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As filed with the Securities and Exchange Commission on September 11, 2000
Registration No. _____________
================================================================================
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 or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification Number)
901 San Antonio Road
Palo Alto, CA 94303
(Address, including zip code, of
Registrant's Principal Executive Offices)
GRIDWARE, INC. 2000 EQUITY INCENTIVE 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, including zip code, and telephone number,
including area code, of agent for service)
--------------------------
COPY TO:
Katharine A. Martin, Esq.
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
650 PAGE MILL ROAD
PALO ALTO, CALIFORNIA 94304
(650) 493-9300
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CALCULATION OF REGISTRATION FEE
=============================================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities to be Amount to be Offering Price Per Aggregate Offering Amount of
Registered Registered Share Price Registration Fee
-----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock of the Company to be 18,762 $2.92 (1) $54,785.04 $14.46
issued upon exercise of options
granted under the Gridware, Inc.
2000 Equity Incentive Plan
</TABLE>
_______________
(1) Calculated pursuant to Rule 457(h)(1) under the Securities Act of 1933, as
amended (the "Act"), based on an exercise price of $2.92.
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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"):
1. The Registrant's Annual Report on Form 10-K for the year ended
June 30, 1999, filed pursuant to Section 13(a) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
2. The Registrant's Quarterly Reports on Form 10-Q for the quarters
ended September 26, 1999, December 26, 1999, and March 26, 2000,
respectively, filed pursuant to Section 13(a) of the Exchange
Act, and an amended Quarterly Report on Form 10-Q for the quarter
ended December 26, 1999, as filed pursuant to Section 13 (a) and
(b) of the Exchange Act on February 16, 2000.
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. 8 relating to the Registrant's Common Share Purchase Rights
filed pursuant to Section 12(b) of the Exchange Act on April 27,
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
2
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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.
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 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.
--------
Number Document
------ ------------------------------------------------------------
4.1 Gridware, Inc. 2000 Equity Incentive Plan.
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation, with respect to the legality of the 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 (See page 6).
3
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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.
(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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant, Sun Microsystems, Inc., 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 September 11, 2000.
Sun Microsystems, Inc.
By: /s/ Michael E. Lehman
______________________________________
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.
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<CAPTION>
SIGNATURE TITLE DATE
------------------------------- ----------------------------------------------------- ------------------
<S> <C> <C>
/s/ Scott G. McNealy Chairman of the Board of Directors and Chief September 11, 2000
------------------------------- Executive Officer (Principal Executive Officer)
Scott G. McNealy
/s/ Michael E. Lehman Executive Vice President, Corporate Resources September 11, 2000
------------------------------- and Chief Financial Officer (Principal Financial
Michael E. Lehman Officer)
/s/ Michael L. Popov Vice President and Corporate Controller (Principal September 11, 2000
------------------------------- Accounting Officer)
Michael L. Popov
/s/ James L. Barksdale Director September 11, 2000
-------------------------------
James L. Barksdale
Director
-------------------------------
L. John Doerr
/s/ Judith L. Estrin Director September 11, 2000
-------------------------------
Judith L. Estrin
/s/ Robert J. Fisher Director September 11, 2000
-------------------------------
Robert J. Fisher
/s/ Robert L. Long Director September 11, 2000
-------------------------------
Robert L. Long
/s/ M. Kenneth Oshman Director September 11, 2000
-------------------------------
M. Kenneth Oshman
/s/ Naomi O. Seligman Director September 11, 2000
-------------------------------
Naomi O. Seligman
</TABLE>
6
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INDEX TO EXHIBITS
-----------------
Exhibit Number Description
-------------- --------------------------------------------------
4.1 Gridware, Inc. 2000 Equity Incentive Plan.
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation, with respect to the legality of the 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 (See page 6).
