<PAGE> 1
As filed with the Securities and Exchange Commission on October 14, 1997
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)
------------------------------
WARRANTS TO PURCHASE COMMON STOCK
(Full title of the plan)
------------------------------
ALLAN J. TOOMER
PRESIDENT
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.
ROBERT E. WYNNER, ESQ.
BRYAN CAVE LLP
120 BROADWAY, SUITE 500
SANTA MONICA, CALIFORNIA 90401
------------------------------
<PAGE> 2
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===================================================================================================
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 180,000(1) $28.15625 $5,068,125 $1,536
</TABLE>
(1) Represents shares issuable upon the exercise of outstanding warrants
to purchase an aggregate of 180,000 shares of the Company's Common
Stock at an exercise price of $28.15625 per share.
==============================================================================
<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 Securities and Exchange 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, 1996.
Item 3(b)
The Registrant's Quarterly Reports on Form 10-Q for the
fiscal quarters ended March 31, 1997 and June 30, 1997.
Item 3(c)
Item 1 of the Registrant's Registration Statement on
Form 8-A (File 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.
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
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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 Company. 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
------
5.1 Opinion of Bryan Cave LLP
10.1 Form of Warrant to Purchase 30,000 shares of the Registrant's
Common Stock and Schedule of Warrantholders
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)
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
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<PAGE> 6
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.
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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 CITY OF CALABASAS, STATE OF CALIFORNIA, ON OCTOBER 14,
1997.
TEKELEC
By: Allan J. Toomer
-----------------------------------
Allan J. Toomer, President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Allan J. Toomer and Gilles C.
Godin, 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>
Allan J. Toomer Director and President October 14, 1997
---------------------------------- (Principal Executive Officer)
Allan J. Toomer
Gilles C. Godin Vice President, Finance and Chief October 14, 1997
----------------------------------- Financial Officer (Principal Financial
Gilles C. Godin and Accounting Officer)
Jean-Claude Asscher Chairman of the Board October 14, 1997
-----------------------------------
Jean-Claude Asscher
Robert V. Adams Director October 14, 1997
-----------------------------------
Robert V. Adams
Daniel L. Brenner Director October 14, 1997
----------------------------------
Daniel L. Brenner
Howard Oringer Director October 14, 1997
----------------------------------
Howard Oringer
Jon F. Rager Director October 14, 1997
---------------------------------
Jon F. Rager
</TABLE>
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INDEX TO EXHIBITS
Exhibit
Number Exhibit
------ -------
5.1 Opinion of Bryan Cave LLP . . . . . . . . . . . . . . . . . . . .
10.1 Form of Warrant to Purchase 30,000 shares of the Registrant's
Common Stock and Schedule of Warrantholders . . . . . . . . . . .
23.1 Consent of Coopers & Lybrand L.L.P. . . . . . . . . . . . . . . .
<PAGE> 1
EXHIBIT 5.1
Bryan Cave LLP
120 Broadway, Suite 500
Santa Monica, CA 90401-2305
Telephone: (310) 576-2100
Facsimile: (310) 576-2200
October 14, 1997
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 October 14, 1997, in connection with the registration of
an aggregate of 180,000 shares of Common Stock, without par value
(collectively, the "Shares"), issuable upon exercise of warrants granted to
five non-employee directors and one officer of the Company (such warrants are
referred to herein as the "Plan").
In connection with the preparation of the Registration
Statement and the proposed issuance and sale of the Shares in accordance with
the Plan and the Form S-8 prospectus to be delivered to participants in the
Plan, 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, 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
<PAGE> 2
complied with, and when the Shares are issued and sold in accordance with the
Plan and the Form S-8 prospectus to be delivered to participants in the Plan,
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 10.1
WARRANT TO PURCHASE COMMON STOCK
OF
TEKELEC
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 AND HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR
DISTRIBUTION THEREOF. NO SUCH SALE OR DISTRIBUTION MAY BE EFFECTED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT RELATING THERETO OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
Warrant to Purchase
30,000 Shares of Common Stock*
TEKELEC
INCORPORATED UNDER THE LAWS OF THE STATE
OF CALIFORNIA
Void after July 24, 2004
THE WARRANT evidenced by this Certificate has been issued for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and was granted on July 24, 1997.
THIS CERTIFICATE evidences the right of ____________________ (the
"Holder") to purchase 30,000* shares of Common Stock, without par value (the
"Shares"), of Tekelec, a California corporation (the "Company"), at a price of
$28.15625* per Share, subject, however, to the terms and conditions hereinafter
set forth.
1.Definitions. As used in this Certificate:
(a) "Warrant" shall mean the rights evidenced by this Certificate.
(b) "Warrant Price" shall mean $28.15625,* as adjusted in
accordance with Section 5 hereof.
__________________________________
* All references to the number of shares subject to the Warrant and to the
exercise price of the Warrant have been adjusted to reflect the two-for-one
stock split effected in August 1997.
<PAGE> 2
2. Term of Warrant. The Warrant may be exercised only during the period
commencing on September 30, 1997 through the close of business on July 24, 2004
(the "Warrant Term") and may be exercised only in accordance with the terms and
conditions hereinafter set forth.
3. Exercise of Warrant. The Warrant shall be exercisable as follows:
(a) Right to Exercise. The Warrant shall vest and become
exercisable cumulatively in 12 equal quarterly installments with the first
installment vesting on September 30, 1997 and one additional installment vesting
on the last day of each calendar quarter thereafter so long as the Holder
remains _______________________________.
Notwithstanding the foregoing, if the Holder shall
cease to be _________________ of the Company for any reason or no reason
("Termination"), whether such Termination is permanent or temporary, then after
the effective date of such Termination and through the end of the Warrant Term
the Holder may exercise the Warrant to purchase only such number of Shares that
the Holder would have been entitled to purchase on the effective date of such
Termination as determined in accordance with the immediately preceding sentence.
To the extent that the Holder shall not have been entitled to exercise any
portion of the Warrant on the effective date of such Termination, such portion
shall be deemed to have expired unexercised on such effective date.
(b) Method of Exercise; Payment; Issuance of New Warrant;
Transfer and Exchange. The Warrant may be exercised by the Holder, in whole or
in part, by the surrender of this Certificate, properly endorsed, with the form
of subscription attached to this Certificate duly executed by the Holder, at the
principal office of the Company, and by the payment to the Company by check of
the then applicable Warrant Price. In the event of any exercise of the Warrant,
certificates for the Shares so purchased shall be delivered to the Holder within
a reasonable time after the Warrant has been so exercised and, unless the
Warrant has expired, a new certificate representing the right to purchase the
number of Shares, if any, with respect to which this Warrant shall not then have
been exercised shall also be issued to the Holder within such time. All such new
certificates shall be dated the date hereof and shall be identical to this
Certificate except as to the number of Shares issuable pursuant thereto.
(c) Restrictions on Exercise. The Warrant may not be exercised
if the issuance of the Shares upon such exercise would constitute a violation of
any applicable federal or state securities laws or other laws or regulations. As
a condition to the exercise of the Warrant, the Company may require the Holder
to make such representations and warranties to the Company as may be required by
applicable law or regulation.
4. Shares Fully Paid; Reservation of Shares. The Company covenants and
agrees that all Shares will, upon issuance and payment in accordance herewith,
be fully paid, validly issued and nonassessable. The Company further covenants
and agrees that during the Warrant Term the Company will at all times have
authorized and reserved for the purpose of issue upon exercise of the Warrant at
least the maximum number of Shares as are issuable upon the exercise of the
Warrant.
2
<PAGE> 3
5. Adjustment of Purchase Price and Number of Shares. The number and
kind of securities purchasable upon the exercise of the Warrant and the Warrant
Price shall be subject to adjustment from time to time upon the happening of
certain events, as follows:
(a) Subdivision or Combination of Shares. If the Company at
any time while the Warrant remains outstanding and unexpired shall subdivide or
combine its Common Stock, the Warrant Price shall be adjusted to that price
determined by multiplying the Warrant Price in effect immediately prior to such
subdivision or combination by a fraction (i) the numerator of which shall be the
total number of shares of Common Stock outstanding immediately prior to such
subdivision or combination and (ii) the denominator of which shall be the total
number of shares of Common Stock outstanding immediately after such subdivision
or combination.
(b) Certain Dividends and Distributions. If the Company at any
time while the Warrant is outstanding and unexpired shall take a record of the
holders of its Common Stock for the purpose of:
(i) Stock Dividends. Entitling them to receive a
dividend payable in, or other distribution without consideration of, Common
Stock, then the Warrant Price shall be adjusted to that price determined by
multiplying the Warrant Price in effect immediately prior to each dividend or
distribution by a fraction (A) the numerator of which shall be the total number
of shares of Common Stock outstanding immediately prior to such dividend or
distribution and (B) the denominator of which shall be the total number of
shares of Common Stock outstanding immediately after such dividend or
distribution; or
(ii) Distribution of Assets, Securities, etc.
Making any distribution without consideration with respect to its Common Stock
(other than a cash dividend) payable other than in its Common Stock, the Holder
shall, upon the exercise hereof, be entitled to receive, in addition to the
number of Shares receivable upon such exercise, and without payment of any
additional consideration therefor, such assets or securities as would have been
payable to the Holder as owner of that number of Shares receivable by exercise
of the Warrant had the Holder been the holder of record of such Shares on the
record date for such distribution, and an appropriate provision therefor shall
be made a part of any such distribution.
(c) Adjustment of Number of Shares. Upon each adjustment in
the Warrant Price pursuant to Subsections (a) or (b)(i) of this Section 5, the
number of Shares purchasable hereunder shall be adjusted to that number
determined by multiplying the number of Shares purchasable upon the exercise of
the Warrant immediately prior to such adjustment by a fraction, the numerator of
which shall be the Warrant Price immediately prior to such adjustment and the
denominator of which shall be the Warrant Price immediately following such
adjustment.
(d) Notice. In case at any time during the Warrant Term:
(i) The Company shall pay any dividend payable in
stock upon its Common Stock or make any distribution, excluding a cash dividend,
to the holders of its Common Stock;
3
<PAGE> 4
(ii) The Company shall offer for subscription pro
rata to the holders of its Common Stock any additional shares of stock of any
class or other rights;
(iii) There shall be any reclassification of the
Common Stock of the Company, or consolidation or merger of the Company with, or
sale of all or substantially all of its assets to, another corporation; or
(iv) There shall be a voluntary or involuntary
dissolution, liquidation or winding up of the Company;
then, in any one or more of such cases, the Company shall give to the Holder at
least ten days' prior written notice (or, in the event of notice pursuant to
Section 5(d)(iii), at least 30 days' prior written notice) of the date on which
the books of the Company shall close or a record shall be taken for such
dividend, distribution or subscription rights or for determining rights to vote
in respect to any such reclassification, consolidation, merger, sale,
dissolution, liquidation or winding up. Such notice shall also specify, in the
case of any such dividend, distribution or subscription rights, the date on
which the holders of Common Stock shall be entitled thereto, and such notice
shall also specify the date on which the holders of Common Stock shall be
entitled to exchange their Common Stock for securities or other property
deliverable upon such reclassification, consolidation, merger, sale,
dissolution, liquidation or winding up, as the case may be. Each such written
notice shall be given personally or by first-class, registered or certified mail
or similar delivery service, postage prepaid, addressed to the Holder at the
address of the Holder as shown on the books of the Company.
(e) No Change in Certificate. The form of this Certificate
need not be changed because of any adjustment in the Warrant Price or in the
number of Shares purchasable upon exercise of any or all of the Warrant. The
Warrant Price or the number of Shares shall be considered to have been so
changed as of the close of business on the date of adjustment.
6. Consolidation, Merger or Reclassification. If the Company at any
time while the Warrant remains outstanding and unexpired shall propose to
dissolve, liquidate or sell all or substantially all of its assets or merge,
consolidate or reorganize the Company with or into another corporation as a
result of which the Company is not the surviving corporation or as a result of
which the outstanding shares are exchanged for or converted into cash or
property or securities not of the Company, the Warrant shall terminate 30 days
after notice thereof is given by the Company to the Holder, unless the Holder
waives such 30 day period, and the Holder shall have the right to exercise the
Warrant as to all or any part of the Shares, including Shares which have not
vested at such time (in accordance with Section 3(a)) until such date of
termination.
7. Fractional Shares. No fractional Shares will be issued in connection
with any exercise of the Warrant, rather, in lieu of such fractional Shares, the
Company shall make a cash payment therefor upon the basis of the fair market
value of the Shares at the time of such exercise, as determined in good faith by
the Company's Board of Directors.
4
<PAGE> 5
8. Nontransferability of Warrants. The Warrants may be exercised during
the lifetime of the Holder only by the Holder, and may not be sold, pledged,
assigned, hypothecated, gifted, transferred or disposed of in any manner, in
whole or in part, either voluntarily or involuntarily by operation of law, other
than by will or the laws of descent or distribution, without the prior written
consent of the Company, which consent may be granted or withheld by the Company
in its sole discretion.
9. No Rights as Shareholder. The holder of the Warrant, as such, shall
not be entitled to vote or receive dividends or be considered a shareholder of
the Company for any purpose, nor shall anything in the Warrant be construed to
confer on such holder, as such, any rights of a shareholder of the Company or
any right to vote, give or withhold consent to any corporate action, to receive
notice of meetings of shareholders, to receive dividends or subscription rights
or otherwise.
10. Continuation as __________. This Certificate shall confer not
upon the Holder any right to continue or be nominated as ____________ of the
Company or limit in any respect the right of the Company to remove the Holder as
_______________ of the Company at any time.
11. Miscellaneous Provisions.
(a) Replacement. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of the
Warrant and, in the case of loss, theft or destruction, on delivery of any
indemnity agreement or bond reasonably satisfactory in form and amount to the
Company or, in the case of mutilation, on surrender and cancellation of the
Warrant, the Company at its expense will execute and deliver, in lieu of the
Warrant, a new Warrant of like tenor.
(b) Governing Law. The Warrant shall be governed by and
construed and enforced in accordance with the internal laws, and not the laws
pertaining to choice or conflicts of laws, of the State of California.
Warrant Certificate dated as of August 25, 1997.
TEKELEC
By: /s/ Allan J. Toomer
---------------------------------------
Allan J. Toomer, President
ATTEST:
/s/ Ronald W. Buckly
- --------------------------------
Ronald W. Buckly, Secretary
5
<PAGE> 6
TEKELEC
SUBSCRIPTION FORM
(To be completed and signed only upon exercise of the Warrant)
TO: Tekelec
26580 West Agoura Road
Calabasas, CA 91302
Attention: Secretary
The undersigned, the holder of the attached Warrant, hereby
irrevocably elects to exercise the right of purchase represented by such Warrant
for, and to purchase thereunder, _______* shares of Tekelec Common Stock and
herewith makes payment of $___________ for those shares, and requests that the
certificate(s) for those shares be issued in the name of and delivered to:
(Please print name and address)
------------------------------------
------------------------------------
------------------------------------
------------------------------------
Dated:
---------------------
--------------------------------------
Signature
--------------------------------------
Print Name
- ----------------
* Insert here the number of shares called for on the face of the Warrant (or in
the case of partial exercise, that portion as to which the Warrant is being
exercised), without making any adjustment for additional Common Stock or any
other securities or property which, under the adjustment provisions of the
Warrant, may be deliverable upon exercise.
<PAGE> 7
SCHEDULE OF WARRANTHOLDERS
<TABLE>
<CAPTION>
No. of Shares
Names of Warrantholders Subject to Warrants
- ----------------------- -------------------
<S> <C> <C>
Robert V. Adams(1) 30,000
Jean-Claude Asscher(1) 30,000
Daniel L. Brenner(1) 30,000
Howard Oringer(1) 30,000
Jon F. Rager(1) 30,000
Ronald W. Buckly(2) 30,000
------
TOTAL 180,000
=======
</TABLE>
- --------------------------
(1) Section 3(a) of the Warrant granted to such person provides that vesting
shall continue so long as such person remains a member of the Company's
Board of Directors. Section 10 of such Warrant provides that the warrant
certificate does not confer upon the Holder any right to continue or be
nominated as a director of the Company or limit in any respect the right
of the Company to remove the Holder as a director of the Company at any
time.
(2) Section 3(a) of the Warrant granted to such person provides that vesting
shall continue so long as such person remains as the Company's Corporate
Secretary. Section 10 of such Warrant provides that the warrant
certificate does not confer upon the Holder any right to continue or be
nominated as Corporate Secretary of the Company or limit in any respect
the right of the Company to remove the Holder as the Corporate Secretary
of the Company at any time.
<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 (to be filed on or about October 13, 1997) of our report
dated February 5, 1997, on our audits of the consolidated financial statements
and consolidated financial statement schedule of Tekelec as of December 31,
1996 and 1995 and for each of the three years in the period ended December 31,
1996.
Coopers & Lybrand L.L.P.
Coopers & Lybrand L.L.P.
Sherman Oaks, California
October 10, 1997
