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As filed with the Securities and Exchange Commission on February 5, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
E-TEK DYNAMICS, INC.
(Exact name of Registrant as specified in its charter)
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<S> <C> <C>
1865 Lundy Avenue 59-2337308
Delaware San Jose, California 95131 (I.R.S. Employer Identification No.)
(State of Incorporation)
</TABLE>
(Address, including zip code, of Registrant's principal executive offices)
1997 EQUITY INCENTIVE PLAN
1997 EXECUTIVE EQUITY INCENTIVE PLAN
1998 STOCK PLAN
1998 DIRECTOR OPTION PLAN
1998 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
William N. Gerson, Esq.
General Counsel
E-Tek Dynamics, Inc.
1865 Lundy Avenue
San Jose, California 95131
(408) 546-5000
_____________
(Name, address, and telephone number, including area code, of agent for service)
Copy to:
Aaron J. Alter, Esq.
Wilson, Sonsini, Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304
(650) 493-9300
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Amount Maximum Maximum Amount of
Title of Securities to to be Offering Price Per Aggregate Registration
be Registered Registered Share Offering Price Fee
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.001 par value 11,568,769 shares (1)(2) $30.00 (3) $232,372,397 (3) $64,600
========================================================================================================================
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(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable by reason of any stock dividend, stock
split, recapitalization or other similar transaction effected without the
receipt of consideration which results in an increase in the number of the
outstanding shares of Common Stock.
(2) Includes 4,347,575, 419,445, 5,801,749, 250,000 and 750,000 shares of
Common Stock issuable under the 1997 Equity Plan, 1997 Executive Equity
Incentive Plan, 1998 Stock Plan, 1998 Director Option Plan and 1998
Employee Stock Purchase Plan, respectively.
(3) The Proposed Maximum Offering Price Per Share represents a weighted average
of the following estimates calculated in accordance with Rules 457(c) and
457(h) under the Securities Act of 1933, as amended (the "Securities Act").
With respect to 4,988,720 shares subject to outstanding options to purchase
Common Stock under the plans described above (collectively, the "Plans"),
the Proposed Maximum Offering Price Per Share is equal to the weighted
average exercise price of $7.01 per share pursuant to Rule 457(h) under the
Securities Act. With respect to 6,580,049 shares of Common Stock available
for future grant under the Plans, the estimated Proposed Maximum Offering
Price Per Share was estimated pursuant to Rule 457(c) under the Securities
Act whereby the per share price is the average between the high and low
price reported on the Nasdaq National Market on February 3, 1999, which
average was $30.00.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
There are hereby incorporated by reference into this Registration Statement
and into the Prospectuses relating to this Registration Statement pursuant to
Rule 428 the following documents and information heretofore filed with the
Securities and Exchange Commission (the "Commission"):
1. The Registrant's Prospectus, filed with the Commission on December 2,
1998, pursuant to Rule 424(b) promulgated under the Securities Act of 1933, as
amended (the "Securities Act").
2. The description of Registrant's Common Stock contained in Registrant's
Registration Statement on Form 8-A filed with the Commission on November 24,
1998.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act after the date hereof, and prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which registers all securities then remaining unsold, shall be
deemed to be incorporated by reference herein and to be part hereof from the
date of filing of such documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
As permitted by Section 145 of the Delaware General Corporation Law
(the "DGCL"), the Registrant's Certificate of Incorporation provides that each
person who is or was or who had agreed to become a director or officer of the
Registrant or who had agreed at the request of the Registrant's Board of
Directors or an officer of the Registrant to serve as an employee or agent of
the Registrant or as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, shall be
indemnified by the Registrant to the full extent permitted by the DGCL or any
other applicable laws. Such Certificate of Incorporation also provides that the
Registrant may enter into one or more agreements with any person which provides
for indemnification greater or different than that provided in such Certificate,
and that no amendment or repeal of such Certificate shall apply to or have any
effect on the right to indemnification permitted or authorized thereunder for or
with respect to claims asserted before or after such amendment or repeal arising
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from acts or omissions occurring in whole or in part before the effective date
of such amendment or repeal.
The Registrant's Bylaws provide that the Registrant shall indemnify to the
full extent authorized by law any person made or threatened to be made a party
to an action or a proceeding, whether criminal, civil, administrative or
investigative, by reason of the fact that he, his testator or intestate was or
is a director, officer or employee of the Registrant or any predecessor of the
Registrant or serves or served any other enterprise as a director, officer or
employee at the request of the Registrant or any predecessor of the Registrant.
The Registrant has entered into an indemnification agreement with each of
its directors and certain of its officers.
The Registrant intends to purchase and maintain insurance on behalf of any
person who is a director or officer against any loss arising from any claim
asserted against him and incurred by him in any such capacity, subject to
certain exclusions.
Item 7. Exemption from Registration Claimed
Not applicable.
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Item 8. Exhibits
Exhibit
Number Document
- ------- ------------------------------------------------------------
4.1* Registrant's 1997 Equity Incentive Plan
4.2* Registrant's 1997 Executive Equity Incentive Plan
4.3* Registrant's 1998 Stock Plan
4.4* Registrant's 1998 Director Option Plan
4.5* Registrant's 1998 Employee Stock Purchase Plan
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation
("WSGR"), as to legality of securities being registered
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of WSGR (contained in Exhibit 5.1)
24 Power of Attorney (see page 6)
______________________
(*) Previously filed as an exhibit to Registrant's Registration Statement on
Form S-1 (File No. 333-61763), declared effective December 1, 1998.
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 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.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, as amended (the "Securities Act"), each such post-
effective amendment shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(b) 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
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Section 15(d) of the Securities Exchange Act of 1934 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 items described in Item 6 of Part II of this
Registration Statement, or otherwise, the Registrant has been advised that in
the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant,
E-Tek Dynamics, Inc., 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
the 5th day of February, 1999.
E-Tek Dynamics, Inc.
By: /s/ William N. Gerson
------------------------------
William N. Gerson
General Counsel
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Sanjay Subhedar and William N. Gerson and each of
them, acting individually, as his attorney-in-fact, with full power of
substitution, for him and in any and all capacities, to sign any and all
amendments to this Registration Statement (including post-effective amendments)
and to file the same, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, hereby
ratifying and confirming our signatures as they may be signed by our said
attorney to any and all amendments to the Registration Statement.
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.
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Signature Title Date
<S> <C> <C>
/s/ Michael J. Fitzpatrick President, Chief Executive February 1, 1999
- ----------------------------- Officer and Director (Principal
Michael J. Fitzpatrick Executive Officer)
/s/ Sanjay Subhedar Senior Vice President, Operations February 1, 1999
- ----------------------------- Chief Financial Officer and
Sanjay Subhedar Secretary (Principal Financial and
Accounting Officer)
/s/ Walter G. Kortschak Chairman of the Board of Directors February 2, 1999
- -----------------------------
Walter G. Kortschak
_____________________________ Director __________, 1999
David Dorman
/s/ Joseph W. Goodman Director February 2, 1999
- -----------------------------
Joseph W. Goodman
/s/ Donald J. Listwin Director February 2, 1999
- -----------------------------
Donald J. Listwin
/s/ Peter Y. Chung Director February 2, 1999
- -----------------------------
Peter Y. Chung
</TABLE>
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INDEX TO EXHIBITS
Exhibit
Number Document
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4.1* Registrant's 1997 Equity Incentive Plan
4.2* Registrant's 1997 Executive Equity Incentive Plan
4.3* Registrant's 1998 Stock Plan
4.4* Registrant's 1998 Director Option Plan
4.5* Registrant's 1998 Employee Stock Purchase Plan
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation
("WSGR"), as to legality of securities being registered
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of WSGR (contained in Exhibit 5.1)
24 Power of Attorney (see page 6)
______________________
(*) Previously filed as an exhibit to Registrant's Registration Statement on
Form S-1 (File No. 333-61763), declared effective December 1, 1998.
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Exhibit 5.1
February 3, 1999
E-Tek Dynamics, Inc.
1865 Lundy Avenue
San Jose, California 95131
Re: Registration Statement on Form S-8
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Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by you
with the Securities and Exchange Commission on or about February 5, 1999 (the
"Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended (the "Securities Act"), of 11,568,769 shares
of your Common Stock reserved for issuance under your 1997 Equity Incentive
Plan, 1997 Executive Equity Incentive Plan, 1998 Stock Plan, 1998 Director Stock
Plan and 1998 Employee Stock Purchase Plan (collectively, the "Plans"). As your
legal counsel, we have examined the proceedings taken and are familiar with the
proceedings proposed to be taken by you in connection with the sale and issuance
of such Common Stock under the Plans.
It is our opinion that, when issued and sold in the manner referred to in
the Plans and pursuant to the agreements which accompany the Plans, the Common
Stock issued and sold thereby will be legally and validly issued, fully paid and
non-assessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement, and further consent to the use of our name wherever appearing in the
Registration Statement, including any Prospectuses constituting a part thereof,
and any amendments thereto. This opinion may be incorporated by reference in
any abbreviated registration statement filed pursuant to Item E under the
General Instructions to Form S-8 under the Securities Act with respect to the
Registration Statement.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ Wilson Sonsini Goodrich & Rosati
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Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 of E-Tek Dynamics, Inc. of our report dated July 28, 1998,
except as to Note 8 and 12 which were dated August 14, 1998, which appears on
page F-2 of the Registration Statement on Form S-1 (No. 333-61763) declared
effective on December 1, 1998.
/s/ PricewaterhouseCoopers LLP
San Jose, California
February 5, 1999
