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As Filed with the Securities and Exchange Commission on October 20, 1998
Registration No. ___________
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
- --------------------------------- ------------------------------------
(State or other jurisdiction of (I.R.S. employer identification no.)
incorporation or organization)
One Ascend Plaza
1701 Harbor Bay Parkway
Alameda, CA 94502
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(Address of principal executive offices) (Zip code)
ASCEND COMMUNICATIONS, INC.
OPTIONS GRANTED UNDER THE
STRATUS COMPUTER, INC.
1983 STOCK OPTION PLAN, AS AMENDED,
NON-QUALIFIED COMMON STOCK OPTION PLAN AND
1997 NON-QUALIFIED COMMON STOCK OPTION PLAN AND
ASSUMED BY ASCEND COMMUNICATIONS, INC.
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(Full title of the plan)
Mory Ejabat
President and Chief Executive Officer
One Ascend Plaza
1701 Harbor Bay Parkway
Alameda, CA 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.
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CALCULATION OF REGISTRATION FEE
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Proposed maximum Proposed maximum Amount of
Title of securities Amount to be offering price aggregate registration
to be registered/1/ registered per share/2/ offering price/2/ fee
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<S> <C> <C> <C> <C>
1983 Stock Option Plan
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Common Stock
par value $0.001 1,783,411 $33.1896 $ 59,190,697.73 $17,461.26
Non-Qualified Stock
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Option Plan
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123,786 $33.6603 $ 4,166,673.90 $ 1,229.17
Common Stock
par value $0.001
1997 Non-Qualified
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Stock Option Plan
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1,125,018 $40.6515 $ 45,733,669.23 $13,491.43
Common Stock
par value $0.001
Totals 3,032,215 $109,091,040.86 $32,181.86
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</TABLE>
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/1/ The securities to be registered include options to acquire such Common
Stock.
/2/ Estimated pursuant to Rule 457 solely for purposes of calculating the
registration fee. The price is computed on the basis of the weighted average
exercise prices of the assumed options.
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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
Sections 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, 1997, as amended May 29, 1998, as filed
with the Securities and Exchange Commission.
(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.
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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Legal Opinion. The validity of the shares of Common Stock to be
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offered hereunder has been passed upon for the Company by Gray Cary Ware &
Freidenrich LLP ("GCWF"). As of the date hereof, certain attorneys at GCWF
participating in this matter beneficially own approximately 8,494 shares of the
Company's Common Stock.
Item 6. Indemnification of Directors and Officers
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Section 145 of the Delaware General Corporation Law ("DGCL") authorizes
a court to award, or a corporation's board of directors to grant indemnity to,
directors and officers under certain circumstances for liabilities incurred in
connection with their activities in such capacities (including reimbursement for
expenses incurred). 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 DGCL, including those circumstances in which
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indemnification would otherwise be discretionary under Delaware law. Section 145
of the DGCL 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 "1933 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 1933 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;
provided, however, that paragraphs (a)(1)(i) and (a)(l)(ii) do not
-----------------
apply if the 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
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.
(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.
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(b) Filing incorporating subsequent Exchange Act documents by
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reference
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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 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
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registration statement on Form S-8
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Insofar as indemnification for liabilities arising under the 1933
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 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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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 October 19, 1998.
ASCEND COMMUNICATIONS, INC.
By: /s/ Mory Ejabat
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Mory Ejabat
President and Chief
Executive Officer
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SIGNATURES AND POWER OF ATTORNEY
--------------------------------
The officers and directors of Ascend Communications, Inc., whose signatures
appear below, hereby constitute and appoint Mory Ejabat and Michael F.G. Ashby,
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 and on the dates indicated.
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<CAPTION>
<S> <C> <C>
Signature Title Date
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/s/ Mory Ejabat President, Chief Executive Officer and October 19, 1998
- ----------------------------------- Director (Principal Executive Officer)
Mory Ejabat
/s/ Michael F. G. Ashby Executive Vice President and October 19, 1998
- ----------------------------------- Chief Financial Officer (Principal
Michael F.G. Ashby Financial and Accounting Officer)
/s/ Reed E. Hundt Director October 19, 1998
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Reed E. Hundt
/s/ Betsy S. Atkins Director October 14, 1998
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Betsy S. Atkins
/s/ Robert K. Dahl Director October 19, 1998
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Robert K. Dahl
/s/ Roger L. Evans Director October 19, 1998
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Roger L. Evans
/s/ C. Richard Kramlich Director October 19, 1998
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C. Richard Kramlich
/s/ James P. Lally Director October 19, 1998
- -----------------------------------
James P. Lally
/s/ Martin Schoffstall Director October 13, 1998
- -----------------------------------
Martin Schoffstall
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EXHIBIT INDEX
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<C> <S>
4.1 Certificate of Incorporation is incorporated by reference to Exhibit 3.1 to the Company's
report on Form 10-Q for the quarter ended June 30, 1996
4.2 Bylaws are incorporated by reference to Exhibit 3.4 to the Company's Registration
Statement on Form S-8 (File No.33-77146) effective May 12, 1994
4.3 Agreement and Plan of Merger by and among Ascend Communications, Inc., Wildcard Merger
Corporation, and Stratus Computer, Inc., dated as of August 3, 1998, is incorporated by
reference to Exhibit 2.1 to the Company's Registration Statement on Form S-4 filed with
the Securities and Exchange Commission on August 26, 1998
5 Legal Opinion
23.1 Consent of Independent Auditors
23.2 Consent of Independent Accountants
23.3 Consent of Counsel (included in Exhibit 5)
24 Power of Attorney (included in signature pages to this registration statement)
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EXHIBIT 5
[LETTERHEAD OF GRAY CARY WARE & FREIDENRICH LLP]
400 HAMILTON AVENUE, PALO ALTO, CA 94301-1825
PHONE: 650-328-6561 FAX: 650-327-3699 WWW.GCWF.COM
October 19, 1998
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 3,032,215 shares of the
Common Stock, $0.001 par value, of the Company ("Common Stock") which may be
issued pursuant to the exercise of options granted under the Stratus Computer,
Inc. 1983 Stock Option Plan, as amended, Non-Qualified Common Stock Option
Plan and 1997 Non-Qualified Common Stock Option Plan (collectively, the
"Plans") and assumed by the Company (the "Assumed Options") pursuant to the
Agreement and Plan of Merger dated as of August 3, 1998, by and among the
Company, Wildcard Merger Corporation, and Stratus Computer, Inc.
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 corporations 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 3,032,215 shares of
Common Stock which may be issued upon the exercise of the Assumed 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
Assumed Options and the Plans, 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 in said Registration Statement.
Respectfully submitted,
/s/ Gray Cary Ware & Freidenrich LLP
GRAY CARY WARE & FREIDENRICH LLP
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EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement
(Form S-8) pertaining to the Ascend Communications, Inc. 1983 Stock Option
Plan, as amended, Non-Qualified Common Stock Option Plan and 1997 Non-
Qualified Common Stock Option Plan of Stratus Computer, Inc., of our report
dated January 22, 1998, with respect to the consolidated financial statements
and financial statement schedule of Ascend Communications, Inc. included in
its annual report (Form 10-K/A) for the year ended December 31, 1997, filed
with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
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Ernst & Young LLP
Walnut Creek, California
October 16, 1998
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EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement of
Ascend Communications, Inc. (the "Company") on Form S-8 of our report dated
January 22, 1997, except for Note M as to which the date is March 30, 1997, on
our audits of the consolidated financial statements and our report dated January
22, 1997 on our audits of the consolidated financial statement schedule of
Cascade Communications Corp. as of December 31, 1996, and for the years ended
December 31, 1996 and 1995, which reports are included in the Company's Annual
Report on Form 10-K/A for the year ended December 31, 1997.
/s/ PricewaterhouseCoopers LLP
------------------------------
PricewaterhouseCoopers LLP
Boston, Massachusetts
October 19, 1998
