-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Rcj3ZDJuuTWt4OErMK6g82vvATg6OjWXLQAxT7WZ34G2qRgl+gXQ8vbaSVHn8SQx RFfBx/jrVWpO2Dw/4DcPQg== 0000950144-01-506121.txt : 20010817 0000950144-01-506121.hdr.sgml : 20010817 ACCESSION NUMBER: 0000950144-01-506121 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20010816 EFFECTIVENESS DATE: 20010816 FILER: COMPANY DATA: COMPANY CONFORMED NAME: PARADYNE NETWORKS INC CENTRAL INDEX KEY: 0000076174 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRONIC COMPONENTS & ACCESSORIES [3670] IRS NUMBER: 520891723 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-67690 FILM NUMBER: 1716844 BUSINESS ADDRESS: STREET 1: 8545 126TH AVE N STREET 2: PO BOX 2826 CITY: LARGO STATE: FL ZIP: 33773 BUSINESS PHONE: 7275302000 MAIL ADDRESS: STREET 1: 8545 126TH AVE NORTH CITY: LARGO STATE: FL ZIP: 33773 FORMER COMPANY: FORMER CONFORMED NAME: PARADYNE CORP DATE OF NAME CHANGE: 19920717 S-8 1 g71324s-8.txt PARADYNE NETWORKS, INC. 1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 16, 2001 REGISTRATION NO. 333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 -------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 -------------------- PARADYNE NETWORKS, INC. (Exact name of registrant as specified in its charter) -------------------- DELAWARE 75-2658219 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 8545 126TH AVENUE NORTH LARGO, FLORIDA 33773 (727) 530-2000 (Address, including zip code, and telephone number, including area code, of registrant's principal executive offices) PARADYNE NETWORKS, INC. AMENDED AND RESTATED 1996 EQUITY INCENTIVE PLAN (Full title of the plan) -------------------- PATRICK M. MURPHY PARADYNE NETWORKS, INC. 8545 126TH AVENUE NORTH LARGO, FLORIDA 33773 (727) 530-2000 (Name, address, including zip code, and telephone number, including area code, of agent for service) Copies to: BRYAN E. DAVIS LAURA G. THATCHER ALSTON & BIRD LLP ONE ATLANTIC CENTER 1201 WEST PEACHTREE STREET ATLANTA, GEORGIA 30309 (404) 881-7000 CALCULATION OF REGISTRATION FEE
============================================================================================================================== TITLE OF SECURITIES AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF TO BE REGISTERED REGISTERED(1) OFFERING PRICE PER SHARE AGGREGATE OFFERING PRICE REGISTRATION FEE - ------------------------------------------------------------------------------------------------------------------------------ Common Stock, $0.001 par value 1,649,285 $1.89(2) $3,117,149(2) $779.00 - ------------------------------------------------------------------------------------------------------------------------------
(1) An aggregate of 1,649,285 additional shares of Paradyne Networks, Inc. Common Stock have been reserved for issuance under the Paradyne Networks, Inc. Amended and Restated 1996 Equity Incentive Plan, as amended (the "1996 EIP"). The Registrant has previously filed Registration Statements on Form S-8 with respect to shares issuable under the 1996 EIP. This Registration Statement is filed to cover additional shares authorized under the 1996 EIP and also covers any additional shares that may hereafter become issuable as a result of the adjustment and anti-dilution provisions in the 1996 EIP. (2) Estimated solely for purposes of determining the registration fee pursuant to Rule 457(h), as determined by the average of the high and low prices quoted on the Nasdaq National Market on August 15, 2001. ================================================================================ 2 PART I INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS We will provide the documents constituting Part I of this registration statement to participants in the Paradyne Networks, Inc. Amended and Restated 1996 Equity Incentive Plan, as amended (the "1996 EIP"), as specified by Rule 428(b)(1) under the Securities Act of 1933, as amended (the "Securities Act"). PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents filed by Paradyne Networks, Inc. (the "Company") with the Securities and Exchange Commission (the "SEC") are incorporated by reference into this Registration Statement: (A) The Registrant's Registration Statements on Form S-8 with respect to the EIP filed with the SEC on July 16, 1999 (File No. 333-83073) and September 8, 2000 (File No. 333-15396), respectively. (B) The Company's Annual Report on Form 10-K for the year ended December 31, 2000, filed with the SEC on April 2, 2001, under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). (C) The Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 2001, filed with the SEC on May 15, 2001, under the Exchange Act. (D) The Company's Quarterly Report on From 10-Q for the quarter ended June 30, 2001, filed with the SEC on August 14, 2001, under the Exchange Act. (E) The description of the Company's Common Stock which is contained in the Registration Statement on Form 8-A filed with the SEC on June 24, 1999, under the Exchange Act, including any amendment or report filed for the purpose of updating such description. All reports and other documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to December 31, 2000 and 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 herein and to be a part of this registration statement from the date of the filing of such reports and documents. ITEM 4. DESCRIPTION OF SECURITIES. Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not applicable. 3 ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Under Section 145 of the Delaware General Corporation Law, the Company has broad powers to indemnify its directors and officers against liabilities they may incur in such capacities, including liabilities under the Securities Act. The Company's By-laws require the Company to indemnify its directors and executive officers, and permit the Company to indemnify its other officers, employees and other agents, to the extent permitted by Delaware law. Under the Company's By-laws, indemnified parties are entitled to indemnification for negligence, gross negligence and otherwise to the fullest extent permitted by law. The By-laws also require the Company to advance litigation expenses in the case of stockholder derivative actions or other actions, against an undertaking by the indemnified party to repay such advances if it is ultimately determined that the indemnified party is not entitled to indemnification. The Company has entered into indemnity agreements with each of its directors and executive officers. Such indemnity agreements contain provisions which are in some respects broader than the specific indemnification provisions contained in Delaware law. The Company also maintains an insurance policy for its directors and executive officers insuring against certain liabilities arising in their capacities as such. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. ITEM 8. EXHIBITS. The exhibits included as part of this Registration Statement are as follows:
Exhibit No. Exhibit - ----------- ------- 4.1* Amended and Restated Certificate of Incorporation of the Company. 4.2** Amended and Restated Bylaws of the Company. 4.3*** Amendments to Amended and Restated Bylaws of the Company. 5.1 Opinion of Alston & Bird LLP, counsel to the Company, as to the legality of the securities being registered. 23.1 Consent of Alston & Bird LLP. Included in Exhibit 5.1. 23.2 Consent of PricewaterhouseCoopers LLP, Independent Certified Public Accountants. 24.1 Power of Attorney is contained on the signature pages. 99.1**** Paradyne Networks, Inc. Amended and Restated 1996 Equity Incentive Plan, as amended.
II-2 4 * Incorporated by reference to Exhibit 3.1 of the Company's Registration Statement on Form S-1, as amended (File No. 333-76385), filed with the SEC on June 9, 1999. ** Incorporated by reference to Exhibit 3.2 of the Company's Registration Statement on Form S-1, as amended (File No. 333-76385), filed with the SEC on June 9, 1999. *** Incorporated by reference to Exhibit 3.2 of the Company's Form 10-Q filed with the SEC on August 14, 2001. **** Incorporated by reference to Exhibit 10.1 of the Company's Registration Statement on Form S-1, as amended (File No. 333-76385), filed with the SEC on June 9, 1999 and Exhibit 10.1 of the Company's Form 10-Q filed with the SEC on August 14, 2000. 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 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; 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 in such information in the registration statement. Provided, however, that paragraphs (a)(l)(i) and (a)(l)(ii) above do not apply if the registration statement is on Form S-3 or Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act 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 II-3 5 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 issuer 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 Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) 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. (h) 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 Item 6 of this Part II, 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 Securities Act of 1933 and will be governed by the final adjudication of such issue. II-4 6 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 Largo, State of Florida, on this 16th day of August, 2001. PARADYNE NETWORKS, INC. By: /s/ Sean E. Belanger ----------------------------------------- Sean E. Belanger President and Chief Executive Officer POWER OF ATTORNEY KNOW BY ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Sean E. Belanger and Patrick M. Murphy, and each or any one of them, as true and lawful attorneys-in-fact and agents, with full power of substitution, for him and in his name, place and stead, in any and all capacities, to sign any amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that said attorney-in-fact, or their substitute or substitutes, may lawfully do or cause to be done by virtue thereof. 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/ Sean E. Belanger President, Chief Executive Officer August 16, 2001 - -------------------------------------------- and Director Sean E. Belanger (Principal Executive Officer) /s/ Patrick M. Murphy Senior Vice President, Chief August 16, 2001 - -------------------------------------------- Financial Officer, Corporate Patrick M. Murphy Secretary and Treasurer (Principal Financial Officer and Principal Accounting Officer)
II-5 7
/s/ David Bonderman Director August 16, 2001 - -------------------------------------------- David Bonderman /s/ Thomas E. Epley Chairman of the Board August 16, 2001 - -------------------------------------------- Thomas E. Epley /s/ Keith B. Geeslin Director August 16, 2001 - -------------------------------------------- Keith B. Geeslin /s/ Andrew S. May Director August 16, 2001 - -------------------------------------------- Andrew S. May /s/ David M. Stanton Director August 16, 2001 - -------------------------------------------- David M. Stanton /s/ William R. Stensrud Director August 16, 2001 - -------------------------------------------- William R. Stensrud /s/ Peter F. Van Camp Director August 16, 2001 - -------------------------------------------- Peter F. Van Camp
II-6 8 EXHIBIT INDEX
Exhibit No. Exhibit - ----------- ------- 4.1* Amended and Restated Certificate of Incorporation of the Company. 4.2** Amended and Restated Bylaws of the Company. 4.3*** Amendments to Amended and Restated Bylaws of the Company. 5.1 Opinion of Alston & Bird LLP, counsel to the Company, as to the legality of the securities being registered. 23.1 Consent of Alston & Bird LLP. Included in Exhibit 5.1. 23.2 Consent of PricewaterhouseCoopers LLP, Independent Certified Public Accountants. 24.1 Power of Attorney is contained on the signature pages. 99.1**** Paradyne Networks, Inc. Amended and Restated 1996 Equity Incentive Plan, as amended.
* Incorporated by reference to Exhibit 3.1 of the Company's Registration Statement on Form S-1, as amended (File No. 333-76385), filed with the SEC on June 9, 1999. ** Incorporated by reference to Exhibit 3.2 of the Company's Registration Statement on Form S-1, as amended (File No. 333-76385), filed with the SEC on June 9, 1999. *** Incorporated by reference to Exhibit 3.2 of the Company's Form 10-Q filed with the SEC on August 14, 2001. **** Incorporated by reference to Exhibit 10.1 of the Company's Registration Statement on Form S-1, as amended (File No. 333-76385), filed with the SEC on June 9, 1999 and Exhibit 10.1 of the Company's Form 10-Q filed with the SEC on August 14, 2000. EX-5.1 3 g71324ex5-1.txt OPINION OF ALSTON & BIRD LLP 1 EXHIBIT 5.1 ALSTON & BIRD LLP One Atlantic Center 1201 West Peachtree Street Atlanta, Georgia 30309-3424 404-881-7000 Fax: 404-881-4777 www.alston.com August 16, 2001 Paradyne Networks, Inc. 8545 126th Avenue North Largo, Florida 33773 Re: Form S-8 Registration Statement -- Paradyne Networks, Inc. Amended and Restated 1996 Equity Incentive Plan Ladies and Gentlemen: We have acted as counsel for Paradyne Networks, Inc., a Delaware corporation (the "Company"), in connection with the filing of the above-referenced Registration Statement on Form S-8 (the "Registration Statement") with the Securities and Exchange Commission (the "Commission") to register under the Securities Act of 1933, as amended (the "Securities Act"), 1,649,285 shares (the "Shares") of the Company's Common Stock, par value $0.001 per share, that may be offered and sold by the Company upon the purchase of shares under the Paradyne Networks, Inc. Amended and Restated 1996 Equity Incentive Plan, as amended (the "Plan"). This opinion letter is rendered pursuant to Item 8 of Form S-8 and Item 601(b)(5) of the Commission's Regulation S-K. We have examined the Certificate of Incorporation of the Company, as amended, the Bylaws of the Company, as amended, records of proceedings of the Board of Directors of the Company deemed by us to be relevant to this opinion letter, the Registration Statement and other documents and agreements we deemed necessary for purposes of expressing the opinion set forth herein. We also have made such further legal and factual examinations and investigations as we deemed necessary for purposes of expressing the opinion set forth herein. Bank of America Plaza 90 Park Avenue 3605 Glenwood Avenue 601 Pennsylvania Avenue, N.W. 101 South Tryon Street, New York, NY 10016 Suite 310 North Building, 11th Floor Suite 4000 212-210-9400 Raleigh, NC 27612-4957 Washington, DC 20004-2601 Charlotte, NC 28280-4000 Fax: 212-210-9444 919-420-2200 202-756-3300 704-444-1000 Fax: 919-420-2260 Fax: 202-756-3333 Fax: 704-444-1111
2 Paradyne Networks, Inc. August 16, 2001 As to certain factual matters relevant to this opinion letter, we have relied upon certificates and statements of officers of the Company and certificates of public officials. Except to the extent expressly set forth herein, we have made no independent investigations with regard thereto, and, accordingly, we do not express any opinion as to matters that might have been disclosed by independent verification. This opinion letter is provided to the Company and the Commission for their use solely in connection with the transactions contemplated by the Registration Statement and may not be used, circulated, quoted or otherwise relied upon by any other person or for any other purpose without our express written consent. The only opinion rendered by us consists of those matters set forth in the sixth paragraph hereof, and no opinion may be implied or inferred beyond those expressly stated. Our opinion set forth below is limited to the General Corporation Law of the State of Delaware, and we do not express any opinion herein concerning any other laws. Based on the foregoing, it is our opinion that the Shares to be purchased under the Plan are duly authorized and, when issued by the Company in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable. We consent to the filing of this opinion letter as an exhibit to the Registration Statement. In giving such consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder. Sincerely, ALSTON & BIRD LLP By: /s/ Laura G. Thatcher ------------------------------ A Partner EX-23.2 4 g71324ex23-2.txt CONSENT OF PRICEWATERHOUSECOOPERS LLP 1 EXHIBIT 23.2 CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of Paradyne Networks, Inc. of our report dated January 19, 2001, relating to the consolidated financial statements and financial statement schedules, which appears in the Form 10-K of Paradyne Networks, Inc., for the year ended December 31, 2000. /s/ PricewaterhouseCoopers LLP PricewaterhouseCoopers LLP Tampa, Florida August 15, 2001 -----END PRIVACY-ENHANCED MESSAGE-----