As filed with the Securities and Exchange
Commission on April 11, 2003. File No. 333-
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UNITED STATES
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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Telaxis Communications Corporation
(Exact name of registrant as specified in its charter)
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MASSACHUSETTS 04-2751645
(State or other jurisdiction of (I.R.S Employer Identification Number)
incorporation or organization)
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8000 Lee Highway
Falls Church, VA 22042
(Address of Principal Executive Offices)
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YOUNG DESIGN, INC.
2002 STOCK INCENTIVE PLAN
(Full title of the plan)
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ROBERT E. FITZGERALD
President and Chief Executive Officer
TELAXIS COMMUNICATIONS CORPORATION
8000 Lee Highway
Falls Church, VA 22042
(Name and address of agent for service)
(703) 205-0600
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
====================================================================================================================================
Proposed maximum Proposed
Title of securities Amount to offering price per maximum aggregate Amount of
to be registered be registered(1) share offering price registration fee
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Common Stock, $.01 par value (2)...... 1,778,750 (3) $0.40 (4) $711,500 (4) $58.00
====================================================================================================================================
(1) Pursuant to Rule 416, this Registration Statement also relates to such
indeterminate number of additional shares as may be necessary to satisfy
the antidilution provisions of the Young Design, Inc. 2002 Stock Incentive
Plan (the "Plan") to which this Registration Statement relates.
(2) Each share includes one right to purchase shares of the registrant's class
one participating cumulative preferred stock pursuant to the registrant's
rights agreement dated as of May 18, 2001, as amended to date and as may be
amended in the future.
(3) Represents all shares reserved for issuance pursuant to awards under the
Plan which are currently outstanding.
(4) The proposed maximum offering price per share of Common Stock and the
proposed maximum aggregate offering price are calculated solely for the
purpose of determining the registration fee pursuant to Rule 457(h)(1)
under the Securities Act of 1933, based on the weighted average exercise
price per share of the awards outstanding under the Plan.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
Telaxis Communications Corporation (the "Registrant" or the "Company")
hereby incorporates by reference the following documents:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 2002 filed by the Registrant with the Securities and Exchange
Commission on March 31, 2003.
(b) The Registrant's Current Report on Form 8-K filed by the Registrant
with the Securities and Exchange Commission on January 9, 2003.
(c) The Registrant's Current Report on Form 8-K filed by the Registrant
with the Securities and Exchange Commission on March 20, 2003.
(d) The Registrant's Current Report on Form 8-K filed by the Registrant
with the Securities and Exchange Commission on April 8, 2003.
(e) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form S-1 (File No. 333-87885) in the form
declared effective by the Securities and Exchange Commission on February 1,
2000, including the information in the Registrant's Current Report on Form 8-K
filed by the Registrant with the Securities and Exchange Commission on May 21,
2001 for the purpose of updating that description.
All documents subsequently filed by the Registrant 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
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 thereof from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the Common Stock registered hereby is being passed upon for
the Registrant by Foley Hoag LLP, Boston, Massachusetts.
Item 6. Indemnification of Directors and Officers.
Section 67 of Chapter 156B of the Massachusetts General Laws, or the
Massachusetts Business Corporation Law (the "MBCL"), provides that the
indemnification of directors, officers, employees and other agents of a
corporation, and persons who serve at its request as directors, officers,
employees or other agents of another organization, or who serve at its request
in any capacity with respect to any employee benefit plan, may be provided by it
to whatever extent shall be specified in or authorized by (i) the articles of
organization or (ii) a by-law adopted by the stockholders or (iii) a vote
adopted by the holders of a majority of the shares of stock entitled to vote on
the election of directors. Except as the articles of organization or by-laws
otherwise require, indemnification of any of those persons who are not directors
of the corporation may be provided by it to the extent authorized by the
directors. Such indemnification may include payment by the corporation of
expenses incurred in defending a civil or criminal action or proceeding in
advance of the final disposition of such action or proceeding, upon receipt of
an undertaking by the person indemnified to repay such payment if he shall be
adjudicated to be not entitled to indemnification, which undertaking may be
accepted without reference to the financial ability of such person to make
repayment. Any such indemnification may be provided although the person to be
indemnified is no longer an officer, director, employee or agent of the
corporation or of such other organization or no longer serves with respect to
any such employee benefit plan. Section 67 further provides that no
indemnification shall be provided for any person with respect to any matter as
to which he shall have been adjudicated in any proceeding not to have acted in
good faith in the reasonable belief that his action was in the best interest of
the corporation or, to the extent that such matter relates to service with
respect to any employee benefit plan, in the best interest of the participants
or beneficiaries of such employee benefit plan.
The Registrant's By-laws provide that the Registrant shall indemnify each
person who is or was a director, officer, employee or agent of the Registrant,
or who is serving or served, at the request of the Registrant, as a director,
officer, employee or other agent of another organization or in any capacity with
respect to any employee benefit plan, against all judgments, fines, penalties,
costs and expenses reasonably incurred by such person (including reasonable
settlement costs other than amounts paid to the Registrant) in connection with
or arising out of any claims made, or any action, suit or proceeding threatened
or brought against him or in which he may be involved by reason of any action
alleged to have been taken or omitted by him as a director, officer, employee or
agent, or in any capacity with respect to any employee benefit plan. No
indemnification is provided for any person with respect to any matter as to
which he is adjudicated not to have acted in good faith in the reasonable belief
that his action was in the best interests of the Registrant or, to the extent
that such matter relates to service with respect to an employee benefit plan, in
the best interests of the participants or beneficiaries of such employee benefit
plan. Indemnification may, in the discretion of the Registrant's Board of
Directors, include payments by the Registrant of costs and expenses incurred in
advance of the final disposition of a proceeding upon receipt of an undertaking
by the person indemnified to repay such payment if he is adjudicated to be not
entitled to indemnification, which undertaking may be accepted without reference
to the financial ability of such person to make repayment.
Section 13(b)(1 1/2) of the MBCL permits a corporation to include in its
articles of organization a provision eliminating or limiting the personal
liability of a director to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, provided that such provision
shall not eliminate or limit the liability of a director (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 61 or 62 of the MBCL (relating to
3
unlawful payment of dividends, unlawful stock purchase and redemption and loans
to insiders) or (iv) for any transaction from which the director derived an
improper personal benefit. Article VI of the Registrant's Articles of
Organization provides that the Registrant's directors shall not be liable to the
Registrant or its stockholders for monetary damages for breach of fiduciary duty
as directors, except in the circumstances set forth in the MBCL.
Section 67 of the MBCL also affords a Massachusetts corporation the power
to obtain insurance on behalf of its directors and officers against liabilities
incurred by them in those capacities. The Registrant currently maintains a
$10,000,000 Directors and Officers Liability Insurance Policy.
The Registrant has entered into indemnification agreements with each of its
directors and executive officers. These agreements contain provisions that are,
in some respects, broader than the specific indemnification provisions contained
in the MBCL and in the Registrant's By-laws. In general, the indemnification
agreements may require the Registrant:
o to indemnify its directors and officers against liabilities that may
arise due to their status or service as officers or directors, other
than liabilities that may arise with respect to any matter as to which
the person seeking indemnification is adjudicated not to have acted in
good faith in the reasonable belief that their action was in the best
interest of the Registrant; and
o to advance their expenses incurred as a result of any proceeding
against them as to which they may be entitled to indemnification.
The Underwriting Agreement dated February 1, 2000 between the Registrant
and Credit Suisse First Boston Corporation, Banc of America Securities LLC and
CIBC World Markets Corp. provides that the underwriters named therein will
indemnify and hold harmless the Registrant and each director, officer or
controlling person of the Registrant from and against certain liabilities,
including liabilities under the Securities Act of 1933, as amended (the
"Securities Act"), and the Underwriting Agreement provides that such
underwriters will contribute to certain liabilities of such persons under the
Securities Act.
Item 7. Exemption from Registration Claimed.
Not Applicable.
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Item 8. Exhibits.
Exhibit
Number Description
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4.1 Restated Articles of Organization of the Registrant (incorporated
by reference to Exhibit 3.1 of the Registrant's Registration
Statement on Form S-1 (File No. 333-87885)).
4.2 Certificate of Vote of Directors Establishing a Class or Series
of Stock (incorporated by reference to Exhibit 3.1 to the
Registrant's Form 10-Q filed with the Securities and Exchange
Commission on August 10, 2001).
4.3 Rights Agreement, dated as of May 18, 2001, between the
Registrant and Registrar and Transfer Company, as Rights Agent
(incorporated by reference to Exhibit 1 to the Registrant's Form
8-A filed with the Securities and Exchange Commission on May 21,
2001).
4.4 Amendment No. 1 to Rights Agreement by and between the Company
and Registrar and Transfer Company, as Rights Agent dated as of
September 9, 2002 (incorporated by reference to Exhibit 10.1 to
the Registrant's Form 8-K filed with the Securities and Exchange
Commission on September 12, 2002).
4.5 Amendment No. 2 to Rights Agreement by and between the Company
and Registrar and Transfer Company, as Rights Agent dated as of
March 17, 2003 (incorporated by reference to Exhibit 10.1 to the
Registrant's Form 8-K filed with the Securities and Exchange
Commission on March 20, 2003).
4.6 Form of Right Certificate (incorporated by reference to Exhibit 3
to the Registrant's Form 8-A filed with the Securities and
Exchange Commission on May 21, 2001).
4.7 Amended and Restated By-Laws of the Registrant (incorporated by
reference to Exhibit 3.2 to the Registrant's Form 10-Q filed with
the Securities and Exchange Commission on August 10, 2001).
5.1 Opinion of Foley Hoag LLP.
23.1 Consent of PricewaterhouseCoopers LLP, Independent Certified
Public Accountants.
23.2 Consent of Foley Hoag LLP (included in Exhibit 5.1).
24 Power of Attorney (included on signature pages).
99.1 Young Design, Inc. 2002 Stock Incentive Plan.
5
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:
(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; and
(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 (l)(i) and (l)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) 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.
(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 15(d) of the
Securities Exchange Act of 1934 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 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, 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 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
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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 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 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 Falls Church, Commonwealth of Virginia on April 11,
2003.
Telaxis Communications Corporation
By: /s/ Robert E. Fitzgerald
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Robert E. Fitzgerald,
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS that each individual whose signature appears
below hereby constitutes and appoints Robert E. Fitzgerald and Patrick L.
Milton, and each of them, his or her true and lawful attorneys-in-fact and
agents with full power of substitution, for him or her and in his or her 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 all 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 which they, or any of them, may deem
necessary or advisable to be done in connection with this registration
statement, 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 any substitute or substitutes for him, any or all of
them, may lawfully 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:
Signature Title Date
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Chief Executive Officer and Director April 11, 2003
/s/ Robert E. Fitzgerald (principal executive officer)
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Robert E. Fitzgerald
Chief Financial Officer and Treasurer April 11, 2003
/s/ Patrick L. Milton (principal financial and accounting
- ------------------------------ officer)
Patrick L. Milton
/s/ Carol B. Armitage Chairperson of the Board of Directors April 11, 2003
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Carol B. Armitage
/s/ Ralph A. Goldwasser Director April 11, 2003
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Ralph A. Goldwasser
/s/ Gordon D. Poole Director April 11, 2003
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Gordon D. Poole
/s/ Daniel A. Saginario Director April 11, 2003
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Daniel A. Saginario
/s/ Michael F. Young Director April 11, 2003
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Michael F. Young
/s/ John L. Youngblood Director April 11, 2003
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John L. Youngblood
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EXHIBIT INDEX
Exhibit
Number Description
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4.1 Restated Articles of Organization of the Registrant (incorporated
by reference to Exhibit 3.1 of the Registrant's Registration
Statement on Form S-1 (File No. 333-87885)).
4.2 Certificate of Vote of Directors Establishing a Class or Series
of Stock (incorporated by reference to Exhibit 3.1 to the
Registrant's Form 10-Q filed with the Securities and Exchange
Commission on August 10, 2001).
4.3 Rights Agreement, dated as of May 18, 2001, between the
Registrant and Registrar and Transfer Company, as Rights Agent
(incorporated by reference to Exhibit 1 to the Registrant's Form
8-A filed with the Securities and Exchange Commission on May 21,
2001).
4.4 Amendment No. 1 to Rights Agreement by and between the Company
and Registrar and Transfer Company, as Rights Agent dated as of
September 9, 2002 (incorporated by reference to Exhibit 10.1 to
the Registrant's Form 8-K filed with the Securities and Exchange
Commission on September 12, 2002).
4.5 Amendment No. 2 to Rights Agreement by and between the Company
and Registrar and Transfer Company, as Rights Agent dated as of
March 17, 2003 (incorporated by reference to Exhibit 10.1 to the
Registrant's Form 8-K filed with the Securities and Exchange
Commission on March 20, 2003).
4.6 Form of Right Certificate (incorporated by reference to Exhibit 3
to the Registrant's Form 8-A filed with the Securities and
Exchange Commission on May 21, 2001).
4.7 Amended and Restated By-Laws of the Registrant (incorporated by
reference to Exhibit 3.2 to the Registrant's Form 10-Q filed with
the Securities and Exchange Commission on August 10, 2001).
5.1 Opinion of Foley Hoag LLP.
23.1 Consent of PricewaterhouseCoopers LLP, Independent Certified
Public Accountants.
23.2 Consent of Foley Hoag LLP (included in Exhibit 5.1).
24 Power of Attorney (included on signature pages).
99.1 Young Design, Inc. 2002 Stock Incentive Plan.
9