As filed with the Securities and Exchange Commission on August 25, 2000
Registration No. __________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
___________________
MINDARROW SYSTEMS, INC.
(Exact Name of Registrant as Specified in Its Charter)
___________________
Delaware 77-0511097
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
101 Enterprise, Suite 340
Aliso Viejo, California 92656
(Address, Including Zip Code, of Principal Executive Offices)
___________________
MindArrow Systems, Inc. 1999 Stock Option Plan
(Full Title of the Plan)
___________________
Michael R. Friedl, Chief Financial Officer
MindArrow Systems, Inc.
101 Enterprise, Suite 340
Aliso Viejo, California 92656
(949) 916-8705
(Name, Address and Telephone Number, Including Area Code, of Agent For
Service)
COPY TO:
Joseph J. Herron, Esq.
O'Melveny & Myers LLP
610 Newport Center Drive, Suite 1700
Newport Beach, California 92660
(949) 760-9600
___________________
CALCULATION OF REGISTRATION FEE
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<S> <C> <C> <C> <C>
Proposed Proposed
Maximum Maximum
Title Of Amount Offering Aggregate
Securities To Be Price Offering Amount Of
To Be Registered Per Unit Price Registration
Registered Fee
Common Stock, 3,000,000(1) $8.25(2) $24,750,000(2) $6,534(2)
par value $0.001 shares
per share
(1) This Registration Statement covers, in addition
to the number of shares of Common Stock stated above, options and
other rights to purchase or acquire the shares of Common Stock
covered by the Prospectus and, pursuant to Rule 416(c) under the
Securities Act of 1933, as amended (the "Securities Act"), an
additional indeterminate number of shares, options and rights
which by reason of certain events specified in the MindArrow
Systems, Inc. 1999 Stock Option Plan (the "Plan") may become
subject to the Plan.
(2) Pursuant to Rule 457(h), the maximum offering
price, per share and in the aggregate, and the registration fee
were calculated based upon the average of the bid and asked prices
of our Common Stock on the Over-the-Counter Bulletin Board market
on August 23, 2000.
The Exhibit Index for this Registration Statement is at page S-3.
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PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in
Part I of Form S-8 (plan information and registrant information)
will be sent or given to employees as specified by Securities
Act Rule 428(b)(1). Such documents need not be filed with the
Securities and Exchange Commission (the "Commission") either as
part of this Registration Statement or as prospectuses or
prospectus supplements pursuant to Securities Act Rule 424.
These documents, which include the statement of availability
required by Item 2 of Form S-8, and the documents incorporated
by reference in this Registration Statement pursuant to Item 3
of Form S-8 (Part II hereof), taken together, constitute a
prospectus that meets the requirements of Section 10(a) of the
Securities Act.
<PAGE>
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents of MindArrow Systems, Inc. (the
"Company") filed with the Commission are incorporated herein by
reference:
(a) The Company's Prospectus which is part of the
Company's Registration Statement on Form S-1 filed
with the Commission on November 30, 1999 (registration
number 333-91819), as subsequently amended (the "Form
S-1"), which contains audited financial statements for
the Company's fiscal year ended September 30, 1999;
and
(b) The description of the Company's Common Stock
contained in its Registration Statement on Form 8-A
filed with the Commission on July 26, 2000
(registration number 000-28403) (which incorporates
the description of the Common Stock included in the
Form S-1), and any amendment or report filed for the
purpose of updating such description.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Securities and
Exchange Act of 1934, as amended (the "Exchange Act"), prior to
the filing of a post-effective amendment which indicates that
all 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 herein or in a document, all
or a portion of which is 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 so modified or amended, to constitute a
part of this Registration Statement.
Item 4. Description of Securities
The Company's Common Stock, par value $0.001 per share (the
"Common Stock"), is registered pursuant to Section 12 of the
Exchange Act, and, therefore, the description of securities is
omitted.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Under Section 145 of the Delaware General Corporation Law
(the "Delaware Law"), the Company has broad powers to indemnify
its directors and officers against liabilities they may incur in
such capacities, including liabilities under the Securities Act.
The Company's Amended and Restated Certificate of
Incorporation and Bylaws include provisions to (i) eliminate the
personal liability of its directors and officers for monetary
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damages resulting from breaches of their fiduciary duty to the
extent permitted by Section 102(b)(7) of the Delaware Law and
(ii) require the Company to indemnify its directors and officers
to the fullest extent permitted by Section 145 of the Delaware
Law, including circumstances in which indemnification is
otherwise discretionary. Pursuant to Section 145 of the
Delaware Law, a corporation generally has the power to indemnify
its present and former directors, officers, employees and agents
against expenses incurred by them in connection with any suit to
which they are or are threatened to be made, a party by reason
of their serving in such positions so long as they acted in good
faith and in a manner they reasonably believed to be in or not
opposed to, the best interests of the corporation and with
respect to any criminal action, they had no reasonable cause to
believe their conduct was unlawful. The Company believes that
these provisions are necessary to attract and retain qualified
persons as directors and officers. These provisions do not
eliminate the directors' duty of care, and, in appropriate
circumstances, equitable remedies such as injunctive or other
forms of non-monetary relief will remain available under
Delaware Law. In addition, each director will continue to be
subject to liability for breach of the director's duty of
loyalty to the Company, for acts or omissions not in good faith
or involving intentional misconduct, for knowing violations of
law, for acts or omissions that the director believes to be
contrary to the best interests of the Company or its
stockholders, for any transaction from which the director
derived an improper personal benefit, for acts or omissions
involving a reckless disregard for the director's duty to the
Company or its stockholders when the director was aware or
should have been aware of a risk of serious injury to the
Company or its stockholders, for acts or omissions that
constitute an unexcused pattern of inattention that amounts to
an abdication of the director's duty to the Company or its
stockholders, for improper transactions between the director and
the Company and for improper distributions to stockholders and
loans to directors and officers. The provision also does not
affect a director's responsibilities under any other law, such
as the federal securities law or state or federal environmental
laws.
The Company has obtained an insurance policy covering the
officers and directors of the Company with respect to certain
liabilities, including liabilities arising under the Securities
Act or otherwise.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
See the attached Exhibit Index at page S-3.
Item 9. Undertakings
(a) 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:
(i) To include any prospectus required
by Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any
facts or events arising after the effective date of
this Registration Statement (or the most recent post-
effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the
information set forth in this Registration Statement;
and
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(iii) 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 this Registration Statement;
provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required to be
included in a post-effective amendment by those paragraphs
is contained in periodic reports filed with or furnished to
the Commission by the registrant pursuant to Section 13 or
15(d) of the Exchange Act that are incorporated by
reference in this Registration Statement.
(2) That, for the purpose of determining any liability
under 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.
(b) The undersigned registrant hereby undertakes 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 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 this 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.
(h) Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors,
executive officers and controlling persons of the registrant
pursuant to the provisions described in Item 6 above, 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
Pursuant to the requirements of the Securities Act, 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 Aliso Viejo, State of California, on the 25th day of
August, 2000.
By: /s/ Robert I. Webber
Robert I. Webber
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Robert I.
Webber and Michael R. Friedl, and each of them, as his true and
lawful attorneys-in-fact and agents, 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, exhibits
thereto and other documents in connection therewith) to this
Registration Statement, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the
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, this
Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
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Signature Title Date
/s/ Thomas J. Blakeley Co-Chairman of the Board August 25, 2000
Thomas J. Blakeley
Co-Chairman of the Board
Eric A. McAfee
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/s/ Robert I. Webber Chief Executive Officer, August 25, 2000
Robert I. Webber President and Director
(Principal Executive Officer)
Director
John Troiano
/s/ Joel Schoenfeld Director August 24, 2000
Joel Schoenfeld
/s/ Michael R. Friedl Chief Financial Officer, August 25, 2000
Michael R. Friedl Treasurer (Principal Financial
and Accounting Officer)
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EXHIBIT INDEX
Exhibit
Number Description of Exhibit
4.1 MindArrow Systems, Inc. 1999 Stock Option Plan.*
4.2 Form of the Company's Specimen Common Stock
Certificate.*
5. Opinion of Counsel (opinion re legality).
23.1 Consent of Grant Thornton LLP (consent of independent
accountants).
23.2 Consent of Grant Thornton, Hong Kong (consent of
independent accountants).
23.3 Consent of Counsel (included in Exhibit 5).
24. Power of Attorney (included in this Registration
Statement under "Signatures").
_______________________________
* This document was previously filed as an exhibit to the
Company's Registration Statement on Form S-1 filed with the
Commission on November 30, 1999 (registration number 333-91819),
and is incorporated herein by this reference.
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