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As filed with the Securities and Exchange Commission on June 22, 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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ADVANCED FIBRE COMMUNICATIONS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 68-0277743
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
ONE WILLOW BROOK COURT
PETALUMA, CALIFORNIA 94954-1239
(Address of principal executive offices) (Zip Code)
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1996 STOCK INCENTIVE PLAN
(Full title of the Plan)
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JOHN A. SCHOLFIELD
PRESIDENT AND CHIEF EXECUTIVE OFFICER
ADVANCED FIBRE COMMUNICATIONS, INC.
ONE WILLOW BROOK COURT
PETALUMA, CALIFORNIA 94954-1239
(Name and address, including zip code, of agent for service)
(707) 794-7700
(telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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<CAPTION>
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TITLE OF SECURITIES TO BE AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
REGISTERED REGISTERED OFFERING PRICE PER AGGREGATE OFFERING PRICE REGISTRATION
(1) SHARE (2) (2) FEE
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<S> <C> <C> <C> <C>
1996 Stock Incentive Plan 4,618,875 shares $54.96 $253,853,370 $67,017.28
Common Stock, $0.01 par value
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</TABLE>
(1) This Registration Statement shall also cover any additional shares of
Registrant's Common Stock which become issuable under the 1996 Stock
Incentive Plan by reason of any stock dividend, stock split,
recapitalization or other similar transaction effected without the
Registrant's receipt of consideration which results in an increase in the
number of the outstanding shares of Registrant's Common Stock.
(2) Calculated solely for purposes of this offering under Rule 457(h) of the
Securities Act of 1933, as amended, on the basis of the average of the high
and low selling prices per share of the Registrant's Common Stock on
June 16, 2000, as reported by the Nasdaq National Market.
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PART II
Item 3. Incorporation of Documents by Reference
Advanced Fibre Communications, Inc. (the "Registrant") hereby
incorporates by reference into this Registration Statement the following
documents previously filed with the Securities and Exchange Commission (the
"SEC"):
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1999 filed with the SEC on March 21, 2000,
pursuant to Section 13 of the Securities Exchange Act of 1934, as
amended (the "1934 Act");
(b) The Registrant's Current Report on Form 8-K filed with the SEC on
February 11, 2000;
(c) The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 2000 filed with the SEC on May 5, 2000;
(d) The Registrant's Registration Statement No. 000-28734 on Form
S-A12G filed with the SEC on May 19, 1998 pursuant to Section 12
of the 1934 Act, in which there is described the terms, rights
and provisions applicable to the Registrant's Preferred Stock,
and;
(e) The Registrant's Registration Statement No. 000-28734 on Form 8-A
filed with the SEC on July 31, 1996 pursuant to Section 12 of the
1934 Act, in which there is described the terms, rights and
provisions applicable to the Registrant's Common Stock.
All reports and definitive proxy or information statements filed
pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act after the date of
this Registration Statement and 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. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any subsequently filed
document which also is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
Item 4. Description of Securities
Not Applicable.
Item 5. Interests of Named Experts and Counsel
Not Applicable.
Item 6. Indemnification of Directors and Officers
The Registrant's certificate of incorporation limits the liability of
directors to the maximum extent permitted by Delaware law. This provision is
intended to allow the Registrant's directors the benefit of Delaware General
Corporation Law which provides that directors of Delaware corporations may be
relieved of monetary liability for breach of their fiduciary duties as
directors, except for liability (i) for any breach of such person's duty of
loyalty to Registrant or its stockholders, (ii) for acts or omissions not in
good faith or involving intentional misconduct or a knowing violation of law,
(iii) for payment of dividends or approval of stock repurchases or redemptions
that are prohibited by Section 174 of the Delaware General Corporation Law, and
(iv) for any transaction resulting in receipt by such person of an improper
personal benefit. As a result, the Registrant and its stockholders may be unable
to obtain monetary damages from a director for breach of conduct if equitable
remedies are not available. In addition, the Registrant's bylaws provide that
the Registrant shall indemnify its executive officers and directors to the
fullest extent provided by Delaware law. The bylaws also authorize the use of
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indemnification agreements, and the Registrant has entered into such agreements
with each of its directors and executive officers. Insofar as indemnification
for liabilities arising under the Securities Act may be provided to the
Registrant's executive officers and directors, 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, and
is, therefore, unenforceable.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
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NUMBER EXHIBIT
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<S> <C>
4 Instruments Defining Rights of Stockholders. Reference is made to
Registrant's Registration Statement No. 000-28734 on Form 8-A
which is incorporated herein by reference pursuant to Item 3(d)
and 3(e).
5 Opinion and consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of KPMG LLP, Independent Auditors.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in
Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
99.1 1996 Stock Incentive Plan.
99.2* Form of Notice of Grant of Stock Option.
99.3* Form of Stock Option Agreement.
99.4* Form of Addendum to Stock Option Agreement (Limited Stock
Appreciation Right).
99.5* Form of Addendum to Stock Option Agreement (Involuntary
Termination Following Change in Control).
99.6* Form of Addendum to Stock Option Agreement (Involuntary
Termination Following Corporate Transaction).
99.7* Form of Notice of Grant of Automatic Stock Option (Initial
Grant).
99.8* Form of Notice of Grant of Automatic Stock Option (Annual Grant).
99.9* Form of Automatic Stock Option Agreement.
99.10* Form of Stock Issuance Agreement.
99.11* Form of Addendum to Stock Issuance Agreement (Involuntary
Termination Following Change in Control).
99.12* Form of Addendum to Stock Issuance Agreement (Involuntary
Termination Following Corporate Transaction).
</TABLE>
* Exhibits 99.2 through 99.12 are here incorporated by reference to Exhibits
99.2 through 99.12, respectively, of Registrant's Registration Statement No.
333-15651 on Form S-8 filed with the SEC on November 6, 1996.
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 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 clauses (1)(i) and (1)(ii) shall
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 1934 Act that are
incorporated by reference into this Registration Statement; (2) 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 (3) to remove
from registration by means of a
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post-effective amendment any of the securities being registered which remain
unsold at the termination of the Registrant's 1996 Stock Incentive Plan.
B. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the 1933 Act, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act that is
incorporated by reference into 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.
C. Insofar as indemnification for liabilities arising under the 1933 Act may
be permitted to directors, officers, or controlling persons of the Registrant
pursuant to the provisions summarized in Item 6, or otherwise, the Registrant
has been advised that, in the opinion of the SEC, 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 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 1933 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, as
amended, 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 Petaluma, State of California on this
22nd day of June, 2000.
ADVANCED FIBRE COMMUNICATIONS, INC.
By: /s/ John A. Schofield
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John A. Schofield
President & Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of Advanced Fibre
Communications, Inc., a Delaware corporation, do hereby constitute and appoint
John A. Schofield and Keith E. Pratt 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 any 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 any one 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, as
amended, this Registration Statement has been signed below 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/ John A. Schofield President and Chief Executive Officer June 22, 2000
----------------------------- (Principal Executive Officer)
John A. Schofield
/s/ Keith E. Pratt Vice President, Chief Financial June 22, 2000
----------------------------- Officer and Assistant Secretary
Keith E. Pratt (Principal Financial Officer)
/s/ Jude S. Radeski Corporate Controller June 22, 2000
----------------------------- (Principal Accounting Officer)
Jude S. Radeski
/s/ Donald Green Chairman of the Board June 22, 2000
-----------------------------
Donald Green
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/s/ Clifford H. Hifferson Director June 22, 2000
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Clifford H. Higgerson
/s/ Herbert M. Dwight, Jr. Director June 22, 2000
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Herbert M. Dwight, Jr.
/s/ Dan Rasdal Director June 22, 2000
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Dan Rasdal
Director
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Alex Sozonoff
Director
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Ruann F. Ernst
</TABLE>
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
EXHIBITS
TO
FORM S-8
UNDER
SECURITIES ACT OF 1933
ADVANCED FIBRE COMMUNICATIONS, INC.
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EXHIBIT INDEX
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<CAPTION>
NUMBER EXHIBIT
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4 Instruments Defining Rights of Stockholders. Reference is made to
Registrant's Registration Statement No. 000-28734 on Form 8-A
which is incorporated herein by reference pursuant to Item 3(d)
and 3(e).
5 Opinion and consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of KPMG LLP, Independent Auditors.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in
Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
99.1 1996 Stock Incentive Plan.
99.2* Form of Notice of Grant of Stock Option.
99.3* Form of Stock Option Agreement.
99.4* 1996 Stock Incentive Plan.
99.5* Form of Addendum to Stock Option Agreement (Involuntary
Termination Following Change in Control).
99.6* Form of Addendum to Stock Option Agreement (Involuntary
Termination Following Corporate Transaction).
99.7* Form of Notice of Grant of Automatic Stock Option (Initial
Grant).
99.8* Form of Notice of Grant of Automatic Stock Option (Annual Grant).
99.9* Form of Automatic Stock Option Agreement.
99.10* Form of Stock Issuance Agreement.
99.11* Form of Addendum to Stock Issuance Agreement (Involuntary
Termination Following Change in Control).
99.12* Form of Addendum to Stock Issuance Agreement (Involuntary
Termination Following Corporate Transaction).
</TABLE>
* Exhibits 99.2 through 99.12 are here incorporated by reference to Exhibits
99.2 through 99.12, respectively, of Registrant's Registration Statement No.
333-15651 on Form S-8 filed with the SEC on November 6, 1996.
