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As filed with the Securities and Exchange Commission on July 24, 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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CORSAIR COMMUNICATIONS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 77-0390406
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
3408 HILLVIEW AVENUE
PALO ALTO, CALIFORNIA 94304
(Address of principal executive offices) (Zip Code)
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1997 STOCK INCENTIVE PLAN
1997 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
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MARY ANN BYRNES
PRESIDENT AND CHIEF EXECUTIVE OFFICER
CORSAIR COMMUNICATIONS, INC.
3408 HILLVIEW AVENUE, PALO ALTO, CALIFORNIA 94304
(Name and address of agent for service)
(650) 842-3300
(Telephone number, including area code, of agent for service)
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This Registration Statement shall become effective
immediately upon filing with the Securities and Exchange
Commission, and sales of the registered securities will
thereafter be effected upon option exercises or share
issuances effected under the Corsair Communications 1997
Stock Incentive Plan, and upon share issuances under the 1997
Employee Stock Purchase Plan.
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered per Share Price Fee
---------- ---------- --------- ----------- ------------
<S> <C> <C> <C> <C>
Common Stock, 1,250,000 shares(1) $8.00(2) $10,000,000 $2,950
par value $.001 (under
1997 Stock Incentive Plan)
Common Stock 100,000 shares(1) $8.00(2) $ 800,000 $ 236
per value $.001 (under
1997 Stock Purchase Plan)
</TABLE>
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(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the Corsair Communications,
Inc. 1997 Stock Incentive Plan by reason of any stock dividend, stock
split, recapitalization or other similar transaction effected without
the receipt of consideration which results in an increase in the number
of the Company's (as defined below) outstanding shares of Common Stock.
(2) Calculated solely for purposes of this offering under Rule 457(h) and
457(c) of the Securities Act of 1933 based on the average of the high
and low sale price reported by he NASDAQ National Market System for
July 22, 1998.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
Corsair Communications, Inc. (the "Company") hereby incorporates by
reference into this Registration Statement the following documents previously
filed with the Securities and Exchange Commission (the "Commission"):
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 1997;
(b) The Company's Quarterly Report on Form 10-Q for the period ended
March 31, 1998;
(c) The Company's Registration Statement on Form 8-A filed on July
22, 1997 with the Commission in which there is described the
terms, rights and provisions applicable to the Company's
outstanding Common Stock.
(d) The Company's Prospectus filed on May 6, 1998 with the Company's
Registration Statement No. 333-51989 on Form S-4 as amended on
May 22, 1998 and May 27, 1998, under the Securities Act of 1933,
as amended, in which there is set forth the Company's audited
financial statements for the years ended December 31, 1996 and
December 30, 1997.
All reports and other 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
hereby 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.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
(a) Section 145 of the Delaware General Corporation Law permits
indemnification of officers and directors of the Company under certain
conditions and subject to certain limitations. Section 145 of the Delaware
General Corporation Law also provides that a corporation has the power to
purchase and maintain insurance on behalf of its officers and directors against
any liability asserted against such person 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 Section 145 of the Delaware General Corporation Law.
(b) Article V, Section(B) of the Company's Amended and Restated
Certificate of Incorporation (the "Certificate of Incorporation") permits the
Company, to the extent permitted by applicable law, to provide
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indemnification of its agents (including directors and officers) in excess of
the indemnification and advancement otherwise permitted by Section 145 of the
Delaware General Corporation Law, subject only to the limits imposed by
applicable Delaware law with respect to actions for breach of duty to the
Company, its stockholders, and others.
(c) Article VII, Section 1 of the Company's Amended and Restated Bylaws
(the "Bylaws") provides that the Company shall indemnify its directors and
executive officers to the fullest extent not prohibited by the General
Corporation Law of Delaware. Article VII, Section 2 of the Bylaws grants the
Company the power to indemnify its other officers, employees and other Agents as
set forth in the Delaware General Corporation Law. Article VII, Section 4 of the
Bylaws provides that all expenses incurred by a director or executive officer in
defending any threatened, pending or completed civil, criminal, administrative
or investigative action, suit or proceeding for which indemnification is
authorized under the Bylaws will be paid by the Company in advance of the final
disposition of such action, suit or proceeding upon receipt of an undertaking by
or on behalf of such director or officer to repay such amount if it is
ultimately determined that he or she is not entitled to be indemnified by the
Company under the Bylaws or otherwise. Article VII, Section 7 of the Bylaws
provides that the rights to indemnity under the Bylaws continue as to a person
who has ceased to be a director, officer, employee or agent and inure to the
benefit of the heirs, executors, and administrators of the person.
(d) As permitted by Section 102(b)(7) of the Delaware General
Corporation Law, Article V, Section (A) of the Certificate of Incorporation
provides that a director of the Company is not personally liable for monetary
damages or breach of fiduciary duty as a director, except for liability (i) for
any breach of the director's duty of loyalty to the Company or its stockholders,
(ii) for acts or omissions not in good faith or involving intentional misconduct
or a knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law or (iv) for any transaction from which the director derived any
improper personal benefit.
(e) Pursuant to authorization provided under the Certificate of
Incorporation, the Company has entered into indemnification agreements with each
of its present and certain of its former directors. The Company has also entered
into similar agreements with certain of the Company's executive officers who are
not directors. Forms of such indemnification agreements entered into with the
Company's directors and officers are attached as Exhibits 10.49 and 10.50
respectively to the Company's Registration Statement on Form S-4 (No. 333-51989)
filed with the Commission on May 27, 1998, as amended through its effective
date. Generally, the indemnification agreements attempt to provide the maximum
protection permitted by Delaware law as it may be amended from time to time.
Moreover, the indemnification agreements provide for certain additional
indemnification. Under such additional indemnification provisions, however, an
individual will not receive indemnification for judgments, settlements or
expenses if he or she is found liable to the Company (except to the extent the
court determines he or she is fairly and reasonably entitled to indemnity for
expenses), for settlements not approved by the Company or for settlements and
expenses not approved by the court. The indemnification agreements provide for
the Company to advance to the individual any and all reasonable expenses
(including legal fees and expenses) incurred in investigating or defending any
such action, suit or proceeding. In order to receive an advance of expenses, the
individual must submit to the Company copies of invoices presented to him or her
for such expenses. Also, the individual must repay such advances upon a final
judicial decision that he or she is not entitled to indemnification.
(f) Article VII, Section 8 of the Bylaws authorizes the Company, upon
approval of its board of directors, to purchase insurance on behalf of any
person permitted to be indemnified by the Bylaws to the fullest extent permitted
by the Delaware General Corporation Law. The Company's board of directors has
approved the purchase of, and the Company has purchased, directors and officers
liability insurance by the Company on behalf of its directors and officers as
authorized by the Bylaws.
Item 7. Exemption from Registration Claimed
Not Applicable.
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Item 8. Exhibits
Exhibit Number Exhibit
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4.1* Amended and Restated Certificate of Incorporation (Exhibit
3.6)
4.2* Restated Bylaws (Exhibit 3.5)
4.3* Specimen Stock Certificate
5.1 Opinion and consent of Brobeck, Phleger & Harrison LLP
23.1 Consent of Brobeck, Phleger & Harrison (contained in
Exhibit 5.1)
23.2 Consent of KPMG Peat Marwick LLP, independent auditors
24.1 Power of Attorney. Reference is made to the signature page
of this registration statement
99.1* 1997 Stock Incentive Plan, as amended to date (Exhibit
10.7)
99.2* 1997 Stock Incentive Plan Form of Notice of Grant (Exhibit
10.8)
99.3* 1997 Stock Incentive Plan Form of Stock Option Agreement
(Exhibit 10.9)
99.4* 1997 Employee Stock Purchase Plan (Exhibit 10.10)
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* Filed as an exhibit to the Company's Registration Statement on Form S-1
(No. 333-28519) filed on June 4, 1997 or amendments thereto and
incorporated herein by reference.
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Item 9. Undertakings
1. The undersigned registrant hereby undertakes:
(a) 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 (the "1933 Act");
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this registration statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this registration
statement or any material change to such information in this
registration statement;
provided, however, that paragraphs (a)(i) and (a)(ii) shall not apply if the
information required to be in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the Company pursuant to Section 13 or
Section 15(d) of the 1934 Act that are incorporated by reference into this
registration statement.
(b) That, for the purpose of determining any liability under the
1933 Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; and
(c) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold upon the
termination of the offering.
2. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the 1933 Act, each filing of the Company'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
this registration statement 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.
3. The undersigned registrant hereby undertakes to deliver or cause to
be delivered with the prospectus, to each person to whom the prospectus is sent
or given, the latest annual report, to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the 1934 Act; and, where interim
financial information required to be presented by Article 3 of Regulation S-X is
not set forth in the prospectus, to deliver, or cause to be delivered to each
person to whom the prospectus is sent or given, the latest quarterly report that
is specifically incorporated by reference in the prospectus to provide such
interim financial information.
4. Insofar as indemnification for liabilities arising under the 1933 Act
may be permitted to directors, officers or controlling persons of the Company
pursuant to the foregoing provisions, or otherwise, the Company has been advised
that in the opinion of the Commission such indemnification is against public
policy as expressed in the 1933 Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by the Company of expenses incurred or paid by a director, officer or
controlling person of the Company 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 Company will, unless in the
opinion of its
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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 1933 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 City of Palo Alto, State of California, on this 24th day of
July, 1998.
CORSAIR COMMUNICATIONS INC.
By /s/ Mary Ann Byrnes
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Mary Ann Byrnes
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of Corsair Communications,
Inc., a Delaware corporation, do hereby constitute and appoint Mary Ann Byrnes
and Kevin R. Compton and each of them, the lawful attorneys-in-fact and agents
with full power and authority to do any and all acts and things and to execute
any and all instruments which said attorneys and agents, and either one of them,
determine may be necessary or advisable or required to enable said corporation
to comply with the Securities Act of 1933, as amended, and any rules or
regulations or requirements of the Securities and Exchange Commission in
connection with this registration statement. Without limiting the generality of
the foregoing power and authority, the powers granted include the power and
authority to sign the names of the undersigned officers and directors in the
capacities indicated below to this registration statement, to any and all
amendments, both pre-effective and post-effective, and supplements to this
registration statement, and to any and all instruments or documents filed as
part of or in conjunction with this registration statement or amendments or
supplements thereof, and each of the undersigned hereby ratifies and confirms
that all said attorneys and agents, or either of them, shall do or cause to be
done by virtue hereof. This Power of Attorney may be signed in several
counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of
Attorney as of the date indicated.
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Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Kevin R. Compton Chairman of the Board July 24, 1998
- ---------------------------------------
Kevin R. Compton
/s/ Mary Ann Byrnes President, Chief Executive July 24, 1998
- --------------------------------------- Officer and Director (Principal
Mary Ann Byrnes Executive Officer)
/s/ Martin J. Silver Chief Financial Officer and July 24, 1998
- --------------------------------------- Secretary (Principal
Martin J. Silver Financial and Accounting Officer)
/s/ Peter L. S. Currie Director July 24, 1998
- ---------------------------------------
Peter L. S. Currie
/s/ Stephen M. Dow Director July 24, 1998
- ---------------------------------------
Stephen M. Dow
/s/ David H. Ring Director July 24, 1998
- ---------------------------------------
David H. Ring
/s/ Roland L. Robertson Director July 24, 1998
- ---------------------------------------
Roland L. Robertson
</TABLE>
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
EXHIBITS
TO
FORM S-8
UNDER
SECURITIES ACT OF 1933
CORSAIR COMMUNICATIONS, INC.
<PAGE> 10
EXHIBIT INDEX
EXHIBIT
NUMBER DOCUMENT
4.1* Amended and Restated Certificate of Incorporation (Exhibit 3.6)
4.2* Amended and Restated Bylaws (Exhibit 3.5)
4.3* Specimen Stock Certificate
5.1 Opinion and consent of Brobeck, Phleger & Harrison LLP
23.1 Consent of Brobeck, Phleger & Harrison LLP (contained in Exhibit 5.1)
23.2 Consent of KPMG Peat Marwick LLP, independent auditors
24.1 Power of Attorney. Reference is made to the signature page of this
registration state
99.1* 1997 Stock Incentive Plan, as amended to date (Exhibit 10.7)
99.2* 1997 Stock Incentive Plan Form of Notice
99.3* 1997 Stock Incentive Plan Form of Stock Option Agreement (Exhibit
10.8)
99.4* 1997 Employee Stock Purchase Plan
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* Filed as an exhibit to the Company's Registration Statement on Form
S-1 (No. 333-28519) filed on June 4, 1997 or amendments thereto and
incorporated herein by reference.
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Exhibit 5.1
Opinion and consent of Brobeck, Phleger & Harrison LLP
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July 24, 1998
Corsair Communications, Inc.
3408 Hillview Avenue
Palo Alto, CA 94304
Re: Corsair Communications, Inc. (the "Company")
Registration Statement for an Aggregate of 1,350,000 Shares
of Common Stock
Ladies and Gentlemen:
We refer to your Registration Statement on Form S-8 (the
"Registration Statement") under the Securities Act of 1933, as amended,
registering the issuance of (i) 1,250,000 shares of the common stock ("Common
Stock") of Corsair Communications, Inc. (the "Company") and the related options
under the Company's 1997 Stock Incentive Plan (the "Incentive Plan"), and (ii)
100,000 shares of Common Stock under the Company's 1997 Employee Stock Purchase
Plan (the "Purchase Plan") (collectively, the "Shares"). This opinion is being
furnished in accordance with the requirements of Item 8(a) of Form S-8 and Item
601(b)(5)(i) of Regulation S-K under the Securities Act of 1933, as amended (the
"Act").
We have reviewed the Company's charter documents and the
corporate proceedings taken by the Company in connection with the Incentive Plan
and the Purchase Plan. Based on such review, we are of the opinion that when
such Shares have been issued and sold pursuant to (a) the provisions of the
option agreements duly authorized under the Incentive Plan and in accordance
with the Registration Statement, (b) purchase rights under the Purchase Plan and
in accordance with the Registration Statement, or (c) duly authorized direct
stock issuances in accordance with the Incentive Plan and with the Registration
Statement, such Shares will be duly authorized, validly issued, fully paid and
non-assessable shares of the Company's Common Stock. In giving this consent, we
do not thereby admit that we are within the category of persons whose consent is
required under Section 7 of the Act or the rules and regulations of the
Securities and Exchange Commission promulgated thereunder.
This opinion is expressed as of the date hereof and we disclaim
any undertaking
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to advise you of any subsequent changes in applicable law or in the facts stated
or assumed herein which may alter, affect or modify the opinion expressed
herein. Our opinion is expressly limited to the matters set forth above and we
render no opinion, whether by implication or otherwise, as to any other matters
relating to the Company or the Shares.
We hereby consent to the filing of this opinion as an exhibit to
the Registration Statement.
Very truly yours,
BROBECK, PHLEGER & HARRISON LLP
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EXHIBIT 23.1
Consent of Brobeck, Phleger & Harrison LLP is contained in Exhibit 5.1
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EXHIBIT 23.2
Consent of Independent Auditors, KPMG Peat Marwick LLP
<PAGE> 2
Independent Auditor's Consent - KPMG Peat Marwick LLP
We consent to incorporation herein by reference of our reports dated January 26,
1998, relating to the balance sheets of Corsair Communications, Inc. as of
December 31, 1996 and 1997, and the related statements of operations,
shareholder's equity (deficit), and cash flows for each of the years in the
three-year period ended December 31, 1997, and the related schedule, which
reports appear or are incorporated by reference in the December 31, 1997, annual
report on Form 10-K of Corsair Communications, Inc.
KPMG PEAT MARWICK LLP
San Francisco, California
July 24, 1998
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EXHIBIT 24.1
Power of Attorney. Reference is made to pages II-6 and II-7 of this
Registration Statement
