As filed with the Securities and Exchange Commission on October 8, 1998
Registration Statement No. 333-________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
Registration Statement
Under The Securities Act of 1933
LEVEL ONE COMMUNICATIONS, INCORPORATED
(Exact name of Registrant as specified in its charter)
CALIFORNIA 33-0128224
(State of other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
9750 GOETHE ROAD
SACRAMENTO, CALIFORNIA 95827
(Address of Principal Executive Offices)
ACCLAIM COMMUNICATIONS, INC.
1996 STOCK INCENTIVE PLAN
(Full Title of Plans)
ROBERT S. PEPPER, PH.D.
PRESIDENT AND CHIEF EXECUTIVE OFFICER
LEVEL ONE COMMUNICATIONS, INCORPORATED
9750 GOETHE ROAD
SACRAMENTO, CALIFORNIA 95827
(916) 855-5000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copy to:
GILLES S. ATTIA, ESQ.
GRAHAM & JAMES LLP
400 CAPITOL MALL, 24TH FLOOR
SACRAMENTO, CALIFORNIA 95814-4411
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------------------------------------------------------
TITLE OF SECURITIES AMOUNT TO BE PROPOSED PROPOSED AMOUNT OF
TO BE REGISTERED REGISTERED MAXIMUM MAXIMUM REGISTRATION
OFFERING PRICE AGGREGATE FEE
PER SHARE(2) OFFERING PRICE (2)
- --------------------------------------------------------------------------------------------------------------------------------
Acclaim Communications, Inc. 775,534 $1.06 $822,066 $242.51
1996 Stock Incentive Plan (1) shares
Common Stock, no par value
- --------------------------------------------------------------------------------------------------------------------------------
(1) Pursuant to an Agreement and Plan of Reorganization dated as of June 25,
1998 (the "REORGANIZATION AGREEMENT"), by and between the Registrant, Aardvark
Acquisition Corp. and Acclaim Communications, Inc. ("ACCLAIM"), the Registrant
assumed all of the outstanding options to purchase common stock of Acclaim under
the Acclaim Plan (the "ASSUMED OPTIONS"), with appropriate adjustments to the
number of shares and exercise price of each Assumed Option to reflect the ratio
at which the common stock of Acclaim was converted into common stock of the
Registrant under the Reorganization Agreement.
(2) Estimated solely for the purpose of computing the registration fee required
by Section 6(b) of the Securities Act and computed pursuant to Rule 457(h)(1)
under the Securities Act based upon the weighted average of the per share
exercise price of $1.06 for the Assumed Options.
PART I
INFORMATION REQUIRED IN THE PROSPECTUS
ITEM 1. PLAN INFORMATION.
-----------------
The Registrant will send or give the documents containing the information
specified in this Item 1 to employees, officers, directors or others as
specified by Rule 428(b)(1). In accordance with the rules and regulations of
the Securities and Exchange Commission (the "COMMISSION") and the instructions
to Form S-8, the Registrant is not filing such documents with the Commission
either as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424.
ITEM 2. REGISTRATION INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
--------------------------------------------------------------
The Registrant will send or give the documents containing the information
specified in this Item 2 to employees, officers, directors or others as
specified by Rule 428(b)(1). In accordance with the rules and regulations of
the Commission and the instructions to Form S-8, the Registrant is not filing
such documents with the Commission either as part of this Registration Statement
or as prospectuses or prospectus supplements pursuant to Rule 424.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
----------------------------------------
The following documents and information heretofore filed with the
Commission by the Registrant are incorporated herein by reference:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 28, 1997 filed pursuant to the Securities Exchange Act of 1934, as
amended (the "EXCHANGE ACT");
(b) The Registrant's Quarterly Reports on Form 10-Q for the fiscal
quarters ended March 29, 1998 and June 28, 1998 filed pursuant to the
Exchange Act;
(c) The Registrant's current report on Form 8-K, Form 8-K/A (Amend.
No.1) and Form 8-K/A (Amend. No. 2) filed with the Commission on July 17,
1998, September 21, 1998 and October 7, 1998; and
(d) The description of the Registrant's Common Stock contained in Items 1
and 2 of the Registrant's Registration Statement on Form 8-A filed pursuant
to Section 12 of the Exchange Act, filed with the Commission on July 9,
1993.
All documents subsequently filed with the Commission by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all securities
offered hereunder have been sold or which deregisters all securities then
remaining unsold under this Registration Statement, shall be deemed to be
incorporated by reference in this Registration Statement and to be part hereof
from the date of filing of such documents. Any statement contained herein or 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 other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such earlier statement. Any 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.
---------------------------------------
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
------------------------------------------
The Registrant has provisions in its Amended and Restated Articles of
Incorporation which eliminate the liability of the Registrant's directors to the
Registrant and its shareholders for monetary damages to the fullest extent
permissible under California law and provisions which authorize the Registrant
to indemnify its directors and agents by bylaws, agreements or otherwise, to the
fullest extent permitted by law. Such limitation of liability does not affect
the availability of equitable remedies such as injunctive relief or rescission.
The Registrant's Bylaws, as amended, provide that the Registrant shall indemnify
its directors and officers to the fullest extent permitted by California law,
including circumstances in which indemnification is otherwise discretionary
under California law.
In addition, the Registrant has entered into agreements with its directors
and executive officers that will require the Registrant, among other things, to
indemnify them against certain liabilities that may arise by reason of their
status of service as directors or executive officers to the fullest extent not
prohibited by law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
------------------------------------
Not applicable.
ITEM 8. INDEX TO EXHIBITS.
------------------
Exhibit Description of Document
Number
4.1 Amended and Restated Articles of Incorporation of Registrant (which
is incorporated by reference to Exhibit 3.1 to the Registrant's
Annual Report on Form 10-K for the fiscal year ended December 28,
1997).
Exhibit Description of Document
Number
4.2 Bylaws of Registrant (which is incorporated by reference to
Registration Statement No. 33-65810 filed with the Commission on
August 19, 1994).
4.3 Acclaim Communications, Inc. 1996 Stock Incentive Plan and related
agreements.
5.1 Opinion of Counsel as to legality of securities being registered.
23.1 Consent of Arthur Andersen LLP, Independent Auditors.
23.2 Consent of Deloitte and Touche LLP, Independent Auditors.
23.3 Consent of Counsel (which is contained in Exhibit 5.1).
24.1 Powers of Attorney (which are included as part of the signature
page of this registration statement).
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 of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the 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 the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "CALCULATION OF REGISTRATION FEE"
table in the effective registration statement;
(iii) 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.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement 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 Registrant pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this registration statement.
(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 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 a 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 of 1933, each filing of the
Registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) 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 of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the 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 of 1933 and will be governed by the final adjudication of such issue.
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 Sacramento, State of California, on this 5th day of
October 1998.
LEVEL ONE COMMUNICATIONS,
INCORPORATED
BY: /s/ Robert S. Pepper
------------------------------------------
Robert S. Pepper,President and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Robert S. Pepper and John Kehoe jointly
and severally, as such person's attorneys-in-fact, each with the power of
substitution, for him or her in any and all capacities, to sign any amendments
to this Registration Statement 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
attorney-in-fact, or his or her substitute or substitutes, may lawfully 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 below by the following persons on the
5th day of October, 1998 in the capacities indicated.
SIGNATURES Title
__________ _____
/s/ Robert S. Pepper President, Chief Executive Officer and
------------------------
Robert S. Pepper, Ph.D. Chairman of the Board
/s/ John Kehoe Senior Vice President and Chief Financial
------------------------
John Kehoe Officer
/s/ Thomas J. Connors Director
------------------------
Thomas J. Connors
/s/ Paul Gray Director
------------------------
Paul Gray, Ph.D.
/s/ Martin Jurick Director
------------------------
Martin Jurick
/s/ Henry Kressel Director
------------------------
Henry Kressel
/s/ Joseph P. Landy Director
------------------------
Joseph P. Landy
/s/ Kenneth A. Pickar Director
------------------------
Kenneth A. Pickar
/s/ Martin Jurick Director
________________________
Martin Jurick
/s/ Henry Kressel Director
________________________
Henry Kressel
/s/ Joseph P. Landy Director
________________________
Joseph P. Landy
/s/ Kenneth A. Pickar Director
________________________
Kenneth A. Pickar
Index to Exhibits
-----------------
Exhibit Description of Document
Number
4.1 Amended and Restated Articles of Incorporation of Registrant
(which is incorporated by reference to Exhibit 3.1 to the
Registrant's Annual Report on Form 10-K for the fiscal year
ended December 28, 1997).
4.2 Bylaws of Registrant (which is incorporated by reference to
Registration Statement No. 33-65810 filed with the Commission
on August 19, 1994).
4.3 Acclaim Communications, Inc. 1996 Stock Incentive Plan and
related agreements.
5.1 Opinion of Counsel as to legality of securities being
registered.
23.1 Consent of Arthur Andersen LLP, Independent Auditors.
23.2 Consent of Deloitte and Touche LLP, Independent Auditors.
23.3 Consent of Counsel (which is contained in Exhibit 5.1).
24.1 Powers of Attorney (which are included as part of the
signature page of this registration statement).
Index to Exhibits
-----------------
Exhibit Description of Document
Number
4.1 Amended and Restated Articles of Incorporation of Registrant
(which is incorporated by reference to Exhibit 3.1 to the
Registrant's Annual Report on Form 10-K for the fiscal year
ended December 28, 1997).
4.2 Bylaws of Registrant (which is incorporated by reference to
Registration Statement No. 33-65810 filed with the Commission
on August 19, 1994).
4.3 Acclaim Communications, Inc. 1996 Stock Incentive Plan and
related agreements.
5.1 Opinion of Counsel as to legality of securities being
registered.
23.1 Consent of Arthur Andersen LLP, Independent Auditors.
23.2 Consent of Counsel.
24.1 Powers of Attorney.