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As filed with the Securities and Exchange Commission on November 17, 2000
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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JDS UNIPHASE CORPORATION
(Exact name of registrant as specified in its charter)
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DELAWARE 94-2579683
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
210 BAYPOINTE PARKWAY
SAN JOSE, CALIFORNIA 95134
(Address of registrant's principal executive offices)
EPION CORPORATION 1996 STOCK OPTION PLAN
(Full titles of the Plan)
Michael C. Phillips, Esq.
Senior Vice President, Business Development and
General Counsel
JDS Uniphase Corporation
210 Baypointe Parkway
San Jose, California 95134
(408) 434-1800
(Name, address and telephone number, including area code, of agent for service)
WITH A COPY SENT TO:
John W. Campbell, III, Esq.
Morrison & Foerster LLP
425 Market Street
San Francisco, California 94105-2482
(415) 268-7000
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED (1) SHARE (2) PRICE (2) REGISTRATION FEE
------------------------------ ----------------- ------------------------- -------------------- ----------------------
<S> <C> <C> <C> <C>
Epion Corporation 1996 Stock 38,453 $68.96875(3) $2,652,055(3) $700.14
Option Plan
Common Stock ($.001 par
value)
------------------------------ ----------------- ------------------------- -------------------- ----------------------
Total
------------------------------ ----------------- ------------------------- -------------------- ----------------------
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(1) Pursuant to the Agreement and Plan of Reorganization and Merger (the
"Merger Agreement") dated as of July 14, 2000 by and among JDS Uniphase
Corporation, JDSU Acquisition Two, Inc. and Epion Corporation, JDS Uniphase
Corporation assumed all of the outstanding options to purchase Common Stock
of Epion Corporation under the Plan referred to above, and such options
become exercisable to purchase shares of JDS Uniphase Corporation Common
Stock, with appropriate adjustments to the number of shares and exercise
price of each assumed option.
(2) Estimated solely for purposes of calculating the registration fee in
accordance with Rule 457(h) under the Securities Act of 1933, as amended
(the "Securities Act").
(3) Computation based upon the fixed exercise prices of the options, all of
which were previously granted and as converted pursuant to the terms of the
Merger Agreement.
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EXPLANATORY NOTE
This Registration Statement has been prepared in accordance with the
requirements of Form S-8 under the Securities Act to register 38,453 shares of
Common Stock of JDS Uniphase Corporation, a Delaware corporation (the
"Registrant"), issuable to eligible employees, directors, consultants and
advisors under a certain employee benefit plan assumed by Registrant upon the
merger of Registrant's wholly owned subsidiary, JDSU Acquisition Two, Inc., a
Delaware corporation, with and into Epion Corporation, a Massachusetts
corporation. The Plan was previously an obligation of Epion Corporation and its
subsidiaries.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I of Form S-8 is included in documents
sent or given to participants in the Plan specified on the cover page of this
Registration Statement, pursuant to Rule 428(b)(1) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Registrant is subject to the informational and reporting
requirements of Sections 13(a), 14 and 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act") and in accordance therewith files reports,
proxy statements and other information with the Securities and Exchange
Commission (the "Commission"). The following documents, which are filed with the
Commission, are incorporated in this Registration Statement by reference:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended June 30, 2000 filed pursuant to Section 13(a) or 15(d) of
the Exchange Act, containing audited financial statements for the
Registrant's latest fiscal year for which such statements have
been filed.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the
Annual Report covered in (a) above.
(c) The description of the Common Stock of the Registrant, $.001 par
value per share ("Common Stock"), contained in Registrant's
Registration Statement on Form 8-A, filed pursuant to Section
12(g) of the Exchange Act, including any amendment or report filed
for the purpose of updating such description.
All documents filed or subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment which indicates that all securities described herein
have been sold or which deregisters all securities then remaining unsold, are
incorporated by reference.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Reference is made to Section 102(b)(7) of the Delaware General
Corporation Law (the "DGCL"), which permits a corporation in its certificate of
incorporation or an amendment thereto to eliminate or limit the personal
liability of a director for violations of the director's fiduciary duty, except
(1) for any breach of the director's fiduciary duty of loyalty to the
corporation or its stockholders, (2) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (3) pursuant
to Section 174 of the DGCL (providing for liability of directors for unlawful
payment of dividends or unlawful stock purchases or redemptions), or (4) for any
transaction from which the director derived an improper personal benefit. The
Registrant's Certificate of Incorporation contains provisions permitted by
Section 102(b)(7) of the DGCL.
Reference is made to Section 145 of the DGCL which provides that a
corporation may indemnify any persons, including directors and officers, who
are, or are threatened to be made, parties to any threatened, pending or
completed legal action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of such
corporation), by reason of the fact that such person is or was a director,
officer, employee or agent of such corporation, or is or was serving at the
request of such corporation as a director, officer, employee or agent of another
corporation or enterprise. The indemnity may include expenses (including
attorney's fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding, provided such director, officer, employee or agent acted in good
faith and in a manner he reasonably believed to be in or not opposed to the
corporation's best interests and, with respect to any criminal actions or
proceedings, had no reasonable cause to believe that his conduct was unlawful. A
Delaware corporation may indemnify directors and/or officers in an action or
suit by or in the right of the corporation under the same conditions, except
that no indemnification is permitted without judicial approval if the director
or officer is adjudged to be liable to the corporation. Where a director or
officer is successful on the merits or otherwise in the defense of any action
referred to above, the corporation must indemnify him or her against the
expenses which such director or officer actually and reasonably incurred.
The Registrant's Amended and Restated Certificate of Incorporation
provides indemnification of directors and officers of the Registrant to the
fullest extent permitted by the DGCL. The Registrant has obtained liability
insurance for each director and officer of the Registrant for certain losses
arising from claims or charges made against them while acting in their
capacities as directors or officers of the Registrant.
The above discussion of the Registrant's Certificate of Incorporation
and Sections 102(b)(7) and 145 of the DGCL is not intended to be exhaustive and
is qualified in its entirety by such Certificate of Incorporation and statutes.
For information regarding the Registrant's undertaking to submit to
adjudication the issue of indemnification for violation of the securities laws,
see Item 9 below.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The Exhibit Index immediately preceding the exhibits is incorporated
herein by reference.
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Item 9. Undertakings.
(a) 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;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this 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 the
Registration Statement. Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total dollar value of the securities
offered would not exceed that which was registered) and any deviation from the
low or high end of the estimated maximum offering range may be reflected in the
form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the 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 herein; and
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in this Registration
Statement;
Provided, however, that paragraphs (i) and (ii) do not apply if this
Registration Statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the Registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement.
(2) 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.
(3) To remove from registration by means of post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) 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 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 the Registration
Statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) 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 that 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 the Securities Act and will be governed by the final
adjudication of such issue.
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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-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 November 17, 2000.
JDS UNIPHASE CORPORATION
By /s/ Jozef Straus, Ph.D.
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Jozef Straus, Ph.D., Co-Chairman of the Board
of Directors and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints and hereby authorizes Jozef Straus, Ph.D.
and Anthony R. Muller, severally, such person's true and lawful
attorneys-in-fact, with full power of substitution or resubstitution, for such
person and in such person's name, place and stead, in any and all capacities, to
sign on such person's behalf, individually and in each capacity stated below,
any and all amendments, including post-effective amendments to this Registration
Statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact, full power and authority to do and perform each and
every act and thing requisite or necessary to be done in and about the premises,
as fully to all intents and purposes as such person might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact, or their
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 dates indicated.
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Name And Signatures Title Date
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<S> <C> <C>
/s/ Jozef Straus, Ph.D.
----------------------- Chief Executive Officer and Co-Chairman of November 17, 2000
Jozef Straus, Ph.D. the Board of Directors (Principle Executive
Officer)
/s/ Martin Kaplan
-----------------
Martin Kaplan Co-Chairman of the Board of Directors November 17, 2000
/s/ Anthony R. Muller
--------------------- Executive Vice President, Chief Financial November 17, 2000
Anthony R. Muller Officer and Secretary (Principal Financial
and Accounting Officer)
/s/ Bruce D. Day
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Bruce D. Day Director November 17, 2000
/s/ Peter A. Guglielmi
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Peter A. Guglielmi Director November 17, 2000
/s/ Robert E. Enos
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Robert E. Enos Director November 17, 2000
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/s/ John A. MacNaughton
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John A. MacNaughton Director November 17, 2000
/s/ Wilson Sibbett, Ph.D.
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Wilson Sibbett, Ph.D. Director November 17, 2000
/s/ Casimir S. Skrzypczak
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Casimir S. Skrzypczak Director November 17, 2000
/s/ William J. Sinclair
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William J. Sinclair Director November 17, 2000
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
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5.1 Opinion of Morrison & Foerster LLP
23.2 Consent of Ernst & Young LLP, independent auditors
24.1 Power of Attorney (included on signature page of this Registration
Statement)
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