AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 29, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
UNIPHASE CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 94-2579683
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
JDS FITEL, INC.
1994 STOCK OPTION PLAN
1996 STOCK OPTION PLAN
(Full Title of Plans)
Kevin N. Kalkhoven
Chairman of the Board of Directors, and Chief Executive Officer
Uniphase Corporation
163 Baypointe Parkway
San Jose, California 95134
(Name and Address of Agent for Service)
(408) 434-1800
(Telephone number, including area code, of agent of service)
COPY TO:
Christopher S. Dewees, Esq.
Morrison & Foerster LLP
755 Page Mill Road
Palo Alto, California 94304
(650) 813-5600
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Maximum Maximum
Offering Aggregate Amount of
Title of Shares to Amount to be Price Per Offering Registration
be Registered Registered Share(1) Price(1) Fee
- ---------------------- ------------ ----------- --------------- --------------
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Common Stock, $0.001
par value........... 2,174,5790 $150.50 $327,274,139.50 $96,545.87
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(1) Estimated solely for the purpose of calculating the registration fee
in accordance with Rule 457(h) and Rule 457(c) under the Securities Act
of 1933, based upon an average of the high and low prices of Uniphase
Corporation common stock reported on the Nasdaq National Market on
June 23, 1999.
In addition, pursuant to Rule 416(c) under the Securities Act, this
Registration Statement also covers an indeterminate amount of interests
to be offered or sold pursuant to the employee benefit plans described
herein.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part 1 of Form S-8 (plan
information and registrant information and employee plan annual information)
will be sent or given to employees as specified by Securities and Exchange
Commission Rule 428(b)(1). Such documents need not be filed with the
Securities and Exchange Commission either as part of this Registration
Statement or as prospectuses or prospectus supplements pursuant to Rule 424.
These documents and the documents incorporated by reference in this
Registration Statement pursuant to Item 3 of Form S-8 (Part II hereof), taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act of 1933.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Uniphase Corporation. (the
"Registrant") with the Securities and Exchange Commission (the
"Commission") are incorporated by reference herein:
(a) The Registrant's Annual Report on Form 10-K (the "Annual
Report"), which includes audited financial statements for the
Registrant's latest fiscal year ending June 30, 1998.
(b) The Registrant's Quarterly Reports on Form 10-Q for the
quarters ended September 30, 1998, December 31, 1998 and March 31, 1999.
(c) The Registrant's Amended Quarterly Reports on Form 10-Q for
the quarters ended September 30, 1998 and December 31, 1998.
(d) The Registrant's Current Report on Form 8-K dated as of
January 8, 1999.
(e) The Registrant's Current Reports on Form 8-K/A dated as of
August 24, 1998, August 25, 1998, and April 29, 1999.
(f) The description of the Registrant's Common Stock which is
contained in its Registration Statement on Form 8-A dated November 15,
1993, including any amendment or report filed for the purpose of
updating such description.
All documents filed by the Registrant with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference into this Registration Statement and to
be a part hereof from the date of filing of such documents. Any statement
contained in a document incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Michael C. Phillips, a partner with Morrison & Foerster LLP, counsel to the
Registrant, also serves as Senior Vice President of the Registrant.
Item 6. Indemnification of Directors and Officers.
The indemnification and liability of the Registrant's directors and
officers are governed by Delaware law.
Under Section 145 of the General Corporation Law of the State of
Delaware, the Registrant has broad powers to indemnify its directors and
officers against liabilities that may incur in such capacities,
including liabilities under the Securities Act of 1933, as amended (the
"Securities Act"). The Registrant's Bylaws also provide for mandatory
indemnification of its directors and executive officers, and permissive
indemnification of its employees and agents, to the fullest extent
permissible under Delaware law.
The Registrant's Certificate of Incorporation provides that the
liability of its directors for monetary damages shall be eliminated to
the fullest extent permissible under Delaware law. Pursuant to Delaware
law, this includes elimination of liability for monetary damages for
breach of the directors' fiduciary duty of care to the Registrant and
its stockholders. These provisions do not eliminate the directors' duty
of care and, in appropriate circumstances, equitable remedies such as
injunctive or other forms of non-monetary relief will remain available
under Delaware law. In addition, each director will continue to be
subject to liability for breach of the director's duty of loyalty to the
Registrant' for acts of omissions not in good faith or involving
intentional misconduct, for knowing violations of law, for any
transaction from which the director derived an improper personal
benefit, and for payment of dividends or approval of stock repurchases
or redemptions that are unlawful under Delaware law. The provision also
does not affect a director's responsibilities under any other laws, such
as the federal securities laws or state or federal environmental laws.
The Registrant has entered into agreements with its directors and
certain of its executive officers that require the Registrant to
indemnify such persons against expenses, judgments, fines, settlements
and other amounts actually and reasonably incurred (including expenses
of a derivative action) in connection with any proceeding, whether
actual or threatened, to which any such person may be made a party by
reason of the fact that such person is or was a director or officer of
the Registrant or any of its affiliated enterprises, provided such
person acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interests of the Registrant
and, with respect to any criminal proceeding, had no reasonable cause to
believe his or her conduct was unlawful. The indemnification agreement
also sets forth certain procedures that will apply in the event of a
claim for indemnification thereunder.
The Registrant has obtained a policy of directors' and officers'
liability insurance that insures the Registrant's directors and officers
against the cost of defense, settlement or payment of a judgment under
certain circumstances.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
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Exhibit
Number Exhibit Description
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5.1 Opinion of Morrison & Foerster LLP
23.1 Consent of Morrison & Foerster LLP (included in Exhibit 5.1)
23.2 Consent of Ernst & Young LLP, Independent Auditors
23.3 Consent of Ernst & Young Accountants, Independent Auditors
25.1 Power of Attorney (included on signature page hereto)
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Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
(i) to file, during any period in which offers or sales are
being made, a post-effective amendment to this
Registration Statement and to include any material
information with respect to the plan of distribution not
previously disclosed in this Registration Statement or
any material change to such information in this
Registration Statement;
(ii) that, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment
shall be deemed to be a new registration statement
relating to the securities offered therein, and the
offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof;
(iii) to remove from registration by means of a post-effective
amendment any of the securities being registered which
remain unsold at the termination of the offering.
The undersigned Registrant hereby further undertakes that, for
purposes of determining any liability under the Securities Act, each
filing of the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 (the "Exchange
Act") (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this Registration Statement shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions or
otherwise, the Registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in
the Securities Act, and is, therefore, unenforceable. In the event that
a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred by a director, officer or
controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered,
the Registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant,
Uniphase Corporation, certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of San Jose, State of California, on
June 28, 1999.
UNIPHASE CORPORATION
By: /s/ KEVIN N. KALKHOVEN
----------------------
Kevin N. Kalkhoven
Chairman of the Board of
Directors and Chief Executive
Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Kevin N.
Kalkhoven and Anthony R. Muller, and each of them, as attorneys-in-fact, each
with the power of substitution, for him in any and all capacities, to sign any
amendment to this Registration Statement and to file the same, with exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, granting to said attorneys-in-fact, full power and
authority to do and perform each and every act and thing requisite and
necessary to be done in connection therewith, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming
the said attorney-in-fact or his substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on
the date indicated.
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Signature Title Date
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/s/ KEVIN N. KALKHOVEN Chairman of the Board of Directors June 28, 1999
- ----------------------------- and Chief Executive Officer
Kevin N. Kalkhoven (Principal Executive Officer)
/s/ ANTHONY R. MULLER Senior Vice President, Chief June 28, 1999
- ----------------------------- Financial Officer and Secretary
Anthony R. Muller (Principal Financial and
Accounting Officer)
/s/ ROBERT C. FINK Director June 28, 1999
- -----------------------------
Robert C. Fink
/s/ PETER A. GUGLIELMI Director June 28, 1999
- -----------------------------
Peter A. Guglielmi
/s/ STEPHEN C. JOHNSON Director June 28, 1999
- -----------------------------
Stephen C. Johnson
/s/ MARTIN A. KAPLAN Director June 28, 1999
- -----------------------------
Martin A. Kaplan
/s/ CATHERINE P. LEGO Director June 28, 1999
- -----------------------------
Catherine P. Lego
/s/ WILSON SIBBETT, Ph.D. Director June 28, 1999
- -----------------------------
Wilson Sibbett, Ph.D.
/s/ CASIMIR SKRZYPCZAK Director June 28, 1999
- -----------------------------
Casimir Skrzypczak
/s/ WILLEM HAVERKAMP Director June 28, 1999
- -----------------------------
Willem Haverkamp
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INDEX TO EXHIBITS
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Exhibit
Number Exhibit Description
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5.1 Opinion of Morrison & Foerster LLP
23.1 Consent of Morrison & Foerster LLP (included in Exhibit 5.1)
23.2 Consent of Ernst & Young LLP, Independent Auditors
23.3 Consent of Ernst & Young Accountants, Independent Auditors
25.1 Power of Attorney (included on signature page hereto)
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Exhibit 5.1
June 28, 1999
Uniphase Corporation
163 Baypointe Parkway
San Jose, California 95134
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be
filed by Uniphase Corporation (the "Company") with the Securities and Exchange
Commission (the "SEC") in connection with the registration under the
Securities Act of 1933, as amended, of an aggregate of 2,174,579 shares of the
Company's Common Stock, $.001 par value (the "Plan Shares") which will be
issuable under the JDS FITEL, Inc. Stock Option Plan (the "Plan").
As your counsel in connection with the Registration Statement,
we have examined the proceedings taken by you in connection with the
assumption of the Plan and the authorization of the issuance of the shares of
Common Stock under the Plan and such documents as we have deemed necessary to
render this opinion.
Based upon the foregoing, it is our opinion that the Plan
Shares, when issued and outstanding pursuant to the terms of the Plan, will be
validly issued, fully paid and nonassessable shares of the Company's
Common Stock.
We consent to the use of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Morrison Foerster LLP
Exhibit 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the JDS FITEL, Inc. Stock Option Plan of our reports
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 of Uniphase Corporation and the
related financial statement schedule 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
June 25, 1999
Exhibit 23.3
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the JDS FITEL, Inc. Stock Option Plan of our report
dated August 24, 1998, with respect to the financial statements of Philips
Optoelectronics, a division of Koninklijke Philips Electronics N.V. included
in its Amendment No. 2 to the Current Report on Form 8-K/A dated August 25,
1998, filed with the Securities and Exchange Commission.
/s/ Ernst & Young Accountants
Eindhoven, the Netherlands
June 25, 1999
