As filed with the Securities and Exchange Commission on May 4, 1998.
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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EXCEL SWITCHING CORPORATION
(Exact name of registrant as specified in its charter)
Massachusetts 04-2992806
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
255 Independence Drive
Hyannis, Massachusetts 02601
(508) 862-3000
(Address of Principal Executive Offices) (Zip Code)
____________________________________
Stock Option Program
1997 Stock Option Plan
1997 Non-Employee Director Stock Option Plan
1997 Employee Stock Purchase Plan
(Full title of the plans)
____________________________________
Robert P. Madonna
Chief Executive Officer and President
Excel Switching Corporation
255 Independence Drive
Hyannis, Massachusetts 02601
(508) 862-3000
(Name, address and telephone number,
including area code, of agent for service)
____________________________________
Copy to:
CHRISTOPHER STAVROS, ESQ. JOHN HESSION, ESQ.
EXCEL SWITCHING CORPORATION TESTA, HURWITZ & THIBEAULT, LLP
255 INDEPENDENCE DRIVE HIGH STREET TOWER, 125 HIGH STREET
HYANNIS, MASSACHUSETTS 02601 BOSTON, MASSACHUSETTS 02110
(508) 862-3000 (617) 248-7000
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CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum Amount of
Amount to Offering Price Aggregate Registration
Title of Securities to be Registered be Registered Per Share Offering Price Fee
STOCK OPTION PROGRAM
Common Stock (Par Value $.01 Per Share) 5,014,840 $0.0017 (1) $ 8,525 $ 2.51
Common Stock (Par Value $.01 Per Share) 930,000 $ 0.17 (1) $ 158,100 $ 46.64
Common Stock (Par Value $.01 Per Share) 1,272,200 $ 0.33 (1) $ 419,826 $ 123.85
Common Stock (Par Value $.01 Per Share) 21,600 $ 1.00 (1) $ 21,600 $ 6.37
Common Stock (Par Value $.01 Per Share) 300,000 $ 2.33 (1) $ 699,000 $ 206.21
Common Stock (Par Value $.01 Per Share) 920,700 $ 4.50 (1) $ 4,143,150 $ 1,222.23
Common Stock (Par Value $.01 Per Share) 600,000 $ 5.00 (1) $ 3,000,000 $ 885.00
Common Stock (Par Value $.01 Per Share) 651,440 $ 6.00 (1) $ 3,908,640 $ 1,153.05
Common Stock (Par Value $.01 Per Share) 291,600 $ 7.00 (1) $ 2,041,200 $ 602.15
Common Stock (Par Value $.01 Per Share) 21,600 $ 7.50 (1) $ 162,000 $ 47.79
Common Stock (Par Value $.01 Per Share) 42,500 $ 8.50 (1) $ 361,250 $ 106.57
Common Stock (Par Value $.01 Per Share) 10,800 $ 9.50 (1) $ 102,600 $ 30.27
Common Stock (Par Value $.01 Per Share) 24,800 $ 10.50 (1) $ 260,400 $ 76.82
Common Stock (Par Value $.01 Per Share) 52,600 $ 11.50 (1) $ 604,900 $ 178.45
Common Stock (Par Value $.01 Per Share) 6,200 $ 12.50 (1) $ 77,500 $ 22.86
Common Stock (Par Value $.01 Per Share) 283,000 $ 14.50 (1) $ 4,103,500 $ 1,210.53
Common Stock (Par Value $.01 Per Share) 63,200 $ 15.50 (1) $ 979,600 $ 288.98
Common Stock (Par Value $.01 Per Share) 7,400 $ 18.00 (1) $ 133,200 $ 39.29
1997 STOCK OPTION PLAN
Common Stock (Par Value $.01 Per Share) 10,000 $ 16.38 (1) $ 163,800 $ 48.32
Common Stock (Par Value $.01 Per Share) 300 $ 16.69 (1) $ 5,007 $ 1.48
Common Stock (Par Value $.01 Per Share) 13,000 $ 16.75 (1) $ 217,750 $ 64.24
Common Stock (Par Value $.01 Per Share) 1,300 $ 17.25 (1) $ 22,425 $ 6.62
Common Stock (Par Value $.01 Per Share) 24,500 $ 18.13 (1) $ 444,185 $ 131.03
Common Stock (Par Value $.01 Per Share) 5,000 $ 18.16 (1) $ 90,800 $ 26.79
Common Stock (Par Value $.01 Per Share) 16,300 $ 19.00 (1) $ 309,700 $ 91.36
Common Stock (Par Value $.01 Per Share) 1,000 $ 19.75 (1) $ 19,750 $ 5.83
Common Stock (Par Value $.01 Per Share) 1,600 $ 20.13 (1) $ 32,208 $ 9.50
Common Stock (Par Value $.01 Per Share) 9,000 $ 20.25 (1) $ 182,250 $ 53.76
Common Stock (Par Value $.01 Per Share) 23,800 $ 20.88 (1) $ 496,944 $ 146.60
Common Stock (Par Value $.01 Per Share) 16,300 $ 20.75 (1) $ 338,225 $ 99.78
Common Stock (Par Value $.01 Per Share) 2,000 $ 21.00 (1) $ 42,000 $ 12.39
Common Stock (Par Value $.01 Per Share) 12,200 $ 25.25 (1) $ 308,050 $ 90.87
Common Stock (Par Value $.01 Per Share) 2,863,700 $ 21.31 (2) $61,025,447 $18,002.51
1997 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
Common Stock (Par Value $.01 Per Share) 70,000 $ 21.00 (1) $ 1,470,000 $ 433.65
Common Stock (Par Value $.01 Per Share) 155,000 $ 21.31 (2) $ 3,303,050 $ 974.40
1997 EMPLOYEE STOCK PURCHASE PLAN
Common Stock (Par Value $.01 Per Share) 400,000 $ 21.31 (2) $ 8,524,000 $ 2,514.58
TOTAL: 14,139,480 $98,180,582 $28,963.27
________________________________________________________________________________
(1) All such shares are issuable upon exercise of outstanding options with
fixed exercise prices. Pursuant to Regulation C, Rule 457(h)(1) under the
Securities Act of 1933, as amended, the aggregate offering price and the
fee have been computed upon the basis of the price at which the options may
be exercised.
(2) The price of $21.31 per share, which is the average of the high and low
prices of the common stock of the registrant reported on the Nasdaq National
Market on April 29, 1998, is set forth solely for purposes of calculating
the filing fee pursuant to Rule 457(c) and (h) and has been used only for
those shares without a fixed exercise price.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
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The documents containing the information specified in this Item 1 will
be sent or given to employees, directors or others as specified by Rule
428(b)(1). In accordance with the rules and regulations of the Securities and
Exchange Commission (the "Commission") and the instructions to Form S-8, such
documents are not being filed with the Commission either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424.
Item 2. Registrant Information and Employee Plan Annual Information.
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The documents containing the information specified in this Item 2 will
be sent or given to employees as specified by Rule 428(b)(1). In accordance
with the rules and regulations of the Commission and the instructions to Form S-
8, such documents are not being filed with the Commission either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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The following documents filed with the Commission are incorporated by
reference in this Registration Statement:
(a) Registrant's Annual Report on Form 10-K for the fiscal year ended
December 27, 1997;
(b) The section entitled "Description of Registrant's Securities to
be Registered," contained in the Registrant's Registration
Statement on Form 8-A, filed on October 23, 1997 pursuant to
Section 12(g) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
All documents subsequently filed with the Commission 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 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 4. Description of Securities.
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Not applicable.
Item 5. Interests of Named Experts and Counsel.
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Not applicable.
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Item 6. Indemnification of Directors and Officers.
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The Company is required by its Restated By-laws and the Restated
Articles or Organization generally to indemnify any director, officer or
employee against all expenses and liabilities reasonably incurred by or imposed
upon such person in connection with any legal action in which such person is
involved by reason of such person's position with the Company unless such person
shall have been finally adjudicated in any action, suit or proceeding not to
have acted in good faith in the reasonable belief that such person's action was
in the best interests of the Company. The Company may pay expenses incurred by
any such person in defending a civil or criminal action or proceeding in advance
of the final disposition of such action upon the Company's receipt of the
undertaking of such person to repay such amount if such person shall be
adjudicated not to be entitled to indemnification.
The Company's Restated Articles of Incorporation include a provision
limiting the personal liability of a director of the Company to its stockholders
for monetary damages for breaches of their fiduciary duty except (i) for any
breach of the director's duty of loyalty to the Company 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 sixty-one or
sixty-two of Chapter 156B of the Massachusetts General Laws, or (iv) for any
transaction from which the director derived an improper benefit.
The Company maintains directors and officers liability insurance of
the benefit of its directors and certain of its officers.
Item 7. Exemption From Registration Claimed.
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Not applicable.
Item 8. Exhibits.
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Exhibit No. Description of Exhibit
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Exhibit 4.1 Specimen certificate representing the Common Stock of the
Registrant (filed as Exhibit 4.1 to the Registrant's
Registration Statement on Form S-1 (Registration
No. 333-35791) and incorporated herein by reference).
Exhibit 4.2 Restated Articles of Organization of the Registrant
(filed as Exhibit 3.2 to the Registrant's Registration
Statement on Form S-1 (Registration No. 333-35791) and
incorporated herein by reference).
Exhibit 4.3 Restated By-laws of the Registrant (filed as Exhibit 3.2
to the Registrant's Registration Statement on Form S-1
(Registration No. 333-35791) and incorporated herein by
reference).
Exhibit 4.4 Form of Stock Option Agreement under the Registrant's
Stock Option Program (filed as Exhibit 10.4 to the
Registration Statement on Form S-1 (Registration No. 333-
35791) and incorporated herein by reference).
Exhibit 4.5 1997 Stock Option Plan (filed herewith).
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Exhibit 4.6 1997 Non-Employee Director Stock Option Plan (filed as
Exhibit 10.2 to the Registrant's Registration Statement
on Form S-1 (Registration No. 333-35791) and incorporated
herein by reference).
Exhibit 4.7 1997 Employee Stock Purchase Plan (filed as Exhibit 10.3
to the Registrant's Registration Statement on Form S-1
(Registration No. 333-35791) and incorporated herein by
reference).
Exhibit 4.8 Form of Non-Qualified Stock Option Agreement under the
Registrant's 1997 Stock Option Plan (filed herewith).
Exhibit 4.9 Form of Incentive Stock Option Agreement under the
Registrant's 1997 Stock Option Plan (filed herewith).
Exhibit 4.10 Form of Non-Qualified Stock Option Agreement under the
Registrant's 1997 Non-Employee Director Stock Option Plan
(filed herewith).
Exhibit 5.1 Opinion of Testa, Hurwitz & Thibeault, LLP (filed
herewith).
Exhibit 23.1 Consent of Testa, Hurwitz & Thibeault, LLP (contained in
Exhibit 5.1).
Exhibit 23.2 Consent of Arthur Andersen LLP (filed herewith).
Exhibit 24.1 Power of Attorney (included as part of the signature page
to this Registration Statement).
Item 9. Undertakings.
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(a) 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. Notwithstanding
the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of
securities offered would not exceed that which was
registered) and any deviation from the low or high and
of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no
more than 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of
Registration Fee" table in the Registration Statement;
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(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;
(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.
(b) 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 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to 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.
(c) 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 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 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant,
Excel Switching 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 Hyannis, Massachusetts, on this 1st day of May,
1998.
EXCEL SWITCHING CORPORATION
By: /s/ Robert P. Madonna
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Robert P. Madonna
Chief Executive Officer and President
POWER OF ATTORNEY
We, the undersigned officers and directors of Excel Switching Corporation,
hereby severally constitute and appoint Christopher Stavros and Stephen S.
Galliker, and each of them singly, our true and lawful attorneys, with full
power to them and each of them singly, to sign for us in our names in the
capacities indicated below, 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, and generally to do all things in our names
and on our behalf in our capacities as officers and directors to enable Excel
Switching Corporation, to comply with the provisions of the Securities Act of
1933, as amended, hereby ratifying and confirming our signatures as they may be
signed by our said attorneys, or any of them, to said Registration Statement and
all amendments thereto.
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(S) DATE
--------- ------- -----
/s/ Robert P. Madonna Chief Executive Officer, President and May 1, 1998
- -------------------------------------- Director (Principal Executive Officer)
Robert P. Madonna
/s/ Stephen S. Galliker Chief Financial Officer May 1, 1998
- -------------------------------------- (Principal Financial and Accounting
Stephen S. Galliker Officer)
/s/ Christopher Stavros Director, Vice President and General May 1, 1998
- -------------------------------------- Counsel
Christopher Stavros
/s/ Edward Breslow Director May 1, 1998
- --------------------------------------
Edward Breslow
/s/ John Loughlin Director May 1, 1998
- --------------------------------------
John Loughlin
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Exhibit Index
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Exhibit No. Description of Exhibit
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4.1 Specimen certificate representing the Common Stock of the Registrant (filed as
Exhibit 4.1 to the Registrant's Registration Statement on Form S-1 (Registration
No. 333-35791) and incorporated herein by reference).
4.2 Restated Articles of Organization of the Registrant (filed as Exhibit 3.2 to the
Registrant's Registration Statement on Form S-1 (Registration No. 333-35791) and
incorporated herein by reference).
4.3 Restated By-laws of the Registrant (filed as Exhibit 3.2 to the Registrant's
Registration Statement on Form S-1 (Registration No. 333-35791) and incorporated
herein by reference).
4.4 Form of Stock Option Agreement under the Registrant's Stock Option Program (filed
as Exhibit 10.4 to the Registration Statement on Form S-1 (Registration No.
333-35791) and incorporated herein by reference).
4.5 1997 Stock Option Plan (filed herewith).
4.6 1997 Non-Employee Director Stock Option Plan (filed as Exhibit 10.2 to the
Registrant's Registration Statement on Form S-1 (Registration No. 333-35791) and
incorporated herein by reference).
4.7 1997 Employee Stock Purchase Plan (filed as Exhibit 10.3 to the Registrant's
Registration Statement on Form S-1 (Registration No. 333-35791) and incorporated
herein by reference).
4.8 Form of Non-Qualified Stock Option Agreement under the Registrant's 1997 Stock
Option Plan (filed herewith).
4.9 Form of Incentive Stock Option Agreement under the Registrant's 1997 Stock Option
Plan (filed herewith).
4.10 Form of Non-Qualified Stock Option Agreement under the Registrant's 1997
Non-Employee Director Stock Option Plan (filed herewith).
5.1 Opinion of Testa, Hurwitz & Thibeault, LLP (filed herewith).
23.1 Consent of Testa, Hurwitz & Thibeault, LLP (contained in Exhibit 5.1).
23.2 Consent of Arthur Andersen LLP (filed herewith).
24.1 Power of Attorney (included as part of the signature page to this Registration
Statement).