<PAGE> 1
As filed with the Securities and Exchange Commission on January 27, 1999
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)
<TABLE>
<S> <C>
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)
</TABLE>
--------------------------
1994 STOCK OPTION PLAN
(Full title of the plan)
--------------------------
RONALD W. BUCKLY, ESQ.
VICE PRESIDENT AND GENERAL COUNSEL
TEKELEC
26580 WEST AGOURA ROAD
CALABASAS, CALIFORNIA 91302
(818) 880-5656
(Name, address and telephone number of agent for service)
--------------------------
Copy to:
KATHERINE F. ASHTON, ESQ.
BRYAN CAVE LLP
120 BROADWAY, SUITE 300
SANTA MONICA, CALIFORNIA 90401
--------------------------
<PAGE> 2
<TABLE>
<CAPTION>
===========================================================================================
CALCULATION OF REGISTRATION FEE
===========================================================================================
<S> <C> <C> <C> <C>
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 2,000,000(1) $19.625(2) $39,250,000(2) $10,912
- -------------------------------------------------------------------------------------------
</TABLE>
(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
January 22, 1999, as reported by The Nasdaq Stock Market in The Wall
Street Journal.
(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, 1997.
Item 3(b)
The Registrant's Quarterly Reports on Form 10-Q for the
fiscal quarters ended March 31, 1998, June 30, 1998 and
September 30, 1998.
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.
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
-1-
<PAGE> 4
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> 5
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit
Number
- -------
<S> <C>
4.1 1994 Stock Option Plan, including forms of stock option agreements(1)
and Amendments Nos. 1(1), 2(2), 3(3), 4(4), 5(4) and 6 thereto dated
as of February 4, 1995, March 3, 1995, January 27, 1996, February 26,
1997, March 19, 1997 and March 20, 1998, respectively.
5.1 Opinion of Bryan Cave LLP.
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Bryan Cave LLP (included in Exhibit 5.1).
24.1 Power of Attorney (see page 5 of this Registration Statement).
</TABLE>
- -------------------
(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 Registration Statement on
Form S-8 (Registration No. 333-28887) filed with the Commission on June
10, 1997.
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.
-3-
<PAGE> 6
(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 JANUARY 27, 1999.
TEKELEC
By: /s/ MICHAEL L. MARGOLIS
------------------------------------
Michael L. Margolis,
Chief Executive Officer and
President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints Michael L. Margolis 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>
MICHAEL L. MARGOLIS Director, Chief Executive Officer
- ------------------------------ and President (Principal Executive January 27, 1999
Michael L. Margolis Officer)
GILLES C. GODIN Vice President, Finance and Chief
- ------------------------------ Financial Officer (Principal
Gilles C. Godin Financial and Accounting Officer) January 27, 1999
JEAN-CLAUDE ASSCHER Chairman of the Board January 27, 1999
- ------------------------------
Jean-Claude Asscher
ROBERT V. ADAMS Director January 27, 1999
- ------------------------------
Robert V. Adams
DANIEL L. BRENNER Director January 27, 1999
- ------------------------------
Daniel L. Brenner
HOWARD ORINGER Director January 27, 1999
- ------------------------------
Howard Oringer
JON F. RAGER Director January 27, 1999
- ------------------------------
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. 6 to 1994 Stock Option Plan dated as of March 20, 1998
5.1 Opinion of Bryan Cave LLP
23.1 Consent of PricewaterhouseCoopers LLP
</TABLE>
<PAGE> 1
EXHIBIT 4.1
AMENDMENT NO. 6 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 Fourteen Million
(14,000,000) 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 20, 1998
- ---------------------
* The number of shares set forth herein has been adjusted to reflect
Tekelec's two-for-one stock split effective June 19, 1998.
<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
January 27, 1999
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 January 27, 1999, in connection with the registration of
2,000,000 shares of Common Stock, without par value (collectively, the
"Shares"), of the Company issuable upon exercise of options granted or to be
granted pursuant to the Company's 1994 Stock Option Plan (such 1994 Stock Option
Plan is 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 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.
<PAGE> 2
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 5, 1998, on our audits of the
consolidated financial statements and consolidated financial statement schedule
of Tekelec as of December 31, 1997 and 1996 and for each of the three years in
the period ended December 31, 1997.
PricewaterhouseCoopers LLP
Woodland Hills, California
January 25, 1999
