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As filed with the Securities and Exchange Commission on January 10, 2003

Registration No. 333-__________

SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________

FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
____________

CIENA Corporation
(Exact name of registrant as specified in its charter)

Delaware
(State or other jurisdiction of
incorporation or organization)

                        23-2725311                        
(I.R.S. Employer Identification No.)

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)
____________
CIENA Corporation 1999 Non-Officer Stock Option Plan
Third Amended and Restated CIENA Corporation 1994 Stock Option Plan
(Full title of the Plan)
____________
Russell B. Stevenson, Jr.
Senior Vice President, General Counsel and Secretary
CIENA Corporation
1201 Winterson Road
Linthicum, Maryland 21090
(410) 865-8500

(Name, address and telephone number, including area code, of agent for service)

Copy to:
Michael J. Silver
Amy Bowerman Freed
Hogan & Hartson L.L.P.
111 South Calvert Street
Baltimore, Maryland 21202
(410) 659-2700
____________

CALCULATION OF REGISTRATION FEE

                                 
    Amount   Proposed maximum   Proposed maximum   Amount of
Title of securities   to be   offering price   aggregate offering   registration
to be registered   registered   per share   price   fee (1)
CIENA Corporation 1999 Non-Officer Stock Option Plan Common Stock, par value $.01 per share (2)
     18,175,278     $ 5.66     $ 102,872,073.48     $ 9,464.23  
Third Amended and Restated CIENA Corporation 1994 Stock Option Plan Common Stock, par value $.01 per share (2)
     3,245,585     $ 5.66     $ 18,370,011.10     $ 1,690.04  
Aggregate Filing Fee:
                                

(1)  Estimated pursuant to Rule 457(c) and (h) of the Securities Act of 1933, as amended, solely for the purpose of calculating the amount of the registration fee, based on the average of the high and low prices per share of CIENA Corporation common stock, par value $.01 per share, on January 9, 2003, as reported on the NASDAQ National Market.

(2)  Includes Series A Junior Participating Preferred Share Purchase Rights attached thereto, for which no separate fee is payable pursuant to Rule 457(i).

Exhibit Index Appears on page 10.

 

 

EXPLANATORY NOTE

     This Registration Statement on Form S-8 of CIENA Corporation (the “Company”) is being filed to register 18,175,278 additional shares of common stock authorized for issuance under the Company’s 1999 Non-Officer Stock Option Plan (the “1999 Plan”) under the terms of the 1999 Plan. The Company previously registered 39,000,000 shares of common stock previously authorized for issuance under the 1999 Plan. The total number of shares currently authorized for issuance under the 1999 Plan is 57,175,278. See Registration Statements on Form S-8 (Registration Nos. 333-30900 and 333-72474), which were filed on February 22, 2000 and on October 30, 2001, respectively.

     This Registration Statement is also being filed to register 3,245,585 additional shares of common stock authorized for issuance under the Company’s Third Amended and Restated CIENA Corporation 1994 Stock Option Plan (the “1994 Plan”) under the terms of the 1994 Plan. The Company previously registered 6,000,000 shares of common stock previously authorized for issuance under the 1994 Plan. The total number of shares currently authorized for issuance under the 1994 Plan is 9,245,585. See Registration Statement on Form S-8 (Registration No. 333-72474), which was filed on October 30, 2001.

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INCORPORATION BY REFERENCE

     In accordance with Section E of the General Instructions to Form S-8, the contents of the Registrant’s Registration Statements on Form S-8 (File Nos. 333-30900 and 333-72474) are incorporated herein by reference, in connection with the registration of the 57,175,278 shares of common stock authorized for issuance under the Company’s 1999 Non-Officer Stock Option Plan and the 9,245,585 shares of common stock authorized for issuance under the Company’s Third Amended and Restated CIENA Corporation 1994 Stock Option Plan.

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PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

     The documents containing the information specified in Part I will be sent or given to employees as specified by Rule 428(b)(1) of the Securities Act of 1933 (the “Securities Act”). In accordance with the instructions to Part I of Form S-8, such documents will not be filed with the Securities and Exchange Commission (the “Commission”). These documents and the documents incorporated by reference pursuant to Item 3 of Part II of this registration statement, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3. Incorporation of Documents by Reference.

     CIENA Corporation (the “Company”) hereby incorporates by reference into this registration statement the following documents filed by it with the Commission:

  (a)   The Registrant’s Form 10-K for the fiscal year ended October 31, 2002 and filed December 12, 2002;
 
  (b)   All reports filed with the Commission pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), since October 31, 2002; and
 
  (c)   The description of the Company’s Common Stock, $.01 par value per share (“Common Stock”), contained in the Registrant’s Registration Statement on Form 8-A filed with the Commission on January 13, 1997, including all amendments and reports filed under Section 13(a) or 15(d) of the Exchange Act for purposes of updating the description of Common Stock.

     In addition, all documents and reports filed by the Company subsequent to the date hereof pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment to this registration statement which indicates that all securities offered have been sold or which deregisters all securities remaining unsold, shall be deemed to be incorporated by reference in this registration statement and to be part hereof from the date of filing of such documents or reports. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this registration statement to the extent that a statement contained herein or in any other subsequent filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement.

Item 4. Description of Securities.

     Not applicable (the Common Stock is registered under Section 12(g) of the Exchange Act).

Item 5. Interests of Named Experts and Counsel.

     Not applicable.

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Item 6. Indemnification of Directors and Officers.

     Section 145 of the Delaware General Corporation Law permits indemnification of officers, directors and other corporate agents under certain circumstances and subject to certain limitations. The Registrant’s Third Amended and Restated Certificate of Incorporation and bylaws provide that the Registrant shall indemnify its directors, officers, employees and agents to the full extent permitted by Delaware General Corporation Law, including in circumstances in which indemnification is otherwise discretionary under Delaware law. In addition, the Registrant has entered into separate indemnification agreements with its directors, officers and certain employees which require the Registrant, among other things, to indemnify them against certain liabilities which may arise by reason of their status or service (other than liabilities arising from willful misconduct of a culpable nature) and to maintain directors’ and officers’ liability insurance, if available on reasonable terms. The Registrant has directors’ and officers’ liability insurance with up to $100 million coverage per year. These indemnification provisions and the indemnification agreement between the Registrant and its officers and directors may be sufficiently broad to permit indemnification of the Registrant’s officers and directors for liabilities (including reimbursement of expenses incurred) arising under the Securities Act.

*        *        *

     Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers, and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.

Item 7. Exemption from Registration Claimed.

     Not applicable.

Item 8. Exhibits.

         
Exhibit        
Number   Description
 
4.1 (1)
   Specimen Stock Certificate
4.2 (2)
   Rights Agreement dated December 29, 1997
4.3 (3)
   Amendment to Rights Agreement dated June 2, 1998
4.4 (4)
   Amendment No. 2 to Rights Agreement dated September 13, 1998
4.5 (5)
   Amendment No. 3 to Rights Agreement dated October 14, 1998
4.6 (6)
   Indenture of CIENA Corporation to First Union National Bank as
 
   Trustee relating to 3.75% Convertible Notes due February 1, 2008

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Exhibit        
Number   Description
 
5.1
   Opinion of Hogan & Hartson L.L.P. regarding the legality of the
 
   shares being registered (filed herewith)
23.1
   Consent of Hogan & Hartson L.L.P. (included in Exhibit 5.1)
23.2
   Consent of PricewaterhouseCoopers LLP (filed herewith)
24.1
   Power of Attorney (included on signature page)

(1)  Incorporated by reference from the Company’s Registration Statement on Form S-1 (333-17729).
(2)  Incorporated by reference from the Company’s Form 8-K filed on December 29, 1997.
(3)  Incorporated by reference from the Company’s Form 8-K filed on June 3, 1998.
(4)  Incorporated by reference from the Company’s Form 8-K filed October 19, 1998.
(5)  Incorporated by reference from the Company’s Form 8-K filed September 14, 1998.
(6)  Incorporated by reference from the Company’s Form 10-Q filed February 15, 2001.

Item 9. Undertakings.

     (a)        The undersigned Registrant hereby undertakes:

             (1)        To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:

                     (i)        To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;

                     (ii)        To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;

                     (iii)        To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement.

                             Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration statement is on Form S-3, Form S-8 or Form F-3, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act that are incorporated by reference in the registration statement.

             (2)        That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

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             (3)        To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

     (b)        The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

     (c)        The undertaking concerning indemnification is set forth under the response to Item 6.

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SIGNATURES

     Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Linthicum, State of Maryland, on this 10th day of January, 2003.

  CIENA CORPORATION

  By: /s/ Gary B. Smith            
        Gary B. Smith
        President, Chief Executive Officer and Director

POWER OF ATTORNEY

     Know all men by these presents, that each individual whose signature appears below constitutes and appoints Gary B. Smith, Joseph R. Chinnici and Russell B. Stevenson, Jr., and each of them as his true and lawful attorney-in-fact and agent, with power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign a registration statement (the “Registration Statement”) relating to a registration of shares of common stock on Form S-8 and to sign any and all amendments (including post-effective amendments) to the Registration Statement, and to file the same, with all exhibits and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.

     Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the date indicated.

         
Signature   Title   Date
         
         
         
Patrick H. Nettles, Ph.D.		   Executive Chairman   January ______, 2003
         
/s/ Gary B. Smith
Gary B. Smith		   President, Chief Executive Officer and Director
(Principal Executive Officer) 		  January 10, 2003
         
/s/ Joseph R. Chinnici
Joseph R. Chinnici		   Senior Vice President,
Chief Financial Officer
(Principal Financial Officer) 		  January 10, 2003

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Signature   Title   Date
 
 
/s/ Andrew C. Petrik
Andrew C. Petrik		   Vice President, Controller and Treasurer
(Principal Accounting Officer) 		  January 10, 2003
         
Stephen P. Bradley		   Director   January ______, 2003
         
Harvey B. Cash		   Director   January ______, 2003
         
/s/ Don Davis, Jr.
Don Davis, Jr.		   Director   January 10, 2003
         
/s/ John R. Dillon
John R. Dillon		   Director   January 8, 2003
         
/s/ Lawton W. Fitt
Lawton W. Fitt		   Director   January 8, 2003
         
/s/ Judith M. O’Brien
Judith M. O’Brien		   Director   January 8, 2003
         
/s/ Gerald H. Taylor
Gerald H. Taylor		   Director   January 10, 2003

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EXHIBIT INDEX

     
Exhibit    
Number   Description
 
4.1 (1)   Specimen Stock Certificate
     
4.2 (2)   Rights Agreement dated December 29, 1997
     
4.3 (3)   Amendment to Rights Agreement dated June 2, 1998
     
4.4 (4)   Amendment No. 2 to Rights Agreement dated September 13, 1998
     
4.5 (5)   Amendment No. 3 to Rights Agreement dated October 14, 1998
     
4.6 (6)   Indenture of CIENA Corporation to First Union National Bank as Trustee relating to 3.75% Convertible Notes due February 1, 2008
     
5.1   Opinion of Hogan & Hartson L.L.P. regarding the legality of the shares being registered (filed herewith)
     
23.1   Consent of Hogan & Hartson L.L.P. (included in Exhibit 5.1)
     
23.2   Consent of PricewaterhouseCoopers LLP (filed herewith)
     
24.1   Power of Attorney (included on signature page)

(1)  Incorporated by reference from the Company’s Registration Statement on Form S-1 (333-17729).
(2)  Incorporated by reference from the Company’s Form 8-K filed on December 29, 1997.
(3)  Incorporated by reference from the Company’s Form 8-K filed on June 3, 1998.
(4)  Incorporated by reference from the Company’s Form 8-K filed October 19, 1998.
(5)  Incorporated by reference from the Company’s Form 8-K filed September 14, 1998.
(6)  Incorporated by reference from the Company’s Form 10-Q filed February 15, 2001.

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exv5w1
 

Exhibit 5.1

January 10, 2003

Board of Directors
CIENA Corporation
1201 Winterson Road
Linthicum, Md. 21090

Ladies and Gentlemen:

     We are acting as special counsel to CIENA Corporation, a Delaware corporation (the “Company”), in connection with its registration statement on Form S-8, as amended (the “Registration Statement”), filed with the Securities and Exchange Commission relating to the registration of up to an additional 18,175,278 shares of the Company’s common stock, par value $.01 per share, issuable under the CIENA Corporation 1999 Non-Officer Stock Option Plan (the “1999 Plan”) and up to an additional 3,245,585 shares of the Company’s Common Stock, par value $.01 per share (collectively with the 18,175,278 shares issuable under the 1999 Plan, hereafter referred to as the “Shares”), issuable under the Third Amended and Restated CIENA Corporation 1994 Stock Option Plan (the “1994 Plan,” and collectively with the 1999 Plan, hereafter referred to as the “Plans”). This opinion letter is furnished to you at your request to enable you to fulfill the requirements of Item 601(b)(5) of Regulation S-K, 17 C.F.R. § 229.601(b)(5), in connection with the Registration Statement.

     For purposes of this opinion letter, we have examined copies of the following documents:

  1.   An executed copy of the Registration Statement.
 
  2.   Copies of the Plans.
 
  3.   The Third Restated Certificate of Incorporation of the Company, as amended, as certified by the Secretary of the State of the State of Delaware on January 10, 2003 and by the Secretary of the Company on the date hereof as being complete, accurate, and in effect.
 
  4.   The Bylaws of the Company, as certified by the Secretary of the Company on the date hereof as being complete, accurate, and in effect.
 
  5.   Resolutions of the Board of Directors of the Company as certified by the Secretary of the Company on the date hereof as being complete, accurate, and in effect, relating to the authorization and issuance of the Shares and arrangements in connection therewith.

     In our examination of the aforesaid documents, we have assumed the genuineness of all signatures, the legal capacity of all natural persons, the accuracy and completeness of all

 

 

documents submitted to us, the authenticity of all original documents, and the conformity to authentic original documents of all documents submitted to us as copies (including telecopies). This opinion letter is given, and all statements herein are made, in the context of the foregoing.

     This opinion letter is based as to matters of law solely on the Delaware General Corporation Law, as amended. We express no opinion herein as to any other laws, statutes, ordinances, rules, or regulations. As used herein, the term “Delaware General Corporation Law, as amended” includes the statutory provisions contained therein, all applicable provisions of the Delaware Constitution and reported judicial decisions interpreting these laws.

     Based upon, subject to and limited by the foregoing, we are of the opinion that the Shares, when issued and delivered in the manner and on the terms contemplated in the Registration Statement and the Plans, will be validly issued, fully paid and non-assessable.

     This opinion letter has been prepared for your use in connection with the Registration Statement and speaks as of the date hereof. We assume no obligation to advise you of any changes in the foregoing subsequent to the delivery of this opinion letter.

     We hereby consent to the filing of this opinion letter as Exhibit 5.1 to the Registration Statement. In giving this consent, we do not thereby admit that we are an “expert” within the meaning of the Securities Act of 1933, as amended.

  Very truly yours,

  /s/ HOGAN & HARTSON L.L.P.                  
HOGAN & HARTSON L.L.P.

-2-

exv23w2
 

Exhibit 23.2

CONSENT OF INDEPENDENT ACCOUNTANTS

We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated December 10, 2002 relating to the financial statements of CIENA Corporation, which appears in CIENA Corporation’s Annual Report on Form 10-K for the year ended October 31, 2002.

/s/ PricewaterhouseCoopers LLP
McLean, Virginia
January 7, 2002