As filed with the Securities and Exchange Commission on June 3, 1998
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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PMC-SIERRA, INC.
(Exact name of registrant as specified in its charter)
Delaware 94-2925073
(State of Incorporation) (I.R.S. Employer Identification No.)
105-8555 Baxter Place
Burnaby, British Columbia V5A 4V7
Canada
(Address of principal executive offices)
1994 Incentive Stock Plan
1991 Employee Stock Purchase 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
Wilson Sonsini Goodrich & Rosati, P.C.
650 Page Mill Road
Palo Alto, California 94304-1050
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<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Title of Maximum Maximum Amount
Securities Amount Offering Aggregate of
to be to be Price Per Offering Registration
Registered Registered Share(1) Price(1) Fee
- ------------------------ -------------------- ---------------- ------------------- -----------------
<S> <C> <C> <C> <C>
Common Stock............ 1,100,000 shs(2) $38.53 $42,383,000 $12,502.99
Common Stock............ 250,000 shs(3) $38.53 $ 9,632,500 $ 2,841.59
<FN>
(1) Estimated pursuant to Rule 457 solely for the purpose of calculating the
registration fee. Based on the average of the high and low prices of the
Common Stock on June 1, 1998, as reported on the Nasdaq National Market.
(2) Shares to be reserved under the 1994 Incentive Stock Plan
(3) Shares to be reserved under the 1991 Employee Stock Purchase Plan
</FN>
</TABLE>
STATEMENT UNDER GENERAL INSTRUCTION
The contents of the Registration's Form S-8 Registration Statements (File
No. 33-80992, 33-94790, 333- 13359 and 333-34671) with respect to the 1994
Incentive Stock Plan, and Form S-8 Registration Statements (File No. 33-41027,
33-80988 and 333-13387) with respect to the 1991 Employee Stock Purchase Plan,
are incorporated by reference into this Registration Statement, except for Part
II, Item 4, 6 and 9.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 4. Description of Securities.
--------------------------
The authorized capital stock of the Company consists of 50,000,000 shares
of Common Stock, par value $0.001, and 5,000,000 shares of Preferred Stock, par
value $0.001.
The following summary of certain provisions of the Common Stock and
Preferred Stock does not purport to be complete though the Company believes it
contains all the material provisions, and is subject to, and qualified in its
entirety by, the provisions of the Company's Certificate of Incorporation and by
the provisions of applicable law.
Common Stock
The Company's Common Stock is registered under Section 12(g) of the
Exchange Act. Subject to preferences that may be applicable to any outstanding
Preferred Stock which may be issued in the future, the holders of Common Stock
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 has no preemptive or conversion rights or
other subscription rights. There are no redemption or sinking fund provisions
available to the Common Stock. The holders of Common Stock are entitled to one
vote per share on all matters to be voted upon by the stockholders, except that
stockholders may, in accordance with Section 214 of the Delaware General
Corporation Law, cumulate their votes in the election of directors. In the event
of liquidation, dissolution or winding up of the Company, the holders of Common
Stock 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.
Preferred Stock
Pursuant to the Company's Certificate of Incorporation, the Board of
Directors of the Company has the authority to issue up to 5,000,000 shares of
Preferred Stock in one or more series, to fix the rights, preferences,
privileges and restrictions granted to or imposed upon any wholly unissued
series of Preferred Stock, and to fix the number of shares constituting any
series and the designations of such series, without any further vote or action
by the stockholders. Such issued Preferred Stock could adversely effect the
voting power and other rights of the holders of Common Stock. The issuance of
Preferred Stock may also have the effect of delaying, deferring or preventing a
change in control of the Company. At present, there are no outstanding shares of
Rights of Holders of Special Shares of PMC-Sierra, Inc.
Rights of Holders of Special Shares of PMC-Sierra, Inc.
The Special Shares of PMC-Sierra, Inc. are redeemable for Common Stock of
the Company. Special Shares do not have voting rights in the Company, but in all
other respects they represent the economic and functional equivalent of the
Common Stock of the Company for which they can be redeemed. Under applicable
law, each class of Special Shares will have class voting rights in certain
circumstances with respect to transactions that effect the rights of the class
and for certain extraordinary corporate transactions. Two kinds of Special
Shares are outstanding: A Special Shares and B Special Shares.
<PAGE>
Delaware Law
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
Company's Board of Directors approves the business combination and/or certain
other requirements are met.
Item 6. Indemnification of Directors and Officers.
------------------------------------------
Section 145 of the Delaware General Corporation Law generally provides
that a corporation is empowered to indemnify any person who is made a party to
any threatened, pending or completed action, suit or proceeding by reason of the
fact that he is or was a director, officer, employee or agent of the corporation
or is or was serving, at the request of the corporation, in any of such
capacities of another corporation or other enterprise, if such director,
officer, employee or agent acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the corporation, and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. This statute describes in detail the right of
the Registrant to indemnify any such person.
The Registrant's Certificate of Incorporation eliminates in certain
circumstances the liability of directors of the Registrant for monetary damages
for breach of their fiduciary duty as directors. This provision does not
eliminate the liability of a director (i) for breach of the director's duty of
loyalty to the Registrant or its stockholders, (ii) for acts or omissions by the
director not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) for willful or negligent declaration of an unlawful
dividend, stock purchase or redemption or (iv) for transactions from which the
director derived an improper personal benefit.
The Registrant's Certificate of Incorporation also provides generally for
indemnification of all directors and officers of the Registrant to the fullest
extent permitted by the General Corporation Law of the State of Delaware. Such
right to indemnification shall be deemed to be a contract right and includes
generally the right to be paid by the Registrant the expenses incurred in
defending any proceeding covered by this provision in advance of its final
disposition. Individuals who are entitled to indemnification may bring suit to
seek recovery of amounts due under the foregoing provisions and to recover the
expenses of such suit if successful.
The Registrant has entered into indemnification agreements to such effect
with its officers and directors containing provisions which are in some respects
broader than the specific indemnification provisions contained in the General
Corporation Law of Delaware. The indemnification agreements may require the
Company, among other things, to indemnify such officers and directors against
certain liabilities that may arise by reason of their status or service as
directors or officers (other than liabilities arising from willful misconduct of
a culpable nature) and to advance their expenses incurred as a result of any
proceeding against them as to which they could be indemnified.
The Registrant believes that it is the position of the Commission that
insofar as the foregoing provisions may be invoked to disclaim liability for
damages arising under the Securities Act, such provisions are against public
policy as expressed in the Security Act and are therefore unenforceable.
<PAGE>
The Registrant currently maintains an officers' and directors' liability
insurance policy which covers, subject to the exclusions and limitations of the
policy, officers and directors of the Registrant against certain liabilities
which may be incurred by them solely in such capacities.
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 of 1933 (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
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 may be permitted to directors, officers and controlling persons
of Registrant pursuant to the Delaware General Corporation Law, the Certificate
of Incorporation or the Bylaws of Registrant, Indemnification Agreements entered
into between Registrant and its officers and directors, or otherwise, Registrant
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 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
hereunder, 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.
<PAGE>
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 Burnaby, British Columbia, Canada, on this 1st day of
June, 1998.
PMC-SIERRA, INC.
By: /S/ROBERT L. BAILEY
-------------------------------------
Robert L. Bailey, President and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each such person whose
signature appears below constitutes and appoints, jointly and severally, Robert
L. Bailey and John W. Sullivan his attorneys-in-fact, each with the power of
substitution, for him in any and all capacities, to sign any amendments to this
Registration Statement on Form S-8 (including post-effective amendments), and to
file the same, with all 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.
Signature Title Date
--------- ----- ----
/S/ROBERT L. BAILEY President, Chief Executive Officer and June 1, 1998
- ------------------- Director (Principal Executive Officer)
(Robert L. Bailey)
/S/JOHN W. SULLIVAN Vice President of Finance and Chief June 1, 1998
- ------------------- Financial Officer (Principal Financial
(John W. Sullivan) and Accounting Officer)
/S/JAMES V. DILLER Chairman of the Board of Directors June 1, 1998
- ------------------
(James V. Diller)
/s/ALEXANDRE BALKANSKI Director June 1, 1998
- ----------------------
(Alexandre Balkanski)
/S/FRANK J. MARSHALL Director May 30, 1998
- -------------------
(Frank J. Marshall)
/S/L. COLIN BEAUMONT Director May 30, 1998
- -------------------
(L. Colin Beaumont)
<PAGE>
EXHIBIT INDEX
Exhibit
Number Exhibit
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation
23.1 Consent of Deloitte & Touche, Independent Auditors
23.2 Consent of Ernst & Young LLP, Independent Auditors
23.3 Consent of Counsel (Contained in Exhibit 5.1 above)
24.1 Power of Attorney (see page II-3)
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CALIFORNIA 94304-1050
TELEPHONE 650-493-9300 FACSIMILE 650-493-6811
JOHN ARNOT WILSON
RETIRED
June 3, 1998
PMC-Sierra, Inc.
105-8555 Baxter Place
Burnaby, British Columbia V5A 4V7
Canada
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by you
with the Securities and Exchange Commission on or about June 3, 1998 (the
"Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended, of 1,100,000 shares of your Common Stock to
be issued pursuant to the 1994 Incentive Stock Plan ("1994 Plan") and of 250,000
shares of your Common Stock to be issued pursuant to the 1991 Employee Stock
Purchase Plan ("ESPP") (collectively, the "Shares"). As your counsel in
connection with this transaction, 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 1994 Plan and the ESPP.
It is our opinion that, when shares of PMC-Sierra, Inc. are issued and sold
(i) pursuant to options granted in the manner described in the 1994 Plan and
pursuant to the agreements which accompany each grant under the 1994 Plan or
(ii) pursuant to the ESPP, 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
Statement, and further consent to the use of our name wherever appearing in the
Registration Statement and any amendments thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/Wilson Sonsini Goodrich & Rosati
CONSENT OF DELOITTE & TOUCHE, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement on
Form S-8 pertaining to the 1994 Incentive Stock Plan and the 1991 Employee Stock
Purchase Plan of PMC-Sierra, Inc. of our report dated January 22, 1998, with
respect to the consolidated financial statements and schedules of PMC-Sierra,
Inc. included in its Annual Report (Form 10-K) for the year ended December 28,
1997, filed with the Securities and Exchange Commission.
/s/ Deloitte & Touche
Vancouver, British Columbia, Canada
June 3, 1998
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the 1994 Incentive Stock Plan and 1991 Employee Stock
Purchase 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 Sierra Semiconductor Corporation) as of December 31, 1996 and for
each of the two years in the period ended December 31, 1996 included in its
Annual Report (Form 10-K) for the year ended December 28, 1997, filed with the
Securities and Exchange Commission.
/s/ Ernst & Young LLP
June 2, 1998
San Jose, California
