<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>
<S> <C> <C>
Delaware 3577/3674 06-1340090
(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)
ITALIAN EMPLOYEES WARRANT PROGRAM
(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]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------
Proposed Proposed
Maximum Maximum
Offering Aggregate Amount of
Title of Securities to be Amount to be Price per Offering Registration
Registered Registered Share(1) Price(1) Fee
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.0034 par value per share 100,000 $5.25 $525,000 $146
- -----------------------------------------------------------------------------------------------------------------
</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).
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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.
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<PAGE> 4
ITEM 8. EXHIBITS.
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<CAPTION>
Exhibit
Numbers
-------
<S> <C>
4.1 Form of Warrant for Italian Employees Warrant Program.
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
</TABLE>
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.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Noam Lotan President and Chief Executive Officer
- ------------------------------- and a Director (Principal Executive September 24, 1999
Noam Lotan Officer)
/s/ Shlomo Margalit Chairman of the Board, Chief
- ------------------------------- Technical Officer, Secretary, and a September 24, 1999
Shlomo Margalit Director
Vice President of Finance and
/s/ Edmund Glazer Administration, Chief Financial
- ------------------------------- Officer (Principal Financial and September 24, 1999
Edmund Glazer Accounting Officer)
/s/ Igal Shidlovski
- ------------------------------- Director September 24, 1999
Igal Shidlovsky
/s/ Guenter Jaensch
- ------------------------------- Director September 24, 1999
Guenter Jaensch
- ------------------------------- Director September __, 1999
Daniel Tsui
- ------------------------------- Director September __, 1999
Baruch Fisher
</TABLE>
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<PAGE> 1
EXHIBIT 4.1
WARRANT
MRV Communications, Inc. (the "Company") hereby awards _______________ (the
"Grantee"), pursuant to a resolution of the Board of Directors a Warrant to
purchase ____________ shares of the Common Stock, $.0034 par value per share, of
the Company, at a price of $________ per share, for a total exercise price of
______________________ Dollars & _______ Cents ($_______________). The Company
is making this grant to you to encourage your efforts in helping the Company to
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 terms and conditions upon which this Warrant may be exercised
are as follows:
The rights granted hereunder to "Grantee", may not be assigned or transferred to
any assignee or transferee except by operation of law. During your lifetime,
this option is only exercisable by you. In the event of any merger,
consolidation or sale of substantially all of the assets of MRV as an entirety,
"Grantee" shall have the right to exercise this Warrant into the kind and amount
of shares of stock and other securities and property (including cash) receivable
by a holder of the number of shares of Common stock into which the Warrant might
have been exercisable immediately prior to such merger, consolidation or sale of
substantially all of the assets of MRV as an entirety. Any unexercised right to
this Warrant shall terminate without value on _______________________ or Ninety
(90) days after the end of your employment by the Company or any of its
subsidiaries whichever comes first.
During the continued employment of the Grantee by the Company or one of its
subsidiaries the periods of Exercisability of these Warrants shall be as
follows:
<TABLE>
<CAPTION>
Number of Shares Exercise Dates
- ---------------- --------------
First Last
----- ----
<S> <C> <C>
</TABLE>
Exercisability shall occur only on and as of the dates outlined above. No
proration shall be made for shorter periods of time. The rights represented by
this Warrant may be exercised during the Exercisability period that begin as
outlined in 1 through 5 above, at any time in whole or in part by the surrender
of this Warrant with the Purchase Form at the end hereof properly executed, at
the principal executive office of MRV, payment to MRV of the exercise price then
in effect for the number of shares specified in the above-mentioned Purchase
Form. The Common Stock and the certificates for the Common Stock so purchased
shall be delivered to "Grantee" within a reasonable time, not exceeding ten (10)
days after the rights represented by this Warrant shall have been so exercised.
"Cashless" exercise of these Warrants shall be allowed by The Company at its
discretion and only in accordance with U.S. Securities law. This warrant may be
subdivided into smaller denominations as requested by the Warrant holder.
Grantee acknowledges hereby that the exercisability of this Warrant is
contingent upon continued employment by the Company or its subsidiaries and is
governed by the terms and conditions of employment by the Company. Termination
of Grantee's rights of exercisability of this Warrant shall occur immediately
upon termination of employment of the Grantee for cause. Termination for any
other reason whether such termination is initiated by the Company, its
subsidiaries or the Grantee shall cause any remaining rights of exercisability
to terminate no more than 90 days after termination of employment. No other
rights to these Warrants are valid unless in writing and signed by a Company
Officer.
MRV covenants and agrees that all shares of Common Stock which may be issued as
part of this Warrant will, upon issuance, be validly issued, fully paid and
non-assessable, and no personal liability will attach to the holder thereof. MRV
further covenants and agrees that, during the Exercisability period, MRV will at
<PAGE> 2
all times have authorized and reserved a sufficient number of shares of its
Common stock to provide for the exercise of the Warrant.
The Warrant shall not entitle the Warrant holder to any voting rights or other
rights as a shareholder of MRV.
The exercise price in effect at any time and the number and kind of securities
purchasable upon the exercise of the warrant shall be subject to adjustment from
time to time upon the happening of certain events as described below:
In case MRV shall (i) declare a dividend or make a distribution on its
outstanding shares of Common Stock in shares of Common Stock, (ii) subdivide or
reclassify its outstanding shares of Common stock into a greater number of
shares, or (iii) combine or reclassify its outstanding shares of Common Stock
into a smaller number of shares, then the appropriate adjustments in the number
and kind of such securities subject to this warrant shall be made and the
exercise price in effect at the time of the record date for such dividend or
distribution or of the effective date of such subdivision, combination,
reclassification, reorganization, merger, consolidation, or recapitalization
shall be proportionately adjusted so that the holder of this warrant exercised
after such date shall be entitled to receive the aggregate number and kind of
shares of MRV Common Stock which, if this Warrant had been exercised by such
holder immediately prior to such date, he would have owned upon such exercise
and been entitled to receive upon such dividend, distribution, subdivision,
combination, reclassification, reorganization, merger, consolidation or
recapitalization. Provided however no adjustment in the exercise price shall be
required unless such adjustment would require an increase or decrease of at
least five cents in such price.
"Grantee"acknowledges that the warrant and the shares underlying the Warrant of
MRV Common Stock have not been registered with the Securities and Exchange
Commission and that it is taking the shares for investment purposes in the event
it exercises this Warrant and not with a view towards distribution. Upon
exercise of this Warrant a legend to this effect will be placed upon the
certificates. MRV agrees to register with the Securities Exchange Commission, at
MRV's expense, the shares underlying the warrants after the granting of these
warrants.
This Agreement shall be governed by and in accordance with the laws of
the State Of Delaware.
- -----------------------------------
President & CEO
- -----------------------------------
Chairman of the Board
I have read and understand the terms and conditions of these Warrants and I
agree to abide by them.
- ----------------------------------- --------------
Grantee Date
<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
100,000 Shares issuable upon exercise of warrants granted
under the Italian Employees Warrant Program
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 100,000 shares of Common Stock,
$0.0034 par value of the Company (the "Common Stock ") issuable upon exercise of
warrants granted under the Company's Italian Employees Warrant Program (the
"Program").
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 Program 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 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.
