sv3
As filed with the Securities and Exchange Commission on
December 17, 2009
Registration
No. 333-
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, DC 20549
Form S-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF
1933
FINISAR CORPORATION
(Exact name of registrant as
specified in its charter)
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Delaware
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3674
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77-0398779
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(State or other jurisdiction
of
incorporation or organization)
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(Primary Standard Industrial
Classification Code number)
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(I.R.S. Employer
Identification No.)
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1389 Moffett Park
Drive
Sunnyvale, California
94089
(408) 548-1000
(Address, including zip code,
and telephone number, including area code, of Registrant’s
principal executive offices)
Jerry S. Rawls
Chairman of the Board
Finisar Corporation
1389 Moffett Park
Drive
Sunnyvale, California
94089
(408) 548-1000
(Name, address, including zip
code, and telephone number, including area code, of agent for
service)
Please send copies of all
communications to:
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Christopher E. Brown, Esq.
Vice President, General Counsel and Secretary
Finisar Corporation
200 Precision Road
Horsham, Pennsylvania 19044
(267) 803-3803
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Dennis C. Sullivan, Esq.
Joe C. Sorenson, Esq.
DLA Piper LLP (US)
2000 University Avenue
East Palo Alto, California 94303-2248
(650) 833-2000
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Approximate date of commencement of proposed sale to the
public: From time to time after the effective
date of this registration statement.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following
box. o
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, other than
securities offered only in connection with dividend or interest
reinvestment plans, check the following
box. þ
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same
offering. o
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering. o
If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that
shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the
following
box. o
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed
to register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities
Act, check the following
box. o
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated
filer, or a smaller reporting company. See the definitions of
“large accelerated filer,” “accelerated
filer” and “smaller reporting company” in
Rule 12b-2
of the Exchange Act. (Check one):
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Large accelerated
filer o
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Accelerated
filer þ
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Non-accelerated
filer o
(Do not check if a smaller reporting company)
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Smaller reporting
company o
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CALCULATION OF REGISTRATION
FEE
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Proposed Maximum
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Proposed Maximum
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Amount of
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Title of Each Class of
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Amount
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Offering
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Aggregate
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Registration
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Securities to be Registered
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to be Registered(1)
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Price per Share(1)
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Offering Price(1)(2)(3)
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Fee(2)
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Common Stock, par value $0.001 per share(3)
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Preferred Stock, par value $0.001 per share(3)
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Warrants(3)(4)
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Units(3)(4)
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Total
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$100,000,000
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$5,580
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(1)
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Not applicable pursuant to
Form S-3
General Instruction II(D).
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(2)
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The registrant is hereby
registering an indeterminate amount and number of each
identified class of the identified securities, having a proposed
maximum aggregate initial offering price of $100,000,000, which
may be offered from time to time at indeterminate prices,
including securities that may be purchased by underwriters. The
registrant has estimated the proposed maximum aggregate offering
price solely for the purpose of calculating the registration fee
pursuant to Rule 457(o) under the Securities Act of 1933,
as amended. Securities registered hereunder may be sold
separately, together or as units with other securities
registered hereunder.
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(3)
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In addition to the securities
issued directly under this registration statement, the
registrant is registering an indeterminate number of shares of
common stock and preferred stock as may be issued upon
conversion or exchange of the securities issued directly under
this registration statement. No separate consideration will be
received for any shares of common stock or preferred stock so
issued upon conversion or exchange.
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(4)
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Includes warrants to purchase
common stock and warrants to purchase preferred stock.
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The Registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective
date until the Registrant shall file a further amendment that
specifically states that this Registration Statement shall
thereafter become effective in accordance with Section 8(a)
of the Securities Act of 1933 or until the Registration
Statement shall become effective on such date as the Securities
and Exchange Commission, acting pursuant to said
Section 8(a), may determine.
The
information in this prospectus is not complete and may be
changed. We may not sell these securities or accept an offer to
buy these securities until the registration statement filed with
the Securities and Exchange Commission is effective. This
prospectus is not an offer to sell these securities, and it is
not soliciting offers to buy these securities in any state where
such offer or sale is not permitted.
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SUBJECT TO COMPLETION, DATED
DECEMBER 17, 2009
PROSPECTUS
$100,000,000
Finisar Corporation
Common Stock,
Preferred Stock,
Warrants and Units
From time to time, in one or more offerings, we may offer and
sell up to $100,000,000 of any combination of the securities
described in this prospectus, either individually or in units
comprised of one or more of the other securities.
This prospectus provides a general description of the securities
we may offer and sell. Each time we offer and sell securities,
we will provide specific terms of the securities offered in a
supplement to this prospectus. We may also authorize one or more
free writing prospectuses to be provided to you in connection
with these offerings. The prospectus supplement and any related
free writing prospectus may also add, update or change
information contained in this prospectus. You should carefully
read this prospectus, the applicable prospectus supplement and
any related free writing prospectus, as well as any documents
incorporated by reference before you invest. This prospectus may
not be used to consummate a sale of securities unless
accompanied by the applicable prospectus supplement.
Our common stock is listed on The Nasdaq Global Select Market
under the symbol “FNSR.” On December 16, 2009,
the last reported sale price for our common stock was $8.36 per
share. The applicable prospectus supplement will contain
information, where applicable, as to any other listing of the
securities covered by the prospectus supplement on The Nasdaq
Global Select Market or any other securities market or exchange.
INVESTING IN OUR SECURITIES INVOLVES A HIGH DEGREE OF RISK.
YOU SHOULD REVIEW CAREFULLY THE RISKS AND UNCERTAINTIES
DESCRIBED UNDER THE HEADING “RISK FACTORS” ON
PAGE 2 OF THIS PROSPECTUS AND CONTAINED IN THE APPLICABLE
PROSPECTUS SUPPLEMENT AND ANY RELATED FREE WRITING PROSPECTUS
AND UNDER SIMILAR HEADINGS IN THE OTHER DOCUMENTS THAT ARE
INCORPORATED BY REFERENCE INTO THIS PROSPECTUS.
We may sell these securities directly to investors, through
agents designated from time to time or to or through
underwriters or dealers. For additional information on the
methods of sale, you should refer to the section entitled
“Plan of Distribution” in this prospectus. If any
underwriters are involved in the sale of any securities with
respect to which this prospectus is being delivered, the names
of such underwriters and any applicable commissions or discounts
will be set forth in the applicable prospectus supplement. The
price to the public of such securities and the net proceeds we
expect to receive from such sale will also be set forth in the
prospectus supplement.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE
SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE
SECURITIES OR DETERMINED IF THIS PROSPECTUS IS TRUTHFUL OR
COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
The date of this prospectus
is ,
2009
ABOUT
THIS PROSPECTUS
This prospectus is a part of a registration statement that we
filed with the Securities and Exchange Commission, or the SEC,
utilizing a “shelf” registration process. Under this
shelf registration process, we may sell any combination of the
securities described in this prospectus in one or more offerings
up to a total dollar amount of $100,000,000. This prospectus
provides you with a general description of the securities we may
offer. Each time we sell securities under this shelf
registration, we will provide a prospectus supplement that will
contain specific information about the terms of that offering.
We may also authorize one or more free writing prospectuses to
be provided to you that may contain material information
relating to these offerings. The prospectus supplement or any
related free writing prospectus that we may authorize to be
provided to you may also add, update or change information
contained in this prospectus or in any documents that we have
incorporated by reference into this prospectus. You should read
this prospectus, any applicable prospectus supplement and any
related free writing prospectus, together with the information
incorporated herein by reference as described under the heading
“Incorporation by Reference.” To the extent there is a
conflict between the information contained in this prospectus
and the prospectus supplement or any related free writing
prospectus, you should rely on the information in the prospectus
supplement or the related free writing prospectus, provided that
if any statement in one of these documents is inconsistent with
a statement in another document having a later date —
for example, a document incorporated by reference in this
prospectus or any prospectus supplement or any related free
writing prospectus — the statement in the document
having the later date modifies or supersedes the earlier
statement.
You should rely only on the information that we have provided or
incorporated by reference in this prospectus, any applicable
prospectus supplement and any related free writing prospectus
that we may authorize to be provided to you. We have not
authorized any dealer, salesman or other person to give any
information or to make any representation other than those
contained or incorporated by reference in this prospectus, any
applicable prospectus supplement or any related free writing
prospectus that we may authorize to be provided to you. You must
not rely upon any information or representation not contained or
incorporated by reference in this prospectus or the accompanying
prospectus supplement. This prospectus and the accompanying
supplement to this prospectus do not constitute an offer to sell
or the solicitation of an offer to buy any securities other than
the registered securities to which they relate, nor do this
prospectus and the accompanying supplement to this prospectus
constitute an offer to sell or the solicitation of an offer to
buy securities in any jurisdiction to any person to whom it is
unlawful to make such offer or solicitation in such
jurisdiction. You should not assume that the information
contained in this prospectus, any applicable prospectus
supplement or any related free writing prospectus is accurate on
any date subsequent to the date set forth on the front of the
document or that any information we have incorporated by
reference is correct on any date subsequent to the date of the
document incorporated by reference, even though this prospectus,
any applicable prospectus supplement or any related free writing
prospectus is delivered or securities are sold on a later date.
When used in this prospectus, references to “Finisar,”
the “Company,” “we,” “us” and
“our” refer to Finisar Corporation and its
consolidated subsidiaries, unless otherwise indicated or the
context otherwise requires.
ii
SUMMARY
This summary highlights selected information from this
prospectus and the documents incorporated herein by reference
and does not contain all of the information that you need to
consider in making your investment decision. You should
carefully read the entire prospectus, including the risks of
investing discussed under “Risk Factors” beginning on
page 2, the information incorporated by reference,
including our financial statements, and the exhibits to the
registration statement of which this prospectus is a part.
Finisar
Corporation
Finisar Corporation is a leading provider of optical subsystems
and components that are used to interconnect equipment in local
area networks, or LANs, storage area networks, or SANs,
metropolitan area networks, or MANs,
fiber-to-home
networks, or FTTx, cable television networks, or CATV, and wide
area networks, or WANs. Our optical subsystems consist primarily
of transceivers and transponders which provide the fundamental
optical-electrical interface for connecting various types of
equipment used in building these networks, including switches,
routers and file servers used in wireline networks as well as
antennas and base stations for wireless networks. These products
rely on the use of digital and analog RF semiconductor lasers in
conjunction with integrated circuit design and novel packaging
technology to provide a cost-effective means for transmitting
and receiving digital signals over fiber optic cable using a
wide range of network protocols, transmission speeds and
physical configurations over distances from 100 meters up to 200
kilometers. We also provide products for dynamically switching
network traffic from one optical link to another across multiple
wavelengths without first converting to an electrical signal
known as reconfigurable optical add/drop multiplexers, or
ROADMs. Our line of optical components consists primarily of
packaged lasers and photodetectors used in transceivers,
primarily for LAN and SAN applications, and passive optical
components used in building MANs. Demand for our products is
largely driven by the continually growing need for additional
bandwidth created by the ongoing proliferation of data and video
traffic that must be handled by both wireline and wireless
networks. Our manufacturing operations are vertically integrated
and include integrated circuit design and internal assembly and
test capabilities for our optical subsystem products, as well as
key components used in those subsystems. We sell our optical
subsystem and component products to manufacturers of storage and
networking equipment such as Alcatel-Lucent, Brocade, Cisco
Systems, EMC, Emulex, Ericsson, Hewlett-Packard Company, Huawei,
IBM, Juniper, Qlogic, Siemens and Tellabs.
We formerly provided network performance test systems through
our Network Tools Division. On July 15, 2009, we
consummated the sale of substantially all of the assets of the
Network Tools Division to JDS Uniphase Corporation.
We were incorporated in California in April 1987 and
reincorporated in Delaware in November 1999. Our principal
executive offices are located at 1389 Moffett Park Drive,
Sunnyvale, California 94089, and our telephone number at that
location is
(408) 548-1000.
Our website is located at www.finisar.com. Information on
our website is not a part of this prospectus.
The
Securities We May Offer
From time to time, in one or more offerings, we may offer shares
of our common stock, shares of our preferred stock, and warrants
to purchase any of such securities, or any combination of the
foregoing, either individually or in units, with a total value
of up to $100 million, at prices and on terms to be
determined by market conditions at the time of each offering.
This prospectus provides you with a general description of the
securities we may offer. Each time we offer a type or series of
securities, we will provide a prospectus supplement that will
describe the specific amounts, prices and other important terms
of the securities.
THIS PROSPECTUS MAY NOT BE USED TO OFFER OR SELL ANY
SECURITIES UNLESS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
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RISK
FACTORS
We operate in a highly competitive environment in which there
are numerous factors which can influence our business, financial
position or results of operations and which can also cause the
market value of our securities to decline. Many of these factors
are beyond our control and, therefore, are difficult to predict.
You should read the section entitled “Risk Factors” in
the applicable prospectus supplement and in our most recent
Annual Report on
Form 10-K
and our most recent Quarterly Reports on
Form 10-Q,
which are incorporated herein by reference. That section
discusses what we believe to be the principal risks that could
affect us, our business or our industry, and which could have a
material adverse impact on our financial results or cause the
market price of our common stock to fluctuate or decline.
However, there may be additional risks and uncertainties not
currently known to us or that we presently deem immaterial that
could also affect our business operations and the market value
of our securities.
SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated by reference
contain forward-looking statements. These statements are based
on our management’s current beliefs, expectations and
assumptions about future events, conditions and results and on
information currently available to us. Discussions containing
these forward-looking statements may be found, among other
places, in the Sections entitled “Business,”
“Risk Factors” and “Management’s Discussion
and Analysis of Financial Condition and Results of
Operations” incorporated by reference from our most recent
Annual Report on
Form 10-K
and in Quarterly Reports on
Form 10-Q,
as well as any amendments thereto, filed with the SEC.
All statements, other than statements of historical fact,
included or incorporated herein regarding our strategy, future
operations, financial position, future revenues, projected
costs, plans, prospects and objectives are forward-looking
statements. In some cases, you can identify forward-looking
statements by terms such as “anticipates,”
“believes,” “could,” “estimates,”
“expects,” “intends,” “may,” and
similar expressions. These statements involve risks,
uncertainties and other factors that may cause our actual
results, performance, time frames or achievements to be
materially different from any future results, performance, time
frames or achievements expressed or implied by the
forward-looking statements. Risks, uncertainties and other
factors that might cause or contribute to such differences
include, but are not limited to, those discussed under
“Risk Factors” and elsewhere in this prospectus as
well as in our most recent Annual Report on
Form 10-K
and in our Quarterly Reports on
Form 10-Q
and any amendments thereto filed with the SEC. Given these
risks, uncertainties and other factors, many of which are beyond
our control, you should not place undue reliance on these
forward-looking statements.
Except as required by law, we assume no obligation to update
these forward-looking statements publicly, or to revise any
forward-looking statements to reflect events or developments
occurring after the date of this prospectus, even if new
information becomes available in the future.
USE OF
PROCEEDS
Except as described in any applicable prospectus supplement or
in any free writing prospectuses in connection with a specific
offering, we currently intend to use the net proceeds from the
sale of the securities offered hereby for general corporate
purposes, which may include the repayment or refinancing of
indebtedness, capital expenditures and working capital
requirements. We may also use a portion of the net proceeds to
invest in or acquire businesses or technologies that we believe
are complementary to our own, although we have no commitments or
agreements with respect to any acquisitions as of the date of
this prospectus.
2
RATIO OF
EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK
DIVIDENDS
The following table sets forth information regarding our ratio
of earnings to fixed charges for each of the periods presented.
We had no preferred stock outstanding and were not required to
pay, nor did we pay, dividends on any preferred stock during any
of these periods, and the ratio of earnings to combined fixed
charges and preferred stock dividends did not differ from the
ratios below during any of these periods. Earnings available to
cover fixed charges consist of income (loss) from continuing
operations before provision for income taxes and cumulative
effect of change in accounting principle plus fixed charges.
Fixed charges consist of interest expense and that portion of
rental payments under operating leases that is representative of
the interest factor. Our earnings, as so defined, were
insufficient to cover fixed charges in the six months ended
November 1, 2009 and in each of the fiscal years ended
April 30, 2009, 2008, 2007, 2006 and 2005. Because of these
deficiencies, the ratio information is not applicable for any of
those periods. The extent to which earnings were insufficient to
cover fixed charges for each of those periods is shown below.
Amounts shown are in thousands.
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Six
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Fiscal Year
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Months Ended
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Ended
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November 1,
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April 30,
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2009
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2009
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2008
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2007
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2006
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2005
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Ratio of earnings to fixed charges
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N/A
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N/A
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N/A
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N/A
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N/A
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N/A
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Deficiency of earnings available to cover fixed charges
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$
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(42,336
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$
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(269,454
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$
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(30,611
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$
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(39,763
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$
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(28,382
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$
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(110,161
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DESCRIPTION
OF CAPITAL STOCK
Our authorized capital stock consists of 750,000,000 shares
of common stock, $0.001 par value per share, and
5,000,000 shares of preferred stock, $0.001 par value
per share.
The following is a summary of the material terms of our common
stock and preferred stock and certain provisions of our
certificate of incorporation, bylaws and stockholder rights plan
and applicable Delaware law. The following summary does not
purport to be complete and is qualified in its entirety by
reference to the terms of our certificate of incorporation,
bylaws, stockholder rights plan and Delaware law.
Common
Stock
As of November 30, 2009, there were 64,808,071 shares
of our common stock outstanding. The holders of our common stock
are entitled to one vote for each share held of record on all
matters submitted to a vote of stockholders. Holders of common
stock are not entitled to cumulate their votes in the election
of directors. Accordingly, holders of a majority of the shares
of common stock entitled to vote in any election of directors
may elect all of the directors standing for election. Subject to
preferences that may be applicable to any outstanding shares of
preferred stock, holders of common stock are entitled to receive
ratably any dividends declared by the board of directors out of
funds legally available therefor. In the event of a liquidation,
dissolution or winding up of Finisar, holders of common stock
are entitled to share ratably in the assets remaining after
payment of liabilities and the liquidation preferences of any
outstanding shares of preferred stock. Holders of our common
stock have no preemptive, conversion or redemption rights. Each
outstanding share of common stock is, and all shares of common
stock to be outstanding following the closing of any offering
made hereunder will be, fully paid and nonassessable.
Additional shares of authorized common stock may be issued, as
authorized by our board of directors from time to time, without
stockholder approval, except as may be required by applicable
stock exchange requirements.
Preferred
Stock
Our board of directors has the authority, without further action
by our stockholders, to issue preferred stock in one or more
series. In addition, the board of directors may fix the rights,
preferences, privileges and restrictions of any preferred stock
it determines to issue. Any or all of these rights may be
superior to the rights of the common stock. Preferred stock
could thus be issued quickly with terms calculated to delay or
prevent a change in control of
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Finisar or to make removal of management more difficult.
Additionally, the issuance of preferred stock may decrease the
market price of our common stock or adversely affect the voting
power or other rights of holders of our common stock.
The rights, preferences, privileges and restrictions of the
preferred stock of each series will be fixed by an amendment to
our certificate of incorporation or a certificate of designation
of preferences which will be filed with the Secretary of State
of Delaware. A prospectus supplement relating to each series of
preferred stock will specify the terms of such series,
including, but not limited to:
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the designation and the maximum number of shares in the series;
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the terms on which dividends, if any, will be paid;
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the voting rights, if any, of the shares of the series;
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the terms and conditions, if any, on which the shares of the
series shall be convertible into, or exchangeable for, shares of
any other class or classes of capital stock;
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the terms on which the shares may be redeemed, if at all;
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the liquidation preference, if any; and
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any or all other rights, preferences, privileges, restrictions,
including restrictions on transferability, and qualifications of
shares of the series.
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The prospectus supplement will also contain a description of any
material or special U.S. federal income tax consequences
relating to the preferred stock.
Any shares of preferred stock to be outstanding following the
closing of any offering made hereunder will be fully paid and
nonassessable.
Potential
Anti-takeover Effects of Provisions of Delaware Law and Charter
Documents
Delaware
Law
Finisar is subject to Section 203 of the Delaware General
Corporation Law regulating corporate takeovers, which prohibits
a Delaware corporation from engaging in any business combination
with an “interested stockholder” for a period of three
years, unless:
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prior to the time that a stockholder became an interested
stockholder, the board of directors of the corporation approved
either the business combination or the transaction which
resulted in the stockholder becoming an interested stockholder;
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the interested stockholder owned at least 85% of the voting
stock of the corporation outstanding at the time the transaction
commenced, excluding for purposes of determining the voting
stock outstanding (a) shares owned by persons who are
directors and also officers, and (b) shares owned by
employee stock plans in which employee participants do not have
the right to determine confidentially whether shares held
subject to the plan will be tendered in a tender or exchange
offer; or
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at or subsequent to the time that a stockholder became an
interested stockholder, the business combination is approved by
the board of directors and authorized at an annual or special
meeting of stockholders, and not by written consent, by the
affirmative vote of at least
662/3%
of the outstanding voting stock which is not owned by the
interested stockholder.
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Except as otherwise specified in Section 203, an
“interested stockholder” is defined to include
(a) any person that is the owner of 15% or more of the
outstanding voting stock of the corporation, or is an affiliate
or associate of the corporation and was the owner of 15% or more
of the outstanding voting stock of the corporation at any time
within three years immediately prior to the date of
determination and (b) the affiliates and associates of any
such person.
4
Certificate
of Incorporation and Bylaw Provisions
Provisions of our certificate of incorporation and bylaws may
have the effect of making it more difficult for a third party to
acquire, or of discouraging a third party from attempting to
acquire, control of Finisar. These provisions could cause the
price of our common stock and the value of other securities we
may issue to decrease. Some of these provisions allow us to
issue preferred stock without any vote or further action by the
stockholders, eliminate the right of stockholders to act by
written consent without a meeting and eliminate cumulative
voting in the election of directors. These provisions may make
it more difficult for stockholders to take specific corporate
actions and could have the effect of delaying or preventing a
change in control of Finisar.
Our certificate of incorporation provides that the board of
directors will be divided into three classes of directors, with
each class serving a staggered three-year term. The
classification system of electing directors may discourage a
third party from making a tender offer or otherwise attempting
to obtain control of us and may maintain the incumbency of the
board of directors, because the classification of the board of
directors generally increases the difficulty of replacing a
majority of the directors.
Stockholder
Rights Plan
In September 2002, our board of directors adopted a stockholder
rights plan under which our stockholders received one share
purchase right for each share of our common stock held by them.
The rights are not currently exercisable or tradable separately
from our common stock and are currently evidenced by the common
stock certificates. The rights expire on September 24, 2012
unless earlier redeemed or exchanged by us. Subject to certain
exceptions, the rights will become exercisable when a person or
group (other than certain exempt persons) acquires, or announces
its intention to commence a tender or exchange offer upon
completion of which such person or group would acquire, 20% or
more of our common stock without prior board approval. Should
such an event occur, then, unless the rights have been redeemed
or have expired prior to or are exchanged as a result of such
event, Finisar stockholders, other than the acquirer, will be
entitled to purchase shares of our common stock at a 50%
discount from its then-Current Market Price (as defined) or, in
the case of certain business combinations, purchase the common
stock of the acquirer at a 50% discount.
Registration
Rights
Pursuant to a registration rights agreement dated as of
October 15, 2009 between Finisar and the initial purchaser
of our 5.0% Convertible Senior Notes due 2029, we agreed to
file, at our expense, with the SEC a registration statement
covering resales by holders of all notes and the common stock
issuable upon conversion of the notes not later than
90 days after the first date of original issuance of the
notes or, if we are eligible and elect to file an automatic
shelf registration statement, not later than 120 days after
the first date of original issuance of the notes. The notes and
any common stock issuable upon conversion of the notes are
referred to collectively as “registrable securities.”
We agreed to use our reasonable best efforts to have the shelf
registration statement declared effective not later than
180 days after the first date of original issuance of the
notes, and to keep it effective until the earliest of:
(1) one year from the latest date of original issuance of
the notes;
(2) the date when all registrable securities shall have
been registered under the Securities Act and disposed of;
(3) the date on which all registrable securities held by
non-affiliates are eligible to be sold pursuant to Rule 144
under the Securities Act; and
(4) the date on which the registrable securities cease to
be outstanding.
If we notify the holders in accordance with the registration
rights agreement to suspend the use of the prospectus upon the
occurrence of certain events, then the holders will be obligated
to suspend the use of the prospectus until the requisite changes
have been made.
In the event of certain defaults of our obligations under the
registration rights agreement, additional interest will accrue
on the notes, commencing on and including the date on which the
default occurs to but excluding the date on which all such
defaults have been cured, at the rate of (a) 0.25% per
annum of the principal amount of the notes to and
5
including the 90th day following the occurrence of such
resale registration default and (b) 0.50% per annum of the
principal amount of the notes from and after the 91st day
following the occurrence of such resale registration default. If
a holder has converted some or all of its notes into common
stock, the holder will not be entitled to receive any additional
interest with respect to such common stock or the principal
amount of the notes converted.
Transfer
Agent and Registrar
The transfer agent and registrar for our common stock is
American Stock Transfer and Trust Company.
Listing
on The Nasdaq Global Select Market
Our common stock is listed on the Nasdaq Global Select Market
and trades under the symbol “FNSR.”
DESCRIPTION
OF WARRANTS
The following description, together with the additional
information we may include in any applicable prospectus
supplements and free writing prospectuses, summarizes the
material terms and provisions of the warrants that we may offer
under this prospectus, which may consist of warrants to purchase
common stock or preferred stock and may be issued in one or more
series. Warrants may be offered independently or together with
common stock or preferred stock offered by any prospectus
supplement, and may be attached to or separate from those
securities. While the terms we have summarized below will apply
generally to any warrants that we may offer under this
prospectus, we will describe the particular terms of any series
of warrants that we may offer in more detail in the applicable
prospectus supplement and any applicable free writing
prospectus. The terms of any warrants offered under a prospectus
supplement may differ from the terms described below. However,
no prospectus supplement will fundamentally change the terms
that are set forth in this prospectus or offer a security that
is not registered and described in this prospectus at the time
of its effectiveness.
We will issue the warrants under a warrant agreement that we
will enter into with a warrant agent to be selected by us. The
warrant agent will act solely as an agent of ours in connection
with the warrants and will not act as an agent for the holders
or beneficial owners of the warrants. We will file as exhibits
to the registration statement of which this prospectus is a
part, or will incorporate by reference from a current report on
Form 8-K
that we file with the SEC, the form of warrant agreement,
including a form of warrant certificate, that describes the
terms of the particular series of warrants we are offering
before the issuance of the related series of warrants. The
following summaries of material provisions of the warrants and
the warrant agreements are subject to, and qualified in their
entirety by reference to, all the provisions of the warrant
agreement and warrant certificate applicable to a particular
series of warrants. We urge you to read the applicable
prospectus supplement and any applicable free writing prospectus
related to the particular series of warrants that we sell under
this prospectus, as well as the complete warrant agreements and
warrant certificates that contain the terms of the warrants.
General
We will describe in the applicable prospectus supplement the
terms relating to a series of warrants, including:
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the offering price and aggregate number of warrants offered;
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the currency for which the warrants may be purchased;
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if applicable, the designation and terms of the securities with
which the warrants are issued and the number of warrants issued
with each such security or each principal amount of such
security;
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if applicable, the date on and after which the warrants and the
related securities will be separately transferable;
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in the case of warrants to purchase debt securities, the
principal amount of debt securities purchasable upon exercise of
one warrant and the price at, and currency in which, this
principal amount of debt securities may be purchased upon such
exercise;
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in the case of warrants to purchase common stock or preferred
stock, the number of shares of common stock or preferred stock,
as the case may be, purchasable upon the exercise of one warrant
and the price at which these shares may be purchased upon such
exercise;
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the effect of any merger, consolidation, sale or other
disposition of our business on the warrant agreements and the
warrants;
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the terms of any rights to redeem or call the warrants;
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any provisions for changes to or adjustments in the exercise
price or number of securities issuable upon exercise of the
warrants;
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the dates on which the right to exercise the warrants will
commence and expire;
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the manner in which the warrant agreements and warrants may be
modified;
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United States federal income tax consequences of holding or
exercising the warrants;
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the terms of the securities issuable upon exercise of the
warrants; and
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any other specific terms, preferences, rights or limitations of
or restrictions on the warrants.
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Before exercising their warrants, holders of warrants will not
have any of the rights of holders of the securities purchasable
upon such exercise, including:
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in the case of warrants to purchase debt securities, the right
to receive payments of principal of, or premium, if any, or
interest on, the debt securities purchasable upon exercise or to
enforce covenants in the applicable indenture; or
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in the case of warrants to purchase common stock or preferred
stock, the right to receive dividends, if any, or, payments upon
our liquidation, dissolution or winding up or to exercise voting
rights, if any.
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Exercise
of Warrants
Each warrant will entitle the holder to purchase the securities
that we specify in the applicable prospectus supplement at the
exercise price that we describe in the applicable prospectus
supplement. Unless we otherwise specify in the applicable
prospectus supplement, holders of the warrants may exercise the
warrants at any time up to the specified time on the expiration
date that we set forth in the applicable prospectus supplement.
After the close of business on the expiration date, unexercised
warrants will become void.
Holders of the warrants may exercise the warrants by delivering
the warrant certificate representing the warrants to be
exercised together with specified information, and paying the
required amount to the warrant agent in immediately available
funds, as provided in the applicable prospectus supplement. We
will set forth on the reverse side of the warrant certificate
and in the applicable prospectus supplement the information that
the holder of the warrant will be required to deliver to the
warrant agent.
Upon receipt of the required payment and the warrant certificate
properly completed and duly executed at the corporate trust
office of the warrant agent or any other office indicated in the
applicable prospectus supplement, we will issue and deliver the
securities purchasable upon such exercise. If fewer than all of
the warrants represented by the warrant certificate are
exercised, then we will issue a new warrant certificate for the
remaining amount of warrants. If we so indicate in the
applicable prospectus supplement, holders of the warrants may
surrender securities as all or part of the exercise price for
warrants.
Enforceability
of Rights by Holders of Warrants
Each warrant agent will act solely as our agent under the
applicable warrant agreement and will not assume any obligation
or relationship of agency or trust with any holder of any
warrant. A single bank or trust company may act as warrant agent
for more than one issue of warrants. A warrant agent will have
no duty or responsibility in case of any default by us under the
applicable warrant agreement or warrant, including any duty or
responsibility to initiate any proceedings at law or otherwise,
or to make any demand upon us. Any holder of a warrant may,
without the
7
consent of the related warrant agent or the holder of any other
warrant, enforce by appropriate legal action its right to
exercise, and receive the securities purchasable upon exercise
of, its warrants.
DESCRIPTION
OF UNITS
The following description, together with the additional
information we may include in any applicable prospectus
supplements, summarizes the material terms and provisions of the
units that we may offer under this prospectus. While the terms
we have summarized below will apply generally to any units that
we may offer under this prospectus, we will describe the
particular terms of any series of units in more detail in the
applicable prospectus supplement. The terms of any units offered
under a prospectus supplement may differ from the terms
described below. However, no prospectus supplement will
fundamentally change the terms that are set forth in this
prospectus or offer a security that is not registered and
described in this prospectus at the time of its effectiveness.
We will file as exhibits to the registration statement of which
this prospectus is a part, or will incorporate by reference from
a current report on
Form 8-K
that we file with the SEC, the form of unit agreement that
describes the terms of the series of units we are offering, and
any supplemental agreements, before the issuance of the related
series of units. The following summaries of material terms and
provisions of the units are subject to, and qualified in their
entirety by reference to, all the provisions of the unit
agreement and any supplemental agreements applicable to a
particular series of units. We urge you to read the applicable
prospectus supplements related to the particular series of units
that we sell under this prospectus, as well as the complete unit
agreement and any supplemental agreements that contain the terms
of the units.
General
We may issue units comprised of shares of common stock, shares
of preferred stock and warrants in any combination. Each unit
will be issued so that the holder of the unit is also the holder
of each security included in the unit. Thus, the holder of a
unit will have the rights and obligations of a holder of each
included security. The unit agreement under which a unit is
issued may provide that the securities included in the unit may
not be held or transferred separately, at any time or at any
time before a specified date.
We will describe in the applicable prospectus supplement the
terms of the series of units, including:
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the designation and terms of the units and of the securities
comprising the units, including whether and under what
circumstances those securities may be held or transferred
separately;
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any provisions of the governing unit agreement that differ from
those described below; and
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any provisions for the issuance, payment, settlement, transfer
or exchange of the units or of the securities comprising the
units.
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The provisions described in this section, as well as those
described under “Description of Capital Stock” and
“Description of Warrants” will apply to each unit and
to any common stock, preferred stock or warrant included in each
unit, respectively.
Issuance
in Series
We may issue units in such amounts and in one or more distinct
series, as we determine.
Enforceability
of Rights by Holders of Units
Each unit agent will act solely as our agent under the
applicable unit agreement and will not assume any obligation or
relationship of agency or trust with any holder of any unit. A
single bank or trust company may act as unit agent for more than
one series of units. A unit agent will have no duty or
responsibility in case of any default by us under the applicable
unit agreement or unit, including any duty or responsibility to
initiate any proceedings at law or otherwise, or to make any
demand upon us. Any holder of a unit may, without the consent of
the related unit agent or the holder of any other unit, enforce
by appropriate legal action its rights as holder under any
security included in the unit.
8
We, the unit agents and any of their agents may treat the
registered holder of any unit certificate as an absolute owner
of the units evidenced by that certificate for any purpose and
as the person entitled to exercise the rights attaching to the
units so requested, despite any notice to the contrary.
PLAN OF
DISTRIBUTION
We may sell the securities to or through underwriters or
dealers, through agents, or directly to one or more purchasers.
A prospectus supplement or supplements (and any related free
writing prospectus that we may authorize to be provided to you)
will describe the terms of the offering of the securities,
including, to the extent applicable:
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the name or names of any underwriters, dealers or agents;
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the purchase price of the securities and the proceeds we will
receive from the sale;
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any over-allotment options under which underwriters may purchase
additional securities from us;
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any agency fees or underwriting discounts and other items
constituting agents’ or underwriters’ compensation;
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any initial public offering price;
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any discounts or concessions allowed or reallowed or paid to
dealers; and
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any securities exchange or market on which the securities may be
listed.
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Only underwriters named in the prospectus supplement are
underwriters of the securities offered by the prospectus
supplement.
If underwriters are used in the sale, they will acquire the
securities for their own account and may resell the securities
from time to time in one or more transactions at a fixed public
offering price or at varying prices determined at the time of
sale. The obligations of the underwriters to purchase the
securities will be subject to the conditions set forth in the
applicable underwriting agreement. We may offer the securities
to the public through underwriting syndicates represented by
managing underwriters or by underwriters without a syndicate.
Subject to certain conditions, the underwriters will be
obligated to purchase all of the securities offered by the
prospectus supplement. Any public offering price and any
discounts or concessions allowed or reallowed or paid to dealers
may change from time to time. We may use underwriters with whom
we have a material relationship. We will describe in the
prospectus supplement, naming the underwriter, the nature of any
such relationship.
We may sell securities directly or through agents we designate
from time to time. We will name any agent involved in the
offering and sale of securities and we will describe any
commissions we will pay the agent in the prospectus supplement.
Unless the prospectus supplement states otherwise, any agent
will act on a best-efforts basis for the period of its
appointment.
We may authorize agents or underwriters to solicit offers by
certain types of institutional investors to purchase securities
from us at the public offering price set forth in the prospectus
supplement pursuant to delayed delivery contracts providing for
payment and delivery on a specified date in the future. We will
describe the conditions to these contracts and the commissions
we must pay for solicitation of these contracts in the
prospectus supplement.
We may provide agents and underwriters with indemnification
against certain civil liabilities related to the offering of the
securities, including liabilities under the Securities Act, or
contribution with respect to payments that the agents or
underwriters may make with respect to these liabilities. Agents
and underwriters may engage in transactions with, or perform
services for, us in the ordinary course of business.
All securities we offer, other than common stock, will be new
issues of securities with no established trading market. Any
underwriters may make a market in these securities, but will not
be obligated to do so and may discontinue any market making at
any time without notice. We cannot guarantee the liquidity of
the trading markets for any securities.
Any underwriter may engage in overallotment, stabilizing
transactions, short covering transactions and penalty bids in
accordance with Regulation M under the Exchange Act.
Overallotment involves sales in excess of
9
the offering size, which create a short position. Stabilizing
transactions permit bids to purchase the underlying security so
long as the stabilizing bids do not exceed a specified maximum.
Short covering transactions involve purchases of the securities
in the open market after the distribution is completed to cover
short positions. Penalty bids permit the underwriters to reclaim
a selling concession from a dealer when the securities
originally sold by the dealer are purchased in a covering
transaction to cover short positions. Those activities may cause
the price of the securities to be higher than they would
otherwise be. If commenced, the underwriters may discontinue any
of the activities at any time.
Any underwriters who are qualified market makers on The Nasdaq
Global Select Market may engage in passive market making
transactions in the securities on The Nasdaq Global Select
Market in accordance with Rule 103 of Regulation M,
during the business day prior to the pricing of the offering,
before the commencement of offers or sales of the securities.
Passive market makers must comply with applicable volume and
price limitations and must be identified as passive market
makers. In general, a passive market maker must display its bid
at a price not in excess of the highest independent bid for such
security; if all independent bids are lowered below the passive
market maker’s bid, however, the passive market
maker’s bid must then be lowered when certain purchase
limits are exceeded.
In compliance with guidelines of the Financial Industry
Regulatory Authority, Inc., or FINRA, the maximum consideration
or discount to be received by any FINRA member or independent
broker dealer may not exceed 8% of the aggregate amount of the
securities offered pursuant to this prospectus and any
applicable prospectus supplement.
LEGAL
MATTERS
DLA Piper LLP (US), East Palo Alto, California will pass for us
upon the validity of the securities being offered by this
prospectus and any applicable prospectus supplement, and counsel
named in the applicable prospectus supplement will pass upon
legal matters for any underwriters, dealers or agents.
EXPERTS
Ernst & Young LLP, independent registered public
accounting firm, has audited our consolidated financial
statements and schedule at April 30, 2009 and 2008, and for
each of the three years in the period ended April 30, 2009,
and has audited the consolidated financial statements of Optium
Corporation at August 2, 2008 and July 28, 2007, and
for each of the three years in the period ended August 2,
2008, as set forth in their reports included in our Current
Report on
Form 8-K
filed on October 7, 2009, which is incorporated by
reference in this prospectus and elsewhere in the registration
statement. Our consolidated financial statements and schedule
and Optium Corporation’s consolidated financial statements
are incorporated by reference in reliance on Ernst &
Young LLP’s reports, given on their authority as experts in
accounting and auditing.
WHERE YOU
CAN FIND ADDITIONAL INFORMATION
We are a reporting company and file annual, quarterly and
current reports, proxy statements and other information with the
SEC. We have filed with the SEC a registration statement on
Form S-3
under the Securities Act with respect to the securities we are
offering under this prospectus. This prospectus does not contain
all of the information set forth in the registration statement
and the exhibits to the registration statement. For further
information with respect to us and the securities we are
offering under this prospectus, we refer you to the registration
statement and the exhibits and schedules filed as a part of the
registration statement. You may read and copy the registration
statement, as well as our reports, proxy statements and other
information, at the SEC’s Public Reference Room at
100 F Street, N.E., Washington, D.C. 20549. You
can request copies of these documents by writing to the SEC and
paying a fee for the copying cost. Please call the SEC at
1-800-SEC-0330
for more information about the operation of the Public Reference
Room. The SEC maintains an internet site that contains reports,
proxy and information statements, and other information
regarding issuers that file electronically with the SEC, where
our SEC filings our also available. The address of the
SEC’s web site is
“http://www.sec.gov.”
We
10
maintain a website at www.finisar.com. Information contained in
or accessible through our website does not constitute a part of
this prospectus.
INCORPORATION
BY REFERENCE
The SEC allows us to “incorporate by reference”
information that we file with it into this prospectus, which
means that we can disclose important information to you by
referring you to those documents. The information incorporated
by reference is an important part of this prospectus.
Information in this prospectus supersedes information
incorporated by reference that we filed with the SEC prior to
the date of this prospectus, while information that we file
later with the SEC will automatically update and supersede the
information in this prospectus. We incorporate by reference into
this registration statement and prospectus the documents listed
below, and any future filings we will make with the SEC under
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act
after the date of the initial registration statement but prior
to effectiveness of the registration statement and after the
date of this prospectus but prior to the termination of the
offering of the securities covered by this prospectus (other
than current reports or portions thereof furnished under
Item 2.02 or Item 7.01 of
Form 8-K):
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Our Annual Report on
Form 10-K
for the fiscal year ended April 30, 2009, as amended by
Amendment No. 1 thereto on
Form 10-K/A
filed on August 28, 2009;
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Our Quarterly Report on
Form 10-Q
for the quarter ended August 2, 2009, as amended by
Amendment No. 1 thereto on
Form 10-Q/A
filed on October 7, 2009, and our Quarterly Report on
Form 10-Q
for the quarter ended November 1, 2009;
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Our Current Reports on
Form 8-K
filed on July 9, 2009 (three filings), July 13, 2009,
July 16, 2009, July 20, 2009, August 7, 2009,
August 12, 2009, September 10, 2009 (items 8.01
and 9.01), September 15, 2009, September 28, 2009,
October 6, 2009, October 7, 2009 (two filings),
October 9, 2009, October 15, 2009 and
November 23, 2009;
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Our definitive proxy statement filed pursuant to Section 14
of the Exchange Act in connection with our 2009 Annual Meeting
of Stockholders filed with the SEC on October 8,
2009; and
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The description of our common stock set forth in our
registration statement on Form
8-A, filed
with the SEC on November 8, 1999.
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We will provide to each person, including any beneficial owner,
to whom a prospectus is delivered, without charge upon written
or oral request, a copy of any or all of the information that
has been incorporated by reference into this prospectus but not
delivered with the prospectus, including exhibits that are
specifically incorporated by reference into such documents.
Requests should be directed to: Finisar Corporation, Attention:
Investor Relations, 1389 Moffett Park Drive, Sunnyvale, CA
94089, telephone:
(408) 548-1000.
11
FINISAR CORPORATION
$100,000,000
Common Stock,
Preferred Stock,
Warrants and Units
PROSPECTUS
,
2009
PART II
INFORMATION
NOT REQUIRED IN THE PROSPECTUS
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Item 14.
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Other
Expenses of Issuance and Distribution
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The following table sets forth the estimated costs and expenses,
other than underwriting discounts and commissions, payable by
the registrant in connection with the offering of the securities
being registered. All the amounts shown are estimates, except
for the SEC registration fee.
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SEC registration fee
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$
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5,580
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Accounting fees and expenses
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20,000
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Legal fees and expenses
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25,000
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Printing and miscellaneous expenses
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4,420
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Total
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$
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55,000
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Item 15.
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Indemnification
of Directors and Officers
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Section 102(b)(7) of the General Corporation Law of the
State of Delaware, or DGCL, permits a Delaware corporation to
limit the personal liability of its directors in accordance with
the provisions set forth therein. The registrant’s amended
and restated certificate of incorporation, as amended, provides
that the personal liability of its directors shall be limited to
the fullest extent permitted by applicable law.
Section 145 of the DGCL authorizes a court to award, or a
corporation’s board of directors to grant, indemnity to
directors and officers in terms sufficiently broad to permit
such indemnification under certain circumstances for liabilities
including reimbursement for expenses incurred arising under the
Securities Act of 1933. The registrant’s amended and
restated certificate of incorporation, as amended, and its
amended and restated bylaws permit indemnification of directors,
officers, employees and other agents to the maximum extent
permitted by Delaware law. In addition, the registrant has
entered into indemnification agreements with each of its
executive officers and directors. The registrant also maintains
an officers and directors liability insurance policy.
The foregoing may reduce the likelihood of derivative litigation
against the registrant’s directors and executive officers
and may discourage or deter stockholders or management from
suing directors or executive officers for breaches of their duty
of care, even though such actions, if successful, might
otherwise benefit the registrant and its stockholders.
The underwriting agreement that the registrant may enter into,
Exhibit 1.1 to this Registration Statement, will provide
for indemnification by any underwriters of the registrant, its
directors, its officers who sign the registration statement and
its controlling persons, if any, for some liabilities, including
liabilities arising under the Securities Act.
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Exhibit
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Number
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Description of Document
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1
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.1
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Form of Underwriting Agreement(1)
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4
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.1
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Specimen certificate representing the common stock(2)
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4
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.2
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Certificate of Designation of Preferred Stock(1)
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4
|
.3
|
|
Form of Warrant Agreement(1)
|
|
|
4
|
.4
|
|
Form of Unit Agreement(1)
|
|
|
5
|
.1
|
|
Opinion of DLA Piper LLP (US)
|
|
|
12
|
|
|
Statements Regarding Computation of Ratios
|
|
|
23
|
.1
|
|
Consent of Independent Registered Public Accounting Firm
|
|
|
23
|
.2
|
|
Consent of Independent Registered Public Accounting Firm
|
|
|
23
|
.3
|
|
Consent of DLA Piper LLP (US) (included in Exhibit 5.1)
|
|
|
24
|
.1
|
|
Power of Attorney (included on signature page)
|
II-1
|
|
|
|
(1) |
|
To be filed as an exhibit to a Current Report of the registrant
on
Form 8-K
and incorporated herein by reference. |
| |
|
(2) |
|
Incorporated by reference to Exhibit 4.1 to the
registrant’s Quarterly Report on
Form 10-Q
filed on December 10, 2009. |
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 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 the undertakings set forth in
paragraphs (1)(i), (1)(ii) and (1)(iii) above do not apply if
the registration statement is on
Form S-3
or
Form F-3
and the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with
or furnished to the Commission by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the
registration statements or is contained in a form of prospectus
filed pursuant to Rule 424(b) that is part of 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.
(4) That, for the purpose of determining liability under
the Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the registrant pursuant to
Rule 424(b)(3) shall be deemed to be part of the
registration statement as of the date the filed prospectus was
deemed part of and included in the registration
statement; and
(ii) Each prospectus required to be filed pursuant to
Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration
statement in reliance on Rule 430B relating to an offering
made pursuant to Rule 415(a)(1)(i), (vii), or (x) for
the purpose of providing the information required by
Section 10(a) of the Securities Act of 1933 shall be deemed
to be part of and included in the registration statement as of
the earlier of the date such form of prospectus is first used
after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As
provided in Rule 430B, for liability purposes of the issuer
and any person that is at that date an underwriter, such date
shall be deemed to be a new effective date of the registration
statement relating to the securities in the registration
statement to which that prospectus relates, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering
II-2
thereof. Provided, however, that no statement made in a
registration statement or prospectus that is part of the
registration statement or made in a document incorporated or
deemed incorporated by reference into the registration statement
or prospectus that is part of the registration statement will,
as to a purchaser with a time of contract of sale prior to such
effective date, supersede or modify any statement that was made
in the registration statement or prospectus that was part of the
registration statement or made in any such document immediately
prior to such effective date.
(5) That, for the purpose of determining liability of the
registrant under the Securities Act of 1933 to any purchaser in
the initial distribution of the securities, the undersigned
registrant undertakes that in a primary offering of securities
of the undersigned registrant pursuant to this registration
statement, regardless of the underwriting method used to sell
the securities to the purchaser, if the securities are offered
or sold to such purchaser by means of any of the following
communications, the undersigned registrant will be a seller to
the purchaser and will be considered to offer or sell such
securities to such purchaser: (i) any preliminary
prospectus or prospectus of the undersigned registrant relating
to the offering required to be filed pursuant to Rule 424;
(ii) any free writing prospectus relating to the offering
prepared by or on behalf of the undersigned registrant or used
or referred to by the undersigned registrant; (iii) the
portion of any other free writing prospectus relating to the
offering containing material information about the undersigned
registrant or its securities provided by or on behalf of the
undersigned registrant; and (iv) any other communication
that is an offer in the offering made by the undersigned
registrant to the purchaser.
(6) 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 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.
(7) To deliver or cause to be delivered with the
prospectus, to each person to whom the prospectus is sent or
given, the latest annual report to security holders that is
incorporated by reference in the prospectus and furnished
pursuant to and meeting the requirements of
Rule 14a-3
or
Rule 14c-3
under the Securities Exchange Act of 1934; and, where interim
financial information required to be presented by Article 3
of
Regulation S-X
are not set forth in the prospectus, to deliver, or cause to be
delivered to each person to whom the prospectus is sent or
given, the latest quarterly report that is specifically
incorporated by reference in the prospectus to provide such
interim financial information.
(8) That for purposes of determining any liability under
the Securities Act of 1933, (i) the information omitted
from the form of prospectus filed as part of this registration
statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to
Rule 424(b)(l) or (4) or 497(h) under the Securities
Act shall be deemed to be a part of the registration statement
as of the time it was declared effective; and (ii) each
post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
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 Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the
opinion of its 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 Securities Act of 1933
and will be governed by the final adjudication of such issue.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds
to believe that it meets all of the requirements for filing on
Form S-3
and has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Sunnyvale, State of California, on December 16,
2009.
FINISAR CORPORATION
Jerry S. Rawls
Chairman of the Board
POWER OF
ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Jerry S. Rawls
and Stephen K. Workman, and each of them, as his true and lawful
attorneys-in-fact and agents, with full power of substitution
and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration
Statement on
Form S-3,
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, 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 connection therewith, 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 either
of them, or their or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons
in the capacities and on the dates indicated:
| |
|
|
|
|
|
|
|
Name
|
|
Title
|
|
Date
|
|
|
|
|
|
|
|
|
|
/s/ Jerry
S. Rawls
Jerry
S. Rawls
|
|
Chairman of the Board of Directors
(Co-Principal
Executive Officer)
|
|
December 16, 2009
|
|
|
|
|
|
|
|
/s/ Eitan
Gertel
Eitan
Gertel
|
|
Chief Executive Officer (Co-Principal Executive Officer) and
Director
|
|
December 16, 2009
|
|
|
|
|
|
|
|
/s/ Stephen
K. Workman
Stephen
K. Workman
|
|
Senior Vice President, Finance and Chief Financial Officer
(Principal Financial and Accounting Officer)
|
|
December 16, 2009
|
|
|
|
|
|
|
|
/s/ Christopher
Crespi
Christopher
Crespi
|
|
Director
|
|
December 16, 2009
|
|
|
|
|
|
|
|
/s/ Roger
C. Ferguson
Roger
C. Ferguson
|
|
Director
|
|
December 16, 2009
|
|
|
|
|
|
|
|
/s/ David
C. Fries
David
C. Fries
|
|
Director
|
|
December 16, 2009
|
II-4
| |
|
|
|
|
|
|
|
Name
|
|
Title
|
|
Date
|
|
|
|
|
|
|
|
|
|
/s/ Larry
D. Mitchell
Larry
D. Mitchell
|
|
Director
|
|
December 16, 2009
|
|
|
|
|
|
|
|
/s/ Robert
N. Stephens
Robert
N. Stephens
|
|
Director
|
|
December 16, 2009
|
|
|
|
|
|
|
|
/s/ Dominique
Trempont
Dominique
Trempont
|
|
Director
|
|
December 16, 2009
|
II-5
INDEX TO
EXHIBITS
| |
|
|
|
|
Exhibit
|
|
|
|
Number
|
|
Description of Document
|
|
|
|
|
1
|
.1
|
|
Form of Underwriting Agreement(1)
|
|
|
4
|
.1
|
|
Specimen certificate representing the common stock(2)
|
|
|
4
|
.2
|
|
Certificate of Designation of Preferred Stock(1)
|
|
|
4
|
.3
|
|
Form of Warrant Agreement(1)
|
|
|
4
|
.4
|
|
Form of Unit Agreement(1)
|
|
|
5
|
.1
|
|
Opinion of DLA Piper LLP (US)
|
|
|
12
|
|
|
Statements Regarding Computation of Ratios
|
|
|
23
|
.1
|
|
Consent of Independent Registered Public Accounting Firm
|
|
|
23
|
.2
|
|
Consent of Independent Registered Public Accounting Firm
|
|
|
23
|
.3
|
|
Consent of DLA Piper LLP (US) (included in Exhibit 5.1)
|
|
|
24
|
.1
|
|
Power of Attorney (included on signature page)
|
|
|
|
|
(1) |
|
To be filed as an exhibit to a Current Report of the registrant
on
Form 8-K
and incorporated herein by reference. |
| |
|
(2) |
|
Incorporated by reference to Exhibit 4.1 to the
registrant’s Quarterly Report on
Form 10-Q
filed on December 10, 2009. |