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As filed with the Securities and Exchange Commission on March 12, 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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XYLAN CORPORATION
(Exact name of Registrant as specified in its charter)
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<S> <C>
CALIFORNIA 95-4433911
(State or other jurisdiction of (I.R.S. employer identification no.)
incorporation or organization)
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26707 West Agoura Road
Calabasas, CA 91302
(Address of principal executive offices)
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1998 EMPLOYEE STOCK OPTION PLAN
(Full title of the Plan)
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Dale Bartos
Vice President and Chief Financial 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)
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Copy to:
Tae Hea Nahm, Esq.
Venture Law Group
A Professional Corporation
2800 Sand Hill Road
Menlo Park, CA 94025
(650) 854-4488
Page 1 of 9 Pages
Exhibit Index Located on Page 7
(Calculation of Registration Fee on Following Page)
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed Maximum Amount of
Title of Securities Amount to be Maximum Offering Aggregate Offering Registration
to be Registered Registered(1) Price Per Share(2) Price Fee
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Common Stock, $.001 par value........ 500,000 $36.3438 $18,171,875.00 $5,051.78
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(1) This Registration Statement shall also cover any additional shares of
common stock which become issuable under the 1998 Employee Stock Option
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 March 9, 1999.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INFORMATION INCORPORATED BY REFERENCE.
The following documents filed with the Securities and Exchange Commission
(the "Commission") are hereby incorporated by reference:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997, filed on March 31, 1998 pursuant to Section 13(a) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act");
(b) All other reports filed by the Registrant pursuant to Sections 13(a)
or 15(d) of the Exchange Act since the end of the fiscal year covered by the
Company's document referred to in (a) above; and
(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 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 3,761 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 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
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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.
See INDEX TO EXHIBITS on page 7.
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, 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, each filing of the
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 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 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 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 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 matter 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 and will be governed
by the final adjudication of such issue.
[SIGNATURE PAGES FOLLOW]
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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 9th day of
March, 1999.
XYLAN CORPORATION
By: /s/ Dale J. Bartos
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Dale J. Bartos
Vice President and Chief Financial
Officer
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POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Steve Y.
Kim and Dale 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.
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Signature Title Date
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/s/ STEVE Y. KIM President, Chief Executive March 9, 1999
- ----------------------------- Officer (Principal Executive
Steve Y. Kim Officer) and Director
/s/ DALE J. BARTOS Vice President and Chief March 9, 1999
- ----------------------------- Financial Officer (Principal
Dale J. Bartos Financial Officer)
/s/ ROBERT C. HAWK Director March 9, 1999
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Robert C. Hawk
/s/ YURI PIKOVER Director March 9, 1999
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Yuri Pikover
/s/ TRUDE C. TAYLOR Director March 9, 1999
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Trude C. Taylor
/s/ JOHN L. WALECKA Director March 9, 1999
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John L. Walecka
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INDEX TO EXHIBITS
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Exhibit Page
Number No.
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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 3.2 of Registrant's Form 10-Q for the
quarter ended September 30, 1998).
4.3 Preferred Shares Rights Agreement dated as of April 17, 1997,
as amended on March 1, 1999, between the Registrant and the
First National Bank of Boston, including Certificate of
Determination of Rights, Preferences and Privileges of
Series A Participating Preferred Stock, the Form of Rights
Certificate and Summary of rights attached thereto as
Exhibits A, B, and C, respectively (incorporated by reference
to Exhibit 2 of the Registrant's Registration Statement on
Form 8-A/A filed with the Commission on March 8, 1999)
5.1 Opinion of Venture Law Group, A Professional Corporation. 8
23.1 Consent of Venture Law Group, A Professional Corporation 8
(included in Exhibit 5.1).
23.2 Consent of Independent Accountants. 9
24.1 Powers of Attorney 6
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EXHIBIT 5.1
March 10, 1999
Xylan Corporation
26707 West Agoura Road
Calabasas, CA 91302
Registration Statement on Form S-8
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Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 (the "Registration
Statement") to be filed by you with the Securities and Exchange Commission (the
"Commission") on or about March 12, 1999 in connection with the registration
under the Securities Act of 1933, as amended, of an aggregate of 500,000 shares
of Common Stock reserved for issuance under the Xylan Corporation 1998 Employee
Stock Option Plan ("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
/s/ Tae Hea Nahm
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Tae Hea Nahm
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EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANS
THE BOARD OF DIRECTORS,
XYLAN CORPORATION:
We consent to the incorporation by reference in the registration statement on
Form S-8 herein of our report dated January 21, 1998, relating to the
consolidated balance sheets of Xylan Corporation and subsidiaries as of December
31, 1997 and 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 and all related schedules, which report appears
in the December 31, 1997, Annual report on 10-K of Xylan Corporation, as filed
on March 31, 1998.
/s/ KPMG LLP
Los Angeles, California
March 9, 1999
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