As filed with the Securities and Exchange Commission on May 18, 1999
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
COMARCO, INC.
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(Exact name of registrant as specified in its charter)
California 95-2088894
- ------------------------------- -------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1551 North Tustin Avenue, Suite 840
Santa Ana, California 92705
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(Address, including zip code, of registrant's
principal executive offices)
COMARCO, INC.
SHARE EXCHANGE PROGRAM
------------------------
(Full title of the plan)
Don M. Bailey
President and Chief Executive Officer
COMARCO, INC.
1551 North Tustin Avenue, Suite 840
Santa Ana, California 92705
(714) 796-1808
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(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
Roger H. Lustberg, Esq.
Riordan & McKinzie
300 South Grand Avenue, 29th Floor
Los Angeles, California 90071
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Amount Maximum Maximum Amount of
securities to to be Offering Price Aggregate Registration
be registered Registered(1) Per Share(2) Offering Price(2) Fee
- ------------- ------------- -------------- ----------------- ------------
Common Stock, 600,000 $19.88 $11,928,000 $3,316
no par value shares
(1) Pursuant to Rule 416 under the Securities Act of 1933 (the "Securities
Act"), this registration statement also covers, in addition to the number of
shares of Common Stock stated above, such additional shares of Common Stock to
be offered or issued to prevent dilution resulting from future stock dividends,
stock splits, or similar transactions.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457, based on the average of the high and low sales prices for
the Company's Common Stock as reported on the Nasdaq National Market on May 11,
1999.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Comarco, Inc. (the "Company") with the
Securities and Exchange Commission (the "Commission") are incorporated herein by
reference:
(1) The Company's annual report on Form 10-K for the fiscal year ended
January 31, 1999;
(2) Description of the Company's Common Stock contained in Exhibit 3.1 of
Amendment No. 1 to the Quarterly Report of the Company on Form 10-Q for the
quarter ended July 31, 1988, as filed with the Commission on November 16, 1988;
and
(3) All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act, and prior to the filing of a post-effective
amendment to the Registration Statement that indicates that all securities
offered hereby have been sold or that deregisters all such securities remaining
unsold, shall be deemed to be incorporated by reference herein and to be a part
hereof from the date of filing such documents. Any statement contained herein or
in any document incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Prospectus 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 to constitute a part of this Prospectus, except
as so modified or superseded.
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 Company is a California corporation. The Company's Articles of
Incorporation and Bylaws provide for the indemnification of the officers and
directors of the Company to the full extent permitted by law. Section 317 of the
General Corporation Law of the State of California ("GCL") provides that a
California corporation has the power to indemnify its officers and directors in
certain circumstances.
Subdivision (b) of Section 317 of the GCL empowers a corporation to
indemnify any director or officer, or former director or officer, who was or is
a party or is threatened to be made a party to any proceeding (other than an
action by or in the right of the corporation to procure a judgment in its
favor), against expenses, judgments, fines, settlements, and other amounts
actually and reasonably incurred in connection with the proceeding if such
director or officer acted in good faith and in a manner reasonably believed to
be in the best interests of the corporation and, in the case of a criminal
proceeding, had no reasonable cause to believe the conduct of such director or
officer was unlawful.
Subdivision (c) of Section 317 of the GCL empowers a corporation to
indemnify any director or officer, or former director or officer, who was or is
a party or is threatened to be made a party to any threatened, pending, or
completed action by or in the right of the corporation to procure a judgment in
its favor, against expenses actually and reasonably incurred by such director or
officer in connection with the defense or settlement of the action if such
director or officer acted in good faith, in a manner believed to be in the best
interests of the corporation and its shareholders, except that no
indemnification may be made in respect of any claim, issue or matter as to which
such director or officer shall have been adjudged to be liable to the
corporation in the performance of such director's or officer's duty to the
corporation and its shareholders, unless and only to the extent that the court
in which the proceeding is or was pending shall determine upon application that,
in view of all the circumstances of the case, such director or officer is fairly
and reasonably entitled to indemnity for expenses and then only to the extent
that the court shall determine or of settlement amounts and expenses paid in
connection with pending actions disposed of without court approval.
Indemnification under Section 317 may only be made in a specific case upon a
determination that the director or officer has met the applicable standard of
conduct.
Section 317 further provides that to the extent a director or officer
of the corporation has been successful in the defense of any proceeding referred
to in subdivision (b) or (c) or in the defense of any claim, issue, or matter
therein, such director or officer shall be indemnified against expenses actually
and reasonably incurred by him in connection therewith; that indemnification
provided for by Section 317 shall not be deemed exclusive of any additional
rights to which the indemnified party may be entitled; and that the corporation
shall have power to purchase and maintain insurance on behalf of a director or
officer of the corporation against any liability asserted against or incurred by
such director or officer in such capacity or arising out of his status as such
whether or not the corporation would have the power to indemnify him against
that liability under Section 317.
The Company's Articles of Incorporation currently provide that the
liability of the director for monetary damages shall be eliminated to the
fullest extent permissible under California law. The Company's Bylaws provide
for indemnification of the officers and directors of the Company to the maximum
extent permitted by law. Subdivision (a)(10) of Section 204 of the GCL, provides
that such exculpation from liability may not be afforded (i) for acts or
omissions that involve intentional misconduct or a knowing and culpable
violation of law, (ii) for acts or omissions that a director believes to be
contrary to the best interests of the corporation or its shareholders or that
involve the absence of good faith on the part of the director, (iii) for any
transaction from which a director derived an improper personal benefit, (iv) for
acts or omissions that show a reckless disregard for the director's duty to the
corporation or its shareholders in circumstances in which the director was
aware, or should have been aware, of a risk of serious injury to the corporation
or its shareholders, (v) for acts or omissions that constitute an unexcused
pattern of inattention that amounts to an abdication of such director's duty to
the corporation or its shareholders, (vi) under Section 310 of the GCL or (vii)
under Section 316 of the GCL.
Item 7. Exemptions from Registration Claimed.
Not applicable.
Item 8. Exhibits.
5.1 Opinion of Riordan & McKinzie as to the legality of the Common Stock
registered hereby.
23.1 Consent of Riordan & McKinzie - contained in the
opinion filed as Exhibit 5.1.
23.2 Consent of KPMG LLP.
24.1 Power of Attorney (included on Page II-4 hereto).
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:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the 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 the Registration
Statement; and
(iii) 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.
Provided, however, that paragraphs (i) and (ii) above 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 Section 15(d) of the
Exchange Act that are incorporated by reference in the 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.
(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 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
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 Santa Ana, State of California, on this 14th day of May, 1999. COMARCO, INC.
By: /s/ Don M. Bailey
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Don M. Bailey,
President, Chief Executive Officer and
Chairman of the Board
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Don M. Bailey 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 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 attorney-in-fact and
agent, full power and authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent, or his substitute 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 by the following persons in the capacities and on the
dates indicated.
Signature Title Date
--------- ----- ----
/s/ Don M. Bailey President, Chief Executive May 14, 1999
-------------------------- Officer and Chairman
Don M. Bailey of the Board
(Principal Executive Officer)
/s/ Thomas P. Baird Vice President and Chief May 14, 1999
- --------------------------- Financial Officer (Principal
Thomas P. Baird Financial and Accounting
Officer)
/s/ Gerald D. Griffin Director May 14, 1999
- ---------------------------
Gerald D. Griffin
Director May 14, 1999
- ---------------------------
Adm. Wesley L. McDonald
/s/ Gen. Wilbur L. Creech Director May 14, 1999
- ---------------------------
Gen. Wilbur L. Creech
/s/ Paul G. Yovovich Director May 14, 1999
- ---------------------------
Paul G. Yovovich
/s/ Thomas A. Franza Director May 14, 1999
- ---------------------------
Thomas A. Franza
<PAGE>
EXHIBIT INDEX
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Exhibit No. Description of Exhibit
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5.1 Opinion of Riordan & McKinzie, A Professional Corporation.
23.1 Consent of Riordan & McKinzie (contained in Exhibit 5.1).
23.2 Consent of KPMG LLP.
24.1 Power of Attorney (included on Page II-4 hereto).
Exhibit 5.1
May 13, 1999
Comarco, Inc.
Bentall Executive Centre
1551 North Tustin Ave.
Suite 840
Santa Ana, CA 92705
Ladies and Gentlemen:
You have requested our opinion with respect to 600,000 shares of the
common stock (the "Shares"), of Comarco, Inc., a California corporation (the
"Company"), which Shares the Company will issue from time to time pursuant to
the terms of the Company's Employee Share Exchange Program (the "Program"). The
Shares are the subject of a Registration Statement on Form S-8 (the
"Registration Statement"), to which this opinion is attached as an exhibit, to
be filed with the Securities and Exchange Commission under the Securities Act of
1933, as amended.
We have examined such documents and records of corporate proceedings
taken in connection with the Program, and have considered such matters of law,
as we have deemed relevant to this opinion.
Based upon the foregoing examinations, we are of the opinion that the
Shares have been duly authorized, and when issued in accordance with the terms
the Plan, will be duly authorized, validly issued, fully paid and
non-assessable.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ RIORDAN & MCKINZIE
Exhibit 23.2
Consent of Independent Accountants
The Board of Directors of
COMARCO, Inc.:
We consent to the use of our report dated March 17,1999 incorporated herein by
reference, which report appears in the January 31, 1999 annual report on Form
10-K of COMARCO, Inc.
KPMG LLP
McLean, VA
May 14, 1999
