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As Filed With the Securities and Exchange Commission on July 10, 2000
Registration No. 333-___________
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SECURITIES AND EXCHANGE COMMISSION
Washington. D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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NEWPORT CORPORATION
(Exact name of registrant as specified in its charter)
Nevada 94-0849175
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1791 Deere Avenue, Irvine, California 92606
(Address of Principal Executive Offices) (Zip Code)
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1992 STOCK INCENTIVE PLAN
1999 STOCK INCENTIVE PLAN
EMPLOYEE STOCK PURCHASE PLAN
(Full titles of the plans)
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Robert G. Deuster, Chairman and Chief Executive Officer
Newport Corporation
1791 Deere Avenue
Irvine, California 92606
(Name and address of agent for service)
(949) 863-3144
(Telephone number, including area code, of agent for service)
Copy to:
William R. Rauth III, Esq.
Stradling Yocca Carlson & Rauth, a Professional Corporation
660 Newport Center Drive, Suite 1600, Newport Beach, California 92660
(949) 725-4000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Title of Securities Amount To Be Proposed Maximum Amount of Registration
To Be Registered Registered/(1)/ Aggregate Offering Price Fee
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<S> <C> <C> <C>
Common Stock,
$0.1167 stated value 5,687,318 shares $336,868,177 (2) $88,933.20
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</TABLE>
(1) 2,100,000 shares of Common Stock (adjusted for 3-for-1 split) available for
issuance under the 1992 Stock Incentive Plan (the "1992 Plan") were
registered on a Registration Statement on Form S-8 on February 19, 1993.
750,000 shares of Common Stock (adjusted for 3-for-1 split) available for
issuance under the Employee Stock Purchase Plan (the "Purchase Plan") were
registered on a Registration Statement on Form S-8 on December 5, 1994. The
number of shares issuable under the 1992 Plan will be further increased
annually by a number equal to two percent (2%) of the number of our
outstanding shares of Common Stock as of the last day of each fiscal year.
The "Amount To Be Registered" includes additional shares of Common Stock
that may become issuable pursuant to the anti-dilution adjustment
provisions of the 1992 Plan, the 1999 Stock Incentive Plan (the "1999
Plan") and the Purchase Plan.
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(2) In accordance with Rule 457(h), the aggregate offering price of 1,887,318
shares of Common Stock registered hereby which would be issued upon
exercise of options granted under the 1992 Plan and the 1999 Plan is based
upon the per share exercise price of such options, the weighted average of
which is approximately $8.502 per share. With respect to the remaining
2,600,000 shares of Common Stock registered hereby which would be issued
upon exercise of the remaining options and rights to purchase which
Registrant is authorized to issue under its 1992 Plan and 1999 Plan, the
aggregate offering price is estimated solely for purposes of calculating
the registration fee, in accordance with Rule 457(h) on the basis of the
price of securities of the same class, as determined in accordance with
Rule 457(c), using the average of the high and low price reported by the
Nasdaq National Market for the Common Stock on July 7, 2000, which was
$88.625 per share. For the purposes of the 1,200,000 shares of Common Stock
to be issued under the Purchase Plan, the aggregate offering price was
estimated using a per share price of $75.331, or 85% of $88.625, which
price per share is the estimated basis at which the shares will be issued
pursuant to the Purchase Plan.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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The following documents are incorporated herein by reference:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1999.
(b) All other reports filed by the Registrant pursuant to Sections 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 annual report referred to in (a)
above.
(c) The description of the Registrant's Common Stock which is contained in
the Registrant's Registration Statement on Form 8-A filed under Section 12 of
the Exchange Act, including any amendment or report filed for the purpose of
updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-
effective amendment which indicates that all securities offered have been sold
or which deregisters all of such securities then remaining unsold, shall be
deemed to be incorporated herein by reference and to be a part hereof from the
date of filing of such documents, except as to any portion of any future annual
or quarterly report to stockholders or document that is not deemed filed under
such provisions. For the purposes of this registration statement, any statement
in a document incorporated by reference shall be deemed to be modified or
superseded to the extent that a statement contained in this registration
statement modifies or supersedes a statement in such document. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this registration statement.
Item 4. Description of Securities.
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Not applicable.
Item 5. Interests of Named Experts and Counsel.
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Not applicable.
Item 6. Indemnification of Directors and Officers.
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Article VII of the Company's Restated Bylaws provides for indemnification
of officers, directors, employees and agents of the Company as permitted by
Section 78.751 of the Nevada Revised Statutes Annotated.
Article Tenth of the Company's Articles of Incorporation provides, among
other things, that the Company shall indemnify its directors and officers to the
fullest extent permitted by Nevada law, as amended from time to time. The
effect of this provision is to obligate the Company to indemnify its directors
and officers in respect of all liabilities and expenses arising out of third
party claims, derivative claims and criminal, administrative, and investigative
proceedings, even if these persons were negligent or grossly negligent, provided
that the director or officer acted in good faith and in a manner which he or she
reasonably believed to be in or not opposed to the best interest of the Company
and, with respect to any criminal action or proceeding, had no reasonable cause
to believe that his or her conduct was unlawful.
The Company has entered into separate indemnification agreements with its
directors and officers. These agreements require the Company, among other
things, to indemnify them against liabilities that may arise by reason of their
status or service as directors or officers (other than liabilities arising from
actions not taken in good faith or in a manner the indemnitee believed to be
opposed to the best interests of the Company), and to advance their expenses
incurred as a result of any proceeding against them as to which they could be
indemnified. Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended (the "1933 Act"), may be permitted to
directors, officers or persons controlling the Company pursuant to the foregoing
provisions, the Company has been informed that in the opinion of the Commission,
such indemnification is against public policy as expressed in the 1933 Act and
is therefore unenforceable.
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Item 7. Exemption from Registration Claimed.
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Not applicable.
Item 8. Exhibits.
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Number Description
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4.1 1992 Stock Incentive Plan (incorporated by reference to Exhibit
10.2 to the Registrant's Annual Report on Form 10-K for the year
ended December 31, 1999).
4.2 1999 Stock Incentive Plan (incorporated by reference to Exhibit
10.11 to the Registrant's Annual Report on Form 10-K for the year
ended December 31, 1999).
4.3 Amendment to 1999 Stock Incentive Plan (incorporated by reference
to Exhibit 10.4 to the Registrant's Registration Statement on
Form S-3, Registration No. 40878).
4.4 Employee Stock Purchase Plan (incorporated by reference to
Exhibit 10.3 to the Registrant's Annual Report on Form 10-K for
the year ended December 31, 1999).
5.1 Opinion of Stradling Yocca Carlson & Rauth, a Professional
Corporation, Counsel to the Registrant.
23.1 Consent of Stradling Yocca Carlson & Rauth, a Professional
Corporation (included in the Opinion filed as Exhibit 5.1).
23.2 Consent of Independent Auditors.
24.1 Power of Attorney (included on signature page to the Registration
Statement).
Item 9. Undertakings.
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(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:
(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 this 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 (a)(1)(i) and (a)(1)(ii) shall not
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apply if the information required to be included in a post-effective amendment
by these 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.
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(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 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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SIGNATURES
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 a 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 Irvine, State of California, on the 10th day of
July, 2000.
NEWPORT
By: /s/ Robert G. Deuster
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Robert G. Deuster
Chairman of the Board, President and Chief
Executive Officer
POWER OF ATTORNEY
We, the undersigned directors and officers of Newport, do hereby constitute
and appoint Robert G. Deuster and, or Robert C. Hewitt, or either of them, our
true and lawful attorneys and agents, to sign for us or any of us in our names
and in the capacities indicated below, any and all amendments (including post-
effective amendments) to this Registration Statement, or any related
registration statement that is to be effective upon filing pursuant to Rule
462(b) under the Securities Act of 1933, as amended, and to file the same, with
all exhibits thereto and other documents required in connection therewith, and
to do any and all acts and things in our names and in the capacities indicated
below, which said attorneys and agents, or either of them, may deem necessary or
advisable to enable said corporation to comply with the Securities Act of 1933,
as amended, and any rules, regulations, and requirements of the Securities and
Exchange Commission, in connection with this Registration Statement; and we do
hereby ratify and confirm all that the said attorneys and agents, or either of
them, 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 below by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ Robert G. Deuster Chairman of the Board, President and July 10, 2000
----------------------------------------- Chief Executive Officer (Principal
Robert G. Deuster Executive Officer)
/s/ Robert C. Hewitt Vice President, Chief Financial Officer July 10, 2000
----------------------------------------- and Secretary (Principal Financial
Robert C. Hewitt Officer)
/s/ William R. Abbott Vice President and Corporate Controller July 10, 2000
----------------------------------------- (Principal Accounting Officer)
William R. Abbott
/s/ R. Jack Aplin Director July 10, 2000
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R. Jack Aplin
/s/ Robert L. Guyett Director July 10, 2000
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Robert L. Guyett
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ Kumar N. Patel Director July 10, 2000
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C. Kumar N. Patel
/s/ Kenneth F. Potashner Director July 10, 2000
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Kenneth F. Potashner
/s/ Richard E. Schmidt Director July 10, 2000
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Richard E. Schmidt
/s/ John T. Subak Director July 10, 2000
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John T. Subak
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Sequential
Number Description Page Number
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<C> <S> <C>
4.1 1992 Stock Incentive Plan (incorporated by reference to
Exhibit 10.2 to the Registrant's Annual Report on Form 10-K
for the year ended December 31, 1999).
4.2 1999 Stock Incentive Plan (incorporated by reference to
Exhibit 10.11 to the Registrant's Annual Report on Form 10-K
for the year ended December 31, 1999).
4.3 Amendment to 1999 Stock Incentive Plan (incorporated by
reference to Exhibit 10.4 to the Registrant's Registration
Statement on Form S-3, Registration No. 40878).
4.4 Employee Stock Purchase Plan (incorporated by reference to
Exhibit 10.3 to the Registrant's Annual Report on Form 10-K
for the year ended December 31, 1999).
5.1 Opinion of Stradling Yocca Carlson & Rauth, a Professional
Corporation, Counsel to the Registrant.
23.1 Consent of Stradling Yocca Carlson & Rauth, a Professional
Corporation (included in the Opinion filed as Exhibit 5.1).
23.2 Consent of Independent Auditors.
24.1 Power of Attorney (included on signature page to the
Registration Statement).
</TABLE>
