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As filed with the Securities and Exchange Commission on July 23, 1999
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
CIENA CORPORATION
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(Exact name of registrant as specified in its charter)
DELAWARE 23-2725311
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(State or other jurisdiction (I.R.S. employer identification no.)
of incorporation or organization)
1201 WINTERSON ROAD
LINTHICUM, MD 21090
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(Address of principal executive offices)
OMNIA COMMUNICATIONS, INC. 1997 STOCK PLAN,
AS AMENDED
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(Full title of the plan)
MICHAEL O. MCCARTHY
VICE PRESIDENT, ASSISTANT GENERAL COUNSEL
AND SECRETARY
CIENA CORPORATION
1201 WINTERSON ROAD
LINTHICUM, MD 21090
(410) 865-8500
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(Name, address and telephone number, including area code, of agent for service)
Copy to:
AMY BOWERMAN FREED
HOGAN & HARTSON L.L.P.
111 SOUTH CALVERT STREET
BALTIMORE, MD 21202
(410) 659-2700
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=============================================================================================================
Proposed Proposed
Title of securities Amount to be maximum offering maximum aggregate Amount of
to be registered registered price per share (1) offering price (1) registration fee (1)
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<S> <C> <C> <C> <C>
COMMON STOCK, PAR 755,356 $13.87 $ 10,476,788 $ 2,913
VALUE $.01
=============================================================================================================
</TABLE>
(1) The proposed maximum offering price per share is the weighted average
exercise price of outstanding options. The filing fee is computed under Rule
457(h)(1) based on the aggregate price at which the options may be
exercised.
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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
separately sent or given to employees participating in the Omnia Communications,
Inc. 1997 Stock Plan, As Amended (the "Stock Plan"), 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.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Company hereby incorporates by reference into this Registration
Statement the following documents filed by it with the Commission:
(a) The Company's annual report on Form 10-K for the fiscal year
ended October 31, 1998, filed on December 10, 1998, and amended
on April 5, 1999;
(b) The Company's reports on Form 10-Q filed on February 18, 1999
and May 21, 1999, the Company's report on Form 8-K filed on
April 1, 1999, and amended on April 5, 1999, the Company's
report on Form 8-K filed on April 5, 1999 and the Company's
report on Form 8-K filed on July 21, 1999.
(c) The description of the Company's common stock contained in the
Company's Registration Statement on Form 8-A, filed with the
Commission on January 13, 1997;
In addition, all documents and reports filed by the Company subsequent
to the date hereof pursuant to Sections 13(a), 13(c), 14, or 15(d) of the
Securities Exchange Act, as amended (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 a part hereof
from the date of 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 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 of 1933 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
therefore is unenforceable. In the event that a claim for indemnification
against such liabilities is asserted by such person in connection with the
offering of the Common Stock (other than for 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) 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 of whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of the issue.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit
Number Description
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4.1 Form of Common Stock Certificate (filed as Exhibit 4.1 to the Initial
Form S-1 and incorporated herein by reference).
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4.2 Rights Agreement dated December 29, 1997 (filed as Exhibit 4.2 to the
Registrant's Form 8-K dated December 29, 1997 and incorporated herein by
reference).
4.3 Amendment to Rights Agreement (filed as Exhibit 4.3 to the Registrant's
Form 8-K dated October 14, 1998 and incorporated herein by reference).
5.1 Opinion of Hogan & Hartson L.L.P. regarding the legality of the
securities being registered.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Hogan & Hartson L.L.P. (included in their opinion filed as
Exhibit 5.1 hereto).
24.1 Power of Attorney (included on signature page).
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ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(a) 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 of 1933;
(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)(i) and (a)(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.
(b) That, for the purpose 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.
(c) 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.
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The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) 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 undertaking concerning indemnification is set forth under the
response to Item 6.
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SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Linthicum, State of Maryland, on July 23, 1999
CIENA Corporation
By: /S/ PATRICK H. NETTLES, Ph.D.
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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.
We, the undersigned officers and directors of CIENA Corporation, hereby
severally and individually constitute and appoint Patrick H. Nettles, Joseph R.
Chinnici and Michael O. McCarthy, and each of them, the true and lawful
attorneys and agents of each of us to execute in the name, place and stead of
each of us (individually and in any capacity stated below) any and all
amendments to this Registration Statement on Form S-8, and all instruments
necessary or advisable in connection therewith and to file the same with the
Securities and Exchange Commission, each of said attorneys and agents to have
power to act with or without the other and to have full power and authority to
do and perform in the name and on behalf of each of the undersigned every act
whatsoever necessary or advisable to be done in the premises as fully and to all
intents and purposes as any of the undersigned might or could do in person, and
we hereby ratify and confirm our signatures as they may be signed by our said
attorneys and agents and each of them to any and all such amendment and
amendments.
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By: /s/ PATRICK H. NETTLES
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Patrick H. Nettles, Ph.D.
President and Chief
Executive Officer
/s/ JOSEPH R. CHINNICI
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Joseph R. Chinnici
Sr. Vice President, Chief Financial Officer
Principal Financial Officer
/s/ ANDREW C. PETRIK
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Andrew C. Petrik
Vice President, Controller and Treasurer
Principal Accounting Officer
/s/ HARVEY B. CASH
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Harvey B. Cash
Director
/s/ BILLY B. OLIVER
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Billy B. Oliver
Director
/s/ MICHAEL J. ZAK
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Michael J. Zak
Director
/s/ STEPHEN P. BRADLEY
----------------------------
Stephen P. Bradley
Director
EXHIBIT INDEX
Exhibit
Number Description
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4.1 Form of Common Stock Certificate (filed as Exhibit 4.1 to the Initial
Form S-1 and incorporated herein by reference).
4.2 Rights Agreement dated December 29, 1997 (filed as Exhibit 4.2 to the
Registrant's Form 8-K dated December 29, 1997 and incorporated herein by
reference).
4.3 Amendment to Rights Agreement (filed as Exhibit 4.3 to the Registrant's
Form 8-K dated October 14, 1998 and incorporated herein by reference).
5.1 Opinion of Hogan & Hartson L.L.P. regarding the legality of the
securities being registered.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Hogan & Hartson L.L.P. (included in their opinion filed as
Exhibit 5.1 hereto).
24.1 Power of Attorney (included on signature page).
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Exhibit 5.1
Opinion of Hogan & Hartson L.L.P.
July 23, 1999
Board of Directors
CIENA Corporation
1201 Winterson Road
Linthicum, Md. 21090
Dear Gentlemen:
This firm has acted as special 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 755,356 shares (the "Shares") of
Common Stock, par value $.01 per share, of the Company ("Common Stock"), issued
or issuable under the Omnia Communications, Inc. 1997 Stock Plan, As Amended
(the "Stock 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 Stock Plan.
3. The Third Restated Certificate of Incorporation of the Company,
as amended, as certified on April 19, 1999 by the Secretary of
State of the State of Delaware and on the date hereof by the
Secretary of the Company as being complete, accurate and in
effect.
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CIENA Corporation
July 23, 1999
Page 2
4. A Certificate of Good Standing dated July 22, 1999, from the
Secretary of State of the State of Delaware, certifying that the
Company is duly incorporated under the laws of the State of
Delaware and is in good standing.
5. 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.
6. Resolutions of the Board of Directors of the Company adopted on
March 14, 1999, as certified by the Secretary of the Company on
the date hereof as then being complete, accurate and in effect,
relating to the merger between the Company and Omnia
Communications, Inc., assumption of the Stock Plan and the
issuance of shares thereunder and arrangements in connection
therewith.
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. In rendering this opinion we have relied as to factual
matters, without independent investigation, upon the representations, warranties
and certifications made by the Company. This opinion is given in the context of
the foregoing.
This opinion is based as to matters of law solely on the 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.
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CIENA Corporation
July 23, 1999
Page 3
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 Stock Plan, 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,
/s/ HOGAN & HARTSON L.L.P.
-----------------------------
HOGAN & HARTSON L.L.P.
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EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of CIENA Corporation of our report dated November 25,
1998 appearing in CIENA Corporation's Annual Report on Form 10-K for the year
ended October 31, 1998. We also consent to the incorporation by reference of
our report dated November 25, 1998, except as to Note 2 "Lightera" and "Omnia"
which are as of July 20, 1999 which appears in CIENA Corporation's Current
Report on Form 8-K dated July 21, 1999.
PricewaterhouseCoopers LLP
McLean, Virginia
July 20, 1999
