Form S-8 for MRV COMMUNICATIONS INC filed on Oct 13 2000
As filed with the Securities and Exchange Commission on October 13, 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.)
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.
Kirkpatrick & Lockhart LLP
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 Registered Amount to be Price per Offering Registration
Registered Share(1) Price(1) Fee
-----------------------------------------------------------------------------------------------------------------
Common Stock, no par value 1,200,000 $52,308,000 $43.59 $13,809.31
-----------------------------------------------------------------------------------------------------------------
(1) Estimated solely for the purpose of computing the amount of the
registration fee pursuant to Rule 457(h)(1).
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).
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 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 SEC on July 19, 2000 and Registrant's Quarterly Report on
Form 10-Q for the quarter ended June 30, 2000 filed with the SEC on
August 14, 2000 on Form 10-Q for the quarter ended June 30,2000
filed with the SEC on August 14, 2000;
(c) Registrant's Current Reports on Form 8-K filed with the SEC on May
3, 2000, May 9, 2000 (as amended by its Form 8-K/A filed with the
SEC on July 7, 2000), July 27, 2000 (as amended by its Form 8-K/A
filed with the SEC on September 22, 2000 and by its Form 8-K/A filed
with the SEC on October 5, 2000) and August 4, 2000.;
(d) The description of the Common Stock contained in Registrant'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
ITEM 8. EXHIBITS.
Exhibit
Numbers
4.1 1997 Incentive and Nonstatutory Stock Option Plan, as amended
(incorporated by reference to Exhibit A to the Company's Definitive
Proxy Statement filed with the SEC on November 2, 1999).
4.2 Form of Stock Option Agreement under the 1997 Incentive and
Nonstatutory Stock Option Plan (incorporated by reference to Exhibit
4.2 to the Company's Registration Statement on Form S-8 filed with
the SEC on September 24, 1999 (file no. 333-87735).
5 Opinion of Kirkpatrick & Lockhart LLP as to the validity of the
securities being registered
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of T N Soong & Co.
23.3 Consent of Kirkpatrick & Lockhart LLP (contained in Exhibit 5).
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
II-2
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
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 11th day of
October, 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 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 October 11, 2000
----------------------------- and a Director (Principal Executive
Noam Lotan Officer)
/s/ SHLOMO MARGALIT Chairman of the Board, Chief October 11, 2000
----------------------------- Technical Officer, Secretary, and a
Shlomo Margalit Director
/s/ EDMUND GLAZER Vice President of Finance and October 11, 2000
----------------------------- Administration, Chief Financial
Edmund Glazer Officer (Principal Financial and
Accounting Officer)
/s/ IGAL SHIDLOVSKY Director October 11, 2000
-----------------------------
Igal Shidlovsky
/s/ GUENTER JAENSCH Director October 11, 2000
-----------------------------
Guenter Jaensch
/s/ DANIEL TSUI Director October 11, 2000
-----------------------------
Daniel Tsui
/s/ BARUCH FISHER Director October 11, 2000
-----------------------------
Baruch Fisher
II-4
Exhibit 5
October 10, 2000
MRV Communications, Inc.
8943 Fullbright Avenue
Chatsworth, CA 91311
Re: MRV Communications, Inc.
Registration Statement on Form S-8
1,200,000 shares issuable upon exercise of options granted
to employees of MRV Communications, Inc.
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 1,200,000 shares of common
stock issuable upon exercise of options granted to employees of the Company (the
"MRV Options") under the 1997 Incentive and Nonstatutory Stock Option 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 MRV Options and the purchase
price therefore 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 LLP
Kirkpatrick & Lockhart LLP
EXHIBIT 23.1
[ARTHUR ANDERSEN LETTERHEAD]
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 reports 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, as amended by 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
October 11, 2000
EXHIBIT 23.2
[ARTHUR ANDERSEN LETTERHEAD]
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 on From S-8.
/s/ T N Soong & Co.
T N Soong & Co.
A Member Firm of Andersen Worldwide, SC
Taipei, Taiwan, the Republic of China
October 11, 2000
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