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As filed with the Securities and Exchange Commission on February 14, 2001
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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JDS UNIPHASE CORPORATION
(Exact name of registrant as specified in its charter)
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DELAWARE 94-2579683
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
210 BAYPOINTE PARKWAY
SAN JOSE, CALIFORNIA 95134
(Address of registrant's principal executive offices)
SDL, Inc. 1992 Stock Option Plan
SDL, Inc. 1995 Stock Option Plan
(Full title of the plans)
Michael C. Phillips, Esq.
Senior Vice President, Business Development and
General Counsel
JDS Uniphase Corporation
210 Baypointe Parkway
San Jose, California 95134
(408) 434-1800
(Name, address and telephone number, including area code, of agent for service)
WITH A COPY SENT TO:
John W. Campbell, III, Esq.
P. Rupert Russell, Esq.
Morrison & Foerster LLP
425 Market Street
San Francisco, California 94105-2482
(415) 268-7000
CALCULATION OF REGISTRATION FEE
- ------------------------------- ---------------- ------------------------- -------------------- ----------------------
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED (1) SHARE (2) PRICE (2) REGISTRATION FEE (4)
- ------------------------------- ---------------- ------------------------- -------------------- ----------------------
SDL, Inc. 1992 Stock Option 1,600,000 $0.0884(3) $141,440(3) $35
Plan
Common Stock ($.001 par value)
- ------------------------------- ---------------- ------------------------- -------------------- ----------------------
SDL, Inc. 1995 Stock Option 40,610,000 $34.4641(3) $1,399,587,101(3) $349,897
Plan
Common Stock ($.001 par value)
- ------------------------------- ---------------- ------------------------- -------------------- ----------------------
TOTAL 42,210,000 $1,399,728,541(3) $349,932(4)
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(1) Pursuant to the Agreement and Plan of Merger (the "Merger Agreement") dated
as of July 9, 2000 by and among JDS Uniphase Corporation, K2 Acquisition,
Inc. and SDL, Inc., JDS Uniphase Corporation assumed all of the outstanding
options to purchase Common Stock of SDL, Inc. under the plans referred to
above, and such options become exercisable to purchase shares of JDS
Uniphase Corporation Common Stock, with appropriate adjustments to the
number of shares and exercise price of each assumed option in accordance
with the Merger Agreement.
(2) Estimated solely for purposes of calculating the registration fee in
accordance with Rule 457(h) under the Securities Act of 1933, as amended
(the "Securities Act").
(3) Computation based upon the fixed exercise prices of the options, all of
which were previously granted and as converted pursuant to the terms of the
Merger Agreement.
(4) Pursuant to Rule 457(b) under the Securities Act, $335,415 of the
registration fee is offset by the filing fees previously paid in connection
with the filing of the Registrant's Registration Statement on Form S-4, as
amended, on September 7, 2000, November 17, 2000 and February 12, 2001. The
fees paid for those filings included 14,140,332 shares to be issued
pursuant to the exercise of SDL, Inc. options which accounted for $335,415
of the $9,129,974 aggregate filing fee. Accordingly, a fee of $14,517 is
being paid herewith.
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EXPLANATORY NOTE
This Registration Statement has been prepared in accordance with the
requirements of Form S-8 under the Securities Act of 1933, as amended ("the
Securities Act") to register 42,210,000 shares of Common Stock of JDS Uniphase
Corporation, a Delaware corporation (the "Registrant"), issuable to eligible
employees, directors, consultants and advisors under certain employee benefit
plans assumed by Registrant upon the merger of Registrant's wholly owned
subsidiary, K2 Acquisition, Inc., a Delaware corporation, with and into SDL,
Inc., a Delaware corporation. The plans were previously obligations of SDL, Inc.
and its subsidiaries.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The information required by Part I of Form S-8 is included in documents
sent or given to participants in the plans specified on the cover page of 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 Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and in accordance therewith files reports, proxy
statements and other information with the Securities and Exchange Commission
(the "Commission"). The following documents, which are filed with the
Commission, are incorporated in this Registration Statement by reference:
(a) The Registrant's Annual Report on Form 10-K, as amended, for the
fiscal year ended June 30, 2000 filed pursuant to Section 13(a) or
15(d) of the Exchange Act, containing audited financial statements for
the Registrant's latest fiscal year for which such statements have
been filed.
(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 Annual
Report covered in (a) above.
(c) The description of the Common Stock of the Registrant, $.001 par value
per share ("Common Stock"), contained in Registrant's Registration
Statement on Form 8-A, filed pursuant to Section 12(g) of the Exchange
Act, including any amendment or report filed for the purpose of
updating such description.
All documents filed or 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 described herein
have been sold or which deregisters all securities then remaining unsold, are
incorporated by reference.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Reference is made to Section 102(b)(7) of the Delaware General Corporation
Law (the "DGCL"), which permits a corporation in its certificate of
incorporation or an amendment thereto to eliminate or limit the personal
liability of a director for violations of the director's fiduciary duty, except
(1) for any breach of the director's fiduciary duty of loyalty to the
corporation or its stockholders, (2) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (3) pursuant
to Section 174 of the DGCL (providing for liability of directors for unlawful
payment of dividends or unlawful stock purchases or redemptions), or (4) for any
transaction from which the director derived an improper personal benefit. The
Registrant's Certificate of Incorporation contains provisions permitted by
Section 102(b)(7) of the DGCL.
Reference is made to Section 145 of the DGCL which provides that a
corporation may indemnify any persons, including directors and officers, who
are, or are threatened to be made, parties to any threatened, pending or
completed legal action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of such
corporation), by reason of the fact that such person is or was a director,
officer, employee or agent of such corporation, or is or was serving at the
request of such corporation as a director, officer, employee or agent of another
corporation or enterprise. The indemnity may include expenses (including
attorney's fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding, provided such director, officer, employee or agent acted in good
faith and in a manner he reasonably believed to be in or not opposed to the
corporation's best interests and, with respect to any criminal actions or
proceedings, had no reasonable cause to believe that his conduct was unlawful. A
Delaware corporation may indemnify directors and/or officers in an action or
suit by or in the right of the corporation under the same conditions, except
that no indemnification is permitted without judicial approval if the director
or officer is adjudged to be liable to the corporation. Where a director or
officer is successful on the merits or otherwise in the defense of any action
referred to above, the corporation must indemnify him or her against the
expenses which such director or officer actually and reasonably incurred.
The Registrant's Restated Certificate of Incorporation provides
indemnification of directors and officers of the Registrant to the fullest
extent permitted by the DGCL. The Registrant has obtained liability insurance
for each director and officer of the Registrant for certain losses arising from
claims or charges made against them while acting in their capacities as
directors or officers of the Registrant.
The above discussion of the Registrant's Restated Certificate of
Incorporation and Sections 102(b)(7) and 145 of the DGCL is not intended to be
exhaustive and is qualified in its entirety by such Certificate of Incorporation
and statutes.
For information regarding the Registrant's undertaking to submit to
adjudication the issue of indemnification for violation of the securities laws,
see Item 9 below.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The Exhibit Index immediately preceding the exhibits is incorporated herein
by reference.
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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 this 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. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of the 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 20 percent
change in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table herein; 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 this Registration Statement;
Provided, however, that paragraphs (i) and (ii) do not apply if this
Registration Statement is on Form S-3 or Form S-8, and 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 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 post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) 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 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to 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.
(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 that 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 Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of San Jose, State of California, on February 14, 2001.
JDS UNIPHASE CORPORATION
By /s/ Jozef Straus, Ph.D.
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Jozef Straus, Ph.D., Co-Chairman of
the Board of Directors and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints and hereby authorizes Jozef Straus, Ph.D. and
Anthony R. Muller, severally, such person's true and lawful attorneys-in-fact,
with full power of substitution or resubstitution, for such person and in such
person's name, place and stead, in any and all capacities, to sign on such
person's behalf, individually and in each capacity stated below, any and all
amendments, including post-effective amendments to this Registration Statement,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact, full power and authority to do and perform each and
every act and thing requisite or necessary to be done in and about the premises,
as fully to all intents and purposes as such person might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact, or their
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 has been signed by the following persons in the
capacities and on the dates indicated.
Name and Signatures Title Date
- ------------------- ----- ----
/s/ Jozef Straus, Ph.D. Chief Executive Officer and Co-Chairman of February 14, 2001
- ------------------------- the Board of Directors (Principal Executive
Jozef Straus, Ph.D. Officer)
Co-Chairman of the Board of Directors February 14, 2001
- ------------------------- and President of the Actives Group
Donald R. Scifres, Ph.D.
/s/ Martin A. Kaplan Co-Chairman of the Board of Directors February 14, 2001
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Martin A. Kaplan
President, Chief Operating Officer February 14, 2001
- ------------------------- and Director
Charles J. Abbe
/s/ Anthony R. Muller Executive Vice President, Chief Financial February 14, 2001
- ------------------------- Officer and Secretary (Principal Financial
Anthony R. Muller and Accounting Officer)
/s/ Bruce D. Day Director February 14, 2001
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Bruce D. Day
/s/ Peter A. Guglielmi Director February 14, 2001
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Peter A. Guglielmi
/s/ Robert E. Enos Director February 14, 2001
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Robert E. Enos
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/s/ John A. MacNaughton Director February 14, 2001
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John A. MacNaughton
/s/ Wilson Sibbett, Ph.D. Director February 14, 2001
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Wilson Sibbett, Ph.D.
/s/ Casimir S. Skrzypczak Director February 14, 2001
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Casimir S. Skrzypczak
/s/ William J. Sinclair Director February 14, 2001
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William J. Sinclair
/s/ Donald J. Listwin Director February 14, 2001
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Donald J. Listwin
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
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5.1 Opinion of Morrison & Foerster LLP
23.1 Consent of Morrison & Foerster LLP (set forth in Exhibit 5.1)
23.2 Consent of Ernst & Young LLP, independent auditors
24.1 Power of Attorney (included on signature page of this Registration Statement)