As filed with the Securities and Exchange Commission on September 25, 2001
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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CYLINK CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
CALIFORNIA 95-3891600
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
3131 JAY STREET
SANTA CLARA, CALIFORNIA 95054
(Address of Registrant's Principal Executive Offices)
CYLINK CORPORATION 1994 FLEXIBLE STOCK INCENTIVE PLAN
CYLINK ATM TECHNOLOGY CENTER 2000 STOCK OPTION PLAN
CYLINK CORPORATION 2001 NON-QUALIFIED STOCK INCENTIVE PLAN
(Full Title of Plans)
ROBERT B. FOUGNER, ESQ.
GENERAL COUNSEL AND SECRETARY
CYLINK CORPORATION
3131 JAY STREET
SANTA CLARA, CALIFORNIA 95054
(408) 855-6000
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent for Service)
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Copy to:
PAUL L. LION III, ESQ.
WILLIAM HEROCHIK, ESQ.
MORRISON & Foerster LLP
755 PAGE MILL ROAD
PALO ALTO, CA 94304-1018
(415) 813-5615
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CALCULATION OF REGISTRATION FEE
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MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO OFFERING PRICE AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED BE REGISTERED PER SHARE(1) PRICE(1) FEE
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Common Stock, to be issued under
the Cylink Corporation 1994
Flexible Stock Incentive Plan,
the Cylink ATM Technology Center
2000 Stock Option Plan and the
Cylink Corporation 200
Non-Qualified Stock Incentive
Plans 10,276,449 $0.68 $6,987,985.33 $1,747.00
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<FN>
(1) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee and based upon 100% of the average of
the high and low prices reported on the Nasdaq National Market on
September 21, 2001.
</FN>
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PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part 1 of Form
S-8 (plan information and registrant information and employee plan annual
information) will be sent or given to employees as specified by Securities and
Exchange Commission Rule 428(b)(1). Such documents need not be filed with the
Securities and Exchange Commission either as part of this Registration Statement
or as prospectuses or prospectus supplements pursuant to Rule 424. These
documents and the documents incorporated by reference in this Registration
Statement pursuant to Item 3 of Form S-8 (Part II hereof), taken together,
constitute a prospectus that meets the requirements of Section 10(a) of the
Securities Act of 1933.
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
This Registration Statement relates to and registers 10,276,449 of
which 7,976,449 shares of Common Stock of Cylink Corporation are for issuance
under the Cylink Corporation 1994 Flexible Stock Incentive Plan (the "1994
Plan") 300,000 are for issuance under the Cylink ATM Technology Center 2000
Stock Option Plan (the "2000 Plan") and 2,000,000 are for issuance under the
Cylink Corporation 2001 Non-Qualified Stock Incentive Plan (the "2001 Plan").
The reports listed below have been filed with or furnished to the Securities and
Exchange Commission (the "Commission") by Cylink Corporation (the "Company") and
are now incorporated herein by reference to the extent not superseded by
documents or reports subsequently filed or furnished:
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 2000, as filed with the Commission on April 2, 2001 pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as Amended (the
"Exchange Act");
(b) The Company's Quarterly Reports on Form 10-Q for the quarter ended
April 1, 2001, as filed with the Commission on May 16, 2001; and the quarter
ended July 1, 2001, as filed with the Commission on August 16, 2001, pursuant to
Section 13(a) or 15(d) of the Exchange Act; and
(c) The description of the Company's Common Stock to be offered hereby
which is contained in its Registration Statement on Form 8-A as filed with the
Commission on February 14, 1996 under the Exchange Act.
All documents subsequently filed pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934 by the Company 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 the Registration Statement and to
be part thereof from the date of filing of such documents.
Except as superseded or modified herein, any statement contained in any
document incorporated by reference herein or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement contained herein or
in any other subsequently filed document which also is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this document.
ITEM 4. DESCRIPTION OF SECURITIES.
The information required by Item 4 is not applicable to this
Registration Statement because the class of securities to be offered is
registered under Section 12 of the Securities Exchange Act of 1934.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Bylaws provide that the Company will indemnify its
Directors and executive officers and may indemnify its other officers, employees
and other agents to the fullest extent permitted by California law. The Company
is also empowered under its Bylaws to enter into indemnification agreements with
its Directors and officers and to purchase insurance on behalf of any person
whom it is required or permitted to indemnify. The Company has entered into
indemnification agreements with each of its Directors and executive officers and
obtained a policy of Directors' and officers' liability insurance that insures
such persons against the cost of defense, settlement or payment of a judgment
under certain circumstances.
In addition, the Company's Amended and Restated Articles of
Incorporation provide that the liability of the Company's Directors for monetary
damages shall be eliminated to the fullest extent permissible under California
law. This provision in the Amended and Restated Articles of Incorporation does
not eliminate a Director's duty of care, and in appropriate circumstances
equitable remedies such as an injunction or other forms of non-monetary relief
will remain available under California law. Each Director will continue to be
subject to liability for breach of the Director's duty of loyalty to the
Company, for acts or omission not in good faith or involving intentional
misconduct or knowing violations of law, for acts or omissions that the Director
believes to be contrary to the best interests of the Company or its
shareholders, for any transaction from which the Director derived an improper
personal benefit, for improper transactions between the Director and the Company
and for improper distributions to
shareholders and loans to Directors and officers. This provision also does not
affect a Director's responsibilities under any laws, such as the federal
securities laws or state or federal environmental laws.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
The information required by Item 7 is not applicable to this
Registration Statement.
ITEM 8. EXHIBITS.
Incorporated by reference to the Exhibit Index attached hereto.
ITEM 9. UNDERTAKINGS.
The undersigned Company 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 end 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 a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective 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 (1)(i) and
(1)(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 Company
pursuant to Section 13 or 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; and
(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 of 1933, each filing of the Company'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.
(5) That, 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 provisions described in Item 6 of this
Registration Statement, or otherwise, the Company has been advised that in the
opinion of the 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 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 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 Securities Act of 1933 and
will be governed by the final adjudication of such issue.
ITEM 8. EXHIBITS.
4.1 Amended and Restated Articles of Incorporation of the Registrant
(incorporated by reference to Exhibit 3.1 and 3.2 to the Registrant's
Registration Statement on Form S-1 (Commission File No. 33-80719) which became
effective on February 15, 1996 (the "Registration Statement on Form S-1")).
4.2 Amended and Restated Bylaws of the Registrant (incorporated by
reference to Exhibit 3.3 to the Registration Statement on Form S-1).
4.3 Cylink Corporation 1994 Flexible Stock Incentive Plan.
4.4 Cylink ATM Technology Center 2000 Stock Option Plan.
4.5 Cylink Corporation 2001 Non-Qualified Stock Incentive Plan.
5.1 Opinion of Morrison & Foerster LLP
23.1 Consent of Morrison & Foerster LLP (contained in Exhibit 5.1)
23.2 Consent of Deloitte & Touche LLP, Independent Auditors
23.3 Consent of PricewaterhouseCoopers LLP, Independent Accountants
24.1 Power of Attorney (see Signature Page)
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant, Cylink 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 Santa Clara, State of
California, on September 24, 2001.
CYLINK CORPORATION
By: /s/ Christopher Chillingworth
---------------------------------
Christopher Chillingworth
Vice President of Finance
and Administration and
Chief Financial Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Christopher Chillingworth and Robert B. Fougner, 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, 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 the
said attorney-in-fact 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 date indicated.
Signature Capacity Date
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/s/ Christopher Chillingworth Vice President of Finance September 24, 2001
---------------------------------------- and Administration and
Christopher Chillingworth Chief Financial Officer
/s/ William P. Crowell President, Chief Executive September 19, 2001
---------------------------------------- Officer, and Director
William P. Crowell
/s/ Leo A. Guthart Director, Chairman of the September 20, 2001
---------------------------------------- Board of Directors
Leo A. Guthart
/s/ James S. Simons Director September 19, 2001
----------------------------------------
James S. Simons
/s/ Howard L. Morgan Director September 19, 2001
----------------------------------------
Howard L. Morgan
/s/ Elwyn Berlekamp Director September 24, 2001
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Elwyn Berlekamp
/s/ William W. Harris Director September 24, 2001
----------------------------------------
William W. Harris
/s/ Paul Gauvreau Director September 20, 2001
----------------------------------------
Paul Gauvreau
Director _________, 2001
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Regis McKenna
INDEX TO EXHIBITS
EXHIBIT
NUMBER DOCUMENT
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4.1 Amended and Restated Articles of Incorporation of the Registrant
(incorporated by reference to Exhibit 3.1 and 3.2 to the Registrant's
Registration Statement on Form S-1 (Commission File No. 33-80719) which
became effective on February 15, 1996 (the "Registration Statement on
Form S-1")).
4.2 Amended and Restated Bylaws of the Registrant (incorporated by
reference to Exhibit 3.3 to the Registration Statement on Form S-1).
4.3 Cylink Corporation 1994 Flexible Stock Incentive Plan.
4.4 Cylink ATM Technology Center 2000 Stock Option Plan.
4.5 Cylink Corporation 2001 Non-Qualified Stock Incentive Plan.
5.1 Opinion of Morrison & Foerster LLP
23.1 Consent of Counsel (included in Exhibit 5.1)
23.2 Consent of Deloitte & Touche LLP, Independent Auditors
23.3 Consent of PricewaterhouseCoopers LLP, Independent Accountants
24.1 Power of Attorney (see Signature Page)