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Registration No. ____________
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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ASCEND COMMUNICATIONS, INC.
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(Exact name of registrant as specified in its charter)
DELAWARE 94-3092033
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(State or other jurisdiction (I.R.S. employer identification no.)
of incorporation or organization)
ONE ASCEND PLAZA
1701 HARBOR BAY PARKWAY
ALAMEDA, CALIFORNIA 94502
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(Address of principal executive offices) (Zip code)
ASCEND COMMUNICATIONS, INC.
OPTIONS GRANTED UNDER THE
WHITETREE, INC. 1993 INCENTIVE STOCK PLAN,
CASCADE COMMUNICATIONS CORP. AMENDED AND RESTATED 1991 STOCK PLAN,
CASCADE COMMUNICATIONS CORP. 1994 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN,
ARRIS NETWORKS, INC. 1995 STOCK OPTION PLAN AND
SAHARA NETWORKS, INC. 1995 STOCK PLAN
AND ASSUMED BY ASCEND COMMUNICATIONS, INC.
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(Full title of the plan)
MORY EJABAT
PRESIDENT AND CHIEF EXECUTIVE OFFICER
ASCEND COMMUNICATIONS, INC.
ONE ASCEND PLAZA
1701 HARBOR BAY PARKWAY
ALAMEDA, CALIFORNIA 94502
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(Name and address of agent for service)
Telephone number, including area code, of agent for service: 510/769-6001
This registration statement shall hereafter become effective in accordance with
Rule 462 promulgated under the Securities Act of 1933, as amended.
CALCULATION OF REGISTRATION FEE
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<CAPTION>
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Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price per offering registration
registered registered share/1/ price/1/ fee
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<S> <C> <C> <C> <C>
Whitetree, Inc. 1993 Incentive Stock Plan 85,548 $13.9479 $ 1,193,214.95
Cascade Communications Corp. Amended and Restated 1991 Stock Plan 7,731,649 $29.4786 $227,918,188.21
Cascade Communications Corp. 1994 Non-Employee Directors Stock
Option Plan 425,600 $23.6037 $ 10,045,734.72
Arris Networks, Inc. 1995 Stock Option Plan 63,304 $ 0.0456 $ 2,886.66
Sahara Networks, Inc. 1995 Stock Plan 234,380 $ 0.5347 $ 125,322.99
TOTAL 8,540,481 $239,285,347.53 $72,510.71
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</TABLE>
/1/ The securities to be registered are shares of Common Stock, par value
$0.001, of the Company issuable under options granted under the specified
equity compensation plan, which have been assumed by the Company, and
include the options to acquire such Common Stock. The offering price is
estimated pursuant to Rule 457 solely for purposes of calculating the
registration fee and is computed on the basis of the weighted average
exercise prices.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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Item 3. Incorporation of Documents by Reference
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Ascend Communications, Inc. (the "Company") hereby incorporates by
reference in this registration statement the following documents:
(a) The Company's latest annual report on Form 10-K filed pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), containing audited financial statements for the Company's
latest fiscal year ended December 31, 1996.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the registrant document
referred to in (a) above.
(c) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed under the Exchange Act,
including any amendment or report filed for the purpose of updating such
description.
(d) The unaudited pro forma condensed combining financial statements
contained in the Company's registration statement on Form S-4 filed with the
Securities and Exchange Commission on April 16, 1997 (File No. 333-25287).
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment to this registration statement 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 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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The class of securities to be offered is registered under Section 12 of the
Exchange Act.
Item 5. Interests of Named Experts and Counsel
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The validity of the shares of Common Stock to be offered hereunder has been
passed upon for the Company by Gray Cary Ware & Freidenrich, A Professional
Corporation. As of the date hereof, attorneys at Gray Cary Ware & Freidenrich
participating in this matter beneficially owned approximately 3,800 shares of
the Common Stock of the Company.
Item 6. Indemnification of Directors and Officers
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Delaware law authorizes corporations to eliminate the personal liability of
directors to corporations and their stockholders for monetary damages for breach
or alleged breach of the directors' "duty of care." While the relevant statute
does not change directors' duty of care, it enables corporations to limit
available relief to equitable remedies such as injunction or
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rescission. The statute has no effect on directors' duty of loyalty, acts or
omissions not in good faith or involving intentional misconduct or knowing
violations of law, illegal payment of dividends and approval of any transaction
from which a director derives an improper personal benefit.
The Company has adopted provisions in its Certificate of Incorporation
which eliminate the personal liability of its directors to the Company and its
stockholders for monetary damages for breach or alleged breach of their duty of
care. The Bylaws of the Company provide for indemnification of its directors,
officers, employees and agents to the full extent permitted by the General
Corporation Law of the State of Delaware, the Company's state of incorporation,
including those circumstances in which indemnification would otherwise be
discretionary under Delaware law. Section 145 of the General Corporation Law of
the State of Delaware provides for indemnification in terms sufficiently broad
to indemnify such individuals, under certain circumstances, for liabilities
(including reimbursement of expenses incurred) arising under the Securities Act
of 1933, as amended (the "Securities Act").
Item 7. Exemption From Registration Claimed
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Inapplicable.
Item 8. Exhibits
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See Exhibit Index.
Item 9. Undertakings
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(a) Rule 415 Offering
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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;
(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;
(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;
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provided, however, that paragraphs (a)(1)(i) and (a)(l)(ii) do not apply if the
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registration statement is on Form S-3 or Form S-8, and 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, 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) Filing incorporating subsequent Exchange Act documents by reference
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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 (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to 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.
(h) Request for acceleration of effective date or filing of registration
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statement on Form S-8
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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, 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 Securities
Act and will be governed by the final adjudication of such issue.
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SIGNATURE
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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 Alameda, State of California, on July 3, 1997.
Ascend Communications, Inc.
By: /s/ Mory Ejabat
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Mory Ejabat, President and Chief Executive
Officer
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POWER OF ATTORNEY
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The officers and directors of Ascend Communications, Inc. whose signatures
appear below, hereby constitute and appoint Mory Ejabat and Robert K. Dahl, and
each of them, their true and lawful attorneys and agents, with full power of
substitution, each with power to act alone, to sign and execute on behalf of the
undersigned any amendment or amendments to this registration statement on Form
S-8, and each of the undersigned does hereby ratify and confirm all that each of
said attorney and agent, or their or his substitutes, shall do or cause to be
done by virtue hereof. Pursuant to the requirements of the Securities Act of
1933, as amended, this registration statement has been signed by the following
persons in the capacities indicated on July 3, 1997.
Signature Title
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/s/ Mory Ejabat Director, President and Chief Executive Officer
- ----------------------------- (Principal Executive Officer)
Mory Ejabat
/s/ Robert K. Dahl Director, Vice President, Finance and Chief
- ----------------------------- Financial Officer (Principal Financial Officer)
Robert K. Dahl
/s/ Michael J. Johnson Controller and Chief Accounting Officer
- ----------------------------- (Principal Accounting Officer)
Michael J. Johnson
/s/ Betsy S. Atkins Director
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Betsy S. Atkins
/s/ Roger L. Evans Director
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Roger L. Evans
/s/ C. Richard Kramlich Director
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C. Richard Kramlich
/s/ James P. Lally Director
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James P. Lally
/s/ Martin Schoffstall Director
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Martin Schoffstall
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EXHIBIT INDEX
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4.1 Restated Certificate of Incorporation of the Company is incorporated
by reference to Exhibit 3.1 to the Company's report on Form 10-Q filed
with the Securities and Exchange Commission for the quarter ended June
30, 1996
4.2 Bylaws of the Company are incorporated by reference to Exhibit 3.4 to
the Company's Registration Statement filed with the Securities and
Exchange Commission effective May 12, 1994 (File No. 33-77146)
4.3 The Agreement and Plan of Merger dated as of February 14, 1997, by and
among the Company, Ascend Acquisition Corporation II, a Delaware
corporation and a wholly-owned subsidiary of the Company, and
Whitetree, Inc., a California corporation, is incorporated by
reference to Annex A to the Company's Registration Statement on Form
S-4 filed with the Securities and Exchange Commission on March 6, 1997
(File No. 333-22849)
4.4 The Agreement and Plan of Reorganization dated as of March 30, 1997,
by and among the Company, Catskill Merger Corporation, a Delaware
corporation and a wholly-owned subsidiary of the Company, and Cascade
Communications Corp., a Delaware corporation, is incorporated by
reference to Annex A to the Company's Registration Statement on Form
S-4 filed with the Securities and Exchange Commission on April 16,
1997 (File No. 333-25287)
5 Opinion re legality
23.1 Consent of Counsel (included in Exhibit 5)
23.2 Consent of Ernst & Young LLP, Independent Auditors
24 Power of Attorney (included in signature pages to this registration
statement)
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EXHIBIT 5
[LETTERHEAD OF GRAY CARY WARE & FREIDENRICH]
July 3, 1997
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
As legal counsel for Ascend Communications, Inc., a Delaware corporation
(the "Company"), we are rendering this opinion in connection with the
registration under the Securities Act of 1933, as amended, of up to 8,540,481
shares of the Common Stock, $0.001 par value, of the Company which may be issued
pursuant to the exercise of options granted under the Whitetree, Inc. 1993
Incentive Stock Plan, Cascade Communications Corp. Amended and Restated 1991
Stock Plan, Cascade Communications Corp. 1994 Non-Employee Director Stock Option
Plan, Arris Networks, Inc. 1995 Stock Option Plan and Sahara Networks, Inc. 1995
Stock Plan and assumed by the Company (the "Options"). 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 8,540,481 shares of Common Stock which may be issued
upon exercise of the Options are duly authorized shares of the Company's Common
Stock, and, when issued against receipt of the consideration therefor in
accordance with the provisions of the Options, 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
GRAY CARY WARE & FREIDENRICH
A Professional Corporation
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EXHIBIT 23.2
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CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) of Ascend Communications, Inc. pertaining to options granted under the
Whitetree, Inc. 1993 Incentive Stock Plan, Cascade Communications Corp. Amended
and Restated 1991 Stock Plan, Cascade Communications Corp. 1994 Non-Employee
Director Stock Option Plan, Arris Networks, Inc. 1995 Stock Option Plan and
Sahara Networks, Inc. 1995 Stock Plan and assumed by Ascend Communications,
Inc., of our report dated January 24, 1997, except Note 10, as to which the date
is February 14, 1997, with respect to the consolidated financial statements and
schedule of Ascend Communications, Inc. included in its annual report (Form 10-
K) for the year ended December 31, 1996, filed with the Securities and Exchange
Commission.
/s/ Ernst & Young LLP
Walnut Creek, California
July 3, 1997
