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As filed with the Securities and Exchange Commission on April 24, 1998
Registration No. 33-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
SKYMALL, INC.
(Exact name of registrant as specified in its charter)
Nevada 86-0651100
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1520 East Pima Street, Phoenix, Arizona 85034
(Address of Principal Executive Offices) (Zip Code)
1994 Stock Option Plan
(Full title of the plan)
Christine A. Aguilera, Esq.
Vice President of Business Development,
General Counsel and Secretary
SkyMall, Inc.
1520 East Pima Street
Phoenix, Arizona 85034
(Name and address of agent for service)
(602) 254-9777
(Telephone number, including area code, of agent for service)
With copy to:
Christopher D. Johnson, Esq.
Squire, Sanders & Dempsey L.L.P.
40 N. Central Avenue, Suite 2700
Phoenix, Arizona 85004
(602) 528-4000
Approximate Date of Commencement of Proposed Sale: As soon as practicable after
the Registration Statement becomes effective.
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CALCULATION OF REGISTRATION FEE
================================================================================
PROPOSED PROPOSED
TITLE OF MAXIMUM MAXIMUM
SECURITIES AMOUNT OFFERING AGGREGATE AMOUNT OF
TO BE TO BE PRICE OFFERING REGISTRATION
REGISTERED REGISTERED PER SHARE* PRICE* FEE
- ---------- ---------- ---------- --------- ------------
Common Stock 1,100,000 $5.25 $5,775,000 $1,704
$.001 par value
================================================================================
* Estimated solely for the purpose of calculating the amount of the
registration fee, pursuant to Rules 457(c) and 457(h) of the Securities Act
of 1933, on the basis of the average of the high and low prices for shares
of Common Stock on April 21, 1998.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in Part I, Items 1 and
2, will be delivered to employees in accordance with Form S-8 and Securities Act
Rule 428.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents are hereby incorporated by reference into this
Registration Statement: (a) the Registrant's Annual Report of Form 10-K for the
fiscal year ended December 31, 1997; (b) all reports filed with the Securities
and Exchange Commission pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 subsequent to December 31, 1997; and (c) the description of
the Registrant's capital stock contained in the Registrant's Registration
Statement on Form 8-A filed with the Securities and Exchange Commission pursuant
to Section 12(g) of the Securities Act of 1934.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, prior to the
filing of a post-effective amendment to this Registration Statement which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing such documents.
Item 4. DESCRIPTION OF SECURITIES. Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Articles 11 and 12 of the Company's Articles of Incorporation provide as
follows:
1. To the fullest extent permitted by the laws of the State of Nevada, as
the same exist or may hereinafter be amended, no director or officer of the
Corporation shall be personally liable to the Corporation or its shareholders
for monetary damages for breach of fiduciary duty as a director or officer;
provided, however, that nothing contained herein shall eliminate or limit the
liability of a director or officer of the Corporation to the extent provided by
applicable laws (i) for acts or omissions which involve intentional misconduct,
fraud or knowing violation of law or (ii) for authorizing the payment of
dividends in violation of Nevada Revised Statutes Section 78.300. The limitation
of liability provided herein shall continue after a director or officer has
ceased to occupy such position as to acts or omissions occurring during such
director's or officer's term or terms of office. No repeal, amendment or
modification of this Article, whether direct or indirect, shall eliminate or
reduce its effect with respect to any act or omission of a director or officer
of the Corporation occurring prior to such repeal, amendment or modification.
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2. The Corporation shall indemnify, defend and hold harmless any person who
incurs expenses, claims, damages or liability by reason of the fact that he or
she is, or was, an officer, director, employee or agent of the Corporation, to
the fullest extent allowed pursuant to Nevada law.
The Registrant's Bylaws require the Registrant to indemnify its directors
and officers to the full extent provided by Nevada law. The Registrant has also
entered into separate indemnification agreements with its directors and officers
which would require the Registrant, among other things, to indemnify them
against certain liabilities that may arise by reason of their status or service
as directors or officers, other than liabilities arising from fraud, actual
dishonesty, willful misconduct, or violation of Section 16(b) of the Securities
Exchange Act of 1934. The agreements would also require the Registrant to
advance directors and officers' expenses in certain circumstances.
The Registrant currently maintains directors' and officers' liability
insurance.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable.
Item 8. EXHIBITS.
Exhibit Index located at Page S-8.
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 of 1933;
(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, represents a fundamental change in the information set
forth in the registration statement;
(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) do not apply if the
registration statement is on Form S-3 or Form S-8 and the information
required to be included in a post-effective amendment by those paragraphs
is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
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(2) That, for the purposes of determining any liability under the
Securities Act of 1933, 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 of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Act of 1934 (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934) 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.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 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 Securities and Exchange
Commission such indemnification is against public policy as expressed in the 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
offered, 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 of whether such indemnification by it is against
public policy as expressed in the 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 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 Phoenix, and the State of Arizona, on April 23, 1998.
SKYMALL, INC., a Nevada corporation
By: /s/ Robert M. Worsley
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Robert M. Worsley, President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints ROBERT M. WORSLEY and DARRYL BAKER, and each of
them, 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 to this Form S-8 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 and about the premises, as fully and 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 his substitute or substitutes, may lawfully do
or cause to be done by virtue hereof. Pursuant to the requirements of the
Securities Exchange Act of 1934, this Registration Statement on Form S-8 has
been signed below by the following persons on behalf of the registrant and in
the capacities and on the dates indicated:
SIGNATURE TITLE DATE
/s/ Robert M. Worsley Chairman of the Board, April 23, 1998
- --------------------------- President (Chief Executive
Robert M. Worsley Officer)
/s/ Darryl Baker Controller April 23, 1998
- --------------------------- (Principal Accounting Officer)
Darryl Baker
- --------------------------- Director
Alan C. Ashton
/s/ Lyle R. Knight Director April 23, 1998
- ---------------------------
Lyle R. Knight
/s/ Thomas J. Litle Director April 23, 1998
- ---------------------------
Thomas J. Litle IV
/s/ Randy Petersen Director April 23, 1998
- ---------------------------
Randy Petersen
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EXHIBIT INDEX
EXHIBIT PAGE OR
NUMBER DESCRIPTION METHOD OF FILING
- ------- --------------------------------------------- ----------------
4.1 1994 Stock Option Plan *
(As Amended April 20, 1998)
4.2 Form of Stock Option Agreement *
5 Opinion of Squire, Sanders & Dempsey *
L.L.P., counsel for the Registrant
(including consent)
23.1 Consent of Arthur Andersen LLP *
23.2 Consent of Counsel See Exhibit 5
24 Powers of Attorney See Signature Page
- -------------------
* Filed herewith.
S-8
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EXHIBIT 4.1
SKYMALL, INC.
1994 STOCK OPTION PLAN
(AS AMENDED APRIL 20, 1998)
1. Purpose.
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The SkyMall, Inc. 1994 Stock Option Plan is intended to assist in
attracting and retaining certain key employees to whom options may be granted
under the Plan.
2. Definitions. The following terms have the following meanings:
-----------
2.1. "Act" means the Federal Securities Act of 1933, as amended, and
applicable state securities laws.
2.2. "Board" means the Board of Directors of SkyMall, Inc.
2.3. "Code" means the Internal Revenue Code of 1986, as amended, and the
rules and regulations thereunder.
2.4. "Committee" means the Compensation Committee of the Board of
Directors of Skymall, Inc.
2.5. "Company" means SkyMall, Inc. and any of its subsidiaries.
2.6. "Grant Date" means the date on which an Option is granted.
2.7. "Incentive Option" means an Option eligible for tax treatment as an
incentive option under Section 422 of the Code.
2.8. "Non-Qualified Option" means an Option that is not eligible for tax
treatment under Section 422 of the Code
2.9. "Option" means an option to purchase Stock that is granted under the
Plan.
2.10. "Optionee" means an employee to whom an Option has been granted under
the Plan.
2.11. "Plan" means the SkyMall, Inc. 1994 Stock Option Plan, as amended,
the terms and conditions of which are in this instrument.
2.12. "Stock" means the common stock of SkyMall, Inc.
2.13. "Stock Option Agreement" means the written agreement entered into
between the Company and the Optionee that provides for the price and terms of an
option granted under the Plan.
2.14 "Subsidiary" means any corporation, the majority of the outstanding
capital stock of which is owned, directly or indirectly, by the Company.
2.15. "Tax Date" means the date an Optionee is required to pay the Company
an amount to cover tax withholding on the exercise of a Non-Qualified option.
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2.16. "Ten Percent Shareholder" means an employee who owns more than 10% of
the total combined voting power of all classes of stock of the Company.
3. Administration.
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3.1. The Plan shall be administered by the Board. Without limiting the
powers of the Board, the Board shall have the power to determine the times
during which any option shall be exercisable, the events upon which any Option
shall be terminated, the amounts, if any, payable to beneficiaries of an
Optionee upon the death of such Optionee, the exercisability of any Option upon
the sale of all or substantially all of the assets of the Company, or a merger
pursuant to which the Company is not the surviving corporation, (other than a
merger that is only a change in form), and other terms of exercise. No member of
the Board shall be eligible to vote with respect to Options to be granted to him
or her.
3.2. The Committee, subject to the provisions of the Plan, shall make
recommendations to the Board regarding:
(a) the employees who shall receive Options, the times when such
Options shall be granted and the time limits within which Options may be
exercised, the number of shares to be subject to each Option, and the terms and
provisions of Stock Option Agreements (which need not be identical):
(b) Matters of interpretation of plan provisions;
(c) rules and regulations relating to the Plan;
(d) Stock Option Agreements under the Plan; and
(e) other determinations advisable for the proper administration of
the Plan.
All decisions and determinations of the Board in the administration of the Plan
shall be final.
4. Tax Characteristics of Options.
------------------------------
Options granted pursuant to the Plan may be designated, but need not be
designated, as Incentive Options. The Stock Option Agreement shall provide
whether an option is an Incentive Option or a Non-Qualified Option. In the case
of options that are Incentive Options the aggregate fair market value
(determined at the time the incentive stock option is granted) of the Stock with
respect to which options are exercisable for the first time by an employee
during any calendar year (under all stock option plans of the Company) shall not
exceed $100,000.
5. Stock Subject to the Plan.
-------------------------
5.1 Subject to adjustments pursuant to Section 11 of this Plan, the
aggregate number of shares that may be issued upon the exercise of Options shall
not exceed 1,100,000 shares of Stock, which may be authorized but unissued
shares or treasury shares, as the Board may determine.
5.2 If an Option for any reason expires or is terminated, those shares of
Stock allocated for issuance upon the unexercised or terminated portion of such
Option may again be subject to an Option under the Plan.
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6. Eligibility.
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All directors and officers of the Company who are employees of the Company
and other key employees of the Company and any Subsidiary (whether existing now
or a new subsidiary) as selected by the Board shall be eligible to receive
Options under the Plan.
7. Option Exercise Price and Payment of Withholding Taxes.
------------------------------------------------------
The price at which shares of Stock may be purchased upon the exercise of
any Option shall be such price as determined by the Board, which shall not be
less than 110% of the fair market value of the Stock on the date of the granting
of the Option, but if the Company desires to grant an Incentive Option to a Ten
Percent Shareholder, the price at which shares may be purchased shall not be
less than 110% of the fair market value of the Stock at the date of grant. Also,
if an Employee desires to exercise a Non-Incentive Option, the Employee shall
pay to the Company the federal and state income and withholding taxes the
Company determines are payable on the spread between the fair market value of
the stock at the date of exercise and Option Price.
8. Term of Options.
---------------
The term of each Option shall be determined by the Board, but unless
otherwise determined the term of each option shall be five years from the date
of grant. In no case shall the term of any option exceed ten years from the date
of grant, or five years in the case of a grant of an Incentive Option to a
person who owns 10% or more of the value of the Employer's outstanding Stock.
9. Payment on Exercise of Options.
------------------------------
The price of an exercised Option and any taxes attributable to the delivery
of the Stock to the employee upon exercise of such Option shall be paid:
(a) in United States dollars in cash or by check, bank draft or money order
payable to the order of the Company;
(b) at the discretion of the Board, through the delivery of Stock with a
fair market value equal to the exercise price and withholding taxes, if any; or
(c) at the discretion of the Board, through a combination of (a) and (b).
10. Non-Transferability of Options.
------------------------------
Options shall not be transferable by the Optionee, except that if an
employee dies, his or her personal representative may exercise the option within
90 days of the date of the employee's death.
11. Adjustments.
-----------
If the Company:
(a) declares a dividend or makes a distribution on its Stock payable in
Stock or securities convertible into Stock;
(b) recapitalizes through a split-up of the outstanding shares of Stock
into a greater number or a combination of the outstanding Stock into a lesser
number: or
3
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(c) issues, by reclassification of its Stock, any shares of Stock, the
Board shall make appropriate and equitable adjustments in the number and kind of
shares subject to outstanding Options under the Plan. Any other adjustments to
the Options shall be within the sole discretion of the Board. If the adjustment
would produce fractional shares with respect to any unexercised Option, the
Board may adjust appropriately the number of shares covered by the Option to
eliminate the fractional shares. The price of any shares subject to an
outstanding Option shall be adjusted so there will be no change in the aggregate
purchase price payable upon the exercise of such Option.
12. Additional Restrictions.
-----------------------
Notwithstanding any other provisions of the Plan, any Option granted under
the Plan may contain such additional or more restrictive provisions as the Board
deems advisable and consistent with the Plan.
13. Registration.
------------
The Plan, the Stock to be issued pursuant to the exercise of Options or the
Options granted under the Act, may in the discretion of the Board, be registered
under the Act.
14. Effective Date of Plan.
----------------------
The Plan shall become effective as of January 1, 1994 and shall remain in
effect for ten years from its effective date, unless it is sooner terminated by
the Board. No Incentive Options may be issued under the Plan unless the Plan is
approved by the stockholders of the Company within one year from the date the
Plan is adopted by the Company.
15. Amendment Termination.
---------------------
The Board, in its discretion and at any time, may modify, amend or
terminate the Plan. Neither the termination of the Plan nor any modification or
amendment thereof, shall adversely affect any rights under an Option previously
granted under the Plan without the consent of the Optionee. Notwithstanding the
foregoing, the Board may amend the Plan to the extent necessary to cause Options
granted under the Plan to meet the requirements of the Code and regulations
thereunder and the Act.
16. Miscellaneous.
-------------
16.1. The Grant Date of any Option under this Plan shall be the date
specified by the Board in the Stock Option Agreement. The grant of any Option
shall be subject to the execution by an Optionee of a Stock Option Agreement in
the form and containing the terms specified by the Board.
16.2. Nothing in the Plan or any Option granted hereunder shall confer upon
any employee any right to continue in the service of the Company or a
Subsidiary.
16.3 The grant of Options under the Plan, the issuance and delivery of
shares upon the exercise of Options, and any other matters relating thereto
shall be subject to all laws, rules and regulations as may from time to time be
applicable thereto, including but not limited to, any and all rules and
regulations of any stock exchange or exchanges upon which the shares of the
Company may be listed and all applicable federal and state securities laws, and
shall be further subject to the approval of counsel for the Company with respect
to compliance with such laws, rules and regulations.
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As a condition to the exercise of an Option, the Company may require
the person exercising such Option to represent and warrant at the time of any
such exercise that the shares are being purchased only for investment and
without any present intention to sell or distribute such shares if, in the
opinion of counsel for the Company, such a representation is required by any of
the aforementioned relevant provisions of law.
In the case of an Incentive Option, any Optionee who disposes of
shares of Stock acquired on the exercise of an Option by sale or exchange (a)
either within two (2) years after the date of the grant of the Option under
which the Stock was acquired or (b) within one (1) year after the acquisition of
such shares of Stock shall notify the Company of such disposition and of the
amount realized upon such disposition.
16.4 No person shall acquire any rights as an Optionee under this Plan
unless and until a Stock Option Agreement shall have been duly executed on
behalf of the Company by such officer or officers as the Board shall designate
for such purpose, delivered to the person named therein, and executed by such
person. No person shall have any rights as a shareholder with respect to any
shares covered by an Option granted pursuant to the Plan until the date of the
issuance of a share certificate to the Optionee for such shares.
16.5 The President of the Company has been authorized to execute this
Plan, as amended, and has executed the Plan, as amended, on the date indicated
below.
/s/ Robert M. Worsley
-----------------------------------------
President
Date: April 20, 1998
5
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EXHIBIT 4.2
SKYMALL, INC.
STOCK OPTION AGREEMENT
This Stock Option Agreement ("Agreement") made as of the ____ day of
__________, 1998, by and between SkyMall, Inc., a Nevada corporation (the
"Company"), and _________________________ ("Optionee").
RECITALS
The Company, through its Board of Directors (the "Board"), has determined
that in order to attract and retain key personnel for positions of substantial
responsibility, to provide additional incentive to employees of the Company and
to promote the success of the Company's business, it must offer a compensation
package that provides key employees of the Company a chance to participate
financially in the success of the Company by developing an equity interest in
it.
The Company has adopted the 1994 Stock Option Plan, as amended (the
"Plan").
By this Agreement, the Company and the Optionee desire to establish the
terms upon which the Company is willing to grant to the Optionee, and upon which
the Optionee is willing to accept from the Company an option to purchase shares
of the Company's $.001 par value common stock (the "Common Stock").
AGREEMENT
The parties agree as follows:
1. Grant of Option.
---------------
Subject to the terms and conditions set forth herein, the Company grants to
Optionee an incentive stock option (the "Option") to purchase __________ shares
of its common stock (the "Option Shares") pursuant to the Plan. The grant date
(the "Grant Date") of the Option shall be the date of this Agreement. The Option
granted hereunder shall be an incentive stock option, as defined in Section 422
of the Internal Revenue Code.
2. Time of Exercise.
----------------
The Option may be exercised as follows:
Elapsed Number of Cumulative Percentage of Shares Subject to
Years After Grant Date Option as to Which Option May be Exercised
---------------------- ------------------------------------------
None None
One 33%
Two 66%
Three 100%
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3. Method of Exercise.
------------------
The Option shall be exercised by delivery of the notice in the form
attached hereto as Exhibit A (the "Notice") to the Secretary of the Company
together with a check in payment of the Option price for the number of Option
Shares specified and including applicable federal and state withholding taxes.
Optionee may pay for the Option Shares through delivery of SkyMall, Inc. Common
Stock with a fair market value equal to the Exercise Price (as defined below)
including applicable federal and state withholding taxes. Options may be
exercised only with respect to whole shares.
4. Exercise Price.
--------------
The price to be paid for the Option Shares (the "Exercise Price") shall be
$______ share, which was not less than the fair market value of the Option
Shares as determined by the Board or a committee of the Board (the "Committee")
on the Grant Date, or, in the case of an option granted to an employee who, on
the Grant Date, owns ten percent (10%) or more of the Common Stock, as such
amount is calculated under Section 422A(b)(6) of the Internal Revenue Code, as
amended ("Code"), not less than one hundred and ten percent (110%) of the fair
market value of the Option Stock.
5. Termination of Option.
---------------------
Except as provided in Section 9.2, the Option, to the extent not exercised,
shall terminate upon the first to occur of:
(a) termination of employment of the Optionee; provided, however, that the
Option, to the extent exercisable on the date of termination of employment, may
be exercised for a period of ninety days after termination of employment if the
termination is for any reason other than termination of employment by Company
for cause; or
(b) ten years from the date of this Agreement.
As used herein, "cause" shall mean that in the course of the Optionee's
employment, (i) Optionee engages in willful misconduct, dishonesty or reckless
disregard of Optionee's responsibilities, or (ii) Optionee is convicted of a
felony.
6. Reduction in Optioned Shares.
----------------------------
The number of Option Shares to which an Optionee is entitled shall be
reduced by the number of Option Shares purchased by Optionee.
7. Non-Transferability of Option.
-----------------------------
This Option is not transferable by the Optionee, but in the event of
Optionee's death may be exercised for a period of ninety days from the date of
the Optionee's death by Optionee's personal representative to the extent it
would have been exercisable by Optionee.
8. Rights Prior to Exercise.
------------------------
The Optionee shall have no rights as a shareholder with respect to any
Option Shares until the date of issuance of a share certificate to the Optionee
for such Option Shares.
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9. Adjustments.
-----------
9.1. In the event of any stock split, reverse stock split, stock divided,
combination or reclassification of shares of Common Stock or any other increase
or decrease in the number of issued shares of Common Stock effected without
receipt of consideration by the Company, the number and kind of Option Shares
(including any Option outstanding after termination of employment or death) and
the Exercise Price per share shall be proportionately and appropriately adjusted
without any change in the aggregate Exercise Price to be paid therefor upon
exercise of the Option.
9.2. Upon the sale of all or substantially all of the assets of the
Company, or a merger pursuant to which (i) the Company is not the surviving
corporation (other than a merger that is only a change in form), or (ii)
substantially all of the officers of the Company immediately prior to the merger
do not continue to be officers immediately after the merger, all outstanding
Options shall be immediately exercisable without regard to the vesting
provisions of Section 2. Each Optionee shall be given written notice of a period
of no less than thirty days during which each Optionee may exercise the
outstanding Option. If an Option is not exercised within such period, the Option
shall terminate.
10. Notices.
-------
Any notice to be given under the terms of the Agreement ("Notice") shall be
addressed to the Company in care of its General Counsel at 1520 East Pima
Street, Phoenix, Arizona 85034, or at its then current corporate headquarters.
Notice to be given to the Optionee shall be addressed to him or her or at his or
her then current residential address as appearing on the payroll records.
Notice shall be deemed duly given when enclosed in a properly sealed
envelope and deposited by certified mail, return receipt requested, in a post
office or branch post office regularly maintained by the United States
Government.
11. Notification Of Disposition Of Shares.
-------------------------------------
The Optionee hereby acknowledges that a disposition of shares of Common
Stock acquired upon the exercise of the Option within two (2) years from the
Grant Date or within one (1) year after the transfer of such shares of Common
Stock to him or her would result in detrimental income tax consequences to the
Optionee. The Optionee hereby agrees to promptly notify the Company of any
disposition of shares of Common Stock within either of the above time
limitations.
12. Modification Of Agreement.
-------------------------
The Board or the Committee may at any time and from time to time direct
that the Agreement be modified in such respects deemed advisable in order that
the Option shall constitute an incentive stock option pursuant to Section 422A
of the Code.
13. Transferability of Option.
-------------------------
The Option shall not be transferable by the Optionee otherwise than by the
will or the laws of descent and distribution, or to the extent permitted by Code
422 and may be exercised during the life of the Optionee only by the Optionee.
14. Not a Contract of Employment.
----------------------------
Nothing contained in the Plan or in any Option Agreement executed pursuant
to the Plan shall be deemed to confer upon any individual to whom an Option may
be granted hereunder any right to remain in the employ or service of the Company
or a parent or subsidiary corporation of the Company.
15. Provisions Of Plan.
------------------
The provisions of the Plan are expressly incorporated herein and made an
integral part hereof as though set forth herein. Capitalized terms not otherwise
defined herein shall have the same meaning as ascribed to them in the Plan.
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16. Execution.
---------
The parties hereto have executed this Agreement effective as of the date
first above written.
SkyMall, Inc., a Nevada corporation
By:
-----------------------------------
Robert M. Worsley, President
OPTIONEE:
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4
<PAGE> 5
EXHIBIT A
NOTICE OF EXERCISE
OF
STOCK OPTION
I hereby exercise the Option granted to me by SkyMall, Inc. ("Company")
under the 1994 Stock Option Plan, as amended (the "Plan") and notify you of my
desire to purchase ______ shares of Common Stock of the Company.
Enclosed is:
(a) my check in the amount of $____________ in full payment for such shares
and the federal and state withholding taxes due as a result of such purchase; or
(b) a certificate for, or my binding and irrevocable request that you
withhold from the shares to be delivered pursuant to this Notice, shares of
Common Stock of the Company having a fair market value on the date of exercise
equal to the full Exercise Price for the shares purchased under this Notice and
the federal and state withholding taxes due as a result of such purchase.
OPTIONEE:
DATE:
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5
EXHIBIT 5
SQUIRE, SANDERS & DEMPSEY L.L.P.
Counsellors at Law
Two Renaissance Square
40 North Central Avenue, Suite 2700
Phoenix, Arizona 85004
Telephone: (602) 528-4000
Telecopier (602) 253-8129
April 23, 1998
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: SkyMall, Inc. - 1994 Stock Option Plan
Form S-8 Registration Statement
Ladies and Gentlemen:
We have acted as counsel to SkyMall, Inc., a Nevada corporation (the
"Company"), in connection with its Registration Statement on Form S-8 (the
"Registration Statement") filed under the Securities Act of 1933 relating to the
registration of 1,100,000 shares of its Common Stock, $.001 par value (the
"Shares"), issuable pursuant to the Company's 1994 Stock Option Plan, as amended
(the "Plan").
In that connection, we have examined such documents, corporate records and
other instruments as we have deemed necessary or appropriate for purposes of
this opinion, including the Articles of Incorporation and the Bylaws of the
Company.
Based upon the foregoing, we are of the opinion that:
1. The Company has been duly organized and is validly existing as a
corporation under the laws of the State of Nevada.
2. The Shares, when issued and sold in accordance with the terms of the
Plan, will be validly issued, fully paid and nonassessable.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement.
Squire, Sanders & Dempsey, L.L.P.
EXHIBIT 23
[LETTERHEAD OF ARTHUR ANDERSEN LLP]
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated February 17, 1998
included in SkyMall, Inc.'s Form 10-K for the year ended December 31, 1997 and
to all references to our Firm included in this registration statement.
ARTHUR ANDERSEN LLP
Phoenix, Arizona,
April 23, 1998.
