1 As filed with the Securities and Exchange Commission on August 7, 2000 Registration No. 333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT Under The Securities Act of 1933 --------------- HARMONIC INC. (Exact name of Registrant as specified in its charter) --------------- Delaware 549 Baltic Way 77-0201147 (State or other jurisdiction of Sunnyvale, California 94089 (I.R.S. Employer incorporation or organization) (408) 542-2500 Identification Number) (Address, including zip code, and telephone number, including area code, of Registrant's principal executive offices) C-CUBE Microsystems Inc. 1998 Employee Stock Purchase Plan C-CUBE Microsystems Inc. 1993 Stock Plan C-CUBE Microsystems Inc. 1994 Stock Plan C-CUBE Microsystems Inc. SSOP Stock Option Plan Harmonic Inc. 1995 Employee Stock Purchase Plan Harmonic Inc. 1999 Nonstatutory Stock Option Plan --------------- Anthony J. Ley Chairman of the Board of Directors, President and Chief Executive Officer HARMONIC INC. 549 Baltic Way Sunnyvale, California 94089 (408) 542-2500 (Name, address, including zip code, and telephone number, including area code, of agent for service) --------------- Copies to: Jeffrey D. Saper, Esq. Wilson Sonsini Goodrich & Rosati Professional Corporation 650 Page Mill Road Palo Alto, CA 94304 (650) 493-9300 --------------- CALCULATION OF REGISTRATION FEE ================================================================ ================ ================= ================ =============== PROPOSED TITLE OF EACH CLASS AMOUNT PROPOSED MAXIMUM MAXIMUM AMOUNT OF OF SECURITIES TO TO BE OFFERING PRICE AGGREGATE REGISTRATION BE REGISTERED REGISTERED(1) PER SHARE OFFERING PRICE FEE (8) - ---------------------------------------------------------------- ---------------- ----------------- ---------------- --------------- Common Stock (par value $0.001 per share) reserved for issuance under the C-CUBE Microsystems Inc. 1998 Employee Stock Purchase Plan............................... 60,000 $ 20.03(2) $ 1,201,686 $ 317.25 - ---------------------------------------------------------------- ---------------- ----------------- ---------------- --------------- Common Stock (par value $0.001 per share) reserved for issuance under the C-CUBE Microsystems Inc. 1993 Stock Plan....................................................... 1,200 $ 21.58(3) $ 25,896 $ 6.84 - ---------------------------------------------------------------- ---------------- ----------------- ---------------- --------------- Common Stock (par value $0.001 per share) reserved for issuance under the C-CUBE Microsystems Inc. 1994 Stock Plan....................................................... 2,330,000 $ 39.80(4) $ 92,335,000 $ 24,376.44 - ---------------------------------------------------------------- ---------------- ----------------- ---------------- --------------- Common Stock (par value $0.001 per share) reserved for issuance under the C-CUBE Microsystems Inc. SSOP Stock Option Plan................................................ 410,000 $ 24.20(5) $ 9,922,000 $ 2,619.41 - ---------------------------------------------------------------- ---------------- ----------------- ---------------- --------------- Common Stock (par value $0.001 per share) reserved for issuance under the Harmonic Inc. 1995 Employee Stock Purchase Plan.............................................. 1,600,000 $ 19.44(6) $ 31,104,000 $ 8,211.46 - ---------------------------------------------------------------- ---------------- ----------------- ---------------- --------------- Common Stock (par value $0.001 per share) reserved for issuance under the Harmonic Inc. 1999 Nonstatutory Stock 25,760 31.56(7) 812,985 214.63 Option Plan................................................ 1,974,240 $ 22.88(7) $ 45,170,611 $ 11,925.04 - ---------------------------------------------------------------- ---------------- ----------------- ---------------- --------------- Totals.................................................... 6,401,200 $ 180,572,178 $ 47,671.07 ================================================================ ================ ================= ================ ===============
2 (1) Represents the number of shares of the Registrant's Common Stock which may be issued to the Registrant's employees in the form of incentive stock options pursuant to the C-CUBE Microsystems Inc., 1993 Stock Plan (the "1993 Plan"), C-CUBE Microsystems Inc., 1994 Stock Plan (the "1994 Plan") and C-CUBE Microsystems Inc., SSOP Stock Option Plan (the "SSOP Plan"), the C-CUBE Microsystems Inc. 1998 Employee Stock Purchase Plan (the "ESPP"), the Harmonic Inc. 1995 Employee Stock Purchase Plan (the "Harmonic ESPP") and the Harmonic Inc. 1999 Nonstatutory Stock Option Plan (the "99NQ Plan"). Pursuant to Rule 416(a), this Registration Statement shall also cover any additional shares of the Registrant's Common Stock that become issuable under the aforementioned plans by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the receipt of consideration that increases the number of the Registrant's outstanding shares of Common Stock. (2) The Proposed Maximum Offering Price Per Share is calculated pursuant to Rule 457(h) under the Act, and as such, is based upon the exercise prices of each outstanding option under the ESPP. The weighted average exercise price of the shares subject to outstanding options under the ESPP is $20.03 per share. (3) The Proposed Maximum Offering Price Per Share is calculated pursuant to Rule 457(h) under the Act, and as such, is based upon the exercise prices of each outstanding option under the 1993 Plan. The weighted average exercise price of the shares subject to outstanding options under the 1993 Plan is $21.58 per share. (4) The Proposed Maximum Offering Price Per Share is calculated pursuant to Rule 457(h) under the Act, and as such, is based upon the exercise prices of each outstanding option under the 1994 Plan. The weighted average exercise price of the shares subject to outstanding options under the 1994 Plan is $39.80 per share. (5) The Proposed Maximum Offering Price Per Share is calculated pursuant to Rule 457(h) under the Act, and as such, is based upon the exercise prices of each outstanding option under the SSOP Plan. The weighted average exercise price of the shares subject to outstanding options under the SSOP Plan is $24.20 per share. (6) The Proposed Maximum Offering Price Per Share is calculated pursuant to Rule 457(c), and, as such, is determined to be 85% of the average between the high and low of the Registrant's Common Stock as reported on the Nasdaq Stock Market as of August 1, 2000, or $19.44. (7) The Proposed Maximum Offering Price Per Share is calculated, in part, pursuant to Rule 457(h) under the act, and as such, is based upon the exercise prices of each outstanding option under the 99NQ Plan. The weighted average exercise price of the shares subject to outstanding options under the 99NQ Plan is $31.56 per share. With respect to those shares available for future grant under the 99NQ Plan, the offering price per share is calculated pursuant to Rule 457(c), and as such, is determined to be the average between the high and low of the Registrant's Common Stock as reported on The Nasdaq Stock Market as of August 1, 2000, or $22.88. (8) Amount of Registration Fee was calculated pursuant to Section 6(b) of the Securities Act of 1933, which states that the fee shall be "$264 per $1 million" of the maximum aggregate price at which such securities are proposed to be offered. The Registration Fee is therefore calculated by multiplying the aggregate offering or sales amount by 0.000264. ================================================================================ 2
3 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INFORMATION INCORPORATED BY REFERENCE. There are hereby incorporated by reference in this Registration Statement the following documents and information heretofore filed with the Securities and Exchange Commission: (a) The Registrant's Annual Report on Forms 10-K and 10-K/A filed on March 30, 2000 and May 15, 2000, respectively, for the year ended December 31, 1999 filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act, as amended (the "Exchange Act"). (b) The Registrant's quarterly report on Form 10-Q for the quarter ended March 31, 2000 filed pursuant to Section 13(a) or 15(d) of the Exchange Act. (c) The Registrant's Amended Current Report on Forms 8-K and 8-K/A filed on May 4, 2000 and July 17, 2000, respectively. (d) The description of the Registrant's Common Stock contained in the Registrant's Registration Statement on Form 8-A dated April 6, 1995, filed pursuant to Section 12 of the Securities Exchange Act of 1934, as amended, including any amendment or report filed for the purpose of updating such description. All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this registration statement and prior to the filing of a post-effective amendment which indicates that all securities offered 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 filing such documents. ITEM 4. DESCRIPTION OF SECURITIES. Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not applicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Section 145 of the Delaware General Corporations Law authorizes a court to award, or a corporation's Board of Directors to grant, indemnification 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. Article VI of the Company's Bylaws provides for the mandatory indemnification of its directors, officers, employees and other agents to the maximum extent permitted by Delaware General Corporation Law, and the Company has entered into agreements with its officers, directors and certain key employees implementing such indemnification. 3
4 ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. ITEM 8. EXHIBITS. Exhibit Number 5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation, as to the legality of securities being registered. 23.1 Consent of Independent Accountants. 23.2 Consent of Counsel (included in Exhibit 5. 1). 24.1 Power of Attorney (see page 11-4). ITEM 9. UNDERTAKINGS. (a) 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 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. (2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (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. (b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) 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 Registrant's Bylaws, indemnification agreements, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the 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 4
5 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 Act and will be governed by the final adjudication of such issue. 5
6 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant, Harmonic Inc., a Delaware corporation, certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Sunnyvale, State of California, on August 7, 2000. HARMONIC INC. By: /s/ Anthony J. Ley --------------------------------------- Anthony J. Ley, Chairman of the Board, President and Chief Executive Officer 6
7 POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Anthony J. Ley and Robin N. Dickson, jointly and severally, his attorneys-in-fact, each with full power of substitution, for him in any and all capacities, to sign any amendments to this Registration Statement on Form S-8, and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said attorneys-in-fact, or his substitute or substitutes, may 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: SIGNATURE TITLE DATE --------- ----- ---- Chairman of the Board, President and Chief /s/ Anthony J. Ley Executive Officer (Principal Executive August 7, 2000 - -------------------------------- Officer Anthony J. Ley /s/ Robin N. Dickson Chief Financial Officer (Principal August 7, 2000 - -------------------------------- Financial and Accounting Officer) Robin N. Dickson /s/ E. Floyd Kvamme Director August 7, 2000 - -------------------------------- E. Floyd Kvamme /s/ David A. Lane Director August 7, 2000 - -------------------------------- David A. Lane /s/ Barry D. Lemieux Director August 7, 2000 - -------------------------------- Barry D. Lemieux /s/ Moshe Nazarathy Director August 7, 2000 - -------------------------------- Moshe Nazarathy /s/ Michel L. Vaillaud Director August 7, 2000 - -------------------------------- Michel L. Vaillaud /s/ Baryn S. Futa Director August 7, 2000 - -------------------------------- Baryn S. Futa 7
8 SECURITIES AND EXCHANGE COMMISSION Washington D.C. 20549 ------------------ EXHIBITS ------------------ Registration Statement on Form S-8 Harmonic Inc. August 7, 2000 8
9 INDEX TO EXHIBITS EXHIBIT SEQUENTIALLY NUMBER DESCRIPTION NUMBERED PAGE ------- ----------- ------------- 5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation, as to the legality of securities being registered. 23.1 Consent of Independent Accountants. 23.2 Consent of Counsel (included in Exhibit 5. 1). 24.1 Power of Attorney (see page 11-4). 9
1 EXHIBIT 5.1 August 7, 2000 Harmonic Inc. 549 Baltic Way Sunnyvale, California 94089 RE: REGISTRATION STATEMENT ON FORM S-8 Gentlemen: We have examined the Registration Statement on Form S-8 to be filed by you with the Securities and Exchange Commission on or about August 3, 2000 (the "Registration Statement") in connection with the registration under the Securities Act of 1933, as amended, 60,000 shares of Common Stock under the C-Cube Microsystems Inc. 1998 Employee Stock Purchase Plan, 1,200 shares of Common Stock under the C-Cube Microsystems Inc. 1993 Stock Plan, 2,330,000 shares of Common Stock under the C-Cube Microsystems Inc. 1994 Stock Plan, 410,000 shares of Common Stock under the C-Cube Microsystems Inc. SSOP Stock Option Plan, 1,600,000 shares of Common Stock under the Harmonic Inc. 1995 Employee Stock Purchase Plan and 2,000,000 shares of Common Stock under the Harmonic Inc. 1999 Nonstatutory Stock Option Plan. Such shares of Common Stock are referred to herein as the "Shares," and such plans are referred to herein as the "Plans." As your counsel in connection with this transaction, we have examined the proceedings taken and are familiar with the proceedings proposed to be taken by you in connection with the issuance and sale of the Shares pursuant to the Plans. It is our opinion that, when issued and sold in the manner described in the Plans and pursuant to the agreements which accompany each grant under the Plans, the shares will be legally and validly issued, fully paid and non-assessable. We consent to the use of this opinion as an exhibit to the Registration Statement, and further consent to the use of our name wherever appearing in the Registration Statement and any amendments thereto. Very truly yours, WILSON SONSINI GOODRICH & ROSATI Professional Corporation
1 EXHIBIT 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 (Nos. 33-94138, 333-38025, 333-44265, 333-65051 and 333-86644) of Harmonic Inc. of our report dated January 18, 2000, which appears on page 29 of the 1999 Annual Report to Shareholders of Harmonic Inc., which is incorporated by reference in the Annual Report on Form 10-K of Harmonic Inc. for the year ended December 31, 1999. /s/ PRICEWATERHOUSECOOPERS LLP San Jose, California August 7, 2000