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As filed with the Securities and Exchange Commission on August 30, 1999
Registration No. 333-______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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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)
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1994 STOCK OPTION PLAN
(Full title of the plan)
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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)
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Copy to:
KATHERINE F. ASHTON, ESQ.
BRYAN CAVE LLP
120 BROADWAY, SUITE 300
SANTA MONICA, CALIFORNIA 90401
--------------------------
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed
Title of Amount Proposed Maximum
Securities of Shares Maximum Aggregate Amount of
to be to be Offering Price Offering Registration
Registered Registered per Share Price Fee
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<S> <C> <C> <C> <C>
Common Stock,
without par value 5,000,000(1) $12.9375(2) $64,687,500(2) $17,984
- ---------------------------------------------------------------------------------------------------------------
</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
August 23, 1999, as reported by The Nasdaq Stock Market in The Wall
Street Journal.
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(i)
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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, 1998.
Item 3(b)
The Registrant's Quarterly Reports on Form 10-Q for
the fiscal quarters ended March 31, 1999 and June 30,
1999.
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
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person reasonably believed to be in the best interests of the corporation and,
in the case of a criminal proceeding, had no reasonable cause to believe the
conduct of such person was unlawful, and against expenses actually and
reasonably incurred in connection with defending derivative actions if such
person acted in good faith and in a manner such person believed to be in the
best interests of the corporation and its shareholders. Indemnification is
obligatory to the extent that an agent of a corporation has been successful on
the merits in defense of any such proceeding against such agent, but otherwise
may be made only upon a determination in each instance either by a majority vote
of a quorum of the Board of Directors (other than directors involved in such
proceeding), by independent legal counsel if such a quorum of directors is not
obtainable, by the shareholders (other than shareholders to be indemnified), or
by the court, that indemnification is proper because the agent has met the
applicable statutory standards of conduct. Corporations may also advance
expenses incurred in defending proceedings against corporate agents, upon
receipt of an undertaking that the agent will reimburse the corporation unless
it is ultimately determined that the agent is entitled to be indemnified against
expenses reasonably incurred.
The indemnification provided by Section 317 of the California
Corporations Code is not deemed to be exclusive of any other rights to which
agents of the Company seeking indemnification may be entitled under any bylaw,
agreement, vote of shareholders or disinterested directors, or otherwise, both
as to action in an official capacity and as to action in another capacity while
holding such office, to the extent such additional rights are authorized in the
articles of the corporation. Article V of the Company's Restated Articles of
Incorporation authorizes the Company to provide for indemnification of its
agents for breach of duty to the Company and its shareholders, through bylaw
provisions or through agreements with such agents, or both, in excess of the
indemnification otherwise permitted by Section 317, subject to the limits on
such excess indemnification set forth in Section 204 of the California General
Corporation Law.
Article VI of the Company's bylaws provides for the
indemnification of all past and current directors to the maximum extent and in
the manner permitted by Section 317. Additionally, the Company has entered into
Indemnification Agreements with its directors under which the Company has
undertaken to indemnify each such agent to the fullest extent permitted by its
Articles of Incorporation, bylaws and applicable law against all expenses,
liability and loss (which are not paid by insurance or otherwise by the Company)
reasonably incurred or suffered by such agent in connection with the defense of
any action or proceeding to which the agent was or is a party or is threatened
to be made a party by reason of conduct in his capacity as an officer or
director, or in which the agent is or may be involved by reason of the fact that
he is or was serving as an officer or director of the Company, not including
actions brought for violation of Section 16 of the Securities Exchange Act of
1934 or for failure to qualify for an exemption under Section 4 of the
Securities Act of 1933.
The Company also maintains on behalf of its directors and
officers insurance protection against certain liabilities arising out of the
discharge of their duties.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
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ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit
Number
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<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),
6(5) and 7(6) thereto dated as of February 4, 1995, March 3, 1995,
January 27, 1996, February 26, 1997, March 19, 1997, March 20,
1998 and March 19, 1999, 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>
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(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.
(5) Incorporated by reference to the Registrant's Registration Statement on
Form S-8 (Registration No. 333-71261) filed with the Commission on
January 27, 1999.
(6) Incorporated by reference to the Registrant's Quarterly Report on Form
10-Q (File No. 0-15135) for the quarter ended June 30, 1999.
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;
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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.
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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 AUGUST 30, 1999.
TEKELEC
By: MICHAEL L. MARGOLIS
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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>
Signature Title Date
--------- ----- ----
<S> <C> <C>
Director, Chief Executive Officer and
MICHAEL L. MARGOLIS President (Principal Executive Officer) August 30, 1999
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Michael L. Margolis
Vice President, Finance and Chief
Financial Officer (Principal Financial
GILLES C. GODIN and Accounting Officer) August 30, 1999
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Gilles C. Godin
JEAN-CLAUDE ASSCHER Chairman of the Board August 30, 1999
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Jean-Claude Asscher
ROBERT V. ADAMS Director August 30, 1999
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Robert V. Adams
DANIEL L. BRENNER Director August 30, 1999
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Daniel L. Brenner
HOWARD ORINGER Director August 30, 1999
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Howard Oringer
JON F. RAGER Director August 30, 1999
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Jon F. Rager
</TABLE>
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Sequentially
Exhibit Numbered
Number Exhibit Page
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<S> <C> <C>
5.1 Opinion of Bryan Cave LLP
23.1 Consent of PricewaterhouseCoopers LLP
</TABLE>
<PAGE> 1
Bryan Cave LLP
120 Broadway, Suite 500
Santa Monica, CA 90401-2305
Telephone: (310) 576-2100
Facsimile: (310) 576-2200
August 30, 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 August 30, 1999, in connection with the registration of
5,000,000 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.
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
<PAGE> 2
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 2, 1999, on our audits of the
consolidated financial statements and consolidated financial statement schedule
of Tekelec as of December 31, 1998 and 1997 and for each of the three years in
the period ended December 31, 1998.
PricewaterhouseCoopers LLP
Woodland Hills, California
August 27, 1999
