As filed with the Securities and Exchange Commission on June 13, 1996
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CASTELLE
(Exact name of registrant as specified in its charter)
California 77-0164056
(State of Incorporation) (I.R.S. Employer Identification No.)
3255-3 Scott Boulevard, Santa Clara, California, (408) 496-0474
(Address and telephone number of principal executive offices)
1988 EQUITY INCENTIVE PLAN
1995 NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN
Randall I. Bambrough
Castelle
3255-3 Scott Boulevard
Santa Clara, California 95054
(408) 496-0474
Copies to:
Kenneth L. Guernsey, Esq.
Cooley Godward Castro Huddleson & Tatum
One Maritime Plaza, Suite 2000
San Francisco, California 94127
(415) 693-2000
<TABLE>
CALCULATION OF REGISTRATION FEE
<S> <C> <C> <C> <C>
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Per Aggregate Offering Amount of
to be Registered Registered Share (1) Price (1) Registration Fee
Stock Options and
Common Stock (no
par value) 722,279 $0.20-$9.25 $5,514,020.00 $1,874.00
- -----------------
<FN>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee. The offering price per share and the aggregate
offering price are based upon (a) the exercise prices for shares
subject to options and stock previously granted (i) under the 1988
Equity Incentive Plan (100,339 shares @ $0.20 per share, 125,000 shares
@ $5.00 per share, 33,575 shares @ $6.00 per share and 65,750 shares @
$7.75 per share (ii) under the 1995 Non-Employee Directors' Stock
Option Plan (60,000 shares @$8.00 per share)) and (b) the average high
and low prices of the Registrant's Common Stock reported on June 6,
1996 as reported on the Nasdaq National Market System (397,615 shares @
$9.25 per share).
</FN>
</TABLE>
Approximate date of commencement of proposed sale to the public: As
soon as practicable after this Registration Statement becomes effective.
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Castelle (the "Company") with the
Securities and Exchange Commission are incorporated by reference into this
Registration Statement:
(a) The Company's latest annual report on Form 10-K filed pursuant to
Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), or either (1) the Company's latest prospectus filed pursuant to
Rule 424(b) under the Securities Act of 1933, as amended (the "Securities Act"),
that contains audited financial statements for the Company's latest fiscal year
for which such statements have been filed, or (2) the Company's effective
registration statement on Form 10 or 20-F filed under the Exchange Act
containing audited financial statements for the Company's latest fiscal year.
(b) All other reports filed pursuant to Sections 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the annual reports, the
prospectus or the registration statement referred to in (a) above.
(c) The description of the Company's Common Stock which is contained in
a registration statement filed under the Exchange Act, including any amendment
or report filed for the purpose of updating such description.
All reports and other documents subsequently filed by the Company
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 offered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference herein and to be a part of this
registration statement from the date of the filing of such reports and
documents.
DESCRIPTION OF SECURITIES
Not applicable.
INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the shares of Common Stock offered hereby will be
passed upon for the Company by Cooley Godward Castro Huddleson & Tatum, San
Francisco, California.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Bylaws provide that the Company will indemnify its
directors and executive officers, and may indemnify its other officers,
employees and other agents, to the fullest extent not prohibited by California
law. The Company is also empowered under its Articles of Incorporation and
Bylaws to enter into indemnification agreements with its directors, officers,
employees and other agents and to purchase insurance on behalf of any person
whom it is required or permitted to indemnify. Pursuant to this provision, the
Company intends to enter into indemnity agreements with each of its directors
and executive officers.
In addition, the Company's Articles of Incorporation provide that, to
the fullest extent permitted by California law, the Company's directors will not
be liable for monetary damages for breach of the directors' fiduciary duty of
care to the Company and its shareholders. This provision in the Articles of
Incorporation does not eliminate the duty of care, and in appropriate
circumstances, equitable remedies such as an injunction or other forms of
non-monetary relief would remain available under California law. Each director
will continue to be subject to liability for breach of the director's duty of
loyalty to the Company, for acts or omissions not in good faith or
2.
<PAGE>
involving intentional misconduct or knowing or culpable violations of law that
the director believes to be contrary to the best interests of the Company or its
shareholders, for acts or omissions involving a reckless disregard for the
director's duty to the Company or its shareholders when the director was aware
or should have been aware of a risk of serious injury to the Company or its
shareholders, or an unexcused pattern of inattention that amounts to an
abdication of the director's duty to the Company or its shareholders, for
improper transactions between the director and the Company or for improper
distributions to shareholders and loans to directors and officers, or for acts
or omissions by the director as an officer. This provision also does not affect
a director's responsibilities under any other laws, such as the federal
securities laws or state or federal environmental laws.
At present, there is no pending litigation or proceeding involving any
director, officer, employee or agent of the Company where indemnification will
be required or permitted. The Company is not aware of any threatened litigation
or proceeding which may result in a claim for such indemnification.
EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
EXHIBITS
Exhibit
Number
4.1 Reference is made to Exhibits 3.1 and 3.4 to the Registrant's Form SB-2
filed with Amendment No. 2 to the Company's Form SB-2 on
December 8, 1995.
4.2 Fourth Amended and Restated Registration Rights Agreement by and among
the Registrant and certain holders of the Company's Common Stock and
Warrants to purchase Common Stock filed with the Company's Form 10-KSB
on April 1, 1996.
5.1 Opinion of Cooley Godward Castro Huddleson & Tatum.
10.2 1995 Non-Employee Directors' Stock Option Plan (the "1995 Plan") and
Form of Non Statutory Stock Option for the 1995 Plan filed with Post-
Effective Amendment No. 1 to the Registrant's Form SB-2 filed on
December 20, 1995.
10.14 1988 Equity Incentive Plan (the "1988 Plan") and the Form of Incentive
Stock Option, Form of Nonstatutory Stock Option and Notice of Exercise
for the 1988 Plan filed with the Company's Form 10-KSB on April 1, 1996.
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Cooley Godward Castro Huddleson & Tatum is contained in
Exhibit 5 to this Registration Statement.
24 Power of Attorney is contained on the signature pages.
3.
<PAGE>
UNDERTAKINGS
1. The undersigned registrant hereby undertakes:
(a) 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. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected
in the form of prospectus filed with the Commission pursuant
to Rule 424(b) (ss. 230.424(b) of this chapter) if, in the
aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the
effective 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)(i) and (a)(ii) do not apply if
the registration statement is on Form S-3 or Form S-8 and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the issuer pursuant to section 13 or
section 15(d) of the Exchange Act that are incorporated by reference in the
registration statement.
(b) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) 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.
2. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to 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 herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
3. 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 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 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.
4.
<PAGE>
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, as amended, 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 Santa Clara, State of
California, on May 31, 1996.
CASTELLE
By: /s/ Randall I. Bambrough
Title: Chief Financial Officer and Vice President of Finance
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Arthur H. Bruno and Randall I. Bambrough,
and each or any one of them, his true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution, 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, and to
file the same, with all exhibits thereto, and other 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
connection therewith, 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 their or his substitutes or substitute, 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
/s/ Arthur H. Bruno
Arthur H. Bruno
Chairman of the Board, Chief
Executive Officer, President
(Principal Executive Officer) and
Director
May 31, 1996
/s/ Randall I. Bambrough
Randall I. Bambrough
Chief Financial Officer, Vice
President, Finance and
Administration and Secretary
(Principal Financial and Accounting
Officer)
May 31, 1996
5.
<PAGE>
/s/ John Freidenrich
John Freidenrich
Director
May 31, 1996
/s/ William R. Hambrecht
William R. Hambrecht
Director
May 31, 1996
/s/ Alan Kessman
Alan Kessman
Director
May 31, 1996
/s/ Kanwal S. Rekhi
Kanwal S. Rekhi
Director
May 31, 1996
/s/ Delbert W. Yocam
Delbert W. Yocam
Director
May 31, 1996
6.
<PAGE>
EXHIBIT INDEX
Exhibit Sequential
Number Description Page Number
5.1 Opinion of Cooley Godward Castro Huddleson & Tatum. E-1
23.1 Consent of Coopers & Lybrand L.L.P. E-2
23.2 Consent of Cooley Godward Castro Huddleson & Tatum is E-1
contained in Exhibit 5 to this Registration Statement.
24 Power of Attorney is contained on the signature pages. 5-6
June 12, 1996
Castelle
3255-3 Scott Boulevard
Santa Clara, California 95054
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by Castelle (the "Company") of a Registration Statement on Form
S-8 (the "Registration Statement") with the Securities and Exchange Commission
covering the offering of up to six hundred two thousand two hundred seventynine
(602,279) shares of the Company's Common Stock, no par value, (the "1988
Shares") pursuant to its 1988 Equity Incentive Plan, as amended (the "1988
Plan") and the offering of up to one hundred twenty thousand (120,000) shares of
the Company's Common Stock, no par value (the "1995 Shares") pursuant to its
1995 Non-Employee Directors' Stock Option Plan (the "1995 Plan").
In connection with this opinion, we have examined the Registration Statement and
related Prospectus, your Certificate of Incorporation and By-laws, as amended,
and such other documents, records, certificates, memoranda and other instruments
as we deem necessary as a basis for this opinion. We have assumed the
genuineness and authenticity of all documents submitted to us as originals, the
conformity to originals of all documents submitted to us as copies thereof, and
the due execution and delivery of all documents where due execution and delivery
are a prerequisite to the effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the 1988 Shares and the 1995 Shares, when sold and issued in accordance
with the 1988 Plan or the 1995 Plan, respectively, the Registration Statement
and related Prospectus, will be validly issued, fully paid, and nonassessable
(except as to shares issued pursuant to certain deferred payment arrangements,
which will be fully paid and nonassessable when such deferred payments are made
in full).
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
COOLEY GODWARD CASTRO
HUDDLESON & TATUM
By: /s/ Kenneth L. Guernsey
Kenneth L. Guernsey
KLG:wp
E-1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
Castelle on Form S-8 (File No. 33- ) of our report dated February 9, 1996
on our audits of the consolidated financial statements and financial statement
schedules of Castelle as of December 31, 1995 and 1994, and for the years ended
December 31, 1995, 1994, and 1993, which report is included in the Castelle
Annual Report of Form 10-K.
/s/ Coopers & Lybrand, L.L.P.
Coopers & Lybrand, L.L.P.
San Jose, California
June 13, 1996
E-2
