<PAGE>
As filed with the Securities and Exchange Commission on June 30, 1998
Registration No. 333-_______
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_____________________
TRICORD SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 41-1590621
(State or otherjurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
_____________________
2905 NORTHWEST BOULEVARD, SUITE 20
PLYMOUTH, MINNESOTA 55441
(612) 557-9005
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
_____________________
TRICORD SYSTEMS, INC.
1998 STOCK INCENTIVE PLAN
TRICORD SYSTEMS, INC.
1998 NON-EMPLOYEE DIRECTOR STOCK PLAN
(Full title of the plans)
______________________
JOHN J. MITCHAM
PRESIDENT AND CHIEF EXECUTIVE OFFICER
TRICORD SYSTEMS, INC.
2905 NORTHWEST BOULEVARD, SUITE 20
PLYMOUTH, MINNESOTA 55441
(612) 557-9005
(Name and address, including zip code, and telephone
number, including area code, of agent for service)
_________________________
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
IMMEDIATELY UPON THE FILING OF THIS REGISTRATION STATEMENT
_____________________________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE PROPOSED MAXIMUM AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED(1) OFFERING PER SHARE(2) PRICE(2) REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value
$0.01 per share (3) 1,887,240 shares $1.16 $2,189,198.40 $650.00
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
</TABLE>
(1) In addition, pursuant to Rule 416 under the Securities Act of 1933, as
amended (the "Securities Act"), this Registration Statement includes
an indeterminate number of additional shares as may be issuable as a result
of anti-dilution provisions described in the Tricord Systems, Inc. 1998
Stock Incentive Plan and the Tricord Systems, Inc. 1998 Non-Employee
Director Stock Plan.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee and calculated pursuant to Rule 457(h) under the
Securities Act on the basis of the average between the high and low
reported sales prices of the Registrant's Common Stock on June 25, 1998
of $1.16 per share, as reported by the Nasdaq National Market.
(3) Each share of Common Stock includes a right to purchase a fractional share
of the Registrant's Series A Junior Preferred Stock, par value $.01 per
share (a "Right").
- -------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION REQUIRED
IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Tricord Systems, Inc. (the "Company" or
the "Registrant") (File No. 0-21366) with the Securities and Exchange
Commission (the "Commission") are incorporated by reference in this
Registration Statement: (1) Annual Report on Form 10-K for the year ended
December 31, 1997; (2) Quarterly Report on Form 10-Q for the quarter ended
March 31, 1998; (3) all other reports filed by the Company pursuant to Sections
13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), since December 31, 1997; (4) the description of the Company's
Common Stock contained in its Registration Statement on Form 8-A, including any
amendments or reports filed for the purpose of updating such description (File
No. 0-21366); and (5) the description of the Rights contained in the Company's
Registration Statement on Form 8-A (File No. 0-21366), including any amendments
or reports filed for the purpose of updating such description.
All documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 or 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 shares of Common Stock offered pursuant to this
Registration Statement have been sold or that deregisters all shares of Common
Stock 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.
The consolidated financial statements and financial statement schedule of
the Company incorporated by reference in this Registration Statement have been
audited by Coopers & Lybrand L.L.P., independent accountants, for the periods
indicated in such firm's reports thereon, which reports are included or
incorporated by reference in the Company's Annual Report on Form 10-K for the
year ended December 31, 1997. The consolidated financial statements and
financial statement schedule audited by Coopers & Lybrand L.L.P. have been
incorporated herein by reference in reliance on such firm's reports given upon
their authority as experts in accounting and auditing. To the extent that
Coopers & Lybrand L.L.P. audits and reports on the financial statements of the
Company issued at future dates, and consents to the use of their report
thereon, such financial statements will also be incorporated by reference in
the Registration Statement in reliance upon their report and said authority.
ITME 4. DESCRIPTION OF SECURITIES.
Not applicable; the Company's Common Stock, including the Rights, to be
offered pursuant to this Registration Statement has been registered under
Section 12 of the Exchange Act as described in Item 3 of this Part II.
2
<PAGE>
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Subsection (a) of Section 145 of the General Corporation Law of Delaware
("DGCL") empowers a corporation 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, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation), by
reason of the fact that such person is or was a director, officer, employee or
agent of the corporation or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation or enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in connection
with such action, suit or proceeding if such person acted in good faith and in
a manner such person 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 person's conduct was
unlawful.
Subsection (b) of Section 145 empowers a corporation to indemnify any
person who was or is a party or threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person acted in any of the capacities set forth above, against expenses
actually and reasonably incurred by such person in connection with the defense
or settlement of such action or suit if such person acted under similar
standards, except that no indemnification may be made in respect of any claim,
issue or matter as to which such person shall have been adjudged to be liable
to the corporation unless and only to the extent that the Court of Chancery or
the court in which such action or suit was brought shall determine that,
despite the adjudication of liability, such person is fairly and reasonably
entitled to indemnity for such expenses which the court shall deem proper.
Section 145 further provides that, to the extent a director or officer of
a corporation has been successful in the defense of any action, suit or
proceeding referred to in subsections (a) and (b) or in the defense of any
claim, issue or matter therein, such person shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred in
connection therewith; that indemnification provided for by Section 145 shall
not be deemed exclusive of any other rights to which the indemnified party may
be entitled; and that the scope of indemnification extends to directors,
officers, employees or agents of a constituent corporation absorbed in a
consolidation or merger and persons serving in that capacity at the request of
the constituent corporation for another. Section 145 also empowers the
corporation to purchase and maintain insurance on behalf of a director or
officer of the corporation against any liability asserted against or incurred
by such person in any such capacity or arising out of such person's status as
such, whether or not the corporation would have the power to indemnify such
person against such liabilities under Section 145, including liabilities under
the Securities Act.
3
<PAGE>
Article VIII of the Company's Bylaws and Article VIII of the Company's
Certificate of Incorporation provides (a) for indemnification of the Company's
officers and directors to the full extent allowed by Delaware law and (b) that
the Company's directors do not have personal liability to the Company or its
stockholders for monetary damages for any breach of their fiduciary duty as
directors, except (i) for a breach of the duty of loyalty, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or knowing
violation of the law, (iii) for willful or negligent violations of certain
provisions under the DGCL imposing certain requirements with respect to stock
repurchases, redemptions and dividends, or (iv) for any transaction from which
the director derived an improper personal benefit. Subject to these
exceptions, under Article VIII of the Bylaws and Article VIII of the
Certificate of Incorporation, directors do not have any personal liability to
the Company or its stockholders for any violation of their fiduciary duty.
The Company has directors and officers liability insurance which protects
each director or officer from certain claims and suits, including stockholder
derivative suits, even where the director may be determined to not be entitled
to indemnification under the DGCL and claims and suits arising under the
Securities Act. The policy may also afford coverage under circumstances where
the facts do not justify a finding that the director or officer acted in good
faith and in a manner that was in or not opposed to the best interests of the
Company.
The Company has entered into indemnification agreements (collectively,
the "Indemnification Agreements") with certain of its directors and executive
officers containing provisions that are in some respects broader than the
specific indemnification provisions contained in the DGCL. The Indemnification
Agreements require the Company, among other things, to indemnify such directors
and executive officers against certain liabilities that may arise by reason of
their status or service as directors or executive officers (other than
liabilities arising from certain claims initiated by the director or executive
officer, claims made not in good faith to enforce or interpret the
indemnification agreement and liabilities arising under Section 16(b) of the
Exchange Act) and to advance their expenses incurred as a result of any
proceeding against them as to which they could be indemnified. The Company
believes that the Indemnification Agreements are necessary to attract and
retain qualified persons as directors and executive officers.
The foregoing represents a summary of the general effect of the DGCL, the
Company's Bylaws and Certificate of Incorporation, the Company's directors and
officers liability insurance coverage and the Indemnification Agreements for
purposes of general description only.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable; no securities are to be re-offered or resold pursuant to
this Registration Statement.
ITEM 8. EXHIBITS.
4.1(1) Certificate of Incorporation.
4
<PAGE>
4.2(1) Bylaws.
4.3(1) Specimen form of the Company's Common Stock certificate.
4.4(2) Rights Agreement, dated as of October 25, 1994, between the
Company and Norwest Bank Minnesota, N.A.
5.1(3) Opinion and Consent of Oppenheimer Wolff & Donnelly LLP.
23.1 Consent of Oppenheimer Wolff & Donnelly LLP (included in
Exhibit 5.1).
23.2(3) Consent of Independent Accountants.
- -------------------------
(1) Incorporated by reference to the exhibits to the Company's Registration
Statement on Form S-1 (File No. 33-48733).
(2) Incorporated by reference to Exhibit 1 to the Company's Registration
Statement on Form 8-A (File No. 0-21366).
(3) Filed herewith electronically.
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:
(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.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b)
under the Securities Act of 1933 if, in the aggregate, the
changes in volume and price represent no more than a 20% change
in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement;
5
<PAGE>
(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 (1)(i) and (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
with or furnished to the Commission 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 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.
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 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.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant, 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 of 1933 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.
6
<PAGE>
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 Plymouth, State of Minnesota, on June 29, 1998.
TRICORD SYSTEMS, INC.
By: /s/ John J. Mitcham
------------------------------
John J. Mitcham
President, Chief Executive Officer and
Director (Principal Executive Officer
and Principal Financial Officer)
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons on June 29,
1998 in the capacities indicated.
Signature Title
- ------------ ------
/s/ Jeff A. Stewart Vice President and Controller
- ------------------------------ (Principal Accounting Officer)
Jeff A. Stewart
/s/ Yuval Almog Chairman of the Board, Director
- ------------------------------
Yuval Almog
/s/ Donald L. Lucas Director
- ------------------------------
Donald L. Lucas
/s/ Tom R. Dillon Director
- ------------------------------
Tom R. Dillon
7
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
ITEM NO. DESCRIPTION METHOD OF FILING
- -------- ----------- ------------------
<S> <C> <C>
4.1 Certificate of Incorporation. Incorporated by reference to
the exhibits to the Company's
Registration Statement on
Form S-1 (File No. 33-48733).
4.2 Bylaws. Incorporated by reference to
the exhibits to the
Company's Registration
Statement on Form S-1 (File
No. 33-48733).
4.3 Specimen form of the Incorporated by reference to
Company's Common Stock the exhibits to the
certificate. Company's Registration
Statement on Form S-1 (File
No. 33-48733).
4.4 Rights Agreement, dated Incorporated by reference to
as of October 25, 1994, Exhibit 1 to the Company's
between the Company and Registration Statement on
Norwest Bank Minnesota, Form 8-A (File No. 0-21366).
N.A.
5.1 Opinion and Consent of Filed herewith electronically.
Oppenheimer Wolff &
Donnelly LLP.
23.1 Consent of Oppenheimer Included in Exhibit 5.1.
Wolff & Donnelly LLP.
23.2 Consent of Independent Filed herewith electronically.
Accountants.
</TABLE>
8
<PAGE>
Exhibit 5.1
June 29, 1998
Tricord Systems, Inc.
2905 Northwest Boulevard, Suite 20
Plymouth, MN 55441
RE: REGISTRATION STATEMENT ON FORM S-8
1998 STOCK INCENTIVE PLAN AND
1998 NON-EMPLOYEE DIRECTOR STOCK PLAN
Ladies and Gentlemen:
We have acted as counsel to Tricord Systems, Inc., a Delaware corporation
(the "Company"), in connection with the registration by the Company of
1,887,240 shares (the "Shares") of its Common Stock, $0.01 par value, pursuant
to the Company's Registration Statement on Form S-8 for the Company's 1998
Stock Incentive Plan and the Company's 1998 Non-Employee Director Stock Plan
(collectively, the "Plans"), under which 1,537,240 and 350,000 shares,
respectively, are to be registered to be filed with the Securities and Exchange
Commission on June 29, 1998 (the "Registration Statement").
In acting as counsel for the Company and arriving at the opinions
expressed below, we have examined and relied upon originals or copies,
certified or otherwise identified to our satisfaction, of such records of the
Company, agreements and other instruments, certificates of officers and
representatives of the Company, certificates of public officials and other
documents as we have deemed necessary or appropriate as a basis for the
opinions expressed herein.
In connection with our examination, we have assumed the genuineness of all
signatures, the authenticity of all documents tendered to us as originals, the
legal capacity of natural persons and the conformity to original documents of
all documents submitted to us as certified or photostatic copies.
Based on the foregoing, and subject to the qualifications and limitations
set forth herein, it is our opinion that:
1. The Company has the corporate authority to issue the Shares in the
manner and under the terms set forth in the Registration Statement.
2. The Shares have been duly authorized and, when issued, delivered and
paid for in accordance with the Plans referred to in the Registration
Statement, will be validly issued, fully paid and nonassessable.
<PAGE>
Tricord Systems, Inc.
June 29, 1998
Page 2
We express no opinion with respect to laws other than the General
Corporate Laws of the State of Delaware and the federal laws of the United
States of America, and we assume no responsibility as to the applicability
thereto, or the effect thereon, of the laws of any other jurisdiction.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement and to its use as part of the Registration Statement.
We are furnishing this opinion to the Company solely for its benefit in
connection with the Registration Statement as described above. It is not to be
used, circulated, quoted or otherwise referred to for any other purpose.
Very truly yours,
OPPENHEIMER WOLFF & DONNELLY LLP
/s/ Oppenheimer Wolff & Donnelly LLP
--------------------------------------
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement on
Form S-8 of our reports dated February 26, 1998, on our audits of the
consolidated financial statements and financial statement schedule of Tricord
Systems, Inc. as of December 31, 1997 and 1996, and for the years ended
December 31, 1997, 1996 and 1995, which reports are included or incorporated by
reference in the 1997 Annual Report on Form 10-K of Tricord Systems, Inc. We
also consent to the reference to our Firm under the caption, "Incorporation of
Documents by Reference."
COOPERS & LYBRAND L.L.P.
/s/ Coopers & Lybrand L.L.P.
------------------------------------
Minneapolis, Minnesota
June 29, 1998
