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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 20, 2000
REGISTRATION NO. ___________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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SUN MICROSYSTEMS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 94-2805249
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
901 SAN ANTONIO ROAD
PALO ALTO, CA 94303
(650) 960-1300
(ADDRESS AND TELEPHONE NUMBER OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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SUN MICROSYSTEMS, INC.
COBALT NETWORKS, INC. AMENDED AND RESTATED 1997 EMPLOYEE STOCK PLAN
COBALT NETWORKS, INC. 1999 DIRECTOR OPTION PLAN
1999 STOCK OPTION PLAN OF CHILI!SOFT, INC.
1998 STOCK OPTION PLAN OF CHILI!SOFT, INC.
1997 STOCK OPTION PLAN OF CHILI!SOFT, INC.
(FULL TITLE OF THE PLANS)
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SCOTT G. MCNEALY
CHIEF EXECUTIVE OFFICER
SUN MICROSYSTEMS, INC.
901 SAN ANTONIO ROAD
PALO ALTO, CA 94303
(650) 960-1300
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
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COPY TO:
KATHARINE A. MARTIN, ESQ.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304
(650) 493-9300
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Maximum Maximum
Amount Offering Aggregate Amount of
to be Price Per Offering Registration
Title of Securities to be Registered Registered Share (1) Price Fee
------------------------------------ ---------- --------- --------- ------------
<S> <C> <C> <C> <C>
Common Stock, par value $0.00067 per share,
pursuant to the Cobalt Networks, Inc. Amended
and Restated 1997 Employee Stock Plan 5,208,167 shares $28.91 $150,568,108 $39,750
Cobalt Networks, Inc. 1999 Director Option Plan 330,000 shares $28.91 $ 9,540,300 $ 2,519
1999 Stock Option Plan of Chili!Soft, Inc., 26,611 shares $28.91 $ 769,324 $ 203
1998 Stock Option Plan of Chili!Soft, Inc. and
1997 Stock Option Plan of Chili!Soft, Inc.
TOTAL 5,564,778 $160,877,732 $42,472
</TABLE>
(1) The Proposed Maximum Offering Price Per Share was estimated pursuant to Rule
457(h) under the Securities Act of 1933, as amended (the "Securities Act")
solely for the purpose of calculating the registration fee. The average of
the high and low price on December 19, 2000 was $28.91.
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PART II: INFORMATION REQUIRED IN 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"):
1. The Registrant's Annual Report on Form 10-K for the year ended June
30, 2000, 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 October 1, 2000, filed pursuant to Section 13(a) of the Exchange Act.
3. The Registrant's Registration Statement on Form 8-A relating to the
Registrant's Common Stock filed pursuant to Section 12(b) of the Exchange Act on
October 24, 1986, as amended.
4. The Registrant's Registration Statement on Form 8-A/A Amendment No. 9
relating to the Registrant's Common Share Purchase Rights filed pursuant to
Section 12(b) of the Exchange Act on December 20, 2000.
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 Registration 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
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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.
Section 11 of the Restated Certificate of Incorporation 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 Plans. 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.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DOCUMENTS
------- ---------
<S> <C>
4.1 Cobalt Networks, Inc. Amended and Restated 1997 Employee Stock Plan
4.2 Cobalt Networks, Inc. 1999 Director Option Plan
4.3 1999 Stock Option Plan of Chili!Soft, Inc.
4.4 1998 Stock Option Plan of Chili!Soft, Inc.
4.5 1997 Stock Option Plan of Chili!Soft, Inc.
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 at page II-3)
</TABLE>
ITEM 9. UNDERTAKINGS.
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 of 1933, 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.
(4) 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 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 the 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.
(5) 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 Registrant's Certificate of
Incorporation, as amended, Bylaws, indemnification agreements or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
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 Securities Act of 1933 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, 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 December, 2000.
SUN MICROSYSTEMS, INC.
By: /s/ Michael E. Lehman
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Michael E. Lehman, Executive Vice
President, Corporate Resources and
Chief Financial Officer
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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.
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.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ SCOTT G. MCNEALY Chairman of the Board of Directors, December 20, 2000
---------------------------------- and Chief Executive Officer
Scott G. McNealy (Principal Executive Officer)
/s/ MICHAEL E. LEHMAN Executive Vice President, Corporate December 20, 2000
---------------------------------- Resources and Chief Financial Officer
Michael E. Lehman (Principal Financial Officer)
/s/ MICHAEL L. POPOV Vice President, Corporate Controller December 20, 2000
---------------------------------- (Principal Accounting Officer)
Michael L. Popov
/s/ JAMES L. BARKSDALE Director December 20, 2000
----------------------------------
James L. Barksdale
/s/ L. JOHN DOERR Director December 20, 2000
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L. John Doerr
/s/ JUDITH L. ESTRIN Director December 20, 2000
----------------------------------
Judith L. Estrin
/s/ ROBERT J. FISHER Director December 20, 2000
----------------------------------
Robert J. Fisher
/s/ ROBERT L. LONG Director December 20, 2000
----------------------------------
Robert L. Long
/s/ M. KENNETH OSHMAN Director December 20, 2000
----------------------------------
M. Kenneth Oshman
/s/ NAOMI O. SELIGMAN Director December 20, 2000
----------------------------------
Naomi O. Seligman
</TABLE>
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SUN MICROSYSTEMS, INC.
REGISTRATION STATEMENT ON FORM S-8
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<S> <C>
4.1 Cobalt Networks, Inc. Amended and Restated 1997 Employee Stock Plan
4.2 Cobalt Networks, Inc. 1999 Director Option Plan
4.3 1999 Stock Option Plan of Chili!Soft, Inc.
4.4 1998 Stock Option Plan of Chili!Soft, Inc.
4.5 1997 Stock Option Plan of Chili!Soft, Inc.
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 at page II-3)
</TABLE>
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