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As filed with the Securities and Exchange Commission on June 2, 2000
Registration No. 333-_____
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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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MCGLEN INTERNET GROUP, INC.
(Exact name of registrant as specified in its charter)
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Delaware 13-3779546
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3002 Dow Avenue, Suite 114, Tustin, California 92780
(714) 838-1240
(Address and telephone number of principal executive offices)
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MCGLEN INTERNET GROUP, INC. 2000 STOCK OPTION PLAN
WANDERLUST INTERACTIVE 1995 STOCK OPTION PLAN
WANDERLUST INTERACTIVE 1996 STOCK OPTION PLAN
MCGLEN MICRO 1999 STOCK OPTION PLAN
STOCK OPTION AGREEMENTS
(Full title of the plans)
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George Lee, Chief Executive Officer
Mcglen Internet Group, Inc.
3002 Dow Avenue, Suite 114
Tustin, California 92780
(Name and address of agent for service)
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Telephone number, including area code, of agent for service: (714) 838-1240
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
maximum maximum
Title of Amount offering aggregate Amount of
securities to be price offering registration
to be registered registered per share price fee
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<S> <C> <C> <C> <C>
Common Stock, 3,456,088(1) $1.25 (2) $4,320,110 (2) $1,141 (2)
$.03 par value
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</TABLE>
(1) This Registration Statement covers, in addition to the number of shares of
Common Stock stated above, options and other rights to purchase or acquire
the shares of Common Stock covered by the Prospectus and, pursuant to Rule
416(c) under the Securities Act of 1933, as amended (the "Securities Act"),
an additional indeterminate number of shares, options and rights which by
reason of certain events specified in such plans (the "Plans") may become
subject to the Plans.
(2) Pursuant to Rule 457(h), the maximum offering price, per share and in the
aggregate, and the registration fee were calculated based upon the average
of the high and low prices of the Common Stock on May 26, 2000, as reported
on The Nasdaq Small Cap Stock Market.
The Exhibit Index for this Registration Statement is at page 8.
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PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of Form
S-8 (plan information and registrant information) will be sent or given to
employees as specified by Securities Act Rule 428(b)(1). Such documents need not
be filed with the Securities and Exchange Commission (the "Commission") either
as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Securities Act Rule 424. These documents, which include
the statement of availability required by Item 2 of Form S-8, and the documents
incorporated by reference in this Registration Statement pursuant to Item 3 of
Form S-8 (Part II hereof), taken together, constitute a prospectus that meets
the requirements of Section 10(a) of the Securities Act.
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PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents of Mcglen Internet Group, Inc. (the "Company")
filed with the Commission are incorporated herein by reference:
(a) Annual Report on Form 10-KSB for the Company's fiscal year ended
December 31, 1999, as amended;
(b) Quarterly Report on Form 10-QSB for the Company's fiscal quarter
ended March 31, 2000;
(c) Current Report on Form 8-K of the Company filed with the
Commission on February 1, 2000; and
(d) The description of the Company's Common Stock contained in its
Registration Statement (Amendment No. 1) on Form S-3 (Registration
No. 333-85263), filed with the Commission on October 7, 1999,
including any amendment or report filed for the purpose of
updating such description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold or which deregisters
all securities then remaining unsold shall be deemed to be incorporated by
reference into this Registration Statement and to be a part hereof from the date
of filing of such documents. Any statement contained herein or in a document,
all or a portion of which is incorporated or deemed to be incorporated by
reference herein, shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement contained herein or
in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or amended, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
The Company's Common Stock, $.03 par value (the "Common Stock"), is
registered pursuant to Section 12 of the Exchange Act, and, therefore, the
description of securities is omitted.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the original issuance of Common Stock registered hereby
will be passed on for the Company by O'Melveny & Myers LLP.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Certificate of Incorporation and Bylaws provide for
indemnification of the officers and directors of the Company to the fullest
extent permitted by law. Section 102(b)(7) of the Delaware General Corporation
Law (the "DGCL") provides that a Delaware corporation has the power to eliminate
or limit the personal liability of a director for violations of the director's
fiduciary duty, except (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) pursuant to Section 174 of the DGCL (providing for liability of directors
for unlawful payment of dividends or unlawful stock purchases or redemptions),
or (iv) for any transaction from which a director derived an improper personal
benefit.
Section 145 of the DGCL provides that a corporation may indemnify any
persons, including officers and directors, who are, or are threatened to be
made, parties to any threatened, pending or completed legal action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of such corporation), by reason of the fact that
such person was a director, officer, employee or agent of such corporation, or
is or was serving at the request of such corporation as a director, officer,
employee or agent of another corporation or enterprise. The indemnity may
include expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding, provided such officer, director, employee or
agent acted in good faith and in a manner he reasonably believed to be in or not
opposed to the corporation's best interests and, for criminal proceedings, had
no reasonable cause to believe that his conduct was unlawful. A Delaware
corporation may indemnify officers and directors in an action by or in the right
of the corporation under the same conditions, except that no indemnification is
permitted without judicial approval if the officer or director is adjudged to be
liable to the corporation. Where an officer is successful on the merits or
otherwise in the defense of any action referred to above, the corporation must
indemnify him against the expenses which such officer or director actually and
reasonably incurred.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
See the attached Exhibit Index at page 8.
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;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the Registration Statement;
and
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(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 by the registrant pursuant to Section 13 or Section 15(d)
of the Exchange Act that are incorporated by reference in the
Registration Statement;
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial BONA FIDE offering thereof; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial BONA
FIDE offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, executive officers and controlling
persons of the registrant pursuant to the provisions described in Item 6 above,
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.
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SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Tustin, State of California, on the 30th day of May,
2000.
By: /s/ George Lee
--------------------------------
George Lee
Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
George Lee, Michael Chen and Grant Trexler, or any of them individually, his
true and lawful attorney-in-fact and agent, with full powers of substitution and
resubstitution, for him and in his name, place and stead, 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 Commission, granting unto
said attorneys-in-fact and agents, full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully 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 either of them individually, or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ George Lee Chief Executive Officer and Director May 30, 2000
-------------------------------- (Principal Executive Officer)
George Lee
/s/ Michael Chen President and Director May 30, 2000
--------------------------------
Michael Chen
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/s/ Grant Trexler Chief Financial Officer (Principal May 30, 2000
-------------------------------- Financial and Accounting Officer)
Grant Trexler
/s/ Calbert Lai Director May 30, 2000
--------------------------------
Calbert Lai
/s/ David P. Jones Director May 30, 2000
--------------------------------
David P. Jones
</TABLE>
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EXHIBIT INDEX
Exhibit
Number Description of Exhibit
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5. Opinion of Counsel (opinion re legality).
23.1 Consent of BDO Seidman LLP (consent of independent auditors).
23.2 Consent of Singer Lewak Greenbaum & Goldstein LLP (consent of
independent auditors)
23.3 Consent of Counsel (included in Exhibit 5).
24. Power of Attorney (included in this Registration Statement
under "Signatures").
8
