-----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, CG86TOuyEaSmzCYer5K7D3HyVIIP5Mft+2X6jWLg2dI21HGBz1KKdc7i2OPLBzdu sIXCF39R6odNlxlLREnAmw== 0000950149-02-001091.txt : 20020521 0000950149-02-001091.hdr.sgml : 20020521 20020521160114 ACCESSION NUMBER: 0000950149-02-001091 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20020521 EFFECTIVENESS DATE: 20020521 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ADVANCED FIBRE COMMUNICATIONS INC CENTRAL INDEX KEY: 0000898805 STANDARD INDUSTRIAL CLASSIFICATION: TELEPHONE & TELEGRAPH APPARATUS [3661] IRS NUMBER: 680277743 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-88746 FILM NUMBER: 02658917 BUSINESS ADDRESS: STREET 1: 1465 MCDOWELL BLVD NORTH CITY: PETALUMA STATE: CA ZIP: 94954 BUSINESS PHONE: 7077947700 MAIL ADDRESS: STREET 1: 1465 MCDOWELL BLVD NORTH CITY: PETALUMA STATE: CA ZIP: 94954 S-8 1 f81874s-8.txt ADVANCED FIBRE COMMUNICATIONS, INC. FORM S-8 As filed with the Securities and Exchange Commission on May 21, 2002 Registration No. 333- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ADVANCED FIBRE COMMUNICATIONS, INC. - -------------------------------------------------------------------------------- (Exact name of registrant as specified in its charter) DELAWARE 68-0277743 (State or other jurisdiction of (I.R.S. Employer Identification No.) incorporation or organization) 1465 NORTH MCDOWELL BOULEVARD PETALUMA, CALIFORNIA 94954 (Address of Principal Executive Offices) (Zip Code) ADVANCED FIBRE COMMUNICATIONS, INC. 1996 STOCK INCENTIVE PLAN ACCESSLAN COMMUNICATIONS, INC. 1997 STOCK PLAN (Full title of the plans) JOHN A. SCHOFIELD President and Chief Executive Officer Advanced Fibre Communications, Inc. 1465 North McDowell Boulevard Petaluma, CA 94954 (707) 794-7700 ------------------------ (Name, address and telephone number, including area code, of agent for service) Copy to: BLAIR W. WHITE Pillsbury Winthrop LLP P.O. Box 7880 San Francisco, CA 94120-7880 (415) 983-1000 ------------------------ CALCULATION OF REGISTRATION FEE
TITLE OF SECURITIES TO AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF BE REGISTERED REGISTERED (1) OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION SHARE PRICE FEE - ---------------------------------------------------------------------------------------------------------------- Common Stock, par value 2,463,419 $19.09 (2) $47,026,668 (2) $4,326.45 $0.01: to be issued under shares the Advanced Fibre Communications, Inc. 1996 Stock Incentive Plan Common Stock, par value 1,231,178 $0.05 (3) $61,559 (3) $5.66 $0.01: to be issued under shares the AccessLan Communications, Inc. 1997 Stock Plan TOTAL: 3,694,597 SHARES N/A $47,088,227 $4,332.11
(1) Associated with the Common Stock are Series A Junior Participating Preferred Stock purchase rights that will not be exercisable or evidenced separately prior to the occurrence of certain events. (2) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) and (h), based upon the average of the high and low prices as reported on the Nasdaq National Market on May 15, 2002. (3) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h), based upon the price at which the options may be exercised. (4) Pursuant to Rule 416, this Registration Statement also covers any additional securities that may be offered or issued in connection with any stock split, stock dividend, recapitalization or any other similar transaction effected without the receipt of consideration, which results in an increase in the number of the Registrant's outstanding shares of Common Stock. ----------------- The Registration Statement shall become effective upon filing in accordance with Rule 462 under the Securities Act of 1933. PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS Item 1. Plan Information.* Item 2. Registrant Information and Employee Plan Annual Information.* * Information required by Part I to be contained in the Section 10(a) prospectus is omitted from this Registration Statement in accordance with Rule 428 under the Securities Act of 1933 and the Note to Part I of Form S-8. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Certain Documents by Reference. The following documents filed by Registrant with the Securities and Exchange Commission (the "SEC") are incorporated by reference in this registration statement: (1) Registrant's Annual Report on Form 10-K for the fiscal year ended December 31, 2001, filed with the SEC on March 20, 2002. (2) Registrant's Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2002, filed with the SEC on May 2, 2002. (3) Registrant's Registration Statement No. 000-28734 on Form 8-A/12G filed with the SEC on May 19, 1998 (as amended by Form 8-A/12G/A filed with the SEC October 29, 1998), in which there is described the terms, rights and provisions applicable to the Registrant's preferred shares purchase rights. (4) Registrant's Registration Statement No. 000-28734 on Form 8-A filed with the SEC on July 31, 1996, in which there is described the terms, rights and provisions applicable to the Registrant's Common Stock. In addition, all documents subsequently filed by Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act"), prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then 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. Not applicable. Item 5. Interests of Named Experts and Counsel. Not applicable. -3- Item 6. Indemnification of Directors and Officers. Section 145 of the Delaware General Corporation Law provides for the indemnification of officers, directors, and other corporate agents in terms sufficiently broad to indemnify such persons under certain circumstances for liabilities (including reimbursement for expenses incurred) arising under the Securities Act of 1933, as amended (the "Securities Act"). Registrant's Certificate of Incorporation limits the liability of Registrant's directors to the maximum extent permitted by the Delaware General Corporation Law. In addition, the Registrant's Bylaws provide for indemnification of Registrant's executive officers and directors to the fullest extent permitted by the Delaware General Corporation Law. The Registrant's Bylaws also authorizes the use of indemnification agreements and the Registrant has entered into such agreements with each of its directors and executive officers. Item 7. Exemption from Registration Claimed. Not applicable. Item 8. Exhibits. See Index to Exhibits attached hereto and incorporated herein by reference. Item 9. Undertakings. (a) 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; provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if 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. -4- (b) The undersigned Registrant hereby further 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 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) 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. -5- 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 Petaluma, State of California, on May 21, 2002. ADVANCED FIBRE COMMUNICATIONS, INC. By: /s/ JOHN A. SCHOFIELD ------------------------- John A. Schofield President and Chief Executive Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS: I, the undersigned, do hereby make, constitute and appoint John A. Schofield and Keith E. Pratt, and each of them, my true and lawful attorneys-in-fact and agents, each with full power of substitution, in any or all of my offices and capacities with Advanced Fibre Communications, Inc. as shown below, to execute for me and on my behalf one or more registration statements on Form S-8 (the "Registration Statements") and any and all amendments and supplements thereto, including post-effective amendments, relating to the Advanced Fibre Communications, Inc. 1996 Stock Incentive Plan and the AccessLan Communications, Inc. 1997 Stock Plan, and to file the same, with all exhibits thereto, and any other documents in connection therewith, with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder, and do hereby grant 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 and necessary to be done, as fully to all intents and purposes as the undersigned might or could do in person, and ratify and confirm all that said attorneys-in-fact and agents, or their substitutes, may lawfully do or cause to be done by virtue of this Power of Attorney. -6- Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the date indicated: Name Title Date /s/ JOHN A. SCHOFIELD Chief Executive Officer, May 21, 2002 - --------------------------- President and Chairman of John A. Schofield the Board (Principal Executive Officer) /s/ KEITH E. PRATT Senior Vice President, Chief May 21, 2002 - --------------------------- Financial Officer and Assistant Keith E. Pratt Secretary (Principal Financial Officer) /s/ R. LEON BLACKBURN Vice President and Corporate May 21, 2002 - --------------------------- Controller (Principal Accounting R. Leon Blackburn Officer) /s/ DONALD GREEN Director May 21, 2002 - --------------------------- Donald Green /s/ RUANN F. ERNST Director May 21, 2002 - --------------------------- Ruann F. Ernst /s/ CLIFFORD H. HIGGERSON Director May 21, 2002 - --------------------------- Clifford H. Higgerson /s/ WILLIAM L. KEEVER Director May 21, 2002 - --------------------------- William L. Keever /s/ MARTIN R. KLITTEN Director May 21, 2002 - --------------------------- Martin R. Klitten -7- /s/ DAN RASDAL Director May 21, 2002 - --------------------------- Dan Rasdal /s/ ALEX SOZONOFF Director May 21, 2002 - --------------------------- Alex Sozonoff -8- INDEX TO EXHIBITS Number Exhibit - ------ ------- 5.1 Opinion regarding legality of securities to be offered. 23.1 Independent Auditors' Consent. 23.2 Consent of Pillsbury Winthrop LLP (included in Exhibit 5.1). 24.1 Power of Attorney (see page 6). -9- EX-5.1 3 f81874ex5-1.txt EXHIBIT 5.1 EXHIBIT 5.1 PILLSBURY WINTHROP LLP 50 Fremont Street San Francisco, CA 94105 May 21, 2002 Advanced Fibre Communications, Inc. 1465 North McDowell Boulevard Petaluma, CA 94954 Re: Registration Statement on Form S-8 Ladies and Gentlemen: We are acting as counsel for Advanced Fibre Communications, Inc., a Delaware corporation (the "Company") in connection with the Registration Statement on Form S-8 to be filed by the Company with the Securities and Exchange Commission under the Securities Act of 1933 (the "Securities Act"), relating to an aggregate of 3,694,597 shares of the Company's Common Stock, $.01 par value per share (the "Common Stock") issuable pursuant to the Advanced Fibre Communications, Inc. 1996 Stock Incentive Plan and the AccessLan Communications, Inc. 1997 Stock Plan (collectively, the "Plans"). We have reviewed and are familiar with such corporate proceedings and other matters we have deemed necessary for this opinion. Based on the foregoing, we are of the opinion that such shares of the Common Stock of the Company, when duly issued and sold in accordance with the Plans, and when payment therefor has been received by the Company as provided for in the Plans, will be legally issued, fully paid and nonassessable. This opinion is limited to matters governed by the General Corporation Law of the State of Delaware. We hereby consent to the filing of this opinion with the Securities and Exchange Commission as Exhibit 5.1 to such Registration Statement. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Securities and Exchange Commission promulgated thereunder. Very truly yours, /s/ Pillsbury Winthrop LLP EX-23.1 4 f81874ex23-1.txt EXHIBIT 23.1 EXHIBIT 23.1 INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in the Registration Statement on Form S-8 of Advanced Fibre Communications, Inc. of our reports dated January 29, 2002, relating to the consolidated balance sheets of Advanced Fibre Communications, Inc. as of December 31, 2001 and 2000, and the related consolidated statements of income, stockholders' equity and comprehensive income, and cash flows for each of the years in the three-year period ended December 31, 2001, and the related schedule, which reports appear, or are incorporated by reference, in the December 31, 2001 Annual Report on Form 10-K of Advanced Fibre Communications, Inc. Our reports on the consolidated financial statements refers to a change in accounting for derivative instruments and hedging activities in 2001. /s/ KPMG LLP San Francisco, California May 20, 2002 -----END PRIVACY-ENHANCED MESSAGE-----