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Filed with the Securities and Exchange Commission on March 17, 2000
Registration No. 333-_______
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FINISAR CORPORATION
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(Exact name of registrant as specified in its charter)
Delaware 94-3038428
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(State or other jurisdiction (I.R.S. employer identification no.)
of incorporation or organization)
1308 Moffett Park Drive
Sunnyvale, CA 94089
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(Address of principal executive offices) (Zip code)
FINISAR CORPORATION
1989 STOCK OPTION PLAN,
1999 STOCK OPTION PLAN,
1999 EMPLOYEE STOCK PURCHASE PLAN
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(Full title of the plan)
Jerry S. Rawls
President and Chief Executive Officer
Finisar Corporation
1308 Moffett Park Drive
Sunnyvale, CA 94089
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(Name and address of agent for service)
Telephone number, including area code, of agent for service: (408) 548-1000.
This registration statement shall hereafter become effective in accordance with
Rule 462 promulgated under the Securities Act of 1933, as amended.
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CALCULATION OF REGISTRATION FEE
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Proposed maximum Proposed maximum
Title of Securities to Amount to be offering price aggregate offering Amount of
be registered(1) registered(2) per share(3) price(3) registration fee
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<S> <C> <C> <C> <C>
1989 STOCK OPTION PLAN
Common Stock 917,540* $0.2348 $215,438.39
Par Value $0.001
1999 STOCK OPTION PLAN
Common Stock 1,039,612 $9.3235 $9,692,822.48
Par Value $0.001 4,725,855 $123.3125 $582,756,994.69
1999 EMPLOYEE STOCK
PURCHASE PLAN
Common Stock 250,000 $104.8156 $26,203,900.00
Par Value $0.001
TOTALS 6,933,007 $618,869,155.56 $163,381.46
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(1) The securities to be registered include options and rights to acquire
Common Stock.
(2) Pursuant to Rule 416(a), this registration statement also covers any
additional securities that may be offered or issued in connection with any stock
split, stock dividend or similar transaction.
(3) Estimated pursuant to Rule 457 solely for purposes of calculating the
registration fee. As to shares subject to outstanding but unexercised options
under the 1989 Stock Option Plan and 1999 Stock Option Plan, the prices are
computed on the basis of the weighted average exercise price. As to the
remaining shares under the 1999 Stock Option Plan, the price is based upon the
average of the high and low prices of the Common Stock on March 14, 2000, as
reported on the Nasdaq National Market. The 1999 Employee Stock Purchase Plan
establishes a purchase price equal to 85% of the fair market value of the
Company's Common Stock, and, therefore, the price for shares under this plan is
based upon 85% of the average of the high and low prices of the Common Stock on
March 14, 2000, as reported on the Nasdaq National Market.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
Finisar Corporation (the "Company") hereby incorporates by
reference in this registration statement the following documents:
(a) The Company's latest prospectus filed pursuant to Rule
424(b) under the Securities Act of 1933, as amended (the "Securities Act")
containing audited financial statements for the Company's latest fiscal year
ended April 30, 1999. The prospectus is included in the Company's Registration
Statement on Form S-1 (No. 333-87017, effective November 10, 1999).
(b) All other reports filed pursuant to Section 13(a) or 15(d)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act") since
the end of the fiscal year covered by the registrant document referred to in (a)
above.
(c) The description of the Company's Common Stock contained in
the Company's Registration Statement on Form 8-A12G filed on November 8, 1999
under the Exchange Act, including any amendment or report filed for the purpose
of updating such description.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment to this registration statement which indicates that
all securities offered hereby have been sold or which deregisters all securities
remaining unsold, shall be deemed to be incorporated by reference in this
registration statement and to be a part hereof from the date of filing of such
documents.
Item 4. DESCRIPTION OF SECURITIES
The class of securities to be offered is registered under
Section 12 of the Exchange Act.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
LEGAL OPINION. The validity of the shares of Common Stock to
be offered hereunder has been passed upon for the company by Gray Cary Ware &
Freidenrich LLP ("GCWF"). As of March 7, 2000 certain attorneys of GCWF owned in
excess of $50,000 of the Common Stock of the Company.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 102(b) of the Delaware General Corporation Law
authorizes a corporation to provide in its Certificate of Incorporation that
a director of the corporation shall not be personally liable to the
corporation or its stockholders for monetary damages for breach or alleged
breach of the director's "duty of care." While this statute does not change
directors' duty of
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care, it enables corporations to limit available relief to equitable remedies
such as injunction or rescission. The statute has no effect on a director's
duty of loyalty or liability for acts or omissions not in good faith or
involving intentional misconduct or knowing violations of law, illegal
payment of dividends or stock redemptions or repurchases, or for any
transaction from which the director derives an improper personal benefit. As
permitted by the statute, the Company has adopted provisions in its
Certificate of Incorporation which eliminate to the fullest extent
permissible under Delaware law the personal liability of its directors to the
Company and its stockholders for monetary damages for breach or alleged
breach of their duty of care.
Section 145 of the General Corporation Law of the State of
Delaware provides for the indemnification of officers, directors, employees and
agents of a corporation. The Bylaws of the Company provide for indemnification
of its directors, officers, employees and agents to the full extent permitted by
Delaware law, including those circumstances in which indemnification would
otherwise be discretionary under Delaware law. The Company's Bylaws also empower
it to enter into indemnification agreements with its directors and officers and
to purchase insurance on behalf of any person whom it is required or permitted
to indemnify. The Company will enter into agreements with its directors and
certain of its executive officers that require the Company to indemnify such
persons to the fullest extent permitted under Delaware law against expenses,
judgments, fines, settlements and other amounts actually and reasonably incurred
(including expenses of a derivative action) in connection with any proceeding,
whether actual or threatened, to which any such person may be made a party by
reason of the fact that such person is or was a director or an executive officer
of the Company or any of its affiliated enterprises. The indemnification
agreements also set forth certain procedures that will apply in the event of a
claim for indemnification thereunder.
Section 145 of the General Corporation Law of the State of
Delaware provides for indemnification in terms sufficiently broad to indemnify
such individuals, under certain circumstances, for liabilities (including
reimbursement of expenses incurred) arising under the Securities Act.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Inapplicable.
Item 8. EXHIBITS
See Exhibit Index.
Item 9. UNDERTAKINGS
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:
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(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement; and
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in the
registration statement or any material change to such information in the
registration statement;
PROVIDED, HOWEVER, that paragraphs (1)(i) and (l)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference 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.
The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each filing of
the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
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SIGNATURE
Pursuant to the requirements of the Securities Act of 1933, as amended,
the registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Sunnyvale, State of California, on March 14,
2000.
Finisar Corporation
By: /s/ Jerry S. Rawls
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Jerry S. Rawls
President and Chief Executive Officer
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SIGNATURES AND POWER OF ATTORNEY
The officers and directors of Finisar Corporation whose signatures
appear below, hereby constitute and appoint Jerry S. Rawls and Stephen K.
Workman, and each of them, their true and lawful attorneys and agents, with full
power of substitution, each with power to act alone, to sign and execute on
behalf of the undersigned any amendment or amendments to this registration
statement on Form S-8, and each of the undersigned does hereby ratify and
confirm all that each of said attorney and agent, or their or his substitutes,
shall do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed by the following persons in the
capacities and on the dates indicated.
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<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ Jerry S. Rawls
- ------------------------------- President, Chief Executive Officer and March 9, 2000
Jerry S. Rawls Director
(Principal Executive Officer)
/s/ Stephen K. Workman
- ------------------------------- Vice President, Finance, Chief Financial March 9, 2000
Stephen K. Workman Officer and Secretary
(Principal Financial and Accounting
Officer)
- ------------------------------- Director March , 2000
Michael C. Child
/s/ Roger C. Ferguson
- ------------------------------- Director March 9, 2000
Roger C. Ferguson
/s/ Richard B. Lieb
- ------------------------------- Director March 9, 2000
Richard B. Lieb
/s/ Larry D. Mitchell
- ------------------------------- Director March 10, 2000
Larry D. Mitchell
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EXHIBIT INDEX
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4.1 Restated Certificate of Incorporation of the Company is incorporated
by reference to Exhibit 3.5 to the Company's Registration Statement on
Form S-1/A filed with the Securities and Exchange Commission on
October 19, 1999 ( No. 333-87017)
4.2 Bylaws of the Company are incorporated by reference to Exhibit 3.4 to
the Company's Registration Statement on Form S-1/A filed with the
Securities and Exchange Commission on October 19, 1999 (No. 333-87017)
5 Opinion re legality
23.1 Consent of Counsel (included in Exhibit 5)
23.2 Consent of Ernst & Young LLP, Independent Auditors
24 Power of Attorney (included in signature pages to this registration
statement)
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EXHIBIT 5
[LETTERHEAD OF GRAY CARY WARE & FREIDENRICH LLP]
400 Hamilton Avenue, Palo Alto, CA 94301-1825
Phone: 650-833-2000 Fax: 650-327-3699 www.graycary.com
March 17, 2000
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
As legal counsel for Finisar Corporation, a Delaware corporation (the
"Company"), we are rendering this opinion in connection with the registration
under the Securities Act of 1933, as amended, of up to 6,933,007 shares of the
Common Stock, $0.001 par value, of the Company which may be issued pursuant to
the exercise of options and purchase rights granted under the Finisar
Corporation 1989 Stock Option Plan, 1999 Stock Option Plan and 1999 Employee
Stock Purchase Plan (the "Plans").
We have examined all instruments, documents and records which we deemed relevant
and necessary for the basis of our opinion hereinafter expressed. In such
examination, we have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals and the conformity to
the originals of all documents submitted to us as copies. We are admitted to
practice only in the State of California and we express no opinion concerning
any law other than the law of the State of California, the corporation laws of
the State of Delaware and the federal law of the United States. As to matters of
Delaware corporation law, we have based our opinion solely upon our examination
of such laws and the rules and regulations of the authorities administering such
laws, all as reported in standard, unofficial compilations. We have not obtained
opinions of counsel licensed to practice in jurisdictions other than the State
of California.
Based on such examination, we are of the opinion that the 6,933,007 shares of
Common Stock which may be issued under the Plans are duly authorized shares of
the Company's Common Stock, and, when issued against receipt of the
consideration therefor in accordance with the provisions of the Plans, will be
validly issued, fully paid and nonassessable. We hereby consent to the filing of
this opinion as an exhibit to the Registration Statement referred to above and
the use of our name wherever it appears in said Registration Statement.
Respectfully submitted,
/s/ GRAY CARY WARE & FREIDENRICH LLP
GRAY CARY WARE & FREIDENRICH LLP
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Exhibit 23.2
CONSENT OF ERNST & YOUNG LLP INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement on
Form S-8 pertaining to the 1989 Stock Option Plan, the 1999 Stock Option Plan
and the 1999 Employee Stock Purchase Plan of Finisar Corporation of our
report dated June 25, 1999, with respect to the financial statements of
Finisar Corporation included in its Registration Statement on Form S-1
(No. 333-87017) for the year ended April 30, 1999, filed with the Securities
and Exchange Commission.
/s/ Ernst & Young LLP
Palo Alto, California
March 14, 2000
