As filed with the Securities and Exchange Commission on February 1, 1999
Registration No.
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
SKYMALL, INC.
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(Exact name of registrant as specified in its charter)
Nevada 86-0651100
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1520 East Pima Street, Phoenix, Arizona 85034
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(Address of Principal Executive Offices) (Zip Code)
NON-EMPLOYEE DIRECTORS STOCK OPTION PLAN
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(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
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(Name and address of agent for service)
(602) 254-9777
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(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
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CALCULATION OF REGISTRATION FEE
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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
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Common Stock 100,000 $18.28125 $1,828,125 $508
$.001 par value
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* 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, as amended, on the basis of the average of the high and low
trading prices for shares of Common Stock of SkyMall, Inc., as reported by
the Nasdaq National Market on January 29, 1999.
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This Registration Statement shall become effective automatically upon the date
of filing in accordance with Section 8(a) of the Securities Act of 1933, as
amended.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Document(s) containing the information specified by Part I of Form S-8 will
be sent or given to participants in the Non-Employee Directors Stock Option Plan
of SkyMall, Inc. (hereinafter referred to as the "Company" and sometimes
referred to as the "Registrant") as specified in Rule 428(b)(1) under the
Securities Act of 1933, as amended (hereinafter referred to as the "Securities
Act"), and are not being filed with the Securities and Exchange Commission
(hereinafter referred to as the "Commission"), either as part of this
Registration Statement or as Prospectuses or Prospectus Supplements pursuant to
Rule 424 under the Securities Act, pursuant to the instructions to Part I. Such
documents and the documents incorporated by reference pursuant to Item 3 of Part
II of this Registration Statement, taken together, constitute a Prospectus that
meets the requirements of Section 10(a) of the Securities Act.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The Commission allows us to "incorporate by reference" the information we
file with them, which means that we can disclose important information simply by
referring you to those documents. The information incorporated by reference is
considered to be part of this Registration Statement, and information that we
file with the Commission after the date of this Registration Statement will
automatically update and supersede this information. The following documents
have been filed by the Company with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (hereinafter referred to as the "Exchange
Act"), and are incorporated by reference into this Form S-8 Registration
Statement:
(a) The Company's Annual Report of Form 10-K for the fiscal year ended
December 31, 1997;
(b) The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1998, June 30, 1998 and September 30, 1998;
(c) The Company's Current Report on Form 8-K dated December 7, 1998;
(d) All other reports filed with the Commission pursuant to Section 13(a)
or 15(d) of the Exchange Act since December 31, 1997;
(e) The description of the Company's Common Stock as set forth under the
caption "Description of Capital Stock -- Common Stock" contained in
the Prospectus included in Amendment No. 4 to the Company's Form S-1
Registration Statement (Registration No. 333-14539) filed with the
Commission on December 9, 1996, which was incorporated by reference in
Item 1 of the Company's Registration Statement on Form 8-A pursuant to
Section 12(g) of the Exchange Act, filed with the Commission on
October 31, 1996, and all amendments or reports filed for the purpose
of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act, 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 the filing such
documents.
Item 4. DESCRIPTION OF SECURITIES. Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not applicable.
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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.
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.
In addition to the provisions described in the preceding paragraphs, 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 Exchange
Act. 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 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;
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(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;
(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
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 Exchange Act that are
incorporated by reference in the Registration Statement.
(2) That, for the purposes 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 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.
(c) 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
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 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 of 1933, as amended, 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 January 29,
1999.
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 ROBERT J. DIGAN, 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 Act of 1933, as amended,
this Registration Statement 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, January 29, 1999
- --------------------------- President and Chief Executive
Robert M. Worsley Officer (Principal Executive
Officer)
/s/ Robert J. Digan Chief Financial Officer January 29, 1999
- --------------------------- (Principal Financial and
Robert J. Digan Accounting Officer)
/s/ Lyle R. Knight Director January 29, 1999
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Lyle R. Knight
/s/ Thomas J. Litle Director January 29, 1999
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Thomas J. Litle
/s/ Randy Petersen Director January 29, 1999
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Randy Petersen
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EXHIBIT INDEX
EXHIBIT PAGE OR
NUMBER DESCRIPTION METHOD OF FILING
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4 Non-Employee Directors Stock Option Plan *
5 Opinion of Squire, Sanders & Dempsey *
L.L.P., counsel for the Registrant
(including consent)
23.1 Consent of Independent Public Accountants *
23.2 Consent of Counsel See Exhibit 5
24 Powers of Attorney See Signature Page
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* Filed herewith.
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EXHIBIT 4
SKYMALL, INC.
NON-EMPLOYEE DIRECTORS STOCK OPTION PLAN
1. PURPOSES OF THE PLAN. The purposes of this Plan are to enable the
Company to attract and retain the best available individuals to serve as
non-employee members of the Board, to reward such directors for their
contributions to the Company, and to maximize the identity of interest between
such directors and the Company's stockholders generally.
2. DEFINITIONS. As used herein, the following definitions shall apply:
(a) "Board" shall mean the Board of Directors of the Company.
(b) "Company" shall mean SkyMall, Inc., a Nevada corporation.
(c) "Exercise Price" shall mean, with respect to each Share
granted, the Fair Market Value on the date of grant.
(d) "Fair Market Value" shall mean, with respect to the date a
given Option is granted or exercised, the value determined by the Board
in good faith using a generally accepted valuation method; provided,
however, that where there is a public market for the Stock, the Fair
Market Value per Share shall be the mean of the final bid and asked
prices of the Stock on the date of grant or exercise, as reported in
The Wall Street Journal (or, if not so reported, as otherwise reported
by the Nasdaq Stock Market's National Market or Nasdaq) or, in the
event the Stock is listed on a stock exchange, the Fair Market Value
per Share shall be the closing price of the Stock on such exchange on
the date of grant or exercise of the Option, as reported in The Wall
Street Journal.
(e) "Option" shall mean a right to purchase Stock, granted
pursuant to the Plan.
(f) "Optioned Stock" shall mean the Stock subject to an
Option.
(g) "Optionee" shall mean a non-employee director of the
Company who has been granted an Option.
(h) "Plan" shall mean this SkyMall, Inc. Non-Employee Director
Stock Option Plan.
(i) "Share" shall mean a share of the Stock.
(j) "Stock" shall mean the common stock of the Company
described in the Company's Articles of Incorporation, as amended or
restated from time to time.
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(k) "Trading Day" shall mean a day on which the Fair Market
Value of the Stock can be determined.
3. STOCK SUBJECT TO THE PLAN.
(a) Subject to increases and adjustments pursuant to Section 9
hereof, the initial number of Shares reserved and available for
distribution under the Plan shall be 100,000.
(b) If an Option should terminate, or be canceled, rescinded
or surrendered, the Optioned Stock subject to such Option shall not be
available for future grants under the Plan.
4. OPTION GRANTS.
(a) An Option to purchase 5,000 Shares shall be granted to
each non-employee director of the Board on appointment to the Board.
(b) In addition, an Option to purchase 3,000 Shares shall be
granted annually to each non-employee director of the Board on the date
determined pursuant to Section 10 hereof; provided, however, that such
Option shall not be granted to any non-employee director of the Company
who during the fiscal year immediately preceding such grant date (or
the period that he served as a director of the Company, if less than
the full fiscal year) attended fewer than 75 percent of the aggregate
of (i) the total number of the regularly scheduled and special meetings
of the Board and (ii) the total number of meetings held by all
committees of the Board on which he served; provided, further, that no
such Options shall be granted to any of the non-employee directors of
the Company in the event that, on such grant date, the number of Shares
remaining available for distribution under the Plan is less than the
product of the number of then current non-employee directors of the
Company multiplied by 3,000.
5. BOARD APPROVAL AND EFFECTIVE DATES. This Plan shall become effective
as of October 15, 1996, the date as of which the Board and the stockholders of
the Company adopted the Plan. The Plan and all outstanding Options shall remain
in effect until such Options shall have been exercised, shall have expired or
shall otherwise be terminated.
6. TERM; EXERCISE; RIGHTS AS A STOCKHOLDER.
(a) The term of each Option shall be ten years from the date
of grant thereof. An Option shall be exercisable upon grant and may be
exercised in whole or in part at any time or times during its term;
provided, however, that an Option may not be exercised for a fraction
of a Share.
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(b) An Option shall be deemed to be exercised upon receipt by
the Company from the Optionee of written notice of such exercise. Such
notice shall be accompanied by full payment for the Shares subject to
such exercise.
(c) No person shall have any right or privilege as a
stockholder of the Company, whether to vote or to receive dividends or
otherwise, by reason of the grant of an Option, but shall obtain such
right only when Shares are actually issued to such person upon exercise
thereof.
7. PAYMENT. The Exercise Price shall be paid:
(a) In United States dollars in cash or by check payable to
the order of the Company; or
(b) At the election of the Optionee by delivery of Shares with
an aggregate Fair Market Value equal to the Exercise Price; or
(c) By any combination of (a) and (b) above.
The Board shall determine acceptable methods for tendering Stock as
payment upon exercise of an Option and may impose such limitations and
prohibitions on the use of Stock to exercise an Option as it deems appropriate.
8. TRANSFERABILITY OF OPTIONS. The Option may not be sold, pledged,
assigned, hypothecated, transferred, or disposed of in any manner other than by
will or by the laws of descent and distribution and may be exercised, during the
lifetime of the Optionee, only by the Optionee or by his guardian or legal
representative.
In the event of the Optionee's death, his Option shall be exercisable,
prior to the expiration of the Option, by the person or entity to whom his
accrued and vested rights pass by will or by the laws of descent and
distribution.
9. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION OR MERGER. If the
outstanding Stock of the Company shall at any time be changed or exchanged by
declaration of a stock dividend, split-up, combination of shares,
recapitalization, merger, consolidation, or other corporate reorganization in
which the Company is the surviving corporation, the number and kind of Shares
subject to the Plan or subject to any Options theretofore granted, and the
Options' prices, shall be appropriately and equitably adjusted.
In the event of a liquidation or dissolution of the Company, sale of
all or substantially all of its assets, or a merger, consolidation or other
corporate reorganization in which the Company is not the surviving corporation,
or any merger or other reorganization in which the Company is the surviving
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corporation but the holders of its Stock receive securities of another
corporation, any outstanding Options hereunder shall be appropriately and
equitably adjusted.
10. TIME OF GRANTING OPTIONS. The Option grant date shall be the third
Trading Day after the Company publicly announces its year-end financial results
for the immediately preceding fiscal year.
11. AMENDMENT AND TERMINATION OF THE PLAN. The Board may from time to
time amend the Plan in whole or part in such respects as the Board may deem
advisable or may terminate the Plan, provided, however, that amendments to the
Plan relating to the amount, price, or timing of the option grants shall not be
made more than once in any six month period. Any amendment or termination of the
Plan shall not affect Options already granted and such Options shall remain in
full force and effect as if the Plan had not been amended or terminated. Any
amendment to the Plan shall be submitted as a proposal for approval of the
Company's stockholders if such approval of the amendment is necessary for the
Plan to comply or to continue to comply with the applicable exemption, if any,
under Section 16(b) of the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder.
12. CONDITIONS UPON ISSUANCE OF SHARES. The Plan, the grant, the
exercise of Options and the obligations of the Company shall be subject to all
applicable federal and state laws, rules and regulations, and to such approvals
by any regulatory or governmental agency as may be required. The Company shall
not be required to issue or deliver any certificate or certificates for Shares
of Stock prior to (i) the admission of such Shares to listing on any stock
exchange on which the Stock may then be listed, and (ii) the completion of any
registration or other qualification of such Shares under any state or federal
law (including, without limitation, the Securities Act of 1933, as amended), or
rulings or regulations of any government body which the Company shall, in its
sole discretion, determine to be necessary or advisable.
As a condition to the exercise of an Option, the Company may require
the Optionee 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 necessary or advisable.
13. MISCELLANEOUS PROVISIONS.
(a) PLAN EXPENSE. Any expenses of administering this Plan
shall be borne by the Company.
(b) TAXES. The Company shall be entitled if necessary or
desirable to pay or withhold the amount of any tax attributable to the
delivery of Stock under the Plan after giving the person entitled to
receive such Stock notice as far in advance as practical, and the
Company may defer making delivery of such Stock if any such tax may be
pending unless and until indemnified to its satisfaction.
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(c) CONSTRUCTION OF PLAN. The validity, construction,
interpretation, administration and effect of the Plan and of its rules
and regulations, and rights relating to the Plan, shall be determined
by the Board in accordance with the laws of the State of Nevada, and
such determinations shall be final and conclusive.
(d) GENDER. For purposes of this Plan, words used in the
masculine gender shall include the feminine and neuter, and the
singular shall include the plural and vice versa, as appropriate.
As approved by the Board of Directors as of October 15, 1996.
/s/ Robert M. Worsley
--------------------------------
ROBERT M. WORSLEY
President
ATTEST:
/s/ David A. Wirthlin
- ------------------------------
DAVID A. WIRTHLIN
Secretary
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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
January 28, 1999
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: SkyMall, Inc. - Non-Employee Directors 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 100,000 shares of its Common Stock, $.001 par value (the
"Shares"), issuable pursuant to the Company's Non-Employee Directors Stock
Option Plan (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.
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Securities and Exchange Commission January 28, 1999
Page 2
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement.
Respectfully submitted,
SQUIRE, SANDERS & DEMPSEY, L.L.P.
/s/ Squire, Sanders & Dempsey, L.L.P.
EXHIBIT 23.1
[LETTERHEAD OF ARTHUR ANDERSEN LLP]
As independent public accountants, we hereby consent to the incorporation by
reference in the registration statement on Form S-8 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
/s/ Arthur Andersen LLP
Phoenix, Arizona,
January 29, 1999.
