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As filed with the Securities and Exchange Commission on June 16, 2003

Registration No. 333-104825

SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

POST EFFECTIVE AMENDMENT NO. 1 TO FORM S-4
ON
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)
     

WaveSmith Networks, Inc. Amended and Restated
2000 Stock Option and Incentive 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
Stephanie D. Marks
Hogan & Hartson L.L.P.
111 South Calvert Street
Baltimore, Maryland 21202
(410) 659-2700

Exhibit Index Appears on Page 7

 

EXPLANATORY NOTE

     The Registrant is filing this Post Effective Amendment No. 1 to Form S-4 on Form S-8 to register the issuance of 193,634 shares of common stock under the WaveSmith Networks, Inc. Amended and Restated 2000 Stock Option and Incentive Plan that the Registrant has assumed pursuant to the Agreement and Plan of Merger dated April 9, 2003 between the Registrant and WaveSmith Networks, Inc., a Delaware corporation, pursuant to which WaveSmith Networks merged with and into the Registrant effective June 16, 2003.

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 “Registrant”) 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 filed with the Commission 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, including the Registrant’s Quarterly Reports on Form 10-Q for the quarters ended January 31, 2003 and April 30, 2003, filed with the Commission on February 20, 2003 and May 22, 2003, respectively, and the Registrant’s Current Reports on Form 8-K filed with the Commission on December 12 and 20, 2002 and January 14 and 23, 2003; and
 
  (c)   The description of the Registrant’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 Registrant 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 Registrant’s common stock is registered under Section 12(g) of the Exchange Act).

Item 5.  Interests of Named Experts and Counsel.

     Not applicable.

Item 6.  Indemnification of Directors and Officers.

     Section 145 of the Delaware General Corporation Law permits indemnification of officers, directors and other corporate agents under certain circumstances and subject to certain limitations. The Registrant’s Third Amended and Restated Certificate of Incorporation and bylaws provide that the Registrant shall indemnify its directors, officers, employees and agents to the full extent permitted by the 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.

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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
 
5.1   Opinion of Hogan & Hartson L.L.P. (previously filed)
 
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 Registrant’s Registration Statement on Form S-1 (No. 333-17729).
 
(2)   Incorporated by reference from the Registrant’s Form 8-K filed on December 29, 1997.
 
(3)   Incorporated by reference from the Registrant’s Form 8-K filed on June 3, 1998.
 
(4)   Incorporated by reference from the Registrant’s Form 8-K filed September 14, 1998.
 
(5)   Incorporated by reference from the Registrant’s Form 8-K filed October 19, 1998.

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; and

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                     (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.

                (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 16th day of June, 2003.

  CIENA CORPORATION

  By:  /s/ Russell B. Stevenson, Jr.
Russell B. Stevenson, Jr.
Senior Vice President, General Counsel and Secretary

POWER OF ATTORNEY

     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
 
 
 
/S/ PATRICK H. NETTLES, PH.D.*
Patrick H. Nettles, Ph.D.		   Executive Chairman   June 16, 2003
 
/S/ GARY B. SMITH*
Gary B. Smith		   President, Chief Executive Officer and Director
(Principal Executive Officer) 		  June 16, 2003
 
/S/ JOSEPH R. CHINNICI*
Joseph R. Chinnici		   Senior Vice President, Finance and Chief Financial Officer
(Principal Financial Officer) 		  June 16, 2003
 
/S/ ANDREW C. PETRIK*
Andrew C. Petrik		   Vice President, Controller and Treasurer
(Principal Accounting Officer) 		  June 16, 2003
 
/S/ STEPHEN P. BRADLEY*
Stephen P. Bradley		   Director   June 16, 2003
 
/S/ HARVEY B. CASH*
Harvey B. Cash		   Director   June 16, 2003
 
/S/ DON DAVIS, JR.*
Don Davis, Jr.		   Director   June 16, 2003

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Signature   Title   Date
 
 
 
 
/S/ JOHN R. DILLON*
John R. Dillon		   Director   June 16, 2003
 
/S/ LAWTON W. FITT*
Lawton W. Fitt		   Director   June 16, 2003
 
/S/ JUDITH M. O’BRIEN*
Judith M. O’Brien		   Director   June 16, 2003
 
/S/ GERALD H. TAYLOR*
Gerald H. Taylor		   Director   June 16, 2003
 
*Pursuant to Power of Attorney        
 
By:  /s/ Russell B. Stevenson, Jr.
Russell B. Stevenson, Jr.
Attorney-in-Fact
        

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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
 
5.1   Opinion of Hogan & Hartson L.L.P. (previously filed)
 
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 Registrant’s Registration Statement on Form S-1 (No. 333-17729).
 
(2)   Incorporated by reference from the Registrant’s Form 8-K filed on December 29, 1997.
 
(3)   Incorporated by reference from the Registrant’s Form 8-K filed on June 3, 1998.
 
(4)   Incorporated by reference from the Registrant’s Form 8-K filed September 14, 1998.
 
(5)   Incorporated by reference from the Registrant’s Form 8-K filed October 19, 1998.

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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.

PricewaterhouseCoopers LLP

McLean, Virginia
June 16, 2003