<PAGE> 1
As filed with the Securities and Exchange Commission on February 9, 2000
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
JDS UNIPHASE CORPORATION
(Exact name of registrant as specified in its charter)
----------------------
DELAWARE 94-2579683
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
163 BAYPOINTE PARKWAY
SAN JOSE, CALIFORNIA 95134
(Address of registrant's principal executive offices)
OPTICAL COATING LABORATORY, INC. 1993 INCENTIVE COMPENSATION PLAN
OPTICAL COATING LABORATORY, INC. 1995 INCENTIVE COMPENSATION PLAN
OPTICAL COATING LABORATORY, INC. 1996 INCENTIVE COMPENSATION PLAN
OPTICAL COATING LABORATORY, INC. 1998 INCENTIVE COMPENSATION PLAN
OPTICAL COATING LABORATORY, INC. 1999 INCENTIVE COMPENSATION PLAN
OPTICAL COATING LABORATORY, INC. 1999 DIRECTOR STOCK PLAN
AND
OPTICAL COATING LABORATORY, INC. 1999 EMPLOYEE STOCK PURCHASE PLAN
(Full titles of the plans)
Kevin N. Kalkhoven
Co-Chairman of the Board of Directors and
Chief Executive Officer
JDS Uniphase Corporation
163 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
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED (1) SHARE (2) PRICE (2) FEE (5)
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Optical Coating Laboratory, 64,032 $ 5.87(3) $ 375,868(3) $ 99.23
Inc. 1993 Incentive
Compensation Plan
Common Stock ($.001 par value)
</TABLE>
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<TABLE>
<S> <C> <C> <C> <C>
Optical Coating Laboratory, 242,381 $ 7.27(3) $1,762,110(3) $ 465.20
Inc. 1995 Incentive
Compensation Plan
Common Stock ($.001 par value)
Optical Coating Laboratory, 999,557 $ 6.25(3) $6,247,231(3) $ 1,649.27
Inc. 1996 Incentive
Compensation Plan
Common Stock ($.001 par value)
Optical Coating Laboratory, 786,312 $ 14.67(3) $11,535,197(3) $ 3,045.29
Inc. 1998 Incentive
Compensation Plan
Common Stock ($.001 par value)
Optical Coating Laboratory, 1,048,594 $ 10.72(3) $11,240,928(3) $ 2,967.60
Inc. 1999 Incentive
Compensation Plan
Common Stock ($.001 par value)
Optical Coating Laboratory, 27,840 $ 36.30(3) $1,010,592(3) $ 266.80
Inc. 1999 Director Stock Plan
Common Stock ($.001 par value)
Optical Coating Laboratory, 742,400 $ 205.73(4) $152,733,952(4) $40,321.76
Inc. 1999 Employee Stock
Purchase Plan
Common Stock ($.001 par value)
Total 3,911,116 $184,905,878 $48,815.15
</TABLE>
(1) Pursuant to the Agreement and Plan of Reorganization and Merger (the
"Merger Agreement") dated as of November 3, 1999 by and among JDS Uniphase
Corporation, Vintage Acquisition, Inc. and Optical Coating Laboratory,
Inc., JDS Uniphase Corporation assumed all of the outstanding options to
purchase Common Stock of Optical Coating Laboratory, Inc. under the plans
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.
(4) Computation based upon the Registrant's good faith estimate of the value of
its Common Stock based upon the average of the high and low prices of
Optical Coating Laboratory, Inc.'s Common Stock as reported on the Nasdaq
National Market on February 2, 2000.
(5) Pursuant to Rule 457(b) under the Securities Act, all of the registration
fee is offset by the filing fees previously paid in connection with the
filing of the Registrant's Registration Statement on S-4 on December 8,
1999. The fees paid for that filing included 2,176,352 shares to be issued
pursuant to the exercise of Optical Coating Laboratory, Inc. options and
were calculated based on a proposed maximum offering price of $195.31 per
share which accounted for $60,462 of the $796,990 filing fee. Accordingly,
no additional fee is being paid herewith.
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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 3,911,116 shares
of Common Stock of JDS Uniphase Corporation, a Delaware corporation (the
"Registrant"), issuable to eligible employees, directors, consultants and
advisors under certain employee benefit plans assumed by Registrant upon the
merger of Registrant's wholly owned subsidiary, Vintage Acquisition, Inc., a
Delaware corporation, with and into Optical Coating Laboratory, Inc., a Delaware
corporation. The plans were previously obligations of Optical Coating
Laboratory, Inc. 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 plans 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 and Form 10-K/A for the
fiscal year ended June 30, 1999 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.
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ITEM 8. EXHIBITS.
The Exhibit Index immediately preceding the exhibits is incorporated
herein by reference.
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
5
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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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<PAGE> 7
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 February 9, 2000.
JDS UNIPHASE CORPORATION
By /s/ Kevin N. Kalkhoven
-----------------------------
Kevin N. Kalkhoven,
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 Kevin N. Kalkhoven
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.
<TABLE>
<CAPTION>
Name and Signatures Title Date
- ------------------- ----- ----
<S> <C> <C>
/s/ Kevin N. Kalkhoven February 9, 2000
- -------------------------------- Chief Executive Officer and
Kevin N. Kalkhoven Co-Chairman of the Board of Directors
(Principle Executive Officer)
/s/ Jozef Straus, Ph.D. February 9, 2000
- -------------------------------- President, Chief Operating Officer and
Jozef Straus, Ph.D. Co-Chairman of the Board of Directors
/s/ Anthony R. Muller February 9, 2000
- -------------------------------- Senior Vice President,
Anthony R. Muller Chief Financial Officer and Secretary
(Principal Financial and Accounting Officer)
/s/ Bruce Day Director February 9, 2000
- --------------------------------
Bruce Day
/s/ Peter Guglielmi Director February 9, 2000
- --------------------------------
Peter Guglielmi
/s/ Robert E. Enos Director February 9, 2000
- --------------------------------
Robert E. Enos
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ Martin Kaplan Director February 9, 2000
- --------------------------------
Martin Kaplan
/s/ John A. MacNaughton Director February 9, 2000
- --------------------------------
John A. MacNaughton
/s/ Wilson Sibbett, Ph.D. Director February 9, 2000
- --------------------------------
Wilson Sibbett, Ph.D.
/s/ Casimir S. Skrzypczak Director February 9, 2000
- --------------------------------
Casimir S. Skrzypczak
/s/ William J. Sinclair Director February 9, 2000
- --------------------------------
William J. Sinclair
</TABLE>
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<PAGE> 9
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<S> <C>
5.1 Opinion of Morrison & Foerster LLP
23.1 Consent of Morrison & Foerster LLP (set forth in Exhibit 5.1)
23.2 Consent of Ernst & Young LLP, independent auditors
23.3 Consent of Deloitte & Touche LLP, independent auditors
23.4 Consent of Pricewaterhouse Coopers LLP, independent
accountants
23.5 Consent of Pricewaterhouse Coopers LLP, independent
accountants
23.6 Consent of KPMG LLP, independent accountants
24.1 Power of Attorney (included on signature page of this
Registration Statement)
</TABLE>
<PAGE> 1
EXHIBIT 5.1
MORRISON & FOERSTER LLP
San Francisco, California
February 9, 2000
JDS Uniphase Corporation
163 Baypointe Parkway
San Jose, California 95134
Re: Optical Coating Laboratory, Inc. 1993 Incentive Compensation Plan
Optical Coating Laboratory, Inc. 1995 Incentive Compensation Plan
Optical Coating Laboratory, Inc. 1996 Incentive Compensation Plan
Optical Coating Laboratory, Inc. 1998 Incentive Compensation Plan
Optical Coating Laboratory, Inc. 1999 Incentive Compensation Plan
Optical Coating Laboratory, Inc. 1999 Director Stock Plan
Optical Coating Laboratory, Inc. 1999 Employee Stock Purchase Plan
Gentlemen:
At your request, we have examined the Registration Statement on Form
S-8 (the "Registration Statement") executed by you on February 9, 2000, and to
be filed with the Securities and Exchange Commission (the "Commission") in
connection with the registration under the Securities Act of 1933, as amended
(the "Securities Act"), of an aggregate of 3,911,116 shares of your common
stock, $.001 par value (the "Common Stock"), which will be issuable under the
above-referenced plans (collectively, the "Plans").
As your counsel in connection with the Registration Statement, we have
examined the proceedings taken by you in connection with the assumption of the
Plans by JDS Uniphase Corporation, and such documents as we have deemed
necessary to render this opinion, in connection with the acquisition of Optical
Coating Laboratory, Inc. by JDS Uniphase Corporation.
Based upon the foregoing, it is our opinion that the Common Stock, when
issued and outstanding pursuant to the terms of the Plans, will be validly
issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion with the Commission as
an exhibit to the Registration Statement in accordance with the requirements of
Item 601(b)(5) of Regulation S-K under the Securities Act. In giving such
consent, we do not hereby admit that we are in the category of persons whose
consent is required under Section 7 of the Securities Act or the rules and
regulations of the Commission.
Very truly yours,
MORRISON & FOERSTER LLP
<PAGE> 1
EXHIBIT 23.2
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Optical Coating Laboratory, Inc. 1993 Incentive
Compensation Plan, the Optical Coating Laboratory, Inc. 1995 Incentive
Compensation Plan, the Optical Coating Laboratory, Inc. 1996 Incentive
Compensation Plan, the Optical Coating Laboratory, Inc. 1998 Incentive
Compensation Plan, the Optical Coating Laboratory, Inc. 1999 Incentive
Compensation Plan, the Optical Coating Laboratory, Inc. 1999 Employee Stock
Purchase Plan, and the Optical Coating Laboratory, Inc. 1999 Director Stock Plan
of our report dated July 23, 1999 (except for Note 13, as to which the date is
August 25, 1999) with respect to the consolidated financial statements of JDS
Uniphase Corporation and the related financial statement schedule included in
its Annual Report (Form 10-K/A), filed with the Securities and Exchange
Commission.
/s/ Ernst & Young LLP
San Jose, California
February 7, 2000
<PAGE> 1
EXHIBIT 23.3
CONSENT OF DELOITTE & TOUCHE LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration
Statement of JDS Uniphase Corporation on Form S-8 of our report dated December
22, 1998 (January 8, 1999 as to paragraph 8 of Note 6, May 26, 1999 as to Note
15 and November 3, 1999 as to Note 16) on the consolidated financial statements
of Optical Coating Laboratory, Inc. and subsidiaries appearing in the Current
Report on Form 8-K/A of JDS Uniphase Corporation filed on November 30, 1999.
DELOITTE & TOUCHE LLP
San Jose, California
February 9, 2000
<PAGE> 1
EXHIBIT 23.4
CONSENT OF PRICEWATERHOUSE COOPERS LLP
We hereby consent to the incorporation by reference in this Registration
Statement of JDS Uniphase Corporation on Form S-8 of our Report dated July 20,
1999, except as to Note 14, which is as of July 27, 1999, relating to the
financial statements of E-TEK Dynamics, Inc. as of June 30, 1998 and 1999 and
for each of the three years in the period ended June 30, 1999, which report
appears in the Current Report on Form 8-K of JDS Uniphase Corporation filed
January 17, 2000.
/s/ PRICEWATERHOUSECOOPERS LLP
- -----------------------------------------
San Jose, CA
February 8, 2000
<PAGE> 1
EXHIBIT 23.5
CONSENT OF PRICEWATERHOUSE COOPERS LLP
Securities and Exchange Commission
Washington, D.C.
United States of America
20549
CONSENT OF INDEPENDENT CHARTERED ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement of JDS Uniphase Corporation on Form S-8 of our Report dated July 5,
1999, with respect to the consolidated financial statements of JDS FITEL Inc.
for the year ended May 31, 1999, which report appears in the Current Report on
Form 8-K/A of JDS Uniphase Corporation filed November 4, 1999.
/s/ PricewaterhouseCoopers LLP
Chartered Accountants
Ottawa, Ontario
February 8, 2000
<PAGE> 1
EXHIBIT 23.6
CONSENT OF KPMG LLP, INDEPENDENT ACCOUNTANTS
To the Board of Directors and Stockholders
Flex Products, Inc.
We consent to the incorporation by reference in the Registration
Statement on Form S-8 of JDS Uniphase Corporation to be filed on February 9,
2000, of our report dated November 26, 1997, with respect to the balance sheet
of Flex Products, Inc. as of November 2, 1997, and the related statements of
operations, stockholders' equity and cash flows of Flex Products, Inc. for the
years ended November 2, 1997 and November 3, 1996, which report appears in the
October 31, 1998 annual report on Form 10-K of Optical Coating Laboratory, Inc.,
and in the current report on Form 8-K/A dated November 30, 1999 of JDS Uniphase
Corporation.
San Francisco, California
February 7, 2000
