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As filed with the Securities and Exchange Commission on December 11, 2000
Registration No. 333-_______
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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BROADCOM CORPORATION
(Exact name of registrant as specified in its charter)
CALIFORNIA 33-0480482
(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification No.)
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16215 ALTON PARKWAY, IRVINE, CALIFORNIA 92618
(Address of principal executive offices) (Zip Code)
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ELEMENT 14, INC. UNAPPROVED SHARE OPTION SCHEME
(AS ASSUMED BY BROADCOM CORPORATION)
(Full title of the Plans)
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DAVID A. DULL, ESQ.
VICE PRESIDENT OF BUSINESS AFFAIRS, GENERAL COUNSEL AND SECRETARY
BROADCOM CORPORATION
16215 ALTON PARKWAY, IRVINE, CALIFORNIA 92618
(Name and address of agent for service)
(949) 585-5604
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES TO BE OFFERING PRICE AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED(1) PER SHARE(2) OFFERING PRICE(2) REGISTRATION FEE
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<S> <C> <C> <C> <C>
Element 14, Inc.
Unapproved Share Option Scheme
Class A Common Stock, $.0001 par value 932,361 shares $23.28 $21,705,364.08 $5,730.22
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Total $21,705,364.08 $5,730.22
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(1) This Registration Statement shall also cover any additional shares of
Broadcom's Class A Common Stock which become issuable under the Element 14,
Inc. Unapproved Share Option Scheme (as assumed by Broadcom Corporation) by
reason of any stock dividend, stock split, recapitalization or other
similar transaction effected without Broadcom's receipt of consideration
which results in an increase in the number of Broadcom's outstanding shares
of Class A Common Stock.
(2) Calculated solely for the purpose of this offering under Rule 457(h) of the
Securities Act of 1933, as amended (the "Securities Act") on the basis of
the weighted average exercise price of the outstanding options.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
Broadcom Corporation hereby incorporates by reference into this
Registration Statement the following documents previously filed with the
Securities and Exchange Commission:
(a) Broadcom's Annual Report on Form 10-K for the fiscal year ended
December 31, 1999, filed with the SEC on March 30, 2000;
(b) Broadcom's Quarterly Reports on Form 10-Q for the fiscal quarter
ended March 31, 2000, filed with the SEC on May 15, 2000; the fiscal
quarter ended June 30, 2000, filed with the SEC on August 14, 2000;
and the fiscal quarter ended September 30, 2000, filed with the SEC
on November 14, 2000;
(c) Broadcom's Current Reports on Form 8-K filed with the SEC on
February 1, 2000; February 29, 2000; March 6, 2000; March 24, 2000;
June 2, 2000; June 14, 2000; June 30, 2000; July 21, 2000; August 2,
2000; August 4, 2000; August 9, 2000; August 16, 2000; September 22,
2000; October 11, 2000; October 18, 2000; October 19, 2000; October
23, 2000; November 7, 2000; November 22, 2000; November 28, 2000;
and November 30, 2000; and its Current Reports on Form 8-K/A filed
with the SEC on July 10, 2000; October 2, 2000; November 9, 2000;
and November 13, 2000; and
(d) Broadcom's Registration Statement No. 000-23993 on Form 8-A filed
with SEC on April 6, 1998, including any other amendments or reports
filed for the purpose of updating such description, in which there
is described the terms, rights and provisions applicable to
Broadcom's Class A Common Stock.
All reports and definitive proxy or information statements filed
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934, as amended, after the date of this Registration Statement and prior to the
filing of a post-effective amendment which indicates that all securities offered
hereby have been sold or which de-registers all securities then remaining unsold
shall be deemed to be incorporated by reference into this Registration Statement
and to be a part hereof from the date of filing of 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
subsequently filed document which also is deemed to be incorporated by reference
herein modifies or supersedes such statement. Any such 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. Interests of Named Experts and Counsel
Not applicable.
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Item 6. Indemnification of Directors and Officers
Broadcom's Articles of Incorporation limit the personal liability of its
directors for monetary damages to the fullest extent permitted by the California
General Corporation Law (the "California Law"). Under the California Law, a
director's liability to a company or its shareholders may not be limited with
respect to the following items: (i) acts or omissions that involve intentional
misconduct or a knowing and culpable violation of law, (ii) acts or omissions
that a director believes to be contrary to the best interests of the company or
its shareholders or that involve the absence of good faith on the part of the
director, (iii) any transaction from which a director derived an improper
personal benefit, (iv) acts or omissions that show a reckless disregard for the
director's duty to the company or its shareholders in circumstances in which the
director was aware, or should have been aware, in the ordinary course of
performing a director's duties, of a risk of a serious injury to the company or
its shareholders, (v) acts or omissions that constitute an unexcused pattern of
inattention that amounts to an abdication of the director's duty to the company
or its shareholders, (vi) contracts or transactions between the company and a
director within the scope of Section 310 of the California Law or (vii) improper
dividends, loans and guarantees under Section 316 of the California Law. The
limitation of liability does not affect the availability of injunctions and
other equitable remedies available to Broadcom's shareholders for any violation
by a director of the director's fiduciary duty to Broadcom or its shareholders.
Broadcom's Articles of Incorporation also include an authorization for
Broadcom to indemnify its "agents" (as defined in Section 317 of the California
Law) through bylaw provisions, by agreement or otherwise, to the fullest extent
permitted by law. Pursuant to this provision, Broadcom's Bylaws provide for
indemnification of Broadcom's directors, officers and employees. In addition,
Broadcom may, at its discretion, provide indemnification to persons whom
Broadcom is not obligated to indemnify. The Bylaws also allow Broadcom to enter
into indemnity agreements with individual directors, officers, employees and
other agents. These indemnity agreements have been entered into with all
directors and executive officers and provide the maximum indemnification
permitted by law. These agreements, together with Broadcom's Bylaws and Articles
of Incorporation, may require Broadcom, among other things, to indemnify these
directors or executive officers (other than for liability resulting from willful
misconduct of a culpable nature), to advance expenses to them as they are
incurred, provided that they undertake to repay the amount advanced if it is
ultimately determined by a court that they are not entitled to indemnification,
and to obtain directors' and officers' insurance if available on reasonable
terms. Section 317 of the California Law and Broadcom's Bylaws make provision
for the indemnification of officers, directors and other corporate agents in
terms sufficiently broad to indemnify such persons, under certain circumstances,
for liabilities (including reimbursement of expenses incurred) arising under the
Securities Act.
Item 7. Exemption from Registration Claimed
Not Applicable.
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Item 8. Exhibits
Exhibit
Number Exhibit
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4.1 Instruments Defining the Rights of Stockholders. Reference is
made to Broadcom's Registration Statement No. 000-23993 on Form
8-A, together with the amendments and exhibits thereto, which is
incorporated herein by reference pursuant to Item 3(d).
5.1 Opinion and consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in
Exhibit 5.1.
24.1 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
99.1 Element 14, Inc. Unapproved Share Option Scheme.
99.2 Form of Grant Notice, Option Certificate and Notice of Exercise
of Option for Element 14, Inc. Unapproved Share Option Scheme.
99.3 Form of Stock Option Assumption Agreement--Element 14, Inc.
Unapproved Share Option Scheme.
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: (i) to include any prospectus required by Section
10(a)(3) of the Securities Act, (ii) 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 and (iii) 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 clauses (1)(i) and (1)(ii) shall
not apply if the information required to be included in a post-effective
amendment by those clauses is contained in periodic reports filed by the
registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference into this 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; and
(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
Element 14, Inc. Unapproved Share Option Scheme.
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 that is incorporated by reference into 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.
C. 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 indemnification provisions summarized in Item
6 above, 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, as amended,
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 Irvine, California, on this 11th day of December, 2000.
BROADCOM CORPORATION
By: /s/ HENRY T. NICHOLAS III
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Henry T. Nicholas III, Ph.D.
President, Chief Executive
Officer and Co-Chairman
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned officers and
directors of Broadcom Corporation, a California corporation, do hereby
constitute and appoint Henry T. Nicholas III and Henry Samueli and each of them,
their lawful attorneys-in-fact and agents with full power and authority to do
any and all acts and things and to execute any and all instruments which said
attorneys and agents, and any one of them, determine may be necessary or
advisable or required to enable said corporation to comply with the Securities
Act of 1933, as amended, and any rules or regulations or requirements of the
Securities and Exchange Commission in connection with this Registration
Statement. Without limiting the generality of the foregoing power and authority,
the powers granted include the power and authority to sign the names of the
undersigned officers and directors in the capacities indicated below to this
Registration Statement, to any and all amendments, both pre-effective and
post-effective, and supplements to this Registration Statement, and to any and
all instruments or documents filed as part of or in conjunction with this
Registration Statement or amendments or supplements thereof, and each of the
undersigned hereby ratifies and confirms that all said attorneys and agents, or
any one of them, shall do or cause to be done by virtue hereof. This Power of
Attorney may be signed in several counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of
Attorney as of the date indicated. Pursuant to the requirements of the
Securities Act of 1933, as amended, this Registration Statement has been signed
below by the following persons in the capacities and on the dates indicated.
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SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ HENRY T. NICHOLAS III President, Chief Executive Officer December 11, 2000
---------------------------------------- and Co-Chairman
Henry T. Nicholas III, Ph.D. (Principal Executive Officer)
/s/ HENRY SAMUELI Vice President of Research & December 11, 2000
---------------------------------------- Development, Chief Technical Officer
Henry Samueli, Ph.D. and Co-Chairman
/s/ WILLIAM J. RUEHLE Vice President and Chief Financial December 11, 2000
---------------------------------------- Officer (Principal Financial Officer)
William J. Ruehle
/s/ SCOTT J. POTERACKI Corporate Controller and Senior December 11, 2000
---------------------------------------- Director of Finance (Principal
Scott J. Poteracki Accounting Officer)
/s/ ALAN E. ROSS Director December 11, 2000
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Alan E. Ross
/s/ MYRON S. EICHEN Director December 11, 2000
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Myron S. Eichen
/s/ WERNER F. WOLFEN Director December 11, 2000
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Werner F. Wolfen
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
EXHIBITS
TO
FORM S-8
UNDER
SECURITIES ACT OF 1933
BROADCOM CORPORATION
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EXHIBIT INDEX
Exhibit
Number Exhibit
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4.1 Instruments Defining the Rights of Stockholders. Reference is
made to Broadcom's Registration Statement No. 000-23993 on Form
8-A, together with the amendments and exhibits thereto, which is
incorporated herein by reference pursuant to Item 3(d).
5.1 Opinion and consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in
Exhibit 5.1.
24.1 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
99.1 Element 14, Inc. Unapproved Share Option Scheme.
99.2 Form of Grant Notice, Option Certificate and Notice of Exercise
of Option for Element 14, Inc. Unapproved Share Option Scheme.
99.3 Form of Stock Option Assumption Agreement--Element 14, Inc.
Unapproved Share Option Scheme.
