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Registration No. 333-__________
As filed with the Securities and Exchange Commission on December 29, 1999
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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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ANCOR COMMUNICATIONS, INCORPORATED
(Exact name of registrant as specified in its charter)
Minnesota 41-1569659
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
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6321 Bury Drive, Suite 13
Eden Prairie, Minnesota 55346
(Address, including zip code,
of registrant's principal executive offices)
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Ancor Communications, Incorporated
1994 Long-Term Incentive and Stock Option Plan
(as amended through January 21, 1998)
(Full title of the plan)
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Kenneth E. Hendrickson
Ancor Communications, Incorporated
6321 Bury Drive, Suite 13
Eden Prairie, Minnesota 55346
(612) 932-4000
(Name, address and telephone number,
including area code, of agent for service of process)
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Copy to:
Amy E. Ayotte, Esq.
Dorsey & Whitney LLP
220 South Sixth Street
Minneapolis, Minnesota 55402
(612) 340-6323
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<CAPTION>
CALCULATION OF REGISTRATION FEE
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Proposed maximum Proposed maximum
Amount to be offering price per aggregate offering Amount of
Title of securities to be registered registered share(1) price registration fee
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<S> <C> <C> <C> <C>
Common stock, $.01 par value 1,500,000 $75.30938 $112,964,070 $29,822.51
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</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) and based upon the average of the high and low
prices for shares of the Registrant's Common Stock on December 29, 1999,
as reported by the Nasdaq National Market.
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Pursuant to General Instruction E to Form S-8, the contents of the Registration
Statement on Form S-8, SEC File No. 33-82976, are incorporated herein by
reference.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents which have been filed with the Securities and
Exchange Commission (the "Commission") by Ancor Communications, Incorporated
(the "Company") pursuant to the Securities Exchange Act of 1934 (the "Exchange
Act"), are incorporated herein by reference:
(a) Annual Report on Form 10-K for the fiscal year ended December
31, 1998.
(b) Quarterly Report on Form 10-Q for the quarter ended March 31,
1999.
(c) Quarterly Report on Form 10-Q for the quarter ended June 30,
1999.
(d) Quarterly Report on Form 10-Q for the quarter ended September
30, 1999.
(e) Current Report on Form 8-K filed on June 11, 1999.
(f) Current Report on Form 8-K filed on July 16, 1999.
(g) Current Report on Form 8-K filed on July 22, 1999.
(h) Current Report on Form 8-K filed on December 8, 1999.
(i) The description of the Company's Common Stock contained in any
registration statement or report filed by the Company under
the Exchange Act, including any amendment or report filed for
the purpose of updating such description.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act subsequent to the date hereof 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 remaining unsold shall
be deemed to be incorporated by reference herein and to be a part hereof from
the respective dates of filing of such documents. Any statement contained herein
or in a document all or part of which is 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 or 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 8. Exhibits.
Exhibit
Number Description
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5.1 Opinion of Dorsey & Whitney LLP
23.1 Consent of Dorsey & Whitney LLP (included in Exhibit 5.1)
23.2 Consent of KPMG LLP
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23.3 Consent of McGladrey & Pullen, LLP
24 Power of Attorney
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 of 1933 (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 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 Securities and Exchange
Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective
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)(i) and (a)(1)(ii) above will
not apply if the Registration Statement is on Form S-3, Form S-8, or
Form F-3, and the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed with or furnished 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 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 Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefor, 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 other
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 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 Minneapolis, State of Minnesota, on the 29th day of
December, 1999.
ANCOR COMMUNICATIONS, INCORPORATED
By /s/ Steven E. Snyder
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Steven E. Snyder
Chief Financial Officer and Secretary
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on December 29, 1999.
Signature Title
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Kenneth E. Hendrickson* Chief Executive Officer and Director
(principal executive officer)
Steven E. Snyder* Chief Financial Officer and Secretary
(principal financial officer)
Amyl Ahola* Director
Gerald M. Bestler* Director
Thomas F. Hunt, Jr. Director
Paul F. Lidsky* Director
John F. Carlson* Director
Michael L. Huntley* Director
*By /s/ Steven E. Snyder
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Name: Steven E. Snyder
Attorney-in-Fact
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EXHIBIT INDEX TO
FORM S-8
Ancor Communications, Incorporated
Exhibit
Number Description
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5.1 Opinion of Dorsey & Whitney LLP
23.1 Consent of Dorsey & Whitney LLP (included in Exhibit 5.1)
23.2 Consent of KPMG LLP
23.3 Consent of McGladrey & Pullen, LLP
24 Power of Attorney
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Exhibit 5.1
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[Letterhead of Dorsey & Whitney LLP]
Ancor Communications, Incorporated
6321 Bury Drive, Suite 13
Eden Prairie, Minnesota 55346
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to Ancor Communications, Incorporated, a
Minnesota corporation (the "Company"), in connection with a Registration
Statement on Form S-8 filed with the Securities and Exchange Commission for the
purpose of registering an additional 1,500,000 shares of Common Stock, $.01 par
value per share (the "Shares") to be sold or awarded to employees pursuant to
the Company's 1994 Long-Term Incentive and Stock Option Plan, as amended through
January 21, 1998 (the "Plan").
We have examined such documents and have reviewed such questions of law
as we have considered necessary and appropriate for the purposes of the opinions
set forth below.
In rendering our opinions set forth below, we have assumed the
authenticity of all documents submitted to us as originals, the genuineness of
all signatures and the conformity to authentic originals of all documents
submitted to us as copies. We have also assumed the legal capacity for all
purposes relevant hereto of all natural persons and, with respect to all parties
to agreements or instruments relevant hereto other than the Company, that such
parties had the requisite power and authority (corporate or otherwise) to
execute, deliver and perform such agreements or instruments, that such
agreements or instruments have been duly authorized by all requisite action
(corporate or otherwise), executed and delivered by such parties and that such
agreements or instruments are the valid, binding and enforceable obligations of
such parties. As to questions of fact material to our opinions, we have relied
upon certificates of officers of the Company and of public officials.
Based on the foregoing, we are of the opinion that the Shares have been
duly authorized and, upon issuance, delivery and payment therefor in accordance
with the terms of the Plan, will be validly issued, fully paid and
nonassessable.
Our opinions expressed above are limited to the laws of the State of
Minnesota.
We hereby consent to the filing of this opinion as an exhibit to the
above-described Registration Statement.
Dated: December 29, 1999
Very truly yours,
/s/ Dorsey & Whitney LLP
AEA
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Exhibit 23.2
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CONSENT OF INDEPENDENT ACCOUNTANTS
The Board of Directors
Ancor Communications, Inc.
We consent to the use of our report incorporated herein by reference.
/s/ KPMG LLP
Minneapolis, Minnesota
December 29, 1999
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Exhibit 23.3
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CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) of Ancor Communications, Incorporated pertaining to the
Ancor Communications, Incorporated 1994 Long-Term Incentive and Stock Option
Plan, as amended through January 21, 1998, of our report dated February 19,
1998, with respect to the 1996 and 1997 financial statements of Ancor
Communications, Incorporated included in its Annual Report on Form 10-K for the
year ended December 31, 1998 filed with the Securities and Exchange Commission.
/s/McGladrey & Pullen, LLP
Minneapolis, Minnesota
December 29, 1999
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Exhibit 24
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Kenneth E. Hendrickson and Steven
E. Snyder, his true and lawful attorneys-in-fact and agents, with full powers of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities to execute a Registration Statement on Form S-8 to be
filed under the Securities Act of 1933, as amended, for the registration of the
sale of shares of Common Stock of Ancor Communications, Incorporated to be
issued in connection with the Company's 1994 Long-Term Incentive and Stock
Option Plan, as amended, and any and all post-effective amendments thereto, and
to file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents full power and authority to do and perform to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitutes, may
lawfully do or cause to be done by virtue hereof.
Dated: December 29, 1999
/s/ Kenneth E. Hendrickson /s/ Gerald M. Bestler
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Kenneth E. Hendrickson Gerald M. Bestler
/s/ Amyl Ahola /s/ Paul F. Lidsky
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Amyl Ahola Paul F. Lidsky
/s/ John F. Carlson
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John F. Carlson Thomas F. Hunt, Jr.
/s/ Michael L. Huntley
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Michael L. Huntley
