SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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MENLO ACQUISITION CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 77-0332037
(State or other jurisdiction (I.R.S. employer
of incorporation or organization) identification number)
100 Misty Lane, Parsippany, New Jersey
07054 (Address of principal executive
offices; zip code)
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1999 Stock Option Plan
(Full title of the plan)
Frank Russomanno
Chief Financial Officer
Menlo Acquisition Corporation
100 Misty Lane, Parsippany, New Jersey 07054
(973) 560-1400
(Name, address and telephone number,
including area code, of agent for service)
Copy to:
Peter H. Ehrenberg, Esq.
Lowenstein Sandler PC
65 Livingston Avenue
Roseland, New Jersey 07068
(973) 597-2500
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Calculation of Registration Fee
------------------- ------------ ---------------- ------------------ -----------
Proposed Maximum Proposed Amount of
Title of Securities Amount to be Offering Price Maximum Aggregate Registration
to be Registered Registered per Share (2) Offering Price(2) Fee
------------------- ------------ ---------------- ------------------ -----------
------------------- ------------ ---------------- ------------------ ===========
Common Stock,
$.0001 par value(1) 525,000 $1.22 $640,500 $178.06
shares (1)
------------------- ------------ ------------------- --------------- ===========
(1) Plus such additional shares of Common Stock as may be issuable from time to
time pursuant to the anti-dilution provisions of the 1999 Stock Option Plan.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) and (h) of the Securities Act of 1933 on the basis of
the average of the bid and asked prices of the Common Stock on September 11,
2000.
<PAGE>
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The SEC allows us to "incorporate" into this Registration Statement
information we file with it in other documents. This means that we can disclose
important information to you by referring to other documents that contain that
information. The information incorporated by reference is considered to be part
of this Registration Statement, and information we file later with the SEC will
automatically update and supersede this information. We incorporate by reference
the documents listed below, except to the extent information in those documents
is different from the information contained in this Registration Statement, and
all future documents filed with the SEC under Sections 13(a), 13(c), 14 or 15(d)
of the Securities Exchange Act of 1934 until we terminate the offering of these
shares:
(a) our Annual Report on Form 10-KSB for the year ended December 31, 1999;
(b) our Quarterly Reports on Form 10-QSB for the quarters ended March 31,
2000 and June 30, 2000; and
(c) the description of our Common Stock set forth in the Registration
Statement on Form 10 filed by the Company with the SEC pursuant to Section 12 of
the Exchange Act and filed by the Company with the SEC on July 22, 1993, and as
amended on September 14, 1993.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not Applicable.
Item 6. Indemnification of Directors and Officers
Under Section 145 of the Delaware General Corporation Law ("DGCL"), a
corporation has the power to indemnify directors and officers under certain
prescribed circumstances and subject to certain limitations against certain
costs and expenses, including attorneys' fees actually and reasonably incurred
in connection with any action, suit or proceeding, whether civil, criminal,
administrative or investigative, to which any of them is a party by reason of
his being a director or officer of the corporation if it is determined that he
acted in good faith and in a manner he believed to be in (or not opposed to) the
interests of the corporation, and, in the case of a criminal proceeding, he had
no reason to believe his conduct was unlawful. Our certificate of incorporation
provides that we will indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding by reason of the fact that he is or was a director or officer
of our corporation, or is or was serving at our request as a director, officer
or trustee of (or in a similar capacity with) another entity, against certain
liabilities, costs and expenses.
Section 102(b)(7) of the DGCL permits a corporation, in its certificate of
incorporation, to limit or eliminate, subject to certain statutory limitations,
the personal liability of directors to the corporation or its stockholders for
monetary damages for breaches of fiduciary duty, as a director except for
liability (a) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (b) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (c) under
Section 174 of the DGCL, or (d) for any transaction from which the director
derived an improper personal benefit. Article VI of our Certificate of
Incorporation contains the following provision regarding limitation of liability
of our directors and officers:
"A. A Director of the Corporation shall not be personally
liable to the Corporation or its stockholders for monetary damages for
breach of fiduciary duty as a director, except for liability (i) for
any breach of the director's duty of loyalty to the Corporation or its
stockholders; (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law; (iii)
under Section 174 of the General Corporation Law of the State of
Delaware; or (iv) for any transaction from which the director derived
any improper personal benefit. If the General Corporation Law of the
State of Delaware is hereafter amended to authorize further elimination
of or limitation on the liability of a director of a corporation, then
the liability of a director of this Corporation shall be eliminated or
limited to the fullest extent permitted by the General Corporation Law
of the State of Delaware, as so amended.
B. Any repeal or modification of this Article VI by (i) the
stockholders of the Corporation or (ii) amendment to the General
Corporation Law of the State of Delaware (unless such statutory
amendment specifically provides to the contrary) shall not adversely
affect any right or protection, existing immediately prior to the
effectiveness of such repeal or modification with respect to any acts
or omissions occurring either before or after such repeal or
modification, of a person serving as a director at the time of such
repeal or modification."
Item 7. Exemption From Registration Claimed
Not applicable.
Item 8. Exhibits
The Exhibits accompanying this Registration Statement are listed on the
accompanying Exhibit Index.
Item 9. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any acts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference 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.
(b) 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, 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.
<PAGE>
EXHIBIT INDEX
4.1 The Registrant's Second Amended and Restated Certificate of
Incorporation is incorporated by reference to Exhibit 3.6 to
the Registrant's Annual Report on Form 10-KSB for the year
ended December 31, 1999.
4.2 The Registrant's By-Laws are incorporated by reference to
Exhibit 3.7 to the Registrant's Annual Report on Form 10-KSB
for the year ended December 31, 1999.
5.1 Opinion of Lowenstein Sandler PC.
23.1 Consent of J. H. Cohn LLP.
23.2 Awareness Letter of J.H. Cohn LLP.
23.3 Consent of Lowenstein Sandler PC is included in Exhibit 5.1.
24.1 Power of Attorney.
<PAGE>
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 Town of Parsippany, State of New Jersey, on the 31st day of
August, 2000.
MENLO ACQUISITION CORPORATION
By: /s/ Richard S. Greenberg
____________________________
Richard S. Greenberg, Ph.D
Chairman and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on this 31st day of August, 2000.
Signature Title
/s/ Richard S. Greenberg* Chairman of the Board
__________________________
Richard S. Greenberg, Ph.D
/s/ Lawrence B. Seidman* President, General Counsel and Director
__________________________
Lawrence B. Seidman
/s/ George Greenberg* Director
__________________________
George Greenberg
/s/ Frank Russomanno* Chief Financial Officer
__________________________
Frank Russomanno (principal financial and accounting officer)
*By: /s/ Frank Russomanno
____________________
Frank Russomanno, Attorney-in-Fact
