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As filed with the Securities and Exchange Commission on March 31, 1999
Registration No. 333-________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CATAPULT COMMUNICATIONS CORPORATION
(Exact name of registrant as specified in its charter)
NEVADA 77-0086010
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(State of Incorporation) (I.R.S. Employer Identification No.)
160 South Whisman Road
Mountain View, CA 94041
(Address of principal executive offices)
1989 STOCK OPTION PLAN
UK EXECUTIVE SHARE OPTION SCHEME
1998 STOCK PLAN
1998 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the Plans)
RICHARD A. KARP
President and Chief Executive Officer
CATAPULT COMMUNICATIONS CORPORATION
160 South Whisman Road
Mountain View, CA 94041
(650) 960-1025
(Name, address and telephone number of agent for service)
COPIES TO:
HENRY P. MASSEY, JR., ESQ.
GEOFFREY B. HALE, ESQ.
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304-1050
(650) 493-9300
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered(1) Per Share Price Fee
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<S> <C> <C> <C> <C>
Common Stock $0.001 par value,
options previously issued
under the 1989 Stock Option Plan 435,587 $1.05 (2) $457,366.35 $127.15
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Common Stock $0.001 par value,
options previously issued or to
be issued under the UK Executive
Share Option Scheme 154,500 $.22 (3) $33,990 $9.44
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Common Stock $0.001 par value,
options previously issued or to be
issued under the 1998 Stock Plan 1,800,000 $10.532 (4) $18,957,068.25 $ 5,270.06
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Common Stock $0.001 par value,
options to be issued under the
1998 Employee Stock Purchase Plan 750,000 $ 9.031 (5) $ 6,773,437.50 $ 1,883.02
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Total 3,140,087 $26,221,862.10 $ 7,290.00
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</TABLE>
(1) For the sole purpose of calculating the registration fee, the number of
shares to be registered under this Registration Statement is the number
of shares subject to options currently outstanding under the 1989 Stock
Option Plan, the number of shares subject to options currently
outstanding and authorized to be issued under the UK Executive Share Option
Scheme and the 1998 Stock Option Plan and the number of shares
authorized to be issued under the 1998 Employee Stock Purchase Plan.
(2) Estimated in accordance with Rule 457(h) under the Securities Act of
1933, as amended (the "Securities Act") solely for the purpose of
calculating the total registration fee on the basis of the weighted
average exercise price of $1.05 per share for options to purchase a
total of 435,587 shares of Common Stock outstanding under the 1989 Stock
Option Plan.
(3) Estimated in accordance with Rule 457(h) under the Securities Act solely
for the purpose of calculating the total registration fee on the basis
of the weighted average exercise price of $.22 per share for options to
purchase 154,500 shares of Common Stock outstanding under the UK
Executive Share Option Scheme.
(4) Estimated in accordance with Rule 457(h) under the Securities Act solely
for the purpose of calculating the registration fee. The price of
$10.532 per share represents the weighted average exercise price based
on (i) the weighted average exercise price of $7.58 per share for
options to purchase a total of 55,150 shares of Common Stock outstanding
under the 1998 Stock Plan and (ii) $10.625 per share (the average of the
bid and ask reported prices on the Nasdaq National Market as of March
24, 1999) for 1,744,850 shares of Common Stock reserved for issuance
thereunder. The price in (ii) of the preceding sentence is used because
the exercise prices of options to be granted in the future are not
currently determinable.
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(5) Estimated pursuant to Rule 457 under the Securities Act solely for
purposes of calculating the registration fee on the basis of 85% of the
average of the bid and ask reported prices on the Nasdaq National Market
as of March 24, 1999.
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PART II: INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INFORMATION INCORPORATED BY REFERENCE
The following documents and information heretofore filed with the
Securities and Exchange Commission (the "Commission") are hereby incorporated by
reference:
(a) The Registrant's Prospectus filed with the Commission pursuant to
Rule 424(b) on February 12, 1999, which contains audited balance
sheets dated as of September 30, 1997 and 1998, an unaudited
balance sheet as of December 31, 1998, audited statements of
income and statements of cash flows for each of the three years
ended September 30, 1998 and an unaudited statement of income and
statement of cashflows for the three months ended December 31,
1998.
(c) The description of the Company's Common Stock as set forth in the
Registration Statement on Form S-1, Registration Number
333-56627 filed on June 11, 1998 as amended by Amendment Number
1, filed on July 21, 1998, and Amendment Number 2 filed on
January 7, 1999.
Item 1 of the Registrant's Registration Statement on Form 8-A
filed on July 28, 1998, pursuant to Section 12 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
All documents subsequently filed 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 registered hereby
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 part hereof from the date of filing 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
The Registrant's Articles of Incorporation limit, to the maximum
extent permitted by Section 78.751 of Nevada General Corporation Law, the
personal liability of directors and officers for monetary damages for breach of
their fiduciary duties as directors and officers (other than liabilities arising
from acts or omissions which involve intentional misconduct, fraud or knowing
violations of law or the payment of distributions in violation of Nevada General
Corporation Law). The Articles of Incorporation provide further that the
Registrant shall indemnify to the fullest extent permitted by Nevada General
Corporation Law any person
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made a party to an action or proceeding by reason of the fact such person was
a director, officer, employee or agent or the Registrant. Subject to the
Registrant's Articles of Incorporation, the Bylaws provide that the
Registrant shall indemnify directors and officers for all costs reasonably
incurred in connection with any action, suit or proceeding in which such
director or officer is made a party by virtue of his being an officer or
director of the Registrant except where such director or officer is finally
adjudged to have been derelict in the performance of his duties as such
director or officer. The Registrant has entered into indemnification
agreements with its officers and directors containing provisions which may
require the Registrant, among other things, to indemnify the officers and
directors against certain liabilities that may arise by reason of their
status or service as directors or officers (other than liabilities arising
from willful misconduct of a culpable nature), and to advance their expenses
incurred as a result of any proceeding against them as to which they could be
indemnified.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
4.1(1) 1989 Stock Option Plan and related agreements
4.2(2) UK Executive Share Option Scheme and related agreements
4.3(3) 1998 Stock Plan and related agreements
4.4(4) 1998 Employee Stock Purchase Plan and related agreements
23.1 Consent of Independent Accountants
23.2 Consent of Counsel (contained in Exhibit 5.1).
24.1 Power of Attorney (see Page II-4).
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(1) Exhibit No. 4.1 is incorporated by reference to Exhibit 10.3 filed with the
Registrant's Registration Statement on Form S-1, No. 333-56627.
(1) Exhibit No. 4.2 is incorporated by reference to Exhibit 10.4 filed with the
Registrant's Registration Statement on Form S-1, No. 333-56627.
(1) Exhibit No. 4.3 is incorporated by reference to Exhibit 10.5 filed with the
Registrant's Registration Statement on Form S-1, No. 333-56627.
(1) Exhibit No. 4.4 is incorporated by reference to Exhibit 10.6 filed with the
Registrant's Registration Statement on Form S-1, No. 333-56627.
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ITEM 9. UNDERTAKINGS
(A) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement to include any
material information with respect to the plan of distribution not previously
disclosed in this Registration Statement or any material change to such
information in this Registration Statement.
(2) 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 therein, and the
offering of such securities at that time shall be deemed to be the initial BONA
FIDE offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(B) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, 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 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 may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the Nevada General Corporation Law, the Restated
Articles of Incorporation of the Registrant, the Bylaws of the Registrant,
Indemnification Agreements entered into between the Registrant and its officers
and directors, or otherwise, the Registrant has been advised that in the opinion
of the 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant, Catapult Communications Corporation, a corporation organized and
existing under the laws of the State of Nevada, 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 Mountain View, State
of California, on this 29th day of March, 1999.
CATAPULT COMMUNICATIONS CORPORATION
By: /s/ Joan M. Varrone
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Vice President of Finance, Chief Financial
Officer and Treasurer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Joan Varrone and Henry P. Massey, Jr.,
jointly and severally, his or her attorneys-in-fact, each with the power of
substitution, for him or her in any and all capacities, to sign any amendments
to this Registration Statement on Form S-8, and to file the same, with exhibits
thereto and other documents in connection therewith, with the Commission, hereby
ratifying and confirming all that each of said attorneys-in-fact, or his
substitute or substitutes, may 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
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<S> <C> <C>
/s/ Richard A. Karp President, Chief Executive Officer, March 29, 1999
- ------------------------------- Director and Chairman of the Board of
(Richard A. Karp) Directors (Principal Executive Officer)
/s/ Joan M. Varrone Vice President of Finance, Chief March 29, 1999
- ------------------------------- Financial Officer and Treasurer
(Joan M. Varrone) (Principal Financial and Accounting
Officer)
/s/ Charles L. Waggoner Director March 29, 1999
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(Charles L. Waggoner)
/s/ John M. Scandalios Director March 29, 1999
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(John M. Scandalios)
/s/ Nancy H. Karp Director March 29, 1999
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(Nancy H. Karp)
</TABLE>
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
EXHIBITS
Registration Statement on Form S-8
CATAPULT COMMUNICATIONS CORPORATION
March 31, 1999
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit Page
Number No.
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<S> <C>
4.1(1) 1989 Stock Option Plan and related agreements. -
4.2(2) U K Executive Share Option Scheme and related agreements. -
4.3(3) 1998 Stock Plan and related agreements. -
4.4(4) 1998 Employee Stock Purchase Plan and related agreements. -
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, P.C., as -
to legality of securities being registered.
23.1 Consent of Independent Accountants -
23.2 Consent of Counsel (contained in Exhibit 5.1). -
24.1 Power of Attorney (see Page II-4). -
</TABLE>
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(1) Exhibit No. 4.1 is incorporated by reference to Exhibit 10.3 filed
with the Registrant's Registration Statement on Form S-1,
No. 333-56627.
(1) Exhibit No. 4.2 is incorporated by reference to Exhibit 10.4 filed
with the Registrant's Registration Statement on Form S-1,
No. 333-56627.
(1) Exhibit No. 4.3 is incorporated by reference to Exhibit 10.5 filed
with the Registrant's Registration Statement on Form S-1,
No. 333-56627.
(1) Exhibit No. 4.4 is incorporated by reference to Exhibit 10.6 filed
with the Registrant's Registration Statement on Form S-1,
No. 333-56627.
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EXHIBIT 5.1
_______ ____, 1999
Catapult Communications Corporation
160 South Whisman Road
Mountain View, CA 94041
RE: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by
Catapult Communications Corporation (the "Company") with the Securities and
Exchange Commission on or about _______ ____, 1999 (the "Registration
Statement") in connection with the registration under the Securities Act of
1933, as amended, of 3,140,087 shares of Common Stock (the "Shares") reserved
for issuance under the 1989 Stock Option Plan, UK Executive Share Option Scheme,
1998 Stock Option Plan and 1998 Employee Stock Purchase Plan (the "Plans"). As
your counsel, we have examined the proceedings taken and are familiar with the
proceedings proposed to be taken by you in connection with said issuance and
sale of the Shares pursuant to the Plans.
It is our opinion that, upon completion of the proceedings being taken or
contemplated by us to be taken prior to the issuance and sale of the Shares
pursuant to the Plans, and upon completion of the proceedings being taken in
order to permit such transaction to be carried out in accordance with the
securities laws of the various states where required, the Shares, when issued
and sold in the manner referred to in the Plan and the Registration Statement,
will be legally and validly issued, fully-paid and non-assessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement, and further consent to the use of our name wherever appearing in the
Registration Statement, including the prospectus constituting a part thereof,
and any amendments thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ Wilson Sonsini Goodrich & Rosati
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of Catapult Communications Corporation of our report dated
December 24, 1998, which appears on page F-2 of the Prospectus constituting part
of the Registration Statement on Form S-1 (No. 333-56627).
/s/ PRICEWATERHOUSECOOPERS LLP
PricewaterhouseCoopers LLP
San Jose, California
March 30, 1999
