As filed with the Securities and Exchange Commission on August 28, 2002
Registration No. 333 - ______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
--------------------------------
TELLIUM, INC.
(Exact name of registrant as specified in its charter)
Delaware 22-3509099
(State or other jurisdiction of (I.R.S. Employer
Incorporation or organization) Identification No.)
2 Crescent Place
Oceanport, New Jersey 07757-0901
(732) 923 - 4100
(Address, including zip code and telephone number,
including area code, of registrant's principal executive offices)
Tellium 2002 Stock Incentive Plan
(Full title of the plans)
Harry J. Carr, Chairman and Chief Executive Officer
Tellium, Inc.
2 Crescent Place
Oceanport, New Jersey 07757-0901
(732) 923-4100
copy to:
Lawrence R. Bard
Fried, Frank, Harris, Shriver & Jacobson
1001 Pennsylvania Avenue, NW
Washington, D.C. 20004
(202) 639-7000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
--------------------------------
CALCULATION OF REGISTRATION FEE
==============================================================================
Proposed
Maximum Proposed Maximum Amount of
Title of Each Class Amount to be Offering Price per Aggregate Registration
of Securities to be Registered Registered Share (1) Offering Price(1) Fee (2)
------------------------------ ---------- --------- ----------------- -------
Common stock, $0.001 par value 13,645,000 $ 0.59 $ 8,050,550 $ 740.65
---------- ------- ------------- ---------
==============================================================================
(1) The proposed maximum offering price per share is estimated solely for the
purpose of computing the amount of the registration fee under Rule 457(c)
and (h). The price per share and the aggregate offering price are based on
$0.59 per share, the average of the high and low prices on August 27,
2002 as quoted on the Nasdaq Stock Market.
(2) This registration fee was previously paid in connection with prior filings
of Tellium, Inc. with the Securities and Exchange Commission.
EXPLANATORY NOTE
Tellium, Inc. is filing this registration statement on Form S-8 to register
shares of its common stock in connection with the Tellium 2002 Stock Incentive
Plan.
This registration statement contains information required in the
registration statement under Part II of Form S-8. The plan information specified
by Part I of Form S-8 is not being filed with the Securities and Exchange
Commission as permitted by the Note in Part I of Form S-8. This plan
information, the statement of availability of registrant information and any
other information required by Item 2 of Form S-8 will be sent or given to
participants of the Tellium 2002 Stock Incentive Plan as specified by Rule 428
under the Securities Act of 1933.
Tellium, Inc. will provide without charge to any person, upon written or
oral request of such person, a copy of each document incorporated by reference
in Item 3 of Part II of this registration statement (which documents are
incorporated by reference in the Section 10(a) prospectus as set forth in Form
S-8), other documents required to be delivered to eligible plan participants
pursuant to Rule 428(b) of the Securities Act of 1933 or additional information
about the plans. Requests should be directed to Tellium, Inc., 2 Crescent Place,
Oceanport, New Jersey 07757-0901 attention: Jenniffer Collins (telephone
732-923-4100).
2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which have been filed by Tellium with the SEC, are
incorporated by reference in this registration statement:
(a) Tellium's Annual Report on Form 10-K for the year ended December 31,
2001, filed with the SEC on April 1, 2002;
(b) Tellium's Quarterly Report on Form 10-Q, for the quarter ended
March 31, 2002, filed with the SEC on May 15, 2002;
(c) Tellium's Quarterly Report on Form 10-Q, for the quarter ended June
30, 2002, filed with the SEC on August 15, 2002;
(d) Current Reports on Form 8-K filed with the SEC on February 1, 2002,
May 1, 2002, June 26, 2002, July 3, 2002, July 30, 2002 and August 15,
2002;
(e) Tender Offer Statement on Schedule TO, filed with the SEC on August 1,
2002 as amended on August 2, 2002 and August 22, 2002;
(f) Registration Statement on Form 8-A, filed with the SEC on May 11,
2001, registering the common stock of Tellium under Section 12 of the
Securities Exchange Act of 1934; and
(g) Section entitled "Description of Capital Stock" in Registration
Statement on Form S-1 (No. 333-46362), originally filed on September
22, 2000, including all amendments, for a description of the common
stock of Tellium.
All documents that we subsequently file under Sections 13(a), 13(c), 14 and
15(d) of the Securities Exchange Act of 1934 before we file 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 hereof
from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated herein by reference 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 or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this registration
statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law empowers a Delaware
corporation to indemnify its officers and directors and specific other persons
to the extent and under the circumstances set forth therein.
Under Section 102(b)(7) of the Delaware General Corporation Law, Tellium's
Certificate of Incorporation, as amended and restated, eliminates the personal
liability of a director to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, except for liabilities
arising (a) from any breach of the director's duty of loyalty to the corporation
or its stockholders; (b) from acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law; (c) under Section
174 of the Delaware General Corporation Law; or (d) from any transaction from
which the director derived an improper personal benefit.
Tellium's Certificate of Incorporation, as amended and restated, requires
Tellium to indemnify its directors and officers to the extent permitted under
Section 145 of the Delaware General Corporation Law. Tellium's Certificate of
Incorporation, as amended and restated, provides that Tellium shall indemnify
any person who was or is a party or is threatened to be made a party to any
actual or threatened action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he or she is or was
a director or officer of Tellium, or is or was serving at the request of Tellium
as a director or officer of
II-1
another corporation, partnership, limited liability company, joint venture,
trust, employee benefit plan or other enterprise, whether the basis of the
proceeding is alleged action in an official capacity as a director or officer or
in any other capacity while so serving, to the full extent authorized by the
Delaware General Corporation Law.
The above discussion of Section 145 and of Tellium's Certificate of
Incorporation, as amended and restated, is not intended to be exhaustive and is
respectively qualified in its entirety by such statute and Tellium's Certificate
of Incorporation, as amended and restated.
Tellium has obtained primary and excess insurance policies insuring its
directors and officers and those of its subsidiaries against some liabilities
they may incur in their capacity as directors and officers. Under such policies,
the insurer, on behalf of Tellium, may also pay amounts for which Tellium has
granted indemnification to the directors or officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following documents are filed as exhibits to this registration
statement:
Exhibit Description of Exhibit
- ------- ----------------------
4.1 Tellium 2002 Stock Incentive Plan.
5.1 Opinion of Fried, Frank, Harris, Shriver & Jacobson as to the
legality of the shares of common stock covered by this registration
statement.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Fried, Frank, Harris, Shriver & Jacobson (included in
Exhibit 5.1 above).
24.1 Power of Attorney (included on signature page of this registration
statement).
II-2
ITEM 9. UNDERTAKINGS.
(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 end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Securities and Exchange 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; 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 (a)(1)(i) and (a)(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
Securities and Exchange Commission by Tellium 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.
(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
Tellium pursuant to the foregoing provisions, or otherwise, Tellium 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, Tellium 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 Securities
Act of 1933 and will be governed by the final adjudication of such issue.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Tellium
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 Oceanport, State of New Jersey, on August 28, 2002.
TELLIUM, INC.
By: /s/ Harry J. Carr
--------------------------------------------
Harry J. Carr
Chairman and Chief Executive Officer
POWER OF ATTORNEY
The undersigned directors and officers of Tellium, Inc. hereby constitute
and appoint Harry J. Carr and William J. Proetta and each of them, as his true
and lawful attorneys-in-fact and agents, with full power to act without the
other and 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 new
registration statements relating to this Form S-8, 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 and necessary to be done in and about the
premises, 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 either of them, or their or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
II-4
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
/s/ Harry J. Carr Chief Executive Officer and August 28, 2002
- --------------------------- Chairman of the Board of Directors
Harry J. Carr (Principal Executive Officer)
/s/ William J. Proetta President and Chief Operating Officer August 28, 2002
- ---------------------------
William J. Proetta
/s/ William B. Bunting Director August 28, 2002
- ---------------------------
William B. Bunting
/s/ Michael M. Connors Director August 28, 2002
- ---------------------------
Michael M. Connors
/s/ Jeffrey A. Feldman Director August 28, 2002
- ---------------------------
Jeffrey A. Feldman
/s/ Edward F. Glassmeyer Director August 28, 2002
- ---------------------------
Edward F. Glassmeyer
/s/ William A. Roper Director August 28, 2002
- ---------------------------
William A. Roper
/s/ Richard C. Smith Director August 28, 2002
- ---------------------------
Richard C. Smith
/s/ Marc B. Weisberg Director August 28, 2002
- ---------------------------
Marc B. Weisberg
/s/ Michael J. Losch Chief Financial Officer (Principal August 28, 2002
- --------------------------- Financial and Accounting Officer)
Michael J. Losch
II-5
EXHIBIT INDEX
The following documents are filed as exhibits to this registration
statement:
EXHIBIT DESCRIPTION OF EXHIBIT
- ------ ----------------------
4.1 Tellium 2002 Stock Incentive Plan.
5.1 Opinion of Fried, Frank, Harris, Shriver & Jacobson as to the
legality of the shares of common stock covered by this registration
statement.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Fried, Frank, Harris, Shriver & Jacobson (included in
Exhibit 5.1 above).
24.1 Power of Attorney (included on signature page of this registration
statement).