As filed with the Securities and Exchange Commission on June 10, 1997
Registration No. 333-______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
TEKELEC
(Exact name of registrant as specified in its charter)
CALIFORNIA
State or other jurisdiction of incorporation or organization)
95-2746131
(I.R.S. Employer Identification No.)
26580 WEST AGOURA ROAD
CALABASAS, CALIFORNIA 91302
(Address of Principal Executive Offices) (Zip Code)
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1994 STOCK OPTION PLAN
WARRANTS TO PURCHASE COMMON STOCK
(Full titles of the plans)
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ALLAN J. TOOMER
PRESIDENT
TEKELEC
26580 WEST AGOURA ROAD
CALABASAS, CALIFORNIA 91302
(818) 880-5656
(Name, address and telephone number of agent for service)
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Copy to:
RONALD W. BUCKLY, ESQ.
KATHERINE F. ASHTON, ESQ.
BRYAN CAVE LLP
120 BROADWAY, SUITE 500
SANTA MONICA, CALIFORNIA 90401
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<PAGE>
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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
- ----------------- ------------ -------------- ----------------- ------------
Common Stock,
without par value 1,000,000(1) $31.875(2) $31,875,000 (2) $9,660
Common Stock,
without par value 70,300(3) $9.50-18.625 $ 1,035,587.50 $ 314
------------ ------------
TOTAL 1,070,300 $9,974
============ ============
- --------------------------------------------------------------------------------
(1) Represents 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.
(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 4, 1997,
as reported by The Nasdaq Stock Market in "The Wall Street Journal".
(3) Includes shares issuable upon the exercise of outstanding warrants to
purchase 30,000 and 40,300 shares of the Company's Common Stock at exercise
prices of $9.50 and $18.625 per share, respectively.
- --------------------------------------------------------------------------------
<PAGE>
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, 1996.
Item 3(b)
The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 1997.
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>
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.
-2-
<PAGE>
ITEM 8. EXHIBITS.
Exhibit Number
- --------------
4.1 1994 Stock Option Plan, including forms of stock option
agreements(1) and Amendments Nos. 1(1), 2(2), 3(3), 4 and 5
thereto dated as of February 4, 1995, March 3, 1995, January 27,
1996, February 26, 1997 and March 19, 1997, respectively.
4.2 Warrant to Purchase 30,000 shares of the Registrant's Common
Stock issued to Howard Oringer on August 1, 1996(4).
4.3 Warrant to Purchase 40,300 shares of the Registrant's Common
Stock issued to Allan J. Toomer on January 25, 1997.
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.
(3) Incorporated by reference to the Registrant's Registration Statement on Form
S-8 (Registration No. 333-05933) filed with the Commission on June 13, 1996.
(4) Incorporated by reference to the Registrant's Quarterly Report on Form 10-Q
for the quarter ended September 30, 1996.
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;
-3-
<PAGE>
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>
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 10, 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.
Signature Title Date
- ---------------------------- ----------------------------------- -------------
Allan J. Toomer Director and President June 10, 1997
- ---------------------------- (Principal Executive Officer)
Allan J. Toomer
Gilles C. Godin Vice President, Finance and Chief June 10, 1997
- ---------------------------- Financial Officer (Principal
Gilles C. Godin Financial and Accounting Officer)
Jean-Claude Asscher Chairman of the Board June 10, 1997
- ----------------------------
Jean-Claude Asscher
Robert V. Adams Director June 10, 1997
- ----------------------------
Robert V. Adams
Daniel L. Brenner Director June 10, 1997
- ----------------------------
Daniel L. Brenner
Howard Oringer Director June 10, 1997
- ----------------------------
Howard Oringer
Jon F. Rager Director June 10, 1997
- ----------------------------
Jon F. Rager
-5-
<PAGE>
INDEX TO EXHIBITS
Exhibit Number Exhibit
- -------------- ----------------------------------------------------------------
4.1 Amendment Nos. 4 and 5 to 1994 Stock Option Plan dated as of
February 26, 1997 and March 19, 1997, respectively
4.3. Warrant to Purchase 40,300 shares of the Registrant's
Common Stock issued to Allan J. Toomer on January 25, 1997
5.1 Opinion of Bryan Cave LLP
23.1 Consent of Coopers & Lybrand L.L.P
-6-
EXHIBIT 4.1
AMENDMENT NO. 4 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 One Hundred Thousand
(2,100,000) 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: February 26, 1997
<PAGE>
AMENDMENT NO. 5 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 Three Million (3,000,000) 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: March 19, 1997
EXHIBIT 4.2
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.
Warrants to Purchase
40,300 Shares of Common Stock
TEKELEC
INCORPORATED UNDER THE LAWS OF THE STATE OF CALIFORNIA
Void after January 25, 2007
The Warrants evidenced by this certificate have been issued for good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged.
This Certificate evidences the right of Allan J. Toomer (the "Holder")
to purchase 40,300 shares of Common Stock, without par value (the "Shares"), of
Tekelec, a California corporation (the "Company"), at a price of $18.625 per
Share; subject, however, to the terms and conditions hereinafter set forth.
1. Term of Warrants. The Warrants may be exercised only during the
period commencing on June 30, 1997 through the close of business on January 25,
2007 unless earlier terminated in accordance with the terms hereof (the "Warrant
Term"), and may be exercised only in accordance with the terms and conditions
hereinafter set forth.
2. Exercise of Warrants. The Warrants shall be exercisable as follows:
(a) Right to Exercise. The Warrants shall vest and become
exercisable cumulatively in three equal installments with the first of such
installments vesting on June 30, 1997 and an additional installment vesting on
the last day of each calendar quarter thereafter (i.e., September 30, 1997 and
December 31, 1997) so long as the Holder serves as an employee of the Company
("Employee"). The Warrants will vest in full and become immediately exercisable
upon the termination of the Holder's employment prior to December 31, 1997 for
any reason other than (i) the Holder's voluntary termination without "good
reason" as such term is defined in the Company's Officer Severance Plan or (ii)
"for cause" as such term is defined in the Officer Severance Plan.
(b) Method of Exercise; Payment; Issuance of New Warrants;
Transfer and Exchange. The Warrants may be exercised by the Holder, in whole or
in part, by the surrender of this Certificate, properly endorsed, at the
principal office of the Company, and by the payment to the Company by check of
the then applicable Warrant Price (as such term is hereinafter defined). In the
event of any exercise of the Warrants, certificates for the Shares so purchased
shall be delivered to the Holder within a reasonable time after the Warrants
shall have been so exercised, and unless the Warrants have expired, a new
certificate representing the right to purchase the number of Shares, if any,
<PAGE>
with respect to which this Certificate 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 Warrants 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 Warrants, the Company may
require the Holder to make such representations and warranties to the Company as
may be required by applicable law or regulation.
3. Termination of Employment. If the Holder ceases to serve as an
Employee for any reason other than death or permanent and total disability
(within the meaning of Section 22(e)(3) of the Internal Revenue Code of 1986, as
amended (the "Code")) and thereby terminates his status as an Employee, then the
Holder shall have the right to exercise the Warrants at any time within three
months after the date of such termination to the extent that the Holder was
entitled to exercise the Warrants at the date of such termination in accordance
with Section 2(a) hereof. To the extent that the Holder was not entitled to
exercise the Warrants at the date of such termination, or to the extent the
Warrants are not exercised within the time specified herein, the Warrants shall
terminate. Notwithstanding the foregoing, the Warrants shall not be exercisable
after the expiration of the term set forth in Section 1 hereof.
4. Death or Disability. If the Holder ceases to serve as an Employee
due to death or permanent and total disability (within the meaning of Section
22(e)(3) of the Code), then the Warrants may be exercised at any time within six
months after the date of death or termination of employment due to disability,
in the case of death, by the Holder's estate or by a person who acquired the
right to exercise the Warrants by bequest or inheritance, or, in the case of
disability, by or on behalf of the Holder, but in any case only to the extent
the Holder was entitled to exercise the Warrants at the date of such
termination. To the extent that the Holder was not entitled to exercise the
Warrants at the date of termination, or to the extent the Warrants are not
exercised within the time specified herein, the Warrants shall terminate.
Notwithstanding the foregoing, the Warrants shall not be exercisable after the
expiration of the terms set forth in Section 1 hereof.
5. Stock 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 the issue upon exercise of the
Warrants at least the maximum number of Shares as are issuable upon the exercise
of the Warrants.
6. Adjustment of Purchase Price and Number of Shares. The number and
kind of securities purchasable upon the exercise of the Warrants and the Warrant
Price shall be subject to adjustment from time to time upon the happening of
certain events, as follows:
(a) Consolidation, Merger or Reclassification. If the Company
at any time while the Warrants remain outstanding and unexpired shall
consolidate with or merge into any other corporation, or sell all or
substantially all of its assets to another corporation, or reclassify or in any
manner change the securities then purchasable upon the exercise of the Warrants
(any of which shall constitute a "Reorganization"), then lawful and adequate
<PAGE>
provision shall be made whereby this Certificate shall thereafter evidence the
right to purchase such number and kind of securities and other property as would
have been issuable or distributable on account of such Reorganization upon or
with respect to the securities which were purchasable or would have become
purchasable under the Warrants immediately prior to the Reorganization. The
Company shall not effect any such Reorganization unless prior to or
simultaneously with the consummation thereof the successor corporation (if other
than the Company) resulting from such Reorganization shall assume by written
instrument executed and mailed or delivered to the Holder, at the last address
of the Holder appearing on the books of the Company, the obligation to deliver
to the Holder such shares of stock, securities or assets as, in accordance with
the foregoing provisions, the Holder may be entitled to purchase.
Notwithstanding anything in this Section 6(a) to the contrary, the prior two
sentences shall be inoperative and of no force and effect if upon the completion
of any such Reorganization the shareholders of the Company immediately prior to
such event do not own at least 50% of the equity interest of the corporation
resulting from such Reorganization, and those Warrants which are unexercised
shall expire on the completion of such Reorganization, if the notice required by
Section 6(e) hereof has been duly given.
(b) Subdivision or Combination of Shares. If the Company at
any time while the Warrants remain outstanding and unexpired shall subdivide or
combine its Common Stock, the Warrant Price shall be adjusted to a 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.
(c) Certain Dividends and Distributions. If the Company at any
time while the Warrants are 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 otherwise than in its Common Stock, the Holder
shall, upon the exercise thereof, be entitled to receive, in addition to the
number of Shares receivable thereupon, and without payment of any additional
consideration therefor, such assets or securities as would have been payable to
him as owner of that number of Shares receivable by exercise of the Warrants had
he 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.
(d) Adjustment of Number of Shares. Upon each adjustment in
the Warrant Price pursuant to Subsections (b) or (c) (i) of this Section 6, the
number of Shares purchasable hereunder shall be adjusted to that number
<PAGE>
determined by multiplying the number of Shares purchasable upon the exercise of
the Warrants 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.
(e) Notice. In case at any time:
(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;
(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 of the Warrants at least ten days' prior written notice
(or, in the event of notice pursuant to Section 6(e)(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 in accordance with the foregoing clause 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 in accordance with the foregoing clause 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 by first-class mail, postage
prepaid, addressed to the Holder at the address of the Holder as shown on the
books of the Company.
(f) 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 on its exercise. 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.
7. Fractional Shares. No fractional Shares will be issued in connection
with any subscription hereunder but, 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.
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.
<PAGE>
9. No Rights as Shareholder. The Holder of the Warrants, 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 this Certificate be construed
to confer on the 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. Definitions. As used in this Certificate:
(a) "Warrants" shall mean the rights evidenced by this
Certificate.
(b) "Warrant Price" shall mean $18.625, as adjusted in
accordance with Section 6 hereof.
Dated as of January 25, 1997.
TEKELEC
By: Gilles C. Godin
----------------------------------------
Gilles C. Godin, Chief Financial Officer
Attest:
Ronald W. Buckly
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Ronald W. Buckly, Secretary
<PAGE>
TEKELEC
SUBSCRIPTION FORM
(To be completed and signed only upon exercise of the Warrants)
TO: Tekelec
26580 West Agoura Road
Calabasas, California 91302
Attention: Secretary
The undersigned, the holder and registered owner of the attached
Warrants, hereby irrevocably and unconditionally elects to exercise such
Warrants and to purchase __________* shares of Tekelec Common Stock pursuant to
the terms and conditions thereof, and herewith tenders a check in the amount of
$___________ in full payment of the purchase price for such shares, and requests
that the certificate(s) for such shares be issued in the name of and delivered
to:
(Please print name and address)
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Dated: Signature:
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*Insert here the number of shares called for on the face of the
Warrants (or in the case of partial exercise, that portion as to which the
Warrants is being exercised), without making any adjustment for additional
Common Stock or any other securities or property which, under the adjustment
provisions of the Warrants, may be deliverable upon exercise.
EXHIBIT 5.1
Bryan Cave LLP
120 Broadway, Suite 500
Santa Monica, CA 90401-2305
Telephone: (310) 576-2100
Facsimile: (310) 576-2200
June 10, 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 June
10, 1997, in connection with the registration of an aggregate of 1,070,300
shares of Common Stock, without par value (collectively, the "Shares"),
comprising 1,000,000 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, 30,000 shares issuable upon exercise of a warrant granted to
a consultant to the Company and 40,300 shares issuable upon exercise of a
warrant granted to an officer of the Company (such 1994 Stock Option Plan and
warrants are referred to collectively herein as 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 prospectuses 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, to the
extent deemed proper by us, upon certificates and statements of officers and
representatives of the Company.
<PAGE>
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
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 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
June 6, 1997
