AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 19, 1999
Registration No. 333-
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
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 (I.R.S. Employer
of 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 registrar's principal executive offices)
Kevin N. Kalkhoven
Chairman of the Board of Directors, President and Chief Executive Officer
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:
Christopher S. Dewees, Esq.
David P. Valenti, Esq.
Morrison & Foerster LLP
755 Page Mill Road
Palo Alto, California 94304
(650) 813-5600
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of this Registration Statement.
If the only securities being registered on this form are being 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 of 1933, please 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 of 1933, 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. [ ]
<TABLE>
<CAPTION>
==============================================================================
CALCULATION OF REGISTRATION FEE
==============================================================================
Proposed Proposed
Maximum Maximum
Aggregate Aggregate Amount of
Title of Shares to Amount to be Price Per Offering Registration
be Registered Registered(1) Share(2) Price(2) Fee(2)(3)
- ---------------------- ------------ ----------- --------------- --------------
<S> <C> <C> <C> <C>
Common Stock, $0.001
par value(4)........ 35,776,000 $136.19 $4,872,333,440 $1,354,508.70
</TABLE>
(1) Estimated solely for the purpose of determining the registration fee
in accordance with Rule 457 under the Securities Act of 1933, as
amended ("Securities Act"). Based on an estimated number of shares
of Uniphase common stock to be exchanged for exchangeable shares (as
defined herein) pursuant to the proposed combination of Uniphase and
JDS FITEL Inc. multiplied by 0.50855, the exchange ratio.
(2) Pursuant to Rule 457(f), the registration fee was computed on the
basis of the market value of the 35,776,000 shares of Uniphase
common stock assumed to be issued by the Registrant in connection
with the exchange of the exchangeable shares, and in accordance with
Rule 457(c) on the basis of the average of the high and low price
per share of the shares of Uniphase common stock reported on the
NASDAQ National Market on May 17, 1999.
(3) Pursuant to Rule 457(b), the filing fee is offset by the fee of
$700,000 paid with the filing under the Securities Exchange Act of
1934 of preliminary copies of the Registrant's proxy materials
relating to the transaction.
(4) Includes the preferred stock purchase rights associated with the
common stock.
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
AN 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.
================================================================================
<PAGE>
Subject to Completion, dated May 19, 1999
Uniphase Corporation
35,776,000 SHARES OF COMMON STOCK
The 35,776,000 shares of common stock offered by this prospectus will be held
by certain of our stockholders, including some issued in exchange for shares of
a subsidiary of ours. We will not receive any of the pproceeds fro any sale of
these shares, but we have agreed to bear the expenses of registration of the
shares by this prospectus.
Nasdaq National Market symbol:
UNPH
The last sale price our common stock on the Nasdaq National Market on May 18,
1999 was $134.625 per share.
-------------------------------
THE SHARES REGISTERED BY THIS PROSPECTUS INVOLVE A HIGH LEVEL OF INVESTMENT
RISK. YOU SHOULD INVEST ONLY IF YOU CAN AFFORD A COMPLETE LOSS. SEE "RISK
FACTORS" BEGINNING ON PAGE 4 OF THIS PROSPECTUS FOR A SUMMARY OF SOME OF THE
RISKS RELATED TO THIS INVESTMENT.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED THESE SECURITIES, OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OF SALE IS NOT PERMITTED.
-------------------------------
--------------
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Uniphase...............................................................
Risk Factors...........................................................
Use of Proceeds........................................................
Description of Uniphase Capital Stock..................................
Plan of Distribution...................................................
Income Tax Considerations..............................................
Incorporation of Certain Documents by Reference........................
Legal Opinions.........................................................
Experts................................................................
Interests of Named Experts.............................................
Where You May Find More Information....................................
</TABLE>
<PAGE>
UNIPHASE
Uniphase Corporation designs, develops, manufactures and markets laser
subsystems and components and modules for fiber optic
telecommunications and cable television systems and laser subsystems.
On January 28, 1999, we and JDS FITEL Inc., a Canadian corporation,
executed a definitive agreement to combine our companies in a
combination of equals. The combined company will have a total market
value of U.S. $6.1 billion based upon the January 27, 1999 closing
prices of each company's stock. Under the terms of the agreement, JDS
shareholders will, subject to certain conditions, be entitled to
receive 0.50855 shares of exchangeable shares of JDS Uniphase Canada
Ltd., a subsidiary of Uniphase, or 0.50855 shares of our common stock,
for each common share of JDS they hold. The exchangeable shares are
the economic and voting equivalent of shares of our common stock and
will be exchangeable for shares of our common stock on a one-for-one
basis at any time. Following the effective date of the combination,
subject to stockholder approval, we expect to change our name to "JDS
Uniphase Corporation." Our common stock will continue to be quoted on
the Nasdaq National Market under the new symbol "JDSU" and we will
continue to report our financial results in U.S. dollars.
Our principal telecommunications products consist of source lasers,
modulators, pump lasers and transmitter modules. These products are
used in today's advanced fiber optic telecommunications networks to
provide the initial light signal, to encode the signal and to amplify
the signal over the long distances over which these networks are
deployed. Our laser subsystems are designed for a number of
applications and are purchased by our customers for inclusion into
equipment for biotechnology, industrial process control and
measurement, graphics and printing, and semiconductor inspection
equipment and other applications.
Our initial products consisted of laser subsystems. These industrial
lasers are used as a light source within various types of equipment
manufactured by our customers. We entered the telecommunications
markets in 1995 when we acquired United Technologies Photonics, then a
wholly owned subsidiary of United Technologies Research Center located
in Hartford, Connecticut. Since that acquisition, our strategy has
been to broaden our offering of telecommunications components and
modules through further acquisitions and internal growth.
Following our combination with JDS, we will add JDS' products to the
combined company's product line. JDS designs and manufactures a broad
range of passive fiberoptic products. In addition, JDS distributes
complementary fiberoptic interconnect products that are manufactured by
third parties.
We currently operate the following subsidiaries or divisions offering
products for the telecommunications industry:
<TABLE>
<CAPTION>
Division Location Products
- ---------------------------- -------------- ---------------------------------
<S> <S> <S>
Uniphase Netherlands Netherlands Source lasers for telecommunications,
cable television and multimedia;
external modulators; pump lasers;
semiconductor optical amplifiers
Uniphase Telecommunications Connecticut External modulators and wave length
Products lockers
Uniphase Laser Enterprise Switzerland Pump lasers for optical amplifiers
Transmission Systems Pennsylvania Cable television transmitters and
Division amplifiers
Uniphase Broadband Florida Instrumentation, transmitters and
receivers for telecommunications
Uniphase Fiber Components Australia Fiber-Bragg gratings
Uniphase Network Components California Grating-based network modules
Uniphase Fiberoptics United Kingdom Laser packaging for data and
telecommunications
Chassis Massachussetts Component packaging
JDS* Canada Passive fiberoptic components and
modules; complimentary fiberoptic
interconnect products
</TABLE>
_____________
* JDS will be added as a result of the proposed combination.
Uniphase has and, subsequent to the proposed combination with JDS, will
continue to have its registered office located at 163 Baypointe Parkway,
San Jose, California, U.S.A., 95134 (Tel.no. (408) 434-1800). The
registered office of JDS is and, subsequent to the proposed
combination, will continue to be located at 570 West Hunt Club Road,
Nepean, Ontario, Canada, K2G5W8 (Tel.no. (613) 727-1304). The
executive offices of JDS Uniphase will be located in both San Jose and
Nepean.
RISK FACTORS
Holders of Exchangeable Shares Are Subject to Risks Not Shared by
Holders of Our Common Stock
Canadian Resident Holders of Exchangeable Shares May Not Be Able
to Control the Timing of Gain Recognition
We structured our transaction with JDS to provide for a tax
deferral for Canadian tax purposes for Canadian residents who
receive exchangeable shares from the combination. However,
Canadian residents will generally only be able to obtain this tax
deferral for as long as they hold the exchangeable shares, and
will generally recognize a taxable dividend and/or a gain or loss
upon the exchange of their exchangeable shares for shares of our
common stock. See "Income Tax Considerations." Apart from the
Canadian residents' ability to dispose of or convert their
exchangeable shares, under certain circumstances, we or our
subsidiaries may compel a purchase of the exchangeable shares.
See "Plan of Distribution - Procedures for Issuance of Our
Common Stock." Accordingly, a holder of exchangeable shares
cannot control whether such holder will receive shares of our
common stock by way of redemption of the exchangeable shares or
by way of purchase of the exchangeable shares by us or our
subsidiaries. The Canadian federal income tax consequences of a
redemption differ from those of a purchase.
The Exchangeable Shares and Our Common Stock May Trade at
Different Values
Although we believe that the market price of the exchangeable
shares on The Toronto Stock Exchange and the market price of our
common stock on Nasdaq will reflect essentially equivalent
values, the market price of our common stock may not be
identical, or even similar, to the market price of the
exchangeable shares. The Toronto Stock Exchange has
conditionally approved the listing of the exchangeable shares on
the effective date of our combination with JDS, subject to
fulfilling all of the requirements of The Toronto Stock Exchange.
Our common stock is listed on Nasdaq. We have agreed that the
shares of our common stock issued pursuant to the combination
with JDS and issuable from time to time in exchange for the
exchangeable shares will be listed on Nasdaq. There is no
current intention to list the exchangeable shares or our common
stock on any other stock exchange in Canada or the United States.
Consequently, the price at which the exchangeable shares will
trade will be based upon the market for such shares on The
Toronto Stock Exchange and the price at which shares of our
common stock will trade will be based upon the market for such
shares on Nasdaq.
Our Stock Price Could Fluctuate Substantially
The Unpredictability of Our Quarterly Operating Results Could
Cause Our Stock Price to be Volatile or Decline.
We have experienced and expect to continue to experience
significant fluctuations in our quarterly results, which has
caused and may in the future cause substantial fluctuations in
the market price of our common stock. All of the concerns we
discuss under Risk Factors could affect our operating results,
including, among others
o the timing of the receipt of product orders from a
limited number of major customers,
o the loss of one or more of our major suppliers,
o competitive pricing pressures,
o the costs associated with the acquisition or disposition
of businesses,
o our ability to design, manufacture and ship
technologically advanced products with satisfactory
yields on a timely and cost-effective basis,
o the announcement and introduction of new products by us,
and
o expenses associated with any intellectual property
litigation.
In addition to concerns potentially affecting our operating
results addressed elsewhere under Risk Factors, the following
factors may also influence our operating results:
o our product mix,
o the relative proportion of our domestic and
international sales, and
o the timing differences between when we incur expenses to
increase our marketing and sales capabilities and when
we realize benefits, if any, from such expenditures.
Furthermore, our sales often reflect orders shipped in the same
quarter that they are received, which makes our sales vulnerable
to short term fluctuations in customer demand and difficult to
predict. Also, customers may cancel or reschedule shipments, and
production difficulties could delay shipments. In addition, we
sell our telecommunications equipment products to Original
Equipment Manufacturers who typically order in large quantities
and therefore the timing of such sales may significantly affect
our quarterly results. An OEM supplies system level network
products to telecommunications carriers and others and
incorporates our components in these system level products. The
timing of such OEM sales can be affected by factors beyond our
control, such as demand for the OEMs' products and manufacturing
risks experienced by OEMs. In this regard, we have experienced
rescheduling of orders by customers in each of our markets and
may experience similar rescheduling in the future. As a result
of all of these factors, our results from operations may vary
significantly from quarter to quarter.
In addition to the effect of ongoing operations on quarterly
results, acquisitions or dispositions of businesses, products or
technologies by us have resulted in and may in the future result
in reorganization of our operations, substantial charges or other
expenses, which have caused and may in the future cause
fluctuations in our quarterly operating results and cash flows.
For example, in the second and fourth quarters of fiscal 1998, we
incurred charges of $6.6 million and $33.7 million, respectively
for acquired in-process research and development in connection
with the acquisition of Uniphase Fiber Components and Uniphase
Netherlands. In the third quarter of fiscal 1997, we incurred
charges of $33.3 million for acquired in-process research and
development in connection with the acquisition of Uniphase Laser
Enterprise. In addition, we incurred other charges in connection
with acquisitions completed in fiscal 1999, 1998 and 1997.
Finally, our net revenues and operating results in future
quarters may be below the expectations of public market
securities analysts and investors. In such event, the price of
our common stock would likely decline, perhaps substantially.
Factors Other Than Our Quarterly Results Could Cause Our Stock
Price to be Volatile or Decline
The market price of our common stock has been and is likely to
continue to be highly volatile due to causes other than our
historical quarterly results, such as
o announcements of technological innovations or new
products by our competitors,
o developments with respect to patents or proprietary
rights,
o governmental regulatory action, and
o general market conditions.
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.
We are Subject to Manufacturing Difficulties
If We Do Not Achieve Acceptable Manufacturing Yields or
Sufficient Product Reliability Our Operating Results Could Suffer
The manufacture of our products involves highly complex and
precise processes, requiring production in highly controlled and
clean environments. Changes in our manufacturing processes or
those of our suppliers or their inadvertent use of defective or
contaminated materials could significantly reduce our
manufacturing yields and product reliability. Because the
majority of our manufacturing costs are relatively fixed,
manufacturing yields are critical to our results of operations.
Certain divisions of Uniphase, including Uniphase Laser
Enterprise and Uniphase Netherlands, have in the past experienced
lower than expected production yields, which could delay product
shipments and impair gross margins. These divisions or any of
our other manufacturing facilities may not maintain acceptable
yields in the future.
During the fourth quarter of fiscal 1998, we commenced
construction of a new laser fabrication facility in the
Netherlands for Uniphase Netherlands, which we acquired in June
1998. Our Uniphase Netherlands facility has not achieved
acceptable manufacturing yields since the June 1998 acquisition,
and there is continuing risk attendant to this new facility and
its manufacturing yields and costs. Uniphase Netherlands may not
successfully manufacture laser products in the future at yield or
cost levels necessary to meet our customers' needs, if at all.
In addition, Uniphase Fiber Components is establishing a
production facility in Sydney, Australia for fiber Bragg grating
products. This facility may not manufacture grating products to
customers specifications at the cost and yield levels required.
To the extent we do not achieve acceptable manufacturing yields
or experience product shipment delays, our business, operating
results and financial condition would be materially and adversely
affected.
If Our Customers Do Not Qualify Our Manufacturing Lines For
Volume Shipments Our Operating Results Could Suffer.
Customers will not purchase any products (other than limited
numbers of evaluation units) prior to qualification of the
manufacturing line for the product. Each new manufacturing line
must go through varying levels of qualification with our
customers. This qualification process determines whether the
manufacturing line achieves the customers' minimum quality,
performance and reliability standards. Delays in qualification
can cause a product to be dropped from a long term supply program
and result in significant lost revenue opportunity over the term
of that program. As noted in the previous paragraph, we are
currently completing new manufacturing facilities in the
Netherlands and Australia. We may experience delays in obtaining
customer qualification of these facilities. If we fail in the
timely qualification of these or other new manufacturing lines,
our operating results and customer relationships would be
adversely affected.
Difficulties We May Encounter Managing Our Growth Could Adversely
Affect Our Results of Operations
We have historically achieved our growth through a combination of
acquisitions and internally developed new products. As part of our
strategy to sustain growth, we expect to continue to pursue
acquisitions of other companies, technologies and complementary product
lines. We also expect to continue developing new solid state lasers,
components and other products for OEM customers and attempt to further
penetrate the telecommunications and CATV markets through these new
products. Both strategies include risks. The success of each
acquisition will depend upon
o our ability to manufacture and sell the products of the
businesses acquired,
o continued demand for these products by our customers,
o our ability to integrate the acquired business' operations,
products and personnel,
o our ability to retain key personnel of the acquired
businesses, and
o our ability to expand our financial and management controls
and reporting systems and procedures.
In March 1997, we acquired Uniphase Laser Enterprise, which produces
our 980-nm pump laser products. In June 1998, we acquired Uniphase
Netherlands. In the case of both acquisitions, we acquired businesses
that had previously been engaged primarily in research and development
and that needed to make the transition from a research activity to a
commercial business with sales and profit levels that are consistent
with our overall financial goals. This transition has not yet been
completed at Uniphase Netherlands, which continues to operate at higher
expense levels and lower gross margins than those required to meet our
profitability goals. In addition, in August 1998, we acquired certain
assets of Chassis, and in November 1998 acquired Uniphase Broadband.
See "Recent Developments." We may not successfully manufacture and
sell our products or successfully manage our growth, and failure to do
so could have a material adverse effect on our business, financial
condition and operating results.
Since 1997, when we acquired Uniphase Laser Enterprise, we have
increased our marketing, customer support and administrative functions
to support an increased level of operations primarily from our
telecommunications products. We may not be successful in creating this
infrastructure nor may we realize any increase in the level of our
sales and operations through our new products. We commenced operations
at Uniphase Telecommunications Products in 1996 to penetrate the CATV
markets, and at Uniphase Network Components in 1998 to develop and
market a line of complementary optical components for our
telecommunications customers. In each case, we hired development,
manufacturing and other staff in anticipation of developing and selling
new products. Our operations may not achieve levels sufficient to
justify the increased expense levels associated with these new
businesses.
Difficulties in Integrating Uniphase and JDS Could Adversely
Affect Our Business
Consistent with our historical growth strategy, in January 1999,
we agreed to combine with JDS. If we fail to successfully
integrate our and JDS' businesses, our business could suffer. We
and JDS have complementary business operations located
principally in the United States, Canada and Europe. Our success
depends in large part on the successful integration of these
operations and the technologies and personnel of the two
companies following the combination. Our future management will
come from the current management teams of both companies and many
members of management will not have previously worked and
communicated with other members of management. The integration
of the two businesses may result in unanticipated operations
problems, expenses and liabilities and diversion of management
attention. The integration may not be successful and our
operating results may suffer as a result.
If We Fail to Efficiently Combine Our and JDS' Sales and
Marketing Forces, Our Sales Could Suffer
We may experience disruption in sales and marketing in connection
with our efforts to integrate our and JDS' sales channels, and we
may be unable to efficiently or effectively correct such
disruption or achieve our sales and marketing objectives after
integration. In addition, sales cycles and sales models for our
and JDS' various products may vary significantly from product to
product. Our and JDS' sales personnel not accustomed to the
different sales cycles and approaches required for products newly
added to their portfolio may experience delays and difficulties
in selling these newly added products. Furthermore, it may be
difficult to retain key sales personnel during the period prior
to and after the effective date of our combination with JDS. As
a result, we may fail to take full advantage of the combined
sales forces' efforts, and the sales approach and distribution
channels of one company may be ineffective in promoting the
products of the other, which may have a material adverse effect
on our business, financial condition or operating results.
Integration Costs and Expenses Associated with Our Combination
with JDS May be Substantial
We estimate we and JDS together will incur direct costs
associated with the combination of approximately $12 million
which will be included as a part of the total purchase cost for
accounting purposes. We believe we may incur charges to
operations, which are not currently reasonably estimable, in the
quarter in which the combination occurs or the following
quarters, to reflect costs associated with integrating the two
companies. We may incur additional material charges in
subsequent quarters to reflect additional costs associated with
the combination.
Our Operating Results May Suffer as a Result of Purchase Accounting
Treatment, the Impact of Amortization of Goodwill and Other Intangibles
Relating to Our Combination with JDS
Under U.S. generally accepted accounting principles that will apply to
us after the completion of our combination with JDS, we will account
for the combination using the purchase method of accounting. Under
purchase accounting, we will record the estimated market value of our
common shares and the exchangeable shares issued in connection with our
combination with JDS, the fair value of the options to purchase JDS
common shares which become options to purchase our common shares on the
effective date of our combination with JDS, and the amount of the
direct transaction costs as the cost of acquiring the business of JDS.
That cost will be allocated to the individual assets acquired and
liabilities assumed, including various identifiable intangible assets
such as in-process research and development, acquired technology,
acquired trademarks and trade names and acquired workforce, based on
their respective fair values. We will allocate the excess of the
purchase cost over the fair value of the net assets to goodwill. We
will immediately expense in-process research and development, which is
currently estimated at $177 million. We will amortize intangible
assets including goodwill over a five year period. The amount of
purchase cost to be allocated to goodwill and other intangibles is
estimated to be approximately $3.2 billion, including the related
deferred tax effect. If we amortized goodwill and other intangible
assets in equal quarterly amounts over a five year period following
completion of our combination with JDS, the accounting charge
attributable to these items would be $161 million per quarter and $643
million per fiscal year. As a result, purchase accounting treatment of
our combination with JDS will result in a net loss for us in the
foreseeable future which could have a material and adverse effect on
the market value of our common stock following completion of the
combination.
Our Sales Would Suffer if One or More of Our Key Customers
Substantially Reduced Orders of Our Products
Our customer base is highly concentrated. Historically, orders from a
relatively limited number of OEM customers accounted for a substantial
portion of our net sales from telecommunications products. We expect
that, for the foreseeable future, sales to a limited number of
customers will continue to account for a high percentage of our net
sales. Sales to any single customer may vary significantly from
quarter to quarter. If current customers do not continue to place
orders we may not be able to replace these orders with new orders from
new customers. In the telecommunications markets, our customers
evaluate our products and competitive products for deployment in large
telecommunications systems that they are installing. Our failure to be
selected by a customer for particular system projects can significantly
impact our business, operating results and financial condition.
Similarly, even if our customers select us, if our customers are not
selected as the primary supplier for an overall system installation, we
can be similarly adversely affected. Such fluctuations could have a
material adverse effect on our business, operating results and
financial condition.
One telecommunications customer, CIENA Corporation, accounted for
approximately 12% of our net sales for fiscal 1998. One laser
subsystems customer, the Applied Biosystems Division of Perkin-Elmer
Corporation, accounted for approximately 10% and 12% of our net sales
for fiscal 1997 and 1996, respectively. One additional customer, KLA-
Tencor Corporation, purchased both Laser subsystems and Ultrapointe
systems and accounted for 12% and 13% of our consolidated net sales in
fiscal 1998 and 1996, respectively. The Ultrapointe product line was
sold to KLA-Tencor Corporation in December 1998 and will not be a
source of future sales. No other customers represented 10% or more of
total sales during fiscal 1998. The loss or delay of orders from these
or other OEM customers could have a materially adverse effect on our
business, financial condition and operating results.
If the combination with JDS occurred on July 1, 1997, one
telecommunications customer would have accounted for approximately 12%
of the combined company's net sales for the year ended June 30, 1998.
The loss or delay of orders from this customer could have an material
adverse effect on the combined company's business, financial condition
and operating results. If the combination with JDS occurred on July 1,
1997, none of our other customers would have represented 10% or more of
our combined total sales.
Interruptions Affecting Our Key Suppliers Could Disrupt Production and
Compromise Our Product Quality and Adversely Affect Our Sales
We have sole or limited numbers of suppliers for certain of our
products. We currently obtain various components included in the
manufacture of our products from single or limited source suppliers. A
disruption or loss of supplies from these companies or a price increase
for these components would have a material adverse effect on our
results of operations, product quality and customer relationships. We
currently utilize a sole source for the crystal semiconductor chip sets
incorporated in our solid state microlaser products and acquire our
pump diodes for use in our solid state laser products from Opto Power
Corporation and GEC. We also obtain lithium niobate wafers, gallium
arsenide wafers, specialized fiber components and certain lasers used
in our telecommunications products primarily from Crystal Technology,
Inc., Fujikura, Ltd., Philips Key Modules, and Sumitomo, respectively.
We do not have long-term or volume purchase agreements with any of
these suppliers, and these components may not in the future be
available in the quantities required by us, if at all.
We May Become Subject to Collective Bargaining Agreements
Our employees who are employed at manufacturing facilities located in
North America are not bound by or party to any collective bargaining
agreements with us. These employees may become bound by or party to
one or more collective bargaining agreements with us or JDS in the
future. Certain of our and JDS' employees outside of North America,
particularly in the Netherlands and Germany, are subject to collective
bargaining agreements. If, in the future, any such employees become
bound by or party to any collective bargaining agreements, then our
related costs and our flexibility with respect to managing our business
operations involving such employees may be materially adversely
affected.
Any Failure to Remain Competitive in Our Industry Would Impair Our
Operating Results
If Our Business Operations are Insufficient to Remain Competitive
in Our Industry Our Operating Results Could Suffer
The telecommunications and laser subsystems markets in which we
sell our products are highly competitive. In each of the markets
we serve, we face intense competition from established
competitors. Many of these competitors have substantially
greater financial, engineering, manufacturing, marketing, service
and support resources than do we and may have substantially
greater name recognition, manufacturing expertise and capability
and longer standing customer relationships than do we. To remain
competitive, we believe we must maintain a substantial investment
in research and development, marketing, and customer service and
support. We may not compete successfully in the laser or
telecommunications industries in the future, and we may not have
sufficient resources to continue to make such investments, or we
may not make the technological advances necessary to maintain our
competitive position so that our products will receive market
acceptance. In addition, technological changes or development
efforts by our competitors may render our products or
technologies obsolete or uncompetitive.
If We Fail to Successfully Develop and Market Solid State Lasers
to Replace the Declining Markets for Our Gas Lasers, Our
Operating Results Could Suffer
The market for gas lasers is mature and expected to decline as
customers replace conventional lasers, including gas lasers, with
solid state lasers. Gas laser subsystems sales accounted for
26.3%, 37.3% and 52.9% of our net sales for the fiscal years
ended 1998, 1997 and 1996, respectively. Solid state lasers are
currently expected to be the primary commercial laser technology
in the future. Consequently, we have devoted substantial
resources to developing and commercializing our solid state laser
products. We believe that some companies are further advanced
than us in solid state laser development and are competing with
us for many of the same opportunities. To be competitive in our
laser markets, we believe continued manufacturing cost reductions
and enhanced performance of our laser products will be required
on a continuing basis as these markets further mature. However,
our solid state laser products may not be competitive with
products of other companies as to cost or performance in the
future.
Fiberoptic Component Average Selling Prices Are Declining
Prices for telecommunications industry fiberoptic components are
generally declining due to, among other things, increased
competition and greater unit volumes as telecommunication service
providers continue to deploy fiberoptic networks. We and JDS
have in the past and may in the future experience substantial
period to period fluctuations in average selling prices. We
anticipate that average selling prices will decrease in the
future in response to product introductions by competitors and us
or to other factors, including price pressures from significant
customers. Therefore, we must continue to (1) timely develop and
introduce new products that incorporate features that can be sold
at higher selling prices and (2) reduce our manufacturing costs.
Failure to achieve any or all of the foregoing could cause our
net sales and gross margins to decline, which may have a material
adverse effect on our business, financial condition, and
operating results.
If We Fail to Attract and Retain Key Personnel Our Business
Could Suffer
Our future depends, in part, on our ability to attract and retain
certain key personnel. In particular, our research and
development efforts depend on hiring and retaining qualified
engineers. Competition for highly skilled engineers is extremely
intense, and we are currently experiencing difficulty in
identifying and hiring certain qualified engineers in many areas
of our business. We may not be able to hire and retain such
personnel at compensation levels consistent with our existing
compensation and salary structure. Our future also depends on
the continued contributions of our executive officers and other
key management and technical personnel, none of whom currently
has an employment agreement with us and each of whom would be
difficult to replace. We do not maintain a key person life
insurance policy on the Chief Executive Officer. The loss of the
services of one or more of our 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 our business, financial
condition and operating results.
Our Participation in International Markets Creates Risks to Our
Business Not Faced by Companies That Sell Their Products in the United
States
International sales are subject to inherent risks, including
o unexpected changes in regulatory requirements,
o tariffs and other trade barriers,
o political and economic instability in foreign markets,
o difficulties in staffing and management,
o integration of foreign operations,
o longer payment cycles,
o greater difficulty in accounts receivable collection,
o currency fluctuations, and
o potentially adverse tax consequences.
International sales accounted for approximately 38.7%, 30.6% and 25.1%
of net sales in fiscal years 1998, 1997 and 1996, respectively.
International sales (excluding sales to the U.S.) accounted for
approximately 24.5%, 20.2% and 31.8% of JDS' net sales in fiscal years
1998, 1997 and 1996, respectively. We expect that international sales
will continue to account for a significant portion of our net sales.
We may continue to expand our operations outside of the United States
and to enter additional international markets, both of which will
require significant management attention and financial resources.
Since a significant portion of our foreign sales are denominated in
U.S. dollars, our products may also become less price competitive in
countries in which local currencies decline in value relative to the
U.S. dollar. Our business and operating results may also be materially
and adversely affected by lower sales levels that typically occur
during the summer months in Europe and certain other overseas markets.
Furthermore, the sales of many of our OEM customers depends on
international sales and, consequently, this further exposes us to the
risks associated with such international sales.
The Year 2000 Problem May Disrupt Our and Our Customers' and Suppliers'
Businesses
We are aware of the risks associated with the operation of information
technology and non-information technology systems as the millennium
(year 2000) approaches. The problem is pervasive and complex, and may
affect many information technology and non-information technology
systems. The Year 2000 problem results from the rollover of the two
digit year value from "99" to "00". Systems that do not properly
recognize such date-sensitive information could generate erroneous data
or fail. In addition to our own systems we rely on external systems of
our customers, suppliers, creditors, financial organizations, utilities
providers and government entities, both domestic and international
(which we collectively refer to as "Third Parties"). Consequently, we
could be affected by disruptions in the operations of Third Parties
with which we interact. Furthermore, as customers expend resources to
correct their own systems, they may reduce their purchasing frequency
and volume of our products.
We are using both internal and external resources to assess
o Our state of readiness (including the readiness of Third
Parties, with which we interact) concerning the Year 2000
problem,
o our costs to correct material Year 2000 problems related to
our internal information technology and non-information
technology systems,
o the known risks related to any failure to correct any Year
2000 problems we identify, and
o the contingency plan, if any, that we should adopt should any
identified Year 2000 problems not be corrected.
To date, we have incurred costs not exceeding U.S.$1 million, to
upgrade our IT and non-IT systems, to among other things, make such
systems Year 2000 compliant. We continue to evaluate the estimated
costs associated with the efforts to prepare for Year 2000 based on
actual experience. While the efforts will involve additional costs, we
believe, based on (i) available information, (ii) amounts spent to date
and (iii) the fact that our IT and non-IT systems depend on third-party
software which, we believe, has been or is being updated to address the
Year 2000 problem, that we will manage our total Year 2000 transition
without any material adverse effect on our business operations,
financial condition, products or financial prospects. The actual
outcomes and results could be affected by future factors including, but
not limited to,
o the continued availability of skilled personnel,
o cost control,
o the ability to locate and remediate software code problems,
o critical suppliers and subcontractors meeting their Year 2000
compliance commitments, and
o timely actions by customers.
We are working with our software system suppliers and believe that
certain of these systems are currently not Year 2000 compliant. We
have targeted September 30, 1999 as the date by which these systems
shall be Year 2000 compliant. In any event, however, we anticipate
that such systems will be corrected for the Year 2000 problem prior to
December 31, 1999. We are working with those Third Parties to identify
any Year 2000 problems affecting such Third Parties that could have a
material adverse affect on our business, financial condition or results
of operations. However, it would be impracticable for us to attempt to
address all potential Year 2000 problems of Third Parties that have
been or may in the future be identified. Specifically, Year 2000
problems have arisen or may arise regarding the information technology
and non-information technology systems of Third Parties having
widespread national and international interactions with persons and
entities generally (for example, certain information technology and
non-information technology systems of governmental agencies, utilities
and information and financial networks) that, if uncorrected, could
have a material adverse impact on our business, financial condition or
results of operations. We are still assessing the effect the Year 2000
problem will have on our suppliers and, at this time, cannot determine
such impact. However, we have identified alternative suppliers and, in
the event that any significant supplier suffers unresolved material
Year 2000 problems, we believe that we would only experience short term
disruptions in supply, not exceeding 90 days, while such supplier is
replaced.
If We Have Insufficient Proprietary Rights or We Failed to Protect
Those We Have Our Business Would be Materially Impaired
We May Not Obtain the Intellectual Property Rights We Require
The laser, semiconductor capital equipment, and
telecommunications markets in which we sell our products
experience frequent litigation regarding patent and other
intellectual property rights. Numerous patents in these
industries are held by others, including academic institutions
and our competitors. In the past we have acquired and in the
future we may seek to acquire license rights to these or other
patents or other intellectual property to the extent necessary
for our business. Unless we are able to obtain such licenses on
commercially reasonable terms, patents or other intellectual
property held by others could inhibit our development of new
products for our markets. While in the past licenses generally
have been available to us where third-party technology was
necessary or useful for the development or production of our
products, in the future licenses to third-party technology may
not be available on commercially reasonable terms, if at all.
Generally, a license, if granted, includes payments by us of up-
front fees, ongoing royalties or a combination thereof. Such
royalty or other terms could have a significant adverse impact on
our operating results. We are a licensee of a number of third
party technologies and intellectual property rights and are
required to pay royalties to these third party licensors on
certain of our telecommunications products and solid state
lasers. During fiscal 1998, 1997 and 1996, we expensed $2.0
million, $1.4 million and $1.3 million, respectively, in license
and royalty fees primarily in connection with our gas laser
subsystems.
Our Products May Infringe the Property Rights of Others
The industry in which we operate experiences periodic claims of
patent infringement or other intellectual property rights. In
this regard, third parties may in the future assert claims
against us concerning our existing products or with respect to
future products under development by us. Any litigation to
determine the validity of any third-party claims could result in
significant expense to us and divert the efforts of our technical
and management personnel, whether or not we are successful in
such litigation. If we are unsuccessful in any such litigation,
we could be required to expend significant resources to develop
non-infringing technology or to obtain licenses to the technology
that is the subject of the litigation. We may not be successful
in such development or such licenses may not be available to us.
Without such a license, we could be enjoined from future sales of
the infringing product or products.
Our Intellectual Property Rights May Not Be Adequately Protected
Our future depends in part upon our intellectual property,
including trade secrets, know-how and continuing technological
innovation. We currently hold 95 U.S. patents on products or
processes and certain corresponding foreign patents and have
applications for certain patents currently pending. The steps
taken by us to protect our intellectual property may not
adequately prevent misappropriation or ensure that others will
not develop competitive technologies or products. Other
companies may be investigating or developing other technologies
that are similar to ours. It is possible that patents may not be
issued from any application pending or filed by us and, if
patents do issue, the claims allowed may not be sufficiently
broad to deter or prohibit others from marketing similar
products. Any patents issued to us may be challenged,
invalidated or circumvented. Further, the rights under our
patents may not provide a competitive advantage to us. In
addition, the laws of certain territories in which our products
are or may be developed, manufactured or sold, including Asia,
Europe or Latin America, may not protect our products and
intellectual property rights to the same extent as the laws of
the United States.
If We Fail to Successfully Manage Our Exposure to the Worldwide
Financial Markets, Our Operating Results Could Suffer
We experience financial market risks, including changes in interest
rates, foreign currency exchange rates and marketable equity security
prices. We utilize derivative financial instruments to mitigate these
risks. We do not use derivative financial instruments for speculative
or trading purposes. The primary objective of our investment
activities is to preserve principal while at the same time maximizing
yields without significantly increasing risk. To achieve this
objective, a majority of our marketable investments are floating rate
and municipal bonds, auction instruments and money market instruments
denominated in U.S. dollars. We hedge currency risks of investments
denominated in foreign currencies with forward currency contracts.
Gains and losses on these foreign currency investments are generally
offset by corresponding gains and losses on the related hedging
instruments, resulting in negligible net exposure to us. A substantial
portion of our revenue, expense and capital purchasing activities are
transacted in U.S. dollars. However, we do enter into these
transactions in other currencies, primarily European currencies. To
protect against reductions in value and the volatility of future cash
flows caused by changes in foreign exchange rates, we have established
hedging programs. Currency forward contracts are utilized in these
hedging programs. Our hedging programs reduce, but do not always
entirely eliminate the impact of foreign currency exchange rate
movements. Actual results on our financial position may differ
materially.
If We Fail to Obtain Additional Capital at the Times, in the Amounts
and Upon the Terms Required, Our Business Could Suffer
We are devoting substantial resources for new facilities and equipment
for the production of source lasers, fiber-Bragg gratings and modules
used in telecommunications and for the development of new solid state
lasers. Although we believe existing cash balances, cash flow from
operations and available lines of credit, will be sufficient to meet
our capital requirements at least through the end of fiscal 1999, we
may be required to seek additional equity or debt financing to compete
effectively in these markets. We cannot precisely determine the timing
and amount of such capital requirements and will depend on several
factors, including our acquisitions and the demand for our products and
products under development. Such additional financing may not be
available when needed, or, if available, may not be on terms
satisfactory to us.
Our Currently Outstanding Preferred Stock and Our Ability to Issue
Additional Preferred Stock Could Impair the Rights of Our Common
Stockholders
Our Board of Directors has the authority to issue up to 800,000 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 the
consent of our stockholders. 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 us. On June 11, 1998, the Board of
Directors authorized and declared a dividend distribution of one right
for each outstanding share of its common stock, to stockholders of
record at the close of business on July 6,1998, and authorized the
issuance of one right with each share of common stock issued (including
shares distributed from treasury) by us thereafter between the record
date and the distribution date. Each right entitles the registered
holder, subject to the terms of the Rights Agreement, to purchase from
us one unit, equal to one one-thousandth of a share of Series B
Preferred Stock, at a purchase price of $270 per unit, subject to
adjustment, for each share of common stock held by the holder. The
purchase price is payable in cash or by certified or bank check or
money order payable to our order. The description and terms of the
rights are set forth in a Rights Agreement between us and American
Stock Transfer & Trust Company, as Rights Agent, dated as of June 22,
1998, as amended from time to time.
Certain provisions contained in the rights plan, may have the effect of
discouraging a third party from making an acquisition proposal for us
and may thereby inhibit a change in control of us. For example, such
provisions may deter tender offers for shares of common stock which
offers may be attractive to the stockholders, or deter purchases of
large blocks of common stock, thereby limiting the opportunity for
stockholders to receive a premium for their shares of common stock over
the then-prevailing market prices.
Certain Anti-Takeover Provisions Contained in Our Charter and Under
Delaware Law Could Impair a Takeover Attempt
We are subject to the provisions of Section 203 of the Delaware General
Corporation Law prohibiting, under certain circumstances, publicly-held
Delaware corporations from engaging in business combinations with
certain stockholders for a specified period of time without the
approval of the holders 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 us, 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 our common stock. Our
Certificate of Incorporation and Bylaws contain provisions relating to
the limitations of liability and indemnification of its directors and
officers, dividing our 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 us.
This Prospectus Contains Certain Forward Looking Statements
Investors should carefully consider the risk factors discussed above in
evaluating an investment in the common stock offered by this
prospectus. The statements contained in this prospectus that are not
purely historical are "forward-looking statements" within the meaning
of the Private Securities Litigation Reform Act of 1995 and Section 21E
of the Securities Exchange Act, including, without limitation,
statements regarding Uniphase's expectations, hopes, beliefs,
anticipations, commitments, intentions and strategies regarding the
future. Actual results could differ from those projected in any
forward-looking statements for the reasons, among others, detailed in
the preceding "Risk Factors." The fact that some of the risk factors
described in this prospectus may be the same or similar to those
described in our past filings means only that those risks are present
in multiple periods. We believe that many of the risks detailed here
are part of doing business in the industry in which we compete and will
likely be present in all periods reported. The fact that certain risks
are endemic to the industry does not lessen the significance of the
risk. We have made forward-looking statements as of the date of this
prospectus and assume no obligation to update them, or to update the
reasons why actual results could differ from those projected in them.
USE OF PROCEEDS
Because the shares of our common stock offered hereunder will be issued
upon exchange of the exchangeable shares, none of which will be held by
us, we will receive no proceeds upon such issuance.
DESCRIPTION OF UNIPHASE CAPITAL STOCK
The following summarizes certain provisions of our capital stock, but
does not purport to be complete and is subject to, and qualified in its
entirety by, our Certificate of Incorporation and Bylaws and the
provisions of applicable law.
Our authorized capital stock consists of 100,000,000 shares of common
stock, $0.001 par value per share, and 1,000,000 shares of preferred
stock, $0.001 par value per share, 100,000 shares of which are
designated Series A Preferred Stock and 100,000 shares of which are
designated Series B Preferred Stock. As of May 14, 1999, there were
40,464,807 shares of our common stock issued and outstanding, 100,000
shares of Series A Preferred Stock issued and outstanding, and no
shares of Series B Preferred Stock issued and outstanding. In
connection with the proposed combination with JDS, our stockholders
will be asked to approve an increase in our authorized common stock
from 100,000,000 to 200,000,000 shares.
Common Stock
Our common stockholders are entitled to one vote for each share held of
record on all matters submitted to a vote of the stockholders. Our
common stockholders do not have cumulative voting rights in the
election of directors. Subject to preferences that may be granted to
any then outstanding shares of preferred stock, our common stockholders
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 our
liquidation, dissolution or winding up, our common stockholders are
entitled to share ratably in all our assets remaining after payment of
liabilities and the liquidation preference of any then outstanding
shares of preferred stock. Our common stockholders have no preemptive
or other subscription or conversion rights. There are no redemption or
sinking fund provisions applicable to shares of our common stock. All
outstanding shares of our common stock are validly issued, fully paid
and nonassessable.
Preferred Stock
The Board of Directors has the authority, without further action by our
stockholders, to issue up to 800,000 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. The issuance of shares of preferred stock
could adversely affect the voting power of our common stockholders and
the likelihood that our common stockholders will receive dividend
payments and payments upon liquidation and could have the effect of
delaying, deterring or preventing a change in control of Uniphase.
Series A Preferred Stock
We currently have 100,000 shares of Series A Preferred Stock
authorized, issued and outstanding, all of which were issued to Philips
in connection with the acquisition of Uniphase Netherlands B.V
("UNL"). The shares of Series A Preferred Stock are convertible into
shares of our common stock upon the occurrence of certain events
described in the Series A Preferred Conversion and Redemption Agreement
dated as of June 9, 1998, by and between us and Philips. The shares of
our common stock into which the shares of Series A Preferred Stock are
convertible are calculated based upon (i) unit shipments of certain
products by UNL through June 30, 2002, and (ii) our common stock
trading price at the time such calculation is determined.
The shares of Series A Preferred Stock rank junior to any other class
of preferred stock that hereafter may be issued by us as to the payment
of dividends and the distribution of assets upon liquidation, unless
the terms of any such series or class provide otherwise. The shares of
Series A Preferred Stock have no voting rights except as required by
law and except that approval of Philips (as long as Philips is a holder
of shares of Series A Preferred Stock), or more than 50% of the
outstanding shares of Series A Preferred Stock (in the event that
Philips is no longer a holder of shares of Series A Preferred Stock),
is required to alter our Certificate of Incorporation so as to (i)
adversely affect the rights and privileges of the holders of shares of
Series A Preferred Stock, or (ii) increase the number of authorized
shares of Series A Preferred Stock. The holders of shares of Series A
Preferred Stock have no right to dividends or other distributions. The
holders of a majority of the shares of Series A Preferred Stock have
the right to cause us to redeem the outstanding shares of Series A
Preferred Stock or convert such shares into shares of our common stock
if certain events occur on or before June 30, 2002. In addition, each
share of Series A Preferred Stock that has not been redeemed or
converted prior to July 1, 2002, will automatically be converted into
shares of our common stock.
Series B Preferred Stock
We currently have 100,000 shares of Series B Preferred Stock
authorized, none of which are issued and outstanding. Shares of
Series B Preferred Stock are nonredeemable and subordinate to any other
series of preferred stock that is or may be issued by us.
Shares of Series B Preferred Stock will be issued in Units, each of
which is equivalent to 1/1000 of a share of Series B Preferred Stock.
Each Unit will have a minimum preferential quarterly dividend of $0.01
or any higher per share dividend declared on shares of our common
stock. In the event of liquidation, the holder of a Unit will receive a
preferred liquidation payment equal to the greater of $0.01 per Unit
and the per share amount paid in respect of a share of our common
stock.
Each Unit will have one vote on all matters submitted to a vote of our
stockholders, voting together with the shares of our common stock. In
the event of any merger, consolidation or other transaction in which
shares of our common stock are exchanged, each Unit will be entitled to
receive the per share amount paid in respect of each share of our
common stock. The rights of holders of the shares of Series B Preferred
Stock with respect to dividends, liquidation and voting, and in the
event of mergers and consolidations, are protected by antidilution
provisions.
Units are issuable upon exercise of the Rights in accordance with the
Uniphase Rights Agreement. Because of the nature of the dividend,
liquidation and voting rights of the shares of Series B Preferred
Stock, the economic value of one Unit that may be acquired upon the
exercise of each Right should approximate the economic value of one
share of our common stock. See "Uniphase Capital Stock - Rights
Agreement."
Rights Agreement
On June 11, 1998, the Board of Directors authorized and declared a
dividend distribution of one Right for each outstanding share of our
common stock, to stockholders of record at the close of business on
July 6, 1998, and authorized the issuance of one Right with each share
of our common stock issued (including shares distributed from treasury)
by us between July 6, 1998 and the Distribution Date (defined in the
next paragraph). Each Right entitles the registered holder, subject to
the terms of the Rights Agreement, to purchase from us one Unit at a
purchase price of $270 per Unit, subject to adjustment.
The Rights are attached to all certificates representing outstanding
shares of our common stock, and no separate Rights certificates have
been distributed. The Rights will separate from shares of our common
stock, and the Distribution Date will occur upon the earlier of (i) ten
days following a public announcement (the date of such announcement
being the "Stock Acquisition Date") that a person or group of
affiliated or associated persons (as such terms are defined in Rule
l2b-2 of the General Rules and Regulations under the Securities Act)
has acquired or otherwise obtained beneficial ownership (as defined in
the Rights Agreement) of 15% or more of the then outstanding shares of
our common stock (an "Acquiring Person"), or (ii) ten business days
(or such later date as may be determined by action of the Board of
Directors prior to such time as any person becomes an Acquiring Person)
following the commencement of a tender offer or exchange offer that
would result in a person or group beneficially owning 15% or more of
the then outstanding shares of our common stock. Until the Distribution
Date, (i) the Rights will be evidenced by our common stock certificates
and will be transferred with and only with such stock certificates,
(ii) new stock certificates issued after July 6, 1998 (also including
shares distributed from treasury) will contain a notation incorporating
the Rights Agreement by reference and (iii) the surrender for transfer
of any certificates representing outstanding shares of our common stock
will also constitute the transfer of the Rights associated with the
shares of our common stock represented by such certificates.
The Rights are not exercisable until the Distribution Date and will
expire at the close of business on the tenth anniversary of the Rights
Agreement unless earlier redeemed or exchanged by us as described
below. Under certain circumstances the exercisability of the Rights may
be suspended. In no event, however, will the Rights be exercisable
prior to the expiration of the period in which they may be redeemed.
As soon as practicable after the Distribution Date, Rights certificates
will be mailed to holders of record of shares of our common stock as of
the close of business on the Distribution Date and, thereafter, the
separate Rights certificates alone will represent the Rights.
If a person becomes an Acquiring Person, then each holder of a Right
will thereafter have the right to receive, upon exercise, Units or, at
the option of the Board of Directors, shares of our common stock (or,
in certain circumstances, cash, property or other securities of
Uniphase) having a value equal to two times the exercise price of the
Right. The exercise price is the purchase price multiplied by the
number of Units issuable upon exercise of a Right prior to the event
described in this paragraph. Notwithstanding any of the foregoing,
following the occurrence of the event set forth in this paragraph, all
Rights that are, or (under certain circumstances specified in the
Rights Agreement) were, beneficially owned by any Acquiring Person will
be null and void.
In the event that, at any time following the date that any person
becomes an Acquiring Person, (i) we are acquired in a merger or other
business combination transaction and we are not the surviving
corporation, (ii) any person merges with us and all or part of the
shares of our common stock are converted or exchanged for securities,
cash or property of Uniphase or any other person or (iii) 50% or more
of our assets or earning power is sold or transferred, each holder of a
Right (except Rights which previously have been voided as described
above) shall thereafter have the right to receive, upon exercise,
common shares of the Acquiring Person having a value equal to two times
the exercise price of the Right.
The purchase price payable, and the number of Units issuable, upon
exercise of the Rights are subject to adjustment from time to time to
prevent dilution (i) in the event of a stock dividend on, or a
subdivision, combination or reclassification of, the Series B Preferred
Stock, (ii) if holders of shares of the Series B Preferred Stock are
granted certain rights or warrants to subscribe for shares of Series B
Preferred Stock or convertible securities at less than the current
market price of shares of the Series B Preferred Stock, or (iii) upon
the distribution to the holders of shares of Series B Preferred Stock
of evidences of indebtedness, cash or assets (excluding regular
quarterly cash dividends) or of subscription rights or warrants (other
than those referred to above).
With certain exceptions, no adjustment in the purchase price will be
required until cumulative adjustments amount to at least 1% of the
purchase price. We are not required to issue fractional shares of
Series B Preferred Stock (other than fractions which are integral
multiples of a Unit which may be evidenced by depositary receipts). In
lieu thereof, an adjustment in cash may be made based on the current
market price of one share of Series B Preferred Stock on the day of
exercise.
At any time until ten days following the Stock Acquisition Date, a
majority of the Board of Directors may redeem the Rights in whole, but
not in part, at a price of $0.01 per Right (subject to adjustment in
certain events) (the "Rights Redemption Price") payable, at the
election of the majority of the Board of Directors, in cash or shares
of our common stock. Immediately upon the action of a majority of the
Board of Directors (including, following the date on which there is an
Acquiring Person, a majority of the Independent Directors) ordering the
redemption of the Rights, the Rights will terminate and the only right
of the holders of Rights will be to receive the Rights Redemption
Price.
We may at any time after there is an Acquiring Person, by action of a
majority of the Board of Directors, exchange all or part of the then
outstanding and exercisable Rights (other than Rights that shall have
become null and void) for shares of our common stock pursuant to a
one-for-one exchange ratio, as adjusted. Until a Right is exercised,
the holder thereof, as such, will have no rights as a stockholder of
Uniphase, including, without limitation, the right to vote or to
receive dividends. While the distribution of the Rights will not be
taxable to stockholders or to us, stockholders may, depending upon the
circumstances, recognize taxable income in the event that the Rights
become exercisable for Units (or other consideration).
Any provision of the Rights Agreement may be amended without the
approval of our stockholders at any time prior to the Distribution
Date. After the Distribution Date, the provisions of the Rights
Agreement may be amended in order to cure any ambiguity, defect or
inconsistency, to make changes which do not adversely affect the
interests of holders of Rights (excluding the interests of any
Acquiring Person), or to shorten or lengthen any time period under the
Rights Agreement; provided, however, that no amendment may be made to
adjust (i) the time period governing redemption at such time as the
Rights are not redeemable or (ii) any other time period unless such
lengthening is for the purpose of protecting, enhancing or clarifying
the Rights of and/or benefiting, the holders of Rights. In addition,
after a person becomes an Acquiring Person, no amendment or supplement
may be made without the approval of a majority of the Board of
Directors.
Upon completion of the combination with JDS, for purposes of the Rights
Agreement, beneficial ownership of exchangeable shares will be treated
as beneficial ownership of shares of our common stock and calculations
of percentage ownership, the number of shares outstanding and related
provisions will be made on a basis that treats the shares of our common
stock and the exchangeable shares as though they were the same
security. In addition, on or prior to the consummation of our
combination with JDS, the Rights Agreement will be amended to provide
that (i) The Furukawa Electric Co., Ltd. (a substantial JDS
shareholder) and its affiliates will not be "Acquiring Persons" as a
result of Furukawa's direct or indirect acquisition of exchangeable
shares or shares of our common stock pursuant to the combination, (ii)
so long as Furukawa and its affiliates, taken as a whole, own
collectively at least 5% of the issued and outstanding exchangeable
shares and shares of our common stock, taken together, the definition
of "Acquiring Person" will not be amended without the prior written
consent of Furukawa, and (iii) Furukawa and its affiliates will be
allowed to acquire, directly or indirectly, shares in or assets of
persons owning exchangeable shares or shares of our common stock
without causing Furukawa or any such affiliate to become an "Acquiring
Person," provided that Furukawa and its affiliates agree to sell such
exchangeable shares or shares of our common stock within 180 days of
completion of the acquisition in which they are acquired.
Special Voting Share
The Board of Directors has designated one authorized share of Preferred
Stock as a Special Voting Share, par value $0.001. The Special Voting
Share will be issued to the Trustee appointed under the Voting and
Exchange Trust Agreement to be entered into the date of the
consummation of our combination with JDS among us, JDS Uniphase Canada
Ltd. and a voting trustee. Except as otherwise required by law or our
Certificate of Incorporation, the Special Voting Share will be entitled
to a number of votes equal to the number of outstanding exchangeable
shares from time to time not owned by us or our affiliates, which votes
may be exercised for the election of directors and on all other matters
submitted to a vote of our stockholders. The holders of shares of our
common stock and the holder of the Special Voting Share will vote
together as a single class on all matters, except to the extent voting
as a separate class is required by applicable law or our Certificate of
Incorporation. The holder of the Special Voting Share will not be
entitled to receive any dividends from us and, in the event of any
liquidation, dissolution or winding up of Uniphase, will receive an
amount equal to the par value of such share. At such time as there are
no exchangeable shares outstanding not owned by us or our affiliates,
and there are no shares of stock, debt, options or other agreements of
JDS Uniphase Canada Ltd. that could give rise to the issuance of any
exchangeable shares to any person (other than us or our affiliates),
the Special Voting Share will be cancelled.
Delaware Law and Certain Certificate and Bylaw Provisions
The following is a summary of certain aspects of Delaware law and
certain provisions of our Certificate of Incorporation and Bylaws.
Prohibition on Certain Business Combinations
We are subject to the provisions of section 203 of the DGCL. 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 shares (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 exceptions, 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 shares.
Limitations of Liability and Indemnification of Directors
Our Certificate of Incorporation and Bylaws contain certain provisions
relating to the limitation of liability and indemnification of
directors and officers. Our Certificate of Incorporation provides that
Uniphase's directors may not be held personally liable to Uniphase 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 Uniphase 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 DGCL, relating to
prohibited dividends, distributions and repurchases or redemptions of
shares, 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, our Certificate of Incorporation and Bylaws
provide that we shall indemnify our directors and officers to the
fullest extent authorized by Delaware law.
Election of Directors
Our 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 Board of
Directors are elected each year.
Meetings of Stockholders
Our Certificate of Incorporation provides that stockholders can take
action only at a duly called annual or special meeting of stockholders.
Our Certificate of Incorporation prohibits our stockholders from taking
action by written consent in lieu of a meeting. In addition, our
Certificate of Incorporation provides that, subject to the rights of
the holders of any shares having a preference over the shares of our
common stock as to dividends or liquidation, special meetings of the
stockholders can be called only by the Board of Directors, our Chairman
of the Board or our Chief Executive Officer. 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 Uniphase.
PLAN OF DISTRIBUTION
Exchangeable Shares
On the effective date of our combination with JDS, the following, among
other things, will occur:
o the holders of JDS common shares (other than dissenting
shareholders) will initially receive 0.50855 of a Class B Non-
Voting Preference Share of the capital stock of JDS Uniphase
Canada Ltd. for each JDS common share they hold;
o immediately thereafter, each Class B Non-Voting Preference
Share held by Canadian residents will be transferred by the
holder at the holder's election, (i) to JDS Uniphase Canada
Ltd., a wholly-owned subsidiary of Uniphase, in exchange for
one exchangeable share, or (ii) to JDS Uniphase Nova Scotia
Company in exchange for one share of our common stock.
Holders of JDS common shares who are not Canadian residents
will receive one share of our common stock for each Class B
Non-Voting Preference Share they hold;
o each Class B Non-Voting Preference Share held by a Canadian
resident who fails to properly make an election (other than
dissenting shareholders) will be transferred to JDS Uniphase
Canada Ltd in exchange for one exchangeable share;
o JDS shareholders who dissent to the combination of Uniphase
and JDS will be entitled to receive the fair market value of
their JDS common shares; and
o each option to purchase JDS common shares will become an
option to purchase shares of our common stock. The option will
provide for an exercise price per share of our common stock
equal to the per share exercise price of such option to
purchase JDS common shares immediately prior to the
combination divided by 0.50855 and converted into U.S.
dollars. Immediately prior to the combination, the JDS Board
of Directors may resolve to accelerate the vesting schedule
for all or any portion of the options to purchase JDS common
shares so that immediately following the combination, the
options to purchase shares of our common stock will be
immediately exercisable.
We and our affiliates do not currently own any JDS common shares and
are prohibited from acquiring any JDS common shares prior to the date
of the combination pursuant to the transaction documents, except with
the prior approval of JDS.
Immediately following the combination, JDS will become an indirect
subsidiary of Uniphase. Based on the exchange ratio of 0.50855 shares
of our common stock or exchangeable shares for each JDS common share,
immediately following completion of the combination, the former holders
of JDS common shares will hold an aggregate of approximately 39.7
million exchangeable shares and shares of common stock. Assuming all
JDS common shares are exchanged for shares of common stock and based
upon the number of JDS common shares and shares of our common stock
outstanding as of January 27, 1999, immediately following completion of
the combination, existing JDS shareholders would hold approximately 50%
of our outstanding shares of common stock.
Procedures For Issuance of Our Common Stock
Election By Holders of Exchangeable Shares to Exchange Such Shares.
Subject to the exercise by JDS Uniphase Nova Scotia Company of its
overriding purchase right discussed below, holders of the exchangeable
shares will be entitled at any time following the combination to
require JDS Uniphase Canada Ltd. to redeem any or all of the
exchangeable shares held by such holder in exchange for an equal number
of shares of our common stock plus any declared and unpaid dividends on
such shares of our common stock.
When a holder requests JDS Uniphase Canada Ltd. to redeem exchangeable
shares, JDS Uniphase Nova Scotia Company will have an overriding right
to purchase on the effective date of the redemption all but not less
than all of the redeemed shares.
A holder may revoke its redemption request, in writing, at any time
prior to the close of business on the business day preceding the
effective date of the redemption, in which case the redeemed shares
will neither be purchased by JDS Uniphase Nova Scotia Company nor be
redeemed by JDS Uniphase Canada Ltd.
If, as a result of solvency requirements or applicable law, JDS
Uniphase Canada Ltd. is not permitted to redeem all shares tendered by
a redeeming holder, JDS Uniphase Canada Ltd. will redeem only those
shares tendered by the holder (rounded down to a whole number of
shares) permitted by law. We will purchase the remaining tendered
shares not redeemed by JDS Uniphase Canada Ltd.
Redemption of Exchangeable Shares.
Subject to legal requirements and the right of JDS Uniphase Nova Scotia
Company to purchase the exchangeable shares, on a date selected by our
Board of Directors which is no earlier than March 31, 2014, JDS
Uniphase Canada Ltd. will redeem all but not less than all of the then
outstanding exchangeable shares in exchange for an equal number of
shares of our common stock plus any declared and unpaid dividends on
such shares of our common stock.
JDS Uniphase Nova Scotia Company will have an overriding right to
purchase on the date our Board of Directors selects, all but not less
than all of the exchangeable shares then outstanding (other than
exchangeable shares held by our affiliates) in exchange for an equal
number of shares of our common stock plus any declared and unpaid
dividends on such shares of our common stock. Upon the exercise of
this right, holders will be obligated to sell their exchangeable shares
to JDS Uniphase Nova Scotia Company.
Early Redemption.
JDS Uniphase Canada Ltd. has the right to redeem the exchangeable
shares prior to March 31, 2014 in the following circumstances:
o there being fewer than 992,372 exchangeable shares outstanding
(excluding exchangeable shares held by us and our affiliates),
provided that such number may be adjusted by the Board of
Directors of JDS Uniphase Canada Ltd. in certain
circumstances,
o the occurrence of certain mergers involving us, provided that
the Board of Directors of JDS Uniphase Canada Ltd. determines
(1) that it is not reasonably practicable to substantially
replicate the terms and conditions of the exchangeable shares
in connection with the merger and (2) that the redemption of
the exchangeable shares is necessary to enable the completion
of the merger,
o a proposal being made for certain voting events involving
exchangeable shares, provided that the Board of Directors of
JDS Uniphase Canada Ltd. determines that it is not reasonably
practicable to accomplish the business purpose intended by the
voting event in any other commercially reasonable manner that
does not result in an voting event, or
o the failure by the holders of the exchangeable shares to
approve or disapprove, as applicable, certain voting events.
Liquidation of JDS Uniphase Canada
In the event of the liquidation, dissolution or winding-up of JDS
Uniphase Canada Ltd., holders of the exchangeable shares will have,
subject to applicable law, preferential rights to receive from JDS
Uniphase Canada Ltd. a liquidation amount of one share of our common
stock plus the amount of any declared but unpaid dividends on such
share for each exchangeable share they hold. Upon the occurrence of
such liquidation, dissolution or winding-up, JDS Uniphase Nova Scotia
Company will have an overriding liquidation call right to purchase all
of the outstanding exchangeable shares (other than exchangeable shares
held by our affiliates).
Upon the occurrence and during the continuance of an event of
insolvency involving JDS Uniphase Canada Ltd., each holder of
exchangeable shares (other than our affiliates) may exercise the
exchange right with respect to any or all of the exchangeable shares,
thereby requiring us to purchase such exchangeable shares from the
holder.
Liquidation of Uniphase.
Upon the occurrence of an event of insolvency involving us, in order
for the holders of the exchangeable shares to participate on a pro rata
basis with holders of shares of our common stock, each exchangeable
share (other than those held by our affiliates) will automatically be
exchanged for an equivalent number of shares of our common stock.
INCOME TAX CONSIDERATIONS
Canadian Federal Income Tax Considerations
In the opinion of Tory Tory DesLauriers & Binnington, Canadian counsel
for Uniphase, the following is a summary of the principal Canadian
federal income tax considerations under the Income Tax Act (Canada) in
respect of the exchange of exchangeable shares for shares of our common
stock and the holding of shares of our common stock generally
applicable to holders of exchangeable shares who, for purposes of the
Income Tax Act (Canada) and any relevant bilateral tax treaty, and at
all relevant times, is resident or deemed to be resident in Canada
while holding exchangeable shares or shares of our common stock, hold
their exchangeable shares, and will hold their shares of our common
stock, as capital property and deal at arm's length with Uniphase, JDS
Uniphase Nova Scotia Company and JDS Uniphase Canada Ltd.
Exchangeable shares and shares of our common stock will generally be
considered to be capital property to a shareholder unless any such
shares are held in the course of carrying on a business of buying and
selling shares or such shares are acquired in a transaction considered
to be an adventure in the nature of trade. Shareholders whose
exchangeable shares might not otherwise qualify as capital property may
be entitled to obtain such qualification by making the irrevocable
election provided by subsection 39(4) of the Income Tax Act (Canada).
Shareholders who do not hold their exchangeable shares as capital
property should consult their own tax advisors regarding their
particular circumstances. In addition, the mark-to-market rules
contained in the Income Tax Act (Canada) relating to financial
institutions (including certain financial institutions, registered
securities dealers and corporations controlled by one or more of the
foregoing) will generally deem such financial institutions not to hold
their exchangeable shares or shares of our common stock as capital
property for the purposes of the Income Tax Act (Canada).
Shareholders that are financial institutions should consult their own
tax advisors to determine the tax consequences to them of the
application of the mark-to-market rules.
This summary is based on the current provisions of the Income Tax Act
(Canada), the regulations thereunder and counsel's understanding of the
current administrative practices published by Revenue Canada, all in
effect as of the date of this prospectus. This summary takes into
account all specific proposals to amend the Income Tax Act (Canada) and
regulations publicly announced by the Canadian Minister of Finance,
although no assurance can be given that such proposals will be enacted
in the form presented, or at all. This summary does not take into
account or anticipate any other changes in law, whether by judicial,
governmental or legislative action or decision, nor does it take into
account provincial, territorial or foreign income tax legislation or
considerations, which may differ from the Canadian federal income tax
considerations described herein. No advance income tax ruling has been
sought or obtained from Revenue Canada to confirm the tax consequences
of any of the transactions described herein.
This summary is of a general nature only and is not intended to be, and
should not be construed to be, legal, business or tax advice to any
particular shareholder. Shareholders should consult their own tax
advisors as to the tax consequences of the described transactions in
their particular circumstances.
For the purposes of the Income Tax Act (Canada), all amounts relating
to the acquisition, holding or disposition of shares of our common
stock must be expressed in Canadian dollars, including dividends,
adjusted cost base and proceeds of disposition; amounts denominated in
United States dollars must be converted into Canadian dollars based on
the prevailing United States dollar exchange rate generally at the time
such amounts arise.
Redemption or Exchange of Exchangeable Shares
On the redemption (including a retraction) of an exchangeable share by
JDS Uniphase Canada Ltd., the holder of the exchangeable share will be
deemed to have received a dividend equal to the amount, if any, by
which the redemption proceeds (the fair market value at that time of
our shares of common stock (including any related Uniphase rights)
received by the shareholder from JDS Uniphase Canada Ltd. on the
redemption plus the full amount of all dividends, if any, declared and
unpaid on each exchangeable share held by the holder on any dividend
record date occurring prior to such time (the "Dividend Amount")
exceeds the paid-up capital (for purposes of the Income Tax Act
(Canada)) of the exchangeable share at the time the exchangeable share
is so redeemed. The amount of any such deemed dividend will be subject
to the tax treatment described below under the heading "Dividends on
Exchangeable Shares". On the redemption, the holder of an exchangeable
share will also be considered to have disposed of the exchangeable
share and any related exchangeable share right for proceeds of
disposition equal to the redemption proceeds less the amount of such
deemed dividend. A holder will in general realize a capital gain (or a
capital loss) equal to the amount by which the adjusted cost base to
the holder of the exchangeable share and exchangeable share right is
less than (or exceeds) such proceeds of disposition. See "Taxation of
Capital Gain or Capital Loss" below. In the case of a shareholder that
is a corporation, in some circumstances the amount of any such deemed
dividend may be treated as proceeds of disposition and not as a
dividend.
On the exchange of an exchangeable share and related exchangeable share
right by the holder thereof with JDS Uniphase Nova Scotia Company or
Uniphase for shares of our common stock (including any related Uniphase
rights), the holder will in general realize a capital gain (or a
capital loss) to the extent the proceeds of disposition of the
exchangeable share and exchangeable share right, net of any reasonable
costs of disposition, exceed (or are less than) the adjusted cost base
to the holder of the exchangeable share and exchangeable share right.
For these purposes, the proceeds of disposition will be the aggregate
of the fair market value, at the time of the exchange, of the shares of
our common stock (including any related Uniphase rights) received on
the exchange, any Dividend Amount received by the holder as part of the
exchange consideration and the amount of any cash received in lieu of a
fractional share. See "Taxation of Capital Gain or Capital Loss"
below.
Because of the existence of the Call Rights, the Exchange Right and the
Automatic Exchange Right, a holder of exchangeable shares cannot
control whether such holder will receive Uniphase Common Shares by way
of redemption of the exchangeable shares by JDS Uniphase Canada Ltd. or
by way of purchase of the exchangeable shares by Uniphase or JDS
Uniphase Nova Scotia Company. As described above, the Canadian federal
income tax consequences of a redemption differ from those of a
purchase.
Dividends on Exchangeable Shares
In the case of a shareholder who is an individual, dividends received
or deemed to be received on the exchangeable shares will be required to
be included in computing the shareholder's income and will be subject
to the gross-up and dividend tax credit rules normally applicable to
taxable dividends received from a corporation resident in Canada.
Subject to the discussion below as to the denial of the dividend
deduction, in the case of a shareholder that is a corporation, other
than a "specified financial institution" as defined in the Income Tax
Act (Canada), dividends received or deemed to be received on the
exchangeable shares will be included in computing the corporation's
income and will generally be deductible in computing its taxable
income. In the case of a shareholder that is a specified financial
institution, such a dividend will be deductible in computing its
taxable income only if either: (i) the specified financial institution
did not acquire the exchangeable shares in the ordinary course of the
business carried on by such institution; or (ii) at the time of the
receipt of the dividend by the specified financial institution, the
exchangeable shares are listed on a prescribed stock exchange in Canada
(which currently includes The Toronto Stock Exchange) and the specified
financial institution, either alone or together with persons with whom
it does not deal at arm's length, does not receive (or is not deemed to
receive) dividends in respect of more than 10% of the issued and
outstanding exchangeable shares.
If Uniphase or any other person with whom Uniphase does not deal at
arm's length is a specified financial institution at a point in time
that a dividend is paid or deemed to be paid on an exchangeable share,
then subject to the exemption described below, dividends received or
deemed to be received by a shareholder that is a corporation will not
be deductible in computing taxable income but will be fully includable
in taxable income under Part I of the Income Tax Act (Canada). A
corporation is a specified financial institution for purposes of the
Income Tax Act (Canada) if it is a bank, a trust company, a credit
union, an insurance corporation or a corporation whose principal
business is the lending of money to persons with whom the corporation
is dealing at arm's length or the purchasing of debt obligations issued
by such persons or a combination thereof, and corporations controlled
by or related to such entities. Uniphase has informed counsel that it
is of the view that neither it nor any person with whom it does not
deal at arm's length nor any partnership or trust of which it or the
person is a member or beneficiary, respectively, is a specified
financial institution at the current time but there can be no assurance
that this status will not change prior to any dividend deemed to be
received by a corporate shareholder. This denial of the dividend
deduction for a shareholder that is a corporation will not in any event
apply if, at the time a dividend is received or deemed to be received,
the exchangeable shares are listed on a prescribed stock exchange
(which currently includes The Toronto Stock Exchange), Uniphase and JDS
Uniphase Nova Scotia Company are "related" to JDS Uniphase Canada Ltd.
for the purposes of the Income Tax Act (Canada) and the recipient
(together with persons with whom the recipient does not deal at arm's
length or any partnership or trust of which the recipient or person is
a member or beneficiary, respectively) does not receive dividends on
more than 10% of the issued and outstanding exchangeable shares.
A shareholder that is a "private corporation" (as defined in the
Income Tax Act (Canada)) or any other corporation resident in Canada
and controlled or deemed to be controlled by or for the benefit of an
individual or a related group of individuals may be liable under
Part IV of the Income Tax Act (Canada) to pay a refundable tax of 331/3%
on dividends received or deemed to be received on the exchangeable
shares to the extent that such dividends are deductible in computing
the shareholder's taxable income. A shareholder that is a
"Canadian-controlled private corporation" (as defined in the Income
Tax Act (Canada)) may be liable to pay an additional refundable tax of
6 2/3% on dividends or deemed dividends that are not deductible in
computing taxable income.
The exchangeable shares will be "taxable preferred shares" and
"short-term preferred shares" for purposes of the Income Tax Act
(Canada). Accordingly, JDS Uniphase Canada Ltd. will be subject to a 66
2/3% tax under Part VI.I of the Income Tax Act (Canada) on dividends
paid or deemed to be paid on the exchangeable shares and will be
entitled to deduct 9/4 of the tax payable in computing its taxable
income under Part I of the Income Tax Act (Canada). Dividends received
or deemed to be received on the exchangeable shares will not be subject
to the 10% tax under Part IV.I of the Income Tax Act (Canada).
Acquisition and Disposition of Shares of Our Common Stock
The cost of the shares of our common stock received on the retraction,
redemption or exchange of an exchangeable share will be equal to the
fair market value of such shares of our common stock at the time of
such event, to be averaged with the adjusted cost base of any other
shares of our common stock held at that time by the holder as capital
property.
A disposition or deemed disposition of shares of our common stock by a
holder will generally result in a capital gain (or capital loss) to the
extent that the proceeds of disposition, net of any reasonable costs of
disposition, exceed (or are less than) the adjusted cost base to the
holder of shares of our common stock immediately before the
disposition.
Taxation of Capital Gain or Capital Loss
Three-quarters of any capital gain (the "taxable capital gain")
realized by a shareholder will be included in the shareholder's income
for the year of disposition. Three-quarters of any capital loss so
realized (the "allowable capital loss") may be deducted by the holder
against taxable capital gains for the year of disposition. Any excess
of allowable capital losses over taxable capital gains of the
shareholder for the year of disposition may be carried back up to three
taxation years or forward indefinitely and deducted against net taxable
capital gains in those other years to the extent and in the
circumstances prescribed in the Income Tax Act (Canada).
Capital gains realized by an individual or trust, other than certain
trusts, may give rise to alternative minimum tax under the Income Tax
Act (Canada). A shareholder that is a Canadian-controlled private
corporation (as defined in the Income Tax Act (Canada)) may be liable
to pay an additional refundable tax of 6 2/3% on taxable capital gains.
If the holder of an exchangeable share is a corporation, the amount of
any capital loss arising on a disposition or deemed disposition of any
such share may be reduced by the amount of dividends received or deemed
to have been received by it on such share to the extent and under
circumstances prescribed by the Income Tax Act (Canada). Similar rules
may apply where a corporation is a member of a partnership or a
beneficiary of a trust that owns exchangeable shares or where a trust
or partnership of which a corporation is a beneficiary or a member is a
member of a partnership or a beneficiary of a trust that owns any such
shares.
Dividends on Shares of Our Common Stock
Dividends on our shares of common stock will be required to be included
in the recipient's income for the purposes of the Income Tax Act
(Canada). Such dividends received by a shareholder who is an individual
will not be subject to the gross-up and dividend tax credit rules in
the Income Tax Act (Canada). A shareholder that is a corporation will
include such dividends in computing its income and generally will not
be entitled to deduct the amount of such dividends in computing its
taxable income. A shareholder that is a Canadian-controlled private
corporation may be liable to pay an additional refundable tax of 6 2/3%
on such dividends. United States non-resident withholding tax on
dividends generally will be eligible for foreign tax credit or
deduction treatment where applicable under the Income Tax Act (Canada).
See the commentary below under the heading "United States Federal Tax
Considerations".
United States Federal Tax Considerations for JDS Shareholders
In the opinion of Morrison & Foerster LLP, U.S. counsel for Uniphase,
the following is a summary of the material United States federal income
tax considerations applicable to non-U.S. holders who receive shares of
our common stock in exchange for exchangeable shares. For purposes of
this discussion, a U.S. holder is a beneficial owner of JDS common
shares who or that is (1) a citizen or resident of the United States,
(2) a corporation, partnership or other entity taxable as a corporation
created or organized in or under the laws of the United States or of
any political subdivision thereof, (3) an estate the income of which is
subject to United States federal income taxation regardless of its
source or (4) a trust (i) that is subject to the supervision of a court
within the United States and the control of one or more United States
persons as described in section 7701(a)(30) of the Internal Revenue
Code of 1986, as amended (the "Code"), or (ii) that has a valid
election in effect under applicable United States Treasury regulations
to be treated as a United States person. A ``non-U.S. holder'' is any
beneficial owner of JDS common shares other than a U.S. holder.
This summary does not discuss all United States federal income tax
considerations that may be relevant to non-U.S. holders in light of
their particular circumstances or to non-U.S. holders that may be
subject to special treatment under United States federal income tax
laws (for example, individuals who were formerly citizens or residents
of the United States, insurance companies, tax-exempt organizations,
financial institutions, dealers in securities, persons who hold JDS
common shares as part of a straddle, hedging, constructive sale or
conversion transaction, and holders who acquired JDS common shares
through exercise of employee stock options or otherwise as compensation
for services). Furthermore, this summary does not discuss aspects of
United States federal income taxation that may be applicable to holders
of options to purchase JDS common shares, nor does it address any
aspects of non-U.S., state or local taxation. This summary is based on
current provisions of the Code, existing, temporary and proposed
regulations promulgated thereunder, and administrative and judicial
interpretations thereof, all of which are subject to change, possibly
with retroactive effect. No advance income tax ruling has been sought
or obtained from the Internal Revenue Service (the "IRS") regarding
the tax consequences of the transactions described herein.
The discussion does not address U.S. holders who are also Canadian
residents and who receive exchangeable shares. Such U.S. holders
should consult their tax advisors concerning the United States tax
consequences of the receipt, ownership and disposition of the
exchangeable shares, including the exchange of exchangeable shares for
our common shares.
This summary is of a general nature only and is not intended to be, and
should not be construed to be, legal, business or tax advice to any
particular shareholder. Shareholders should consult their tax advisors
with respect to the United States federal, state, local and non-U.S.
tax consequences of the described transactions in their particular
circumstances.
Exchangeable Shares
Exchange of Exchangeable Shares. A non-U.S. holder generally will not
be subject to United States federal income tax on any gain realized on
the exchange of exchangeable shares for shares of our common stock,
unless such gain is effectively connected with a United States trade or
business of the non-U.S. holder, attributable to a permanent
establishment of the non-U.S. holder in the United States or, in the
case of gain recognized by an individual non-U.S. holder, such
individual is present in the United States for 183 days or more during
the taxable year of disposition and certain other conditions are
satisfied.
Shares of Our Common Stock
Dividends on Shares of Our Common Stock. Dividends (other than
dividends of common stock) paid to a non-U.S. holder of shares of our
common stock generally will be subject to withholding of United States
federal income tax at a rate of 30% (or such lower rate as may be
specified by an applicable income tax treaty) unless the dividend is
(1) effectively connected with the conduct of a trade or business of
the non-U.S. holder within the United States, or (2) if a tax treaty
applies, attributable to a United States permanent establishment of the
non-U.S. holder, in which cases the dividend will be taxed at ordinary
United States federal income tax rates. If the non-U.S. holder is a
corporation, such effectively connected income may also be subject to
an additional ``branch profits tax.'' A non-U.S. holder may be
required to satisfy certain certification requirements to claim treaty
benefits or otherwise claim a reduction of, or exemption from, the
withholding obligation described above. Under the U.S.-Canada Tax
Convention, the withholding rate on dividends for eligible Canadian
residents is generally 15%.
Sale or Exchange of Shares of Our Common Stock. A non-U.S. holder
generally will not be subject to United States federal income or
withholding tax in respect of any gain recognized on the sale or other
taxable disposition of shares of our common stock unless (1) the gain
is effectively connected with a trade or business of the non-U.S.
holder in the United States; (2) in the case of a non-U.S. holder who
is an individual and holds the shares as a capital asset, the non-U.S.
holder is present in the United States for 183 or more days during the
taxable year of the disposition and satisfies certain other conditions;
or (3) (a) we are or have been during certain periods preceding the
disposition a "U.S. real property holding corporation" for United
States federal income tax purposes (which we do not believe we are or
are likely to become), and (b) assuming that shares of our common stock
will be "regularly traded on an established securities market" for
United States federal income tax purposes, the non-U.S. holder held,
directly or indirectly, at any time during the five-year period ending
on the date of disposition, more than 5% of our outstanding common
stock. Generally, an individual who is a resident of Canada for
purposes of the U.S.-Canada Income Tax Convention will not be subject
to U.S. tax on the sale or other disposition of shares of our common
stock.
Backup Withholding and Information Reporting
Dividends. Until January 1, 2001, United States backup withholding tax
generally will not apply to dividends paid on our common shares to a
non-U.S. holder at an address outside the United States. We must report
annually to the IRS and to each non-U.S. holder the amount of dividends
paid to, and the tax withheld with respect to, such non-U.S. holder,
regardless of whether any tax was actually withheld. This information
may also be made available to the tax authorities in the non-U.S.
holder's country of residence.
Sale or Exchange of Shares of Our Common Stock. Upon the sale or other
disposition of shares of our common stock by a non-U.S. holder to or
through a United States office of a broker, the broker must backup
withhold at a rate of 31% and report the sale to the IRS, unless the
non-U.S. holder certifies its non-U.S. holder status under penalties of
perjury or otherwise establishes an exemption. Upon the sale or other
disposition of shares of our common stock by a non-U.S. holder to or
through the foreign office of a United States broker, or a foreign
broker with certain types of relationships to the United States, the
broker must report the sale to the IRS (but not backup withhold),
unless the broker has documentary evidence in its files that the seller
is a non-U.S. holder and/or certain other conditions are met, or the
non-U.S. holder otherwise establishes an exemption.
Amounts withheld under the backup withholding rules are generally
allowable as a credit against such non-U.S. holder's United States
federal income tax liability (if any), which may entitle such non-U.S.
holder to a refund, provided that the required information is furnished
to the IRS.
The IRS has issued final regulations relating to withholding,
information reporting and backup withholding that unify certain
certification procedures and forms and clarify reliance standards. The
final regulations will be effective with respect to payments made after
December 31, 2000. The final regulations eliminate the general prior
legal presumption that dividends paid to an address in a foreign
country are paid to a resident of that country. In addition, the final
regulations impose certain certification and documentation requirements
on non-U.S. holders claiming the benefit of a reduced withholding rate
with respect to dividends under a tax treaty or otherwise claiming a
reduction of, or exemption from, the withholding obligation described
above. Non-U.S. holders are urged to consult their own tax advisors as
to the effect, if any, of the final regulations on their ownership and
disposition of shares of our common stock.
United States Estate Tax Consequences
Shares of our common stock owned at the time of his or her death by an
individual non-U.S. holder will be includable in his or her gross
estate for United States federal estate tax purposes and, subject to
certain credits, may be subject to United States federal estate tax,
unless an applicable income or estate tax treaty provides otherwise.
Under certain circumstances, Article XXXIXB of the U.S.-Canadian Income
Tax Convention limits the application of the U.S. estate tax to
Canadian residents. Accordingly, Canadian residents are urged to
consult their tax advisors regarding the possible application of the
U.S. estate tax.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The documents listed below have been filed by Uniphase under the
Exchange Act with the Commission and are incorporated into this
prospectus by reference:
a. Uniphase's Annual Report on Form 10-K for the year ended June
30, 1998;
b. Uniphase's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1998;
c. Uniphase's Quarterly Report on Form 10-Q/A for the quarter
ended September 30, 1998;
d. Uniphase's Quarterly Report on Form 10-Q for the quarter ended
December 31, 1998;
e. Uniphase's Quarterly Report on Form 10-Q/A for the quarter
ended December 31, 1998;
f. Uniphase's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1999;
g. Uniphase's Report on Form 8-K/A dated as of August 24, 1998;
h. Uniphase's Report on Form 8-K/A dated as of August 25, 1998;
i. Uniphase's Report on Form 8-K dated as of January 7, 1999;
j. Uniphase's Report on Form 8-K/A dated as of April 28, 1999;
and
k. The description of the Registrant's common stock contained in
Uniphase's Registration Statement on Form 8-A filed with
the Commission on November 15, 1993.
Each document filed by Uniphase pursuant to sections 13(a), 13(c), 14
and 15(d) of the exchange act subsequent to the date of this prospectus
and prior to the termination of the offering made by this prospectus
shall be deemed to be any statement contained into this prospectus or
in a document incorporated or deemed to be incorporated by reference
into this prospectus shall be deemed to be modified or superseded for
purposes of this prospectus to the extent that a statement contained
into this prospectus (or in the applicable prospectus supplement) or in
any other subsequently filed document which also is or is deemed to be
incorporated by reference into this prospectus modifies or supersedes
such statement. Any such statement so modified or superseded shall not
be deemed, except as so modified or superseded, to constitute a part of
this prospectus.
Copies of all documents which are incorporated into this prospectus by
reference (not including the exhibits to such documents, unless such
exhibits are specifically incorporated by reference in such documents)
will be provided without charge to each person, including any
beneficial owner, to whom this prospectus is delivered upon written or
oral request. Please direct requests to the corporate secretary at
Uniphase's corporate headquarters at 163 Baypointe Parkway, San Jose,
California 95134 or by telephone at (408) 434-1800.
LEGAL OPINIONS
The validity of the issuance of the shares of common stock offered
pursuant to this prospectus and certain U.S. tax consequences will be
passed upon for Uniphase by Morrison & Foerster LLP, Palo Alto,
California. Certain Canadian tax consequences will be passed on by
Tory Tory DesLauriers & Binnington, Toronto, Canada.
EXPERTS
The consolidated financial statements of Uniphase Corporation appearing
in Uniphase Corporation's Current Report on Form 8-K/A dated April 28,
1999, have been audited by Ernst & Young LLP, independent auditors, as
set forth in their report thereon included therein and incorporated
herein by reference. 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 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, have been
audited by Ernst & Young Accountants, independent auditors, as set
forth in their report thereon included therein and incorporated herein
by reference. Such financial statements are incorporated by reference
in reliance upon such report given upon the authority of such firm as
experts in accounting and auditing.
INTERESTS OF NAMED EXPERTS
Michael C. Philips, a partner with Morrison & Foerster LLP, our
counsel, also serves as a Senior Vice President and General Counsel of
Uniphase.
WHERE YOU MAY FIND MORE INFORMATION
Uniphase is subject to the informational requirements of the Securities
Exchange Act of 1934, and accordingly Uniphase files reports, proxy
statements and other information with the Securities and Exchange
Commission. Such reports, proxy statements and other information filed
can be inspected and copied at the Commission's Public Reference
Section, 450 Fifth Street, N.W., Washington, D.C., 20549, and at the
following regional offices of the Commission: Seven World Trade Center,
13th Floor, New York, New York 10048 and 500 West Madison Street, Suite
1400, Chicago, Illinois 60661-2511. Copies of such material 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 web site (http://www.sec.gov) containing
reports, proxy and information statements and other information of
registrants, including us, that file electronically with the
Commission. In addition, our common stock is listed on the Nasdaq
National Market and similar information concerning Uniphase can be
inspected and copied at the offices of the National Association of
Securities Dealers, Inc., 9513 Key West Avenue, Rockville, Maryland
20850.
We have with the Commission a registration statement on Form S-3 (of
which this prospectus is a part) under the Securities Act of 1933, with
respect to the shares offered by this prospectus. This prospectus does
not contain all of the information set forth in the registration
statement, certain portions of which have been omitted as permitted by
the rules and regulations of the Commission. Statements contained in
this prospectus as to the contents of any contract or other documents
are not necessarily complete, and in each instance reference is made to
the copy of such contract or other document filed as an exhibit to the
registration statement, each such statement being qualified in all
respects by such reference and the exhibits and schedules thereto. For
further information regarding us and the shares offered by this
prospectus, reference is hereby made to the registration statement and
such exhibits and schedules which may be obtained from the Commission
at its principal office in Washington, D.C. upon payment of the fees
prescribed by the Commission.
No person has been authorized to give any information or to make any
representations not contained or incorporated by reference in this
prospectus in connection with the offer described in this prospectus
and, if given or made, such information and representations must not be
relied upon as having been authorized by us. Neither the delivery of
this prospectus nor any sale made under this prospectus shall under any
circumstances create any implication that there has been no change in
our affairs since the date of this prospectus or since the date of any
documents incorporated into this prospectus by reference. This
prospectus does not constitute an offer to sell or a solicitation of an
offer to buy any securities other than the securities to which it
relates, or an offer or solicitation in any state to any person to whom
it is unlawful to make such offer in such state.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the estimated fees and expenses payable
by Uniphase in connection with the issuance and distribution of the
common stock registered hereby. All of such fees and expenses are
estimates, except the securities act registration fee.
Securities Act Registration Fee
<TABLE>
<S> <C>
Secutities Act Registration Fee........................$1,354,508.70
Printing and duplicating fees.......................... 5,000.00
Legal fees and expenses................................ 30,000.00
Accounting fees and expenses........................... 30,000.00
Miscellaneous expenses................................. 5,000.00
--------------
*Total............................................$1,424,508.70
==============
*None of the expenses listed above will be borne by the selling stockholders.
</TABLE>
[CAPTION]
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The indemnification and liability of Uniphase's directors and officers
are governed by Delaware law. Under Section 145 of the General
Corporation Law of the State of Delaware, Uniphase 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"). Uniphase'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.
Uniphase'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 Uniphase 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 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.
Uniphase has entered into agreements with its directors and certain of
its executive officers that require Uniphase 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 Uniphase
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 Uniphase 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.
Uniphase has obtained a policy of directors' and officers' liability
insurance that insures Uniphase's directors and officers against the
cost of defense, settlement or payment of a judgment under certain
circumstances.
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Exhibit Description
- --------- ---------------------------------------------------------
<S> <C>
2.1 Merger Agreement by and among Uniphase Corporation, 3506967
Canada Inc. and JDS FITEL Inc., dated as of January 28, 1999 as
amended and restated as of April 29, 1999 (incorporated by
reference to Registrant's preliminary Proxy Statement on
Schedule 14-A filed on May 4, 1999).
2.2 First Amended and Restated Rights Agreement dated January 16,
1999 (incorporated by reference to Registrant's Registration
Statement on Form 8-A 12G/A filed on February 4, 1999).
4.1 Provisions Attaching to the exchangeable shares of 3506967
Canada Incorporated (incorporated by reference to Registrant's
Proxy Statement on Schedule 14-A filed on April, 1999).
5.1 Opinion of Morrison & Foerster LLP
8.1 Opinion of Morrison & Foerster LLP
8.2 Opinion of Tory Tory DesLauriers & Binnington
23.1 Consent of Morrison & Foerster LLP (included in Exhibit 5.1)
23.2 Consent of Morrison & Foerster LLP (included in Exhibit 8.1)
23.3 Consent of Tory Tory DesLauriers & Binnington (included in
exhibit 8.2)
23.4 Consent of Ernst & Young LLP, independent auditors
23.5 Consent of Ernst & Young Accountants, independent auditors
24.1 Power of Attorney (included on signature page hereto)
</TABLE>
Item 17. Undertakings
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in this registration
statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that
which was registered) any deviation from the low or high
and of the estimated maximum offering price may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate
changes in volume and price represent no more than a 20
percent change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in
the effective registration statement; and
(iii)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; provided,
however, that subparagraphs (i) and (ii) do not apply if
the information required to be included in a post-effective
amendment by those paragraphs is contained in the periodic
reports filed by the Registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in this registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered herein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of these securities being registered which remain
unsold at the termination of the offering.
The undersigned Registrant hereby further undertakes that, for the
purposes of determining any liability under the Securities Act of 1933,
each filing of the Registrant's annual reports pursuant to Section
13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and,
when applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference to 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.
The undersigned Registrant hereby further undertakes that:
(1) For purposes of determining any liability under the Securities
Act of 1933, the information omitted from the form of prospectus
filed as part of this registration statement in reliance under
Rule 430A and contained in a form of prospectus filed by the
Registrant pursuant to Rule 424(b)(1) or (4), or 497(h) under the
Securities Act of 1933 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 of 1933, 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.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions described under
Item 15 of this registration statement, or otherwise (other than
insurance), the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against
public policy as expressed in such Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the
Registrant in the successful defense of any action suit or proceeding)
is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public
policy as expressed in such Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Company certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on 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 May 19, 1999.
UNIPHASE CORPORATION
By: /s/ Kevin N. Kalkhoven
Kevin N. Kalkhoven
President, Chief Executive
Officer and Chairman of
the Board
POWER OF ATTORNEY
The undersigned hereby constitutes and appoints Kevin N.
Kalkhoven and Anthony R. Muller as his/her true and lawful attorneys-
in-fact and agents, jointly and severally, with full power of
substitution and resubstitution, for and in his/her stead, in any and
all capacities, to sign on his/her behalf the Registration Statement on
Form S-3 in connection with the sale by Uniphase Corporation of shares
of offered securities, and to execute any amendments thereto (including
post-effective amendments) or certificates that may be required in
connection with this Registration Statement, and to file the same, with
all exhibits thereto, and all other documents in connection therewith,
with the Securities and Exchange Commission and granting unto said
attorneys-in-fact and agents, jointly and severally, the full power and
authority to do and perform each and every act and thing necessary or
advisable to all intents and purposes as he/she might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact
and agents, jointly and severally, or his/her 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 on Form S-3 has been signed by the following
persons in the capacities and on the dates indicated:
<TABLE>
<CAPTION>
Signature Title Date
- ------------------------------ ----------------------------------- --------------
<S> <C> <C>
/s/ KEVIN N. KALKHOVEN President, Chief Executive Officer, May 19, 1999
- ------------------------------ Chairman of the Board and Director
Kevin N. Kalkhoven (Principal Executive Officer)
/s/ ANTHONY R. MULLER Senior Vice President, Chief May 19, 1999
- ------------------------------ Financial Officer and Secretary
Anthony R. Muller (Principal Financial and
Accounting Officer)
/s/ ROBERT C. FINK Director May 19, 1999
- ------------------------------
Robert C. Fink
/s/ PETER A. GUGLIELMI Director May 19, 1999
- ------------------------------
Peter A. Guglielmi
/s/ STEPHEN C. JOHNSON Director May 19, 1999
- ------------------------------
Stephen C. Johnson
/s/ MARTIN A. KAPLAN Director May 19, 1999
- ------------------------------
Martin A. Kaplan
/s/ CATHERINE P. LEGO Director May 19, 1999
- ------------------------------
Catherine P. Lego
/s/ WILSON SIBBETT, Ph.D. Director May 19, 1999
- ------------------------------
Wilson Sibbett, Ph.D.
/s/ CASIMIR SKRZYPCZAK Director May 19, 1999
- ------------------------------
Casimir Skrzypczak
/s/ WILLEM HAVERKAMP Director May 19, 1999
- ------------------------------
Willem Haverkamp
</TABLE>
EXHIBIT 5.1
May 19, 1999
Uniphase Corporation
210 Baypointe Parkway
San Jose, CA 95134
Ladies and Gentlemen:
At your request, we have examined the Registration Statement on
Form S-3 filed by Uniphase Corporation, a Delaware corporation (the
"Company"), with the Securities and Exchange Commission on May 19,
1999 (the "Registration Statement") relating to the registration under
the Securities Act of 1933, as amended, of up to the number of shares
of the Company's common stock, $0.001 par value per share, registered
pursuant to the Registration Statement (the "Stock").
As counsel to the Company, we have examined the proceedings taken
by the Company in connection with the registration of the shares of the
Stock.
It is our opinion that, when issued, the shares of Stock that may be sold
pursuant to the Registration Statement will be legally and validly issued,
fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the
Registration Statement and further consent to all references to us in
the Registration Statement, the prospectus constituting a part thereof
and any amendments thereto.
Very truly yours,
/s/ Morrison & Foerster LLP
EXHIBIT 8.1
May 19, 1999
Uniphase Corporation
163 Baypoint Parkway
San Jose, CA 95134
Ladies and Gentlemen:
We have acted as counsel to Uniphase Corporation ("Uniphase"), a
Delaware corporation, in connection with its proposed combination (the
"Merger") with JDS FITEL Inc. ("JDS"), a Canadian corporation,
pursuant to an amended and restated merger agreement dated as of April
29, 1999, between Uniphase, JDS and 3506967 Canada Inc., a Canadian
corporation and indirect subsidiary of Uniphase (the "Agreement").
The Merger is described in the Registration Statement of Uniphase on
Form S-3 (the "Registration Statement") filed on the date hereof with
the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Securities Act").
In that connection, we have reviewed the Agreement, the Registration
Statement and such other materials as we have deemed necessary or
appropriate for purposes of our opinion. In addition, we have assumed
(i) that the Merger will be consummated in accordance with the
provisions of the Agreement and as contemplated by the Registration
Statement and (ii) the truth and accuracy, on the date of the Agreement
and on the date hereof, of the representations and warranties made by
Uniphase and JDS in the Agreement.
Based upon and subject to the foregoing, it is our opinion that the
discussion contained in the Registration Statement under the caption
"United States Federal Tax Considerations for JDS Shareholders," to
the extent that it pertains to matters of law or legal conclusions, is
correct in all material respects. Because this opinion is being
delivered prior to the effective time of the Merger, it must be
considered prospective and dependent upon future events. There can be
no assurance that changes in the law will not take place which could
affect the Federal tax consequences of the Merger or that contrary
positions may not be asserted by the Internal Revenue Service.
This opinion is being furnished in connection with the Registration
Statement. You may rely upon and refer to the foregoing opinion in the
Registration Statement. Any variation or difference in any fact from
those set forth or assumed either herein or in the Registration
Statement may affect the conclusions stated herein.
We hereby consent to the use of our name under the caption "United
States Federal Tax Considerations for JDS Shareholders" in the
Registration Statement and to the filing of this opinion as an Exhibit
to the Registration Statement. In giving this consent, we do not admit
that we come within the category of persons whose consent is required
under Section 7 of the Securities Act or the rules and regulations of
the Commission thereunder.
Very truly yours,
/s/ Morrison & Foerster LLP
EXHIBIT 8.2
May 19, 1999
Uniphase Corporation
163 Baypoint Parkway
San Jose, CA 95134
Dear Sirs:
We have acted as Canadian counsel to Uniphase Corporation ("Uniphase") in
connection with the preparation of the Form S-3 Registration Statement dated
May 19, 1999 (the "Registration Statement"). In our opinion, the section in
the Registration Statement entitled "Income Tax Considerations - Canadian
Federal Income Tax Considerations" is a fair summary of the principal Canadian
federal income tax considerations under the Income Tax Act (Canada) in respect
of the exchange of exchangeable shares for shares of common stock of Uniphase
and the holding of shares of common stock of Uniphase generally applicable to
those holders of exchangeable shares to whom the summary is expressed to be
addressed.
We hereby consent to the use of our name under the caption "Income Tax
Considerations - Canadian Federal Tax Considerations" in the Registration
Statement and to the filing of this opinion as an Exhibit to the Registration
Statement. In giving this consent, we do not admit that we come within the
category of persons whose consent is required under Section 7 of the
Securities Act or the rules and regulations of the Commission thereunder.
Yours truly,
/s/ Tory Tory DesLauriers & Binnington
EXHIBIT 23.2
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in
the Registration Statement (Form S-3) and related prospectus of Uniphase
Corporation for the registration of 35,776,000 shares of its common stock and
to the incorporation by reference therein of our report dated January 7, 1999
(except for the first paragraph under "Basis of Presentation" in Note 1, as to
which the date is April 23, 1999) with respect to the consolidated financial
statements and the related financial statement schedule of Uniphase
Corporation included in its Current Report on Form 8-K/A dated April 28, 1999,
filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
San Jose, California
May 19, 1999
EXHIBIT 23.3
CONSENT OF ERNST & YOUNG ACCOUNTANTS,
INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in
the Registration Statement (Form S-3) and related prospectus of Uniphase
Corporation for the registration of 35,776,000 shares of its common stock and
to the incorporation by reference therein 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/ Ernst & Young Accountants
Eindhoven, the Netherlands
May 19, 1999
