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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 16, 2000
REGISTRATION NO. 333-45482
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 5
TO
FORM S-1
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)
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DELAWARE 3674 77-0554122
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NO.)
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ALLIANCE FIBER OPTIC PRODUCTS, INC.
735 NORTH PASTORIA AVENUE
SUNNYVALE, CA 94085
(408) 736-6900
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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PETER C. CHANG
PRESIDENT AND CHIEF EXECUTIVE OFFICER
ALLIANCE FIBER OPTIC PRODUCTS, INC.
735 NORTH PASTORIA AVENUE
SUNNYVALE, CA 94085
(408) 736-6900
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
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COPIES TO:
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GABRIELLA A. LOMBARDI PAUL C. PRINGLE
MARY A. HELVEY BROWN & WOOD LLP
P. CHRISTINE LILLQUIST 555 CALIFORNIA STREET, SUITE 5000
PILLSBURY MADISON & SUTRO LLP SAN FRANCISCO, CA 94104
2550 HANOVER STREET
PALO ALTO, CA 94304
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after this Registration Statement becomes effective.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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EXPLANATORY NOTE
The purpose of this Amendment No. 5 to the Registration Statement is solely
to file an exhibit to the Registrant Statement, as set for the below in Item
16(a) of Part II.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the various expenses expected to be
incurred by the Registrant in connection with the sale and distribution of the
securities being registered hereby, other than underwriting discounts and
commissions. All amounts are estimated except the Securities and Exchange
Commission registration fee, the National Association of Securities Dealers,
Inc. filing fee and the Nasdaq National Market listing fee.
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SEC registration fee........................................ $ 24,668
National Association of Securities Dealers, Inc. filing
fee....................................................... 9,125
Nasdaq National Market listing fee.......................... 95,000
Blue Sky fees and expenses.................................. 10,000
Accounting fees and expenses................................ 275,000
Legal fees and expenses..................................... 550,000
Printing and engraving expenses............................. 220,000
Registrar and Transfer Agent's fees......................... 20,000
Miscellaneous fees and expenses............................. 46,207
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Total............................................. $1,250,000
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* To be filed by amendment.
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
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 of the Registrant's
Restated Certificate of Incorporation (Exhibit 3(i).3 hereto) and Article 5 of
the Registrant's Bylaws (Exhibit 3(ii).3 hereto) 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 arise by reason of their status or service as
directors or officers to the fullest extent not prohibited by law.
The Underwriting Agreement (Exhibit 1.1) provides for indemnification by
the Underwriters of the Registrant, our directors and officers, and by the
Registrant of the Underwriters, for certain liabilities, including liabilities
arising under the Act, and affords certain rights of contribution with respect
thereto.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
(a) On various dates between August 1997 and September 2000, the
Registrant issued 3,406,667 shares of its common stock to 17 employees,
consultants and directors pursuant to the exercise of options granted under its
1997 Stock Plan. The exercise prices per share ranged from $.005 to $2.00, for
an aggregate consideration of $2,014,583. The sales of these securities were
considered to be exempt from registration under the Securities Act in reliance
on Rule 701 promulgated under Section 3(b) of the Securities Act, as
transactions under compensatory benefit plans and contracts relating to
compensation as provided under Rule 701.
(b) In January 1998, the Registrant issued 2,100,000 shares of Series A
convertible preferred stock at $1.56 per share for aggregate consideration of
$3,276,000 and a warrant to purchase 800,000 shares of common stock at a
purchase price of $0.05 per share to Transpac Nominees PTE, Ltd. The warrant was
exercised on May 27, 1999 for aggregate consideration of $40,000. The sale of
these securities
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was considered exempt from registration under the Securities Act in reliance of
Section 4(2) of the Securities Act or Regulation D promulgated thereunder.
(c) In January 2000, the Registrant issued 2,000,000 shares of Series B
convertible preferred stock at $2.00 per share for aggregate consideration of
$4,000,000 to nine accredited investors, including our affiliates, CPY
California, CPY International, CPY USA I, CPY USA II and Foxconn Holding
Limited. The sale of these securities was considered exempt from registration
under the Securities Act in reliance of Section 4(2) of the Securities Act or
Regulation D promulgated thereunder.
(d) In July and August 2000, the Registrant issued 5,000,000 shares of
Series C convertible preferred stock at $5.50 per share for aggregate
consideration of $27,500,000 to 28 accredited investors, including certain of
our directors and executive officers. The sale of these securities was
considered exempt from registration under the Securities Act in reliance of
Section 4(2) of the Securities Act or Regulation D promulgated thereunder.
The recipients of the securities in each of these transactions
represented their intention to acquire the securities for investment only and
not with a view to or for sale with any distribution thereof, and appropriate
legends were affixed to the share certificates and instruments issued in these
transactions. All recipients had adequate access, through relationships with the
registrant, to information about the registrant.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits
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EXHIBIT
NUMBER EXHIBIT
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1.1** Form of U.S. Purchase Agreement.
1.2** Form of International Purchase Agreement.
3(i).1 Reserved.
3(i).2** Amended and Restated Certificate of Incorporation of the
Registrant.
3(i).3** Form of Amended and Restated Certificate of Incorporation of
the Registrant to be effective upon the Closing of the
offering to which this Registration Statement relates.
3(ii).1 Reserved.
3(ii).2** Restated Bylaws of the Registrant.
3(ii).3** Restated Bylaws of the Registrant to be effective upon the
closing of the offering to which this Registration relates.
4.1** Specimen Common Stock Certificate.
4.2** Amended and Restated Rights Agreement dated as of August 31,
2000.
5.1** Opinion of Pillsbury Madison & Sutro LLP.
10.1** 1997 Stock Plan and form of agreements thereunder.
10.2** Form of Indemnification Agreement between the Registrant and
its officers and directors.
10.3** Lease Agreement dated April 6, 1999 by and between North
Pastoria Partners and the Registrant.
10.4** Lease dated June 26, 2000 by and between Renault & Handley
Employees Investment Co. and the Registrant.
10.5** Alliance Fiber Optic Products, Inc. 2000 Stock Incentive
Plan.
10.6** Alliance Fiber Optic Products, Inc. 2000 Employee Stock
Purchase Plan.
10.7** Alliance Fiber Optics Product, Inc. 1997 Stock Plan Stock
Option Agreement dated May 2, 2000 between Peter C. Chang
and the Registrant.
10.8** Alliance Fiber Optics Product, Inc. 1997 Stock Plan Stock
Option Agreement dated June 15, 2000 between R. David
Dicioccio and the Registrant.
10.9** Form of Full Recourse Promissory Note.
10.10** Alliance Fiber Optics Product, Inc. 1997 Stock Plan Stock
Option Agreement dated July 25, 2000 between John M. Harland
and the Registrant.
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EXHIBIT
NUMBER EXHIBIT
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21.1** Subsidiaries of the Registrant.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2** Consent of Pillsbury Madison & Sutro LLP (included in
Exhibit 5.1).
24.1** Power of Attorney.
24.2** Power of Attorney.
27.1** Financial Data Schedule.
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** Previously filed
(b) Financial Statement Schedules
Schedules other than those referred to above have been omitted because
they are not applicable or not required or because the information is included
elsewhere in the Financial Statements or the notes thereto.
ITEM 17. UNDERTAKINGS
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended (the "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 Securities
and Exchange Commission such indemnification is 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.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Act, the
information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4)
or 497(h) under the Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Act,
each post-effective amendment that contains a form of prospectus 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) It will provide to the underwriters at the closing(s)
specified in the underwriting agreement certificates in such
denominations and registered in such names as required by the
underwriters to permit prompt delivery to each purchaser.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Amendment to the Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Sunnyvale, State of California, on the 16th day of November, 2000.
ALLIANCE FIBER OPTIC PRODUCTS, INC.
By /s/ PETER C. CHANG
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Peter C. Chang
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Amendment to the Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
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NAME TITLE DATE
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/s/ PETER C. CHANG President and Chief November 16, 2000
------------------------------------------ Executive Officer (Principal
Peter C. Chang Executive Officer) and
Chairman
/s/ JOHN M. HARLAND* Chief Financial Officer November 16, 2000
------------------------------------------ (Principal Financial and
John M. Harland Accounting Officer)
/s/ R. DAVID DICIOCCIO* Director November 16, 2000
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R. David Dicioccio
/s/ PETER MORRIS* Director November 16, 2000
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Peter Morris
/s/ GWONG-YIH LEE* Director November 16, 2000
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Gwong-Yih Lee
/s/ MICHAEL TUNG* Director November 16, 2000
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Michael Tung
/s/ JAMES YEH* Director November 16, 2000
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James Yeh
*By: /s/ PETER C. CHANG
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Peter C. Chang
Attorney-in-fact
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EXHIBIT INDEX
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EXHIBIT
NUMBER EXHIBIT
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1.1** Form of U.S. Purchase Agreement.
1.2** Form of International Purchase Agreement.
3(i).1 Reserved.
3(i).2** Amended and Restated Certificate of Incorporation of the
Registrant.
3(i).3** Form of Amended and Restated Certificate of Incorporation of
the Registrant to be effective upon the Closing of the
offering to which this Registration Statement relates.
3(ii).1 Reserved.
3(ii).2** Bylaws of the Registrant.
3(ii).3** Restated Bylaws of the Registrant to be effective upon the
closing of the offering to which this Registration relates.
4.1** Specimen Common Stock Certificate.
4.2** Amended and Restated Rights Agreement dated as of August 31,
2000.
5.1** Opinion of Pillsbury Madison & Sutro LLP.
10.1** 1997 Stock Plan and form of agreements thereunder.
10.2** Form of Indemnification Agreement between the Registrant and
its officers and directors.
10.3** Lease Agreement dated April 6, 1999 by and between North
Pastoria Partners and the Registrant.
10.4** Lease dated June 26, 2000 by and between Renault & Handley
Employees Investment Co. and the Registrant.
10.5** Alliance Fiber Optic Products, Inc. 2000 Stock Incentive
Plan.
10.6** Alliance Fiber Optic Products, Inc. 2000 Employee Stock
Purchase Plan.
10.7** Alliance Fiber Optics Product, Inc. 1997 Stock Plan Stock
Option Agreement dated May 2, 2000 between Peter C. Chang
and the Registrant.
10.8** Alliance Fiber Optics Product, Inc. 1997 Stock Plan Stock
Option Agreement dated June 15, 2000 between R. David
Dicioccio and the Registrant.
10.9** Form of Full Recourse Promissory Note.
10.10** Alliance Fiber Optics Product, Inc. 1997 Stock Plan Stock
Option Agreement dated July 25, 2000 between John M. Harland
and the Registrant.
21.1** Subsidiaries of the Registrant.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2** Consent of Pillsbury Madison & Sutro LLP (included in
Exhibit 5.1).
24.1** Power of Attorney.
24.2** Power of Attorney.
27.1** Financial Data Schedule.
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** Previously filed
