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As filed with the Securities and Exchange Commission on July 17, 1996
Registration No. 333-________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
APPLIED DIGITAL ACCESS, INC.
(Exact name of registrant as specified in its charter)
CALIFORNIA 68-0132939
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
9855 SCRANTON ROAD, SAN DIEGO, CALIFORNIA 92121
(Address of principal executive offices) (Zip Code)
1994 STOCK OPTION/STOCK ISSUANCE PLAN
1994 EMPLOYEE STOCK PURCHASE PLAN
1996 NON-QUALIFIED STOCK OPTION PLAN
(Full title of the plans)
Peter P. Savage
President and Chief Executive Officer
APPLIED DIGITAL ACCESS, INC.
9855 SCRANTON ROAD, SAN DIEGO, CALIFORNIA 92121
(Name and address of agent for service)
(619) 623-2200
(Telephone number, including area code, of agent for service)
This Registration Statement shall become effective immediately upon
filing with the Securities and Exchange Commission, and sales of the
registered securities will thereafter be effected upon option
exercises or share issuances effected under the 1994 Stock
Option/Stock Issuance Plan, the 1994 Employee Stock Purchase Plan
and the 1996 Non-Qualified Stock Option Plan.
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered per Share Price Fee
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Common Stock (under 1994 Stock
Option/Stock Issuance Plan)............. 1,000,000 shares(1) $6.88(2) $6,880,000 $2,372.41
Common Stock (under 1994
Employee Stock Purchase Plan)........... 100,000 shares(1) $6.88(2) $ 688,000 $ 237.24
Common Stock (under 1996 Non-
Qualified Stock Option Plan)............ 400,000 shares(1) $6.88(2) $2,752,000 $ 948.96
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(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the 1994 Stock Option/Stock
Issuance Plan, the 1994 Employee Stock Purchase Plan and the 1996
Non-Qualified Stock Option Plan by reason of any stock dividend, stock
split, recapitalization or other similar transaction effected without the
receipt of consideration which results in an increase in the number of the
Company's outstanding shares of Common Stock.
(2) Estimated solely for the purpose of computing the amount of the
registration fee.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
Applied Digital Access, Inc. (the "Company") hereby incorporates by
reference into this Registration Statement the following documents previously
filed with the Securities and Exchange Commission (the "Commission"):
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 1995.
(b) The Company's Quarterly Report on Form 10-Q for the period
ended March 31, 1996.
(c) The Form 8-A filed by the Company on March 28, 1994 with the
Commission as Registration No. 0-23698 (and all amendments
hereto), in which there is described the terms, rights and
provisions applicable to the Company's outstanding Common
Stock.
All reports and other documents subsequently filed by the Company
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities and Exchange Act
of 1934 (the "1934 Act") prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference into this Registration Statement and to be a part hereof 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
(a) Section 317 of the California General Corporation Law provides for
the indemnification of officers and directors of the Company against expenses,
judgments, fines and amounts paid in settlement under certain conditions and
subject to certain limitations.
(b) Article VI of the Bylaws of the Company provides that the Company
shall have power to indemnify any person who is or was an agent of the Company
as provided in Section 317 of the California General Corporation Law. The rights
to indemnity thereunder 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 the person. In addition, expenses incurred by a
director or officer in defending a civil or criminal action, suit of proceeding
by reason of the fact that he or she is or was a director or officer of the
Company (or was serving at the Company's request as a director or officer of
another corporation) shall be paid by the Company 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 determined that he or she is not entitled to be indemnified by the
Company as authorized by the relevant section of the California General
Corporation Law.
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(c) Article IV of the Company's Articles of Incorporation provides that
the liability of the directors of the Company for monetary damages shall be
eliminated to the fullest extent permissible under California law. Accordingly,
a director will not be liable for monetary damages for breach of duty to the
Company or its shareholders in any action brought by or in the right of the
Company. However, a director remains liable to the extent required by law for
(i) acts or omissions that involve intentional misconduct or a knowing and
culpable violation of law, (ii) acts or omissions that a director believes to be
contrary to the best interests of the Company or its shareholders or that
involve the absence of good faith on the part of the director, (iii) any
transaction from which a director derived an improper personal benefit, (iv)
acts or omissions that show a reckless disregard for the director's duty to the
Company or its shareholders in circumstances in which the director was aware, or
should have been aware, in the ordinary course of performing a director's
duties, of a risk of serious injury to the Company or its shareholders, (v) acts
or omissions that constitute an unexcused pattern of inattention that amounts to
an abdication of the director's duty to the Company or its shareholders, (vi)
any act or omission occurring prior to the date when the exculpation provision
became effective and (vii) any act or omission as an officer, notwithstanding
that the officer is also a director or that his or her actions, if negligent or
improper, have been ratified by the directors. The effect of the provisions in
the Articles of Incorporation is to eliminate the rights of the Company and its
shareholders (through shareholder derivative suits on behalf of the Company) to
recover monetary damages against a director for breach of duty as a director,
including breaches resulting from negligent behavior in the context of
transactions involving a change of control of the Company or otherwise, except
in the situations described in clauses (i) through (vii) above. These provisions
will not alter the liability of directors under federal securities laws.
(d) Pursuant to authorization provided under the Articles of
Incorporation, the Company has entered into indemnification agreements with each
of its directors. Generally, the indemnification agreements attempt to provide
the maximum protection permitted by California law as it may be amended from
time to time. Moreover, the indemnification agreements provide for certain
additional indemnification. Under such additional indemnification provisions,
however, an individual will not receive indemnification for judgments,
settlements or expenses if he or she is found liable to the Company (except to
the extent the court determines he or she is fairly and reasonably entitled to
indemnity for expenses), for settlements not approved by the Company or
settlements and expenses if the settlement is not approved by the court. The
indemnification agreements provide for the Company to advance to the individual
any and all reasonable expenses (including legal fees and expenses) incurred in
investigating or defending any such action, suit or proceeding. In order to
receive an advance of expenses, the individual must submit to the Company copies
of invoices presented to him or her for such expenses. Also, the individual must
repay such advances upon a final judicial decision that he or she is not
entitled to indemnification. The Company's Bylaws contain a provision of similar
effect relating to advancement of expenses to a director or officer, subject to
an undertaking to repay if it is ultimately determined that indemnification is
unavailable.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
Exhibit
Number Exhibit
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4.1 Amended and Restated Certificate of Incorporation*
4.2 Amended and Restated Bylaws*
4.3 Specimen Stock Certificate*
5 Opinion and Consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of Brobeck, Phleger & Harrison LLP is contained in Exhibit 5.
23.2 Consent of Independent Accountants, Coopers & Lybrand L.L.P.
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24 Power of Attorney. Reference is made to page II-5 of this
Registration Statement.
99.1 1994 Stock Option/Stock Issuance Plan, as amended.
99.2 Form of Stock Option Agreement.**
99.3 Form of Stock Issuance Agreement.**
99.4 1994 Employee Stock Purchase Plan, as amended.
99.5 Form of Stock Purchase Agreement.**
99.6 1996 Non-Qualified Stock Option Plan.
99.7 Form of Stock Option Agreement
* Filed as an Exhibit to the Company's Registration Statement on Form S-1
(No. 33-75258) effective March 28, 1994 and incorporated herein by
reference.
** Filed as an Exhibit to the Company's Registration Statement on Form S-8
(No. 33-76962) filed March 28, 1994 and incorporated herein by
reference.
Item 9. Undertakings
1. 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 (the "1933 Act");
(ii) To reflect in the prospectus any facts or events arising after the
effective date of this 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 this
registration statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this registration statement or any
material change to such information in this registration statement;
provided, however, that paragraphs (a)(i) and (a)(ii) shall not apply if the
information required to be in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the Company pursuant to Section 13 or
Section 15(d) of the 1934 Act that are incorporated by reference into this
registration statement.
(b) That, for the purpose of determining any liability under the 1933
Act, 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
(c) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold upon the termination
of the offering.
2. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the 1933 Act, each filing of the Company's
annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the 1934 Act) that is incorporated by reference in
this registration statement shall be deemed to be a new
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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.
3. The undersigned registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent or
given, the latest annual report, to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the 1934 Act; and, where interim
financial information required to be presented by Article 3 of Regulation S-X is
not set forth in the prospectus, to deliver, or cause to be delivered to each
person to whom the prospectus is sent or given, the latest quarterly report that
is specifically incorporated by reference in the prospectus to provide such
interim financial information.
4. Insofar as indemnification for liabilities arising under the 1933 Act
may be permitted to directors, officers or controlling persons of the Company
pursuant to the foregoing provisions, or otherwise, the Company has been advised
that in the opinion of the Commission such indemnification is against public
policy as expressed in the 1933 Act 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 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 1933 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 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 San Diego, State of California, on this 17 day
of July, 1996.
APPLIED DIGITAL ACCESS, INC.
By /s/ Peter P. Savage
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Peter P. Savage
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of Applied Digital Access,
Inc., a California corporation, do hereby constitute and appoint Peter P. Savage
and James L. Keefe, and each of them, the lawful attorneys-in-fact and agents
with full power and authority to do any and all acts and things and to execute
any and all instruments which said attorneys and agents, and either one of them,
determine may be necessary or advisable or required to enable said corporation
to comply with the Securities Act of 1933, as amended, and any rules or
regulations or requirements of the Securities and Exchange Commission in
connection with this Registration Statement. Without limiting the generality of
the foregoing power and authority, the powers granted include the power and
authority to sign the names of the undersigned officers and directors in the
capacities indicated below to this Registration Statement, to any and all
amendments, both pre-effective and post-effective, and supplements to this
Registration Statement, and to any and all instruments or documents filed as
part of or in conjunction with this Registration Statement or amendments or
supplements thereof, and each of the undersigned hereby ratifies and confirms
that all said attorneys and agents, or either of them, shall do or cause to be
done by virtue hereof. This Power of Attorney may be signed in several
counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of
Attorney as of the date indicated.
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/ Peter P. Savage President and Chief Executive Officer and July 17, 1996
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Peter P. Savage Director (Principal Executive Officer)
/s/ James L. Keefe Vice President, Finance and Administration, July 17, 1996
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James L. Keefe Chief Financial Officer (Principal Financial and
Accounting Officer)
/s/ Christopher B. Paisley Director July 17, 1996
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Christopher B. Paisley
/s/ Patricia L. Higgins Director July 17, 1996
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Patricia L. Higgins
/s/ Edward F. Tuck Director July 17, 1996
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Edward F. Tuck
/s/ Geoffrey Y. Yang Director July 17, 1996
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Geoffrey Y. Yang
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
EXHIBITS
TO
FORM S-8
UNDER
SECURITIES ACT OF 1933
APPLIED DIGITAL ACCESS, INC.
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EXHIBIT INDEX
Exhibit
Number Exhibit
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4.1 Amended and Restated Certificate of Incorporation*
4.2 Amended and Restated Bylaws*
4.3 Specimen Stock Certificate*
5 Opinion and Consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of Brobeck, Phleger & Harrison LLP is contained in Exhibit 5.
23.2 Consent of Independent Accountants, Coopers & Lybrand L.L.P.
24 Power of Attorney. Reference is made to page II-5 of this Registration Statement.
99.1 1994 Stock Option/Stock Issuance Plan, as amended.
99.2 Form of Stock Option Agreement.**
99.3 Form of Stock Issuance Agreement.**
99.4 1994 Employee Stock Purchase Plan, as amended.
99.5 Form of Stock Purchase Agreement.**
99.6 1996 Non-Qualified Stock Option Plan.
99.7 Form of Stock Option Agreement
* Filed as an Exhibit to the Company's Registration Statement on Form
S-1 (No. 33-75258) effective March 28, 1994 and incorporated herein
by reference.
** Filed as an Exhibit to the Company's Registration Statement on Form
S-8 (No. 33-76962) filed March 28, 1994 and incorporated herein by
reference.