As filed with the Securities and Exchange Commission on August 29, 1997
Registration Nos. 33-41027, 33-80988, 33-80992, 33-94790, 333-13357, 333-13359
and 333-13387
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1 TO
FORM S-8 REGISTRATION STATEMENTS
Under
The Securities Act of 1933
PMC-SIERRA, INC.
(Exact name of registrant as specified in its charter)
Delaware 94-2925073
- ------------------------------- ------------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
105 - 8555 Baxter Place
Burnaby, British Columbia, Canada V5A 4V7
(Address of principal executive offices)
1991 EMPLOYEE STOCK PURCHASE PLAN
1994 INCENTIVE STOCK PLAN
PMC-SIERRA, INC. (PORTLAND) 1996 STOCK OPTION PLAN
(Full title of the Plans)
THE CORPORATION TRUST COMPANY
1209 Orange Street
Wilmington, Delaware 19801
(800) 677-3394
(Name, address and telephone number of agent for service)
Copy to:
NEIL J. WOLFF, ESQ.
Wilson Sonsini Goodrich & Rosati, P.C.
650 Page Mill Road
Palo Alto, California 94304-1050
(650) 493-9300
================================================================================
CALCULATION OF REGISTRATION FEE
================================================================================
Proposed Proposed
Title of Maximum Maximum Amount
Securities Amount Offering Aggregate of
to be to be Price Offering Registration
Registered Registered Per Share Price Fee
- -------------------------------------------------------------------------------
N/A* N/A* N/A* N/A* N/A*
* No additional securities are to be registered, and registration fees were
paid upon filing original Registration Statement Nos. 33-41027, 33-80988,
33-80992, 33-94790, 333-13357, 333-13359 and 333-13387. Therefore, no
further registration fee is required.
<PAGE>
PMC-SIERRA, INC.
POST-EFFECTIVE AMENDMENT NO. 1 TO
REGISTRATION STATEMENT ON FORM S-8
EXPLANATORY NOTE
This Post-Effective Amendment No. 1 (the "Amendment") to certain
Registration Statements on Form S-8 (File Nos. 33-41027, 33-80988, 33-80992,
33-94790, 333-13357, 333-13359 and 333-13387) (the "Registration Statements") is
being filed pursuant to Rule 414 under the Securities Act of 1933, as amended
(the "Securities Act") by PMC-Sierra, Inc., a Delaware corporation ("PMC" or the
"Company"). PMC is the successor to PMC-Sierra, Inc. (formerly named Sierra
Semiconductor Corporation), a California corporation ("Sierra"), following a
statutory merger (the "Merger") for the purpose of changing Sierra's state of
incorporation from California to Delaware, effective as of July 10, 1997. Prior
to the Merger, PMC had no assets or liabilities other than nominal assets or
liabilities. In connection with the Merger, PMC succeeded by operation of law to
all of the assets and liabilities of Sierra. The Merger was approved by the
shareholders of Sierra at a meeting for which proxies were solicited pursuant to
Section 14(a) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act").
Except as modified by this Amendment, PMC, by virtue of this Amendment,
expressly adopts the Registration Statements as its own registration statements
for all purposes of the Securities Act and the Exchange Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Information Incorporated by Reference.
--------------------------------------
The following documents and information previously filed with the
Securities and Exchange Commission are hereby incorporated by reference:
(a) The 1996 Annual Report to Shareholders of Sierra;
(b) The Annual Report on Form 10-K of Sierra for the fiscal year
ended December 31, 1996.
(c) The Quarterly Reports on Form 10-Q of Sierra and the Company,
for the quarters ended March 31, 1997 and June 30, 1997, respectively.
(d) The Current Reports on Form 8-K of Sierra and the Company,
filed April 18, 1997 and August 8, 1997, respectively.
<PAGE>
Item 4. Description of Securities.
--------------------------
The Company's Common Stock, par value $0.001, is registered under
Section 12 of the Exchange Act.
The holders of the Company's Common Stock are entitled to one vote for
each share held of record on all matters submitted to a vote of stockholders,
except for the purpose of electing directors, when the holders of Common Stock
are entitled to cumulate their votes pursuant to Section 214 of the Delaware
General Corporation Law.
Subject to preferences that may be applicable to any Preferred Stock
which may be issued in the future, the holders of Common Stock of the Company
are entitled to receive ratably such non-cumulative dividends, if any, as may be
declared from time to time by the Board of Directors out of funds legally
available therefor. The Common Stock of the Company has no preemptive or
conversion rights or other subscription rights. There are no redemption or
sinking fund provisions applicable to the Common Stock. In the event of
liquidation, dissolution or winding up of the Company, the holders of Common
Stock of the Company are entitled to share ratably in all assets remaining after
payment of liabilities, subject to liquidation preferences, if any, of Preferred
Stock which may be issued in the future. All outstanding shares of Common Stock
are fully paid and non-assessable.
Pursuant to the Company's Certificate of Incorporation, the Board of
Directors has the authority, without further action by the stockholders, to
issue up to 5,000,000 shares of Preferred Stock in one or more series and to fix
the designations, powers, preferences and rights (including, without limitation,
dividend rights, conversion rights, voting rights, terms of redemption and
liquidation preferences) and the qualifications, limitations or restrictions
thereof, any or all of which may be greater than the rights of the Common Stock.
The Board of Directors, without stockholder approval, can issue Preferred Stock
with voting, conversion or other rights that could adversely affect the voting
power and other rights of the holders of Common Stock. The issuance of Preferred
Stock may have the effect of delaying, deferring or preventing change in control
of the Company. At present, there are no shares of Preferred Stock outstanding.
Section 203 of the Delaware General Corporation Law, from which the
Company has not opted out in its Certificate of Incorporation, restricts certain
"business combinations" with "interested stockholders" for three years following
the date that a person or entity becomes an interested stockholder, unless the
Board of Directors approves the business combination and/or certain other
requirements are met.
Item 5. Interests of Named Experts and Counsel.
--------------------------------------
Not applicable.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
The Certificate of Incorporation of the Company eliminates the
liability of directors to the Company for monetary damages for breach of
fiduciary duty as a director to the fullest extent permissible under Delaware
law, as such law exists currently or as it may be amended in the future. Under
Delaware law, such provision may not eliminate or limit director monetary
liability for: (a) breaches of the director's duty of loyalty to the Company or
its stockholders; (b) acts or omissions not in good faith or involving
intentional misconduct or knowing violations of law; (c) the payment of unlawful
dividends or unlawful stock repurchases or redemptions; or (d) transactions in
which the director received an improper personal benefit. Such limitation of
liability provisions also may not limit a director's liability for violation of,
or otherwise relieve the Company or its directors from the necessity of
complying with, federal or state securities laws, or affect the availability of
non-monetary remedies such as injunctive relief or rescission.
<PAGE>
The Company's Bylaws provide that the Company shall indemnify its
directors and officers and may indemnify its employees and other agents to the
fullest extent permitted by law. The Company believes that indemnification under
its Bylaws covers at least negligence and gross negligence on the part of
indemnified parties. The Company's Bylaws also permit the Company to secure
insurance on behalf of any officer, director, employee or other agent for any
liability arising out of his or her actions in such capacity, regardless of
whether the Company would have the power to indemnify him or her against such
liability under the General Corporation Law of Delaware. The Company currently
has secured such insurance on behalf of its officers and directors.
The Company has entered into agreements to indemnify its directors and
officers, in addition to indemnification provided for in the Company's Bylaws.
Subject to certain conditions, these agreements, among other things, indemnify
the Company's directors and officers for certain expenses (including attorney's
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
Company, arising out of such person's services as a director or officer of the
Company, any subsidiary of the Company or any other company or enterprise to
which the person provides services at the request of the Company.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not applicable.
<PAGE>
Item 8. Exhibits.
--------
Exhibit
Number Document
4.1(1) Certificate of Incorporation of the Company
4.2(2) Bylaws of the Company
4.3(1) Fourth Article of the Certificate of Incorporation of the
Registrant (Contained in Exhibit 4.1, above)
4.4 Specimen Common Stock Certificate
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, P.C.
23.1 Consent of Ernst & Young, LLP, Independent Auditors
23.2 Consent of Counsel (Contained in Exhibit 5.1, above)
24.1(3) Power of Attorney
(1) Incorporated by reference to Exhibit 3.1 filed with the Company's
Quarterly Report on Form 10-Q for the quarter ended June 30, 1997.
(2) Incorporated by reference to Exhibit 3.3 filed with the Company
Quarterly Report on Form 10-Q for the quarter ended June 30, 1997.
(3) Included on Signatures page to this Amendment to the Registration
Statements.
Item 9. Undertakings.
------------
(a) The Company hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to the registration statements:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statements (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statements;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the registration statements
or any material change to such information in the registration statements;
<PAGE>
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statements is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Company pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statements.
(2) That for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statements 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 Company hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the Company's
annual report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in the registration
statements shall be deemed to be a new registration statements 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, officer and controlling persons of
the Company pursuant to the Delaware General Corporation Law, the Certificate of
Incorporation and the Bylaws of the Company, Indemnification Agreements entered
into between the Company and its officers and directors, or otherwise, the
Company has been advised that in the opinion of the Securities and Exchange
Commission 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 Company
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 hereunder, the Company 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.
<PAGE>
SIGNATURES
----------
Pursuant to the requirements of the Securities Act, the Company
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 Post-Effective
Amendment No. 1 to the Registration Statements on Form S-8 to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Burnaby,
British Columbia, Canada on August 26, 1997.
PMC-SIERRA, INC.
By: /s/ ROBERT L. BAILEY
Robert L. Bailey
Chief Executive Officer
(Principal Executive Officer)
(Duly Authorized Officer)
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Robert L. Bailey and John Sullivan,
jointly and severally, his attorneys-in-fact, each with the power of
substitution, for him in any and all capacities, to sign any amendments to this
Post-Effective Amendment No. 1 to the Registration Statements 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, this Post-Effective
Amendment No. 1 to the Registration Statements on Form S-8 is being signed by
the following persons in the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/S/ ROBERT L. BAILEY Director and Chief Executive August 26, 1997
- ----------------------- Officer (Principal Executive
Robert L. Bailey Officer)
/S/ JOHN SULLIVAN Vice President, Finance and August 26, 1997
- ----------------------- Chief Financial Officer
John Sullivan (Principal Financial and
Accounting Officer)
/S/ JAMES V. DILLER Chairman of the Board of August 26, 1997
- ----------------------- Directors
James V. Diller
/S/ ALEXANDRE BALKANSKI Director August 26, 1997
- -----------------------
Alexandre Balkanski
/S/ COLIN BEAUMONT Director August 26, 1997
- -----------------------
Colin Beaumont
/S/ MICHAEL L. DIONNE Director August 26, 1997
- -----------------------
Michael L. Dionne
/S/ FRANK J. MARSHALL Director August 19, 1997
- -----------------------
Frank J. Marshall
<PAGE>
EXHIBIT INDEX
Sequentially
Exhibit Numbered
Number Exhibit Page
------ ------- ----
4.4 Form of Common Stock Certificate
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, P.C.
23.1 Consent of Ernst & Young, LLP, Independent Auditors
23.2 Consent of Counsel (Contained in Exhibit 5.1 above)
(FRONT)
FBU
THIS CERTIFICATE IS TRANSFERABLE IN
BOSTON, MA OR NEW YORK, NY
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
SEE REVERSE FOR STATEMENTS RELATING TO RIGHTS, PREFERENCES, PRIVILEGES
AND RESTRICTIONS, IF ANY
CUSIP 69344F 10 6
This Certifies that is the owner of
FULLY PAID AND NONASSESSABLE SHARES OF COMMON STOCK, $0.001 PAR VALUE, OF
PMC-SIERRA, INC.
transferable on the books of the Corporation by the holder hereof in person or
by duly authorized Attorney upon surrender of this certificate properly
endorsed. This certificate is not valid until countersigned by the Transfer
Agent and registered by the Registrar. WITNESS the facsimile seal of the
Corporation and the facsimile signatures of its duly authorized officers.
Dated
COUNTERSIGNED AND REGISTERED:
BankBoston, N.A.
TRANSFER AGENT AND REGISTRAR
BY
AUTHORIZED SIGNATURE
<PAGE>
(BACK)
A statement of the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights as established, from time to time, by the Certificate of
Incorporation of the Corporation and by any certificate of determination, the
number of shares constituting each class and series, and the designations
thereof, may be obtained by the holder hereof upon request and without charge at
the principal office of the Corporation.
The following abbreviations, when used in the inscription on the face of this
certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM = as tenants in common
TEN ENT = as tenants by the entireties
JT TEN = as joint tenants with right of
survivorship and not as tenants
in common
UNIF GIFT MIN ACT = .....................
Custodian .........................
(Cust)
(Minor)
under Uniform Gifts to Minors
Act
..............................................
(State)
UNIF TRF MIN ACT = ............... Custodian
(until age ..............)
(Cust)
...................... under Uniform Transfers
(Minor)
to Minors Act
.....................................
(State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED,
hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
<PAGE>
Shares
of the capital stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint
Attorney
to transfer the said stock on the books of the within named Corporation with
full power of substitution in the premises.
Dated
X
X
NOTICE:
THE SIGNATURE(S) TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME(S) AS WRITTEN
UPON THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR, WITHOUT ALTERATION OR
ENLARGEMENT OR ANY CHANGE WHATEVER.
Signature(s) Guaranteed
By
THE SIGNATURE(S) MUST BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS,
STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN
AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM), PURSUANT TO S.E.C. RULE
17Ad-15.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
JOHN ARNOT WILSON
RETIRED
PALO ALTO, CALIFORNIA 94304-1050
TELEPHONE 650-493-9300 FACSIMILE 650-493-6811
August 26, 1997
PMC-Sierra, Inc.
105-8555 Baxter Place
Burnaby, British Columbia
Canada
Re: Registration Statements on Form S-8
-----------------------------------
Gentlemen & Ladies:
We have examined the Post-effective Amendment No. 1 to the Registration
Statements on Form S-8 to be filed by you with the Securities and Exchange
Commission on or about August 29, 1997 (the "Registration Statements") in
connection with your adoption of the registration under the Securities Act of
1933, as amended, of shares of your Common Stock (the "Shares"), to be issued
pursuant to the 1991 Employee Stock Purchase Plan, the 1994 Incentive Stock Plan
or the PMC-Sierra, Inc. (Portland) 1996 Stock Option Plan, as applicable (the
"Plans"). As your counsel in connection with these transactions, 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 Plan.
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
Statements, and further consent to the use of our name wherever appearing in the
Registration Statements and any amendments thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
s/ WILSON SONSINI GOODRICH & ROSATI
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statements (Post-Effective Amendment No. 1 to Form S-8 Nos. 33-41027, 33-80988,
333-13387, 33-80992, 33-94790, 333-13359 and 333-13357) pertaining to the 1991
Employee Stock Purchase Plan, the 1994 Incentive Stock Plan and the PMC-Sierra,
Inc. (Portland) 1996 Stock Option Plan of PMC-Sierra, Inc., of our report dated
January 22, 1997, with respect to the consolidated financial statements and
schedule of PMC-Sierra, Inc. (formerly known as Sierra Semiconductor
Corporation) included in its Annual Report (Form 10-K) for the year ended
December 31, 1996, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
San Jose, California
August 25, 1997
