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As filed with the Securities and Exchange Commission on October 24, 2000,
Registration No. 333-______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
TERAYON COMMUNICATION SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
Delaware 77-0328533
(State of Incorporation) (I.R.S. Employer Identification No.
-----------------------------
2952 Bunker Hill Lane
Santa Clara, CA 95054
(Address of principal executive offices)
-----------------------------
Mainsail Networks, Inc. 1997 Stock Option Plan
Dr. Zaki Rakib
Chief Executive Officer
Terayon Communication Systems, Inc.
2952 Bunker Hill Lane
Santa Clara, CA 95054
(408) 727-4400
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
----------------------------
Copies to:
Karyn S. Tucker
Angelique Tremble
Rachel Halpren
Cooley Godward LLP
One Maritime Plaza
20/th/ Floor
San Francisco, CA 94111-3580
(415) 693-2000
Cooley Godward LLP
----------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities to Offering Price Per Share Aggregate Offering Price
be Registered Amount to be (1) (1) Amount of Registration
Registered Fee
====================================================================================================================================
<S> <C> <C> <C> <C>
Shares of Common Stock, 168,193 $2.4912 $419,002.40 $104.00
par value $.001 per
share, subject to
outstanding options
granted under the
Mainsail Networks, Inc.
1997 Stock Option Plan
====================================================================================================================================
Totals $2.4912 $419,002.40 $110.62
168,193
====================================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee. The offering price per share and aggregate offering price
are based upon the weighted average exercise price, for shares subject to
options previously granted under the Mainsail Networks, Inc. 1997 Stock
Option Plan, acquired by Terayon Communication Systems, Inc. (the
"Company") (pursuant to Rule 457(h) under the Securities Act of 1933, as
amended (the "Act"))
1.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Securities and
Exchange Commission (the "SEC") are incorporated by reference into this
Registration Statement:
(A) The Company's latest annual report on Form 10-K filed pursuant to
Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), or either (1) the Company's latest prospectus filed pursuant to
Rule 424(b) under the Securities Act of 1933, as amended (the "Act") that
contains audited financial statements for the Company's latest fiscal year for
which such statements have been filed, or (2) the Company's effective
registration statement on Form 10 or 20-F filed under the Exchange Act
containing audited financial statements for the Company's latest fiscal year.
(B) All other documents listed below and any future filings we will make
with the SEC under Section 13(a) or 15(d) of the Securities Exchange Act of 1934
or the registration statement referred to in (a) above:
. Quarterly report on Form 10-Q for the quarter ended June 30, 2000;
. Current Report on Form 8-K filed on May 3, 2000, as amended on Form
8-K/A filed on May 8, 2000 and as amended on Form 8-K/A filed on
June 29, 2000;
. Current Report on Form 8-K filed on July 18, 2000;
. Current Report on Form 8-K filed on October 5, 2000, as amended on
Form 8-K/A filed on October 18, 2000;
. Current Report on Form 8-K filed on October 23, 2000; and
. The description of the Company's common stock contained in its
registration statement on Form 8-A, as filed on July 20, 1998
with the set filed.
All reports and other documents subsequently filed by the Company 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 have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference herein and to be a part of this
registration statement from the date of the filing of such reports and
documents.
DESCRIPTION OF SECURITIES
Not applicable.
INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
As permitted by Section 145 of the Delaware General Corporation Law, the
Bylaws of the Company provide that (i) the Company is required to indemnify its
directors and executive officers to the fullest extent permitted by the Delaware
General Corporation Law, (ii) the Company may, in its discretion, indemnify
other offices, employees and agents as set forth in the Delaware General
Corporation Law, (iii) to the fullest extent permitted by the Delaware General
Corporation Law, the Company is required to advance all expenses incurred by its
directors and executive officers in connection with a legal proceeding (subject
to certain exceptions), (iv) the rights conferred in the Bylaws are not
exclusive, (v) the Company is authorized to enter into indemnification
agreements with its directors, officers, employees and agents and (vi) the
Company may not retroactively amend the Bylaws provisions relating to indemnity.
The Company has entered into agreements with its directors and executive
officers that require the Company to indemnify such persons against expenses,
judgments, fines, settlements and other amounts that such person becomes legally
obligated to pay (including expenses of a derivative action) in connection with
any proceeding, whether actual or threatened, to which any such person may be
made a party by reason of the fact that such person is or was a director or
officer of the Company or any of its affiliated enterprises, provided such
person acted in good faith and in a manner such person reasonably believed to be
in or not opposed to the
2.
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best interests of the Company. The indemnification agreements also set forth
certain procedures that will apply in the event of a claim for indemnification
thereunder.
EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
EXHIBIT INDEX
Exhibit
Number Description
5.1 Opinion of Cooley Godward LLP
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Ernst & Young LLP, Independent Auditors
23.3 Consent of PricewaterhouseCoopers LLP, Independent Accountants
23.4 Consent of Kost Forer & Gabbay (a member of Ernst & Young
International), Independent Auditors
23.5 Consent of Kost Forer & Gabbay (a member of Ernst & Young
International), Independent Auditors
23.6 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to this
Registration Statement
99.1 Mainsail Networks, Inc. 1997 Stock Option Plan
99.2 Form of Stock Option Agreement used in connection with the
Mainsail Networks, Inc., 1997 Stock Option Plan
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;
(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) ((S) 230.424(b) of this
chapter) if, in the aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration statement.
(III) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
Provided, however, that paragraphs (a)(i) and (a)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the issuer pursuant to
section 13 or section 15(d) of the Exchange Act that are incorporated by
reference herein.
3.
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(B) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(C) 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.
2. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Exchange Act (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to section 15(d) of the Exchange Act) that is
incorporated by reference in the 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. Insofar as indemnification for liabilities arising under the Securities Act
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 and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense
of any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
4.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Company certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Registration Statement 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 October 24, 2000.
TERAYON COMMUNICATION SYSTEMS, INC.
By:/s/ Dr. Zaki Rakib
----------------------------------
Dr. Zaki Rakib
Chief Executive Officer
POWER OF ATTORNEY
Know All Persons By These Presents, that each person whose signature
appears below constitutes and appoints Dr. Zaki Rakib and Shlomo Rakib and each
or any one of them, his true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
SEC, granting unto said attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act and thing requisite and
necessary to be done in connection therewith, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or any of them, or their or his
substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Dr. Zaki Rakib Chief Executive Officer, Secretary and October 24, 2000
---------------------------------------------- Director (Principal Executive Officer)
Dr. Zaki Rakib
/s/ Ray M. Fritz Chief Financial Officer (Principal October 24, 2000
---------------------------------------------- Financial and Accounting Officer)
Ray M. Fritz
/s/ Shlomo Rakib President and Chairman of the Board of October 24, 2000
---------------------------------------------- Directors
Shlomo Rakib
/s/ Michael D'Avella Director October 24, 2000
----------------------------------------------
Michael D'Avella
/s/ Alek Krstajic Director October 24, 2000
----------------------------------------------
Alek Krstajic
/s/ Christopher J. Schaepe Director October 24, 2000
----------------------------------------------
Christopher J. Schaepe
/s/ Lewis Solomon Director October 24, 2000
----------------------------------------------
Lewis Solomon
</TABLE>
5.
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<TABLE>
<S> <C> <C>
/s/ Mark A. Stevens Director October 24, 2000
----------------------------------------------
Mark A. Stevens
By: /s/ Dr. Zaki Rakib
--------------------------------------------
Dr. Zaki Rakib
Attorney-in-Fact
</TABLE>
6.
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EXHIBIT INDEX
Exhibit
Number Description
5.1 Opinion of Cooley Godward LLP
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Ernst & Young LLP, Independent Auditors
23.3 Consent of PricewaterhouseCoopers LLP, Independent Accountants
23.4 Consent of Kost Forer & Gabbay (a member of Ernst & Young
International), Independent Auditors
23.5 Consent of Kost Forer & Gabbay (a member of Ernst & Young
International), Independent Auditors
23.6 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to this
Registration Statement
99.1 Mainsail Network, Inc.'s 1997 Stock Option Plan
99.2 Form of Stock Option Agreement used in connection with the Mainsail
Network, Inc.'s 1997 Stock Option Plan
7.
