As filed with the Securities and Exchange Commission on September 15, 2004
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION
STATEMENT UNDER
THE SECURITIES ACT OF 1933
BOOKHAM, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware |
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20-1303994 |
(State or Other
Jurisdiction of Incorporation |
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(I.R.S. Employer |
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2584 Junction Avenue, San Jose, California |
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95134 |
(Address of Principal Executive Offices) |
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(Zip Code) |
2004 Stock Incentive Plan
2004 Employee Stock Purchase Plan
2004 Sharesave Scheme
2001 Approved Sharesave Scheme
1998 Employee Share Option Scheme
(Full Title of the Plan)
Giorgio Anania
Chief Executive Officer
2584 Junction Avenue
San Jose, California 95134
(Name and Address of Agent For Service)
408-919-1500
(Telephone Number, Including Area Code, of Agent For Service)
With a copy to:
John A. Burgess, Esq.
Wilmer Cutler Pickering Hale and Dorr LLP
60 State Street
Boston, Massachusetts 02109
CALCULATION OF REGISTRATION FEE
Title of |
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Amount to be |
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Proposed |
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Proposed |
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Amount of |
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Common Stock, $0.01 par value per share |
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8,043,400 shares |
(2) |
$ |
12.50 |
(3) |
$ |
100,571,863.42 |
(3) |
$ |
12,743.00 |
(1) In accordance with Rule 416 under the Securities Act of 1933, as amended, this registration statement shall be deemed to cover any additional securities that may from time to time be offered or issued to prevent dilution resulting from stock splits, stock dividends or similar transactions.
(2) Consists of (i) 4,000,000 shares issuable under the 2004 Stock Incentive Plan, (ii) 500,000 shares issuable under the 2004 Employee Stock Purchase Plan; (iii) 500,000 shares issuable under the 2004 Sharesave Scheme; (iv) 12,361 shares issuable under the 2001 Approved Sharesave Scheme and (v) 3,031,039 shares issuable under the 1998 Employee Share Option Scheme.
(3) Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(h) of the Securities Act of 1933, as amended. The price per share and aggregate offering price are calculated on the basis of (a) $14.55, the weighted average exercise price of the 12,361 shares subject to outstanding stock option grants under the 2001 Sharesave Scheme, at prices ranging from $14.55 to $14.55, (b) $21.2607, the weighted average exercise price of the 3,031,039 shares subject to outstanding stock option grants under the 1998 Employee Share Option Scheme, at prices ranging from $4.95 to $373.00, and (c) $7.19, the average of the high and low sale prices of Common Stock of Bookham, Inc. on the NASDAQ National Market on September 13, 2004, in accordance with Rule 457(c) under the Securities Act of 1933, as amended, for the aggregate 5,000,000 shares issuable under the 2004 Stock Incentive Plan, 2004 Employee Stock Purchase Plan and 2004 Sharesave Scheme, which are not subject to outstanding options. For the purpose of calculating the registration fee hereunder, exercise prices in pounds sterling have been converted to U.S. dollars using the using the exchange rate at September 3, 2004 of £1.00 = $1.7759. Effective September 10, 2004, pursuant to a scheme of arrangement under the laws of the United Kingdom, Bookham Technology plc became a wholly-owned subsidiary of Bookham, Inc., and Bookham, Inc. became the successor to Bookham Technology plc for Securities and Exchange Commission reporting purposes and various other purposes under the Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as amended. Pursuant to the scheme of arrangement, Bookham, Inc. assumed the 2001 Approved Sharesave scheme of arrangement and the 1998 Employee Share Option Scheme. Each option to purchase ordinary shares of Bookham Technology plc governed by the 2001 Approved Sharesave scheme of arrangement and the 1998 Employee Share Option Scheme became, on the same terms and conditions as were applicable to the option prior to the scheme of arrangement, an option to purchase one share of common stock of Bookham, Inc. for every ten ordinary shares of Bookham Technology plc applicable to the option prior to the scheme of arrangement, with a proportionate adjustment to the exercise price of the option.
The information required by Item 1 is included in documents sent or given to participants in the plans covered by this registration statement pursuant to Rule 428(b)(1) of the Securities Act of 1933, as amended (the Securities Act).
The written statement required by Item 2 is included in documents sent or given to participants in the plans covered by this registration statement pursuant to Rule 428(b)(1) of the Securities Act.
The registrant is subject to the informational and reporting requirements of Sections 13(a), 14, and 15(d) of the Securities Exchange Act of 1934, as amended (the Exchange Act), and in accordance therewith files reports, proxy statements and other information with the Securities and Exchange Commission (the Commission). The following documents, which are on file with the Commission, are incorporated in this registration statement by reference:
All documents subsequently filed by the registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this registration statement and to be part hereof from the date of the filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for the purposes of this registration statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement.
1
Not applicable.
Wilmer Cutler Pickering Hale and Dorr LLP has opined as to the legality of the securities being offered by this registration statement.
Article SEVENTH of the registrants restated certificate of incorporation provides that no director of the registrant shall be personally liable for any monetary damages for any breach of fiduciary duty as a director, except to the extent that the General Corporation Law of the State of Delaware prohibits the elimination or limitation of liability of directors for breach of fiduciary duty.
Article EIGHTH of the registrants restated certificate of incorporation provides that a director or officer of the registrant:
(a) shall be indemnified by the registrant against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement incurred in connection with any litigation or other legal proceeding (other than an action by or in the right of the registrant) brought against him by virtue of his position as a director or officer of the registrant 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 registrant, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful and
(b) shall be indemnified by the registrant against all expenses (including attorneys fees) and amounts paid in settlement incurred in connection with any action by or in the right of the registrant brought against him by virtue of his position as a director or officer of the registrant 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 registrant, except that no indemnification shall be made with respect to any matter as to which such person shall have been adjudged to be liable to the registrant, unless a court determines that, despite such adjudication but in view of all of the circumstances, he is entitled to indemnification of such expenses.
Notwithstanding the foregoing, to the extent that a director or officer has been successful, on the merits or otherwise, including, without limitation, the dismissal of an action without prejudice, he is required to be indemnified by the registrant against all expenses (including attorneys fees) incurred in connection therewith. Expenses shall be advanced to a director or officer at his request, provided that he undertakes to repay the amount advanced if it is ultimately determined that he is not entitled to indemnification for such expenses.
Indemnification is required to be made unless the registrant determines that the applicable standard of conduct required for indemnification has not been met. As a condition precedent to the right of indemnification, the director or officer must give the registrant notice of the action for which indemnity is sought and the registrant has the right to participate in such action or assume the defense thereof.
Article EIGHTH of the registrants restated certificate of incorporation further provides that the indemnification provided therein is not exclusive.
2
Section 145 of the General Corporation Law of the State of Delaware provides that a corporation has the power to indemnify a director, officer, employee or agent of the corporation and certain other persons serving at the request of the corporation in related capacities against amounts paid and expenses incurred in connection with an action or proceeding to which he is or is threatened to be made a party by reason of such position, if such person shall have 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, in any criminal proceeding, if such person had no reasonable cause to believe his conduct was unlawful; provided that, in the case of actions brought by or in the right of the corporation, no indemnification shall be made with respect to any matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the adjudicating court determines that such indemnification is proper under the circumstances.
The registrant maintains directors and officers insurance coverage, which, subject to policy terms and limitations will include coverage to reimburse the registrant for amounts that it may be required or permitted by law to pay directors or officers of the registrant.
Not applicable.
The Exhibit Index immediately preceding the exhibits is incorporated herein by reference.
provided, however, that paragraphs (i) and (ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement.
3
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Abingdon, England, on this 10th day of September, 2004.
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BOOKHAM, INC. |
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By: |
/s/ Giorgio Anania |
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Giorgio Anania |
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Chief Executive Officer |
POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of Bookham, Inc., hereby severally constitute and appoint Giorgio Anania, Stephen Abely and Philip Davis, and each of them singly, our true and lawful attorneys with full power to them, and each of them singly, to sign for us and in our names in the capacities indicated below, the registration statement on Form S-8 filed herewith and any and all subsequent amendments to said registration statement, and generally to do all such things in our names and on our behalf in our capacities as officers and directors to enable Bookham, Inc. to comply with the provisions of the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission, hereby ratifying and confirming our signatures as they may be signed by our said attorneys, or any of them, to said registration statement and any and all amendments thereto.
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.
Signature |
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Title |
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Date |
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/s/ Giorgio Anania |
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Chief Executive Officer and Director (Principal Executive Officer) |
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September 10, 2004 |
Giorgio Anania |
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/s/ Stephen Abely |
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Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer) |
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September 10, 2004 |
Stephen Abely |
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/s/ Andrew G. Rickman |
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Director |
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September 10, 2004 |
Andrew G. Rickman |
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/s/ David Simpson |
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Director |
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September 10, 2004 |
David Simpson |
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/s/ Lori Holland |
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Director |
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September 10, 2004 |
Lori Holland |
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/s/ W. Arthur Porter |
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Director |
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September 10, 2004 |
W. Arthur Porter |
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/s/ Joseph Cook |
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Director |
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September 10, 2004 |
Joseph Cook |
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5
/s/ Peter Bordui |
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Director |
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September 10, 2004 |
Peter Bordui |
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6
INDEX TO EXHIBITS
Number |
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Description |
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5 |
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Opinion of Wilmer Cutler Pickering Hale and Dorr LLP, counsel to the registrant |
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23.1 |
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Consent of Wilmer Cutler Pickering Hale and Dorr LLP (included in Exhibit 5) |
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23.2 |
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Consent of Ernst & Young LLP |
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24 |
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Power of attorney (included on the signature page of this registration statement) |
7