As filed with the Securities and Exchange Commission on April 1, 2002
Registration No. 333-________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
___________
SANDISK CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 77-0191793
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
140 Caspian Court
Sunnyvale, CA 94089
(Address of principal executive offices) (Zip Code)
___________
SANDISK CORPORATION 1995 STOCK OPTION PLAN,
AS AMENDED AND RESTATED JANUARY 2, 2002
SANDISK CORPORATION EMPLOYEE STOCK PURCHASE PLAN,
AS AMENDED AND RESTATED JANUARY 2, 2002
SANDISK CORPORATION INTERNATIONAL EMPLOYEE STOCK PURCHASE PLAN,
AS AMENDED AND RESTATED JANUARY 2, 2002
SANDISK CORPORATION 1995 NON-EMPLOYEE DIRECTORS STOCK OPTION PLAN,
AS AMENDED AND RESTATED JANUARY 2, 2002
(Full title of the Plans)
___________
Dr. Eli Harari
President and Chief Executive Officer
SanDisk Corporation
140 Caspian Court
Sunnyvale, CA 94089
(Name and address of agent for service)
(408) 542-0500
(Telephone number, including area code, of agent for service)
___________
CALCULATION OF REGISTRATION FEE
======================================================================================================================
Proposed Proposed
Amount to be Maximum Offering Maximum Aggregate Amount of
Title of Securities to be Registered Registered(1) Price per Share(2) Offering Price(2) Registration Fee
------------------------------------ ------------- ------------------ ----------------- ----------------
SanDisk Corporation 1995 Stock
Option Plan, as amended and
restated January 2, 2002
Common Stock, $0.001 par value 2,985,040 shares $ 20.38 $ 60,835,115.20 $ 5,596.83
SanDisk Corporation Employee Stock
Purchase Plan, as amended and
restated January 2, 2002
Common Stock, $0.001 par value 244,396 shares $ 20.38 $ 4,980,790.48 $ 458.23
SanDisk Corporation International
Employee Stock Purchase Plan, as
amended and restated January 2, 2002
Common Stock, $0.001 par value 50,000 shares $ 20.38 $ 1,019,000.00 $ 93.75
SanDisk Corporation 1995
Non-Employee Directors Stock Option
Plan, as amended and restated
January 2, 2002
Common Stock, $0.001 par value 136,928 shares $ 20.38 $ 2,790,592.64 $ 256.74
3,416,364 shares Aggregate Registration Fee $ 6,405.55
======================================================================================================================
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the Registrant's 1995 Stock
Option Plan, as amended and restated January 2, 2002, Employee Stock
Purchase Plan, as amended and restated January 2, 2002, International
Employee Stock Purchase Plan, as amended and restated January 2, 2002 and
1995 Non-Employee Directors Stock Option Plan, as amended and restated
January 2, 2002, by reason of any stock dividend, stock split,
recapitalization or other similar transaction effected without the
Registrant's receipt of consideration which results in an increase in the
number of the outstanding shares of Registrant's Common Stock.
(2) Calculated solely for purposes of this offering under Rule 457(h) of the
Securities Act of 1933, as amended, on the basis of the average of the
high and low selling price per share of the Registrant's Common Stock on
March 26, 2002, as reported by the Nasdaq National Market.
PART II
Information Required in the Registration Statement
Item 3. Incorporation of Documents by Reference
SanDisk Corporation (the "Registrant") hereby incorporates by
reference into this Registration Statement the following documents previously
filed with the Securities and Exchange Commission (the "Commission"):
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 2001, filed with the Commission on March 28,
2002;
(b) The Registrant's Registration Statement on Form 8-A and Form 8-A12G
filed with the Commission on September 8, 1995, and April 28, 1997,
respectively, pursuant to Section 12(g) of the Securities Exchange
Act of 1934, as amended (the "1934 Act"), in which there is
described the terms, rights and provisions applicable to the
Registrant's outstanding Common Stock and the Registrant's Series A
Junior Participating Preferred Stock (the "Preferred Stock") and the
associated rights of certain Common Stock holders to purchase the
Preferred Stock.
All reports and definitive proxy or information statements filed
pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act after the date of
this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which de-registers all securities then remaining unsold shall be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the date of filing of such documents. Any statement contained 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 subsequently filed
document which also is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such 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
With respect to securities to be offered to employees of the Registrant,
the Registrant's Israeli subsidiaries, and the Registrant's Israeli branch
office, SanDisk Israel Ltd., which is subject to the securities laws of the
State of Israel, the following legend shall apply:
"THE SECURITIES AUTHORITY OF THE STATE OF ISRAEL HAS EXEMPTED SANDISK
CORPORATION", INC." FROM THE REQUIREMENT UNDER ISRAELI LAW TO OBTAIN A PERMIT
WITH REGARD TO THIS FORM S-8. NOTHING IN THE EXEMPTION GRANTED SHALL BE
CONSTRUED AS AUTHENTICATING THE MATTERS CONTAINED IN THIS FORM S-8 OR AN
APPROVAL OF THEIR RELIABILITY OR ACCURACY OR AN EXPRESSION OF AN OPINION AS TO
THE QUALITY OF THE SECURITIES OFFERED HEREBY."
Item 5. Interests of Named Experts and Counsel
Not Applicable.
II-1
Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law authorizes a court to
award or a corporation's board of directors to grant indemnification to
directors and officers in terms sufficiently broad to permit such
indemnification under certain circumstances for liabilities (including
reimbursement for expenses incurred) arising under the Securities Act of 1933,
as amended (the "1933 Act"). The Registrant's Bylaws provide for permissible
indemnification of officers, employees and other agents to the maximum extent
permitted by the Delaware General Corporation Law. However, the Registrant's
Certificate of Incorporation (the "Certificate of Incorporation") provides that,
pursuant to Delaware law, its directors shall not be liable for monetary damages
for breach of their fiduciary duty as directors to the Registrant and its
stockholders. However, this provision in the Certificate of Incorporation does
not eliminate the fiduciary duty of the directors, and in appropriate
circumstances, equitable remedies such as injunctive or other forms of
non-monetary relief will remain available under Delaware law. In addition, each
director will continue to be subject to liability for breach of fiduciary duty
as a director for (i) any breach of the director's duty of loyalty to the
Registrant or its stockholders, (ii) acts or omissions not in good faith or
involving intentional misconduct or a knowing violation of law, (iii) payment of
dividends or approval of stock repurchases and redemptions that are unlawful
under Delaware law and (iv) any transaction from which the director derived any
improper personal benefit. The provision also does not affect a director's
responsibilities under any other law, such as the federal securities laws or
state or federal environmental laws. The Registrant has entered into
Indemnification Agreements with its officers and directors which provide the
Registrant's officers and directors with further indemnification to the maximum
extent permitted by the Delaware General Corporation Law.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
Exhibit Number Exhibit
-------------- -------
4.1 Instruments Defining the Rights of Stockholders. Reference is
made to Registrant's Registration Statements on Form 8-A and
Form 8-A12G, together with any exhibits thereto, which are
incorporated herein by reference pursuant to Item 3(b) to this
Registration Statement.
5.1 Opinion and consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in
Exhibit 5.
24.1 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
99.1 SanDisk Corporation 1995 Stock Option Plan, as amended and
restated January 2, 2002.
99.2 SanDisk Corporation Employee Stock Purchase Plan, as amended
and restated January 2, 2002.
99.3 SanDisk Corporation International Employee Stock Purchase
Plan, as amended and restated January 2, 2002.
99.4 SanDisk Corporation 1995 Non-Employee Directors Stock Option
Plan, as amended and restated January 2, 2002.
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 1933 Act, (ii) to reflect in the prospectus any facts or
events arising after the effective date of this 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 this
Registration Statement and (iii) to include any material information with
respect to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information in this
Registration Statement; provided, however, that clauses (1)(i) and (1)(ii) shall
not apply if the information required to be included in a post-effective
amendment by those clauses is contained in periodic reports filed by the
Registrant pursuant to Section 13
II-2
or Section 15(d) of the 1934 Act that are incorporated by reference into this
Registration Statement; (2) that for the purpose of determining any liability
under the 1933 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; and (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 Registrant's 1995 Stock Option Plan, as amended
and restated January 2, 2002, Employee Stock Purchase Plan, as amended and
restated January 2, 2002, International Employee Stock Purchase Plan, as amended
and restated January 2, 2002 and 1995 Non-Employee Directors Stock Option Plan,
as amended and restated January 2, 2002.
B. The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the 1933 Act, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act that is
incorporated by reference into this 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 1933
Act may be permitted to directors, officers or controlling persons of the
Registrant pursuant to the indemnification provisions summarized in Item 6 or
otherwise, the Registrant has been advised that, in the opinion of the
Commission, such indemnification is against public policy as expressed in the
1933 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 1933 Act and
will be governed by the final adjudication of such issue.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, 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 Sunnyvale, State of California on this
1st day of April, 2002.
SanDisk Corporation
By: /s/ Michael Gray
-----------------------------------------
Michael Gray
Vice President, Finance
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of SanDisk Corporation,
a Delaware corporation, do hereby constitute and appoint Dr. Eli Harari and
Michael Gray, and each of them, the lawful attorneys-in-fact and agents with
full power and authority to do any and all acts and things and to execute any
and all instruments which said attorneys and agents, and any one of them,
determine may be necessary or advisable or required to enable said corporation
to comply with the Securities Act of 1933, as amended, and any rules or
regulations or requirements of the Securities and Exchange Commission in
connection with this Registration Statement. Without limiting the generality of
the foregoing power and authority, the powers granted include the power and
authority to sign the names of the undersigned officers and directors in the
capacities indicated below to this Registration Statement, to any and all
amendments, both pre-effective and post-effective, and supplements to this
Registration Statement, and to any and all instruments or documents filed as
part of or in conjunction with this Registration Statement or amendments or
supplements thereof, and each of the undersigned hereby ratifies and confirms
that all said attorneys and agents, or any one of them, shall do or cause to be
done by virtue hereof. This Power of Attorney may be signed in several
counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this Power
of Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Dr. Eli Harari President, Chief Executive Officer April 1, 2002
----------------------------- and Director
Dr. Eli Harari (Principal Executive Officer)
/s/ Michael Gray Vice President, Finance April 1, 2002
----------------------------- (Principal Financial and
Michael Gray Accounting Officer)
II-4
/s/ Irwin Federman Chairman of the Board, Director April 1, 2002
-----------------------------
Irwin Federman
Director April 1, 2002
-----------------------------
William V. Campbell
Director April 1, 2002
-----------------------------
Catherine P. Lego
/s/ Dr. James D. Meindl Director April 1, 2002
-----------------------------
Dr. James D. Meindl
/s/ Alan F. Shugart Director April 1, 2002
-----------------------------
Alan F. Shugart
II-5
EXHIBIT INDEX
Exhibit Number Exhibit
-------------- -------
4.1 Instruments Defining the Rights of Stockholders. Reference is
made to Registrant's Registration Statements on Form 8-A and
Form 8-A12G, together with any exhibits thereto, which are
incorporated herein by reference pursuant to Item 3(b) to this
Registration Statement.
5.1 Opinion and consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in
Exhibit 5.
24.1 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
99.1 SanDisk Corporation 1995 Stock Option Plan, as amended and
restated January 2, 2002.
99.2 SanDisk Corporation Employee Stock Purchase Plan, as amended
and restated January 2, 2002.
99.3 SanDisk Corporation International Employee Stock Purchase
Plan, as amended and restated January 2, 2002.
99.4 SanDisk Corporation 1995 Non-Employee Directors Stock Option
Plan, as amended and restated January 2, 2002.