-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Ky4PJMH5dPe1HHvd5/QQ4QlFJI0+o/fbOt376018aq09JB64g907Izh2WPuPEVwl 0q65gk5zpqeW3FRcVhD/Pw== /in/edgar/work/20000727/0000950148-00-001502/0000950148-00-001502.txt : 20000921 0000950148-00-001502.hdr.sgml : 20000921 ACCESSION NUMBER: 0000950148-00-001502 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20000727 EFFECTIVENESS DATE: 20000727 FILER: COMPANY DATA: COMPANY CONFORMED NAME: MRV COMMUNICATIONS INC CENTRAL INDEX KEY: 0000887969 STANDARD INDUSTRIAL CLASSIFICATION: [3674 ] IRS NUMBER: 061340090 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-42306 FILM NUMBER: 679573 BUSINESS ADDRESS: STREET 1: 20415 NORDHOFF ST CITY: CHATSWORTH STATE: CA ZIP: 91311 BUSINESS PHONE: 8187730900 MAIL ADDRESS: STREET 1: 20415 NORDHOFF ST CITY: CHATSWORTH STATE: CA ZIP: 91311 S-8 1 s-8.txt FORM S-8 1 As filed with the Securities and Exchange Commission on July 27, 2000 Registration No. 333- _________ SECURITIES AND EXCHANGE COMMISSION Form S-8 REGISTRATION STATEMENT Under THE SECURITIES ACT OF 1933 MRV COMMUNICATIONS, INC. (Exact Name of Registrant as Specified in Its Charter)
Delaware 3577/3674 06-1340090 (State or Other Jurisdiction of (Primary Standard Industrial (I.R.S. Employer Incorporation or Organization) Classification Code Number) Identification No.)
20415 Nordhoff Street Chatsworth, California 91311 (818) 773-0900 (818) 773-0906 (Fax) (Address of Principal Executive Offices) WILLIAM R. SPIVEY STOCK OPTION (Full Title of the Plan) Noam Lotan President and Chief Executive Officer 20415 Nordhoff Street Chatsworth, California 91311 (818) 773-0900 (818) 773-0906 (Fax) (Name, Address, and Telephone Number, Including Area Code, of Agent for Service) Copies to: Mark A. Klein, Esq. Kirkpatrick & Lockhart LLP 9100 Wilshire Boulevard, 8-East Beverly Hills, CA 90212-3480 Telephone: (310) 273-1870 Facsimile: (310) 274-8357 If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box. [x] CALCULATION OF REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------------- Proposed Proposed Maximum Maximum Offering Aggregate Amount of Title of Securities to be Registered Amount to be Price per Offering Registration Registered Share(1) Price(1) Fee - ----------------------------------------------------------------------------------------------------------------- Common Stock, $00017 par value 316,315 $32.5625 $10,300,007 $2,719 - -----------------------------------------------------------------------------------------------------------------
(1) Estimated solely for the purpose of computing the amount of the registration fee pursuant to Rule 457(h)(1). 2 PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS The documents containing information specified in this Part I are being separately provided to the Registrant's employees, officers, directors and consultants as specified by Rule 428(b)(1). 3 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The documents listed in paragraphs (a) through (c) below are hereby incorporated by reference in this Registration Statement. All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act"), prior to the filing of a post-effective amendment which indicates that all securities offered herein 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 a part hereto from the date of filing of such documents. (a) Registrant's Annual Report on Form 10-K for the year ended December 31, 1999 filed with the SEC on March 31, 2000, as amended by its Form 10-K/A filed with the SEC on July 19, 2000; (b) Registrant's Quarterly Report on Form 10-Q for the quarter ended March 31,2000 filed with the SEC on May 15, 2000 as amended by its Form 10-Q/A filed with the SEC on July 19, 2000; (c) Registrant's Current Reports on Form 8-K filed with the SEC on May 3, 2000 and May 9, 2000; (d) Registrant's Current Report on Form 8-K/A filed with the SEC on July 7, 2000. (e) The description of the Common Stock contained in MRV's Registration Statement on Form 8-A filed with the Commission on June 8, 1992, as amended by its Form 8-A/A filed with the Commission on February 24, 1994, including any amendment or report filed for the purpose of updating such description. 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 allows for the indemnification of officers, directors, and other corporate agents in terms sufficiently broad to indemnify such persons under certain circumstances for liabilities (including reimbursement for expenses incurred) arising under the Securities Act of 1933, as amended (the "Act"). Article 8 of the Registrant's Certificate of Incorporation and Article IX of the Registrant's Bylaws provide for indemnification of the Registrant's directors, officers, employees, and other agents to the extent and under the circumstances permitted by the Delaware General Corporation Law. The Registrant has also entered into agreements with its directors and executive officers that will require the Registrant, among other things, to indemnify them against certain liabilities that may arise by reason of their status or service as directors to the fullest extent not prohibited by law. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. II-1 4 ITEM 8. EXHIBITS.
Exhibit Numbers ------- 4.1 Stock Option Agreement with William R. Spivey 5 Opinion of Kirkpatrick & Lockhart LLP. 23.1 Consent of Kirkpatrick & Lockhart LLP (included in Exhibit 5). 23.2 Consent of Arthur Andersen LLP 23.3 Consent of T.N. Soong & Co.
ITEM 9. UNDERTAKINGS. 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 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. (2) That, for the purpose of determining any liability under the Securities Act of 1933, 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. The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's Annual Report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in 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. Insofar as indemnification by the Registrant for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the provisions referenced in Item 6 of this Registration Statement 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 hereunder, 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. II-2 5 SIGNATURES 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 Chatsworth, State of California, on this 26th day of July, 2000. MRV COMMUNICATIONS, INC. By: /s/ Noam Lotan ------------------------------------ Noam Lotan, President and Chief Executive Officer POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes an appoints Noam Lotan, Shlomo Margalit and Edmund Glazer, and each of them, as his true and lawful attorneys-in-fact and agents, with full power of substitution for him in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other 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 said attorneys-in-fact and agents, or any of them, or their or his 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 and on the dates indicated.
Names Title Date - ----- ----- ---- /s/ Noam Lotan President, Chief Executive Officer - ------------------------------ (Principal Executive Officer), and a July 26, 2000 Noam Lotan Director /s/ Shomo Margalit Chairman of the Board, Chief July 26, 2000 - ------------------------------ Technical Officer, Secretary, and a Shlomo Margalit Director /s/ Edmund Glazer - ------------------------------ Vice President of Finance and July 26, 2000 Edmund Glazer Administration, Chief Financial Officer (Principal Financial and Accounting Officer) /s/ Igal Shidlovsky Director July 26, 2000 - ----------------------------- Igal Shidlovsky /s/ Guenter Jaensch Director July 26, 2000 - ------------------------------ Guenter Jaensch /s/ Danie Tsui Director July 26, 2000 - ------------------------------ Daniel Tsui /s/ Baruch Fischer Director July 26, 2000 - ---------------------------- Baruch Fischer
II-3 6 EXHIBIT INDEX
Exhibit Numbers Description ------- ----------- 4.1 Stock Option Agreement with William R. Spivey 5 Opinion of Kirkpatrick & Lockhart LLP. 23.1 Consent of Kirkpatrick & Lockhart LLP (included in Exhibit 5). 23.2 Consent of Arthur Andersen LLP 23.3 Consent of T.N. Soong & Co.
EX-4.1 2 ex4-1.txt EXHIBIT 4.1 1 EXHIBIT 4.1 MRV COMMUNICATIONS, INC. STOCK OPTION AGREEMENT This Stock Option Agreement ("Agreement") is made effective as of the 11th day of July, 2000 by and between MRV Communications, Inc. (the "Company") and William R. Spivey (the "Optionee"). RECITALS WHEREAS, the Company wishes to retain Optionee as the President and Chief Executive Officer of its wholly-owned subsidiary, Luminent, Inc. ("Luminent"); WHEREAS, in order to induce Optionee to become an employee of President and Chief Executive Officer of Luminent it is essential for the Company to grant Optionee an option to purchase shares of common stock of the Company; WHEREAS, Optionee, in consideration of, among other things, the grant of this option, has accepted the Company's offer of employment on the terms set forth in that certain Letter Agreement dated July 11, 2000 from Luminent and the Company to Optionee (the "Letter Agreement"). AGREEMENT NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants set forth herein and other good and valuable consideration, the parties hereto agree as follows: 1. The Option(s). The Optionee may, at his option, purchase all or any part of an aggregate of 316,315 shares of common stock, $0.0017 par value per share (the "Common Stock"), of the Company (the "Optioned Shares"), at the price of $32.5625 per share (the "Option Price"), on the terms and conditions set forth herein. 2. Exercise Dates and Exercise. The Option(s) shall be exercisable as to any or all of the Optioned Shares at any time or from time to time beginning on the date hereof and ending on July 10, 2005. This Option shall be deemed exercised as to the shares to be purchased when written notice of such exercise has been given to the Company at its principal business office by the Optionee with respect to the Common Stock to be purchased. Such notice shall be accompanied or preceded by full payment in cash or cash equivalents of the Option Price or by a notification in customary form of Optionee's intended use of a broker-assisted cashless exercise procedure. 3. Termination of Employment. Notwithstanding the provisions of Section 2, this Option shall be exercisable after a termination of Optionee's employment with Luminent only at the times, to the extent, and on the terms and conditions set forth in the Letter Agreement. 2 4. Representations and Warranties; Registration of Shares Underlying Options. Optionee represents and warrants to the Company as follows: (a) He acknowledges that as a condition to the exercise of any portion of this Option, the Company may require the Optionee to make any representation and/or warranty to the Company as may, in the reasonable judgment of counsel to the Company, be required under any applicable law or regulation, including but not limited to a representation and warranty that the Optioned Shares are being acquired only for investment and without any present intention to sell or distribute such shares in the absence of effective registration statement or an available exemption under the Securities Act of 1933 (the "Act") if , in the opinion of counsel for the Company, such a representation is required under the Act or any other applicable law, regulation or rule of any governmental agency; provided, however, that in accordance with the provisions of the Letter Agreement the Company shall use its best efforts (including without limitation the timely filing of a registration statement under the Act and any registration or qualification required by applicable state securities laws) to achieve compliance with the Act or such other law, regulation or rule, as applicable, without any such representation or warranty by Optionee. (b) He is an "accredited investor" as such term is defined in Rule 501(a) of Regulation D under the Act. (c) He acknowledges that until the Optioned Shares have been registered under the Act, the Company will to the extent determined by the Company's legal counsel to be required by applicable law affix a legend in substantially the following form to the certificates evidencing the Optioned Shares: The securities represented by this certificate have not been registered under the Securities Act of 1933, as amended, and may not be sold, pledged, hypothecated, donated, or otherwise transferred, whether or not for consideration, unless either the securities have been registered under said Act or an exemption from such registration requirement is available. If the Shares are to be sold or transferred pursuant to an exemption from the registration requirement, the Company may require a written opinion of counsel, reasonably satisfactory to counsel for Company, to the effect that registration is not required. The Company shall without charge offer to substitute an unlegended certificate for any legended certificate promptly after the Optioned Shares represented by such legended certificate first become eligible for sale by Optionee pursuant to Rule 144(k) (or any successor provision) under the Act. (d) Until the Optioned Shares have been registered under the Act, prior to any proposed sale, pledge, hypothecation, gift, or other transfer, for value or otherwise, of any or all of the Optioned Shares or of any interest therein other than a sale in compliance with the requirements of Rule 144 under the Act (hereinafter, a "Transfer"), Optionee shall give written notice to the Company describing the Transfer. Optionee shall not ef- -2- 3 fect any Transfer unless and until (i) the Company receives an opinion of Optionee's counsel, in form and substance reasonably acceptable to counsel for the Company, that the Transfer may be effected without registration under the Act and without registration or qualification under applicable state securities laws (provided, however, that no such opinion shall be required in connection with any bona fide gift of the Optioned Shares to a member of Optionee's immediate family or a charitable or educational institution), and (ii) satisfaction of such other conditions as may be reasonably required by counsel to the Company in order to assure compliance with the Act and with applicable state securities laws. 5. No Enlargement of Rights. Nothing in this Agreement shall be construed to confer upon the Optionee any right to continued engagement by the Company or to restrict in any way the right of the Company to terminate its arrangement with Optionee subject to the terms of the Letter Agreement or any other applicable agreement between them. 6. Withholding of Taxes. Optionee authorizes the Company to withhold, in accordance with any applicable law, from any amounts payable to Optionee any taxes required to be withheld by federal, state or local law as a result of the grant of the Option(s) or the issuance of stock pursuant to the exercise of such Option(s). 7. Laws Applicable to Construction; Choice of Jurisdiction and Forum. This Agreement shall be construed and enforced in accordance with the laws of the State of California, without reference to the conflict of laws provisions of any jurisdiction. The parties hereby submit to the exclusive jurisdiction of and venue in the state courts of the State of California or the federal courts located within or the Central District of California with respect to any disputes concerning the subject matter of this agreement. 8. Agreement Binding on Successors. The terms of this Agreement shall be binding upon the executors, administrators, heirs, successors, transferees and assignees of the Optionee. The terms of this Agreement shall be binding upon the successors of the Company. 9. Necessary Acts. The Optionee agrees to perform all acts and execute and deliver any documents that may be reasonably necessary to carry out the provisions of this Agreement, including but not limited to all acts and documents related to compliance with federal and/or state securities laws; provided, however, that the Company shall use its best efforts to achieve compliance with such securities laws without any action by Optionee. 10. Counterparts. For convenience this Agreement may be executed in any number of identical counterparts, each of which shall be deemed a complete original in itself and may be introduced in evidence or used for any other purpose without the production of any other counterparts. 11. Invalid Provisions. In the event that any provision of this Agreement is found to be invalid or otherwise unenforceable under any applicable law, such invalidity or unenforceability shall not be construed as rendering any other provisions contained herein invalid or unenforceable, and all such other provisions shall be given full force and effect to the same extent as though the invalid and unenforceable provision was not contained herein. -3- 4 12. Adjustments upon Changes in Capitalization. If the outstanding shares of Common Stock of the Company are increased, decreased, changed into or exchanged for a different number or kind of shares of the Company through reorganization, recapitalization, reclassification, stock dividend, stock split or reverse stock split or other similar event, then an equitable and proportionate adjustment shall be made in the number or kind of shares which may be issued upon exercise of the Options granted under this Agreement. 13. Options Not Transferable. This Option may be exercised during the lifetime of the Optionee only by the Optionee. The Optionee's rights and interests under this Agreement and in and to the Option may not be sold, pledged, hypothecated, assigned, encumbered, gifted or otherwise transferred in any manner, either voluntarily or involuntarily by operation of law, except by will or the laws of descent or distribution. IN WITNESS WHEREOF, the Company and the Optionee have executed this Agreement effective as of the date first written hereinabove. The Company MRV COMMUNICATIONS, INC By /s/ NOAM LOTAN ------------------------------- Noam Lotan, President & CEO Optionee /s/ WILLIAM R. SPIVEY - ------------------------------ William R. Spivey MRV Communications, Inc. 20415 Nordhoff Street Chatsworth, California 91311 William R. Spivey 6096 Carlisle Lane Alpharetta, GA 30022 Social Security No. ###-##-#### -4- EX-5 3 ex5.txt EXHIBIT 5 1 EXHIBIT 5 MRV Communications, Inc. 8943 Fullbright Avenue Chatsworth, CA 91311 Re: MRV Communications, Inc. Registration Statement on Form S-8 316,315 shares issuable upon exercise of options granted to William R. Spivey Dear Sirs: We are counsel to MRV Communications, Inc. a Delaware corporation (the "Company"). We have assisted the Company in its preparation of a Registration Statement (the "Registration Statement") on Form S-8 under the Securities Act of 1933, as amended (the "Securities Act"), registering 316,315 shares of common stock issuable upon exercise of options granted to William R. Spivey (the "Spivey Options"). In rendering this opinion, we have considered such questions of law and examined such statutes and regulations, corporate records, certificates and other documents and have made such other examinations, searches and investigations as we have considered necessary. In such examination we have assumed the genuineness of all signatures and the authenticity of all documents submitted to us as originals and the conformity to original documents of all documents submitted to us as certified or as photocopies or telecopies. We have not made an independent examination of the laws of any jurisdiction other than California and Delaware and the Federal Law of the United States and we do not express or imply any opinions in respect to the laws of any other jurisdiction. The opinions expressed herein are based on legislation and regulations in effect on the date hereof. Based on and subject to the foregoing we are of the opinion that the Common Stock, when issued pursuant to the exercise of options under the Plan and the purchase price therefor has been paid, will be duly and validly issued, fully paid and nonassessable shares of Common Stock. We hereby consent to the filing of this opinion as an Exhibit to the Registration Statement. This consent is not to be construed as an admission that we are a person whose consent is required to be filed with the Registration Statement under the provisions of the Securities Act. Sincerely, /s/ Kirkpatrick & Lockhart KIRKPATRICK & LOCKHART EX-23.2 4 ex23-2.txt EXHIBIT 23.2 1 EXHIBIT 23.2 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference in this registration statement on Form S-8 of our report dated February 22, 2000 (except with respect to the matters discussed in Note 14, as to which the date is July 18, 2000) included in the MRV Communication, Inc.'s report on Form 10-K/A for the year ended December 31, 1999 and to all references to our firm included in this registration statement. /s/ ARTHUR ANDERSEN LLP Arthur Andersen LLP Los Angeles, California July 25, 2000 EX-23.3 5 ex23-3.txt EXHIBIT 23.3 1 EXHIBIT 23.3 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference of our report (and to all reference to our Firm) included in or made a part of this registration statement. /s/ T N SOONG & CO. T N Soong & Co. A Member Firm of Andersen Worldwide, SC Taipei, Taiwan, the Republic of China July 25, 2000 -----END PRIVACY-ENHANCED MESSAGE-----