sv8
As filed with the Securities and Exchange Commission on October 23, 2008
Registration No. 333 ____
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
FORM S-8
REGISTRATION STATEMENT
Under The Securities Act of 1933
HARMONIC INC.
(Exact name of registrant as specified in its charter)
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Delaware
(State or other jurisdiction of incorporation or
organization)
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77-0201147
(I.R.S. Employer Identification Number) |
549 Baltic Way
Sunnyvale, CA 94089
(Address, including zip code, of principal executive offices)
1995 Stock Plan
2002 Director Stock Plan
(Full title of the plan(s))
Robin N. Dickson, Chief Financial Officer
Harmonic Inc.
549 Baltic Way
Sunnyvale, CA 94089
(408) 542-2500
(Name and address of agent for service, telephone number, including area code, of agent for service)
Copies to:
Jeffrey D. Saper
Robert G. Day
Wilson Sonsini Goodrich & Rosati
650 Page Mill Road
Palo Alto, CA 94304
(650) 493-9300
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):
Large accelerated filer o |
Accelerated filer þ |
Non-accelerated filer o
(Do not check if a smaller reporting company) |
Smaller reporting company o |
CALCULATION OF REGISTRATION FEE
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Proposed Maximum |
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Proposed Maximum |
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Title of Securities |
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Amount to be |
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Offering Price |
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Aggregate Offering |
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Amount of |
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to be Registered |
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Registered(1) |
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Per Share(2) |
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Price |
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Registration Fee(3)(4) |
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Common Stock (par value $0.001 per
share) to be issued under the Harmonic
Inc. 1995 Stock Plan
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7,500,000 |
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$8.26
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$61,950,000
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$2,434.64 |
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Common Stock (par value $0.001 per
share) to be issued under the Harmonic
Inc. 2002 Director Stock Plan
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100,000 |
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$8.26
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$826,000
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$32.46 |
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(1) |
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Represents the additional number of shares of Common Stock reserved for issuance pursuant to the registrants 1995 Stock Plan, as amended (the 1995 Plan), and the registrants 2002 Director Stock Plan, as amended (the
2002 Plan, and together with the 1995 Plan, the Plans). Pursuant to Rule 416(a) promulgated under the Securities Act of 1933, as amended (the Securities Act), this registration statement on Form S-8 is deemed to include
additional shares of the registrants Common Stock to be offered or issued pursuant to the antidilution provisions of the Plans. |
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(2) |
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The Proposed Maximum Offering Price Per Share is estimated in
accordance with Rule 457(h) under the Securities Act solely for the
purpose of calculating the registration fee based on the price of
$8.26 per share, which was
the average of the high and low prices per share of the
registrants Common Stock as reported on the Nasdaq Global
Select Market on October 21, 2008. |
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(3) |
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The Amount of Registration Fee was calculated pursuant to Section 6(b) of the Securities Act, which states that the adjusted fee rate for fiscal 2008 shall be $39.30 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 Proposed Maximum Aggregate Offering Price by 0.0000393. |
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(4) |
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The registrant is paying an aggregate registration fee of
$2,467.10 for the registration of 7,600,000 shares of Common Stock hereunder. |
PART II
Information Required in the Registration Statement
The following documents, previously filed by Harmonic Inc. (the Registrant) with the Securities
and Exchange Commission (the SEC), are hereby incorporated by reference in this registration
statement on Form S-8 (the Registration Statement):
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(1) |
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The Registrants Current Report on Form 8-K/A, filed with the SEC on February 22, 2007; |
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(2) |
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The Registrants Current Report on Form 8-K/A, filed with the SEC on October 15, 2007; |
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(3) |
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The Registrants Annual Report on Form 10-K for the year ended December 31, 2007, filed
with the SEC on March 17, 2008; |
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(4) |
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The Registrants Quarterly Report on Form 10-Q for the three months ended March 28,
2008, filed with the SEC on May 7, 2008; |
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(5) |
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The Registrants Definitive Proxy Statement on Schedule 14A, filed with the SEC on April
11, 2008; |
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(6) |
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The Registrants Current Report on Form 8-K, filed with the SEC on April 16, 2008; |
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(7) |
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The Registrants Current Report on Form 8-K, filed with the SEC on June 6, 2008; |
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(8) |
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The Registrants Current Report on Form 8-K, filed with the SEC on June 23, 2008; and |
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(9) |
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The Registrants Quarterly Report on Form 10-Q for the three months ended June 27,
2008, filed with the SEC on August 6, 2008. |
In addition, the Registrant hereby incorporates by reference into this Registration Statement the
description of the Registrants common stock, par value $0.001 per share (the Common Stock),
contained in the Registrants registration statement on Form 8-A, dated April 6, 1995, as filed
with the SEC pursuant to Section 12 of the Securities Exchange Act of 1934, as amended (the
Exchange Act), including any amendment or report filed for the purpose of updating such
description.
All documents filed with the SEC 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 indicating 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. Any statement
contained in a document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration Statement to the extent that
a statement contained herein or in any other subsequently filed document which also is or is deemed
to be incorporated by reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded, to constitute a
part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interest of Named Experts and Counsel.
The validity of the issuance of the shares of the Registrants Common Stock offered hereby has been
passed upon by Wilson Sonsini Goodrich & Rosati, Professional Corporation (WSGR). Certain members
and employees of WSGR beneficially own shares of the Registrants Common Stock. Jeffrey D. Saper, a
member of WSGR, owns 6,484 shares of the Registrants Common Stock.
Item 6. Indemnification of Directors and Officers.
Reference is made to Section 102(b)(7) of the Delaware General Corporation Law (the DGCL), which
enables a corporation in its original certificate of incorporation or an amendment to its
certificate of incorporation to eliminate or limit the personal liability of a director for
monetary damages for violations of the directors fiduciary duty, except (1) for any breach of a
directors duty of loyalty to the corporation or its stockholders, (2) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing violation of law,
(3) pursuant to Section 174 of the DGCL, providing for liability of directors for unlawful payment
of dividends or unlawful stock purchases or redemption, or (4) for any transaction from which a
director derived an improper personal benefit.
Reference is also made to Section 145 of the DGCL which provides that a corporation may indemnify
any persons, including officers and directors, who are, or are threatened to be made, parties to
any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, other than an action by or in the right of the corporation, by
reason of the fact that the person was an officer, director, employee or agent of the corporation,
or is or was serving at the request of the corporation or other enterprise. The indemnity may
include expenses, including attorneys fees, judgments, fines and amounts paid in settlement
actually and reasonably incurred by the person in connection with the action, suit or proceeding,
provided the officer, director, employee or agent acted in good faith and in a manner he reasonably
believed to be in or not opposed to the corporations best interests and, for a criminal
proceeding, had no reasonable cause to believe that his conduct was unlawful. A Delaware
corporation may indemnify officers and directors in an action by or in the right of the corporation
under the same conditions, except that no indemnification is permitted without judicial approval if
the officer or director is adjudged to be liable to the corporation. Where an officer or director
is successful on the merits or otherwise in the defense of any action referred to above, the
corporation must indemnify him against the expenses, including attorneys fees, which the officer
or director actually and reasonably incurred.
The Amended and Restated Certificate of Incorporation of the Registrant and the Amended and
Restated Bylaws of the Registrant provide for the indemnification of officers and directors to the
fullest extent permitted by applicable law.
In addition, the Registrant has entered into agreements with its officers and directors that
provide for their indemnification with respect to certain matters, in addition to indemnification
provided for in its Amended and Restated Bylaws. These agreements, among other things, indemnify
the Registrants officers and directors for certain expenses (including attorneys fees),
judgments, fines and settlement amounts incurred by any such person in any action or proceeding,
including any action by or in the right of the Registrant, arising out of such persons services as
an officer or director of the Registrant, any subsidiary of the Registrant or any other company or
enterprise to which the person provides services at the Registrants request. The Registrant also
maintains an insurance policy insuring the Registrants officers and directors against liability
for certain acts and omissions while acting in their official capacities.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
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Exhibit |
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Number |
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Description of Exhibit |
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10.1*
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Harmonic Inc. 1995 Stock Plan, as amended |
10.2**
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Harmonic Inc. 2002 Director Stock Plan, as amended |
5.1
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Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation, as to the
legality of securities being registered |
23.1
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Consent of PricewaterhouseCoopers LLP, independent registered public accounting firm |
23.2
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Consent of PricewaterhouseCoopers LLP, independent accountants |
23.3
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Consent of Deloitte & Touche LLP, independent auditors |
23.4
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Consent of Counsel (included in Exhibit 5.1) |
24.1
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Power of Attorney (included on signature page to this registration statement) |
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Previously filed as Exhibit 1 to the Registrants Definitive Proxy Statement on Schedule 14A, filed with the
SEC on April 11, 2008, and incorporated herein by reference. |
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Previously filed as Exhibit 2 to the Registrants Definitive Proxy Statement on Schedule 14A, filed with the
SEC on April 11, 2008, and incorporated herein by reference. |
Item 9. Undertakings.
(a) |
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The undersigned Registrant hereby undertakes: |
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(1) |
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to file, during any period in which offers or sales are being made, a post-effective
amendment to this Registration Statement: |
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(i) |
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to include any prospectus required by Section 10(a)(3) of the Securities
Act of 1933, as amended (the Securities Act); |
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(ii) |
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to reflect in the prospectus any facts or events arising after the
effective date of this 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 this 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 SEC pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than a 20 percent
change in the maximum aggregate offering price set forth in the Calculation of
Registration Fee table in the effective Registration Statement; |
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(iii) |
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to include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any material
change to such information in this Registration Statement; |
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information
required to be included in a post-effective amendment by those paragraphs is contained in
reports filed with the SEC by the Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the Registration Statement.
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(2) |
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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. |
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(3) |
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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) |
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The undersigned Registrant hereby undertakes that, for purposes of determining any liability
under the Securities Act, each filing of the Registrants annual report pursuant to Section
13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee
benefit plans annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this 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. |
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Insofar as indemnification for liabilities arising under the Securities Act may be permitted
to directors, officers and controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the opinion of the SEC 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 and will be governed by the final adjudication of such
issue. |
Signatures
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has
duly caused this registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Sunnyvale, State of California, on October 23, 2008.
HARMONIC INC.
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By: |
/s/ Patrick J. Harshman
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Patrick J. Harshman |
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President & Chief Executive Officer |
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby
constitutes and appoints Patrick J. Harshman 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 SEC, 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, this registration statement has been signed by
the following persons in the capacities and on the dates indicated.
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Signature |
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Date |
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/s/ Patrick J. Harshman
(Patrick J. Harshman))
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Chief Executive Officer
(Principal Executive Officer)
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October 23, 2008 |
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/s/ Robin N. Dickson
(Robin N. Dickson)
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Chief Financial Officer
(Principal Financial and
Accounting Officer)
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October 23, 2008 |
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/s/ Anthony J. Ley
(Anthony J. Ley)
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Chairman of the Board
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October 23, 2008 |
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/s/ Harold Covert
(Harold Covert)
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Director
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October 23, 2008 |
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/s/ Patrick Gallagher
(Patrick Gallagher)
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Director
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October 23, 2008 |
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/s/ Floyd Kvamme
(E. Floyd Kvamme)
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Director
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October 23, 2008 |
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/s/ William Reddersen
(William Reddersen)
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Director
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October 23, 2008 |
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/s/ Lewis Solomon
(Lewis Solomon)
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Director
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October 23, 2008 |
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/s/ David Van Valkenburg
(David Van Valkenburg)
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Director
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October 23, 2008 |
INDEX TO EXHIBITS
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Exhibit |
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Number |
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Description of Exhibit |
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10.1*
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Harmonic Inc. 1995 Stock Plan, as amended |
10.2**
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Harmonic Inc. 2002 Director Stock Plan, as amended |
5.1
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Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation, as to the
legality of securities being registered |
23.1
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Consent of PricewaterhouseCoopers LLP, independent registered public accounting firm |
23.2
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Consent of PricewaterhouseCoopers LLP, independent accountants |
23.3
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Consent of Deloitte & Touche LLP, independent auditors |
23.4
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Consent of Counsel (included in Exhibit 5.1) |
24.1
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Power of Attorney (included on signature page to this registration statement) |
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* |
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Previously filed as Exhibit 1 to the Registrants Definitive Proxy Statement on Schedule 14A, filed with the
SEC on April 11, 2008, and incorporated herein by reference. |
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Previously filed as Exhibit 2 to the Registrants Definitive Proxy Statement on Schedule 14A, filed with the
SEC on April 11, 2008, and incorporated herein by reference. |
exv5w1
Exhibit 5.1
October 23, 2008
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 filed by Harmonic Inc. (you or the
Company) with the Securities and Exchange Commission on or about October 23, 2008 (the Registration
Statement), in connection with the registration under the Securities Act of 1933, as amended, of
7,500,000 shares of the Companys common stock, par value $0.001 per share (Common Stock), under the Companys 1995 Stock
Plan, and 100,000 shares of Common Stock under the Companys 2002 Director Stock 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,
/s/ WILSON SONSINI GOODRICH & ROSATI, PROFESSIONAL CORPORATION
exv23w1
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of
our report dated March 17, 2008 relating to the financial statements, and the effectiveness
of internal control over financial reporting, which appears in Harmonic Inc.s Annual Report on Form 10-K
for the year ended December 31, 2007.
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/s/ PricewaterhouseCoopers LLP
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PricewaterhouseCoopers LLP |
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San Jose, California
October 23, 2008 |
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exv23w2
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of
Harmonic Inc. of our report dated October 15, 2007 relating to the financial statements of Rhozet
Corporation, which appears in the Current Report on Form 8-K/A of Harmonic Inc. dated October 15,
2007.
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/s/ PricewaterhouseCoopers LLP
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PricewaterhouseCoopers LLP |
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San Jose, California
October 23, 2008 |
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exv23w3
Exhibit 23.3
CONSENT OF INDEPENDENT AUDITORS
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of
our report dated November 22, 2006 relating to the consolidated financial statements of Entone
Technologies, Inc., and subsidiaries,
as of March 31, 2006 and 2005 and for the years then ended appearing in the Form 8-K/A of Harmonic
Inc. filed on February 22, 2007.
/s/ Deloitte & Touche LLP
San Jose, California
October 21, 2008