<PAGE>
As filed with the Securities and Exchange Commission on October 22, 1998
Registration No. 333-_______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
__________________
JAVELIN SYSTEMS, INC.
(Exact name of Registrant as specified in its charter)
__________________
Delaware 52-1945748
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
17891 Cartwright Road
Irvine, CA 92614
(949) 440-8000
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
__________________
1997 EQUITY INCENTIVE PLAN, AS AMENDED
(Full title of the plans)
__________________
Richard P. Stack
President and Chief Executive Officer
JAVELIN SYSTEMS, INC.
17891 Cartwright Road
Irvine, CA 92614
(949) 440-8000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
__________________
Copies to:
Jeremy D. Glaser, Esq.
COOLEY GODWARD LLP
4365 Executive Drive, Suite 1100
San Diego, CA 92121
(619) 550-6000
__________________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
========================================================================================================
Proposed Maximum Proposed 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 1,100,000 $7.00-12.50 $9,285,375 $2,739.19
=======================================================================================================
</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 1997 Equity
Incentive Plan, as amended (the "1997 Plan") and (b) for shares issuable under
the Registrant's 1997 Plan, calculated on the basis of the average of the high
and low sales price of Registrant's Common Stock on October 19, 1998 as reported
on the Nasdaq SmallCap Market. The following chart shows the calculation of the
registration fee.
<PAGE>
<TABLE>
<CAPTION>
_______________________________________________________________________________
Number Offering Price Aggregate
Type of Shares of Shares Per Share Offering Price
_______________________________________________________________________________
<S> <C> <C> <C>
Common Stock issuable pursuant 23,000 $ 9.50 $ 218,500
to outstanding options under
the 1997 Plan
_______________________________________________________________________________
Common Stock issuable pursuant 117,500 $ 9.00 $ 1,057,500
to outstanding options under
the 1997 Plan
_______________________________________________________________________________
Common Stock issuable pursuant 25,000 $ 8.875 $ 221,875
to outstanding options under
the 1997 Plan
_______________________________________________________________________________
Common Stock issuable pursuant 75,000 $8.6875 $ 651,562.50
to outstanding options under
the 1997 Plan
_______________________________________________________________________________
Common Stock issuable pursuant 135,000 $ 8.625 $ 1,164,375
to outstanding options under
the 1997 Plan
_______________________________________________________________________________
Common Stock issuable pursuant 135,500 $10.875 $1,473,562.50
to outstanding options under
the 1997 Plan
_______________________________________________________________________________
Common Stock issuable pursuant 20,000 $ 12.00 $ 240,000
to outstanding options under
the 1997 Plan
_______________________________________________________________________________
Common Stock issuable pursuant 50,000 $ 12.50 $ 625,000
to outstanding options under
the 1997 Plan
_______________________________________________________________________________
Common Stock issuable under the 519,000 $ 7.00 $ 3,633,000
1997 Plan
_______________________________________________________________________________
</TABLE>
2.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange Commission
(the "Commission") pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act") are hereby incorporated by reference in this Registration
Statement except as superseded or modified herein: Registrant's Annual Report on
Form 10-KSB for the year ended June 30, 1998 and the description of the
Registrant's Common Stock, contained in its Registration Statement on Form 8-A
dated October 3, 1996 including any amendment or reports filed for the purpose
of updating such description. All documents filed by the Registrant with the
Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of 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.
<PAGE>
The Delaware General Corporation Law (the "DGCL") 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 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 DGCL, 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 DGCL 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
<PAGE>
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.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
No. Description
- ------- -----------
3.1 Amended and Restated Certificate of Incorporation of Registrant.(1)
3.2 Amended and Restated Bylaws of Registrant.(1)
4.1 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.
23.3 Consent of PricewaterhouseCoopers LLP.
24.1 Power of Attorney. Reference is made to page 7.
99.1 1997 Equity Incentive Plan of Registrant, as amended (the "1997
Plan").(2)
99.2 Form of 1997 Plan Non-Qualified Stock Option Agreement.(2)
99.3 Form of 1997 Plan Incentive Stock Option Agreement.(2)
_____________________
(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.
(2) Filed as an exhibit to the Registrant's Annual Report on Form 10-KSB for
the fiscal year ended June 30, 1998, and incorporated herin 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;
<PAGE>
(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 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.
<PAGE>
SIGNATURES
----------
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 October 21,
1998.
JAVELIN SYSTEMS, INC.
By /s/ Richard P. Stack
-------------------------------------
Richard P. Stack
President and Chief Executive Officer
POWER OF ATTORNEY
-----------------
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Richard P. Stack and Horace Hertz, 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.
/s/ Richard P. Stack President, Chief Executive Officer October 21, 1998
- ---------------------- and Director (Principal Executive
Richard P. Stack Officer)
/s/ Horace Hertz Chief Financial Officer (Principal October 21, 1998
- ---------------------- Financial and Accounting Officer)
Horace Hertz
/s/ Steven J. Goodman Director October 21, 1998
- ----------------------
Steven J. Goodman
Director October 21, 1998
- ----------------------
Jay L. Kear
Director October 21, 1998
- ----------------------
Andrew F. Puzder
/s/ Robert Nichols Director October 21, 1998
- ----------------------
Robert Nichols
7.
<PAGE>
EXHIBIT 5.1
[LETTERHEAD OF COOLEY GODWARD LLP]
October 22, 1998
Javelin Systems, Inc.
17891 Cartwright Road
Irvine, CA 92614
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 1,100,000 shares of the
Company's Common Stock, $.01 par value (the "Shares"), for issuance upon
exercise of options granted under the Company's 1997 Equity Incentive Plan, as
amended (the "1997 Plan") and options available for grant under the Company's
1997 Plan.
In connection with this opinion, we have examined and relied upon the
Registration Statement, the 1997 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 1997 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
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) pertaining to the 1997 Equity Incentive Plan, as amended of Javelin
Systems, Inc. of our report dated August 1, 1997, with respect to the financial
statements of Javelin Systems, Inc. included in its Annual Report (Form 10-KSB)
for the year ended June 30, 1998.
Ernst & Young LLP
Orange County, California
October 20, 1998
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated August 25, 1998 appearing on page F-2
of the Javelin Systems, Inc. Annual Report on Form 10-KSB for the year ended
June 30, 1998.
PricewaterhouseCoopers LLP
Costa Mesa, California
October 20, 1998
