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As filed with the Securities and Exchange Commission on April __, 1995
Registration No. 33-_______________
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
TANDEM COMPUTERS INCORPORATED
(Exact name of issuer as specified in its charter)
Delaware 94-2266618
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
19333 Vallco Parkway
Cupertino, California 95014-2599
(Address of principal executive offices) (Zip code)
TANDEM COMPUTERS INCORPORATED 1989 STOCK PLAN
(AS RESTATED EFFECTIVE NOVEMBER 1994)
(Full title of the plan)
JOSEPHINE T. PARRY, ESQ Copy to:
Vice President, General Counsel KATHARINE A. MARTIN, ESQ.
and Secretary Pillsbury Madison & Sutro
Tandem Computers Incorporated 2700 Sand Hill Road
10435 North Tantau Avenue Menlo Park, CA 94025
Cupertino, California 95014-0709 (415) 233-4500
(408) 725-6000
(Name, address and telephone number
of agent for service)
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<CAPTION>
CALCULATION OF REGISTRATION FEE
==============================================================================================
Proposed Proposed
Maximum Maximum
Title of Offering Aggregate Amount of
Securities To Be Amount To Be Price Per Offering Price Registration
Registered Registered Share (1) Fee (2)
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<S> <C> <C> <C> <C>
Common Stock 9,000,000 shares $12.875 $115,875,000 $39,957
==============================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee.
(2) The registration fee has been calculated pursuant to Rule 457(h).
------------------
The Registration Statement shall become effective upon filing in accordance with
Rule 462 under the Securities Act of 1933.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance
with Rule 428 under the Securities Act of 1933 and the Note to Part I
of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents By Reference.
The following documents, filed by the Registrant with the Securities
and Exchange Commission (the "Commission"), are hereby incorporated by reference
in this Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended September 30, 1994;
(b) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended December 31, 1994; and
(c) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A dated March 13, 1987 pursuant to
section 12(b) of the Securities Exchange Act of 1934, including any subsequent
amendment or report filed for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to
sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
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 a part hereof from the date of filing of such
documents.
Item 4. Description of Securities.
Not Applicable.
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Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
Paragraph B(i) of Article XI of the Registrant's Restated Certificate
of Incorporation provides that the corporation shall, to the fullest extent
permitted by Delaware Law, indemnify any person (the "Indemnitee") who is or was
involved in any manner (including, without limitation, as a party or a witness)
in any threatened, pending or completed investigation, claim, action, suit or
proceeding, whether civil, criminal, administrative or investigative (including,
without limitation, any action, suit or proceeding brought by or in the right of
the corporation to procure a judgment in its favor) (a "Proceeding"), by reason
of the fact that Indemnitee is or was a director, officer, employee, agent,
fiduciary or other official of the Registrant, or is or was serving another
entity or enterprise in such capacity at the request of the Registrant, against
all expenses and liabilities actually and reasonably incurred by Indemnitee in
connection with such Proceeding.
Paragraph B(ii) of Article XI of the Registrant's Restated
Certificate of Incorporation provides that the corporation may enter into
contracts to provide individual Indemnitees with specific rights of
indemnification to the fullest extent permitted by Delaware Law and may create
trust funds, grant security interests, obtain letters of credit or use other
means to ensure the payment of such amounts as may be necessary to effect the
rights provided by the Restated Certificate of Incorporation or in any such
contract.
Under Section 145 of the General Corporation Law of the State of
Delaware, the state in which the Registrant is incorporated, a Delaware
corporation has the power, under specified circumstances, to indemnify its
directors, officers, employees and agents in connection with actions, suits or
proceedings brought against them by a third party, or by or in the right of the
corporation, by reason of the fact that they were or are such directors,
officers, employees or agents. In general, Section 145 provides that a
corporation has the power to indemnify directors, officers, employees or agents
where the individual acted in good faith and in a manner such individual
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 such individual's conduct was unlawful. In
circumstances where the individual shall have been adjudged to be liable for
negligence or misconduct in the performance of such individual's duty to the
corporation, indemnification will be allowed only to the extent that the court
considering the action decides, in view of the circumstances, the individual is
entitled to indemnity.
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The directors and officers of the Registrant and its subsidiaries are
covered by policies of insurance under which they are insured, within limits and
subject to the limitations of the policies, against certain expenses in
connection with the defense of actions, suits or proceedings, and certain
liabilities which might be imposed as a result of such actions, suits or
proceedings, in which they are parties by reason of being or having been
directors or officers; the Registrant is similarly insured, with respect to
certain payments it might be required to make to its directors or officers under
the applicable statutes and its charter provisions. In addition, pursuant to
authority contained in the Registrant's Restated Certificate of Incorporation
(as set forth above), the Registrant has entered into indemnification agreements
with its directors and officers.
Item 8. Exhibits.
See Index to Exhibits on page 9.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made of the securities registered hereby, 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 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;
(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 paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if 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
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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 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.
(h) 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 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 Act and will be governed by the final adjudication of
such issue.
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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 on Form S-8 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Cupertino, State of California, on April 19,
1995.
TANDEM COMPUTERS INCORPORATED
By JAMES G. TREYBIG
----------------------------
James G. Treybig
President, Chief Executive Officer
and Director
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints James G. Treybig and David J. Rynne, and
each of them, his or her true and lawful attorneys-in-fact and agents, each with
full power of substitution and resubstitution, for him or her and in his or her
name, place and stead, in any and all capacities, to sign any and all
amendments, including post-effective amendments, to this Registration Statement,
and to file the same, with exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done, as
fully to all intents and purposes as he or she might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents, or
their substitute or substitutes, may 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 by the following persons in the
capacities and on the date indicated:
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<CAPTION>
Signature Title Date
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<S> <C> <C>
JAMES G. TREYBIG President, Chief April 19, 1995
------------------------- Executive Officer and
James G. Treybig Director (Principal
Executive Officer)
</TABLE>
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<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
DAVID J. RYNNE Senior Vice April 19, 1995
------------------------- President and
David J. Rynne Chief Financial
Officer (Prin-
cipal Financial
Officer)
ANTHONY H. LEWIS, JR. Vice President April 19, 1995
------------------------- and Corporate
Anthony H. Lewis, Jr. Controller (Prin-
cipal Accounting
Officer)
JACK F. BENNETT
-------------------------
Jack F. Bennett Director April 19, 1995
MORTON COLLINS
-------------------------
Morton Collins Director April 19, 1995
SIR CAMPBELL FRASER
-------------------------
Sir Campbell Fraser Director April 19, 1995
FRANKLIN P. JOHNSON, JR.
-------------------------
Franklin P. Johnson, Jr. Director April 19, 1995
ROBERT C. MARSHALL
-------------------------
Robert C. Marshall Director April 19, 1995
THOMAS J. PERKINS
-------------------------
Thomas J. Perkins Director April 19, 1995
VERA STEPHANIE SHIRLEY
-------------------------
Vera Stephanie Shirley Director April 19, 1995
</TABLE>
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<TABLE>
<CAPTION>
Signature Title Date
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<S> <C> <C>
ROBERT G. STONE, JR.
-------------------------
Robert G. Stone, Jr. Director April 19, 1995
THOMAS I. UNTERBERG
-------------------------
Thomas I. Unterberg Director April 19, 1995
WALTER B. WRISTON
-------------------------
Walter B. Wriston Director April 19, 1995
</TABLE>
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Sequentially
Exhibit Numbered
Number Exhibit Page
- ------- ------- ------------
<S> <C> <C>
5.1 Opinion of Pillsbury Madison & 10
Sutro as to the legality of the
securities being registered.
23.1 Consent of Pillsbury Madison &
Sutro (included in Exhibit 5.1).
23.2 Consent of Ernst & Young LLP. 11
24.1 Powers of Attorney (see pages 6-8)
</TABLE>
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EXHIBIT 5.1
April 19, 1995
Tandem Computers Incorporated
10435 North Tantau Avenue
Cupertino, CA 95014
Re: Registration Statement on Form S-8
Gentlemen:
With reference to the Registration Statement on Form S-8 to be filed by
Tandem Computers Incorporated, a Delaware corporation (the "Company"), with the
Securities and Exchange Commission under the Securities Act of 1933 relating to
9,000,000 shares of the Company's Common Stock issuable pursuant to the Tandem
Computers Incorporated 1989 Stock Plan (the "Plan"), it is our opinion that such
shares of Common Stock of the Company, when issued and sold in accordance with
the Plan, will be legally issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission as Exhibit 5.1 to the Registration Statement.
Very truly yours,
PILLSBURY, MADISON & SUTRO
10
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EXHIBIT 23.2
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
The Board of Directors
Tandem Computers Incorporated
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Tandem Computers Incorporated 1989 Stock Plan (as
Restated Effective November 1994) of our report dated October 25, 1994, with
respect to the consolidated financial statements and schedules of Tandem
Computers Incorporated included in its Annual Report (Form 10-K) for the year
ended September 30, 1994, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
San Jose, California
April 19, 1995
11
