UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, DC 20549 | ||
FORM 8‑K | ||
CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 | ||
Date of report (Date of earliest event reported): July 11, 2014 | ||
Ciena Corporation (Exact Name of Registrant as Specified in Its Charter) | ||
Delaware (State or Other Jurisdiction of Incorporation) | ||
0-21969 | 23-2725311 | |
(Commission File Number) | (IRS Employer Identification No.) | |
7035 Ridge Road, Hanover, MD | 21076 | |
(Address of Principal Executive Offices) | (Zip Code) | |
(410) 694-5700 | ||
(Registrant's Telephone Number, Including Area Code) | ||
Not Applicable | ||
(Former Name or Former Address, if Changed Since Last Report) | ||
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below): | ||
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) | ||
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) | ||
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) | ||
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
On July 11, 2014, Ciena Canada, Inc., a subsidiary of Ciena Corporation, and Public Works and Government Services Canada (PWGSC), entered into a third amendment (the “Amendment”) to the agreement dated March 19, 2010 relating to Ciena’s lease of the “Lab 10” building on the former Nortel Carling Campus in Ottawa, Canada (the “Lease”). The Amendment extends the term of the Lease from September 18, 2017 to December 31, 2017, with the resulting aggregate annual payment by Ciena for this additional period to be approximately $10.9 million CAD, consisting of base rent, additional rent and operating expense obligations under the Lease. A copy of the Amendment is incorporated herein by reference to Exhibit 10.1 to this Form 8-K. Copies of the Lease and the previous amendments to the Lease, along with a description of their terms, were filed by Ciena on Form 8-K on March 25, 2010, February 15, 2012, and August 30, 2013, respectively. |
(d) | The following exhibit is being filed herewith: | |
Exhibit Number | Description of Document | |
Exhibit 10.1 | Third Lease Amending Agreement dated July 11, 2014 |
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. |
Ciena Corporation | ||
Date: July 11, 2014 | By: | /s/ David M. Rothenstein |
David M. Rothenstein | ||
Senior Vice President, General Counsel and Secretary |
1. | The recitals contained herein are true and accurate in every respect and may be relied upon by the parties as statement of fact. The parties shall not assert facts contrary to those set out above in the recitals. |
2. | Except as otherwise expressly defined herein, capitalized words and phrases used but not defined herein have the meanings given to them in the Lease. |
3. | The Lease is amended to extend the Term from September 18, 2017 for a further period commencing on September 19, 2017 and expiring on December 31, 2017 (the “Third Extended Term”) upon the same terms, covenants and conditions as contained in the Lease, except as otherwise provided herein, and the Lease (including the definitions of “Term” and “Expiration Date”) is hereby amended accordingly. |
4. | Section 2.2 of the Lease is amended such that for the period of the Third Extended Term, the Fixed Rent payable by the Tenant shall be $CDN 3,435,175.08 per annum, payable in equal monthly installments of $CDN 286,264.59, plus applicable GST. The Fixed Rent for the original Term, the First Extended Term and the Second Extended Term remain as per the applicable terms of the Lease, the First Lease Amending Agreement and the Second Lease Amending Agreement, respectively. |
5. | Section 2.2 of the Lease is further amended such that, in addition to the Fixed Rent payable by the Tenant during the Third Extended Term under Section 4 above, the Tenant shall also pay to Landlord during the Third Extended Term without demand, and without any set-off or deduction whatsoever, as rental for the Premises and for the non-exclusive use of the Common Areas, the amount of $CDN 3,188,039.65 per annum, payable in equal monthly installments of $CDN 265,669.97, plus applicable GST. |
6. | The Landlord and the Tenant confirm that the Tenant’s Operating Expense Contributions for the Third Extended Term shall be $CDN 4,323,690.42 per annum, having been calculated in accordance with the formula set out in Section 2.3 of the Lease. |
7. | All Rent for a partial month shall be adjusted and pro-rated in accordance with the number of days in such month. |
8. | The Lease is amended by deleting Article 29 and replacing it as follows: |
a) | The Tenant agrees to be bound and to comply with the terms set out in these Integrity Provisions during the term of this Lease, including extensions. |
b) | The Tenant confirms that, to ensure fairness, openness and transparency in the leasing process, the commission of certain acts or offences may result in a termination for default under the Lease. If the Tenant made a false declaration on its Offer to Lease, makes false |
c) | Affiliates |
1. | directly or indirectly either one controls or has the power to control the other, or |
2. | a third party has the power to control both. |
d) | The Tenant who is incorporated or who is a sole proprietorship has already provided a list of names of all individuals who are directors of the Tenant or the name of the owner. The Tenant who has submitted an Offer to Lease as a joint venture as already provided a list of names of all directors, or the name of the owner, for each member of the joint venture. The Tenant must diligently inform Her Majesty in writing if any changes affect the list of names of directors during the Lease period, including extensions. The Tenant must also, when requested, provide Her Majesty with properly completed and signed Consent Forms (Consent to a Criminal Record Verification form - PWGSC-TPSGC 229-1). |
e) | The Tenant certifies that it is aware, and that its Affiliates are aware, that Her Majesty may verify the information provided by the Tenant, including the information relating to the acts or convictions specified in these Integrity provisions through independent research, use of any government resources or by contacting third parties. |
f) | The Tenant certifies that neither the Tenant nor any of the Tenant's Affiliates have directly or indirectly, paid or agreed to pay, and will not, directly or indirectly, pay a contingency fee to any individual for the solicitation, negotiation or obtaining of the Lease if the payment of the fee would require the individual to file a return under section 5 of the Lobbying Act. |
g) | Time Period |
h) | The Tenant certifies that neither the Tenant nor any of the Tenant's Affiliates have been convicted of an offence or received a conditional or an absolute discharge under any of the following provisions unless the time period, as defined in the Time Period subsection, has elapsed: |
1. | paragraph 80(1)(d) (False entry, certificate or return), subsection 80(2) (Fraud against Her Majesty) or section 154.01 (Fraud against Her Majesty) of the Financial Administration Act, or |
2. | section 121 (Frauds on the government and Contractor subscribing to election fund), section 124 (Selling or Purchasing Office), section 380 (Fraud) for fraud committed against Her Majesty or section 418 (Selling defective stores to Her Majesty) of the Criminal Code, or |
3. | section 119 (Bribery of judicial officers, etc), section 120 (Bribery of officers), section 346 (Extortion), sections 366 to 368 (Forgery and other offences resembling forgery), section 382 (Fraudulent manipulation of stock exchange transactions), section 382.1 (Prohibited insider trading), section 397 (Falsification of books and documents), section 422 (Criminal breach of contract), section 426 (Secret commissions), section 462.31 (Laundering proceeds of crime) or sections 467.11 to 467.13 (Participation in activities of criminal organization) of the Criminal Code, or |
4. | section 45 (Conspiracies, agreements or arrangements between competitors), section 46 (Foreign directives), section 47 (Bid rigging), section 49 (Agreements or arrangements of federal financial institutions), section 52 (False or misleading representation), section 53 (Deceptive notice of winning a prize) of the Competition Act, or |
5. | section 239 (False or deceptive statements) of the Income Tax Act, or |
6. | section 327 (False or deceptive statements) of the Excise Tax Act, or |
7. | section 3 (Bribing a foreign public official), section 4 (Accounting), or section 5 (Offence committed outside Canada) of the Corruption of Corruption of Foreign Public Officials Act, or |
8. | section 5 (Trafficking in substance), section 6 (Importing and exporting), or section 7 (Production of substance) of the Controlled Drugs and Substance Act. |
i) | Foreign Offences |
j) | Subcontractors |
k) | Preventive Measures associated with the Time Period |
l) | Non-application |
10. | The Landlord and the Tenant hereby confirm that in all other respects the Lease remains in full force and effect, unchanged and unmodified except as amended expressly in accordance with this Agreement. |
11. | This Agreement shall be governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein. |
12. | This Agreement may be executed in several counterparts, each of which when executed shall be deemed to be an original and such counterparts together shall constitute one and the same instrument. Any such counterpart may be delivered by facsimile transmission, PDF or electronic mail and such delivery shall be valid and sufficient. Each party that delivers such counterpart by facsimile transmission, PDF or electronic mail shall as soon as reasonably practicable thereafter forward to the other party the originally executed copy of the same. |
13. | Each party agrees to make such further assurances as may be reasonably required from time to time by another to more fully implement the true intent of this Agreement. |
14. | This Agreement shall be binding upon, extend to and enure to the benefit of each of the Landlord and the Tenant and to each of their respective legal representatives, heirs, executors, administrators, successors and permitted assigns. |
HER MAJESTY THE QUEEN IN RIGHT OF CANADA, AS REPRESENTED BY THE MINISTER OF PUBLIC WORKS AND GOVERNMENT By: /s/ Anne Morton Director NCA Real Estate Services NCA Portfolio Management Real Property Branch | |
CIENA CANADA, INC. By: /s/ David M. Rothenstein Senior Vice President and General Counsel |