SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
Form S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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LARSCOM INCORPORATED
(Exact name of issuer as specified in its charter)
Delaware 94-2362692
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
4600 Patrick Henry Drive
Santa Clara, CA 95054
(408) 988-6600
(Address of Principal Executive Offices)
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Larscom Incorporated Stock Option Plan For Non-Employee Directors
Larscom Incorporated Stock Incentive Plan
Larscom Incorporated Employee Stock Purchase Plan
(Full title of the plans)
----------------
Deborah M. Soon
Chief Executive Officer
Larscom Incorporated
4600 Patrick Henry Drive
Santa Clara, CA 95054
(408) 988-6600
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
----------------
Copy to:
W. Leslie Duffy, Esq.
Cahill Gordon & Reindel
80 Pine Street
New York, New York 10005
----------------
Approximate date of proposed sale to public:
From time to time after the
effective date of this
Registration Statement.
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CALCULATION OF REGISTRATION FEE
===============================================================================
Proposed Proposed
Maximum Maximum
Offering Aggregate
Title of Securities Amount to be Price Per Offering Amount of
to be Registered Registered Share Price Registration Fee
- -------------------------------------------------------------------------------
Class A Common Stock, $10,910
par value $.01 per
share
Larscom Incorporated 205,000 $12(1) $ 2,460,000(1)
Stock Option Plan For
Non-Employee Directors
Larscom Incorporated
Stock Incentive Plan 2,485,000 $12(1) $29,820,000(1)
Larscom Incorporated
Employee Stock Purchase
Plan 310,000 $12(1) $ 3,720,000(1)
===============================================================================
(1) Estimated solely for the purpose of calculating the registration fee,
computed pursuant to Rules 457 (h) under the Securities Act of 1933, as
amended, based on the initial public offering price for the Class A Common
Stock on December 18, 1996.
<PAGE>
PART I.
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. Plan Information.*
ITEM 2. Registrant Information and Employee Plan Annual Information.*
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with
Rule 428 under the Securities Act of 1933, as amended (the "Securities
Act") and the Note to Part I of Form S-8.
PART II.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents have been filed by Larscom Incorporated (the
"Company") with the Securities and Exchange Commission (the "Commission") and
are hereby incorporated by reference in this Registration Statement:
(a) The Company's Registration Statement on Form S-1 (File No. 333-
14001) (the "Form S-1"); and
(b) The description of the Company's Class A Common Stock, $.01 par
value per share, contained in the Company's Form S-1 filed as an Exhibit to
the Company's Registration Statement on Form 8-A filed under the Securities
and Exchange Act of 1934, as amended (the "Exchange Act"), on October 15,
1996 and incorporated by reference herein.
All documents subsequently filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act") prior to the filing of a post-effective
amendment which indicates that all securities offered 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. 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 of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
<PAGE>
ITEM 4. DESCRIPTION OF SECURITIES.
The class of securities offered hereby is registered under Section 12
of the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware
("Section 145") empowers a corporation 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, suit 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 another corporation or enterprise. Depending on the character of the
proceeding, a corporation may indemnify against expenses (including attorneys'
fees), judgments, fines and/or amounts paid in settlement actually and
reasonably incurred in connection with such action, suit or proceeding if the
person indemnified acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interests of the corporation, and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe such person's conduct was unlawful. In the case of an action by or in
the right of the corporation, no indemnification may be made with respect to any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only the extent that the Court of Chancery
or the court in which such action or suit was brought shall determine that
despite the adjudication of liability such person is fairly and reasonably
entitled to indemnity for such expenses which the court shall deem proper.
Section 145 further provides that to the extent a director, officer, employee or
agent of a corporation has been successful in the defense of any action, or 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 145 also states that the indemnification
provided for in such Section shall not be deemed exclusive of any other rights
to which the indemnified party may be entitled and empowers the corporation to
purchase and maintain insurance on behalf of directors, officers, employees and
agents of the corporation against any liability asserted against such person or
incurred by such person in any such capacity or arising out of such person's
status as such whether or not the corporation would have the power to indemnify
such person against such liabilities under Section 145.
In addition, directors and officers of the Registrant are entitled to
indemnification as provided in Article VI of its Bylaws. Such Article VI
provides as follows:
Section 6.1 Action, Other Than by or in the Right of the Corporation.
The Corporation shall indemnify any person who was or is a party or is
threatened to be made a party
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to any threatened, pending or completed action, suit or proceeding or
investigation, whether civil, criminal or administrative, and whether external
or internal to the Corporation (other than a judicial action or suit brought by
or in the right of the Corporation) by reason of the fact that he or she is or
was a director or officer of the Corporation, or that, being or having been such
a director or officer, he or she is or was serving at the request of the
Corporation as a director or officer of another corporation, partnership, joint
venture, trust or other enterprise (all such persons being referred to hereafter
as an "Agent"), against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him or her in
connection with such action, suit or proceeding, or any appeal thereof, if he or
she acted in good faith and in a manner he or she reasonably believed to be in
or not opposed to the best interests of the Corporation, and with respect to any
criminal action or proceeding, had no reasonable cause to believe his or her
conduct was unlawful. The termination of any action, suit or proceeding whether
by judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he or she reasonably believed to be
in or not opposed to the best interests of the Corporation, and, with respect to
any criminal action or proceeding, that he or she had reasonable cause to
believe that his or her conduct was unlawful. This Article may, at the
Corporation's option, apply to other agents and employees of the Corporation.
Section 6.2 Action, By or In the Right of the Corporation. The
Corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed judicial action or suit
brought by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he or she is or was an Agent (as defined above)
against expenses (including attorneys' fees) actually and reasonably incurred by
him or her in connection with the defense, settlement or appeal of such action
or suit if he or she acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the Corporation,
except that no indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable for gross
negligence or misconduct in the performance of his or her duty to the
Corporation unless and only to the extent that the Court of Chancery or the
court in which such action or suit was brought shall determine 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 Chancery or other such court shall deem proper.
Section 6.3 Determination of Right of Indemnification. No
indemnification under Section 6.1 or 6.2 of this Article VI (unless ordered by a
court) shall be made by the Corporation if a determination is reasonably and
promptly made (i) by the Board of Directors by a majority vote consisting of
directors who were not parties to such action, suit or proceedings, even though
less than a quorum, or (ii) if there are no such directors or if such directors
so direct, by independent legal counsel in a written opinion, or (iii) by the
stockholders, that such person did not act in good faith and in a manner that
such person reasonably believed to be in or not opposed to the best interests of
the Corporation, or, with respect to any criminal proceeding,
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that such person believed or had reasonable cause to believe that his or her
conduct was unlawful.
Section 6.4 Indemnification Against Expenses of Successful Party.
Notwithstanding the other provisions of this Article, to the extent that an
Agent has been successful on the merits or otherwise, including the dismissal of
an action without prejudice or the settlement of an action without admission of
liability, in defense of any action, suit or proceeding or in defense of any
claim, issue or matter therein, or on appeal from any such proceeding, action,
claim or matter, such Agent shall be indemnified against all expenses actually
and reasonably incurred in connection therewith.
Section 6.5 Advances of Expenses. Except as limited by Section 6.6 of
this Article, expenses incurred in defending any civil, criminal, administrative
or investigative action, suit or proceeding or investigation or any appeal
therein shall be paid by the Corporation in advance of the final disposition of
such matter, if the Agent shall undertake to repay such amount in the event that
it is ultimately determined, as provided herein, that such person is not
entitled to indemnification. Notwithstanding the foregoing, no advance shall be
made by the Corporation if a determination is reasonably and promptly made by
the Board of Directors by a majority vote of disinterested directors, or (if
there are no such directors or such directors so direct) by independent legal
counsel in a written opinion that, based upon the facts known to the Board or
counsel at the time such determination is made, such person did not act in good
faith and in a manner that such person believed to be in or not opposed to the
best interests of the Corporation or, with respect to any criminal proceeding,
that such person believed or had reasonable cause to believe his or her conduct
was unlawful. In no event shall any advance be made in instances where the Board
of Directors or independent legal counsel reasonably determines that such person
deliberately breached his or her duty to the Corporation or its stockholders.
Section 6.6 Right of Agent to Indemnification Upon Application;
Procedure Upon Application. Any indemnification under Sections 6.1, 6.2, and
6.4, or advance under Section 6.5 of this Article shall be made promptly, and in
any event within ninety days, upon the written request of the Agent, unless with
respect to applications under Section 6.1, 6.2, or 6.5, a determination is
reasonably and promptly made by the Board of Directors by a majority vote of
disinterested directors that such Agent acted in a manner set forth in such
Sections as to justify the Corporation's not indemnifying or making an advance
to the Agent. In the event there are no such disinterested directors, the Board
of Directors shall promptly direct that independent legal counsel shall decide
whether the Agent acted in the manner set forth in such Sections as to justify
the Corporation's not indemnifying or making an advance to the Agent. The right
to indemnification or advances as granted by this Article shall be enforceable
by the Agent in any court of competent jurisdiction, if the Board or independent
legal counsel denies the claim, in whole or in part, or if no disposition of
such claim is made within ninety days. The Agent's expenses incurred in
connection with successfully establishing his or her right to indemnification,
in whole or in part, in any such proceeding shall also be indemnified by the
Corporation.
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Section 6.7 Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnification provided for in this
Article is held by a court of competent jurisdiction to be unavailable to an
indemnitee in whole or part, the Corporation shall, in such an event, after
taking into account, among other things, contributions by other directors and
officers of the Corporation pursuant to indemnification agreements or otherwise,
and in the absence of personal enrichment, acts of intentional fraud or
dishonesty or criminal conduct on the part of the Agent, contribute to the
payment of Agent's losses to the extent that, after other contributions are
taken into account, such losses exceed: (i) in the case of a director of the
Corporation or any of its subsidiaries who is not an officer of the Corporation
or any of such subsidiaries, the amount of fees paid to him or her for serving
as a director during the 12 months preceding the commencement of the suit,
proceeding or investigation; or (ii) in the case of a director of the
Corporation or any of its subsidiaries who is also an officer of the Corporation
or any of such subsidiaries, the amount set forth in clause (i) plus 5% of the
aggregate cash compensation paid to said director for such office(s) during the
12 months preceding the commencement of the suit, proceeding or investigation;
or (iii) in the case of an officer of the Corporation or any of its
subsidiaries, 5% of the aggregate cash compensation paid to such officer for
service in such office(s) during the 12 months preceding the commencement of
such suit, proceeding or investigation.
Section 6.8 Other Rights and Remedies. The indemnification provided by
this Article shall not be deemed exclusive of, and shall not affect, any other
rights to which an Agent seeking indemnification may be entitled under any
bylaws, agreement, vote of stockholders or disinterested directors or otherwise,
both as to action in his or her official capacity and as to action in another
capacity while holding such office, and shall continue as to a person who has
ceased to be an Agent and shall inure to the benefit of the heirs, executors and
administrators of such a person. All rights to indemnification under this
Article shall be deemed to be provided by a contract between the Corporation and
the agent who serves in such capacity at any time while these bylaws and other
relevant provisions of the General Corporation Law and other applicable law, if
any, are in effect. Any repeal or modification thereof shall not affect any
rights or obligations then existing.
Section 6.9 Insurance. Upon resolution passed by the Board, the
Corporation may purchase and maintain insurance on behalf of any person who is
or was an Agent against any liability asserted against him or her and incurred
by him or her in such capacity, or arising out of his or her status as such,
whether or not the Corporation would have the power to indemnify him or her
against such liability under the provisions of this Article. The Corporation may
create a trust fund, grant a security interest or use other means (including,
without limitation, a letter of credit) to ensure the payment of such sums as
may become necessary to effect indemnification as provided herein.
Section 6.10 Constituent Corporations. For the purposes of this
Article, references to "the Corporation" include all constituent corporations
absorbed in a consolidation or merger as well as the resulting or surviving
corporation, so that any person who is or was a
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director or officer of such a constituent corporation or who, being or having
been such a director or officer, is or was serving at the request of such
constituent corporation as a director or officer shall stand in the same
position under the provisions of this Article with respect to the resulting or
surviving corporation as he or she would if he or she had served the resulting
or surviving corporation in the same capacity.
Section 6.11 Other Enterprises, Fines, and Serving at the
Corporation's Request. For purposes of this Article, references to "other
enterprises" in Sections 6.1 and 6.7 shall include employee benefit plans;
references to "fines" shall include any excise taxes assessed on a person with
respect to any employee benefit plan; and references to "serving at the request
of the Corporation" shall include any service by Agent as a director or officer
of the Corporation which imposes duties on, or involves services by, such Agent
with respect to any employee benefit plan, its participants, or beneficiaries;
and a person who acted in good faith and in a manner he or she reasonably
believed to be in the interests of the participants and beneficiaries of an
employee benefit plan shall be deemed to have acted in a manner "not opposed to
the best interests of the Corporation" as referred to in this Article.
Section 6.12 Savings Clause. If this Article or any portion thereof
shall be invalidated on any ground by any court of competent jurisdiction, then
the Corporation shall nevertheless indemnify each Agent as to expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
with respect to any action, suit, appeal, proceeding or investigation, whether
civil, criminal or administrative, and whether internal or external, including a
grand jury proceeding and an action or suit brought by or in the right of the
Corporation, to the full extent permitted by any applicable portion of this
Article that shall not have been invalidated, or by any other applicable law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
The following exhibits are filed as a part of this Registration
Statement:
Exhibit No. Description
5 Opinion of Cahill Gordon & Reindel as to the legality of the
Class A Common Stock being registered
23.1 Consent of Cahill Gordon & Reindel (included in Exhibit 5)
23.2 Consent of Price Waterhouse LLP
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ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers of sales are being
made, if applicable, a post-effective amendment to this Registration
Statement: (a) to include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933; (b) to reflect in the prospectus any facts or
events arising after the effective date of the Registration Statement (or
the most recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set forth
in the Registration Statement; and (c) 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 clauses (1)(a) and 1(b)
shall not apply if the information required to be included therein 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;
(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; 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.
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
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.
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
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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.
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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 City of Santa Clara, State of California on the 19th day of
December, 1996.
LARSCOM INCORPORATED
By: /s/ Deborah M. Soon
------------------------------
Deborah M. Soon
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 and on the
dates indicated:
Signature Capacity in Which Signed Date
* President, Chief Executive December 19, 1996
- ----------------------- Officer and Director (Chief
Deborah M. Soon Executive Officer)
* Vice President, Finance and December 19, 1996
- ----------------------- Chief Financial Officer (Chief
Bruce D. Horn Financial Officer and Principal
Accounting Officer)
* Director December 19, 1996
- -----------------------
Paul E. Graf
* Director December 19, 1996
- -----------------------
Donald G. Heitt
* Director December 19, 1996
- -----------------------
Kevin N. Kalkhoven
* Director December 19, 1996
- -----------------------
Harvey L. Poppel
* Director December 19, 1996
- -----------------------
Joseph F. Smorada
* Pursuant to Power of Attorney filed with the Commission as Exhibit 24.1
/s/ Deborah M. Soon Attorney-in-Fact December 19, 1996
- -----------------------
Deborah M. Soon
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Exhibit Index
Exhibit No. Description
5 Opinion of Cahill Gordon & Reindel as to the legality of the
Class A Common Stock being registered
23.1 Consent of Cahill Gordon & Reindel (included in Exhibit 5)
23.2 Consent of Price Waterhouse LLP
24 Power-of-Attorney
Exhibit 5.1
Cahill Gordon & Reindel
80 Pine Street
New York, New York 10005
(212) 701-3000
December 19, 1996
Larscom Incorporated
4600 Patrick Henry Drive
Santa Clara, CA 95054
Ladies and Gentlemen:
We have acted as your counsel in connection with the preparation of a
Registration Statement on Form S-8 (the "Registration Statement") being filed by
you with the Securities and Exchange Commission under the Securities Act of
1933, as amended, with respect to the 3,000,000 shares of Class A Common Stock,
par value $.01 per share (the "Class A Common Stock"), of Larscom Incorporated
(the "Company") which are to be awarded (an "Award") pursuant to the Larscom
Incorporated Stock Option Plan For Non- Employee Directors, the Larscom
Incorporated Stock Incentive Plan and the Larscom Incorporated Employee Stock
Purchase Plan (the "Plans").
We advise you that, in our opinion, upon the issuance of Class A
Common Stock pursuant to an Award in accordance with the terms of the respective
Plan, and in each case upon payment to the Company of any consideration for such
Class A Common Stock provided for in such Plan or any agreement with the Company
relating to the applicable Award (which consideration is assumed herein to be in
no event less than the par value of the Class A Common Stock being issued upon
such payment), the shares of the Class A Common Stock so issued will be validly
issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion with the Securities
and Exchange Commission as an exhibit to the aforesaid Registration Statement.
Very truly yours,
/s/ Cahill Gordon & Reindel
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated October 23, 1996, except
for Notes 1 and 8 which are as of December 13, 1996, which appears on page F-2
of the Registration Statement on Form S-1 (No. 333-14001).
PRICE WATERHOUSE LLP
San Jose, California
December 18, 1996
Exhibit 24
LARSCOM INCORPORATED
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Deborah M. Soon and Paul Graf, and
each of them acting individually, as his attorney-in-fact, each with full power
of substitution, for him and any and all capacities, to sign any and all
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, hereby ratify and confirm our signatures as they may be
signed by our said attorney to any and all amendments to said Registration
Statement.
Name Title Date
- ---- ----- ----
/s/ Deborah M. Soon President, Chief Executive October 11, 1996
- ----------------------- Officer and Director (Chief
Deborah M. Soon Executive Officer)
/s/ Bruce D. Horn Vice President, Finance and October 11, 1996
- ----------------------- Chief Financial Officer
Bruce D. Horn (Chief Financial Officer
and Principal Accounting
Officer)
/s/ Paul E. Graf Director October 11, 1996
- -----------------------
Paul E. Graf
/s/ Donald G. Heitt Director November 15, 1996
- -----------------------
Donald G. Heitt
/s/ Kevin N. Kalkhoven Director November 15, 1996
- -----------------------
Kevin N. Kalkhoven
/s/ Harvey L. Poppel Director October 11, 1996
- -----------------------
Harvey L. Poppel
/s/ Joseph F. Smorada Director October 11, 1996
- -----------------------
Joseph F. Smorada
