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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 18, 1998
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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TOLLGRADE COMMUNICATIONS, INC.
(Exact name of registrant as specified in its charter)
PENNSYLVANIA 25-1537134
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
493 NIXON ROAD
CHESWICK, PENNSYLVANIA 15024
724-274-2156
(Address, including ZIP Code, and telephone number, including area code, of
registrant's principal executive offices)
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1998 EMPLOYEE INCENTIVE COMPENSATION PLAN
CHRISTIAN L. ALLISON
CHIEF EXECUTIVE OFFICER
TOLLGRADE COMMUNICATIONS, INC.
493 NIXON ROAD
CHESWICK, PENNSYLVANIA 15024
724-274-2156
(Name, address, including ZIP Code, and telephone number,
including area code, of agent for service)
Copy to:
PASQUALE D. GENTILE, JR., ESQ.
REED SMITH SHAW & MCCLAY LLP
435 SIXTH AVENUE
PITTSBURGH, PA 15219
412-288-4112
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===========================================================================================================================
Proposed Proposed Amount of
Securities to be Amount to be Maximum Offering Maximum Aggregate Registration
Registered Registered Price per share Offering Price Fee
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<S> <C> <C> <C> <C>
Common Stock, 86,000 $19.625 $ 1,687,750 $ 498
$.20 par value 5,000 21.375 106,875 32
509,000 23.375* 11,897,875 3,510
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600,000 $13,692,500 $4,040
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</TABLE>
*Estimated solely for the purposes of calculating the amount of the
registration fee. Pursuant to Rules 457(h) and (c), the proposed maximum
aggregate offering price for shares subject to stock options outstanding is
based on the actual option price and for shares which may be issued but are not
subject to outstanding stock options is based on the average of the high and low
sales prices of the Common Stock as reported by the NASDAQ National Market
Issues listing for May 12, 1998 as quoted in The Wall Street Journal.
Page 1 of 10. Exhibit Index appears on page 8.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Tollgrade Communications, Inc. (the
"Company") with the Securities and Exchange Commission (File No. 0-27312) are
hereby incorporated herein by reference:
(a) The description of the Company's Common Stock set forth in the
Company's Registration Statement on Form 8-A, filed November 30, 1995;
(b) The Company's latest annual report on Form 10-K for the year ended
December 31, 1997; and
(c) All of the reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (the "1934 Act") since the end of the
Company's year ended December 31, 1997.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the 1934 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 such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes hereof to the extent that a statement contained herein or in any
other subsequently filed incorporated document modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to exist or constitute a part hereof.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Pennsylvania Business Corporation Law of 1988. Section 1741 of the
Pennsylvania Business Corporation Law of 1988 (the "BCL") provides that unless
otherwise restricted in its bylaws, a business corporation shall (subject to the
limitations described below) have the power to indemnify any person who was or
is a party, or is threatened to be made a party, to any threatened, pending or
completed action or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation), by
reason of the fact that such person is or was a director, officer, employee or
agent of the corporation or is or was serving at the request of the corporation
as a director, officer, employee or agent of another domestic or foreign
corporation for profit or not-for-profit, 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 or proceeding, if such person acted in good faith
and in a manner he reasonably believed to be in, or not opposed to, the best
interests of the corporation, and, with respect to any criminal proceeding, had
no reasonable cause to believe his conduct was unlawful. The termination of any
action or proceeding by judgment, order, settlement or conviction or upon a plea
of nolo contendere or its equivalent shall not, of itself, create a presumption
that such person did not act in good faith and in a manner which he reasonably
believed to be in, or not opposed to, the best interests of the corporation and,
with respect to any criminal proceeding, had reasonable cause to believe that
his conduct was unlawful.
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Section 1742 of the BCL provides that unless otherwise restricted in
its bylaws, a corporation shall (subject to the limitations described below)
have the power to indemnify any person who was or is a party, or is threatened
to be made a party, to any threatened, pending or completed action by or in the
right of the corporation to procure a judgment in its favor by reason of the
fact that such person is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another domestic or foreign corporation
for profit or not-for-profit, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees) actually and reasonably
incurred by such person in connection with the defense or settlement of such
action if such person acted in good faith and in a manner he reasonably believed
to be in, or not opposed to, the best interests of the corporation.
Indemnification shall not be made under Section 1742 in respect of any claim,
issue or matter as to which such person shall have been adjudged to be liable to
the corporation unless, and only to the extent that, the court of common pleas
of the judicial district embracing the county in which the registered office of
the corporation is located or the court in which such action was brought
determines upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the court of common pleas or such
other court shall deem proper.
Section 1744 of the BCL provides that unless ordered by a court, any
indemnification under Section 1741 or 1742 shall be made by the business
corporation only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in the
circumstances because the indemnitee has met the applicable standard of conduct
set forth in the relevant section. Such determination shall be made:
(1) By the board of directors of the corporation by a majority vote of
a quorum consisting of directors who were not parties to the action or
proceeding; or
(2) If such a quorum is not obtainable, or, if obtainable and a
majority vote of a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion; or
(3) By the shareholders.
Notwithstanding the above, Section 1743 of the BCL provides that, to
the extent that a director, officer, employee or agent of a business corporation
has been successful on the merits or otherwise in defense of any action or
proceeding referred to above, or in defense of any claim, issue or matter
therein, such person shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred by such person in connection therewith.
Section 1745 of the BCL provides that expenses (including attorneys'
fees) incurred in defending any action or proceeding may be paid by a business
corporation in advance of the final disposition of the action or proceeding upon
receipt of an undertaking by or on behalf of the director, officer, employee or
agent to repay such amount if it is ultimately determined that such person is
not entitled to be indemnified by the corporation.
Section 1746 of the BCL provides that the indemnification and
advancement of expenses provided by or granted pursuant to the subchapter on
indemnification shall not be deemed exclusive of any other rights to which a
person seeking indemnification or advancement of expenses may be entitled under
any bylaw, agreement, vote of shareholders or disinterested directors or
otherwise, both as to action in such person's official capacity and as to action
in another capacity while holding such office. Section 1746 also provides that
indemnification may not be made in any case where the act or failure to act
giving rise to the claim for indemnification is determined by a court to have
constituted willful misconduct or recklessness. The articles of incorporation
may not provide for indemnification in the case of willful misconduct or
recklessness.
Section 1747 of the BCL provides that, unless otherwise restricted in
its bylaws, a business corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another domestic or foreign
corporation for profit or not-for-profit, partnership, joint venture, trust or
other enterprise, against any liability asserted against such person and
incurred by him in any such capacity, or arising out of his status as such,
whether or not the corporation would have the power to indemnify the
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director, officer, employee or agent against such liability under the provisions
of the subchapter governing indemnification. Section 1747 declares such
insurance to be consistent with the public policy of the Commonwealth of
Pennsylvania.
Section 1750 of the BCL provides that the indemnification and
advancement of expenses provided by, or granted pursuant to, the subchapter
governing indemnification shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be a director, officer,
employee or agent of the corporation and shall inure to the benefit of the heirs
and personal representatives of such director, officer, employee or agent.
The Company's Bylaws. Section 7.01 of Article VII of the Bylaws of the
Company provides that the Company shall indemnify an indemnified representative
against any liability incurred in connection with any proceeding in which the
indemnified representative may be involved as a party or otherwise by reason of
the fact that such person is or was serving in an indemnified capacity,
including, without limitation, liabilities resulting from any actual or alleged
breach or neglect of duty, error, misstatement or misleading statement,
negligence, gross negligence or act giving rise to strict or products liability.
The Bylaws define an "indemnified representative" as "any and all directors and
officers of the corporation and any other person designated as an indemnified
representative by the board of directors of the corporation (which may, but need
not, include any person serving at the request of the corporation, as a
director, officer, employee, agent, fiduciary or trustee of another corporation,
partnership, joint venture, trust, employee benefit plan or other entity or
enterprise)."
Section 7.01 further provides that the Company will not provide
indemnification (1) where such indemnification is expressly prohibited by
applicable law; (2) where the conduct of the indemnified representative has been
finally determined pursuant to Section 7.06 (providing for arbitration) or
otherwise (i) to constitute willful misconduct or recklessness within the
meaning of 15 Pa.C.S. Section 1713 or any superseding provision of law
sufficient in the circumstances to bar indemnification against liabilities
arising from the conduct or (ii) to be based upon or attributable to the receipt
by the indemnified representative from the Company of a personal benefit to
which the indemnified representative is not legally entitled; or (3) to the
extent such indemnification has been finally determined in a final adjudication
pursuant to Section 7.06 to be otherwise unlawful.
The Company maintains directors' and officers' liability insurance
covering its directors and officers with respect to liabilities, including
liabilities under the Securities Act of 1933, which they may incur in connection
with their serving in such capacity.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
An Exhibit Index, containing a list of all exhibits filed herewith, is
included on 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
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.
(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
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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
1934 Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the 1934 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 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 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 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 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 Borough of Cheswick, Commonwealth of Pennsylvania, on April
30, 1998.
TOLLGRADE COMMUNICATIONS, INC.
By /s/ CHRISTIAN L. ALLISON
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Christian L. Allison
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 April 30, 1998.
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears
below constitutes and appoints Christian L. Allison and Sara M. Antol, and each
of them, his true and lawful attorneys-in-fact and agents, with full power of
substitution and revocation, 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, 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 any of them, or their substitutes,
may lawfully do or cause to be done by virtue hereof.
<TABLE>
<CAPTION>
SIGNATURE TITLE
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<S> <C>
/s/ CHRISTIAN L. ALLISON Director, Chairman of the Board,
- -------------------------------------------- Chief Executive Officer (Principal
Christian L. Allison Executive Officer)
/s/ JAMES J. BARNES Director
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James J. Barnes
/s/ DANIEL P. BARRY Director
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Daniel P. Barry
/s/ ROCCO L. FLAMINIO Director,Vice Chairman
- -------------------------------------------- and Chief Technology Officer
Rocco L. Flaminio
/s/ RICHARD M. HEIBEL, M.D. Director
- --------------------------------------------
Richard M. Heibel, M.D.
</TABLE>
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<TABLE>
<CAPTION>
SIGNATURE TITLE
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<S> <C>
/s/ ROBERT W. KAMPMEINERT Director
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Robert W. Kampmeinert
/s/ SAMUEL C. KNOCH Chief Financial Officer and Treasurer
- -------------------------------------------- (Principal Financial Officer)
Samuel C. Knoch
/s/ BRADLEY N. DINGER Controller
- -------------------------------------------- (Principal Accounting Officer)
Bradley N. Dinger
</TABLE>
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EXHIBIT INDEX
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(Pursuant to Item 601 of Regulation S-K)
<TABLE>
<CAPTION>
Exhibit Sequential
No. Description and Method of Filing Page
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<S> <C> <C>
4.1 Amended and Restated Articles of Incorporation of the Company,
as amended, incorporated herein by reference to Exhibit 3.1 to the
Company's S-1. *
5.1 Opinion of Reed Smith Shaw & McClay LLP regarding legality
of shares of the Company's Common Stock being registered. 9
23.1 Consent of Reed Smith Shaw & McClay LLP (contained in the opinion
filed as Exhibit 5.1 hereto).
23.2 Consent of Coopers & Lybrand L.L.P., independent certified accountants. 10
24.1 Powers of Attorney (filed herewith as part of the signature pages).
</TABLE>
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*Incorporated by reference.
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Exhibit 5.1
May 15, 1998
Tollgrade Communications, Inc.
493 Nixon Road
Cheswick, PA 15024
Re: Registration Statement on Form S-8 for Tollgrade Communications,
Inc. 1998 Employee Incentive Compensation Plan
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Gentlemen:
We have acted as counsel to Tollgrade Communications, Inc., a
Pennsylvania corporation (the "Company"), in connection with the above-captioned
Registration Statement (the "Registration Statement") relating to 600,000 shares
of Common Stock, par value $.20 per share, of the Company (the "Common Stock")
which may be purchased by certain employees of the Company pursuant to stock
options granted under the 1998 Employee Incentive Compensation Plan (the
"Plan"). The Plan provides that either authorized but unissued or treasury
shares of Common Stock may be issued upon the exercise of stock options granted
under the Plan. In rendering our opinion below, we have assumed that any
previously issued shares reacquired by the Company and delivered under the
Options will have been duly authorized, validly issued and fully paid at the
time of their original issuance.
In connection with this opinion, we have examined, among other
things:
(1) the Articles of Incorporation of the Company, as amended
to date;
(2) actions taken by the Board of Directors of the Company on
January 29, 1998 and April 10, 1998, adopting and amending the Plan,
authorizing the issuance of up to 600,000 shares of Common Stock
thereunder and reserving 600,000 shares of Common Stock for such
purpose; and
(3) the Plan as currently in effect.
Based upon the foregoing and upon an examination of such other
documents, corporate proceedings, statutes, decisions and questions of law as we
considered necessary in order to enable us to furnish this opinion, and subject
to the assumption set forth above, we are pleased to advise you that in our
opinion the 600,000 shares of Common Stock being registered and which may be
issued by the Company pursuant to the provisions of the Plan have been duly
authorized, and upon such issuance such shares will, when sold, be validly
issued, fully paid and nonassessable.
In rendering the foregoing opinion, we have not examined the
laws of any jurisdiction other than the laws of the Commonwealth of Pennsylvania
and the federal laws of the United States of America and the foregoing opinion
is limited to such laws.
We hereby consent to the filing of this opinion as an Exhibit
to the Registration Statement and to the use of our name in the Prospectus under
the caption "Legal Opinion."
Yours truly,
REED SMITH SHAW & McCLAY LLP
PDG:JGA
<PAGE> 1
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
Tollgrade Communications, Inc. and subsidiaries on Form S-8 of our report dated
January 27, 1998, on our audits of the consolidated financial statements and
financial statement schedule of Tollgrade Communications, Inc. and subsidiaries
as of December 31, 1997 and 1996, and for each of the three years in the period
ended December 31, 1997, which report is incorporated by reference in the
Annual Report to Shareholders on Form 10-K.
Coopers & Lybrand L.L.P.
Pittsburgh, Pennsylvania
May 13, 1998
