<PAGE> 1
As filed with the Securities and Exchange Commission on September 24, 1999
Registration No. 333- _________
SECURITIES AND EXCHANGE COMMISSION
Form S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
MRV COMMUNICATIONS, INC.
(Exact Name of Registrant as Specified in Its Charter)
<TABLE>
<CAPTION>
Delaware 3577/3674 06-1340090
<S> <C> <C>
(State or Other Jurisdiction of (Primary Standard Industrial (I.R.S. Employer Incorporation or
Organization) Classification Code Number) Identification No.)
</TABLE>
8943 Fullbright Avenue
Chatsworth, California 91311
(818) 773-9044
(818) 773-0906 (Fax)
(Address of Principal Executive Offices)
1997 INCENTIVE AND NONSTATUTORY STOCK OPTION PLAN
(Full Title of the Plan)
NOAM LOTAN
President and Chief Executive Officer
8943 Fullbright Avenue
Chatsworth, California 91311
(818) 773-9044
(818) 773-0906 (Fax)
(Name, Address, and Telephone Number, Including Area Code, of Agent
for Service)
Copies to:
Mark A. Klein, Esq.
Freshman, Marantz, Orlanski,
Cooper & Klein
9100 Wilshire Boulevard, 8-East
Beverly Hills, California 90212
(310) 273-1870
Telecopy: (310) 274-8357
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, check the following box. [x]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------------------------
Proposed Proposed
Maximum Maximum
Offering Aggregate Amount of
Amount to be Price per Offering Registration
Title of Securities to be Registered Registered Share(1) Price(1) Fee
<S> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------------------------
Common Stock, $0.0034 par value per share 1,000,000 $ 5.25 $5,250,000 $ 1,460
- ----------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of computing the amount of the
registration fee pursuant to Rule 457(h)(1).
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing information specified in this Part I are
being separately provided to the Registrant's employees, officers, directors and
consultants as specified by Rule 428(b)(1).
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The documents listed in paragraphs (a) through (c) below are hereby
incorporated by reference in this Registration Statement. All documents
subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Securities Exchange Act of 1934 (the "Exchange Act"), prior to the
filing of a post-effective amendment which indicates that all securities offered
herein 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 hereto from the date of filing of such documents.
(a) The Registrant's Form 10-K for the year ended December 31, 1998
(the "Form 10-K").
(b) All reports filed by Registrant pursuant to Sections 13(a) or
15(d) of the Exchange Act since the end of the fiscal year covered by the
financial statements included in the above-mentioned Form 10-K.
(c) The description of the Common Stock contained in the Company's
Registration Statement on Form 8-A filed with the Commission on June 8, 1992, as
amended by its Form 8-A/A filed with the Commission on February 24, 1994,
including any amendment or report filed for the purpose of updating such
description.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law allows for the
indemnification of officers, directors, and other corporate agents in terms
sufficiently broad to indemnify such persons under certain circumstances for
liabilities (including reimbursement for expenses incurred) arising under the
Securities Act of 1933, as amended (the "Act"). Article 8 of the Registrant's
Certificate of Incorporation and Article IX of the Registrant's Bylaws provide
for indemnification of the Registrant's directors, officers, employees, and
other agents to the extent and under the circumstances permitted by the Delaware
General Corporation Law. The Registrant has also entered into agreements with
its directors and executive officers that will require the Registrant, among
other things, to indemnify them against certain liabilities that may arise by
reason of their status or service as directors to the fullest extent not
prohibited by law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
II-2
<PAGE> 4
ITEM 8. EXHIBITS.
Exhibit
Numbers
-------
4.1 1997 Incentive and Nonstatutory Stock Option Plan, as
amended (incorporated by reference to Exhibit B to the
Company's Definitive Proxy Statement filed on September 30,
1998).
4.2 Form of Stock Option Agreement under the 1997 Incentive and
Nonstatutory Stock Option Plan.
5 Opinion of Freshman, Marantz, Orlanski, Cooper & Klein.
24.1 Consent of Freshman, Marantz, Orlanski, Cooper & Klein
(included in Exhibit 5).
24.2 Consent of Independent Public Accountants.
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 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.
(2) That, for the purpose 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.
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 Exchange 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.
Insofar as indemnification by the Registrant for liabilities arising
under the Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the provisions referenced in
Item 6 of this Registration Statement 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 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 hereunder, 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.
II-3
<PAGE> 5
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 Chatsworth, State of California, on this 24th day of
September, 1999.
MRV COMMUNICATIONS, INC.
By: /s/ Noam Lotan
--------------------------------
Noam Lotan, President and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Noam Lotan, Shlomo Margalit and Edmund
Glazer, and each of them, as his true and lawful attorneys-in-fact and agents,
with full power of substitution for him in any and all capacities, to sign any
and all amendments (including post-effective 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 attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in connection therewith, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Noam Lotan President and Chief Executive Officer and a Director
------------------------------------ (Principal Executive Officer) September 24, 1999
Noam Lotan
/s/Shlomo Margalit Chairman of the Board, Chief Technical Officer,
------------------------------------ Secretary, and a Director September 24, 1999
Shlomo Margalit
/s/Edmund Glazer Vice President of Finance and Administration, Chief
------------------------------------ Financial Officer(Principal Financial and Accounting September 24, 1999
Edmund Glazer Officer
/s/ Igal Shidlovsky
------------------------------------ Director September 24, 1999
Igal Shidlovsky
/s/ Guenter Jaensch Director September 24, 1999
------------------------------------
Guenter Jaensch
Director September __, 1999
------------------------------------
Daniel Tsumi
Director September __, 1999
------------------------------------
Baruch Fischer
</TABLE>
II-4
<PAGE> 1
Exhibit 4.2
MRV COMMUNICATIONS, INC.
STOCK OPTION AGREEMENT
This AGREEMENT is made effective as of the day of _________, 19__,
(the "Option Grant Date"), by and between MRV Communications, Inc. (the
"Company") and ______________________ (the "Optionee").
RECITALS
WHEREAS, the Board of Directors of the Company has established the
1997 Incentive Stock Option Plan and the 1997 Nonstatutory Stock Option Plan
(either such Plan the "Plan" unless otherwise specified) effective as of
November 11, 1997, and
WHEREAS, pursuant to the provisions of said Plan, the Board of
Directors of the Company, by action duly taken on ____________, 19__, granted to
the Optionee an option or options (the "Option(s)") to purchase shares of the
Common Stock of the Company on the terms and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants set forth herein and other good and valuable consideration, the
parties hereto agree as follows:
1. The Option(s). The Optionee may, at his option, purchase all or
any part of an aggregate of ______________ shares of Common Stock (the "Optioned
Shares"), at the price of $_____________ per share (the "Option Price"), on the
terms and conditions set forth herein.
2. Plan Type; Exercise Dates and Exercise. Options intended to
qualify as Incentive Stock Options under Plan A are designated by an "A" under
the category "Plan." Options intended as separate nonstatutory options under
Plan B are designated by a "B" under the category "Plan." The Option(s) shall be
exercisable as to the specified number of Optioned Shares on and after the
"First" dates and on or before the "Last" dates set forth below:
<PAGE> 2
<TABLE>
<CAPTION>
Exercise Dates
------------------------------
Plan Number of Shares First Last
---- ---------------- ------------ ------------
<S> <C> <C> <C>
-------- ------------------------- ------------ ------------
-------- ------------------------- ------------ ------------
-------- ------------------------- ------------ ------------
-------- ------------------------- ------------ ------------
-------- ------------------------- ------------ ------------
</TABLE>
Optionee acknowledges that he understands he has no right whatsoever to exercise
the Option(s) granted hereunder with respect to any Optioned Shares covered by
any installment until such installment accrues as provided above and that all
unaccrued installments shall cease to accrue on the date of termination of
Optionee's employment, directorship, consulting or other arrangement with the
Company. Optionee further understands that the Option(s) granted hereunder shall
expire and become unexercisable as provided in Section 3(c) below.
This Option shall be deemed exercised as to the shares to be
purchased when written notice of such exercise has been given to the Company at
its principal business office by the Optionee with respect to the Common Stock
to be purchased. Such notice shall be accompanied by (i) full payment in cash or
cash equivalents, (ii) with shares of Common Stock pursuant to Section 14 of the
Plan, or (iii) by any combination of (i) and (ii) as may be determined by the
Board (or Committee if so authorized) with respect to the shares to be
purchased.
3. Governing Plan. This Agreement hereby incorporates by reference
the Plan and all of the terms and conditions of the Plan as heretofore amended
and as the same may be amended from time to time hereafter in accordance with
the terms thereof, but no such subsequent amendment shall adversely affect the
Optionee's rights under this Agreement and the Plan except as may be required by
applicable law. The Optionee expressly acknowledges and agrees that the
provisions of this Agreement are subject to the Plan; the terms of this
Agreement shall in no manner limit or modify the controlling provisions of the
Plan, and in case of any conflict between the provisions of the Plan and this
Agreement, the provisions of the Plan shall be controlling and binding upon the
parties hereto. The Optionee also hereby expressly acknowledges, represents and
agrees as follows:
(a) Acknowledges receipt of a copy of the Plan, a copy of which
is attached hereto and by reference incorporated herein, and represents that he
is familiar with the terms and provisions of said Plan, and hereby accepts this
Agreement subject to all the terms and provisions of said Plan.
2
<PAGE> 3
(b) Agrees to accept as binding, conclusive and final all
decisions or interpretations of the Board of Directors (or the Committee, if so
authorized) upon any questions arising under the Plan.
(c) Acknowledges that he is familiar with Sections of the Plan
regarding the exercise of the Option(s) and represents that he understands that
said Option(s) must be exercised on or before the earliest of the following
dates, whichever is applicable: (i) the "Last" exercise date noted above in
Section 2; (ii) the day prior to the fifth anniversary of the Option(s) Grant
Date with respect to Options granted under Plan A and the day prior to the tenth
anniversary of the Option(s) Grant Date with respect to Options granted under
Plan B, in each as provided in Subsection 7(c) of the Plan; (iii) the effective
date of a sale or other disposition of all or substantially all of the stock or
assets of the Company, as provided in Subsection 8(a) of the Plan; (iv) the date
which is 30 days following the Optionee's termination of employment,
directorship or consulting or other arrangement (unless extended) for any reason
other than death or disability as provided under Section 10 of the Plan; or (v)
the date that is one year following the Optionee's termination of employment,
directorship or consulting or other arrangement by reason of his death, or the
date that is one year following his termination of employment, directorship or
consulting or other arrangement by reason of disability, whichever is
applicable, as provided in Subsection 10(b) of the Plan.
(d) Acknowledges, understands and agrees that the existence of
the Plan and the execution of this Agreement are not sufficient by themselves to
cause any exercise of any Option(s) granted under Plan A to qualify for
favorable tax treatment through the application of Section 422(A) of the
Internal Revenue Code; that Optionee must, in order to so qualify, individually
meet by his own action all applicable requirements of Section 422A, including
without limitation the following holding period and employment requirements:
(1) holding period requirement: no disposition of an
Optioned Share may be made by Optionee within two (2) years from
the date of the granting of the Option(s) nor within one (1) year
after the transfer of such Optioned Share to him, and
(2) employment requirement: at all times during the
period beginning on the date of the granting of the Option(s) and
ending on the day three (3) months before the date of exercise,
the Optionee must have been an employee of the Company, its
parent, or a subsidiary of the Company, or a corporation or a
parent or subsidiary of such corporation issuing or assuming the
Option(s) in a transaction to which Section 425(a) of the
3
<PAGE> 4
Internal Revenue Code applies, except where the termination of
employment is by means of the employee's disability, in which
case said 3 month period may be extended to 1 year, as provided
under Internal Revenue Code Section 422A.
4. Representations and Warranties. As a condition to the exercise
of any portion of an Option, the Company may require the person exercising such
Option to make any representation and/or warranty to the Company as may, in the
judgment of counsel to the Company, be required under any applicable law or
regulation, including but not limited to a representation and warranty that the
shares are being acquired 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 under the Securities Act of 1933 or any other
applicable law, regulation or rule of any governmental agency. Optionee hereby
represents to the Company that each of the Option evidenced hereby and the
shares purchasable upon exercise thereof is being acquired only for investment
and without any present intention to sell or distribute such securities.
5. Options Not Transferable. The Option(s) may be exercised
during the lifetime of the Optionee only by the Optionee. The Optionee's rights
and interests under this Agreement and in and to the Option(s) may not be sold,
pledged, hypothecated, assigned, encumbered, gifted or otherwise transferred in
any manner, either voluntarily or involuntarily by operation of law, except by
will or the laws of descent or distribution.
6. No Enlargement of Employee Rights. Nothing in this Agreement
shall be construed to confer upon the Optionee (if an employee) any right to
continued employment with the Company (or an Affiliated Company), or to restrict
in any way the right of the Company (or an Affiliated Company if he is an
employee thereof) to terminate his employment. Optionee acknowledges that in the
absence of an express written employment agreement to the contrary, Optionee's
employment with the Company may be terminated by the Company at any time, with
or without cause.
7. Withholding of Taxes. Optionee authorizes the Company to
withhold, in accordance with any applicable law, from any compensation payable
to him any taxes required to be withheld by federal, state or local law as a
result of the grant of the Option(s) or the issuance of stock pursuant to the
exercise of such Option(s).
8. Laws Applicable to Construction. This Agreement shall be
construed and enforced in accordance with the laws of the State of California.
9. Agreement Binding on Successors. The terms of this
4
<PAGE> 5
Agreement shall be binding upon the executors, administrators, heirs,
successors, transferees and assignees of the Optionee.
10. Costs of Litigation. In any action at law or in equity to
enforce any of the provisions or rights under this Agreement or the Plan, the
unsuccessful party to such litigation, as determined by the court in a final
judgment or decree, shall pay the successful party or parties all costs,
expenses and reasonable attorneys' fees incurred by the successful party or
parties (including without limitation costs, expenses end fees on any appeals),
and if the successful party recovers judgment ln any such action or proceeding
such costs, expenses and attorneys' fees shall be included as part of the
judgment.
11. Necessary Acts. The Optionee agrees to perform all acts and
execute and deliver any documents that may be reasonably necessary to carry out
the provisions of this Agreement, including but not limited to all acts and
documents related to compliance with federal and/or state securities laws.
12. Counterparts. For convenience this Agreement may be executed
in any number of identical counterparts, each of which shall be deemed a
complete original in itself and may be introduced in evidence or used for any
other purpose without the production of any other counterparts.
13. Invalid Provisions. In the event that any provision of this
Agreement is found to be invalid or otherwise unenforceable under any applicable
law, such invalidity or unenforceability shall not be construed as rendering any
other provisions contained herein invalid or unenforceable, and all such other
provisions shall be given full force and effect to the same extent as though the
invalid and unenforceable provision was not contained herein.
14. Limitation on Value of Optioned Shares. Optionee acknowledged
that the Plan provides that the aggregate fair market value (determined as of
the date hereof) of the shares of Common Stock to which Options granted under
Plan A are exercisable for the first time by Optionee during any calendar year
under all incentive stock option plans of the Company and its Affiliated
Companies shall not exceed $100,000. It is understood and agreed that should it
be determined that an Option if granted pursuant to Plan A hereunder would
exceed such maximum, such Option shall be not be considered granted under Plan A
to the extent, but only to the extent of such excess. This limitation shall not
apply to any option granted under Plan B.
5
<PAGE> 6
IN WITNESS WHEREOF, the Company and the Optionee have executed this Agreement
effective as of the date first written hereinabove.
MRV COMMUNICATIONS, INC. OPTIONEE
By
----------------------------------- -----------------------------------
Title:
-------------------------------- -----------------------------------
Street Address
-----------------------------------
City and State
-----------------------------------
Social Security No.
By his or her signature below, the spouse of the Optionee, of
such Optionee be legally married as of the date of his execution of this
Agreement, acknowledges that he or she has read this Agreement and the Plan and
is familiar with the terms and provisions thereof, and agrees to be bound by all
the terms and conditions of said Agreement and said Plan document.
-----------------------------------
Spouse
Dated:
-----------------------------
By his or her signature below the Optionee represents that
he or she is not legally married as of the date of execution of this Agreement.
-----------------------------------
Optionee
Dated:
-----------------------------
6
<PAGE> 1
EXHIBIT 5
[LETTERHEAD OF FRESHMAN, MARANTZ, ORLANSKI COOPER & KLEIN, a Law Corporation]
September 23, 1999
MRV Communications, Inc.
8943 Fullbright Avenue
Chatsworth, CA 91311
Re: MRV Communications, Inc.
Registration Statement on Form S-8
1,000,000 Shares issuable upon exercise of
options granted under 1997 Incentive and
Nonstatutory Stock Option Plan
Dear Sirs:
We are counsel to MRV Communications, Inc. a Delaware (the "Company"). We have
assisted the Company in its preparation of a Registration Statement (the
"Registration Statement") on Form S-8 under the Securities Act of 1933, as
amended (the "Securities Act"), registering 1,000,000 shares of Common Stock,
$0.0034 par value of the Company (the "Common Stock ") issuable upon exercise of
options granted under the Company's 1997 Incentive and Nonstatutory Stock Option
Plan (the "Plan").
In rendering this opinion, we have considered such questions of law and examined
such statutes and regulations, corporate records, certificates and other
documents and have made such other examinations, searches and investigations as
we have considered necessary. In such examination we have assumed the
genuineness of all signatures and the authenticity of all documents submitted to
us as originals and the conformity to original documents of all documents
submitted to us as certified or as photocopies or telecopies. We have not made
an independent examination of the laws of any jurisdiction other than California
and Delaware and the Federal Law of the United States and we do not express or
imply any opinions in respect to the laws of any other jurisdiction. The
opinions expressed herein are based on legislation and regulations in effect on
the date hereof.
Based on and subject to the foregoing we are of the opinion that the Common
Stock, when issued pursuant to the exercise of options under the Plan and the
purchase price therefor has been paid, will be duly and validly issued, fully
paid and nonassessable shares of Common Stock.
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement. This consent is not to be construed as an admission that
we are a person whose consent is required to be filed with the Registration
Statement under the provisions of the Securities Act.
Very truly yours,
/s/ Freshman, Marantz, Orlanski,
Cooper & Klein,
FRESHMAN, MARANTZ, ORLANSKI,
COOPER & KLEIN,
A Law Corporation
<PAGE> 1
Exhibit 24.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference of in this registration statement of our reports
dated February 15, 1999 included in MRV Communications, Inc.'s Form 10-K for the
year ended December 31, 1998 and to all references to our Firm included in this
registration statement.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Los Angeles, California
September 20, 1999.
