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As filed with the Securities and Exchange Commission on January 10, 2001
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 Identification No.)
of incorporation or organization)
16215 ALTON PARKWAY, IRVINE, CALIFORNIA 92618
(Address of principal executive offices) (Zip Code)
ALLAYER COMMUNICATIONS 1997 EQUITY INCENTIVE PLAN
SIBYTE, INC. 2000 KEY EMPLOYEE STOCK PLAN
SIBYTE, INC. 1998 STOCK INCENTIVE PLAN
(AS ASSUMED BY BROADCOM CORPORATION)
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(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)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==================================================================================================================================
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>
Allayer Communications
1997 Equity Incentive Plan
Class A Common Stock, $.0001 par value 558,561 shares $53.510 $29,888,599.11 $7,472.15
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SiByte, Inc.
2000 Key Employee Stock Plan
Class A Common Stock, $.0001 par value 255,825 shares $46.457 $11,884,862.03 $2,971.22
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SiByte, Inc.
1998 Stock Incentive Plan
Class A Common Stock, $.0001 par value 719,527 shares $20.277 $14,589,848.98 $3,647.46
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Total 1,533,913 shares $56,363,310.12 $14,090.83
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</TABLE>
(1) This Registration Statement shall also cover any additional shares of
Broadcom's Class A Common Stock which become issuable under the Allayer
Communications 1997 Equity Incentive Plan, SiByte, Inc. 2000 Key Employee
Stock Plan and SiByte, Inc. 1998 Stock Incentive Plan (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; November 30, 2000;
December 15, 2000; December 15, 2000; December 29, 2000 and
January 9, 2001; 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-5 of this
Registration Statement.
99.1 Allayer Communications 1997 Equity Incentive Plan, as
amended.
99.2 Form of Incentive Stock Option Agreement for Allayer
Communications 1997 Equity Incentive Plan.
99.3 Form of Nonstatutory Stock Option Agreement for Allayer
Communications 1997 Equity Incentive Plan.
99.4 Form of Notice of Exercise for Allayer Communications 1997
Equity Incentive Plan.
99.5 Form of Early Exercise Stock Purchase Agreement for Allayer
Communications 1997 Equity Incentive Plan.
99.6 SiByte, Inc. 2000 Key Employee Stock Plan.
99.7 Form of Stock Grant Agreement for SiByte, Inc. 2000 Key
Employee Stock Plan.
99.8 SiByte, Inc. 1998 Stock Incentive Plan, as amended.
99.9 Form of Stock Option Agreement for SiByte, Inc. 1998 Stock
Incentive Plan.
99.10 Form of Stock Purchase Agreement for SiByte, Inc. 1998 Stock
Incentive Plan.
99.11 Form of Stock Option Assumption Agreement--Allayer
Communications 1997 Equity Incentive Plan.
99.12 Form of Stock Option Assumption Agreement--SiByte, Inc. 2000
Key Employee Stock Plan.
99.13 Form of Stock Option Assumption Agreement--SiByte, Inc. 1998
Stock Incentive Plan.
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
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<PAGE> 5
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 Allayer Communications 1997 Equity Incentive
Plan, SiByte, Inc. 2000 Key Employee Stock Plan and SiByte, Inc. 1998 Stock
Incentive Plan .
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 10th day of January,
2001.
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 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, this Registration Statement has been signed below by the
following persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ HENRY T. NICHOLAS III President, Chief Executive Officer January 10, 2001
-------------------------------- and Co-Chairman
Henry T. Nicholas III, Ph.D. (Principal Executive Officer)
/s/ HENRY SAMUELI Vice President of Research & January 10, 2001
-------------------------------- Development, Chief Technical Officer
Henry Samueli, Ph.D. and Co-Chairman
/s/ WILLIAM J. RUEHLE Vice President and Chief Financial January 10, 2001
-------------------------------- Officer (Principal Financial Officer)
William J. Ruehle
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ SCOTT J. POTERACKI Corporate Controller and Senior January 10, 2001
-------------------------------- Director of Finance (Principal
Scott J. Poteracki Accounting Officer)
/s/ ALAN E. ROSS Director January 10, 2001
--------------------------------
Alan E. Ross
/s/ MYRON S. EICHEN Director January 10, 2001
--------------------------------
Myron S. Eichen
/s/ WERNER F. WOLFEN Director January 10, 2001
--------------------------------
Werner F. Wolfen
</TABLE>
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<PAGE> 8
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
EXHIBITS
TO
FORM S-8
UNDER
SECURITIES ACT OF 1933
BROADCOM CORPORATION
<PAGE> 9
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-5 of this
Registration Statement.
99.1 Allayer Communications 1997 Equity Incentive Plan, as
amended.
99.2 Form of Incentive Stock Option Agreement for Allayer
Communications 1997 Equity Incentive Plan.
99.3 Form of Nonstatutory Stock Option Agreement for Allayer
Communications 1997 Equity Incentive Plan.
99.4 Form of Notice of Exercise for Allayer Communications 1997
Equity Incentive Plan.
99.5 Form of Early Exercise Stock Purchase Agreement for Allayer
Communications 1997 Equity Incentive Plan.
99.6 SiByte, Inc. 2000 Key Employee Stock Plan.
99.7 Form of Stock Grant Agreement for SiByte, Inc. 2000 Key
Employee Stock Plan.
99.8 SiByte, Inc. 1998 Stock Incentive Plan, as amended.
99.9 Form of Stock Option Agreement for SiByte, Inc. 1998 Stock
Incentive Plan.
99.10 Form of Stock Purchase Agreement for SiByte, Inc. 1998 Stock
Incentive Plan.
99.11 Form of Stock Option Assumption Agreement--Allayer
Communications 1997 Equity Incentive Plan.
99.12 Form of Stock Option Assumption Agreement--SiByte, Inc. 2000
Key Employee Stock Plan.
99.13 Form of Stock Option Assumption Agreement--SiByte, Inc. 1998
Stock Incentive Plan.
