AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 22, 1999
Registration No. 333-70351
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 1
to
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. [ ]
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.
TABLE OF CONTENTS
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PAGE
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<S> <C>
Where You May Find More Information....................................2
The Company............................................................2
Recent Events..........................................................4
Risk Factors...........................................................5
Use of Proceeds.......................................................16
Selling Stockholders..................................................16
Plan of Distribution..................................................17
Incorporation of Certain Documents by Reference.......................18
Experts...............................................................19
Legal Matters.........................................................19
</TABLE>
Subject to Completion, dated February 22, 1999
PROSPECTUS
Uniphase Corporation
729,510 SHARES OF COMMON STOCK
The 729,510 shares of the Uniphase common stock offered hereby are held
by certain Uniphase stockholders. Uniphase will not receive any of the
proceeds from any sale of these shares, but has agreed to bear the
expenses of registration of the shares by this prospectus.
Nasdaq National Market symbol:
UNPH
The last sale price of the common stock on the Nasdaq National Market on
February 18, 1999 was $85.687 per share.
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THE SHARES REGISTERED HEREBY INVOLVE A HIGH LEVEL OF INVESTMENT RISK. YOU SHOULD
INVEST ONLY IF YOU CAN AFFORD A COMPLETE LOSS. SEE "RISK FACTORS" BEGINNING ON
PAGE 5 OF THIS PROSPECTUS.
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.
-------------------------------
-------- --, ----
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 Uniphase or the selling
stockholders. 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 the affairs of Uniphase
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.
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 Uniphase, that file electronically with the Commission. In
addition, Uniphase's 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.
Uniphase has filed 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 Uniphase 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.
THE COMPANY
Uniphase Corporation designs, develops, manufactures and markets laser
subsystems and components and modules for fiber optic telecommunications
and cable television systems and laser subsystems.
Our principal telecommunications products consist of source lasers,
modulators, pump lasers and transmitters 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. We currently operate
the following subsidiaries or divisions offering products for the
telecommunications industry:
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Division Location Products
- ---------------------------- -------------- ---------------------------------
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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 Massachusetts Component packaging
</TABLE>
Uniphase's predecessor was incorporated in California in 1979 under the
name "Uniphase Corporation." Uniphase was incorporated in California in
1984 under the name "Uniphase Holding Corporation," and changed its name
to Uniphase Corporation in 1987 as part of a reorganization in which it
succeeded to the assets, liabilities and business operations of its
predecessor. Uniphase reincorporated in Delaware in October 1993. Unless
the context otherwise requires, the term "Uniphase" refers to Uniphase
Corporation, a Delaware corporation, its California predecessors and its
subsidiaries. Uniphase's principal executive offices are located at 163
Baypointe Parkway, San Jose, California 95134 and its telephone number
is (408) 434-1800.
RECENT EVENTS
Merger With JDS Fitel Inc.
On January 28, 1999, Uniphase and JDS Fitel Inc. (Toronto: JDS) executed a
definitive merger agreement to combine the companies in a merger of equals.
The combined company would have a total market value of US $6.1 billion based
on the January 27, 1999 closing prices of each company's stock. The merged
company will be named JDS Uniphase Corporation. JDS Fitel's products include
a wide portfolio of passive fiberoptic products such as wavelength division
multiplexers (WDM), optical switches and isolators. Under the terms of the
agreement, JDS FITEL shareholders resident in Canada will, pursuant to a plan
of arrangement, be entitled to receive 0.50855 shares of exchangeable stock of
JDS Uniphase Canada, a wholly owned subsidiary of Uniphase, or, at their
option, 0.50855 shares of Uniphase, for each JDS FITEL share they hold. The
exchangeable shares are the economic and voting equivalent of shares of common
stock of Uniphase and will be exchangeable for such shares on a one-for-one
basis at any time. The current shareholders of JDS FITEL and Uniphase will
each own approximately 50 percent of the combined company following the
merger. The structure of the transaction is expected to provide the
opportunity for a tax-free exchange for Canadian holders of JDS FITEL stock.
The merger is conditional upon regulatory approvals, as well as approvals by
Uniphase and JDS FITEL shareholders. The transaction will be accounted for as
a purchase and the resulting goodwill will be amortized in future periods based
on its estimated useful life.
JDS Uniphase Corporation will be quoted on the Nasdaq National Market and will
report its financial results in U.S. dollars.
JDS Uniphase will be led by an integrated executive team from both companies,
Kevin Kalkhoven from Uniphase will be Co-chairman and Chief Executive Officer.
Jozef Straus from JDS FITEL will become Co-chairman, President and Chief
Operating Officer. Both companies will each nominate one half of the board.
RISK FACTORS
Volatility in Operating Results and Stock Price
Our Quarterly Operating Results Are Uncertain And May Vary
We have experienced and expect to continue to experience significant
fluctuations in our quarterly results. Fluctuations in our quarterly
results may cause substantial fluctuations in the market price of our
common stock. Factors which have influenced and may continue to influence
our operating results in a particular quarter include:
- the timing of the receipt of product orders from a limited number of
major customers,
- our ability to manufacture technically advanced products with
satisfactory yields on a timely basis,
- product mix,
- competitive pricing pressures,
- relative proportions of domestic and international sales,
- costs associated with the acquisition or disposition of businesses,
- our ability to timely and cost effectively design, manufacture and
ship products,
- 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,
- the announcement and introduction of new products by us and by our
competitors, and
- expenses associated with any intellectual property litigation.
In addition, our sales often reflect orders shipped in the same quarter that
they are received. 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
(OEMs) who typically order in large quantities and therefore the timing of
such sales may significantly affect our quarterly results. 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 that have resulted in and may in the future result in
reorganization of our operations, substantial charges or other expenses that
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 $93.0
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.
Our Common Stock Price May Be Volatile
The market price of our common stock has recently been and is
likely to continue to be highly volatile and significantly
affected by factors such as
- fluctuations in our operating results,
- announcements of technological innovations or new products by us or
our competitors,
- governmental regulatory action,
- developments with respect to patents or proprietary rights, and
- general market conditions.
Further, our net revenues or operating results in future quarters may be below
the expectations of public market securities analysts and investors. In such
event, the price of our common stock would likely decline, perhaps
substantially. In addition, the stock market has from time to time experienced
significant price and volume fluctuations that are unrelated to the operating
performance of particular companies.
Manufacturing Difficulties May Adversely Affect Our Operating Results
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. 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. During the fourth quarter of fiscal 1998, we
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 performance 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. 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. Customers will not purchase any products (other than limited number
of evaluation units) prior to qualification of the manufacturing line for the
product. 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. To the extent we do not achieve and maintain yields
or product reliability or fails in the timely qualification of our new
manufacturing lines, our operating results and customer relationships would be
adversely affected.
Our Acquisitions and Growth Strategies May Create Risks to Our Business
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
- our ability to manufacture and sell the products of the businesses
acquired,
- continued demand for these products by our customers,
- our ability to integrate the acquired business' operations,
products and personnel,
- our ability to retin key personnel of the acquired businesses, and
- our ability to expand our financial and management controls and
reporting systems and procedures.
In March 1997, Uniphase 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 for
Uniphase. 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, Uniphase acquired certain assets of Chassis, and in November 1998
acquired Uniphase Broadband. In January 1999, Uniphase entered into an
agreement to combine with JDS Fitel Inc. 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 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.
We Are Dependent on a Limited Number of Customers and Suppliers
Customers
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 we are selected by our customers, 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.
Suppliers
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 Uniphase's 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 its 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 its 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.
Risks Associated with Our Competitive Industry
Industry Competition May Impair Our Business
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 its competitive position or that
its products will receive market acceptance. In addition, technological
changes or development efforts by our competitors may render our products or
technologies obsolete or uncompetitive.
The Markets for Gas Lasers are Declining and the Development of Our Solid
State Lasers is Subject to Risks
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.
We May be Unable to Attract and Retain Key Personnel
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. However, 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 Poses Additional Risks
International Sales
International sales are subject to inherent risks, including
- unexpected changes in regulatory requirements,
- tariffs and other trade barriers,
- political and economic instability in foreign markets,
- difficulties in staffing and management,
- integration of foreign operations,
- longer payment cycles,
- greater difficulty in accounts receivable collection,
- currency fluctuations, and
- potentially adverse tax consequences.
International sales accounted for approximately 38.5%, 40.0% and 32.7% of 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 which 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.
European Currency Change
On January 1, 1999, several member countries of the European Union established
fixed conversion rates between their existing sovereign currencies and adopted
the Euro as their new common legal currency. From then on, the Euro has and
will trade on currency exchanges and the legacy currencies will remain legal
tender in the participating countries for a transition period between January
1, 1999 and January 1, 2002. During the transition period, noncash payments
can be made in the Euro, and parties can elect to pay for goods and services
and transact business using either the Euro or a legacy currency. Between
January 1, 2002 and July 1, 2002 the participating countries will introduce
Euro notes and coins and withdraw all legacy currencies, which will no longer
be available. The introduction of the Euro may create issued for companies
doing business within the European Union, including the following paragraph:
- The Euro conversion may affect cross-border competition by
creating cross-border price transpanency; and
- Administrative expense related to the various currency conversions
required during the transition period.
We are assessing our pricing/marketing strategy in order to insure that we
remain competitive in a broader European market. We are also assessing our
information technology systems to allow for transactions to take place in both
the legacy currencies and the Euro and the eventual elimination of the legacy
currencies, and reviewing whether certain existing contracts will need to be
modified. Our currency risk and risk management for operations in
participating countries may be reduced as the legacy currencies are converted
to the Euro. Final accounting, tax and governmental legal and regulatory
guidance are not yet available. We will continue to evaluate issues involving
introduction of the Euro. Based on current information and our current
assessment, we do not expect that the Euro conversion will have a material
adverse effect on our business, financial condition or results from
operations.
Year 2000
We are aware of the risks associated with the operation of information
technology ("IT") and non-information technology ("non-IT") systems as the
millennium (year 2000) approaches. The "Year 2000" problem is pervasive and
complex, and may affect many IT and non-IT 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
- Uniphase's state of readiness (including the readiness of
Third Parties, with which we interact) concerning the Year
2000 problem,
- our costs to correct material Year 2000 problems related to
our internal IT and non-IT systems,
- the known risks related to any failure to correct any Year
2000 problems we identify, and
- the contingency plan, if any, that we should adopt should any
identified Year 2000 problems not be corrected.
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 available information, that we
will manage our total Year 2000 transition without any material adverse effect
on the Company's business operations, products or financial prospects. The
actual outcomes and results could be affected by future factors including, but
not limited to,
- the continued availability of skilled personnel,
- cost control,
- the ability to locate and remediate software code problems,
- critical suppliers and subcontractors meeting their Year 2000
compliance commitments, and
- timely actions by customers.
We anticipate that we will remediate all Year 2000 risks and be able to
conduct normal operations without having to establish a Year 2000
contingency plan.
We are working with our software system suppliers and believe that certain of
these systems are currently not Year 2000 compliant. 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 IT and non-IT systems of Third Parties having widespread
national and international interactions with persons and entities generally
(for example, certain IT and non-IT Systems of governmental agencies,
utilities and information and financial networks) that, if uncorrected, could
have a material adverse impact on Uniphase's business, financial condition or
results of operations. We are still assessing the effect the Year 2000 problem
will have on its suppliers and, at this time, cannot determine such impact.
Risks Related to Our Intellectual Property Rights
Third Party Intellectual Property Rights May Result in Conflicting
Patents and Infringement Claims
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.
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 which 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.
We Have Only Limited Protection of Our Intellectual Property Rights
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 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.
Risks Associated with the Financial Markets
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.
Our Need for Future Capital
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 available when needed, or, if available, may not on terms satisfactory to
us.
Risks Associated With Preferred Stock; Potential Anti-Takeover Effects
Of Delaware Law
The 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 shareholders.
The preferred stock could be issued with voting, liquidation, dividend
and other rights superior to those of the holders of common stock. The
issuance of preferred stock under certain circumstances could have the
effect of delaying, deferring or preventing a change in control of
Uniphase. 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
Uniphase 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 Uniphase one one-thousandth of a
share (a "Unit") of Series B Preferred Stock at a purchase price of $270
per Unit, subject to adjustment. The purchase price is payable in cash
or by certified or bank check or money order payable to the order of
Uniphase. The description and terms of the rights are set forth in a
Rights Agreement between Uniphase 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
Uniphase and may thereby inhibit a change in control of Uniphase. 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.
Uniphase is 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 Uniphase, 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. Uniphase's Certificate of Incorporation and Bylaws
contain provisions relating to the limitations of liability and
indemnification of its directors and officers, dividing its Board of
Directors into three classes of directors serving three-year terms and
providing that its stockholders can take action only at a duly called
annual or special meeting of stockholders. These provisions also may
have the effect of deterring hostile takeovers or delaying changes in
control or management of Uniphase.
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
Uniphase will not receive any of the proceeds from the sale of the
shares offered by the selling stockholders, under this prospectus, but
has agreed to bear certain expenses of registration of the shares under
federal and state securities laws. This registration statement is
intended to satisfy certain of Uniphase's obligations under the
Broadband merger agreement.
SELLING STOCKHOLDERS
The following table provides the names of and the number of shares of common
stock beneficially owned by each selling stockholder, and the number of shares
of common stock beneficially owned by each selling stockholder upon completion
of the offering or offerings pursuant to this prospectus, assuming each
selling stockholder offers and sells all of its or his/her respective shares.
Selling stockholders may, however, offer and sell all, or some or none of
their shares. The respective donees, pledgees and transferees or other
successors in interest of the selling stockholders may also sell the shares
listed below as being held by the selling stockholders. No selling
stockholder will beneficially own one percent or greater of Uniphase's
outstanding common stock upon the sale of their shares offered hereby. Each
of the ownership percentages in the second column of the following table was
calculated based on the 40,246,936 Uniphase voting shares outstanding as of
February 18,1999.
<TABLE>
<CAPTION>
Beneficial Percentage Beneficial
Ownership Prior to Ownership
Prior to The After
Offering Offering Offered The Offering
----------- --------- Number ------------
Number of of Number of
Shares % Shares Shares
- ------------------------------ ----------- --------- --------- ------------
<S> <C> <C> <C> <C>
James Breitmeier............... 213,515 * 213,515 0
Paul W. Casper................. 213,515 * 213,515 0
James W. Toy................... 213,515 * 213,515 0
Donald R. Alford............... 64,055 * 64,055 0
Whitworth W. Cotton............ 21,351 * 21,351 0
Marc E. Sawyer................. 2,847 * 2,847 0
Allen S. Henry................. 712 * 712 0
* Less than 1%
</TABLE>
PLAN OF DISTRIBUTION
This prospectus relates to the offer and sale from time to time by the
holders of up to 729,510 shares of common stock. The shares were issued
in connection with the acquisition in November 1998 of Broadband
Communications Products, Inc. by Uniphase. The selling shareholders are
the former shareholders of Broadband. This prospectus has been prepared
in connection with registering the shares to allow for sales of shares
by the selling stockholders to the public pursuant to the terms of the
acquisition. Uniphase has registered the shares for sale under this
prospectus, but registration of such shares does not necessarily mean
that any of these shares will be offered and sold by the holders
thereof.
Uniphase will not receive any proceeds from the offering by the selling
stockholders. The shares may be sold from time to time to purchasers
directly by any of the selling stockholders, or donees, pledgees,
transferees or other successors in interest ("transferees") thereof.
Alternatively, the selling stockholders, or transferees thereof, may
from time to time offer the shares through dealers or agents, who may
receive compensation in the form of commissions from the selling
stockholders, or transferees thereof, and/or the purchasers of shares
for whom they may act as agent. The selling stockholders, or
transferees thereof, and any dealers or agents that participate in the
distribution of shares may be deemed to be "underwriters" within the
meaning of the Securities Act and any profit on the sale of shares by
them and any commissions received by any such dealers or agents might be
deemed to be underwriting commissions under the Securities Act.
At a time a particular offer of shares is made, a prospectus supplement,
if required, will be distributed that will set forth the name and names
of any dealers or agents and any commissions and other terms
constituting compensation from the selling stockholders, or transferees
thereof, and any other required information. The shares may be sold
from time to time at varying prices determined at the time of sale or at
negotiated prices.
In order to comply with the securities laws of certain states, if applicable,
the shares may be sold only through registered or licensed brokers or dealers.
In addition, in certain states, the shares may not be sold unless they have
been registered or qualified for sale in such state or an exemption from such
registration or qualification requirement is available and is complied with.
The shares may also be sold in one or more of the following transactions: (a)
block transactions (which may involve crosses) in which a broker-dealer may
sell all or a portion of such stock as agent but may position and resell all
or a portion of the block as principal to facilitate the transaction; (b)
purchases by any such broker-dealer as principal and resale by such
broker-dealer for its own account pursuant to a prospectus supplement; (c)
ordinary brokerage transactions and transactions in which any such
broker-dealer solicits purchasers; (d) sales "at the market" to or through a
market maker or into an existing trading market, on an exchange or otherwise,
for such shares; and (e) sales in other ways not involving market makers or
established trading markets, including direct sales to purchasers. In
effecting sales, broker-dealers engaged by the selling stockholders may
arrange for other broker-dealers to participate.
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 for the quarter
ended December 31, 1998;
d. Uniphase's Report on Form 8-K/A dated as of August 24, 1998;
e. Uniphase's Report on Form 8-K/A dated as of August 25, 1998;
f. Uniphase's Report on Form 8-K dated as of January 7, 1999; and
g. 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 incorporated by reference in this prospectus and
to be part of this prospectus from the filing date of such documents.
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.
EXPERTS
The consolidated financial statements of Uniphase Corporation appearing
in Uniphase Corporation's Annual Report on Form 10-K for the year ended
June 30, 1998, have been audited by Ernst & Young LLP, 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.
The supplemental consolidated financial statements of Uniphase Corporation
appearing in Uniphase Corporation's Current Report on Form 8-K dated January
7, 1999, have been audited by Ernst & Young LLP, independent auditors, as set
forth in their report thereon included therein and incorporated herein by
reference. The supplemental consolidated financial statements give retroactive
effect to the merger of Uniphase Corporation and Broadband Communications
Products, Inc. on November 25, 1998, which has been accounted for using the
pooling of interests method. Such Supplemental 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 Moret 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.
LEGAL MATTERS
The validity of the issuance of the shares of Common Stock offered
pursuant to this prospectus will be passed upon for Uniphase by Morrison
& Foerster LLP, Palo Alto, California.
Interests Of Named Experts
Michael C. Phillips, a partner with Morrison & Foerster LLP, counsel to
the Company, also serves as a Senior Vice President of Uniphase.
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.
<TABLE>
<CAPTION>
<S> <C>
Secutities Act Registration Fee......................... $14,284
Printing and duplicating fees........................... 5,000
Legal fees and expenses................................. 15,000
Accounting fees and expenses............................ 30,000
Miscellaneous expenses.................................. 5,716
------------
*Total............................................. $70,000
============
*None of the expenses listed above will be borne by the selling stockholders.
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The indemnification and liability of the Company's directors and officers are
governed by Delaware law.
Under Section 145 of the General Corporation Law of the State of
Delaware, 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
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Exhibit Description
- --------- ---------------------------------------------------------
<S> <C>
2.1* Agreement and Plan of Reorginization by and among Uniphase
Corporation, Phase Acquisition Corporation and Broadband
Communications Products, Inc., dated as of November 23, 1998.
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 Moret Ernst & Young Accountants, independent auditors
24.1* Power of Attorney (included on signature page hereto)
</TABLE>
______________________
* Previously filed as an exhibit to Uniphase's Registration
Statement on Form S-3 filed on January 8, 1999 (Registration
No. 333-70351) with the corresponding exhibit number, and
incorporated by reference herein.
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 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
Registrant 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 February 19, 1999.
UNIPHASE CORPORATION
By: /s/ KEVIN N. KALKHOVEN
------------------------------------
Kevin N. Kalkhoven
President, Chief Executive Officer
and Chairman fo the Board
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to 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, February 19, 1999
- ------------------------------ Chairman of the Board and Director
Kevin N. Kalkhoven (Principal Executive Officer)
/s/ ANTHONY R. MULLER Senior Vice President, Chief February 19, 1999
- ------------------------------ Financial Officer and Secretary
Anthony R. Muller (Principal Financial and
Accounting Officer)
ROBERT C. FINK* Director February 19, 1999
- ------------------------------
Robert C. Fink
PETER A. GUGLIELMI* Director February 19, 1999
- ------------------------------
Peter A. Guglielmi
STEPHEN C. JOHNSON* Director February 19, 1999
- ------------------------------
Stephen C. Johnson
MARTIN A. KAPLAN* Director February 19, 1999
- ------------------------------
Martin A. Kaplan
CATHERINE P. LEGO* Director February 19, 1999
- ------------------------------
Catherine P. Lego
WILSON SIBBETT, Ph.D.* Director February 19, 1999
- ------------------------------
Wilson Sibbett, Ph.D.
CASIMIR SKRZYPCZAK* Director February 19, 1999
- ------------------------------
Casimir Skrzypczak
WILLEM HAVERKAMP* Director February 19, 1999
- ------------------------------
Willem Haverkamp
*By: /s/ KEVIN N. KALKHOVEN February 19, 1999
------------------
Kevin N. Kalkhoven
Attorney-in-fact
</TABLE>
<PAGE>
EXHIBIT INDEX
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Exhibit Description
- --------- ---------------------------------------------------------
<S> <C>
2.1* Agreement and Plan of Reorginization by and among Uniphase
Corporation, Phase Acquisition Corporation and Broadband
Communications Products, Inc., dated as of November 23, 1998.
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 Moret Ernst & Young Accountants, independent auditors
24.1* Power of Attorney (included on signature page hereto)
</TABLE>
__________________
* Previously filed as an exhibit to the Registrant's Registration
Statement on Form S-3 filed on January 8, 1999 (Registration No. 333-
70351) with the corresponding exhibit number, and incorporated by
reference herein.
EXHIBIT 23.2
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in
Amendment No. 1 to the Registration Statement (Form S-3 No. 333-70351) and
related prospectus of Uniphase Corporation for the registration of 729,510
shares of its common stock and to the incorporation by reference therein of
our reports dated August 4, 1998, with respect to the consolidated financial
statements of Uniphase Corporation included in its Annual Report on Form 10-K
for the year ended June 30, 1998 and the related financial statement schedule
included therein and our report dated January 7, 1999 with respect to the
supplemental consolidated financial statements and the related supplemental
financial statement schedule of Uniphase Corporation included in its Current
Report on Form 8-K dated January 7, 1999, filed with the Securities and
Exchange Commission.
/s/ Ernst & Young LLP
San Jose, California
February 22, 1999
EXHIBIT 23.3
CONSENT OF MORET ERNST & YOUNG ACCOUNTANTS, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in
Amendment No. 1 to the Registration Statement (Form S- 3 No. 333-70351) and
related prospectus of Uniphase Corporation for the registration of 729,510
shares of its common stock and to the incorporation by reference of our report
dated August 24, 1998, with respect to the financial statements of Philips
Optoelectronics, a division of Koninklijke Philips Electronics N.V. included
in its Amendment No. 2 to the Current Report on Form 8-K/A dated August 25,
1998, filed with the Securities and Exchange Commission.
/s/ Moret Ernst & Young Accountants
Eindhoven, the Netherlands
February 22, 1999
