Securities Registration: Employee Benefit Plan (s-8)
15 March 2014 - 7:09AM
Edgar (US Regulatory)
As filed with the
Securities and Exchange Commission on March 14, 2014
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Registration No. 333-
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UNITED STATES SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C.
20549
____________________
FORM S-8
REGISTRATION
STATEMENT
Under
THE SECURITIES ACT OF 1933
____________________
ALLIANCE FIBER OPTIC PRODUCTS,
INC.
(Exact name of registrant as
specified in its charter)
Delaware
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77-0554122
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(State or other jurisdiction
of
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(I.R.S. Employer
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incorporation or
organization)
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Identification No.)
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275 Gibraltar Drive
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94089
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Sunnyvale, California
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(Zip Code)
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(Address of principal executive
offices)
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Alliance Fiber Optic Products, Inc. 2000
Stock Incentive Plan
(Full title of the
plan)
Peter C. Chang
President and Chief Executive Officer
Alliance Fiber Optic
Products, Inc.
275 Gibraltar
Drive
Sunnyvale, California
(Name and address agent for service)
(408)
736-6900
(Telephone number, including area
code, of agent for service)
Copy to:
Gabriella A.
Lombardi
Pillsbury Winthrop Shaw Pittman LLP
2550 Hanover Street
Palo Alto, California 94304
(650) 233-4500
Indicate by check mark whether the
registrant is a large accelerated filer, an accelerated filer, a non-accelerated
filer, or a smaller reporting company. See definitions of large accelerated
filer, accelerated filer and smaller reporting company in Rule 12b-2 of the
Exchange Act.
Large accelerated filer
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Accelerated filer
þ
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Non-accelerated filer
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(Do not check if a smaller reporting company)
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Smaller reporting company
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CALCULATION OF REGISTRATION FEE
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Proposed
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Proposed
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Title of Securities
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Amount To
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Maximum Offering
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Maximum Aggregate
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Amount of
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To Be Registered
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Be Registered
(1)
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Price Per Share
(2)
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Offering Price
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Registration Fee
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Common Stock, $0.001 par value
(3)
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900,000
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$13.07
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$11,763,000
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$1,516
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(1) Calculated pursuant to General
Instruction E to Form S-8. Pursuant to Rule 416 under the Act of 1933 (the
Securities Act), 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 receipt of consideration, which results in an increase in the number of
the Registrants outstanding shares of Common Stock.
(2) Estimated pursuant to Rules 457(h) and
457(c) under the Securities Act, solely for the purposes of calculating the
registration fee, based on the average of the high and low prices of the
Registrants Common Stock as reported on the Nasdaq Capital Market on March 11,
2014.
(3) Associated with the Common Stock are
Series A Participating Preferred Stock Purchase Rights that will not be
exercisable or evidenced separately from the Common Stock prior to the
occurrence of certain events.
____________________
The Registration Statement shall become
effective upon filing in accordance with Rule 462 under the Securities Act.
INFORMATION REQUIRED PURSUANT
TO
GENERAL INSTRUCTION E TO FORM S-8
General Instruction E
Information
This Registration
Statement is being filed for the purpose of increasing the number of securities
of the same class as other securities for which a Registration Statement on Form
S-8 relating to the same employee benefit plan is effective.
Registrants Registration Statements on filed Form S-8 filed with the
Securities and Exchange Commission (the Commission) on November 29, 2000 (File
No. 333-50998), February 2, 2001 (File No. 333-54874), October 13, 2004 (File
No. 333-119710) and March 29, 2005 (File No. 333-123649), excluding reports that
the Registrant filed with the Commission that were incorporated into these Form
S-8 Registration Statements in order to maintain current information about the
Registrant, are hereby incorporated by reference into this Registration
Statement pursuant to General Instruction E of Form S-8.
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3: Incorporation of Documents by
Reference
The following documents filed by the Registrant with the Commission are
hereby incorporated by reference in this Registration Statement:
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(a)
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Annual Report on Form
10-K for the fiscal year ended December 31, 2013 filed with the Commission
on March 14, 2014.
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(b)
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Current Report on Form
8-K filed with the Commission on February 14, 2014.
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(c)
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The description of the
Registrants Common Stock contained in the Registration Statement on Form
8-A as filed with the Commission on October 27, 2000, as amended on
November 14, 2000 (File No. 000-31857) , including any amendment or report
filed for the purpose of updating such description.
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(d)
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The description of the
Registrants Series A Preferred Stock Purchase Rights contained in the
Registration Statement on Form 8-A as filed with the Commission on May 30,
2001, as amended on March 11, 2011 (File No. 000-31857), including any
amendment or report filed for the purpose of updating such
description.
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In addition, all documents filed by Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act of 1934, as amended (excluding
any portions thereof furnished by the Registrant, including but not limited to
information furnished under Item 2.02 and Item 7.01 and any exhibits relating to
Item 2.02 or Item 7.01 furnished under Item 9.01 of Form 8-K and any
certification required by 18 U.S.C. § 1350), on or after the date of this
Registration Statement, 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.
Any statement contained in this Registration Statement or in a document
incorporated by reference in this Registration Statement shall be deemed to be
modified or superseded for purposes of this Registration Statement to the extent
that a statement contained in this Registration Statement or in any subsequently
filed document that is deemed to be incorporated by reference in this
Registration Statement modifies or supersedes such statement.
Item 8: Exhibits.
Exhibit No.
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Description
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5.1
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Opinion of Pillsbury
Winthrop Shaw Pittman LLP.
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23.1
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Consent of Independent
Registered Public Accounting Firm.
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23.2
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Consent of Pillsbury
Winthrop Shaw Pittman LLP (included in Exhibit 5.1).
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24.1
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Power of Attorney
(contained on signature page hereto).
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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 this Registration Statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the maximum aggregate offering
price set forth in the Calculation of Registration Fee table in the effective
Registration Statement; and (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 clauses (a)(1)(i) and (a)(1)(ii) above do not apply if the
information required to be included in a post-effective amendment by those
clauses is contained in reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this 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 that remain unsold at the termination of the
offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrants annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plans
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference into 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) 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 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.
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 Sunnyvale, State of California, on the
14
th
day of March, 2014.
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ALLIANCE FIBER OPTIC
PRODUCTS, INC.
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By
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/s/
Peter C. Chang
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Peter C. Chang
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President and Chief Executive
Officer
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(Principal Executive
Officer)
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Peter C. Chang and Anita K. Ho, and each of them,
his true and lawful attorneys-in-fact and agents, each 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 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 and 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 his substitute or substitutes, may do or cause
to be done by virtue hereof.
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:
Signature
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Title
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Date
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/s/ Peter C. Chang
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President and Chief Executive
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March 14, 2014
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Peter C. Chang
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Officer (Principal Executive
Officer)
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and Chairman
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/s/ Anita K. Ho
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Acting Chief Financial Officer
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March 14, 2014
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Anita K. Ho
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(Principal Financial Accounting
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Officer)
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/s/ Richard Black
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Director
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March 14, 2014
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Richard Black
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/s/ Gwong-Yih Lee
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Director
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March 14, 2014
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Gwong-Yih Lee
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/s/ Ray Sun
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Director
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March 14, 2014
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Ray Sun
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/s/ James C. Yeh
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Director
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March 14, 2014
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James C. Yeh
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INDEX TO EXHIBITS
Exhibit No.
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Description
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5.1
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Opinion of Pillsbury
Winthrop Shaw Pittman LLP.
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23.1
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Consent of Independent
Registered Public Accounting Firm.
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23.2
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Consent of Pillsbury
Winthrop Shaw Pittman LLP (included in Exhibit 5.1).
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24.1
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Power of Attorney
(contained on signature page hereto).
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