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As filed with the Securities and Exchange Commission on July 14, 1994
Registration No. 33-______________
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FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
DELL COMPUTER CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 74-2487834
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
9505 ARBORETUM BOULEVARD
AUSTIN, TEXAS 78759-7299
(Address, including ZIP code, of registrant's
principal executive offices)
DELL COMPUTER CORPORATION 1993 STOCK OPTION PLAN
(Full title of the plan)
MICHAEL S. DELL
DELL COMPUTER CORPORATION
9505 ARBORETUM BOULEVARD
AUSTIN, TEXAS 78759-7299
(512) 338-4400
(Name, address, including ZIP code, and telephone number,
including area code, of agent for service)
Copies to:
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ROBERT L. KIMBALL RICHARD E. SALWEN
JOHNSON & WORTLEY, P.C. DELL COMPUTER CORPORATION
900 JACKSON STREET 9505 ARBORETUM BOULEVARD
DALLAS, TEXAS 75202 AUSTIN, TEXAS 78759-7299
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of maximum maximum
securities Amount to be offering price aggregate Amount of
to be registered registered per share (1) offering price (1) registration fee
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Common Stock 2,216,370 $ 26.94 $ 59,709,007.80 $ 20,589.46
Shares (2)
==================================================================================================================
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(1) Estimated solely for the purpose of calculating the registration fee
in accordance with Rule 457(h) promulgated under the Securities Act of
1933, as amended, based on the average of the high and low prices for
registrant's common stock reported in the NASDAQ National Market
System on July 7, 1994, pursuant to Rule 457(c).
(2) Pursuant to Rule 416, there are also being registered such additional
shares of Common Stock as may become issuable pursuant to the
antidilution provisions of the Dell Computer Corporation 1989 Stock
Option Plan.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The documents listed in (a) through (c) below are hereby incorporated
by reference into this registration statement on Form S-8 (this "Registration
Statement").
(a) The registrant's Annual Report on Form 10-K for the fiscal
year ended January 30, 1994.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 since the end of the
fiscal year covered by the Annual Report on Form 10-K referred
to in (a) above.
(c) The description of the registrant's common stock in Item 1 of
the registrant's Registration Statement on Form 8-A dated June
20, 1988, including any amendment or report filed for the
purpose of updating such description.
All documents subsequently filed by Dell Computer Corporation (the
"Company" or "Registrant") pursuant to Sections 13(a), 13(c), 14 and 15(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), after the
date of this Registration Statement and before the filing of a post-effective
amendment to the Registration Statement which indicates that all shares of
Common Stock, par value $.01 per share, offered hereunder have been sold or
that deregister all such shares then remaining unsold shall be deemed to be
incorporated herein by reference and to be a part hereof from the date of
filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not Required.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant's Certificate of Incorporation provides that no
director of the Registrant will be personally liable to the Registrant or any
of its stockholders for monetary damages arising from the director's breach of
fiduciary duty as a director. However, this does not apply with respect to any
action in which the director would be liable under Section 174 of Title 8 of
the General Corporation Law of Delaware nor does it apply with respect to any
liability in which the director (i) breached his duty of loyalty to the
Registrant; (ii) did not act in good faith or, in failing to act, did not act
in good faith; (iii) acted in a manner involving intentional misconduct or a
knowing violation of law or, in failing to act, shall have acted in a manner
involving intentional misconduct or a knowing violation of law; or (iv) derived
an improper personal benefit.
The Registrant's Certificate of Incorporation and Bylaws provide that
it will indemnify its officers and directors and former officers and directors
against any expenses, judgments or settlement payments sustained or paid by
such persons as a result of having acted as an officer or director of the
Registrant, or, at the request of the Registrant, as an officer, director,
agent or employee of another business entity. The Bylaws further provide that
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the Registrant may, by action of its Board of Directors, provide
indemnification to employees and agents of the Registrant, individually or as a
group, with the same scope and effect as the indemnification of directors and
officers.
The Registrant has entered into indemnity contracts with some of its
executive officers and directors. Each such Indemnity Agreement provides for
indemnification of officers and directors of the Registrant to the greatest
extent permitted by the General Corporation Law of Delaware and additionally
provides (i) that such persons shall be indemnified for amounts paid in
settlement of derivative actions; (ii) for advances of investigation and
litigation expenses subject to repayment if indemnification is disallowed;
(iii) that indemnification is available unless the Board of Directors or
independent legal counsel determines that the relevant standards were not
satisfied, with the Registrant bearing the burden of proving same in any suit
for indemnification; (iv) for partial indemnification where the officer or
director is not entitled to full indemnification; (v) that no claim or cause of
action may be asserted by or on behalf of the Registrant after the expiration
of two years from the date such persons cease to be directors and/or officers
with respect to claims against them in such capacities; and (vi) for payment to
such persons of expenses incurred in connection with the successful
prosecution, in whole or in part, of any amount not timely paid (generally
within 30 days of demand) by the Registrant. In addition, the Registrant
currently maintains directors and officers liability insurance.
Pursuant to the provisions of Section 145 of the General Corporation
Law of Delaware, every Delaware corporation has the power to 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 (other than an
action by or in the right of the corporation) by reason of the fact that he is
or was a director, officer, employee or agent of any corporation, partnership,
joint venture, trust or other enterprise, against any and all expenses,
judgments, fines and amounts paid in settlement and reasonably incurred in
connection with such action, suit or proceeding. The power to indemnify
applies only if such person acted in good faith and in a manner he reasonably
believed to be in the best interest, or not opposed to the best interest, of
the corporation and with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful.
The power to indemnify applies to actions brought by or in the right
of the corporation as well, but only to the extent of defense and settlement
expenses and not to any satisfaction of a judgment or settlement of the claim
itself, and with the further limitation that in such actions no indemnification
shall be made in the event of any adjudication of negligence or misconduct
unless the court, in its discretion, believes that in light of all the
circumstances indemnification should apply.
To the extent any of the persons referred to in the two immediately
preceding paragraphs is successful in the defense of the actions referred to
therein, such person is entitled pursuant to Section 145 to indemnification as
described above.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended (the "Securities Act"), may be permitted to
directors, officers or persons controlling the Registrant pursuant to the
foregoing provisions, the Registrant has been informed that in the opinion of
the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act and is therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable
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ITEM 8. EXHIBITS
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4.1 Certificate of Incorporation of Dell Computer Corporation, as amended (incorporated by reference to Exhibit 3.1 of
the Company's Annual Report on Form 10-K for the year ended February 2, 1992, Commission File No. 0-17017).
4.2 Certificate of Amendment to the Certificate of Incorporation of the Company (incorporated by reference to Exhibit
3.2 of the Company's Annual Report on Form 10-K for the year ended January 31, 1993, Commission File No. 0-17017).
4.3 Certificate of Stock Designation of the Company (incorporated by reference to Exhibit 3.3 of the Company's
Registration Statement on Form S-4 as filed with the Securities and Exchange Commission on October 1, 1993,
Registration No. 33-69680).
4.4 Certificate of Corrections dated April 27, 1994 (incorporated by reference to Exhibit 3.1 of the Company's Report
on form 10-Q for the Quarterly Period ended May 1, 1994, Commission file No. 0-17017).
4.5 Bylaws of the Company, as amended (incorporated by reference to Exhibit 3.2 of the Company's Annual Report on Form
10-K for the year ended February 2, 1992, Commission File No. 0-17017).
4.6 Dell Computer Corporation 1993 Stock Option Plan (incorporated by reference to Exhibit 10.36 of the Company's
Registration Statement on Form S-4 as filed with the Securities and Exchange Commission on October 1, 1993,
Registration Statement No. 33-69680).
4.7 Form of Incentive Stock Option Agreement and Nonstatutory Stock Option Agreement under the 1993 Stock Option Plan
(incorporated by reference to Exhibit 10.37 of the Company's Registration Statement on Form S-4 as filed with the
Securities and Exchange Commission on October 1, 1993, Registration Statement No. 33-69680).
5 Opinion of Johnson & Wortley, P.C.
23.1 Consent of Price Waterhouse.
23.2 Consent of Johnson & Wortley, P.C. (included in Exhibit 5)
24 Power of Attorney of officers and directors of the Company (included on signature page).
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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:
(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 the 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 the Registration Statement;
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(iii) 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;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
Registration Statement is on Form S-3, Form S-8 or Form F-3 and 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 the Registration Statement.
2. That, for any 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 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act 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 Securities and Exchange
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 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 Austin, State of Texas, on July 8, 1994.
DELL COMPUTER CORPORATION
(Registrant)
By: /s/ MICHAEL S. DELL
Michael S. Dell
Chairman of the Board and
Chief Executive Officer
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. Each person whose signature appears
below hereby authorizes and appoints Michael S. Dell and Thomas J. Meredith as
his or her attorney-in-fact to sign on his or her behalf individually and in
the capacity stated below all amendments and to this Registration Statement as
that attorney-in-fact may deem necessary or appropriate.
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/s/ MICHAEL S. DELL July 8, 1994
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Michael S. Dell
Chairman of the Board, Chief Executive Officer and Director
/s/ THOMAS J. MEREDITH July 8, 1994
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Thomas J. Meredith
Chief Financial Officer
(principal financial officer)
/s/ DONALD J. CARTY July 8, 1994
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Donald J. Carty
Director
/s/ PAUL O. HIRSCHBIEL, JR. July 8, 1994
- --------------------------------------------------
Paul O. Hirschbiel, Jr.
Director
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/s/ MICHAEL H. JORDAN July 8, 1994
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Michael H. Jordan
Director
/s/ GEORGE KOZMETSKY July 8, 1994
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George Kozmetsky
Director
/s/ THOMAS W. LUCE III July 8, 1994
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Thomas W. Luce III
Director
/s/ CLAUDINE B. MALONE July 8, 1994
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Claudine B. Malone
Director
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EXHIBIT INDEX
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Sequentially
Exhibit Numbered
No. Description of Exhibits Page
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4.1 Certificate of Incorporation of Dell Computer Corporation, as amended (incorporated by reference to Exhibit 3.1 of
the Company's Annual Report on Form 10-K for the year ended February 2, 1992, Commission File No. 0-17017).
4.2 Certificate of Amendment to the Certificate of Incorporation of the Company (incorporated by reference to Exhibit
3.2 of the Company's Annual Report on Form 10-K for the year ended January 31, 1993, Commission File No. 0-17017).
4.3 Certificate of Stock Designation of the Company (incorporated by reference to Exhibit 3.3 of the Company's
Registration Statement on Form S-4 as filed with the Securities and Exchange Commission on October 1, 1993,
Registration No. 33-69680).
4.4 Certificate of Corrections dated April 27, 1994 (incorporated by reference to Exhibit 3.1 of the Company's Report
on form 10-Q for the Quarterly Period ended May 1, 1994, Commission file No. 0-17017).
4.5 Bylaws of the Company, as amended (incorporated by reference to Exhibit 3.2 of the Company's Annual Report on Form
10-K for the year ended February 2, 1992, Commission File No. 0-17017).
4.6 Dell Computer Corporation 1993 Stock Option Plan (incorporated by reference to Exhibit 10.36 of the Company's
Registration Statement on Form S-4 as filed with the Securities and Exchange Commission on October 1, 1993,
Registration Statement No. 33-69680).
4.7 Form of Incentive Stock Option Agreement and Nonstatutory Stock Option Agreement under the 1993 Stock Option Plan
(incorporated by reference to Exhibit 10.37 of the Company's Registration Statement on Form S-4 as filed with the
Securities and Exchange Commission on October 1, 1993, Registration Statement No. 33-69680).
5* Opinion of Johnson & Wortley, P.C.
23.1* Consent of Price Waterhouse.
23.2 Consent of Johnson & Wortley, P.C. (included in Exhibit 5)
24 Power of Attorney of officers and directors of the Company (included on signature page).
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_________________________
* Filed herewith.
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EXHIBIT 5
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JOHNSON & WORTLEY
A Professional Corporation
Fax: 214/977-9004 ATTORNEYS AND COUNSELORS Other Locations:
Metro: 214/263-6764 Austin, Texas
900 Jackson Street -- Suite 100 Houston, Texas
Writer's Direct Dial Number Dallas, Texas 75202-4499 Washington, D.C.
214/977-9000
(214) 977-9611
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July 14, 1994
Dell Computer Corporation
9505 Arboretum Boulevard
Austin, Texas 78759-7299
Dear Sirs:
This firm has acted as counsel to Dell Computer Corporation, a
Delaware corporation ("the Company"), in connection with the registration under
the Securities Act of 1933, as amended (the "Securities Act"), of the offer and
sale of an aggregate of 2,216,370 shares of common stock, par value $.01 per
share, of the Company (the "Common Stock"), as that number may be adjusted from
time to time pursuant to the provisions of the Company's 1993 Stock Option Plan
(the "Plan"), that may be issued pursuant to stock options granted under the
Plan. Unless otherwise defined herein, terms having their initial letters
capitalized have the meanings ascribed to them in the Plan.
In reaching the opinion set forth herein, this firm has reviewed such
agreements, certificates of public officials and officers of the Company,
records, documents, and matters of law that this firm deemed relevant.
Based upon and subject to the foregoing and subject further to the
assumptions, exceptions, and qualifications hereinafter stated, this firm
expresses the opinion that each share of Common Stock, when issued in
accordance with the terms of the Plan and the relevant award Agreement, will be
legally issued, fully paid and non-assessable.
The opinion expressed above is subject to the following assumptions,
exceptions, and qualifications:
1. This firm has assumed that (i) all information contained in
all documents reviewed by this firm is true and correct, (ii) all signatures on
all documents reviewed by this firm are genuine, (iii) all documents submitted
to this firm as originals are true and complete, (iv) all documents submitted
to us as copies are true and complete copies of the originals thereof, (v) each
natural person signing any document reviewed by this firm had the legal
capacity to do so, and (vi) each person signing in a representative capacity
any document reviewed by this firm had authority to sign in such capacity.
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2. This firm has also assumed that the Company will receive the
full amount and type of consideration (as specified in the Plan and each
applicable award agreement) for each of the shares of Common Stock or will have
received that consideration upon the issuance of Common Stock pursuant to the
applicable award agreement, that such consideration will be in cash, personal
property, or services already performed, that such consideration will equal or
exceed the par value per share of Common Stock, that appropriate certificates
evidencing such shares will be properly executed upon such issuance, and that
each grant of an award pursuant to the Plan will be duly authorized.
The opinion expressed above is limited to the laws of the State of
Texas, the Delaware General Corporation Law, and the federal laws of the United
States of America. You should be aware that this firm is not admitted to the
practice of law in the State of Delaware and the opinion herein with respect to
the Delaware General Corporation law is based solely upon the unofficial
compilation thereof contained in the Prentice-Hall Information Services
Corporation Statutes as of the date hereof.
This opinion may be filed as an exhibit to the Registration Statement.
In giving this consent, we do not thereby admit that we come into the category
of persons whose consent is required under Section 7 of the Securities Act or
the rules and regulations of the Securities and Exchange Commission promulgated
thereunder.
Very truly yours,
JOHNSON & WORTLEY
A Professional Corporation
By: /s/ JIM A. WATSON
For the Corporation
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EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration
Statement on Form S-8 pertaining to the Dell Computer Corporation 1993 Stock
Option Plan of our report dated March 2, 1994, with respect to the consolidated
financial statements and schedules of Dell Computer Corporation included in its
Annual Report on Form 10-K for the year ended January 30, 1994, filed with the
Securities and Exchange Commission.
/s/ PRICE WATERHOUSE
PRICE WATERHOUSE
Austin, Texas
July 8, 1994
