<PAGE>
As filed with the Securities and Exchange Commission on March 26, 1999
Registration No. 333-______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
(Including shares for resale by means of a Form S-3 Prospectus)
E-TEK DYNAMICS, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Delaware 1865 Lundy Avenue 59-2337308
(State of Incorporation) San Jose, California 95131 (I.R.S. Employer Identification No.)
(Address, including zip code, of
Registrant's principal executive offices)
</TABLE>
1997 EQUITY INCENTIVE PLAN
1997 EXECUTIVE EQUITY INCENTIVE 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
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===============================================================================================================
<S> <C> <C> <C> <C> <C>
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
- ---------------------------------------------------------------------------------------------------------------
Common Stock, $.001 par value 5,816,666 shares (1)(2) $32.46875 (3) $188,859,874(3) $52,503
===============================================================================================================
</TABLE>
<PAGE>
(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 1,791,666 and 4,025,000 shares of Common Stock issued under the
1997 Equity Incentive Plan and 1997 Executive Equity Incentive Plan,
respectively.
(3) 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 March 19, 1999, which average was
$32.46875.
PAGE 1
<PAGE>
E-TEK DYNAMICS, INC.
RESALE PROSPECTUS
UP TO 5,816,666 SHARES OF COMMON STOCK
WHICH THE SELLING STOCKHOLDERS MAY RESELL UNDER THIS PROSPECTUS
--------------------------------------
The stockholders of E-TEK Dynamics, Inc. listed below may offer and resell up to
5,816,666 shares of E-TEK Dynamics common stock under this prospectus, for their
own accounts. E-TEK Dynamics will not receive any proceeds from the sale of the
shares.
We issued these shares to the selling stockholders under E-TEK Dynamics' 1997
Equity Incentive Plan and 1997 Executive Equity Incentive Plan.
The selling stockholders may offer their E-TEK Dynamics common stock through
public or private transactions, at prevailing market prices or at privately
negotiated prices. Such future prices are not currently known.
See "Risk Factors" beginning on page 4 for certain considerations relevant to an
investment in our common stock.
You should rely only on the information contained in this prospectus. We have
not authorized anyone to provide you with information different from that
contained in this prospectus. The selling stockholders are offering to sell, and
seeking offers to buy, shares of E-TEK Dynamics common stock only in
jurisdictions where offers and sales are permitted. The information contained in
this prospectus is accurate as of the date of this prospectus, regardless of the
time of delivery of this prospectus or any sale of the shares. E-TEK Dynamics'
common stock is quoted on the Nasdaq National Market under the symbol "ETEK."
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
--------------------
The date of this prospectus is March 26, 1999
PAGE 2
<PAGE>
TABLE OF CONTENTS
Page
----
E-TEK Dynamics ............................................................ 3
Forward-Looking Statements ................................................ 3
Risk Factors .............................................................. 4
Selling Stockholders ...................................................... 9
Plan of Distribution ...................................................... 11
Information Incorporated by Reference ..................................... 12
Where to Find More Information About E-TEK Dynamics ....................... 13
Indemnification and the SEC's Position on Enforceability................... 13
E-TEK DYNAMICS, INC.
E-TEK Dynamics, Inc. is a leader in the design, packaging and manufacturing of
high quality passive components and modules for fiber optic networks. We offer a
broad product line and believe we have a leading share in markets for several
key passive components required by telecommunications equipment manufacturers.
E-TEK Dynamics is focused on delivering high performance and reliable optical
components for applications which include wavelength division multiplexing and
optical amplifiers. Our products are designed for the established terrestrial
and submarine long-haul markets as well as emerging short-haul markets, such as
metropolitan area networks. Our customers include telecommunications equipment
manufacturers such as Alcatel, CIENA, Corning, Lucent, Nortel and Pirelli. Our
principal executive offices are located at 1865 Lundy Avenue, San Jose,
California 95131. The telephone number at that location is (408) 546-5000.
References to "we" and "our" in this prospectus refer to E-TEK Dynamics rather
than to the selling stockholders.
FORWARD-LOOKING STATEMENTS
This prospectus and the documents it incorporates by reference contain
forward-looking statements. We base these statements on our current
expectations, estimates and projections about our industry. Either the beliefs
of management, or assumptions made by management, form the basis for those
expectations, estimates and projections. The safe harbor created by Section 27A
of the Securities Act of 1933, as amended (the "Securities Act") and Section 21E
of the Securities Exchange Act of 1934, as amended (the "Exchange Act")
generally protects E-TEK Dynamics and the selling stockholders from liability
for these statements. You can often recognize such forward-looking statements by
words such as "anticipates," "expects," "intends," "plans," "believes," "seeks,"
"estimates," variations of such words, and similar expressions.
PAGE 3
These forward-looking statements do not guarantee future performance and are
subject to risks, uncertainties and assumptions that are difficult to predict.
The Risk Factors section in this prospectus and in the documents incorporated by
reference set forth some of those risks and uncertainties. These risks and
uncertainties could cause actual results to differ materially and adversely from
those discussed in the forward-looking statements. E-TEK Dynamics undertakes no
obligation to publicly update any of these forward-looking statements to reflect
new information or future events.
RISK FACTORS
We Depend on a Limited Number of Major Customers
The telecommunications equipment industry is dominated by a small number of
large companies and is currently consolidating. Consolidation reduces the number
of potential customers in the industry. The loss of one or more of our largest
customers, any reduction or delay in sales to these customers, our inability to
successfully develop relationships with additional customers, or any further
price reductions could have a material adverse effect on our business, financial
condition and results of operations.
<PAGE>
Our Quarterly and Annual Results May Fluctuate and Our Results May Vary by
Season
Our net revenues and operating results have in the past varied and may in the
future vary significantly from quarter to quarter and from year to year as a
result of the size and timing of customer orders, the ability to obtain
sufficient supplies of sole or limited source materials for our products, the
ability to manufacture products on a timely basis, pricing pressure, customer
requirements, and changes in the product mix, among other factors. Refusal of
customers to accept shipped products, returns of products or difficulties in
collecting accounts receivable could result in significant charges against
income, which could have a material adverse effect on our business, financial
condition and results of operations.
We Depend on a Limited Number of Product Lines
A small number of products have historically accounted for a majority of our net
revenues. We may not be successful in developing any other products or taking
other steps to mitigate the risks associated with reduced demand for our
existing products. Reduced demand for our existing products would have a
material adverse effect on our business, financial condition and results of
operations.
We Depend on the Success of the Telecommunications Industry
Our future success depends on the continued growth and success of the
telecommunications industry. This industry is changing rapidly as
telecommunication markets around the world deregulate and open to global
competition. Globalization, deregulation and other trends causing
PAGE 4
an increase in the need for bandwidth that are currently driving
growth in the telecommunications industry may not continue in a manner
that is favorable to us.
Our Sales Process is Long And Unpredictable
The period of time between our initial contact with a customer and the receipt
of an actual purchase order may span a year or more. In addition, customers
perform, and require us to perform, extensive product evaluation and testing of
new components before purchasing them. Reduction or termination of customer
purchasing programs, decreases in purchased volumes or reductions in the
purchasing of certain components, particularly if unanticipated by us, could
have a material adverse effect on our business, financial condition and results
of operations.
There has been a Decline In Prices of our Products
The fiber optic component industry is very competitive and is characterized by
declining prices resulting from factors such as increased competition and
greater unit volumes as telecommunication service providers continue to deploy
fiber optic networks. If we are unable to continue to develop and introduce on a
timely basis new products that incorporate features that can be sold at higher
prices, as well as reduce our manufacturing costs, there is a risk that our net
revenues and gross margins could decline, which could have a material adverse
effect on our business, financial condition and results of operations.
<PAGE>
We Face Intense Competition and We May Compete with our Customers
The market for fiber optic components is intensely competitive. Many of our
current and potential competitors and customers have significantly greater
financial, technical, marketing, purchasing and other resources than we have,
and as a result, may be able to respond more quickly to new or emerging
technologies or standards and to changes in customer requirements, to devote
greater resources to the development, promotion and sale of products, or to
deliver competitive products at lower prices. In addition, consolidation in the
fiber optic component industry could intensify the competitive pressures faced
by us. For example, two of our competitors, JDS Fitel, Inc. and Uniphase Corp.,
have recently announced their plan to merge. Many of our competitors manufacture
their products in countries offering significantly lower labor costs than in the
United States. In addition, some of our customers have fiber optic component
manufacturing capabilities, which may represent further competition if those
customers choose to manufacture products internally that they formerly purchased
from us. We may not be able to compete successfully with our existing or new
competitors.
<PAGE>
We Need to Expand Our Manufacturing and Corporate Facilities In Order to
Support Our Operations
We currently manufacture the majority of our products at our facilities in San
Jose, California. We are in the process of increasing our manufacturing capacity
at these facilities and additional facilities as well as adding overseas
manufacturing capacity through a joint venture in Taiwan. The
PAGE 5
development of overseas manufacturing capabilities and the expansion of
corporate facilities involve significant risks, including unanticipated cost
increases, unavailability or late delivery of equipment, unforeseen
environmental or engineering problems, personnel recruitment delays, political
instability, weather interference, any of which could have a material adverse
effect on the start up or operation of new facilities. Our manufacturing and
corporate expansion and related capital expenditures are being made in
anticipation of a level of customer orders that may not be sustained over
multiple quarters, if at all. If anticipated levels of customer orders are not
received, we will not be able reduce our expenses quickly enough to prevent a
decline in our gross margins and operating income. Such decline could have a
material adverse effect on our business, financial condition and results of
operations. Conversely, in the event our plans to expand our manufacturing
capacity are not implemented on a timely basis, we could face production
capacity constraints, which could have a material adverse effect on our
business, financial condition and results of operations.
We Depend on a Limited Number of Suppliers
We are dependent on a limited number of suppliers of materials for our products
as well as equipment used to manufacture our products. Some of our suppliers are
sole sources. The reliance on a sole or limited number of suppliers could result
in reduced control over pricing, quality and or delivery problems. Any future
difficulty in obtaining sufficient and timely delivery of materials could result
in delays or reductions in product shipments, cancellation of orders and loss of
future business, which could have a material adverse affect on our business,
financial condition and results of operations.
We Depend on Sales Representatives, Distributors and Key Employees
We sell substantially all of our products through a network of sales
representatives and distributors, the majority of whom have exclusive rights to
sell our products in certain territories. There is a risk that our sales
representatives and distributors may discontinue sales of our products in order
to switch to representing one or more of our competitors. The loss of, or
reduction in sales made by, any of our key sales representatives or distributors
could have a material adverse effect on our business, financial condition or
results of operations. Our success is dependent, in large part, on the long-term
effectiveness of our executive officers and their continued service to E-TEK
Dynamics. Our success will also depend in large part upon our ability to attract
and retain highly-skilled technical, managerial, sales and marketing personnel,
particularly those skilled and experienced with fiber optics. The loss of the
services of such key personnel could have a material adverse effect on our
business, financial condition and results of operations.
We Face Technological Change and the Uncertainty of Introducing New Products
We expect that new technologies will emerge as competition in the
telecommunications equipment industry increases and the need for higher and more
cost efficient bandwidth expands. The introduction of new products incorporating
new technologies or the emergence of new industry standards could make our
existing products uncompetitive, obsolete or unmarketable. Products as
PAGE 6
complex as those offered by us may contain defects when first introduced or as
new versions are released and new products often take longer to develop than
originally anticipated. We may not be able to identify, develop, manufacture,
market or support new or enhanced products successfully or on a timely basis,
our new products may not gain market acceptance and we may not be able to
respond effectively to product announcements by competitors, technological
changes or emerging industry standards.
<PAGE>
We Face Risks from International Operations
We generate a significant portion of our net revenues from sales to companies
located outside the United States, principally in Europe. As a result, a
significant portion of our sales and operations may be subject to government
controls, export licensing requirements and restrictions, tariffs and other
trade barriers, slower cash collections, exchange controls and potential adverse
tax consequences. Currently, all of our international sales are U.S. dollar
denominated. As a result, our operating results could fluctuate significantly
based upon changes in the exchange rates of certain currencies in relation to
the U.S. dollar.
<PAGE>
If We Cannot Protect or Enforce Our Intellectual Property Rights, our
Competitive Position may be Impaired
Our success will depend, in part, on our ability to protect our intellectual
property. E-TEK Dynamics relies primarily on patent, copyright, trademark and
trade secret laws, as well as nondisclosure agreements and other methods to
protect our proprietary technologies and processes. Such measures may not
provide meaningful protection for our proprietary technologies and processes.
Despite reasonable precautions, it may be possible for a third party to copy or
otherwise obtain and use our products or technology without authorization,
develop similar technology independently or design around our patents. The steps
taken by us to prevent misappropriation or infringement of the intellectual
property of ours or of our customers may not be successful. The
telecommunications equipment industry is characterized by vigorous protection
and pursuit of intellectual property rights, and we have also entered into
certain indemnification obligations in favor of our customers and strategic
partners that could be triggered upon an allegation or finding of our
infringement of other parties' proprietary rights. We have in the past received
notifications alleging that we are infringing the intellectual property rights
of third parties. Irrespective of the validity or successful assertion of such
claims, we would likely incur significant costs and diversion of our resources
with respect to the defense of such claims, which could also have a material
adverse effect on our business, financial condition and results of operations.
Our Results May be Affected by Potential Acquisitions and Strategic
Investments
We expect to review acquisition and strategic investment prospects that would
complement our existing product offerings, augment our market coverage, secure
supplies of critical materials or enhance our technological capabilities. Future
acquisitions or investments by us, including an increase in ownership interests
in joint ventures, could result in potentially dilutive issuances of
PAGE 7
equity securities, large one-time write-offs, the incurrence of debt and
contingent liabilities and amortization expenses related to goodwill and other
intangible assets. Furthermore, acquisitions involve numerous risks, including
difficulties in the assimilation of operations, personnel, technologies,
products and the information systems of the acquired companies, diversion of
management's attention from other business concerns, the diversion of resources
from our existing businesses, products or technologies, risks of entering
geographic and business markets in which we have no or limited prior experience
and the potential loss of key employees of acquired organizations. A failure by
us to successfully integrate any businesses, products, technologies or personnel
that might be acquired in the future, could also have a material adverse affect
on our business, financial condition and results of operations. We Face
Environmental and Disaster Risks
We own our headquarter facilities and lease facilities in San Jose. We handle
small amounts of hazardous materials as part of our manufacturing activities.
Although we believe that we have complied with all applicable environmental
regulations in connection with our operations, we may be required to undertake
environmental remediation in order to comply with current or future
environmental laws. The cost of any remedial actions or the paying of penalties
or damages for environmental matters, regardless of fault, could have a material
adverse effect on our business, financial condition and results of operations.
Our facilities are susceptible to damage from earthquakes as well as from fire,
floods, power loss, telecommunications failures and similar events. The
occurrence of any of these events could significantly disrupt our operations,
and could have a material adverse effect on our business, financial condition
and results of operations.
<PAGE>
We Face Risks Concerning Year 2000 Compliance
We rely on systems, applications and control devices in operating and monitoring
all major aspects of our business. We recently installed new Enterprise Resource
Planning software at a cost of approximately $1.0 million which we believe is
Year 2000 compliant. With respect to our own systems, we rely on the
representations of our primary software vendors that their products are Year
2000 compliant. Based in part on these representations, we believe our other
systems, software and devices are also Year 2000 compliant. We have reviewed the
effect of Year 2000 issues on our other systems, including both our information
technology and non-information technology systems, software and devices, and
believe that we are year 2000 compliant. However, the noncompliance of our
systems, software and devices could severely disrupt our operations and have a
material adverse affect on our business, financial condition and results of
operations. We also rely, directly and indirectly, on external systems of our
customers, suppliers, creditors, financial organizations, utilities providers
and governmental entities, both domestic and international. None of these
systems are under our control. Consequently, we could be affected through
disruptions in the operations of the enterprises with which we interact.
PAGE 8
SELLING STOCKHOLDERS
The selling stockholders acquired beneficial ownership of
all the shares of common stock listed below through restricted stock purchased
under E-TEK Dynamics' 1997 Equity Incentive Plan and 1997 Executive Equity
Incentive Plan. The following table shows, in each case as of March 1, 1999:
o the name of each selling stockholder;
o how many shares the selling stockholder beneficially owns;
o how many shares the selling stockholder can resell under this
prospectus; and
o assuming a selling stockholder sells all shares listed next to his or her
name, how many shares the selling stockholder will beneficially own after
completion of the offering.
We may amend or supplement this prospectus from time to time in the future to
update or change this list of selling stockholders and shares which may be
resold.
(Remainder of page intentionally blank)
PAGE 9
<PAGE>
<TABLE>
<S> <C> <C> <C> <C> <C>
Percentage Percentage
Shares of Shares Shares of shares
Beneficially Shares Which Beneficially Beneficially
Selling Stockholder Owned Beneficially May be Owned if Owned if
Prior Owned Sold in All Shares in All Shares in
to this Prior This This This
Offering to this Offering Offering Are Offering Are
(1) Offering (2) Sold Sold
- -------------------------- --------- --------- --------- --------- ---------
Anthony, Philip J.(3). 125,000 0.2 125,000 -- --
Fitzpatrick, Michael J.(4). 2,825,000 4.6 2,825,000 -- --
Shih, Kung (5)...............1,398,610 2.3 555,555 843,055 1.4
Shih, Ming (6)...............1,398,611 2.3 1,111,111 287,500 0.5
Subhedar, Sanjay (7).........1,275,000 2.1 1,200,000 75,000 0.1
</TABLE>
(1) We have calculated the number and percentage of shares each selling
stockholder "beneficially owns" in accordance with Rule 13d-3 under the
Exchange Act. Beneficial ownership as defined in Rule 13d-3 does not
necessarily indicate beneficial ownership for any other purpose. Under
Rule 13d-3, a person beneficially owns all shares as to which they have
either sole or shared voting power or sole or shared investment power, as
well as all shares which they have the right to acquire within 60 days of
the calculation date by exercising any stock option or other right. Since
the list above speaks as of March 1, 1999, beneficial ownership therefore
includes all shares which the selling stockholder has the right to acquire
within 60 days of March 1, 1999 (i.e. on or before May 1, 1999).
(2) Represents the maximum number of shares that each selling stockholder may
sell in this offering. The selling stockholders may sell less than such
maximum number of shares, or none of such shares.
(3) Mr. Anthony serves as E-TEK Dynamics' Vice President of Engineering.
(4) Mr. Fitzpatrick serves as a director of E-TEK Dynamics and as our
President and Chief Executive Officer. The shares being offered are held
by the Michael J. & Patricia W. Fitzpatrick 1994 Revocable Trust dated
12/23/94; and by the Michael J. Fitzpatrick Grantor Retained Annuity Trust
dated 8/13/98; primarily for the benefit of Mr.Fitzpatrick and his
immediate family.
(5) Mr. Kung Shih is an employee of the E-TEK Dynamics and serves as President
of FibX Corporation, our joint venture located in Taiwan. A portion of
the shares being registered is held by Shih Investments,L.P., of which Mr.
Kung Shih and his spouse Coral Shih are the general partners. The
limited partnership is primarily for the benefit of Mr.Kung Shih and his
immediate family members.
(6) Mr. Ming Shih serves as E-TEK Dynamics' Senior Vice President, Sales and
Marketing.
(7) Mr. Subhedar serves as E-TEK Dynamics' Senior Vice President, Operations,
as well as Chief Financial Officer and Secretary.
PAGE 10
<PAGE>
PLAN OF DISTRIBUTION
E-TEK Dynamics has been advised by the selling stockholders that they intend to
sell all or a portion of the shares offered hereby from time to time in the
Nasdaq National Market and that sales will be made at prices prevailing in the
Nasdaq National Market at the times of such sales. The selling stockholders may
also make private sales directly or through a broker or brokers, who may act as
agent or as principal. Further, the selling stockholders may choose to dispose
of the shares offered hereby by gift to a third party or as a donation to a
charitable or other non-profit entity. In connection with any sales, the selling
stockholders and any brokers participating in such sales may be deemed to be
underwriters within the meaning of the Securities Act. Any broker-dealer
participating in such transactions as agent may receive commissions from the
selling stockholders (and, if such broker acts as agent for the purchaser of
such shares, from such purchaser).
Sales of shares offered under this prospectus are, however, limited by several
factors. First, the selling stockholders are party to certain lock-up agreements
with the representatives of the underwriters of E-TEK Dynamics' initial public
offering on December 1, 1998. Pursuant to these lock-up agreements, the selling
stockholders may not transfer their shares for a period of 180 days from the
date of E-TEK Dynamics' initial public offering on December 1, 1998. Second, the
volume restrictions of Rule 144 (described below) will apply to such sales.
Third, the selling stockholders are subject to the E-TEK Dynamics stock trading
policy and procedures, which may
<PAGE>
also limit the timing of such sales. Fourth, the shares are subject to
repurchase by E-TEK Dynamics under certain circumstances, such as the
resignation of a selling stockholder.
Broker-dealers may agree with the selling stockholders to sell a specified
number of shares at a stipulated price per share, and, to the extent such a
broker-dealer is unable to do so acting as agent for the selling stockholders,
to purchase as principal any unsold shares at the price required to fulfill the
broker-dealer commitment to the selling stockholders. Broker-dealers who acquire
shares as principal may thereafter resell such shares from time to time in
transactions (which may involve crosses and block transactions and which may
involve sales to and through other broker-dealers, including transactions of the
nature described above) in the over-the-counter market, in negotiated
transactions or otherwise at market prices prevailing at the time of sale or at
negotiated prices, and in connection with such resales may pay to or receive
from the purchasers of such shares commissions computed as described above.
E-TEK Dynamics has advised the selling stockholders that Regulation M issued
under the Exchange Act may apply to sales in the market and has informed them of
the possible need for delivery of copies of this prospectus. The selling
stockholders may indemnify any broker-dealer that participates in transactions
involving the sale of the shares against certain liabilities, including
liabilities arising under the Securities Act. Any commissions paid or any
discounts or concessions allowed to any such broker-dealers, and, if any such
broker-dealers purchase shares as principal, any profits received on the resale
of such shares, may be deemed to be underwriting discounts and commissions under
the Securities Act. Upon E-TEK Dynamics being notified by the selling
stockholders that any material arrangement has been entered into with a
broker-dealer for the sale
PAGE 11
of shares through a cross or block trade, a supplemental prospectus will be
filed under Rule 424(c) under the Securities Act, setting forth the name of the
participating broker-dealer(s), the number of shares involved, the price at
which such shares were sold by the selling stockholders, the commissions paid or
discounts or concessions allowed by the selling stockholders to such
broker-dealer(s), and where applicable, that such broker-dealer(s) did not
conduct any investigation to verify the information set out in this prospectus.
Any securities covered by this prospectus which qualify for sale pursuant to
Rule 144 under the Securities Act may be sold under Rule 144 rather than
pursuant to this prospectus. In general, under Rule 144 as currently in effect,
a person (or persons whose shares are aggregated), including any person who may
be deemed to be an "affiliate" of E-TEK Dynamics, is entitled to sell within any
three month period "restricted shares" beneficially owned by him or her in an
amount that does not exceed the greater of (i) 1% of the then outstanding shares
of Common Stock or (ii) the average weekly trading volume in shares of Common
Stock during the four calendar weeks preceding such sale, provided that at least
one year has elapsed since such shares were acquired from E-TEK Dynamics or an
affiliate of E-TEK Dynamics. Sales are also subject to certain requirements as
to the manner of sale, notice and availability of current public information
regarding E-TEK Dynamics. However, a person who has not been an "affiliate" of
E-TEK Dynamics at any time within three months prior to the sale is entitled to
sell his or her shares without regard to the volume limitations or other
requirements of Rule 144, provided that at least two years has elapsed since
such shares were acquired from E-TEK Dynamics or an affiliate of E-TEK Dynamics.
There can be no assurance that the selling stockholders will sell any or all of
the shares of Common Stock offered hereunder.
<PAGE>
INFORMATION INCORPORATED BY REFERENCE
This prospectus incorporates by reference the following documents and
information, all of which E-TEK Dynamics has filed in the past with the
Securities and Exchange Commission ("SEC"):
o The prospectus relating to our initial public offering, filed on December
2, 1998.
o Quarterly Report on Form 10-Q filed February 8, 1999.
Unless E-TEK Dynamics has filed a post-effective amendment to the registration
statement under the Securities Act which contains this prospectus indicating
that all of the shares have been sold or which deregisters all shares then
remaining unsold, all documents which E-TEK Dynamics subsequently files under
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act shall be deemed to be
incorporated by reference in this prospectus and to be part of this prospectus
from the date of filing of such documents. We will provide without charge to
each person to whom a copy of this prospectus is delivered, upon written or oral
request, a copy of the information that has been or may be incorporated by
reference in this prospectus. Direct any request for such copies by
PAGE 12
writing or telephoning us at the following address: Investor Relations, E-TEK
Dynamics, Inc., 1865 Lundy Avenue, San Jose, California 95131; the telephone
number is (408) 546-5000.
<PAGE>
WHERE TO FIND MORE INFORMATION ABOUT E-TEK DYNAMICS, INC.
We are required to file special reports, proxy statements and other information
with the SEC. You may read and copy any document we file at the SEC's public
reference room at 450 Fifth Street, N.W., Washington, D.C. 20549. Please call
the SEC at 1-800-SEC-0330 for further information on the operation of the public
reference room. Our SEC filings are also available to the public from the SEC's
Web site at http://www.sec.gov. This prospectus contains information concerning
E-TEK Dynamics and the sale of its Common Stock by the Selling Stockholders, but
does not contain all the information set forth in the Registration Statement on
Form S-1 which we have filed with the SEC under the Securities Act. Statements
made in this Prospectus as to the contents of any other document are not
necessarily complete, and must be read in the context of the entire document
itself. The Registration Statement, including various exhibits, may be obtained
upon payment of the fee prescribed by the SEC, or may be examined without charge
at the SEC's office in Washington, D.C.
INDEMNIFICATION AND THE SEC'S POSITION ON ENFORCEABILITY
As permitted by Section 145 of the Delaware General Corporation Law (the
"DGCL"), E-TEK Dynamics' Certificate of Incorporation provides that each person
who is or was or who had agreed to become a director or officer of E-TEK
Dynamics or who had agreed at the request of the E-TEK Dynamics Board of
Directors or an officer of E-TEK Dynamics to serve as an employee or agent of
ours or as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall be indemnified by
us to the full extent permitted by the DGCL or any other applicable laws. Such
Certificate of Incorporation also provides that we 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 from acts or omissions
occurring in whole or in part before the effective date of such amendment or
repeal.
Our Bylaws provide that we 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
ours or any predecessor of E-TEK Dynamics or serves or served any other
enterprise as a director, officer or employee at the request of E-TEK Dynamics
or any predecessor of E-TEK Dynamics.
We have entered into an indemnification agreement with each of our directors and
certain of our officers.
PAGE 13
We intend 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.
Insofar as indemnification for liabilities arising under the Securities Act may
be permitted to directors, officers or persons controlling E-TEK Dynamics
pursuant to the foregoing provisions, we have been informed that in the opinion
of the SEC such indemnification is against public policy as expressed in the
Securities Act and is therefore unenforceable.
(Remainder of page intentionally blank)
PAGE 14
<PAGE>
E-TEK DYNAMICS, INC.
REGISTRATION STATEMENT ON FORM S-8
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 on December 2,1998,pursuant to Rule 424(b)
promulgated under the Securities Act.
2. The description of Registrant's Common Stock contained in Registrant's
Registration Statement on Form 8-A filed on November 24, 1998.
3. The Quarterly Report on Form 10-Q filed on February 8, 1999.
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
PAGE 15
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 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.
<PAGE>
Item 7. Exemption from Registration Claimed
The issuance of the shares being offered by the resale prospectus were deemed to
be exempt from registration under the Securities Act in reliance on Section 4(2)
of the Securities Act or Regulation D promulgated thereunder, or Rule 701
promulgated under Section 3(b) of the Securities Act, as transactions by an
issuer not involving a public offering or transactions pursuant to compensatory
benefit plans and contracts relating to compensation as provided under such Rule
701. The recipients of securities in each such transaction represented their
intention to acquire the securities for investment only and not with a view to
or for sale in connection with any distribution thereof and appropriate legends
were affixed to the share certificates and instruments issued in such
transactions. All recipients had adequate access, through their relationship
with E-TEK Dynamics, to information about E-TEK Dynamics.
PAGE 16
Item 8. Exhibits
Exhibit
Number Document
-----------------------------------------------------------------
4.1* Registrant's 1997 Equity Incentive Plan
4.2* Registrant's 1997 Executive Equity Incentive Plan
23.1 Consent of PricewaterhouseCoopers LLP
24 Power of Attorney (see page 19)
- ----------------------
(*) Previously filed as an exhibit to Registrant's Registration Statement
on Form S-1 (File No. 333-61763), declared effective on December 1,
1998.
<PAGE>
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, 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 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 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,
PAGE 17
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.
(Remainder of page intentionally blank)
PAGE 18
<PAGE>
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 25th day
of March, 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.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ Michael J. Fitzpatrick President, Chief March 18, 1999
- --------------------------- Executive Officer and
Michael J. Fitzpatrick Director (Principal
Executive Officer)
/s/ Sanjay Subhedar Senior Vice President, March 18, 1999
- --------------------------- Operations Chief
Sanjay Subhedar Financial Officer and
Secretary (Principal
Financial and Accounting
Officer)
/s/ Walter G. Kortschak Chairman of the Board of March 22, 1999
- --------------------------- Directors
Walter G. Kortschak
/s/ David Dorman Director March 24, 1999
- ---------------------------
David Dorman
/s/ Joseph W. Goodman Director March 23, 1999
- ---------------------------
Joseph W. Goodman
<PAGE>
/s/ Donald J. Listwin Director March 23, 1999
- ---------------------------
Donald J. Listwin
/s/ Peter Y. Chung Director March 24, 1999
- ---------------------------
Peter Y. Chung
PAGE 19
</TABLE>
INDEX TO EXHIBITS
Exhibit
Number Document
-----------------------------------------------------------------
4.1* Registrant's 1997 Equity Incentive Plan
4.2* Registrant's 1997 Executive Equity Incentive Plan
23.1 Consent of PricewaterhouseCoopers LLP
24 Power of Attorney (see page 19)
- ----------------------
(*) Previously filed as an exhibit to Registrant's Registration Statement
on Form S-1 (File No. 333-61763), declared effective on December 1,
1998.
<PAGE>
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
March 25, 1999
