<PAGE>
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
<TABLE>
<CAPTION>
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
----------- -------------- --------- ---------- ------------
<S> <C> <C> <C> <C>
Common Stock (under
Amended and Restated 1996
Non-qualified Stock
Option Plan). . . . . . . . . 500,000 shares(1) $2.29(2) $1,145,000 $318.31
</TABLE>
- -------------------
(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.
<PAGE>
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.
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<PAGE>
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
<TABLE>
<CAPTION>
Exhibit
Number Exhibit
- ------ -------
<S> <C>
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
</TABLE>
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
<PAGE>
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
<PAGE>
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.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/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
</TABLE>
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<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
EXHIBITS
TO
FORM S-8
UNDER
SECURITIES ACT OF 1933
APPLIED DIGITAL ACCESS, INC.
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Exhibit
------- -------
<S> <C>
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
</TABLE>
* 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.
<PAGE>
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
<PAGE>
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
<PAGE>
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.
