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As filed with the Securities and Exchange Commission on August 14, 2000
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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NEXT LEVEL COMMUNICATIONS, INC.
(Exact Name of Registrant as Specified in Its Charter)
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<S> <C> <C>
Delaware 6085 State Farm Drive 94-3342408
(State of Incorporation) Rohnert Park, California 94928 (I.R.S. Employer Identification No.)
(Address of Principal Executive Offices)
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1999 Equity Incentive Plan
(Full Title of the Plan)
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James T. Wandrey
Senior Vice President and Chief Financial Officer
NEXT LEVEL COMMUNICATIONS, INC.
6085 State Farm Drive
Rohnert Park, California 94928
(707) 584-6820
(Name, Address and Telephone Number, Including Area Code, of Agent for Service)
Copies to:
Christopher L. Kaufman
Latham & Watkins
135 Commonwealth Drive
Menlo Park, California 94025
(650) 328-4600
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Calculation of Registration Fee
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Proposed
Proposed Maximum
Number of Maximum Aggregate Amount of
Title of Securities to be Shares to be Offering Price Offering Registration
Registered Registered Per Share(1) Price(1) Fee(1)
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<S> <C> <C> <C> <C>
Common Stock, $0.01 par value...... 3,900,000 N/A $279,677,625 $73,835
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(1) Estimated for the purpose of calculating the registration fee (i)
pursuant to Rule 457(h) on the basis of the aggregate price
($266,033,625) at which outstanding options to purchase an aggregate of
3,708,000 shares may be exercised, and (ii) pursuant to Rule 457(c) for
the remaining 192,000 shares registered hereunder (the average
($71.0625) of the high ($73.00) and low ($69.125) prices for the
Company's Common Stock quoted on the Nasdaq National Market on August
11, 2000).
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I.
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information called for in Part I of Form S-8 is not being
filed with or included in this Form S-8 (by incorporation by reference or
otherwise) in accordance with the rules and regulations of the Securities and
Exchange Commission (the "Commission").
II.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
In this registration statement, Next Level Communications, Inc. is sometimes
referred to as "we," "us" or "our."
Pursuant to General Instruction E of Form S-8, this registration
statement is filed solely to register an additional 3,900,000 shares of our
common stock reserved for issuance under the 1999 Equity Incentive Plan (the
"Plan"), which increase was approved by our board of directors on October 10,
1999 and approved by our stockholders on May 25, 2000.
Pursuant to General Instruction E, we incorporate by reference
the following documents filed with the Commission pursuant to Section 13 of the
Exchange Act (File No. 0-27877):
- Annual Report on Form 10-K for the fiscal year ended
December 31, 1999;
- Quarterly Reports on Form 10-Q for the periods ended March
31, 2000 and June 30, 2000;
- Description of our common stock contained in our
registration statement on Form 8-A12G filed with the
Commission on October 29, 1999, pursuant to Section 12 of
the Exchange Act, including any amendment or report filed
for the purpose of updating such description;
- Registration Statement on Form S-8 (File No. 333-91059)
filed with the Commission on November 16, 1999; and
- All documents filed with the Commission pursuant to
Sections 13(a), 13(c), 14 or 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.
Information that we file later with the Commission will
automatically update and supersede this information.
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Item 8. EXHIBITS.
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Exhibit
Number
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<S> <C>
5.1 Opinion of Latham & Watkins
10.1* 1999 Equity Incentive Plan
23.1 Consent of Latham & Watkins (included in Exhibit 5.1).
23.2 Consent of Deloitte & Touche LLP.
24.1 Power of Attorney (included on page 3 of this registration
statement).
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*Incorporated by reference to the registrant's definitive proxy statement filed
on April 26, 2000 (File No. 0-27877).
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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;
(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 Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 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 (a)(1)(i) and (a)(1)(ii) 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 with or
furnished to the Commission 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, 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, 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.
(c) Insofar as indemnification for liabilities arising under the Securities Act
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 Commission such indemnification is
against public policy as expressed in the Securities 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 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 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, Next Level Communications, Inc., a Delaware corporation, 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 Rohnert Park, State of California, on this 14th day of August, 2000.
NEXT LEVEL COMMUNICATIONS, INC.
By: /s/ James T. Wandrey
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James T. Wandrey
Senior Vice President and Chief
Financial Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below does hereby constitute and appoint Peter W. Keeler and
Keith A. Zar, with full power of substitution and resubstitutions and full power
to act without the other, his or her true and lawful attorneys-in-fact and
agents to act for him or her in his or her name, place or stead, in any and all
capacities, to sign any amendments to this registration statement on Form S-8
(including post-effective amendments) and to file such amendments, together with
exhibits and other documents in connection therewith, with the Securities and
Exchange Commission, granting to each attorney-in-fact and agent 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 as he or she might or could do in
person, and ratifying and confirming all that the attorneys-in-fact and agents,
or his or her 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.
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Signature Title Date
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<S> <C> <C>
/s/ Peter W. Keele Chief Executive Officer (Principal August 14, 2000
------------------------------ Executive Officer), Chairman of
Peter W. Keeler the Board and President
/s/ James T. Wandrey Senior Vice President and Chief August 14, 2000
------------------------------ Financial Officer (Principal
James T. Wandrey Financial and Accounting
Officer)
Director August 14, 2000
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Lynn Forester
/s/ Ferdinand C. Kuznik Director August 14, 2000
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Ferdinand C. Kuznik
/s/ Paul S. Latchford Director August 14, 2000
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Paul S. Latchford
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/s/ John McCartney Director August 14, 2000
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John McCartney
/s/ Dennis Rheault Director August 14, 2000
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Dennis Rheault
Director August 14, 2000
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Richard Severns
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INDEX TO EXHIBITS
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Exhibit
Number
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<S> <C>
5.1 Opinion of Latham & Watkins.
10.1* 1999 Equity Incentive Plan
23.1 Consent of Latham & Watkins (included in Exhibit 5.1).
23.2 Consent of Deloitte & Touche LLP.
24.1 Power of Attorney (included on page 3 of this registration statement).
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*Incorporated by reference to the registrant's definitive proxy statement filed
on April 26, 2000 (File No. 0-27877).
