UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
Current Report
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): December 22, 2008
HARMONIC INC.
(Exact name of registrant as specified in its charter)
Commission file number: 000-25826
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| Delaware
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77-0201147 |
| (State or other jurisdiction of
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(I.R.S. Employer |
| incorporation or organization)
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Identification Number) |
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| 549 Baltic Way
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94089 |
| Sunnyvale, California
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(Zip Code) |
| (Address of principal executive offices) |
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Registrant’s telephone number, including area code:
(408) 542-2500
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following provisions (see General Instruction
A.2. below):
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c)) |
TABLE OF CONTENTS
Item 1.01 Entry into a Material Definitive Agreement.
On December 22, 2008, Harmonic Inc. (“Harmonic” or the “Registrant”), Sunrise Acquisition
Ltd., a company organized under the laws of the State of Israel and a wholly owned subsidiary of
Harmonic (“Merger Sub”), and Scopus Video Networks Ltd., a company organized under the laws of the
State of Israel (“Scopus”), entered into an Agreement and Plan of Merger (the “Merger Agreement”),
pursuant to which Harmonic has agreed to acquire all of the outstanding ordinary shares of Scopus
for $5.62 per share in cash, without interest, which represents an enterprise value of
approximately $51 million, net of Scopus’ cash and short-term investments. The Merger Agreement
provides that, upon the terms and subject to the conditions set forth therein, Merger Sub will
merge with and into Scopus (the “Merger”), with Scopus continuing as the surviving corporation and
as a direct or indirect wholly owned subsidiary of Harmonic.
Subject to the terms and conditions of the Merger Agreement, at the effective time and as a
result of the Merger:
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Each ordinary share of Scopus, par value NIS 1.40 per share (the “Scopus
Ordinary Shares”), issued and outstanding immediately prior to the effective time
of the Merger, will be converted into the right to receive a cash amount of $5.62,
without interest (the “Per Share Merger Consideration”); and |
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Each of Scopus’ vested or unvested options to purchase shares of Scopus
Ordinary Shares (each a “Scopus Option”) outstanding at the effective time of the
Merger will be cancelled automatically, and at the effective time of the Merger,
each such vested Scopus Option will be converted into the right to receive a lump
sum cash payment (less any applicable withholding) equal to the product obtained
by multiplying (x) the total number of shares of Scopus Ordinary Shares subject to
such vested Scopus Option immediately prior to the effective time of the Merger by
(y) the excess, if any, of the Per Share Merger Consideration over the exercise
price per share of Scopus Ordinary Shares subject to such vested Scopus Option. |
The Merger Agreement contains representations and warranties of each of Harmonic and Scopus.
The assertions embodied in those representations and warranties were made for purposes of the
Merger Agreement and are subject to qualifications and limitations agreed to by the respective
parties in connection with negotiating the terms of the Merger Agreement. In addition, certain
representations and warranties were made as of a specific date, may be subject to a contractual
standard of materiality different from what might be viewed as material to stockholders, or may
have been used for purposes of allocating risk between the respective parties rather than
establishing matters of fact. Investors should read the Merger Agreement together with the other
information concerning Harmonic and Scopus that each company publicly files in reports and
statements with the Securities and Exchange Commission.
The Merger Agreement contains customary covenants of Harmonic and Scopus, including, among
others, a covenant by Scopus to conduct its business in the ordinary course during the interim
period between the execution of the Merger Agreement and consummation of the Merger and not to
engage in certain kinds of transactions during such period. Scopus has also agreed not to (i)
solicit proposal relating to alternative business combination transactions contemplated by the
Merger Agreement or (ii) subject to certain exceptions, enter into discussions or an agreement
concerning or provide confidential information in connection with any proposals for alternative
business combination transactions.
The closing of the Merger is subject to customary closing conditions, including (i) approval
of Scopus’ shareholders, (ii) receipt of certain regulatory approvals, (iii) the absence of any law
or order prohibiting the closing, (iv) the expiration of certain Israeli statutory waiting periods,
(v) subject to an overall material adverse effect qualification on most representations and
warranties, the accuracy of the representations and warranties of the other party at the time of
execution of the Merger Agreement, and (vi) compliance in all material respects by the other party
with its covenants.
The Merger Agreement contains certain termination rights for both Harmonic and Scopus, and
includes provisions requiring Scopus to pay Harmonic customary termination fees and expense
reimbursements.
The parties intend to consummate the transaction as soon as practicable and currently
anticipate that the closing will occur in the first quarter of calendar year 2009.
The foregoing description of the Merger Agreement does not purport to be complete and is
qualified in its entirety by reference to the full text of the Merger Agreement, filed as Exhibit
2.1 hereto and incorporated herein by reference.
In connection with the parties’ entry into the Merger Agreement, certain of the directors,
executive officers and significant shareholders of Scopus (the “Voting Parties”), have each entered
into voting agreements pursuant to which they have agreed to vote their Scopus Ordinary Shares in
favor of the Merger and to certain restrictions on the disposition of such Scopus Ordinary Shares,
subject to the terms and conditions contained therein. The Voting Parties own approximately 50% of
the outstanding voting shares of Scopus. Pursuant to the terms of such voting agreements, such
voting agreements will terminate concurrently with any termination of the Merger Agreement.
Cautionary Note Regarding Forward-Looking Statements
This Current Report on Form 8-K contains forward-looking statements within the meaning of
Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange
Act of 1934, as amended, which statements include those regarding Harmonic’s future plans for the
Scopus business, the expected closing date of the Merger, the expected benefits and costs of the
Merger, management plans relating to the Merger, the ability to complete the Merger considering the
various closing conditions (including those conditions related to regulatory approvals), the
expectations as to the growth opportunities from the acquisition of the Scopus business and
Harmonic’s expected plans for the integration of Scopus products. The statements contained in this
Current Report on Form 8-K that are not purely historical are forward-looking statements and
include, without limitation, statements regarding our expectations, beliefs, intentions or
strategies regarding the future. In some cases, you can identify forward-looking statements by
terminology such as “may,” “will,” “should,” “expects,” “plans,” “anticipates,” “believes,”
“intends,” “estimates,” “predicts,” “potential,” or “continue” or the negative of these terms or
other comparable terminology. These statements are based on the current expectations or beliefs of
management of Harmonic and are subject to uncertainty and changes in circumstances that, if they
were to never materialize or prove incorrect, could cause actual results to differ materially from
those projected, expressed or implied in the forward-looking statements. Factors that could cause
Harmonic’s actual results or outcomes, levels of activity, performance or achievements, including
the realization of expected financial and other effects of the Merger, to be materially different
from those anticipated in this Current Report on Form 8-K include among others, the inability to
integrate successfully Scopus within Harmonic or to realize synergies from such integration; costs
related to the acquisition of Scopus; the inability to obtain necessary regulatory approval for the
Merger or to obtain them on acceptable terms; the failure to retain key employees; the economic
environment of the industries in which Harmonic and Scopus operate, as well as facts relating to
Scopus that may impact the timing or