As filed with the Securities and Exchange Commission on December 15, 1999
Registration No. 333-
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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 DIRECTOR STOCK OPTION PLAN
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(Full title of the plan)
Christine A. Aguilera, Esq.
Executive 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 275,000 $ 8.00 $2,200,000 $581
$.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 December 10, 1999.
This Registration Statement also relates to the Form S-8 Registration Statement
No. 333-71543, the contents of which are incorporated herein by reference
pursuant to General Instruction E to Form S-8. Under such Registration Statement
the Registrant registered 100,000 shares of common stock for issuance under the
SkyMall, Inc. Non-Employee Director Stock Option Plan.
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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 to you by
referring to those documents. The information incorporated by reference is
considered to be part of this Registration Statement, and information that we
file later with the Commission 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:
o Our Annual Report on Form 10-K for the fiscal year ended December 31,
1998;
o Our Quarterly Reports on Form 10-Q for the quarterly periods ended
March 31, 1999, June 30, 1999 and September 30, 1999;
o Our Current Report on Form 8-K filed April 13, 1999;
o Our Current Report on Form 8-K filed September 23, 1999;
o Our Current Report on Form 8-K filed October 5, 1999;
o Our Definitive Proxy Statement for our 1999 Annual Meeting of
Shareholders dated May 6, 1999; and
o The description of our Common stock included in our Registration
Statement on Form 8-A, filed October 31, 1996, including all
amendments or reports filed for the purpose of updating the
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 9.
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 December 14,
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, STEPHEN R. PETERSON and
CHRISTINE A. AGUILERA, 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
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/s/ Robert M. Worsley Chairman of the Board, December 14, 1999
- ------------------------ President and Chief Executive
Robert M. Worsley Officer (Principal Executive
Officer)
/s/ Stephen R. Peterson Chief Financial Officer December 14, 1999
- ------------------------ (Principal Financial and
Stephen R. Peterson Accounting Officer)
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Signature Title Date
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/s/ Lyle R. Knight Director December 14, 1999
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Lyle R. Knight
/s/ Thomas J. Litle Director December 14, 1999
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Thomas J. Litle
/s/ Randy Petersen Director December 14, 1999
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Randy Petersen
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EXHIBIT INDEX
Exhibit
Number Description Method of Filing
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4 Non-Employee Directors Stock Option Plan (2)
5 Opinion of Squire, Sanders & Dempsey (1)
L.L.P., counsel for the Registrant
(including consent)
23.1 Consent of Arthur Andersen LLP (1)
23.2 Consent of Counsel See Exhibit 5
24 Powers of Attorney See Signature Page
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(1) Filed herewith.
(2) Incorporated by reference to Form S-8 Registration Statement No. 333-71543.
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EXHIBIT 5
Squire, Sanders & Dempsey L.L.P.
Two Renaissance Square
40 North Central Avenue, Suite 2700
Phoenix, Arizona 85004
Phone: (602) 528-4000
Facsimile: (602) 253-8129
December 14, 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 275,000 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 December 14, 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.
EXHIBIT 23.1
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 March 1, 1999
included in SkyMall, Inc.'s Form 10-K for the year ended December 31, 1998 and
to all references to our firm included in this registration statement.
ARTHUR ANDERSEN LLP
Phoenix, Arizona,
December 9, 1999.
