<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 11, 1996
REGISTRATION NO. 333-__________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
TRITEAL CORPORATION
(Exact name of Registrant as specified in its charter)
Delaware 33-0548924
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
2011 Palomar Airport Road
Carlsbad, California 92009
(619) 930-2077
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
1995 STOCK OPTION PLAN
1996 EMPLOYEE STOCK PURCHASE PLAN
NON-PLAN STOCK OPTIONS
(Full title of the plans)
Jeffrey D. Witous
Chairman of the Board, President
and Chief Executive Officer
TRITEAL CORPORATION
2011 Palomar Airport Road
Carlsbad, California 92009
(619) 930-2077
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
Frederick T. Muto, Esq.
COOLEY GODWARD LLP
4365 Executive Drive, Suite 1100
San Diego, CA 92121
(619) 550-6000
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=====================================================================================================================
Proposed Proposed
Maximum Maximum
Title of Securities Amount to Offering Price Aggregate Amount of
to be Registered be Registered Per Share(1) Offering Price(1) Registration Fee
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.001 par value 2,477,654 $0.001-13.75 $11,404,250.00 $4,896.36
=====================================================================================================================
</TABLE>
<PAGE> 2
(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457. The offering price per share and
aggregate offering price are based upon (i) the actual exercise price for shares
subject to outstanding stock options previously granted under the Registrant's
1995 Stock Option Plan; (ii) the actual price for shares subject to outstanding
stock options previously granted outside of the Registrant's 1995 Stock Option
Plan; and (iii) shares issuable under the Registrant's 1995 Stock Option Plan
and Employee Stock Purchase Plan calculated on the basis of the average of the
high and low sales price of Registrant's Common Stock on October 9, 1996 as
reported on the Nasdaq National Market System. The following chart shows the
calculation of the registration fee.
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------------
Aggregate
Type of Shares Number of Shares Offering Price Per Share Offering Price
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Common Stock issuable pursuant to 177,270 $0.25 $44,317.50
outstanding options under the 1995 Stock
Option Plan
- -------------------------------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant to 136,500 $0.50 $68,250.00
outstanding options under the 1995 Stock
Option Plan
- -------------------------------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant to 106,750 $2.50 $226,875.00
outstanding options under the 1995 Stock
Option Plan
- -------------------------------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant to 18,500 $3.50 $64,750.00
outstanding options under the 1995 Stock
Option Plan
- -------------------------------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant to 10,000 $5.00 $50,000.00
outstanding options under the 1995 Stock
Option Plan
- -------------------------------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant to 65,550 $6.00 $393,300.00
outstanding options under the 1995 Stock
Option Plan
- -------------------------------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant to 310,000 $0.001 $310.00
outstanding options granted outside the
1995 Stock Option Plan
- -------------------------------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant to 473,684 $0.25 $118,421.00
outstanding options granted outside the
1995 Stock Option Plan
- -------------------------------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant to 100,000 $3.50 $350,000.00
outstanding options granted outside the
1995 Stock Option Plan
- -------------------------------------------------------------------------------------------------------------------------------
Common Stock available for grant under 829,400 $13.75 $11,404,250.00
the 1995 Stock Option Plan
- -------------------------------------------------------------------------------------------------------------------------------
Common Stock issuable under the 1996 250,000 $13.75 $3,437,500.00
Employee Stock Purchase Plan
- -------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The prospectus contained in the Form SB-2 Registration Statement (No.
333-5052-LA) filed by TriTeal Corporation (the "Registrant") with the Securities
and Exchange Commission (the "Commission") on June 14, 1996, as amended through
the date hereof (the "Form SB-2"), is hereby incorporated by reference into this
Registration Statement. The Registrant has not filed, and has not been required
to file, an annual report pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), as of the date hereof. A
description of the Registrant's Common Stock which is contained in the Form
SB-2, including any amendment or reports filed for the purpose of updating such
description, is hereby incorporated by reference into this Registration
Statement. All documents filed by the Registrant with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
Registration Statement and 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 into this Registration Statement and to be a part hereof from the date
of filing of such documents. Any statement contained in a document 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
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
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 permits a
corporation to indemnify its directors, officers, employees and other agents in
terms sufficiently broad to permit indemnification (including reimbursement for
expenses) under certain circumstances for liabilities arising under the
Securities Act of 1933, as amended (the "Act"). The Registrant's Bylaws contain
provisions covering indemnification of corporation directors, officers and other
agents against certain liabilities and expenses incurred as a result of
proceedings involving such persons in their capacities as directors, officers,
employees or agents, including proceedings under the Act or the Securities
Exchange Act of 1934.
The Registrant's Bylaws provide for the indemnification of directors
and executive officers to the fullest extent not prohibited by the Delaware
General Corporation Law; provided that the registrant shall not be required to
indemnify any director or executive officer in connection with any proceeding
initiated by such person unless (i) such indemnification is expressly required
to be made by law, (ii) the proceeding was authorized by the Registrant's Board
of Directors, (iii) such indemnification is provided by the Registrant, in its
sole discretion, pursuant to the powers vested in the Registrant under Delaware
General Corporation Law or (iv) such indemnification is required to be made
pursuant to the Registrant's Bylaws. The Registrant's Bylaws also provide the
Registrant the power to indemnify its other officers, employees and agents as
set forth in the Delaware General Corporation Law.
The Registrant has entered into agreements with its directors and
executive officers that require the Registrant to indemnify such persons against
expenses, judgments, fines, settlements and other amounts actually and
reasonably incurred (including expenses of a derivative action) in connection
with any proceeding, whether actual
1.
<PAGE> 4
or threatened, to which any such person may be made a party by reason of the
fact that such person is or was a director or officer of the Registrant or any
of its affiliated enterprises, provided such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the Registrant and, with respect to any criminal proceeding, had no
reasonable cause to believe his or her conduct was unlawful. The indemnification
agreements also set forth certain procedures that will apply in the event of a
claim for indemnification thereunder.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit No. Description
<S> <C>
4.1 Registrant's Amended and Restated Certificate of Incorporation.(1)
4.2 Registrant's Bylaws.(1)
4.3 Specimen stock certificate.(2)
5.1 Opinion of Cooley Godward Castro Huddleson & Tatum.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Cooley Godward Castro Huddleson & Tatum. Reference
is made to Exhibit 5.1.
24.1 Power of Attorney. Reference is made to Page 4.
99.1 1995 Stock Option Plan.(1)
99.2 Form of Incentive Stock Option Agreement under the 1995 Stock Option Plan.(1)
99.3 Form of Nonstatutory Stock Option Agreement under the 1995 Stock Option Plan.(1)
99.4 Form of Nonstatutory Stock Option Agreement outside the 1995 Option Plan.(1)
99.5 Form of Non-Qualified Stock Option Agreement outside the 1995 Stock Option Plan.(1)
99.6 1996 Employee Stock Purchase Plan.(1)
99.7 Form of Employee Stock Purchase Plan Offering.(2)
</TABLE>
- -----------------------
(1) Filed as an exhibit to Registration Statement on Form SB-2 (No.
333-5052-LA) on June 14, 1996, and incorporated herein by reference.
(2) Filed as an exhibit to Amendment No. 2 to the Registration Statement on
Form SB-2 (No. 333-5052-LA) on July 17, 1996, and incorporated herein
by reference.
ITEM 9. UNDERTAKINGS.
(a) Rule 415 Offering.
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:
2.
<PAGE> 5
(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. 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) (Section 230.424(b) of this
chapter) 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 this 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 this Registration Statement is on Form S-3 or Form S-8 and 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 herein, 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) Filings Incorporating Subsequent Exchange Act Documents By Reference.
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
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the 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) Request for Acceleration of Effective Date or Filing of Registration
Statement on Form S-8.
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.
3.
<PAGE> 6
SIGNATURES
The Registrant. 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 Carlsbad, State of California, on October 10,
1996.
TRITEAL CORPORATION
By /s/ JEFFREY D. WITOUS
--------------------------------------
Jeffrey D. Witous
Chairman of the Board, President
and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Jeffrey D. Witous and Arthur S. Budman
and each of them, his true and lawful attorney-in-fact and agent, 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 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 attorney-in-fact and agent, or any of
them, or his substitutes or substitute, 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>
<S> <C> <C>
/s/ JEFFREY D. WITOUS Chairman of the Board, President October 10, 1996
- ---------------------------------- and Chief Executive Officer
Jeffrey D. Witous (Principal Executive Officer)
/s/ ARTHUR S. BUDMAN Chief Financial Officer and Director October 10, 1996
- ---------------------------------- (Principal Financial and Accounting Officer)
Arthur S. Budman
/s/ DR. TERRY A. STRAETER Director October 10, 1996
- ----------------------------------
Dr. Terry A. Straeter
/s/ GARY A. WETSEL Director October 10, 1996
- ----------------------------------
Gary A. Wetsel
</TABLE>
4.
<PAGE> 7
<TABLE>
<CAPTION>
EXHIBIT INDEX
SEQUENTIAL
EXHIBIT NO. DESCRIPTION PAGE NO.
<S> <C> <C>
4.1 Registrant's Amended and Restated Certificate of Incorporation. *
4.2 Registrant's Bylaws. *
4.3 Specimen stock certificate. **
5.1 Opinion of Cooley Godward Castro Huddleson & Tatum.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Cooley Godward Castro Huddleson & Tatum.
Reference is made to Exhibit 5.1.
24.1 Power of Attorney. Reference is made to Page 4.
99.1 1995 Stock Option Plan. *
99.2 Form of Incentive Stock Option Agreement under the 1995 Stock Option Plan. *
99.3 Form of Nonstatutory Stock Option Agreement under the 1995 Stock Option Plan. *
99.4 Form of Nonstatutory Stock Option Agreement outside the 1995 Option Plan. *
99.5 Form of Non-Qualified Stock Option Agreement outside the 1995 Stock Option Plan. *
99.6 1996 Employee Stock Purchase Plan. *
99.7 Form of Employee Stock Purchase Plan Offering. **
</TABLE>
* Filed as an exhibit to the Registration Statement on Form SB-2 (No.
333-5052-LA) on June 14, 1996, and incorporated herein by reference.
** Filed as an exhibit to Amendment No. 2 to the Registration Statement on
Form SB-2 (No. 333-5052-LA) on July 17, 1996, and incorporated herein by
reference.
<PAGE> 1
EXHIBIT 5.1
[COOLEY GODWARD LLP LETTERHEAD]
October 10, 1996
TriTeal Corporation
2011 Palomar Airport Road, Suite 200
Carlsbad, California 92009
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in
connection with the filing by TriTeal Corporation (the "Company") of a
Registration Statement on Form S-8 (the "Registration Statement") with the
Securities and Exchange Commission covering the offering of 2,477,654 shares
of the Company's Common Stock, $.001 par value (the "Shares"), including
514,570 shares issuable pursuant to outstanding options under the 1995 Stock
Option Plan (the "1995 Plan"), 829,400 additional shares available for grant
under the 1995 Plan, 883,684 shares issuable pursuant to outstanding stock
options (the "Non-Plan Options") issued outside the 1995 Plan and 250,000
additional shares issuable under the 1996 Employee Stock Purchase Plan
(the "1996 Plan").
In connection with this opinion, we have examined the Registration
Statement and related Prospectus, your Certificate of Incorporation, as amended,
and Bylaws, as amended, and such other documents, records, certificates,
memoranda and other instruments as we deem necessary as a basis for this
opinion. We have assumed the genuineness and authenticity of all documents
submitted to us as originals, the conformity to originals of all documents
submitted to us as copies thereof, and the due execution and delivery of all
documents where due execution and delivery are a prerequisite to the
effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the
opinion that the Shares, when sold and issued in accordance with the
Registration Statement and the 1995 Plan, the Non-Plan Options or the 1996
Plan, as the case may be, will be validly issued, fully paid and nonassessable.
We consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
COOLEY GODWARD LLP
/s/ FREDERICK T. MUTO
- --------------------------
Frederick T. Muto
<PAGE> 1
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the 1995 Stock Option Plan, 1996
Employee Stock Purchase Plan, and Non-Plan Stock Options of TriTeal
Corporation of our report dated June 13, 1996, with respect to the
consolidated financial statements of TriTeal Corporation included in
its Registration Statement (Form SB-2) filed with the Securities and
Exchange Commission.
ERNST & YOUNG LLP
San Diego, California
October 10, 1996
