-----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, F+/S3BqBsVxheZrfQFRan/x0MBZDlG9DBmVLHcsOE0VUJ9V37WnM3i1GZIgnJNZD SNYXB/GakrjT0XqOkSpcFQ== 0000950148-99-002115.txt : 19990927 0000950148-99-002115.hdr.sgml : 19990927 ACCESSION NUMBER: 0000950148-99-002115 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19990924 EFFECTIVENESS DATE: 19990924 FILER: COMPANY DATA: COMPANY CONFORMED NAME: MRV COMMUNICATIONS INC CENTRAL INDEX KEY: 0000887969 STANDARD INDUSTRIAL CLASSIFICATION: SEMICONDUCTORS & RELATED DEVICES [3674] IRS NUMBER: 061340090 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-87735 FILM NUMBER: 99716713 BUSINESS ADDRESS: STREET 1: 8943 FULLBRIGHT AVE CITY: CHATSWORTH STATE: CA ZIP: 91311 BUSINESS PHONE: 8187679044 MAIL ADDRESS: STREET 1: 8943 FULLBRIGHT AVE CITY: CHATSWORTH STATE: CA ZIP: 91311 S-8 1 FORM S-8 1997 INCENTIVE/NONSTATUTORY STK OPTION 1 As filed with the Securities and Exchange Commission on September 24, 1999 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.)
8943 Fullbright Avenue Chatsworth, California 91311 (818) 773-9044 (818) 773-0906 (Fax) (Address of Principal Executive Offices) 1997 INCENTIVE AND NONSTATUTORY STOCK OPTION PLAN (Full Title of the Plan) NOAM LOTAN President and Chief Executive Officer 8943 Fullbright Avenue Chatsworth, California 91311 (818) 773-9044 (818) 773-0906 (Fax) (Name, Address, and Telephone Number, Including Area Code, of Agent for Service) Copies to: Mark A. Klein, Esq. Freshman, Marantz, Orlanski, Cooper & Klein 9100 Wilshire Boulevard, 8-East Beverly Hills, California 90212 (310) 273-1870 Telecopy: (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 Amount to be Price per Offering Registration Title of Securities to be Registered Registered Share(1) Price(1) Fee - ---------------------------------------------------------------------------------------------------------------------------- Common Stock, $0.0034 par value per share 1,000,000 $ 5.25 $5,250,000 $ 1,460 - ----------------------------------------------------------------------------------------------------------------------------
(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) The Registrant's Form 10-K for the year ended December 31, 1998 (the "Form 10-K"). (b) All reports filed by Registrant pursuant to Sections 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the financial statements included in the above-mentioned Form 10-K. (c) The description of the Common Stock contained in the Company'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-2 4 ITEM 8. EXHIBITS. Exhibit Numbers ------- 4.1 1997 Incentive and Nonstatutory Stock Option Plan, as amended (incorporated by reference to Exhibit B to the Company's Definitive Proxy Statement filed on September 30, 1998). 4.2 Form of Stock Option Agreement under the 1997 Incentive and Nonstatutory Stock Option Plan. 5 Opinion of Freshman, Marantz, Orlanski, Cooper & Klein. 24.1 Consent of Freshman, Marantz, Orlanski, Cooper & Klein (included in Exhibit 5). 24.2 Consent of Independent Public Accountants. 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-3 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 24th day of September, 1999. 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 and 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.
SIGNATURE TITLE DATE --------- ----- ---- /s/ Noam Lotan President and Chief Executive Officer and a Director ------------------------------------ (Principal Executive Officer) September 24, 1999 Noam Lotan /s/Shlomo Margalit Chairman of the Board, Chief Technical Officer, ------------------------------------ Secretary, and a Director September 24, 1999 Shlomo Margalit /s/Edmund Glazer Vice President of Finance and Administration, Chief ------------------------------------ Financial Officer(Principal Financial and Accounting September 24, 1999 Edmund Glazer Officer /s/ Igal Shidlovsky ------------------------------------ Director September 24, 1999 Igal Shidlovsky /s/ Guenter Jaensch Director September 24, 1999 ------------------------------------ Guenter Jaensch Director September __, 1999 ------------------------------------ Daniel Tsumi Director September __, 1999 ------------------------------------ Baruch Fischer
II-4 EX-4.2 2 EXHIBIT 4.2 1 Exhibit 4.2 MRV COMMUNICATIONS, INC. STOCK OPTION AGREEMENT This AGREEMENT is made effective as of the day of _________, 19__, (the "Option Grant Date"), by and between MRV Communications, Inc. (the "Company") and ______________________ (the "Optionee"). RECITALS WHEREAS, the Board of Directors of the Company has established the 1997 Incentive Stock Option Plan and the 1997 Nonstatutory Stock Option Plan (either such Plan the "Plan" unless otherwise specified) effective as of November 11, 1997, and WHEREAS, pursuant to the provisions of said Plan, the Board of Directors of the Company, by action duly taken on ____________, 19__, granted to the Optionee an option or options (the "Option(s)") to purchase shares of the Common Stock of the Company on the terms and conditions set forth herein. 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 ______________ shares of Common Stock (the "Optioned Shares"), at the price of $_____________ per share (the "Option Price"), on the terms and conditions set forth herein. 2. Plan Type; Exercise Dates and Exercise. Options intended to qualify as Incentive Stock Options under Plan A are designated by an "A" under the category "Plan." Options intended as separate nonstatutory options under Plan B are designated by a "B" under the category "Plan." The Option(s) shall be exercisable as to the specified number of Optioned Shares on and after the "First" dates and on or before the "Last" dates set forth below: 2
Exercise Dates ------------------------------ Plan Number of Shares First Last ---- ---------------- ------------ ------------ -------- ------------------------- ------------ ------------ -------- ------------------------- ------------ ------------ -------- ------------------------- ------------ ------------ -------- ------------------------- ------------ ------------ -------- ------------------------- ------------ ------------
Optionee acknowledges that he understands he has no right whatsoever to exercise the Option(s) granted hereunder with respect to any Optioned Shares covered by any installment until such installment accrues as provided above and that all unaccrued installments shall cease to accrue on the date of termination of Optionee's employment, directorship, consulting or other arrangement with the Company. Optionee further understands that the Option(s) granted hereunder shall expire and become unexercisable as provided in Section 3(c) below. 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 by (i) full payment in cash or cash equivalents, (ii) with shares of Common Stock pursuant to Section 14 of the Plan, or (iii) by any combination of (i) and (ii) as may be determined by the Board (or Committee if so authorized) with respect to the shares to be purchased. 3. Governing Plan. This Agreement hereby incorporates by reference the Plan and all of the terms and conditions of the Plan as heretofore amended and as the same may be amended from time to time hereafter in accordance with the terms thereof, but no such subsequent amendment shall adversely affect the Optionee's rights under this Agreement and the Plan except as may be required by applicable law. The Optionee expressly acknowledges and agrees that the provisions of this Agreement are subject to the Plan; the terms of this Agreement shall in no manner limit or modify the controlling provisions of the Plan, and in case of any conflict between the provisions of the Plan and this Agreement, the provisions of the Plan shall be controlling and binding upon the parties hereto. The Optionee also hereby expressly acknowledges, represents and agrees as follows: (a) Acknowledges receipt of a copy of the Plan, a copy of which is attached hereto and by reference incorporated herein, and represents that he is familiar with the terms and provisions of said Plan, and hereby accepts this Agreement subject to all the terms and provisions of said Plan. 2 3 (b) Agrees to accept as binding, conclusive and final all decisions or interpretations of the Board of Directors (or the Committee, if so authorized) upon any questions arising under the Plan. (c) Acknowledges that he is familiar with Sections of the Plan regarding the exercise of the Option(s) and represents that he understands that said Option(s) must be exercised on or before the earliest of the following dates, whichever is applicable: (i) the "Last" exercise date noted above in Section 2; (ii) the day prior to the fifth anniversary of the Option(s) Grant Date with respect to Options granted under Plan A and the day prior to the tenth anniversary of the Option(s) Grant Date with respect to Options granted under Plan B, in each as provided in Subsection 7(c) of the Plan; (iii) the effective date of a sale or other disposition of all or substantially all of the stock or assets of the Company, as provided in Subsection 8(a) of the Plan; (iv) the date which is 30 days following the Optionee's termination of employment, directorship or consulting or other arrangement (unless extended) for any reason other than death or disability as provided under Section 10 of the Plan; or (v) the date that is one year following the Optionee's termination of employment, directorship or consulting or other arrangement by reason of his death, or the date that is one year following his termination of employment, directorship or consulting or other arrangement by reason of disability, whichever is applicable, as provided in Subsection 10(b) of the Plan. (d) Acknowledges, understands and agrees that the existence of the Plan and the execution of this Agreement are not sufficient by themselves to cause any exercise of any Option(s) granted under Plan A to qualify for favorable tax treatment through the application of Section 422(A) of the Internal Revenue Code; that Optionee must, in order to so qualify, individually meet by his own action all applicable requirements of Section 422A, including without limitation the following holding period and employment requirements: (1) holding period requirement: no disposition of an Optioned Share may be made by Optionee within two (2) years from the date of the granting of the Option(s) nor within one (1) year after the transfer of such Optioned Share to him, and (2) employment requirement: at all times during the period beginning on the date of the granting of the Option(s) and ending on the day three (3) months before the date of exercise, the Optionee must have been an employee of the Company, its parent, or a subsidiary of the Company, or a corporation or a parent or subsidiary of such corporation issuing or assuming the Option(s) in a transaction to which Section 425(a) of the 3 4 Internal Revenue Code applies, except where the termination of employment is by means of the employee's disability, in which case said 3 month period may be extended to 1 year, as provided under Internal Revenue Code Section 422A. 4. Representations and Warranties. As a condition to the exercise of any portion of an Option, the Company may require the person exercising such Option to make any representation and/or warranty to the Company as may, in the 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 shares are being acquired only for investment and without any present intention to sell or distribute such shares if, in the opinion of counsel for the Company, such a representation is required under the Securities Act of 1933 or any other applicable law, regulation or rule of any governmental agency. Optionee hereby represents to the Company that each of the Option evidenced hereby and the shares purchasable upon exercise thereof is being acquired only for investment and without any present intention to sell or distribute such securities. 5. Options Not Transferable. The Option(s) 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(s) 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. 6. No Enlargement of Employee Rights. Nothing in this Agreement shall be construed to confer upon the Optionee (if an employee) any right to continued employment with the Company (or an Affiliated Company), or to restrict in any way the right of the Company (or an Affiliated Company if he is an employee thereof) to terminate his employment. Optionee acknowledges that in the absence of an express written employment agreement to the contrary, Optionee's employment with the Company may be terminated by the Company at any time, with or without cause. 7. Withholding of Taxes. Optionee authorizes the Company to withhold, in accordance with any applicable law, from any compensation payable to him 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). 8. Laws Applicable to Construction. This Agreement shall be construed and enforced in accordance with the laws of the State of California. 9. Agreement Binding on Successors. The terms of this 4 5 Agreement shall be binding upon the executors, administrators, heirs, successors, transferees and assignees of the Optionee. 10. Costs of Litigation. In any action at law or in equity to enforce any of the provisions or rights under this Agreement or the Plan, the unsuccessful party to such litigation, as determined by the court in a final judgment or decree, shall pay the successful party or parties all costs, expenses and reasonable attorneys' fees incurred by the successful party or parties (including without limitation costs, expenses end fees on any appeals), and if the successful party recovers judgment ln any such action or proceeding such costs, expenses and attorneys' fees shall be included as part of the judgment. 11. 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. 12. 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. 13. 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. 14. Limitation on Value of Optioned Shares. Optionee acknowledged that the Plan provides that the aggregate fair market value (determined as of the date hereof) of the shares of Common Stock to which Options granted under Plan A are exercisable for the first time by Optionee during any calendar year under all incentive stock option plans of the Company and its Affiliated Companies shall not exceed $100,000. It is understood and agreed that should it be determined that an Option if granted pursuant to Plan A hereunder would exceed such maximum, such Option shall be not be considered granted under Plan A to the extent, but only to the extent of such excess. This limitation shall not apply to any option granted under Plan B. 5 6 IN WITNESS WHEREOF, the Company and the Optionee have executed this Agreement effective as of the date first written hereinabove. MRV COMMUNICATIONS, INC. OPTIONEE By ----------------------------------- ----------------------------------- Title: -------------------------------- ----------------------------------- Street Address ----------------------------------- City and State ----------------------------------- Social Security No. By his or her signature below, the spouse of the Optionee, of such Optionee be legally married as of the date of his execution of this Agreement, acknowledges that he or she has read this Agreement and the Plan and is familiar with the terms and provisions thereof, and agrees to be bound by all the terms and conditions of said Agreement and said Plan document. ----------------------------------- Spouse Dated: ----------------------------- By his or her signature below the Optionee represents that he or she is not legally married as of the date of execution of this Agreement. ----------------------------------- Optionee Dated: ----------------------------- 6 EX-5 3 EXHIBIT 5 1 EXHIBIT 5 [LETTERHEAD OF FRESHMAN, MARANTZ, ORLANSKI COOPER & KLEIN, a Law Corporation] September 23, 1999 MRV Communications, Inc. 8943 Fullbright Avenue Chatsworth, CA 91311 Re: MRV Communications, Inc. Registration Statement on Form S-8 1,000,000 Shares issuable upon exercise of options granted under 1997 Incentive and Nonstatutory Stock Option Plan Dear Sirs: We are counsel to MRV Communications, Inc. a Delaware (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 1,000,000 shares of Common Stock, $0.0034 par value of the Company (the "Common Stock ") issuable upon exercise of options granted under the Company's 1997 Incentive and Nonstatutory Stock Option Plan (the "Plan"). 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. Very truly yours, /s/ Freshman, Marantz, Orlanski, Cooper & Klein, FRESHMAN, MARANTZ, ORLANSKI, COOPER & KLEIN, A Law Corporation EX-24.2 4 EXHIBIT 24.2 1 Exhibit 24.2 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference of in this registration statement of our reports dated February 15, 1999 included in MRV Communications, Inc.'s Form 10-K for the year ended December 31, 1998 and to all references to our Firm included in this registration statement. /s/ Arthur Andersen LLP ARTHUR ANDERSEN LLP Los Angeles, California September 20, 1999. -----END PRIVACY-ENHANCED MESSAGE-----