<PAGE> 1
As filed with the Securities and Exchange Commission on June 13, 1996
Registration No. 333-________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
TEKELEC
(Exact name of registrant as specified in its charter)
CALIFORNIA 95-2746131
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
26580 WEST AGOURA ROAD
CALABASAS, CALIFORNIA 91302
(Address of Principal Executive Offices) (Zip Code)
---------------
1994 STOCK OPTION PLAN
AMENDED AND RESTATED NON-EMPLOYEE DIRECTOR EQUITY INCENTIVE PLAN
EMPLOYEE STOCK PURCHASE PLAN
(Full titles of the plans)
---------------
PHILIP J. ALFORD
CHIEF EXECUTIVE OFFICER
TEKELEC
26580 WEST AGOURA ROAD
CALABASAS, CALIFORNIA 91302
(818) 880-5656
(Name, address and telephone number of agent for service)
---------------
Copy to:
RONALD W. BUCKLY, ESQ.
CLAIRE M. GOLDBLOOM, ESQ.
BRYAN CAVE LLP
120 BROADWAY, SUITE 500
SANTA MONICA, CALIFORNIA 90401
---------------
<PAGE> 2
================================================================================
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed
Title of Amount Proposed Maximum
Securities of Shares Maximum Aggregate Amount of
to be to be Offering Price Offering Registration
Registered Registered per Share Price Fee
- -------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
without par value 975,000(1) $16.0625(2) $15,660,937(2) $5,401
- -------------------------------------------------------------------------------------------------
</TABLE>
(1) Includes 600,000 shares of Common Stock ("Common Stock") of Tekelec
(the "Company") issuable upon exercise of options granted or to be
granted pursuant to the Company's 1994 Stock Option Plan, 175,000
shares issuable upon exercise of options granted or to be granted under
the Company's Amended and Restated Non-Employee Director Equity
Incentive Plan and 200,000 shares issuable upon exercise of options to
be granted under the Company's Employee Stock Purchase Plan.
(2) Estimated pursuant to Rule 457(h) solely for the purpose of calculating
the amount of the registration fee on the basis of the average of the
high and low reported sale prices of a share of Tekelec Common Stock on
June 6, 1996 as reported by The Nasdaq Stock Market in The Wall Street
Journal.
------------------------------
Pursuant to Rule 429 under the Securities Act of 1933, the Prospectus
prepared in accordance with Part I hereof with respect to the Common
Stock issuable under the Company's 1994 Stock Option Plan also relates
to shares of Common Stock previously registered under Registration
Statements on Form S-8 (Registration Nos. 33-82124 and 33-60611), and
the Prospectus prepared in accordance with Part I hereof with respect
to the Common Stock issuable under the Company's Amended and Restated
Non-Employee Director Equity Incentive Plan also relates to shares of
Common Stock previously registered under Registration Statements on
Form S-8 (Registration Nos. 33-30475 and 33-82124).
- -------------------------------------------------------------------------------
(i)
<PAGE> 3
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Items 1 and 2 of
Part I of Form S-8 will be sent or given to plan participants as specified in
Rule 428(b)(1) and, in accordance with the instructions to Part I, are not filed
with the Commission as part of this Registration Statement.
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents and information previously filed with the
Securities and Exchange Commission are hereby incorporated by reference:
Item 3(a)
The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1995.
Item 3(b)
The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 1996.
Item 3(c)
Item 1 of the Registrant's Registration Statement on Form 8-A
(Registration No. 0-15135) filed with the Commission on November
12, 1986, pursuant to Section 12 of the Securities Exchange Act of
1934.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, 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 part hereof from the date of filing such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the shares of the Company's Common Stock registered
hereunder will be passed upon for the Company by Bryan Cave LLP, Santa Monica,
California. A member of Bryan Cave LLP holds 4,000 shares of the Company's
Common Stock.
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<PAGE> 4
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 317 of the California Corporations Code provides that a
corporation may indemnify corporate "agents" (including directors, officers and
employees of the corporation) against expenses, judgments, fines, settlements
and other amounts actually and reasonably incurred in connection with defending
non-derivative actions if such person acted in good faith and in a manner such
person reasonably believed to be in the best interests of the corporation and,
in the case of a criminal proceeding, had no reasonable cause to believe the
conduct of such person was unlawful, and against expenses actually and
reasonably incurred in connection with defending derivative actions if such
person acted in good faith and in a manner such person believed to be in the
best interests of the corporation and its shareholders. Indemnification is
obligatory to the extent that an agent of a corporation has been successful on
the merits in defense of any such proceeding against such agent, but otherwise
may be made only upon a determination in each instance either by a majority vote
of a quorum of the Board of Directors (other than directors involved in such
proceeding), by independent legal counsel if such a quorum of directors is not
obtainable, by the shareholders (other than shareholders to be indemnified), or
by the court, that indemnification is proper because the agent has met the
applicable statutory standards of conduct. Corporations may also advance
expenses incurred in defending proceedings against corporate agents, upon
receipt of an undertaking that the agent will reimburse the corporation unless
it is ultimately determined that the agent is entitled to be indemnified against
expenses reasonably incurred.
The indemnification provided by Section 317 of the California
Corporations Code is not deemed to be exclusive of any other rights to which
agents of the Company seeking indemnification may be entitled under any bylaw,
agreement, vote of shareholders or disinterested directors, or otherwise, both
as to action in an official capacity and as to action in another capacity while
holding such office, to the extent such additional rights are authorized in the
articles of the corporation. Article V of the Company's Restated Articles of
Incorporation authorizes the Company to provide for indemnification of its
agents for breach of duty to the Company and its shareholders, through bylaw
provisions or through agreements with such agents, or both, in excess of the
indemnification otherwise permitted by Section 317, subject to the limits on
such excess indemnification set forth in Section 204 of the California General
Corporation Law.
Article VI of the Company's bylaws provides for the indemnification of
all past and current directors to the maximum extent and in the manner permitted
by Section 317. Additionally, the Company has entered into Indemnification
Agreements with its directors under which the Company has undertaken to
indemnify each such agent to the fullest extent permitted by its Articles of
Incorporation, bylaws and applicable law against all expenses, liability and
loss (which are not paid by insurance or otherwise by the Company) reasonably
incurred or suffered by such agent in connection with the defense of any action
or proceeding to which the agent was or is a party or is threatened to be made a
party by reason of conduct in his capacity as an officer or director, or in
which the agent is or may be involved by reason of the fact that he is or was
serving as an officer or director of the Company, not including actions brought
for violation of Section 16 of the Securities Exchange Act of 1934 or for
failure to qualify for an exemption under Section 4 of the Securities Act of
1933.
The Company also maintains on behalf of its directors and officers
insurance protection against certain liabilities arising out of the discharge of
their duties.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
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<PAGE> 5
ITEM 8. EXHIBITS.
Exhibit
Number
- -------
4.1 1994 Stock Option Plan, including forms of stock option agreements(1)
and Amendments Nos. 1(2), 2(2), and 3 thereto dated as of February 4,
1995, March 3, 1995, and January 27, 1996, respectively
4.2 Amended and Restated Non-Employee Director Equity Incentive Plan,
including form of stock option agreement(1) and Amendment No. 1 thereto
dated as of February 21, 1996
4.2 Employee Stock Purchase Plan, including form of subscription agreement
and form of payroll deduction authorization change or withdrawal
5.1 Opinion of Bryan Cave LLP
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Bryan Cave LLP (included in Exhibit 5.1)
24.1 Power of Attorney (see page 5 of this Registration Statement)
- --------------------
(1) Incorporated by reference to the Registrant's Registration Statement on
Form S-8 (Registration No. 33-82124) filed with the Commission on July
28, 1994.
(2) Incorporated by reference to the Registrant's Registration Statement on
Form S-8 (Registration No. 33-60611) filed with the Commission on June
27, 1995.
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<PAGE> 6
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;
(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)(1)(i) and (a)(1)(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.
(b) 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 Securities Act
of 1933 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 of 1933 and will be governed by the final adjudication of such issue.
-4-
<PAGE> 7
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 CALABASAS, STATE OF CALIFORNIA, ON JUNE 13, 1996.
TEKELEC
By: Philip J. Alford
----------------------------
Philip J. Alford, Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints Philip J. Alford and Jon F. Rager, or
either of them, his attorneys-in-fact and agents, each with full power of
substitution for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments to this Registration Statement, and to
file the same with all exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto each of
said attorneys-in-fact and agents full power and authority to do so and perform
each and every act and thing requisite and necessary to be done in connection
with this Registration Statement, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that either of
said attorneys-in-fact and agents, or his substitute or substitutes, 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>
Philip J. Alford Director, Chief Executive Officer
- -------------------------- and President June 13, 1996
Philip J. Alford (Principal Executive Officer)
Gilles C. Godin Vice President, Finance and Chief June 13, 1996
- -------------------------- Financial Officer (Principal Financial
Gilles C. Godin and Accounting Officer)
Chairman of the Board June __, 1996
- --------------------------
Jean-Claude Asscher
Rovert V. Adams Director June 13, 1996
- --------------------------
Robert V. Adams
Daniel L. Brenner Director June 13, 1996
- --------------------------
Daniel L. Brenner
Howard Oringer Director June 13, 1996
- --------------------------
Howard Oringer
Jon F. Rager Director June 13, 1996
- --------------------------
Jon F. Rager
</TABLE>
-5-
<PAGE> 8
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Sequentially
Exhibit Numbered
Number Exhibit Page
- ------ ------- ----
<S> <C> <C>
4.1 Amendment No. 3 dated as of January 27, 1996 to
1994 Stock Option Plan .............................
4.2 Amendment No. 1 dated as of February 21, 1996 to
Amended and Restated Non-Employee Director Equity
Incentive Plan .....................................
4.3 Employee Stock Purchase Plan, including form of
subscription agreement and form of payroll
deduction authorization change or withdrawal .......
5.1 Opinion of Bryan Cave LLP ..........................
23.1 Consent of Coopers & Lybrand L.L.P. ................
</TABLE>
<PAGE> 1
EXHIBIT 4.1
AMENDMENT NO. 3 TO
TEKELEC
1994 STOCK OPTION PLAN
Section 3 of the Tekelec 1994 Stock Option Plan is hereby amended to
read in its entirety as follows:
"3. SHARES RESERVED.
The maximum aggregate number of Shares reserved for issuance
pursuant to the Plan shall be Two Million (2,000,000) Shares or the
number of shares of stock to which such Shares shall be adjusted as
provided in Section 10 of the Plan. Such number of Shares may be set
aside out of authorized but unissued Shares not reserved for any other
purpose, or out of issued Shares acquired for and held in the treasury
of the Company from time to time.
Shares subject to, but not sold or issued under, any Option
terminating, expiring or canceled for any reason prior to its exercise
in full, shall again become available for Options thereafter granted
under the Plan, and the same shall not be deemed an increase in the
number of Shares reserved for issuance under the Plan."
Dated: January 27, 1996
<PAGE> 1
EXHIBIT 4.2
AMENDMENT NO. 1 TO
TEKELEC
AMENDED AND RESTATED NON-EMPLOYEE DIRECTOR
EQUITY INCENTIVE PLAN
Section 3 of the Company's Amended and Restated Non-Employee Director
Equity Incentive Plan is hereby amended to read in its entirety as follows:
"3. STOCK SUBJECT TO THE AMENDED AND RESTATED PLAN. Subject to
adjustment upon the events specified and in the manner provided in
Section 14 of the Amended and Restated Plan, the maximum aggregate
number of Shares which may be awarded and issued or optioned and sold
under the Amended and Restated Plan is 425,000 Shares. The Shares may
be authorized and unissued or reacquired Shares. If Shares subject to a
Stock Award are not issued or if an Option or a Triennial Option
expires or becomes unexercisable for any reason without having been
exercised in full, the unissued or unpurchased Shares which were the
subject thereof shall, unless the Amended and Restated Plan shall have
been terminated, again become available for issuance pursuant to Stock
Awards or Triennial Options under the Amended and Restated Plan."
Dated: February 21, 1996
<PAGE> 1
EXHIBIT 4.3
TEKELEC
EMPLOYEE STOCK PURCHASE PLAN
The following constitutes the provisions of the Employee Stock
Purchase Plan (the "Plan") of Tekelec (the "Company").
1. Purpose. The purpose of the Plan is to provide employees of the
Company and its subsidiaries with an opportunity to purchase Common Stock of the
Company through payroll deductions. It is the intention of the Company that the
Plan qualify as an "Employee Stock Purchase Plan" under Section 423 of the
Internal Revenue Code of 1986, as amended (the "Code"). The provisions of the
Plan shall, accordingly, be construed so as to extend and limit participation in
a manner consistent with the requirements of that section of the Code, as
amended from time to time.
2. Definitions.
(a) "Compensation," unless otherwise determined by the Board of
Directors of the Company, means total cash compensation from employment
reportable on Form W-2 including, without limitation, regular straight-time
gross earnings, overtime pay, shift premium, incentive compensation, bonuses,
commissions and automobile allowances, but expressly excluding relocation
benefits, expense reimbursements, gains realized in connection with the exercise
of stock options or participation in a stock option or purchase program and
contributions by the Company to qualified deferred compensation plans.
(b) "Employee" means any person, including an officer, who is
customarily employed for more than 20 hours per week by the Company or its
subsidiaries.
(c) "Subsidiary" means any corporation described in Section 424 of
the Code in which the Company owns, directly or indirectly, 50% or more of the
voting shares.
(d) "Offering date" means the first business day of an offering
period of the Plan.
(e) "Termination date" means the last business day of an offering
period of the Plan.
3. Eligibility.
(a) General Rule. Any Employee, as defined in Section 2, who shall
have completed at least 30 days of continuous employment by the Company or its
Subsidiaries on the date his or her participation in the Plan is effective shall
be eligible to participate in the Plan, subject to the limitations imposed by
Section 423(b) of the Code.
<PAGE> 2
(b) Exceptions. Any provisions of the Plan to the contrary
notwithstanding, no Employee shall be granted an option under the Plan if:
(i) immediately after the grant, such Employee (or any other
person whose stock ownership would be attributed to such
Employee pursuant to Section 424(d) of the Code) would own
shares and/or hold outstanding options to purchase shares
possessing five percent or more of the total combined
voting power or value of all classes of shares of the
Company or of any Subsidiary of the Company; or
(ii) such option would permit the Employee's rights to purchase
shares under all employee stock purchase plans of the
Company and its Subsidiaries to accrue (i.e., become
exercisable) at a rate which exceeds $25,000 of fair market
value of such shares (determined at the time such option is
granted) for each calendar year in which such option is
outstanding at any time.
4. Offerings. The Plan shall be implemented by two offerings during each
12-month period of the Plan commencing on July 1, 1996. Each offering shall be
of six months duration. Offering I shall commence on July 1 and end on December
31 of each year of the Plan; Offering II shall commence on January 1 and end on
June 30 of each year of the Plan. Participation in one offering under the Plan
shall neither limit nor require participation in any other offering.
5. Participation. An eligible Employee may become a participant in one or
more offerings under the Plan by completing and signing a subscription agreement
authorizing payroll deductions on a form provided by the Company (the
"Subscription Agreement") authorizing payroll deductions and by filing it with
the Company's payroll office not less than three days prior to the start of the
offering period with respect to which it is to be effective unless a later time
for filing the Subscription Agreement has been set by the Company with respect
to a given offering. An Employee's authorization and participation in the Plan
shall become effective on the first offering date following the timely filing of
his or her Subscription Agreement and shall remain effective until revoked by
the participant by the filing of a Payroll Deduction Authorization Change or
Withdrawal form as described in Section 10(a) hereof or until changed by the
filing of a Payroll Deduction Authorization Change or Withdrawal form providing
for a change in the participant's payroll deduction rate. An Employee who
becomes eligible to participate in the Plan after the commencement of an
offering period may not become a participant in the Plan until the commencement
of the next offering. An Employee who is an officer or director who ceases
participation in the Plan may not participate again for at least six months
following such cessation of participation.
6. Payroll Deductions.
(a) At the time a participant files his or her Subscription
Agreement, he or she shall elect to have payroll deductions made on each payday
during the next offering period at
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<PAGE> 3
a percentage rate equal to a positive whole number not exceeding 10%, or such
other maximum rate as may be determined from time to time by the Company's Board
of Directors (herein sometimes referred to as the "Board") subject to the
provisions of Section 19 hereof, of the Compensation which would otherwise be
payable to such participant on each such payday; provided, however, that the
maximum amount withheld on behalf of a participant with respect to an offering
period shall not exceed the maximum amount that a participant might be required
to pay upon the exercise of his or her option determined as of the first day of
an offering period.
(b) Payroll deductions for a participant shall commence on
the first payday following the date when a participant's payroll deduction
authorization becomes effective and shall automatically continue from offering
period to offering period until changed or terminated by the participant in
accordance with the terms hereof.
(c) All payroll deductions authorized by a participant
shall be credited to the participant's individual account under the Plan. A
participant may not make any additional payments into such account.
(d) A participant may terminate his or her participation in
the Plan at any time prior to the termination of the offering period as provided
in Section 10, but may not change the rate of his or her payroll deductions with
respect to an offering period during such offering period.
7. Grant of Option.
(a) On each offering date with respect to which a
participant's payroll authorization is effective, each participant in the Plan
shall automatically be granted an option to purchase (at the option price as
provided in Section 7(b) hereof) up to the number of whole shares of the
Company's Common Stock arrived at by dividing (i) $12,500 by (ii) 100% of the
fair market value of one share of the Company's Common Stock at the offering
date, subject to the limitations set forth in Sections 3(b) and 12 hereof. The
fair market value of a share of the Company's Common Stock shall be determined
as provided in Section 7(c) hereof.
(b) The option price per share of the shares to be sold
during each offering shall be the lesser of (i) 85% of the fair market value of
one share of the Common Stock of the Company at the offering date or (ii) 85% of
the fair market value of one share of the Common Stock of the Company at the
termination date.
(c) The fair market value of the Company's Common Stock
shall be determined by the Company's Board of Directors, acting in its sole
discretion, and based upon such factors as the Board determines relevant;
provided, however, that if there is a public market for the Common Stock, the
fair market value of a share of Common Stock on a given date shall be the mean
of the closing bid and asked prices for the Common Stock on such date, as
reported in The Wall Street Journal (or, if not so reported, as otherwise
reported by The Nasdaq Stock Market), or, in the event the Common Stock is
listed on a national securities exchange or on the Nasdaq National Market, the
fair market value per share shall be the closing price on such
-3-
<PAGE> 4
exchange or on The Nasdaq Stock Market as of the date of grant of the option, as
reported in The Wall Street Journal.
8. Exercise of Option. Unless a participant cancels his or her
option and withdraws from the Plan as provided in Section 10, his or her option
for the purchase of shares shall be exercised automatically at the termination
date of the offering period, and the accumulated payroll deductions credited to
a participant's account on the termination date will be applied to purchase
whole shares of the Company's Common Stock (up to the maximum number subject to
option as determined in Section 7(a) hereof) at the applicable option price. Any
amount credited to a participant's account and not applied to the purchase of
Common Stock by reason of the limitation on the number of shares subject to
option shall be refunded promptly to such participant after the termination
date, provided that any amount remaining in a participant's account and
representing a fractional share shall be carried over and applied to the
purchase of shares in the subsequent offering period if the participant
participates in the subsequent offering. During his or her lifetime, a
participant's option to purchase shares hereunder is exercisable only by such
participant.
9. Delivery. As promptly as practicable after the end of each
offering period, the Company shall arrange for the issuance and delivery to, or
credit to the account of, each participant, as appropriate, of the shares
purchased upon exercise of his or her option. At the election of the Company,
the issuance and delivery of the shares purchased upon exercise of a
participant's option may be effected by transfer (electronic or otherwise in the
discretion of the Company) of such shares to a securities account maintained in
such participant's name.
10. Withdrawal; Termination of Employment.
(a) A participant may terminate his or her participation
in an offering under the Plan and withdraw all, but not less than all, the
payroll deductions credited to his or her account under the Plan at any time
prior to a termination date by giving written notice of withdrawal to the
Company on a Payroll Deduction Authorization Change or Withdrawal form provided
for such purpose. In such case, all of the participant's payroll deductions
credited to his or her account shall be paid to him or her promptly after
receipt of his or her notice of withdrawal, his or her option for the current
period shall be automatically cancelled, and no further payroll deductions for
the purchase of shares shall be made except pursuant to a new Subscription
Agreement filed in accordance with Section 5 hereof.
A participant may terminate his or her participation in
the Plan effective as of the first day of the next offering period by giving
written notice of withdrawal to the Company on a Payroll Deduction Authorization
Change or Withdrawal form provided for such purpose. In such case, the
participant's payroll deductions will continue through the end of the offering
period in which the notice of withdrawal is given, all amounts deducted from the
participant's Compensation during such offering period will be applied to the
purchase of Common Stock pursuant to the Plan, and following the completion of
such offering period no further payroll deductions for the purchase of shares
shall be made except pursuant to a new Subscription Agreement filed in
accordance with Section 5 hereof.
-4-
<PAGE> 5
(b) Upon termination of a participant's employment for any
reason, including retirement or death, as soon as practicable after such
termination the payroll deductions credited to his or her account shall be
returned to him or her or, in the case of his or her death, to the person or
persons entitled thereto under Section 14, and his or her option shall be
automatically cancelled.
(c) In the event an Employee fails to remain in the
continuous employ of the Company or its Subsidiaries for more than 20 hours per
week during the offering period in which the Employee is a participant, he or
she will be deemed to have elected to withdraw from the Plan and the payroll
deductions credited to his or her account will be returned to him or her and his
or her option will be cancelled.
(d) A participant's withdrawal from an offering shall not
have any effect upon his eligibility to participate in a subsequent offering or
in any similar plan which may hereafter be adopted by the Company.
11. Interest. No interest shall accrue on the payroll
deductions of a participant in the Plan.
12. Stock.
(a) The maximum number of shares of the Company's Common
Stock which shall be made available for sale under the Plan shall be 200,000
shares, subject to adjustment upon changes in capitalization of the Company as
provided in Section 18. The shares to be sold to participants in the Plan will
be authorized but unissued shares. Upon the cancellation of any option granted
under the Plan, the shares subject thereto shall return to the Plan and become
available for options thereafter granted under the Plan. If the total number of
shares which would otherwise be subject to options granted pursuant to Section
7(a) hereof at the offering date exceeds the number of shares then available
under the Plan (after deduction of all shares for which options have been
exercised or are then outstanding), the Company shall make a pro rata allocation
of the shares remaining available for option grant in as uniform and equitable a
manner as is practicable. In such event, the Company shall give written notice
of such reduction of the number of shares subject to the options to each
participant affected thereby and shall reduce the rate of payroll deductions, if
necessary.
(b) A participant will have no interest or voting right in
shares covered by his or her option until such option has been exercised.
(c) Shares to be delivered to a participant under the Plan
shall, as specified in the participant's Subscription Agreement, be registered
in the name of the participant or in the name of the participant and his or her
spouse.
13. Administration. The Plan shall be administered by the
Board or a committee of members of the Board appointed by the Board, as
necessary to comply with Rule 16b-3 under the Securities Exchange Act of 1934.
The Board or its committee shall have full and exclusive discretionary authority
to construe, interpret and apply the terms of the Plan, to determine
-5-
<PAGE> 6
eligibility and to adjudicate all disputed claims filed under the Plan;
provided, however, that to the extent necessary to comply with Rule 16b-3, no
discretion concerning decisions regarding the Plan shall be afforded to a person
who is not a "disinterested person" as that term is defined and interpreted
under Rule 16b-3. Every finding, decision and determination made by the Board or
its committee shall, to the fullest extent permitted by law, be final and
binding upon all parties.
14. Designation of Beneficiary.
(a) A participant may file a written designation of a
beneficiary who is to receive any shares and cash, if any, from the
participant's account under the Plan in the event of such participant's death
subsequent to the termination date of an offering period but prior to delivery
to him or her of such shares and cash. In addition, a participant may file a
written designation of a beneficiary who is to receive any cash from the
participant's account under the Plan in the event of such participant's death
prior to the termination date of an offering period.
(b) Such designation of beneficiary may be changed by the
participant at any time by written notice. In the event of the death of a
participant and in the absence of a valid designation of a beneficiary who is
living at the time of such participant's death, the Company shall deliver such
shares and/or cash to the executor or administrator of the estate of the
participant; or if no such executor or administrator has been appointed (to the
knowledge of the Company), the Company, in its discretion, may deliver such
shares and/or cash to the spouse or to any one or more dependents or relatives
of the participant; or if no spouse, dependent or relative is known to the
Company, then to such other person as the Company may designate.
15. Transferability. Neither payroll deductions credited to a
participant's account nor any rights with regard to the exercise of an option or
to receive shares under the Plan may be assigned, transferred, pledged or
otherwise disposed of in any way (other than by will, the laws of descent and
distribution, pursuant to a qualified domestic relations order as defined by the
Code or Title I of the Employee Retirement Income Security Act, or the rules
thereunder, or as provided in Section 14 hereof) by the participant. Any such
attempt at assignment, transfer, pledge or other disposition shall be without
effect, except that the Company may treat such act as an election to withdraw
funds in accordance with Section 10 hereof.
16. Use of Funds. All payroll deductions received or held by
the Company on behalf of a participant under the Plan may be used by the Company
for any corporate purpose, and the Company shall not be obligated to segregate
such payroll deductions.
17. Reports. Individual accounts will be maintained for each
participant in the Plan. Individual statements of account will be given to
participating Employees semiannually as promptly as practicable following the
termination date of an offering period, which statements shall set forth the
amounts of payroll deductions, the per share option price, the number of shares
purchased and the remaining cash balance, if any, in a participant's account.
-6-
<PAGE> 7
18. Adjustments upon Changes in Capitalization or Control.
(a) Subject to any required action by the shareholders of
the Company, the number of shares of Common Stock covered by each option under
the Plan which has not yet been exercised and the number of shares of Common
Stock which has been authorized for issuance under the Plan but has not yet been
placed under option or which has been returned to the Plan upon the cancellation
of an option, as well as the option price per share of Common Stock covered by
each option under the Plan which has not yet been exercised, shall be
proportionately adjusted for any increase or decrease in the number of issued
shares of Common Stock resulting from a stock split, stock dividend, spin-off,
reorganization, recapitalization, merger, consolidation, exchange of shares or
the like. Such adjustment shall be made by the Board, whose determination in
that respect shall be final, binding and conclusive. Except as expressly
provided herein, no issue by the Company of shares of stock of any class, or
securities convertible into shares of stock of any class, shall affect, and no
adjustment by reason thereof shall be made with respect to, the number or price
of shares of Common Stock subject to option.
(b) In the event of the proposed dissolution or
liquidation of the Company, or in the event of a proposed sale of substantially
all of the assets of the Company, or the merger or consolidation of the Company
with or into another corporation, the Board shall (i) make provision for the
assumption of all outstanding options by the successor corporation or (ii)
declare that any option shall terminate as of a date fixed by the Board which is
at least 30 days after the notice thereof and, unless a participant terminates
his or her participation in the Plan prior to such date, his or her option for
the purchase of shares will be exercised automatically on such date and the
accumulated payroll deductions credited to a participant's account on such date
will be applied to purchase whole shares of the Company's Common Stock (up to
the maximum number subject to option as determined in accordance with Section
7(a) hereof) at the applicable option price.
(c) No fractional shares of Common Stock shall be issuable
on account of any adjustment described herein, and the aggregate number of
shares into which shares then covered by an option, when changed as the result
of such adjustment, shall be reduced to the largest number of whole shares
resulting from such adjustment, unless the Board, in its sole discretion, shall
determine to issue scrip certificates in respect to any fractional shares, which
scrip certificates, in such event, shall be in a form and have such terms and
conditions as the Board in its discretion shall prescribe.
19. Amendment or Termination. The Board of Directors of the
Company may at any time terminate or amend the Plan in such respects as the
Board may deem advisable. No such termination will affect options previously
granted, nor may an amendment make any change in any option theretofore granted
which adversely affects the rights of any participant without the prior written
consent of such participant, nor may an amendment be made without prior approval
of the shareholders of the Company if such amendment would:
(a) Increase the number of shares that may be issued under
the Plan;
-7-
<PAGE> 8
(b) Materially modify the requirements as to eligibility
for participation in the Plan; or
(c) Materially increase the benefits which accrue to
participants under the Plan.
20. Term of Plan. The Plan shall become effective upon the
earlier to occur of its adoption by the Board or its approval by vote of a
majority of the outstanding shares of the Company entitled to vote on the
adoption of the Plan. The Plan shall continue in effect for a term of ten years
unless sooner terminated under Sections 19 or 22 of the Plan.
21. Notices. All notices or other communications (i) by a
participant to the Company in connection with the Plan shall be deemed to have
been duly given when received in the form specified by the Company at the
location, or by the person, designated by the Company for the receipt thereof
and (ii) by the Company to a participant in connection with the Plan shall be
deemed to have been duly given when received by the participant or, if earlier,
five days after deposit in the United States mail by certified or registered
mail, return receipt requested, first class postage prepaid, addressed to the
participant at his or her address as shown on the records of the Company or as
such participant may request by written notice to the Company hereunder.
22. Shareholder Approval. Notwithstanding anything to the
contrary herein, the continuance of the Plan and the effectiveness of any option
granted hereunder shall be subject to approval by the affirmative vote of the
holders of a majority of the outstanding shares of stock of the Company present
or represented and entitled to vote thereon at a meeting of shareholders duly
held in accordance with the laws of the State of California, within 12 months
before or after the date the Plan is adopted by the Board. No options granted
before such shareholder approval has been obtained shall be exercisable unless
such shareholder approval is obtained. If the Plan is not approved by the
shareholders of the Company within the above-referenced 12-month period, the
Plan and any options granted hereunder shall terminate and all payroll
deductions credited to a participant's account shall be promptly returned to him
or her.
23. No Enlargement of Employee Rights. The Plan is purely
voluntary on the part of the Company, and the continuance of the Plan shall not
be deemed to constitute a contract between the Company and any Employee, or to
be consideration for or a condition of the employment of any Employee. Nothing
contained in this Plan shall be deemed to give any Employee the right to be
retained in the employ of the Company, its parent, Subsidiary or a successor
corporation, or to interfere with the right of the Company or any such
corporations to discharge or retire any Employee thereof at any time. No
Employee shall have any right to or interest in options authorized hereunder
prior to the grant of an option to such Employee, and upon such grant he or she
shall have only such rights and interests as are expressly provided herein,
subject, however, to all applicable provisions of the Company's Articles of
Incorporation, as the same may be amended from time to time.
24. Information to Participants. The Company shall provide
without charge to each participant in the Plan copies of such annual and
periodic reports as are provided by the Company to its shareholders generally.
-8-
<PAGE> 9
25. Governing Law. To the extent that Federal laws do not
otherwise control, the Plan and all determinations made or actions taken
pursuant hereto shall be governed by the laws of the state of California,
without regard to the conflicts of laws rules thereof.
26. Tax Withholding. If at any time the Company or any
Subsidiary is required, under applicable laws and regulations, to withhold, or
to make any deduction of, any taxes or take any other action in connection with
any exercise of an option made hereunder or transfer of shares of Common Stock,
the Company or such Subsidiary shall have the right to deduct from all amounts
paid in cash any taxes required by law to be withheld therefrom, and in the case
of shares of Common Stock, the participant or his or her estate or beneficiary
shall be required to pay the Company or such Subsidiary the amount of taxes
required to be withheld or, in lieu thereof, the Company or such Subsidiary
shall have the right to retain, or sell without notice, a sufficient number of
shares of Common Stock to cover the amount required to be withheld, or to make
other arrangements with respect to withholding as it shall deem appropriate.
27. Securities Law Compliance. No shares of Common Stock may
be issued upon the exercise of any option under the Plan until all requirements
of applicable Federal, state, foreign or other securities laws with respect to
the purchase, sale and issuance of shares of Common Stock shall have been
satisfied. If any action must be taken because of such requirements, then the
purchase, sale and issuance of shares shall be postponed until such action can
reasonably be taken. Upon request by the Company, an Employee shall deliver to
the Company such information, representations or undertakings as the Company may
reasonably request in order to comply with any registration requirements or
exemptions therefrom of applicable securities laws. The Company may require any
securities so issued to bear a legend, may give its transfer agent instructions,
and may take such other steps as in its judgment are reasonably required to
prevent any violation of applicable securities laws.
-9-
<PAGE> 10
TEKELEC
CERTIFICATE OF SECRETARY
I hereby certify that I am the duly elected, qualified and
acting Secretary of Tekelec, a California corporation (the "Company"); that the
foregoing plan is a true and correct copy of the Company's 1996 Employee Stock
Purchase Plan; and that the Plan has been duly authorized, adopted and approved
by the Board of Directors and the shareholders of the Company.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed
the corporate seal this 5th day of June, 1996.
Ronald W. Buckly
----------------------------
Ronald W. Buckly, Secretary
[SEAL]
<PAGE> 11
TEKELEC
EMPLOYEE STOCK PURCHASE PLAN
FORM OF
SUBSCRIPTION AGREEMENT
Instructions: Please print or type all information except your signature.
NAME:
---------------------------------------------------------------------------
First Middle Last
ADDRESS:
-----------------------------------------------------------------------\
SOCIAL SECURITY NO.: ___ ___ ___ - ___ ___ - ___ ___ ___ ___
EMPLOYEE NO.: EMPLOYMENT START DATE:
------------------------- ---------------
ORIGINAL APPLICATION
1. I hereby elect to participate in the Tekelec Employee Stock Purchase
Plan (the "Plan") in accordance with this Subscription Agreement and
subject to the terms and conditions of the Plan.
2. I hereby authorize Tekelec to make regular payroll deductions, at
the rate indicated below and in accordance with the terms of the
Plan, from the total Compensation (as defined in the Plan) including
overtime, bonuses, commissions and other earnings, if any, paid to
me during each offering period during which I remain a participant
in the Plan:
(CIRCLE ONE) 1% 2% 3% 4% 5% 6% 7% 8% 9% 10%
OF COMPENSATION
3. I understand that payroll deductions at the indicated rate will
continue from offering period to offering period unless I become
ineligible to participate in the Plan or I file the Payroll
Deduction Authorization Change or Withdrawal portion of this form
below.
4. I understand that the deducted amounts will be applied automatically
to the purchase of shares of Tekelec Common Stock at the end of each
offering period unless I elect to cancel my option and withdraw from
the Plan by filing the Payroll Deduction Authorization Change or
Withdrawal portion of this form below.
5. I hereby acknowledge that I have received and read a copy of
Tekelec's most recent Prospectus describing the terms and provisions
of the Plan and understand the information therein and the risks of
participating in the Plan.
<PAGE> 12
6. Shares purchased for me under the Plan should be issued in the
name(s) of:
7. I hereby agree to be bound by the terms of the Plan. The
effectiveness of this Subscription Agreement is dependent upon my
eligibility to participate in the Plan.
8. In the event of my death before the end of an offering period, I
hereby designate as my beneficiary(ies) to receive all payments and
shares due me under the Plan:
Name: (Please print)
-----------------------------------------------------------
First Middle Last
- ----------------- -----------------------------------------------------------
Relationship Address
-----------------------------------------------------------
City State Zip Code
Name: (Please print)
-----------------------------------------------------------
First Middle Last
- ----------------- -----------------------------------------------------------
Relationship Address
-----------------------------------------------------------
City State Zip Code
DATE:
--------------------- ------------------------------
SIGNATURE OF EMPLOYEE
ELECTION NOT TO PARTICIPATE
I hereby acknowledge receipt of a copy of Tekelec's most recent
Prospectus which describes the Tekelec Employee Stock Purchase Plan and elect
not to participate in the Plan. I understand that my decision not to participate
in the next offering under the Plan will not affect my eligibility to
participate in subsequent offerings under the Plan.
DATE:
---------------------- --------------------------------
SIGNATURE OF EMPLOYEE
- --------------------------------------------------------------------------------
(To be completed by Tekelec)
Date Received:
--------------------
Approved by:
----------------------
<PAGE> 13
TEKELEC
EMPLOYEE STOCK PURCHASE PLAN
FORM OF
PAYROLL DEDUCTION AUTHORIZATION CHANGE OR WITHDRAWAL
I am now a participant in the Tekelec Employee Stock Purchase Plan
(the "Plan") and I wish to make the change indicated below (check one):
/ / A. CHANGE IN PAYROLL DEDUCTION RATE: I hereby
authorize the following new rate of payroll
deduction, effective as of the first payday of the
next offering period (such change must be filed
with the Company at least three days prior to the
start of the offering period with respect to which
it is to be effective):
(CIRCLE ONE) 1% 2% 3% 4% 5% 6% 7% 8% 9% 10%
OF COMPENSATION
/ / B. WITHDRAWAL FROM PLAN AND CANCELLATION OF OPTION: I
hereby elect to cancel my participation in the
Plan effective immediately and to cancel my option
to purchase Tekelec Common Stock under the Plan
and request that all amounts withheld from me
through payroll deductions relating to the
cancelled option be refunded to me. I understand
that cancellation of my option will be effective
only if this form is filed with the Company prior
to the close of the current offering period. I
understand that if I wish to participate in the
Plan following my cancellation and withdrawal from
the Plan, I must re-enroll by filing a new
Subscription Agreement with the Company at least
three days prior to the start of the offering
period with respect to which it is to be
effective.
/ / C. WITHDRAWAL FROM PLAN WITHOUT CANCELLATION OF
OPTION. I hereby elect to cancel my participation
in the Plan effective as of the first day of the
next offering period. However, I request that my
previously authorized payroll deductions continue
through the end of the current offering period and
that all amounts deducted from my Compensation
during the current offering period be applied to
the purchase of Tekelec Common Stock pursuant to
the Plan. I understand that if I wish to
participate in the Plan following my cancellation
and withdrawal from the Plan, I must re-enroll by
filing a new Subscription Agreement with the
Company at least three days prior to the start of
the offering period with respect to which it is to
be effective.
DATE:
------------------- -----------------------------------
SIGNATURE OF EMPLOYEE
PRINT NAME:
-----------------------------------
- --------------------------------------------------------------------------------
(To be completed by Tekelec)
Date Received:
-----------------
Approved by:
-------------------
<PAGE> 1
EXHIBIT 5.1
June 13, 1996
Tekelec
26580 West Agoura Road
Calabasas, California 91302
Re: Tekelec - Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as securities counsel for Tekelec, a California
corporation (the "Company"), in connection with the preparation of a
registration statement on Form S-8 (the "Registration Statement") under the
Securities Act of 1933 to be filed with the Securities and Exchange Commission
(the "Commission") on June 13, 1996, in connection with the registration of an
aggregate of 975,000 shares of Common Stock, without par value (collectively,
the "Shares"), including 600,000 shares of Common Stock of the Company issuable
upon exercise of options granted or to be granted pursuant to the Company's 1994
Stock Option Plan, 175,000 shares issuable upon exercise of options granted or
to be granted under the Company's Amended and Restated Non-Employee Director
Equity Incentive Plan, and 200,000 shares issuable upon exercise of options
granted or to be granted under the Company's Employee Stock Purchase Plan
(collectively, the "Plans").
In connection with the preparation of the Registration
Statement and the proposed issuance and sale of the Shares in accordance with
the Plans and the Form S-8 prospectus to be delivered to participants in the
Plans, we have made certain legal and factual examinations and inquiries and
examined, among other things, such documents, records, instruments, agreements,
certificates and matters as we have considered appropriate and necessary for the
rendering of this opinion. We have assumed for the purpose of this opinion the
authenticity of all documents submitted to us as originals and the conformity
with the originals of all documents submitted to us as copies, and the
genuineness of the signatures thereon. As to various questions of fact material
to this opinion, we have, when relevant facts were not independently
established, relied,
<PAGE> 2
Tekelec
June 13, 1996
Page 2
to the extent deemed proper by us, upon certificates and statements of officers
and representatives of the Company.
Based on the foregoing and in reliance thereon, it is our
opinion that the Shares have been duly authorized and, after the Registration
Statement becomes effective and after any post-effective amendment required by
law is duly completed, filed and becomes effective, and when the applicable
provisions of "Blue Sky" and other state securities laws shall have been
complied with, and when the Shares are issued and sold in accordance with the
Plans and the Form S-8 prospectuses to be delivered to participants in the
Plans, the Shares will be validly issued, fully paid and nonassessable.
We hereby consent to the inclusion of our opinion as Exhibit
5.1 to the Registration Statement and further consent to the reference to this
firm in the Registration Statement. In giving this consent, we do not hereby
admit that we are in the category of persons whose consent is required under
Section 7 of the Securities Act of 1933 or the rules and regulations of the
Commission thereunder.
This opinion is rendered solely for your benefit in accordance
with the subject transaction and is not to be otherwise used, circulated, quoted
or referred to without our prior written consent. We are opining herein as to
the effect on the subject transaction only of United States federal law and the
internal (and not the conflict of law) laws of the State of California, and we
assume no responsibility as to the applicability thereto, or the effect thereon,
of the laws of any other jurisdiction.
Very truly yours,
Bryan Cave LLP
BRYAN CAVE LLP
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement of
Tekelec on Form S-8 of our report dated February 9, 1996, on our audits of the
consolidated financial statements and consolidated financial statement
schedules of Tekelec as of December 31, 1995 and 1994 and for the years ended
December 31, 1995, 1994, and 1993.
COOPERS & LYBRAND L.L.P.
- ------------------------------
Coopers & Lybrand L.L.P.
Sherman Oaks, California
June 12, 1996
