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As filed with the Securities and Exchange Commission on January 8, 1999
Registration No. 333-____
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
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
(Address of Principal Executive Office, Including Zip Code)
BROADBAND COMMUNICATIONS PRODUCTS, INC.
1992 KEY EMPLOYEE INCENTIVE STOCK OPTION PLAN
1997 EMPLOYEE STOCK OPTION PLAN
1997 NONQUALIFIED STOCK OPTION PLAN
(Full Title of the Plans)
Kevin N. Kalkhoven
Chairman of the Board of Directors,
President and Chief Executive Officer
Uniphase Corporation
163 Baypointe Parkway
San Jose, California 95134
(Name and Address of Agent for Service)
(408) 434-1800
(Telephone Number, Including Area Code, of Agent for Service)
Copy to:
Christopher S. Dewees, Esq.
David P. Valenti, Esq.
Morrison & Foerster LLP
755 Page Mill Road
Palo Alto, California 94304
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============================================================================================================================
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM
TITLE OF SECURITIES TO AMOUNT TO BE OFFERING PRICE PER PROPOSED MAXIMUM AGGREGATE AMOUNT OF
BE REGISTERED REGISTERED SHARE (1) OFFERING PRICE (1) REGISTRATION FEE
- ------------------------ --------------------- ----------------------- ------------------------------- ---------------------
<S> <C> <C> <C> <C>
Common Stock, 418,490 $66.375 $27,777,273.75 $8,194.30
$0.001 par value
per share
============================================================================================================================
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(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(h) and Rule 457(c) under the Securities Act of
1933, based upon an average of the high and low prices of Uniphase
Corporation common stock reported on the Nasdaq National Market on January
5, 1999.
In addition, pursuant to Rule 416(c) under the Securities Act, this
Registration Statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the employee benefit plans described herein.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in Part 1 of Form S-8
(plan information and registrant information and employee plan annual
information) will be sent or given to employees as specified by Securities and
Exchange Commission Rule 428(b)(1). Such documents need not be filed with the
Securities and Exchange Commission either as part of this Registration Statement
or as prospectuses or prospectus supplements pursuant to Rule 424. These
documents and the documents incorporated by reference in this Registration
Statement pursuant to Item 3 of Form S-8 (Part II hereof), taken together,
constitute a prospectus that meets the requirements of Section 10(a) of the
Securities Act of 1933.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Uniphase Corporation. (the "Registrant")
with the Securities and Exchange Commission (the "Commission") are incorporated
by reference herein:
(a) The Registrant's Annual Report on Form 10-K (the "Annual Report"),
which includes audited financial statements for the Registrant's latest fiscal
year ending June 30, 1998.
(b) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1998.
(c) The Registrant's Current Report on Form 8-K dated as of January 7,
1999.
(d) The Registrant's Current Reports on Form 8-K/A dated as of August 24,
1998 and August 25, 1998.
(e) The description of the Registrant's Common Stock which is contained in
its Registration Statement on Form 8-A dated November 15, 1993, including any
amendment or report filed for the purpose of updating such description.
All documents filed by the Registrant with the Commission pursuant to
Section 13(a), 13(c), 14 or 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 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. Any statement contained
in a document incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies 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 this
Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Michael C. Phillips, a partner with Morrison & Foerster LLP, counsel to the
Registrant, also serves as Senior Vice President of the Registrant.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The indemnification and liability of the Registrant's directors and
officers are governed by Delaware law.
Under Section 145 of the General Corporation Law of the State of Delaware,
the Registrant 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 Registrant'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 Registrant'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 Registrant 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
Registrant 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 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 Registrant has entered into agreements with its directors and certain
of its executive officers that require the Registrant 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 Registrant 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 Registrant 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 Registrant has obtained a policy of directors' and officers' liability
insurance that insures the Registrant's directors and officers against the cost
of defense, settlement or payment of a judgment under certain circumstances.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
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Exhibit
Number Description
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5.1 Opinion of Morrison & Foerster LLP.
23.1 Consent of Morrison & Foerester LLP (included in Exhibit 5.1)
23.2 Consent of Ernst & Young LLP, Independent Auditors
23.3 Consent of Moret Ernst & Young Accountants, Independent Auditors
25.1 Power of Attorney (contained in the signature page hereto)
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ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(i) to file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement and to include
any material information with respect to the plan of distribution not
previously disclosed in this Registration Statement or any material
change to such information in this Registration Statement;
(ii) 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;
(iii) to remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned Registrant hereby further 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
Securities Exchange Act of 1934 (the "Exchange Act") (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Exchange Act) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions or otherwise, the Registrant has
been advised that in the opinion of the 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 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
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indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant,
Uniphase Corporation, certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of San Jose, State of California, on January 8,
1999.
UNIPHASE CORPORATION
By: /s/ KEVIN N. KALKHOVEN
-------------------------------------
Kevin N. Kalkhoven
Chairman of the Board of Directors,
President and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Kevin N.
Kalkhoven and Anthony R. Muller, and each of them, as attorneys-in-fact, each
with the power of substitution, for him in any and all capacities, to sign any
amendment to this Registration Statement and to file the same, with exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, granting to said attorneys-in-fact, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in connection therewith, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming the said
attorney-in-fact or his substitute or substitutes, may lawfully 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 by the following persons in the
capacities and on the date indicated.
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<CAPTION>
Signature Capacity Date
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<S> <C> <C>
/s/ KEVIN N. KALKHOVEN Chairman of the Board of January 8, 1999
- ------------------------------- Directors, President and
Kevin N. Kalkhoven Chief Executive Officer
(Principal Executive
Officer)
/s/ ANTHONY R. MULLER Senior Vice President, January 8, 1999
- ------------------------------- Chief Financial Officer
Anthony R. Muller and Secretary (Principal
Financial and Accounting
Officer)
</TABLE>
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<TABLE>
<CAPTION>
Signature Capacity Date
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<S> <C> <C>
/s/ ROBERT C. FINK Director January 8, 1999
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Robert C. Fink
/s/ PETER GUGLIELMI Director January 8, 1999
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Peter Guglielmi
/s/ MARTIN A. KAPLAN Director January 8, 1999
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Martin A. Kaplan
/s/ WILLEM HAVERKAMP Director January 8, 1999
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Willem Haverkamp
/s/ CATHERINE P. LEGO Director January 8, 1999
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Catherine P. Lego
/s/ STEPHEN C. JOHNSON Director January 8, 1999
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Stephen C. Johnson
/s/ WILSON SIBBETT Director January 8, 1999
- -------------------------------
Wilson Sibbett, Ph.D
/s/ CASIMIR S. SKRZYPCZAK Director January 8, 1999
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Casimir S. Skrzypczak
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INDEX TO EXHIBITS
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Exhibit
Number Description
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<S> <C>
5.1 Opinion of Morrison & Foerster LLP
23.1 Consent of Counsel (included in Exhibit 5.1)
23.2 Consent of Ernst & Young LLP, Independent Auditors
23.3 Consent of Moret Ernst & Young Accountants, Independent Auditors
25.1 Power of Attorney (contained in the signature page hereto)
</TABLE>
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Exhibit 5.1
January 8, 1999
Uniphase Corporation
163 Baypointe Parkway
San Jose, California 95134
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by
Uniphase Corporation (the "Company") with the Securities and Exchange Commission
(the "SEC") in connection with the registration under the Securities Act of
1933, as amended, of an aggregate of 418,490 shares of the Company's Common
Stock, $.001 par value (the "Broadband Plan Shares") which will be issuable
under the Broadband Communication Products, Inc. 1992 Key Employee Incentive
Stock Option Plan, 1997 Employee Stock Option Plan, 1997 Nonqualified Stock
Option (collectively, the "Broadband Plans").
As your counsel in connection with the Registration Statement, we have
examined the proceedings taken by you in connection with the assumption of the
Plans and the authorization of the issuance of the Broadband Plan Shares under
the Plan and such documents as we have deemed necessary to render this opinion.
Based upon the foregoing, it is our opinion that the Broadband Plan Shares,
when issued and outstanding pursuant to the terms of the Broadband Plans, will
be validly issued, fully paid and nonassessable shares of the Company's Common
Stock.
We consent to the use of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/s/ Morrison & Foerster LLP
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Exhibit 23.2
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Broadband Communications Products, Inc. 1992 Key Employee
Incentive Stock Option Plan, 1997 Employee Stock Option Plan, and 1997
Nonqualified Stock Option Plan of our reports dated August 4, 1998, with respect
to the consolidated financial statements of Uniphase Corporation included in its
Annual Report on Form 10-K for the year ended June 30, 1998 and the related
financial statement schedule included therein and our report dated January 7,
1999 with respect to the supplemental consolidated financial statements and the
related supplemental financial statement schedule of Uniphase Corporation
included in its Current Report on Form 8-K dated January 7, 1999, filed with the
Securities and Exchange Commission.
/s/ Ernst & Young LLP
San Jose, California
January 7, 1999
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EXHIBIT 23.3
CONSENT OF MORET ERNST & YOUNG ACCOUNTANTS, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Broadband Communications Products, Inc. 1992 Key Employee
Incentive Stock Option Plan, 1997 Employee Stock Option Plan, and 1997
Nonqualified Stock Option Plan of our report dated August 24, 1998, with respect
to the financial statements of Philips Optoelectronics, a division of
Koninklijke Philips Electronics N.V. included in its Amendment No. 2 to the
Current Report on Form 8-K/A dated August 25, 1998, filed with the Securities
and Exchange Commission.
/s/ Moret Ernst & Young Accountants
Eindhoven, the Netherlands
January 7, 1999
