

51 Columbia

Aliso Viejo, CA 92656

(949) 362-5800

(Name, address, including zip code, and telephone number, including area code, of agent for service)

Copies to:

Jennifer R. Minter, Esq.
Brian Novosel, Esq.

Buchanan Ingersoll & Rooney PC

One Oxford Centre

301 Grant Street, 20^th Floor

Pittsburgh, PA  15219

(412) 562-8800

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a nonaccelerated filer, smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,”“accelerated filer,”“smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

Large Accelerated Filer	☐	Accelerated filer	☐
Non-accelerated filer	☐(Do not check if a smaller reporting company)	Smaller reporting company	☒
		Emerging growth company	☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of Securities Act. ☐

CALCULATION OF REGISTRATION FEE

Title of Each Class of Securities to be Registered	Amount to be Registered (1)	Proposed Maximum Aggregate Offering Price Per Share(2)	Proposed Maximum Aggregate Offering Price	Amount of Registration Fee
Common Stock, $0.001 par value per share	2,500,000	$  2.55	$ 6,375,000	$ 793.68

(1)    Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement includes an indeterminate number of additional shares which may be offered and issued to prevent dilution from stock splits, stock dividends or similar transactions as provided in the above-referenced plan.

(2)    Estimated solely for the purpose of calculating the registration fee. Pursuant to Rule 457(c) and Rule 457(h) under the Securities Act, the proposed maximum offering price per share and the proposed maximum aggregate offering price have been determined on the basis of the average of the high and low prices of the Registrant’s Common Stock reported on NASDAQ on August 14, 2018.

EXPLANATORY NOTE

Smith Micro Software, Inc. (the “Registrant,” “we,” “us,” “our”) is filing this registration statement on Form S-8 (this “Registration Statement”) for the purpose of registering an additional 2,500,000 shares of our common stock, par value $0.001 per share (“Common Stock”) for issuance under the Smith Micro Software, Inc. 2015 Omnibus Equity Incentive Plan, as amended (the “Plan”). The increase in the number of shares authorized for issuance under the Plan was approved by our stockholders at our annual meeting held on June 14, 2018.  The 2,500,000 shares of Common Stock being registered pursuant to this Registration Statement are in addition to the 2,125,000 shares of Common Stock, after adjusting for the reverse stock split effective as of August 17, 2016, currently registered on our registration statement on Form S-8 filed on July 29, 2015, registration number 333-205924 (the “Prior Registration Statement”).  This Registration Statement relates to the same class of securities to which the Prior Registration Statement relates and is submitted pursuant to General Instruction E to Form S-8.  Pursuant to General Instruction E, this Registration Statement incorporates by reference the contents of the Prior Registration Statement.

PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3.Incorporation of Documents by Reference.

This Registration Statement incorporates by reference the documents listed below, which were previously filed by us with the Securities and Exchange Commission (the “SEC”) (other than portions of these documents that are deemed furnished rather than filed under applicable SEC rules and exhibits furnished in connection with such items):

(a) Annual Report on Form 10-K for the year ended December 31, 2017, filed on March 30, 2018 (file no. 001-35525) and Amendment to Annual Report on Form 10-K/A for the year ended December 31, 2017, filed on April 17, 2018 (file no. 001-35525);

(b) All other reports filed by us pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), since December 31, 2017 (in each case, except for the information furnished under Items 2.02 or 7.01 in any current report on Form 8-K); and

(c) The description of our Common Stock contained in the Registration Statement on Form 8-A, filed on July 31, 1995 (file no. 000-26536), including any amendment or report filed for the purpose of updating such description.

All reports and other documents subsequently filed by us pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered hereby have been sold or which deregisters all securities remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such reports and other documents; provided, however, that documents or information deemed to have been furnished and not filed in accordance with SEC rules shall not be deemed incorporated by reference into this Registration Statement.

For the purposes of this Registration Statement, any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded to the extent that a statement contained herein or in any other subsequently filed document which also is or 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 8. Exhibits.

Exhibit Number	Description of Document
3.1		Amended and Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.1 to the Registrant's Registration Statement No. 33-95096) (P)
3.1.1		Certificate of Amendment to Amended and Restated Certificate of Incorporation dated July 11, 2000 (incorporated by reference to Exhibit 3.1.1 to the Registrant’s Quarterly Report on Form 10-Q for the period ended June 30, 2000, filed on August 14, 2000)
3.1.2		Certificate of Amendment of Amended and Restated Certificate of Incorporation dated August 17, 2005 (incorporated by reference to Exhibit 3.1.2 to the Registrant’s Annual Report on Form 10-K for the period ended December 31, 2005, filed on March 31, 2006)
3.1.3		Certificate of Amendment to Amended and Restated Certificate of Incorporation dated June 21, 2012 (incorporated by reference to Appendix B to the Registrant’s Definitive Proxy Statement on Schedule 14A filed on April 27, 2012)
3.1.4		Certificate of Elimination of Series A Junior Participating Preferred Stock dated October 16, 2015 (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed on October 16, 2015)
3.1.5		Certificate of Designation of Series A Participating Preferred Stock dated October 16, 2015 (incorporated by reference to Exhibit 3.2 to the Registrant’s Current Report on Form 8-K filed on October 16, 2015)
3.1.6		Certificate of Amendment to Amended and Restated Certificate of Incorporation dated August 15, 2016 (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed on August 17, 2016)
3.1.7		Certificate of Designation of Preferences, Rights and Limitations of Series B 10% Convertible Preferred Stock, dated September 29, 2017 (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed on October 4, 2017)
3.2		Amended and Restated Bylaws(incorporated by reference to Exhibit 3.2 to the Registrant's Registration Statement No. 33-95096) (P)
3.2.1		Certificate of Amendment of Amended and Restated Bylaws (incorporated by reference to Exhibit 3.3 to the Registrant’s Current Report on Form 8-K filed on October 31, 2007)
4.1		Specimen certificate representing shares of Common Stock(incorporated by reference to Exhibit 4.1 to the Registrant's Registration Statement No. 33-95096) (P)
5.1	Opinion of Buchanan Ingersoll & Rooney PC
23.1	Consent of SingerLewak LLP
23.2	Consent of Buchanan Ingersoll & Rooney PC (included in Exhibit 5.1)
24.1	Power of Attorney (included on signature page)
99.1	Smith Micro Software, Inc. 2015 Omnibus Equity Incentive Plan (incorporated by reference to Exhibit Appendix A to the Registrant’s Definitive Proxy Statement on Schedule 14A, filed by the Registrant on April 30, 2015)
99.2	Amendment to Smith Micro Software, Inc. 2015 Omnibus Equity Incentive Plan (incorporated by reference to Exhibit 99.1 to Registrant’s Current Report on Form 8-K filed on June 15, 2018)

(P) Paper filing exhibit

SIGNATURES

Pursuant to the requirements of the Securities Act, the Registrant, Smith Micro Software, Inc., 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 Pittsburgh, Pennsylvania on August 17, 2018.

SMITH MICRO SOFTWARE, INC.
By:	/s/ Timothy C. Huffmyer
Name:	Timothy C. Huffmyer
Title:	Vice President and Chief Financial Officer (principal financial and accounting officer)

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints William W. Smith, Jr. and Timothy C. Huffmyer, and each of them acting individually, his true and lawful attorneys-in-fact and agent, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to sign any registration statement for the same offering covered by this Registration Statement that is to be effective upon filing pursuant to Rule 462(b) promulgated under the Securities Act of 1933, as amended, and all post-effective amendments thereto, and to file the same, with all exhibits thereto and all documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that such attorneys-in-fact and agents or any of them, or his or their substitute or substitutes, may lawfully 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 held on the dates indicated.

Signature		Title		Date
/s/ William W. Smith, Jr. William W. Smith, Jr.	Chairman of the Board, Chief Executive Officer and President (principal executive officer)		August 17, 2018
/s/ Timothy C. Huffmyer Timothy C. Huffmyer	Vice President and Chief Financial Officer (principal financial and accounting officer)		August 17, 2018
/s/ Thomas G. Campbell Thomas G. Campbell	Director		August 17, 2018
/s/ Gregory J. Szabo Gregory J. Szabo	Director		August 17, 2018
/s/ Samuel Gulko Samuel Gulko	Director		August 17, 2018
/s/ Andrew Arno Andrew Arno	Director		August 17, 2018
/s/ Steven L. Elfman Steven L. Elfman	Director		August 17, 2018

EX-5.1

EXHIBIT 5.1

One Oxford Centre

301 Grant Street, 20th Floor

Pittsburgh, PA  15219-1410

T 412 562 8800
F 412 562 1041

www.bipc.com

August 17, 2018

Smith Micro Software, Inc.

51 Columbia

Aliso Viejo, CA 92656

Re:  Registration Statement on Form S-8 Filed by Smith Micro Software, Inc.

Ladies and Gentlemen:

We have acted as counsel to Smith Micro Software, Inc., a Delaware corporation (the “Corporation”), in connection with the proposed issuance by the Corporation of up to 2,500,000 additional shares of the Corporation’s common stock, par value $.001 per share (the “Shares”), pursuant to the terms of the Smith Micro Software, Inc. 2015 Omnibus Equity Incentive Plan, as amended (the “Plan”).

In connection with such proposed issuance, we have examined the Plan, the certificate of incorporation, as amended to date, the amended and restated bylaws of the Corporation, the relevant corporate proceedings of the Corporation, the Registration Statement on Form S‑8 (the “Registration Statement”) covering the issuance of the Shares, and such other documents, records, certificates of public officials, statutes, and decisions as we consider necessary to express the opinions contained herein.

In our examination, we have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified or photostatic copies, and the authenticity of the originals of such copies. As to any facts material to this opinion that we did not independently establish or verify, we have relied upon oral or written statements and representations of officers and other representatives of the Corporation.

Based on the foregoing, we are of the opinion that the Shares have been duly authorized and, upon issuance in accordance with the Plan, the Shares will be validly issued, fully paid, and non-assessable.

We express no opinion as to the applicability or compliance with or effect of federal law or the law of any other jurisdiction other than the Delaware General Corporation Law, as amended.

We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving such consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended (the “Securities Act”), or the rules and regulations of the Securities and Exchange Commission. This opinion is being delivered in accordance with the requirements of Item 601(b)(5) of Regulation S‑K, promulgated under the Securities Act.

This opinion has been prepared for your use in connection with the issuance of the Shares under the Plan, and speaks as of the date hereof. We assume no obligation to advise you of any fact, circumstance,

event, or change in the law or the facts that may hereafter be brought to our attention, whether or not such occurrence would affect or modify the opinions expressed herein.

It is understood that this opinion is to be used only in connection with the issuance of the Shares while the Registration Statement is in effect.

Very truly yours,

Buchanan Ingersoll & Rooney PC

By: /s/ Brian Novosel

Brian Novosel

Vice President – Opinions

2

EX-23.1

EXHIBIT 23.1

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We consent to the incorporation by reference in this Prospectus and Registration Statement on Form S‑8 of Smith Micro Software, Inc. and Subsidiaries (collectively, the “Company”) of our report dated March 30, 2018, relating to the consolidated financial statements of the Company, appearing in the Annual Report on Form 10-K of the Company for the year ended December 31, 2017.

We also consent to the reference to our firm under the heading "Experts" in such Prospectus.

/s/ SingerLewak LLP

Los Angeles, California

August 17, 2018

1