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Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF L933
TELCO SYSTEMS, INC.
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(Exact name of registrant as specified in its charter)
DELAWARE 94-2178777
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
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63 NAHATAN STREET, NORWOOD, MA 02062
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(Address of principal executive offices) (Zip Code)
TELCO SYSTEMS, INC. AMENDED AND RESTATED 1990 STOCK OPTION PLAN
RESTRICTED STOCK GRANT AGREEMENTS, EACH DATED FEBRUARY 15, 1996, BETWEEN
THE COMPANY AND EACH OF ITAI AARONSON, AL BANNIS, JEFFREY BLACK, KAREN
BRIM, RICHARD CAMERON, JOHN CAUGHRON, JASWANT DHALIWAL, DANIEL FRETZ,
STANLEY GARDNER, ZUREN HSI, BRYAN KNYSH, STEPHEN MILLS, LARRY ORR,
JOSEPH SCHICK, EDWARD SCHLOEMAN, LAWRENCE WALKER, GEORGE WEIGT, AND
JEFFREY WEISS.
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(Full title of the plan)
JOHN A. RUGGIERO, CHIEF EXECUTIVE OFFICER
TELCO SYSTEMS, INC.
63 NAHATAN STREET
NORWOOD, MA 02062
(617) 551-0300
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(Name and address, including zip code, and
telephone number, including area code, of agent for service)
WITH A COPY TO:
EDWARD N. GADSBY, JR., ESQUIRE
FOLEY, HOAG & ELIOT
ONE POST OFFICE SQUARE
BOSTON, MASSACHUSETTS 02109
(617) 832-1000
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CALCULATION OF REGISTRATION FEE
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Proposed
Title of Proposed maximum
securities Amount maximum aggregate Amount of
to be to be offering price offering registration
registered registered per share price fee
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Common Stock 32,205 $11.38(1) $ 366,492.90(1) $ 126.38(1)
(par value $.01) shares
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Common Stock 12,884 $10.50(2) $ 135,282(2) $ 46.65(2)
(par value $.01) shares
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Common Stock 304,911 $11.26(3) $3,433,297.86(3) $1,183.90(3)
(par value $.01) shares
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Common Stock 92,000 $11.26(4) $1,035,920(4) $ 357.21(4)
(par value $.01) shares
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Totals 442,000 $4,966,592.76 $1,714.14
shares
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(1) For shares issuable pursuant to stock options granted through
February 15, 1996, calculated pursuant to Rule 457(h) based on the exercise
price of such options.
(2) For shares issuable pursuant to stock options granted through
February 15, 1996, calculated pursuant to Rule 457(h) based on the exercise
price of such options.
(3) For shares issuable pursuant to stock options not granted as of
February 15, 1996, estimated pursuant to Rule 457(c) based on the average of the
high and low prices of the Common Stock as reported in the National Association
of Securities Dealers Automated Quotation National Market System
(the "Nasdaq NMS") on February 9, 1996.
(4) For all shares issuable pursuant to the Restricted Stock
Agreements, estimated pursuant to Rule 457(c) based on the average of the high
and low prices of the Common Stock as reported in the National Association of
Securities Dealers Automated Quotation National Market System ("Nasdaq NMS") on
February 9, 1996.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission ("Commission") are incorporated in this registration statement by
reference:
(a) the Annual Report on Form 10-K of the Company for the fiscal year
ended August 27, 1995;
(b) the Company's Quarterly Report on Form 10-Q for the quarter ended
November 26, 1995; and
(c) the description of the Company's Common Stock contained in the
Registration Statement on Form 8-A filed with the Commission on June 28, 1984
under Section 12 of the Securities Exchange Act of 1934 ("Exchange Act"),
including any amendment or description 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 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 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.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law provides as
follows:
"(a) 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, suit or proceeding,
whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation)
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
the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, 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. The
termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a
manner which he
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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 reasonable cause to believe
that his conduct was unlawful.
"(b) 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 suit by or in the
right of the corporation to procure a judgment in its favor 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
the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including
attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or
suit 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 except that no indemnification shall be made
in respect of any claim, issue or matter as to which such
person shall have been adjudged to be liable to the
corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or
such other court shall deem proper.
"(c) To the extent that a director, officer, employee
or agent of a corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding
referred to in subsections (a) and (b) of this section, or in
defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection
therewith.
"(d) Any indemnification under subsections (a) and
(b) of this section (unless ordered by a court) shall be made
by the corporation only as authorized in the specific case
upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances
because he has met the applicable standard of conduct set
forth in subsections (a) and (b) of this section. Such
determination shall be made (1) by a majority vote of the
directors who are not parties to such action, suit or
proceeding, even though less than a quorum, or (2) if there
are no such directors, or if such directors so direct, by
independent legal counsel in a written opinion, or (3) by the
stockholders.
"(e) Expenses (including attorneys' fees) incurred by
an officer or director in defending any civil, criminal,
administrative or investigative action, suit or proceeding may
be paid by the corporation in advance of the final disposition
of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to
repay such amount if it shall ultimately be
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determined that he is not entitled to be indemnified by the
corporation as authorized in this section. Such expenses
(including attorneys' fees) incurred by other employees and
agents may be so paid upon such terms and conditions, if any,
as the board of directors deems appropriate.
"(f) The indemnification and advancement of expenses
provided by, or granted pursuant to, the other subsections of
this section shall not be deemed exclusive of any other rights
to which those seeking indemnification or advancement of
expenses may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as
to action in his official capacity and as to action in another
capacity while holding such office.
"(g) A corporation shall have power to purchase and
maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation, or is
or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against
any liability asserted against him and incurred by him in any
such capacity, or arising out of his status as such, whether
or not the corporation would have the power to indemnify him
against such liability under this section.
"(h) For purposes of this section, references to "the
corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors,
officers, and employees or agents, so that any person who is
or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request
of such constituent corporation as a director, officer,
employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, shall stand in the same
position under this section with respect to the resulting or
surviving corporation as he would have with respect to such
constituent corporation if its separate existence had
continued.
"(i) For purposes of this section, references to
"other enterprises" shall include employee benefit plans;
reference to "fines" shall include any excise taxes assessed
on a person with respect to an employee benefit plan; and
references to "serving at the request of the corporation"
shall include any service as a director, officer, employee or
agent of the corporation which imposes duties on, or involves
services by, such director, officer, employee, or agent with
respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a
manner he reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan
shall be deemed to have acted in a manner "not opposed to the
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best interests of the corporation" as referred to in
this section.
"(j) The indemnification and advancement of expenses
provided by, or granted pursuant to, this section shall,
unless otherwise provided when authorized or ratified,
continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of
the heirs, executors and administrators of such a person.
"(k) The Court of Chancery is hereby vested with
exclusive jurisdiction to hear and determine all actions for
advancement of expenses or indemnification brought under this
section or under any bylaw, agreement, vote of stockholders or
disinterested directors, or otherwise. The Court of Chancery
may summarily determine a corporation's obligations to advance
expenses (including attorneys' fees)."
Article VII of the Company's By-Laws provides that the Company shall
indemnify any person made or threatened to be made a party to any action or
proceeding, whether civil, criminal, administrative, or investigative by reason
of the fact that he is or was a director, officer or employee of the Company or
serves or served any other enterprise as a director, officer or employee at the
request of the Company.
The Company has a Directors' and Officers' Liability insurance policy
insuring its directors and officers for certain claims up to $5,000,000.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Amended and Restated 1990 Stock Option Plan.
4.2 Restricted Stock Grant Agreement dated February 15, 1996 between the
Company and Itai Aaronson, together with a Schedule 4.2 setting forth
information regarding certain substantially identical Restricted Stock
Grant Agreements of even date therewith.
5.1 Opinion of Counsel.
23.1 Consent of Independent Auditors.
23.2 Consent of Counsel (included in Exhibit 5.1).
24.1 Power of Attorney (contained on the signature page).
ITEM 9. UNDERTAKINGS.
1. 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 herein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
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2. The undersigned registrant 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. 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 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 2(a)(i) and
2(a)(ii) do not apply if the information required to be included in a
post-effectiveamendment by those paragraphs is contained in periodic reports
filed by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference herein.
(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 herein,
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.
3. 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 or paid by a director, officer of 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 Company
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 Town of Norwood, Commonwealth of Massachusetts, on the 11th
day of February, 1996.
TELCO SYSTEMS, INC.
By: /s/ John A. Ruggiero
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John A. Ruggiero
Chief Executive Officer and
Chief Financial Officer
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each individual whose signature
appears below constitutes and appoints John A. Ruggiero and William B. Smith,
his true and lawful attorney-in-fact and agent with full power of substitution,
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 all documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorney-in-fact and agent, full power and authority to do and perform each
and every act and thing he 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 attorney-in-fact and agent 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 dates indicated.
Signature Title Date
--------- ----- ----
/s/ John A. Ruggiero
___________________________ Director and Chief February 11, 1996
John A. Ruggiero Executive Officer
(Principal Executive
Officer)
/s/ John A. Ruggiero
___________________________ Director and February 11, 1996
John A. Ruggiero Chief Financial Officer
(Principal Financial Officer)
/s/ Daniel A. DiPietro
___________________________ Vice President and Corporate February 14, 1996
Daniel A. DiPietro Controller (Principal
Accounting Officer)
/s/ William B. Smith
___________________________ Director and President February 11, 1996
William B. Smith
/s/ Dean C. Campbell
___________________________ Director February 13, 1996
Dean C. Campbell
/s/ Steward S. Flaschen
___________________________ Director February 10, 1996
Steward S. Flaschen
/s/ Sheldon Horing
___________________________ Director February 10, 1996
Sheldon Horing
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EXHIBIT INDEX
Exhibit
No. Description Page
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4.1 Amended and Restated 1990 Stock Option Plan.
4.2 Restricted Stock Grant Agreement dated February 15, 1996 between the
Company and Itai Aaronson, together with a Schedule 4.2 setting forth
information regarding certain substantially identical Restricted Stock
Grant Agreements of even date therewith.
5.1 Opinion of Counsel.
23.1 Consent of Independent Accountants.
23.2 Consent of Counsel (included in Exhibit 5.1).
24.1 Power of Attorney (contained on the signature page).
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