-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, PZ1Vy8z571JBlfz5IffJ1ZnKhTT1o6NY4pozvkwc5il0IJkR0jhKG0Hoj9FB2diP AeLugb4UjX+hVd7RZTixGg== 0000950148-99-000130.txt : 19990128 0000950148-99-000130.hdr.sgml : 19990128 ACCESSION NUMBER: 0000950148-99-000130 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19990127 EFFECTIVENESS DATE: 19990127 FILER: COMPANY DATA: COMPANY CONFORMED NAME: TEKELEC CENTRAL INDEX KEY: 0000790705 STANDARD INDUSTRIAL CLASSIFICATION: RADIO & TV BROADCASTING & COMMUNICATIONS EQUIPMENT [3663] IRS NUMBER: 952746131 STATE OF INCORPORATION: CA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-71261 FILM NUMBER: 99514125 BUSINESS ADDRESS: STREET 1: 26580 W AGOURA RD CITY: CALABASAS STATE: CA ZIP: 91302 BUSINESS PHONE: 8188805656 MAIL ADDRESS: STREET 1: 26580 W AGOURA RD CITY: CALABASAS STATE: CA ZIP: 91302 S-8 1 FORM S-8 1 As filed with the Securities and Exchange Commission on January 27, 1999 Registration No. 333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 -------------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 -------------------------- TEKELEC (Exact name of registrant as specified in its charter) CALIFORNIA 95-2746131 State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 26580 WEST AGOURA ROAD CALABASAS, CALIFORNIA 91302 (Address of Principal Executive Offices) (Zip Code)
-------------------------- 1994 STOCK OPTION PLAN (Full title of the plan) -------------------------- RONALD W. BUCKLY, ESQ. VICE PRESIDENT AND GENERAL COUNSEL TEKELEC 26580 WEST AGOURA ROAD CALABASAS, CALIFORNIA 91302 (818) 880-5656 (Name, address and telephone number of agent for service) -------------------------- Copy to: KATHERINE F. ASHTON, ESQ. BRYAN CAVE LLP 120 BROADWAY, SUITE 300 SANTA MONICA, CALIFORNIA 90401 -------------------------- 2
=========================================================================================== CALCULATION OF REGISTRATION FEE =========================================================================================== Proposed Title of Amount Proposed Maximum Securities of Shares Maximum Aggregate Amount of to be to be Offering Price Offering Registration Registered Registered per Share Price Fee - ------------------------------------------------------------------------------------------- Common Stock, without par value 2,000,000(1) $19.625(2) $39,250,000(2) $10,912 - -------------------------------------------------------------------------------------------
(1) Represents shares of Common Stock ("Common Stock") of Tekelec (the "Company") issuable upon exercise of options granted or to be granted pursuant to the Company's 1994 Stock Option Plan. (2) Estimated pursuant to Rule 457(h) solely for the purpose of calculating the amount of the registration fee on the basis of the average of the high and low reported sale prices of a share of Tekelec Common Stock on January 22, 1999, as reported by The Nasdaq Stock Market in The Wall Street Journal. (i) 3 PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS The documents containing the information specified in Items 1 and 2 of Part I of Form S-8 will be sent or given to plan participants as specified in Rule 428(b)(1) and, in accordance with the instructions to Part I, are not filed with the Commission as part of this Registration Statement. PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents and information previously filed with the Securities and Exchange Commission are hereby incorporated by reference: Item 3(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended December 31, 1997. Item 3(b) The Registrant's Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31, 1998, June 30, 1998 and September 30, 1998. Item 3(c) Item 1 of the Registrant's Registration Statement on Form 8-A (Registration No. 0-15135) filed with the Commission on November 12, 1986, pursuant to Section 12 of the Securities Exchange Act of 1934. 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, 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 part hereof from the date of filing such documents. ITEM 4. DESCRIPTION OF SECURITIES. Not Applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. The validity of the shares of the Company's Common Stock registered hereunder will be passed upon for the Company by Bryan Cave LLP, Santa Monica, California. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Section 317 of the California Corporations Code provides that a corporation may indemnify corporate "agents" (including directors, officers and employees of the corporation) against expenses, judgments, fines, settlements and other amounts actually and reasonably incurred in connection with defending non-derivative actions if such person acted in good faith and in a manner such -1- 4 person reasonably believed to be in the best interests of the corporation and, in the case of a criminal proceeding, had no reasonable cause to believe the conduct of such person was unlawful, and against expenses actually and reasonably incurred in connection with defending derivative actions if such person acted in good faith and in a manner such person believed to be in the best interests of the corporation and its shareholders. Indemnification is obligatory to the extent that an agent of a corporation has been successful on the merits in defense of any such proceeding against such agent, but otherwise may be made only upon a determination in each instance either by a majority vote of a quorum of the Board of Directors (other than directors involved in such proceeding), by independent legal counsel if such a quorum of directors is not obtainable, by the shareholders (other than shareholders to be indemnified), or by the court, that indemnification is proper because the agent has met the applicable statutory standards of conduct. Corporations may also advance expenses incurred in defending proceedings against corporate agents, upon receipt of an undertaking that the agent will reimburse the corporation unless it is ultimately determined that the agent is entitled to be indemnified against expenses reasonably incurred. The indemnification provided by Section 317 of the California Corporations Code is not deemed to be exclusive of any other rights to which agents of the Company seeking indemnification may be entitled under any bylaw, agreement, vote of shareholders or disinterested directors, or otherwise, both as to action in an official capacity and as to action in another capacity while holding such office, to the extent such additional rights are authorized in the articles of the corporation. Article V of the Company's Restated Articles of Incorporation authorizes the Company to provide for indemnification of its agents for breach of duty to the Company and its shareholders, through bylaw provisions or through agreements with such agents, or both, in excess of the indemnification otherwise permitted by Section 317, subject to the limits on such excess indemnification set forth in Section 204 of the California General Corporation Law. Article VI of the Company's bylaws provides for the indemnification of all past and current directors to the maximum extent and in the manner permitted by Section 317. Additionally, the Company has entered into Indemnification Agreements with its directors under which the Company has undertaken to indemnify each such agent to the fullest extent permitted by its Articles of Incorporation, bylaws and applicable law against all expenses, liability and loss (which are not paid by insurance or otherwise by the Company) reasonably incurred or suffered by such agent in connection with the defense of any action or proceeding to which the agent was or is a party or is threatened to be made a party by reason of conduct in his capacity as an officer or director, or in which the agent is or may be involved by reason of the fact that he is or was serving as an officer or director of the Company, not including actions brought for violation of Section 16 of the Securities Exchange Act of 1934 or for failure to qualify for an exemption under Section 4 of the Securities Act of 1933. The Company also maintains on behalf of its directors and officers insurance protection against certain liabilities arising out of the discharge of their duties. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not Applicable. -2- 5 ITEM 8. EXHIBITS.
Exhibit Number - ------- 4.1 1994 Stock Option Plan, including forms of stock option agreements(1) and Amendments Nos. 1(1), 2(2), 3(3), 4(4), 5(4) and 6 thereto dated as of February 4, 1995, March 3, 1995, January 27, 1996, February 26, 1997, March 19, 1997 and March 20, 1998, respectively. 5.1 Opinion of Bryan Cave LLP. 23.1 Consent of PricewaterhouseCoopers LLP 23.2 Consent of Bryan Cave LLP (included in Exhibit 5.1). 24.1 Power of Attorney (see page 5 of this Registration Statement).
- ------------------- (1) Incorporated by reference to the Registrant's Registration Statement on Form S-8 (Registration No. 33-82124) filed with the Commission on July 28, 1994. (2) Incorporated by reference to the Registrant's Registration Statement on Form S-8 (Registration No. 33-60611) filed with the Commission on June 27, 1995. (3) Incorporated by reference to the Registrant's Registration Statement on Form S-8 (Registration No. 333-05933) filed with the Commission on June 13, 1996. (4) Incorporated by reference to the Registrant's Registration Statement on Form S-8 (Registration No. 333-28887) filed with the Commission on June 10, 1997. 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 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; (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 Securities Exchange Act of 1934 that are incorporated by reference in the registration statement. -3- 6 (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) 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 Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 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 of 1933 and will be governed by the final adjudication of such issue. -4- 7 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 CALABASAS, STATE OF CALIFORNIA, ON JANUARY 27, 1999. TEKELEC By: /s/ MICHAEL L. MARGOLIS ------------------------------------ Michael L. Margolis, Chief Executive Officer and President POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Michael L. Margolis and Gilles C. Godin, or either of them, his attorneys-in-fact and agents, each with full power of substitution for him and in his name, place and stead, in any and all capacities, to sign any or all 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 each of said attorneys-in-fact and agents full power and authority to do so and perform each and every act and thing requisite and necessary to be done in connection with this Registration Statement, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that either of said attorneys-in-fact and agents, 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.
Signature Title Date --------- ----- ---- MICHAEL L. MARGOLIS Director, Chief Executive Officer - ------------------------------ and President (Principal Executive January 27, 1999 Michael L. Margolis Officer) GILLES C. GODIN Vice President, Finance and Chief - ------------------------------ Financial Officer (Principal Gilles C. Godin Financial and Accounting Officer) January 27, 1999 JEAN-CLAUDE ASSCHER Chairman of the Board January 27, 1999 - ------------------------------ Jean-Claude Asscher ROBERT V. ADAMS Director January 27, 1999 - ------------------------------ Robert V. Adams DANIEL L. BRENNER Director January 27, 1999 - ------------------------------ Daniel L. Brenner HOWARD ORINGER Director January 27, 1999 - ------------------------------ Howard Oringer JON F. RAGER Director January 27, 1999 - ------------------------------ Jon F. Rager
-5- 8 INDEX TO EXHIBITS
Sequentially Exhibit Numbered Number Exhibit Page - ------- ------- ------------ 4.1 Amendment No. 6 to 1994 Stock Option Plan dated as of March 20, 1998 5.1 Opinion of Bryan Cave LLP 23.1 Consent of PricewaterhouseCoopers LLP
EX-4.1 2 EXHIBIT 4.1 1 EXHIBIT 4.1 AMENDMENT NO. 6 TO TEKELEC 1994 STOCK OPTION PLAN* Section 3 of the Tekelec 1994 Stock Option Plan is hereby amended to read in its entirety as follows: "3. SHARES RESERVED. The maximum aggregate number of Shares reserved for issuance pursuant to the Plan shall be Fourteen Million (14,000,000) Shares or the number of shares of stock to which such Shares shall be adjusted as provided in Section 10 of the Plan. Such number of Shares may be set aside out of authorized but unissued Shares not reserved for any other purpose, or out of issued Shares acquired for and held in the treasury of the Company from time to time. Shares subject to, but not sold or issued under, any Option terminating, expiring or canceled for any reason prior to its exercise in full, shall again become available for Options thereafter granted under the Plan, and the same shall not be deemed an increase in the number of Shares reserved for issuance under the Plan." Dated: March 20, 1998 - --------------------- * The number of shares set forth herein has been adjusted to reflect Tekelec's two-for-one stock split effective June 19, 1998. EX-5.1 3 EXHIBIT 5.1 1 EXHIBIT 5.1 Bryan Cave LLP 120 Broadway, Suite 500 Santa Monica, CA 90401-2305 Telephone: (310) 576-2100 Facsimile: (310) 576-2200 January 27, 1999 Tekelec 26580 West Agoura Road Calabasas, California 91302 Re: Tekelec - Registration Statement on Form S-8 Ladies and Gentlemen: We have acted as securities counsel for Tekelec, a California corporation (the "Company"), in connection with the preparation of a registration statement on Form S-8 (the "Registration Statement") under the Securities Act of 1933 to be filed with the Securities and Exchange Commission (the "Commission") on January 27, 1999, in connection with the registration of 2,000,000 shares of Common Stock, without par value (collectively, the "Shares"), of the Company issuable upon exercise of options granted or to be granted pursuant to the Company's 1994 Stock Option Plan (such 1994 Stock Option Plan is referred to herein as the "Plan"). In connection with the preparation of the Registration Statement and the proposed issuance and sale of the Shares in accordance with the Plan and the Form S-8 prospectus to be delivered to participants in the Plan, we have made certain legal and factual examinations and inquiries and examined, among other things, such documents, records, instruments, agreements, certificates and matters as we have considered appropriate and necessary for the rendering of this opinion. We have assumed for the purpose of this opinion the authenticity of all documents submitted to us as originals and the conformity with the originals of all documents submitted to us as copies, and the genuineness of the signatures thereon. As to various questions of fact material to this opinion, we have, when relevant facts were not independently established, relied, to the extent deemed proper by us, upon certificates and statements of officers and representatives of the Company. Based on the foregoing and in reliance thereon, it is our opinion that the Shares have been duly authorized and, after the Registration Statement becomes effective and after any post-effective amendment required by law is duly completed, filed and becomes effective, and when the applicable provisions of "Blue Sky" and other state securities laws shall have been complied with, and when the Shares are issued and sold in accordance with the Plan and the Form S-8 prospectus to be delivered to participants in the Plan, the Shares will be validly issued, fully paid and nonassessable. 2 We hereby consent to the inclusion of our opinion as Exhibit 5.1 to the Registration Statement and further consent to the reference to this firm in the Registration Statement. In giving this consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act of 1933 or the rules and regulations of the Commission thereunder. This opinion is rendered solely for your benefit in accordance with the subject transaction and is not to be otherwise used, circulated, quoted or referred to without our prior written consent. We are opining herein as to the effect on the subject transaction only of United States federal law and the internal (and not the conflict of law) laws of the State of California, and we assume no responsibility as to the applicability thereto, or the effect thereon, of the laws of any other jurisdiction. Very truly yours, BRYAN CAVE LLP BRYAN CAVE LLP EX-23.1 4 EXHIBIT 23.1 1 EXHIBIT 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS We consent to the incorporation by reference in this registration statement of Tekelec on Form S-8 of our report dated February 5, 1998, on our audits of the consolidated financial statements and consolidated financial statement schedule of Tekelec as of December 31, 1997 and 1996 and for each of the three years in the period ended December 31, 1997. PricewaterhouseCoopers LLP Woodland Hills, California January 25, 1999 -----END PRIVACY-ENHANCED MESSAGE-----