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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 22, 2000
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
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(I.R.S. Employer Identification No.)
1201 Winterson Road
Linthicum, Maryland 21090
(410) 865-8500
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(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
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CIENA Corporation 1999 Non-Officer Stock Option Plan
(Full title of the Plan)
-------------------------------
Michael O. McCarthy III
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
-------------------------------
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) 6,000,000 $ 99.09 $ 594,562,500 $ 156,965
- ---------------------------------------------------------------------------------------------------------------------
</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 February 15, 2000, as
reported on the NASDAQ National Market.
(2) Includes Series A Junior Participating Preferred Share Purchase Rights
attached thereto, for which no separate fee is payable pursuant to Rule 457(i).
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Exhibit Index Appears on page 7.
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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 (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"). These documents and the
documents incorporated by reference pursuant to Item 3 of Part II of this
registration statement, taken together, constitute a prospectus that meets the
requirements of 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, 1999 and filed December 10, 1999 and the
Registrant's Quarterly Report on Form 10-Q for the
quarter ended January 31, 2000 and filed February 17,
2000;
(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, 1999; 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 to this
registration statement 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.
Section 145 of the Delaware General Corporation Law permits
indemnification of officers, directors and other corporate agents under certain
circumstances and subject to certain limitations. The Registrant's Third Amended
and Restated Certificate of Incorporation and bylaws provide that the Registrant
shall indemnify its directors, officers, employees and agents to the full extent
permitted by Delaware General Corporation Law, including in circumstances in
which indemnification is otherwise discretionary under Delaware law. In
addition, the Registrant has entered into separate indemnification agreements
with its directors, officers and certain employees which require the Registrant,
among other things, to indemnify them against certain liabilities which may
arise by reason of their status or service (other than liabilities arising from
willful misconduct of a culpable nature) and to maintain directors' and
officers' liability insurance, if available on reasonable terms. The Registrant
has directors' and officers' liability insurance with up to $100 million
coverage per year. These indemnification provisions and the indemnification
agreement between the Registrant and its officers and directors may be
sufficiently broad to permit indemnification of the Registrant's officers and
directors for liabilities (including reimbursement of expenses incurred) arising
under the Securities Act.
* * *
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 Securities and
Exchange Commission such indemnification is against public policy as expressed
in the 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 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
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<S> <C>
4.1 Form of Common Stock Certificate (filed as
Exhibit 4.1 to the Company's Registration
Statement on Form S-1, Registration
No.333-17729 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).
</TABLE>
2
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<TABLE>
<S> <C>
5.1 Opinion of Hogan & Hartson L.L.P. regarding
the legality of the shares being registered
(filed herewith).
10.22 CIENA Corporation 1999 Non-Officer Stock
Option Plan and Form of Stock Option
Agreement (filed as Exhibit 10.22 to the
Registrant's Form 10-K for the fiscal
year ended October 31, 1999).
23.1 Consent of Hogan & Hartson L.L.P. (included
in Exhibit 5.1).
23.2 Consent of PricewaterhouseCooopers LLP
(filed herewith).
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 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 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.
Provided, however, that paragraphs (a)(1)(i)
and (a)(1)(ii) do not apply if the registration
statement is on Form S-3, Form S-8 or Form F-3, 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 Securities
Exchange Act that are incorporated by reference in
the registration statement.
(2) 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,
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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 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.
(c) 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 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 Linthicum, State of Maryland, on this 22nd day
of February, 2000.
CIENA CORPORATION
By: /s/ Patrick H Nettles, Ph.D.
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Patrick H. Nettles, Ph.D.
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, Ph.D.,
Joseph R. Chinnici and Michael O. McCarthy III, and each of them as 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,
this registration statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ Patrick H. Nettles, Ph.D. Director, President and Chief Executive February 22, 2000
- ----------------------------------------------- Officer
Patrick H. Nettles, Ph.D.
/s/ Joseph R. Chinnici Senior Vice President, February 22, 2000
- ----------------------------------------------- Chief Financial Officer,
Joseph R. Chinnici Principal Financial Officer
/s/ Andrew C. Petrik Vice President, Controller and February 22, 2000
- ----------------------------------------------- Treasurer, Principal Accounting Officer
Andrew C. Petrik
/s/ Harvey B. Cash Director February 22, 2000
- -----------------------------------------------
Harvey B. Cash
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ Billy B. Oliver Director February 22, 2000
- -----------------------------------------------
Billy B. Oliver
/s/ Michael J. Zak Director February 22, 2000
- -----------------------------------------------
Michael J. Zak
/s/ Stephen P. Bradley Director February 22, 2000
- -----------------------------------------------
Stephen P. Bradley
/s/ John R. Dillon Director February 22, 2000
- -----------------------------------------------
John R. Dillon
/s/ Gerald H. Taylor Director February 22, 2000
- -----------------------------------------------
Gerald H. Taylor
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------ -----------
<S> <C>
4.1 Form of Common Stock Certificate (filed as Exhibit 4.1 to the
Company's Registration Statement on Form S-1, Registration No.
333-17729 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).
5.1 Opinion of Hogan & Hartson L.L.P. regarding the legality of the
securities being registered (filed herewith).
10.22 CIENA Corporation 1999 Non-Officer Stock Option Plan and Form of
Stock Option Agreement (filed as Exhibit 10.22 to the Registrant's
Form 10-K for the fiscal year ended October 31, 1999).
23.1 Consent of Hogan & Hartson L.L.P. (included in Exhibit 5.1).
23.2 Consent of PricewaterhouseCoopers LLP (filed herewith).
24.1 Power of Attorney (included on signature page).
</TABLE>
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<PAGE> 1
Exhibit 5.1
February 22, 2000
Board of Directors
CIENA Corporation
1201 Winterson Road
Linthicum, Md. 21090
Gentlemen:
We are acting as special counsel to CIENA Corporation, a
Delaware corporation (the "COMPANY"), in connection with its registration
statement on Form S-8, as amended (the "REGISTRATION STATEMENT"), filed with the
Securities and Exchange Commission relating to the registration of up to
6,000,000 shares (the "SHARES") of the Company's common stock, par value $ .01
per share, issuable under the CIENA Corporation 1999 Non-Officer Stock Option
Plan (the "PLAN"). 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. A copy of the Plan.
3. The Third Restated Certificate of Incorporation of
the Company, as amended, as certified by the
Secretary of the State of the State of Delaware on
February 16, 2000 and by the Secretary of the Company
on the date hereof as being complete, accurate, and
in effect.
4. 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
5. Resolutions of the Board of Directors of the Company
adopted at a meeting held on August 18, 1999, as
certified by the Secretary of the Company on the date
hereof as being complete, accurate, and in effect,
relating to the issuance and sale of the Shares and
arrangements in connection therewith.
In our examination of the aforesaid 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). 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 the Shares, when issued and delivered in the manner and on the
terms contemplated in the Registration Statement and the Plan, will be validly
issued, fully paid, and non-assessable.
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. 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.
-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 of CIENA Corporation of our report dated November 24, 1999
appearing in CIENA Corporation's Annual Report on Form 10-K for the year ended
October 31, 1999.
PricewaterhouseCoopers LLP
McLean, Virginia
February 17, 2000
