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As filed with the Securities and Exchange Commission on May 14, 1997
Registration No. 333-_________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CIENA CORPORATION
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(Exact name of registrant as specified in its charter)
DELAWARE 23-2725311
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(State or other jurisdiction (I.R.S. employer identification no.)
of incorporation or organization)
920 ELKRIDGE LANDING ROAD
LINTHICUM, MD 21090
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(Address of principal executive offices)
CIENA CORPORATION AMENDED AND RESTATED
1994 EMPLOYEE STOCK OPTION PLAN
CIENA CORPORATION 1996 OUTSIDE DIRECTORS
STOCK OPTION PLAN
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(Full title of the plan)
G. ERIC GEORGATOS
VICE PRESIDENT, GENERAL COUNSEL
AND SECRETARY
CIENA CORPORATION
920 ELKRIDGE LANDING ROAD
LINTHICUM, MD 21090
(410) 865-8500
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(Name, address and telephone number, including area code, of agent for service)
Copy to:
MICHAEL J. SILVER
HOGAN & HARTSON L.L.P.
111 SOUTH CALVERT STREET
BALTIMORE, MD 21202
(410) 659-2700
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of securities Amount to be maximum offering maximum aggregate Amount of
to be registered registered price per share (1) offering price (1) registration fee (1)
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COMMON STOCK, PAR VALUE (a) 12,613,955 $(a) 3.0669 $(a) 38,685,738.59 $(a) 11,722.95
$.01 (b) 8,186,045 $(b) 32.875 $(b) 269,116,229.38 $(b) 81,550.37
Total: $93,273.32
=============================================================================================================================
(1) Estimated pursuant to Rule 457(c) and (h) solely for purposes of
calculating the amount of the registration fee, based on (a) the weighted
average option exercise price of $3.0669 per share for the 12,613,955 shares
issuable upon exercise of currently outstanding options and (b) the average of
the high and low prices per share of CIENA Corporation Common Stock, par value
$.01 per share, on May 7, 1997, as reported on the Nasdaq National Market with
respect to the other 8,186,045 shares otherwise issuable under the plans
listed above.
2
CIENA CORPORATION
SHARES OF COMMON STOCK
PAR VALUE $.01 PER SHARE
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OFFERED PURSUANT TO THE
CIENA CORPORATION
AMENDED AND RESTATED 1994 EMPLOYEE STOCK OPTION PLAN
1996 OUTSIDE DIRECTORS STOCK OPTION PLAN
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This Prospectus covers an aggregate of 20,800,000 shares of common
stock, par value $.01 per share (the "Common Stock"), of CIENA Corporation, a
Delaware corporation ("the "Company") which are issuable or have been issued
upon exercise of stock options granted under the Amended and Restated 1994
Employee Stock Option Plan (the "Employee Plan") and the 1996 Outside Directors
Stock Option Plan (the "Directors Plan," and, together with the Employee Plan,
the "Plans"). This Prospectus also covers the resale of (i) the Common Stock
issuable upon exercise of such options and (ii) the restricted Common Stock
previously issued upon the exercise of options granted pursuant to the Plans.
See "General Information."
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NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS, OTHER THAN THOSE CONTAINED HEREIN, IN CONNECTION WITH THE
OFFER CONTAINED IN THIS PROSPECTUS, AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
COMPANY. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A
SOLICITATION OF AN OFFER TO BUY ANY SECURITIES IN ANY JURISDICTION TO ANY
PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION IN SUCH
JURISDICTION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE
HEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE ANY IMPLICATION THAT THERE HAS
BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY OR IN THE PLANS SINCE THE DATE
HEREOF, OR THAT THE INFORMATION CONTAINED OR INCORPORATED BY REFERENCE HEREIN
IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION, NOR HAS THE COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
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The date of this Prospectus is May 14, 1997
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GENERAL INFORMATION
THIS DOCUMENT CONSTITUTES PART OF THE PROSPECTUS COVERING SECURITIES
THAT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"). The Prospectus does not contain all of the information set
forth in the registration statement filed with the Securities and Exchange
Commission (the "Commission") for registration of such securities (the
"Registration Statement"), certain portions of which have been omitted in
accordance with the rules and regulations of the Commission. The information
omitted may be obtained from the Commission's Public Reference Room upon
payment of prescribed fees or by accessing the Commission's World Wide Web site
at http://www.sec.gov. The Company undertakes to provide without charge to
each person to whom a copy of this Prospectus is delivered, upon written or
oral request of such person, a copy of any or all documents or parts thereof
containing information incorporated by reference in Item 3 of Part II of the
Registration Statement, other than the exhibits to such documents (unless such
exhibits are specifically incorporated by reference into such documents), which
documents are incorporated by reference in this Prospectus. Such requests
should be directed to CIENA Corporation, Attention: Eric Georgatos. The
Company's telephone number is (301) 317-5800. Additional copies of this
Prospectus also may be obtained upon request at such address or telephone
number.
This Prospectus covers (i) the sale of shares of Common Stock (the
"Shares") issuable by the Company upon exercise of options granted under the
Plans, (ii) the resale of shares held by affiliates and (iii) the resale of
restricted shares held by affiliates and non-affiliates ("Restricted Shares").
Such shares may be treasury shares or authorized but unissued shares. Each
option and Restricted Share will be evidenced by a written agreement (an
"Option Agreement") specifying, among other things, the times during which, and
the terms and conditions upon which, the option may be exercised.
The Employee Plan was adopted by the Board of Directors of the Company
(the "Board") by resolution on August 16, 1994 and was duly approved by the
stockholders of the Company. The Employee Plan became effective on August 15,
1994. The Directors Plan was adopted by the Board by resolution on June 21,
1996 and became effective on that date. Except with respect to options then
outstanding, the Plans will expire on the date as of which the Board, in its
sole discretion, determines that the Plans shall terminate. The Board may
modify the Plans in any respect but must obtain stockholder approval for
certain modifications.
Option holders ("Optionees") and stockholders who are affiliates of
the Company may sell the Common Stock acquired under this Prospectus only
pursuant to a registration statement and prospectus or pursuant to an available
exemption from the registration requirements of the Securities Act. An
"affiliate" is a person who directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with,
the Company. Persons who are affiliates of the Company should consult both
their own and the Company's counsel if they wish to resell shares acquired
under this Prospectus. Shareholders who acquired Restricted Shares through the
exercise of options or through a restricted stock award may resell the shares
pursuant to this Registration Statement by means of the reoffer prospectus
which is included as part of this Registration Statement. However, until such
time as the Company meets the registrant requirements of Form S-3, the amount
of securities to be reoffered or resold by means of the reoffer prospectus by
any person (and any other person with whom he or she is acting in concert for
the purpose of selling securities of the Company) may not exceed, during any
three month period, the amount specified in Rule 144(E) of the Securities Act
of 1933. Optionees who are not affiliates of the Company may sell shares
acquired under this Prospectus without regard to these restrictions.
In addition, Optionees who are officers or directors of the Company or
beneficial owners of more than 10% of the Common Stock are advised to consult
their counsel as to the applicability of Section 16 of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), to their transactions under the
Plans. Section 16 requires persons subject to its provisions to file reports
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with the Commission of their transactions in the Company's equity securities.
Moreover, persons subject to Section 16 may be required to turn over to the
Company any profits realized upon a purchase and sale of the Company's equity
securities within a period of less than six months.
THE SUMMARIES HEREIN OF THE PLANS DO NOT PURPORT TO BE COMPLETE, AND
REFERENCE IS MADE TO THE PLANS (COPIES OF WHICH ARE FILED AS EXHIBITS TO THE
REGISTRATION STATEMENT AND ARE INCORPORATED HEREIN BY REFERENCE) FOR A FULL AND
COMPLETE STATEMENT OF THE TERMS AND PROVISIONS THEREOF. Copies of the Plans
are available from the Company upon request and will be separately sent or
given to participants in the Plans, as specified by Rule 428(b)(1) of the
Securities Act. Each Optionee should refer to the Plans and his or her
particular Option Agreement for information concerning the specific terms and
conditions of his or her option.
The principal executive offices of the Company are located at 8530
Corridor Road, Savage, MD 20763. Its telephone number is (301) 317-5800.
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RISK FACTORS
This Prospectus should be read in conjunction with the risk factors
contained in the Company's Form 8-K filed with the Commission on February 19,
1997, as modified by those risk factors contained in subsequent periodic
reports filed with the Commission.
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SUMMARY DESCRIPTIONS
OF THE
CIENA CORPORATION
AMENDED AND RESTATED 1994 EMPLOYEE STOCK OPTION PLAN
AND THE
1996 OUTSIDE DIRECTORS STOCK OPTION PLAN
THE QUESTIONS AND ANSWERS SET FORTH BELOW HAVE BEEN PREPARED TO
PROVIDE YOU WITH A BRIEF DESCRIPTION OF THE PLANS IN AN EASY-TO-READ FORMAT.
FOR A DETAILED DESCRIPTION OF YOUR STOCK OPTION BENEFITS, PLEASE REFER TO YOUR
OPTION AGREEMENT AND THE PLANS. THESE SUMMARY DESCRIPTIONS OF THE PLANS
CONSTITUTE PART OF THE PROSPECTUS COVERING THE SHARES OF THE COMMON STOCK THAT
HAVE BEEN REGISTERED PURSUANT TO THE SECURITIES ACT.
QUESTION: WHAT IS AN OPTION?
ANSWER: An option is a right to buy securities, such as shares of common
stock, subject to terms and conditions specified in an
underlying agreement. Stock options can be granted pursuant to
a stand-alone agreement or, as in this case, under a stock
option plan.
QUESTION: HOW LONG MAY OPTIONS BE GRANTED UNDER THE PLANS?
ANSWER: Options may be granted under the Plans until the Board
terminates the Plans or any of the following "transfer of
control" events occur: (i) the Company's dissolution or
liquidation, (ii) a merger, consolidation, or reorganization
with one or more other entities in which the stockholders of the
Company do not retain at least a majority of the beneficial
interest in the surviving corporation, (iii) a sale of all or
substantially all of the assets of the Company to another
entity, or (iv) the direct or indirect sale or exchange of all
or substantially all of the capital stock of the Company to
another entity in which the stockholders of the Company do not
hold at least a majority of the beneficial interest in such
entity's voting stock.
QUESTION: WILL A CHANGE IN CONTROL OF THE COMPANY AFFECT MY OPTION?
ANSWER: Thirty days prior to the proposed effective date of any transfer
of control, each Optionee under a stock option agreement
outstanding for 335 days or more shall be credited, as of the
proposed effective date of the transfer of control, and if still
employed by the Company on that date, with 100% of such shares,
for purposes of determining the percentage of shares which shall
be immediately exercisable and/or fully vested under each Option
Agreement. Furthermore, in the event of a transfer of control,
the surviving or acquiring corporation shall either assume the
Company's rights and obligations under outstanding Option
Agreements or substitute options of the surviving or acquiring
corporation for such outstanding options. In the event the
surviving or acquiring corporation elects not to assume or
substitute for such outstanding options in connection with the
transfer of control, any unexercisable and/or unvested shares
subject to such outstanding stock option agreements shall be
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immediately exercisable and fully vested as of the date 30 days
prior to the proposed effective date of the transfer of control.
QUESTION: WILL A CHANGE IN CAPITALIZATION OF THE COMPANY AFFECT MY OPTION?
ANSWER: If the number of outstanding shares of Common Stock is increased
or decreased or changed into or exchanged for a different number
or kind of shares or other securities of the Company by reason
of any recapitalization, reclassification, stock split-up,
combination of shares, exchange of shares, stock dividend or
other distribution payable in capital stock, or other increase
or decrease in such shares effected without receipt of
consideration by the Company, a proportionate and appropriate
adjustment shall be made by the Company in the number and class
of shares of Common Stock subject to the Plans, and to any
outstanding options and their exercise price. In the event a
majority of the shares which are of the same class as the shares
that are subject to outstanding options are exchanged for,
converted into, or otherwise become (whether or not pursuant to
a transfer of control) shares of another corporation, the
Company may unilaterally amend the outstanding options to
provide that such options are exercisable for shares in the
other corporation. In the event of any such amendment, the
number of shares and the exercise price will be adjusted in a
fair and equitable manner.
QUESTION: AM I ENTITLED TO EXERCISE ANY OF THE STOCK OWNERSHIP RIGHTS FOR
COMMON STOCK PRIOR TO EXERCISING MY OPTION?
ANSWER: You will have no dividend, voting or other stockholder rights
with respect to any Common Stock issuable pursuant to your
options until you exercise an option, in whole or in part.
QUESTION: CAN MY OPTION BE AMENDED WITHOUT MY CONSENT?
ANSWER: No.
QUESTION: ARE THE SHARES OF COMMON STOCK ISSUABLE UNDER THE PLANS
REGISTERED WITH THE COMMISSION?
ANSWER: All shares of Common Stock currently issuable under the Plans
have been registered with the Commission on a Form S-8
Registration Statement (the "Registration Statement").
QUESTION: DOES THE REGISTRATION STATEMENT CONTAIN ANY INFORMATION ABOUT
THE PLANS AND THE COMPANY'S OPERATIONS AND FINANCIAL CONDITION?
ANSWER: Part I of the Registration Statement includes this reoffer
Prospectus and incorporates by reference the Company's final
prospectus with respect to the Company's initial public offering
of the Common Stock, dated February 7, 1997, and filed with the
Commission under the Securities Act, and all reports since
filed, and to be filed, with the Commission. Such information
also is incorporated by reference in and constitutes part of
this summary description and the Prospectus of which this
summary description is a part. The Registration Statement
contains some disclosure which is not incorporated into this
summary description, but which may be obtained from the
Commission's Public Reference Room upon payment of prescribed
fees or by accessing the Commission's World Wide Web site at
http://www.sec.gov.
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QUESTION: HOW CAN I OBTAIN THE INFORMATION INCORPORATED BY REFERENCE INTO
THE REGISTRATION STATEMENT, AND ANY OTHER RELEVANT INFORMATION?
ANSWER: The Company undertakes to provide to you and all other
participating employees, without charge, upon written or oral
request, a copy of any document or any part of such a document
containing information incorporated by reference in the
Registration Statement. In addition, this summary description
is accompanied by a copy of the Company's final prospectus dated
February 7, 1997, which contains audited financial information
for the Company's latest fiscal year. Requests for information
should be directed to Eric Georgatos, 8530 Corridor Road,
Savage, MD 20763 (telephone number: (301) 317-5800).
QUESTION: WHEN AND HOW IS THE EXERCISE PRICE OF AN OPTION DETERMINED?
ANSWER: The exercise price is fixed by the Committee and stated in each
Option Agreement. In the case of an incentive stock option, the
exercise price per share of Common Stock may not be less than
the fair market value of the Common Stock on the date the option
is granted (as determined in good faith by the Committee). In
the case of certain 10% stockholders, the exercise price
applicable to an incentive stock option may not be less than
110% of the fair market value of the Common Stock on the date
the option is granted. Options will qualify as incentive stock
options only to the extent that the aggregate fair market value
of the Common Stock covered by incentive stock options that
become exercisable for the first time by any Optionee during any
calendar year does not exceed $100,000. In the case of a
non-incentive stock option, the exercise price per share may not
be less than 85% of the fair market value of the Common Stock on
the date the option is granted (as determined in good faith by
the Committee).
QUESTION: HOW IS FAIR MARKET VALUE DETERMINED?
ANSWER: If the Common Stock continues to be quoted on the Nasdaq
National Market (or is listed on an established national or
regional stock exchange, or is publicly traded on an established
securities market), the fair market value will be the closing
price of the Common Stock in that market (or the highest such
price if there is more than one such market) on the trading day
immediately preceding the Grant Date (as defined below) or other
determination date. If there is no such closing price, then the
fair market value will be the mean between the highest bid and
lowest asked prices, or between the high and low sale prices on
such date, or, if no sale of the Common Stock has been made on
such day, on the next preceding day on which any such sale is
made. If the Common Stock is not so quoted, listed or traded,
the fair market value of the Common Stock will be determined in
good faith by the Board. "Grant Date" means the later of (i)
the date as of which the Committee approves the grant and (ii)
the date as of which the Optionee enters the relationship with
the Company resulting in his or her being eligible for grants.
QUESTION: HOW DO I EXERCISE MY OPTION?
ANSWER: You may exercise your option, in whole or in part, by delivery
of a written notice to the Committee which specifies the number
of shares for which the option is being exercised and which is
accompanied by payment in full of the applicable exercise price.
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QUESTION: WHAT ARE THE PERMISSIBLE METHODS OF PAYMENT OF THE AGGREGATE
EXERCISE PRICE?
ANSWER: Under the Employee Plan, the permissible methods of payment are:
(i) cash, a check payable to the Company, or a cash equivalent,
(ii) tender to the Company of shares of Common Stock having a
fair market value on the date of exercise equal to the aggregate
exercise price, or (iii) a recourse promissory note in a form
approved by the Company, (iv) the assignment of the proceeds of
a sale of some or all of the shares being acquired upon the
exercise of the option, or (v) some combination of the
foregoing. Under the Directors Plan, the permissible methods
of payment are: (i) cash, or check payable to the Company, or
cash equivalent, (ii) tender to the Company of shares of Common
Stock having a fair market value equal to the aggregate exercise
price, (iii) by the assignment of the proceeds of a sale or loan
with respect to some or all of the shares being acquired upon
exercise of the option or (iv) any combination of the foregoing.
QUESTION: WHO WILL ISSUE THE SHARES OF COMMON STOCK UPON EXERCISE OF THE
OPTION?
ANSWER: The shares will be issued directly by the Company's transfer
agent and registrar, The First National Bank of Boston, upon the
written instruction of the Company.
QUESTION: ARE THERE ANY RESTRICTIONS ON THE SALE OR ISSUANCE OF SHARES OF
COMMON STOCK BY THE COMPANY?
ANSWER: The Company is not required to sell or issue any shares of
Common Stock under any option if the sale or issuance would
constitute a violation by the Optionee or the Company of any
provision of any law or regulation of any governmental
authority, including, without limitation, any federal or state
securities laws or regulations.
QUESTION: ARE THERE ANY RESTRICTIONS ON RESALE OF SHARES OF COMMON STOCK
ISSUABLE UNDER THE PLANS?
ANSWER: The Securities Act requires every person who offers or sells
securities to register such securities with the Commission
unless an exemption from registration is available. If you are
an "affiliate" of the Company, you may sell the Common Stock
acquired under the Plan only pursuant to a registration
statement and prospectus or pursuant to an available exemption
from the registration requirements of the Securities Act. In
addition, public sales of Common Stock by affiliates that are
not sold pursuant to a registration statement and prospectus
generally can be made only in compliance with the applicable
limitations of Rule 144 under the Securities Act. These
limitations (i) restrict the amount of shares that can be sold
by an affiliate during any three-month period to the greater of
1% of the then-outstanding shares of Common Stock or the average
weekly reported trading volume of the Common Stock during the
four calendar weeks preceding such sale, (ii) require that
current information about the Company be publicly available at
the time of sale, (iii) require the sale to be made either in
unsolicited brokers' transactions or directly to a market maker,
and (iv) require the seller to file a notice of the proposed
sale with the Commission at the time the order to sell is placed
with the broker, unless the amount to be sold neither exceeds
500 shares nor involves proceeds greater than $10,000. If you
are not an affiliate of the Company, you may sell shares
acquired under the Plans without regard to these restrictions.
For additional restrictions on resale of your Common Stock, if
any, please refer to your Option Agreement.
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QUESTION: MAY OPTIONS BE ASSIGNED OR TRANSFERRED TO THIRD PARTIES?
ANSWER: Options may not be assigned or transferred, other than by will
or the laws of descent and distribution. During an Optionee's
lifetime, only such Optionee (or, in the event of the Optionee's
legal incapacity or incompetency, the Optionee's guardian or
legal representative) may exercise his or her options.
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THE EMPLOYEE PLAN
QUESTION: WHAT IS THE PURPOSE OF THE EMPLOYEE PLAN?
ANSWER: The purpose of the Employee Plan is to attract, retain and
reward persons providing services to the Company and to motivate
such persons to contribute to the growth and profits of the
Company in the future.
QUESTION: WHAT OPTIONS MAY BE GRANTED UNDER THE EMPLOYEE PLAN?
ANSWER: The Employee Plan provides for grants of options to purchase
shares of Common Stock. Incentive stock options and
non-incentive stock options may be granted under the Employee
Plan, the tax consequences of which to you and the Company are
slightly different, as outlined below.
QUESTION: HOW MANY SHARES OF COMMON STOCK ARE ISSUABLE UNDER THE EMPLOYEE
PLAN?
ANSWER: 20,050,000 shares of Common Stock are issuable under the
Employee Plan.
QUESTION: WHO IS ELIGIBLE TO PARTICIPATE IN THE EMPLOYEE PLAN?
ANSWER: Options may be granted only to employees (including officers)
and directors of the Company or to individuals who are rendering
services as consultants, advisors or other independent
contractors to the Company. The Board or a duly appointed
committee of the Board (the "Committee") acting as the Employee
Plan administrator shall determine who is eligible to receive
options under the Employee Plan.
QUESTION: DOES MY STATUS AS AN OPTIONEE GIVE ME ANY RIGHTS AS AN EMPLOYEE?
ANSWER: Nothing in the Employee Plan or in any option granted or Option
Agreement entered into pursuant to the Employee Plan shall
confer on any person any right to remain in the employ of the
Company or any of its subsidiaries or interfere in any way with
the right of the Company or any of its subsidiaries either to
increase or decrease the compensation of any person or to
terminate any employment or other relationship between any
person and the Company or any of its subsidiaries.
QUESTION: HOW ARE OPTIONS GRANTED UNDER THE EMPLOYEE PLAN?
ANSWER: Subject to the terms and conditions of the Employee Plan, the
Committee may grant to eligible individuals options to purchase
such number of shares of Common Stock, on such terms and
conditions and with such limitations as the Committee may
determine. All options granted will be evidenced by a written
Option Agreement, which shall be executed by the Company and the
Optionee.
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QUESTION: WHEN IS MY OPTION EXERCISABLE?
ANSWER: An option may be granted pursuant to a vesting schedule under
which an option or portions of any option may not be exercised
until certain dates or during certain periods of time. However,
notwithstanding a specific vesting schedule, the Board may
choose to accelerate the date on which an option becomes
exercisable. You should consult your Option Agreement to
determine the specific vesting schedule applicable to you. Once
your options become exercisable, you may exercise them, in whole
or in part, at any time, as provided in your Option Agreement,
prior to the termination of your option or the expiration of a
ten-year period from the date on which the option was granted,
or, in the case of certain 10% stockholders, prior to the
expiration of a five-year period from the date of grant.
QUESTION: WHO ADMINISTERS THE EMPLOYEE PLAN?
ANSWER: The Employee Plan may be administered by the Board or by a duly
appointed committee of the Board (the "Committee"). At the time
of appointment to the Committee and during all periods of
service on the Committee, each Committee member must qualify as
a "disinterested person," as defined in Rule 16b-3 of the
Exchange Act.
QUESTION: WHAT ARE THE POWERS OF THE BOARD AND THE COMMITTEE WITH REGARD
TO THE EMPLOYEE PLAN?
ANSWER: The Board may delegate full power and authority to the Committee
to take all actions and make all determinations that are
required or that it deems necessary or appropriate under the
Employee Plan or any Option Agreement. The Committee also
prescribes the terms and provisions of each option granted under
the Employee Plan. All interpretations of the Committee of the
Employee Plan, any option granted, or any Option Agreement are
final.
QUESTION: CAN THE EMPLOYEE PLAN BE AMENDED WITHOUT MY CONSENT?
ANSWER: The Board or the Committee may terminate or amend the Employee
Plan or any option at any time but must obtain the approval of
stockholders for any modification that (a) increases the total
number of shares subject to options unless such increase results
from a change in capitalization, (b) changes the class eligible
to receive Incentive Stock Options, (c) expands the class
eligible to receive nonstatutory stock options or (d) requires
the approval of stockholders pursuant to Rule 16b-3 of the
Exchange Act.
QUESTION: MAY THE BOARD ADOPT INCENTIVE COMPENSATION ARRANGEMENTS IN
ADDITION TO THE EMPLOYEE PLAN?
ANSWER: Yes.
QUESTION: UNDER WHAT CIRCUMSTANCES WILL MY OPTION TERMINATE?
ANSWER: Generally, options expire 10 years from the date of grant (or
five years in the case of certain 10% stockholders). Your
Option Agreement may contain other provisions for termination in
the event of disability, death or the termination of your
employment. In addition, your option may terminate, together
with the Employee Plan and all other outstanding options issued
to other employees, following the occurrence of certain transfer
of control events (as described above).
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QUESTION: IS THE EMPLOYEE PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974 (ERISA) OR IS IT A QUALIFIED PLAN UNDER
SECTION 401(a) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "INTERNAL REVENUE CODE")?
ANSWER: No.
* * *
THE DIRECTORS PLAN
QUESTION: WHAT IS THE PURPOSE OF THE DIRECTORS PLAN?
ANSWER: The purpose of the Directors Plan is to attract and retain the
best possible non-employee members of the Board and to provide
additional incentives to those directors to promote the success
of the Company.
QUESTION: WHAT OPTIONS MAY BE GRANTED UNDER THE DIRECTORS PLAN?
ANSWER: The Directors Plan provides for grants of options to purchase
shares of Common Stock. The Directors Plan is a "formula" plan
providing for automatic grants of stock options to eligible
non-employee directors of the Company. Options granted under
the Directors Plan are not intended to qualify as incentive
stock options for tax law purposes.
QUESTION: HOW MANY SHARES OF COMMON STOCK ARE ISSUABLE UNDER THE DIRECTORS
PLAN?
ANSWER: 750,000 shares of Common Stock are issuable under the Directors
Plan. If any option granted under the Directors Plan expires,
terminates or is terminated or canceled for any reason before it
is exercised in full, the shares of Common Stock that were
subject to the unexercised portion of such option shall be
available for future options granted under the Directors Plan.
QUESTION: WHO IS ELIGIBLE TO PARTICIPATE IN THE DIRECTORS PLAN?
ANSWER: Options may be granted only to persons who, at the time of
grant, is a director of the Company who is not an employee (an
"Outside Director").
QUESTION: WHO ADMINISTERS THE DIRECTORS PLAN, AND WHAT ARE THE POWERS AND
RESPONSIBILITIES OF SUCH ENTITY?
ANSWER: The Directors Plan may be administered by the Board or by the
Committee. All questions of interpretation of the Directors
Plan or of any option shall be determined by the Board, and such
determination shall be final and binding upon all persons having
an interest in the Directors Plan or such option. The Board
shall have no authority, discretion, or power to select the
Outside Directors who will receive options, to set the exercise
price of the options, to determine the number of shares of
Common Stock to be subject to an option or the time at which an
option shall be granted, to establish the duration of an option,
or to alter any other terms or conditions specified in the
Directors Plan, except in the sense of administering the
Directors Plan subject to the provisions of the Directors Plan.
QUESTION: HOW ARE OPTIONS GRANTED UNDER THE DIRECTORS PLAN?
ANSWER: Options will be granted automatically under the Directors Plan.
Upon assuming directorship, each new director will automatically
be granted an initial option to
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purchase 75,000 shares of Common Stock. Thereafter, each
director will receive options to purchase 25,000 shares of
Common Stock on the date of each annual meeting of stockholders,
provided that the director continues to serve in such capacity.
QUESTION: WHEN IS MY OPTION EXERCISABLE?
ANSWER: Unless your Option Agreement provides otherwise, initial options
are exercisable over a period of three years and annual grants
are exercisable in full on the first anniversary of the date of
grant.
QUESTION: CAN THE DIRECTORS PLAN BE AMENDED WITHOUT MY CONSENT?
ANSWER: The Board may modify the Directors Plan from time to time in any
respect it may deem advisable, provided that the Directors Plan
may not be amended more than once in any six-month period other
than to comport with changes in the Internal Revenue Code of
1986, as amended (the "Internal Revenue Code"), the Employee
Retirement Income Security Act of 1974 (ERISA), or the rules
promulgated thereunder.
QUESTION: UNDER WHAT CIRCUMSTANCES WILL MY OPTION TERMINATE?
ANSWER: Your options will terminate as provided in your Option
Agreement. Your options may also terminate upon transfer of
control of the Company, as described above.
QUESTION: DOES MY STATUS AS AN OPTIONEE GIVE ME ANY RIGHTS AS A DIRECTOR?
ANSWER: Nothing in the Directors Plan will confer on any person any
right to continue as a member of the Board or interfere in any
way with the right of the Company to terminate such
relationship.
QUESTION: IS THE DIRECTORS PLAN SUBJECT TO ERISA OR IS IT A QUALIFIED PLAN
UNDER SECTION 401(a) OF THE INTERNAL REVENUE CODE?
ANSWER: No.
* * *
-12-
14
The following portion of this summary description that relates to
federal income tax consequences is intended to summarize the general principles
of current federal income tax law applicable to incentive stock options and
non-incentive stock options that may be granted under the Plans. While it is
believed that the following statements accurately summarize existing provisions
of the Internal Revenue Code and its legislative history and regulations, and
the applicable administrative and judicial interpretations, these statements
are only summaries, and the rules in question are quite detailed and
complicated. Moreover, legislative, administrative, regulatory or judicial
changes or interpretations may occur that would modify such statements.
Individual financial situations may vary, and state and local tax consequences
may be significant. Therefore, you should consult your own tax advisors
concerning the tax consequences of the grant, exercise or surrender of options
granted to you under the Plans and the disposition of any shares of Common
Stock acquired pursuant to the exercise of such options.
QUESTION: WHAT ARE THE FEDERAL INCOME TAX CONSEQUENCES OF AN INCENTIVE
STOCK OPTION?
ANSWER: If you are an employee of the Company or any of the Company's
subsidiaries from the date an option is granted through a date
within three months before the date of exercise of the option,
you will not recognize income at the time an incentive stock
option is exercised (except that the alternative minimum tax may
apply) and will recognize long term capital gain upon a
subsequent disposition of the shares if you hold the shares for
at least two years after the date of grant and for one year
after the date of exercise. The three-month period is extended
to one year if your employment is terminated as a result of
death or disability. If the one-year and two-year holding
period mentioned above are not met, you will recognize ordinary
income upon the disposition of the shares in an amount equal to
the excess of the fair market value of the shares at the time
the option was exercised over its exercise price. The balance
of the realized gain, if any, will be capital gain.
QUESTION: WHAT ARE THE FEDERAL INCOME TAX CONSEQUENCES OF TENDERING SHARES
OF COMMON STOCK IN PAYMENT OF THE EXERCISE PRICE FOR SHARES
UNDERLYING AN INCENTIVE STOCK OPTION?
ANSWER: If you exercise an incentive stock option by tendering shares of
Common Stock with a fair market value equal to part or all of
the exercise price, the exchange of shares will be treated as a
nontaxable exchange (except that this treatment would not apply
if you acquired the shares being transferred pursuant to the
exercise of an incentive stock option and had not satisfied the
special holding period requirements summarized above).
QUESTION: WHAT ARE THE FEDERAL INCOME TAX CONSEQUENCES OF A NON-INCENTIVE
STOCK OPTION?
ANSWER: If you are a holder of a non-incentive stock option, you will
recognize ordinary income in an amount equal to the difference
between the exercise price and the fair market value of the
Common Stock at the time of exercise. If the Company complies
with applicable reporting requirements, it will generally be
entitled to a business expense deduction in the same amount and
at the same time as you recognize any ordinary income on
exercise (subject to certain limitations). Upon a subsequent
sale or exchange of shares acquired pursuant to the exercise of
a non-incentive stock option, you will have a taxable gain or
loss, measured by the difference between the amount realized on
disposition and the tax basis of the shares (generally, the
amount paid for the shares plus the amount treated as ordinary
income at the time the option was exercised).
-13-
15
QUESTION: WHAT ARE THE FEDERAL TAX CONSEQUENCES OF SURRENDERING SHARES OF
COMMON STOCK IN PAYMENT OF THE EXERCISE PRICE FOR A
NON-INCENTIVE STOCK OPTION?
ANSWER: If you surrender shares of Common Stock in payment of part or
all of the exercise price of a non-incentive stock option, no
gain or loss will be recognized with respect to the shares
surrendered (regardless of whether the shares were acquired
pursuant to the exercise of an incentive stock option), and you
will be treated as receiving an equivalent number of shares
pursuant to the exercise of the option in a nontaxable exchange.
The basis of the shares surrendered will be treated as the
substituted tax basis for an equivalent number of shares
received, and the new shares will be treated as having been held
for the same holding period as had expired with respect to the
transferred shares. The difference between the aggregate
exercise price and the aggregate fair market value of the shares
received pursuant to the exercise of the option will be taxed as
ordinary income (just as if you had paid the exercise price in
cash).
* * *
The foregoing is only a summary of some of the material provisions and
operational features of the CIENA Corporation Amended and Restated 1994
Employee Stock Option Plan and the 1996 Outside Directors Stock Option Plan.
Please refer to the Plans for further information regarding the Plans and the
rights of Optionees under the Plans. To the extent that this summary
description conflicts with any provision in the Plans or in any particular
Option Agreement issued thereunder, such conflicting provision of the Plans or
Option Agreement shall control.
-14-
16
INCORPORATION BY REFERENCE
The Company hereby incorporates by reference into this Prospectus the
following documents filed by it with the Commission:
(a) All reports filed by the Company with the Commission
pursuant to Section 13(a) or 15(d) of the Securities and
Exchange Act of 1934 since October 31, 1996; and
(c) The description of the Company's common stock contained in
the Company's Registration Statement on Form S-1, No.
333-17729, filed with the Commission on December 12, 1996,
which is an exhibit to the Company's Form 8-A registration
statement filed with the Commission on January 13, 1997.
In addition, all documents filed by the Company subsequent to the date
hereof pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), prior to the filing of a
post-effective amendment 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 Prospectus and to be part of hereof from
the date of filing of such documents.
This Prospectus does not contain all of the information set forth in
the Registration Statement, certain portions of which have been omitted in
accordance with the rules and regulations of the Commission. The information
omitted may be obtained as described under "General Information."
-15-
17
SELLING STOCKHOLDERS
The following table sets forth information about certain selling
securityholders. Excluded from this table are non-affiliates who, as of May
13, 1997, hold the lesser of 1000 shares or one percent of the shares issuable
under the Plans.
NAME OF SELLING STOCKHOLDER NUMBER OF SHARES OFFERED
ALEXANDER, STEPHEN B 50,000
[VICE PRESIDENT, TRANSPORT PRODUCTS]
BACHISM, BETH L 7,290
BAUTISTA, LAURIE N 10,000
BILTER, DENNIS L 25,000
BOGDAN, FRANCIS J 3,000
BURKE, MARGARET A 75,000
BUTTS, GILBERT K 5,000
CHADDICK, STEVE 300,000
[SENIOR VICE PRESIDENT, PRODUCTS AND TECHNOLOGIES]
CHAMBERLAIN, MICHELE 1,200
CHEN, TAI-SEUNG 37,875
CHINNICI, JOSEPH R 7,500
[VICE PRESIDENT, FINANCIE AND CHIEF FINANCIAL OFFICER]
CHURCHMAN, LISA A 6,500
CONDICT, KEITH A 100,000
DIROCCO, DAWN M 6,600
DUBLIN, BARBARA 2,000
EVANS, DAVID 116,000
FAGEN, MICHAEL W 250,000
[VICE PRESIDENT, BUSINESS DEVELOPMENT]
FOUST, BRIAN W 4,000
GEORGATOS, G. ERIC 20,800
[VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY]
GOODALL, LINDA P 2,500
GRIMES, WILLIAM F 6,165
HARMON, STEPHEN R 75,000
HEMING, JOSEPH W 5,000
HOSFORD, THOMAS R 12,500
HUANG, LARRY P 600,000
[SENIOR VICE PRESIDENT, SALES AND MARKETING]
JOHNSON, GARY P 43,750
JOHNSON, PAMELA L 1,000
JONES, WESLEY R 75,000
KINAMONT, KAREN R 1,000
KIRBY, YVETTE S 2,000
LANE, MICHAEL R 3,125
LEVINSON, LAWRENCE C 13,500
LITZ, ROY C 21,800
MADAK, DAWN 7,500
MALIK, IFRAN 100,000
MARLOW, SHIRLEY 1,000
MECKLEY, MICHAEL J 6,000
MILNE, DAWN C 7,500
MIZRAHI, VICTOR 50,000
MORAN, DAVID J 1,900
MURRAY, ANNE S 7,500
NACE, WANDA B 2,500
NEWMAN, DONALD T 70,000
O'LEARY, MARILYN F 2,500
PFEIFFER, VON C 3,500
POLIFKO, DAVID M 25,000
POOLADDEJ, JAMSHID 79,165
PRADIEU, IVES G 2,000
PRICE, TRACY 2,000
RANSFORD, MICHAEL J 5,600
ROOT, JAMES H 1,250
SEIDMAN, REBECCA K 12,500
[VICE PRESIDENT, HUMAN RESOURCES DEVELOPMENT]
SELIG, NANCY G 2,500
SMITH, CECIL D 17,500
SRIDHAR, BALAKRISHNAN 5,000
VANDEVERE, JAMES M 12,500
WEST, JAMES H 12,500
WHISNANT, JEFFREY K 30,000
WIDMAN, RICHARD L 5,800
WISEMAN, RONALD L 125,000
WOLFF, JOHN P 4,000
YAFFE, HENRY H 17,000
YU, ZHENGCHEN 1,200
Total Shares 2,510,520
-16-
18
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 final prospectus dated February 7,
1997, as filed with the Commission pursuant to Rule
424(b) of the Securities Act and which contains
audited financial statements for the fiscal year
ended October 31, 1996;
(b) The description of the Registrant's Common Stock,
$.01 par value per share (the "Common Stock"),
contained in the Registrant's Registration Statement
on Form 8-A filed with the Commission on January 13,
1997;
In addition, all documents and reports filed by the Registrant
subsequent to the date hereof pursuant to Sections 13(a), 13(c), 14, or 15(d)
of the Exchange Act, and prior to the filing of a post-effective amendment
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 of 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).
-17-
19
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Item 14 of Part II of the Registration Statement of the
Registrant on Form S-1 (Registration No. 333-17729) is hereby incorporated by
reference into this Registration Statement.
* * *
Insofar as indemnification for liabilities arising under the
Securities Act 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
therefore is unenforceable. In the event that a claim for indemnification
against such liabilities is asserted by such person in connection with the
offering of the Common Stock (other than for 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) 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 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 the issue.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit
Number Description
------- -----------
3.1 Certificate of Amendment to Third Restated
Certificate of Incorporation of Registrant
(filed as Exhibit 3.1 to the Registrant's
Registration Statement on Form S-1 (File No.
333-17729) (the "Initial Form S-1") and
incorporated herein by reference).
3.2 Third Restated Certificate of Incorporation
of Registrant (filed as Exhibit 3.2 to the
Initial Form S-1 and incorporated herein by
reference).
4.1 Form of Common Stock Certificate (filed as
Exhibit 4.1 to the Initial Form S-1 and
incorporated herein by reference).
5.1 Opinion of Hogan & Hartson L.L.P. regarding
the legality of the securities being
registered.
-18-
20
10.1 Form of Indemnification Agreement for
officers and directors of CIENA Corporation
(filed as Exhibit 10.1 to the Registrant's
Initial Form S-1 and incorporated herein by
reference).
10.2 Amended and Restated 1994 Stock Option Plan
(filed as Exhibit 10.2 to the Initial Form
S-1 and incorporated herein by reference).
10.3 Forms of Employee Stock Option Agreement
(filed as Exhibit 10.3 to the Initial Form
S-1 and incorporated herein by reference).
10.4 1996 Outside Directors Stock Option Plan
(filed as Exhibit 10.4 to the Initial Form
S-1 and incorporated herein by reference).
10.5 Forms of 1996 Outside Directors Stock Option
Agreement (filed as Exhibit 10.5 to the
Initial Form S-1 and incorporated herein by
reference).
10.6 Form of Amendment No. 1 to Indemnification
Agreement for officers and directors of CIENA
Corporation.
23.1 Consent of Price Waterhouse LLP.
23.2 Consent of Hogan & Hartson L.L.P. (included
in their opinion filed as Exhibit 5.1 hereto).
24.1 Power of Attorney (included on signature
page).
99.2 Section 145 of the Delaware General
Corporation Law.
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(a) 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;
(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% change
in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the
effective registration statement;
-19-
21
(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)(i) and (a)(ii)
do not apply if the Registration Statement is on Form S-3 or
Form S-8, and the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section
13 or Section 15(d) of the Exchange Act that are incorporated
by reference in the Registration Statement.
(b) 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.
(c) 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.
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 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 therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
The undertaking concerning indemnification is set forth under
the response to Item 6.
-20-
22
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Savage, State of Maryland, on May 14, 1997.
CIENA CORPORATION
By: /s/ Patrick H. Nettles
-----------------------------------
Patrick H. Nettles
President, Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Patrick H. Nettles, Joseph R. Chinnici
and G. Eric Georgatos, jointly and severally, each in his own capacity, as true
and lawful attorneys-in-fact, with full power of substitution, for him and in
his name, place and stead, in any and all capacities, to sign any and all
amendments to this Registration Statement (including post-effective
amendments), any Registration Statement relating to this Registration Statement
under Rule 462, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, full power and authority to do
and perform each and every act and thing requisite and necessary to be done 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, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Patrick H. Nettles President, Chief Executive Officer and May 14, 1997
- -------------------------------------- Director (Principal Executive Officer)
Patrick H. Nettles
/s/ Joseph R. Chinnici Vice President, Finance and Chief May 14, 1997
- -------------------------------------- Financial Officer (Principal Financial
Joseph R. Chinnici Officer)
-21-
23
/s/ Andrew C. Petrik Controller and Treasurer (Principal May 14, 1997
- -------------------------------------- Accounting Officer)
Andrew C. Petrik
/s/ Jon W. Bayless Director May 14, 1997
- --------------------------------------
Jon W. Bayless
/s/ Harvey B. Cash Director May 14, 1997
- --------------------------------------
Harvey B. Cash
/s/ Clifford W. Higgerson Director May 14, 1997
- --------------------------------------
Clifford W. Higgerson
/s/ Billy B. Oliver Director May 14, 1997
- --------------------------------------
Billy B. Oliver
/s/ Michael J. Zak Director May 14, 1997
- --------------------------------------
Michael J. Zak
/s/ David R. Huber, Ph.D. Director May 14, 1997
- --------------------------------------
David R. Huber, Ph.D.
-22-
24
EXHIBIT INDEX
Exhibit
Number Description Page
- ------ ----------- ----
3.1 Certificate of Amendment to Third Restated Certificate of Incorporation of
Registrant. *
3.2 Third Restated Certificate of Incorporation of Registrant. *
4.1 Form of Common Stock Certificate. *
5.1 Opinion of Hogan & Hartson L.L.P. regarding the legality of the securities being
registered.
10.1 Form of Indemnification Agreement for officers and directors of CIENA Corporation. *
10.2 Amended and Restated 1994 Stock Option Plan. *
10.3 Forms of Employee Stock Option Agreement. *
10.4 1996 Outside Directors Stock Option Plan. *
10.5 Forms of 1996 Outside Directors Stock Option Agreement. *
10.6 Form of Amendment No. 1 to Indemnification Agreement for officers and directors of
CIENA Corporation.
23.1 Consent of Price Waterhouse LLP.
23.2 Consent of Hogan & Hartson L.L.P. (included in their opinion filed as Exhibit 5.1
hereto).
24.1 Power of Attorney (included on signature page).
99.2 Section 145 of the Delaware General Corporation Law.
*incorporated by reference
1
May 14, 1997
Board of Directors
CIENA Corporation
8530 Corridor Road
Savage, Maryland 20763
Dear Gentlemen:
This firm has acted as special counsel to CIENA Corporation
(the "Company"), a Delaware corporation, in connection with its registration,
pursuant to a registration statement on Form S-8 filed on or about the date
hereof (the "Registration Statement"), of 20,800,000 shares (the "Shares") of
Common Stock, par value $.01 per share, of the Company ("Common Stock"), issued
or issuable under the Company's (i) Amended and Restated 1994 Employee Stock
Option Plan (the "Employee Plan") and (ii) 1996 Outside Directors Stock Option
Plan (the "Directors Plan," and, together with the Employee Plan, the "Plans").
This letter is furnished to you pursuant to the requirements of Item 601(b)(5)
of Regulation S-K, 17 C.F.R. Section 229.601(b)(5), in connection with such
registration.
For purposes of this opinion, we have examined copies of the
following documents:
1. An executed copy of the Registration Statement.
2. A copy of the Employee Plan, as certified by certain
officers of the Company on the date hereof as being
complete, accurate and in effect.
3. A copy of the Directors Plan, as certified by certain
officers of the Company on the date hereof as being
complete, accurate and in effect.
4. The Third Restated Certificate of Incorporation of
the Company, as amended, as certified on May 6,
1997 by the Secretary of State of the State of
Delaware and on the date hereof by certain officers
of the Company as being complete, accurate and in
effect.
5. The Amended and Restated Bylaws of the Company as
certified by certain officers of the Company on the
date hereof as being complete, accurate and in
effect.
6. Resolutions of the Board of Directors of the Company
adopted on August 16, 1994 and June 21, 1996, as
certified by certain officers of the Company on the
date hereof as being complete, accurate and in
effect, relating to, among other things, approval of
the Plans and amendments thereto.
2
Board of Directors
May 14, 1997
7. A certificate of certain officers of the Company,
dated May 14, 1997, as to certain facts
relating to the Company.
For purposes of rendering this opinion, we have not, except as
specifically identified above, made any independent review or investigation of
factual or other matters, including the organization, existence, good standing,
assets, business or affairs of the Company. In our examination of the
aforesaid certificates, records and 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). We also have assumed the
accuracy, completeness and authenticity of the foregoing certifications (of
public officials, governmental agencies and departments and corporate officers)
and statements of fact, on which we are relying, and have made no independent
investigations thereof. In rendering this opinion we have relied as to
factual matters, without independent investigation, upon the representations,
warranties and certifications made by the Company and upon the officers'
certificate identified in Paragraph 7 above. This opinion is given in the
context of the foregoing.
This opinion is based as to matters of law solely on the
General Corporation Law of the State of Delaware, as amended, and we express no
opinion as to any other laws, statutes, regulations, or ordinances, including
without limitation any federal or state tax or securities laws or regulations.
We note that our firm only requires lawyers to be qualified to practice law in
the District of Columbia, Virginia, or Maryland.
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 (with the
Company having received the consideration therefor, the form of which is in
accordance with applicable law), will be validly issued, fully paid and
non-assessable.
We assume no obligation to advise you of any changes in the
foregoing subsequent to the delivery of this opinion. This opinion has been
prepared solely for your use in connection with the filing of the Registration
Statement on the date of this letter, and should not be quoted in whole or in
part or otherwise be referred to, nor be filed with or furnished to any
governmental agency or other person or entity, without the prior written
consent of this firm.
We hereby consent to the filing of this opinion 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.
1
AMENDMENT NO. 1 TO INDEMNIFICATION AGREEMENT
This Amendment No. 1 is entered into as of the ___ day of
February 1997, by and between CIENA Corporation, a Delaware corporation (the
"Company") and _____________________ ("Indemnitee") with respect to the
following facts:
A. The Company and Indemnitee have entered into an
Indemnification Agreement dated as of April 26, 1996 (the
"Indemnification Agreement").
B. At the time of entering into the Indemnification Agreement,
the Company did not recall that it had by letter to Sevin
Rosen Fund IV L.P. dated December 21, 1995 (the "December 1995
Letter"), agreed to make reasonable efforts to develop an
indemnification agreement with each of its directors providing
for, among other things, indemnification coverage similar to
that provided for directors for an investor entity which is or
becomes a party to litigation solely because one of such
investor entity's employees is a director of the Company.
C. The Company desires to amend the Indemnification Agreement to
accord with its understanding of the December 1995 Letter.
NOW, THEREFORE, in consideration of the December 1995 Letter, the parties
hereby amend the Indemnification Agreement to add the following:
1. In the event Indemnitee is or becomes a party to or witness or other
participant in, or is threatened to be made a party to or witness or
other participant in, a Claim by reason of (or arising in part out of)
an Indemnifiable Event, AND any entity which is a stockholder of the
Company and for which the Indemnitee then serves as a partner,
director, officer or employee (an "Investor Entity") also is or
becomes a party to such Claim solely because Indemnitee is a partner,
director, officer or employee of such Investor Entity, the Company
will indemnify Indemnitee and such Investor Entity (as if such
Investor Entity were also an Indemnitee), to the fullest extent
authorized by law, against any and all Expenses and Losses (including
all interest, assessments and other charges paid or payable in
connection with or in respect of such Expenses and Losses) of such
Claim, whether or not such Claim proceeds to judgment or is settled or
otherwise is brought to a final disposition, subject in each case, to
the further provisions of this Agreement. Notwithstanding the
foregoing, no indemnification of the Investor Entity will be provided
(or if being provided, will be continued) if at any time the Company's
counsel reasonably concludes that there may be a conflict of interest
between the Indemnitee and the Investor Entity in the conduct of any
defense of the Claim.
2. The foregoing amendment shall be effective February 18, 1997.
3. Capitalized terms used herein and not otherwise defined shall have the
meaning assigned to them in the Indemnification Agreement.
2
In witness whereof, the Company and Indemnitee have executed
this Amendment No. 1 as of the day and year first above written.
CIENA Corporation
By:
------------------------------------------------
Title:
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INDEMNITEE
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Print Name
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CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated November 27, 1996,
except as to the stock split, share authorizations and Registration Statement
authorization described in Note 14, which is as of December 10, 1996,
which appears on page F-2 of CIENA Corporation's Registration Statement on
Form S-1 dated February 7, 1997.
/s/ PRICE WATERHOUSE LLP
PRICE WATERHOUSE LLP
May 9, 1997
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Exhibit 99.2
Section 145 of the General Corporation Law of the State of
Delaware provides as follows:
(a) A corporation may indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful.
The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had reasonable cause to believe that his conduct was unlawful.
(b) A corporation may indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action
or suit by or in the right of the corporation to procure a judgment in its
favor by reason of the fact that he is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation and except that no indemnification shall
be made in respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable to the corporation unless and only to the
extent that the Court of Chancery or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the Court
of Chancery or such other court shall deem proper.
(c) To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (a) and (b) of this
section, or defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this
section (unless ordered by a court) shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification of
the director, officer, employee or agent is proper in the circumstances because
he has met the applicable standard of conduct set forth in subsections (a) and
(b) of this section. Such determination shall be made (1) by a majority vote
of the directors who are not parties to such action, suit or proceeding, even
though less than a quorum, or (2) if there are no such directors, or if such
directors so direct, by independent legal counsel in a written opinion, or (3)
by the stockholders.
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(e) Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by
the corporation as authorized in this section. Such expenses (including
attorneys' fees) incurred by other employees and agents may be so paid upon
such terms and conditions, if any, as the board of directors deems appropriate.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this section shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office.
(g) A corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee
or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any liability
asserted against him and incurred by him in any such capacity, or arising out
of his status as such, whether or not the corporation would have the power to
indemnify him against such liability under this section.
(h) For purposes of this section, references to "the corporation"
shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, and employee
or agents, so that any person who is or was a director, officer, employee or
agent of such constituent corporation, or is or was serving at the request of
such constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
shall stand in the same position under this section with respect to the
resulting or surviving corporation as he would have with respect to such
constituent corporation if its separate existence had continued.
(i) For purposes of this section, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to any employee benefit plan;
and references to "serving at the request of the corporation" shall include any
service as a director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director, officer, employee or
agent with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the corporation" as referred to in this
section.
(j) The indemnification and advancement of expenses provided by, or
granted pursuant to, this section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
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(k) The Court of Chancery is hereby vested with exclusive
jurisdiction to hear and determine all actions for advancement of expenses or
indemnification brought under this section or under any bylaw, agreement, vote
of stockholders or disinterested directors, or otherwise. The Court of
Chancery may summarily determine a corporation's obligation to advance expenses
(including attorneys' fees).
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