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As filed with the Securities and Exchange Commission on January 8, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
UNIPHASE CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 94-2579683
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
163 BAYPOINTE PARKWAY
SAN JOSE, CALIFORNIA 95134
(408) 434-1800
(Address, including zip code, and telephone number, including area code,
of registrar's principal executive offices)
Kevin N. Kalkhoven
Chairman of the Board of Directors, President and Chief Executive Officer
163 Baypointe Parkway
San Jose, California 95134
(408) 434-1800
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
COPIES TO:
Christopher S. Dewees, Esq.
David P. Valenti, Esq.
Morrison & Foerster LLP
755 Page Mill Road
Palo Alto, California 94304
(650) 813-5600
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of this Registration Statement.
If the only securities being registered on this form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. [ ]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act of 1933, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act of 1933, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
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TITLE OF SHARES TO AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
BE REGISTERED REGISTERED AGGREGATE PRICE PER SHARE AGGREGATE OFFERING PRICE REGISTRATION FEE
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Common Stock, $.001
par value ......... 729,510 shares $66.375(1) $48,421,226.25(1) $14,284.26
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(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(c) based on the average of the high and low
reported sales prices on the Nasdaq National Market on January 5, 1999.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
AN AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL
THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES
ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH
DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
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Subject to Completion, dated January 8, 1999
PROSPECTUS
Uniphase Corporation
729,510 SHARES OF COMMON STOCK
729,510 shares of the Company's common stock were issued to certain former
stockholders of Broadband Communications Products, Inc. (the "Selling
Stockholders") in connection with the acquisition by the Company of Broadband
Communications Products, Inc. Some of these stockholders may wish to sell these
shares in the future, and this Prospectus allows them to do so. The Company will
not receive any of the proceeds from any sale of shares by the such
stockholders, but has agreed to bear the expenses of registration of the shares
by this Prospectus.
Nasdaq National Market symbol:
UNPH
The last sale price of the common stock on the Nasdaq National Market on January
5, 1999 was $66.625 per share.
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THE SHARES REGISTERED HEREBY INVOLVE A HIGH LEVEL OF INVESTMENT RISK. YOU SHOULD
INVEST ONLY IF YOU CAN AFFORD A COMPLETE LOSS. SEE "RISK FACTORS" BEGINNING ON
PAGE 7 OF THIS PROSPECTUS.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED THESE SECURITIES, OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OF SALE IS NOT PERMITTED.
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January 8, 1999
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TABLE OF CONTENTS
PAGE
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Available Information..................................................4
Incorporation of Certain Documents by Reference........................4
The Company............................................................5
Recent Events..........................................................6
Use of Proceeds........................................................7
Risk Factors...........................................................7
Selling Stockholders..................................................14
Plan of Distribution..................................................15
Experts...............................................................15
Legal Matters.........................................................15
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No person has been authorized to give any information or to make any
representations not contained or incorporated by reference in this Prospectus in
connection with the offer described in this Prospectus and, if given or made,
such information and representations must not be relied upon as having been
authorized by the Company or the Selling Stockholders. Neither the delivery of
this Prospectus nor any sale made under this Prospectus shall under any
circumstances create any implication that there has been no change in the
affairs of the Company since the date hereof or since the date of any documents
incorporated herein by reference. This Prospectus does not constitute an offer
to sell or a solicitation of an offer to buy any securities other than the
securities to which it relates, or an offer or solicitation in any state to any
person to whom it is unlawful to make such offer in such state.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith the Company files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information filed can be inspected and copied at the
Commission's Public Reference Section, 450 Fifth Street, N.W., Washington, D.C.,
20549, and at the following regional offices of the Commission: Seven World
Trade Center, 13th Floor, New York, New York 10048 and 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661-2511. Copies of such material can be
obtained from the Public Reference Section of the Commission, 450 Fifth Street,
N.W., Washington, D.C. 20549, at prescribed rates. The Commission maintains a
web site (http://www.sec.gov) containing reports, proxy and information
statements and other information of registrants, including the Company, that
file electronically with the Commission. In addition, the Common Stock is listed
on the Nasdaq National Market and similar information concerning the Company can
be inspected and copied at the offices of the National Association of Securities
Dealers, Inc., 9513 Key West Avenue, Rockville, Maryland 20850.
The Company has filed with the Commission a registration statement on Form S-3
(the "Registration Statement") (of which this Prospectus is a part) under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to the
Shares. This Prospectus does not contain all of the information set forth in the
Registration Statement, certain portions of which have been omitted as permitted
by the rules and regulations of the Commission. Statements contained in this
Prospectus as to the contents of any contract or other documents are not
necessarily complete, and in each instance reference is made to the copy of such
contract or other document filed as an exhibit to the Registration Statement,
each such statement being qualified in all respects by such reference and the
exhibits and schedules thereto. For further information regarding the Company
and the Shares, reference is hereby made to the Registration Statement and such
exhibits and schedules which may be obtained from the Commission at its
principal office in Washington, D.C. upon payment of the fees prescribed by the
Commission.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The documents listed below have been filed by the Company under the Exchange Act
with the Commission and are incorporated herein by reference:
a. The Company's Annual Report on Form 10-K for the year ended June 30, 1998;
b. The Company's Quarterly Report on Form 10-Q for the quarter ended September
30, 1998;
c. The Company's Report on Form 8-K/A dated as of August 24, 1998;
d. The Company's Report on Form 8-K/A dated as of August 25, 1998;
e. The Company's Report on Form 8-K dated as of January 7, 1999; and
f. The description of the Registrant's Common Stock contained in the Company's
Registration Statement on Form 8-A filed with the Commission on November 15,
1993.
Each document filed by the Company pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of the offering made hereby shall be deemed to be incorporated
by reference in this Prospectus and to be part hereof from the date of filing
such documents. Any statement contained herein or in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein (or in the applicable Prospectus Supplement) 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 such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus.
Copies of all documents which are incorporated herein by reference (not
including the exhibits to such information, unless such exhibits are
specifically incorporated by reference in such information) will be provided
without charge to each person, including any beneficial owner, to whom this
Prospectus is delivered upon written or oral request. Requests should be
directed to the Corporate Secretary at the Company's corporate headquarters at
163 Baypointe Parkway, San Jose, California 95134 or by telephone at (408)
434-1800.
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THE COMPANY
Uniphase Corporation (the "Company") is an optoelectronics company that designs,
develops, manufactures and markets components and modules for fiber optic
telecommunications and cable television (CATV) systems, laser subsystems, and
laser-based semiconductor wafer defect examination and analysis equipment. The
Company's telecommunications and CATV divisions design, develop, manufacture and
market semiconductor lasers, high-speed external modulators, transmitters and
other components for fiber optic networks in the telecommunications and CATV
industries. The Company's Laser Division designs, develops, manufactures and
markets laser subsystems for a broad range of OEM applications which include
biotechnology, industrial process control and measurement, graphics and
printing, and semiconductor equipment.
The Company offers optoelectronic products in two principal product markets:
fiber optic modules and components for telecommunications and laser subsystems.
The Company's laser subsystems were the Company's initial product offering that
enabled the Company to invest in the further development of its laser technology
and to offer new applications products. Since May 1995, the Company has
undertaken a series of strategic initiatives to position itself as a full-line
merchant supplier of optical modules and components for fiber optic
telecommunication systems.
Since its founding, Uniphase has shipped over one million lasers in its capacity
as a supplier of laser subsystems for OEMs in a variety of markets, including
CATV, long haul telecommunications, semiconductor wafer inspection,
biotechnology, and graphics and printing markets. The Company focuses on selling
its laser subsystems to such customers at the design-in phase of a product,
creating the potential for recurring sales throughout a product's life.
The Company entered the telecommunications market in May 1995. Currently, the
Company's portfolio of telecommunications products includes those produced by
its various divisions: Uniphase Telecommunications Products ("UTP"), UTP
Fibreoptics ("UFP"), Uniphase Laser Enterprise ("ULE"), Uniphase Network
Components ("UNC"), Uniphase Fiber Components ("UFC"), Uniphase Netherlands
("UNBV"), Chassis Engineering, Inc. ("Chassis") and Broadband Communications
Products, Inc. ("BCP").
The Company's predecessor was incorporated in California in 1979 under the name
"Uniphase Corporation." The Company was incorporated in California in 1984 under
the name "Uniphase Holding, Corporation," and changed its name to Uniphase
Corporation in 1987 as part of a reorganization in which it succeeded to the
assets, liabilities and business operations of its predecessor. The Company
reincorporated in Delaware in October 1993. Unless the context otherwise
requires, the term the "Company" refers to Uniphase Corporation, a Delaware
corporation, its California predecessors and its subsidiaries. The Company's
principal executive offices are located at 163 Baypointe Parkway, San Jose,
California 95134 and its telephone number is (408) 434-1800.
RECENT EVENTS
ACQUISITION OF BROADBAND COMMUNICATIONS PRODUCTS, INC.
Pursuant the terms of the an Agreement and Plan of Reorganization dated as of
November 23, 1998 between and among the Company, Broadband Communications
Products, Inc. ("Broadband") and Phase Acquisition Corp. ("Phase") (the "Merger
Agreement"), the Company completed the merger of Phase, a wholly-owned
subsidiary of the Company, with and into Broadband (the "Merger"). The
transaction was accounted for using the pooling of interests method. As
consideration for the transaction, 711.72 shares of the Company's common stock
were issued for each outstanding share of Broadband common stock, subject to
adjustment for cash paid in lieu of fractional shares. The Company issued
729,510 shares of common stock in exchange for the outstanding shares of
Broadband common stock, subject to withholding of approximately 10 percent of
such shares in escrow in accordance with certain conditions in the Agreement.
Outstanding options to acquire shares of Broadband common stock were
automatically converted into options to purchase the Company's common stock at
the same exchange ratio.
The shares of Company Common Stock issued in the Merger were issued pursuant to
an exemption from registration under the Securities Act of 1993, as amended. In
accordance with the Merger agreement, the Company filed the registration
statement of which this Prospectus is a part to register certain of the Company
shares of Common Stock issued pursuant to the Merger (the "Shares").
SALE OF ULTRAPOINTE ASSETS
In December 1998, the company sold substantially all of the assets of its
wholly-owned subsidiary Ultrapointe Corporation to KLA-Tencor Corporation, which
had previously been the exclusive world-wide distributor of the Ultrapointe
defect review inspection systems. As a result of the disposition of those
assets, the Company incurred a non-recurring loss of approximately $3 million in
its quarter ended December 31, 1998.
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USE OF PROCEEDS
The Company will not receive any of the proceeds from the sale of Shares by the
Selling Stockholders, but has agreed to bear certain expenses of registration of
the Shares under federal and state securities laws. This Registration Statement
is intended to satisfy certain of the Company's obligations under the Merger
Agreement.
RISK FACTORS
Investors should carefully consider the following risk factors in evaluating an
investment in the Common Stock offered hereby. The statements contained in this
Prospectus that are not purely historical are "forward-looking statements"
within the meaning of the Private Securities Litigation Reform Act of 1995 and
Section 21E of the Securities Exchange Act of 1934, including, without
limitation, statements regarding the Company's expectations, hopes, beliefs,
anticipations, commitments, intentions and strategies regarding the future.
Actual results could differ from those projected in any forward-looking
statements for the reasons, among others, detailed in the following "Risk
Factors." The fact that some of the risk factors described in this Prospectus
may be the same or similar to those described in our past filings means only
that those risks are present in multiple periods. We believe that many of the
risks detailed here are part of doing business in the industry in which we
compete and will likely be present in all periods reported. The fact that
certain risks are endemic to the industry does not lessen the significance of
the risk. We have made forward-looking statements as of the date of this
Prospectus and assume no obligation to update them, or to update the reasons why
actual results could differ from those projected in them.
VARIABILITY AND UNCERTAINTY OF QUARTERLY OPERATING RESULTS
We have experienced and expect to continue to experience significant
fluctuations in our quarterly results. Fluctuations in our quarterly results may
cause substantial fluctuations in the market price of our common stock. Factors
which have influenced and may continue to influence our operating results in a
particular quarter include:
- the timing of the receipt of product orders from a limited number of
major customers,
- our ability to manufacture technically advanced products with
satisfactory yields on a timely basis,
- product mix,
- competitive pricing pressures,
- relative proportions of domestic and international sales,
- costs associated with the acquisition or disposition of businesses,
- our ability to timely and cost effectively design, manufacture and
ship products,
- the timing differences between when we incur expenses to increase
our marketing and sales capabilities and when we realize benefits,
if any, from such expenditures,
- the announcement and introduction of new products by us and by our
competitors, and
- expenses associated with any intellectual property litigation.
In addition, our sales often reflect orders shipped in the same quarter that
they are received. Also, customers may cancel or reschedule shipments, and
production difficulties could delay shipments. In addition, we sell our
telecommunications equipment products to Original Equipment Manufacturers (OEMs)
who typically order in large quantities and therefore the timing of such sales
may significantly affect our quarterly results. The timing of such OEM sales can
be affected by factors beyond our control, such as demand for the OEMs' products
and manufacturing risks experienced by OEMs. In this regard, we have experienced
rescheduling of orders by customers in each of our markets and may experience
similar rescheduling in the future. As a result of all of these factors, the
Company's results from operations may vary significantly from quarter to
quarter.
Be advised that future acquisitions or dispositions of businesses, products or
technologies by the Company may result in substantial charges or other expenses
that may cause fluctuations in the Company's quarterly operating results.
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The acquisition or disposition of other businesses, products or technologies may
also affect the Company's operating results in any particular quarter. For
example, in the second and fourth quarters of fiscal 1998, we incurred charges
of $6.6 million and $93.0 million, respectively for acquired in-process research
and development in connection with the acquisition of UFC and UNBV. In the third
quarter of fiscal 1997, we incurred charges of $33.3 million for acquired
in-process research and development in connection with the acquisition of ULE.
In addition, we incurred other charges in connection with acquisitions completed
in fiscal 1999, 1998 and 1997. Be advised that future acquisitions or
dispositions of businesses, products or technologies by the Company may result
in reorganization of its operations, substantial charges or other expenses that
may cause fluctuations in the Company's quarterly operating results and its cash
flows.
DIFFICULTIES IN MANUFACTURE OF THE COMPANY'S PRODUCTS
The manufacture of our products involves highly complex and precise processes,
requiring production in highly controlled and clean environments. Changes in our
manufacturing processes or those of our suppliers or their inadvertent use of
defective or contaminated materials could significantly reduce our manufacturing
yields and product reliability. Certain divisions of the Company, including ULE
and UNBV, have in the past and may in the future experience lower than expected
production yields, which could delay product shipments and impair gross margins.
The Company cannot and does not assure that ULE, UNBV or any of its other
manufacturing facilities will maintain acceptable yields in the future. Because
the majority of our manufacturing costs are relatively fixed, manufacturing
yields are critical to our results of operations. To the extent we do not
achieve acceptable manufacturing yields or experience product shipment delays,
the Company's business, operating results and financial condition would be
materially and adversely affected.
During the fourth quarter of fiscal 1998, we commenced construction of a new
laser fabrication facility in the Netherlands for UNBV, which we acquired in
June 1998. Historically, our UNBV facility has not achieved acceptable
manufacturing yields since the June 1998 acquisition, and there is continuing
risk attendant to this new facility and the manufacturing yields and costs that
we will achieve there. We cannot assure that UNBV will successfully manufacture
laser products in the future at performance or cost levels necessary to meet our
customers' needs, if at all. In addition, UFC is establishing a production
facility in Sydney, Australia for fiber Bragg grating products. The Company
cannot assure that this facility will manufacture grating products to customers
specifications at the cost and yield levels required. Each new manufacturing
line must go through varying levels of qualification with our customers. This
qualification process determines whether the manufacturing line achieves the
customers' minimum quality, performance and reliability standards. Customers
will not purchase any products (other than limited number of evaluation units)
prior to qualification of the manufacturing line for the product. Delays in
qualification can cause a product to be dropped from a long term supply program
and result in significant lost revenue opportunity over the term of that
program. To the extent the Company does not achieve and maintain yields or
product reliability or fails in the timely qualification of its new
manufacturing lines, our operating results and customer relationships would be
adversely affected.
MANAGEMENT OF GROWTH; ACQUISITION RISKS
We have historically achieved our growth through a combination of acquisitions
and internally developed new products. As part of our strategy to sustain
growth, we expect to continue to pursue acquisitions of other companies,
technologies and complementary product lines. We also expect to continue
developing new solid state lasers, components and other products for OEM
customers and attempting to further penetrate the telecommunications and CATV
markets through these new products. Both courses of action involve certain risks
to the Company.
In March 1997, the Company acquired ULE, which produces our 980 nm pump laster
products. In June 1998, we acquired UNBV. In the case of both acquisitions, we
acquired businesses that had previously been engaged primarily in research and
development and that needed to make the transition from a research activity to a
commercial business with sales and profit levels that are consistent with our
overall financial goals for the Company. This transition has not yet been
completed at UNBV, which continues to operate at higher expense levels and lower
gross margins than those required to meet our profitability goals. In addition,
in August 1998, the Company acquired certain assets of Chassis, and in November
1998 acquired Broadband Communications Products, Inc. The success of each of
these acquisitions will depend upon our ability to manufacture and sell high
power lasers and other components, modules and subsystems used in wavelength
divisional multiplexing applications and continued demand for these acquired
products by telecommunications and CATV customers. Our ability to manage our
growth effectively depend upon the integration into the Company of the acquired
entities' operations, products and personnel, the retention of key personnel of
the acquired entities and the expansion of our financial and management controls
and reporting systems and procedures. The Company cannot assure that we will
successfully manufacture and sell these products or successfully manage such
growth, and failure to do so could have a material adverse effect on the
Company's business, financial condition and operating results.
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Since 1997, when we acquired ULE, we have increased our marketing, customer
support and administrative functions to support an increased level of operations
primarily from our telecommunications products. The Company cannot and does not
assure success in creating this infrastructure nor can it or will it ensure any
increase in the level of its sales and operations through its new products. We
commenced operations at UTP in 1996 to penetrate the CATV markets, and at UNC in
1998 to develop and market a line of complementary optical components for our
telecommunications customers. In each case, we hired development, manufacturing
and other staff in anticipation of developing and selling new products. The
Company cannot and will not assure that its operations will achieve levels
sufficient to justify the increased expense levels associated with these new
businesses.
RISKS FROM CUSTOMER CONCENTRATION
Historically, orders from a relatively limited number of OEM customers accounted
for a substantial portion of our net sales from telecommunications products. In
the telecommunications markets, our customers evaluate our products and
competitive products for deployment in large telecommunications systems that
they are installing. Our failure to be selected by a customer for particular
system projects can significantly impact our business, operating results and
financial condition. Similarly, if our customers are not selected as the primary
supplier for an overall system installation, we can be similarly adversely
affected. Further, sales to any single customer may vary significantly from
quarter to quarter. Such fluctuations could have a material adverse effect on
the Company's business, operating results and financial condition. We expect
that, for the foreseeable future, sales to a limited number of customers will
continue to account for a high percentage of our net sales. The Company cannot
and does not assure that current customers will continue to place orders or that
the Company will obtain new orders from new customers.
One telecommunications customer, CIENA Corporation, accounted for approximately
12% of our net sales for fiscal 1998. One laser subsystems customer, the Applied
Biosystems Division of Perkin-Elmer Corporation, accounted for approximately 10%
and 12% of our net sales for fiscal 1997 and 1996, respectively. One additional
customer, KLA-Tencor Corporation, purchased both Laser subsystems and
Ultrapointe systems and accounted for 12% and 13% of our consolidated net sales
in fiscal 1998 and 1996, respectively. the Ultrapointe product line was sold to
KLA-Tencor Corporation in December 1998 and will not be a source of future sales
for the Company. No other customers represented 10% or more of total sales
during fiscal 1998. The loss or delay of orders from these or other OEM
customers could have a materially adverse effect on the Company's business,
financial condition and operating results.
INTENSE INDUSTRY COMPETITION
The telecommunications and laser subsystems markets in which we sell our
products are highly competitive. In each of the markets we serve, we face
intense competition from established competitors. Many of these competitors have
substantially greater financial, engineering, manufacturing, marketing, service
and support resources than we do. We compete with many companies in the
telecommunications market that have substantially greater resources, greater
name recognition, manufacturing expertise and capability and longer standing
customer relationships than do we. To remain competitive, we believe we must
maintain a substantial investment in research and development, marketing, and
customer service and support. The Company cannot and does not assure that the
Company will compete successfully in the laser or telecommunications industries
in the future, that the Company will have sufficient resources to continue to
make such investments, that the Company will make the technological advances
necessary to maintain its competitive position or that its products will receive
market acceptance. In addition, be advised that technological changes or
development efforts by the Company's competitors may render the Company's
products or technologies obsolete or uncompetitive.
DECLINING MARKET FOR GAS LASERS; DEVELOPMENT AND OTHER RISKS RELATING TO SOLID
STATE LASER TECHNOLOGIES
Gas laser subsystems sales accounted for 26.3%, 37.3% and 52.9% of our net sales
for the fiscal years ended 1998, 1997 and 1996, respectively. The market for gas
lasers is mature and expected to decline as customers replace conventional
lasers, including gas lasers, with solid state lasers. Solid state lasers are
currently expected to be the primary commercial laser technology in the future.
Consequently, we have devoted substantial resources to developing and
commercializing our solid state laser products. We believe that some companies
are further advanced than us in solid state laser development and are competing
with the Company for many of the same opportunities. To be competitive in our
laser markets, we believe continued manufacturing cost reductions and enhanced
performance of our laser products will be required on a continuing basis as
these markets further mature. However, the Company cannot assure that our solid
state laser products will be competitive with products of other companies as to
cost or performance in the future.
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ATTRACTING AND RETAINING KEY PERSONNEL
Our future depends, in part, on our ability to attract and retain certain key
personnel. In particular, our research and development efforts depend on hiring
and retaining qualified engineers. Competition for highly skilled engineers is
extremely intense, and we are currently experiencing difficulty in identifying
and hiring certain qualified engineers in many areas of our business. The
Company cannot and does not assure that the Company will be able to hire and
retain such personnel at compensation levels consistent with the Company's
existing compensation and salary structure. Our future also depends on the
continued contributions of its executive officers and other key management and
technical personnel, none of whom has an employment agreement with the Company
and each of whom would be difficult to replace. The Company does not maintain a
key person life insurance policy on the Chief Executive Officer. However, the
loss of the services of one or more of the Company's executive officers or key
personnel or the inability to continue to attract qualified personnel could
delay product development cycles or otherwise have a material adverse effect on
the Company's business, financial condition and operating results.
RISKS ASSOCIATED WITH INTERNATIONAL SALES
International sales accounted for approximately 38.5%, 30.0% and 24.5% of net
sales in fiscal years 1998, 1997 and 1996, respectively. We expect that
international sales will continue to account for a significant portion of our
net sales. We may continue to expand Company operations outside of the United
States and to enter additional international markets, both of which will require
significant management attention and financial resources. International sales
are subject to inherent risks, including
- unexpected changes in regulatory requirements,
- tariffs and other trade barriers,
- political and economic instability in foreign markets,
- difficulties in staffing and management,
- integration of foreign operations,
- longer payment cycles,
- greater difficulty in accounts receivable collection,
- currency fluctuations, and
- potentially adverse tax consequences.
Since a significant portion of our foreign sales are denominated in U.S.
dollars, our products may also become less price competitive in countries in
which local currencies decline in value relative to the U.S. dollar. Our
business and operating results may also be materially and adversely affected by
lower sales levels which typically occur during the summer months in Europe and
certain other overseas markets. Furthermore, the sales of many of our OEM
customers depends on international sales and, consequently, this further exposes
us to the risks associated with such international sales.
YEAR 2000
We are aware of the risks associated with the operation of information
technology ("IT") and non-information technology ("non-IT") systems as the
millennium (year 2000) approaches. The "Year 2000" problem is pervasive and
complex, and may affect many IT and non-IT systems. The Year 2000 problem
results from the rollover of the two digit year value from "99" to "00". Systems
that do not properly recognize such date-sensitive information could generate
erroneous data or fail. In addition to our own systems we rely on external
systems of our customers, suppliers, creditors, financial organizations,
utilities providers and government entities, both domestic and international
(which we collectively refer to as "Third Parties"). Consequently, we could be
affected by disruptions in the operations of Third Parties with which we
interact. Furthermore, as customers expend resources to correct their own
systems, they may reduce their purchasing frequency and volume of our products.
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We are using both internal and external resources to assess
- the Company's state of readiness (including the readiness of Third
Parties, with which we interact) concerning the Year 2000 problem,
- our costs to correct material Year 2000 problems related to our
internal IT and non-IT systems,
- the known risks related to any failure to correct any Year 2000
problems we identify, and
- the contingency plan, if any, that we should adopt should any
identified Year 2000 problems not be corrected.
We continue to evaluate the estimated costs associated with the efforts to
prepare for Year 2000 based on actual experience. While the efforts will involve
additional costs, we believe, based on available information, that we will
manage our total Year 2000 transition without any material adverse effect on the
Company's business operations, products or financial prospects. The actual
outcomes and results could be affected by future factors including, but not
limited to,
- the continued availability of skilled personnel,
- cost control,
- the ability to locate and remediate software code problems,
- critical suppliers and subcontractors meeting their Year 2000
compliance commitments, and
- timely actions by customers.
We anticipate that we will remediate all Year 2000 risks and be able to conduct
normal operations without having to establish a Year 2000 contingency plan.
We are working with our software system suppliers and believe that certain of
these systems are currently not Year 2000 compliant. However, we anticipate that
such systems will be corrected for the Year 2000 problem prior to December 31,
1999. We are working with those Third Parties to identify any Year 2000 problems
affecting such Third Parties that could have a material adverse affect on our
business, financial condition or results of operations. However, it would be
impracticable for us to attempt to address all potential Year 2000 problems of
Third Parties that have been or may in the future be identified. Specifically,
Year 2000 problems have arisen or may arise regarding the IT and non-IT systems
of Third Parties having widespread national and international interactions with
persons and entities generally (for example, certain IT and non-IT Systems of
governmental agencies, utilities and information and financial networks) that,
if uncorrected, could have a material adverse impact on the Company's business,
financial condition or results of operations. We are still assessing the effect
the Year 2000 problem will have on its suppliers and, at this time, cannot
determine such impact.
CONFLICTING PATENTS AND INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES; POTENTIAL
INFRINGEMENT CLAIMS
The laser, semiconductor capital equipment, and telecommunications markets in
which we sell our products experience frequent litigation regarding patent and
other intellectual property rights. Numerous patents in these industries are
held by others, including academic institutions and our competitors. Such
patents could inhibit our development of new products for such markets. The
industry in which we operate experiences periodic claims of patent infringement
or other intellectual property rights. While in the past licenses generally have
been available to us where third-party technology was necessary or useful for
the development or production of our products, the Company cannot and does not
assure that licenses to third-party technology will be available on commercially
reasonable terms, if at all. Generally, a license, if granted, includes payments
by us of up-front fees, ongoing royalties or a combination thereof. Be advised
that such royalty or other terms could have a significant adverse impact on the
Company's operating results. We are a licensee of a number of third party
technologies and intellectual property rights and are required to pay royalties
to these third party licensors on certain of our telecommunications products and
solid state lasers. During fiscal 1998, 1997 and 1996, we expensed $2.0 million,
$1.4 million and $1.3 million, respectively, in license and royalty fees
primarily in connection with our gas laser subsystems. In addition, be advised
that third parties may in the future assert claims against the Company
concerning the Company's existing products or with respect to future products
under development by the Company. Any litigation to determine the validity of
any third-party claims could result in significant expense to the Company and
divert the efforts of the Company's technical and management personnel, whether
or not the Company is successful in such litigation. If the Company is
unsuccessful in
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any such litigation, the Company could be required to expend significant
resources to develop non-infringing technology or to obtain licenses to the
technology which is the subject of the litigation. The Company cannot and does
not assure that the Company would be successful in such development or that any
such licenses would be available to the Company. Without such a license, the
Company could be enjoined from future sales of the infringing product or
products.
EURO CURRENCY
On January 1, 1999, several member countries of the European Union established
fixed conversion rates between their existing sovereign currencies and adopted
the Euro as their new common legal currency. From then on, the Euro has and will
trade on currency exchanges and the legacy currencies will remain legal tender
in the participating countries for a transition period between January 1, 1999
and January 1, 2002. During the transition period, noncash payments can be made
in the Euro, and parties can elect to pay for goods and services and transact
business using either the Euro or a legacy currency. Between January 1, 2002 and
July 1, 2002 the participating countries will introduce Euro notes and coins and
withdraw all legacy currencies, which will no longer be available. The Euro
conversion may affect cross-border competition by creating cross-border price
transparency. We are assessing our pricing/marketing strategy in order to insure
that we remain competitive in a broader European market. We are also assessing
our information technology systems to allow for transactions to take place in
both the legacy currencies and the Euro and the eventual elimination of the
legacy currencies, and reviewing whether certain existing contracts will need to
be modified. Our currency risk and risk management for operations in
participating countries may be reduced as the legacy currencies are converted to
the Euro. Final accounting, tax and governmental legal and regulatory guidance
are not yet available. We will continue to evaluate issues involving
introduction of the Euro. Based on current information and our current
assessment, we do not expect that the Euro conversion will have a material
adverse effect on the Company's business, financial condition or results from
operations.
MARKET RISKS
The Company experiences financial market risks, including changes in interest
rates, foreign currency exchange rates and marketable equity security prices. We
utilize derivative financial instruments to mitigate these risks. We do not use
derivative financial instruments for speculative or trading purposes. The
primary objective of our investment activities is to preserve principal while at
the same time maximizing yields without significantly increasing risk. To
achieve this objective, a majority of our marketable investments are floating
rate and municipal bonds, auction instruments and money market instruments
denominated in U.S. dollars. We hedge currency risks of investments denominated
in foreign currencies with forward currency contracts. Gains and losses on these
foreign currency investments are generally offset by corresponding gains and
losses on the related hedging instruments, resulting in negligible net exposure
to the Company. A substantial portion of our revenue, expense and capital
purchasing activities are transacted in U.S. dollars. However, we do enter into
these transactions in other currencies, primarily European currencies. To
protect against reductions in value and the volatility of future cash flows
caused by changes in foreign exchange rates, we have established hedging
programs. Currency forward contracts are utilized in these hedging programs. Our
hedging programs reduce, but do not always entirely eliminate the impact of
foreign currency exchange rate movements. Actual results on our financial
position may differ materially.
DEPENDENCE ON SOLE AND LIMITED SOURCE SUPPLIERS
We currently obtain various components included in the manufacture of our
products from single or limited source suppliers. A disruption or loss of
supplies from these companies or a price increase for these components would
have a material adverse effect on the Company's results of operations, product
quality and customer relationships. We currently utilize a sole source for the
crystal semiconductor chip sets incorporated in our solid state microlaser
products and acquire our pump diodes for use in its solid state laser products
from Opto Power Corporation and GEC. We also obtain lithium niobate wafers,
gallium arsenide wafers, specialized fiber components and certain lasers used in
its telecommunications products primarily from Crystal Technology, Inc.,
Fujikura, Ltd., Philips Key Modules, and Sumitomo, respectively. We do not have
long-term or volume purchase agreements with any of these suppliers, and the
Company cannot and does not assure that these components will be available in
the quantities required by it, if at all.
LIMITED PROTECTION OF INTELLECTUAL PROPERTY
Our future depends in part upon our intellectual property, including trade
secrets, know-how and continuing technological innovation. The Company cannot
and does not assure that the steps taken by the Company to protect its
intellectual property will adequately prevent misappropriation or that others
will not develop competitive technologies or products. We currently hold 95 U.S.
patents on products or processes and certain corresponding foreign patents and
has applications for certain patents currently pending. Be advised that other
companies may be investigating or developing other technologies that are similar
to the Company's. Moreover, the Company cannot and does not assure that any
patents will be issued from any
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application pending or filed by the Company or that, if patents do issue, the
claims allowed will be sufficiently broad to deter or prohibit others from
marketing similar products. In addition, be advised that any patents issued to
the Company may be challenged, invalidated or circumvented. Further, the Company
cannot and does not assure that the rights under its patents will provide a
competitive advantage to the Company. In addition, the laws of certain
territories in which the Company's products are or may be developed,
manufactured or sold, including Asia, Europe or Latin America, may not protect
the Company's products and intellectual property rights to the same extent as
the laws of the United States.
FUTURE CAPITAL REQUIREMENTS
We are devoting substantial resources for new facilities and equipment for the
production of source lasers, fiber-Bragg gratings and modules used in
telecommunications and for the development of new solid state lasers. Although
we believe existing cash balances, cash flow from operations and available lines
of credit, will be sufficient to meet our capital requirements at least through
the end of fiscal 1999, we may be required to seek additional equity or debt
financing to compete effectively in these markets. We cannot precisely determine
the timing and amount of such capital requirements and will depend on several
factors, including our acquisitions and the demand for our products and products
under development. The Company cannot and does not assure that such additional
financing will be available when needed, or, if available, will be on terms
satisfactory to the Company.
POTENTIAL VOLATILITY OF COMMON STOCK PRICE
The market price of the Company's Common Stock has recently been and is likely
to continue to be highly volatile and significantly affected by factors such as
- fluctuations in our operating results,
- announcements of technological innovations or new products by us or
our competitors,
- governmental regulatory action,
- developments with respect to patents or proprietary rights, and
- general market conditions.
Further, our net revenues or operating results in future quarters may be below
the expectations of public market securities analysts and investors. In such
event, the price of the Company's Common Stock would likely decline, perhaps
substantially. In addition, the stock market has from time to time experienced
significant price and volume fluctuations that are unrelated to the operating
performance of particular companies.
ISSUANCE OF PREFERRED STOCK; POTENTIAL ANTI-TAKEOVER EFFECTS OF DELAWARE LAW
The Board of Directors has the authority to issue up to 900,000 shares of
undesignated Preferred Stock and to determine the powers, preferences and rights
and the qualifications, limitations or restrictions granted to or imposed upon
any wholly unissued shares of undesignated Preferred Stock and to fix the number
of shares constituting any series and the designation of such series, without
the consent of the Company's shareholders. The Preferred Stock could be issued
with voting, liquidation, dividend and other rights superior to those of the
holders of Common Stock. The issuance of Preferred Stock under certain
circumstances could have the effect of delaying, deferring or preventing a
change in control of the Company.
On June 11, 1998, the Board of Directors of the Company authorized and declared
a dividend distribution of one right for each outstanding share of its Common
Stock, to stockholders of record at the close of business on July 6,1998 (the
"Record Date"), and authorized the issuance of one right with each share of
Common Stock issued (including shares distributed from Treasury) by the Company
thereafter between the Record Date and the Distribution Date (as defined below).
Each right entitles the registered holder, subject to the terms of the Rights
Agreement (as defined below), to purchase from the Company one one-thousandth of
a share (a "Unit") of Series B Preferred Stock at a purchase price of $270 per
Unit, subject to adjustment. The purchase price is payable in cash or by
certified or bank check or money order payable to the order of the Company. The
description and terms of the rights are set forth in a Rights Agreement between
the Company and American Stock Transfer & Trust Company, as Rights Agent, dated
as of June 22, 1998, as amended from time to time (the "Rights Agreement").
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Certain provisions contained in the Rights Plan, may have the effect of
discouraging a third party from making an acquisition proposal for the Company
and may thereby inhibit a change in control of the Company. For example, such
provisions may deter tender offers for shares of Common Stock which offers may
be attractive to the stockholders, or deter purchases of large blocks of Common
Stock, thereby limiting the opportunity for stockholders to receive a premium
for their shares of Common Stock over the then-prevailing market prices.
The Company is subject to the provisions of Section 203 of the Delaware General
Corporation Law prohibiting, under certain circumstances, publicly-held Delaware
corporations from engaging in business combinations with certain stockholders
for a specified period of time without the approval of the holders of
substantially all of its outstanding voting stock. Such provisions could delay
or impede the removal of incumbent directors and could make more difficult a
merger, tender offer or proxy contest involving the Company, even if such events
could be beneficial, in the short term, to the interests of the stockholders. In
addition, such provisions could limit the price that certain investors might be
willing to pay in the future for shares of our Common Stock. The Company's
Certificate of Incorporation and Bylaws contain provisions relating to the
limitations of liability and indemnification of its directors and officers,
dividing its Board of Directors into three classes of directors serving
three-year terms and providing that its stockholders can take action only at a
duly called annual or special meeting of stockholders. These provisions also may
have the effect of deterring hostile takeovers or delaying changes in control or
management of the Company.
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SELLING STOCKHOLDERS
The following table provides the names of and the number of shares of Common
Stock beneficially owned by each Selling Stockholder, and the number of shares
of Common Stock beneficially owned by each Selling Stockholder upon completion
of the offering or offerings pursuant to this Prospectus, assuming each Selling
Stockholder offers and sells all of its or his/her respective Shares. Selling
Stockholders may, however, offer and sell all, or some or none of their Shares.
The respective donees, pledgees and transferees or other successors in interest
of the Selling Stockholders may also sell the shares listed below as being held
by the Selling Stockholders. No Selling Stockholder will beneficially own one
percent or greater of the Company's outstanding Common Stock upon the sale of
their shares offered hereby.
BENEFICIAL PERCENTAGE PRIOR
OWNERSHIP PRIOR TO THE BENEFICIAL
TO OFFERING OFFERING(1) OWNERSHIP AFTER
---------------- ---------------- OFFERED THE OFFERING
NUMBER OF SHARES % NUMBER OF SHARES NUMBER OF SHARES
---------------- ---------------- ---------------- ----------------
James Breitmeier ............ 213,515 * 213,515 0
Paul W. Casper .............. 213,515 * 213,515 0
James W. Toy ................ 213,515 * 213,515 0
Donald R. Alford ............ 64,055 * 64,055 0
Whitworth W. Cotton ......... 21,351 * 21,351 0
Marc E. Sawyer .............. 2,847 * 2,847 0
Allen S. Henry .............. 712 * 712 0
* Less than 1%
(1) Percentage of 39,684,309 shares of voting Common Stock, based on shares
outstanding as of January 5, 1999.
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PLAN OF DISTRIBUTION
This Prospectus relates to the offer and sale from time to time by the holders
of up to 729,510 shares of Common Stock. The Shares were issued in connection
with the Merger Agreement. This Prospectus has been prepared in connection with
registering the Shares to allow for sales of Shares by the applicable Selling
Stockholders to the public in accordance with the terms of the Merger Agreement.
The Company has registered the Shares for sale pursuant to the terms of the
Merger Agreement, but registration of such Shares does not necessarily mean that
any of such Shares will be offered and sold by the holders thereof.
The Company will not receive any proceeds from the offering by the Selling
Stockholders. The Shares may be sold from time to time to purchasers directly by
any of the Selling Stockholders, or donees, pledgees, transferees or other
successors in interest ("Transferees") thereof. Alternatively, the Selling
Stockholders, or Transferees thereof, may from time to time offer the Shares
through dealers or agents, who may receive compensation in the form of
commissions from the Selling Stockholders, or Transferees thereof, and/or the
purchasers of Shares for whom they may act as agent. The Selling Stockholders,
or Transferees thereof, and any dealers or agents that participate in the
distribution of Shares may be deemed to be "underwriters" within the meaning of
the Securities Act and any profit on the sale of Shares by them and any
commissions received by any such dealers or agents might be deemed to be
underwriting commissions under the Securities Act.
At a time a particular offer of Shares is made, a Prospectus Supplement, if
required, will be distributed that will set forth the name and names of any
dealers or agents and any commissions and other terms constituting compensation
from the Selling Stockholders, or Transferees thereof, and any other required
information. The Shares may be sold from time to time at varying prices
determined at the time of sale or at negotiated prices.
In order to comply with the securities laws of certain states, if applicable,
the Shares may be sold only through registered or licensed brokers or dealers.
In addition, in certain states, the Shares may not be sold unless they have been
registered or qualified for sale in such state or an exemption from such
registration or qualification requirement is available and is complied with.
The Shares may also be sold in one or more of the following transactions: (a)
block transactions (which may involve crosses) in which a broker-dealer may sell
all or a portion of such stock as agent but may position and resell all or a
portion of the block as principal to facilitate the transaction; (b) purchases
by any such broker-dealer as principal and resale by such broker-dealer for its
own account pursuant to a Prospectus Supplement; (c) ordinary brokerage
transactions and transactions in which any such broker-dealer solicits
purchasers; (d) sales "at the market" to or through a market maker or into an
existing trading market, on an exchange or otherwise, for such shares; and (e)
sales in other ways not involving market makers or established trading markets,
including direct sales to purchasers. In effecting sales, broker-dealers engaged
by the Selling Stockholders may arrange for other broker-dealers to participate.
EXPERTS
The consolidated financial statements of Uniphase Corporation appearing in
Uniphase Corporation's Annual Report on Form 10-K for the year ended June 30,
1998, have been audited by Ernst & Young LLP, independent auditors, as set
forth in their report thereon included therein and incorporated herein by
reference. Such financial statements are incorporated by reference in reliance
upon such report given upon the authority of such firm as experts in accounting
and auditing.
The supplemental consolidated financial statements of Uniphase Corporation
appearing in Uniphase Corporation's Current Report on Form 8-K dated January 7,
1998, have been audited by Ernst & Young LLP, independent auditors, as set
forth in their report thereon included therein and incorporated herein by
reference. Such supplemental consolidated financial statements are incorporated
herein by reference in reliance upon such report given upon the authority of
such firm as experts in accounting and auditing.
The financial statements of Philips Optoelectronics, a Division of Koninklijke
Philips Electronics N.V. included in its Amendment No. 2 to the Current Report
on Form 8-K/A dated August 25, 1998, have been audited by Moret Ernst & Young
Accountants, independent auditors, as set forth in their report thereon included
therein and incorporated herein by reference. Such financial statements are
incorporated by reference in reliance upon such report given upon the authority
of such firm as experts in accounting and auditing.
LEGAL MATTERS
The validity of the issuance of the shares of Common Stock offered pursuant to
this Prospectus will be passed upon for the Company by Morrison & Foerster LLP,
Palo Alto, California.
INTERESTS OF NAMED EXPERTS
Michael C. Philips, a partner with Morrison & Foerster LLP, counsel to the
Company, also serves as a Senior Vice President of the Company.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the estimated fees and expenses payable by the
Company in connection with the issuance and distribution of the Common Stock
registered hereby. All of such fees and expenses are estimates, except the
Securities Act registration fee.
Securities Act Registration Fee............................... $14,284
Printing and duplicating fees................................. 5,000
Legal fees and expenses....................................... 15,000
Accounting fees and expenses.................................. 30,000
Miscellaneous expenses........................................ 5,716
-------
*Total................................................... $70,000
=======
*None of the expenses listed above will be borne by the Selling Stockholders.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The indemnification and liability of the Company's directors and officers are
governed by Delaware law.
Under Section 145 of the General Corporation Law of the State of Delaware, the
Company has broad powers to indemnify its directors and officers against
liabilities that may incur in such capacities, including liabilities under the
Securities Act of 1933, as amended (the "Securities Act"). The Company's Bylaws
also provide for mandatory indemnification of its directors and executive
officers, and permissive indemnification of its employees and agents, to the
fullest extent permissible under Delaware law.
The Company's Certificate of Incorporation provides that the liability of its
directors for monetary damages shall be eliminated to the fullest extent
permissible under Delaware law. Pursuant to Delaware law, this includes
elimination of liability for monetary damages for breach of the directors'
fiduciary duty of care to the Company and its stockholders. These provisions do
not eliminate the directors' duty of care and, in appropriate circumstances,
equitable remedies such as injunctive or other forms of non-monetary relief will
remain available under Delaware law. In addition, each director will continue to
be subject to liability for breach of the director's duty of loyalty to the
Company, for acts of omissions not in good faith or involving intentional
misconduct, for knowing violations of law, for any transaction from which the
director derived an improper personal benefit, and for payment of dividends or
approval of stock repurchases or redemptions that are unlawful under Delaware
law. The provision also does not affect a director's responsibilities under any
other laws, such as the federal securities laws or state or federal
environmental laws.
The Company has entered into agreements with its directors and certain of its
executive officers that require the Company to indemnify such persons against
expenses, judgments, fines, settlements and other amounts actually and
reasonably incurred (including expenses of a derivative action) in connection
with any proceeding, whether actual or threatened, to which any such person may
be made a party by reason of the fact that such person is or was a director or
officer of the Company or any of its affiliated enterprises, provided such
person acted in good faith and in a manner such person reasonably believed to be
in or not opposed to the best interests of the Company and, with respect to any
criminal proceeding, had no reasonable cause to believe his or her conduct was
unlawful. The indemnification agreement also sets forth certain procedures that
will apply in the event of a claim for indemnification thereunder.
The Company has obtained a policy of directors' and officers' liability
insurance that insures the Company's directors and officers against the cost of
defense, settlement or payment of a judgment under certain circumstances.
ITEM 16. EXHIBITS
2.1 - Agreement and Plan of Reorganization by and among Uniphase Corporation,
Phase Acquisition Corporation and Broadband Communications Products,
Inc., dated as of November 23, 1998.
5.1 - Opinion of Morrison & Foerster LLP
23.1 - Consent of Morrison & Foerster LLP (included in Exhibit 5.1)
23.2 - Consent of Ernst & Young LLP, independent auditors
23.3 - Consent of Moret Ernst & Young Accountants, independent auditors
24.1 - Power of Attorney (included on signature page hereto)
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ITEM 17. UNDERTAKINGS
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 of 1933;
(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) any deviation from the low or high and of the estimated
maximum offering price may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate changes in volume and
price represent no more than 20 percent 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 this registration statement or any
material change to such information in this registration statement; provided,
however, that subparagraphs (i) and (ii) do not apply if the information
required to be included in a post-effective amendment by those paragraphs is
contained in the periodic reports filed by the Registrant pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in this registration statement.
(2) That, for the purpose of determining any liability under the Securities Act
of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered herein, 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
these securities being registered which remain unsold at the termination of the
offering.
The undersigned Registrant hereby further undertakes that, for the purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual reports pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, when applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference to this
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.
The undersigned Registrant hereby further undertakes that:
(1) For purposes of determining any liability under the Securities Act of 1933,
the information omitted from the form of prospectus filed as part of this
registration statement in reliance under Rule 430A and contained in a form of
prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4), or 497(h)
under the Securities Act of 1933 shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act of
1933, each post-effective amendment that contains a form of prospectus 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.
Insofar as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions described under Item 15 of this
registration statement, or otherwise (other than insurance), the Registrant has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in such 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 such 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 Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of San Jose, State of California on January 8, 1999.
UNIPHASE CORPORATION
By: /s/ Kevin N. Kalkhoven
-------------------------------------
Kevin N. Kalkhoven
President, Chief Executive Officer
and Chairman of the Board
POWER OF ATTORNEY
The undersigned hereby constitutes and appoints Kevin N. Kalkhoven and
Anthony R. Muller as his/her true and lawful attorneys-in-fact and agents,
jointly and severally, with full power of substitution and resubstitution, for
and in his/her stead, in any and all capacities, to sign on his/her behalf the
Registration Statement on Form S-3 in connection with the sale by Uniphase
Corporation of shares of offered securities, and to execute any amendments
thereto (including post-effective amendments) or certificates that may be
required in connection with this Registration Statement, and to file the same,
with all exhibits thereto, and all other documents in connection therewith, with
the Securities and Exchange Commission and granting unto said attorneys-in-fact
and agents, jointly and severally, the full power and authority to do and
perform each and every act and thing necessary or advisable to all intents and
purposes as he/she might or could do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents, jointly and severally, or his/her
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement on Form S-3 has been signed by the following persons in the capacities
and on the dates indicated:
Signature Title Date
--------- ----- ----
/s/ Kevin N. Kalkhoven President, Chief Executive Officer, Chairman January 8, 1999
----------------------- of the Board and Director (Principal
Kevin N. Kalkhoven Executive Officer)
/s/ Anthony R. Muller Senior Vice President, Chief Financial January 8, 1999
----------------------- Officer and Secretary (Principal Financial
Anthony R. Muller and Accounting Officer)
/s/ Robert C. Fink Director January 8, 1999
-----------------------
Robert C. Fink
/s/ Peter A. Guglielmi Director January 8, 1999
-----------------------
Peter A. Guglielmi
/s/ Stephen C. Johnson Director January 8, 1999
-----------------------
Stephen C. Johnson
/s/ Martin A. Kaplan Director January 8, 1999
-----------------------
Martin A. Kaplan
/s/ Catherine P. Lego Director January 8, 1999
-----------------------
Catherine P. Lego
/s/ Wilson Sibbett Director January 8, 1999
-----------------------
Wilson Sibbett, Ph.D.
/s/ Casimir Skrzypczak Director January 8, 1999
-----------------------
Casimir Skrzypczak
/s/ Willem Haverkamp Director January 8, 1999
-----------------------
Willem Haverkamp
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EXHIBIT INDEX
NO. DESCRIPTION
--- -----------
2.1* - Agreement and Plan of Reorganization by and among Uniphase Corporation,
Phase Acquisition Corporation and Broadband Communications Products,
Inc., dated as of November 23, 1998.
5.1 - Opinion of Morrison & Foerster LLP
23.1 - Consent of Morrison & Foerster LLP (included in Exhibit 5.1)
23.2 - Consent of Ernst & Young LLP, independent auditors
23.3 - Consent of Moret Ernst & Young Accountants, independent auditors
24.1 - Power of Attorney (included on signature page hereto)
* Certain detailed schedules to this agreement have been summarized and will be
made available to the SEC on request.