<PAGE>
As filed with the Securities and Exchange Commission on April 17, 1998
Registration No. 333-____________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
________________
XYLAN CORPORATION
(Exact name of Registrant as specified in its charter)
CALIFORNIA 95-4433911
(State or other jurisdiction (I.R.S. employer
of incorporation or organization) identification no.)
26707 West Agoura Road
Calabasas, CA 91302
(Address of principal executive offices)
_______________________
1996 STOCK PLAN
1998 EMPLOYEE STOCK OPTION PLAN
(Full title of the Plan)
_______________________
Steve Y. Kim
Chairman, President and Chief Executive Officer
Xylan Corporation
26707 West Agoura Road
Calabasas, CA 91302
(818) 880-3500
(Name, address and telephone number, including area code, of agent for service)
_______________________
Copy to:
Tae Hea Nahm, Esq.
Renee R. Deming, Esq.
Venture Law Group
A Professional Corporation
2800 Sand Hill Road
Menlo Park, CA 94025
(415) 854-4488
Page 1 of 11 Pages
Exhibit Index Located on Page 8
(Calculation of Registration Fee on Following Page)
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================================================================================
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed Maximum Proposed Maximum Amount of
Title of Securities to be Amount to be Offering Price Aggregate Offering Registration Fee
Registered Registered (1) Per Share (2) Price
- ------------------------------------------------------------------------------------------------------------
1996 Stock Plan
- ---------------
Common Stock
<S> <C> <C> <C> <C>
$.001 par value................ 57,636 shares $26.1875(2) $ 1,509,343 $ 445
Common Stock
$.001 par value................ 1,942,364 shares $16.7527(3) $32,539,841 $ 9,599
1998 Employee Stock Option Plan
- -------------------------------
Common Stock
$.001 par value................ 9,250 shares $26.1875(2) $ 242,234 $ 71
Common Stock
$.001 par value................ 990,750 shares $16.7527(3) $16,597,738 $ 4,896
TOTAL 3,000,000 shares $50,889,156 $15,011
</TABLE>
______________________
(1) This Registration Statement shall also cover any additional Shares of Common
Stock which become issuable under the 1996 Stock Plan by reason of any Stock
dividend, Stock split, recapitalization or other similar transaction effected
without the receipt of consideration which results in an increase in the number
of the outstanding Shares of Common Stock of Xylan Corporation.
(2) Estimated in accordance with Rule 457(h) and 457(c) of the Securities Act of
1933, as amended, solely for the purpose of calculating the registration fee.
The computation with respect to unissued options is based upon the average of
the high and low sale prices per Share of Common Stock of Xylan Corporation as
reported on The Nasdaq National Market on April 9, 1998.
(3) Computed in accordance with Rule 457(h) under the Securities Act of 1933 as
amended solely for the purpose of calculating the registration fee. The
computation with respect to issued options is based on the weighted average per
Share exercise price of outstanding options under the referenced Plan, the
Shares issuable under which are registered hereby.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INFORMATION INCORPORATED BY REFERENCE.
-------------------------------------
The following documents previously filed with the Securities and
Exchange Commission (the "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, filed with the Commission on March 31, 1998, which contains
audited financial statements for the Registrant's latest fiscal year for which
such statements have been filed;
Item 3(c)
The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A filed with the Commission under
Section 12 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") on February 19, 1996, including any amendment or report filed for the
purpose of updating such description, and Form 8-A filed with the Commission
under Section 12 of the Exchange Act on April 18, 1997.
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 offered hereby 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.
--------------------------------------
Certain legal matters with respect to the shares will be passed upon
by Venture Law Group, A Professional Corporation, Menlo Park, California. As of
the date of this filing, certain attorneys of Venture Law Group beneficially own
an aggregate of 7,573 shares of the Company's Common Stock.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
-----------------------------------------
The Company's Articles of Incorporation limit the liability of
directors for monetary damages arising from breach of their fiduciary duty to
the maximum extent permitted by the California Corporations Code ("California
Law"). Such limitation of liability does not affect the availability of
equitable remedies such as injunctive relief or recession. The limitation on
monetary liability also does not apply to liabilities arising under the federal
securities laws.
The Company's Bylaws provide that the Company shall indemnify its
directors and officers to the fullest extent permitted by California law,
including circumstances in which indemnification is otherwise discretionary
under California law. The Company has entered into indemnification agreements
with its directors containing provisions which are in some respects broader than
the specific indemnification provisions contained in the California Corporations
Code. The indemnification agreements may require the Company, among other
things, to indemnify its directors against certain liabilities that may arise by
reason of their status or service as directors (other than liabilities arising
from willful misconduct of a culpable nature), to advance their expenses
incurred as a result
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of any proceeding against them as to which they could be indemnified, and to
obtain director's insurance if available on reasonable terms.
The Company believes that the limitation provision in its Articles of
Incorporation and the indemnification provisions in its Articles of
Incorporation, Bylaws and indemnification agreements will facilitate the
Company's ability to continue to attract and retain qualified individuals to
serve as directors of the Company. It is the opinion of the Commission that
indemnification provisions such as those contained in the Bylaws and these
agreements have no effect on a director's or officer's liability under the
federal securities laws.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
------------------------------------
Not applicable.
Item 8. EXHIBITS.
--------
Exhibit
Number Document
------- --------
4.1 Articles of Incorporation of Registrant, as amended to
date (incorporated by reference to Exhibit 3.2 to the
Registrant's Registration Statement on Form S-1, as
amended (Registration No. 333-00574) declared effective on
March 10, 1996 (the "S-1 Registration Statement")).
4.2 By-Laws of Registrant, as amended to date (incorporated by
reference to Exhibit 3.4 to the S-1 Registration
Statement).
5.1 Opinion of Venture Law Group, A Professional Corporation.
23.1 Consent of Venture Law Group, A Professional Corporation
(included in Exhibit 5.1).
23.2 Consent of KPMG Peat Marwick LLP.
24.1 Powers of Attorney (see p. 10).
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 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.
(2) that, for purposes 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.
The undersigned Registrant hereby undertakes 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
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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 therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as the 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, 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 a successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered hereunder, the Registrant will,
unless in the opinion of its counsel the question has already been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question of 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 this 15th day of
April, 1998.
XYLAN CORPORATION
By: Dale J. Bartos
-------------------------------------------
Dale J. Bartos
Vice President, Finance and Administration
and Chief Financial Officer
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------------------------
EXHIBITS
----------------------------------------
Registration Statement on Form S-8
XYLAN CORPORATION
April 17, 1998
<PAGE>
INDEX TO EXHIBITS
Exhibit Page
Number No.
------- ----
4.1 Articles of Incorporation of Registrant, as amended to
date (incorporated by reference to Exhibit 3.2 to the
Registrant's Registration Statement on Form S-1, as
amended (Registration No. 333-00574) declared effective
on March 10, 1996 (the "S-1 Registration Statement")).
4.2 By-Laws of Registrant, as amended to date (incorporated by
reference to Exhibit 3.4 to the S-1 Registration Statement).
5.1 Opinion of Venture Law Group, A Professional Corporation. 11
23.1 Consent of Venture Law Group, A Professional Corporation --
(included in --Exhibit 5.1).
23.2 Consent of KPMG Peat Marwick LLP. 9
24.1 Powers of Attorney 10
8
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EXHIBIT 5.1
April 15, 1998
Xylan Corporation
26707 West Agoura Road
Calabasas, CA 91302
Registration Statement on Form S-8
----------------------------------
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 (the "Registration
------------
Statement") filed by you with the Securities and Exchange Commission (the
- ---------
"Commission") on April 16, 1998 in connection with the registration under the
- -----------
Securities Act of 1933, as amended, of an aggregate of 2,000,000 shares of
Common Stock reserved for issuance under the Xylan Corporation 1996 Stock Plan
and 1,000,000 shares reserved for issuance under the Xylan Corporation 1998
Employee Stock Option Plan (collectively the "Shares"). As your counsel in
------
connection with this transaction, we have examined the proceedings taken and are
familiar with the proceedings proposed to be taken by you in connection with the
sale and issuance of the Shares.
It is our opinion that upon conclusion of the proceedings being taken or
contemplated under the Plans or by us, as your counsel, to be taken prior to the
issuance of the Shares, and upon completion of the proceedings being taken in
order to permit such transactions to be carried out in accordance with the
securities laws of the various states where required, the Shares when issued and
sold in the manner described in the Registration Statement will be legally and
validly issued, fully paid and non-assessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to the use of our name wherever appearing in the
Registration Statement, including the Prospectus constituting a part thereof,
and in any amendment thereto.
Very truly yours,
VENTURE LAW GROUP
A Professional Corporation
11
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EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
-------------------------------
We consent to the incorporation by reference in the registration statement
on form S-8 of Xylan Corporation of our report dated January 21, 1998, related
to the consolidated balance sheets of Xylan Corporation as of December 31, 1997
and December 31, 1996 and the related consolidated statements of operations,
shareholders' equity and cash flows for each of the years in the three-year
period ended December 31, 1997 which report appears in the Form 10-K of Xylan
Corporation for the year ended December 31, 1997.
KPMG PEAT MARWICK LLP
Los Angeles, California
April 15, 1998
9
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EXHIBIT 24.1
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Steve Y.
Kim and Dale J. Bartos, and each of them, as attorneys-in-fact, each with the
power of substitution, for him in any and all capacities, to sign any amendment
to this Registration Statement and to file the same, with exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission, granting to said attorneys-in-fact, 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 or any of them, or their 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>
/s/ STEVE Y. KIM President, Chief Executive Officer April 14, 1998
- ------------------------------------- (Principal Executive Officer) and
Steve Y. Kim Director
/s/ DALE J. BARTOS Vice President of Finance and Chief April 14, 1998
- ------------------------------------- Financial Officer (Principal Financial
DALE J. BARTOS Officer)
/s/ THOMAS S. BURNS Vice President of Finance (Chief April 14, 1998
- ------------------------------------- Accounting Officer)
Thomas S. Burns
/s/ ROBERT S. CECIL Director April 14, 1998
- -------------------------------------
Robert S. Cecil
/s/ ROBERT C. HAWK Director April 14, 1998
- -------------------------------------
ROBERT C. HAWK
/s/ YURI PIKOVER Executive Vice President and Director April 14, 1998
- -------------------------------------
YURI PIKOVER
/s/ TRUDE C. TAYLOR Director April 14, 1998
- -------------------------------------
TRUDE C. TAYLOR
/s/ JOHN L. WALECKA Director April 14, 1998
- -------------------------------------
JOHN L. WALECKA
</TABLE>
10
