As filed with the Securities and Exchange Commission on June 10, 2009
Registration No. 333
UNITED STATES
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)
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| Delaware
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77-0201147 |
(State or other jurisdiction of incorporation or
organization)
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(I.R.S. Employer Identification Number) |
549 Baltic Way
Sunnyvale, CA 94089
(Address, including zip code, of principal executive offices)
2002 Employee Stock Purchase 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:
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 þ |
Accelerated filer o |
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. 2002 Employee
Stock Purchase Plan |
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2,000,000 |
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$5.94 |
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$11,880,000 |
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$662.91 |
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| 1. |
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Represents the additional number of shares of Common Stock reserved for issuance
pursuant to the registrant’s 2002 Employee Stock Purchase Plan, as amended (the “2002
ESPP”). 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 registrant’s Common Stock to be offered or issued pursuant to the
antidilution provisions of the 2002 ESPP. |
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The Proposed Maximum Offering Price Per Share was estimated in accordance with Rule
457(h) under the Securities Act solely for the purpose of calculating the registration fee,
and is based on the price of $5.94 per share, which was the average of the high and low
prices per share of the registrant’s Common Stock as reported on the NASDAQ Global Select
Market on June 4, 2009. |
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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 2009 shall be “$55.80
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 0.0000558. |
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The registrant is paying an aggregate registration fee of $662.91 for the
registration of 2,000,000 shares of Common Stock hereunder. |
TABLE OF CONTENTS
PART II
Information Required in the Registration Statement
Item 3. Incorporation of Documents by Reference
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”) (other than information in a report or
document that is “furnished” and not “filed” pursuant to the SEC rules and regulations applicable
to such report or document, and, except as may be noted in any such report or document, exhibits
included with such report or document that are related to such information):
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The Registrant’s Annual Report on Form 10-K for the year ended December 31, 2008, filed
with the SEC on March 2, 2009; |
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The Registrant’s Current Report on Form 8-K filed with the SEC on January 22, 2009; |
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The Registrant’s Current Report on Form 8-K filed with the SEC on March 12, 2009; |
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The Registrant’s Definitive Proxy Statement on Schedule 14A, filed with the SEC on
March 31, 2009; |
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The Registrant’s Definitive Additional Materials on Schedule 14A, filed with the SEC on
March 31, 2009; |
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The Registrant’s Current Report on Form 8-K filed with the SEC on May 11, 2009; and |
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The Registrant’s Quarterly Report on Form 10-Q for the three months ended April 3,
2009, filed with the SEC on May 13, 2009. |
In addition, the Registrant hereby incorporates by reference into this Registration Statement the
description of the Registrant’s common stock, par value $0.001 per share (the “Common Stock”),
contained in the Registrant’s 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 Registrant’s 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 Registrant’s Common Stock. Jeffrey D. Saper, a
member of WSGR, owns 6,484 shares of the Registrant’s 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 director’s fiduciary duty, except (1) for any breach of a
director’s 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.
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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 corporation’s 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 Registrant’s 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 person’s 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 Registrant’s request. The Registrant also
maintains an insurance policy insuring the Registrant’s 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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Description of Exhibit |
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4.1
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Harmonic Inc. 2002 Employee Stock Purchase 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 |
23.4
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Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation (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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Item 9. Undertakings.
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The undersigned Registrant hereby undertakes: |
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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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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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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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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; |
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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 or furnished to 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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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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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. |
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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 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. |
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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 June 10, 2009.
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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/s/ Patrick J. Harshman
(Patrick J. Harshman))
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Chief Executive Officer
(Principal Executive Officer)
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June 10, 2009 |
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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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June 10, 2009 |
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/s/ Lewis Solomon
(Lewis Solomon)
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Chairman of the Board
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June 10, 2009 |
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/s/ Harold Covert
(Harold Covert)
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Director
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June 10, 2009 |
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/s/ Patrick Gallagher
(Patrick Gallagher)
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Director
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June 10, 2009 |
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/s/ Floyd Kvamme
(E. Floyd Kvamme)
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Director
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June 10, 2009 |
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/s/ Anthony J. Ley
(Anthony J. Ley)
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Director
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June 10, 2009 |
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/s/ William Reddersen
(William Reddersen)
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Director
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June 10, 2009 |
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/s/ David Van Valkenburg
(David Van Valkenburg)
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Director
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June 10, 2009 |
5
INDEX TO EXHIBITS
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| Exhibit |
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Description of Exhibit |
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4.1
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Harmonic Inc. 2002 Employee Stock Purchase 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 |
23.4
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Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation (included in Exhibit 5.1) |
24.1
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Power of Attorney (included on signature page to this registration statement) |