-----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, I5HlqvgH9/b4doiA5Pb/vlJ2UGIWvTMujlO9V7/Or0zIrdFOS6hkLoM/68+Q9I1J kjU7dbXK9UKvfmj1pKr4mw== 0001047469-98-043764.txt : 19981214 0001047469-98-043764.hdr.sgml : 19981214 ACCESSION NUMBER: 0001047469-98-043764 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19981211 EFFECTIVENESS DATE: 19981211 FILER: COMPANY DATA: COMPANY CONFORMED NAME: APPLIED DIGITAL ACCESS INC CENTRAL INDEX KEY: 0000919048 STANDARD INDUSTRIAL CLASSIFICATION: INSTRUMENTS FOR MEAS & TESTING OF ELECTRICITY & ELEC SIGNALS [3825] IRS NUMBER: 680132939 STATE OF INCORPORATION: CA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-68787 FILM NUMBER: 98768434 BUSINESS ADDRESS: STREET 1: 9855 SCRANTON RD CITY: SAN DIEGO STATE: CA ZIP: 92121 BUSINESS PHONE: 6196232200 S-8 1 S-8 As filed with the Securities and Exchange Commission on December 11, 1998 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) DELAWARE 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) ------------ AMENDED AND RESTATED 1996 NON-QUALIFIED STOCK OPTION PLAN (Full title of the plan) ------------ 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 Amended and Restated 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 ----------- -------------- --------- ---------- ------------ Common Stock (under Amended and Restated 1996 Non-qualified Stock Option Plan). . . . . . . . . 500,000 shares(1) $2.29(2) $1,145,000 $318.31
- ------------------- (1) This Registration Statement shall also cover any additional shares of Common Stock which become issuable under the Amended and Restated 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 under Rules 457(h) and 457(c) of the Securities Act of 1933, as amended. The price is based on the average of the high and low prices of the Common Stock on December 4, 1998. 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, 1997. (b) The Company's Quarterly Report on Form 10-Q for the period ended March 31, 1998. (c) The Company's Quarterly Report on Form 10-Q for the period ended June 30, 1998. (d) The Company's Quarterly Report on Form 10-Q for the period ended September 30, 1998. (e) The Company's Reports on Form 8-K and Form 8-K/A, filed on December 23, 1997 and January 12, 1998, respectively, as File No. 0-23698. (f) The Form 8-A filed by the Company on March 28, 1994 with the Commission as Registration No. 0-23698 (and all amendments thereto), 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 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 Section 145 of the Delaware General Corporation Law permits indemnification of officers and directors of the Company under certain conditions and subject to certain limitations. Section 145 of the Delaware General Corporation Law also provides that a corporation has the power to purchase and maintain insurance on behalf of its officers and directors against any liability asserted against such person and incurred by him or her in such capacity, or arising out of his or her status as such, whether or not the corporation would have the power to indemnify him or her against such liability under the provisions of Section 145 of the Delaware General Corporation Law. Article VII, Section 1 of the Bylaws of the Company provides that the Company shall indemnify its directors and executive officers to the fullest extent not prohibited by the Delaware 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 inure to the benefit of the heirs, executors and administrators of the person. In addition, expenses incurred by a director or executive officer in defending any civil, criminal, administrative or investigative action, suit or 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 Delaware General Corporation Law. II-1 As permitted by Section 102(b)(7) of the Delaware General Corporation Law, Article V, Section (A) of the Company's Certificate of Incorporation provides that a director of the Company shall not be personally liable for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director's duty of loyalty to the Company or its stockholders, (ii) for acts or omissions not in good faith or acts or omissions that involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law or (iv) for any transaction from which the director derived any improper personal benefit. The Company has entered into indemnification agreements with each of its directors and executive officers. Generally, the indemnification agreements attempt to provide the maximum protection permitted by Delaware 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 for 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 has purchased directors' and officers' liability insurance. Item 7. EXEMPTION FROM REGISTRATION CLAIMED Not Applicable. Item 8. EXHIBITS
Exhibit Number Exhibit - ------ ------- 4.1 Certificate of Incorporation 4.2 Bylaws 5 Opinion and Consent of Company Counsel, Gray Cary Ware & Freidenrich LLP 23.1 Consent of Company Counsel is contained in Exhibit 5 23.2 Consent of Independent Accountants, PricewaterhouseCoopers LLP 24 Power of Attorney. Reference is made to page II-5 of this Registration Statement 99.1 First Amendment to Amended and Restated 1996 Non-qualified Stock Option Plan
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, as amended (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 II-2 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 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. 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 Securities and Exchange 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. II-3 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 10th day of December, 1998. APPLIED DIGITAL ACCESS, INC. By /s/ Peter P. Savage ------------------------ 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 Delaware 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 December 10, 1998 --------------------------- Executive Officer and Director Peter P. Savage (Principal Executive Officer) /s/ James L. Keefe Vice President, Finance and December 10, 1998 --------------------------- Administration, Chief Financial James L. Keefe Officer (Principal Financial and Accounting Officer) /s/ Christopher B. Paisley Director December 10, 1998 --------------------------- Christopher B. Paisley /s/ John F. Malone Director December 10, 1998 --------------------------- John F. Malone /s/ Kenneth E. Olson Director December 10, 1998 --------------------------- Kenneth E. Olson
II-4 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. EXHIBITS TO FORM S-8 UNDER SECURITIES ACT OF 1933 APPLIED DIGITAL ACCESS, INC. EXHIBIT INDEX
Exhibit Number Exhibit ------- ------- 4.1 Certificate of Incorporation* 4.2 Bylaws* 5 Opinion and Consent of Company Counsel, Gray Cary Ware & Freidenrich LLP 23.1 Consent of Company Counsel is contained in Exhibit 5 23.2 Consent of Independent Accountants, PricewaterhouseCoopers LLP 24 Power of Attorney. Reference is made to page II-5 of this Registration Statement 99.1 First Amendment to Amended and Restated 1996 Non-qualified Stock Option Plan
* Filed as an Exhibit to the Company's Report on Form 8-K filed on December 23, 1997 (File No. 000-23698) and incorporated herein by reference. EX-5.1 2 EXHIBIT Exhibit 5 Opinion and Consent of Company Counsel, Gray Cary Ware & Freidenrich LLP December 10, 1998 Securities and Exchange Commission 450 Fifth Street, N.W. Washington, D.C. 20549 Ladies and Gentlemen: As legal counsel for Applied Digital Access, Inc., a Delaware corporation (the "Company"), we are rendering this opinion in connection with the registration on Form S-8 (the "Registration Statement") under the Securities Act of 1933, as amended, of up to 500,000 shares of the Common Stock of the Company which may be issued pursuant to the exercise of options granted under the Applied Digital Access, Inc. Amended and Restated 1996 Non-qualified Stock Option Plan (the "Plan"). We have examined all instruments, documents and records which we deemed relevant and necessary for the basis of our opinion hereinafter expressed. In such examination, we have assumed the genuineness of all signatures and the authenticity of all documents submitted to us as originals and the conformity to the originals of all documents submitted to us as copies. We are admitted to practice only in the State of California and we express no opinion concerning any law other than the law of the State of California, the corporation laws of the State of Delaware and the federal law of the United States. As to matters of Delaware corporation law, we have based our opinion solely upon our examination of such laws and the rules and regulations of the authorities administering such laws, all as reported in standard, unofficial compilations. We have not obtained opinions of counsel licensed to practice in jurisdictions other than the State of California. Based on such examination, we are of the opinion that the 500,000 shares of Common Stock which may be issued upon the exercise of options granted under the Plan are duly authorized shares of the Company's Common Stock, and, when issued against payment of the purchase price therefor in accordance with the provisions of the Plan, will be validly issued, fully paid and nonassessable. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement referred to above and the use of our name wherever it appears therein. Respectfully submitted, /s/ GRAY CARY WARE & FREIDENRICH LLP EX-23.2 3 EXHIBIT 23.2 Exhibit 23.2 Consent of Independent Accountants, PricewaterhouseCoopers LLP We consent to the incorporation by reference in the Registration Statement of Applied Digital Access, Inc. on Form S-8 of our report dated April 14, 1998 on our audits of the financial statements and financial statement schedule of Applied Digital Access, Inc. as of December 31, 1997 and 1996, and for the years ended December 31, 1997, 1996 and 1995, which report is included in the Annual Report on Form 10-K/A of Applied Digital Access, Inc. for the year ended December 31, 1997. /s/ PRICEWATERHOUSECOOPERS LLP San Diego, California December 8, 1998 EX-99.1 4 EXHIBIT 99.1 Exhibit 99.1 First Amendment to Amended and Restated 1996 Non-qualified Stock Option Plan FIRST AMENDMENT TO THE APPLIED DIGITAL ACCESS, INC. AMENDED AND RESTATED 1996 NON-QUALIFIED STOCK OPTION PLAN The Board of Directors of Applied Digital Access, Inc. ("Corporation") make this First Amendment to the Corporation's Amended and Restated 1996 Non-qualified Stock Option Plan (the "Plan") pursuant to Article Three, Section V of the Plan. 1. The first paragraph of Article One, Section V of the Plan is amended and restated in its entirety to read as follows: V. STOCK SUBJECT TO THE PLAN Shares of the Corporation's Common Stock shall be available for issuance under the Plan and shall be drawn from either the Corporation's authorized but unissued shares of Common Stock or from reacquired shares of Common Stock, including shares repurchased by the Corporation on the open market. The maximum number of shares of Common Stock which may be issued over the term of the Plan shall not exceed 1,450,000 shares, subject to adjustment from time to time in accordance with the provisions of this Section V. 2. Except as specifically modified herein, the Plan as previously adopted remains in full force and effect. -----END PRIVACY-ENHANCED MESSAGE-----