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Filed with the Securities and Exchange Commission on December 15, 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
Options Granted Under
the Sensors Unlimited, Inc. Second Amended and Restated
1997 Stock Option Plan and
the Demeter Technologies, Inc. 2000 Stock Option Plan
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(Full title of the plan)
Stephen K. Workman
Vice President, Finance and Chief Financial 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
Title of Proposed maximum maximum Amount of
Securities to be Amount to be offering price aggregate offering registration
registered(1) registered(2) per share(3) price(3) fee
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ASSUMED OPTIONS UNDER THE SENSORS UNLIMITED, INC. SECOND AMENDED AND RESTATED 1997 STOCK
OPTION PLAN
Common Stock, 381,417 $34.63 $13,208,470.71
Par Value $0.001
ASSUMED OPTIONS UNDER THE DEMETER TECHNOLOGIES, INC. 2000 STOCK OPTION PLAN
Common Stock, 566,573 $34.63 $19,620,422.99
Par Value $0.001
TOTALS 947,990 $34.63 $32,828,893.70 $8,666.83
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(1) The securities to be registered include options 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
assumed by registrant under the Sensors Unlimited, Inc. Second Amended and
Restated 1997 Stock Option Plan and the Demeter Technologies, Inc. 2000 Stock
Option Plan, the price is computed on the basis of the weighted average exercise
price.
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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 annual report on Form 10-K filed pursuant
to Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), containing audited financial statements for the Company's
latest fiscal year ended April 30, 2000 as filed with the Securities and
Exchange Commission on July 31, 2000.
(b) The Company's quarterly report on Form 10-Q filed pursuant to
Sections 13(a) or 15(d) of the Exchange Act, as filed with the Securities and
Exchange Commission on September 13, 2000.
(c) The Company's quarterly report on Form 10-Q filed pursuant to
Sections 13(a) or 15(d) of the Exchange Act, as filed with the Securities and
Exchange Commission on December 13, 2000.
(d) All other reports filed pursuant to Section 13(a) or 15(d) of
the Exchange Act since the end of the fiscal year covered by the document
referred to in (a) above.
(e) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A 12G 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 ("Gray Cary"). As of December 12, 2000 certain attorneys of
Gray Cary owned 9,900 shares of Common Stock of the Company.
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Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 102(b) of the General Corporation Law of the State of
Delaware authorizes a corporation to provide in its certificate of incorporation
that a director of the corporation shall not be personally liable to 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 a director's duty
of 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 has entered 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.
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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:
(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
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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 December 15,
2000.
Finisar Corporation
By: /s/ Stephen K. Workman
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Stephen K. Workman
Vice President, Finance and
Chief Financial 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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SIGNATURE TITLE DATE
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/s/ Jerry S. Rawls President, Chief Executive Officer December 15, 2000
----------------------- and Director
Jerry S. Rawls (Principal Executive Officer)
/s/ Stephen K. Workman Vice President, Finance and December 15, 2000
----------------------- Chief Financial Officer
Stephen K. Workman (Principal Financial and
Accounting Officer)
/s/ Frank H. Levinson
----------------------- Chairman of the Board of December 15, 2000
Frank H. Levinson Directors
/s/ Michael C. Child
----------------------- Director December 15, 2000
Michael C. Child
/s/ Roger C. Ferguson
----------------------- Director December 15, 2000
Roger C. Ferguson
/s/ Richard B. Lieb
----------------------- Director December 15, 2000
Richard B. Lieb
/s/ Larry D. Mitchell
----------------------- Director December 15, 2000
Larry D. Mitchell
/s/ Gregory H. Olsen
----------------------- Director December 15, 2000
Gregory H. Olsen
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EXHIBIT INDEX
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4.1 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)
4.4 Agreement and Plan of Reorganization dated as of August 16, 2000 by and
among Finisar Corporation, a Delaware corporation, Gemstone Acquisition
Corp., a Delaware corporation and a wholly-owned subsidiary of Finisar
Corporation, Sensors Unlimited, Inc., a New Jersey corporation, and
Certain Principal Shareholders is incorporated by reference to Exhibit
2.1 to the Company's Current Report on Form 8-K filed with the
Securities and Exchange Commission on November 1, 2000 (File No.
000-27999)
4.5 Agreement and Plan of Reorganization dated as of November 20, 2000 by
and among Finisar Corporation, a Delaware corporation, Onyx Acquisition
Corp., a Delaware corporation and a wholly-owned subsidiary of Finisar
Corporation, and Demeter Technologies, Inc., a Delaware corporation, is
incorporated by reference to Exhibit 2.2 to the Company's Current Report
on Form 8-K filed with the Securities and Exchange Commission on
December 6, 2000 (File No. 000-27999)
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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