<PAGE>
As filed with the Securities and Exchange Commission on October 13, 2000
Registration No. 333-
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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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OPLINK COMMUNICATIONS, INC.
(Exact name of registrant as specified in its charter)
Delaware 77-0411346
(State of Incorporation) (I.R.S. Employer Identification No.)
3469 North First Street
San Jose, California 95134
(408) 433-0606
(Address of principal executive offices)
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1995 Stock Plan
1998 Stock Plan
2000 Equity Incentive Plan
2000 Employee Stock Purchase Plan
(Full title of the plans)
Joseph Y. Liu
Chief Executive Officer
Oplink Communications, Inc.
3469 North First Street
San Jose, California 95134
(408) 433-0606
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
----------------------
Copies to:
Matthew W. Sonsini, Esq.
COOLEY GODWARD LLP
Five Palo Alto Square
3000 El Camino Real
Palo Alto, California 94306-2155
(650) 843-5000
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
---------------------------- ------------------------- ------------------------- ------------------------ ------------------------
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES OFFERING AGGREGATE AMOUNT OF
TO BE REGISTERED AMOUNT TO BE REGISTERED PRICE PER SHARE (1) OFFERING PRICE (1) REGISTRATION FEE
---------------------------- ------------------------- ------------------------- ------------------------ ------------------------
<S> <C> <C> <C> <C>
Common Stock, par value
$0.001 per share 51,596,016 $3.03 to $24.91 $681,455,928 $179,905
---------------------------- ------------------------- ------------------------- ------------------------ ------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(h). The price per share and
aggregate offering price are based upon (a) with respect to the shares
subject to outstanding options granted under the Company's 1995 Stock
Plan and 1998 Stock Plan, the weighted average exercise price for such
outstanding options (pursuant to Rule 457(h) under the Securities Act
of 1933, as amended (the "Securities Act")) or (b) for shares available
for future grant or purchase under the Company's 2000 Equity Incentive
Plan and 2000 Employee Stock Purchase Plan, the average of the high and
low prices of the Company's common stock on October 9, 2000, as
reported on the NASDAQ National Market (pursuant to Rule 457(c) under
the Securities Act). The following chart illustrates the calculation of
the registration fee.
The chart below details the calculations of the registration fee:
<TABLE>
<CAPTION>
------------------------------------------------------------------ ------------------------ -------------------- ------------------
OFFERING PRICE PER AGGREGATE
SECURITIES NUMBER OF SHARES SHARE OFFERING PRICE
------------------------------------------------------------------ ------------------------ -------------------- ------------------
<S> <C> <C> <C>
Common stock issuable pursuant to outstanding options under the
1995 Stock Plan and the 1998 Stock Plan for which options have
been granted 27,596,016 $ 3.03 $ 83,615,928
------------------------------------------------------------------ ------------------------ -------------------- ------------------
Common stock issuable pursuant to future grant under the 2000
Equity Incentive Plan 20,000,000 $24.91 $498,200,000
------------------------------------------------------------------ ------------------------ -------------------- ------------------
Common stock available for issuance under the 2000 Employee
Stock Purchase Plan 4,000,000 $24.91 $ 99,640,000
------------------------------------------------------------------ ------------------------ -------------------- ------------------
Total 51,596,016 $681,455,928
------------------------------------------------------------------ ------------------------ -------------------- ------------------
</TABLE>
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3 INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Oplink Communications, Inc. (the
"Company") with the Securities and Exchange Commission are incorporated by
reference into this Registration Statement:
(a) The Company's latest prospectus filed pursuant to Rule 424(b) under the
Securities Act of 1933, as amended (the "Act"), on October 3, 2000.
(b) All other reports filed pursuant to Sections 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") since the end
of the fiscal year covered by the annual reports, the prospectus or the
registration statement referred to in (a) above.
(c) The description of the Company's Common Stock which is contained in a
registration statement filed on October 3, 2000 under the Exchange Act,
including any amendment or report filed for the purpose of updating such
description.
All reports and other documents subsequently filed by the Company 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 have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference herein and to be a part of this
registration statement from the date of the filing of such reports and
documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the Common Stock offered hereby will be passed upon for the
Company by Cooley Godward LLP, Palo Alto, California. As of the date of this
Registration Statement, certain partners and associates of Cooley Godward LLP
hold an option to purchase 150,000 shares of the Company's Common Stock through
investment partnerships.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Section 145 of the Delaware General Corporation Law, the Company has
broad powers to indemnify its directors and officers against liabilities they
may incur in such capacities, including liabilities under the Securities Act.
The Company's Bylaws require the Company to indemnify its directors and
executive officers, and permit the Company to indemnify its other officers,
employees and other agents, to the extent permitted by Delaware law. Under the
Company's Bylaws, indemnified parties are entitled to indemnification to the
fullest extent permitted by law, unless the Company demonstrates clearly and
convincingly that such person acted in bad faith or in a manner that such person
did not believe to be in or not opposed to the best interests of the
corporation. The Bylaws also require the Company to advance litigation expenses
in the case of stockholder derivative actions or other actions, against an
undertaking by the indemnified party to repay such advances if it is ultimately
determined that the indemnified party is not entitled to indemnification.
The Company has entered into indemnity agreements with each of its
directors and executive officers. Such indemnity agreements contain provisions
which are in some respects broader than the specific indemnification provisions
contained in Delaware law.
1.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
<S> <C>
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to this Registration Statement.
24 Power of Attorney is contained on the signature pages.
99.1* 2000 Equity Incentive Plan.
99.2* 2000 Employee Stock Purchase Plan.
99.3 2000 Employee Stock Purchase Plan Offering.
99.4* 1998 Stock Plan.
99.5* 1995 Stock Plan.
</TABLE>
* Filed as an exhibit to the Company's Registration Statement on
Form S-1 (No. 333-41506).
ITEM 9. UNDERTAKINGS
1. The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate offering price
set forth in the "Calculation of Registration Fee" table in the effective
registration statement.
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
PROVIDED, HOWEVER, that paragraphs (a)(i) and (a)(ii) do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the issuer
pursuant to section 13 or section 15(d) of the Exchange Act that are
incorporated by reference herein.
2.
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(b) 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 herein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c) 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. 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 (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 herein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
3. 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.
3.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 October 13,
2000.
OPLINK COMMUNICATIONS, INC.
/s/ Bruce Horn
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By: Bruce Horn
Title: Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Joseph Y. Liu and Bruce Horn, and each
or any one of them, his true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be
done in connection therewith, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their or his substitutes or
substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ Joseph Y. Liu
------------------------------------------------------ Chief Executive Officer October 13, 2000
JOSEPH Y. LIU (Principal Executive Officer)
/s/ Bruce Horn
------------------------------------------------------ Chief Financial Officer (Principal October 13, 2000
BRUCE HORN Financial and Accounting Officer)
/s/ Ian Jenks
------------------------------------------------------ Chairman of the Board October 13, 2000
IAN JENKS
/s/ Terence P. Brown
------------------------------------------------------ Director October 13, 2000
TERENCE P. BROWN
/s/ Chieh Chang
------------------------------------------------------ Director October 13, 2000
CHIEH CHANG
/s/ Herbert Chang
------------------------------------------------------ Director October 13, 2000
HERBERT CHANG
/s/ Leonard J. Leblanc
------------------------------------------------------ Director October 13, 2000
LEONARD J. LEBLANC
/s/ David Spreng
------------------------------------------------------ Director October 13, 2000
DAVID SPRENG
</TABLE>
4.
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
<S> <C>
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Independent Accountants.
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to this Registration Statement.
24 Power of Attorney is contained on the signature pages.
99.1* 2000 Equity Incentive Plan.
99.2* 2000 Employee Stock Purchase Plan.
99.3 2000 Employee Stock Purchase Plan Offering.
99.4* 1998 Stock Plan.
99.5* 1995 Stock Plan.
</TABLE>
* Filed as an exhibit to the Company's Registration Statement on
Form S-1 (No. 333-41506).
5.
