As filed with the Securities and Exchange Commission on December 16, 1999
Registration No.333-_______
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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)
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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)
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1994 Incentive Stock Plan
1991 Employee Stock Purchase Plan
(Full title of the plans)
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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 Wolff
Wilson Sonsini Goodrich & Rosati, P.C.
650 Page Mill Road
Palo Alto, California 94304-1050
----------------------------
<TABLE>
CALCULATION OF REGISTRATION FEE
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<CAPTION>
- ------------------------------------- ----------------------- ------------------- --------------------------- ----------------------
Proposed Proposed
Title of Maximum Maximum Amount
Securities Amount Offering Aggregate of
to be to be Price Per Offering Registration
Registered (1) Registered Share Price Fee
- ------------------------------------- ----------------------- ------------------- --------------------------- ----------------------
<S> <C> <C> <C> <C>
Common Stock, $0.001 par value 2,514,028(1) $106.125(3) $241,356,362.46(3) $63,718.08
- ------------------------------------ ----------------------- ------------------- --------------------------- -----------------------
Common Stock, $0.001 par value 628,506(2) $105.9375(3) $66,582,354.37(3) $17,577.74
- ------------------------------------ ----------------------- ------------------- --------------------------- -----------------------
<FN>
(1) Shares to be registered under the 1994 Incentive Stock Plan ("1994 Plan").
(2) Shares to be registered under the 1991 Employee Stock Purchase Plan ("1991 Plan").
(3) Estimated in part pursuant to Rule 457(h) and Rule 457(c) under the Securities Act. With respect to 2,514,028 shares
which are subject to outstanding options to purchase Common Stock under the 1994 Plan, the Proposed Maximum Offering
Price Per Share was estimated pursuant to Rule 457(h) under which Rule the per share price of options to purchase stock
under an employee stock option plan may be estimated by reference to the exercise price of such options. The weighted
average exercise price of the 646,507 shares subject to outstanding options under the 1994 Plan to be registered is
$67.31. With respect to 1,867,521 shares of Common Stock available for future grant under the 1994 Plan and 628,506
shares of Common Stock available for issuance under the 1991 Plan, the Proposed Maximum Offering Price Per Share was
estimated pursuant to Rule 457(c) whereby the per share price was determined by reference to the average between the high
and low price reported in the Nasdaq National Market on December 15, 1999, which average was $105.9375. The numbers
referenced above in the table entitled "Proposed Maximum Offering Price Per Share" represents a weighted average of the
foregoing estimates calculated in accordance with Rules 457(h) and 457(c).
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</FN>
</TABLE>
<PAGE>
STATEMENT UNDER GENERAL INSTRUCTION
The contents of the Registration's Form S-8 Registration Statements
(File No. 33-80992, 33-94790, 333-13359, 333-34671 and 333-55991) with respect
to the 1994 Incentive Stock Plan, and Form S-8 Registration Statements (File No.
33-41027, 33-80988, 333-13387 and 333-55991) with respect to the 1991 Employee
Stock Purchase Plan, are incorporated by reference into this Registration
Statement, except for Part II, Items 3, 6 and 9.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents and information are incorporated by reference
as filed with the Securities and Exchange Commission:
(a) PMC-Sierra, Inc.'s ("PMC's") Form 10-K Annual Report for the
fiscal year ended December 27, 1998, pursuant to Section 13 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") filed with the Securities
and Exchange Commission (the "Commission"). (File No. 0-19084).
(b) PMC's Form 10-Q Quarterly Reports for the quarters ended June
27, 1999, March 28, 1999 and September 26, 1999, filed pursuant to Section 13 of
the Exchange Act. (File No. 0-19804).
(c) PMC's Form 8-Ks filed pursuant to Section 13 of the Exchange Act
dated August 25, 1999, August 26, 1999 and September 3, 1999. (File No.
0-19804).
(d) All other reports filed pursuant to Section 13(a) or 15(d) of
the Exchange Act since the end of the fiscal year covered by the registrant
document referred to in (a) above.
(e) The description of the Company's Common Stock to the offered
hereby is contained in the Company's Quarterly Report Form 10Q for the fiscal
quarter ended June 27, 1999 filed with the Commission pursuant to Section 13 of
the Exchange Act, including any amendment or report filed for the purpose of
updating such description.
All documents subsequently filed by PMC pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange, prior to the filing of a
post-effective amendment which indicates 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.
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
PMC to indemnify any such person.
PMC's Certificate of Incorporation eliminates in certain
circumstances the liability of directors of PMC 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 PMC
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.
<PAGE>
PMC's Certificate of Incorporation also provides generally for
indemnification of all directors and officers of PMC 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 PMC 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.
PMC 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 PMC,
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.
PMC 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.
PMC currently maintains an officers' and directors' liability
insurance policy which covers, subject to the exclusions and limitations of the
policy, officers and directors of PMC against certain liabilities which may be
incurred by them solely in such capacities.
Item 9. Undertakings.
(a) PMC 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, 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) PMC hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of PMC'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 PMC pursuant to the Delaware General Corporation Law, the Certificate of
Incorporation or the Bylaws of PMC, Indemnification Agreements entered into
between PMC and its officers and directors, or otherwise, PMC has been advised
that in the opinion of the 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 PMC 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, PMC 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, PMC 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 14th day of December, 1999.
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 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 Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ROBERT L. BAILEY President, Chief Executive Officer and December 14, 1999
- ---------------------- Director (principal executive officer)
(Robert L. Bailey)
/s/JOHN W. SULLIVAN Vice President of Finance and Chief Financial December 14, 1999
- ---------------------- Officer (principal financial and accounting
(John W. Sullivan) officer)
/s/JAMES V. DILLER Chairman of the Board of Directors December 14, 1999
- ----------------------
(James V. Diller)
/s/ALEXANDRE BALKANSKI Director December 14, 1999
- ----------------------
(Alexandre Balkanski)
/s/FRANK J. MARSHALL Director December 14, 1999
- ----------------------
(Frank J. Marshall)
/s/L. COLIN BEAUMONT Director December 14, 1999
- ----------------------
(L. Colin Beaumont)
</TABLE>
<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-4)
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CALIFORNIA 94304-1050
TELEPHONE 650-493-9300 FACSIMILE 650-493-6811
December 14, 1999
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
PMC-Sierra, Inc. ("PMC") with the Securities and Exchange Commission on or about
December 15, 1999 (the "Registration Statement") in connection with the
registration under the Securities Act of 1933, as amended, of 2,514,028 shares
of PMC Common Stock to be issued pursuant to the 1994 Incentive Stock Plan
("1994 Plan") and 628,506 shares of PMC Common Stock to the issued pursuant to
the 1991 Employee Stock Purchase Plan ("ESPP") (collectively, the "Shares"). As
PMC's counsel in connection with this transaction, we have examined the
proceedings taken and are familiar with the proceedings proposed to be taken by
PMC 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 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 LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated January 21, 1999, with respect to the
consolidated financial statements and schedule of PMC-Sierra, Inc., included in
the Annual Report (Form 10-K) for the year ended December 27, 1998, filed with
the Securities and Exchange Commission.
/s/DELOITTE & TOUCHE LLP
DELOITTE & TOUCHE LLP
Vancouver, British Columbia, Canada
December 14, 1999
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration
Statement (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,
1997, with respect to the consolidated financial statements and schedule of
PMC-Sierra, Inc., (formerly Sierra Semiconductor Corporation) included in its
Annual Report (Form 10-K) for the year ended December 27, 1998, filed with the
Securities and Exchange Commission.
/s/ERNST & YOUNG LLP
San Jose, California
December 14, 1999
