<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 18, 2001
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CIENA CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
DELAWARE 23-2725311
(STATE OR OTHER JURISDICTION OF (IRS EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
</TABLE>
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)
------------------------
MICHAEL O. MCCARTHY III
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
1201 WINTERSON ROAD
LINTHICUM, MARYLAND 21090
(410) 865-8500
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
Copies to:
MICHAEL J. SILVER
AMY BOWERMAN FREED
HOGAN & HARTSON L.L.P.
111 S. CALVERT STREET, SUITE 1600
BALTIMORE, MARYLAND 21202
(410) 659-2700
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: [ ]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, as amended (the "Securities Act") check the following box: [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act 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(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
---------------
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [X]
CALCULATION OF REGISTRATION FEE
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<TABLE>
<S> <C> <C> <C>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING
SECURITIES TO BE REGISTERED(1) REGISTERED(1) SHARE PRICE(1)(2)
----------------------------------------------------------------------------------------------------------------------
Debt Securities(3)..............................
Preferred Stock(3).............................. $1,500,000,000 -- $1,500,000,000
Depositary Shares(3)............................
Warrants(3).....................................
Common Stock(3)(4)(5)...........................
Total....................................
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<S> <C>
TITLE OF EACH CLASS OF AMOUNT OF
SECURITIES TO BE REGISTERED(1) REGISTRATION FEE(2)
------------------------------------------------
Debt Securities(3)..............................
Preferred Stock(3).............................. $375,000
Depositary Shares(3)............................
Warrants(3).....................................
Common Stock(3)(4)(5)...........................
Total....................................
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</TABLE>
(1) There are being registered hereunder such indeterminate number of shares of
common stock and preferred stock, such indeterminate number of warrants to
purchase common stock, preferred stock or debt securities, such
indeterminate number of depositary shares representing an indeterminate
number of fractional shares of preferred stock, and such indeterminate
principal amount of debt securities or issue price of debt securities issued
at original issue discount, as shall have an aggregate initial offering
price not to exceed $1,500,000,000. Any securities registered hereunder may
be sold separately or as units with other securities registered hereunder.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o).
(3) In addition to the securities issued directly under this registration
statement, we are registering an indeterminate number of shares of common
stock and preferred stock as may be issued upon conversion or exchange of
the securities issued directly under this registration statement. No
separate consideration will be received for any shares of common stock or
preferred stock so issued upon conversion or exchange.
(4) Includes rights to purchase Series A Junior Participating Preferred Stock
attached to the Common Stock.
(5) The aggregate amount of Common Stock registered hereunder is limited to that
which is permissible under Rule 415(a)(4)(ii) under the Securities Act.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON THE 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
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED.
WE MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED
WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS
PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IS NOT
SOLICITING AN OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER
OR SALE IS NOT PERMITTED.
PROSPECTUS SUBJECT TO COMPLETION
JANUARY 18, 2001
CIENA CORPORATION
$1,500,000,000
DEBT SECURITIES
PREFERRED STOCK
DEPOSITARY SHARES
WARRANTS
COMMON STOCK
------------------------
We will provide the specific terms for each of these securities and their
offering prices in supplements to this prospectus. In the case of debt
securities, these terms will include, as applicable, the specific designation,
aggregate principal amount, maturity, rate or formula of interest, premium and
terms for redemption. In the case of shares of preferred stock or depositary
shares, these terms will include, as applicable, the specific title and stated
value, any dividend, liquidation, redemption, conversion, voting and other
rights. In the case of common stock, these terms will include the aggregate
number of shares offered. In the case of warrants to purchase those securities,
the terms will include term, conversion and exercise prices and other terms.
We may sell any combination of these securities in one or more offerings up
to a total dollar amount of $1,500,000,000. We may sell these securities to or
through underwriters and also to other purchasers or through agents. We will set
forth the names of any underwriters or agents in the accompanying prospectus
supplement.
Our common stock is listed on the Nasdaq National Market under the symbol
"CIEN." The closing price of our common stock on the Nasdaq National Market was
$97.06 per share on January 17, 2001. None of the other securities are currently
publicly traded.
You should read carefully this prospectus, the documents incorporated by
reference in the prospectus and any prospectus supplement before you invest. We
strongly recommend that you read carefully the risks we describe in the
accompanying prospectus supplement, as well as the risk factors in our most
current reports to the SEC, for a fuller understanding of the risks and
uncertainties that we face. See "Risk Factors" on page 7.
------------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
This prospectus may not be used to consummate sales of securities unless it
is accompanied by a prospectus supplement.
The date of this prospectus is , 2001.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
About This Prospectus....................................... 2
Where You Can Find More Information......................... 2
Incorporation by Reference.................................. 2
Summary..................................................... 4
CIENA Corporation........................................... 4
Summary of the Securities We Are Offering................... 4
Ratio of Earnings to Fixed Charges.......................... 5
Special Note Regarding Forward-Looking Information.......... 5
Risk Factors................................................ 7
Use of Proceeds............................................. 7
Description of Common Stock and Preferred Stock............. 7
Description of Depositary Shares............................ 10
Description of Debt Securities.............................. 14
Description of Warrants..................................... 20
Plan of Distribution........................................ 21
Legal Matters............................................... 23
Experts..................................................... 23
</TABLE>
<PAGE> 4
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
SEC using a "shelf" registration process. Under this shelf process we may offer,
from time to time, in one or more offerings:
- our debt securities;
- shares of our preferred stock;
- depositary shares;
- warrants to purchase our common stock, preferred stock, depositary shares
or debt securities; or
- shares of our common stock.
The total offering price of these securities will not exceed
$1,500,000,000. This prospectus provides you with a general description of the
securities we may offer. Each time we offer securities, we will provide you with
a prospectus supplement that will describe the specific amounts, prices and
terms of the securities we offer. The prospectus supplement also may add, update
or change information contained in this prospectus.
We may sell the securities to or through underwriters, dealers or agents or
directly to purchasers. We and our agents reserve the sole right to accept and
to reject in whole or in part any proposed purchase of securities. A prospectus
supplement, which we will provide to you each time we offer securities, will
provide the names of any underwriters, dealers or agents involved in the sale of
the securities, and any applicable fee, commission or discount arrangements with
them. See "Plan of Distribution."
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC under the Securities Act a registration
statement on Form S-3. This prospectus does not contain all of the information
contained in the registration statement, certain portions of which have been
omitted under the rules of the SEC. We also file annual, quarterly and special
reports, proxy statements and other information with the SEC under the Exchange
Act. The Exchange Act file number for our SEC filings is 000-21969. You may read
and copy the registration statement and any other document we file at the
following SEC public reference rooms:
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<S> <C> <C>
Judiciary Plaza 500 West Madison Street 7 World Trade Center
450 Fifth Street, N.W. 14th Floor Suite 1300
Rm. 1024 Chicago, Illinois 60661 New York, New York 10048
Washington, D.C. 20549
</TABLE>
You may obtain information on the operation of the public reference room in
Washington, D.C. by calling the SEC at 1-800-SEC-0330. We file information
electronically with the SEC. Our SEC filings are available from the SEC's
Internet site at http://www.sec.gov, which contains reports, proxy and
information statements and other information regarding issuers that file
electronically. You may read and copy our SEC filings and other information at
the offices of Nasdaq Operations, 1735 K Street, N.W., Washington, D.C. 20006.
INCORPORATION BY REFERENCE
The SEC allows us to "incorporate by reference" the documents we file with
it, which means that we can disclose important information to you by referring
you to those documents instead of reproducing that information in this
prospectus. The information incorporated by reference is considered to be part
of this prospectus, and information in documents that we file later with the SEC
will automatically update and
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<PAGE> 5
supersede information in this prospectus. We incorporate by reference the
documents listed below and any future filings we will make with the SEC under
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act:
- Our Annual Report on Form 10-K for the fiscal year ended October 31,
2000, as amended on January 18, 2001;
- Our Form 8-K filed on January 18, 2001;
- All documents filed by us pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Securities Exchange Act of 1934 after the date of this prospectus
and before the termination of the offering; and
- The description of common stock contained in our Form 8-A filed on
January 13, 1997, as amended.
We will provide a copy of the documents we incorporate by reference, at no
cost, to any person who receives this prospectus. To request a copy of any or
all of these documents, you should write or telephone us at: 1201 Winterson
Road, Linthicum, MD, (410) 865-8500, Attention: Director, Investor Relations.
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<PAGE> 6
SUMMARY
This summary contains a general summary of the information contained in
this Prospectus. It may not include all the information that is important to
you. You should read the entire Prospectus, the Prospectus Supplement delivered
with the Prospectus, and the documents incorporated by reference before making
an investment decision.
CIENA CORPORATION
CIENA is a leader in the rapidly growing intelligent optical networking
equipment market. We offer a comprehensive portfolio of products for
communications service providers worldwide. Our customers include long-distance
carriers, competitive and incumbent local exchange carriers, Internet service
providers, wireless and wholesale carriers. CIENA offers intelligent optical
transport and switching systems that enable service providers to provision,
manage and deliver high-bandwidth services to their customers. We have pursued a
strategy to develop and leverage the power of disruptive technologies to change
the fundamental economics of building carrier-class tele- and
data-communications networks, thereby providing our customers with a competitive
advantage. CIENA's intelligent optical networking products are designed to
enable carriers to deliver any time, any size, any priority bandwidth to their
customers.
We were incorporated in Delaware in 1992. Our principal executive offices
are located at 1201 Winterson Road, Linthicum, Maryland 21090. Our telephone
number is (410) 865-8500.
SUMMARY OF THE SECURITIES WE ARE OFFERING
We may offer any of the following securities from time to time:
- debt securities
- preferred stock
- depositary shares
- warrants to purchase common stock, preferred stock, depositary shares or
debt securities; or
- common stock
When we use the term "securities" in this prospectus, we mean any of the
securities we may offer with this prospectus, unless we say otherwise. The total
dollar amount of all securities that we may issue will not exceed
$1,500,000,000. If we issue debt securities at a discount from their original
stated principal amount, then, for purposes of calculating the total dollar
amount of all securities issued under this prospectus, we will treat the initial
offering price of the debt securities as the total original principal amount of
the debt securities. This prospectus, including the following summary, describes
the general terms that may apply to the securities; the specific terms of any
particular securities that we may offer will be described in a separate
supplement to this prospectus.
DEBT SECURITIES
Our debt securities may be senior or subordinated in right of payment. For
any particular debt securities we offer, the applicable prospectus supplement
will describe the specific designation, the aggregate principal or face amount
and the purchase price; the ranking, whether senior or subordinated; the stated
maturity; the redemption terms, if any; the conversion terms, if any; the rate
or manner of calculating the rate and the payment dates for interest, if any;
the amount or manner of calculating the amount payable at maturity and whether
that amount may be paid by delivering cash, securities or other property; and
any other specific terms. We will issue the senior and subordinated debt
securities under separate indentures between us and a trustee we will identify
in an applicable prospectus supplement.
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<PAGE> 7
PREFERRED STOCK AND DEPOSITARY SHARES
We may offer our preferred stock in one or more series. For any particular
series we offer, the applicable prospectus supplement will describe the specific
designation; the aggregate number of shares offered; the rate and periods, or
manner of calculating the rate and periods, for dividends, if any; the stated
value and liquidation preference amount, if any; the voting rights, if any; the
terms on which the series will be convertible into or exchangeable for other
securities or property, if any; the redemption terms, if any; and any other
specific terms. We may also offer depositary shares, each of which would
represent an interest in a fractional share or multiple shares of preferred
stock. We may issue the depositary shares under deposit agreements between us
and one or more depositaries.
WARRANTS
We may offer warrants to purchase our debt securities, preferred stock,
depositary shares or common stock.
For any particular warrants we offer, the applicable prospectus supplement
will describe the underlying security; the expiration date; the exercise price
or the manner of determining the exercise price; the amount and kind, or the
manner of determining the amount and kind, of security to be delivered by us
upon exercise; and any other specific terms. We may issue the warrants under
warrant agreements between us and one or more warrant agents.
COMMON STOCK
We may offer shares of our common stock. Our common stock currently is
traded on Nasdaq under the symbol "CIEN".
LISTING
If any securities are to be listed or quoted on a securities exchange or
quotation system, the applicable prospectus supplement will say so.
RATIO OF EARNINGS TO FIXED CHARGES
We present below the ratio of our earnings to our fixed charges for each of
the fiscal years ended October 31, 2000, 1999, 1998, 1997 and 1996
<TABLE>
<CAPTION>
YEARS ENDED OCTOBER 31,
----------------------------------------
1996 1997 1998 1999 2000
----- ------ ------ ----- ------
<S> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges........................ 33.8x 153.1x 36.2x -- 25.9x
===== ====== ====== ===== ======
</TABLE>
These computations include CIENA and its consolidated subsidiaries. For
these ratios "earnings" represents income (loss) before taxes plus fixed
charges. "Fixed charges" consists of interest on all indebtedness and interest
expense under operating leases deemed by us to be representative of the interest
factor. Due to the loss before income taxes in the year ended October 31, 1999,
the ratio coverage was less than 1:1. CIENA must have generated additional
earnings of $5,991,000 to achieve a coverage ratio of 1:1 for the year ended
October 31, 1999.
SPECIAL NOTE REGARDING FORWARD-LOOKING INFORMATION
This prospectus, any prospectus supplement and the documents we incorporate
by reference contain forward-looking statements. We generally identify
forward-looking statements using words like "believe," "intend," "expect,"
"may," "should," "plan," "project," "contemplate," "anticipate" or similar
statements. We base these statements on our beliefs as well as assumptions we
made using information currently available to us. Because these statements
reflect our current views concerning future events, these
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statements involve risks, uncertainties and assumptions. These risks,
uncertainties and assumptions are described in the risk factors set forth in any
prospectus supplement and in the reports we file with the SEC that are
incorporated by reference in this prospectus. Actual results may differ
significantly from the results discussed in these forward-looking statements. We
do not undertake to update our forward-looking statements or risk factors to
reflect future events or circumstances.
6
<PAGE> 9
RISK FACTORS
Investing in our securities involves a high degree of risk. Before making
an investment decision, you should carefully consider the risk factors set forth
in the accompanying prospectus supplement, our Annual Report on Form 10-K for
the year ended October 31, 2000, filed on December 7, 2000, as well as other
information we include or incorporate by reference in this prospectus and the
additional information in the other reports we file with the SEC. The risks and
uncertainties we have described are not the only ones facing our company.
Additional risks and uncertainties not presently known to us or that we
currently deem immaterial may also affect us.
USE OF PROCEEDS
Unless we specify otherwise in a prospectus supplement, we intend to use
the net proceeds from the sales of securities to provide additional funds for
our operations and for other general corporate purposes which may include, among
other things:
- the repayment of indebtedness;
- working capital;
- capital expenditures; and
- acquisitions.
The precise amount and timing of the application of proceeds will depend
upon our funding requirements in the future. We may set forth additional
information on the use of net proceeds from the sale of securities we offer
under this prospectus in a prospectus supplement relating to the specific
offering.
DESCRIPTION OF COMMON STOCK AND PREFERRED STOCK
The following description of our common stock and preferred stock, together
with the additional information we include in any applicable prospectus
supplements, summarizes the material terms and provisions of the common stock
and preferred stock that we may offer under this prospectus. For the complete
terms of our common stock and preferred stock, please refer to our charter and
bylaws that are filed as exhibits to our reports incorporated by reference into
the registration statement which includes this prospectus. The General
Corporation Law of Delaware, as amended, may also affect the terms of these
securities. While the terms we have summarized below will apply generally to any
future common stock or preferred stock that we may offer, we will describe the
particular terms of any series of these securities in more detail in the
applicable prospectus supplement, which may differ from the terms we describe
below to the extent indicated in the applicable prospectus supplement.
AUTHORIZED AND OUTSTANDING CAPITAL STOCK
Under the provisions of our certificate of incorporation, we have authority
to issue 480,000,000 shares of capital stock, consisting of 460,000,000 shares
of common stock, par value $.01 per share, and 20,000,000 shares of preferred
stock, par value $.01 per share. As of January 11, 2001, 287,595,957 shares of
common stock (adjusted to reflect a 2-for-1 stock split paid on September 18,
2000), and no shares of preferred stock were issued and outstanding. In
addition, 30,306,339 shares of common stock were issuable upon exercise of stock
options outstanding on that date, and we have agreed to issue approximately
27,000,000 additional shares of common stock in connection with our acquisition
of Cyras Systems, Inc. announced on December 19, 2000. The outstanding shares of
common stock are fully paid and nonassessable.
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<PAGE> 10
COMMON STOCK
The rights of the holders of common stock discussed below are subject to
those rights our board of directors may decide to confer on holders of preferred
stock that may be issued in the future. Any rights conferred on preferred
stockholders may adversely affect the rights of holders of common stock.
VOTING RIGHTS. Each holder of common stock is entitled to attend all
special and annual meetings of the stockholders and to vote upon any matter
properly considered and acted upon by the stockholders, including, without
limitation, the election of directors. Holders of common stock are entitled to
one vote per share.
LIQUIDATION RIGHTS. In the event of any dissolution, liquidation or
winding up of CIENA, whether voluntary or involuntary, the holders of common
stock and holders of any class or series of stock entitled to participate with
them, will be entitled to participate in the distribution of any assets
remaining after we have paid all of our debts and liabilities and have paid, or
set aside for payment, to the holders of any class of stock having preference
over the common stock in the event of dissolution, liquidation or winding up,
the full preferential amounts, if any, to which they are entitled.
DIVIDENDS. Dividends may be paid on the common stock and on any class or
series of stock entitled to participate with the common stock in the payment of
dividends when and as declared by the board.
OTHER RIGHTS AND RESTRICTIONS. The holders of common stock have no
preemptive or subscription rights to purchase additional securities issued by
us, nor any rights to convert their common stock into other securities of CIENA
or to have their shares redeemed by us. Our common stock is not subject to
redemption by us. The rights, preferences and privileges of common stockholders
are subject to the rights of the holders of any series of preferred stock which
we may designate in the future. Our charter and bylaws do not restrict the
ability of a holder of common stock to transfer his or her shares of common
stock. When we issue shares of common stock under this prospectus, the shares
will be fully paid and non-assessable.
LISTING. Our common stock is listed on the Nasdaq National Market.
TRANSFER AGENT AND REGISTRAR. The transfer agent and registrar for our
common stock is Equiserve, Boston, MA.
PREFERRED STOCK
GENERAL. We are authorized to issue, without stockholder approval, up to
20,000,000 shares of preferred stock having rights senior to those of our common
stock. As of the date of this prospectus, we have no preferred stock
outstanding. However, we have classified shares of Series A junior participating
preferred stock in connection with the establishment of our stockholder rights
plan, as described below, and we have issued rights that are in some cases
exercisable for shares of Series A junior participating preferred stock. Our
board is authorized to issue the preferred stock in one or more series and to
fix and designate the rights, preferences, privileges and restrictions of the
preferred stock, including:
- dividend rights;
- conversion rights;
- voting rights;
- redemption rights and terms of redemption; and
- liquidation preferences.
Our board may fix the number of shares constituting any series and the
designations of these series.
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The rights, preferences, privileges and restrictions of the preferred stock
of each series will be fixed by a certificate of designation relating to each
series. The prospectus supplement relating to each series will specify the terms
of the preferred stock, including:
- the maximum number of shares in the series and the distinctive
designation;
- the terms on which dividends will be paid, if any;
- the terms on which the shares may be redeemed, if at all;
- the liquidation preference, if any;
- the terms of any retirement or sinking fund for the purchase or
redemption of the shares of the series;
- the terms and conditions, if any, on which the shares of the series will
be convertible into, or exchangeable for, shares of any other class or
classes of capital stock;
- the voting rights, if any, on the shares of the series; and
- any or all other preferences and relative, participating, operational or
other special rights or qualifications, limitations or restrictions of
the shares.
We will describe the specific terms of a particular series of preferred
stock in the prospectus supplement relating to that series. The description of
preferred stock above and the description of the terms of a particular series of
preferred stock in the prospectus supplement are not complete. You should refer
to the applicable certificate of designation for complete information. The
prospectus supplement will also contain a description of U.S. federal income tax
consequences relating to the preferred stock, if material.
VOTING RIGHTS. The General Corporation Law of Delaware provides that the
holders of preferred stock will have the right to vote separately as a class on
any proposal involving fundamental changes in the rights of holders of that
preferred stock. This right is in addition to any voting rights that may be
provided for in the applicable certificate of designation.
OTHER. Our issuance of preferred stock may have the effect of delaying or
preventing a change in control. Our issuance of preferred stock could decrease
the amount of earnings and assets available for distribution to the holders of
common stock or could adversely affect the rights and powers, including voting
rights, of the holders of common stock. The issuance of preferred stock could
have the effect of decreasing the market price of our common stock.
IMPORTANT CHARTER AND STATUTORY PROVISIONS
CLASSIFIED BOARD. Our certificate of incorporation provides for the
division of our board into three classes of directors, serving staggered
three-year terms. Our certificate of incorporation further provides that the
approval of the holders of at least two-thirds of the shares entitled to vote
thereon and the approval of a majority of the entire board are necessary for the
alteration, amendment or repeal of certain sections of our certificate of
incorporation relating to the election and classification of our board, action
by written consent, limitation of director liability, indemnification and the
vote requirements for amendments to our certificate of incorporation. These
provisions may deter hostile takeovers or delay changes in control or
management.
ACTION BY WRITTEN CONSENTS. Our certificate of incorporation eliminates
action by written consent of stockholders. This provision, which makes it
difficult for stockholders to act outside of a special meeting, may also deter
hostile takeovers or delay changes in control or management.
IMPORTANT STATUTORY PROVISIONS. We are subject to the provisions of
Section 203 of the Delaware General Corporation Law. In general, this statute
prohibits a publicly held Delaware corporation from
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engaging in a "business combination" with an "interested stockholder" for a
period of three years after the date of the transaction in which the person
became an interested stockholder, unless:
- prior to that date, the corporation's board of directors approved either
the business combination or the transaction that resulted in the
stockholder becoming an interested stockholder;
- upon consummation of the transaction that resulted in the person becoming
an interested stockholder, the interested stockholder owned at least 85%
of the voting stock of the corporation outstanding at the time the
transaction commenced, excluding, for purposes of determining the number
of shares outstanding, shares owned by directors or employee stock plans;
or
- on or after the date the stockholder became an interested stockholder,
the business combination is approved by the corporation's board of
directors and authorized by the affirmative vote, and not by written
consent, of at least two-thirds of the outstanding voting stock of the
corporation excluding that stock owned by the interested stockholder.
A "business combination" includes a merger, asset sale or other transaction
resulting in a financial benefit to the interested stockholder. An "interested
stockholder" is a person, other than the corporation and any direct or indirect
wholly-owned subsidiary of the corporation, who together with affiliates and
associates, owns or, as an affiliate or associate, within three years prior, did
own 15% or more of the corporation's outstanding voting stock.
Section 203 expressly exempts from the requirements described above any
business combination by a corporation with an interested stockholder who becomes
an interested stockholder in a transaction approved by that corporation's board
of directors.
STOCKHOLDER RIGHTS PLAN. In December 1997, our board adopted a
Stockholders Right Plan. This plan is designed to deter any potential coercive
or unfair takeover tactics in the event of an unsolicited takeover attempt. It
is not intended to prevent a takeover of CIENA on terms that are favorable and
fair to all shareholders and will not interfere with a merger approved by the
board of directors. Each right entitles shareholders to buy one one-thousandth
of a share of our Series A junior participating preferred stock. The rights will
be exercisable only if a person or a group acquires or announces a tender or
exchange offer to acquire 15% or more of our common stock or if we enter into
other business combination transactions not approved by the board of directors.
In the event the rights become exercisable, the rights plan allows for our
shareholders to acquire stock of CIENA or the surviving corporation, whether or
not CIENA is the surviving corporation, having a value twice that of the
exercise price of the rights. The rights were distributed to shareholders of
record in January 1998. The rights will expire December 2007 and are redeemable
for $.001 per right by our board under certain circumstances.
LIMITATIONS OF DIRECTOR LIABILITY. Delaware law authorizes corporations to
limit or eliminate the personal liability of directors to corporations and their
stockholders for monetary damages for breach of directors' fiduciary duty of
care. Although Delaware law does not change directors' duty of care, it enables
corporations to limit available relief to equitable remedies such as injunction
or rescission. Our certificate of incorporation limits the liability of
directors to us or our stockholders to the full extent permitted by Delaware
law. Specifically, directors are not personally liable for monetary damages to
CIENA or its stockholders for breach of the director's fiduciary duty as a
director, except for liability for:
- any breach of the director's duty of loyalty to CIENA or its
stockholders;
- acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law;
- unlawful payments of dividends or unlawful stock repurchases or
redemptions; and
- any transaction from which the director derived an improper personal
benefit.
INDEMNIFICATION. To the maximum extent permitted by law, our bylaws
provide for mandatory indemnification of directors and officers against any
expense, liability or loss to which they may become subject, or which they may
incur as a result of being or having been a director or officer. In addition, we
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must advance or reimburse directors and officers for expenses they incur in
connection with indemnifiable claims. We also have entered into indemnification
agreements with our officers and directors providing for similar mandatory
indemnification and expense reimbursement.
We also maintain directors' and officers' liability insurance.
DESCRIPTION OF DEPOSITARY SHARES
The following description is a general summary of the terms of the
depositary shares which we may issue. This summary does not purport to be
complete and is subject to, and is qualified in its entirety by reference to,
all of the provisions of the applicable deposit agreement and related depositary
receipts. Specific deposit agreements and depositary receipts will contain
additional important terms and provisions and will be filed as exhibits to
reports incorporated by reference into the registration statement which includes
this prospectus before we issue and depositary shares. This summary of deposit
agreements, depositary shares and depositary receipts relates to terms and
conditions applicable to these types of securities generally. The particular
terms of any series of depositary shares will be summarized in the applicable
prospectus supplement and may differ from the terms summarized below, to the
extent indicated in the applicable prospectus supplement.
GENERAL
We may issue depositary receipts for depositary shares, each of which will
represent a fractional interest of a share of a particular series of preferred
stock, as specified in the applicable prospectus supplement. Shares of preferred
stock of each series represented by depositary shares will be deposited under a
separate deposit agreement between the "depositary" named in the deposit
agreement and us. Subject to the terms of the deposit agreement, each owner of a
depositary receipt will be entitled, in proportion to the fractional interest of
a share of a particular series of preferred stock represented by the depositary
shares evidenced by that depositary receipt, to all the rights and preferences
of the preferred stock represented by those depositary shares, including
dividend, voting, conversion, redemption and liquidation rights.
The depositary shares will be evidenced by depositary receipts issued
pursuant to the applicable deposit agreement. Immediately following the issuance
and delivery of our preferred stock to the depositary, we will cause the
depositary to issue, on our behalf, the depositary receipts. Copies of the
applicable form of deposit agreement and depositary receipt may be obtained from
us upon request, and the statements made in this summary relating to the deposit
agreement and the depositary receipts to be issued under the deposit agreement
are summaries of provisions of the deposit agreement and the related depositary
receipts.
DIVIDENDS AND OTHER DISTRIBUTIONS
The depositary will distribute all cash dividends or other cash
distributions received in respect of the preferred stock to the record holders
of depositary receipts evidencing the related depositary shares in proportion to
the number of such depositary receipts owned by such holders, subject to the
obligations of holders to file proofs, certificates and other information and to
pay some charges and expenses to the depositary.
In the event of a distribution other than in cash, the depositary will
distribute property received by it to the record holders of depositary receipts
entitled to that property, subject to the obligations of holders to file proofs,
certificates and other information and to pay some charges and expenses to the
depositary, unless the depositary determines that it is not feasible to make the
distribution, in which case the depositary may, with our approval, sell the
property and distribute the net proceeds from the sale to the holders.
No distribution will be made in respect of any depositary share to the
extent that it represents any preferred stock converted into other securities.
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WITHDRAWAL OF PREFERRED STOCK
Upon surrender of the depositary receipts at the corporate trust office of
the depositary, unless the related depositary shares have previously been
redeemed or converted into other securities, the holders of those depositary
receipts will be entitled to delivery of the number of whole or fractional
shares of the preferred stock and any money or other property represented by the
depositary shares evidenced by the depositary receipts. If the holder delivers
depositary receipts evidencing a number of depositary shares greater than the
number of depositary shares representing the number of shares of preferred stock
to be withdrawn, the depositary will deliver to the holder at the same time a
new depositary receipt evidencing the balance.
REDEMPTION OF DEPOSITARY SHARES
Whenever we redeem shares of preferred stock held by the depositary, the
depositary will redeem the number of depositary shares representing shares of
the preferred stock so redeemed, provided we have paid in full to the depositary
the redemption price of the preferred stock to be redeemed plus an amount equal
to any dividends on the preferred stock accrued and unpaid to the date fixed for
redemption. The redemption price per depositary share will be equal to the
corresponding proportion of the redemption price and any other amounts per share
payable with respect to the preferred stock. If fewer than all the depositary
shares are to be redeemed, the depositary shares to be redeemed will be selected
pro rata, as nearly as may be practicable without creating fractional depositary
shares, or by another equitable method.
From and after the date fixed for redemption, all dividends in respect of
the shares of preferred stock called for redemption will cease to accrue, the
depositary shares called for redemption will no longer be deemed to be
outstanding and all rights of the holders of the depositary receipts evidencing
the depositary shares called for redemption will cease, except the right to
receive any moneys payable upon the redemption and any money or other property
to which the holders of the depositary receipts were entitled upon the
redemption and surrender thereof to the depositary.
VOTING OF THE PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of the preferred
stock are entitled to vote, the depositary will mail the information contained
in the notice of meeting to the record holders of the depositary receipts
evidencing the depositary shares which represent such preferred stock. Each
record holder of these depositary receipts on the record date will be entitled
to instruct the depositary as to the exercise of the voting rights pertaining to
the amount of preferred stock represented by the holder's depositary shares. The
depositary will vote the amount of preferred stock represented by the depositary
shares in accordance with the instructions, and we will agree to take all
reasonable action which may be deemed necessary by the depositary in order to
enable the depositary to do so. The depositary will abstain from voting the
amount of preferred stock represented by the depositary shares to the extent it
does not receive specific instructions from the holders of depositary receipts
evidencing the depositary shares. The depositary shall not be responsible for
any failure to carry out any instruction to vote, or for the manner or effect of
any such vote made, as long as such action or non-action is in good faith and
does not result from the depositary's negligence or willful misconduct.
LIQUIDATION PREFERENCE
In the event of our liquidation, dissolution or winding up, whether
voluntary or involuntary, the holders of each depositary receipt will be
entitled to the fraction of the liquidation preference accorded each share of
preferred stock represented by the depositary shares evidenced by such
depositary receipt, as set forth in the applicable prospectus supplement.
CONVERSION OF PREFERRED STOCK
The depositary shares, as such, are not convertible into our common stock
or any of our other securities or property. Nevertheless, if specified in the
applicable prospectus supplement relating to an
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offering of depositary shares, the depositary receipts may be surrendered by
their holders to the depositary with written instructions to the depositary to
instruct us to cause conversion of the preferred stock represented by the
depositary shares evidenced by the depositary receipts into whole shares of our
common stock, other shares of our preferred stock or other of our equity or debt
securities. We have agreed that upon receipt of those instructions and any
amounts payable in respect thereof, we will cause the conversion thereof
utilizing the same procedures as those provided for delivery of preferred stock
to effect such conversion. If the depositary shares evidenced by a depositary
receipt are to be converted in part only, a new depositary receipt or receipts
will be issued for any depositary shares not to be converted. No fractional
shares of common stock will be issued upon conversion, and if conversion would
result in a fractional share being issued, we will pay an amount in cash equal
to the value of the fractional interest based upon the average of the closing
prices of the common stock for a specified period of time prior to the
conversion.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
The form of depositary receipt evidencing the depositary shares which
represent the preferred stock and any provision of the deposit agreement may at
any time be amended by agreement between the depositary and us. However, any
amendment that materially and adversely alters the rights of the holders of
depositary receipts or that would be materially and adversely inconsistent with
the rights granted to the holders of the related preferred stock will not be
effective unless such amendment has been approved by the existing holders of at
least a majority of the depositary shares evidenced by the depositary receipts
then outstanding. Subject to certain exceptions in the deposit agreement, no
amendment may impair the right of any holder of depositary receipts to surrender
any depositary receipt with instructions to deliver to the holder the related
preferred stock and all money and other property, if any, represented thereby,
except in order to comply with law. Every holder of an outstanding depositary
receipt at the time any such amendment becomes effective shall be deemed, by
continuing to hold such receipt, to consent and agree to such amendment and to
be bound by the deposit agreement as amended thereby.
Unless specified otherwise in the applicable prospectus supplement, we may
terminate the deposit agreement upon not less than 30 days prior written notice
to the depositary if a majority of each class of depositary shares affected by
such termination consents, at which time the depositary will deliver or make
available to each holder of depositary receipts, upon surrender of the
depositary receipts held by such holder, such number of whole or fractional
shares of preferred stock as are represented by the depositary shares evidenced
by such depositary receipts, together with any other property held by the
depositary with respect to such depositary receipt. In addition, the deposit
agreement will automatically terminate if:
- all outstanding depositary shares shall have been redeemed,
- there shall have been a final distribution in respect of the related
preferred stock in connection with any liquidation, dissolution or
winding up of our company and such distribution shall have been
distributed to the holders of depositary receipts evidencing the
depositary shares representing such preferred stock, or
- each share of the related preferred stock shall have been converted into
our securities not represented by depositary shares.
CHARGES OF PREFERRED STOCK DEPOSITARY
We will pay all transfer and other taxes and governmental charges arising
solely from the existence of the deposit agreement. In addition, we will pay the
fees and expenses of the depositary in connection with the performance of its
duties under the deposit agreement. However, holders of depositary receipts will
pay the fees and expenses of the depositary for any duties the holders request
it to perform which are outside of those expressly provided for in the deposit
agreement.
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MISCELLANEOUS
The depositary will forward to holders of depositary receipts any reports
and communications from us which the depositary receives with respect to the
related preferred stock.
Unless specified otherwise in the applicable prospectus supplement, neither
we nor the depositary will be liable if either of us is prevented from or
delayed in performing its obligations under the deposit agreement, whether by
law or any circumstances beyond its control. The obligations of the depositary
and our company under the Deposit Agreement will be limited to performing their
duties thereunder in good faith and without negligence, in the case of any
action or inaction in the voting of preferred stock represented by the
depositary shares, gross negligence or willful misconduct. We and the depositary
will not be obligated to prosecute or defend any legal proceeding in respect of
any depositary receipts, depositary shares or shares of preferred stock
represented thereby unless satisfactory indemnity is furnished. We and the
depositary may rely on written advice of counsel or accountants, or information
provided by persons presenting shares of preferred stock represented thereby for
deposit, holders of depositary receipts or other persons believed in good faith
to be competent to give such information, and on documents believed in good
faith to be genuine and signed by a proper party.
In the event the depositary receives conflicting claims, requests or
instructions from any holders of depositary receipts, on the one hand, and us,
on the other hand, the depositary shall be entitled to act on the claims,
requests or instructions received from us.
DESCRIPTION OF DEBT SECURITIES
We may offer any combination of senior debt securities or subordinated debt
securities. Debt securities are unsecured obligations to repay advanced funds.
We may issue the senior debt securities and the subordinated debt securities
under separate indentures between us, as issuer, and the trustee or trustees
identified in the prospectus supplement. The form for each type of indenture is
filed as an exhibit to the registration statement of which this prospectus is a
part.
The prospectus supplement will describe the particular terms of any debt
securities we may offer and may differ from the terms summarized below. The
following summaries of the debt securities and the indentures are not complete.
We urge you to read the indentures filed as exhibits to the registration
statement which includes this prospectus and the description of the debt
securities included in the prospectus supplement.
GENERAL
We may issue an unlimited principal amount of debt securities in separate
series. We may specify a maximum aggregate principal amount for the debt
securities of any series. The debt securities will have terms that are
consistent with the indentures. Unless the prospectus supplement indicates
otherwise, senior debt securities will be unsecured and unsubordinated
obligations and will rank equal with all our other unsecured and unsubordinated
debt. Subordinated debt securities will be paid only if all payments due under
our senior indebtedness, including any outstanding senior debt securities, have
been made.
The indentures might not limit the amount of other debt that we may incur
or whether that debt is senior to the debt securities offered by this
prospectus, and might not contain financial or similar restrictive covenants.
The indentures might not contain any provision to protect holders of debt
securities against a sudden or dramatic decline in our ability to pay our debt.
The prospectus supplement will describe the debt securities and the price
or prices at which we will offer the debt securities. The description will
include:
- the title and form of the debt securities;
- any limit on the aggregate principal amount of the debt securities or the
series of which they are a part;
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- the person to whom any interest on a debt security of the series will be
paid;
- the date or dates on which we must repay the principal;
- the rate or rates at which the debt securities will bear interest, if
any, the date or dates from which interest will accrue, and the dates on
which we must pay interest;
- if applicable, the duration and terms of the right to extend interest
payment periods;
- the place or places where we must pay the principal and any premium or
interest on the debt securities;
- the terms and conditions on which we may redeem any debt security, if at
all;
- any obligation to redeem or purchase any debt securities, and the terms
and conditions on which we must do so;
- the denominations in which we may issue the debt securities;
- the manner in which we will determine the amount of principal of or any
premium or interest on the debt securities;
- the currency in which we will pay the principal of and any premium or
interest on the debt securities;
- the principal amount of the debt securities that we will pay upon
declaration of acceleration of their maturity;
- the amount that will be deemed to be the principal amount for any
purpose, including the principal amount that will be due and payable upon
any maturity or that will be deemed to be outstanding as of any date;
- if applicable, that the debt securities are defeasible and the terms of
such defeasance;
- if applicable, the terms of any right to convert debt securities into, or
exchange debt securities for, shares of common stock or other securities
or property;
- whether we will issue the debt securities in the form of one or more
global securities and, if so, the respective depositaries for the global
securities and the terms of the global securities;
- the subordination provisions that will apply to any subordinated debt
securities;
- any addition to or change in the events of default applicable to the debt
securities and any change in the right of the trustee or the holders to
declare the principal amount of any of the debt securities due and
payable; and
- any addition to or change in the covenants in the indentures.
We may sell the debt securities at a substantial discount below their
stated principal amount. We will describe U.S. federal income tax
considerations, if any, applicable to debt securities sold at an original issue
discount in the prospectus supplement. An "original issue discount security" is
any debt security sold for less than its face value, and which provides that the
holder cannot receive the full face value if maturity is accelerated. The
prospectus supplement relating to any original issue discount securities will
describe the particular provisions relating to acceleration of the maturity upon
the occurrence of an event of default. In addition, we will describe U.S.
federal income tax or other considerations applicable to any debt securities
that are denominated in a currency or unit other than U.S. dollars in the
prospectus supplement.
CONVERSION AND EXCHANGE RIGHTS
The prospectus supplement will describe, if applicable, the terms on which
you may convert debt securities into or exchange them for common stock or other
securities or property. The conversion or
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exchange may be mandatory or may be at your option. The prospectus supplement
will describe how the number of shares of common stock or other securities or
property to be received upon conversion or exchange would be calculated.
SUBORDINATION OF SUBORDINATED DEBT SECURITIES
Unless the prospectus supplement indicates otherwise, the following
provisions will apply to the subordinated debt securities. The indebtedness
underlying the subordinated debt securities will be payable only if all payments
due under our senior indebtedness, including any outstanding senior debt
securities, have been made. If we distribute our assets to creditors upon any
dissolution, winding-up, liquidation or reorganization or in bankruptcy,
insolvency, receivership or similar proceedings, we must first pay all amounts
due or to become due on all senior indebtedness before we pay the principal of,
or any premium or interest on, the subordinated debt securities. In the event
the subordinated debt securities are accelerated because of an event of default,
we may not make any payment on the subordinated debt securities until we have
paid all senior indebtedness or the acceleration is rescinded. If the payment of
subordinated debt securities accelerates because of an event of default, we must
promptly notify holders of senior indebtedness of the acceleration.
If we experience a bankruptcy, dissolution or reorganization, holders of
senior indebtedness may receive more, ratably, and holders of subordinated debt
securities may receive less, ratably, than our other creditors. The indenture
for subordinated debt securities may not limit our ability to incur additional
senior indebtedness.
FORM, EXCHANGE AND TRANSFER
We will issue debt securities only in fully registered form, without
coupons, and, unless the prospectus supplement indicates otherwise, only in
denominations of $1,000 and integral multiples thereof. The holder of a debt
security may elect, subject to the terms of the indentures and the limitations
applicable to global securities, to exchange them for other debt securities of
the same series of any authorized denomination and of similar terms and
aggregate principal amount.
Holders of debt securities may present them for exchange as provided above
or for registration of transfer, duly endorsed or with the form of transfer duly
executed, at the office of the transfer agent we designate for that purpose. We
will not impose a service charge for any registration of transfer or exchange of
debt securities, but we may require a payment sufficient to cover any tax or
other governmental charge payable in connection with the transfer or exchange.
We will name the transfer agent in the prospectus supplement. We may designate
additional transfer agents or rescind the designation of any transfer agent or
approve a change in the office through which any transfer agent acts, but we
must maintain a transfer agent in each place in which we will pay on debt
securities.
If we redeem the debt securities, we will not be required to issue,
register the transfer of or exchange any debt security during a specified period
prior to mailing a notice of redemption. We are not required to register the
transfer of or exchange any debt security selected for redemption, except the
unredeemed portion of the debt security being redeemed.
GLOBAL SECURITIES
The debt securities may be represented, in whole or in part, by one or more
global securities that will have an aggregate principal amount equal to that of
all debt securities of that series. Each global security will be registered in
the name of a depositary identified in the prospectus supplement. We will
deposit the global security with the depositary or a custodian, and the global
security will bear a legend regarding the restrictions on exchanges and
registration of transfer.
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No global security may be exchanged in whole or in part for debt securities
registered, and no transfer of a global security in whole or in part may be
registered, in the name of any person other than the depositary or any nominee
or successor of the depositary unless:
- the depositary is unwilling or unable to continue as depositary; or
- the depository is no longer in good standing under the Exchange Act or
other applicable statute or regulation.
The depositary will determine how all securities issued in exchange for a
global security will be registered.
As long as the depositary or its nominee is the registered holder of a
global security, we will consider the depositary or the nominee to be the sole
owner and holder of the global security and the underlying debt securities.
Except as stated above, owners of beneficial interests in a global security will
not be entitled to have the global security or any debt security registered in
their names, will not receive physical delivery of certificated debt securities
and will not be considered to be the owners or holders of the global security or
underlying debt securities. We will make all payments of principal, premium and
interest on a global security to the depositary or its nominee. The laws of some
jurisdictions require that some purchasers of securities take physical delivery
of such securities in definitive form. These laws may prevent you from
transferring your beneficial interests in a global security.
Only institutions that have accounts with the depositary or its nominee and
persons that hold beneficial interests through the depositary or its nominee may
own beneficial interests in a global security. The depositary will credit, on
its book-entry registration and transfer system, the respective principal
amounts of debt securities represented by the global security to the accounts of
its participants. Ownership of beneficial interests in a global security will be
shown only on, and the transfer of those ownership interests will be effected
only through, records maintained by the depositary or any such participant.
The policies and procedures of the depositary may govern payments,
transfers, exchanges and others matters relating to beneficial interests in a
global security. We and the trustee will assume no responsibility or liability
for any aspect of the depositary's or any participant's records relating to, or
for payments made on account of, beneficial interests in a global security.
PAYMENT AND PAYING AGENTS
Unless the prospectus supplement indicates otherwise, we will pay principal
and any premium or interest on a debt security to the person in whose name the
debt security is registered at the close of business on the regular record date
for such interest.
Unless the prospectus supplement indicates otherwise, we will pay principal
and any premium or interest on the debt securities at the office of our
designated paying agent. Unless the prospectus supplement indicates otherwise,
the corporate trust office of the trustee will be the paying agent for the debt
securities.
Any other paying agents we designate for the debt securities of a
particular series will be named in the prospectus supplement. We may designate
additional paying agents, rescind the designation of any paying agent or approve
a change in the office through which any paying agent acts, but we must maintain
a paying agent in each place of payment for the debt securities.
The paying agent will return to us all money we pay to it for the payment
of the principal, premium or interest on any debt security that remains
unclaimed for a specified period. Thereafter, the holder may look only to us for
payment, as an unsecured general creditor.
CONSOLIDATION, MERGER AND SALE OF ASSETS
Under the terms of the indentures, so long as any securities remain
outstanding, we may not consolidate or enter into a share exchange with or merge
into any other person, in a transaction in which
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we are not the surviving corporation, or sell, convey, transfer or lease our
properties and assets substantially as an entirety to any person, unless:
- the successor assumes our obligations under the debt securities and the
indentures; and
- we meet the other conditions described in the indentures.
EVENTS OF DEFAULT
Each of the following will constitute an event of default under each
indenture:
- failure to pay the principal of or any premium on any debt security when
due;
- failure to pay any interest on any debt security when due, for more than
a specified number of days past the due date;
- failure to deposit any sinking fund payment when due;
- failure to perform any covenant or agreement in the indenture, which
failure continues for a specified number of days after written notice has
been given by the trustee or the requisite holders of the debt securities
of that series;
- certain events of bankruptcy, insolvency or reorganization; and
- any other event of default specified in the prospectus supplement.
If an event of default occurs and continues, both the trustee and holders
of a specified percentage in aggregate principal amount of the outstanding
securities of that series may declare the principal amount of the debt
securities of that series to be immediately due and payable. The holders of a
majority in aggregate principal amount of the outstanding securities of that
series may, under certain circumstances, rescind and annul the acceleration if
all events of default, other than the nonpayment of accelerated principal, have
been cured or waived.
Except for certain duties in case of an event of default, the trustee will
not be obligated to exercise any of its rights or powers at the request or
direction of any of the holders, unless the holders have offered the trustee
reasonable indemnity. If they provide this indemnification, the holders of a
majority in aggregate principal amount of the outstanding securities of any
series may direct the time, method and place of conducting any proceeding for
any remedy available to the trustee or exercising any trust or power conferred
on the trustee with respect to the debt securities of that series.
No holder of a debt security of any series may institute any proceeding
with respect to the indentures, or for the appointment of a receiver or a
trustee, or for any other remedy, unless:
- the holder has previously given the trustee written notice of a
continuing event of default;
- the holders of a specified percentage in aggregate principal amount of
the outstanding securities of that series have made a written request
upon the trustee, and have offered reasonable indemnity to the trustee,
to institute the proceeding; and
- the trustee has failed to institute the proceeding for a specified period
of time after its receipt of the notification; and
- the trustee has not received a direction inconsistent with the request
within a specified number of days.
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MODIFICATION AND WAIVER
We and the trustee may change an indenture without the consent of any
holders with respect to specific matters, including:
- to fix any ambiguity, defect or inconsistency in the indenture; and
- to change anything that does not materially adversely affect the
interests of any holder of debt securities of any series.
In addition, under the indentures, the rights of holders of a series of
notes may be changed by us and the trustee with the written consent of the
holders of at least a majority in aggregate principal amount of the outstanding
debt securities of each series that is affected. However, we and the trustee may
only make the following changes with the consent of the holder of any
outstanding debt securities affected:
- extending the fixed maturity of the series of notes;
- reducing the principal amount, reducing the rate of or extending the time
of payment of interest, or any premium payable upon the redemption, of
any debt securities; or
- reducing the percentage of debt securities the holders of which are
required to consent to any amendment.
The holders of a majority in principal amount of the outstanding debt
securities of any series may waive any past default under the indenture with
respect to debt securities of that series, except a default in the payment of
principal, premium or interest on any debt security of that series or in respect
of a covenant or provision of the indenture that cannot be amended without each
holder's consent.
Except in certain limited circumstances, we may set any day as a record
date for the purpose of determining the holders of outstanding debt securities
of any series entitled to give or take any direction, notice, consent, waiver or
other action under the indentures. In certain limited circumstances, the trustee
may set a record date. To be effective, the action must be taken by holders of
the requisite principal amount of such debt securities within a specified period
following the record date.
DEFEASANCE
To the extent stated in the prospectus supplement, we may elect to apply
the provisions in the indentures relating to defeasance and discharge of
indebtedness, or to defeasance of certain restrictive covenants, to the debt
securities of any series. The indentures provide that, upon satisfaction of the
requirements described below, we may terminate all of our obligations under the
debt securities of any series and the applicable indenture, which is known as
legal defeasance, other than our obligation:
- to maintain a registrar and paying agents and hold moneys for payment in
trust;
- to register the transfer or exchange of the debt securities; and
- to replace mutilated, destroyed, lost or stolen debt securities.
In addition, we may terminate our obligation to comply with any restrictive
covenants under the debt securities of any series or the applicable indenture,
which is known as covenant defeasance.
We may exercise our legal defeasance option even if we have previously
exercised our covenant defeasance option. If we exercise either defeasance
option, payment of the debt securities may not be accelerated because of the
occurrence of events of default.
To exercise either defeasance option as to debt securities of any series,
we must irrevocably deposit in trust with the trustee money and/or obligations
backed by the full faith and credit of the United States that will provide money
in an amount sufficient in the written opinion of a nationally recognized firm
of
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independent public accountants to pay the principal of, premium, if any, and
each installment of interest on the debt securities. We may only establish this
trust if, among other things:
- no event of default shall have occurred or be continuing;
- in the case of legal defeasance, we have delivered to the trustee an
opinion of counsel to the effect that we have received from, or there has
been published by, the Internal Revenue Service a ruling or there has
been a change in law, which in the opinion of our counsel, provides that
holders of the debt securities will not recognize gain or loss for
federal income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to federal income tax on the same amount,
in the same manner and at the same times as would have been the case if
such deposit, defeasance and discharge had not occurred;
- in the case of covenant defeasance, we have delivered to the trustee an
opinion of counsel to the effect that the holders of the debt securities
will not recognize gain or loss for federal income tax purposes as a
result of such deposit, defeasance and discharge and will be subject to
federal income tax on the same amount, in the same manner and at the same
times as would have been the case if such deposit, defeasance and
discharge had not occurred; and
- we satisfy other customary conditions described in the applicable
indenture.
NOTICES
We will mail notices to holders of debt securities as indicated in the
prospectus supplement.
TITLE
We may treat the person in whose name a debt security is registered as the
absolute owner, whether or not such debt security may be overdue, for the
purpose of making payment and for all other purposes.
GOVERNING LAW
The indentures and the debt securities will be governed by and construed in
accordance with the laws of the state of New York.
DESCRIPTION OF WARRANTS
GENERAL
The following description, together with the additional information we may
include in any applicable prospectus supplements, summarizes the material terms
and provisions of the warrants that we may offer under this prospectus and the
related warrant agreements and warrant certificates. While the terms summarized
below will apply generally to any warrants we may offer, we will describe the
particular terms of any series of warrants in more detail in the applicable
prospectus supplement and may differ from the terms described below.
We may issue, together with other securities or separately, warrants to
purchase our debt securities, common stock, preferred stock or depositary
shares. We will issue the warrants under warrant agreements to be entered into
between us and a bank or trust company, as warrant agent, all as set forth in
the applicable prospectus supplement. The warrant agent will act solely as our
agent in connection with the warrants of the series being offered and will not
assume any obligation or relationship of agency or trust for or with any holders
or beneficial owners of warrants.
20
<PAGE> 23
The applicable prospectus supplement will describe the following terms,
where applicable, of warrants in respect of which this prospectus is being
delivered:
- the title of the warrants;
- the designation, amount and terms of the securities for which the
warrants are exercisable and the procedures and conditions relating to
the exercise of such warrants;
- the designation and terms of the other securities, if any, with which the
warrants are to be issued and the number of warrants issued with each
such security;
- the price or prices at which the warrants will be issued;
- the aggregate number of warrants;
- any provisions for adjustment of the number or amount of securities
receivable upon exercise of the warrants or the exercise price of the
warrants;
- the price or prices at which the securities purchasable upon exercise of
the warrants may be purchased;
- if applicable, the date on and after which the warrants and the
securities purchasable upon exercise of the warrants will be separately
transferable;
- if applicable, a discussion of the material United States federal income
tax considerations applicable to the exercise of the warrants;
- any other terms of the warrants, including terms, procedures and
limitations relating to the exchange and exercise of the warrants;
- the date on which the right to exercise the warrants shall commence, and
the date on which the right shall expire;
- the maximum or minimum number of warrants which may be exercised at any
time; and
- information with respect to book-entry procedures, if any;
Before exercising their warrants, holders of warrants will not have any of
the rights of holders of the securities purchasable upon such exercise,
including:
- in the case of warrants to purchase debt securities, the right to receive
payments of principal of, or premium, if any, or interest on, the debt
securities purchasable upon exercise or to enforce covenants in the
applicable indenture; or
- in the case of warrants to purchase common stock or preferred stock, the
right to receive dividends, if any, or payments upon our liquidation,
dissolution or winding up or to exercise voting rights, if any.
EXERCISE OF WARRANTS
Each warrant will entitle the holder thereof to purchase for cash the
amount of debt securities, shares of preferred stock, shares of common stock, or
depositary shares at the exercise price as will in each case be set forth in, or
be determinable as set forth in, the applicable prospectus supplement. Warrants
may be exercised at any time up to the close of business on the expiration date
set forth in the applicable prospectus supplement. After the close of business
on the expiration date, unexercised warrants will become void.
Warrants may be exercised as set forth in the applicable prospectus
supplement relating to the warrants offered thereby. Upon receipt of payment and
the warrant certificate properly completed and duly executed at the corporate
trust office of the warrant agent or any other office indicated in the
applicable prospectus supplement, we will, as soon as practicable, forward the
purchased securities. If less than all of
21
<PAGE> 24
the warrants represented by the warrant certificate are exercised, a new warrant
certificate will be issued for the remaining warrants.
ENFORCEABILITY OF RIGHTS OF HOLDERS OF WARRANTS
Each warrant agent will act solely as our agent under the applicable
warrant agreement and will not assume any obligation or relationship of agency
or trust with any holder of any warrant. A single bank or trust company may act
as warrant agent for more than one issue of warrants. A warrant agent will have
no duty or responsibility in case of any default by us under the applicable
warrant agreement or warrant, including any duty or responsibility to initiate
any proceedings at law or otherwise, or to make any demand upon us. Any holder
of a warrant may, without the consent of the related warrant agent or the holder
of any other warrant, enforce by appropriate legal action its right to exercise,
and receive the securities purchasable upon exercise of, that holder's warrants.
PLAN OF DISTRIBUTION
We may sell the securities being offered hereby in one or more of the
following ways from time to time:
- through agents to the public or to investors;
- to underwriters for resale to the public or to investors; or
- directly to investors.
We will set forth in a prospectus supplement the terms of the offering of
securities, including:
- the name or names of any agents or underwriters;
- the purchase price of the securities being offered and the proceeds we
will receive from the sale;
- any over-allotment options under which underwriters may purchase
additional securities from us;
- any agency fees or underwriting discounts and other items constituting
agents' or underwriters' compensation;
- any initial public offering price;
- any discounts or concessions allowed or reallowed or paid to dealers; and
- any securities exchanges on which such securities may be listed.
AGENTS
We may designate agents who agree to use their reasonable or best efforts
to solicit purchases for the period of their appointment or to sell securities
on a continuing basis.
UNDERWRITERS
If we use underwriters for a sale of securities, the underwriters will
acquire the securities for their own account. The underwriters may resell the
securities in one or more transactions, including negotiated transactions, at a
fixed public offering price or at varying prices determined at the time of sale.
The obligations of the underwriters to purchase the securities will be subject
to the conditions set forth in the applicable underwriting agreement. The
underwriters will be obligated to purchase all the securities of the series
offered if they purchase any of the securities of that series. We may change
from time to time any initial public offering price and any discounts or
concessions the underwriters allow or reallow or pay to dealers. We may use
underwriters with whom we have a material relationship. We will describe in the
prospectus supplement naming the underwriter the nature of any such
relationship.
22
<PAGE> 25
DIRECT SALES
We may also sell securities directly to one or more purchasers without
using underwriters or agents.
Underwriters, dealers and agents that participate in the distribution of
the securities may be underwriters as defined in the Securities Act and any
discounts or commissions they receive from us and any profit on their resale of
the securities may be treated as underwriting discounts and commissions under
the Securities Act. We will identify in the applicable prospectus supplement any
underwriters, dealers or agents and will describe their compensation. We may
have agreements with the underwriters, dealers and agents to indemnify them
against specified civil liabilities, including liabilities under the Securities
Act. Underwriters, dealers and agents may engage in transactions with or perform
services for us or our subsidiaries in the ordinary course of their businesses.
TRADING MARKETS AND LISTING OF SECURITIES
Unless otherwise specified in the applicable prospectus supplement, each
class or series of securities will be a new issue with no established trading
market, other than our common stock, which is listed on the Nasdaq National
Market. We may elect to list any other class or series of securities on any
exchange, but we are not obligated to do so. It is possible that one or more
underwriters may make a market in a class or series of securities, but the
underwriters will not be obligated to do so and may discontinue any market
making at any time without notice. We cannot give any assurance as to the
liquidity of the trading market for any of the securities.
STABILIZATION ACTIVITIES
Any underwriter may engage in overallotment, stabilizing transactions,
short covering transactions and penalty bids in accordance with Regulation M
under the Exchange Act. Overallotment involves sales in excess of the offering
size, which create a short position. Stabilizing transactions permit bids to
purchase the underlying security so long as the stabilizing bids do not exceed a
specified maximum. Short covering transactions involve purchases of the
securities in the open market after the distribution is completed to cover short
positions. Penalty bids permit the underwriters to reclaim a selling concession
from a dealer when the securities originally sold by the dealer are purchased in
a covering transaction to cover short positions. Those activities may cause the
price of the securities to be higher than it would otherwise be. If commenced,
the underwriters may discontinue any of the activities at any time.
PASSIVE MARKET MARKING
Any underwriters who are qualified market markers on the Nasdaq National
Market may engage in passive market making transactions in the securities on the
Nasdaq National Market in accordance with Rule 103 of Regulation M, during the
business day prior to the pricing of the offering, before the commencement of
offers or sales of the securities. Passive market makers must comply with
applicable volume and price limitations and must be identified as passive market
makers. In general, a passive market maker must display its bid at a price not
in excess of the highest independent bid for such security; if all independent
bids are lowered below the passive market maker's bid, however, the passive
market maker's bid must then be lowered when certain purchase limits are
exceeded.
LEGAL MATTERS
Hogan & Hartson LLP, Baltimore, Maryland, will provide us with an opinion
as to certain legal matters in connection with the securities we are offering.
23
<PAGE> 26
EXPERTS
The consolidated financial statements of CIENA Corporation as of October
31, 2000 and 1999 and for each of the three years in the period ended October
31, 2000 incorporated in this prospectus by reference to CIENA's Annual Report
on Form 10-K for the year ended October 31, 2000, as amended January 18, 2001,
have been so incorporated in reliance on the report of PricewaterhouseCoopers
LLP, given on the authority of said firm as experts in auditing and accounting.
The financial statements of Cyras Systems, Inc. as of December 31, 1998 and
1999 and for the period from July 24, 1998 (inception) to December 31, 1998 and
for the year ended December 31, 1999, incorporated by reference in this
prospectus, have been audited by Deloitte & Touche LLP, independent auditors, as
stated in their report incorporated by reference herein, and have been so
incorporated by reference in reliance upon the report of such firm given upon
their authority as experts in accounting and auditing.
24
<PAGE> 27
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the fees and expenses in connection with the
issuance and distribution of the securities being registered. Except for the SEC
registration fee, all amounts are estimates.
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee......... $375,000
Transfer agent's and trustee's fees and expenses............ 25,000
Printing and engraving expenses............................. 50,000
Legal fees and expenses..................................... 100,000
Accounting fees and expenses................................ 35,000
Miscellaneous expenses...................................... 25,000
--------
Total............................................. $610,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law, as amended ("DGCL")
authorizes a court to award, or a corporation's board of directors to grant
indemnity to directors and officers under some circumstances for liabilities
incurred in connection with their activities in such capacities (including
reimbursement for expenses incurred). The Registrant's Third Amended and
Restated Certificate of Incorporation provides that no director of the
Registrant will be personally liable to the Registrant or its stockholders for
monetary damages for breach of fiduciary duty as a director, except for
liability (i) for any breach of the director's duty of loyalty to the Registrant
or to its stockholders, (ii) for acts or omissions not made in good faith or
which involved intentional misconduct or a knowing violation of the law, (iii)
under Section 174 of the DGCL, or (iv) for any transactions from which the
director derives an improper personal benefit. In addition, the Registrant's
Amended and Restated Bylaws provide that any director or officer who was or is a
party or is threatened to be made a party to any action or proceeding by reason
of his or her services to the Registrant will be indemnified to the fullest
extent permitted by the DGCL.
The Registrant has entered into agreements with each of its executive
officers and directors under which the Registrant has agreed to indemnify each
of them against expenses and losses incurred for claims brought against them by
reason of their being an officer or director of the Registrant. There is no
pending litigation or proceeding involving a director or officer of the
Registrant as to which indemnification is being sought, nor is the Registrant
aware of any pending or threatened litigation that may result in claims for
indemnification by any director or executive officer.
II-1
<PAGE> 28
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
1.1+ Form of Underwriting Agreement
3.1* Certificate of Amendment to Third Restated Certificate of
Incorporation of the Registrant
3.2* Third Restated Certificate of Incorporation
3.3* Amended and Restated Bylaws of the Registrant
3.5**** Certificate of Amendment to Third Restated Certificate of
Incorporation dated March 23, 1998
3.6**** Certificate of Amendment to Third Restated Certificate of
Incorporation dated March 16, 2000
4.1** Rights Agreement dated December 29, 1997
4.2*** Amendment to Rights Agreement
4.3* Form of Common Stock Certificate
4.4+ Form of Senior Indenture
4.5+ Form of Subordinated Indenture
4.6+ Form of Certificate of Designation with respect to Preferred
Stock
4.7+ Form of Deposit Agreement
4.8+ Form of Warrant
4.9+ Form of Supplemental Indenture
5.1 Opinion of Hogan & Hartson L.L.P. (filed herewith)
12.1 Statement of Computation of Ratio of Earnings to Fixed
Charges
23.1 Consent of PricewaterhouseCoopers LLP (filed herewith)
23.2 Consent of Hogan & Hartson LLP (included in Exhibit 5.1)
23.3 Consent of Deloitte & Touche LLP (filed herewith)
24.1 Powers of Attorney (included on signature page)
</TABLE>
---------------
+ To be filed by amendment or as an exhibit to a report pursuant to Section
13(a), 13(c) or 15(d) of the Exchange Act.
* Incorporated by reference to the Company's Registration Statement on Form
S-1 (333-17729).
** Incorporated by reference from the Company's Form 8-K dated December 29,
1997.
*** Incorporated by reference from the Company's Form 8-K dated October 14,
1998.
**** Incorporated by reference from the Company's Form 10-Q dated May 18, 2000.
ITEM 17. 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
II-2
<PAGE> 29
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; and
(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 (i) and (ii) above 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 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference into 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; and
(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
Securities 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 herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) The undersigned Registrant hereby undertakes to supplement the
prospectus, after the expiration of the subscription period, to set forth the
results of the subscription offer, the transactions by the underwriters during
the subscription period, the amount of unsubscribed securities to be purchased
by the underwriters, and the terms of any subsequent reoffering thereof. If any
public offering by the underwriters is to be made on terms differing from those
set forth on the cover page of the prospectus, a post-effective amendment will
be filed to set forth the terms of such offering.
(d) The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance under Rule 430A and contained in
a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act of 1933 shall be deemed to be part
of this registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus 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.
(e) 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
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
II-3
<PAGE> 30
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 such issue.
(f) The undersigned registrant hereby undertakes to file an application for
the purpose of determining the eligibility of the trustee to act under
subsection (a) or Section 310 of the Trust Indenture Act in accordance with the
rules and regulations prescribed by the Commission under Section 305(b)(2) of
the Act.
II-4
<PAGE> 31
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-3 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 January 18, 2001.
CIENA CORPORATION
By: /s/ PATRICK H. NETTLES, PH.D.
------------------------------------
Patrick H. Nettles, Ph.D.
Chairman and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Patrick
H. Nettles, Ph.D., Joseph R. Chinnici and Michael O. McCarthy III, and each of
them, with full power of substitution and resubstitution and each with full
power to act without the other, his or her true and lawful attorney-in-fact and
agent, for him or her and in his or her name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement and any related Registration Statement filed
pursuant to Rule 462(b) under the Securities Act of 1933, and to file the same,
with all exhibits thereto, and all other documents in connection therewith, with
the Securities and Exchange Commission or any state, 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 or she might
or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their, his or her 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 dates indicated.
<TABLE>
<S> <C> <C>
By: /s/ PATRICK H. NETTLES, PH.D. Chairman and Chief Date: January 18, 2001
------------------------------------------------- Executive Officer
Patrick H. Nettles, Ph.D. (Principal Executive
Officer)
By: /s/ GARY B. SMITH President and Director Date: January 18, 2001
-------------------------------------------------
Gary B. Smith
By: /s/ JOSEPH R. CHINNICI Sr. Vice President, Date: January 18, 2001
------------------------------------------------- Chief Financial Officer
Joseph R. Chinnici (Principal Financial
Officer)
By: /s/ ANDREW C. PETRIK Vice President, Date: January 18, 2001
------------------------------------------------- Controller and Treasurer
Andrew C. Petrik (Principal Accounting
Officer)
By: /s/ STEPHEN P. BRADLEY Director Date: January 18, 2001
-------------------------------------------------
Stephen P. Bradley
By: /s/ HARVEY B. CASH Director Date: January 18, 2001
-------------------------------------------------
Harvey B. Cash
By: /s/ JOHN R. DILLON Director Date: January 18, 2001
-------------------------------------------------
John R. Dillon
</TABLE>
II-5
<PAGE> 32
<TABLE>
<S> <C> <C>
By: /s/ LAWTON W. FITT Director Date: January 18, 2001
-------------------------------------------------
Lawton W. Fitt
By: /s/ JUDITH M. O'BRIEN Director Date: January 18, 2001
-------------------------------------------------
Judith M. O'Brien
By: /s/ GERALD H. TAYLOR Director Date: January 18, 2001
-------------------------------------------------
Gerald H. Taylor
</TABLE>
II-6
<PAGE> 33
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<S> <C>
1.1+ Form of Underwriting Agreement
3.1* Certificate of Amendment to Third Restated Certificate of
Incorporation of the Registrant
3.2* Third Restated Certificate of Incorporation
3.3* Amended and Restated Bylaws of the Registrant
3.5**** Certificate of Amendment to Third Restated Certificate of
Incorporation dated March 23, 1998
3.6**** Certificate of Amendment to Third Restated Certificate of
Incorporation dated March 16, 2000
4.1** Rights Agreement dated December 29, 1997
4.2*** Amendment to Rights Agreement
4.3* Form of Common Stock Certificate
4.4+ Form of Senior Indenture
4.5+ Form of Subordinated Indenture
4.6+ Form of Certificate of Designation with respect to Preferred
Stock
4.7+ Form of Deposit Agreement
4.8+ Form of Warrant
4.9+ Form of Supplemental Indenture
5.1 Opinion of Hogan & Hartson L.L.P. (filed herewith)
12.1 Statement of Computation of Ratio of Earnings to Fixed
Charges
23.1 Consent of PricewaterhouseCoopers LLP (filed herewith)
23.2 Consent of Hogan & Hartson LLP (included in Exhibit 5.1)
23.3 Consent of Deloitte & Touche LLP (filed herewith)
24.1 Powers of Attorney (included on signature page)
</TABLE>
---------------
+ To be filed by amendment or as an exhibit to a report pursuant to Section
13(a), 13(c) or 15(d) of the Exchange Act.
* Incorporated by reference to the Company's Registration Statement on Form
S-1 (333-17729).
** Incorporated by reference from the Company's Form 8-K dated December 29,
1997.
*** Incorporated by reference from the Company's Form 8-K dated October 14,
1998.
**** Incorporated by reference from the Company's Form 10-Q dated May 18, 2000.
