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As Filed with the Securities and Exchange Commission on December 28, 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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EMULEX CORPORATION
(Exact Name of Registrant as Specified in its Charter)
Delaware 51-0300558
(State or Other Jurisdiction of (IRS Employer
Incorporation or Organization) Identification No.)
3535 Harbor Boulevard
Costa Mesa, California 92626
(Address of Principal Executive Offices) (Zip Code)
EMULEX CORPORATION EMPLOYEE STOCK OPTION PLAN
EMULEX CORPORATION 1997 STOCK OPTION PLAN FOR NON-EMPLOYEE DIRECTORS
EMULEX CORPORATION EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plans)
PAUL F. FOLINO
PRESIDENT AND CHIEF EXECUTIVE OFFICER
EMULEX CORPORATION
3535 Harbor Boulevard
Costa Mesa, California 92626
(Name and Address of Agent for Service)
(714) 662-5600
(Telephone number, including area code, of agent for service)
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Copies of Communications to:
ROBERT M. STEINBERG, ESQ.
JEFFER, MANGELS, BUTLER & MARMARO LLP
2121 Avenue of the Stars, Tenth Floor
Los Angeles, California 90067
(310) 203-8080
Fax: (310) 203-0567
CALCULATION OF REGISTRATION FEE
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Title of Securities Amount Proposed Proposed Amount of
to be to be Maximum Offering Maximum Aggregate Registration
Registered(1) Registered(1)(3) Price Per Share(2)(3) Offering Price(2) Fee(2)
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<S> <C> <C> <C> <C>
Common Stock, par value $0.10 9,650,000 shares $38.504346 $371,566,945
per share, to be issued under
Employee Stock Option Plan
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Common Stock, par value $0.10 1,480,000 shares $ 50.05707 $ 74,084,466
per share, to be issued under
1997 Stock Option Plan for
Non-Employee Directors
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Common Stock, par value $0.10 200,000 shares $ 63.75 $ 12,750,000
per share, to be issued under
Employee Stock Purchase Plan
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TOTALS: 11,330,000 shares $458,401,411 $114,600.35
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</TABLE>
(1) Pursuant to Rule 416(a), also covers additional securities that may be
offered as a result of stock splits, stock dividends or similar
transactions. Registered securities include attached preferred stock
purchase rights issuable pursuant to the registrant's existing Rights Plan.
(2) Estimated in accordance with Rules 457(h) and 457(c) under the Securities
Act of 1933 solely for the purpose of calculating the total registration fee
based on the price at which outstanding options may be exercised and, with
respect to all other registered shares, $63.75, which represents the last
sale reported on the NASDAQ National Market System on December 21, 2000.
(3) Number of shares and per share price have been adjusted to reflect the
two-for-one stock split that became effective with respect to the trading
price of the registrant's common stock on December 16, 2000.
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PURSUANT TO GENERAL INSTRUCTION E OF FORM S-8, THIS REGISTRATION STATEMENT
REGISTERS ADDITIONAL SHARES COVERED BY REGISTRATION STATEMENT NO. 33-40959 FILED
JUNE 3, 1991 AND REGISTRATION STATEMENT NO. 333-01533, AND THE CONTENTS OF SUCH
REGISTRATION STATEMENTS ARE INCORPORATED BY REFERENCE EXCEPT AS REVISED HEREIN.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents are incorporated by this reference into this
Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended July 2, 2000, filed pursuant to Section 13 of the Securities Exchange Act
of 1934, as amended (the "Exchange Act").
(b) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended October 1, 2000, filed pursuant to Section 13 of the Exchange Act.
(c) The description of the Registrant's Common Stock to be offered
hereby which is contained in its Registration Statement on Form 8-A filed March
28, 1983 pursuant to Section 12 of the Exchange Act.
(d) The description of our preferred stock purchase rights contained in
our Registration Statement on Form 8-A dated February 2, 1986.
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 registered have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference into this Registration Statement and to
be a part hereof from the date of filing of such documents. after the date of
this prospectus and prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this prospectus and to be part hereof from the date of filing such
documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As permitted by Section 145 of the Delaware General Corporation Law
("Section 145"), the Registrant's Certificate of Incorporation provides that the
directors will not be liable to the Registrant or to any Stockholder for
monetary damages for breach of fiduciary duty as a director, to the full extent
that such limitation or elimination of liability is permitted under Delaware
law.
Also as permitted by Section 145, the Registrant's Bylaws provide that
the Registrant will indemnify its directors and officers to the full extent
permitted under Delaware law. Pursuant to the Bylaws and Section 145, the
Registrant will indemnify each director and officer against any liability
incurred in connection with any action, suit, proceeding or investigation in
which he may be involved by reason of serving in such capacity at the request of
the Registrant.
Each director and officer is also entitled to indemnification against
costs and expenses (including attorneys' fees) incurred in defending or
investigating any action, suit, proceeding or investigation in which he may
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be involved by reason of serving in such capacity at the request of the
Registrant. The Bylaws authorize the Registrant to advance funds to a director
or officer for such costs and expenses (including attorneys' fees) upon receipt
of an undertaking in writing by such director or officer to repay such amounts
if it is ultimately determined that he or she is not entitled to be indemnified.
Notwithstanding the foregoing, no advance shall be made by the Registrant if a
determination is reasonably and promptly made by the Board by a majority vote of
a quorum of disinterested directors, or (if such a quorum is not obtainable or,
even if obtainable, a quorum of disinterested directors so directs) by
independent legal counsel, that based upon the facts known to the Board or
counsel at the time such determination is made: (i) the director or officer
acted in bad faith or deliberately breached his duty to the Registrant or its
stockholders; and (ii) as a result of such actions by the director or officer,
it is more likely than not that it will ultimately be determined that such
director or officer is not entitled to indemnification.
The indemnification and advancement of expenses provided by the Bylaws
are not exclusive of any other rights to which a director or officer seeking
indemnification or advancement of expenses may be entitled under the Bylaws, any
agreement or any vote of stockholders or disinterested directors or otherwise.
The indemnification and advancement of expenses provided by the Bylaws continue
as to a person who has ceased to be a director or officer and inure to the
benefit of the heirs, executors and administrators of such a person.
The Registrant has purchased a directors' and officers' liability
insurance policy insuring directors and officers of the Registrant against any
liability asserted against such person and incurred by such person in any such
capacity, whether or not the Registrant would have the power to indemnify such
person against such liability under the Bylaws.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
The Exhibits to this Registration Statement are listed in the Index to
Exhibits which is incorporated herein by this reference.
ITEM 9. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement to include any
material information with respect to the plan of distribution not previously
disclosed in the Registration Statement or any material change to such
information in the Registration Statement;
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; and
(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 (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 into 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, the
Registrant certifies that it has reasonable grounds to believe that it meets all
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 Costa Mesa, State of California, on the 21st day of
December, 2000.
EMULEX CORPORATION
By: /s/ PAUL F. FOLINO
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Paul F. Folino, President and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Paul F. Folino and Robert H. Goon,
jointly and severally, his attorneys-in-fact, each with the power of
substitution, for him in any and all capacities, to sign any amendments
(including post-effective amendments) to this Registration Statement on Form
S-8, and to file the same, with exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, hereby
ratifying and confirming all that each of said attorneys-in-fact, or his
substitute or substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons on behalf
of the Registrant in the capacities and on the dates indicated.
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SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ PAUL F. FOLINO President, Chief Executive Officer and December 21, 2000
---------------------------------- Director (Principal Executive Officer)
PAUL F. FOLINO
/s/ FRED B. COX Chairman of the Board and Director December 21, 2000
----------------------------------
FRED B. COX
/s/ MICHAEL J. ROCKENBACH Chief Financial Officer (Principal December 21, 2000
---------------------------------- Financial Officer and Accounting
MICHAEL J. ROCKENBACH Officer)
/s/ MICHAEL P. DOWNEY Director December 21, 2000
----------------------------------
MICHAEL P. DOWNEY
/s/ BRUCE C. EDWARDS Director December 21, 2000
----------------------------------
BRUCE C. EDWARDS
/s/ ROBERT H. GOON Director December 21, 2000
----------------------------------
ROBERT H. GOON
/s/ DON M. LYLE Director December 21, 2000
----------------------------------
DON M. LYLE
</TABLE>
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INDEX TO EXHIBITS
Exhibit
Number Description
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4.1 Certificate of Incorporation (incorporated by reference to
Exhibit 3.1 to Registration Statement on Form S-4 [File No.
33-9995] filed November 6, 1986, as amended by post-effective
amendment filed on June 15, 1989).
4.2 Amendment to Certificate of Incorporation (incorporated by
reference to Annex B to the Registrant's Proxy Statement dated
January 24, 1994, filed January 24, 1994, for the Special Meeting
of Stockholders held on February 24, 1994).
4.3 Certificate of Amendment of Certificate of Incorporation of the
Registrant, effective December 15, 1999 (incorporated by
reference to Exhibit 3.3 to the Registrant's Annual Report on
Form 10-K405 filed September 18, 2000).
4.4 Amendment to Certificate of Incorporation, effective November 30,
2000.
4.5 By-laws (incorporated by reference to Exhibit 4.2 to Registration
Statement on Form S-8 [File No. 33-40959] filed June 3, 1991).
5.1 Opinion of Jeffer, Mangels, Butler & Marmaro LLP as to legality
of securities being registered.
23.1 Consent of KPMG LLP.
23.2 Consent of Jeffer, Mangels, Butler & Marmaro LLP (reference is
made to Exhibit 5.1).
24.1 Power of Attorney (contained on page II-2).
99.1 Emulex Corporation Employee Stock Option Plan, as amended.
99.2 Emulex Corporation 1997 Stock Option Plan for Non-Employee
Directors, as amended.
99.3 Emulex Corporation Employee Stock Purchase Plan, as amended.
