<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 15, 1998
REGISTRATION NO. 333-51041
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------
AMENDMENT NO. 2
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------
EVANS & SUTHERLAND COMPUTER CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
--------------
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<S> <C> <C>
UTAH 3699 87-0278175
(STATE OF INCORPORATION) (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
</TABLE>
600 KOMAS DRIVE
SALT LAKE CITY, UTAH 84108
(801) 588-1000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
--------------
JOHN T. LEMLEY
EVANS & SUTHERLAND COMPUTER CORPORATION
600 KOMAS DRIVE
SALT LAKE CITY, UTAH 84108
(801) 588-1000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPIES TO:
<TABLE>
<S> <C>
DAVID F. EVANS MICHAEL W. HALL
WILLIAM C. GIBBS STEVEN J. TONSFELDT
DAVID K. ARMSTRONG EDMUND S. RUFFIN, JR.
JOHN G. WESTON STEPHEN B. THAU
SNELL & WILMER L.L.P. VENTURE LAW GROUP
111 EAST BROADWAY, SUITE 900 A PROFESSIONAL CORPORATION
SALT LAKE CITY, UTAH 84111 2800 SAND HILL ROAD
(801) 237-1900 MENLO PARK, CALIFORNIA 94025
(650) 854-4488
</TABLE>
--------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As promptly as practicable after this Registration Statement becomes
effective and the effective time of the proposed merger of AccelGraphics, Inc.
with and into E&S Merger Corp., a wholly owned subsidiary of the Registrant as
described herein.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance
with General Instruction G, check the following box. [_]
CALCULATION OF REGISTRATION FEE
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PROPOSED
MAXIMUM
TITLE OF EACH CLASS AGGREGATE AMOUNT OF
OF SECURITIES OFFERING REGISTRATION
TO BE REGISTERED PRICE(1) FEE(2)
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<S> <C> <C>
Common Stock $0.20.................................... $23,335,144 $6,883.87
</TABLE>
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(1) Estimated solely for the purpose of calculating the registration fee
required by Section 6(b) of the Securities Act of 1933, as amended, and
computed pursuant to Rule 457(f)(1) thereunder on the basis of the market
value of the AccelGraphics, Inc. Common Stock to be exchanged in the
Agreement and Plan of Merger, dated April 22, 1998 (the "Merger"), which
was computed, in accordance with Rule 457(c), as 52% of the product of $
5.31 (the average of the high and low prices for AccelGraphics, Inc.
Common Stock on April 23, 1998 as reported by the Nasdaq National Market)
and 8,451,088, the aggregate number of shares of AccelGraphics, Inc.
Common Stock outstanding on March 31, 1998.
(2) Includes $6,883.87 previously paid by the Registrant in connection with
the filing of the Registration Statement on April 27, 1998.
- -------------------------------------------------------------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
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<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
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<S> <C>
AVAILABLE INFORMATION.... 1
INCORPORATION BY
REFERENCE............... 2
SUMMARY.................. 3
THE COMPANIES........... 3
WHAT YOU WILL RECEIVE IN
THE MERGER............. 4
THE ANNUAL MEETING...... 4
FAIRNESS OPINION........ 5
RISK FACTORS............ 5
REASONS FOR THE MERGER;
RECOMMENDATION OF THE
AGI BOARD.............. 5
INTERESTS OF CERTAIN
PERSONS IN THE MERGER.. 6
ELECTION PROCEDURES..... 7
TREATMENT OF STOCK
OPTIONS IN THE MERGER.. 7
REGULATORY APPROVALS.... 7
CONDITIONS TO THE
MERGER................. 8
TERMINATION OF THE
MERGER AGREEMENT....... 8
TERMINATION FEE......... 8
NO SOLICITATION OF
COMPETING TRANSACTIONS. 9
APPRAISAL RIGHTS........ 9
MATERIAL FEDERAL INCOME
TAX CONSEQUENCES....... 9
ANTICIPATED ACCOUNTING
TREATMENT.............. 9
FORWARD-LOOKING
STATEMENTS MAY PROVE
INACCURATE............. 9
SELECTED HISTORICAL
CONSOLIDATED FINANCIAL
DATA................... 10
FORWARD-LOOKING
STATEMENTS MAY PROVE
INACCURATE.............. 13
RISK FACTORS............. 13
RISK FACTORS REGARDING
THE MERGER............. 13
RISK FACTORS REGARDING
E&S.................... 14
RISK FACTORS REGARDING
AGI.................... 17
THE ANNUAL MEETING....... 24
GENERAL................. 24
MATTERS TO BE CONSIDERED
AT THE ANNUAL MEETING.. 24
VOTING AND PROXIES...... 24
SOLICITATION OF PROXIES. 25
COMPARATIVE PER SHARE
DATA.................... 26
MARKET PRICE DATA........ 27
THE MERGER............... 28
BACKGROUND OF THE
MERGER................. 28
AGI REASONS FOR THE
MERGER; RECOMMENDATION
OF THE AGI BOARD OF
DIRECTORS.............. 30
E&S REASONS FOR THE
MERGER................. 31
INTERESTS OF CERTAIN
PERSONS IN THE MERGER;
CONFLICTS OF INTEREST.. 32
FAIRNESS OPINION OF
COWEN & COMPANY........ 33
STRUCTURE OF THE MERGER;
EFFECTIVE TIME......... 37
MERGER CONSIDERATION.... 37
DESCRIPTION OF ELECTION
PROCEDURES............. 38
PROCEDURES FOR EXCHANGE
OF AGI COMMON STOCK
CERTIFICATES........... 40
ANTICIPATED ACCOUNTING
TREATMENT.............. 41
PLANS FOR AGI AFTER THE
MERGER................. 41
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
PAGE
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<S> <C>
CERTAIN OTHER EFFECTS OF THE MERGER...................................... 41
SOURCE AND AMOUNT OF FUNDS AND OTHER CONSIDERATION....................... 42
MATERIAL FEDERAL INCOME TAX CONSEQUENCES................................. 42
REGULATORY MATTERS....................................................... 44
BLUE SKY LAWS............................................................ 45
APPRAISAL RIGHTS......................................................... 45
THE MERGER AGREEMENT...................................................... 46
CERTAIN REPRESENTATIONS AND WARRANTIES................................... 46
CONDUCT OF BUSINESS PENDING THE MERGER................................... 46
NO SOLICITATION OF COMPETING TRANSACTIONS................................ 47
INDEMNIFICATION AND INSURANCE............................................ 48
STOCK EXCHANGE LISTING................................................... 48
CONDITIONS TO CONSUMMATION OF THE MERGER................................. 48
TERMINATION; EFFECTS OF TERMINATION...................................... 48
EXPENSES................................................................. 50
AMENDMENT; WAIVER........................................................ 51
VOTING AGREEMENT AND IRREVOCABLE PROXY.................................... 51
PRO FORMA CONSOLIDATED FINANCIAL STATEMENTS............................... 52
PRO FORMA CONSOLIDATED STATEMENT OF OPERATIONS............................ 53
PRO FORMA CONSOLIDATED BALANCE SHEET...................................... 55
NOTES TO PRO FORMA CONSOLIDATED FINANCIAL STATEMENTS...................... 56
DESCRIPTION OF E&S........................................................ 57
DESCRIPTION OF E&S CAPITAL STOCK.......................................... 57
DESCRIPTION OF AGI........................................................ 58
BUSINESS OVERVIEW........................................................ 58
SELECTED HISTORICAL CONSOLIDATED FINANCIAL DATA.......................... 59
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS........................................................... 60
PRODUCTS................................................................. 66
TECHNOLOGY AND CORE COMPETENCIES......................................... 68
STRATEGIC RELATIONSHIPS.................................................. 68
3D PROFESSIONAL MARKETS AND APPLICATIONS................................. 69
CUSTOMERS, SALES AND MARKETING........................................... 69
RESEARCH AND DEVELOPMENT................................................. 70
MANUFACTURING............................................................ 71
PROPRIETARY RIGHTS....................................................... 72
COMPETITION.............................................................. 72
EMPLOYEES................................................................ 73
DESCRIPTION OF PROPERTIES................................................ 73
MANAGEMENT............................................................... 73
EXECUTIVE COMPENSATION................................................... 75
EMPLOYEE BENEFIT PLANS................................................... 76
COMPENSATION COMMITTEE REPORT............................................ 77
PERFORMANCE GRAPH........................................................ 79
SECURITY OWNERSHIP OF PRINCIPAL STOCKHOLDERS AND MANAGEMENT.............. 80
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS........................... 82
LEGAL PROCEEDINGS........................................................ 82
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
PAGE
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COMPARISON OF RIGHTS OF AGI STOCKHOLDERS AND E&S STOCKHOLDERS............. 83
AUTHORIZED CAPITAL STOCK................................................. 83
STOCKHOLDER VOTING RIGHTS................................................ 83
SPECIAL MEETINGS OF STOCKHOLDERS......................................... 84
BUSINESS COMBINATIONS.................................................... 84
BUSINESS CONDUCTED AT STOCKHOLDERS' MEETINGS............................. 86
SHAREHOLDERS CONSENT WITHOUT A MEETING................................... 86
DISSENTERS' RIGHTS....................................................... 86
QUORUM OF DIRECTORS...................................................... 87
DERIVATIVE SUITS......................................................... 87
AMENDMENTS TO THE CHARTER................................................ 88
NOTICE, ADJOURNMENT AND PLACE OF STOCKHOLDERS' MEETINGS.................. 88
DIRECTORS................................................................ 89
ELECTION AND REMOVAL OF DIRECTORS........................................ 89
INSPECTION OF BOOKS AND RECORDS.......................................... 89
TRANSACTIONS WITH OFFICERS AND DIRECTORS................................. 90
LIMITATION ON LIABILITY OF DIRECTORS; INDEMNIFICATION OF OFFICERS AND
DIRECTORS............................................................... 90
ELECTION OF CLASS I DIRECTORS............................................. 92
LEGAL MATTERS............................................................. 93
EXPERTS................................................................... 93
ACCELGRAPHICS, INC. CONSOLIDATED FINANCIAL STATEMENTS..................... F-1
</TABLE>
<TABLE>
<C> <S>
ANNEX I AGREEMENT AND PLAN OF MERGER
ANNEX II OPINION OF COWEN & COMPANY
ANNEX III VOTING AGREEMENT AND IRREVOCABLE PROXY
</TABLE>
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 16-10a-901, et. seq., of the Utah Revised Business Corporation Act
authorizes a court to award, or a corporation's board of directors to grant,
indemnity 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.
The E&S Bylaws require E&S to indemnify its directors and officers, including
circumstances in which indemnification is otherwise discretionary under Utah
law. E&S has entered into indemnification agreements with its directors
containing provisions which are in some respects broader than the specific
indemnification provisions contained in Utah law. The indemnification
agreements may require E&S, among other things, to indemnify its directors and
officers 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), to advance their expenses incurred
as a result of any proceeding against them as to which they could be
indemnified, and to obtain director and officer insurance, if available on
reasonable terms. E&S's Articles of Incorporation provide for indemnification
of its directors and officers to the maximum extent permitted by Utah law, and
E&S's Bylaws provide for indemnification of its directors, officers, employees
and other agents as permitted by Utah law.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) The following is a list of Exhibits included as part of this
Registration Statement. The Registrant agrees to furnish supplementally a copy
of any omitted exhibit or schedule to the Commission upon request.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
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<C> <S>
2.1** Agreement and Plan of Merger, dated April 22, 1998, among the
Registrant, E&S Merger Sub, and AccelGraphics, Inc. (included as
Annex I to the Proxy Statement / Prospectus).
3.1 Articles of Incorporation, as amended, filed as Exhibit 3.1 to the
Registrant's Annual Report on Form 10-K for the fiscal year ended
December 25, 1987, and incorporated herein by this reference.
3.1.1 Amendments to Articles of Incorporation filed as Exhibit 3.1.1 to
the Registrant's Annual Report on Form 10-K for the fiscal year
ended December 30, 1988, and incorporated herein by this
reference.
3.2 By-laws, as amended, filed as Exhibit 3.2 to the Registrant's
Annual Report on Form 10-K for the fiscal year ended December 25,
1987, and incorporated herein by this reference.
5.1** Form of Opinion of Snell & Wilmer L.L.P. as to the legality of the
securities being registered.
8.1* Form of Opinion of Snell & Wilmer L.L.P. as to the United States
federal income tax consequences of the Merger.
8.2** Form of Opinion of Venture Law Group, a Professional Corporation,
as to the United States federal income tax consequences of the
Merger.
10.1 1985 Stock Option Plan, filed as Exhibit 1 to the Registrant's
Post-effective Amendment No. 1 to Registration Statement on Form
S-8, SEC File No. 2-76027, and incorporated herein by this
reference.
10.2 1989 Stock Option Plan for Non-employee Directors, filed as
Exhibit 10.5 to the Registrant's Annual Report on Form 10-K for
the fiscal year ended December 29, 1989, and incorporated herein
by this reference.
</TABLE>
II-1
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
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<C> <S>
10.3 The Registrant's 1991 Employee Stock Purchase Plan, filed as
Exhibit 4.1 to the Registrant's Registration Statement on Form S-
8, SEC File No. 33-39632, and incorporated herein by this
reference.
10.4 Employment Agreement dated November 29, 1994, between the
Registrant and Mr. James R. Oyler, filed as Exhibit 10.10 to the
Registrant's Annual Report on Form 10-K for the fiscal year ended
December 26, 1994, and incorporated herein by this reference.
10.5 The Registrant's 1995 Long-Term Incentive Equity Plan, filed as
Exhibit 10.11 to the Registrant's Annual Report on Form 10-K for
the fiscal year ended December 29, 1995, and incorporated herein
by this reference.
10.6 Asset Purchase Agreement dated March 1, 1995, between the
Registrant and Parametric Technology Corporation as to the
Registrant's divestiture of its Design Software group (CDRS),
filed as Exhibit 10.12 to the Registrant's Annual Report on Form
10-K for the fiscal year ended December 29, 1995, and incorporated
herein by this reference.
10.7 The Registrant's Executive Savings Plan, filed as Exhibit 10.14 to
the Registrant's Annual Report on Form 10-K for the fiscal year
ended December 29, 1995, and incorporated herein by this
reference.
10.8 The Registrant's Supplemental Executive Retirement Plan (SERP),
filed as Exhibit 10.15 to the Registrant's Annual Report on Form
10-K for the fiscal year ended December 29, 1995, and incorporated
herein by this reference.
10.9+ Form of Employment Agreement to be entered into between the
Registrant and Jeffrey, W. Dunn.
10.10+ Form of Employment Agreement to be entered into between the
Registrant and Nancy E. Bush.
23.1** Consent of KPMG Peat Marwick LLP.
23.2** Consent of Price Waterhouse LLP.
23.3** Consent of Snell & Wilmer L.L.P. (included in Exhibit 5.1 to this
Registration Statement)
23.4** Consent of Venture Law Group, a Professional Corporation (included
in Exhibit 8.2 to this Registration Statement).
23.5** Consent of Cowen & Company.
24.1+ Powers of Attorney for Messrs. Stewart Carrell, Gerald Casilli,
Henry N. Christiansen, Peter O. Crisp, John T. Lemley, Mark C.
McBride, James R. Oyler, Ivan E. Sutherland, and John E. Warnock.
27.1+ Financial Data Schedule.
99.1** Voting Agreement, dated April 22, 1998, between the Registrant and
certain stockholders of AccelGraphics, Inc. (included as Annex III
to the Proxy Statement/Prospectus).
99.2+ Form of Affiliate Letter Agreement between the Registrant and
certain officers and directors of AGI.
99.3** Form of proxy card to be mailed to stockholders of AccelGraphics,
Inc.
99.4** Form of Chairman and Chief Executive Officer's Letter to the
stockholders of AccelGraphics, Inc. (included in the Proxy
Statement/Prospectus).
99.5** Form of Notice of Annual Meeting of Stockholders to the
stockholders of AccelGraphics, Inc. (included in the Proxy
Statement/Prospectus).
99.6** Form of Election.
99.7** Opinion of Cowen & Company (included as Annex II to the Proxy
Statement/Prospectus).
</TABLE>
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*Exhibits filed herewith.
** Exhibits previously filed with the Registrant's Amendment No. 1 to the
Registration Statement on Form S-4/A, dated May 15, 1998.
+Exhibits previously filed with the Registrant's Registration Statement on
Form S-4, dated April 27, 1998.
II-2
<PAGE>
SIGNATURES
In accordance with 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-4 and has authorized this
registration statement to be signed on its behalf by the undersigned, in the
City of Salt Lake City, Utah, on this 15th day of May, 1998.
Evans & Sutherland Computer
Corporation
/s/ Mark C. McBride
_____________________________________
Mark C. McBride
Vice President, Corporate
Controller and Corporate
Secretary
In accordance with 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 stated:
SIGNATURE TITLE DATE
- --------- ----- ----
/s/ Stewart Carrell* Chairman of the
_____________________________________ Board of Directors May 15, 1998
Stewart Carrell
/s/ James R. Oyler* Director and
_____________________________________ President (Chief May 15, 1998
James R. Oyler Executive Officer)
/s/ John T. Lemley* Vice President and
_____________________________________ Chief Financial May 15, 1998
John T. Lemley Officer (Principal
Financial Officer)
/s/ Mark C. McBride Vice President,
_____________________________________ Corporate May 15, 1998
Mark C. McBride Controller and
Corporate Secretary
(Principal
Accounting Officer)
/s/ Gerald S. Casilli* Director
_____________________________________ May 15, 1998
Gerald S. Casilli
/s/ Peter O. Crisp* Director
_____________________________________ May 15, 1998
Peter O. Crisp
/s/ Henry N. Christiansen* Director
_____________________________________ May 15, 1998
Henry N. Christiansen
II-5
<PAGE>
SIGNATURE TITLE DATE
- --------- ----- ----
/s/ Ivan E. Sutherland* Director
_____________________________________ May 15, 1998
Ivan E. Sutherland
/s/ John E. Warnock* Director
_____________________________________ May 15, 1998
John E. Warnock
/s/ Mark C. McBride
*By: _______________________________ May 15, 1998
Mark C. McBride
Attorney-in-fact
II-6
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
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2.1** Agreement and Plan of Merger, dated April 22, 1998, among the
Registrant, E&S Merger Sub, and AccelGraphics, Inc. (included as Annex
I to the Proxy Statement / Prospectus).
3.1 Articles of Incorporation, as amended, filed as Exhibit 3.1 to the
Registrant's Annual Report on Form 10-K for the fiscal year ended
December 25, 1987, and incorporated herein by this reference.
3.1.1 Amendments to Articles of Incorporation filed as Exhibit 3.1.1 to the
Registrant's Annual Report on Form 10-K for the fiscal year ended
December 30, 1988, and incorporated herein by this reference.
3.2 By-laws, as amended, filed as Exhibit 3.2 to the Registrant's Annual
Report on Form 10-K for the fiscal year ended December 25, 1987, and
incorporated herein by this reference.
5.1** Form of Opinion of Snell & Wilmer L.L.P. as to the legality of the
securities being registered.
8.1* Form of Opinion of Snell & Wilmer L.L.P. as to the United States
federal income tax consequences of the Merger.
8.2** Form of Opinion of Venture Law Group, a Professional Corporation, as
to the United States federal income tax consequences of the Merger.
10.1 1985 Stock Option Plan, filed as Exhibit 1 to the Registrant's Post-
effective Amendment No. 1 to Registration Statement on Form S-8, SEC
File No. 2-76027, and incorporated herein by this reference.
10.2 1989 Stock Option Plan for Non-employee Directors, filed as Exhibit
10.5 to the Registrant's Annual Report on Form 10-K for the fiscal
year ended December 29, 1989, and incorporated herein by this
reference.
10.3 The Registrant's 1991 Employee Stock Purchase Plan, filed as Exhibit
4.1 to the Registrant's Registration Statement on Form S-8, SEC File
No. 33-39632, and incorporated herein by this reference.
10.4 Employment Agreement dated November 29, 1994, between the Registrant
and Mr. James R. Oyler, filed as Exhibit 10.10 to the Registrant's
Annual Report on Form 10-K for the fiscal year ended December 26,
1994, and incorporated herein by this reference.
10.5 The Registrant's 1995 Long-Term Incentive Equity Plan, filed as
Exhibit 10.11 to the Registrant's Annual Report on Form 10-K for the
fiscal year ended December 29, 1995, and incorporated herein by this
reference.
10.6 Asset Purchase Agreement dated March 1, 1995, between the Registrant
and Parametric Technology Corporation as to the Registrant's
divestiture of its Design Software group (CDRS), filed as Exhibit
10.12 to the Registrant's Annual Report on Form 10-K for the fiscal
year ended December 29, 1995, and incorporated herein by this
reference.
10.7 The Registrant's Executive Savings Plan, filed as Exhibit 10.14 to the
Registrant's Annual Report on Form 10-K for the fiscal year ended
December 29, 1995, and incorporated herein by this reference.
10.8 The Registrant's Supplemental Executive Retirement Plan (SERP), filed
as Exhibit 10.15 to the Registrant's Annual Report on Form 10-K for
the fiscal year ended December 29, 1995, and incorporated herein by
this reference.
10.9+ Form of Employment Agreement to be entered into between the Registrant
and Jeffrey, W. Dunn.
10.10+ Form of Employment Agreement to be entered into between the Registrant
and Nancy E. Bush.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
23.1** Consent of KPMG Peat Marwick LLP.
23.2** Consent of Price Waterhouse LLP.
23.3** Consent of Snell & Wilmer L.L.P. (included in Exhibit 5.1 to this
Registration Statement)
23.4** Consent of Venture Law Group, a Professional Corporation (included in
Exhibit 8.2 to this Registrant Statement).
23.5** Consent of Cowen & Company.
24.1+ Powers of Attorney for Messrs. Stewart Carrell, Gerald Casilli, Henry
N. Christiansen, Peter O. Crisp, John T. Lemley, Mark C. McBride,
James R. Oyler, Ivan E. Sutherland, and John E. Warnock.
27.1+ Financial Data Schedule.
99.1** Voting Agreement, dated April 22, 1998, between the Registrant and
certain stockholders of AccelGraphics, Inc. (included as Annex III to
the Proxy Statement/Prospectus).
99.2+ Form of Affiliate Letter Agreement between the Registrant and certain
officers and directors of AGI.
99.3** Form of proxy card to be mailed to stockholders of AccelGraphics, Inc.
99.4** Form of Chairman and Chief Executive Officer's Letter to the
stockholders of AccelGraphics, Inc. (included in the Proxy
Statement/Prospectus).
99.5** Form of Notice of Annual Meeting of Stockholders to the stockholders
of AccelGraphics, Inc. (included in the Proxy Statement/Prospectus).
99.6** Form of Election.
99.7** Opinion of Cowen & Company (included as Annex II to the Proxy
Statement/Prospectus).
</TABLE>
- --------
*Exhibits filed herewith.
** Exhibits previously filed with the Registrant's Amendment No. 1 to the
Registration Statement on Form S-4/A, dated May 15, 1998.
+Exhibits previously filed with the Registrant's Registration Statement on
Form S-4, dated April 27, 1998.
<PAGE>
EXHIBIT 8.1
May 15, 1998
Evans & Sutherland Computer Corporation
600 Komas Drive
Salt Lake City, Utah 84108
Re: Merger Opinion
Ladies and Gentlemen:
We have acted as counsel to Evans & Sutherland Computer Corporation, a
Utah corporation ("E&S"), in connection with the Agreement and Plan of Merger
dated April 22, 1998 (the "Agreement") by and among E&S, E&S Merger Corp. a Utah
corporation and wholly-owned subsidiary of E&S ("Merger Sub"), and
AccelGraphics, Inc., a Delaware corporation. Pursuant to the Agreement, AGI will
merge with and into Merger Sub (the "Merger") and Merger Sub will continue to be
a wholly-owned subsidiary of E&S.
Our opinion regarding certain of the federal income tax consequences of
the Merger is required in connection with the filing with the Securities and
Exchange Commission of a registration statement (the "Registration Statement")
which includes the Joint Proxy Statement-Prospectus relating to the Merger. Our
opinion is also required pursuant to Section 7.01(f) of the Agreement as a
condition to the consummation of the Merger.
Except as otherwise provided, capitalized terms referred to herein have
the meanings set forth in the Agreement. All section references, unless
otherwise indicated, are to the Internal Revenue Code of 1986, as amended (the
"Code").
For the purpose of rendering this opinion, we have examined and are
relying upon (without any independent investigation or review thereof) the truth
and accuracy, at all relevant times, of the statements, covenants,
representations and warranties contained in the following documents:
<PAGE>
Evans & Sutherland Computer Corporation
May 15, 1998
Page 2
1. The Agreement;
2. The Registration Statement;
3. Representations made to us by E&S and Merger Sub in a Certificate
reproduced as Exhibit A hereto and representations made to us by AGI in a
Certificate reproduced as Exhibit B hereto (collectively the "Tax
Certificates"); and
4. Such other instruments and documents related to the formation,
organization, and operation of AGI, E&S, and Merger Sub, and/or to the
consummation of the Merger and the transactions contemplated thereby as we have
deemed necessary or appropriate.
In connection with rendering this opinion, we have assumed (without
any independent investigation) that:
1. Original documents (including signatures) are authentic, documents
submitted to us as copies conform to the original documents, and there has been
(or will be by the Effective Time of the Merger) due execution and delivery of
all documents where due execution and delivery are prerequisites to
effectiveness thereof;
2. Any representation or statement referred to above made "to the
knowledge of," "to the best of the knowledge," or otherwise similarly qualified
is correct without such qualification. As to all matters in which a person or
entity making a representation referred to above has represented that such
person or entity either is not a party to, does not have, or is not aware of,
any plan, intention, understanding or agreement, there is in fact no such plan,
intention, understanding or agreement;
3. All statements, descriptions and representations contained in any
of the documents referred to herein or otherwise made to us are true and correct
in all material respects and will continue to be true and correct in all
material respects as of the Effective Time of the Merger and all other relevant
times, and no actions have been (or will be) taken which are inconsistent with
such representations;
4. The Merger will be reported by E&S and AGI on their respective
federal income tax returns in a manner consistent with the opinion set forth
below;
5. The Merger will be consummated in accordance with the Agreement
(and without any waiver, breach or amendment of any of the provisions thereof)
and will be effective under applicable state laws;
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May 15, 1998
Page 3
6. The stockholders of AGI will receive in the Merger E&S Common
Stock having an aggregate fair market value as of the Effective Time that is not
less than 50% of the aggregate fair market value of all consideration received
by stockholders of AGI in the Merger, and no transactions have occurred or will
occur following the Effective Time of the Merger that would cause the continuity
of interest requirement as specified in Treasury Regulations Section 1.368-1(e)
to be violated; and
7. The opinion of counsel to be issued by Venture Law Group, A
Professional Corporation, to AGI has been delivered and not withdrawn.
Based on our examination of the foregoing items and subject to the
assumptions, exceptions, limitations, and qualifications set forth herein, we
are of the opinion that if the Merger is consummated in accordance with the
Agreement (and without any waiver, breach, or amendment of any of the provisions
thereof) and the statements set forth in the Tax Certificates are true and
correct as of the Effective Time of the Merger, then, for federal income tax
purposes, the Merger will qualify as a "reorganization" as defined in Section
368(a) of the Code and that each of E&S, Merger Sub, and AGI will constitute a
"party" to the reorganization within the meaning of Section 368(b) of the Code.
In addition to the assumptions set forth above, this opinion is
subject to the exceptions, limitations, and qualifications set forth below.
1. This opinion represents and is based upon our best judgment
regarding the application of federal income tax laws arising under the Code,
existing judicial decisions, administrative regulations, and published rulings
and procedures. Our opinion is not binding upon the Internal Revenue Service or
the courts, and there is no assurance that the Internal Revenue Service will not
successfully assert a contrary position. Furthermore, no assurance can be given
that future legislative, judicial, or administrative changes, on either a
prospective or retroactive basis, would not adversely affect the accuracy of the
conclusions stated herein. Nevertheless, we undertake no responsibility to
advise you of any new developments in the application or interpretation of the
federal income tax laws.
2. This opinion addresses only the classification of the Merger as a
reorganization under Section 368(a) of the Code and the consequences of the
Merger as described above, and does not address any other federal or any state,
local, or foreign tax consequences that
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May 15, 1998
Page 4
may result from the Merger or any other transaction (including any
transaction undertaken in connection with the Merger).
3. No opinion is expressed as to any transaction other than the Merger as
described in the Agreement or to any transaction whatsoever, including the
Merger, if all the transactions described in the Agreement are not consummated
in accordance with the terms of the Agreement and without waiver or breach of
any material provision thereof or if all of the representations, warranties,
statements and assumptions upon which we relied are not true and accurate at all
relevant times. In the event any one of the statements, representations,
warranties, or assumptions upon which we have relied to issue this opinion is
incorrect, our opinion might be adversely affected and may not be relied upon.
4. The opinion set forth herein is intended solely for the purpose of
including this opinion as an exhibit to the Registration Statement and is
intended solely for your benefit. It may not be relied upon for any other
purpose or by any other person or entity, and may not be made available to any
other person or entity without our prior written consent. We hereby consent to
the filing of this opinion as an exhibit to the Registration Statement and to
the use of our name under the heading "Material Federal Income Tax
Consequences."
Yours truly,
