<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 15, 2000.
FILE 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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Telaxis Communications Corporation
(Exact name of registrant as specified in its charter)
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MASSACHUSETTS 04-2751645
(STATE OR OTHER JURISDICTION OF (I.R.S EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
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20 Industrial Drive East
South Deerfield, Massachusetts 01373
(Address of Principal Executive
Offices)
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TELAXIS COMMUNICATIONS CORPORATION
INCENTIVE STOCK OPTION PLAN OF 1986
1987 STOCK PLAN
1988 STOCK PLAN
1996 STOCK PLAN
1997 STOCK PLAN
1999 STOCK PLAN
(FULL TITLE OF THE PLAN)
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JOHN L. YOUNGBLOOD
PRESIDENT AND CHIEF EXECUTIVE OFFICER
TELAXIS COMMUNICATIONS CORPORATION
20 INDUSTRIAL DRIVE EAST
SOUTH DEERFIELD, MASSACHUSETTS 01373
(Name and address of agent for service)
(413) 665-8551
(Telephone number, including area code, of agent for service)
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Copy to:
DAVID L. LOUGEE, ESQ.
MIRICK, O'CONNELL, DEMALLIE & LOUGEE, LLP
100 FRONT STREET
WORCESTER, MASSACHUSETTS 01608-1477
(508) 791-8500
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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PROPOSED MAXIMUM PROPOSED
TITLE OF SECURITIES AMOUNT TO OFFERING PRICE PER MAXIMUM AGGREGATE AMOUNT OF
TO BE REGISTERED BE REGISTERED(1) SHARE(4) OFFERING PRICE(4) REGISTRATION FEE
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par value...... 1,612,853(2) $ 2.98 $ 4,811,158.40(5) $ 1,270.15
- -------------------------------------------------------------------------------------------------------------------
Common Stock, $.01 par value...... 2,116,871(3) $46.50 $98,434,501.50 $25,986.71
===================================================================================================================
</TABLE>
(1) Pursuant to Rule 416(b), this Registration Statement also relates to such
indeterminate number of additional shares as may be necessary to satisfy
the antidilution provisions of the Incentive Stock Option Plan of 1986,
1987 Stock Plan, 1988 Stock Plan, 1996 Stock Plan, 1997 Stock Plan and 1999
Stock Plan (the "Plans") to which this Registration Statement relates.
(2) Represents all shares reserved for issuance upon exercise of options under
the Plans which are currently outstanding.
(3) Represents all shares reserved for issuance upon exercise of options
reserved for grant under the 1996 Stock Plan, the 1997 Stock Plan and the
1999 Stock Plan.
(4) The proposed maximum offering price per share of Common Stock and the
proposed maximum aggregate offering price are calculated solely for the
purpose of determining the registration fee pursuant to Rule 457(h) under
the Securities Act of 1933. With respect to 1,612,853 shares of Common
Stock as to which outstanding options were granted prior to the date of
this Registration Statement, the registration fee is based on the weighted
average exercise price per share of $2.98. With respect to the balance of
2,116,871 shares being registered, the fee is based on a price of $46.50
per share, which is the average of the high and low sale prices of the
Common Stock on February 9, 2000, as quoted on the Nasdaq National Market.
(5) Represents the actual aggregate exercise price of the 1,612,853 shares of
Common Stock as to which outstanding options were granted prior to the date
of this Registration Statement.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
Telaxis Communications Corporation (the "Registrant" or the "Company")
hereby incorporates by reference the following documents:
(a) The Registrant's Prospectus filed on February 2, 2000 pursuant to Rule
424(b) of the Securities Act of 1933, which contains audited financial
statements for the Registrant's latest fiscal year for which such statements
have been filed (File No. 333-87885).
(b) All of the reports filed by the Registrant pursuant to Sections 13(a)
or 15(d) of the Securities Exchange Act of 1934 since December 31, 1998.
(c) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form S-1 filed on September 27, 1999, as
amended on October 15, 1999, December 21, 1999, January 11, 2000 and January 31,
2000 (File No. 333-87885).
All documents subsequently filed by the Registrant pursuant to Section
13(a), 13(c), 14 and 15(d) of the Securities Exchange Age of 1934 and 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 in this Registration
Statement and to be a part thereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the authorization and issuance of the Common Stock offered
hereby will be passed upon for the Registrant by Mirick, O'Connell, DeMallie &
Lougee, LLP, Worcester, Massachusetts. Partners and associates of Mirick,
O'Connell, DeMallie & Lougee, LLP beneficially own an aggregate of 18,250 shares
of the Registrant's Common Stock and hold options to acquire an additional 8,625
shares, all of which may be exercised as of this date.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 67 of Chapter 156B of the Massachusetts General Laws, or the
Massachusetts Business Corporation Law (the "MBCL"), provides that the
indemnification of directors, officers, employees or other agents of a
corporation and persons who serve at its request as directors, officers,
employees or other agents of another organization, or who serve at its request
in any capacity with respect to any employee benefit plan, may be provided by it
to whatever extent shall be specified in or authorized by (i) the articles of
organization or (ii) a by-law adopted by the stockholders or (iii) a vote
adopted by the holders of a majority of the shares of
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stock entitled to vote on the election of directors. Except as the articles of
organization or by-laws otherwise require, indemnification of any persons who
are not directors of the corporation may be provided by it to the extent
authorized by the directors. Such indemnification may include payment by the
corporation of expenses incurred in defending a civil or criminal action or
proceeding in advance of the final disposition of such action or proceeding,
upon receipt of an undertaking by the person indemnified to repay such payment
if he shall be adjudicated not to be entitled to indemnification, which
undertaking may be accepted without reference to the financial ability of such
person to make repayment. Any such indemnification may be provided although the
person to be indemnified is no longer an officer, director, employee or agent of
the corporation or of such other organization or no longer serves with respect
to any such employee benefit plan. Section 67 further provides that no
indemnification shall be provided for any person with respect to any matter as
to which he shall have been adjudicated in any proceeding not to have acted in
good faith in the reasonable belief that his action was in the best interest of
the corporation, or to the extent that such matter relates to service with
respect to any employee benefit plan, in the best interest of the participants
or beneficiaries of such employee benefit plan.
The Registrant's By-laws provide that the Registrant indemnify each person
who is, or shall have been, a director, officer, employee or agent of the
Registrant, or who is serving or shall have served, at the request of the
Registrant, as director or officer of another organization or in any capacity
with respect to any employee benefit plan of the Registrant, against all
liabilities and expenses (including judgments, fines, penalties, amounts paid or
to be paid in settlement and reasonable attorney's fees) imposed upon or
incurred by any such person in connection with or arising out of claims made, or
any action, suit or proceeding threatened or brought against him or in which he
may be involved by reason of any action taken or omitted by him as a director,
officer, employee or agent, or as a result of any service with respect to any
such employee benefit plan.
Section 13(b)(1 1/2) of Chapter 156B of the MBCL permits a corporation to
include in its articles of organization a provision eliminating or limiting the
personal liability of a director to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director, provided that such
provision shall not eliminate or limit the liability of a director (i) for any
breach of the director's duty of loyalty to the corporation 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 61 or 62 of the
MBCL (relating to unlawful payment of dividends, unlawful stock purchase and
redemption and loans to insiders) or (iv) for any transaction from which the
director derived an improper personal benefit. Article VI of the Registrant's
Articles of Organization provides that the Registrant's directors shall not be
liable to the Registrant or its stockholders for monetary damages for breach of
fiduciary duty as directors, except in the circumstances set forth in the MBCL.
Section 67 of the MBCL also affords a Massachusetts corporation the power
to obtain insurance on behalf of its directors and officers against liabilities
incurred by them in those capacities. The Registrant currently maintains a
$15,000,000 Directors and Officers Liability Insurance Policy.
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The Underwriting Agreement dated February 1, 2000 between the Registrant,
Credit Suisse First Boston Corporation, Banc of America Securities LLC and CIBC
World Markets Corp. provides that the underwriters named therein will indemnify
and hold harmless the Registrant and each director, officer or controlling
person of the Registrant from and against certain liabilities, including
liabilities under the Securities Act of 1933, as amended (the "Securities Act"),
and the Underwriting Agreement provides that such Underwriters will contribute
to certain liabilities of such persons under the Securities Act.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
EXHIBIT
NUMBER DESCRIPTION
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4.1 Restated Articles of Organization of the Registrant
(incorporated by reference to Exhibit 3.1 of the
Registrant's Pre-Effective Amendment No. 1 to Registration
Statement on Form S-1 (File No. 333-87885))
4.2 Amended and Restated By-Laws of the Registrant (incorporated
by reference to Exhibit 3.2 of the Registrant's
Pre-Effective Amendment No. 1 to Registration Statement on
Form S-1 (File No. 333-87885))
4.3 Incentive Stock Option Plan of 1986 (incorporated by
reference to Exhibit 10.1 of the Registrant's Registration
Statement on Form S-1 (File No. 333-87885))
4.4 1987 Stock Plan (incorporated by reference to Exhibit 10.2
of the Registrant's Registration Statement on Form S-1 (File
No. 333-87885))
4.5 1988 Stock Plan (incorporated by reference to Exhibit 10.3
of the Registrant's Registration Statement on Form S-1 (File
No. 333-87885))
4.6 1996 Stock Plan (incorporated by reference to Exhibit 10.4
of the Registrant's Registration Statement on Form S-1 (File
No. 333-87885))
4.7 1997 Stock Plan (incorporated by reference to Exhibit 10.5
of the Registrant's Registration Statement on Form S-1 (File
No. 333-87885))
4.8 1999 Stock Plan (incorporated by reference to Exhibit 10.6
of the Registrant's Registration Statement on Form S-1 (File
No. 333-87885))
5.1 Opinion of Mirick, O'Connell, DeMallie & Lougee, LLP
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23.1 Consent of PricewaterhouseCoopers LLP, Independent Certified
Public Accountants
23.2 Consent of Mirick, O'Connell, DeMallie & Lougee, LLP
(included in Exhibit 5.1)
24 Power of Attorney (included on signature pages)
Item 9. UNDERTAKINGS.
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;
(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)(l)(i) and (a)(l)(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 Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(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.
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
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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.
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.
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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 TOWN OF SOUTH DEERFIELD, COMMONWEALTH OF MASSACHUSETTS ON
FEBRUARY 15, 2000.
Telaxis Communications Corporation
By: /s/ John L. Youngblood
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John L. Youngblood, President and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that TELAXIS COMMUNICATIONS CORPORATION, a
corporation organized under the laws of the Commonwealth of Massachusetts (the
"Corporation"), and the undersigned officers and directors of the Corporation,
individually and in their respective capacities indicated below, hereby make,
constitute and appoint JOHN L. YOUNGBLOOD and DENNIS C. STEMPEL its and their
true and lawful attorneys, their separate or joint signatures sufficient to
bind, with power of substitution, to execute, deliver and file in its or their
behalf, and in each person's respective capacity or capacities as shown below,
with the Securities and Exchange Commission (or any other governmental
authority) a Registration Statement on Form S-8 under the Securities Act of
1933, as amended, any amendments to and any and all documents in support of or
supplemental to said registration statement by the Corporation and each said
person hereby grants to said attorneys full power and authority to do and
perform each and every act and thing whatsoever as any one of said attorneys may
deem necessary or advisable to carry out the full intent of this Power of
Attorney to the same extent and with the same effect as the Corporation or the
undersigned officers and directors of the Corporation might or could do
personally in its or their capacity or capacities as aforesaid; and each of said
persons hereby ratifies, confirms, and approves all acts and things that any one
of said attorneys may do or cause to be done by virtue of this Power of Attorney
and its signature or their signatures as the same may be signed by any one of
said attorneys to said registration statement and any and all documents in
support of or supplemental to said Registration Statement and any and all
amendments thereto.
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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:
SIGNATURE TITLE DATE
--------- ----- ----
President, Chief Executive February 15, 2000
/s/ John L. Youngblood Officer and Director
- ----------------------------
John L. Youngblood
Vice President, Chief February 15, 2000
/s/ Dennis C. Stempel Financial Officer, Treasurer,
- ---------------------------- and Principal Accounting Officer
Dennis C. Stempel
/s/ Albert E. Paladino Chairman of the Board of February 15, 2000
- ---------------------------- Directors
Albert E. Paladino
/s/ Allan M. Doyle, Jr. Director February 15, 2000
- ----------------------------
Allan M. Doyle, Jr.
/s/ Robert C. Fleming Director February 15, 2000
- ----------------------------
Robert C. Fleming
/s/ James W. Fordyce Director February 15, 2000
- ----------------------------
James W. Fordyce
/s/ David A. Norbury Director February 15, 2000
- ----------------------------
David A. Norbury
/s/ Matthew S. Robison Director February 15, 2000
- ----------------------------
Matthew S. Robison
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
------ -----------
4.1 Restated Articles of Organization of the Registrant
(incorporated by reference to Exhibit 3.1 of the
Registrant's Pre-Effective Amendment No. 1 to Registration
Statement on Form S-1 (File No. 333-87885))
4.2 Amended and Restated By-Laws of the Registrant (incorporated
by reference to Exhibit 3.2 of the Registrant's
Pre-Effective Amendment No. 1 to Registration Statement on
Form S-1 (File No. 333-87885))
4.3 Incentive Stock Option Plan of 1986 (incorporated by
reference to Exhibit 10.1 of the Registrant's Registration
Statement on Form S-1 (File No. 333-87885))
4.4 1987 Stock Plan (incorporated by reference to Exhibit 10.2
of the Registrant's Registration Statement on Form S-1 (File
No. 333-87885))
4.5 1988 Stock Plan (incorporated by reference to Exhibit 10.3
of the Registrant's Registration Statement on Form S-1 (File
No. 333-87885))
4.6 1996 Stock Plan (incorporated by reference to Exhibit 10.4
of the Registrant's Registration Statement on Form S-1 (File
No. 333-87885))
4.7 1997 Stock Plan (incorporated by reference to Exhibit 10.5
of the Registrant's Registration Statement on Form S-1 (File
No. 333-87885))
4.8 1999 Stock Plan (incorporated by reference to Exhibit 10.6
of the Registrant's Registration Statement on Form S-1 (File
No. 333-87885))
5.1 Opinion of Mirick, O'Connell, DeMallie & Lougee, LLP
23.1 Consent of PricewaterhouseCoopers LLP, Independent Certified
Public Accountants
23.2 Consent of Mirick, O'Connell, DeMallie & Lougee, LLP
(included in Exhibit 5.1)
24 Power of Attorney (included on signature pages)
<PAGE>
Exhibit 5.1
February 15, 2000
Telaxis Communications Corporation
20 Industrial Drive East
South Deerfield, Massachusetts 01373
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
As your counsel, we are familiar with the corporate proceedings taken in
connection with the adoption of your company's Incentive Stock Plan of 1986,
1987 Stock Plan, 1988 Stock Plan, 1996 Stock Plan, 1997 Stock Plan and 1999
Stock Plan (the "Plans"). We are also familiar with the registration statement
on Form S-8 to which a copy of this opinion will be attached as an exhibit.
We have examined the corporate records of the Registrant, including the
Restated Articles of Organization, By-laws, stock records, minutes of meetings
of its Board of Directors and stockholders and such other documents as we have
deemed necessary as a basis for the opinions herein expressed.
Based upon the foregoing, and having regard for such legal considerations
as we deem relevant, we are of the opinion that:
1. The Registrant is duly organized and validly existing under the
laws of the Commonwealth of Massachusetts.
2. The Registrant is authorized to issue 100,000,000 shares of Common
Stock, $.01 par value; 3,090,323 shares of Class A Preferred Stock, $.01
par value; 789,677 shares of Class B Preferred Stock, $.01 par value;
7,200,000 shares of Class D Preferred Stock, $.01 par value; 11,000,000
shares of Class E Preferred Stock, $.01 par value; and 4,500,000 shares of
undesignated Preferred Stock, $.01 par value.
3. The shares of common stock issuable pursuant to the Plan, when sold
in accordance with the terms thereof, will be legally issued, fully paid
and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement on Form S-8.
Very truly yours,
/s/ Mirick, O'Connell, DeMallie & Lougee,LLP
Mirick, O'Connell, DeMallie & Lougee, LLP
<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 our report dated March 5, 1999, except for Note 2 as to
which the date is August 24, 1999, Note 19 as to which the date is October 18,
1999, and Note 20 as to which the date is December 16, 1999, included in the
Registrant's Prospectus filed on February 2, 2000 with the Securities and
Exchange Commission (File No. 333-87885).
/s/ PricewaterhouseCoopers LLP
Hartford, Connecticut
February 15, 2000
