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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
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REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
HARMONIC INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
549 Baltic Way
Sunnyvale, CA 94089
(408) 542-2500
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
1999 NON-STATUTORY STOCK OPTION PLAN
DELAWARE 77-0201147
(State or other jurisdiction of incorporation or (I.R.S. Employer Identification No.)
organization)
Robin N. Dickson
Chief Financial Officer
Harmonic Inc.
549 Baltic Way
Sunnyvale, CA 94089
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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CALCULATION OF REGISTRATION FEE
Proposed Maximum Proposed Maximum
Title of Each Class of Amount to be Offering Price Aggregate Offering Amount of
Securities to be Registered Registered per Share Price Registration Fee
--------------------------------- ------------------- ------------------- -------------------- --------------------
Common Stock (par value $0.001 2,000,000 $3.380 $6,760,000 $1,690.00
per share) reserved for
issuance under the Harmonic
Inc. 1999 Nonstatutory Stock
Option Plan
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 1999 Nonstatutory Stock Option Plan ("99NSO
Plan"). The weighted average exercise price of the shares subject to outstanding
options under the 99NSO Plan is $17.8069 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 April 17, 2001, or $3.380.
Amount of Registration Fee was calculated pursuant to Section 6(b) of the
Securities Act of 1933, which states that the fee shall be "$250 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 0.00025.
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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 Form 10-K/A was filed on April 19,
2001 for the year ended December 31, 2000 filed pursuant to Section
13(a) or 15(d) of the Securities Exchange Act, as amended (the
"Exchange Act").
b. 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 de-registers 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. INTEREST 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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
Exhibit
Number
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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 5).
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 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.
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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:
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant, Harmonic Inc., a Delaware corporation, has
duly caused this Report on Form 10-K to be signed on its behalf by the
undersigned, hereunto duly authorized, in the City of Sunnyvale, State of
California, on April 19, 2001.
HARMONIC INC.
By: /s/ Anthony J. Ley
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Anthony J. Ley
Chairman, President & Chief Executive Officer
SIGNATURE TITLE DATE
------------------------------------- ------------------------------------------------------- ------------------------
/s/Anthony J. Ley Chairman, President & Chief Executive Officer April 19, 2001
------------------------------------- (Principal Executive Officer)
(Anthony J. Ley)
/s/Robin N. Dickson Chief Financial Officer April 19, 2001
------------------------------------- (Principal Financial and Accounting Officer)
(Robin N. Dickson)
/s/Baryn S. Futa Director April 19, 2001
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(Baryn S. Futa)
/s/E. Floyd Kvamme Director April 19, 2001
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(E. Floyd Kvamme)
/s/David A. Lane Director April 19, 2001
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(David A. Lane)
/s/Barry Lemieux Director April 19, 2001
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(Barry Lemieux)
/s/Michel L. Vaillaud Director April 19, 2001
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(Michel L. Vaillaud)
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SECURITIES AND EXCHANGE COMMISSION
Washington D.C. 20549
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EXHIBITS
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Registration Statement on Form S-8
Harmonic Inc.
April 19, 2001
INDEX TO EXHIBITS
Exhibit Number Description
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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 5).
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