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As filed with the Securities and Exchange Commission on July 21, 2000
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
TALARIAN CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 33-0323810
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
333 DISTEL CIRCLE
LOS ALTOS, CALIFORNIA 94022
(Address of Principal Executive Offices, including Zip Code)
1991 STOCK OPTION PLAN
1998 EQUITY INCENTIVE PLAN
NON PLAN STOCK OPTION GRANTS
STOCK OPTION AGREEMENTS GRANTED BY WHITEBARN, INC.
UNDER THE WHITEBARN, INC. STOCK OPTION PLAN AND THE WHITEBARN, INC.
2000 EQUITY INCENTIVE PLAN AND ASSUMED BY THE REGISTRANT
2000 EQUITY INCENTIVE PLAN
2000 EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plans)
MICHAEL A. MORGAN
CHIEF FINANCIAL OFFICER
TALARIAN CORPORATION
333 DISTEL CIRCLE
LOS ALTOS, CA 94022
(650) 965-8050
(Name, Address and Telephone Number of Agent For Service)
COPIES TO:
Laird H. Simons III, Esq.
Dorothy L. Hines, Esq.
Fenwick & West LLP
Two Palo Alto Square
Palo Alto, CA 94306
CALCULATION OF REGISTRATION FEE
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PROPOSED
AMOUNT MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES TO BE TO BE OFFERING PRICE AGGREGATE REGISTRATION
REGISTERED REGISTERED PER SHARE OFFERING PRICE FEE(5)
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<S> <C> <C> <C> <C>
Common Stock, $0.001 par value 3,941,536(1) $16.00(2) $63,064,576.00 $16,649.05
Common Stock, $0.001 par value 2,578,199(3) $ 2.72(4) $ 7,012,701.28 $ 1,851.35
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TOTAL 6,519,536 $70,077,277.28 $18,500.40
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(1) Shares available for grant as of July 21, 2000 under the 2000 Equity
Incentive Plan and available for issuance under the 2000 Employee Stock
Purchase Plan.
(2) Estimated as of July 21, 2000 pursuant to Rule 457(c) solely for the
purpose of calculating the registration fee.
(3) Shares subject to outstanding options as of July 21, 2000 under the 1991
Stock Option Plan, 1998 Equity Incentive Plan, Non-Plan Option Grants,
WhiteBarn, Inc. Stock Option Plan, and WhiteBarn, Inc. 2000 Equity
Incentive Plan.
(4) Weighed average exercise price for such outstanding options pursuant to
Rule 457(h)(1).
(5) Fee calculated pursuant to Section 6(b) of the Securities Act of 1933, as
amended. This amount equals .0264% of the proposed maximum aggregate
offering price.
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TALARIAN CORPORATION
REGISTRATION STATEMENT ON FORM S-8
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated herein by reference:
(a) The Registrant's Prospectus filed pursuant to Rule 424(b) under
the Securities Act of 1933, as amended (the "Securities Act"),
that contains audited financial statements of the Registrant for
the year ended September 30, 1999.
(b) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A filed under
Section 12(g) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), including any amendment or report filed for
the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities registered hereby
have been sold or which deregisters all securities then remaining unsold, shall
be deemed incorporated by reference herein and to be a part hereof from the date
of the filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Fenwick & West LLP, an investment partnership affiliated with Fenwick &
West LLP and one or more partners or employees of Fenwick & West LLP hold an
aggregate of 75,000 shares of our common stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law authorizes a court
to award, or the board of directors of a corporation to grant, indemnity to
directors and officers in terms sufficiently broad to permit such
indemnification under certain circumstances for liabilities, including
reimbursement for expenses incurred, arising under the Securities Act of 1933,
as amended (the "Securities Act").
As permitted by the Delaware General Corporation Law, the Registrant's
certificate of incorporation provides that its directors shall not be liable to
the Registrant or its stockholders for monetary damages for breach of fiduciary
duty as a director, except to the extent that the exculpation from liabilities
is not permitted under the Delaware General Corporation Law as in effect at the
time such liability is determined. As permitted by the Delaware General
Corporation Law, the Registrant's bylaws provide that the Registrant shall
indemnify its directors and officers to the full extent permitted by the
Delaware General Corporation Law, subject to certain very limited exceptions and
to advance expenses, as incurred, to its directors and officers in connection
with a legal proceeding to the full extent permitted by the Delaware General
Corporation Law, subject to very limited exceptions.
In addition, the Registrant has entered into Indemnity Agreements with
each of its current directors and officers to give such directors and officers
additional contractual assurances regarding the scope of the indemnification set
forth in the Registrant's certificate of incorporation and to provide additional
procedural protections in the event of litigation. At present, there is no
pending litigation or proceeding involving a director, officer or employee of
the Registrant regarding which indemnification is sought, nor is the Registrant
aware of any threatened litigation that may result in claims for
indemnification.
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The limitation of liability and indemnification provisions in
Registrant's certificate of incorporation and bylaws may discourage stockholders
from bringing a lawsuit against Registrant's directors for breach of their
fiduciary duty and may also reduce the likelihood of derivative litigation
against directors and officers, even though an action, if successful, might
benefit Registrant and its stockholders. Furthermore, the investment of
Registrant's stockholders may be adversely affected to the extent that
Registrant pays the costs of settlement and damage awards against directors and
officers as required by these indemnification provisions. At present, there is
no pending litigation or proceeding involving any of our directors, officers or
employees regarding which indemnification by Registrant is sought, nor are we
aware of any threatened litigation that may result in claims for
indemnification.
The Registrant has also obtained directors' and officers' insurance to
cover its directors and officers for specific liabilities, including public
securities matters.
The Underwriting Agreement relating to the Registrant's initial public
offering, effected pursuant to a registration statement on Form S-1 (File No.
333-34694), declared effective July 20, 2000 (the "Form S-1"), provides for
indemnification by the underwriters of the Registrant and its executive officers
and directors for certain liabilities, including liabilities arising under the
Securities Act, in connection with matters specifically provided in writing by
the Underwriters for inclusion in the Registration Statement.
See also the undertakings set out in response to Item 9.
Reference is made to the following documents regarding relevant
indemnification provisions described above:
DOCUMENT
1. Form of Underwriting Agreement (incorporated by reference to Exhibit
1.01 to Registrant's Form S-1).
2. Registrant's First Amended and Restated Certificate of Incorporation
(incorporated by reference to Exhibit 3.03 to Registrant's Form S-1).
3. Registrant's Second Amended and Restated Certificate of Incorporation
(incorporated by reference to Exhibit 3.04 to Registrant's Form S-1).
4. Registrant's Bylaws as adopted April 3, 2000 and amended May 12, 2000
(incorporated by reference to Exhibit 3.05 to the Form S-1).
5. Form of Indemnity Agreement (incorporated by reference to Exhibit 10.01
to the Form S-1).
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.01 Registrant's First Amended and Restated Certificate of
Incorporation, as filed with the Secretary of State of Delaware
on May 26, 2000 (incorporated herein by reference to Exhibit 3.03
of the Form S-1).
4.02 Registrant's Certificate of Designation of Preferred Stock, as
filed with the Secretary of State of Delaware on May 31, 2000
(incorporated herein by reference to Exhibit 3.06 of the Form
S-1).
4.03 Form of Registrant's Certificate of Retirement of preferred stock
to be effective after the closing of Registrant's initial public
offering (incorporated herein by reference to Exhibit 3.07 of the
Form S-1).
4.04 Form of Registrant's Second Amended and Restated Certificate of
Incorporation to be effective after the closing of Registrant's
initial public offering (incorporated herein by reference to
Exhibit 3.04 of the Form S-1).
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4.05 Registrant's Bylaws as adopted April 3, 2000 and amended May 12,
2000 (incorporated by reference to Exhibit 3.05 of the Form S-1).
4.06 Specimen Common Stock Certificate (incorporated herein by
reference to Exhibit 4.01 of the Form S-1).
4.07 Amended and Restated Investors Rights Agreement dated February 3,
2000, as amended March 10, 2000 between Registrant and certain
stockholders and warrant holders named therein (incorporated
herein by reference to Exhibit 4.02 of the Form S-1).
4.08 Registrant's 1991 Stock Option Plan and related documents
(incorporated herein by reference to Exhibit 10.02 of the Form
S-1).
4.09 Registrant's 1998 Equity Incentive Plan and related documents
(incorporated herein by reference to Exhibit 10.03 of the Form
S-1).
4.10 Form of Stock Option Agreement granted by WhiteBarn, Inc. under
the WhiteBarn, Inc. Stock Option Plan and assumed by Registrant
(incorporated herein by reference to Exhibit 10.06 of the Form
S-1).
4.11 Form of Stock Option Agreement granted by WhiteBarn, Inc. under
the White Barn, Inc. 2000 Equity Incentive Plan and assumed by
Registrant (incorporated herein by reference to Exhibit 10.07 of
the Form S-1).
4.12 Registrant's 2000 Equity Incentive Plan and related documents
(incorporated herein by reference to Exhibit 10.05 of the Form
S-1).
4.13 Registrant's 2000 Employee Stock Purchase Plan (incorporated
herein by reference to Exhibit 10.04 of the Form S-1).
4.14 Form of Option Acceleration Agreement between Registrant and each
executive officer (incorporated herein by reference to Exhibit
10.10 of the Form S-1).
5.01 Opinion of Fenwick & West LLP.
23.01 Consent of Fenwick & West LLP (included in Exhibit 5.01).
23.02 Consent of KPMG LLP, independent auditors (Talarian).
23.03 Consent of KPMG LLP, independent auditors (GlobalCast).
23.04 Consent of KPMG LLP, independent auditors (WhiteBarn).
24.01 Power of Attorney (see page 6).
ITEM 9. UNDERTAKINGS.
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;
(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; and
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(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 the
information in the registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) above do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by
Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each post-effective amendment shall be deemed to
be a new registration statement relating to the securities
offered in the registration statement, and the offering of the
securities at that time shall be deemed to be the initial bona
fide offering of those securities.
(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.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act
that is incorporated by reference in the registration statement shall be deemed
to be a new registration statement relating to the securities offered in the
registration statement, and the offering of the securities at that time shall be
deemed to be the initial bona fide offering of those securities.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions described under "Item 6 -- Indemnification
of Directors and Officers" above, 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 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 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 Los Altos, State of California, on this 20th day of
July, 2000.
TALARIAN CORPORATION
By: /s/ Michael A. Morgan
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Michael A. Morgan, Vice President, Finance and
Administration and Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each individual whose signature
appears below constitutes and appoints Paul A. Larson, Michael A. Morgan and
Thomas J. Laffey, and each of them, his true and lawful attorneys-in-fact and
agents with full power of substitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement on Form S-8, and to
file the same with all exhibits thereto and all documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or his or their 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.
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Signature Title Date
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PRINCIPAL EXECUTIVE OFFICER:
/s/ Paul A. Larson President, Chief Executive Officer July 20, 2000
----------------------------- and Director
Paul A. Larson
PRINCIPAL FINANCIAL OFFICER
AND PRINCIPAL ACCOUNTING OFFICER:
/s/ Michael A. Morgan Vice President, Finance and July 20, 2000
----------------------------- Administration and Chief Financial
Michael A. Morgan Officer
ADDITIONAL DIRECTORS:
/s/ Thomas J. Laffey Vice President, Chief Technology July 20, 2000
----------------------------- Officer, Secretary and Director
Thomas J. Laffey
Director July __, 2000
-----------------------------
Paul D. Callahan
Director July __, 2000
-----------------------------
David I. Kaplan
/s/ David E. Gold Director July 20, 2000
-----------------------------
David E. Gold
/s/ Brian T. Horey Director July 20, 2000
-----------------------------
Brian T. Horey
/s/ Richard A. Nortz Director July 19, 2000
-----------------------------
Richard A. Nortz
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EXHIBIT INDEX
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Exhibit No. Description
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4.01 Registrant's First Amended and Restated Certificate of
Incorporation, as filed with the Secretary of State of
Delaware on May 26, 2000 (incorporated herein by reference
to Exhibit 3.03 of the Form S-1).
4.02 Registrant's Certificate of Designation of Preferred Stock,
as filed with the Secretary of State of Delaware on May 31,
2000 (incorporated herein by reference to Exhibit 3.06 of
the Form S-1).
4.03 Form of Registrant's Certificate of Retirement of preferred
stock to be effective after the closing of Registrant's
initial public offering (incorporated herein by reference
to Exhibit 3.07 of the Form S-1).
4.04 Form of Registrant's Second Amended and Restated
Certificate of Incorporation to be effective after the
closing of Registrant's initial public offering
(incorporated herein by reference to Exhibit 3.04 of the
Form S-1).
4.05 Registrant's Bylaws as adopted April 3, 2000 and amended
May 12, 2000 (incorporated by reference to Exhibit 3.05 of
the Form S-1).
4.06 Specimen Common Stock Certificate (incorporated herein by
reference to Exhibit 4.01 of the Form S-1).
4.07 Amended and Restated Investors Rights Agreement dated
February 3, 2000, as amended March 10, 2000 between
Registrant and certain stockholders and warrant holders
named therein (incorporated herein by reference to Exhibit
4.02 of the Form S-1).
4.08 Registrant's 1991 Stock Option Plan and related documents
(incorporated herein by reference to Exhibit 10.02 of the
Form S-1).
4.09 Registrant's 1998 Equity Incentive Plan and related
documents (incorporated herein by reference to Exhibit
10.03 of the Form S-1).
4.10 Form of Stock Option Agreement granted by WhiteBarn, Inc.
under the WhiteBarn, Inc. Stock Option Plan and assumed by
Registrant (incorporated herein by reference to Exhibit
10.06 of the Form S-1).
4.11 Form of Stock Option Agreement granted by WhiteBarn, Inc.
under the White Barn, Inc. 2000 Equity Incentive Plan and
assumed by Registrant (incorporated herein by reference to
Exhibit 10.07 of the Form S-1).
4.12 Registrant's 2000 Equity Incentive Plan and related
documents (incorporated herein by reference to Exhibit
10.05 of the Form S-1).
4.13 Registrant's 2000 Employee Stock Purchase Plan
(incorporated herein by reference to Exhibit 10.04 of the
Form S-1).
4.14 Form of Option Acceleration Agreement between Registrant
and each executive officer (incorporated herein by
reference to Exhibit 10.10 of the Form S-1).
5.01 Opinion of Fenwick & West LLP.
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23.01 Consent of Fenwick & West LLP (included in Exhibit 5.01).
23.02 Consent of KPMG LLP, independent auditors (Talarian).
23.03 Consent of KPMG LLP, independent auditors (GlobalCast).
23.04 Consent of KPMG LLP, independent auditors (WhiteBarn).
24.01 Power of Attorney (see page 6).
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