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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 15, 1997
REGISTRATION NO. 333-27931
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_______________
FORM S-3/A
AMENDMENT NO. 1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_______________
UNIPHASE CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 94-2579683
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
163 BAYPOINTE PARKWAY
SAN JOSE, CALIFORNIA 95134
(408) 434-1800
(Address, Including Zip Code, and Telephone Number, Including Area Code, of
Registrant's Principal Executive Offices)
KEVIN N. KALKHOVEN
PRESIDENT AND CHIEF EXECUTIVE OFFICER
UNIPHASE CORPORATION
163 BAYPOINTE PARKWAY
SAN JOSE, CALIFORNIA 95134
(408) 434-1800
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
of Agent for Service)
_______________
Copies to:
MICHAEL C. PHILLIPS, ESQ.
JUSTIN L. BASTIAN, ESQ.
MORRISON & FOERSTER LLP
755 PAGE MILL ROAD
PALO ALTO, CA 94304-1018
(415) 813-5600
_______________
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon
as practicable after this Registration Statement becomes effective.
If any of the securities being registered on this form are to be
offered pursuant to dividend or interest reinvestment plans, please check the
following box. [ ]
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, other than securities offered only in connection with
dividend or interest reinvestment plans, 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, check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ] ____________
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. [ ]
_______________
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED BE REGISTERED(1) PER SHARE(2) PRICE(2) REGISTRATION FEE
<S> <C> <C> <C> <C>
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Common Stock, $.001 par value(1)...... 665,568 shares $39.125 $26,040,348 $9,340.64
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(1) Issued and outstanding shares of Common Stock to be sold by a certain
Selling Stockholder.
(2) 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 National Market on April
30, 1997, in accordance with Rule 457(c) promulgated under the
Securities Act of 1933.
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 WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus supplement shall not constitute an offer to sell or
the solicitation of an offer to buy nor shall there be any sale of these
securities in any State in which such offer, solicitation or sale would be
unlawful prior to registration or qualification under the securities laws of
any such State.
SUBJECT TO COMPLETION, DATED JULY 15, 1997
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SUBJECT TO COMPLETION
665,568 SHARES
UNIPHASE CORPORATION
COMMON STOCK
This Prospectus relates to the offer and sale from time to time by the
holder (the "Selling Stockholder") of up to 665,568 shares (the "Shares") of
Common Stock, par value $.001 per share (the "Common Stock") of Uniphase
Corporation (the "Company"). The Company is registering the Shares pursuant to
a Common Stock Purchase Agreement dated as of November 20, 1995 by and between
the Company and the Selling Stockholder, to provide the Selling Stockholder
with freely tradable securities. The registration of the Shares does not
necessarily mean that any of the Shares will be offered and sold by the holder
thereof. See "Use of Proceeds" and "Registration Rights."
The Common Stock is listed on the Nasdaq National Market ("Nasdaq")
under the symbol "UNPH." On July 15, 1997, the last reported sales price as
reported by Nasdaq was $64.00 per share. See "Price Range of Common Stock."
SEE "RISK FACTORS" COMMENCING ON PAGE 5 FOR A DISCUSSION OF CERTAIN
FACTORS THAT SHOULD BE CONSIDERED BY PROSPECTIVE PURCHASERS OF THE COMMON STOCK
OFFERED HEREBY.
_______________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
_______________
The Selling Stockholder from time to time may offer and sell the
Shares held by them directly or through agents or broker-dealers on terms to be
determined at the time of sale. To the extent required, the names of any agent
or broker-dealer and applicable commissions or discounts and any other required
information with respect to any particular offer will be set forth in an
accompanying Prospectus Supplement. See "Plan of Distribution." The Selling
Stockholder reserves the right to accept or reject, in whole or in part, any
proposed purchase of the Shares to be made directly or through agents.
The Company will not receive any of the proceeds from the sale of
Shares by the Selling Stockholder but has agreed to bear certain expenses of
registration of the Shares under Federal and state securities laws.
The Selling Stockholder and any agents or broker-dealers that
participate with the Selling Stockholder in the distribution of Shares may be
deemed to be "underwriters" within the meaning of the Securities Act of 1933,
as amended (the "Securities Act"), and any commissions received by them and any
profit on the resale of the Shares may be deemed to be underwriting commissions
or discounts under the Securities Act. See "Registration Rights" for
indemnification arrangements between the Company and the Selling Stockholder.
The date of this Prospectus is , 1997
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AVAILABLE INFORMATION
The Company is subject to the reporting requirements of the Exchange
Act, and in accordance therewith, files, annual and quarterly reports, proxy
and information statements and other information with the Securities and
Exchange Commission (the "Commission"). Such reports, proxy statements and
other information can be inspected and copied at the public reference
facilities maintained by the Commission at its office at Room 1034, 450 Fifth
Street, N.W., Washington, D.C. 20549, and at the Commission's regional offices
at Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661 and 7 World Trade Center, Suite 1300, New York, New York 10048.
Copies of such materials can be obtained from the public reference section of
the Commission, 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed
rates. The Commission maintains a website (http://www.sec.gov) containing
reports, proxy statements and other information of registrants, including the
Company, that file electronically with the Commission. In addition, the
Company's Common Stock is quoted on the Nasdaq National Market and reports,
proxy statements and other information concerning the Company can be inspected
at the National Association of Securities Dealers, Inc., 9513 Key West Avenue,
Rockville, Maryland 20850.
This Prospectus constitutes a part of a Registration Statement on Form
S-3 (herein, together with all amendments, schedules and exhibits, referred to
as the "Registration Statement") filed by the Company with the Commission under
the Securities Act. This Prospectus does not contain all of the information set
forth in the Registration Statement and certain parts are omitted in accordance
with the rules and regulations of the Commission. For further information with
respect to the Company and the Common Stock offered hereby, reference is made to
such Registration Statement. Statements contained in this Prospectus as to the
contents of any contract or other document referred to are not necessarily
complete, and in each instance, reference is made to the copy of such contract
or other document filed as an exhibit or incorporated by reference to the
Registration Statement of which this Prospectus forms a part, each such
statement being qualified in all respects by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed by the Company with the
Commission (File No. 0-22874) pursuant to the Exchange Act are incorporated
herein by reference:
(1) the Company's Annual Report on Form 10-K for the fiscal year ended
June 30, 1996;
(2) the description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed with the Commission on
November 15, 1993;
(3) the Company's Quarterly Reports on Form 10-Q for the fiscal
quarters ended September 30 and December 31, 1996, and March 31, 1997; and
(4) the Company's Current Report on Form 8-K dated March 25, 1997.
(5) the Company's Current Report on Form 8-K/A Amendment 2 filed on
June 10, 1997; and
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(6) the Company's 10-Q/A for the fiscal quarter ended March 31, 1997
filed on June 10, 1997.
All reports and other documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the
date of this Prospectus and prior to the termination of the offering of the
Common Stock hereunder shall be deemed to be incorporated by reference herein
and to be a part hereof from the date of the filing of such reports and
documents. The Company hereby undertakes to provide without charge to each
person, including any beneficial owner, to whom a copy of this Prospectus is
delivered, upon written or oral request of such person a copy of any or all of
the foregoing documents incorporated herein by reference (exclusive of
exhibits, unless such exhibits are specifically incorporated by reference into
such documents). Requests for such documents should be submitted in writing to
the Corporate Secretary at the corporate headquarters of the Company at 163
Baypointe Parkway, San Jose, California 95134 or by telephone at (408)
434-1800.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any other subsequently filed document that also is or is deemed to be
incorporated by reference herein modified or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of the Registration Statement or this
Prospectus.
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The statements contained in this Prospectus that are not purely
historical are forward-looking statements within the meaning of Section 27A of
the Securities Act of 1933 and Section 21E of the Securities Exchange Act of
1934, including statements regarding the Company's expectations, hopes, beliefs,
intentions or strategies regarding the future. Actual results could differ from
those projected in any forward- looking statements for the reasons detailed in
other sections of this "Risk Factors" portion of this Prospectus. The
forward-looking statements are made as of the date of this Prospectus and the
Company assumes no obligation to update the forward-looking statements, or to
update the reasons why actual results could differ from those projected in the
forward-looking statements.
THE COMPANY
Uniphase Corporation ("Uniphase" or the "Company") is an
optoelectronics company that designs, develops, manufactures and markets laser
subsystems, laser-based semiconductor wafer defect examination and analysis
equipment and fiber optic telecommunications equipment products. Optoelectronics
is a technology that extends the speed and capacity of conventional electronic
solutions by addressing many of the constraints of the electron with the
particle of light, the photon. A common source of the photon in optoelectronics
is the laser. By combining electronics, photonics and software, optoelectronics
has enabled new technologies such as CD-ROMs and fiber optic communication, and
has created new solutions for existing markets.
Since its founding, Uniphase has shipped over one million lasers and
has become a leading supplier of laser subsystems for OEMs in a variety of
markets, including CATV, long haul telecommunications, semiconductor wafer
inspection, biotechnology, and graphics and printing markets. The Company
focuses on selling its laser subsystems to such customers at the design-in phase
of a product, creating the potential for recurring sales throughout a product's
life.
The Company's predecessor was incorporated in California in 1979 under
the name "Uniphase Corporation." The Company was incorporated in California in
1984 under the name "Uniphase Holding, Corporation," and changed its name to
Uniphase Corporation in 1987 as part of a reorganization in which it succeeded
to the assets, liabilities and business operations of its predecessor. The
Company reincorporated in Delaware in October 1993. Unless the context otherwise
requires, the terms "Uniphase" and the "Company" refer to Uniphase Corporation,
a Delaware corporation, its California predecessors and its subsidiaries. The
Company's principal executive offices are located at 163 Baypointe Parkway, San
Jose, California 95134 and its telephone number is (408) 434-1800.
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RISK FACTORS
In evaluating the Company's business, prospective investors should
carefully consider the following factors in addition to the other information
presented in this Prospectus and in the documents incorporated by reference
herein.
MANAGEMENT OF GROWTH; UTP FIBREOPTICS AND ULE ACQUISITION
The Company has experienced recent growth through increased levels of
operations in its existing businesses, the acquisition of UTP in May 1995 and
the acquisition of ULE in March 1997. The Company is devoting significant
resources to develop new solid state lasers for OEM customers, to improve
products and increase market penetration of its Ultrapointe Systems and to
increase its penetration of the CATV and telecommunications industries. In
addition, the Company is now increasing its marketing, customer support and
administrative functions in order to support an increased level of operations
primarily from sales of its telecommunications equipment products. No assurance
can be given that the Company will be successful in creating this infrastructure
or that any increase in the level of such operations will justify the increased
expense levels associated with these businesses.
In May 1996, the Company acquired UTP Fibreoptics. As a result of
acquiring UTP Fibreoptics, the Company has entered the local telecommunications
and data communications market in which it had no previous experience, and has
expanded its employee base. The success of the UTP Fibreoptics acquisition will
be dependent on the Company's ability to integrate UTP Fibreoptics into its
existing operations as a division of UTP. UTP's ability to manage UTP
Fibreoptics will be complicated by the geographical distance between UTP's
facilities in Bloomfield, Connecticut and Chalfont, Pennsylvania and UTP
Fibreoptics's locations in the United Kingdom and in Batavia, Illinois. There
can be no assurance that the operations of UTP Fibreoptics can be successfully
integrated into UTP or that such integration will not strain the Company's
available management, manufacturing, financial and other resources.
In March 1997, the Company acquired ULE. As a result of acquiring ULE,
the Company has gained access to a proven semiconductor based laser application
for use in telecommunications. The success of the ULE acquisition will be
dependent upon the Company's ability to integrate ULE 980nm lasers and future
products used in erbium doped fiber amplifiers (EDFA) and to many major
telecommunication equipment manufacturers. There can be no assurance that the
ULE operations can be successfully integrated into UTP or that such integration
will not strain the Company's available management, manufacturing, financial and
other resources.
The Company also made capital expenditures in fiscal 1996 to acquire
certain properties in San Jose, California totaling 109,000 square feet, which
included land, buildings and improvements for an aggregate purchase price of
approximately $11.0 million and continues to invest in property, plant and
equipment needed for its business requirements, including adding to
manufacturing capacity throughout the Company. Any failure to utilize these
areas in an efficient manner could have a material adverse effect on the
Company.
The Company currently has no commitments with respect to any future
acquisitions. The Company, however, frequently evaluates the strategic
opportunities available to it and may in the future pursue acquisitions of
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additional complementary products, technologies or businesses. Such
acquisitions by the Company may result in the diversion of management's
attention from the day-to-day operations of the Company's business and may
include numerous other risks, including difficulties in the integration of the
operations and products, integration and retention of personnel of the acquired
companies and certain financial risks. Further acquisitions by the Company may
result in dilutive issuances of equity securities, the incurrence of additional
debt, reduction of existing cash balances, amortization expenses related to
goodwill and other intangible assets and other charges to operations that may
materially adversely affect the Company's business, financial condition or
operating results.
CYCLICALITY OF SEMICONDUCTOR INDUSTRY
The Company's Ultrapointe Systems and a portion of its laser subsystems
businesses depend upon capital expenditures by manufacturers of semiconductor
devices, including manufacturers that are opening new or expanding existing
fabrication facilities, which, in turn, depend upon the current and anticipated
market demand for semiconductor devices and the products utilizing such devices.
The semiconductor industry is highly cyclical, and historically has experienced
periods of oversupply, resulting in significantly reduced demand for capital
equipment. Recently, the semiconductor industry has experienced a downturn which
has led certain of the Company's customers to delay or cancel purchase of the
Company's Ultrapointe Systems. Results of operations for the third quarter of
fiscal 1997 ended March 31, 1997 include sales of Ultrapointe product totaling
$2.7 million, down from $5 million in the first quarter of fiscal 1996. The
Company believes the short-term outlook for Ultrapointe products is improving as
evidenced by an increase in backlog to 12 systems at the end of the third fiscal
quarter of 1997 - most of which is deliverable during the fourth quarter. There
can be no assurance that the Company's operating results will not be materially
and adversely affected by these factors. Furthermore, there can be no assurance
that the semiconductor industry will not experience further downturns or
slowdowns in the future, which may materially and adversely affect the Company's
business and operating results.
GALLIUM ARSENIDE
Gallium Arsenide, referred to as GaAs, is a semiconductor material that
has an electron mobility that is up to five times faster than silicon. As a
result, it is possible to design GaAs circuits that operate at significantly
higher frequencies than silicon circuits. At similar frequencies, GaAs circuits
will produce higher signal strength (gain) and lower background interference
(noise) than silicon circuits, permitting the transmission and reception of
information over longer distances. GaAs circuits can also be designed to consume
less power and operate more efficiently at lower voltages than silicon circuits.
The fabrication of integrated circuits, particularly GaAs devices such
as those sold by ULE is a highly complex and precise process. Minute impurities,
difficulties in the fabrication process, defects in the masks used to print
circuits on a wafer, wafer breakage or other factors can cause a substantial
percentage of wafers to be rejected or numerous die on each wafer to be
nonfunctional. Management considers wafer yields in excess of 18% achieving
internal lot validation criteria to be acceptable. ULE has in the past and may
be in the future experience lower than expected production yields, which could
delay product shipments and adversely affect gross margins, and there can be
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no assurance that ULE will be able to maintain acceptable yields in the future.
Because the majority of ULE manufacturing costs are relatively fixed,
manufacturing yields are critical to the results of operations. To the extent
ULE does not achieve acceptable manufacturing yields or experiences product
shipment delays, its business, operating results and financial condition could
be materially and adversely affected.
RISKS FROM CUSTOMER CONCENTRATION
A relatively limited number of OEM customers historically have
accounted for a substantial portion of UTP's (including ULE) net sales. UTP's
sales to any single customer are also subject to significant variability from
quarter to quarter. Such fluctuations could have a material adverse effect on
both UTP and the Company's business, operating results or financial condition.
The Company expects that sales of UTP products to a limited number of customers
will continue to account for a high percentage of the net sales for the
foreseeable future. Moreover, there can be no assurance that UTP's current
customers will continue to place orders or that UTP will be able to obtain new
orders from new customers.
DECLINING MARKET FOR GAS LASERS; DEVELOPMENT AND OTHER RISKS RELATING TO SOLID
STATE LASER TECHNOLOGIES
Gas laser subsystems sales accounted for 74.6% and 47.7% of total
Company's sales for the fiscal years ended 1995 and 1996, respectively, and the
Company anticipates 33.0% of fiscal 1997 sales. The market for gas lasers is
mature and is expected to decline as customers transition from conventional
lasers, including gas, to solid state lasers, which are currently expected to be
the primary commercial laser technology in the future. In response to this
transition, the Company has devoted substantial resources to developing solid
state laser products. To date, sales of the Company's solid state laser products
have been limited and primarily for customer evaluation purposes. Due to the
acquisition of Laser Enterprises in March 1997, the Company's strategic focus
with respect to diode based applications has moved away from the manufacturing
and development of its existing pumped solid state laser products to the
manufacturing and development of diode lasers utilizing the 980nm pump chip
supplied by Laser Enterprise. Therefore, the Company has drastically curtailed a
significant portion of its existing diode pumped solid state laser technology.
The Company believes that a number of companies are further advanced than the
Company in their development efforts for solid state lasers and are competing
with evaluation units for many of the same design-in opportunities than the
Company is pursuing. It is anticipated that the average selling price of solid
state lasers may be significantly less in certain applications than the gas
laser products the Company is currently selling in these markets. The Company
further believes it will be necessary to continue to reduce the cost of
manufacturing and to broaden the wavelengths provided by its laser products.
There can be no assurance that the Company's solid state laser products will not
be rendered obsolete or uncompetitive by products of other companies.
VARIABILITY AND UNCERTAINTY OF QUARTERLY OPERATING RESULTS
The Company has experienced and expects to continue to experience
significant fluctuations in its quarterly results. The Company believes that
fluctuations in quarterly results may cause the market price of its Common Stock
to fluctuate, perhaps substantially. Factors which have had an influence on and
may continue to influence the Company's operating results in a
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particular quarter include the timing of the receipt of orders from major
customers, product mix, competitive pricing pressures, the relative proportions
of domestic and international sales, costs associated with the acquisition or
disposition of businesses, products or technologies, the Company's ability to
design, manufacture, and ship products on a cost effective and timely basis,
the delay between incurrence of expenses to further develop marketing and
service capabilities and realization of benefits from such improved
capabilities, the announcement and introduction of cost effective new products
by the Company and by its competitors, and expenses associated with any
intellectual property litigation. In addition, the Company's sales will often
reflect orders shipped in the same quarter that they are received. Moreover,
customers may cancel or reschedule shipments, and production difficulties could
delay shipments. The timing of sales of the Company's Ultrapointe Systems may
result in substantial fluctuations in quarterly operating results due to the
substantially higher per unit price of these products relative to the Company's
other products. In addition, the Company sells its telecommunications equipment
products to OEMs who typically order in large quantities and therefore the
timing of such sales may significantly affect the Company's quarterly results.
The timing of such OEM sales can be affected by factors beyond the Company's
control, including demand for the OEM's products and manufacturing issues
experienced by OEMs. In this regard, the Company has experienced a temporary
rescheduling of orders by OEM telecommunications customers. As a result of the
above factors, the Company's results of operations are subject to significant
variability from quarter to quarter.
There can be no assurance that other acquisitions or dispositions of
businesses, products or technologies by the Company in the future will not
result in substantial charges or other expenses that may cause fluctuations in
the Company's quarterly operating results.
The Company's operating results in a particular quarter may also be
affected by the acquisition or disposition of other businesses, products or
technologies by the Company. For example, in the fourth quarter of fiscal 1996,
the Company incurred charges totaling $7.5 million for acquired in-process
research and development related to the acquisition of UTP Fibreoptics and
compensation expense in connection with the cancellation of certain options of
UTP and granted replacement options to purchase Uniphase Common Stock to UTP
employees in order to operate UTP Fibreoptics as a division of UTP. In the
fourth quarter of fiscal 1995, the Company incurred charges totaling $5.4
million, primarily for acquired in-process research and development in
connection with the Company's acquisition of UTP, and to a lesser extent from
the loss on the sale of the Company's diode laser product line. Such charges
reduced net income per share for the fourth quarter of fiscal 1995 by $0.34 and
for fiscal 1995 by $0.33. There can be no assurance that acquisitions or
dispositions of businesses, products or technologies by the Company in the
future will not result in substantial charges or other expenses that may cause
fluctuations in the Company's quarterly operating results.
INTENSE INDUSTRY COMPETITION
The laser, semiconductor capital equipment, CATV and telecommunications
industries in which the Company sells its products are highly competitive. In
each of the markets it serves, the Company faces intense competition from
established competitors, many of which have substantially greater financial,
engineering, research and development, manufacturing, marketing, service and
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support resources. The Company is a recent entrant into the semiconductor
capital equipment, the CATV and telecommunications marketplaces and competes
with many companies in those markets that have substantially greater resources,
including greater name recognition, a larger installed base of products and
longer standing customer relationships. In order to remain competitive, the
Company must maintain a high level of investment in research and development,
marketing, and customer service and support. There can be no assurance that the
Company will be able to compete successfully in the laser, semiconductor
capital equipment, CATV or telecommunications industries in the future, that
the Company will have sufficient resources to continue to make such
investments, that the Company will be able to make the technological advances
necessary to maintain its competitive position or that its products will
receive market acceptance. The semiconductor capital equipment market is
frequently affected by new product introductions and new technologies that make
existing production and inspection equipment obsolete. There can be no
assurance that others will not introduce products which compete with the
Ultrapointe System or which render the Ultrapointe System obsolete or
uncompetitive based on existing or new technologies. In addition, there can be
no assurance that technological changes or development efforts by the Company's
competitors will not render the Company's products or technologies obsolete or
uncompetitive.
DEPENDENCE ON KEY OEM RELATIONSHIPS
In November 1995, the Company entered into an exclusive OEM resale
agreement with Tencor pursuant to which Tencor will distribute Ultrapointe
Systems through its worldwide distribution channels. As a result of such
agreement, the Company currently expects that Tencor will account for a majority
of Ultrapointe's net sales for the foreseeable future. On April 30, 1997, Tencor
and KLA Instruments merged and formed KLA-Tencor Corporation. On May 13, 1997,
the Company entered into a Memorandum of Understanding (MOU) with KLA-Tencor to
become an exclusive distributor for certain products developed and manufactured
by Ultrapointe , including Laser Imaging Systems used to analyze defects on
semiconductor wafers and photomasks during the manufacturing process as well as
automatic defect classification software products. The MOU provides an annual
minimum purchase commitment by KLA-Tencor, the level of which will be
renegotiated on an annual basis. Additionally, the Company is obligated to
ongoing research and development efforts on the product line for a period of
three years of at least 10% of the sales revenue generated under the MOU. The
parties' obligations under the agreement in principle are subject to
negotiation, the signing of definitive agreements and normal and customary
closing conditions. As a result, there can be no assurance that any definitive
agreement will be reached or if reached, will be consummated on the terms
presently contemplated. In addition, one laser subsystems customer, the Applied
Biosystems Division of Perkin-Elmer Corporation, accounted for approximately 12%
of the Company's net sales for fiscal years, 1996, 1995, and 1994, respectively.
The loss of orders from these or other OEM relationships could have a materially
adverse effect on the Company's business and operating results.
ATTRACT AND RETAIN KEY PERSONNEL
The future success of the Company is dependent, in part, on its ability
to attract and retain certain key personnel. In particular, the Company's
research and development efforts are dependent on the Company being able to hire
and retain engineering staff with the requisite qualifications. Competition in
recruiting highly skilled engineering personnel is extremely
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intense, and the Company is currently experiencing substantial difficulty in
identifying and hiring certain qualified engineering personnel in many areas of
its business. No assurance can be given that the Company will be able to
successfully hire such personnel at compensation levels that are consistent
with the Company's existing compensation and salary structure. The Company's
future success will also depend to a large extent on the continued
contributions of its executive officers and other key management and technical
personnel, none of whom has an employment agreement with the Company and each
of whom would be difficult to replace. The Company does not maintain any key
person life insurance policy on any of such persons. The loss of the services
of one or more of the Company's executive officers or key personnel or the
inability to continue to attract qualified personnel could delay product
development cycles or otherwise have a material adverse effect on the Company's
business and operating results.
CONFLICTING PATENTS AND INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES;
POTENTIAL INFRINGEMENT CLAIMS
The laser, semiconductor capital equipment, CATV and telecommunications
industries in which the Company sells its products are characterized by frequent
litigation regarding patent and other intellectual property rights. Numerous
patents in these industries are held by others, including academic institutions
and competitors of the Company. Such patents could inhibit the Company's ability
to develop new products for such markets. The industry in which the Company
operates is characterized by periodic claims of patent infringement or other
intellectual property rights. While in the past licenses generally have been
available to the Company where third-party technology was necessary or useful
for the development or production of the Company's products, there can be no
assurance that licenses to third-party technology will be available on
commercially reasonable terms, if at all. Generally, a license, if granted,
would include payments by the Company of up-front fees, ongoing royalties or a
combination thereof. There can be no assurance that such royalty or other terms
would not have a significant adverse impact on the Company's operating results.
The Company is a licensee of a number of third party technologies and
intellectual property rights and is required to pay royalties to these third
party licensors on certain of its products, including its Ultrapointe Systems
and its solid state lasers. During fiscal 1996 and for the nine month period
ended March 31, 1997, the Company expensed approximately $1.3 million and $1.2
million respectively in license and royalty fees primarily in connection with
its gas laser subsystems. In addition, there can be no assurance that third
parties will not assert claims against the Company with the Company's existing
products or with respect to future products under development by the Company. In
the event of litigation to determine the validity of any third-party claims,
such litigation could result in significant expense to the Company and divert
the efforts of the Company's technical and management personnel, whether or not
such litigation is determined in favor of the Company. In the event of an
adverse result in any such litigation, the Company could be required to expend
significant resources to develop non-infringing technology or to obtain licenses
to the technology which is the subject of the litigation. There can be no
assurance that the Company would be successful in such development or that any
such licenses would be available to the Company. In the absence of such a
license, the Company could be enjoined from future sales of the infringing
product or products. In fiscal years 1992 and 1993, the Company incurred
substantial legal expenses in connection with a patent infringement action
relating to the Company's current gas laser subsystems brought by
Spectra-Physics Lasers, Inc. ("Spectra-Physics"). While the Spectra-Physics case
has since been settled, no
10
<PAGE> 12
assurance can be given that, in the future, the Company will be able to avoid
similar actions by competitors or others or that the Company will not be forced
to initiate its own actions to protect its proprietary position.
LIMITED PROTECTION OF INTELLECTUAL PROPERTY
The Company's future success depends in part upon its intellectual
property, including trade secrets, know-how and continuing technological
innovation. There can be no assurance that the steps taken by the Company to
protect its intellectual property will be adequate to prevent misappropriation
or that others will not develop competitive technologies or products. The
Company currently holds 30 U.S. patents on products or processes and certain
corresponding foreign patents and has applications for certain patents currently
pending. While three patents have been issued with respect to the Company's
Ultrapointe Systems, no assurance can be given that competitors will not
successfully challenge the validity of these patents or design products that
avoid infringement of the Company's proprietary rights with respect to its
Ultrapointe Systems. There can be no assurance that other companies are not
investigating or developing other technologies that are similar to the
Company's, that any patents will issue from any application pending or filed by
the Company or that, if patents do issue, the claims allowed will be
sufficiently broad to deter or prohibit others from marketing similar products.
In addition, there can be no assurance that any patents issued to the Company
will not be challenged, invalidated or circumvented, or that the rights
thereunder will provide a competitive advantage to the Company. Further, the
laws of certain territories in which the Company's products are or may be
developed, manufactured or sold, including Asia, Europe or Latin America, may
not protect the Company's products and intellectual property rights to the same
extent as the laws of the United States.
DEPENDENCE ON SOLE AND LIMITED SOURCE SUPPLIERS
Various components included in the manufacture of the Company's
products are currently obtained from single or limited source suppliers. A
disruption or loss of supplies from these companies or an increase in price of
these components would have a material adverse effect on the Company's results
of operations, product quality and customer relationships. For example, the
Company obtains all the robotics, workstations and many optical components used
in its Ultrapointe Systems from Equipe Technologies, Silicon Graphics, Inc., and
Olympus Corporation, respectively. The Company currently utilizes a sole source
for the crystal semiconductor chip sets incorporated in the Company's solid
state microlaser products and acquires its pump diodes for use in its solid
state laser products from SDL, Inc., Opto Power Corporation and GEC. The Company
also obtains lithium niobate wafers, galium arsenide wafers, specialized fiber
components and certain lasers used in its UTP and ULE products primarily from
Crystal Technology, Inc., Fujikura, Ltd., Philips Key Modules, and Sumitomo,
respectively. The Company does not have a long-term or volume purchase
agreements with any of these suppliers, and no assurance can be given that these
components will be available in the quantities required by the Company, if at
all. Further, UTP depends on relatively specialized components and it cannot be
assured that its respective suppliers will be able to continue to meet UTP's
requirements. DIFFICULTIES IN MANUFACTURE OF THE COMPANY'S PRODUCTS
The manufacture of the Company's products involves highly complex and
precise processes, requiring production in highly controlled and clean
11
<PAGE> 13
environments. Changes in the Company's or its suppliers' manufacturing process
or the inadvertent use of defective or contaminated materials by the Company or
its suppliers could adversely affect the Company's ability to achieve
acceptable manufacturing yields and product reliability. In addition, UTP has
previously experienced certain manufacturing yield problems that have
materially and adversely affected both UTP's ability to deliver products in a
timely manner to its customers and its operating results. During the fourth
quarter of fiscal 1997, the Company anticipates launching an additional
production facility at UTP's Bloomfield, Connecticut facility. No assurance can
be given that the Company will be successful in manufacturing UTP products in
the future at performance or cost levels necessary to meet its customer needs,
if at all. In addition, UTP established a transmitter production facility in
Chalfont, Pennsylvania in March 1996 and consolidated the transmitter
production line previously located in Bloomfield, Connecticut into this
facility in April 1996. The Company has no assurance that this facility will be
able to deliver the planned production qualities of transmitters to customers
specifications at the cost and yield levels required. To the extent the Company
or UTP does not achieve and maintain yields or product reliability, the
Company's operating results and customer relationships will be adversely
affected.
FUTURE CAPITAL REQUIREMENTS
The Company is devoting substantial resources for new facilities and
equipment for Uniphase Laser Enterprise and to the development of new products
for the solid state laser, semiconductor capital equipment, CATV and
telecommunications markets. Although the Company believes existing cash
balances, cash flow from operations and available lines of credit, will be
sufficient to meet its capital requirements at least through the end of calendar
year 1997, the Company may be required to seek additional equity or debt
financing to compete effectively in these markets. The timing and amount of such
capital requirements cannot be precisely determined at this time and will depend
on several factors, including the Company's acquisitions and the demand for the
Company's products and products under development. There can be no assurance
that such additional financing will be available when needed, or, if available,
will be on terms satisfactory to the Company.
POTENTIAL VOLATILITY OF COMMON STOCK PRICE
The market price of the Company's Common Stock has recently been and is
likely to continue to be highly volatile and significantly affected by factors
such as fluctuations in the Company's operating results, announcements of
technological innovations or new products by the Company or its competitors,
governmental regulatory action, developments with respect to patents or
proprietary rights, general market conditions and other factors. Further, the
Company's net revenues or operating results in future quarters may be below the
expectations of public market securities analysts and investors. In such event,
the price of the Company's Common Stock would likely decline, perhaps
substantially. In addition, the stock market has from time to time experienced
significant price and volume fluctuations that are unrelated to the operating
performance of particular companies.
RISKS ASSOCIATED WITH INTERNATIONAL SALES
International sales accounted for approximately 28.9%, 30.3%, 24.3% and
33.1% of the Company's net revenues in fiscal years 1994, 1995, 1996 and
12
<PAGE> 14
nine-months ended March 31, 1997 respectively, and the Company expects that
international sales will continue to account for a significant portion of the
Company's net revenues. The Company may continue to expand its operations
outside of the United States and to enter additional international markets,
both of which will require significant management attention and financial
resources. International sales are subject to inherent risks, including
unexpected changes in regulatory requirements, tariffs and other trade
barriers, political and economic instability in foreign markets, difficulties
in staffing and management and integration of foreign operations, longer
payment cycles, greater difficulty in accounts receivable collection, currency
fluctuations and potentially adverse tax consequences. Since substantially all
of the Company's foreign sales are denominated in U.S. dollars, the Company's
products may also become less price competitive in countries in which local
currencies decline in value relative to the U.S. dollar. The Company's business
and operating results may also be materially and adversely affected by lower
sales levels which typically occur during the summer months in Europe and
certain other overseas markets. Furthermore, the sales of many of the Company's
OEM customers are dependent on international sales and, consequently, this
further exposes the Company to the risks associated with such international
sales.
ISSUANCE OF PREFERRED STOCK; POTENTIAL ANTI-TAKEOVER EFFECTS OF DELAWARE LAW
The Board of Directors has the authority to issue up to 1,000,000
shares of undesignated Preferred Stock and to determine the powers, preferences
and rights and the qualifications, limitations or restrictions granted to or
imposed upon any wholly unissued shares of undesignated Preferred Stock and to
fix the number of shares constituting any series and the designation of such
series, without any further vote or action by the Company's shareholders. The
Preferred Stock could be issued with voting, liquidation, dividend and other
rights superior to those of the holders of Common Stock. The issuance of
Preferred Stock under certain circumstances could have the effect of delaying,
deferring or preventing a change in control of the Company.
The Company is subject to the provisions of Section 203 of the Delaware
General Corporation Law prohibiting publicly-held Delaware corporations from
engaging in business combinations with certain stockholders for a specified
period of time without the approval of substantially all of its outstanding
voting stock. Such provisions could delay or impede the removal of incumbent
directors and could make more difficult a merger, tender offer or proxy contest
involving the Company, even if such events could be beneficial, in the short
term, to the interests of the stockholders. In addition, such provisions could
limit the price that certain investors might be willing to pay in the future for
shares of the Company's Common Stock. The Company's Certificate of Incorporation
and Bylaws contain provisions relating to the limitations of liability and
indemnification of its directors and officers, dividing its Board of Directors
into three classes of directors serving three- year terms and providing that its
stockholders can take action only at a duly called annual or special meeting of
stockholders. These provisions also may have the effect of deterring hostile
takeovers or delaying changes in control or management of the Company.
13
<PAGE> 15
SECURITIES TO BE OFFERED
This prospectus relates to the offer and sale from time to time by the
holder (the "Selling Stockholder") of up to 665,568 shares (the "Shares") of
Common Stock of the Company. The Shares were purchased by the Selling
Stockholder for cash pursuant to a Common Stock Purchase Agreement (the "Stock
Purchase Agreement") dated November 20, 1995 by and between the Company and the
Selling Stockholder, and were acquired for investment purposes. Concurrent with
the sale of the Shares, the Company and the Selling Stockholder entered into an
OEM Agreement and a License Agreement. The Company is registering the Shares
pursuant to certain registration rights contained in the Stock Purchase
Agreement to provide the Selling Stockholder with freely tradable securities.
The registration of the Shares does not necessarily mean that any of the Shares
will be offered and sold by the holder thereof.
USE OF PROCEEDS
The Company will not receive any of the proceeds from the sale of the
Shares by the Selling Stockholder but has agreed to bear certain expenses of
registration of the Shares under Federal and state securities laws.
DESCRIPTION OF THE COMPANY'S CAPITAL STOCK
The authorized capital stock of the Registrant consists of 20,000,000
shares of Common Stock, $.001 par value per share, and 1,000,000 shares of
Preferred Stock, $.001 par value per share. As of April 30, 1997, there were
16,678,086 shares of Common Stock issued and outstanding and no shares of
Preferred Stock issued and outstanding.
COMMON STOCK
The holders of Common Stock are entitled to one vote for each share
held of record on all matters submitted to a vote of the stockholders. Holders
of Common Stock do not have cumulative voting rights in the election of
directors. Subject to preferences that may be granted to any then outstanding
Preferred Stock, holders of Common Stock are entitled to receive ratably such
dividends as may be declared by the Board of Directors out of funds legally
available therefor as well as any distributions to the stockholders. In the
event of a liquidation, dissolution or winding up of the Company, holders of
Common Stock are entitled to share ratably in all assets of the Company
remaining after payment of liabilities and the liquidation preference of any
then outstanding Preferred Stock. Holders of Common Stock have no preemptive or
other subscription or conversion rights. There are no redemption or sinking fund
provisions applicable to the Common Stock. All outstanding shares of Common
Stock are, and all shares of Common Stock to be outstanding upon completion of
the offering will be, validly issued, fully paid and nonassessable.
PREFERRED STOCK
The Company's Board of Directors has the authority, without further
action by the stockholders, to issue up to 1,000,000 shares of Preferred Stock
in one or more series and to fix the rights, preferences, privileges and
restrictions thereof, including dividend rights, conversion rights, voting
rights, terms of redemption, liquidation preferences, sinking fund terms and the
number of shares constituting any series or the designation of such series,
without any further vote or action by the stockholders. The issuance of
Preferred Stock
14
<PAGE> 16
could adversely affect the voting power of holders of Common Stock and the
likelihood that such holders will receive dividend payments and payments upon
liquidation and could have the effect of delaying, deterring or preventing a
change in control of the Company. The Company has no present plan to issue any
shares of Preferred Stock.
DELAWARE ANTI-TAKEOVER LAW AND CERTAIN CHARTER PROVISIONS
Anti-Takeover Law
The Company is subject to the provisions of Section 203 of the Delaware
General Corporation Law. In general, Section 203 prohibits a publicly-held
Delaware corporation from engaging in a "business combination" with an
"interested stockholder" for a period of three years after the date of the
transaction in which the person became an interested stockholder, unless the
business combination is approved in a prescribed manner or unless the interested
stockholder acquired at least 85% of the corporation's voting stock (excluding
shares held by certain designated stockholders) in the transaction in which it
became an interested stockholder. For purposes of Section 203, a "business
combination" includes a merger, asset sale or other transaction resulting in a
financial benefit to the interested stockholder. Subject to certain expenses, an
"interested stockholder" is a person who, together with affiliates and
associates, owns, or within the previous three years did own, 15% or more of the
corporation's voting stock.
Limitation of Director and Officer Liability
The Company's Certificate of Incorporation and Bylaws contain certain
provisions relating to the limitation of liability and indemnification of
directors and officers. The Company's Certificate of Incorporation provides that
directors of the Company may not be held personally liable to the Company or its
stockholders for monetary damages for a breach of fiduciary duty, except for
liability (i) for any breach of the director's duty of loyalty to the Company or
its stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174 of
the Delaware General Corporation Law, relating to prohibited dividends,
distributions and repurchases or redemptions of stock, or (iv) for any
transaction from which the director derives an improper benefit. However, such
limitation does not limit the availability of non-monetary relief in any action
or proceeding against a director. In addition, the Company's Certificate of
Incorporation and Bylaws provide that the Company shall indemnify its directors
and officers to the fullest extent authorized by Delaware law.
Classified Board of Directors
The Company's Certificate of Incorporation provides that, so long as
the Board of Directors consists of more than two directors, the Board of
Directors will be divided into three classes of directors serving staggered
three-year terms. As a result, approximately one-third of the Company's Board of
Directors will be elected each year.
No Stockholder Action by Written Consent; Special Meetings
The Company's Certificate of Incorporation provides that stockholders
can take action only at a duty called annual or special meeting of stockholders.
Stockholders of the Company are not permitted to take action by written
15
<PAGE> 17
consent in lieu of a meeting. In addition, the Certificate of Incorporation
provides that, subject to the rights of the holders of any stock having a
preference over the Common Stock as to dividends or liquidation, special
meetings of the stockholders can be called only by the Board of Directors, the
Chairman of the Board or the Chief Executive Officer of the Company.
Stockholders are not permitted to call a special meeting or to require the
Board of Directors to call a special meeting of stockholders. These provisions
may have the effect of deterring hostile takeovers or delaying changes in
control or management of the Company.
TRANSFER AGENT AND REGISTRANT
The transfer agent and registrar for the Company's Common Stock is American
Stock Transfer & Trust Company, New York, New York.
16
<PAGE> 18
SHARES AVAILABLE FOR FUTURE SALE
As of April 30, 1997, there were 16,678,086 shares of Common Stock
issued and outstanding and no shares of Preferred Stock issued and outstanding.
As of April 30, 1997, the Company had reserved for issuance under the Company's
Amended and Restated 1993 Flexible Stock Incentive Plan and under the Company's
1996 Non-Qualified Stock Option Plan (collectively, the "Plans") 2,125,000
shares and 780,000 shares of Common Stock, respectively.
In certain circumstances, the holder of Shares may elect to sell its
Shares in accordance with the exemptions provided by Rule 144 under the
Securities Act rather than pursuant to this Prospectus. In general, under Rule
144, a person (or persons whose shares are aggregated in accordance with the
Rule) who has beneficially owned his or her shares for at least one year,
including any such persons who may be deemed "affiliates" of the Company (as
defined in the Securities Act), would be entitled to sell within any three-month
period a number of shares that does not exceed the greater of 1% of the then
outstanding number of shares or the average weekly trading volume of the shares
during the four calendar weeks preceding each such sale. After shares are held
for two years, a person who is not deemed an "affiliate" of the Company is
entitled to sell such shares under Rule 144 without regard to the volume
limitations described above. Sales of shares by affiliates will continue to be
subject to the volume limitations. As defined in Rule 144, an "affiliate" of an
issuer is a person that directly or indirectly, through the use of one or more
intermediaries, controls, is controlled by, or is under common control with,
such issuer.
As of April 30, 1997, pursuant to the Plans, options to purchase an
aggregate of 2,114,660 shares of Common Stock have been granted or authorized to
be granted to the Company's directors, officers and employees.
No prediction can be made as to the effect, if any, that future sales
of shares or the availability of shares for future sale will have on the market
price prevailing from time to time. Sales of substantial amounts of shares
(including shares issued upon the exercise of options), or the perception that
such sales could occur, could adversely affect the prevailing market price of
the shares.
SELLING STOCKHOLDER
The following table sets forth certain information known to the Company
with respect to the beneficial ownership of the Selling Stockholder as of April
30, 1997, as to (i) the number of shares of Common Stock and percentage of
outstanding shares of Common Stock beneficially held by the Selling Stockholder,
(ii) the maximum number of Shares that may be offered pursuant to the
Prospectus, (iii) the number of shares of Common Stock and percentage of
outstanding shares of Common Stock that will be held by the Selling Stockholder
after the sale of the Shares assuming all shares are sold by the Selling
Stockholder. The registration of the Shares does not necessarily mean that any
of the Shares will be offered and sold by the holder thereof.
<TABLE>
<CAPTION>
NUMBER OF SHARES NUMBER OF SHARES
BENEFICIALLY OWNED BENEFICIALLY OWNED
PRIOR TO OFFERING NUMBER OF AFTER OFFERING
-------------------------------- SHARES -------------------------------
SELLING STOCKHOLDER NUMBER PERCENTAGE TO BE SOLD NUMBER PERCENTAGE
- ------------------- ------------ ------------- ------------ ------------ -------------
<S> <C> <C> <C> <C> <C>
Tencor Instruments(1) 665,568 4.0% 665,568 0 *
</TABLE>
17
<PAGE> 19
____________
*less than 1%
(1) Tencor Instruments is a wholly-owned subsidiary of KLA-Tencor
Corporation. Tencor Instruments' address is 333 Octavius Street, Santa
Clara, CA 95054.
<PAGE> 20
LEGAL MATTERS
The validity of the Shares offered hereby will be passed upon for the
Company by Morrison & Foerster LLP, Palo Alto, California.
EXPERTS
The consolidated financial statements of Uniphase incorporated by
reference in Uniphase's Annual Report on Form 10-K for the fiscal year ended
June 30, 1996, have been audited by Ernst & Young LLP, independent auditors, as
set forth in their report thereon incorporated by references therein and
incorporated by reference herein. Such consolidated financial statements are
incorporated herein by reference in reliance upon such report given upon the
authority of such firm as experts in accounting and auditing.
The financial statements of Laser Enterprise, a Division of
International Business Machines, New York, appearing in Uniphases's Amendment
No. 2 to the Current Report on Form 8-K/A dated June 10, 1997, have been audited
by ATAG Ernest & Young AG, independent auditors, as set forth in their report
thereon included therein and incorporated by reference herein. Such financial
statements are incorporated herein by reference in reliance upon such report
given upon the authority of such firm as experts in accounting and auditing.
Asset Purchase of Uniphase Laser Enterprises AG
On March 10, 1997, the Company acquired the net assets of ULE, formerly
the laser operations of IBM's Zurich Research Laboratory in Switzerland. ULE
develops, manufactures and markets semiconductor chips for use in laser
telecommunication applications. The acquisition has been accounted for under
the purchase method of accounting, and accordingly, the accompanying financial
statements include the operations of ULE subsequent to the date of acquisition.
The $45.9 million purchase price consisted of $45 million cash and
acquisition expenses of approximately $900,000.
The preliminary allocation of ULE's purchase price based on the fair
value of net assets acquired is as follows:
March 31,
(In thousands) 1997
- -------------- ---------
Current assets acquired $ 7,578
Prepaid lease and service agreement 1,500
Property, plant and equipment 3,503
Intangibles, primarily developed technology 4,768
Current liabilities assumed (3,087)
Retirement benefits assumed (1,676)
Acquired in-process research and development costs 33,314
---------
Total purchase price $45,900
To determine the value of the acquired in-process research and
development, the Company considered, among other factors, the stage of
development of each project, the time and resources needed to complete each
project, expected income, target markets and associated risks. Associated risks
included inherent difficulties and uncertainties in completing the project and
thereby achieving technical feasibility, and risks related to the viability of
and potential changes in future target markets. The Company applied a discount
rate of 20% in the valuation of in-process technology. This analysis resulted
in a valuation of $33.3 million for acquired in-process research and
development that had not reached technological feasibility and did not have
alternative future uses. Therefore, in accordance with generally accepted
accounting principles, the $33.3 million was expensed. The Company estimates
that a total investment of $9.4 million in research and development over the
next three years will be required to complete the in-process research and
development.
The purchased intangibles are being amortized over an average
estimated useful life of five years. The prepaid lease and service agreement is
being amortized over the term of the agreement of two years. The purchase price
allocation is preliminary and is dependent upon the Company's final analysis.
================================================================================
No dealer, sales representative, or any other person has been
authorized to give any information or to make any representations in connection
with this offering other than those contained in this Prospectus, and, if given
or made, such information or representations must not be relied upon as having
been authorized by the Company or the Underwriters. This Prospectus does not
constitute an offer to sell or a solicitation of any offer to buy any securities
other than the shares of Common Stock to which it relates or an offer to, or a
solicitation of, any person in any jurisdiction where such an offer or
solicitation would be unlawful. Neither the delivery of this Prospectus nor any
sale made hereunder shall, under any circumstances create an implication that
there has been no change in the affairs of the Company or that information
contained herein is correct as of any time subsequent to the date hereof.
_____________
TABLE OF CONTENTS
PAGE
Available Information ....................................... 2
Incorporation of Certain Documents
by Reference................................................. 2
The Company.................................................. 4
Risk Factors................................................. 5
Securities To Be Offered..................................... 14
Use of Proceeds.............................................. 14
Description of the Company's
Capital Stock................................................ 14
Shares Available for Future Sale............................. 17
Selling Stockholder.......................................... 17
Legal Matters................................................ 18
Experts...................................................... 18
_____________
665,568 SHARES
UNIPHASE CORPORATION
COMMON STOCK
_____________
PROSPECTUS
_____________
, 1997
================================================================================
<PAGE> 21
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 by the Company in connection
with the sale of Common Stock being registered. All amounts are estimates except
the SEC registration fee, NASD filing fee and Nasdaq listing fee.
<TABLE>
<CAPTION>
AMOUNT TO BE PAID
-----------------
<S> <C>
SEC registration fee .................................................. $ 9,341
Nasdaq listing fee .................................................... 13,312
Legal fees and expenses ............................................... 12,500
Accounting fees and expenses .......................................... 25,000
Printing Fees ......................................................... 4,000
Miscellaneous expenses ................................................ 1,847
---------
Total ....................................................... $66,000
=========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The indemnification and liability of the Company's directors and
officers are governed by Delaware law.
Under Section 145 of the General Corporation Law of the State of
Delaware, the Company has broad powers to indemnify its directors and officers
against liabilities that may incur in such capacities, including liabilities
under the Securities Act of 1933, as amended (the "Securities Act"). The
Company's Bylaws also provide for mandatory indemnification of its directors and
executive officers, and permissive indemnification of its employees and agents,
to the fullest extent permissible under Delaware law.
The Company's Certificate of Incorporation provides that the liability
of its directors for monetary damages shall be eliminated to the fullest extent
permissible under Delaware law. Pursuant to Delaware law, this includes
elimination of liability for monetary damages for breach of the directors'
fiduciary duty of care to the Company and its stockholders. These provisions do
not eliminate the directors' duty of care and, in appropriate circumstances,
equitable remedies such as injunctive or other forms of non-monetary relief will
remain available under Delaware law. In addition, each director will continue to
be subject to liability for breach of the director's duty of loyalty to the
Company, for acts of omissions not in good faith or involving intentional
misconduct, for knowing violations of law, for any transaction from which the
director derived an improper personal benefit, and
II-1
<PAGE> 22
for payment of dividends or approval of stock repurchases or redemptions that
are unlawful under Delaware law. The provision also does not affect a
director's responsibilities under any other laws, such as the federal
securities laws or state or federal environmental laws.
The Company has entered into agreements with its directors and certain
of its executive officers that require the Company to indemnify such persons
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
officer of the Company or any of its affiliated enterprises, provided such
person acted in good faith and in a manner such person reasonably believed to be
in or not opposed to the best interests of the Company and, with respect to any
criminal proceeding, had no reasonable cause to believe his or her conduct was
unlawful. The indemnification agreement also sets forth certain procedures that
will apply in the event of a claim for indemnification thereunder.
The Company has obtained a policy of directors' and officers' liability
insurance that insures the Company's directors and officers against the cost of
defense, settlement or payment of a judgment under certain circumstances.
The Underwriting Agreement provides for cross-indemnification of the
Underwriters and the Company and its officers and directors for certain
liabilities arising under the Securities Act or otherwise.
ITEM 16. EXHIBITS
(a) Exhibits
NO. DESCRIPTION
--- -----------
5.1* Opinion of Morrison & Foerster LLP
23.1 Consent of Ernst & Young LLP, independent auditors
23.2* Consent of Counsel
23.3 Consent of ATAG Ernst & Young AG, independent auditors
24.1* Power of Attorney
*Previously filed.
ITEM 17. UNDERTAKINGS
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Company pursuant to the foregoing provisions, or otherwise, the Company 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 Company of expenses
incurred or paid by a director, officer or controlling person of the Company 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 Company 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 of 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-2
<PAGE> 23
The undersigned Company hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act,
the information omitted from the form of Prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the Company pursuant to Rule 424(b)(1) or (4), or 497(h)
under the Securities Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of Prospectus 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) For the purpose of determining liability under the Securities Act,
each filing of the Company's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (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.
II-3
<PAGE> 24
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 on Amendment No. 1 to the 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 15th day of July, 1997.
UNIPHASE CORPORATION
By: /s/ Kevin Kalkhoven
Kevin N. Kalkhoven
President, Chief Executive Officer
and Chairman of the Board of Directors
II-4
<PAGE> 25
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBITS
------ --------
<S> <C>
5.1* Opinion of Morrison & Foerster LLP
23.1 Consent of Ernst & Young LLP, independent auditors
23.2* Consent of Counsel
23.3 Consent of ATAG Ernst & Young AG, independent auditors
24.1* Power of Attorney
</TABLE>
*Previously filed
<PAGE> 1
EXHIBIT 5.1
May 23, 1997
Uniphase Corporation
163 Baypointe Parkway
San Jose, California 95134
Ladies and Gentlemen:
We are acting as counsel to Uniphase Corporation, a Delaware
corporation (the "Company"), in connection with the registration of 665,568
shares of common stock (the "Shares") of the Company, par value $.001 per share
("Common Stock"), that may be offered and sold from time to time by the certain
holder of such shares. The Shares are the subject of a Registration Statement
(the "Registration Statement") filed by the Company on Form S-3 under the
Securities Act of 1933, as amended.
In our capacity as your counsel in connection with such registration,
we are familiar with the proceedings taken by the Company in connection with
the authorization and issuance of the Shares. In addition, we have made such
legal and factual examinations and inquiries, including an examination of
originals or copies certified or otherwise identified to our satisfaction of
such documents, corporate records and instruments, as we have deemed necessary
or appropriate for purposes of this opinion.
Based upon and subject to the foregoing and to the assumptions,
limitations and conditions set forth herein, we are of the opinion that the
Shares as described in the Registration Statement have been validly issued,
fully paid and non-assessable.
We consent to the use of this opinion as an exhibit to the
Registration Statement and further consent to the reference to us under the
heading "Legal Matters" in the Registration Statement, the Prospectus
constituting a part thereof and any amendments thereto.
Very truly yours,
/s/ Morrison & Foerster LLP
<PAGE> 1
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in
Amendment No. 1 to the Registration Statement (Form S-3 No. 333-27931) and the
related Prospectus of Uniphase Corporation for the registration of 665,568
shares of its common stock and to the incorporation by reference therein of our
report dated July 30, 1996, with respect to the consolidated financial
statements of Uniphase Corporation incorporated by reference in its Annual
Report (Form 10-K) for the year ended June 30, 1996 and the related financial
statement schedule included therein, filed with the Securities and Exchange
Commission.
/s/ Ernst and Young LLP
San Jose, California
July 15, 1997
<PAGE> 1
EXHIBIT 23.3
CONSENT OF ATAG ERNST & YOUNG AG, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in
Amendment No. 1 to the Registration Statement (Form S-3 No. 333-27931) and the
related Prospectus of Uniphase Corporation for the registration of 665,568
shares of its common stock and to the incorporation by reference therein of our
report dated May 7, 1997, with respect to the financial statements of Laser
Enterprise, a Division of International Business Machines, New York included in
its Amendment No. 2 to the Current Report on Form 8-K/A dated June 10, 1997,
filed with the Securities and Exchange Commission.
Zurich, Switzerland ATAG Ernst & Young AG
July 15, 1997
/s/ Robert G. Wightman /s/ Yves Vontobel
---------------------- -----------------
Robert G. Wightman Yves Vontobel
Chartered Accountant Certified Accountant
