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As filed with the Securities and Exchange Commission on November 9, 1999
Registration No. 333-_______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------------------
ORTEL CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
Delaware 95-3494360
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
-----------------------------
2015 West Chestnut Street
Alhambra, California 91803-1524
(Address of Principal Executive Offices including Zip Code)
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1999 NON-QUALIFIED STOCK OPTION PLAN FOR
EMPLOYEES OTHER THAN OFFICERS OF ORTEL CORPORATION
(Full Title of the Plan)
-----------------------------
STEPHEN R. RIZZONE Copy to:
Chairman of the Board, President, Regina M. Schlatter
and Chief Executive Officer Latham & Watkins
ORTEL CORPORATION 650 Town Center Drive, Twentieth Floor
2015 W. Chestnut Street Costa Mesa, California 92626
Alhambra, California 91803-1542 (714) 540-1235
(818) 281-3636
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(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent for Service)
-----------------------------
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------------------------------
Proposed
Title of Each Class Amount Proposed Maximum
of Securities to to be Maximum Aggregate Amount of
be Registered Registered Offering Price Offering Registration
Per Share (1) Price (1) Fee
- --------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock $0.001 par value (2) 3,000,000 shares $31.5625 $94,687,500 $26,324
- --------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h). The Proposed Maximum Aggregate Offering Price Per
Share is the average of the high and low price of the Common Stock
($31.562), as reported on The Nasdaq Stock Market on November 2, 1999.
(2) Each share of Common Stock being registered hereunder, if issued prior to
the termination by the Company of its Rights Agreement, will include one
Common Share Purchase Right. Prior to the occurrence of certain events, the
Common Share Purchase Rights will not be exercisable or evidenced separately
from the Common Stock.
Proposed sale to take place as soon after the effective date of the
Registration Statement as options granted under the Plan are exercised.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information called for in Part I of Form S-8 is not being filed with or
included in this Form S-8 (by incorporation by reference or otherwise) in
accordance with the rules and regulations of the Securities and Exchange
Commission (the "Commission").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
---------------------------------------
The following documents, which Ortel Corporation (the "Company") filed with
the Commission, are incorporated by reference into this registration statement:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
April 30, 1999;
(b) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended July 31, 1999; and
(c) The description of the Company's Common Stock contained in the
Registration Statement on Form 8-A filed with the Commission (File No.
0-24914).
In addition, all documents which the Company files pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this
registration statement and prior to the filing of a post-effective amendment
which indicates that all securities offered hereby have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part of this registration statement
from the date of the filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this registration statement
to the extent that a statement contained in this registration statement, or in
any other subsequently filed document which also is or is deemed to be
incorporated by reference in this registration statement, 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
registration statement.
Item 4. Description of Securities.
-------------------------
Not Applicable.
Item 5. Named Experts.
-------------
The financial statements and schedules of Ortel Corporation as of April 30,
1999 and 1998, and for each of the years in the three-year period ended April
30, 1999 have been incorporated by reference herein in reliance upon the report
of KPMG LLP, independent certified public accountants, incorporated by reference
herein, and upon the authority of said firm as experts in accounting and
auditing.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
Section 102(b)(7) of the Delaware General Corporation Law permits a
Delaware corporation to limit the personal liability of its directors in
accordance with the provisions set forth therein. The Certificate of
Incorporation of the Company provides that the personal liability of its
directors shall be limited to the fullest extent permitted by applicable law.
Section 145 of the Delaware General Corporation Law contains provisions
permitting corporations to indemnify any person who is or was a director,
officer, employee or agent of the corporation, or who is or was
2
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serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, in accordance with the provisions set forth therein. The Certificate
of Incorporation of the Company provides for indemnification of such persons to
the fullest extent allowed by applicable law.
In addition, the Company has entered into agreements (the "Indemnification
Agreements") with each of the directors and certain officers of the Company
pursuant to which the Company agrees to indemnify such director or officer from
claims, liabilities, damages, expenses, losses, costs, penalties or amounts paid
in settlement incurred by such director or officer and arising out of his
capacity as a director, officer, employee and/or agent of the Company to the
maximum extent provided by applicable law. In addition, such director or
officer is entitled to an advance of expenses to the maximum extent authorized
or permitted by law to meet the obligations indemnified against. To the extent
that the Board of Directors or the stockholders of the Company may in the future
wish to limit or repeal the ability of the Company to indemnify directors and
officers, such repeal or limitation may not be effective as to directors and
officers who are currently parties to the Indemnification Agreements, because
their rights to full protection are contractually assured by the Indemnification
Agreements. It is anticipated that similar contracts may be entered into, from
time to time, with future officers and directors of the Company.
The inclusion of the above provisions in the Certificate of Incorporation
may have the effect of reducing the likelihood of stockholder derivative suits
against directors and may discourage or deter stockholders or management from
bringing a lawsuit against directors for breach of their duty of care, even
though such an action, if successful, might otherwise have benefited the Company
and its stockholders.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not Applicable.
Item 8. Exhibits.
--------
See Index to Exhibits on Page 6.
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
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
in the effective registration statement;
(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 the
registration statement;
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provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if 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 the
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 a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
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 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 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,
Ortel Corporation, a Delaware corporation, certifies that it has reasonable
grounds to believe that it meets all of the requirements for filing on Form S-8
and has duly caused this registration statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Irvine, State of
California, on this 8th day of November, 1999.
Ortel Corporation
By: /s/ STEPHEN R. RIZZONE
------------------------------------
Stephen R. Rizzone,
President, Chief Executive Office, and
Chairman of the Board
POWER OF ATTORNEY
Each person whose signature appears below hereby authorizes and appoints
Roger Hay as attorney-in-fact and agent with full power of substitution and
resubstitution, to sign on his behalf, individually and in the capacities stated
below, and to file any and all amendments, including post-effective amendments,
to this Registration Statement and other documents in connection therewith, with
the Commission, granting to said attorney-in-fact and agent full power and
authority to perform any other act on behalf of the undersigned required to be
done in the premises.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities as of November 8, 1999.
<TABLE>
<CAPTION>
Signature Title
- --------- -----
<S> <C>
/s/ STEPHEN R. RIZZONE President, Chief Executive Officer, and Chairman of the Board
- ----------------------------
Stephen R. Rizzone
/s/ ROGER HAY Vice President, Chief Financial Officer and Treasurer
- ----------------------------
Roger Hay
/s/ NADAV BAR-CHAIM Director
- ----------------------------
Nadav Bar-Chaim
/s/ JOHN R. GAULDING Director
- ----------------------------
John R. Gaulding
/s/ TATSUTOKU HONDA Director
- ----------------------------
Tatsutoku Honda
/s/ ANTHONY J. IORILLO Director
- ----------------------------
Anthony J. Iorillo
/s/ LUTHER J. NUSSBAUM Director
- ----------------------------
Luther J. Nussbaum
/s/ WAYNE L. TYLER Director
- ----------------------------
Wayne L. Tyler
/s/ AMNON YARIV Director
- ----------------------------
Amnon Yariv
</TABLE>
5
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT PAGE
- ------- ----
<C> <S> <C>
4.1 Rights Agreement dated March 3, 1995 between Ortel Corporation (Note 1)
and First Interstate Bank of California
5.1 Opinion of Latham & Watkins 7
23.1 Consent of Latham & Watkins (included in Exhibit 5.1)
23.2 Consent of KPMG LLP 8
24 Power of Attorney (included in the signature page to this
Registration Statement)
</TABLE>
______________________
(1) Incorporated by reference from the Company's Quarterly Report on Form 10-Q
for the fiscal quarter ended January 31, 1995.
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EXHIBIT 5.1
[Latham & Watkins Letterhead]
November 8, 1999
Board of Directors
Ortel Corporation
2015 W. Chestnut Street
Alhambra, California 91803-1542
Re: Registration Statement on Form S-8
----------------------------------
Gentlemen:
In connection with the registration under the Securities Act of 1933, as
amended (the "Act"), of an aggregate of 3,000,000 shares (the "Shares") of
common stock, par value $0.001 per share, of Ortel Corporation, a Delaware
company (the "Company"), issuable under the 1999 Non-Qualified Stock Option Plan
For Employees Other Than Officers Of Ortel Corporation (the "Plan") by the
Company on a Registration Statement on Form S-8 (the "Registration Statement")
to be filed with the Securities and Exchange Commission (the "Commission") you
have requested our opinion with respect to the matters set forth below.
We have made such legal and factual examinations and inquiries, including
an examination of originals or copies certified or otherwise identified to our
satisfaction of such documents, corporate records and instruments, as we have
deemed necessary or appropriate for purposes of this opinion. In our
examination, we have assumed the genuineness of all signatures, the authenticity
of all documents submitted to us as originals, and the conformity to authentic
original documents of all documents submitted to us as copies.
We are opining herein as to the effect on the subject transaction only of
the General Corporation Law of the State of Delaware, including statutory and
reported decisional law thereunder, and we express no opinion with respect to
the applicability thereto, or the effect thereon, of any other laws.
Subject to the foregoing and in reliance thereon, we are of the opinion
that, as of the date hereof, upon the issuance and sale of the Shares, each in
the manner contemplated by the Registration Statement and each in accordance
with the terms of the Plan, and subject to the Company completing all action and
proceedings required on its part to be taken in connection with the issuance of
the Shares pursuant to the terms of the Plan and the Registration Statement,
including, without limitation, collection of required payment for the Shares,
the Shares will be legally and validly issued, fully paid and nonassessable
securities of the Company.
This opinion is rendered only to you and is solely for your benefit in
connection with the transactions covered hereby. This opinion may not be relied
upon by you for any other purpose, or furnished to, quoted to or relied upon by
any other person, firm or corporation for any purpose, without our prior written
consent. We consent to your filing this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Latham & Watkins
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EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the use of our report incorporated by reference in, and to the
reference to our firm under the caption "Named Experts" in, the Registration
Statement on Form S-8 pertaining to the 1999 Non-Qualified Stock Option Plan For
Employees Other Than Officers Of Ortel Corporation
/s/ KPMG LLP
Los Angeles, California
November 8, 1999
8
