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Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MULTIMEDIA ACCESS CORPORATION
(Name of issuer in its charter)
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Delaware 75-2528700
(State or Other Jurisdiction (IRS Employer
of Incorporation or Organization) Identification Number)
2665 VILLA CREEK DRIVE, SUITE 200, DALLAS, TEXAS 75234
972-488-7200
(Address of principal executive offices and place of business
and telephone number)
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MULTIMEDIA ACCESS CORPORATION
1993 VIEWPOINT STOCK PLAN
1994 STOCK OPTION PLAN
1995 STOCK OPTION PLAN
1995 DIRECTOR STOCK PLAN
GLENN A. NOREM
CHIEF EXECUTIVE OFFICER
MULTIMEDIA ACCESS CORPORATION
2665 VILLA CREEK DRIVE, SUITE 200, DALLAS, TEXAS 75234
972-488-7200
(Name, address and telephone number of agent for service)
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Copies to:
V. Gerard Comizio, Esq.
Thacher Profitt & Wood
1700 Pennsylvania Avenue N.W., Suite 800
Washington, D.C. 20006
Telephone: (202) 347-8400
Telecopier: (202) 347-6238
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------------ --------------------- ----------------------- --------------------- ----------------------
Title of each
class of securities Maximum Maximum
to be Amount to be offering price per aggregate offering Amount of
registered registered Share price registration fee
- ------------------------ --------------------- ----------------------- --------------------- ----------------------
<S> <C> <C> <C> <C>
Common Stock 4,800,087 (a) $2.95 (b) $14,148,995 (b) $4,174 (b)
- ------------------------ --------------------- ----------------------- --------------------- ----------------------
</TABLE>
(a) If, prior to the completion of the distribution of the Common Stock
covered by this registration statement, additional shares of such
Common Stock are issued or issuable as a result of a stock split or
stock dividend, this registration statement shall be deemed to cover
such additional shares resulting from the stock split or stock
dividend pursuant to Rule 416.
(b) The price per share was estimated in accordance with Rule 457 (c) and
(h) for purposes of calculating the registration fee.
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Part II
Information Required in the Registration Statement
Item 1. Plan Information
Not required to be filed with the Securities and Exchange
Commission (the "Commission").
Item 2. Registrant Information and Employee Plan Annual Information
Not required to be filed with the Commission.
Note: The document containing the information specified in this
Part I will be sent or given to participants as specified by Rule 428(b)(1).
Such document need not be filed with the Commission either as part of this
registration statement or as prospectuses or prospectus supplements pursuant to
Rule 424. These documents and the documents incorporated by reference in this
registration statement pursuant to Item 3 of Part II of this form, taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act of 1933, as amended ("Securities Act").
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Company with the Commission are
incorporated herein by reference.
(a) The Company's Annual Report on Form 10-KSB for the fiscal year ended
December 31, 1997 (File No. 0-29020) and quarterly reports on Form 10-QSB for
the quarters ended March 31, 1998 and June 30, 1998 are hereby incorporated
herein by reference.
(b) The description of the Company's Common Stock as contained in the
Company's Registration Statement on Form SB-2 dated February 4, 1997 is hereby
incorporated herein by reference.
All reports and other documents filed by the Company pursuant to Section
13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Securities Act"), subsequent to the date of this Registration Statement
and prior to the termination of the offering made by the Registration Statement
shall be deemed to be incorporated by reference herein. 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 other
subsequently filed document which also is incorporated or 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
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Item 6. Indemnification of Directors and Officers
Articles Seven and Ten of the Company's Certificate of Incorporation,
contain the following provisions with respect to indemnification of Directors
and Officers:
SEVENTH. The Corporation shall, to the fullest extent permitted by Section
145 of the General Corporation Law of the State of Delaware, as the same may be
amended and supplemented, indemnify any and all persons whom it shall have power
to indemnify under said section from and against any and all of the expenses,
liabilities or other matters referred to in or covered by said section, and the
indemnification provided for herein shall not be deemed exclusive of any other
rights to which those indemnified may be entitled under any By-Law, agreement,
vote of stockholders or disinterested Directors or otherwise, both as to action
in his official capacity and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
TENTH. To the fullest extent permitted by Delaware General Corporation
Law, a director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director. Neither any amendment nor repeal of this Article, nor the
adopting of any provision of this Certificate of Incorporation inconsistent with
this Article shall eliminate or reduce the effect of this Article in respect of
any matter occurring, or any cause of action, suit or claim that, but for this
Article would accrue or arise, prior to such amendment, repeal or adoption of an
inconsistent provision.
Section 145 of the General Corporation Law of the State of Delaware
contains provisions entitling directors and officers of the Company to
indemnification from judgments, fines, amounts paid in settlement and reasonable
expenses, including attorney's fees, as the result of an action or proceeding in
which they may be involved by reason of being or having been a director or
officer of the Company provided said officers or directors acted in good faith.
The Company has also entered into indemnification agreements with Messrs.
Norem, Leftwich, Colquhoun, Stoner, Oakes, Jobe, Culp, Johnson, Sterling and
Bernardi which provide for the indemnification of said officers and directors
(former directors in the case of Messrs. Sterling, Bernardi, Culp and Oakes) to
the fullest extent allowable under the laws of the State of Delaware.
Item 7. Exemption From Registration Claimed.
Not Applicable
Item 8. Exhibits.
Exhibit
Number
- ------
5 Opinion of Thacher Profitt & Wood
10a 1993 Viewpoint Stock Plan (1)
10b 1994 Stock Option Plan (1)
10c 1995 Stock Option Plan (1)
10d 1995 Director Option Plan (1)
23 Consent of Ernst & Young LLP
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23a Consent of Thacher Profitt & Wood (contained in opinion filed
as Exhibit 5).
24 Powers of Attorney.
(1) Incorporated by reference to the Registration Statement on
Form SB-2 and all amendments thereto as declared effective on
February 4, 1997.
Item 9. Undertakings.
(a) The undersigned Company hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this
Registration Statement to: (i) Include any prospectus
required by Section 10(a)(3) of the Securities Act; (ii)
Reflect in the prospectus any facts or events which,
individually or together, represent a fundamental change
in the information in the registration statement and;
(iii) Include any additional or changed material
information on the plan of distribution.
(2) For determining liability under the Securities Act,
treat each post-effective amendment as a new
registration statement of the securities offered, and
the Offering of the securities at that time to be the
initial bona fide offering.
(3) File a post-effective amendment to remove from
registration any of the securities that remain unsold at
the end of the offering.
(b) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 (the "Securities Act") may be permitted
to directors, officers and controlling persons of the small
business issuer pursuant to the foregoing provisions, or
otherwise, the small business issuer 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 or 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, 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 or
amendment thereto to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Dallas and State of Texas, on the 15th day of
September 1998
Multimedia Access Corporation
By: /s/ William S. Leftwich
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William S. Leftwich
Chief Financial Officer
KNOW ALL MEN BY THESE PRESENT, that each person whose signature appears
below constitutes and appoints William S. Leftwich, his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to this registration
statement, and to file the same, with all exhibits thereto and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorney-in-fact and agent, full power and authority to do and perform
each and every act and thing requisite or necessary to be done in and about the
premises, as full to all intents and purposes as he might or could do in person,
hereby ratifying and confirming all that said attorney-in-fact and agent or
either of them or their or his substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration
statement or amendment thereto has been signed below by the following persons in
the capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
Chief Executive Officer
/s/ Glenn A. Norem and Director (Principal September 15, 1998
- --------------------------- Executive Officer)
Glenn A. Norem
/s/ William S. Leftwich Chief Financial Officer September 15, 1998
- --------------------------- (Principal Accounting
William S. Leftwich Officer)
/s/ William D. Jobe Director September 15, 1998
- ---------------------------
William D. Jobe
/s/ William E. Johnson Director September 15, 1998
- ---------------------------
William E. Johnson
</TABLE>
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Index of Exhibits
<TABLE>
<CAPTION>
Exhibit
Number
- ------
<S> <C>
5 Opinion of Thacher Profitt & Wood
10a 1993 Viewpoint Stock Plan (1)
10b 1994 Stock Option Plan (1)
10c 1995 Stock Option Plan (1)
10d 1995 Director Option Plan (1)
23 Consent of Ernst & Young LLP
23a Consent of Thacher Profitt & Wood (included in Exhibit 5).
24 Powers of Attorney (included on signature page).
</TABLE>
(1) Incorporated by reference to the Registration Statement on Form SB-2 and
all amendments thereto as declared effective on February 4, 1997.
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EXHIBIT 5
September 17, 1998
MultiMedia Access Corporation
2665 Villa Creek Drive
Suite 200
Dallas, TX 75234
Re: Registration Statement on Form S-8
Dear Sirs:
We have acted as counsel for MultiMedia Access Corporation, a
Delaware corporation (the "Company"), in connection with the filing of a
registration statement on Form S-8 under the Securities Act of 1933, as amended
("Registration Statement") with respect to shares of its common stock, par value
$0.01 per share (the "Shares"), of which shares are authorized but unissued
shares which have been reserved for issuance ("Original Issue Shares") upon the
exercise of options granted pursuant to MultiMedia Access Corporation's 1994
Stock Option Plan, 1995 Stock Option Plan, 1995 Director Stock Plan and the 1993
Viewpoint Stock Option Plan (the "Plans"). In rendering the opinion set forth
below, we do not express any opinion concerning law other than the law of the
State of Delaware and the federal law of the United States.
We have examined originals or copies, certified or otherwise
identified, of such documents, corporate records and other instruments as we
have deemed necessary or advisable for purposes of this opinion. As to matters
of fact, we have examined and relied upon the Plan described above and, where we
have deemed appropriate, representations or certificates of officers of the
Company or public officials. We have assumed the authenticity of all documents
submitted to us as originals, the genuineness of all signatures, the legal
capacity of natural persons and the conformity to the originals of all documents
submitted to us as copies.
Based on the foregoing, we are of the opinion that the
Original Issue Shares that are being registered pursuant to the Registration
Statement have been duly authorized and, when issued and paid for in accordance
with the terms of the Plan, such Original Issue Shares will be validly issued,
fully paid and non-assessable.
In rendering the opinion set forth above, we have not passed
upon and do not purport to pass upon the application of "doing business" or
securities or "blue-sky" laws of any jurisdiction (except federal securities
laws).
This opinion is given solely for the benefit of the Company
and purchasers of Shares under the Plan, and no other person or entity is
entitled to rely hereon without express written consent.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to the references to our Firm's name therein.
Very truly yours,
THACHER PROFFITT & WOOD
by:
V. Gerard Comizio
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EXHIBIT 23
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form
S-8) of MultiMedia Access Corporation pertaining to the MultiMedia Access
Corporation 1993 Viewpoint Stock Plan, 1994 Stock Option Plan, 1995 Stock Option
Plan, and 1995 Director Stock Plan of our report dated March 6, 1998 with
respect to the consolidated financial statements of MultiMedia Access
Corporation included in its Annual Report (Form 10-KSB) 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
Dallas, Texas
September 11, 1998
