<PAGE> 1
As filed with the Securities and Exchange Commission
via EDGAR 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)
1992 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 150,000 $5.25 $787,500 $219
- --------------------------------------------------------------------------------------------------------------------------------
</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 1992 Stock Option Plan, as amended.
4.2 Form of Stock Option Agreement under the 1992 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.
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<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.
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<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 4.1
MRV COMMUNICATIONS, INC.
1992 STOCK OPTION PLAN
(as amended through July 1996 and giving effect
to a 3-for 2 and 2-for-1 stock splits on
May 20 and July 29, 1996, respectively)
ARTICLE I
PURPOSE OF THE PLAN
The purpose of this Plan is to encourage and enable employees,
consultants, directors and others who are in a position to make significant
contributions to the success of MRV COMMUNICATIONS, INC. and of its affiliated
corporations upon whose judgment, initiative, and efforts the Corporation
depends for the successful conduct of its business, to acquire a closer
identification of their interests with those of the Corporation by providing
them with opportunities to purchase stock in the Corporation pursuant to options
granted hereunder, thereby stimulating their efforts on behalf of the
Corporation and strengthening their desire to remain involved with the
Corporation.
ARTICLE II
DEFINITIONS
2.1 "Affiliated Corporation" means any stock corporation of
which a majority of the voting common or capital stock is owned directly or
indirectly by the Corporation.
2.2 "Award" means an Option granted under Article V.
2.3 "Board" means the Board of Directors of the Corporation.
2.4 "Code" means the Internal Revenue Code of 1986, as amended
from time to time.
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2.5 "Committee" means a committee of not less than two members
of the Board appointed by the Board to administer the Plan, each of whom is a
"disinterested person" within the meaning of Rule 16b-3 under the Securities
Exchange Act of 1934, or any successor provision.
2.6 "Corporation" means MRV COMMUNICATIONS, INC., a Delaware
corporation, or its successor.
2.7 "Employee" means any person who is a regular full-time or
part-time employee of the Corporation or an Affiliated Corporation on or after
March 27, 1992.
2.8 "Option" means an Incentive Stock Option or Non-Qualified
Option granted by the Committee under Article V of this Plan in the form of a
right to purchase Stock evidenced by an instrument containing such provisions as
the Committee may establish.
2.9 "Participant" means a person selected by the Committee to
receive an award under the Plan.
2.10 "Plan" means this 1992 Stock Option Plan.
2.11 "Incentive Stock Option" ("ISO") means an option which
qualifies as an incentive stock option as defined in Section 422 of the Code, as
amended.
2.12 "Non-Qualified Option" means any option not intended to
qualify as an Incentive Stock Option.
2.13 "Stock" means the Common Stock, $.01 par value, of the
Corporation or any successor, including any adjustments in the event of changes
in capital structure of the type described in Article IX.
2.14 "Reporting Person" means a person subject to Section 16
of the Securities Exchange Act of 1934, or any successor provision.
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2.15 "Restricted Period" means the period of time selected by
the Committee during which an Award may be forfeited by the person.
ARTICLE III
ADMINISTRATION OF THE PLAN
3.1 Administration by the Committee. This Plan shall be
administered by the Committee as defined herein. From time to time, the Board
may increase the size of the Committee and appoint additional members thereto,
remove members (with or without cause) and appoint new members in substitution
therefor, fill vacancies however caused, or remove all members of the Committee
and thereafter directly administer the Plan. No member of the Committee shall be
liable for any action or determination made in good faith with respect to the
Plan or any options granted under it.
3.2 Powers. The Committee shall have full and final authority
to operate, manage and administer the Plan on behalf of the Corporation. This
authority includes, but is not limited to:
(a) The power to grant Awards conditionally or
unconditionally,
(b) The power to prescribe the form or forms of
the instruments evidencing Awards granted
under this Plan,
(c) The power to interpret the Plan,
(d) The power to provide regulations for the
operation of the incentive features of the
Plan, and otherwise to prescribe and rescind
regulations for interpretation, management
and administration of the Plan,
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<PAGE> 4
(e) The power to delegate responsibility for
Plan operation, management and
administration on such terms, consistent
with the Plan, as the Committee may
establish,
(f) The power to delegate to other persons the
responsibility of performing ministerial
acts in furtherance of the Plan's purpose,
and
(g) The power to engage the services of persons,
companies, or organizations in furtherance
of the Plan's purpose, including but not
limited to, banks, insurance companies,
brokerage firms and consultants.
3.3 Additional Powers. In addition, as to each Option to buy
Stock of the Corporation, the Committee shall have full and final authority in
its discretion: (a) to determine the number of shares of Stock subject to each
Option; (b) to determine the time or times at which Options will be granted; (c)
to determine the option price of the shares of Stock subject to each Option,
which price shall be not less than the minimum price specified in Article V of
this Plan; (d) to determine the time or times when each Option shall become
exercisable and the duration of the exercise period (including the acceleration
of any exercise period), which shall not exceed the maximum period specified in
Article V; and (e) to determine whether each Option granted shall be an
Incentive Stock Option or a Non-qualified Option.
In no event may the Corporation grant an Employee any
Incentive Stock Option that is first exercisable during any one calendar year to
the extent the aggregate fair market value of the Stock (determined at the time
the options are granted) exceeds $100,000 (under all stock options plans of the
Corporation and any Affiliated Corporation); provided, however, that this
paragraph
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<PAGE> 5
shall have no force and effect if its inclusion in the Plan is not necessary for
Incentive Stock Options issued under the Plan to qualify as such pursuant to
Section 422(d)(1) of the Code.
ARTICLE IV
ELIGIBILITY
4.1 Eligible Employees. All Employees (including Directors and
Officers who are Employees and who have not irrevocably elected to be ineligible
to participate in the Plan) are eligible to be granted Incentive Stock Option
and Non-Qualified Option Awards under this Plan.
4.2 Consultants, Directors and other Non-Employees. Any
Consultant, Director (whether or not an Employee) and any other Non-Employee is
eligible to be granted Non-Qualified Option Awards under the Plan provided the
person has not irrevocably elected to be ineligible to participate in the Plan,
and provided further that upon appointment to the Committee at the first Board
of Directors meeting following the Annual Meeting of the Shareholders, each
non-employee director appointed to the Committee shall be deemed to be
ineligible to participate under the Plan during his or her period of service on
the Committee.
4.3 Relevant Factors. In selecting individual Employees,
Consultants, Directors, and other Non-Employees to whom Awards shall be granted,
the Committee shall weigh such factors as are relevant to accomplish the purpose
of the Plan as stated in Article I. An individual who has been granted an Award
may be granted one or more additional Awards, if the Committee so determines.
The granting of an Award to any individual shall neither entitle that individual
to, nor disqualify him from, participation in any other grant of Awards.
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<PAGE> 6
ARTICLE V
STOCK OPTION AWARDS
5.1 Number of Shares. Subject to the provisions of Article X
of this Plan, the aggregate number of shares of Stock for which Options may be
granted under this Plan shall not exceed 1,950,000 shares. The shares to be
delivered upon exercise of Options under this Plan shall be made available, at
the discretion of the Committee, either from authorized but unissued shares or
from previously issued and reacquired shares of Stock held by the Corporation as
treasury shares, including shares purchased in the open market.
Stock issuable upon exercise of an option granted under the
Plan may be subject to such restrictions on transfer, repurchase rights or other
restrictions as shall be determined by the Committee.
5.2 Effect of Expiration, Termination or Surrender. If an
Option under this Plan shall expire or terminate unexercised as to any shares
covered thereby, or shall cease for any reason to be exercisable in whole or in
part, or if the Corporation shall reacquire any unvested shares issued pursuant
to Options under the Plan, such shares shall thereafter be available for the
granting of other Options under this Plan.
5.3 Term of Options. The full term of each Option granted
hereunder shall be for such period as the Committee shall determine. In the case
of Incentive Stock Options granted hereunder, the term shall not exceed ten (10)
years from the date of granting thereof. Each Option shall be subject to earlier
termination as provided in Sections 6.4 and 6.5. Notwithstanding the foregoing,
the term of options intended to qualify as "Incentive Stock Options" shall not
exceed five (5) years from the date of granting thereof if such option is
granted to any employee who at the time
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<PAGE> 7
such option is granted owns more than ten percent (10%) of the total combined
voting power of all classes of stock of the Corporation.
5.4 Option Price. The option price shall be determined by the
Committee at the time any Option is granted. In the case of Incentive Stock
Options, the exercise price shall not be less than 100% of the fair market value
of the shares covered thereby at the time the Incentive Stock Option is granted
(but in no event less than par value), provided that in the case where an
Incentive Stock Option is granted hereunder to any Employee who at the time of
grant owns Stock possessing more than 10% of the combined voting power of all
classes of stock of the Corporation and its Affiliated Corporations, the
Incentive Stock Option price shall equal not less than 110% of the fair market
value of the shares covered thereby at the time the Incentive Stock Option is
granted. In the case of Non-Qualified Stock Options, the exercise price shall
not be less than par value.
5.5 Fair Market Value. If, at the time an Option is granted
under the Plan, the Corporation's Stock is publicly traded, "fair market value"
shall be determined as of the last business day for which the prices or quotes
discussed in this sentence are available prior to the date such Option is
granted and shall mean (i) the average (on that date) of the high and low prices
of the Stock on the principal national securities exchange on which the Stock is
traded, if the Stock is then traded on a national securities exchange; or (ii)
the last reported sale price (on that date) of the Stock on the NASDAQ National
Market List, if the Stock is not then traded on a national securities exchange;
or (iii) the closing bid price (or average of bid prices) last quoted (on that
date) by an established quotation service for over-the-counter securities, if
the Stock is not reported on the NASDAQ National Market List. However, if the
Stock is not publicly traded at the time an Option is granted under the Plan,
"fair market value" shall be deemed to be the fair value of the Stock as
determined by the Committee under Section 3.3.
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5.6 Non-Transferability of Options. No Option granted under
this Plan shall be transferable by the grantee otherwise than by will or the
laws of descent and distribution, and such Option may be exercised during the
grantee's lifetime only by the grantee.
5.7 Foreign Nationals. Awards may be granted to Participants
who are foreign nationals or employed outside the United States on such terms
and conditions different from those specified in the Plan as the Committee
considers necessary or advisable to achieve the purposes of the Plan or comply
with applicable laws.
ARTICLE VI
EXERCISE OF OPTION
6.1 Exercise. Each Option granted under the Plan shall be
exercisable on such date or dates and during such period and for such number of
shares as shall be determined pursuant to the provisions of the instrument
evidencing such Option. The Committee shall have the right to accelerate the
date of exercise of any option, provided that, the Committee shall not
accelerate the exercise date of any Incentive Stock Option granted if such
acceleration would violate the annual vesting limitation contained in Section
422(d)(1) of the Code.
6.2 Notice of Exercise. A person electing to exercise an
Option shall give written notice to the Corporation of such election and of the
number of shares he or she has elected to purchase and shall at the time of
exercise tender the full purchase price of the shares he or she has elected to
purchase.
6.3 Delivery of Stock. No shares shall be delivered pursuant
to any exercise of an Option until payment in full of the option price therefore
is received by the Corporation. Such payment may be made in whole or in part in
cash or, to the extent permitted by the Committee at or
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<PAGE> 9
after the grant of an Option, by delivery of a note or shares of the Stock owned
by the optionee, including Restricted Stock, valued at their fair market value
on the date of delivery, or such other lawful consideration as the Committee may
determine. Until such person has been issued a certificate or certificates for
the shares so purchased, he or she shall possess no rights of a record holder
with respect to any of such shares.
6.4 Option Unaffected by Change in Duties. No Incentive Stock
Option, and, unless otherwise determined by the Committee, no Non-Qualified
Option granted to a person who is, on the date of the grant, an Employee of the
Corporation or an Affiliated Corporation, shall be affected by any change of
duties or position of the optionee (including transfer to or from an Affiliated
Corporation), so long as he or she continues to be an Employee. Employment shall
be considered as continuing and uninterrupted during any bona fide leave of
absence (such as those attributable to illness, military obligations or
governmental service) provided that the period of such leave does not exceed 90
days or, if longer, any period during which such optionee's right to
re-employment is guaranteed by statute. A bona fide leave of absence with the
written approval of the Committee shall not be considered an interruption of
employment under the Plan, provided that such written approval contractual
obligates the Corporation or any Affiliated Corporation to continue the
employment of the optionee after the approved period of absence.
If the optionee shall cease to be an Employee for any reason
other than death, such Option shall thereafter be exercisable only to the extent
of the purchase rights, if any, which have accrued as of the date of such
cessation; provided that (i) the Committee may provide in the instrument
evidencing any Option that the Committee may in its absolute discretion, upon
any such cessation of employment, determine (but be under no obligation to
determine) that such accrued purchase rights shall be deemed to include
additional shares covered by such Option; and (ii) unless
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the Committee shall otherwise provide in the instrument evidencing any Option,
upon any such cessation of employment, such remaining rights to purchase shall
in any event terminate upon the earlier of (A) the expiration of the original
term of the Option; or (B) where such cessation of employment is on account of
disability, the expiration of one year from the date of such cessation of
employment and, otherwise, the expiration of three months from such date. For
purposes of the Plan, the term "disability" shall mean "permanent and total
disability" as defined in Section 22(e)(3) of the Code.
6.5 Death of Optionee. Should an optionee die while in
possession of the legal right to exercise an Option or Options under this Plan,
such persons as shall have acquired, by will or by the laws of descent and
distribution, the right to exercise any Options theretofore granted, may, unless
otherwise provided by the Committee in any instrument evidencing any Option,
exercise such Options at any time prior to one year from the date of death;
provided, that such Option or Options shall expire in all events no later than
the last day of the original term of such Option; provided, further, that any
such exercise shall be limited to the purchase rights which have accrued as of
the date when the optionee ceased to be an Employee, whether by death or
otherwise, unless the Committee provides in the instrument evidencing such
Option that, in the discretion of the Committee, additional shares covered by
such Option may become subject to purchase immediately upon the death of the
optionee.
ARTICLE VII
REPORTING PERSON LIMITATIONS
To the extent required to qualify for the exemption provided
by Rule 16b-3 under the Securities Exchange Act of 1934, and any successor
provision, at least six months must elapse
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from the date of acquisition of an Option by a Reporting Person to the date of
disposition of such Option (other than upon exercise) or its underlying Common
Stock.
ARTICLE VIII
TERMS AND CONDITION OF OPTIONS
Options shall be evidenced by instruments (which need not be
identical) in such forms as the Committee may from time to time approve. Such
instruments shall conform to the terms and conditions set forth in Articles V
and VI hereof and may contain such other provisions as the Committee deems
advisable which are not inconsistent with the Plan, including restrictions
applicable to shares of Stock issuable upon exercise of Options. In granting any
Non-Qualified Option, the Committee may specify that such Non-Qualified Option
shall be subject to the restrictions set forth herein with respect to Incentive
Stock Options, or to such other termination and cancellation provisions as the
Committee may determine. The Committee may from time to time confer authority
and responsibility on one or more of its own members and/or one or more officers
of the Corporation to execute and deliver such instruments. The proper officers
of the Corporation are authorized and directed to take any and all action
necessary or advisable from time to time to carry out the terms of such
instruments.
ARTICLE IX
BENEFIT PLANS
Awards under the Plan are discretionary and are not a part of
regular salary. Awards may not be used in determining the amount of compensation
for any purpose under the benefit plans of the Corporation, or an Affiliated
Corporation, except as the Committee may from time to time
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expressly provide. Neither the Plan, an Option or any instrument evidencing an
Option confers upon any Employee the right to continued employment with the
Corporation or an Affiliated Corporation.
ARTICLE X
AMENDMENT, SUSPENSION OR TERMINATION OF THE PLAN
The Committee may suspend the Plan or any part thereof at any
time or may terminate the Plan in its entirety. Awards shall not be granted
after Plan termination.
The Committee may also amend the Plan from time to time,
except that amendments which affect the following subjects must be approved by
stockholders of the Corporation:
(a) Except as provided in Article XI relative to capital
changes, the number of shares as to which Options may be granted pursuant to
Article V;
(b) The maximum term of Options granted;
(c) The minimum price at which Options may be granted;
(d) The term of the Plan; and
(e) The requirements as to eligibility for participation in
the Plan.
Awards granted prior to suspension or termination of the Plan
may not be canceled solely because of such suspension or termination, except
with the consent of the grantee of the Award.
ARTICLE XI
CHANGES IN CAPITAL STRUCTURE
The instruments evidencing Options granted hereunder shall be
subject to adjustment in the event of changes in the outstanding Stock of the
Corporation by reason of stock dividends,
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stock splits, recapitalizations, reorganizations, mergers, consolidations,
combinations, exchanges or other relevant changes in capitalization occurring
after the date of an Award to the same extent as would affect an actual share of
stock issued and outstanding on the effective date of such change. Such
adjustment to outstanding Options shall be made without change in the total
price applicable to the unexercised portion of such options, and a corresponding
adjustment in the applicable option price per share shall be made. In the event
of any such change, the aggregate number and classes of shares for which Options
may thereafter be granted under Section 5.1 of this Plan may be appropriately
adjusted as determined by the Committee so as to reflect such change.
Notwithstanding the foregoing, any adjustments made pursuant
to this Article XI with respect to Incentive Stock Options shall be made only
after the Committee, after consulting with counsel for the Corporation,
determines whether such adjustments would constitute a "modification" of such
Incentive Stock Options (as that term is defined in Section 424 of the Code) or
would cause any adverse tax consequences for the holders of such Incentive Stock
Options. If the Committee determines that such adjustments made with respect to
Incentive Stock Options would constitute a modification of such Incentive Stock
Options, it may refrain from making such adjustments.
In the event of the proposed dissolution or liquidation of the
Corporation, each Option will terminate immediately prior to the consummation of
such proposed action or at such other time and subject to such other conditions
as shall be determined by the Committee.
Except as expressly provided herein, no issuance by the
Corporation of shares of stock of any class, or securities convertible into
shares of stock of any class, shall affect, and no adjustment by reason thereof
shall be made with respect to, the number or price of shares subject to Options.
No adjustments shall be made for dividends paid in cash or in property other
than securities of the Corporation.
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<PAGE> 14
No fractional shares shall be issued under the Plan and the
optionee shall receive from the Corporation cash in lieu of such fractional
shares.
ARTICLE XII
EFFECTIVE DATE AND TERM OF THE PLAN
The Plan shall become effective on March 27, 1992. The Plan
shall continue until such time as it may be terminated by action of the
Committee; provided, however, that no Options may be granted under this Plan on
or after the tenth anniversary of the effective date hereof.
ARTICLE XIII
CONVERSION OF ISOS INTO NON-QUALIFIED OPTIONS;
TERMINATION OF ISOS
The Committee, at the written request of any optionee, may in
its discretion take such actions as may be necessary to convert such optionee's
Incentive Stock Options, that have not been exercised on the date of conversion,
into Non-Qualified Options at any time prior to the expiration of such Incentive
Stock Options, regardless of whether the optionee is an employee of the
Corporation or an Affiliated Corporation at the time of such conversion. Such
actions may include, but not be limited to, extending the exercise period or
reducing the exercise price of such Options. At the time of such conversion, the
Committee (with the consent of the optionee) may impose such conditions on the
exercise of the resulting Non-Qualified Options as the Committee in its
discretion may determine, provided that such conditions shall not be
inconsistent with the Plan. Nothing in the Plan shall be deemed to give any
optionee the right to have such optionee's Incentive Stock Options converted
into Non-Qualified Options, and no such conversion shall occur until and unless
the
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<PAGE> 15
Committee takes appropriate action. The Committee, with the consent of the
optionee, may also terminate any portion of any Incentive Stock Option that has
not been exercised at the time of such termination.
ARTICLE XIV
APPLICATION OF FUNDS
The proceeds received by the Corporation from the sale of
shares pursuant to Options granted under the Plan shall be used for general
corporate purposes.
ARTICLE XV
GOVERNMENTAL REGULATION
The Corporation's obligation to sell and deliver shares of
Stock under this Plan is subject to the approval of any governmental authority
required in connection with the authorization, issuance or sale of such shares.
ARTICLE XVI
WITHHOLDING OF ADDITIONAL INCOME TAXES
Upon the exercise of a Non-Qualified Option or the making of a
Disqualifying Disposition (as defined in Article XVI), the Corporation, in
accordance with Section 3402(a) of the Code, may require the optionee to pay
additional withholding taxes in respect of the amount that is considered
compensation includible in such person's gross income. The Committee in its
discretion may condition the exercise of an Option on the payment of such
additional withholding taxes.
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<PAGE> 16
ARTICLE XVII
NOTICE TO CORPORATION OF DISQUALIFYING DISPOSITION
Each employee who receives an Incentive Stock Option must
agree to notify the Corporation in writing immediately after the employee makes
a Disqualifying Disposition of any Stock acquired pursuant to the exercise of an
Incentive Stock Option. A Disqualifying Disposition is any disposition
(including any sale) of such Stock before the later of (a) two years after the
date the employee was granted the Incentive Stock Option or (b) one year after
the date the employee acquired Stock by exercising the Incentive Stock Option.
If the employee has died before such stock is sold, these holding period
requirements do not apply and no Disqualifying Disposition can occur thereafter.
ARTICLE XVIII
GOVERNING LAW; CONSTRUCTION
The validity and construction of the Plan and the instruments
evidencing Options shall be governed by the laws of the State of Delaware. In
construing this Plan, the singular shall include the plural and the masculine
gender shall include the feminine and neuter, unless the context otherwise
requires.
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<PAGE> 1
Exhibit 4.2
---------------
(Date)
Name
Address
City, State, Zip
Dear Name:
I am pleased to advise you that MRV Communications, Inc. (the
"Company") has awarded you, pursuant to its ____ Stock Option Plan, an incentive
stock option to purchase (__________) shares of the Common Stock, $.01 par value
per share, of the Company, at a price of $____ per share, for a total exercise
price of ___________________________ ($_________). The Company is making this
option grant to you to encourage your efforts at helping the Company grow and
succeed. Regardless of your decision whether or not to buy, you are requested to
keep the number of shares for which you are eligible strictly confidential.
The following terms and conditions are applicable with respect to
this option, and your signature below shall constitute your acknowledgment and
acceptance of same:
(a) This option shall not be transferable under any
circumstances except by operation of law. During your
lifetime, this option is only exercisable by you.
(b) The price at which this option may be exercised shall be
$______ per share, for a total exercise price of
____________________________ ($_________).
(c) This option is exercisable commencing ________________. It
may be exercised at any time thereafter prior to
___________, subject to the following terms:
(1) Should you terminate your employment with the
Company (or a parent or subsidiary of the
Company) for any reason other than death or
disability as defined in Internal Revenue Code of
1986 (the "Code") Section 105(d)(4), all vested
options shall expire immediately. You will have
ninety (90) days from the effective date of your
termination to exercise all vested options, after
which time they shall also expire.
(2) In the event of termination of your employment as
a result of your death, the outstanding options
exercisable by you at the date of your death may
be exercised by your estate until one (1) year
from the date of your death.
<PAGE> 2
Name
Date
Page 3
(3) In the event of termination of your employment as
a result of your disability, as above defined, or
in the event of a disability that lasts for more
than ninety (90) days, all outstanding options
exercisable by you at the date of such
termination shall terminate one (1) year from the
date your employment terminates.
(d) This option may be exercised in whole or in part from time
to time provided, however, that an option may not be
exercised as to less than 100 shares at any one time,
unless it is being exercised in full and the balance of
shares subject to option is less than one hundred (100).
(e) The shares of Common Stock underlying this option and the
exercise price therefor and the minimum number of shares
that may be purchased at any time shall be appropriately
adjusted from time to time for stock splits, reverse
splits, stock dividends and reclassifications of shares.
(f) In the event of a sale or acquisition of substantially all
of the stock or assets of the Company, the Company shall
give thirty (30) days notice of such an event to you and
you may exercise up to 100% of this option before the event
takes place. The terms of this provision shall be void if
the inclusion of this provision in the option agreement
causes this option not to qualify as an Incentive Stock
Option under Section 422 of the code.
(g) Notwithstanding anything contained herein to the contrary
(except Subparagraph (f) hereof), the maximum extent to
which this option may be exercised in each period is as
follows:
Number of
Period Options Exercisable
------ -------------------
This opportunity to purchase stock in the Company is being offered
because of the Company's desire to reward continuing loyal service. Exercising
options may not be a prudent business decision for some employees. Therefore, we
urge you to review this opportunity carefully and make a decision to exercise
options only if your personal financial situation makes this a wise choice.
<PAGE> 3
Name
Date
Page 3
When you wish to exercise this option, please refer to the provisions
of this letter and then correspond in writing with the Secretary of the Company.
Further, please indicate your acknowledgment and acceptance of this option by
signing the enclosed copy of this letter and returning it to the undersigned.
Very truly yours,
MRV COMMUNICATIONS, INC.
By:_______________________________
_____________, President
ACKNOWLEDGMENT AND ACCEPTANCE:
________________________________________
(Optionee)
<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
150,000 Shares issuable upon exercise of options
granted under 1992 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 150,000 shares of Common Stock,
$0.0034 par value of the Company (the "Common Stock ") issuable upon exercise of
options granted and to be granted under the Company's 1992 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.
