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As filed with the Securities and Exchange Commission on October 5, 2000
Registration No. 333- __________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
THE SANTA CRUZ OPERATION, INC.
(Exact name of issuer as specified in its charter)
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<S> <C>
CALIFORNIA 94-2549086
(State of Incorporation) (I.R.S. Employer Identification Number)
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425 Encinal Street
Santa Cruz, CA 95061
(Address of principal executive offices)
1994 INCENTIVE STOCK OPTION PLAN
1993 DIRECTOR OPTION PLAN
1993 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
Steven M. Sabbath
Senior Vice President, Law & Corporate Affairs and Secretary
THE SANTA CRUZ OPERATION, INC.
425 Encinal Street
Santa Cruz, CA 95061-1900
(831) 425-7222
(Name, address, including zip code and telephone number, including area code, of
agent for service)
Copy to:
Barry E. Taylor, Esq.
WILSON SONSINI GOODRICH & ROSATI, P.C.
650 Page Mill Road
Palo Alto, California 94304
Calculation of Registration Fee
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===================================================================================================================================
Proposed Proposed
Title of Securities Amount to be Maximum Maximum Amount of
to be Registered Registered Offering Price Aggregate Registration
Per Share Offering Price Fee
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<S> <C> <C> <C> <C>
Common Stock, no par value
- 1994 Incentive Stock Option Plan 3,000,000 shares $2.4532(1) $7,359,600.00(1) $4,942.93
- 1993 Director Option Plan 250,000 shares $2.4532(1) $ 613,300.00(1) $ 161.91
- 1993 Employee Stock Purchase Plan 750,000 shares $2.0900(2) $1,567,500.00(2) $ 413.82
TOTAL 4,000,000 shares $9,540,400.00 $2,518.67
===================================================================================================================================
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(1) Estimated pursuant to Rule 457(h) solely for purposes of calculating the
registration fee on the basis of the average of the high and low sales
price of $2.4532 per share reported in the Nasdaq National Market on
October 4, 2000 (the "Market Price").
(2) Estimated pursuant to Rule 457(h) solely for purposes of calculating the
registration fee on the basis of 85% of the Market Price.
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REGISTRATION STATEMENT ON FORM S-8
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
---------------------------------------
The following documents and information previously filed with the
Securities and Exchange Commission by The Santa Cruz Operation, Inc. (the
"Company") are hereby incorporated by reference in this Registration Statement:
(a) The Company's Annual Report on Form 10-K for the year ended September
30, 1999 filed pursuant to Section 13 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
(b) The Company's Current Report on Form 8-K dated August 11, 2000.
(c) The Company's Quarterly Report on Form 10-Q for the quarter ended
December 31, 1999 filed pursuant to Section 13 of the Exchange Act.
(d) The Company's Quarterly Report on Form 10-Q for the quarter ended
31, 2000 filed pursuant to Section 13 of the Exchange Act.
(e) The Company's Quarterly Report on Form 10-Q for the quarter ended June
30, 2000 filed pursuant to Section 13 of the Exchange Act.
(f) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed April 1, 1993 pursuant to
Section 12(g) of the Exchange Act, including any amendment or report filed for
the purpose of updating such description.
(g) The description of the Company's Preferred Share Purchase Rights
contained in the Company's Registration Statement on Form 8-A filed September
18, 1997 pursuant to Section 12(g) of the Exchange Act and as subsequently
amended by the Form 8-A/A filed on March 3, 1999.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment which indicates that all securities registered have been sold or which
deregisters all securities then remaining unsold under this registration
statement, shall be deemed to be incorporated by reference herein 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.
II-1
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Item 6. Indemnification of Directors and Officers.
-----------------------------------------
Section 317 of the California General Corporation Law authorizes a court to
award, or a corporation's Board of Directors to grant, indemnity to directors
and officers in terms sufficiently broad to permit such indemnification under
certain circumstances for liabilities (including reimbursement for expenses
incurred) arising under the Securities Act of 1933, as amended (the "Securities
Act"). Further, the Company's Articles of Incorporation and Bylaws provide for
indemnification of certain agents to the maximum extent permitted by the
California General Corporation Law. Persons covered by this indemnification
include any current or former directors, officers, employees and other agents of
the Company, as well as persons who serve at the request of the Company as
directors, officers, employees or agents of another enterprise.
In addition, the Company has entered into contractual agreements with each
director and certain officers of the Company designated by the Board to
indemnify such individuals to the full extent permitted by law. These
Agreements also resolve certain procedural and substantive matters that are not
covered, or are covered in less detail, in the Bylaws or by the California
General Corporation Law.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not applicable.
Item 8. Exhibits.
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Exhibit
Number Description
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4.1 1994 Incentive Stock Option Plan, as amended.
4.2 1993 Director Option Plan, as amended.
4.3 1993 Employee Stock Purchase Plan, as amended.
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, PC as to legality of
securities being registered.
15.1 Consent of PricewaterhouseCoopers LLP.
15.2 Consent of KPMG LLP
24.1 Consent of Wilson Sonsini Goodrich & Rosati, PC (contained in
Exhibit 5.1).
25.1 Power of Attorney (see page II-4).
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II-2
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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 Company'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
Company pursuant to the foregoing provisions, or otherwise, the Company 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 Company of expenses
incurred or paid by a director, officer or controlling person of the Company 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 Company 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.
II-3
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SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Santa Cruz, State of California, on this 4th day of
October, 2000.
THE SANTA CRUZ OPERATION, INC.
/s/ Steven M. Sabbath
--------------------------------------------------
Steven M. Sabbath, Esq.
Senior Vice President, Law and Corporate Affairs,
and Secretary
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Douglas L. Michels and Steven M.
Sabbath, and each of them acting individually, as his attorney-in-fact, each
with full power of substitution, for him in any and all capacities, to sign any
and all 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
said attorney-in-fact, or his substitutes, may do or cause to be done by virtue
hereof.
II-4
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Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities on October 4, 2000:
Signature Title
--------- -----
/s/ Douglas L. Michels President, Chief Executive Officer and
-------------------------- Director
(Douglas L. Michels) (Principal Executive Officer)
/s/ Randy Bresee Senior Vice President
-------------------------- and Chief Financial Officer
(Randy Bresee)
/s/ Alok Mohan Chairman, Board of Directors
--------------------------
(Alok Mohan)
/s/ Ninian Eadie Director
--------------------------
(Ninian Eadie)
/s/ Ronald Lachman Director
--------------------------
(Ronald Lachman)
/s/ Robert M. McClure Director
--------------------------
(Robert M. McClure)
/s/ R. Duff Thompson Director
--------------------------
(R. Duff Thompson)
/s/ Gilbert P. Williamson Director
--------------------------
(Gilbert P. Williamson)
II-5
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THE SANTA CRUZ OPERATION, INC.
REGISTRATION STATEMENT ON FORM S-8
INDEX TO EXHIBITS
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Exhibit
Number Description
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4.1 1994 Incentive Stock Option Plan, as amended.
4.2 1993 Director Option Plan, as amended.
4.3 1993 Employee Stock Purchase Plan, as amended.
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, PC as to legality
of securities being registered.
15.1 Consent of PricewaterhouseCoopers LLP.
15.2 Consent of KPMG LLP.
24.1 Consent of Wilson Sonsini Goodrich & Rosati, PC (contained in
Exhibit 5.1).
25.1 Power of Attorney (see page II-4).
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