-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, BKvXqmlZc2czgGMjkpjZBguln1lp5uqacC3xnxJ/W5/NNbtpLk7QCt/ovXO+sLRK L7lAZTOjPYo6UkHG9PzVrg== 0000926282-97-000002.txt : 19970625 0000926282-97-000002.hdr.sgml : 19970625 ACCESSION NUMBER: 0000926282-97-000002 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19970624 EFFECTIVENESS DATE: 19970624 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: ADTRAN INC CENTRAL INDEX KEY: 0000926282 STANDARD INDUSTRIAL CLASSIFICATION: TELEPHONE & TELEGRAPH APPARATUS [3661] IRS NUMBER: 630918200 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-29899 FILM NUMBER: 97628821 BUSINESS ADDRESS: STREET 1: 901 EXPLORER BLVD CITY: HUNTSVILLE STATE: AL ZIP: 35806 BUSINESS PHONE: 2059718000 MAIL ADDRESS: STREET 1: 901 EXPLORER BLVD CITY: HUNTSVILLE STATE: AL ZIP: 35806 S-8 1 ADTRAN 1996 EMPLOYEES INCENTIVE STOCK OPTION PLAN As filed with the Securities and Exchange Commission on June 24, 1997 Registration No. 33- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 --------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 --------------- 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. 1996 Employees Incentive Stock Option Plan (Full title of the plan) --------------- 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) 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 fee(2) price (2) Common Stock, $.01 par value per share 2,000,000 $24.125 $48,250,000 $14,621.21 (1) The shares of Common Stock being registered represent 2,000,000 shares of Common Stock which may be acquired pursuant to options available for grant in the future under the ADTRAN, Inc. 1996 Employees Incentive Stock Option Plan (the "Plan"). An undetermined number of additional shares may be issued, or the shares registered hereunder may be combined into an undetermined lesser number of shares, if the antidilution provisions of the Plan become operative. (2) The offering price of the 2,000,000 shares which may be acquired pursuant to options available for grant in the future under 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 17, 1997 as quoted on The Nasdaq National Market. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference The following documents heretofore filed by ADTRAN, Inc. (the "Company" or the "Registrant") 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; (2) The Company's Quarterly Report on Form 10-Q for the quarter ended on 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 Opinion of Long Aldridge Norman LLP 23(a) Consent of Coopers & Lybrand L.L.P. 23(b) Consent of Long Aldridge Norman LLP (included in Exhibit 5). 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 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. 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 24, 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 24, 1997. Signatures Title Mark C. Smith* Chairman of the Board, Chief Executive Officer Mark C. Smith and Director (Principal Executive Officer) /s/ Howard A. Thrailkill President, Chief Operating Officer Howard A. Thrailkill and Director 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 Pursuant to the requirements of the Securities Act of 1933, the Committee which administers the Plan has duly caused this registration statement to be signed on its behalf, thereunto duly authorized, in the City of Huntsville, State of Alabama, on June 24, 1997. ADTRAN, INC. 1996 EMPLOYEES INCENTIVE STOCK OPTION PLAN O. Gene Gabbard* O. Gene Gabbard, Director William L. Marks* William L. Marks, Director Roy J. Nichols* Roy J. Nichols, Director By: /s/ Howard A. Thrailkill Howard A. Thrailkill, as Attorney-in-Fact EXHIBIT INDEX Exhibit Page No. 5 Opinion of Long Aldridge Norman LLP 23(a) Consent of Coopers & Lybrand L.L.P. 23(b) Consent of Long Aldridge Norman LLP inluded in Exhibit 5). 24 Powers of Attorney. EX-5 2 OPINION OF LONG ALDRIDGE NORMAN LLP June 24, 1997 Securities and Exchange Commission Judiciary Plaza 450 5th Street, N.W. Washington, D.C. 20549 Re: ADTRAN, Inc. (Commission File No. 0000926282); Registration Statement on Form S-8 Ladies and Gentlemen: We have acted as counsel to ADTRAN, Inc., a Delaware corporation (the "Company"), in connection with the preparation of a Registration Statement on Form S-8 (the "Registration Statement") and the filing thereof with the Securities and Exchange Commission (the "Commission"). Pursuant to the Registration Statement, the Company intends to register under the Securities Act of 1933, as amended, a total of 2,000,000 shares of Company Common Stock, par value $.01 per share (the "Plan Shares") which are issuable upon the exercise of options which may be granted in the future pursuant to the ADTRAN, Inc. Employee Incentive Stock Option Plan (the "Plan"). The opinions hereinafter set forth are given to the Commission at the request of the Company pursuant to Item 8 of Form S-8 and Item 601(b)(5) of Regulation S-K. The only opinion rendered by this firm consists of the matters set forth in numbered paragraph (1) below (our "Opinion"), and no opinion is implied or to be inferred beyond such matters. Additionally, our Opinion is based upon and subject to the qualifications, limitations and exceptions set forth in this letter. Our Opinion is furnished for the benefit of the Commission solely with regard to the Registration Statement, may be relied upon by the Commission only in connection with the Registration Statement and may not otherwise be relied upon, used, quoted or referred to by or filed with any other person or entity without our prior written permission. In rendering our Opinion, we have examined such agreements, documents, instruments and records as we deemed necessary or appropriate under the circumstances for us to express our Opinion, including, without limitation, the Plan. In making all of our examinations, we assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to the original documents of all documents submitted to us as copies, and the due execution and delivery of all documents by any persons or entities other than the Company where due execution and delivery by such persons or entities is a prerequisite to the effectiveness of such documents. As to various factual matters that are material to our Opinion, we have relied upon the factual statements set forth in a certificate of officers of the Company. We have not independently verified or investigated, nor do we assume any responsibility for, the factual accuracy or completeness of such factual statements. The members of this firm are admitted to the Bar of the State of Georgia and are duly qualified to practice law in that state. We do not herein express any opinion concerning any matter respecting or affected by any laws other than provisions of the General Corporation Law of the State of Delaware as now in effect and that, in the exercise of reasonable professional judgment, are normally considered in transactions such as the issuance of the Plan Shares. The Opinion hereinafter set forth is based upon pertinent laws and facts in existence as of the date hereof, and we expressly disclaim any obligation to advise you of changes to such pertinent laws or facts that hereafter may come to our attention. Based upon and subject to the foregoing, we are of the following opinion: (1) the Plan Shares, when issued in accordance with the terms of the Plan against payment in full of the purchase price therefor set forth in the Plan, will be validly issued, fully paid and nonassessable. We hereby consent to the filing of this letter as an exhibit to the Registration Statement. Very truly yours, LONG ALDRIDGE NORMAN LLP By /s/ Thomas Wardell Thomas Wardell EX-23 3 CONSENT OF COOPERS & LYBRAND L.L.P. 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 24, 1997 EX-24 4 POWERS OF ATTORNEY 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 2,000,000 shares of Common Stock of ADTRAN, Inc. (the "Company") which may be acquired pursuant to options available for grant in the future by the ADTRAN, Inc. 1996 Employees Incentive Stock Option 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 18th. 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 /r/ Roy J. Nichols Roy J. Nichols /s/ James L. North James L. North -----END PRIVACY-ENHANCED MESSAGE-----