As filed with the Securities and Exchange Commission on January 31, 2000
Registration No.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
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>
Delaware 3674 59-2337308
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(State or other (Primary Standard (I.R.S. Employer
jurisdiction of Industrial Identification Number)
incorporation or Classification Code
organization) Number)
1865 Lundy Avenue
San Jose, California 95131
(408) 546-5000
(Address, including zip code, and telephone number, including area code,
of Registrant's principal executive offices)
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Michael J. Fitzpatrick
Chairman, President and
Chief Executive Officer
E-TEK Dynamics, Inc.
1865 Lundy Avenue
San Jose, CA 95131
(408) 546-5000
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
Copies to:
William N. Gerson Aaron J. Alter
Matthew J. Lucero N. Anthony Jeffries
E-TEK Dynamics, Inc. Wilson Sonsini Goodrich &
1865 Lundy Avenue Rosati
San Jose, CA 95131 Professional Corporation
(408) 546-5000 650 Page Mill Road
Palo Alto, California
94304-1050
(650) 493-9300
Approximate date of commencement of proposed sale to the public: As soon as
practicable after the effective date of this Registration Statement.
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, please check the following box. |X|
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. |_|
If the only securities being delivered pursuant to this Form are being
offered pursuant to dividend or interest reinvestment plans, please check the
following box. |_|
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
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CALCULATION OF REGISTRATION FEE
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<S> <C> <C> <C> <C>
Title of Each Class Amount Proposed Proposed Amount of
of Securities to to be Maximum Maximum Registration
be Registered Registered Offering Aggregate Fee
Price Offering
Per Share Price (1)
(1)
- -------------------------------------------------------------------------------
Common Stock, no par 400,062 $181.75 $72,711,268.50 $19,196
value
===============================================================================
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(1)Estimated solely for the purpose of computing the amount of the registration
fee based on the average of the high and low prices for the Common Stock as
reported on the Nasdaq Stock Market on January 28, 2000, in accordance with
Rule 457(c) under the Securities Act of 1933, as amended.
The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment that specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933, as amended, or until the Registration Statement shall
become effective on such date as the SEC, acting pursuant to said Section 8(a),
may determine.
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The information in this preliminary prospectus is not complete and may be
changed. We may not sell these securities until the registration statement filed
with the Securities and Exchange Commission is effective. This preliminary
prospectus is not an offer to sell these securities and it is not soliciting an
offer to buy these securities in any jurisdiction where the offer of sale is not
permitted.
SUBJECT TO COMPLETION, DATED JANUARY 31, 2000
PROSPECTUS
400,062 SHARES
E-TEK DYNAMICS
COMMON STOCK
The 400,062 shares of our common stock offered by this Prospectus will be
purchased by certain of our stockholders in exchange for exchangeable shares of
Lundy Technology Corporation, a subsidiary of ours. We have agreed to bear the
expenses of registration of the shares in this Prospectus.
Our common stock is traded on The Nasdaq Stock Market under the symbol
"ETEK." On January 28, 2000, the last sale price for our common stock as
reported on The Nasdaq Stock Market was $179 7/8 per share.
See "Risk Factors" on page 3 for a discussion of factors that should be
considered by prospective purchasers of the shares offered by this prospectus.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is a
criminal offense.
The date of this prospectus is ____________, 2000
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WHERE YOU CAN FIND MORE INFORMATION ABOUT E-TEK DYNAMICS
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. You may read and copy any documents 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 public
reference room. Our SEC filings are also available to the public from the SEC's
Website at "http://www.sec.gov."
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this prospectus, and information that we file later
with the SEC will automatically update and supersede this information. We
incorporate by reference the documents listed below and any future filings we
will make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the
Securities and Exchange Act of 1934:
o Current report on Form 8-K filed with the SEC on January 19, 2000; o Quarterly
Report on Form 10-Q for the fiscal quarter ended October 2,
1999;
o Current report on Form 8-K filed with the SEC on September 1, 1999; o Annual
Report on Form 10-K for the fiscal year ended June 30, 1999; and, o The
description of our common stock contained in the Registration
Statement on form 8-A filed with the SEC on November 24, 1998.
You may request a copy of these filings, at no cost, by writing or
telephoning our Investor Relations manager, at the following address:
E-TEK Dynamics, Inc.
1865 Lundy Avenue
San Jose, California 95131
(408) 546-5000
This prospectus is part of a registration statement we filed with the SEC.
You should rely only on the information or representations provided in this
prospectus. We have authorized no one to provide you with different information.
We are not making an offer of these securities in any state where the offer is
not permitted. You should not assume that the information in this prospectus is
accurate as of any date other than the cover of this prospectus.
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RISK FACTORS
You should carefully consider these risk factors in addition to the other
information in this Report. You should also consider the risk factors set forth
in other documents filed with the SEC, including the Form 10-Q for the period
ended January 1, 2000, the Annual Report on Form 10-K for the fiscal year ended
June 30, 1999, and the Registration Statement on Form S-1 dated August 11, 1999.
Any of these factors could have a material adverse impact on our business,
financial condition and results of operations.
Our proposed merger with JDS Uniphase Corporation involves risks and
uncertainties, and requires stockholder and regulatory approval
On January 17, 2000, we announced the signing of an agreement with JDS Uniphase
Corporation under which JDS Uniphase proposes to acquire E-TEK shares in a
merger transaction. If this transaction closes, our stockholders will receive
1.1 shares of JDS Uniphase common stock for each share of E-TEK common stock
they own, and we will become a wholly-owned subsidiary of JDS Uniphase.
Completion of this proposed transaction is subject to the approval of our
stockholders, as well as customary closing conditions and regulatory approvals.
On January 19, 2000, we filed with the SEC a press release announcing the
transaction and the merger agreement as exhibits to our Form 8-K. Those
documents contain the specific terms and conditions of the transaction. There
are no assurances that this proposed merger will occur, or that the performance
of the combined company will be favorable to our stockholders, or that the
pendency of the proposed merger will not have an adverse effect on us in the
interim.
The success of the merger between E-TEK and JDS Uniphase may require, among
other things, integration or coordination of different operational and
management teams, as well as different business processes and infrastructures.
Successful integration of the two companies will depend on a variety of factors,
including the hiring and retention of key employees, management of
geographically separate facilities, and the integration or coordination of
different research and development and product manufacturing facilities. The
diversion of management resources necessary to successfully complete this
integration or coordination may temporarily adversely impact business
operations.
It is not certain that JDS Uniphase and E-TEK can be successfully integrated in
a timely manner or at all or that any of the anticipated benefits of the merger
will be realized. Failure to do so could materially harm the business and
operating results of the combined company. Also, neither JDS Uniphase nor E-TEK
can assure you that the growth rate of the combined company will equal the
historical growth rate experienced by JDS Uniphase and E-TEK.
Customer and employee uncertainty related to the merger could harm E-TEK
Our customers may, in response to the announcement of the merger, delay or defer
purchasing decisions. Any delay or deferral in purchasing decisions by our
customers could seriously harm the business of the combined company. In
addition, existing and future strategic alliances that may be beneficial to our
success may be adversely affected as a result of E-TEK becoming a wholly owned
subsidiary of JDS Uniphase. Similarly, our employees may experience uncertainty
about their future role with the combined company until or after specific
integration plans are announced or executed. This may adversely affect our
ability to attract and retain key management, marketing and technical personnel.
If a major customer delays, reduces or defers purchases, our revenues will
decline.
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We have depended on a small number of large customers for a substantial portion
of our sales, and we expect this to continue for the foreseeable future. In the
second quarter of fiscal 2000, our three largest customers and their related
entities accounted for 56% of our revenues. Industry consolidation may reduce
the number of potential customers and increase our dependence on a small number
of customers.
Further, we do not have long-term contracts with many customers, and our
existing contracts do not obligate our customers to buy material amounts of our
products. In addition, we have recently signed contracts that require us to hold
safety stock, which results in our holding inventory and not recognizing
revenues until shipment. Therefore, sales in a particular period are difficult
to predict and we may experience unforeseen decreases in purchases,
cancellations of purchase orders or deferrals of purchases.
If sales of our wavelength division multiplexing products decline, our revenues
will be materially reduced.
Sales of wavelength division multiplexing components, modules and subsystems
accounted for over 50% of our revenues in the second quarter of fiscal 2000, and
are expected to account for more than 50% of our total revenues in fiscal 2000.
If sales of this product line decline, our overall revenues will be lower, which
could result in operating losses. We may not be successful in taking steps to
mitigate the risks associated with reduced demand for our existing products.
If we cannot obtain an adequate supply of thin film filters or other raw
materials or equipment, our product revenues may decline.
Thin film filters are a key raw material for WDMs and are difficult to produce.
We have previously experienced and continue to experience shortages of these
filters, which has limited our ability to ship product and generate revenues.
Also, we depend on a limited number of suppliers for other key materials and
equipment, some of which are sole sources. Delivery delays, quality problems and
price increases could hurt our ability to supply our customers with products in
a timely manner, which can cause our shipments and revenues to decline.
The increase in the number of WDM wavelengths, narrower spacing requirements and
greater integration increases product complexity, which may adversely affect our
yields and revenues.
The increased need for bandwidth is being satisfied by using more wavelengths
with narrower spacing between each wavelength. Both of these trends (more
wavelengths and tighter spacing) increase the complexity and variety of filters
needed and the risk of lower yields. In addition, the trend towards increased
integration from devices to modules, and to subsystems means that any missing
wavelengths can delay shipment of the whole module or subsystem, which would
have an adverse impact on our revenues. Furthermore, building more integrated
products is more difficult, and could impact our ability to build and ship
products and generate revenues. Other technologies that offer narrower
wavelength spacing, such as Array Wave Guide or Fiber Bragg Gratings, have been
introduced to the market as an alternative to thin film filter WDMs. Acceptance
of these products could aversely impact our revenues.
We may not be able to reduce our manufacturing costs sufficiently or plan our
manufacturing expansion accurately.
We expect the price of our existing products to decline due to various factors,
such as increased competition, including from companies with lower labor and
production costs; a limited number of potential customers with significant
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bargaining leverage; introduction of new products by competitors; and greater
economies of scale for higher volume manufacturers. To maintain our existing
revenues, we must increase our unit volumes and our manufacturing capacity.
Adding capacity increases our fixed costs and the levels of unit shipments we
must achieve to maintain gross margins. As a result, if we are unable to
increase our revenues or continuously reduce our manufacturing costs, our gross
margins may decline and we could incur losses.
We are increasing our manufacturing capacity at our existing facilities in San
Jose, California as well as pursuing the expansion of overseas manufacturing in
Taiwan and China. Developing overseas manufacturing capabilities involves
significant risks which could materially adversely affect our gross margins and
revenues, including:
Our inability to qualify a new manufacturing line for all of our
customers;
unanticipated cost increases;
unavailability or late delivery of equipment;
unforeseen environmental or engineering problems;
personnel recruitment delays; and
political instability.
Expanding our manufacturing capacity requires substantial time to build out and
equip facilities and train personnel. If we receive orders substantially in
excess of our planned capacity, we might not be able to fulfill them quickly
enough to meet customer requirements. Our inability to deliver products timely
could enable competitors to win business from our customers.
We may not be able to effectively increase production and maintain acceptable
manufacturing yields, resulting in delay of product shipments and impairment of
our gross margins.
Manufacturing our products is highly complex and labor intensive. As we rapidly
increase production and hire more people, our manufacturing yield, which is the
percentage of our products which meet customer specifications, could decline,
resulting in product shipment delays, possible lost revenue opportunities,
higher customer returns, and impaired gross margins. Some of our manufacturing
lines have experienced lower than expected yields, which could continue in the
future. Rapid increases in production levels to meet unanticipated demand may
also result in higher overtime costs and other expenses.
Our stock price could fluctuate significantly due to our pending merger with JDS
Uniphase, and to the unpredictability of our quarterly results.
Since the announcement on January 17, 2000 of our agreement to merge with JDS
Uniphase, our stock price has fluctuated significantly. Our stock price may be
affected by fluctuations in the price of JDS Uniphase shares and a higher level
of speculative trading while the merger is pending approval.
Also, our revenues and operating results have fluctuated significantly from
quarter-to-quarter in the past and may fluctuate significantly in the future as
a result of several factors, some of which are outside of our control. These
factors include:
the size and timing of customer orders;
our ability to manufacture and ship our products on a timely basis;
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our ability to obtain sufficient supplies to meet our product
manufacturing needs;
our ability to meet customer product specifications and qualifications;
long and unpredictable sales cycles of up to a year or more;
our ability to sustain high levels of quality across all product lines;
changes in our product mix;
customer cancellations or delivery deferrals;
seasonality of customer demand; and
difficulties in collecting accounts receivable.
Due to these factors, results are difficult to predict and you should not rely
on quarter-to-quarter comparisons of our results of operations as an indication
of our future performance. It is possible that, in future periods, our results
of operations may be below the expectations of public market analysts and
investors.
If we do not achieve our planned revenues, we could incur operating losses
because our expenses are fixed in the short term.
We make manufacturing and related capital expenditures in anticipation of a
level of customer orders that may vary over multiple quarters. Our expenditures
are largely based on anticipated future sales and a significant portion of our
expenses is fixed in the short term. If anticipated levels of customer orders
are not received, we may not be able to reduce our expenses quickly enough to
prevent a decline in our gross margins and operating income.
The fiber-optic component market is highly competitive, and we could lose sales
to our competitors and our customers.
Many of our competitors have greater financial and other resources than us and
they may be able to more quickly:
respond to new technologies or technical standards;
react to changing customer requirements and expectations;
manufacture, market and sell current products;
develop new products or technologies; and
deliver competitive products at lower prices.
As a result of these factors, our customers could decide to purchase products
from our competitors and reduce their purchases from us.
In addition, our competitors and our customers may acquire our suppliers and
potential suppliers. Our customers may also develop their own internal sources
of supply in competition with us. For example, Corning, one of our customers,
has announced an expansion of its ability to produce thin film optical filters
by a factor of ten, as well as the acquisition of Oak Industries, a maker of
components used in WDM systems. Lucent Technologies, a customer of ours, has
announced an investment in privately-held Horizon Photonics, Inc., a provider of
automated manufacturing of passive optical components. Lucent has also commented
publicly that it sells a large portion of its components on the merchant market
in addition to supplying its own needs. Cisco Systems, an emerging player in WDM
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systems, has announced the acquisition of Pirelli Optical Systems and a
strategic investment of $100 million in Pirelli's optical components and
submarine optical transmission system businesses. In addition, Nortel Networks,
one of our customers, has announced a $400 million investment in its optical
networking and components business including a new facility for the fabrication
of optical components.
If our new product introductions are delayed, or if our new products have
defects, our revenues would be harmed and our costs could increase.
If we do not introduce new products in a timely manner, we will not obtain
incremental revenues from these products or be able to replace more mature
products with declining revenues or gross margins. Customers could decide to
purchase components from our competitors, resulting in lost revenue over a
longer term. We could also incur unanticipated costs if new product
introductions are delayed or we need to fix defective new products.
Acquisitions and investments may adversely affect our business.
Our strategy includes the acquisition and integration of additional companies'
products, technologies and personnel. We have limited experience in acquiring
outside businesses. Acquisition of businesses requires substantial time and
attention of management personnel and may also require additional equity or debt
financings.
Integration of newly established or acquired businesses can be disruptive. There
is no assurance that we will identify appropriate targets, will acquire such
businesses on favorable terms, will obtain JDS Uniphase's consent for any
proposed acquisitions, or will be able to integrate such organizations into our
business successfully.
Financial consequences of our acquisitions and investments may include
potentially dilutive issuances of equity securities; large one-time write-offs;
reduced cash balances and related interest income; higher fixed expenses which
require a higher level of revenues to maintain gross margins; the incurrence of
debt and contingent liabilities; and amortization expenses related to goodwill
and other intangible assets.
If a key sales representative or distributor stopped selling or reduced sales of
our products, our revenues would suffer.
We sell substantially all of our products through a network of independent sales
representatives and distributors, the majority of whom have exclusive rights to
sell our products in certain territories. Our sales representatives and
distributors could decide to reduce or stop selling our products.
We may not be able to recruit and retain the personnel we need to succeed.
If we cannot hire and retain technical personnel with advanced skills and
experience in the specialized field of fiber optics, our product development
programs may be delayed and our customer support efforts may be less effective.
If we are unable to hire the necessary managerial, sales and marketing
personnel, we may not be able to grow our revenues.
Our international sales could be delayed or could have additional costs which
would lower their contribution to our gross profit.
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We generate a significant portion of our revenues from sales to companies
located outside the United States, principally in Europe. As a result, a
significant portion of our sales faces risks inherent in international
operations, including:
government controls, which can delay sales or increase our costs;
export licensing requirements and restrictions, which can delay or
prevent sales;
tariffs and other trade barriers, which can increase our costs and make
our products uncompetitive; and
greater difficulty in accounts receivable collection and longer collection
periods, which can increase our need for working capital.
Currently, the majority of our international sales are U.S. dollar denominated.
As a result, our customers' orders could fluctuate significantly based upon
changes in our customers' currency exchange rates in relation to the U.S.
dollar. A large increase in the value of the U.S. dollar could make our products
more expensive to our foreign customers, resulting in cancelled or delayed
orders and decreased revenues.
Our international operations expose us to additional costs, some of which we
cannot predict.
Our recent expansion of our operations into other countries, such as Canada,
Taiwan and China, has increased the legal, tax and other business complexities
that we must comply with. If we cannot comply with local regulations, we could
incur unexpected costs and potential litigation. Our international operations
could cause our average tax rate to increase. We could also incur expenses due
to the exchange rate risk because many expenses relating to our international
operations are denominated in foreign currencies, while our revenues are in U.S.
dollars.
If we cannot protect or enforce our intellectual property rights, our
competitive position may be impaired.
Third parties may attempt to use our confidential information and proprietary
technologies without authorization. Policing unauthorized use is expensive and
difficult. We cannot be sure that will be able to prevent misappropriation or
infringement of our intellectual property.
Intellectual property claims against us could cause our business to suffer.
In the past, we have received notifications alleging that we are infringing the
intellectual property rights of third parties, and we may in the future face
claims that our products infringe the rights of another. Whether or not these
claims are successful, we would likely incur significant costs and diversion of
our resources defending these claims.
We could incur costs and experience disruptions complying with environmental
regulations.
We handle small amounts of hazardous materials as part of our manufacturing
activities. We may be required to incur environmental remediation costs to
comply with current or future environmental laws.
Our operations could be disrupted by natural disasters.
Our facilities are susceptible to damage from earthquakes as well as from fire,
floods, loss of power or water supply, telecommunications failures and similar
events. Any of these events could significantly disrupt our operations.
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Year 2000 Compliance
We have not had any disruption to our computer programs or business as a result
of year 2000 compliance. However, if our customers or suppliers encounter any
year 2000 problems, our business could be disrupted as well.
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E-TEK DYNAMICS
We design, manufacture and sell high quality fiber optic components and
modules for optical networks. Optical networks are being deployed by
telecommunications service providers like AT&T and MCI WorldCom to address the
demand for applications such as Internet access, e-mail, and electronic commerce
that require high capacity, high speed data transmission. Our products are
designed into optical systems built for these service providers' networks by
telecommunications equipment manufacturers. Our products guide, route or amplify
the light signals which transmit data within the network and include:
o narrowband wavelength division multiplexers, commonly referred to as
WDMs, which allow multiple communication signals to be carried on one
fiber optic connection;
o wideband wavelength division multiplexers, which are used in optical
amplifiers to differentiate signals or enhance performance;
o isolators, which act as one-way valves for optical signals, preventing
the light from traveling in the wrong direction;
o couplers, which are used to combine or split optical signals; and
o micro-optic integrated components, which combine two or more of the
above optical component functions into a single package.
Our products are deployed in land-based and undersea long distance
networks, as well as in cable and metropolitan area networks. Our customers
include many of the leading telecommunications equipment manufacturers,
including Alcatel, CIENA, Corning, Fujitsu, Lucent, Nortel and Pirelli.
On January 17, 2000, we announced the signing of an Agreement and Plan of
Reorganization and Merger between E-TEK Dynamics, Inc. and JDS Uniphase
Corporation. Upon completion of this transaction, our stockholders will receive
1.1 shares of JDS Uniphase common stock for each share of E-TEK common stock
they own, and we will become a wholly-owned subsidiary of JDS Uniphase.
Completion of the transaction is subject to the approval of our stockholders, as
well as customary closing conditions and regulatory approvals. Accordingly there
can be no assurance that the transaction will be completed. On January 19, 2000,
we filed the press release announcing the transaction and the merger agreement
as exhibits to Form 8-K. Those documents contain the specific terms and
conditions of the transaction. More information about JDS Uniphase is available
in their reports to the Securities and Exchange Commission, which are on the
Internet at www.sec.gov. Those reports include a Form 8-K filed January 18, 2000
by JDS Uniphase, with unaudited pro forma condensed combined consolidated
financial statements showing E-TEK and JDS Uniphase on a combined pro forma
basis for certain periods.
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USE OF PROCEEDS
Because the shares of our common stock offered hereunder will be issued
upon exchange of the exchangeable shares of our subsidiary, Lundy Technology
Corporation, none of which will be held by us, we will receive no proceeds upon
the sale of such common stock.
PLAN OF DISTRIBUTION
In connection with our acquisition of all of the outstanding capital stock
of ElectroPhotonics Solutions Corporation, Lundy Technology Corporation, our
subsidiary, issued 400,062 exchangeable shares of its capital stock. The
exchangeable shares of Lundy Technology Corporation may be exchanged on a
one-for-one basis for shares of our common stock, which shares are being
registered by this prospectus. We have agreed to bear the expense of
registration of the shares in this prospectus.
LEGAL MATTERS
Certain legal matters relating to validity of the shares of common stock
offered pursuant to this prospectus will be passed upon for E-TEK Dynamics by
Wilson Sonsini Goodrich & Rosati, Professional Corporation, Palo Alto,
California.
EXPERTS
The consolidated financial statements incorporated in this prospectus by
reference to E-TEK Dynamics' Annual Report on Form 10-K for the year ended June
30, 1999 have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
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E-TEK DYNAMICS, INC.
TABLE OF CONTENTS Common Stock
Page
Where you can Find More
Information About
E-TEK Dynamics................2
Risk Factors..................3 PROSPECTUS
E-TEK Dynamics...............10
Use of Proceeds..............11
Plan of Distribution.........11
Legal Matters................11
Experts......................11
__________________, 2000
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth the costs and expenses, other than
underwriting discounts and commissions, payable in connection with the sale of
common stock being registered. All amounts are estimates except the Securities
and Exchange Commission registration fee and The Nasdaq Stock Market Listing
Fee.
Securities and Exchange Commission Registration Fee........ $19,196
The Nasdaq National Market Listing Fee....................... $8,001
Legal Fees and Expenses.................................... $5,000
Accounting Fees and Expenses............................... $5,000
Miscellaneous.............................................. $2,803
Total................................................ $40,000
Item 15. 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
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.
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Item 16. Exhibits and Financial Statement Schedules
(a) Exhibits
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation.
10.1* Share Purchase Agreement, dated as of May 26, 1999, among the
Registrant, Shemiran Holdings Inc., A. Tino Alavie, Robert
Maashant, Lundy Technology Co. and ElectroPhotonics Corporation.
10.2* Registration Rights Agreement, dated as of June 22, 1999, by and
between the Registrant and the shareholders of E-TEK.
23.1 Consent of Independent Accountants.
23.2 Consent of Wilson Sonsini Goodrich & Rosati, Professional
Corporation (included in Exhibit 5.1).
24.1 Power of Attorney.
* Incorporated by reference to the Registrant's Registration
Statement on Form S-1 (No. 333-83857) as filed with the Commission on
July 30, 1999.
(b) Financial Statement Schedules. Schedules not listed above have been
omitted because they are not applicable or are not required or the information
required to be set forth therein is included in the consolidated financial
statements or notes thereto.
Item 17. 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.
II-2
<PAGE>
(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.
II-3
<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-3 and has
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of San Jose, State of
California, on the 31st day of January, 2000.
E-TEK Dynamics, Inc.
By: /s/ William N. Gerson
William N. Gerson
Secretary and 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 Executive January 31, 2000
--------------------------- Officer and Chairman of the
Michael J. Fitzpatrick Board of Directors (Principal
Executive Officer)
/s/ Sanjay Subhedar Chief Operating Officer and January 31, 2000
-------------------- Chief Financial Officer
Sanjay Subhedar (Principal Financial and
Accounting Officer)
/s/ Walter G. Kortschak Director January 31, 2000
- ------------------------
Walter G. Kortschak
/s/ David W. Dorman Director January 31, 2000
- --------------------
David W. Dorman
/s/ Joseph W. Goodman Director January 31, 2000
- ----------------------
Joseph W. Goodman
/s/ Donald J. Listwin Director January 31, 2000
- ----------------------
Donald J.Listwin
</TABLE>
II-4
<PAGE>
EXHIBIT INDEX
- ------------------------------------------------------------------------------
EXHIBIT
NUMBER
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation.
10.1* Share Purchase Agreement, dated as of May 26, 1999, among the
Registrant, Shemiran Holdings Inc., A. Tino Alavie, Robert Maashant,
Lundy Technology Co. and ElectroPhotonics Corporation.
10.2* Registration Rights Agreement, dated as of June 22, 1999, by and between
the Registrant and the shareholders of E-TEK.
23.1 Consent of Independent Accountants.
23.2 Consent of Wilson Sonsini Goodrich & Rosati, Professional
Corporation (included in Exhibit 5.1).
24.1 Power of Attorney. (See page II-4).
* Incorporated by reference to the Registrant's Registration Statement on Form
S-1 (No. 333-83857) as filed with the Commission on July 30, 1999.
II-5
<PAGE>
Exhibit 5.1
January 31, 2000
E-TEK Dynamics, Inc.
RE: E-TEK DYNAMICS, INC. REGISTRATION STATEMENT ON FORM S-3
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-3 to be filed by you
with the Securities and Exchange Commission ("SEC") on January 31, 2000 (the
"Registration Statement"), in connection with the registration under the
Securities Act of 1933, as amended, of up to 400,062 shares of your Common Stock
(the "Shares"). 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 the Shares.
It is our opinion that, upon completion of the proceedings being taken or
contemplated by us, as your counsel, to be taken prior to the issuance of the
Shares, the Shares, when issued and sold in the manner described in the
Registration Statement and in accordance with the resolutions adopted by the
Board of Directors of the Company, will be legally and validly issued, fully
paid and nonassessable.
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 the Prospectus constituting a part thereof,
and any amendments thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ Wilson Sonsini Goodrich & Rosati
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated July 20, 1999, except as to Note 14,
which is as of July 27, 1999, relating to the financial statements of E-TEK
Dynamics, Inc. as of June 30, 1998 and 1999 and for each of the three years in
the period ended June 30, 1999, which report appears in E-TEK Dynamics, Inc.'s
Annual Report on Form 10-K for the year ended June 30, 1999. We also consent to
the reference to us under the heading "Experts" in such Registration Statement.
/s/ ______________________
PricewaterhouseCoopers LLP
San Jose, California
January 27, 2000
