<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 23, 1999
REGISTRATION NO. 333-____
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
EXCEL SWITCHING CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
MASSACHUSETTS 04-2992806
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
255 INDEPENDENCE DRIVE
HYANNIS, MA 02601
(Address of Principal Executive Offices) (Zip Code)
--------------------
AMENDED AND RESTATED 1997 STOCK OPTION PLAN
STOCK OPTION PROGRAM
AND
RASCOM, INC. 1996 STOCK PLAN
(Full Title of the Plan)
--------------------
ROBERT P. MADONNA
PRESIDENT & CHIEF EXECUTIVE OFFICER
EXCEL SWITCHING CORPORATION
255 INDEPENDENCE DRIVE
HYANNIS, MASSACHUSETTS 02601
(Name and Address of Agent For Service)
(508) 862-3000
(Telephone Number, Including Area Code, of Agent For Service)
------------------------------
Copy to:
Christopher Stavros, Esq. John Hession, Esq.
EXCEL SWITCHING CORPORATION TESTA, HURWITZ & THIBEAULT, LLP
255 Independence Drive Oliver Street Tower, 125 High Street
Hyannis, Massachusetts 02601 Boston, Massachusetts 02110
(508) 862-3000 (617) 248-7000
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<PAGE>
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
PROPOSED
PROPOSED MAXIMUM MAXIMUM
AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
TITLE OF SECURITIES TO BE REGISTERED REGISTERED PER SHARE OFFERING PRICE REGISTRATION FEE (3)
------------------------------------ ---------- ---------------- -------------- --------------------
<S> <C> <C> <C> <C>
AMENDED AND RESTATED 1997 STOCK OPTION PLAN
Common Stock (Par Value $.01 Per Share) 2,000,000 $ 29.125 (1) $ 58,250,000 $ 16,193.50
STOCK OPTION PROGRAM
Common Stock (Par Value $.01 Per Share) 450,000 $ 0.00165 (2) $ 742.50 $ 0.21
RASCOM, INC. 1996 STOCK PLAN
Common Stock (Par Value $.01 Per Share) 2,790 $ 4.05 (2) $ 11,299.50 $ 3.14
Common Stock (Par Value $.01 Per Share) 379 $ 4.50 (2) $ 1,705.50 $ 0.47
Common Stock (Par Value $.01 Per Share) 622 $ 6.75 (2) $ 4,198.50 $ 1.17
TOTAL: 2,453,791 $ 16,198.49
</TABLE>
- -------------------------------------------
(1) The price of $29.125 per share, which is the average of the high and low
prices of the Common Stock of the Registrant reported on the Nasdaq
National Market on July 22, 1999, is set forth solely for purposes of
calculating the filing fee pursuant to Rule 457(c) and (h) and has been
used for those shares without a fixed exercise price.
(2) Such shares are issuable upon exercise of outstanding options with fixed
exercise prices. Pursuant to Rule 457(h), the aggregate offering price
and the fee have been computed upon the basis of the price at which the
options may be exercised. The offering price per share set forth for such
shares is the exercise price per share at which such options are
exercisable.
(3) Calculated pursuant to Section 6(b) of the Securities Act of 1933.
2
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
The documents containing the information specified in this Item 1 will
be sent or given to employees, directors and others as specified by Rule
428(b)(1). In accordance with the rules and regulations of the Securities and
Exchange Commission (the "Commission") and the instructions to Form S-8, such
documents are not being filed with the Commission either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
The documents containing the information specified in this Item 2 will
be sent or given to employees, directors or others as specified by Rule
428(b)(1). In accordance with the rules and regulations of the Commission and
the instructions to Form S-8, such documents are not being filed with the
Commission either as part of this Registration Statement or as prospectuses or
prospectus supplements pursuant to Rule 424.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the Registrant with the Commission
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act")
are incorporated by reference in this Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1998, filed pursuant to the Exchange
Act which contains audited financial statements for the fiscal
year ended December 31, 1998.
(b) The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 1999, filed on May 18, 1999 pursuant
to the Exchange Act.
(c) The Registrant's Current Report on Form 8-K, dated April 15,
1999 and filed on April 23, 1999 pursuant to the Exchange Act.
(d) The Registrant's Current Report on Form 8-K, dated May 10,
1999 and filed on May 25, 1999 pursuant to the Exchange Act.
(e) The section entitled "Description of Registrant's Securities
to be Registered," contained in the Registrant's Registration
Statement on Form 8-A, filed on October 23, 1997 pursuant to
Section 12 of the Exchange Act.
All documents subsequently filed with the Commission by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all securities
offered herein have been sold or which deregisters all securities then remaining
unsold, shall be
3
<PAGE>
deemed to be incorporated by reference in 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. INTEREST OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant is required by its Restated By-laws and its Restated
Articles of Organization generally to indemnify any director, officer or
employee against all expenses and liabilities reasonably incurred by or imposed
upon such person in connection with any legal action in which such person is
involved by reason of such person's position with the Registrant unless such
person shall have been finally adjudicated in any action, suit or proceeding not
to have acted in good faith in the reasonable belief that such person's action
was in the best interests of the Registrant. The Registrant may pay expenses
incurred by any such person in defending a civil or criminal action or
proceeding in advance of the final disposition of such action upon the
Registrant's receipt of the undertaking of such person to repay such amount if
such person shall be adjudicated not to be entitled to indemnification.
The Registrant's Restated Articles of Organization include a provision
limiting the personal liability of a director of the Registrant to its
stockholders for monetary damages for breaches of their fiduciary duty except
(i) for any breach of the director's duty of loyalty to the Registrant or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under section
sixty-one or sixty-two of Chapter 156B of the Massachusetts General Laws, or
(iv) for any transaction from which the director derived an improper benefit.
The Registrant maintains directors and officers liability insurance for
the benefit of its directors and certain of its officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
4
<PAGE>
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION OF EXHIBIT
<S> <C>
4.1 Restated Articles of Organization of the Registrant (filed as
Exhibit 3.1 to the Registrant's Registration Statement on Form
S-1 (Registration No. 333-35791) and incorporated herein by
reference).
4.2 Restated By-Laws of the Registrant (filed as Exhibit 3.2 to the
Registrant's Annual Report filed on Form 10-K on
March 31, 1999 and incorporated herein by reference).
4.3 Amended and Restated 1997 Stock Option Plan (filed as Exhibit
10.1 to the Registrant's Annual Report filed on Form 10-K on
March 31, 1999 and as approved by the stockholders of the
Registrant on May 14, 1999 and incorporated herein by
reference).
4.4 Form of Non-Qualified Stock Option Agreement under the
Registrant's Amended and Restated 1997 Stock Option Plan
(filed herewith).
4.5 Rascom, Inc. 1996 Stock Plan (filed as Exhibit 4.3 to the
Registrant's Registration Statement on Form S-8 filed with
the Commission on May 24, 1999 and incorporated herein
by reference).
5.1 Opinion of Testa, Hurwitz & Thibeault, LLP (filed herewith)
23.1 Consent of Arthur Andersen LLP (filed herewith)
23.2 Consent of Testa, Hurwitz & Thibeault, LLP (included in Exhibit 5.1)
24.1 Power of Attorney (included as part of the signature page to this
Registration Statement)
</TABLE>
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the
registration statement (or the most recent
post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change
in the information set forth in the registration
statement. 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) if, in the aggregate, the changes in
volume and price represent no more than a 20 percent
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 the registration statement or any
material change to such information in the
registration statement;
5
<PAGE>
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the
initial bona fide offering thereof;
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of the
offering.
(4) If the registrant is a foreign private issuer, to
file a post-effective amendment to the registration statement
to include any financial statements required by Rule 3-19 of
this chapter at the start of any delayed offering or
throughout a continuous offering. Financial statements and
information otherwise required by Section 10(a)(3) of the Act
need not be furnished, provided, that the registrant includes
in the prospectus, by means of a post-effective amendment,
financial statements required pursuant to this paragraph
(a)(4) and other information necessary to ensure that all
other information in the prospectus is at least as current as
the date of those financial statements. Notwithstanding the
foregoing, with respect to registration statements on Form
F-3, a post-effective amendment need not be filed to include
financial statements and information required by Section
10(a)(3) of the Act or Rule 3-19 of this chapter if such
financial statements and information are contained in periodic
reports filed with or furnished to the Commission 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 Form F-3.
(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 Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that
is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the 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.
6
<PAGE>
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 Hyannis, Commonwealth of Massachusetts, on this
23rd day of July, 1999.
EXCEL SWITCHING CORPORATION
By: /s/ Robert P. Madonna
--------------------------------------
Robert P. Madonna
President, Chief Executive Officer
and Chairman of the Board of Directors
POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of Excel Switching Corporation,
hereby severally constitute and appoint Christopher Stavros and Stephen S.
Galliker and each of them, with full power to act without the other, 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 (until revoked in writing) to sign all amendments (including
post-effective amendments) to this Registration Statement on Form S-8 of Excel
Switching Corporation, 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 fully to all intents and purposes as he might or could do in person
thereby ratifying and confirming all that said attorneys-in-fact and agents or
any of them, or their or his 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 below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE(S) DATE
<S> <C> <C>
/s/ Robert P. Madonna President, Chief Executive Officer July 23, 1999
- ------------------------------------ and Chairman of the Board of Directors
Robert P. Madonna (Principal Executive Officer)
/s/ Stephen S. Galliker Vice President, Finance and July 23, 1999
- ------------------------------------ Administration and Chief Financial Officer
Stephen S. Galliker (Principal Financial and Accounting Officer)
/s/ Christopher Stavros Director, Vice President, General July 23, 1999
- ------------------------------------ Counsel and Clerk
Christopher Stavros
/s/ Edward L. Breslow Director July 23, 1999
- ------------------------------------
Edward L. Breslow
/s/ John Loughlin Director July 23, 1999
- ------------------------------------
John Loughlin
</TABLE>
7
<PAGE>
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
4.1 Restated Articles of Incorporation of the Registrant (filed as
Exhibit 3.1 to the Registrant's Registration Statement on Form
S-1 (Registration No. 333-35791) and incorporated herein by
reference).
4.2 Restated By-Laws of the Registrant (filed as Exhibit 3.2 to
the Registrant's Annual Report filed on Form 10-K on
March 31, 1999 and incorporated herein by reference).
4.3 Amended and Restated 1997 Stock Option Plan (filed as Exhibit
10.1 to the Registration's Annual Report filed on Form 10-K on
March 31, 1999 and as approved by the stockholders of the
Registrant on May 14, 1999 and incorporated herein by
reference).
4.4 Form of Non-Qualified Stock Option Agreement under the
Registrant's Amended and Restated 1997 Stock Option Plan
(filed herewith).
4.5 Rascom, Inc. 1996 Stock Plan (filed as Exhibit 4.3 to the
Registrant's Registration Statement on Form S-8 filed with
the Commission on May 24, 1999 and incorporated herein by
reference)
5.1 Opinion of Testa, Hurwitz & Thibeault, LLP (filed herewith)
23.1 Consent of Arthur Andersen LLP (filed herewith)
23.2 Consent of Testa, Hurwitz & Thibeault, LLP (included in
Exhibit 5.1)
24.1 Power of Attorney (included as part of the signature page to
this Registration Statement)
<PAGE>
Exhibit 4.4
EXCEL SWITCHING CORPORATION
NON-QUALIFIED STOCK OPTION AGREEMENT
Excel Switching Corporation, a Massachusetts corporation (the
"Company"), hereby grants as of [DATE] to [NAME OF OPTIONEE] (the "Optionee"),
an option to purchase a maximum of [NUMBER] shares (the "Option Shares") of its
Common Stock, $.01 par value ("Common Stock"), at the price of $ [PRICE] per
share, on the following terms and conditions:
1. GRANT UNDER AMENDED AND RESTATED 1997 STOCK OPTION PLAN. This
option is granted pursuant to and is governed by the Company's Amended and
Restated 1997 Stock Option Plan (the "Plan") and, unless the context otherwise
requires, terms used herein shall have the same meaning as in the Plan.
Determinations made in connection with this option pursuant to the Plan shall be
governed by the Plan as it exists on this date.
2. GRANT AS NON-QUALIFIED OPTION; OTHER OPTIONS. This option
shall be treated for federal income tax purposes as a Non-Qualified Option
(rather than an incentive stock option). This option is in addition to any other
options heretofore or hereafter granted to the Optionee by the Company or any
Related Corporation (as defined in the Plan), but a duplicate original of this
instrument shall not effect the grant of another option.
3. VESTING OF OPTION IF BUSINESS RELATIONSHIP CONTINUES. If the
Optionee has continued to serve the Company or any Related Corporation in the
capacity of an employee, officer, director or consultant (such service is
described herein as maintaining or being involved in a "Business Relationship
with the Company") on the following dates, the Optionee may exercise this option
for the number of shares of Common Stock set opposite the applicable date:
<TABLE>
<CAPTION>
<S> <C>
Less than one year from the date hereof - 0 shares
One year but less than two years from - 20% of the Option Shares
the date hereof
Two years but less than three years from the - an additional 20% of the Option Shares
date hereof
Three years but less than four years from the - an additional 20% of the Option Shares
date hereof
Four years but less than five years from the - an additional 20% of the Option Shares
date hereof
Five years or more from the date hereof - an additional 20% of the Option Shares
</TABLE>
<PAGE>
Notwithstanding the foregoing, in accordance with and subject to the provisions
of the Plan, the Committee may, in its discretion, accelerate the date that any
installment of this Option becomes exercisable. The foregoing rights are
cumulative and (subject to Sections 4 or 5 hereof if the Employee ceases to be
employed by the Company and all Related Corporations) may be exercised up to and
including the date which is ten years from the date this option is granted.
4. TERMINATION OF BUSINESS RELATIONSHIP.
(a) TERMINATION OTHER THAN FOR CAUSE. If the Optionee's
Business Relationship with the Company and all Related Corporations is
terminated, other than by reason of death or disability as defined in Section 5
or termination for Cause as defined in Section 4(c), no further installments of
this option shall become exercisable, and this option shall terminate (and may
no longer be exercised) after the passage of 60 days from the date the Business
Relationship ceases, but in no event later than the scheduled expiration date.
In such a case, the Optionee's only rights hereunder shall be those which are
properly exercised before the termination of this option.
(b) TERMINATION FOR CAUSE. If the Optionee's Business
Relationship with the Company is terminated for Cause (as defined in Section
4(c)), this option shall terminate upon the Optionee's receipt of written notice
of such termination and shall thereafter not be exercisable to any extent
whatsoever.
(c) DEFINITION OF CAUSE. "Cause" shall mean conduct involving
one or more of the following: (i) gross misconduct by the employee which is
materially injurious to the Company; or (ii) the commission of an act of
embezzlement, fraud or deliberate disregard of the rules or policies of the
Company; or (iii) the unauthorized disclosure or misappropriation of any trade
secret or confidential information of the Company or any third party who has a
business relationship with the Company or the violation of any non-competition
covenant or assignment of inventions obligation with the Company; or (iv) the
commission of an act which induces any customer or prospective customer of the
Company to break a contract with the Company or to decline to do business with
the Company; or (v) the conviction of the employee of a felony involving any
financial impropriety or which would materially interfere with the employee's
ability to perform his or her services or otherwise be injurious to the Company;
or (vi) the failure of the employee to perform in a material respect his or her
employment obligations without proper cause. In making such determination, the
Board shall act fairly and in utmost good faith.
5. DEATH; DISABILITY; DISSOLUTION.
(a) DEATH. If the Optionee is a natural person who dies while
involved in a Business Relationship with the Company, this option may be
exercised, to the extent otherwise exercisable on the date of his or her death,
by the Optionee's estate, personal representative or beneficiary to whom this
option has been assigned pursuant to Section 9, at any time within 60 days after
the date of death, but not later than the scheduled expiration date.
<PAGE>
(b) DISABILITY. If the Optionee is a natural person whose
Business Relationship with the Company is terminated by reason of his or her
disability (as defined in the Plan), this option may be exercised, to the extent
otherwise exercisable on the date the Business Relationship was terminated, at
any time within 60 days after such termination, but not later than the scheduled
expiration date.
(c) EFFECT OF TERMINATION. At the expiration of such 60-day
period provided in paragraphs (a) or (b) of this Section 5 or the scheduled
expiration date, whichever is the earlier, this option shall terminate (and
shall no longer be exercisable) and the only rights hereunder shall be those as
to which the option was properly exercised before such termination.
(d) DISSOLUTION. If the Optionee is a corporation,
partnership, trust or other entity that is dissolved, is liquidated, becomes
insolvent or enters into a merger or acquisition with respect to which the
Optionee is not the surviving entity, at a time when the Optionee is involved in
a Business Relationship with the Company, this option shall immediately
terminate as of the date of such event (and shall thereafter not be exercisable
to any extent whatsoever), and the only rights hereunder shall be those as to
which this option was properly exercised before such dissolution or other event.
6. PARTIAL EXERCISE. This option may be exercised in part at any
time and from time to time within the above limits, except that this option may
not be exercised for a fraction of a share unless such exercise is with respect
to the final installment of stock subject to this option and cash in lieu of a
fractional share must be paid, in accordance with Paragraph 13(G) of the Plan,
to permit the Optionee to exercise completely such final installment. Any
fractional share with respect to which an installment of this option cannot be
exercised because of the limitation contained in the preceding sentence shall
remain subject to this option and shall be available for later purchase by the
Optionee in accordance with the terms hereof.
7. PAYMENT OF PRICE.
(a) FORM OF PAYMENT. The option price shall be paid in the
following manner:
(i) in cash or by check;
(ii) subject to Section 7(b) below, by delivery
of shares of the Company's Common Stock
having a fair market value (as determined by
the Committee) equal as of the date of
exercise to the option price;
(iii) by delivery of an assignment satisfactory in
form and substance to the Company of a
sufficient amount of the proceeds from the
sale of the Option Shares and an instruction
to the broker or selling agent to pay that
amount to the Company; or
<PAGE>
(iv) by any combination of the foregoing.
(b) LIMITATIONS ON PAYMENT BY DELIVERY OF COMMON STOCK. If the
Optionee delivers Common Stock held by the Optionee ("Old Stock") to the Company
in full or partial payment of the option price, and the Old Stock so delivered
is subject to restrictions or limitations imposed by agreement between the
Optionee and the Company, an equivalent number of Option Shares shall be subject
to all restrictions and limitations applicable to the Old Stock to the extent
that the Optionee paid for the Option Shares by delivery of Old Stock, in
addition to any restrictions or limitations imposed by this Agreement.
Notwithstanding the foregoing, the Optionee may not pay any part of the exercise
price hereof by transferring Common Stock to the Company unless such Common
Stock has been owned by the Optionee free of any substantial risk of forfeiture
for at least six months.
8. METHOD OF EXERCISING OPTION. Subject to the terms and
conditions of this Agreement, this option may be exercised by written notice to
the Company, at the principal executive office of the Company, or to such
transfer agent as the Company shall designate. Such notice shall state the
election to exercise this option and the number of Option Shares for which it is
being exercised and shall be signed by the person or persons so exercising this
option. Such notice shall be accompanied by payment of the full purchase price
of such shares, and the Company shall deliver a certificate or certificates
representing such shares as soon as practicable after the notice shall be
received. Such certificate or certificates shall be registered in the name of
the person or persons so exercising this option (or, if this option shall be
exercised by the Optionee and if the Optionee shall so request in the notice
exercising this option, shall be registered in the name of the Optionee and
another person jointly, with right of survivorship). In the event this option
shall be exercised, pursuant to Section 5 hereof, by any person or persons other
than the Optionee, such notice shall be accompanied by appropriate proof of the
right of such person or persons to exercise this option.
9. OPTION NOT TRANSFERABLE. This option is not transferable or
assignable except by will or by the laws of descent and distribution or pursuant
to a valid domestic relations order. Except as set forth in the preceding
sentence, during the Optionee's lifetime, only the Optionee can exercise this
option.
10. NO OBLIGATION TO EXERCISE OPTION. The grant and acceptance of
this option imposes no obligation on the Optionee to exercise it.
11. NO OBLIGATION TO CONTINUE BUSINESS RELATIONSHIP. Neither the
Plan, this Agreement, nor the grant of this option imposes any obligation on the
Company or any Related Corporation to continue to maintain a Business
Relationship with the Optionee.
12. NO RIGHTS AS STOCKHOLDER UNTIL EXERCISE. The Optionee shall
have no rights as a stockholder with respect to the Option Shares until such
time as the Optionee has exercised this option by delivering a notice of
exercise and has paid in full the purchase price for the number of shares for
which this option is to be so exercised in accordance with Section 8. Except as
is expressly provided in the Plan with respect to certain changes in the
capitalization of the
<PAGE>
Company, no adjustment shall be made for dividends or similar rights for which
the record date is prior to such date of exercise.
13. CAPITAL CHANGES AND BUSINESS SUCCESSIONS. The Plan contains
provisions covering the treatment of options in a number of contingencies such
as stock splits and mergers. Provisions in the Plan for adjustment with respect
to stock subject to options and the related provisions with respect to
successors to the business of the Company are hereby made applicable hereunder
and are incorporated herein by reference.
14. WITHHOLDING TAXES. If the Company or any Related Corporation
in its discretion determines that it is obligated to withhold any tax in
connection with the exercise of this option, or in connection with the transfer
of, or the lapse of restrictions on, any Common Stock or other property acquired
pursuant to this option, the Optionee hereby agrees that the Company or any
Related Corporation may withhold from the Optionee's wages or other remuneration
the appropriate amount of tax. At the discretion of the Company or Related
Corporation, the amount required to be withheld may be withheld in cash from
such wages or other remuneration or in kind from the Common Stock or other
property otherwise deliverable to the Optionee on exercise of this option. The
Optionee further agrees that, if the Company or Related Corporation does not
withhold an amount from the Optionee's wages or other remuneration sufficient to
satisfy the withholding obligation of the Company or Related Corporation, the
Optionee will make reimbursement on demand, in cash, for the amount
underwithheld.
15. PROVISION OF DOCUMENTATION TO EMPLOYEE. By signing this
Agreement the Optionee acknowledges receipt of a copy of this Agreement and a
copy of the Plan.
16. MISCELLANEOUS.
(a) ENTIRE AGREEMENT; MODIFICATION. This Agreement constitutes
the entire agreement between the parties relative to the subject matter hereof,
and supersedes all proposals, written or oral, and all other communications
between the parties relating to the subject matter of this Agreement. This
Agreement may be modified, amended or rescinded only by a written agreement
executed by both parties.
(b) SEVERABILITY. The invalidity, illegality or
unenforceability of any provision of this Agreement shall in no way affect the
validity, legality or enforceability of any other provision.
(c) SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns, subject to the limitations set forth in Section 9
hereof.
(d) GOVERNING LAW. This Agreement shall be governed by and
interpreted in accordance with the laws of the Commonwealth of Massachusetts,
without giving effect to the principles of the conflicts of laws thereof. The
preceding choice of law provision shall apply to all claims, under any theory
whatsoever, arising out of the relationship of the parties contemplated herein.
<PAGE>
17. ACCELERATION OF VESTING OF OPTION FOR BUSINESS COMBINATIONS.
Subject to and in accordance with Section 22 of the Plan, upon the merger,
consolidation, sale of all or substantially all of the Company's stock or assets
or other business combination involving the Company as otherwise set forth in
Section 22 of the Plan (an "Acquisition"), this option shall, immediately prior
to the consummation of such Acquisition, become vested and exercisable by the
Optionee as set forth in Section 22 of the Plan.
18. POOLING-OF-INTERESTS ACCOUNTING. If the Company proposes to
engage in an Acquisition intended to be accounted for as a pooling-of-interests,
and in the event that the provisions of the Plan or of any Stock Right granted
thereunder, or any actions of the Board taken in connection with such
Acquisition, are determined by either the Company's Board, or by both the
acquiring company's board and the Company's Board, to cause such Acquisition to
fail to be accounted for as a pooling-of-interests, then such provisions,
grants, or actions shall be amended or rescinded by the Board, without the
consent of any Optionee, to be consistent with pooling-of-interests accounting
treatment for such Acquisition.
IN WITNESS WHEREOF, the Company and the Optionee have caused this
instrument to be executed as of the date first above written.
EXCEL SWITCHING CORPORATION
255 Independence Drive
Hyannis, MA 02601
- --------------------------------
OPTIONEE
- --------------------------------
Print Name of Optionee By:
--------------------------------
Christopher Stavros
- -------------------------------- Vice President and General Counsel
Street Address
- --------------------------------
City State Zip Code
<PAGE>
Exhibit 5.1
July 23, 1999
Excel Switching Corporation
255 Independence Drive
Hyannis, Massachusetts 02601
Re: Registration Statement on Form S-8 Relating to each of the
Amended and Restated 1997 Stock Option Plan, the Stock Option
Program and the Rascom, Inc. 1996 Stock Plan (collectively,
the "Plans")
Ladies and Gentlemen:
Reference is made to the above-captioned Registration Statement on Form
S-8 (the "Registration Statement") filed by Excel Switching Corporation (the
"Company") with the Securities and Exchange Commission under the Securities
Act of 1933, as amended, relating to an aggregate of 2,453,791 shares of
Common Stock, $.01 par value, of the Company to be issued pursuant to the
Plans (the "Shares").
In rendering this opinion, we have examined original or certified copies
of the Company's Restated Articles of Organization, the Company's Restated
By-Laws, the corporate records of the Company, and such other certificates,
documents, records and materials as we have deemed necessary for the purpose of
rendering this opinion.
We are members only of the Bar of the Commonwealth of Massachusetts and
are not experts in, and express no opinion regarding, the laws of any
jurisdiction other than the Commonwealth of Massachusetts and the United States
of America.
Based upon and subject to the foregoing, we are of the opinion that the
Shares issued or proposed to be issued by the Company pursuant to the Plans have
been duly authorized and will be, upon receipt of the consideration provided for
in the Plans, validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement.
Very truly yours,
/s/ Testa, Hurwitz & Thibeault, LLP
TESTA, HURWITZ & THIBEAULT, LLP
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our reports dated January 26,
1999 included in Excel Switching Corporation's Form 10-K for the year ended
December 31, 1998 and to all references to our Firm included in this
registration statement.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Boston, Massachusetts
July 23, 1999
