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As filed with the Securities and Exchange Commission on August 17, 2000
Registration No. 333-___
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
__________________________
TRANSWITCH CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 06-1236189
-------- ----------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
Three Enterprise Drive, Shelton, CT 06484
--------------------------------------------
(Address of principal executive offices) (Zip Code)
1995 STOCK PLAN OF ALACRITY COMMUNICATIONS, INC.
(Full title of the plan)
__________________________
DR. SANTANU DAS
President, Chief Executive Officer and Chairman of the Board of Directors
TRANSWITCH CORPORATION
Three Enterprise Drive
Shelton, Connecticut 06484
(203) 929-8810
(Name, address including zip code and telephone number,
including area code, of agent for service)
__________________________
Copy to:
TIMOTHY C. MAGUIRE, ESQ.
Testa, Hurwitz & Thibeault, LLP
125 High Street
Boston, MA 02110
(617) 248-7000
<TABLE>
<CAPTION>
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CALCULATION OF REGISTRATION FEE
Proposed
Maximum
Title of Securities to be Amount to be Offering Price Proposed Maximum Amount of
Registered Registered (1) Per Share Aggregate Offering Price Registration Fee
------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.001 par 5,756 shares $40.25(2) $231,679(2) $62.00 (2)
value
========================================================================================================================
</TABLE>
(1) Plus such additional shares as may be required pursuant to the plan in the
event of a stock dividend, recapitalization or other similar change in
common stock.
(2) The price of $40.25 per share, which is the average of the high and low
prices reported on the Nasdaq National Market on August 11, 2000, is set
forth solely for purposes of calculating the filing fee pursuant to Rule
457(c).
================================================================================
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
---------------------------------------
The following documents filed with the SEC are incorporated by
reference in this registration statement:
. TranSwitch's annual report on Form 10-K (File Number 0-25996) for
the fiscal year ended December 31, 1999, filed with the SEC on
March 30, 2000
. TranSwitch's quarterly report on Form 10-Q (File Number 0-25996)
for the fiscal quarter ended March 31, 2000, filed with the SEC
on May 9, 2000
. TranSwitch's quarterly report on Form 10-Q (File Number 0-25996)
for the fiscal quarter ended June 30, 2000, filed with the SEC on
August 11, 2000.
. TranSwitch's current report on Form 8-K, dated May 9, 2000
. TranSwitch's "Description of Capital Stock" contained in the
TranSwitch's registration statement No. 00025996 on Form 8-A,
dated April 28, 1995.
All documents subsequently filed with the SEC by TranSwitch 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 herein 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 a part hereof from the date of filing of such
documents.
Item 5. Interest of Named Experts and Counsel
-------------------------------------
The validity of the shares of common stock offered hereby will be
passed upon for TranSwitch by Testa, Hurwitz & Thibeault, LLP, Boston,
Massachusetts. Richard J. Testa and Timothy C. Maguire, partners of the firm,
beneficially own 12,676 and 1,800 shares of common stock of TranSwitch,
respectively.
Item 6. Indemnification of Directors and Officers
-----------------------------------------
Section 145 of the Delaware General Corporation Law (DGCL) permits us
to indemnify our directors, officers, employees and agents against actual and
reasonable expenses (including attorneys' fees) incurred by them in connection
with any action, suit or proceeding brought against them by reason of their
status or service as a director, officer, employee or agent by or on our behalf
and against expenses (including attorneys' fees), judgments, fines and
settlements actually and reasonably incurred by him or her in connection with
any such action, suit or proceeding, if:
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. he or she acted in good faith and in a manner he or she reasonably believed
to be in or not opposed to the best interests of TranSwitch and
. in the case of a criminal proceeding, he or she had no reasonable cause to
believe his or her conduct was unlawful.
Except as ordered by a court, no indemnification shall be made in
connection with any proceeding brought by or in the right of the corporation
where the person involved is adjudged to be liable to us.
Article Ten of our amended and restated certificate of incorporation, as
amended, contains provisions that eliminate a director's personal liability for
monetary damages resulting from a breach of fiduciary duty, except in certain
circumstances involving certain wrongful acts, such as the breach of a
director's duty of loyalty or acts or omissions which involve intentional
misconduct or a knowing violation of law. These provisions do not limit or
eliminate our rights or those of any stockholder to seek non-monetary relief,
such as an injunction or rescission, in the event of a breach of a director's
fiduciary duty. These provisions will not alter a director's liability under
federal securities laws. Our certificate of incorporation also contains
provisions indemnifying our directors and officers to the fullest extent
permitted by the DGCL.
We maintain directors and officers liability insurance for the benefit of
our directors and certain of our officers.
Our amended and restated by-laws contain no provisions relating to the
indemnification of officers and directors.
Item 8. Exhibits
--------
Exhibit No. Description of Exhibit
----------- ----------------------
Exhibit 4.1 Specimen certificate representing the common stock of
TranSwitch (filed as Exhibit 4.1 to TranSwitch's
Registration Statement on Form S-1 (File No. 33-91694)
and incorporated herein by reference).
Exhibit 4.2 1995 Stock Plan of Alacrity Communications, Inc. (filed
herewith).
Exhibit 4.3 Form of Incentive Stock Option Agreement under the 1995
Stock Plan of Alacrity Communications, Inc. (filed
herewith).
Exhibit 5.1 Opinion of Testa, Hurwitz & Thibeault, LLP (filed
herewith).
Exhibit 23.1 Consent of KPMG LLP (filed herewith).
Exhibit 23.2 Consent of Testa, Hurwitz & Thibeault, LLP (included in
Exhibit 5.1).
Exhibit 24.1 Power of Attorney (included as part of the signature
page to this Registration Statement).
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Item 17. Undertakings.
------------
We hereby undertake:
(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 include any material information with respect to the plan
of distribution not pervasively disclosed in the
registration statement or any material change to such
information in the registration statement.
(2) that, for the purpose of determining 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 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.
(4) that, for purposes of determining any liability under the
Securities Act, each filing of our annual report pursuant to
Section 13(a) or 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.
(5) for the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of
prospectus 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 thereto.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of TranSwitch pursuant to the foregoing provisions, or otherwise, TranSwitch has
been advised that in the opinion of the SEC 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 TranSwitch of expenses incurred or paid
by a director, officer or controlling person of TranSwitch 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,
TranSwitch 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
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indemnification by TranSwitch 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, TranSwitch
Corporation 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 Shelton, State of Connecticut, on this August
17, 2000.
TRANSWITCH CORPORATION
By: /s/ Dr. Santanu Das
-------------------
Dr. Santanu Das
President, Chief Executive Officer
and Chairman of the Board of Directors
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each such person whose signature
appears below constitutes and appoints, jointly and severally, Dr. Santanu Das
and Michael F. Stauff his attorneys-in-fact, each with the power of
substitution, for him in any and all capacities, to sign any amendments to this
registration statement on Form S-8 (including post-effective amendments), and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming all that each of said attorneys-in-fact, or his substitute or
substitutes, may do or cause to be done by virtue hereof.
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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/ Dr. Santanu Das President, Chief Executive August 17, 2000
---------------------------- Officer and Chairman of the Board
Dr. Santanu Das of Directors
(Principal Executive Officer)
/s/ Michael F. Stauff Vice President, Chief Financial August 17, 2000
---------------------------- Officer and Treasurer
Michael F. Stauff (Principal Financial and
Accounting Officer)
/s/ Alfred R. Boschulte Director August 17, 2000
----------------------------
Alfred R. Boschulte
/s/ Erik H. van der Kaay Director August 17, 2000
----------------------------
Erik H. van der Kaay
/s/ Dr. Ljubomir Micic Director August 17, 2000
----------------------------
Dr. Ljubomir Micic
/s/ Gerald Montry Director August 17, 2000
----------------------------
Gerald Montry
/s/ James M. Pagos Director August 17, 2000
----------------------------
James M. Pagos
/s/ Dr. Albert E. Paladino Director August 17, 2000
----------------------------
Dr. Albert E. Paladino
</TABLE>
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INDEX TO EXHIBITS
Exhibit Description of Exhibit
------- ----------------------
Exhibit 4.1 Specimen certificate representing the Common Stock of
TranSwitch (filed as Exhibit 4.1 to TranSwitch's Registration
Statement on Form S-1 (File No. 33-91694) and incorporated
herein by reference).
Exhibit 4.2 1995 Stock Plan of Alacrity Communications, Inc. (filed
herewith).
Exhibit 4.3 Form of Incentive Stock Option Agreement under the 1995 Stock
Plan (filed herewith).
Exhibit 5.1 Opinion of Testa, Hurwitz & Thibeault, LLP (filed herewith).
Exhibit 23.1 Consent of KPMG LLP (filed herewith).
Exhibit 23.2 Consent of Testa, Hurwitz & Thibeault, LLP (included in Exhibit
5.1).
Exhibit 24.1 Power of Attorney (included as part of the signature page to
this Registration Statement).
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