As filed with the Securities and Exchange Commission on September 15, 2004
Registration No. 333-113341
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1 TO
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
BOOKHAM, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware | | 20-1303994 |
(State or Other Jurisdiction of Incorporation
or Organization) | | (I.R.S. Employer
Identification No.) |
| | |
2584 Junction Avenue, San Jose, California | | 95134 |
(Address of Principal Executive Offices) | | (Zip Code) |
Assumed options to purchase 176,283 shares of common stock
governed by nonstatutory stock option agreements issued under
the New Focus, Inc. 1990 Incentive Stock Plan, as amended,
the New Focus, Inc. 1998 Stock Plan, the New Focus, Inc. 1999 Stock Plan,
the New Focus, Inc. 2000 Director Stock Option Plan, as amended and
the New Focus, Inc. 2000 Stock Plan, as amended
(Full Title of the Plan)
Giorgio Anania
Chief Executive Officer
2584 Junction Avenue
San Jose, California 95134
(Name and Address of Agent For Service)
408-919-1500
(Telephone Number, Including Area Code, of Agent For Service)
With a copy to:
John A. Burgess, Esq.
Wilmer Cutler Pickering Hale and Dorr LLP
60 State Street
Boston, Massachusetts 02109
CALCULATION OF REGISTRATION FEE
Title of
Securities to be
Registered | | Amount to be
Registered | | Proposed
Maximum
Offering Price Per
Share | | Proposed
Maximum
Aggregate
Offering Price | | Amount of
Registration Fee |
Common
Stock, $0.01
par value per
share | | See below(1) | | N/A | | N/A | | N/A |
(1) No additional securities are being registered, and the registration fee was paid upon the filing of the original Registration Statement on March 5, 2004 (Reg. No. 333-113341).
EXPLANATORY NOTE
This Post-Effective Amendment No. 1 (this “Amendment”) to Registration Statement on Form S-8 (Reg. No. 333-113341) (the “Registration Statement”) filed by Bookham Technology plc, a company incorporated in England and Wales (“Bookham Technology”), on March 5, 2004 is being filed pursuant to Rule 414(d) of the Securities Act of 1933, as amended (the “Securities Act”), by Bookham, Inc., a Delaware corporation (the “Registrant”). Effective September 10, 2004, pursuant to a scheme of arrangement under the laws of the United Kingdom (the “Scheme”), Bookham Technology became a wholly-owned subsidiary of the Registrant, and the Registrant became the successor to Bookham Technology for Securities and Exchange Commission (the “Commission”) reporting purposes and various other purposes under the Securities Act and the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Pursuant to the Scheme, the Registrant assumed the nonstatutory stock option agreements issued under the New Focus, Inc. 1990 Incentive Stock Plan, as amended, the New Focus, Inc. 1998 Stock Plan, the New Focus, Inc. 1999 Stock Plan, the New Focus, Inc. 2000 Director Stock Option Plan, as amended, and the New Focus, Inc. 2000 Stock Plan, as amended (the “Agreements”). Each option to purchase ordinary shares of Bookham Technology governed by the Agreements became, on the same terms and conditions as were applicable to the option prior to the Scheme, an option to purchase one share of common stock of the Registrant for every ten ordinary shares of Bookham Technology applicable to the option prior to the Scheme, with a proportionate adjustment to the exercise price of the option. Except as modified by this Amendment, the Registrant, by virtue of this Amendment, expressly adopts the Registration Statement as its own registration statement for all purposes of the Securities Act and the Exchange Act.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
The information required by Item 1 is included in documents sent or given to participants in the plans covered by this registration statement pursuant to Rule 428(b)(1) of the Securities Act.
Item 2. Registrant Information and Employee Plan Annual Information.
The written statement required by Item 2 is included in documents sent or given to participants in the plans covered by this registration statement pursuant to Rule 428(b)(1) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registrant is subject to the informational and reporting requirements of Sections 13(a), 14, and 15(d) of the Exchange Act and in accordance therewith files reports, proxy statements and other information with the Commission. The following documents, which are on file with the Commission, are incorporated in this registration statement by reference:
(a) Bookham Technology’s latest annual report filed pursuant to Section 13(a) or 15(d) of the Exchange Act or the latest prospectus filed pursuant to Rule 424(b) under the Securities Act that contains audited financial statements for the Registrant’s latest fiscal year for which such statements have been filed.
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(b) All other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the document referred to in (a) above.
(c) The description of the securities contained in the Registrant’s Current Report on Form 8-K dated September 10, 2004, including any amendment or report filed for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, 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 in this registration statement and to be part hereof from the date of the filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for the purposes of this registration statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any 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.
Wilmer Cutler Pickering Hale and Dorr LLP has opined as to the legality of the securities being offered by this registration statement.
Item 6. Indemnification of Directors and Officers.
Article SEVENTH of the Registrant’s restated certificate of incorporation provides that no director of the Registrant shall be personally liable for any monetary damages for any breach of fiduciary duty as a director, except to the extent that the General Corporation Law of the State of Delaware prohibits the elimination or limitation of liability of directors for breach of fiduciary duty.
Article EIGHTH of the Registrant’s restated certificate of incorporation provides that a director or officer of the Registrant:
(a) shall be indemnified by the Registrant against all expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement incurred in connection with any litigation or other legal proceeding (other than an action by or in the right of the Registrant) brought against him by virtue of his position as a director or officer of the Registrant if he acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of the Registrant, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful and
(b) shall be indemnified by the Registrant against all expenses (including attorneys’ fees) and amounts paid in settlement incurred in connection with any action by or in the right of the Registrant brought against him by virtue of his position as a director or officer of the Registrant if he acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of the Registrant, except that no indemnification shall be made with respect to any matter as to which such person shall have been adjudged to be liable to the Registrant, unless a court determines that, despite such adjudication but in view of all of the circumstances, he is entitled to indemnification of such expenses.
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Notwithstanding the foregoing, to the extent that a director or officer has been successful, on the merits or otherwise, including, without limitation, the dismissal of an action without prejudice, he is required to be indemnified by the Registrant against all expenses (including attorneys’ fees) incurred in connection therewith. Expenses shall be advanced to a director or officer at his request, provided that he undertakes to repay the amount advanced if it is ultimately determined that he is not entitled to indemnification for such expenses.
Indemnification is required to be made unless the Registrant determines that the applicable standard of conduct required for indemnification has not been met. As a condition precedent to the right of indemnification, the director or officer must give the Registrant notice of the action for which indemnity is sought and the Registrant has the right to participate in such action or assume the defense thereof.
Article EIGHTH of the Registrant’s restated certificate of incorporation further provides that the indemnification provided therein is not exclusive.
Section 145 of the General Corporation Law of the State of Delaware provides that a corporation has the power to indemnify a director, officer, employee or agent of the corporation and certain other persons serving at the request of the corporation in related capacities against amounts paid and expenses incurred in connection with an action or proceeding to which he is or is threatened to be made a party by reason of such position, if such person shall have acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, in any criminal proceeding, if such person had no reasonable cause to believe his conduct was unlawful; provided that, in the case of actions brought by or in the right of the corporation, no indemnification shall be made with respect to any matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the adjudicating court determines that such indemnification is proper under the circumstances.
The Registrant maintains directors’ and officers’ insurance coverage, which, subject to policy terms and limitations will include coverage to reimburse the Registrant for amounts that it may be required or permitted by law to pay directors or officers of the Registrant.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The Exhibit Index immediately preceding the exhibits is incorporated herein by reference.
Item 9. Undertakings.
1. Item 512(a) of Regulation S-K. 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;
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(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; 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 paragraphs (i) and (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 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 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.
2. Item 512(b) of Regulation S-K. The undersigned Registrant hereby 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.
3. Item 512(h) of Regulation S-K. 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.
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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 Post-Effective Amendment No.1 to the registration statement on Form S-8 to be signed on its behalf by the undersigned, thereunto duly authorized, in Abingdon, England, on this 10th day of September, 2004.
| BOOKHAM, INC. |
| | |
| | |
| By: | /s/ Giorgio Anania | |
| | Giorgio Anania |
| | Chief Executive Officer |
POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of Bookham, Inc., hereby severally constitute and appoint Giorgio Anania, Stephen Abely and Philip Davis, and each of them singly, our true and lawful attorneys with full power to them, and each of them singly, to sign for us and in our names in the capacities indicated below, the Post-Effective Amendment No. 1 to registration statement on Form S-8 filed herewith and any and all subsequent amendments to said registration statement, and generally to do all such things in our names and on our behalf in our capacities as officers and directors to enable Bookham, Inc. to comply with the provisions of the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission, hereby ratifying and confirming our signatures as they may be signed by our said attorneys, or any of them, to said registration statement and any and all amendments thereto.
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 dates indicated.
Signature | | Title | | Date |
| | | | |
/s/ Giorgio Anania | | Chief Executive Officer and | | September 10, 2004 |
Giorgio Anania | | Director (Principal Executive
Officer) | | |
| | | | |
/s/ Stephen Abely | | Chief Financial Officer | | September 10, 2004 |
Stephen Abely | | (Principal Financial Officer and | | |
| | Principal Accounting Officer) | | |
| | | | |
/s/ Andrew G. Rickman | | Director | | September 10, 2004 |
Andrew G. Rickman | | | | |
| | | | |
/s/ David Simpson | | Director | | September 10, 2004 |
David Simpson | | | | |
| | | | |
/s/ Lori Holland | | Director | | September 10, 2004 |
Lori Holland | | | | |
| | | | |
/s/ W. Arthur Porter | | Director | | September 10, 2004 |
W. Arthur Porter | | | | |
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/s/ Joseph Cook | | Director | | September 10, 2004 |
Joseph Cook | | | | |
| | | | |
/s/ Peter Bordui | | Director | | September 10, 2004 |
Peter Bordui | | | | |
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INDEX TO EXHIBITS
Number | | Description |
| | |
5 | | Opinion of Wilmer Cutler Pickering Hale and Dorr LLP, counsel to the Registrant |
| | |
23.1 | | Consent of Wilmer Cutler Pickering Hale and Dorr LLP (included in Exhibit 5) |
| | |
23.2 | | Consent of Ernst & Young LLP |
| | |
24 | | Power of attorney (included on the signature page of this registration statement) |
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