As filed with the Securities and Exchange Commission on September 20, 2000
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
ULTICOM, INC.
(Exact name of registrant as specified in its charter)
NEW JERSEY 22-2050748
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
1020 BRIGGS ROAD
MT. LAUREL, NEW JERSEY 08054
(856) 787-2700
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
1998 STOCK INCENTIVE
COMPENSATION PLAN
(Full Title of Plans)
MR. SHAWN OSBORNE
PRESIDENT AND CHIEF EXECUTIVE OFFICER
ULTICOM, INC.
1020 BRIGGS ROAD
MT. LAUREL, NEW JERSEY 08054
(865) 787-2700
(Name and address, including zip code,
and telephone number, including area code, of agent for service)
Copies to:
STEPHEN M. BESEN, ESQ. WILLIAM F. SORIN
WEIL, GOTSHAL & MANGES LLP SECRETARY
767 FIFTH AVENUE ULTICOM, INC.
NEW YORK, NEW YORK 10153 1022 BRIGGS ROAD
(212) 310-8000 MT. LAUREL, NEW JERSEY 08054
(856) 787-2700
NY2:\902892\03\78436.0001
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CALCULATION OF REGISTRATION FEE
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Title of Each Class of Securities to be Amount to be Proposed Maximum Proposed Maximum Amount of
Registered Registered (1) Offering Price Per Aggregate Offering Registration Fee
Share(2) Price (2)
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<S> <C> <C> <C> <C>
Common Stock, no par value 6,500,000 $52.18 $164,905,943 $43,535.17
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(1) Plus such indeterminate number of shares of Common Stock of the Registrant
as may be issued to prevent dilution resulting from stock dividends, stock
splits or similar transactions in accordance with Rule 416 under the Securities
Act of 1933.
(2) Pursuant to Rule 457(h)(1) under the Securities Act of 1933, as amended, for
the purpose of calculating the maximum aggregate offering price and the
registration fee, the proposed maximum offering price per share was determined
as follows: (i) with respect to 3,659,472 shares of Common Stock in respect of
which options have been granted under the plan, the proposed maximum offering
price per share is the weighted average exercise price of $4.56 per share; and
(ii) with respect to the remaining 2,840,528 shares of Common Stock being
registered hereunder in respect of which options have yet to be granted under
the plan, the proposed maximum offering price per share was estimated based on
the average high and low sale prices of the Common Stock as reported by the
Nasdaq National Market on September 13, 2000.
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EXPLANATORY NOTE
This Registration Statement is intended to register all shares
to be issued under the 1998 Stock Incentive Compensation Plan (the "Plan") by
Ulticom, Inc., a New Jersey corporation (the "Company"). Pursuant to the Note to
Part I of Form S-8, the Plan information specified by Part I of Form S-8 to be
contained in a Section 10(a) prospectus to be distributed to each optionee is
not being filed with the Securities and Exchange Commission. Part II contains
information that is required in this Registration Statement pursuant to Part II
of Form S-8.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. EMPLOYEE STOCK OPTION PLAN INFORMATION
The documents containing the information specified in Part I
of Form S-8 and the statement of availability of information required by Item 2
of Form S-8 and information relating to the Plan and other information required
by Item 2 of Form S-8 have previously been, or will be, sent or given to the
participants of the Plan, as specified by Rule 428(b)(1) of the Securities Act
of 1933, as amended (the "Securities Act"). These documents are not required to
be and are not filed with the Securities and Exchange Commission either as part
of this Registration Statement or as prospectuses or prospectus supplements
pursuant to Rule 424. These documents and the documents incorporated by
reference in this Registration Statement pursuant to Item 3 of Part II of this
Form S-8, taken together, constitute a prospectus that meets the requirements of
Section 10(a) of the Securities Act.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE STOCK OPTION PLAN INFORMATION
Upon written or oral request, any of the documents
incorporated by reference in Item 3 of Part II of this Registration Statement
(which documents are incorporated by reference in this Section 10(a)
Prospectus), other documents required to be delivered to eligible employees
pursuant to Rule 428(b) of the Securities Act or additional information about
the Plan and its administrators are available without charge by contacting:
Ulticom, Inc.
1020 Briggs Road
Mt. Laurel, New Jersey 08054
(856) 787-2700
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") by Ulticom, Inc. are incorporated herein by
reference and made a part hereof:
(A) The description of our Common Stock, no par value, contained
in our Registration Statement on Form 8-A, filed with the
Commission on March 27, 2000.
(B) The Registration Statement on Form S-1 (File No. 333-45366)
dated September 8, 2000, as amended.
(C) Quarterly Report on Form 10-Q for the quarter ended April 30,
2000;
(D) Quarterly Report on Form 10-Q for the quarter ended July 31,
2000;
All documents subsequently filed by the Company with the SEC
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the
filing of a post-effective amendment to this Registration Statement which
indicates that all securities covered by this Registration Statement have been
sold or which deregisters all of the securities then remaining unsold, will be
deemed to be incorporated by reference in this Registration Statement and to be
a part of this document from the date of filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated by reference
in this document will be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement contained in this
document or in any other subsequently filed document which also is or is deemed
to be incorporated by reference in this document modifies or supersedes such
statement. Any such statement so modified or superseded will not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the shares of common stock being offered
hereby and certain other legal matters in connection with this offering with
respect to New Jersey law will be passed upon for Ulticom by Sills Cummis Radin
Tischman Epstein & Gross, P.A., Newark, New Jersey.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company is organized under the laws of the State of New
Jersey. The New Jersey Business Corporation Act provides that a New Jersey
corporation has the power generally to indemnify its directors, officers,
employees and other agents against expenses and liabilities in connection with
any proceeding involving such person by reason of his being a corporation agent,
other than a proceeding by or in the right of the corporation, if such person
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation and, with respect to any
criminal proceeding, such person had no reasonable cause to believe his conduct
was unlawful. In the case of an action brought by or in the right of the
corporation, indemnification of directors, officers, employees and other agents
against expenses is permitted if such person acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
corporation; however, no indemnification is permitted in respect of any claim,
issue or matter as to which such person shall have been adjudged to be liable to
the corporation, unless and only to the extent that the New Jersey Superior
Court, or the court in which such proceeding was brought, shall determine upon
application that despite the adjudication of liability, but in view of all the
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circumstances of the case, such person is fairly and reasonably entitled to such
indemnification. Expenses incurred by a director, officer, employee or other
agent in connection with a proceeding may be, under certain circumstances, paid
by the corporation in advance of the final disposition of the proceeding as
authorized by the board of directors. The power to indemnify and advance
expenses under the Act does not exclude other rights to which a director,
officer, employee or other agent of the corporation may be entitled to under the
certificate of incorporation, by laws, agreement, vote of stockholders, or
otherwise provided that no indemnification is permitted to be made to or on
behalf of such person if a judgment or other final adjudication adverse to such
person establishes that his acts or omissions were in breach of his duty of
loyalty to the corporation, were not in good faith or involved a violation of
the law, or resulted in the receipt of such person of an improper personal
benefit.
The Company's Certificate of Incorporation provides that
directors and officers of the Company shall not be personally liable to the
Company or its shareholders for damages for breach of any duty owed to the
Company or its shareholders, except to the extent that an exemption from
personal liability is not permitted by the New Jersey Business Corporation Act
The Company's Certificate of Incorporation also provides that
each person (a) who is or was a director, officer, employee or agent of the
Company or of any constituent corporation absorbed by the Company in a
consolidation or merger, or the legal representative of any such director,
officer, employee or agent or (b) who is or was a director, officer, trustee,
employee or agent of any other enterprise, serving as such at the request of the
Company, or of any such corporation absorbed by the Company in a consolidation
or merger, or the legal representative of any such director, officer, trustee,
employee or agent (each such person referred to in clause (a) or (b) a
"Corporate Agent") shall be indemnified by the Company to the fullest extent
allowed by law, including but not limited to the indemnification permitted by
Section 14A:3-5(8) of the New Jersey Business Corporation Act, against all
expenses and liabilities in connection with any proceeding involving such
Corporate Agent by reason of his being or having been such a Corporate Agent.
During the pendency of any such proceeding, the Company shall, to the fullest
extent permitted by law, promptly advance expenses that are incurred, from time
to time, by the Corporate Agent in connection with the proceeding, subject to
the receipt by the Company of an undertaking as required by law. However, no
Corporate Agent shall be entitled to indemnification if he or she settles any
such matter without the prior written consent of the Company and the Company
shall have the right to defend any such Corporate Agent in respect of any claim
made by the Corporate Agent for indemnification, except to the extent there
exists a conflict of interest between the Company and such Corporate Agent with
respect to such claim.
The foregoing statements are subject to the detailed
provisions of the New Jersey Business Corporation Act and the Company's
Certificate of Incorporation.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit
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Number Description
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4.1 The Registration Statement of the Company on Form S-1 (File No.
333-45366), filed with the SEC on September 8, 2000, as amended, is
incorporated herein by reference.
4.2 The 1998 Stock Incentive Compensation Plan, filed with the SEC on March
15, 2000 as Exhibit 10.8 to the Company's Amendment No. 2 to the
Registration Statement on Form S-1, as amended, is incorporated herein
by reference.
4.3 Amended and Restated Certificate of Incorporation of the Company, filed
with the SEC on March 15, 2000 as Exhibit 3.1 to the Company's
Amendment No. 2 to the Registration Statement on Form S-1, as amended,
is incorporated herein by reference.
4.4 Amended and Restated Bylaws of the Company, filed with the SEC on March
15, 2000 as Exhibit 3.2 to the Company's Amendment No. 2 to the
Registration Statement on Form S-1, as amended, is incorporated herein
by reference.
*5.1 Opinion of Sills Cummis Radin Tischman Epstein & Gross, P.A.
*23.1 Consent of Deloitte & Touche LLP
*23.2 Consent of Sills Cummis Radin Tischman Epstein & Gross, P.A. (contained
in exhibit 5.1).
*24.1 Powers of Attorney (included in the signature pages of this
Registration Statement).
--------------------------------
* Filed herewith.
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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 the Registration Statement or any material change to such
information in the Registration Statement; and
(2) 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 that is incorporated by reference in this 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) The undersigned registrant hereby undertakes that 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.
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SIGNATURE
Pursuant to the requirements of the Securities Act of 1933, as
amended, 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, duly
authorized, as of September 20, 2000.
ULTICOM, INC.
By:/s/ David Kreinberg
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David Kreinberg
Chief Financial Officer
POWER OF ATTORNEY
We, the undersigned directors and officers of Ulticom, Inc.
(the "Company") and each of us, do hereby constitute and appoint Shawn Osborne
and David Kreinberg, or either of them, our true and lawful attorneys-in-fact
and agents, each with full power of substitution and resubstitution, to do any
and all acts and things in our names and on our behalf in our capacities as
directors and officers and to execute any and all instruments for us and in our
names in the capacities indicated above, which said attorneys or agents, or
either of them, may deem necessary or advisable to enable the Company to comply
with the Securities Act of 1933, as amended, and any rules, regulations and
requirements of the Securities and Exchange Commission, and any and all
amendments (including post-effective amendments) to this Registration Statement,
in connection with the public offering of the common stock of the Company,
including specifically but without limitation, power and authority to sign for
us or any of us in our names in the capacities indicated below, any and all
amendments (including post-effective amendments) to such Registration Statement;
and we do hereby ratify and confirm all that the said attorneys and agents, or
their substitute or substitutes, or either of them, shall 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/ Kobi Alexander Chairman of the Board and Director September 20, 2000
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Kobi Alexander
/s/ Shawn K. Osborne President and Chief Executive Officer and Director September 20, 2000
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Shawn K. Osborne
/s/ David Kreinberg Chief Financial Officer and Director September 20, 2000
-------------------------------------- (Principal Financial and Accounting Officer)
David Kreinberg
/s/ William F. Sorin Director September 20, 2000
--------------------------------------
William F. Sorin
Director September __, 2000
--------------------------------------
Paul D. Baker
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<S> <C> <C>
Director September __, 2000
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Yaacov Koren
/s/ Zvi Bar-On Director September 20, 2000
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Zvi Bar-On
Director September __, 2000
--------------------------------------
Ron Hiram
Director September __, 2000
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Rex McWilliams
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Exhibits
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Number Description
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4.1 The Registration Statement of the Company on Form S-1 (File No.
333-45366), filed with the SEC on September 8, 2000, as amended, is
incorporated herein by reference.
4.2 The 1998 Stock Incentive Compensation Plan, filed with the SEC on March
15, 2000 as Exhibit 10.8 to the Company's Amendment No. 2 to the
Registration Statement on Form S-1, as amended, is incorporated herein
by reference.
4.3 Amended and Restated Certificate of Incorporation of the Company, filed
with the SEC on March 15, 2000 as Exhibit 3.1 to the Company's
Amendment No. 2 to the Registration Statement on Form S-1, as amended,
is incorporated herein by reference.
4.4 Amended and Restated Bylaws of the Company, filed with the SEC on March
15, 2000 as Exhibit 3.2 to the Company's Amendment No. 2 to the
Registration Statement on Form S-1, as amended, is incorporated herein
by reference.
*5.1 Opinion of Sills Cummis Radin Tischman Epstein & Gross, P.A.
*23.1 Consent of Deloitte & Touche LLP
*23.2 Consent of Sills Cummis Radin Tischman Epstein & Gross, P.A. (contained
in exhibit 5.1).
*24.1 Powers of Attorney (included in the signature pages of this
Registration Statement).
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* Filed herewith.
