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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 4, 1999
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)
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)
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1999 NON-OFFICER STOCK OPTION PLAN
(Full title of the plans)
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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)
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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
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES TO AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING PRICE AMOUNT OF REGISTRATION
BE REGISTERED REGISTERED SHARE(1) (1) FEE
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<S> <C> <C> <C> <C>
Common Stock, par value
$.01 1,000,000 $10.125-13.00 $10,478,328 $2,913
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(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rules 457(c) and (h)(1) of the Securities Act
of 1933, as amended. The price per share and aggregate offering price are
calculated based upon (a) the actual exercise price for 602,250 shares
subject to outstanding options granted under the Registrant's 1999
Non-Officer Stock Option Plan (the "Option Plan") and (b) the average of the
high and low prices of Registrant's Common Stock on September 28, 1999 as
reported on the Nasdaq National Market for the remaining 397,750 shares
subject to the Option Plan.
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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, 1999,
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.
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
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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 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.
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ITEM 8. EXHIBITS.
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<CAPTION>
Exhibit No. Description
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3.1 Amended and Restated Certificate of Incorporation of Registrant.(1)
3.2 Amended and Restated Bylaws of Registrant.(2)
4.1 Form of Certificate Evidencing Shares of Registrant's Common Stock.(2)
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 PricewaterhouseCoopers LLP.
24.1 Power of Attorney. Reference is made to page 5.
99.1 1999 Non-Officer Stock Option Plan of Registrant (the "1999 Plan"). (3)
99.2 Form of 1999 Plan Non-Qualified Stock Option Agreement. (3)
99.3 Form of 1999 Plan Stock Option Grant Notice. (3)
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(1) Filed as an exhibit to the Registrant's Quarterly Report on Form
10-QSB for the quarter ended December 31, 1998, and incorporated
herein by reference.
(2) 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.
(3) Filed as an exhibit to the Registrant's Annual Report on Form 10-KSB
for the fiscal year ended June 30, 1999, 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 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
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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.
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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 4, 1999.
JAVELIN SYSTEMS, INC.
By /s/ Richard P. Stack
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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 October 4, 1999
- ------------------------ Officer and Director
Richard P. Stack (PRINCIPAL EXECUTIVE OFFICER)
/s/ HORACE HERTZ Chief Financial Officer October 4, 1999
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Horace Hertz ACCOUNTING OFFICER)
/s/ STEVEN J. GOODMAN Director October 4, 1999
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Steven J. Goodman
/s/ JAY L. KEAR Director October 4, 1999
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Jay L. Kear
/s/ ANDREW F. PUZDER Director October 4, 1999
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Andrew F. Puzder
/s/ Robert Nichols Director October 4, 1999
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Robert Nichols
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[COOLEY GODWARD LETTERHEAD]
October 4, 1999
Javelin Systems, Inc.
17891 Cartwright Road
Irvine, CA 92614
RE: REGISTRATION STATEMENT ON FORM S-8
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 1,000,000 shares of the
Company's Common Stock $.01 par value (the "Shares"), for issuance pursuant to
the Company's 1999 Non-Officer Stock Option Plan (the "Plan").
In connection with this opinion, we have examined and relied upon the
Registration Statement, the Plan, the Company's Amended and Restated Certificate
of Incorporation and By-laws, as amended and restated, 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 issued in accordance with the Registration Statement and
Plan, will be validly issued, fully paid, and nonassessable (except as to shares
issued pursuant to certain deferred payment arrangements which will be fully
paid and nonassessable when such deferred payments are made in full).
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[LOGO]
October 4, 1999
Page Two
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Sincerely,
/s/ Jeremy D. Glaser
Jeremy D. Glaser
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Exhibit 23.2
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 31, 1999 relating to the
financial statements of Javelin Systems, Inc., which appears in Javelin
Systems, Inc.'s Annual Report on Form 10-KSB for the year ended June 30, 1999.
PricewaterhouseCoopers LLP
Costa Mesa, California
September 29, 1999
