As filed with the Securities and Exchange Commission on June 30, 1997
Registration No. 33-
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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ADTRAN, INC
(Exact name of registrant as specified in its charter)
Delaware 63-0918200
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
901 Explorer Boulevard, Huntsville, Alabama 35806-2807
(Address of principal executive offices, including zip code)
ADTRAN,Inc. 401(k) Employee Savings Plan
(Full title of the plan)
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Mark C. Smith Copy to:
Chairman of the Board and Chief Executive Officer
ADTRAN, Inc. Thomas Wardell, Esq.
901 Explorer Boulevard Long Aldridge Norman LLP
Huntsville,Alabama 35806-2807 One Peachtree Center, Suite 5300
(Name and address of agent for service) 303 Peachtree Street
(205) 971-8000 Atlanta, Georgia 30308
(Telephone number, including area code, (404) 527-4000
of agent for service)
<PAGE>
CALCULATION OF REGISTRATION FEE
Title of Proposed Proposed
securities Amount maximum maximum Amount of
to be to be offering price aggregate registration
registered registered (1) per share (2) offering price (2) fee (2)
Common Stock,
$.01 par value
per share 70,103 (1) $24.25 $1,699,997.75 $515.15
Interests in Indeterminate (1) 0
the Plan
(1) The shares of Common Stock being registered represent the estimated maximum
number of shares purchasable on the open market, from time to time, by the
Trustee for the Common Stock Fund being established under the ADTRAN, Inc.
401(k) Employee Savings Plan (the "Plan") for the first three years of
operation commencing July 1, 1997. In addition, pursuant to Rule 416(c)
under the Securities Act of 1933, this registration statement also covers
an indeterminate amount of interests to be offered or sold pursuant to the
employee benefit plan described herein.
(2) The shares will be purchased by the Plan Trustee from time to time;
therefore, the offering price of the 70,103 shares which may be acquired
pursuant to the Plan is not presently determinable. The offering price for
such shares is estimated pursuant to Rule 457(c) and (h) solely for the
purpose of calculating the registration fee and is based upon the average
of the high and low prices of the Registrant's Common Stock on June 23,
1997 as quoted on The Nasdaq National Market.
<PAGE>
PART II
INFORMATION REQUIRED INTHE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents heretofore filed by ADTRAN, Inc. (the "Company" or
the "Registrant") and where applicable, the ADTRAN, Inc. 401(k) Employee Savings
Plan (the "Plan"), with the Securities and Exchange Commission (the
"Commission") hereby are incorporated herein by reference as of their respective
dates:
(1) The Company's Annual Report on Form 10-K for the year ended on December
31,1996. The Plan has not been a reporting plan to date. The Plan is instituting
a Company Stock Purchase feature on July 1, 1997 and it anticipates that its
first report will be filed in connection with the Plan year ending December 31,
1997;
(2) The Company's Quarterly Report on Form 10-Q for the quarter ended March
31, 1997; and
(3) The description of the Company's Common Stock as contained in the
Company's Registration Statement on Form 8-A (Registration No. 0-24612) as
declared effective by the Commission on August 9, 1994.
In addition, all reports and documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934, as amended (the "1934 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 then remaining unsold,
shall be deemed to be incorporated by reference herein and made a part hereof
from the date of the filing of such documents.
Item 6. Indemnification of Directors and Officers
Article Eleventh of the Company's Certificate of Incorporation provides
for the elimination of personal monetary liabilities of directors of the Company
for breaches of their fiduciary duties as directors, except that, as provided by
Section 102(b)(7) of the General Corporation Law of Delaware (the "GCL"), such
personal monetary liability of a director may not be eliminated with regard to
any breach of the duty of loyalty, failing to act in good faith, intentional
misconduct or knowing violation of law, payment of an unlawful dividend,
approval of an illegal stock repurchase, or obtainment of an improper personal
benefit. Such a provision has no effect on the availability of equitable
remedies, such as an injunction or rescission, for breach of fiduciary duty.
Article Twelfth of the Company's Certificate of Incorporation provides for
indemnification of directors and officers of the Company to the extent permitted
by the GCL. Section 145 of the GCL provides for indemnification of directors and
officers from and against expenses (including attorney's fees), judgments, fines
and amounts paid in settlement reasonably incurred by them in connection with
any civil, criminal, administrative or investigative claim or proceeding
(including civil actions brought as derivative actions by or in the right of the
corporation but only to the extent of expenses reasonably incurred in defending
or settling such action) in which they may become involved by reason of being a
director or officer of the corporation if the director or officer acted in good
faith and in a manner which he reasonably believed to be in or not opposed to
the best interest of the corporation and, in addition, in criminal actions, if
he had no reasonable cause to believe his conduct to be unlawful. If, in an
action brought by or in the right of the corporation, the director or officer is
adjudged to be liable for negligence or misconduct in the performance of his
duty, he will only be entitled to such indemnity as the court finds to be
proper. Persons who are successful in defense of any claim against them are
entitled to indemnification as of right against expenses actually and reasonably
incurred in connection therewith. In all other cases, indemnification shall be
made (unless otherwise ordered by a court) only if the board of directors,
acting by a majority vote of a quorum of disinterested directors, independent
legal counsel or holders of a majority of the shares entitled to vote determines
that the applicable standard of conduct has been met. Section 145 also provides
such indemnity for directors and officers of a corporation who, at the request
of the corporation, act as directors, officers, employees or agents of other
corporations, partnerships or other enterprises.
Article VI of the Company's Bylaws provides as follows:
Section 6.1. Indemnification. The Corporation shall indemnify and advance
expenses to any officer, director, employee or agent to the full extent
permitted by its Certificate of Incorporation, these bylaws or by law.
The Company maintains directors and officers liability insurance which will
insure against liabilities that directors or officers of the Company may incur
in such capacities.
Item 8. Exhibits
Exhibit
Number Description
5 Copy of Internal Revenue Service Determination
Letter with respect to the Plan
23(a) Consent of Coopers & Lybrand L.L.P.
24 Powers of Attorney.
Item 9. Undertakings
A. Rule 415 Offering.
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 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.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, as amended (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.
B. Subsequent Documents Incorporated by Reference.
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 1934 Act and
each filing of the Plan's annual report pursuant to Section 15(d) of the 1934
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. Indemnification of Officers, Directors and Controlling Persons.
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 provisions described under Item 6 above, or otherwise, the
Registrant has been advised that in the opinion of the 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. <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 Huntsville, State of Alabama, on June 30, 1997.
ADTRAN, INC.
By: /s/ Mark C. Smith*
Mark C. Smith
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated as of June 30, 1997.
Signatures Title
/s/ Mark C. Smith* Chairman of the Board, Chief Executive
Mark C. Smith Executive Officer and Director (Principal
Executive Officer)
/s/ Howard A.Thrailkill President, Chief Operating Officer and
Howard A. Thrailkill Director
/s/ Lonnie S. McMillian* Senior Vice President,Secretary and Director
Lonnie S. McMillian
O. Gene Gabbard* Director
O. Gene Gabbard
William L. Marks* Director
William L. Marks
Roy J. Nichols* Director
Roy J. Nichols
James L. North* Director
James L. North
/s/ John R. Cooper Vice President-Finance and
John R. Cooper Chief Financial Officer
*By: /s/ Howard A. Thrailkill
Howard A. Thrailkill,
as Attorney-in-Fact
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the persons who
administer the Plan have duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Huntsville, State of Alabama, on June 30, 1997.
ADTRAN, Inc. 401(k) Employee Savings Plan
By: ADTRAN, Inc., Plan Administrator
By: /s/ Mark C. Smith*
Mark C. Smith
Chairman of the Board and
Chief Executive Officer
*By: /s/ Howard A. Thrailkill
Howard A. Thrailkill
as Attorney-in-Fact
<PAGE>
EXHIBIT INDEX
Exhibit Page No.
5 Copy of Internal Revenue Service Determination
Letter with respect to the Plan
23(a) Consent of Coopers & Lybrand L.L.P.
24 Powers of Attorney.
INTERNAL REVENUE SERVICE
DISTRICT DIRECTOR DEPARTMENT OF THE TREASURY
P. O. BOX 1055
ATLANTA, GA 30370
JUNE 8, 1995 Employer Identification Number:
63-0918200
File Folder Number
630008205
Person to Contact:
ADTRAN, INC. KSHAMA KAKADE
901 EXPLORER BLVD. Contact Telephone Number:
HUNTSVILLE, AL 35806 (404-331-0909)
Plan Name:
ADTRAN, INC. 401 (K) EMPLOYEE
SAVINGS PLAN
Plan Number: 001
Dear Applicant:
We have made a favorable determination on your plan, identified above,
based on the information supplied. Please keep this letter in your permanent
records.
Continued qualification of the plan under its present form will depend on
its effect in operation. (See section 1.401-1(b) (3) of the Income Tax
Regulations.) We will review the status of the plan in operation periodically.
The enclosed document explains the significance of this favorable
determination letter, points out some features that may affect the qualified
status of your employee retirement plan, and provides information on the
reporting requirements for your plan. It also describes some events that
automatically nullify it. It is very important that you read the publication.
This letter relates only to the status of your plan under the Internal
Revenue Code. It is not a determination regarding the effect of other federal or
local statutes.
This determination letter is applicable for the amendment(s) adopted on
June 16, 1994.
This plan has been mandatorily disaggregated, permissively aggregated,
or restructured to satisfy the nondiscrimination requirements.
This plan satisfies the nondiscrimination in amount requirement of section
1.401(a)(4)-1(b) (2) of the regulations on the basis of a design-based safe
harbor described in the regulations.
This letter is issued under Rev.Proc.93-39 and considers the amendments
required by the Tax Reform Act of 1986 except as otherwise specified in this
letter.
This plan satisfies the nondiscriminatory current availability requirements
of section 1.401 (a) (4)-4(b) of the regulations with respect to those benefits,
rights, and features that are currently available to all employees in the plan's
coverage group. For this purpose, the plan's, coverage group consists of those
employees treated as currently benefiting for purposes of demonstrating that the
plan satisfies the minimum coverage requirements of section 410(b) of the Code.
This letter may not be relied upon with respect to whether the plan
satisfies the qualification requirements as amended by the Uruguay Round
Agreements Act, Pub. L. 103-465.
We have sent a copy of this letter to your representative as indicated in
the power of attorney.
If you have questions concerning this matter, please contact the person
whose name and telephone number are shown above.
Sincerely yours,
/s/ Nelson A. Brooke
Nelson A. Brooke
District Director
Enclosures:
Publication 794
Reporting & Disclosure Guide
for Employee Benefit Plans
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement
of ADTRAN, Inc. on Form S-8 of our reports dated January 14, 1997, on our audits
of the financial statements and the financial statement schedule of ADTRAN, Inc.
as of December 31, 1996 and 1995, and for the years ended December 31, 1996,
1995, and 1994, which reports are incorporated by reference in the Annual Report
on Form 10-K.
COOPERS & LYBRAND L.L.P.
Birmingham, Alabama
June 30, 1997
POWERS OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints James L. North, Howard A. Thrailkill and John R. Cooper, and each of
them, his true and lawful attorneys-in-fact and agents, with full power of
substitution, for him and in his name, place and stead, in any and all
capacities, to sign the Registration Statement on Form S-8 under the provisions
of the Securities Act of 1933, as amended, for the registration of 70,103 shares
of Common Stock of ADTRAN, Inc. (the "Company") and an indeterminate number of
interests in the ADTRAN, Inc. 401(k) Employee Savings Plan (the "Plan") which
may be acquired pursuant to the Plan and to sign any and all amendments
(including 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, and each of them, full power and authority to do and perform each and
every act and thing requisite or necessary to be done, as fully 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 any of them, or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
This 28th day of June, 1997.
/s/ Mark C. Smith
Mark C. Smith
/s/ Howard A Thrailkill
Howard A. Thrailkill
/s/ Lonnie S. McMillian
Lonnie S. McMillian
/s/ O. Gene Gabbard
O. Gene Gabbard
/s/ William L. Marks
William L. Marks
/s/ Roy J. Nichols
Roy J. Nichols
/s/James L. North
James L. North
/s/ John R. Cooper
John R. Cooper
