<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 12, 1998
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
---------------
CIENA CORPORATION
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of
incorporation or organization)
23-2725311
--------------------------------
(I.R.S. Employer Identification No.)
1201 Winterson Road
Linthicum, Maryland 21090
(410) 865-8500
--------------
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
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CIENA Corporation Employee Stock Purchase Plan
(Full title of the Plan)
---------------
G. Eric Georgatos
Vice President, General Counsel and Secretary
CIENA Corporation
1201 Winterson Road
Linthicum, Maryland 21090
(410) 865-8500
(Name, address and telephone number, including area code, of agent for service)
Copy to:
Michael J. Silver, Esq.
Hogan & Hartson L.L.P.
111 South Calvert Street
Baltimore, Maryland 21202
(410) 659-2700
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------
AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED PER SHARE PRICE FEE (1)
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $.01 per share 2,500,000 $54.25 $135,625,000 $40,009.38
- ------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated pursuant to Rule 457(c) and (h) of the Securities Act of
1933, as amended, solely for the purpose of calculating the amount of the
registration fee, based on the average of the high and low prices per share of
CIENA Corporation common stock, par value $.01 per share, on May 5, 1998,
as reported on the NASDAQ National Market.
================================================================================
Exhibit Index Appears on page 6.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in Part I
will be sent or given to employees as specified by Rule 428(b)(1) of the
Securities Act of 1933, as amended (the "Securities Act"). In accordance with
the instructions to Part I of Form S-8, such documents will not be filed with
the Securities and Exchange Commission (the "Commission") either as part of
this registration statement or as prospectuses or prospectus supplements
pursuant to Rule 424 of the Securities Act. These documents and the documents
incorporated by reference pursuant to Item 3 of Part II of this registration
statement, taken together, constitute the prospectus as required by Section
10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
CIENA Corporation (the "Company") hereby incorporates by
reference into this registration statement the following documents filed by it
with the Commission:
(a) The Registrant's Form 10-K for the fiscal year ended
October 31, 1997;
(b) All reports filed with the Commission pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), since October
31, 1997; and
(c) The description of the Company's Common Stock, $.01 par
value per share ("Common Stock"), contained in the
Registrant's Registration Statement on Form 8-A filed
with the Commission on January 13, 1997, including all
amendments and reports filed under Section 13(a) or
15(d) of the Exchange Act for purposes of updating the
description of Common Stock.
In addition, all documents and reports filed by the Company
subsequent to the date hereof 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 offered have been sold or which deregisters all
securities remaining unsold, shall be deemed to be incorporated by reference in
this registration statement and to be part hereof from the date of filing of
such documents or reports. 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 herein or in any other subsequent filed document which also
is or is deemed to be incorporated by reference herein 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 (the Common Stock is registered under Section
12(g) of the Exchange Act).
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Item 14 of Part II of the Registration Statement of the
Registrant on Form S-1 (Registration No. 333-17729) is hereby incorporated by
reference into this Registration Statement.
* * *
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers, and controlling persons
of the Company 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 Company 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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit
Number Description
------ -----------
<S> <C>
5.1 Opinion of Hogan & Hartson L.L.P. regarding the legality of the
shares being registered.
23.1 Consent of Hogan & Hartson L.L.P. (included in Exhibit 5.1).
23.2 Consent of Price Waterhouse LLP.
24.1 Power of Attorney (included on signature page).
</TABLE>
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;
2
<PAGE> 4
(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 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 a 20% 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.
Provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the 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 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) The undertaking concerning indemnification is set forth under
the response to Item 6.
3
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
undersigned 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 Linthicum, State of Maryland, on the
21st day of April, 1998.
CIENA CORPORATION
By: /s/PATRICK H. NETTLES
----------------------------
Patrick H. Nettles
President and Chief Executive Officer
POWER OF ATTORNEY
Know all men by these presents, that each individual whose
signature appears below constitutes and appoints Patrick H. Nettles, Joseph R.
Chinnici and G. Eric Georgatos, and each of them or his true and lawful
attorney-in-fact and agent, with power of substitution and resubstitution, for
him and in his name, place and stead, in any and all capacities, to sign a
registration statement (the "Registration Statement") relating to a
registration of shares of common stock on Form S-8 and to sign any and all
amendments (including post-effective amendments) to the Registration Statement,
and to file the same, with all exhibits and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their or his substitutes or
substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed by the following persons
in the capacities and on the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/PATRICK H. NETTLES Director, President and Chief April 21, 1998
--------------------------------- Executive Officer
Patrick H. Nettles
/s/JOSEPH R. CHINNICI Senior Vice President, Finance and April 21, 1998
--------------------------------- Chief Financial Officer
Joseph R. Chinnici
/s/JON W. BAYLESS Chairman of the Board of April 21, 1998
--------------------------------- Directors
Jon W. Bayless
/s/ANDREW C. PETRIK Vice President, Controller and April 21, 1998
--------------------------------- Treasurer
Andrew C. Petrik
</TABLE>
4
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<TABLE>
<S> <C> <C>
/s/HARVEY B. CASH Director
---------------------------------
Harvey B. Cash April 20, 1998
/s/CLIFFORD H. HIGGERSON Director April 21, 1998
---------------------------------
Clifford H. Higgerson
/s/BILLY B. OLIVER Director April 21, 1998
---------------------------------
Billy B. Oliver
/s/MICHAEL J. ZAK Director April 21, 1998
---------------------------------
Michael J. Zak
</TABLE>
5
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------ -----------
<S> <C>
5.1 Opinion of Hogan & Hartson L.L.P. regarding the legality of the shares being
registered.
23.1 Consent of Hogan & Hartson L.L.P. (included in Exhibit 5.1).
23.2 Consent of Price Waterhouse LLP.
24.1 Power of Attorney (included on signature page).
</TABLE>
6
<PAGE> 1
Exhibit 5.1
May 12, 1998
Board of Directors
CIENA Corporation
1201 Winterson Road
Linthicum, MD 21090
Gentlemen:
This firm has acted as counsel to CIENA Corporation (the
"Company"), a Delaware corporation, in connection with its registration,
pursuant to a registration statement on Form S-8 filed on or about the date
hereof (the "Registration Statement"), of 2,500,000 shares (the "Shares") of
Common Stock, par value $.01 per share, of the Company ("Common Stock"),
issuable under the CIENA Corporation Employee Stock Purchase Plan (the "Plan").
This letter is furnished to you pursuant to the requirements of Item 601(b)(5)
of Regulation S-K, 17 C.F.R. Section 229.601(b)(5), in connection with such
registration.
For purposes of this opinion, we have examined copies of the
following documents:
1. An executed copy of the Registration Statement.
2. A copy of the Plan, as certified by the Secretary of
the Company on the date hereof as being complete,
accurate and in effect.
3. The Certificate of Incorporation of the Company, as
amended, as certified on April 21, 1998 by the
Secretary of State of the State of Delaware and as
certified by the Secretary of the Company on the date
hereof as being complete, accurate and in effect.
4. The Amended and Restated Bylaws of the Company as
certified by the Secretary of the Company on the date
hereof as being complete, accurate and in effect.
5. Resolutions of the Board of Directors of the Company
adopted on December 23, 1997, as certified by the
Secretary of the Company on the
<PAGE> 2
date hereof as being complete, accurate and in effect,
relating to, among other things, approval of the Plan.
6. A certificate of the Secretary of the Company, dated
May 11, 1998, as to certain facts relating to the
Company.
For purposes of rendering this opinion, we have not, except as
specifically identified above, made any independent review or investigation of
factual or other matters, including the organization, existence, good standing,
assets, business or affairs of the Company. In our examination of the
aforesaid certificates, records and documents, we have assumed the genuineness
of all signatures, the legal capacity of all natural persons, the accuracy and
completeness of all documents submitted to us, the authenticity of all original
documents and the conformity to authentic original documents of all documents
submitted to us as copies (including telecopies). We also have assumed the
accuracy, completeness and authenticity of the foregoing certifications (of
public officials, governmental agencies and departments and corporate officers)
and statements of fact, on which we are relying, and have made no independent
investigations thereof. This opinion is given in the context of the
foregoing.
This opinion is based as to matters of law solely on the
General Corporation Law of the State of Delaware, as amended, and we express no
opinion as to any other laws, statutes, regulations, or ordinances, including,
without limitation, any federal or state tax or securities laws or regulations.
Based upon, subject to, and limited by the foregoing, we are of
the opinion that the Shares, when issued and delivered in the manner and on the
terms contemplated in the Registration Statement and the Plan (with the Company
having received the consideration therefor, the form of which is in accordance
with applicable law), will be validly issued, fully paid and non-assessable.
We assume no obligation to advise you of any changes in the
foregoing subsequent to the delivery of this opinion. This opinion has been
prepared solely for your use in connection with the filing of the Registration
Statement on the date of this letter, and should not be quoted in whole or in
part or otherwise be referred to, nor be filed with or furnished to any
governmental agency or other person or entity, without the prior written
consent of this firm.
We hereby consent to the filing of this opinion as Exhibit 5.1
to the Registration Statement. In giving this consent, we do not thereby admit
that we are an "expert" within the meaning of the Securities Act of 1933, as
amended.
Very truly yours,
HOGAN & HARTSON L.L.P.
-2-
<PAGE> 1
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 on our report dated November 26, 1997
appearing on page 36 of CIENA Corporation's Annual Report on Form 10-K for the
fiscal year ended October 31, 1997.
PRICE WATERHOUSE LLP
Falls Church, VA
May 11, 1998
