-----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, LotQph7/o85N2a71ocJKtYsiMn7bf60Fi+6dxFLPsckJu0Mn/8MjG/bMa29Gpnph cB4Cy8PF0yFvXpZlM3jaoA== 0000950148-99-002117.txt : 19990927 0000950148-99-002117.hdr.sgml : 19990927 ACCESSION NUMBER: 0000950148-99-002117 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: 333-87741 FILM NUMBER: 99716742 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 (SWEDISH EMPLOYEES WARRANT PROGRAM) 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) SWEDISH EMPLOYEES WARRANT PROGRAM (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 Title of Securities to be Amount to be Price per Offering Registration Registered Registered Share(1) Price(1) Fee - ----------------------------------------------------------------------------------------------------------------- Common Stock, $0.0034 par value per share 100,000 $5.25 $525,000 $146 - -----------------------------------------------------------------------------------------------------------------
(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 Form of Warrant for Swedish Employees Warrant Program. 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 September 24, 1999 Noam Lotan Officer) /s/ Shlomo Margalit Chairman of the Board, Chief - ------------------------------- Technical Officer, Secretary, and a September 24, 1999 Shlomo Margalit Director Vice President of Finance and /s/ Edmund Glazer Administration, Chief Financial - ------------------------------- Officer (Principal Financial and September 24, 1999 Edmund Glazer Accounting Officer) /s/ Igal Shidlovski - ------------------------------- Director September 24, 1999 Igal Shidlovsky /s/ Guenter Jaensch - ------------------------------- Director September 24, 1999 Guenter Jaensch - ------------------------------- Director September __, 1999 Daniel Tsui - ------------------------------- Director September __, 1999 Baruch Fisher
II-4 EX-4.1 2 EXHIBIT 4.1 1 EXHIBIT 4.1 WARRANT MRV Communications, Inc. (the "Company") hereby awards _______________ (the "Grantee"), pursuant to a resolution of the Board of Directors a Warrant to purchase ____________ shares of the Common Stock, $.0034 par value per share, of the Company, at a price of $________ per share, for a total exercise price of ______________________ Dollars & _______ Cents ($_______________). The Company is making this grant to you to encourage your efforts in helping the Company to grow and succeed. Regardless of your decision whether or not to buy, you are requested to keep the number of shares for which you are eligible strictly confidential. The terms and conditions upon which this Warrant may be exercised are as follows: The rights granted hereunder to "Grantee", may not be assigned or transferred to any assignee or transferee except by operation of law. During your lifetime, this option is only exercisable by you. In the event of any merger, consolidation or sale of substantially all of the assets of MRV as an entirety, "Grantee" shall have the right to exercise this Warrant into the kind and amount of shares of stock and other securities and property (including cash) receivable by a holder of the number of shares of Common stock into which the Warrant might have been exercisable immediately prior to such merger, consolidation or sale of substantially all of the assets of MRV as an entirety. Any unexercised right to this Warrant shall terminate without value on _______________________ or Ninety (90) days after the end of your employment by the Company or any of its subsidiaries whichever comes first. During the continued employment of the Grantee by the Company or one of its subsidiaries the periods of Exercisability of these Warrants shall be as follows:
Number of Shares Exercise Dates - ---------------- -------------- First Last ----- ----
Exercisability shall occur only on and as of the dates outlined above. No proration shall be made for shorter periods of time. The rights represented by this Warrant may be exercised during the Exercisability period that begin as outlined in 1 through 5 above, at any time in whole or in part by the surrender of this Warrant with the Purchase Form at the end hereof properly executed, at the principal executive office of MRV, payment to MRV of the exercise price then in effect for the number of shares specified in the above-mentioned Purchase Form. The Common Stock and the certificates for the Common Stock so purchased shall be delivered to "Grantee" within a reasonable time, not exceeding ten (10) days after the rights represented by this Warrant shall have been so exercised. "Cashless" exercise of these Warrants shall be allowed by The Company at its discretion and only in accordance with U.S. Securities law. This warrant may be subdivided into smaller denominations as requested by the Warrant holder. Grantee acknowledges hereby that the exercisability of this Warrant is contingent upon continued employment by the Company or its subsidiaries and is governed by the terms and conditions of employment by the Company. Termination of Grantee's rights of exercisability of this Warrant shall occur immediately upon termination of employment of the Grantee for cause. Termination for any other reason whether such termination is initiated by the Company, its subsidiaries or the Grantee shall cause any remaining rights of exercisability to terminate no more than 90 days after termination of employment. No other rights to these Warrants are valid unless in writing and signed by a Company Officer. MRV covenants and agrees that all shares of Common Stock which may be issued as part of this Warrant will, upon issuance, be validly issued, fully paid and non-assessable, and no personal liability will attach to the holder thereof. MRV further covenants and agrees that, during the Exercisability period, MRV will at 2 all times have authorized and reserved a sufficient number of shares of its Common stock to provide for the exercise of the Warrant. The Warrant shall not entitle the Warrant holder to any voting rights or other rights as a shareholder of MRV. The exercise price in effect at any time and the number and kind of securities purchasable upon the exercise of the warrant shall be subject to adjustment from time to time upon the happening of certain events as described below: In case MRV shall (i) declare a dividend or make a distribution on its outstanding shares of Common Stock in shares of Common Stock, (ii) subdivide or reclassify its outstanding shares of Common stock into a greater number of shares, or (iii) combine or reclassify its outstanding shares of Common Stock into a smaller number of shares, then the appropriate adjustments in the number and kind of such securities subject to this warrant shall be made and the exercise price in effect at the time of the record date for such dividend or distribution or of the effective date of such subdivision, combination, reclassification, reorganization, merger, consolidation, or recapitalization shall be proportionately adjusted so that the holder of this warrant exercised after such date shall be entitled to receive the aggregate number and kind of shares of MRV Common Stock which, if this Warrant had been exercised by such holder immediately prior to such date, he would have owned upon such exercise and been entitled to receive upon such dividend, distribution, subdivision, combination, reclassification, reorganization, merger, consolidation or recapitalization. Provided however no adjustment in the exercise price shall be required unless such adjustment would require an increase or decrease of at least five cents in such price. "Grantee"acknowledges that the warrant and the shares underlying the Warrant of MRV Common Stock have not been registered with the Securities and Exchange Commission and that it is taking the shares for investment purposes in the event it exercises this Warrant and not with a view towards distribution. Upon exercise of this Warrant a legend to this effect will be placed upon the certificates. MRV agrees to register with the Securities Exchange Commission, at MRV's expense, the shares underlying the warrants after the granting of these warrants. This Agreement shall be governed by and in accordance with the laws of the State Of Delaware. - ----------------------------------- President & CEO - ----------------------------------- Chairman of the Board I have read and understand the terms and conditions of these Warrants and I agree to abide by them. - ----------------------------------- -------------- Grantee Date 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-8 100,000 Shares issuable upon exercise of warrants granted under the Swedish Employees Warrant Program 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 100,000 shares of Common Stock, $0.0034 par value of the Company (the "Common Stock ") issuable upon exercise of warrants granted under the Company's Swedish Employees Warrant Program (the "Program"). 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 Program 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 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-----