Unassociated Document
As
filed
with the Securities and Exchange Commission on November 27, 2006
Registration
No. 333-61855
UNITED
STATES SECURITIES AND EXCHANGE COMMISSION
Washington,
D.C. 20549
____________________
POST-EFFECTIVE
AMENDMENT NO. 1
TO
FORM
S-8
REGISTRATION
STATEMENT
Under
THE
SECURITIES ACT OF 1933
____________________
FIBERSTARS,
INC.
(Exact
name of registrant as specified in its charter)
Delaware
(State
or other jurisdiction of
incorporation
or organization)
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94-3021850
(I.R.S.
Employer
Identification
No.)
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32000
Aurora Road
Solon,
OH
(Address
of principal executive offices)
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44139
(Zip
Code)
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Fiberstars,
Inc. 1994 Stock Incentive Plan
Fiberstars,
Inc. 1994 Directors’ Stock Option Plan
Fiberstars,
Inc. 1994 Employee Stock Purchase Plan
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(Full
title of the plans)
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John
M. Davenport
Chief
Executive Officer
Fiberstars,
Inc.
32000
Aurora Road
Solon,
OH 44139
(330)
715-1300
(Name,
address and telephone
number
of agent for service)
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Copy
to:
James
S. Hogg, Esq.
Cowden,
Humphrey, Nagorney
&
Lovett, Co. LPA
1414
Terminal Tower
50
Public Square
Cleveland,
OH 44113
(216)
241-2880
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CALCULATION
OF REGISTRATION FEE
Title
of Securities
To
be Registered
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Amount
To
Be
Registered
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Proposed
Maximum
Offering
Price
Per Share
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Proposed
Maximum
Aggregate
Offering
Price
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Amount
of
Registration
Fee
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See
Below (1)
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NA
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NA
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NA
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NA
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(1) |
No
additional securities are to be registered, and registration fees
were
paid upon filing of the
original
Registration Statement on Form S-8 (Registration No. 33-85664). Therefore,
no further registration fee is
required.
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This
Post
Effective Amendment to Registration Statement shall become effective upon filing
in accordance with Rule 462 under the Securities Act.
Explanatory
Note
Reincorporation;
Assumption of Registration Statement
This
Post-Effective Amendment is being filed pursuant to Rule 414(d) under the
Securities Act of 1933, as amended (the “Securities Act”), and constitutes
Amendment No. 1 to the registration statement on Form S-8, Registration No.
333-61855 filed on August 19, 1998 (the “Registration Statement”) by Fiberstars,
Inc., a California corporation (“Fiberstars-California”) and the predecessor of
Fiberstars, Inc., a Delaware corporation (“Fiberstars-Delaware” or the
“Registrant”), relating to the Fiberstars, Inc. 1994 Stock Incentive Plan and
the Fiberstars, Inc. 1994 Directors’ Stock Option Plan. Fiberstars-Delaware
succeeded to the interests of Fiberstars-California following a reincorporation
effected pursuant to an Agreement and Plan of Merger (the “Merger Agreement”)
between Fiberstars-Delaware and Fiberstars-California. The Merger Agreement
provides for, among other things, the merger of Fiberstars-California with
and
into Fiberstars-Delaware, a wholly owned subsidiary of Fiberestars-California
(the “Merger”). The Merger Agreement was approved by the shareholders of
Fiberstars-California at a meeting for which proxies were solicited pursuant
to
Section 14(a) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), on July 6, 2006.
As
a
result of the Merger,
upon
the effective date of the Merger, (1) each outstanding share of
Fiberstars-California common stock, $0.0001 par value, was automatically
converted into one share of common stock, $0.0001 par value of
Fiberstars-Delaware; (2) each Series A Participating Purchase Right was
automatically converted into a Series A Participating Preferred Purchase Right
for the same number of shares of Series A Participating Preferred Stock of
Fiberstars-Delaware; and (3) each outstanding option to purchase
Fiberstars-California common stock, including options previously granted under
the 1994 Stock Incentive Plan, as amended, and the 1994 Directors Stock Option
Plan, as amended, and options previously granted and to be granted in the future
under the 2004 Stock Incentive Plan, as amended (the “Stock Plans”), was
automatically assumed by Fiberstars-Delaware and will represent an option to
acquire shares of Fiberstars-Delaware common stock on the basis of one share
of
Fiberstars-Delaware common stock for each one share of Fiberstars-California
common stock and at an exercise price equal to the exercise price of the
Fiberstars-California option. Immediately
prior to the consummation of the Merger, the Registrant had nominal assets
and
liabilities.
In
accordance with Rule 414 under the Securities Act, Fiberstars-Delaware, as
successor issuer to Fiberstars-California, hereby expressly adopts this
Registration Statement as its own for all purposes of the Securities Act and
the
Exchange Act. The applicable registration fees were paid at the time of the
original filing of this Registration Statement.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item 3.
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Incorporation
of Documents by Reference.
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The
following documents previously filed with the Commission are hereby incorporated
by reference in this registration statement:
(1)
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Annual
Report on Form 10-K (File No. 0-24230) for the fiscal year ended
December 31, 2005;
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(2)
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Quarterly
Reports on Form 10-Q (File No. 0-24230) for the quarters ended
March 31, 2006, June 30, 2006 and September 30, 2006;
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(3)
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Current
Reports on Form 8-K dated January 6, 2006, April 3, 2006, April 7,
2006, May 17, 2006, June 2, 2006, July 7, 2006, July 11, 2006, August
15,
2006, September 28, 2006, November 13, 2006, November 14, 2006 and
November 27, 2006; and
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(4)
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The
description of the common stock, preferred stock and preferred stock
purchase rights contained in Current Report Form 8-K filed November
27,
2006 (File No. 0-24230), including any amendment or report filed for
the purpose of updating such description.
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In
addition, all documents subsequently filed by us pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment which indicates that all securities offered 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 hereof
from the date of filing of such documents.
Item 4.
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Description
of Securities.
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Not
applicable.
Item 5.
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Interests
of Named Experts and Counsel.
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Not
applicable.
Item 6.
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Indemnification
of Directors and Officers.
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Section
145 of the Delaware General Corporation Law (the “DGCL”) empowers a corporation
to indemnify its directors and officers and to purchase insurance with respect
to liability arising out of their capacity or status as directors and officers,
provided that these provisions shall not eliminate or limit the liability of
a
director: (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)
arising under Section 174 of the DGCL, or (iv) for any transaction from which
the director derived an improper personal benefit. The DGCL provides further
that the indemnification permitted thereunder shall not be deemed exclusive
of
any other rights to which the directors and officers may be entitled under
the
corporation’s bylaws, any agreement, vote of stockholders or otherwise.
Article
XI and Article XII of the Certificate of Incorporation of Fiberstars-Delaware
(the “Certificate”) provide that the liability of officers and directors of the
Registrant shall be eliminated or limited to the fullest extent authorized
or
permitted by the DGCL. Under the DGCL, the directors have a fiduciary duty
to
the Registrant which is not eliminated by these provisions of the Certificate
and, in appropriate circumstances, equitable remedies such as injunctive or
other forms of non-monetary relief will remain available to the company. These
provisions also do not affect the directors’ responsibilities under any other
laws, such as the Federal securities laws or state or Federal environmental
laws. Fiberstars-Delaware has obtained liability insurance for its officers
and
directors.
Article
VI of the Bylaws of Fiberstars-Delaware provides that Fiberstars-Delaware shall
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, whether
civil, criminal, administrative or investigative (other than an action by or
in
the right of FIberstars-Delaware), by reason of the fact that such person is
or
was a director or officer of Fiberstars-Delaware, or is or was a director or
officer of Fiberstars-Delaware serving at the request of Fiberstars-Delaware
as
a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against 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.
Article
VI of the Bylaws of Fiberstars-Delaware further provides that in the event
a
director or officer has to bring suit against Fiberstars-Delaware for
indemnification and is successful, Fiberstars-Delaware will pay such director’s
or officer’s expenses of prosecuting such claim; that indemnification provided
for by the Bylaws shall not be deemed exclusive of any other rights to which
the
indemnified party may be entitled; and that Fiberstars-Delaware may purchase
and
maintain insurance on behalf of a director or officer against any liability
asserted against such officer or director and incurred by such officer or
director in such capacity, whether or not Fiberstars-Delaware would have the
power to indemnify such director or officer against such expense or liability
the DGCL.
At
present, there is no pending litigation or proceeding involving any director,
officer, employee or agent as to which indemnification will be required or
permitted under the Certificate. Fiberstars-Delaware is not aware of any
threatened litigation or proceeding that may result in a claim for
indemnification.
Item 7.
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Exemption
From Registration Claimed.
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Not
applicable.
Exhibit No.
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Description
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2.1(A)
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Agreement
and Plan of Merger between Fiberstars Inc., a California corporation,
and
Fiberstars, Inc., a Delaware corporation.
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3.1(B)
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Certificate
of Incorporation of Fiberstars, Inc., a Delaware
corporation
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3.2(C)
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Certificate
Of Designation Of Series A Participating Preferred Stock of Fiberstars,
Inc., a Delaware corporation: (Form 8-K, Exhibit 3.1)
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3.3(D)
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Bylaws
of Fiberstars, Inc., a Delaware corporation.
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4.1(C)
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Specimen
Common Stock Certificate of Fiberstars, Inc., a Delaware
corporation.
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4.2(C)
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Rights
Agreement between Fiberstars, Inc., a Delaware corporation and Mellon
Investor Services, LLC
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5.1
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Opinion
of Cowden, Humphrey, Nagorney & Lovett, Co., LPA as to the legality of
the Common Stock being registered.
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23.1
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Consent
of Independent Registered Public Accounting Firm.
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23.2
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Consent
of Cowden, Humphrey, Nagorney & Lovett, Co., LPA (included in Exhibit
5.1).
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24.1
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Power
of Attorney (contained on the signature page to this Registration
Statement).
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99.1(E)
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Fiberstars,
Inc. 1994 Stock Incentive Plan, amended as of May 24,
2000.
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99.2(F)
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1994
Director’s Stock Purchase Plan, amended s of May 23, 2001.
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99.3(G)
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2004 Stock
Incentive
Plan. |
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99.4(H)
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Form
of Stock Option Agreement under Fiberstars Inc. 2004 Stock Incentive
Plan.
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(A)
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Incorporated
by reference to Appendix C to the Definitive Proxy Statement on Schedule
14A filed on May 1, 2006 (File No. 000-24230) and incorporated herein
by
reference herewith.
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(B)
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Incorporated
by reference to Appendix A to the Definitive Proxy Statement on Schedule
14A filed on May 1, 2006 (File No. 000-24230) and incorporated herein
by
reference herewith.
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(C)
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Incorporated
by reference to referenced Exhibit to Current Report on Form 8-K
filed
November 27, 2006.
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(D)
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Incorporated
by reference to Appendix B to the Definitive Proxy Statement on Schedule
14A filed on May 1, 2006 (File No. 000-24230) and incorporated herein
by
reference herewith.
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(E)
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Incorporated
by reference to Exhibit 99.1 to Registration Statement on
Form S-8 (Commission File No. 333-52042) filed on
December 18, 2000.
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(F)
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Incorporated
by reference to Exhibit 99.1 to Registration Statement on
Form S-8 (Commission File No. 333-68844) filed on
August 31, 2001.
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(G)
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Incorporated
by reference to Exhibit 99.1 to Registration Statement on
Form S-8 filed on November 27, 2006.
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(H)
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Incorporated
by reference to Exhibit 99.2 to Registration Statement on
Form S-8 (Commission File No. 333-122686) filed on February 10,
2005.
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(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 this Registration Statement (or the most recent post-effective amendment
hereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in this Registration Statement; and
(iii)
to
include any material information with respect to the plan of distribution not
previously disclosed in this Registration Statement or any material change
to
such information in this 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 this 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.
(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, 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 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, 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.
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 Post Effective Amendment No. 1
to be
signed on its behalf by the undersigned, thereunto duly authorized, in the
City
of Solon, State of Ohio, on the 27th
day of
November, 2006.
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FIBERSTARS, INC.
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By: |
/s/ JOHN
M.
DAVENPORT |
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John
M. Davenport
President
and Chief Executive Officer
(Principal
Executive Officer)
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KNOW
ALL MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints John M. Davenport and Robert A. Connors, and each
of
them, his true and lawful attorneys-in-fact and agents, each with full power
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 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, 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 his substitute or substitutes, may 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 date
indicated:
Name
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Title
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Date
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/s/
John M. Davenport
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Chief
Executive Officer and Director (Principal Executive
Officer)
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November
27, 2006
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John
M. Davenport
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/s/
Robert A. Connors
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Chief
Financial Officer (Principal Financial Officer and Principal Accounting
Officer)
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November
27, 2006
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Robert
A. Connors
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/s/
John B. Stuppin
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Chairman
of the Board
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November
27, 2006
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John
B. Stuppin
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/s/
Jeffrey Brite
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Director
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November
27, 2006
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Jeffrey
Brite
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/s/
Ronald A. Casentini
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Director
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November
27, 2006
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Ronald
A. Casentini
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/s/
Michael A. Kasper
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Director
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November
27, 2006
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Michael
A. Kasper
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/s/
David N. Ruckert
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Director
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November
27, 2006
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David
N. Ruckert
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/s/
Philip Wolfson
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Director
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November
27, 2006
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Philip
Wolfson
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Director
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November
, 2006
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Paul
von Paumgartten
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INDEX
TO EXHIBITS
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Exhibit No.
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Exhibit
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2.1(A)
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Agreement
and Plan of Merger between Fiberstars Inc., a California corporation,
and
Fiberstars, Inc., a Delaware corporation.
|
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3.1(B)
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Certificate
of Incorporation of Fiberstars, Inc., a Delaware
corporation
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3.2(C)
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Certificate
Of Designation Of Series A Participating Preferred Stock of Fiberstars,
Inc., a Delaware corporation: (Form 8-K, Exhibit 3.1)
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3.3(D)
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Bylaws
of Fiberstars, Inc., a Delaware corporation.
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4.1(C)
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Specimen
Common Stock Certificate of Fiberstars, Inc., a Delaware
corporation.
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4.2(C)
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Rights
Agreement between Fiberstars, Inc., a Delaware corporation and Mellon
Investor Services, LLC
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5.1
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Opinion
of Cowden, Humphrey, Nagorney & Lovett, Co., LPA as to the legality of
the Common Stock being registered.
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23.1
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Consent
of Independent Registered Public Accounting Firm.
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23.2
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Consent
of Cowden, Humphrey, Nagorney & Lovett, Co., LPA (included in Exhibit
5.1).
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24.1
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Power
of Attorney (contained on the signature page to this Registration
Statement).
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99.1(E)
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Fiberstars,
Inc. 1994 Stock Incentive Plan, amended as of May 24,
2000.
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99.2(F)
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1994
Director’s Stock Option Plan, amended s of May 23, 2001.
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99.3(G)
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2004 Stock
Incentive
Plan. |
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99.4(H)
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Form
of Stock Option Agreement under Fiberstars Inc. 2004 Stock Incentive
Plan.
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(A)
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Incorporated
by reference to Appendix C to the Definitive Proxy Statement on Schedule
14A filed on May 1, 2006 (File No. 000-24230) and incorporated herein
by
reference herewith.
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(B)
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Incorporated
by reference to Appendix A to the Definitive Proxy Statement on Schedule
14A filed on May 1, 2006 (File No. 000-24230) and incorporated herein
by
reference herewith.
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(C)
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Incorporated
by reference to referenced Exhibit to Current Report on Form 8-K
filed
November 27, 2006.
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(D)
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Incorporated
by reference to Appendix B to the Definitive Proxy Statement on Schedule
14A filed on May 1, 2006 (File No. 000-24230) and incorporated herein
by
reference herewith.
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(E)
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Incorporated
by reference to Exhibit 99.1 to Registration Statement on
Form S-8 (Commission File No. 333-52042) filed on
December 18, 2000.
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(F)
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Incorporated
by reference to Exhibit 99.1 to Registration Statement on
Form S-8 (Commission File No. 333-68844) filed on
August 31, 2001.
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(G)
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Incorporated
by reference to Exhibit 99.1 to Registration Statement on
Form S-8 filed on November 27,
2006.
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(H)
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Incorporated
by reference to Exhibit 99.2 to Registration Statement on
Form S-8 filed on November 27,
2006.
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