<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 18, 1997
REGISTRATION NO. 333-______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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JAVELIN SYSTEMS, INC.
(Exact name of Registrant as specified in its charter)
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DELAWARE 52-1945748
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
1881 LANGLEY AVENUE
IRVINE, CALIFORNIA 92614-5223
(714) 223-5130
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
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1996 STOCK INCENTIVE AWARD PLAN
(Full title of the plans)
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RICHARD P. STACK
PRESIDENT AND CHIEF EXECUTIVE OFFICER
JAVELIN SYSTEMS, INC.
1881 LANGLEY AVENUE
IRVINE, CALIFORNIA 92614-5223
(714) 223-5130
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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Copies to:
JEREMY D. GLASER, ESQ.
COOLEY GODWARD LLP
4365 EXECUTIVE DRIVE, SUITE 1100
SAN DIEGO, CA 92121
(619) 550-6000
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================================================
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF SECURITIES AMOUNT TO OFFERING PRICE AGGREGATE AMOUNT OF
TO BE REGISTERED BE REGISTERED PER SHARE(1) OFFERING PRICE(1) REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par value 300,000 $2.50-$5.50 $1,294,000 $392.12
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</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457. The price per share and aggregate
offering price are based upon (a) the actual exercise price for shares subject
to outstanding stock options previously granted under Registrant's 1996 Stock
Incentive Award Plan (the "1996 Plan") and (b) for shares issuable under the
Registrant's 1996 Plan, calculated on the basis of the average of the high and
low sales price of Registrant's Common Stock on June 12, 1996 as reported on the
Nasdaq SmallCap Market. The following chart shows the calculation of the
registration fee.
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<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------
Aggregate
Type of Shares Number of Shares Offering Price Per Share Offering Price
- -----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Common Stock issuable pursuant to 20,000 $2.50 $50,000
outstanding options under the 1996 Plan
- -----------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant to 97,500 $3.50 $341,250
outstanding options under the 1996 Plan
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Common Stock issuable pursuant to 60,000 $4.50 $270,000
outstanding options under the 1996 Plan
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Common Stock issuable pursuant to 18,000 $4.75 $85,500
outstanding options under the 1996 Plan
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Common Stock issuable pursuant to 40,000 $4.9375 $197,500
outstanding options under the 1996 Plan
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Common Stock issuable pursuant to 10,000 $5.00 $50,000
outstanding options under the 1996 Plan
- -----------------------------------------------------------------------------------------------------------
Common Stock issuable under the 1996 54,500 $5.50 $299,750
Plan
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</TABLE>
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Registrant's Quarterly Reports on Form 10-QSB for the quarters ended
September 30, 1996, December 31, 1996, and March 31, 1997 and the Registrant's
Registration Statement on Form SB-2 (No. 333-11217) dated October 25, 1996 filed
by the Registrant with the Securities and Exchange Commission (the "Commission")
are hereby incorporated by reference in this Registration Statement except as
superseded or modified herein. All documents filed by the Registrant with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") after the date of this
Registration Statement and prior to the time a post-effective amendment which
indicates that the securities offered hereby have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference into this Registration Statement and to be a part hereof from the date
of filing of such documents. Any statement contained in any document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Registration Statement 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 modified or superseded, to constitute
a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Bylaws require that directors and officers be indemnified
to the maximum extent permitted by Delaware law.
The Delaware General Corporate Law (the "Delaware GCL") provides that a
director or officer of a corporation (i) shall be indemnified by the corporation
for all expenses of litigation or other legal proceedings when he is successful
on the merits, (ii) may be indemnified by the corporation for the expenses,
judgments, fines and amounts paid in settlement of such litigation (other than a
derivative suit) even if he is not successful on the merits if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation (and, in the case of a criminal proceeding, had no
reason to believe his conduct was
3.
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unlawful), and (iii) may be indemnified by the corporation for expenses of a
derivative suit (a suit by a stockholder alleging a breach by a director or
officer of a duty owed to the corporation), even if he is not successful on the
merits, if he acted in good faith and in a manner he reasonably believed to be
in or not opposed to the best interests of the corporation, provided that no
such indemnification may be made in accordance with this clause (iii) if the
director or officer is adjudged liable to the corporation, unless a court
determines that, despite such adjudication but in view of all of the
circumstances, he is entitled to indemnification of such expenses. The
indemnification described in clauses (ii) and (iii) above shall be made upon
order by a court or a determination by (i) a majority of disinterested
directors, (ii) if there are no such directors or if such directors so direct,
by independent legal counsel in a written opinion or (iii) the stockholders that
indemnification is proper because the applicable standard of conduct is met.
Expenses incurred by a director or officer in defending an action may be
advanced by the corporation prior to the final disposition of such action upon
receipt of an undertaking by such director or officer to repay such expenses if
it is ultimately determined that he is not entitled to be indemnified in
connection with the proceeding to which the expenses relate. The Registrant's
Certificate of Incorporation includes a provision eliminating, to the fullest
extent permitted by Delaware law, director liability for monetary damages for
breaches of fiduciary duty.
The Registrant has entered into indemnity agreements (the "Indemnity
Agreements") with each director or officer designated by the Board of Directors.
The Indemnity Agreements require that the Registrant indemnify directors and
officers who are parties thereto in all cases to the fullest extent permitted by
Delaware law. Under the Delaware GCL, except in the case of litigation in which
a director or officer is successful on the merits, indemnification of a director
or officer is discretionary rather than mandatory. Consistent with the
Registrant's Bylaw provision on the subject, the Indemnity Agreements require
the Registrant to make prompt payment of litigation expenses at the request of
the director or officer in advance of indemnification provided that he
undertakes to repay the amounts if it is ultimately determined that he is not
entitled to indemnification for such expenses. The advance of litigation
expenses is mandatory; under the Delaware GCL such advance would be
discretionary. Under the Indemnity Agreements, the director or officer is
permitted to bring suit to seek recovery of amounts due under the Indemnity
Agreements and is entitled to recover the expenses of seeking such recovery
unless a court determines that the action was not made in good faith or was
frivolous. Without the Indemnity Agreements, the Registrant would not be
required to pay the director or officer for his expenses in seeking
indemnification recovery against the Registrant. Under the Indemnity
Agreements, directors and officers are not entitled to indemnity or advancing of
expenses (i) if such director or officer has recovered payment under an
insurance policy for the subject claim, or has otherwise been indemnified
against the subject claim, (ii) for actions initiated or brought by the director
or officer and not by way of defense (except for actions seeking indemnity or
expenses from the Registrant), (iii) if the director or officer violated section
16(b) of the Exchange Act or similar provisions of law or (iv) if a court of
competent jurisdiction determines that the director or officer failed to act in
good faith and in a manner reasonably believed to be in or not opposed to the
best interests of the Registrant or, with respect to any proceeding which is of
a criminal nature, had reasonable cause to believe his conduct was unlawful.
Absent the Indemnity Agreements, indemnification that might be made available to
directors and officers could be changed by amendments to the Registrant's
Certificate of Incorporation or Bylaws.
4.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit No. Description
- ---------- -----------
<C> <S>
4.1 Amended and Restated Certificate of Incorporation of Registrant.(1)
4.2 Amended and Restated Bylaws of Registrant.(1)
4.3 Form of Certificate Evidencing Shares of Registrant's Common Stock.(1)
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Cooley Godward LLP. Reference is made to Exhibit 5.1.
23.2 Consent of Ernst & Young LLP, independent auditors.
24.1 Power of Attorney. Reference is made to page 7.
99.1 1996 Stock Incentive Award Plan of Registrant (the "1996 Plan").(1)
99.2 Form of 1996 Director Non-Qualified Stock Option Agreement.(1)
99.3 Form of 1996 Employee Non-Qualified Stock Option Agreement.(1)
</TABLE>
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(1) Filed as an exhibit to the Registrant's Registration Statement on Form SB-2
(No. 333-11217) filed with the Commission on October 25, 1996, and
incorporated herein by reference.
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 this 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, as amended (the "Securities Act"), 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; and
(4) That, for purposes of determining any liability under the
Securities Act, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the
5.
<PAGE>
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) 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 for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions or otherwise, the Registrant has
been advised that in the opinion of the 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, 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.
6.
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SIGNATURES
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The Registrant. 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 Irvine, State of California, on June 18, 1997.
JAVELIN SYSTEMS, INC.
By /s/ Richard P. Stack
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Richard P. Stack
President and Chief Executive Officer
POWER OF ATTORNEY
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KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Richard P. Stack and Lawrence W.
McCorkle, and each of them, his true and lawful attorney-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 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 his substitutes or substitute, 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.
<TABLE>
<S> <C> <C>
/s/ Richard P. Stack President, Chief Executive Officer June 18, 1997
- --------------------------- and Director
Richard P. Stack (Principal Executive Officer)
/s/ Lawrence W. McCorkle Controller, Treasurer and Secretary June 18, 1997
- --------------------------- (Principal Financial and Accounting Officer)
Lawrence W. McCorkle
/s/ C. Norman Campbell Vice President, Engineering and June 18, 1997
- --------------------------- Director
C. Norman Campbell
/s/ Steven J. Goodman Director June 18, 1997
- ---------------------------
Steven J. Goodman
/s/ Jay L. Kear Director June 18, 1997
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Jay L. Kear
Director
- ---------------------------
Andrew F. Puzder
</TABLE>
7.
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EXHIBIT 5.1
[LETTERHEAD OF COOLEY GODWARD LLP]
June 18, 1997
Javelin Systems, Inc.
1881 Langley Avenue
Irvine, California 92614-5223
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by Javelin Systems, Inc. (the "Company") of a Registration
Statement on Form S-8 (the "Registration Statement") with the Securities and
Exchange Commission, covering the registration of up to 300,000 shares of the
Company's Common Stock, $.01 par value (the "Shares"), for issuance upon
exercise of options granted under the Company's 1996 Stock Incentive Award Plan
(the "1996 Plan") and options available for grant under the Company's 1996 Plan.
In connection with this opinion, we have examined and relied upon the
Registration Statement, the 1996 Plan, the Company's Amended and Restated
Certificate of Incorporation and Amended and Restated Bylaws, and the originals
or copies certified to our satisfaction of such records, documents,
certificates, memoranda and other instruments as in our judgment are necessary
or appropriate to enable us to render the opinion expressed below. We have
assumed the genuineness and authenticity of all documents submitted to us as
originals, the conformity to originals of all documents submitted to us as
copies thereof and the due execution and delivery of all documents where due
execution and delivery are a prerequisite to the effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the Shares, when sold and issued in accordance with the Registration
Statement and 1996 Plan, will be validly issued, fully paid, and nonassessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Sincerely,
Cooley Godward LLP
/s/ JEREMY D. GLASER
- --------------------
Jeremy D. Glaser
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) and related prospectus pertaining to the Javelin Systems, Inc. 1996 Stock
Incentive Award Plan of our report dated August 15, 1996, except as to Note 8,
as to which the date is August 29, 1996, with respect to the financial
statements and schedule of Javelin Systems, Inc. included in its Registration
Statement (Form SB-2) for the registration of 850,000 shares of its common
stock, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Orange County, California
June 13, 1997
