sv3asr
As filed with the Securities and Exchange Commission on
March 15, 2010
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. þ
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 to be
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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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Registered(1)
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Price per
Unit(1)
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Offering Price
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Fee
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Common Stock, par value $0.001 per share
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Preferred Stock, par value $0.001 per share
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Debt Securities
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Warrants
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Units
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Total
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(1)
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An indeterminate amount of
securities to be offered at indeterminate prices is being
registered pursuant to this registration statement. The
registrant is deferring payment of the registration fee pursuant
to Rule 456(b) and is omitting this information in reliance
on Rule 456(b) and Rule 457(r).
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PROSPECTUS
Finisar Corporation
COMMON STOCK, PREFERRED
STOCK,
DEBT SECURITIES,
WARRANTS AND UNITS
From time to time, in one or more offerings, we may offer and
sell any combination of the securities described in this
prospectus, either individually or in units comprised of one or
more of the other securities. In addition, certain selling
securityholders to be identified in a prospectus supplement may
offer and sell these securities from time to time, in amounts,
at prices and on terms that will be determined at the time the
securities are offered.
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 March 12, 2010, the
last reported sale price for our common stock was $13.98 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 March 15, 2010
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. 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 and 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
short-distance local area networks, or LANs, and storage area
networks, or SANs, and longer distance metropolitan area
networks, or MANs, fiber to the home, or FTTx, networks, cable
television, or CATV, networks and wide area networks, or WANs.
Our optical subsystems consist primarily of transmitters,
receivers, 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 semiconductor lasers and
photodetectors 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 at speeds ranging from less than 1 gigabits per second, or
Gbps, to 40Gbps, using a wide range of network protocols and
physical configurations over distances of 70 meters to 200
kilometers. We supply optical transceivers and transponders that
allow
point-to-point
communications on a fiber using a single specified wavelength
or, bundled with multiplexing technologies, can be used to
supply multi-gigabit bandwidth over several wavelengths on the
same fiber. We also provide products for dynamically switching
network traffic from one optical wavelength to another across
multiple wavelengths 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 we utilize internal sources for many of the key
components used in making our products, including lasers,
photodetectors and integrated circuits, or ICs, designed by our
own internal IC engineering teams. We also have internal
assembly and test capabilities that make use of internally
designed equipment for the automated testing of our optical
subsystems and components.
We sell our optical products to manufacturers of storage
systems, networking equipment and telecommunication equipment or
their contract manufacturers, such as Alcatel-Lucent, Brocade,
Cisco Systems, EMC, Emulex, Ericsson, Hewlett-Packard Company,
Huawei, IBM, Juniper, Qlogic, Siemens and Tellabs. These
customers, in turn, sell their systems to businesses and to
wireline and wireless telecommunications service providers and
cable TV operators, collectively referred to as carriers.
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, various
series of debt securities, and warrants to purchase any of such
securities, or any combination of the foregoing, either
individually or in units, 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.
1
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. Each of these risk
factors 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.
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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, including working capital. We may use a portion of the
net proceeds for the repurchase
and/or
repayment of certain of our outstanding indebtedness, which may
include a portion of our outstanding convertible notes. We may
also use a portion of the net proceeds to acquire or invest in
complementary businesses, products or technologies, although we
have no present agreements or commitments with respect to any
such acquisitions or investments. Our management will have
significant discretion in applying the net proceeds from the
sale of the securities offered hereby. Pending such uses, we
will invest the net proceeds in short-term interest bearing
securities or bank deposits. In the case of a sale by a selling
securityholder, we will not receive any of the proceeds from
such sale.
RATIO OF
EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK
DIVIDENDS
The following table sets forth information regarding our ratio
of earnings to combined 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, therefore, 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
(benefit from) 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 nine months ended January 31, 2010 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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Nine
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Months
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Ended
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January 31,
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Fiscal Year Ended April 30,
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2010
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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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(36,299
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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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$
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(28,382
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$
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(110,161
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3
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 February 28, 2010, there were 65,536,100 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 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.
4
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.
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,
5
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 filed
with the SEC a registration statement covering resales by
holders of all notes and the common stock issuable upon
conversion 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 keep the
registration statement 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) .25% per annum
of the principal amount of the notes to and including the
90th day following the occurrence of such resale
registration default and (b) .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.”
6
DESCRIPTION
OF DEBT SECURITIES
The debt securities will be our direct unsecured general
obligations. The debt securities will be either senior debt
securities or subordinated debt securities. The debt securities
that are sold may be exchangeable for
and/or
convertible into our common stock, preferred stock or any of the
other securities that may be sold under this prospectus. The
debt securities will be issued under one or more separate
indentures between us and a designated trustee. Senior debt
securities will be issued under a senior indenture. Subordinated
debt securities will be issued under a subordinated indenture.
Each of the senior indenture and the subordinated indenture is
referred to as an indenture. The material terms of any indenture
will be set forth in the applicable prospectus supplement.
DESCRIPTION
OF WARRANTS
We may issue warrants to purchase our common stock, preferred
stock or debt securities, or any combination of the foregoing.
Warrants may be issued in one or more series and may be issued
independently or together with any other securities and may be
attached to, or separate from, such securities. Each series of
warrants will be issued under a separate warrant agreement to be
entered into between us and a warrant agent. The terms of any
warrants to be issued and a description of the material
provisions of the applicable warrant agreement will be set forth
in the applicable prospectus supplement.
DESCRIPTION
OF UNITS
As specified in the applicable prospectus supplement, we may
issue units consisting of one or more shares of common stock,
preferred stock, debt securities, warrants or any combination of
such securities.
FORMS OF
SECURITIES
Each debt security, warrant and unit will be represented either
by a certificate issued in definitive form to a particular
investor or by one or more global securities representing the
entire issuance of securities. Certificated securities in
definitive form and global securities will be issued in
registered form. Definitive securities name you or your nominee
as the owner of the security, and in order to transfer or
exchange these securities or to receive payments other than
interest or other interim payments, you or your nominee must
physically deliver the securities to the trustee, registrar,
paying agent or other agent, as applicable. Global securities
name a depositary or its nominee as the owner of the debt
securities, warrants or units represented by these global
securities. The depositary maintains a computerized system that
will reflect each investor’s beneficial ownership of the
securities through an account maintained by the investor with
its broker/dealer, bank, trust company or other representative,
as we explain more fully below.
Registered
global securities
We may issue the registered debt securities, warrants and units
in the form of one or more fully registered global securities
that will be deposited with a depositary or its nominee
identified in the applicable prospectus supplement and
registered in the name of that depositary or nominee. In those
cases, one or more registered global securities will be issued
in a denomination or aggregate denominations equal to the
portion of the aggregate principal or face amount of the
securities to be represented by registered global securities.
Unless and until it is exchanged in whole for securities in
definitive registered form, a registered global security may not
be transferred except as a whole by and among the depositary for
the registered global security, the nominees of the depositary
or any successors of the depositary or those nominees.
If not described below, any specific terms of the depositary
arrangement with respect to any securities to be represented by
a registered global security will be described in the prospectus
supplement relating to those securities. We anticipate that the
following provisions will apply to all depositary arrangements.
Ownership of beneficial interests in a registered global
security will be limited to persons, called participants, that
have accounts with the depositary or persons that may hold
interests through participants. Upon the issuance of a
registered global security, the depositary will credit, on its
book-entry registration and transfer system, the
7
participants’ accounts with the respective principal or
face amounts of the securities beneficially owned by the
participants. Any dealers, underwriters or agents participating
in the distribution of the securities will designate the
accounts to be credited. Ownership of beneficial interests in a
registered global security will be shown on, and the transfer of
ownership interests will be effected only through, records
maintained by the depositary, with respect to interests of
participants, and on the records of participants, with respect
to interests of persons holding through participants. The laws
of some states may require that some purchasers of securities
take physical delivery of these securities in definitive form.
These laws may impair your ability to own, transfer or pledge
beneficial interests in registered global securities.
So long as the depositary, or its nominee, is the registered
owner of a registered global security, that depositary or its
nominee, as the case may be, will be considered the sole owner
or holder of the securities represented by the registered global
security for all purposes under the applicable indenture,
warrant agreement or unit agreement. Except as described below,
owners of beneficial interests in a registered global security
will not be entitled to have the securities represented by the
registered global security registered in their names, will not
receive or be entitled to receive physical delivery of the
securities in definitive form and will not be considered the
owners or holders of the securities under the applicable
indenture, warrant agreement or unit agreement. Accordingly,
each person owning a beneficial interest in a registered global
security must rely on the procedures of the depositary for that
registered global security and, if that person is not a
participant, on the procedures of the participant through which
the person owns its interest, to exercise any rights of a holder
under the applicable indenture, warrant agreement or unit
agreement. We understand that under existing industry practices,
if we request any action of holders or if an owner of a
beneficial interest in a registered global security desires to
give or take any action that a holder is entitled to give or
take under the applicable indenture, warrant agreement or unit
agreement, the depositary for the registered global security
would authorize the participants holding the relevant beneficial
interests to give or take that action, and the participants
would authorize beneficial owners owning through them to give or
take that action or would otherwise act upon the instructions of
beneficial owners holding through them.
Principal, premium, if any, and interest payments on debt
securities, and any payments to holders with respect to warrants
or units, represented by a registered global security registered
in the name of a depositary or its nominee will be made to the
depositary or its nominee, as the case may be, as the registered
owner of the registered global security. Neither we, nor the
trustees, the warrant agents, the unit agents or any other agent
of ours, agent of the trustees or agent of the warrant agents or
unit agents will have any responsibility or liability for any
aspect of the records relating to payments made on account of
beneficial ownership interests in the registered global security
or for maintaining, supervising or reviewing any records
relating to those beneficial ownership interests.
We expect that the depositary for any of the securities
represented by a registered global security, upon receipt of any
payment of principal, premium, interest or other distribution of
underlying securities or other property to holders on that
registered global security, will immediately credit
participants’ accounts in amounts proportionate to their
respective beneficial interests in that registered global
security as shown on the records of the depositary. We also
expect that payments by participants to owners of beneficial
interests in a registered global security held through
participants will be governed by standing customer instructions
and customary practices, as is now the case with the securities
held for the accounts of customers or registered in “street
name,” and will be the responsibility of those participants.
If the depositary for any of these securities represented by a
registered global security is at any time unwilling or unable to
continue as depositary or ceases to be a clearing agency
registered under the Securities Exchange Act of 1934, and a
successor depositary registered as a clearing agency under the
Securities Exchange Act of 1934 is not appointed by us within
90 days, we will issue securities in definitive form in
exchange for the registered global security that had been held
by the depositary. Any securities issued in definitive form in
exchange for a registered global security will be registered in
the name or names that the depositary gives to the relevant
trustee, warrant agent, unit agent or other relevant agent of
ours or theirs. It is expected that the depositary’s
instructions will be based upon directions received by the
depositary from participants with respect to ownership of
beneficial interests in the registered global security that had
been held by the depositary.
8
PLAN OF
DISTRIBUTION
We and/or
the selling securityholders, if applicable, 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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•
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the name or names of any underwriters, dealers or agents;
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•
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the purchase price of the securities and the proceeds we will
receive from the sale;
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•
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any over-allotment options under which underwriters may purchase
additional securities from us;
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•
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any agency fees or underwriting discounts and other items
constituting agents’ or underwriters’ compensation;
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•
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any public offering price;
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•
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any discounts or concessions allowed or reallowed or paid to
dealers; and
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•
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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.
Unless otherwise stated in a prospectus supplement, 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 and/or
the selling securityholders, if applicable, may sell securities
directly or through agents we designate from time to time. The
prospectus supplement will name any agent involved in the
offering and sale of securities and will describe any
commissions we pay to them. Unless the prospectus supplement
states otherwise, any agent will act on a best-efforts basis for
the period of its appointment.
We and/or
the selling securityholders, if applicable, may authorize agents
or underwriters to solicit offers by certain types of
institutional investors to purchase securities 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. The prospectus supplement
will describe the conditions to these contracts and the
commissions we pay for solicitation of these contracts.
We and/or
the selling securityholders, if applicable, 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.
Other than common stock, any securities we offer will be a new
issue 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.
10
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 www.sec.gov. We maintain a website at
www.finisar.com. Information contained in or accessible through
our website does not constitute a part of this prospectus.
11
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 and our report on Form
8-K dated
October 7, 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, our Quarterly Report on
Form 10-Q
for the quarter ended November 1, 2009, and our Quarterly
Report on
Form 10-Q
for the quarter ended January 31, 2010;
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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, November 23,
2009, January 4, 2010, January 28, 2010, March 8,
2010 and March 15, 2010;
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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.
12
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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*
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Accounting fees and expenses
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**
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Legal fees and expenses
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**
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Printing and miscellaneous expenses
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**
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Total
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$
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**
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*
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Omitted because the registration
fee is being deferred pursuant to Rule 456(b).
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**
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Not presently known.
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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.
The following is a list of all exhibits filed as a part of this
registration statement on
Form S-3,
including those incorporated herein by reference.
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Exhibit
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No.
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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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Form of Senior Debt
Indenture(1)
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4
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.2
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Form of Subordinated Debt
Indenture(1)
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II-1
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Exhibit
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No.
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Document
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4
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.3
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Specimen certificate representing the common
stock(2)
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4
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.4
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Certificate of Designation of Preferred
Stock(1)
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4
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.5
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Form of Warrant
Agreement(1)
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4
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.6
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Form of Unit
Agreement(1)
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5
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.1
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Opinion of DLA Piper LLP (US)
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Statements Regarding Computation of Ratios
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23
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.1
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Consent of Independent Registered Public Accounting Firm
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23
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.2
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Consent of Independent Registered Public Accounting Firm
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23
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.3
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Consent of DLA Piper LLP (US) (included in Exhibit 5.1)
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24
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.1
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Power of Attorney (included on signature page)
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(1)
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To be filed as an exhibit to a
Current Report of the registrant on
Form 8-K
and incorporated herein by reference.
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(2)
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Incorporated by reference to
Exhibit 4.1 to the registrant’s Quarterly Report on
Form 10-Q
filed on December 10, 2009.
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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 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
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(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 offer of
such securities at that time shall be deemed to be the initial
bona fide offering 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.
(9) To file an application for purpose of determining the
eligibility of the trustee to act under subsection (a) of
Section 310 of the Trust Indenture Act in accordance
with the rules and regulations prescribed by the Commission
under Section 305(b)(2) of the Trust Indenture Act.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the registrant pursuant to
the foregoing provisions, or otherwise, the registrant
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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.
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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 March 15, 2010.
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 Kurt Adzema, 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:
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Name
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Title
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Date
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/s/ Jerry
S. Rawls
Jerry
S. Rawls
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Chairman of the Board of Directors
(Co-Principal Executive Officer)
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March 15, 2010
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/s/ Eitan
Gertel
Eitan
Gertel
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Chief Executive Officer
(Co-Principal Executive Officer) and Director
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March 15, 2010
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/s/ Kurt
Adzema
Kurt
Adzema
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Senior Vice President and Chief Financial Officer (Principal
Financial and Accounting Officer)
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March 15, 2010
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/s/ Christopher
Crespi
Christopher
Crespi
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Director
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March 15, 2010
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/s/ Roger
C. Ferguson
Roger
C. Ferguson
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Director
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March 15, 2010
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Name
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Title
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Date
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/s/ David
C. Fries
David
C. Fries
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Director
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March 15, 2010
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/s/ Thomas
E. Pardun
Thomas
E. Pardun
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Director
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March 15, 2010
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/s/ Robert
N. Stephens
Robert
N. Stephens
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Director
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March 15, 2010
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/s/ Dominique
Trempont
Dominique
Trempont
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Director
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March 15, 2010
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