As filed with the Securities and Exchange Commission on June 6, 1995
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
XYLOGICS, INC.
(Exact name of issuer as specified in its charter)
Delaware 04-2669596
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
53 Third Avenue, Burlington, Massachusetts 01803
(Address of Principal Executive Offices) (Zip Code)
NON-STATUTORY STOCK OPTION AGREEMENT DATED APRIL 26, 1995
(Full title of the Plan)
Alexander Bernhard, Esquire
Hale and Dorr
60 State Street
Boston, Massachusetts 02109
(Name and Address of agent for service)
(617) 526-6000
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered per share price fee
Common Stock, 12,000 $19.75 $237,000 $100
$.10 par value shares
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I is included in
documents sent or given by the Company to the other party to the
Non-Statutory Stock Option Agreement dated April 26, 1995, between
the Company and Frank J. Pipp, pursuant to Rule 428(b)(1).
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The Company is subject to the informational and reporting
requirements of Sections 13(a), 14, and 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other
information with the Securities and Exchange Commission (the
"Commission"). The following documents, which are on file with the
Commission, are incorporated in this registration statement by
reference:
(1) The Company's latest annual report filed pursuant to
Section 13(a) or 15(d) of the Exchange Act, or the latest
prospectus filed pursuant to Rule 424(b) under the Securities
Act of 1933, as amended, that contains audited financial
statements for the registrant's latest fiscal year for which
such statements have been filed.
(2) All other reports filed pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of the fiscal year
covered by the document referred to in (1) above.
(3) The description of the class of securities contained
in a registration statement filed under the Exchange Act,
including any amendment or report filed for the purpose of
updating such description.
All 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 shares of common stock offered hereby have been sold or which
deregisters all shares of common stock then remaining unsold, shall
be deemed to be incorporated by reference herein and to be 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
The legality of the Common Stock offered hereby will be
passed upon for the Company by the law firm of Hale and Dorr,
Boston, Massachusetts. Alexander Bernhard, Esquire, Secretary of
the Company, is a partner of Hale and Dorr and beneficially owns
1,000 shares of the Company's Common Stock.
Item 6. Indemnification
Section 145 of the Delaware General Corporation Law, as
amended, provides that a corporation may indemnify any person who
was or is a party or is threatened to be made a party to any
threatened, pending or completed action or proceeding, whether
civil, criminal, administrative or investigative, by reason of the
fact that he is or was a director, officer, employee or agent of
the corporation or is or was serving at its request in such
capacity in another corporation or business association, against
expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful.
Section 102(b)(7) of the Delaware General Corporation
Law, as amended, permits a corporation to provide in its
certificate of incorporation that a director of the corporation
shall not be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as
a director, except for liability (i) for any breach of the
director's duty of loyalty to the corporation or its stockholders,
(ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the Delaware General Corporation Law, or (iv) for
any transaction from which the director derived an improper
personal benefit.
Article NINTH of the Company's Certificate of
Incorporation provides that no director of the Company shall be
liable for monetary damages for any breach of fiduciary duty,
except to the extent that the Delaware General Corporation Law
prohibits the elimination or limitation of liability of directors
for breach of fiduciary duty.
Article NINTH of the Company's Certificate of
Incorporation provides that the Company will indemnify each person
who is or was or has agreed to be a director or officer of the
Company against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement to the maximum extent
permitted from time to time under the Delaware General Corporation
Law.
The Company has entered into indemnification agreements with
each of its directors and officers. Pursuant to such agreements,
the Company has agreed to provide indemnification to its directors
and officers unless the Board of Directors or independent counsel
determines that the applicable standard of conduct has not been
met, and has agreed to advance litigation expenses upon request
provided the director or officer undertakes to repay the advances
if it is ultimately determined that he is not entitled to
indemnification. Such agreements also provide that, to the extent
legally permissible, indemnification applicable to a derivative
suit will include amounts paid in settlement.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibit Index
The Exhibit Index immediately preceding the exhibits
attached hereto is incorporated herein by reference.
Item 9. Undertakings
1. The Company 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 of 1933;
(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;
(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 (i) and (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 Company 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 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.
(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 Company hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each
filing of the Company'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 therein,
and the offering of such securities at that time shall be deemed to
be in the initial bona fide offering thereof.
3. Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the Company pursuant to the
foregoing provisions, or otherwise, the Company has been advised
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
the Company of expenses incurred or paid by a director, officer or
controlling person of the Company 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 Company 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
Act and will be governed by the final adjudication of such issue.
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 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
Burlington, Commonwealth of Massachusetts on this day of May ,
1995.
XYLOGICS, INC.
By:
Bruce I. Sachs
President, Chief Executive Officer
and Director
Dated: May, 1995
POWER OF ATTORNEY
We, the undersigned officers and directors of the Registrant,
hereby severally constitute and appoint Bruce I. Sachs, Maurice L.
Castonguay, Alexander Bernhard and Jay E. Bothwick, and each of
them, his true and lawful attorneys-in-fact and agents, 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
or necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, ratifying
and confirming all that said attorneys-in-fact and agents 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 Exchange Act of
1934, this report has been signed by the following persons on
behalf of the registrant and in the capacities and on the dates
indicated.
Signature Title
President, Chief )
Bruce I. Sachs Executive Officer and )
Director (Principal )
executive officer) )
)
)
Vice President, Finance; )
Maurice L. Castonguay Chief Financial Officer; )
Treasurer; Assistant )
Secretary )
(Principal financial and )
accounting officer) ) May , 1995
)
)
)
Bruce J. Bergman Director )
)
)
Director )
Bruce E. Elmblad )
)
)
Director )
Gerald A. Lodge )
)
)
Director )
Frank J. Pipp )
)
)
)
John William Poduska, Sr. )
Index to Exhibits
Exhibit
Number Description Page
5.1 Opinion of Hale and Dorr.
23.1 Consent of Hale and Dorr (included in __
Exhibit 5.1 hereto).
23.2 Consent of Arthur Andersen & Co.
24.1 Power of Attorney (included in the __
signature pages of this Registration
Statement).
99.1 Non-Statutory Stock Option Agreement
dated April 26, 1995.
May 16, 1995
Xylogics, Inc.
53 Third Avenue
Burlington, MA 01803
Ladies and Gentlemen:
We have assisted in the preparation of a Registration
Statement on Form S-8 (the "Registration Statement") to be filed
with the Securities and Exchange Commission relating to 12,000
shares of Common Stock, $.10 par value per share (the "Shares"), of
Xylogics, Inc., a Delaware corporation (the "Company"), issuable
under the Company's Non-Statutory Stock Option Agreement dated
April 26, 1995 (the "Agreement").
We have examined the Certificate of Incorporation and By-Laws
of the Company and all amendments thereto, and originals, or copies
certified to our satisfaction, of all pertinent records of the
meetings of the directors and stockholders of the Company, the
Registration Statement and such other documents relating to the
Company as we have deemed material for the purposes of this
opinion.
In examination of the foregoing documents, we have assumed the
genuineness of all signatures and the authenticity of all documents
submitted to us as originals, the conformity to original documents
of all documents submitted to us as certified or photostatic
copies, and the authenticity of the originals of such latter
documents.
Based on the foregoing, we are of the opinion that the Company
has duly authorized for issuance the shares of its Common Stock
covered by the Registration Statement to be issued under the
Agreement, as described in the Registration Statement, and such
shares, when issued in accordance with the terms of the Agreement,
will be legally issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion with the
Securities and Exchange Commission in connection with the
Registration Statement.
Alexander Bernhard, Esquire, Secretary of the Company, is a
partner of this firm.
Very truly yours,
HALE AND DORR
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement on Form
S-8 of our report dated December 2, 1994 included in Xylogics,
Inc's Form 10-K for the fiscal year ended October 31, 1994 and to
all references to our Firm included in this registration statement.
ARTHUR ANDERSEN & CO.
Boston, Massachusetts
May 16, 1995