As filed with the Securities and Exchange Commission on November 29, 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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ALLIANCE FIBER OPTIC PRODUCTS, INC.
(Exact name of registrant as specified in its charter)
Delaware 77-0417039
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
735 North Pastoria Avenue
Sunnyvale, CA 94085
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(Address of principal (Zip Code)
executive offices)
ALLIANCE FIBER OPTIC PRODUCTS, INC. 2000 STOCK INCENTIVE PLAN
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Full title of the plan
PETER C. CHANG Copy to:
Chief Executive Officer
Alliance Fiber Optic Products, Inc. GABRIELLA A. LOMBARDI, ESQ.
735 North Pastoria Avenue Pillsbury Madison & Sutro LLP
Sunnyvale, CA 94085 2550 Hanover Street
(408) 736-6900 Palo Alto, CA 94304
(650) 233-4500
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(Name, address and telephone
number of agent for service)
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed Amount of
Title of Securities Amount To Maximum Offering Maximum Aggregate Registration
To Be Registered(1) Be Registered Price Per Share(2) Offering Price Fee(3)
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<S> <C> <C> <C> <C>
Common Stock, $0.001 par value 3,098,534 $8.82 $27,329,070 $7,215
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(1) The securities to be registered include options and rights to acquire Common
Stock.
(2) Estimated pursuant to Rule 457(h) under the Securities Act of 1933, as
amended (the "Securities Act") solely for the purposes of calculating the
registration fee. The price of the shares is based upon the average of the high
and low prices of the Common Stock on November 24, 2000, as reported on the
Nasdaq Stock Market.
(3) Includes $6,907 previously paid.
</TABLE>
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The Registration Statement shall become effective upon filing in accordance with
Rule 462 under the Securities Act of 1933.
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PART I
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Item 1. Plan Information.*
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Item 2. Registrant Information and Employee Plan Annual Information.*
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* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with Rule
428 under the Securities Act of 1933 (the "Securities Act") and the Note to Part
I of Form S-8.
PART II
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INFORMATION REQUIRED IN THE INFORMATION STATEMENT
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Item 3. Incorporation of Documents by Reference.
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The following documents filed by the Registrant with the Securities and
Exchange Commission are hereby incorporated by reference in this Registration
Statement:
(a) Registrant's Prospectus dated November 21, 2000 and filed on
November 21, 2000 pursuant to Rule 424(b) of the Securities Act and which
contains audited financial statements for the Registrant's latest fiscal year
for which such statements have been filed.
(b) The description of the Registrant's Common Stock contained in
Registrant's Registration Statement on Form 8-A, filed October 27, 2000, as
amended November 14, 2000.
In addition, all documents subsequently filed by Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 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 a part hereof from the date of filing of such documents.
Item 4. Description of Securities.
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Not applicable.
Item 5. Interests of Named Experts and Counsel.
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The validity of the shares of common stock offered hereby has been
passed upon for the Registrant by Pillsbury Madison & Sutro LLP, Palo Alto,
California. As of the date of this Registration Statement, an entity in which
attorneys and former attorneys of Pillsbury Madison & Sutro LLP are members
beneficially own an aggregate of 40,000 shares of Alliance Fiber Optic Products,
Inc. common stock.
Item 6. Indemnification of Directors and Officers.
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Section 145 of the Delaware General Corporation Law provides for the
indemnification of officers, directors, and other corporate agents in terms
sufficiently broad to indemnify such persons under certain circumstances for
liabilities (including reimbursement for expenses incurred) arising under the
Securities Act of 1933, as amended (the "Act"). Article VIII, Section B of the
Registrant's Amended and Restated Certificate of Incorporation (Exhibit 3(i).3
to the Form S-1 Registration Statement) and Article 5 of the Registrant's
Amended and Restated Bylaws (Exhibit 3(ii).3 to the Form S-1 Registration
Statement) provide for indemnification of the Registrant's directors, officers,
employees and other agents to the extent and under the circumstances permitted
by the Delaware General Corporation Law. The Registrant has also entered into
agreements with our directors and officers that will require the Registrant,
among other things, to indemnify them against certain liabilities that may
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arise by reason of their status or services as directors or officers to the
fullest extent not prohibited by law (Exhibit 10.2 to the Form S-1 Registration
Statement).
The Purchase Agreement and the International Purchase Agreement
(Exhibit 1.1 and 1.2, respectively, to the Form S-1 Registration Statement)
provide for indemnification by the Underwriters of the Registrant, its directors
and officers, and by the Registrant of the Underwriters, for certain
liabilities, including liabilities arising under the Act, and afford certain
rights of contribution with respect thereto.
Item 7. Exemption From Registration Claimed.
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Not applicable.
Item 8. Exhibits.
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See Index to Exhibits, which list of exhibits is incorporated herein by
reference.
Item 9. Undertakings.
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(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made
of the securities registered hereby, 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; 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 to such information in the registration
statement;
provided, however, that paragraphs (a)(1)(A) and (a)(1)(B) do not apply if 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 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 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 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 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
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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 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 Act and
will be governed by the final adjudication of such issue.
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SIGNATURES
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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 Sunnyvale, State of California, on the 27nd day of
November, 2000.
ALLIANCE FIBER OPTIC PRODUCTS, INC.
By /s/ Peter C. Chang
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Peter C. Chang
Chief Executive Officer
POWER OF ATTORNEY
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KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Peter C. Chang and John M. Harland, and
each of them, his true and lawful attorneys-in-fact and agents, each with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments, to this
Registration Statement, and to file the same, with exhibits thereto and other
documents in connection therewith, with the Securities and Exchange Commission
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done, as fully to all intents and purposes as he might or could
do in person, hereby ratifying and confirming all that each of said
attorneys-in-fact and agents, 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 below by the following persons in the
capacities and on the dates indicated.
Name Title Date
---- ----- ----
/s/ Peter C. Chang
---------------------- Chief Executive Officer (Principal November 27, 2000
Peter C. Chang Executive Officer)
/s/ John M. Harland
---------------------- Vice President of Finance and Chief November 27, 2000
John M. Harland Financial Officer (Principal
Financial and Accounting Officer)
/s/ R. David Dicioccio
---------------------- Director November 27, 2000
R. David Dicioccio
/s/ Peter T. Morris
---------------------- Director November 27, 2000
Peter T. Morris
---------------------- Director November __, 2000
Michael Tung
/s/ James C. Yeh
---------------------- Director November 27, 2000
James C. Yeh
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INDEX TO EXHIBITS
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Exhibit
Number Exhibit
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5.1 Opinion of Pillsbury, Madison & Sutro LLP regarding legality
of the securities being offered
23.1 Consent of PricewaterhouseCoopers LLP, Independent Auditors
23.2 Consent of Pillsbury Madison & Sutro LLP (included in
Exhibit 5.1)
24.1 Powers of Attorney (see page 4).
99.1* Alliance Fiber Optic Products, Inc. 2000 Stock Incentive Plan
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* Incorporated by reference to Exhibit 10.5 to Amendment No. 3 of the
Registrant's Registration Statement on Form S-1 (File No. 333-45482) filed
on November 1, 2000.
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