<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 11, 1999
REGISTRATION NO. 333-80375
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- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
PRE-EFFECTIVE AMENDMENT NO. 2
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
CIENA CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
DELAWARE 3661 23-2725311
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
</TABLE>
1201 WINTERSON ROAD
LINTHICUM, MD 21090
(410) 865-8500
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
G. ERIC GEORGATOS
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
1201 WINTERSON ROAD
LINTHICUM, MD 21090
(410) 865-8500
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
------------------------
Copies to:
<TABLE>
<S> <C>
MICHAEL J. SILVER PETER B. TARR
AMY BOWERMAN FREED HALE AND DORR LLP
HOGAN & HARTSON L.L.P. 60 STATE STREET
111 SOUTH CALVERT STREET BOSTON, MA 02109
BALTIMORE, MD 21202 (617) 526-6000
(410) 659-2700
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [ ]
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 of 1933 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(d)
under the Securities Act of 1933, check the following box and list the
Securities Act of 1933 registration statement number of the earlier effective
registration statement for the same offering. [ ]
------------------------
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 A FURTHER 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.
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<PAGE> 2
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Section 145 of the Delaware General Corporation Law ("DGCL"), a
corporation may indemnify its directors, officers, employees and agents and its
former directors, officers, employees and agents and those who serve, at the
corporation's request, in such capacities with another enterprise, against
expenses (including attorneys' fees), as well as judgments, fines and
settlements in nonderivative lawsuits, actually and reasonably incurred in
connection with the defense of any action, suit or proceeding in which they or
any of them were or are made parties or are threatened to be made parties by
reason of their serving or having served in such capacity. The DGCL provides,
however, that such person must have acted in good faith and in a manner such
person reasonably believed to be in (or not opposed to) the best interests of
the corporation and, in the case of a criminal action, such person must have had
no reasonable cause to believe his or her conduct was unlawful. In addition, the
DGCL does not permit indemnification in an action or suit by or in the right of
the corporation, where such person has been adjudged liable to the corporation,
unless, and only to the extent that, a court determines that such person fairly
and reasonably is entitled to indemnity for costs the court deems proper in
light of liability adjudication. Indemnity is mandatory to the extent a claim,
issue or matter has been successfully defended.
The Amended and Restated Certificate of Incorporation of CIENA (the "CIENA
Certificate") contains provisions that provide that no director of CIENA shall
be liable for breach of fiduciary duty as a director except for (1) any breach
of the directors' duty of loyalty to CIENA or its stockholders; (2) acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of the law; (3) liability under Section 174 of the DGCL; or (4) any
transaction from which the director derived an improper personal benefit. The
CIENA Certificate contains provisions that further provide for the
indemnification of directors and officers to the fullest extent permitted by the
DGCL. Under the Bylaws of CIENA, CIENA is required to advance expenses incurred
by an officer or director in defending any such action if the director or
officer undertakes to repay such amount if it is determined that the director or
officer is not entitled to indemnification. In addition, CIENA has entered into
indemnity agreements with each of its directors pursuant to which CIENA has
agreed to indemnify the directors as permitted by the DGCL. CIENA has obtained
directors and officers liability insurance against certain liabilities,
including liabilities under the Securities Act.
II-1
<PAGE> 3
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) EXHIBITS
<TABLE>
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2.1 Merger Agreement (included as Appendix A to the
prospectus/proxy statement)
2.2 Form of Escrow Agreement (included as Appendix C to the
prospectus/proxy statement)
2.3(4) Form of Stockholder Voting Agreement
4.1(1) Specimen Stock Certificate
4.2(2) Rights Agreement dated December 29, 1997
4.3(3) Amendment to Rights Agreement
5.1 Hogan & Hartson L.L.P. Opinion
8.1 Hale and Dorr LLP Tax Opinion
23.1(4) Consent of Independent Accountants
23.2(4) Consent of Independent Accountants
23.3 Consent of Hogan & Hartson L.L.P. (included in Exhibit 5.1)
23.4 Consent of Hale and Dorr LLP (included in Exhibit 8.1)
99.1(4) Form of Proxy Card
</TABLE>
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(1) Incorporated by reference from the Company's Registration Statement on Form
S-1 (333-17729).
(2) Incorporated by reference to the Company's Form 8-K dated December 29, 1997.
(3) Incorporated by reference to the Company's Form 8-K dated October 14, 1998.
(4) Previously filed on June 10, 1999 as exhibits to the Company's Registration
Statement on Form S-4 (SEC File No. 333-80375).
(B) FINANCIAL STATEMENT SCHEDULES
None
(C) REPORTS, OPINIONS OR APPRAISALS
None
II-2
<PAGE> 4
ITEM 22. UNDERTAKINGS
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 Securities and Exchange 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.
The undersigned registrant hereby undertakes to respond to requests for
information that is incorporated by reference into the prospectus pursuant to
Items 4, 10(b), 11 or 13 of this Form, within one business day of receipt of
such request, and to send the incorporated documents by first class mail or
other equally prompt means. This includes information contained in documents
filed subsequent to the effective date of this Registration Statement through
the date of responding to the request.
The undersigned registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in this Registration Statement when it became effective.
The undersigned registrant hereby undertakes to file, during any period in
which offers or sales are being made, a post-effective amendment to this
Registration Statement:
- to include any prospectus required by Section 10(a)(3) of the Securities
Act of 1933 (the "Securities Act");
- 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 hereof) which, individually or in the aggregate,
represents 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) 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
Securities and Exchange 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 this Registration Statement
when it becomes effective; and
- 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.
The undersigned registrant hereby undertakes 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.
The undersigned registrant hereby undertakes 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.
II-3
<PAGE> 5
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 15(d) of the Securities
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.
The undersigned registrant hereby undertakes as follows: that prior to any
public reoffering of the securities registered hereunder through the use of a
prospectus which is a part of this Registration Statement, by any person or
party who is deemed to be an underwriter within the meaning of Rule 145(c), the
issuer undertakes that such reoffering prospectus will contain the information
called for by Form S-4 with respect to reofferings by persons who may be deemed
underwriters, in addition to the information called for by the other items of
Form S-4.
The undersigned registrant hereby undertakes that every prospectus (i) that
is filed pursuant to the immediately preceding paragraph, or (ii) that purports
to meet the requirements of Section 10(a)(3) of the Act and is used in
connection with an offering of securities subject to Rule 415, will be filed as
a part of an amendment to the Registration Statement and will not be used until
such amendment is effective, and that, for purposes 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
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
II-4
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Linthicum, Maryland, on
this 11th day of June, 1999.
CIENA CORPORATION
By: /s/ PATRICK H. NETTLES, PH.D.
------------------------------------
Patrick H. Nettles, Ph.D.
President and Chief Executive
Officer
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 date indicated.
<TABLE>
<S> <C> <C>
Date: June 11, 1999 By: /s/ PATRICK H. NETTLES, PH.D.
------------------------------------------
Patrick H. Nettles, Ph.D.
President and Chief Executive Officer
Date: June 11, 1999 /s/ JOSEPH R. CHINNICI*
------------------------------------------
Joseph R. Chinnici
Sr. Vice President, Chief Financial
Officer
(Principal Financial Officer)
Date: June 11, 1999 /s/ ANDREW C. PETRIK*
------------------------------------------
Andrew C. Petrik
Vice President, Controller and Treasurer
(Principal Accounting Officer)
Date: June 11, 1999 /s/ HARVEY B. CASH*
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Harvey B. Cash
Director
Date: June 11, 1999 /s/ BILLY B. OLIVER*
------------------------------------------
Billy B. Oliver
Director
Date: June 11, 1999 /s/ JAGDEEP SINGH*
------------------------------------------
Jagdeep Singh
Director
Date: June 11, 1999 /s/ MICHAEL J. ZAK*
------------------------------------------
Michael J. Zak
Director
Date: June 11, 1999 /s/ STEPHEN P. BRADLEY*
------------------------------------------
Stephen P. Bradley
Director
</TABLE>
By: /s/ PATRICK H. NETTLES, PH.D.
----------------------------------
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* Patrick H. Nettles, Ph.D., Attorney in Fact.
II-5
<PAGE> 7
INDEX TO EXHIBITS
<TABLE>
<C> <S>
2.1 Merger Agreement (included as Appendix A to the proxy
statement/prospectus)
2.2 Form of Escrow Agreement (included as Appendix C to the
proxy statement/prospectus)
2.3(4) Form of Stockholder Voting Agreement
4.1(1) Specimen Stock Certificate
4.2(2) Rights Agreement dated December 29, 1997
4.3(3) Amendment to Rights Agreement
5.1 Hogan & Hartson L.L.P. Opinion
8.1 Hale and Dorr LLP Tax Opinion
23.1(4) Consent of Independent Accountants
23.2(4) Consent of Independent Accountants
23.3 Consent of Hogan & Hartson L.L.P. (included in Exhibit 5.1)
23.4 Consent of Hale and Dorr LLP (included in Exhibit 8.1)
99.1(4) Form of Proxy Card
</TABLE>
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(1) Incorporated by reference from the Company's Registration Statement on Form
S-1 (333-17729).
(2) Incorporated by reference to the Company's Form 8-K dated December 29, 1997.
(3) Incorporated by reference to the Company's Form 8-K dated October 14, 1998.
(4) Previously filed on June 10, 1999 as exhibits to the Company's Registration
Statement on Form S-4 (SEC File No. 333-80375).
II-6
<PAGE> 1
EXHIBIT 5.1
HOGAN & HARTSON L.L.P.
111 South Calvert Street
Baltimore, Maryland 21202
June 11, 1999
Board of Directors
CIENA Corporation
1201 Winterson Road
Linthicum, MD 21090
Ladies and Gentlemen:
We are acting as counsel to CIENA Corporation, a Delaware corporation
(the "COMPANY"), in connection with its registration statement on Form S-4 (the
"REGISTRATION STATEMENT") filed with the Securities and Exchange Commission
relating to the registration of 16,000,000 shares of the Company's common stock,
par value $.01 per share (the "SHARES"), pursuant to the terms of the Agreement
and Plan of Merger between the Company and Omnia Communications, Inc. ("OMNIA"),
which provides for the merger of Omnia with and into the Company, with the
Company surviving the merger (the "MERGER"). This opinion letter is furnished to
you at your request to enable you to fulfill the requirements of Item 601(b)(5)
of Regulation S-K, 17 C.F.R. Section 229.601(b)(5), in connection with the
Registration Statement.
For purposes of this opinion letter, we have examined copies of the
following documents:
1. An executed copy of the Registration Statement.
2. The Third Restated Certificate of Incorporation of the
Company, as certified by the Secretary of the State of the
State of Delaware on April 19, 1999 and by the Secretary of
the Company on the date hereof as being complete, accurate and
in effect.
3. The Bylaws of the Company, as certified by the Secretary of
the Company on the date hereof as being complete, accurate
and in effect.
<PAGE> 2
4. Resolutions of the Board of Directors of the Company adopted
at a meeting held on March 14,1999, as certified by the
Secretary of the Company on the date hereof as being complete,
accurate and in effect, authorizing the issuance and sale of
the Shares.
5. Executed copies of the Agreement and Plan of Merger, dated
March 15, 1999, by and among the Company and Omnia
(the "Merger Agreement"), relating to, among other things,
the issuance of the Shares.
In our examination of the aforesaid documents, we have assumed the
genuineness of all signatures, the legal capacity of all natural persons, the
authenticity, 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).
This opinion letter is given, and all statements herein are made, in the context
of the foregoing.
This opinion letter is based as to matters of law solely on Delaware
corporate law. We express no opinion herein as to any other laws, statutes,
ordinances, rules, or regulations.
Based upon, subject to and limited by the foregoing, we are of the
opinion that following (i) effectiveness of the Registration Statement, (ii)
approval of the Merger by the Omnia stockholders, and (iii) the effectiveness of
the Merger pursuant to the General Corporation Law of the State of Delaware, the
Shares will be validly issued, fully paid and nonassessable.
This opinion letter has been prepared for your use in connection with
the Registration Statement and speaks as of the date hereof. We assume no
obligation to advise you of any changes in the foregoing subsequent to the
delivery of this opinion letter.
We hereby consent to the filing of this opinion letter as Exhibit 5.1
to the Registration Statement and to the reference to this firm under the
caption "Legal Matters" in the prospectus constituting a part of 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.
<PAGE> 1
EXHIBIT 8.1
[HALE AND DORR LETTERHEAD]
Counsellors at Law
60 State Street, Boston, Massachusetts 02109
617-526-6000 - fax 617-526-5000
June 11, 1999
Omnia Communications, Inc.
100 Nickerson Road
Marlborough, MA 01752
Re: Merger pursuant to Agreement and Plan of Merger among
CIENA Corporation and Omnia Communications, Inc.
Ladies and Gentlemen:
This opinion is being delivered to you in connection with the filing of a
registration statement (the "Registration Statement") on Form S-4, which
includes the Proxy Statement and Prospectus relating to the Agreement and Plan
of Merger dated as of March 15, 1999 (the "Merger Agreement"), by and among
CIENA Corporation, a Delaware corporation ("CIENA"), and Omnia Communications,
Inc., a Delaware corporation ("Omnia"). Pursuant to the Merger Agreement, Omnia
will merge with and into CIENA (the "Merger"). Except as otherwise provided,
capitalized terms not defined herein have the meanings set forth in the Merger
Agreement and the exhibits thereto or in the letters delivered to Hale and Dorr
LLP by CIENA and Omnia containing certain representations of CIENA and Omnia
relevant to this opinion (the "Representation Letters"). All section references,
unless otherwise indicated, are to the United States Internal Revenue Code of
1986, as amended (the "Code").
In our capacity as counsel to Omnia in the Merger, and for purposes of
rendering this opinion, we have examined and relied upon the Registration
Statement, the Merger Agreement and the exhibits thereto, the Representation
Letters, and such other documents as we considered relevant to our analysis. In
our examination of documents, we have assumed the authenticity of original
documents, the accuracy of copies, the genuineness of signatures, and the legal
capacity of signatories.
<PAGE> 2
OMNIA COMMUNICATIONS, INC.
JUNE 11, 1999
PAGE 2
We have assumed that all parties to the Merger Agreement and to any other
documents examined by us have acted, and will act, in accordance with the terms
of such Merger Agreement and documents and that the Merger will be consummated
at the Effective Time pursuant to the terms and conditions set forth in the
Merger Agreement without the waiver or modification of any such terms and
conditions. Furthermore, we have assumed that all representations contained in
the Merger Agreement, as well as the factual representations contained in the
Representation Letters, are, and at the Effective Time will be, true and
complete in all material respects. We have not attempted to verify
independently such representations, but in the course of our representation,
nothing has come to our attention that would cause us to question the accuracy
thereof.
The conclusions expressed herein represent our judgment as to the proper
treatment of certain aspects of the Merger under the income tax laws of the
United States based upon the Code, Treasury Regulations, case law, and rulings
and other pronouncements of the Internal Revenue Service (the "IRS") as in
effect on the date of this opinion. No assurances can be given that such laws
will not be amended or otherwise changed prior to the Effective Time, or at any
other time, or that such changes will not affect the conclusions expressed
herein. Nevertheless, we undertake no responsibility to advise you of any
developments after the Effective Time in the application or interpretation of
the income tax laws of the United States.
Our opinion represents our best judgment of how a court would decide if
presented with the issues addressed herein and is not binding upon either the
IRS or any court. Thus, no assurances can be given that a position taken in
reliance on our opinion will not be challenged by the IRS or rejected by a
court.
This opinion addresses only the specific United States federal income tax
consequences of the Merger set forth below, and does not address any other
federal, state, local, or foreign income, estate, gift, transfer, sales, use, or
other tax consequences that may result from the Merger or any other transaction
(including any transaction undertaken in connection with the Merger). We express
no opinion regarding the tax consequences of the Merger to shareholders of Omnia
that are subject to special tax rules, and we express no opinion regarding the
tax consequences of the Merger arising in connection with the ownership of
options or warrants for Omnia stock.
On the basis of, and subject to, the foregoing, and in reliance upon the
representations and assumptions described above, we are of the following
opinions:
<PAGE> 3
OMNIA COMMUNICATIONS, INC.
JUNE 11, 1999
PAGE 3
1. The Merger will constitute a reorganization within the meaning of
Section 368(a) and
2. The discussion under the section "Federal Income Tax Consequences" in the
Registration Statement accurately describes the material federal income tax
considerations relevant to Omnia stockholders receiving CIENA Common Stock in
the Merger.
No opinion is expressed as to any federal income tax consequence of the
Merger except as specifically set forth herein, and this opinion may not be
relied upon except with respect to the consequences specifically discussed
herein.
This opinion has been prepared solely for use in connection with the
Registration Statement and speaks as of the date hereof. We hereby consent to
the filing of this opinion as an exhibit to the Registration Statement and
further consent to the use of our name in the Registration Statement in
connection with references to this opinion and the tax consequences of the
Merger. In giving this consent, however, we do not hereby admit that we are in
the category of persons whose consent is required under Section 7 of the
Securities Act of 1933, as amended.
Very truly yours,
HALE AND DORR LLP
