-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, N1vRVMPztbJYwnFXc/yEfGrUJebEOVGlw2+ZU68CxqpAX2sHx0KkRhb7ARfDX8xt yWrS6RVvXEZHL7QYYZFerQ== 0000891618-99-003191.txt : 19990720 0000891618-99-003191.hdr.sgml : 19990720 ACCESSION NUMBER: 0000891618-99-003191 CONFORMED SUBMISSION TYPE: S-3MEF PUBLIC DOCUMENT COUNT: 7 333-78821 FILED AS OF DATE: 19990716 EFFECTIVENESS DATE: 19990716 FILER: COMPANY DATA: COMPANY CONFORMED NAME: JDS UNIPHASE CORP /CA/ CENTRAL INDEX KEY: 0000912093 STANDARD INDUSTRIAL CLASSIFICATION: SEMICONDUCTORS & RELATED DEVICES [3674] IRS NUMBER: 942579683 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: S-3MEF SEC ACT: SEC FILE NUMBER: 333-83129 FILM NUMBER: 99666219 BUSINESS ADDRESS: STREET 1: 163 BAYPOINTE PKWY CITY: SAN JOSE STATE: CA ZIP: 95134 BUSINESS PHONE: 4084341800 MAIL ADDRESS: STREET 1: 163 BAYPOINTE PARKWAY CITY: SAN JOSE STATE: CA ZIP: 95134 S-3MEF 1 FORM S-3 FILED PURSUANT TO RULE 462(B) 1 As filed with the Securities and Exchange Commission on July 16, 1999 Registration No. 333-_______ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 JDS UNIPHASE CORPORATION (Exact Name of Registrant as Specified in Its Governing Instruments) DELAWARE 76-0151431 (State or Other Jurisdiction (I.R.S. Employer Identification Number) of Incorporation or Organization) 163 Baypointe Parkway San Jose, California 95134 (408) 434-1800 (Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrar's Principal Executive Offices) Kevin N. Kalkhoven Chairman of the Board of Directors, President and Chief Executive Officer JDS Uniphase Corporation 163 Baypointe Parkway San Jose, California 95134 (408) 434-1800 (Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service) COPIES TO: Christopher S. Dewees, Esq. David P. Valenti, Esq. Morrison & Foerster LLP 755 Page Mill Road Palo Alto, California 94304 (650) 813-5600 APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to time after the effective date of this Registration Statement. If the only securities being registered on this Form are to be 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, other than securities offered only in connection with dividend or interest reinvestment plans, 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 of 1933, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [X] If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act of 1933, 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. [ ]
=============================================================================================================================== CALCULATION OF REGISTRATION FEE =============================================================================================================================== TITLE PROPOSED MAXIMUM OF SHARES TO AMOUNT TO BE PROPOSED MAXIMUM AGGREGATE OFFERING AMOUNT OF BE REGISTERED REGISTERED(1) AGGREGATE PRICE PER SHARE(2) PRICE(2) REGISTRATION FEE(2) - ------------------------------------------------------------------------------------------------------------------------------- common stock, $0.001 par value(3) 491,019 shares $163.28 $80,173,582.32 $23,651.21 ===============================================================================================================================
(1) Estimated solely for the purpose of determining the registration fee in accordance with Rule 457 under the Securities Act of 1933, as amended ("Securities Act"). Based on an estimated number of shares of Uniphase common stock to be exchanged for exchangeable shares (as defined herein) pursuant to the combination of Uniphase and JDS FITEL Inc. multiplied by 0.50855, the exchange ratio. (2) This registration statement relates to the offering of up to 36,267,019 shares of JDS Uniphase common stock. Of these shares, 491,019 are registered hereby, and 35,776,000 were previously registered on registration statement no. 333-78821, filed with the Commission on June 15, 1999. Total filing fees of $1,354,508.70 have previously been paid in respect of the shares of common stock offered pursuant to the referenced registration statement. Pursuant to Rule 457(f), the registration fee was computed on the basis of the market value of the 491,019 shares of JDS Uniphase common stock assumed to be issued by the Registrant in connection with the exchange of the exchangeable shares, and in accordance with Rule 457(c) on the basis of the average of the high and low price per share of the shares of JDS Uniphase common stock reported on the NASDAQ National Market on July 14, 1999. In addition to the number of shares set forth in the table, the amount to be registered includes a presently indeterminable number of shares issuable in respect to all 36,267,019 shares of common stock as a result of stock splits and stock dividends in accordance with Rule 416. (3) Includes the preferred stock purchase rights associated with the common stock. 2 INCORPORATION BY REFERENCE OF REGISTRATION STATEMENT ON FORM S-3, REGISTRATION NUMBER 333-78821 We hereby incorporate by reference into this registration statement on Form S-3 in its entirety the registration statement on Form S-3, registration number 333-78821, declared effective on June 29, 1999 by the Securities and Exchange Commission, including each of the documents we filed with the SEC and incorporated or were deemed to be incorporated by reference therein and all exhibits thereto. EXHIBITS The following documents are filed as exhibits to this registration statement: 5.1 - Opinion of Morrison & Foerster LLP 8.1 - Opinion of Morrison & Foerster LLP. 8.2 - Opinion of Tory Tory DesLauriers & Binnington. 23.1 - Consent of Morrison & Foerster LLP (included in Exhibit 5.1) 23.2 - Consent of Morrison & Foerster LLP (included in Exhibit 8.1) 23.3 - Consent of Tory Tory DesLauriers & Binnington (included in Exhibit 8.2) 23.4 - Consent of Ernst & Young LLP, independent auditors 23.5 - Consent of Ernst & Young Accountants, independent auditors 23.6 - Consent of PricewaterhouseCoopers, LLP, independent accountants 24.1 - Power of Attorney (included on signature page hereto) 3 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Company 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 San Jose, State of California on July 16, 1999. UNIPHASE CORPORATION By: /s/ Kevin N. Kalkhoven ------------------------------------- Kevin N. Kalkhoven Chief Executive Officer and Co-Chairman of the Board POWER OF ATTORNEY The undersigned hereby constitutes and appoints Kevin N. Kalkhoven and Anthony R. Muller as his/her true and lawful attorneys-in-fact and agents, jointly and severally, with full power of substitution and resubstitution, for and in his/her stead, in any and all capacities, to sign on his/her behalf the Registration Statement on Form S-3 in connection with the sale by Uniphase Corporation of shares of offered securities, and to execute any amendments thereto (including post-effective amendments) or certificates that may be required in connection with this Registration Statement, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission and granting unto said attorneys-in-fact and agents, jointly and severally, the full power and authority to do and perform each and every act and thing necessary or advisable to all intents and purposes as he/she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, jointly and severally, or his/her substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement on Form S-3 has been signed by the following persons in the capacities and on the dates indicated:
Signature Title Date --------- ----- ---- /s/Kevin N. Kalkhoven Chief Executive Officer, Co-Chairman July 16, 1999 - ----------------------------- of the Board and Director (Principal Kevin N. Kalkhoven Executive Officer) /s/ Anthony R. Muller Senior Vice President, Chief Financial July 16, 1999 - ----------------------------- Officer and Secretary (Principal Financial Anthony R. Muller and Accounting Officer) /s/ Joseph Straus President, Chief Operating Officer July 16, 1999 - ----------------------------- and Co-Chairman of the Board Joseph Straus of Directors /s/ Bruce Day Director July 16, 1999 - ----------------------------- Bruce Day /s/ Peter A. Guglielmi Director July 16, 1999 - ----------------------------- Peter A. Guglielmi /s/ Robert E. Enos Director July 16, 1999 - ----------------------------- Robert E. Enos
4
Signature Title Date --------- ----- ---- /s/ Martin A. Kaplan Director July 16, 1999 - ----------------------------- Martin A. Kaplan /s/ John MacNaughton Director July 16, 1999 - ----------------------------- John MacNaughton /s/ Wilson Sibbett Director July 16, 1999 - ----------------------------- Wilson Sibbett, Ph.D. /s/ Casimir Skrzypczak Director July 16, 1999 - ----------------------------- Casimir Skrzypczak /s/ William Sinclair Director July 16, 1999 - ----------------------------- William Sinclair
5 EXHIBIT INDEX
Exhibit Number Description - ------- ----------- 5.1 Opinion of Morrison & Foerster LLP 8.1 Consent of Morrison & Foerster LLP 8.2 Consent of Tory Tory DesLauriers & Binnington 23.4 Consent of Ernst & Young LLP, independent auditors 23.5 Consent of Ernst & Young Accountants, independent auditors
EX-5.1 2 OPINION OF MORRISON & FOERSTER LLP 1 EXHIBIT 5.1 July 16, 1999 JDS Uniphase Corporation 210 Baypointe Parkway San Jose, CA 95134 Ladies and Gentlemen: At your request, we have examined the Registration Statement on Form S-3 filed by JDS Uniphase Corporation, a Delaware corporation (the "Company"), with the Securities and Exchange Commission on July 16, 1999 (the "Registration Statement") relating to the registration under the Securities Act of 1933, as amended, of up to 491,019 shares of the Company's common stock, $0.001 par value per share, registered pursuant to the Registration Statement (the "Stock"). As counsel to the Company, we have examined the proceedings taken by the Company in connection with the registration of the shares of the Stock. It is our opinion that, when issued, the shares of Stock that may be sold pursuant to the Registration Statement will be legally and validly issued, fully paid and nonassessable. We consent to the use of this opinion as an exhibit to the Registration Statement and further consent to all references to us in the Registration Statement, the prospectus constituting a part thereof and any amendments thereto. Very truly yours, /s/ Morrison & Foerster LLP EX-8.1 3 OPINION OF MORRISON & FOERSTER 1 EXHIBIT 8.1 July 16, 1999 JDS Uniphase Corporation 163 Baypointe Parkway San Jose, CA 95134 Ladies and Gentlemen: We have acted as counsel to JDS Uniphase Corporation ("Uniphase"), a Delaware corporation, in connection with its proposed combination (the "Merger") with JDS FITEL Inc. ("JDS"), a Canadian corporation, pursuant to an amended and restated merger agreement dated as of April 29, 1999, between Uniphase, JDS and 3506967 Canada Inc., a Canadian corporation and indirect subsidiary of Uniphase (the "Agreement"). The descriptionn of the Merger is incorporated by reference in the Registration Statement of Uniphase on Form S-3 (the "Registration Statement") filed on the date hereof with the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended (the "Securities Act") by reference to the Registration Statement of Uniphase on Form S-3 (registration number 333-78821). In that connection, we have reviewed the Agreement, the Registration Statement and such other materials as we have deemed necessary or appropriate for purposes of our opinion. In addition, we have assumed (i) that the Merger was consummated in accordance with the provisions of the Agreement and as contemplated by the Registration Statement and (ii) the truth and accuracy, on the date of the Agreement and on the date hereof, of the representations and warranties made by Uniphase and JDS in the Agreement. Based upon and subject to the foregoing, it is our opinion that the discussion contained in the Registration Statement under the caption "United States Federal Tax Considerations for JDS Shareholders," to the extent that it pertains to matters of law or legal conclusions, is correct in all material respects. There can be no assurance that changes in the law will not take place which could affect the Federal tax consequences of the Merger or that contrary positions may not be asserted by the Internal Revenue Service. This opinion is being furnished in connection with the Registration Statement. You may rely upon and refer to the foregoing opinion in the Registration Statement. Any variation or difference in any fact from those set forth or assumed either herein or in the Registration Statement may affect the conclusions stated herein. We hereby consent to the use of our name under the caption "United States Federal Tax Considerations for JDS Shareholders" in the Registration Statement and to the filing of this opinion as an Exhibit to the Registration Statement. In giving this consent, we do not admit that we come within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder. Very truly yours, /s/ Morrison & Foerster LLP EX-8.2 4 OPINION OF TORY TORY DESLAURIERS & BINNINGTON 1 Exhibit 8.2 July 16, 1999 Uniphase Corporation 163 Baypointe Parkway San Jose, CA 95134 Dear Sirs: We have acted as Canadian counsel to JDS Uniphase Corporation ("JDS Uniphase") in connection with the preparation of the Form S-3 Registration Statement dated July 16, 1999 (the "Registration Statement"). In our opinion, the section in the Registration Statement which incorporates by reference the section in the registration statement on Form S-3, registration number 333-78821, (the "June Registration Statement") entitled "Income Tax Considerations - Canadian Federal Income Tax Considerations" is a fair summary of the principal Canadian federal income tax considerations under the Income Tax Act (Canada) in respect of the exchange of exchangeable shares for shares of common stock of JDS Uniphase and the holding of shares of common stock of JDS Uniphase generally applicable to those holders of exchangeable shares to whom the summary is expressed to be addressed. We hereby consent to the use of our name under the caption "Income Tax Considerations - Canadian Federal Tax Considerations" in the June Registration Statement which is incorporated by reference into the Registration Statement and to the filing of this opinion as an Exhibit to the Registration Statement. In giving this consent, we do not admit that we come within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder. Yours truly, /s/ Tory Tory DesLauriers & Binnington - --------------------------------------- EX-23.4 5 CONSENT OF ERNST & YOUNG LLP 1 EXHIBIT 23.4 CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS We consent to the reference to our firm under the caption "Experts" in the Registration Statement (Form S-3) and related prospectus of JDS Uniphase Corporation for the registration of 491,019 shares of its common stock and to the incorporation by reference therein of our report dated January 7, 1999 (except for the first paragraph under "Basis of Presentation" in Note 1, as to which the date is April 23, 1999) with respect to the consolidated financial statements and the related financial statement schedule of Uniphase Corporation included in its Current Report on Form 8-K/A dated April 28, 1999, filed with the Securities and Exchange Commission. /s/ Ernst & Young LLP San Jose, California July 13, 1999 EX-23.5 6 CONSENT OF ERNST & YOUNG ACCOUNTANTS 1 EXHIBIT 23.5 CONSENT OF ERNST & YOUNG ACCOUNTANTS, INDEPENDENT AUDITORS We consent to the reference to our firm under the caption "Experts" in the Registration Statement (Form S-3) and related prospectus of JDS Uniphase Corporation for the registration of 491,019 shares of its common stock and to the incorporation by reference therein of our report dated August 24, 1998, with respect to the financial statements of Philips Optoelectronics, a division of Koninklijke Philips Electronics N.V. included in its Amendment No. 2 to the Current Report on Form 8-K/A dated August 25, 1998, filed with the Securities and Exchange Commission. /s/ Ernst & Young Accountants Eindhoven, the Netherlands July 13, 1999 EX-23.6 7 CONSENT OF PRICEWATERHOUSECOOPERS, LLP 1 Exhibit 23.6 CONSENT OF PRICEWATERHOUSECOOPERS, LLP INDEPENDENT ACCOUNTANTS We hereby consent to the reference to our firm under the caption "Experts" in the Registration Statement (Form S-3) and related prospectus of JDS Uniphase Corporation for the registration of 491,019 shares of its common stock and to the incorporation by reference therein of our report dated July 3, 1998, with respect to the financial statements of JDS FITEL Inc. incorporated by reference to JDS Uniphase Corporation's definitive proxy statement on Form 14-A filed on June 2, 1999. /s/ PricewaterhouseCoopers, LLP Ottawa, Ontario July 13, 1999 -----END PRIVACY-ENHANCED MESSAGE-----