As filed with the Securities and Exchange Commission on November 20, 1997
Registration No. 333-_____
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
SUN MICROSYSTEMS, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 94-2805249
(State of Incorporation) (I.R.S. Employer
Identification Number)
901 San Antonio Road
Palo Alto, CA 94303
(650) 960-1300
(Address and telephone number of Registrant's principal executive offices)
--------------------------
1997 FRENCH STOCK OPTION PLAN
(Full Title of the Plan)
--------------------------
Scott G. McNealy
President
SUN MICROSYSTEMS, INC.
901 San Antonio Road
Palo Alto, CA 94303
(650) 960-1300
(Name, address and telephone number of agent for service)
--------------------------
Copy to:
David J. Segre, Esq.
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304-1050
<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------------------------------
Proposed
Maximum Proposed
Amount Offering Maximum Amount of
to be Price Per Aggregate Registration
Title of Securities to be Registered Registered Share(1) Offering Price(1) Fee
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.00067 par value, to be issued upon
exercise of stock options granted under the 1997 French
Stock Option Plan ....................................... 3,000,000 shares $31.375 $94,125,000.00 $28,523
- ------------------------------------------------------------------------------------------------------------------------------------
<FN>
(1) Estimated pursuant to Rule 457(h) under the Securities Act of 1933, as amended (the "Act") based on the average between the
high and low price as reported on Nasdaq on November 13, 1997.
</FN>
</TABLE>
<PAGE>
PART II: INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Information Incorporated by Reference.
There are hereby incorporated by reference into this Registration Statement
the following documents and information heretofore filed with the Securities and
Exchange Commission (the "Commission") by Sun Microsystems, Inc. (the
"Registrant" or the "Company"):
1. The Registrant's Annual Report on Form 10-K, as amended on Form 10-K/A,
for the year ended June 30, 1997, filed pursuant to Section 13(a) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
2. The Registrant's Quarterly Report on Form 10-Q for the quarter ended
September 28, 1997, filed pursuant to Section 13(a) of the Exchange Act.
3. The Company's Registration Statement on Form 8-A relating to the Common
Stock which became effective October 24, 1986, as amended.
4. The Company's Registration Statement on Form 8-A relating to the
Company's Common Share Purchase Rights which became effective on May 22, 1989,
as amended.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act after the date of this Regisration Statement and
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 part hereof from the date of filing of such
documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware, as
amended, provides that under certain circumstances a corporation may indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding whether civil,
criminal, administrative or investigative, by reason of the fact that he or she
is or was a director, officer, employee or agent of the Company or is or was
serving at its request in such capacity in another corporation or business
association, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him or her in
connection with such action, suit or proceeding if he or she acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the
best interests of the Company and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct was unlawful.
II-1
<PAGE>
Section 11 of the Restated Certificate of Incorporation and the Bylaws of
the Registrant provides in effect that, subject to certain limited exceptions,
the Registrant shall indemnify its directors and officers to the extent
authorized or permitted by the General Corporation Law of the State of Delaware.
The directors and officers of the Registrant are insured under policies of
insurance maintained by the Company, subject to the limits of the policies,
against certain losses arising from any claims made against them by reason of
being or having been such directors or officers. Like indemnification and
insurance is also provided to those employees of the Registrant who serve as
administrators of the Plan. In addition, the Company has entered into contracts
with certain of its directors providing for indemnification of such persons by
the Registrant to the full extent authorized or permitted by law, subject to
certain limited exceptions.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 1997 French Stock Option Plan.
5.1 Opinion of Counsel as to legality of securities being registered.
23.1 Consent of Counsel (Contained in Exhibit 5.1).
23.2 Consent of Ernst & Young LLP, Independent Auditors.
24.1 Power of Attorney (Contained in page II-5).
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 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.
(2) That, for the purpose of determining any liability under the
Securities 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.
(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.
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<PAGE>
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) 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.
(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 Commission such
indemnification is against public policy as expressed in the Securities 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 and will be governed by the final
adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant,
Sun Microsystems, Inc., a corporation organized and existing under the laws of
the State of Delaware, 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 Palo Alto, State of California, on this 20th day
of November, 1997.
SUN MICROSYSTEMS, INC.
By: /s/ Michael E. Lehman
------------------------------------
Michael E. Lehman, Vice President
and Chief Financial Officer
II-4
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Scott G. McNealy and Michael E. Lehman,
jointly and severally, his or her 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
attorneys-in-fact, or his or her substitute or substitutes, may do or cause to
be done by virtue hereof.
<TABLE>
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 dates indicated.
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Scott G. McNealy Chairman of the Board of Directors, November 20, 1997
- -------------------------------- President and Chief Executive Officer
Scott G. McNealy (Principal Executive Officer)
/s/ Michael E. Lehman Vice President and Chief Financial November 20, 1997
- -------------------------------- Officer (Principal Financial Officer)
Michael E. Lehman
/s/ George Reyes Vice President and Corporate Controller November 20, 1997
- -------------------------------- (Principal Accounting Officer)
George Reyes
/s/ L. John Doerr Director November 20, 1997
- --------------------------------
L. John Doerr
/s/ Robert J. Fisher Director November 20, 1997
- --------------------------------
Robert J. Fisher
/s/ Judith L. Estrin Director November 20, 1997
- --------------------------------
Judith L. Estrin
/s/ Robert L. Long Director November 20, 1997
- --------------------------------
Robert L. Long
/s/ M. Kenneth Oshman Director November 20, 1997
- --------------------------------
M. Kenneth Oshman
/s/ A. Michael Spence Director November 20, 1997
- --------------------------------
A. Michael Spence
</TABLE>
II-5
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
EXHIBITS
----------------------
Registration Statement on Form S-8
SUN MICROSYSTEMS, INC.
November 20, 1997
<PAGE>
SUN MICROSYSTEMS, INC.
REGISTRATION STATEMENT ON FORM S-8
INDEX TO EXHIBITS
Exhibit
Number Description
- ------ -----------
4.1 1997 French Stock Option Plan.
5.1 Opinion of Counsel as to legality of securities being registered.
23.1 Consent of Counsel (Contained in Exhibit 5.1).
23.2 Consent of Ernst & Young LLP, Independent Auditors.
24.1 Power of Attorney (Contained in page II-5).
SUN MICROSYSTEMS, INC.
1997 FRENCH STOCK OPTION PLAN
1. Purposes of the Plan. The purposes of this 1997 Stock Option Plan for
French Employees are:
o to attract and retain the best available personnel for positions of
substantial responsibility,
o to provide additional incentive to French Employees, and
o to promote the success of the Company's business and the business of
its French subsidiary.
Options shall be granted under the Plan at the discretion of the
Administrator and as reflected in the terms of Option Agreements, and are
intended to qualify for preferred treatment under French tax laws.
2. Definitions. As used herein, the following definitions shall apply:
(a) "Administrator" means the Board or any of its Committees as
shall be administering the Plan.
(b) "Applicable Laws" means the legal requirements relating to
the administration of stock option plans under French corporate, securities, and
tax laws, any stock exchange or quotation system on which the Common Stock is
listed or quoted and the applicable laws of any country or jurisdiction where
Options are, or will be, granted under the Plan.
(c) "Board" means the Board of Directors of the Company.
(d) "Code" means the Internal Revenue Code of 1986, as amended.
(e) "Committee" means a committee of Directors appointed by the
Board in accordance with Section 4 of the Plan.
(f) "Common Stock" means the common stock of the Company.
(g) "Company" means Sun Microsystems, Inc., a Delaware
corporation.
(h) "Director" means a member of the Board.
(i) "Disability" means total and permanent disability, as defined
under Applicable Laws.
(j) "Employee" means any person employed by a Subsidiary in a
salaried position, who does not own more than 10% of the voting power of all
classes of stock of the Company, or any Parent or Subsidiary, and who is a
resident of the Republic of France.
(k) "Fair Market Value" means, as of any date, the dollar value
of Common Stock determined as follows:
(i) If the Common Stock is listed on any established stock
exchange or a national market system, including without limitation the Nasdaq
National Market of the Nasdaq Stock Market, its Fair Market Value shall be the
average quotation
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<PAGE>
price for the last 20 days preceding the date of determination for such stock
(or the average closing bid for such 20 day period, if no sales were reported)
as quoted on such exchange or system and reported in The Wall Street Journal or
such other source as the Administrator deems reliable;
(ii) If the Common Stock is quoted on the Nasdaq Stock
Market (but not on the Nasdaq National Market thereof) or regularly quoted by a
recognized securities dealer but selling prices are not reported, its Fair
Market Value shall be the mean between the high bid and low asked prices for the
Common Stock for the last 20 days preceding the date of determination; or
(iii) In the absence of an established market for the Common
Stock, the Fair Market Value thereof shall be determined in good faith by the
Administrator.
(l) "Option" means a stock option granted pursuant to the Plan.
(m) "Option Agreement" means a written agreement between the
Company and an Optionee evidencing the terms and conditions of an individual
Option grant. The Option Agreement is subject to the terms and conditions of the
Plan.
(n) "Optioned Stock" means the Common Stock subject to an Option.
(o) "Optionee" means a person eligible to participate in the Plan
pursuant to Section 5 and who holds an outstanding Option.
(p) "Plan" means this Sun Microsystems, Inc. 1997 Stock Option
Plan for French Employees.
(q) "Share" means a share of the Common Stock, as adjusted in
accordance with Section 12 of the Plan.
(r) "Subsidiary" means any participating subsidiary of the
Company located in the Republic of France.
3. Stock Subject to the Plan. Subject to the provisions of Section 12 of
the Plan, the maximum aggregate number of Shares that may be optioned and sold
under the Plan is 3,000,000 Shares. However, at no time shall the total number
of Options outstanding which may be exercised for newly issued Shares of Common
Stock exceed that number equal to one-third of the Company's voting stock. The
Shares may be authorized, but unissued, or reacquired Common Stock. If any
Optioned Stock is to consist of reacquired Shares, such Optioned Stock must be
purchased by the Company prior to the date of grant of the corresponding Option
and must be reserved and set aside for such purpose.
If an Option expires or becomes unexercisable without having been
exercised in full, the unpurchased Shares which were subject thereto shall
become available for future grant under the Plan (unless the Plan has
terminated).
4. Administration of the Plan.
(a) Procedure. The Plan shall be administered by the Board or a
Committee.
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<PAGE>
(b) Powers of the Administrator. Subject to the provisions of the
Plan, and in the case of a Committee, subject to the specific duties delegated
by the Board to such Committee, the Administrator shall have the authority, in
its discretion:
(i) to determine Fair Market Value;
(ii) to select the persons to whom Options may be granted
hereunder;
(iii) to determine whether and to what extent Options are
granted hereunder;
(iv) to determine the number of Shares to be covered by each
Option granted hereunder;
(v) to approve forms of agreement for use under the Plan;
(vi) to determine the terms and conditions, not inconsistent
with the terms of the Plan, of any award granted hereunder. Such terms and
conditions may include, but are not limited to, the exercise price, the time or
times when Options may be exercised (which may be based on performance
criteria), any vesting acceleration or waiver of forfeiture restrictions, and
any restriction or limitation regarding any Option or the Shares relating
thereto, based in each case on such factors as the Administrator, in its sole
discretion, shall determine;
(vii) to construe and interpret the terms of the Plan;
(viii) to prescribe, amend and rescind rules and regulations
relating to the Plan;
(ix) to modify or amend each Option (subject to Section
14(c) of the Plan);
(x) to authorize any person to execute on behalf of the
Company or a Subsidiary any instrument required to effect the grant of an Option
previously granted by the Administrator;
(xi) to determine the terms and restrictions applicable to
Options; and
(xii) to make all other determinations deemed necessary or
advisable for administering the Plan.
(c) Effect of Administrator's Decision. The Administrator's
decisions, determinations and interpretations shall be final and binding on all
Optionees and any other holders of Options.
(d) Reporting to the Shareholders' Meeting. The Company's annual
proxy statement shall state the number of shares subject to, the exercise price
of and number of Shares acquired upon exercise of Options granted hereunder.
5. Eligibility. Options may be granted only to Employees; provided,
however, that the President Directeur General, the Directeur General and other
directors who are also Employees of a participating Subsidiary may be granted
Options. An individual who has been granted an Option may, if otherwise
eligible, be granted additional Options.
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<PAGE>
6. Limitations. Neither the Plan nor any Option shall confer upon any
Optionee any right with respect to continuing the Optionee's employment
relationship with the Company.
7. Term of Plan. The Plan shall become effective as of the date of its
adoption by the Board. It shall continue in effect until five years from the
date of its adoption, unless terminated earlier under Section 14 of the Plan.
8. Term of Option. The term of each Option shall be as stated in the
Option Agreement; provided, however, that the maximum term of an Option shall
not exceed ten (10) years from the date of grant of the Option.
9. Option Exercise Price and Consideration.
(a) Exercise Price. The exercise price for the Shares to be
issued pursuant to exercise of an Option shall be one hundred percent (100%) of
the Fair Market Value on the date the Option is granted. The exercise price
shall not be modified while the Option is outstanding.
(b) Exercise and Vesting Dates. Options granted hereunder may be
exercised to the extent they have vested. Options granted hereunder shall vest
in accordance with the following vesting schedule: Fifty percent (50%) of the
Shares subject to this Option shall vest twenty-four months after the Vesting
Commencement Date (the "Initial Exercise Date") and 1/24 of the remaining Shares
subject to the Option shall vest each month thereafter, subject to Optionee's
Continuing Status as an Employee on such dates.
(c) Restriction on Sale. The Shares subject to this Option may
not be transferred, assigned or hypothecated in any manner otherwise than by
will or by the laws of descent or distribution before the date three years after
the Initial Exercise Date.
(d) Form of Consideration. The Administrator shall determine the
acceptable form of consideration for exercising an Option, including the method
of payment. Such consideration may consist of:
(i) cash or check (denominated in U.S. Dollars);
(ii) wire transfer (denominated in U.S. Dollars);
(iii) consideration received by the Company under a cashless
exercise program implemented by the Company in connection with the Plan;
(iv) any combination of the foregoing methods of payment.
10. Exercise of Option.
(a) Procedure for Exercise; Rights as a Shareholder. Any Option
granted hereunder shall be exercisable according to the terms of the Plan, but
may not be exercised for a fraction of a Share. An Option shall be deemed
exercised when:
(i) the Subsidiary or the Company receives written notice of
exercise (in accordance with the Option Agreement and in the form attached
hereto as Exhibit A) from the person entitled to exercise the Option,
accompanied by full payment for the Shares with respect to which the Option is
exercised;
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<PAGE>
(ii) the Subsidiary or the Company receives a written
subscription agreement to the Shares (in accordance with the Option Agreement
and in the form attached hereto as Exhibit B) from the person entitled to
exercise the Option.
Full payment may consist of any consideration and method of payment
authorized by the Administrator and permitted by the Option Agreement and the
Plan, and shall be deemed to be definitively made upon receipt of the payment by
the Subsidiary. Shares issued upon exercise of an Option shall be issued in the
name of the Optionee or, if requested by the Optionee, in the name of the
Optionee and his or her spouse. Until the Shares are issued (as evidenced by the
appropriate entry on the books of the Company or of a duly authorized transfer
agent of the Company), no right to vote or receive dividends or any other rights
as a shareholder shall exist with respect to the Optioned Stock, notwithstanding
the exercise of the Option. The Company shall issue to the Optionee (or cause to
be issued) such Shares promptly after the Option is exercised and after full
payment, as indicated above, is received by the Company. No adjustment will be
made for a dividend or other right for which the record date is prior to the
date the Shares are issued, except as provided in Section 12 of the Plan.
Exercising an Option in any manner shall decrease the number of Shares
thereafter available, both for purposes of the Plan and for sale under the
Option, by the number of Shares as to which the Option is exercised.
(b) Termination of Employment Relationship. In the event that an
Optionee's status as an Employee terminates (other than upon the Optionee's
death or Disability), the Optionee may exercise his or her Option, but only
within thirty (30) days, and only to the extent that the Optionee was entitled
to exercise it at the date of termination (but in no event later than the
expiration of the term of such Option as set forth in the Option Agreement). If,
at the date of termination, the Optionee is not entitled to exercise his or her
entire Option, the Shares covered by the unexercisable portion of the Option
shall revert to the Plan. If, after termination, the Optionee does not exercise
his or her Option within the time specified by the Administrator, the Option
shall terminate, and the Shares covered by such Option shall revert to the Plan.
(c) Disability of Optionee. In the event that an Optionee's
status as an Employee terminates as a result of the Optionee's Disability, the
Optionee may exercise his or her Option at any time within six (6) months from
the date of such termination, but only to the extent that the Optionee was
entitled to exercise it at the date of such termination (but in no event later
than the expiration of the term of such Option as set forth in the Option
Agreement). If, at the date of termination, the Optionee is not entitled to
exercise his or her entire Option, the Shares covered by the unexercisable
portion of the Option shall revert to the Plan. If, after termination, the
Optionee does not exercise his or her Option within the time specified herein,
the Option shall terminate, and the Shares covered by such Option shall revert
to the Plan.
(d) Death of Optionee. In the event of the death of an Optionee
while an Employee, the Option may be exercised at any time within six (6) months
following
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<PAGE>
the date of death by the Optionee's estate or by a person who acquired the right
to exercise the Option by bequest or inheritance, but only to the extent that
the Optionee was entitled to exercise the Option at the date of death. If, at
the time of death, the Optionee was not entitled to exercise his or her entire
Option, the Shares covered by the unexercisable portion of the Option shall
revert to the Plan. If, after death, the Optionee's estate or a person who
acquired the right to exercise the Option by bequest or inheritance does not
exercise the Option within the time specified herein, the Option shall
terminate, and the Shares covered by such Option shall immediately revert to the
Plan.
11. Non-Transferability of Options. An Option may not be sold, pledged,
assigned, hypothecated, transferred, or disposed of in any manner other than by
will or by the laws of descent or distribution and may be exercised, during the
lifetime of the Optionee, only by the Optionee.
12. Adjustments Upon Changes in Capitalization, Dissolution, Merger,
Asset Sale or Change of Control.
(a) Changes in Capitalization. Subject to any required action by
the shareholders of the Company, the number of shares of Common Stock covered by
each outstanding Option, and the number of shares of Common Stock which have
been authorized for issuance under the Plan but as to which no Options have yet
been granted or which have been returned to the Plan upon cancellation or
expiration of an Option, as well as the price per share of Common Stock covered
by each such outstanding Option, shall be proportionately adjusted for any
increase or decrease in the number of issued shares of Common Stock resulting
from a stock split, reverse stock split, stock dividend, combination or
reclassification of the Common Stock, or any other increase or decrease in the
number of issued shares of Common Stock effected without receipt of
consideration by the Company; provided, however, that conversion of any
convertible securities of the Company shall not be deemed to have been "effected
without receipt of consideration." Such adjustment shall be made by the Board,
whose determination in that respect shall be final, binding and conclusive.
Except as expressly provided herein, no issuance by the Company of shares of
stock of any class, or securities convertible into shares of stock of any class,
shall affect, and no adjustment by reason thereof shall be made with respect to,
the number or price of shares of Common Stock subject to an Option.
(b) Dissolution or Liquidation. In the event of the proposed
dissolution or liquidation of the Company, the Administrator shall notify the
Optionee at least fifteen (15) days prior to such proposed action. To the extent
it has not been previously exercised, the Option shall terminate immediately
prior to the consummation of such proposed action.
(c) Merger or Asset Sale. In the event of a merger of the Company
with or into another corporation, or the sale of substantially all of the assets
of the Company, each outstanding Option shall be assumed or an equivalent Option
shall be
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<PAGE>
substituted by the successor corporation or a Parent or Subsidiary of the
successor corporation, unless the successor corporation refuses to assume the
Option or to substitute an equivalent option, in which case the Optionee shall
have the right to exercise the Option as to all of the Optioned Stock, including
Shares as to which it would not otherwise be exercisable. If an Option is
exercisable in lieu of assumption or substitution in the event of a merger or
sale of assets, the Administrator shall notify the Optionee that the Option
shall be fully exercisable for a period of thirty (30) days from the date of
such notice, and the Option will terminate upon the expiration of such period.
For the purposes of this paragraph, the Option shall be considered assumed if,
following the merger or sale of assets, the Option confers the right to
purchase, for each Share of Optioned Stock subject to the Option immediately
prior to the merger or sale of assets, the consideration (whether stock, cash,
or other securities or property) received in the merger or sale of assets by
holders of Common Stock for each Share held on the effective date of the
transaction (and if holders were offered a choice of consideration, the type of
consideration chosen by the holders of a majority of the outstanding Shares);
provided, however, that if such consideration received in the merger or sale of
assets was not solely common stock of the successor corporation or its Parent,
the Administrator may, with the consent of the successor corporation and the
participant, provide for the consideration to be received upon the exercise of
the Option, for each Share of Optioned Stock subject to the Option, to be solely
common stock of the successor corporation or its Parent equal in fair market
value to the per share consideration received by holders of Common Stock in the
merger or sale of assets.
13. Date of Grant. The date of grant of an Option shall be, for all
purposes, the date on which the Administrator makes the determination granting
such Option, or such other later date as is determined by the Administrator.
Notice of the determination shall be provided to each Optionee within a
reasonable time after the date of such grant.
14. Amendment and Termination of the Plan.
(a) Amendment and Termination. The Administrator may at any time
amend, alter, suspend or terminate the Plan.
(b) Shareholder Approval. The Company shall obtain shareholder
approval of any Plan amendment to the extent necessary and desirable to comply
with Applicable Laws. Such shareholder approval, if required, shall be obtained
in such a manner and to such a degree as is required by the Applicable Laws.
(c) Effect of Amendment or Termination. No amendment, alteration,
suspension or termination of the Plan shall impair the rights of any Optionee,
unless mutually agreed otherwise between the Optionee and the Administrator,
which agreement must be in writing and signed by the Optionee and a
representative of the Administrator.
15. Conditions Upon Issuance of Shares.
(a) Legal Compliance. Shares shall not be issued pursuant to the
exercise of an Option unless the exercise of such Option and the issuance and
delivery of
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<PAGE>
such Shares shall comply with Applicable Laws, including, without limitation,
the requirements of any stock exchange or quotation system upon which the Shares
may then be listed or quoted, and shall be further subject to the approval of
counsel for the Company with respect to such compliance.
(b) Investment Representations. As a condition to the exercise of
an Option, the Company may require the person exercising such Option to
represent and warrant at the time of any such exercise that the Shares are being
purchased only for investment and without any present intention to sell or
distribute such Shares if, in the opinion of counsel for the Company, such a
representation is required under Applicable Laws.
16. Liability of Company.
(a) Inability to Obtain Authority. The inability of the Company
to obtain authority from any regulatory body having jurisdiction, which
authority is deemed by the Company's counsel to be necessary to the lawful
issuance and sale of any Shares hereunder, shall relieve the Company of any
liability in respect of the failure to issue or sell such Shares as to which
such requisite authority shall not have been obtained.
(b) Grants Exceeding Allotted Shares. If the Optioned Stock
covered by an Option exceeds, as of the date of grant, the number of Shares
which may be issued under the Plan without additional shareholder approval, such
Option shall be void with respect to such excess Optioned Stock, unless
shareholder approval of an amendment sufficiently increasing the number of
Shares subject to the Plan is timely obtained in accordance with Section 14(b)
of the Plan. In the event more than one Option is granted which exceeds, as of
the date of grant, the number of Shares which may be issued under the Plan
without additional shareholder approval, such Options shall be void as set forth
in the preceding sentence on a pro rata basis.
17. Reservation of Shares. The Company, during the term of this Plan,
will at all times reserve and keep available such number of Shares as shall be
sufficient to satisfy the requirements of the Plan.
-8-
EXHIBIT 5.1
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304-1050
Telephone (650) 493-9300 Facsimile (650) 493-6811
www.wsgr.com
November 17, 1997
Sun Microsystems, Inc.
901 San Antonio Road
Palo Alto, CA 94303
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to Sun Microsystems, Inc., a Delaware corporation
(the "Company" or "You") and have examined the Registration Statement on Form
S-8 (the "Registration Statement") to be filed by the Company with the
Securities and Exchange Commission on or about November 20, 1997 in connection
with the registration under the Securities Act of 1933, as amended, of 3,000,000
shares of the Company's Common Stock reserved for issuance under the 1997 French
Stock Option Plan (the "Plan"). As your legal counsel, we have examined the
proceedings taken and proposed to be taken in connection with the issuance and
sale of and payment of consideration for the shares to be issued under the Plan.
It is our opinion that, when issued and sold in compliance with applicable
prospectus delivery requirements and in the manner referred to in the Plan and
pursuant to the agreements which accompany the Plan, the shares will be legally
and validly issued, fully paid and non-assessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to the use of our name wherever appearing in the
Registration Statement and any amendments thereto.
Sincerely,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ WILSON SONSINI GOODRICH & ROSATI
EXHIBIT 23.2
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
on Form S-8 pertaining to the 1997 French Stock Option Plan of Sun Microsystems,
Inc., of our reports dated July 16, 1997, with respect to the consolidated
financial statements of Sun Microsystems, Inc., incorporated by reference in its
Annual Report (Form 10-K, as amended on Form 10-K/A) for the year ended June 30,
1997 and the related financial statement schedule included therein, filed with
the Securities and Exchange Commission.
ERNST & YOUNG LLP
/s/ ERNST & YOUNG LLP
November 19, 1997
Palo Alto, California
