<PAGE> 1
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------------
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
SHIVA CORPORATION
(Exact name of registrant as specified in its charter)
MASSACHUSETTS 04-2889151
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
28 CROSBY DRIVE
BEDFORD, MASSACHUSETTS 01730
(617) 270-8300
(Address of Principal Executive Offices) (Zip Code)
-----------------------------------------------
AMENDED AND RESTATED 1988 STOCK PLAN
(Full title of the plan)
-----------------------------------------------
FRANK A. INGARI,
PRESIDENT AND CHIEF EXECUTIVE OFFICER
28 CROSBY DRIVE
BEDFORD, MASSACHUSETTS 01730
(617) 270-8300
(Name and address including zip code and telephone number,
including area code, of agent for service)
-----------------------------------------------
Copy to:
LINDA DERENZO, ESQ.
TESTA, HURWITZ & THIBEAULT
HIGH STREET TOWER
125 HIGH STREET
BOSTON, MASSACHUSETTS 02110
(617) 248-7000
Approximate date of commencement of proposed sale to the public: As soon as
practicable after this Registration Statement becomes effective.
-----------------------------------------------
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. /X/
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<PAGE> 2
<TABLE>
CALCULATION OF REGISTRATION FEE
=========================================================================================
<CAPTION>
Proposed Proposed
Title of Amount Maximum Maximum Amount of
Securities to to be Offering Price Aggregate Registration
be Registered Registered(1) Per Share Offering Price Fee
- ------------- ------------- -------------- -------------- ------------
<S> <C> <C> <C> <C>
AMENDED AND RESTATED
1988 STOCK PLAN
Common Stock, par
value $.01 per share 769,300 shares $31.25(2) $ 24,040,625 $ 8,289.87
84,600 shares $35.375(2) $ 2,992,725 $ 1,031.97
44,278 shares $34.50(2) $ 1,527,591 $ 526.76
228,332 shares $31.625(2) $ 7,221,000 $ 2,490.00
1,016,830 shares $33.375(2) $ 33,936,701 $11,702.31
80,000 shares $41.625(2) $ 3,330,000 $ 1,148.28
183,100 shares $45.375(2) $ 8,308,163 $ 2,864.88
1,960,228 shares $69.375(3) $135,990,818 $46,893.39
---------
TOTAL: 4,366,668 shares $74,947.46
=========================================================================================
<FN>
(1) The information contained in this Registration Statement on Form S-8 has
been adjusted to give effect to a two-for-one stock split in the form of a
100% stock dividend paid on April 22, 1996 to the stockholders of record on
April 12, 1996.
(2) All such shares are issuable upon exercise of outstanding options with
fixed exercise prices. Pursuant to Regulation C, Rule 457(h)(l) under the
Securities Act of 1933, the aggregate offering price and the fee have been
computed upon the basis of the price at which the options may be exercised.
(3) The price of $69.375 per share, which is the average of the high and low
prices reported on the Nasdaq National Market on May 16, 1996, is set forth
solely for purposes of calculating the filing fee pursuant to Rule 457(c).
=========================================================================================
</TABLE>
This Registration Statement registers additional securities of the same
class as other securities for which the Registration Statement No. 33-86514 on
Form S-8, as filed with the Securities and Exchange Commission on November 18,
1994, relating to Shiva Corporation's Amended and Restated 1988 Stock Plan, 1994
Employee Stock Purchase Plan and 1994 Non-Employee Director Stock Option Plan is
effective. Pursuant to General Instruction E, the contents of the above-listed
Registration Statement are hereby incorporated by reference.
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 8. Exhibits
--------
Exhibit No. Description of Exhibit
----------- ----------------------
4.1 Restated Articles of Organization of the Registrant,
as amended.
4.2** Restated By-laws of the Registrant.
4.3*** Rights Agreement, dated as of September 29, 1995,
between the Registrant and American Stock Transfer &
Trust Company, which includes as Exhibit A, the Form of
Certificate of Vote of Directors Establishing a Series
of a Class of Stock, as Exhibit B, the Form of Rights
Certificate, and as Exhibit C, the Summary of Rights to
Purchase Preferred Stock.
4.4**** Amended and Restated 1988 Stock Plan of the Registrant,
as further amended.
4.5**** Specimen certificate representing the Common Stock.
5.1 Opinion of Testa, Hurwitz & Thibeault, LLP.
23.1 Consent of Testa, Hurwitz & Thibeault, LLP (included in
Exhibit 5.1).
23.2**** Consent of Price Waterhouse LLP.
24.1 Power of Attorney (included as part of the
signature page to this Registration Statement).
* Incorporated herein by reference to the Registrant's Registration Statement
on Form S-3 (File No. 333-602).
** Incorporated herein by reference to the Registrant's Registration Statement
on Form S-1 (File No. 33-84884).
*** Incorporated herein by reference to the Registrant's Registration Statement
on Form S-1 (File No. 33-97216).
**** Incorporated herein by reference to the Registrant's Annual Report on Form
10-K for the year ended December 30, 1995.
<PAGE> 4
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 Bedford, Commonwealth of Massachusetts, on this 20th
day of May, 1996.
SHIVA CORPORATION
By: /s/ Cynthia M. Deysher
--------------------------------
Cynthia M. Deysher
Senior Vice President, Finance
and Administration and Chief
Financial Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each such person whose signature
appears below constitutes and appoints, jointly and severally, Frank A. Ingari,
Cynthia M. Deysher and M. Elizabeth Potthoff, 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 (including
post-effective amendments), and to file the same, with all 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 date indicated.
SIGNATURE TITLE DATE
- --------- ----- ----
/s/ Frank A. Ingari President, Chief Executive May 20, 1996
- ---------------------- Officer and a Director
Frank A. Ingari (Principal Executive Officer)
/s/ Cynthia M.Deysher Senior Vice President, Finance and May 20, 1996
- ---------------------- Administration and Chief Financial
Cynthia M. Deysher Officer (Principal Financial and
Accounting Officer)
/s/ David C. Cole Director May 20, 1996
- ----------------------
David C. Cole
/s/ L. John Doerr Director May 20, 1996
- ----------------------
L. John Doerr
<PAGE> 5
/s/ Henry McCance Director May 20, 1996
- -------------------------
Henry McCance
/s/ Paul O'Brien Director May 13, 1996
- -------------------------
Paul O'Brien
/s/ Mitchell E. Kertzman Director May 20, 1996
- -------------------------
Mitchell E. Kertzman
<PAGE> 6
Exhibit Index
EXHIBIT NO. DESCRIPTION
- ----------- -----------
4.1 Restated Articles of Organization of the Registrant, as amended.
5.1 Opinion of Testa, Hurwitz & Thibeault, LLP
23.1 Consent of Testa, Hurwitz & Thibeault, LLP (included in 5.1)
24.1 Power of Attorney (included as part of the signature page to
this Registration Statement)
<PAGE> 1
Exhibit 4.1
<PAGE> 2
THE COMMONWEALTH OF MASSACHUSETTS
_________ MICHAEL JOSEPH CONNOLLY FEDERAL IDENTIFICATION
Examiner NO. 01-2889151
-------------------
Secretary of State
ONE ASHBURTON PLACE, BOSTON, MASS.02108
RESTATED ARTICLES OF ORGANIZATION
GENERAL LAWS, CHAPTER 156B, SECTION 74
This certificate must be submitted to the Secretary of the Commonwealth
within sixty days after the date of the vote of stockholders adopting the
restated articles of organization. The fee for filing this certificate is
prescribed by General Laws, Chapter 156B, Section 114. Make check payable to the
Commonwealth of Massachusetts.
----------
We, Frank A. Ingari , President and
M.Elizabeth Potthoff , Clerk of
Shiva Corporation
- --------------------------------------------------------------------------------
(Name of Corporation)
located at 63 Third Avenue, Burlington, MA 01803
---------------------------------------------------------------------
do hereby certify that the following restatement of the articles of organization
of the corporation was duly adopted at a meeting held on October 21, 1994, by
vote of
5,018,548 shares of Common out of 5,732,315 shares outstanding,
--------- ------------------ ---------
(Class of Stock)
1,932,464 shares of Class A Preferred out of 1,932,464 shares outstanding,
--------- ------------------ ---------
(Class of Stock)
703,608 shares of Class B Preferred out of 703,608 shares outstanding,
--------- ------------------ ---------
(Class of Stock)
(*See Continuation Page.)
being at least two-thirds of each class of stock outstanding and entitled to
vote and of each class or series of stock adversely affected thereby:
1. The name by which the corporation shall be known is: Shiva Corporation
2. The purposes for which the corporation is formed are as follows:
C / / To develop, manufacture and sell computer hardware and software
P / / and to do any and all acts and things permitted to be done by
M / / business corporations under the provisions of Chapter 156B,
RA / / as amended, of the General Business Laws of Massachusetts.
- ---------
P.C.
Note: If the space provided under any article or item on this form is
insufficient, additions shall be set forth on separate 8 1/2 x 11 sheets
of paper leaving a left hand margin of at least 1 inch for binding.
Additions to more than one article may be continued on a single sheet so
long as each article requiring each such addition is clearly indicated.
<PAGE> 3
<TABLE>
3. The total number of shares and the par value, if any, of each class of
stock which the corporation is authorized to issue is as follows:
<CAPTION>
WITHOUT PAR VALUE WITH PAR VALUE
----------------- --------------
CLASS OF STOCK NUMBER OF SHARES NUMBER OF SHARES PAR VALUE
- -------------- ---------------- ---------------- ---------
<S> <C> <C> <C>
Preferred ----- 1,000,000 $.01
Common ----- 25,000,000 $.01
</TABLE>
*4. If more than one class is authorized, a description of each of the
different classes of stock with, if any, the preferences, voting
powers, qualifications, special or relative rights or privileges as to
each class thereof and any series now established:
See Continuation Pages which are attached hereto and incorporated
herein by reference.
*5. The restrictions, if any, imposed by the articles of organization
upon the transfer of shares of stock of any class are as follows:
None.
*6. Other lawful provisions, if any, for the conduct and regulation of the
business and affairs of the corporation, for its voluntary
dissolution, or for limiting, defining, or regulating the powers of
the corporation, or of its directors or stockholders, or of any class
of stockholders:
See Continuation Pages which are attached hereto and incorporated
herein by reference.
* If there are no such provisions, state "None".
<PAGE> 4
SHIVA CORPORATION
Restated Articles of Organization
---------------------------------
Continuation Page
-----------------
2,140,126 shares of Class C Preferred out of 2,140,126 shares outstanding,
--------- ----------------- ---------
1,000,000 shares of Class D Preferred out of 1,000,000 shares outstanding.
--------- ----------------- ---------
<PAGE> 5
SHIVA CORPORATION
Restated Articles of Organization
---------------------------------
ARTICLE 4
---------
The total number of shares of all classes of stock which the Corporation
shall have authority to issue is 26,000,000 shares, consisting of the following
classes of stock: (A) 25,000,000 shares of Common Stock, $.01 par value per
share (the "Common Stock"), and (B) 1,000,000 shares of Preferred Stock, $.01
par value per share (the "Preferred Stock").
The designations, powers, preferences and relative, participating, optional
or other special rights, and the qualifications, limitations and restrictions
thereof in respect of each class of authorized capital stock of the Corporation
are as follows:
A. COMMON STOCK
------------
1. After the requirements with respect to preferential dividends on the
Preferred Stock shall have been met and after the Corporation shall have
complied with all the requirements, if any, with respect to the setting aside of
sums as sinking funds or redemption or purchase accounts, then and not otherwise
the holders of Common Stock shall be entitled to receive such dividends as may
be declared from time to time by the Board of Directors.
2. After distribution in full of the preferential amount to be distributed
to the holders of Preferred Stock in the event of voluntary or involuntary
liquidation, distribution or sale of assets, dissolution or winding up of the
Corporation, the holders of the Common Stock shall be entitled to receive all
the remaining assets of the Corporation, tangible or intangible, of whatever
kind available for distribution to the stockholders ratably in proportion to the
number of shares of Common Stock held by them respectively.
3. Except as may otherwise be required by law or the provisions of these
Restated Articles, or by the Board of Directors pursuant to authority granted in
these Restated Articles, each holder of Common Stock shall have one vote in
respect of each share of stock held by him in all matters voted upon by the
stockholders.
CONTINUATION SHEET 4.1
<PAGE> 6
B. UNDESIGNATED PREFERRED STOCK
----------------------------
Up to 1,000,000 shares of Preferred Stock may be issued in one or more
series at such time or times and for such consideration or considerations as the
Board of Directors may determine. Each series shall be so designated as to
distinguish the shares thereof from the shares of all other series and classes.
Except as to the relative preferences, powers, qualifications, rights and
privileges referred to below, in respect of any or all of which there may be
variations between different series, all shares of Preferred Stock shall be
identical. Different series of Preferred Stock shall not be construed to
constitute different classes of shares for the purpose of voting by classes.
The Board of Directors is expressly authorized, subject to the limitations
prescribed by law and the provisions of these Restated Articles of Organization,
to provide by adopting a vote or votes, a certificate of which shall be filed in
accordance with the Business Corporation Law of the Commonwealth of
Massachusetts, for the issuance of the Preferred Stock in one or more series,
each with such designations, preferences, voting powers, qualifications, special
or relative rights and privileges as shall be stated in the vote or votes
creating such series. The authority of the Board of Directors with respect to
each such series shall include without limitation of the foregoing the right to
determine and fix:
(1) The distinctive designation of such series and the number of shares
to constitute such series;
(2) The rate at which dividends on the shares of such series shall be
declared and paid, or set aside for payment, whether dividends at the rate so
determined shall be cumulative, and whether the shares of such series shall be
entitled to any participating or other dividends in addition to dividends at the
rate so determined, and if so on what terms;
(3) The right, if any, of the Corporation to redeem shares of the
particular series and, if redeemable, the price, terms and manner of such
redemption;
(4) The special and relative rights and preferences, if any, and the amount
or amounts per share, which the shares of such series shall be entitled to
receive upon any voluntary or involuntary liquidation, dissolution or winding up
of the Corporation;
(5) The terms and conditions, if any, upon which shares of such series
shall be convertible, into, or exchangeable for, shares of stock of any other
class or classes, including the price or prices or the rate or rates of
conversion or exchange and the terms of adjustment, if any;
CONTINUATION SHEET 4.2
<PAGE> 7
(6) The obligation, if any, of the Corporation to retire or purchase shares
of such series pursuant to a sinking fund or fund of a similar nature or
otherwise, and the terms and conditions of such obligation;
(7) Voting rights, if any;
(8) Limitations, if any, on the issuance of additional shares of such
series or any shares of any other series of Preferred Stock; and
(9) Such other preferences, powers, qualifications, special or relative
rights and privileges thereof as the Board of Directors may deem advisable and
are not inconsistent with law and the provisions of these Restated Articles.
CONTINUATION SHEET 4.3
<PAGE> 8
SHIVA CORPORATION
Restated Articles of Organization
---------------------------------
ARTICLE 6
---------
1. The Corporation eliminates the personal liability of each director to
the Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director notwithstanding any provision of law imposing such liability;
provided, however, that, to the extent provided by applicable law, this
provision shall not eliminate or limit the liability of a director (i) for any
breach of the director's duty of loyalty to the Corporation or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 61 or 62 or
successor provisions of the Massachusetts Business Corporation Law, or (iv) for
any transaction from which the director derived an improper personal benefit.
This provision shall not eliminate or limit the liability of a director of the
Corporation for any act or omission occurring prior to the date on which this
provision becomes effective. No amendment to or repeal of this provision shall
apply to or have any effect on the liability or alleged liability of any
director for or with respect to any acts or omissions of such director occurring
prior to such amendment or appeal.
2. Meetings of the stockholders of the Corporation may be held anywhere in
the United States.
3. The directors of the Corporation may make, amend or repeal the by-laws
in whole or in part, except with respect to any provision thereof which by law
or the by-laws requires action by the stockholders.
4. The whole or any part of the authorized but unissued shares of capital
stock of the Corporation may be issued at any time or from time to time by the
Board of Directors without further action by the stockholders.
5. The Corporation may become a partner in any business.
6. The Corporation, by vote of a majority of the stock outstanding and
entitled to vote thereon (or if there are two or more classes of stock entitled
to vote as separate classes, then by vote of a majority of each such class of
stock outstanding) may (i) authorize any amendment to its Restated
CONTINUATION SHEET 6.1
<PAGE> 9
Articles of Organization, (ii) authorize the sale, lease or exchange of all or
substantially all of the Corporation's property and assets, including its
goodwill and (iii) approve a merger or consolidation of the Corporation with or
into any other corporation, provided that such amendment, sale, lease, exchange,
merger or consolidation shall have been approved by the Board of Directors.
CONTINUATION SHEET 6.2
<PAGE> 10
*We further certify that the foregoing restated articles of organization
effect no amendments to the articles of organization of the corporation as
heretofore amended, except amendments to the following articles 2, 3, 4 and 6
---------------
(*If there are no such amendments, state "None".)
Briefly describe amendments in space below:
Article 2: Restate purpose clause.
---------
Article 3: Increase the number of authorized shares of Common Stock
--------- from 20,000,000 shares to 25,000,000 shares and decrease the
number of authorized shares of Preferred Stock from 6,000,000
shares to 1,000,000 shares.
Article 4: Delete all provisions relating to Class A, Class B, Class C
--------- and Class D Preferred Stock by restating Article 4 in its
entirety.
Article 6: Restate Article 6 in its entirety.
---------
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto signed
our names this 25th day of November in the year 1994.
/s/ Frank A. Ingari President
---------------------------------------------------------------
/s/ M. Elizabeth Potthoff Clerk
---------------------------------------------------------------
<PAGE> 11
THE COMMONWEALTH OF MASSACHUSETTS
RESTATED ARTICLES OF ORGANIZATION
(GENERAL LAWS, CHAPTER 156B, SECTION 74)
I hereby approve the within restated articles of
organization and, the filing fee in the amount of
$600.00 having been paid, said articles are deemed
to have been filed with me this 25th day of
November, 1994.
MICHAEL JOSEPH CONNOLLY
Secretary of State
TO BE FILLED IN BY CORPORATION
PHOTO COPY OF RESTATED ARTICLES OF ORGANIZATION TO BE SENT
TO: Debra A. Buxbaum,Esquire
------------------------------------
Testa, Hurwitz & Thibeault
------------------------------------
53 State Street
------------------------------------
Boston, MA 02109
------------------------------------
Telephone (617) 248-7000
------------------------------
COPY MAILED
<PAGE> 12
THE COMMONWEALTH OF MASSACHUSETTS
___________ WILLIAM FRANCIS GALVIN FEDERAL IDENTIFICATION
Examiner Secretary of the Commonwealth NO. 04-2889151
------------------
ONE ASHBURTON PLACE, BOSTON, MASS. 02108
CERTIFICATE OF VOTE OF DIRECTORS ESTABLISHING
A SERIES OF A CLASS OF STOCK
GENERAL LAWS, CHAPTER 156B, SECTION 26
----------
We, Cynthia Deysher , Vice President - Finance, and Administration
M. Elizabeth Potthoff , Clerk
Shiva Corporation
- --------------------------------------------------------------------------------
(Name of Corporation)
located at 63 Third Avenue, Burlington, MA 01803
--------------------------------------------------------------------
do hereby certify that at a meeting of the directors of the corporation held on
September 20, 1995, the following vote establishing and designating a series of
a class of stock and determining the relative rights and preferences thereof was
duly adopted:
VOTED: That pursuant to the authority conferred upon the Board of
Directors of the Corporation by the provisions of the Restated
Articles of Organization of the Corporation, the proper officers
of the Corporation are authorized to file with the Secretary of
the Commonwealth of Massachusetts a Certificate of Vote of
Directors establishing a series of shares of Preferred Stock,
$.01 par value per share, and that of the 1,000,000 authorized
and unissued shares of Preferred Stock, $.01 par value per share,
300,000 shares are hereby designated as Series A Junior
Participating Preferred Stock, the relative rights, preferences,
powers, privileges and restrictions, qualifications and
limitations granted to or imposed upon such series of shares to
be as follows:
- ----------
P.C.
NOTE: Votes for which the space provided above is not sufficient should be
set out on continuation sheets to be numbered 2A, 2B, etc.
Continuation sheets must have a left-hand margin 1 inch wide for
binding and shall be 8 1/2 x 11". Only one side should be used.
<PAGE> 13
[Continuation Pages Of Certificate Of Vote Of Directors establishing a
series of Preferred Stock designated Series A Junior Participating
Preferred Stock]
Section 1. DESIGNATION AND AMOUNT. The shares of such series shall be
designated as "Series A Junior Participating Preferred Stock" and the number of
shares constituting such series shall be 300,000. Such number of shares may be
increased or decreased by resolution of the Board of Directors; PROVIDED,
HOWEVER, that no decrease shall reduce the number of shares of Series A Junior
Participating Preferred Stock to a number less than the number of shares then
outstanding plus the number of shares reserved for issuance upon the exercise of
outstanding options, rights or warrants or upon the conversion of any
outstanding securities issued by the Corporation convertible into Series A
Junior Participating Preferred Stock.
Section 2. Dividends and Distributions.
---------------------------
(A) Subject to the rights of the holders of any shares of any series
of Preferred Stock ranking prior and superior to the shares of Series A Junior
Participating Preferred Stock with respect to dividends, the holders of shares
of Series A Junior Participating Preferred Stock, in preference to the holders
of Common Stock, $.01 par value per share (the "Common Stock"), of the
Corporation, and of any other junior stock, shall be entitled to receive, when,
as and if declared by the Board of Directors, out of funds of the Corporation
legally available for the payment of dividends, quarterly dividends payable in
cash on March 31, June 30, September 30 and December 31 in each year (each such
date being referred to herein as a "Quarterly Dividend Payment Date"),
commencing on the first Quarterly Dividend Payment Date after the first issuance
of a share or fraction of a share of Series A Junior Participating Preferred
Stock, in an amount per share (rounded to the nearest cent) equal to the greater
of (a) $1.00 or (b) subject to the provision for adjustment hereinafter set
forth, 100 times the aggregate per share amount of all cash dividends, and 100
times the aggregate per share amount (payable in kind) of all non-cash dividends
or other distributions, other than a dividend payable in shares of Common Stock
or a subdivision of the outstanding shares of Common Stock (by reclassification
or otherwise), declared on the Common Stock since the immediately preceding
Quarterly Dividend Payment Date, or, with respect to the first Quarterly
Dividend Payment Date, since the first issuance of any share or fraction of a
share of Series A Junior Participating Preferred Stock. In the event the
Corporation shall at any time declare or pay any dividend on Common Stock
payable in shares of Common Stock or effect a subdivision, combination or
consolidation of the outstanding Common Stock (by reclassification or otherwise
than by payment of a dividend in shares of Common Stock) into a greater or
lesser number of shares of Common Stock, then in each such case the amount to
which holders of shares of Series A Junior Participating Preferred Stock were
entitled immediately prior to such event under clause (b) of the preceding
sentence shall be adjusted by multiplying such amount by a fraction, the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or distribution on the
Series A Junior Participating Preferred Stock as provided in paragraph (A) above
immediately after it declares a dividend or distribution on the Common Stock
(other than a dividend payable in shares of Common Stock) and the Corporation
shall pay such dividend or distribution on the Series A Junior Participating
Preferred Stock before the dividend or distribution declared on the Common Stock
is paid or set apart; PROVIDED, HOWEVER, that, in the event no dividend or
distribution shall have been declared on the Common Stock during the
<PAGE> 14
period between any Quarterly Dividend Payment Date and the next subsequent
Quarterly Dividend Payment Date, a dividend of $1.00 per share on the Series A
Junior Participating Preferred Stock shall nevertheless be payable on such
subsequent Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Junior Participating Preferred Stock from the Quarterly
Dividend Payment Date next preceding the date of issue of such shares of Series
A Junior Participating Preferred Stock, unless the date of issue of such shares
is prior to the record date for the first Quarterly Dividend Payment Date, in
which case dividends on such shares shall begin to accrue from the date of issue
of such shares, or unless the date of issue is a Quarterly Dividend Payment Date
or is a date after the record date for the determination of holders of shares of
Series A Junior Participating Preferred Stock entitled to receive a quarterly
dividend and before such Quarterly Dividend Payment Date, in either of which
events such dividends shall begin to accrue and be cumulative from such
Quarterly Dividend Payment Date. Accrued but unpaid dividends shall not bear
interest. Dividends paid on the shares of Series A Junior Participating
Preferred Stock in an amount less than the total amount of such dividends at the
time accrued and payable on such shares shall be allocated pro rata on a
share-by-share basis among all such shares at the time outstanding. The Board of
Directors may fix a record date for the determination of holders of shares of
Series A Junior Participating Preferred Stock entitled to receive payment of a
dividend or distribution declared thereon, which record date shall be no more
than 60 days prior to the date fixed for the payment thereof.
Section 3. VOTING RIGHTS. The holders of shares of Series A Junior
Participating Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth,
each share of Series A Junior Participating Preferred Stock shall entitle the
holder thereof to 100 votes on all matters submitted to a vote of the
stockholders of the Corporation. In the event the Corporation shall at any time
declare or pay any dividend on Common Stock payable in shares of Common Stock or
effect a subdivision, combination of consolidation of the outstanding Common
Stock (by reclassification or otherwise than by payment of a dividend in shares
of Common Stock) into a greater or lesser number of shares of Common Stock, then
in each such case the number of votes per share to which holders of shares of
Series A Junior Participating Preferred Stock were entitled immediately prior to
such event shall be adjusted by multiplying such number by a fraction, the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
(B) Except as otherwise provided herein, by law, or in any other
Certificate of Vote of Directors establishing a series of Preferred Stock or any
similar stock, the holders of shares of Series A Junior Participating Preferred
Stock, the holders of shares of Common Stock and any other capital stock of the
Corporation having general voting rights shall vote together as one class on all
matters submitted to a vote of stockholders of the Corporation.
(C) (i) If at any time dividends on any Series A Junior Participating
Preferred Stock shall be in arrears in an amount equal to six (6) quarterly
dividends thereon, the occurrence of such contingency (herein called a
"preferred dividend default") shall mark the beginning of a period (herein
called a "default period") which shall extend until such time as all accrued and
unpaid dividends for all previous quarterly dividend periods and for the current
quarterly dividend period on all shares of Series A Junior Participating
Preferred Stock then outstanding shall have been declared and paid or set apart
for payment. Upon the occurrence of a preferred dividend default, the Board of
Directors shall take such action as may be necessary, including without
limitation amending the Corporation's bylaws, to increase
<PAGE> 15
the number of directors of the Corporation by two and all holders of Preferred
Stock (including holders of the Series A Junior Participating Preferred Stock)
with dividends in arrears in an amount equal to six (6) quarterly dividends
thereon, voting as a class, irrespective of series, shall have the right to
elect two (2) Directors until the full dividends accumulated on all outstanding
shares of the Series A Junior Participating Preferred Stock shall have been
declared and paid in full.
(ii) During any default period, such voting right of the holders
of Series A Junior Participating Preferred Stock may be exercised initially at a
special meeting called pursuant to subparagraph (iii) of this Section 3(C) or at
any annual meeting of stockholders, and thereafter at annual meetings of
stockholders, provided that neither such voting right nor the right of the
holders of any other series of Preferred Stock, if any, to increase, in certain
cases, the authorized number of Directors shall be exercised unless the holders
of ten percent (10%) in number of shares of Preferred Stock outstanding shall be
present in person or by proxy. The absence of a quorum of the holders of Common
Stock shall not affect the exercise by the holders of Preferred Stock of such
voting right. After the holders of the Preferred Stock shall have exercised
their right to elect Directors in any default period and during the continuance
of such period, the number of Directors shall not be increased or decreased
except by vote of the holders of Preferred Stock as herein provided or pursuant
to the rights of any equity securities ranking senior to or PARI PASSU with the
Series A Junior Participating Preferred Stock.
(iii) Upon the occurrence of a preferred dividend default, the
Board of Directors shall within twenty (20) Business Days after such default
amend the Corporation's bylaws to make provision for the election of directors
consistent with the provisions of this Section 3 and call a special meeting of
the holders of shares of the Series A Junior Participating Preferred Stock and
all other holders of Preferred Stock who are then entitled to participate in the
election of such directors for the purpose of electing the additional directors
provided by this Section 3. Notice of such meeting and of any annual meeting at
which holders of Preferred Stock are entitled to vote pursuant to this paragraph
(C)(iii) shall be given to each holder of record of Preferred Stock by mailing a
copy of such notice to him at his last address as the same appears on the books
of the Corporation. Such meeting shall be called for a time not earlier than 10
days and not later than 60 days after such order or request. Notwithstanding the
provisions of this paragraph (C)(iii), no such special meeting shall be called
during the period within 60 days immediately preceding the date fixed for the
next annual meeting of the stockholders.
(iv) In any default period, the holders of Common Stock, and
other classes of stock of the Corporation if applicable, shall continue to be
entitled to elect the whole number of Directors until the holders of Preferred
Stock shall have exercised their right to elect two (2) additional Directors
voting as a class, after the exercise of which right (x) the Directors so
elected by the holders of Preferred Stock shall continue in office until their
successors shall have been elected by such holders or until the expiration of
the default period, and (y) any vacancy in the Board of Directors shall be
filled by vote of a majority of the remaining Directors theretofore elected by
the holders of the class of stock which elected the Director whose office shall
have become vacant. References in this paragraph (C) to Directors elected by the
holders of a particular class of stock shall include Directors elected by such
Directors to fill vacancies as provided in clause (y) of the foregoing sentence.
(v) Immediately upon the expiration of a default period, (x) the
right of the holders of Preferred Stock as a class to elect Directors shall
cease, (y) the term of any Directors elected by the holders of Preferred Stock
as a class shall terminate, and (z) the number of Directors shall be such number
as was provided for in the Corporation's bylaws prior to any increase made
pursuant to the provisions of paragraph (C)(i) of this Section 3 (such number
being subject, however, to change thereafter in any manner provided by law or in
the Restated Articles of Organization or bylaws).
<PAGE> 16
(D) Except as set forth herein, or as otherwise provided by law,
holders of Series A Junior Participating Preferred Stock shall have no special
voting rights and their consent shall not be required (except to the extent they
are entitled to vote with holders of Common Stock as set forth herein) for
taking any corporate action.
Section 4. Certain Restrictions.
--------------------
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series A Junior Participating Preferred Stock as provided in
Section 2 are in arrears, thereafter and until all accrued and unpaid dividends
and distributions, whether or not declared, on shares of Series A Junior
Participating Preferred Stock outstanding shall have been paid in full, the
Corporation shall not:
(i) declare or pay dividends on or make any other distributions
on any shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Junior Participating
Preferred Stock;
(ii) declare or pay dividends on or make any other distributions
on any shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Junior Participating
Preferred Stock, except dividends paid ratably on the Series A Junior
Participating Preferred Stock and all such parity stock on which dividends are
payable or in arrears in proportion to the total amounts to which the holders of
all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration
shares of any stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Junior Participating Preferred Stock,
provided that the Corporation may at any time redeem, purchase or otherwise
acquire shares of any such junior stock in exchange for shares of any stock of
the Corporation ranking junior (either as to dividends or upon dissolution,
liquidation or winding up) to the Series A Junior Participating Preferred Stock;
(iv) purchase or otherwise acquire for consideration any shares
of Series A Junior Participating Preferred Stock, or any shares of stock ranking
on a parity with the Series A Junior Participating Preferred Stock, except in
accordance with a purchase offer made in writing or by publication (as
determined by the Board of Directors) to all holders of such shares upon such
terms as the Board of Directors, after consideration of the respective annual
dividend rates and other relative rights and preferences of the respective
series and classes, shall determine in good faith will result in fair and
equitable treatment among the respective series or classes.
(B) The Corporation shall not permit any subsidiary of the Corporation
to purchase or otherwise acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under paragraph (A) of this Section 4,
purchase or otherwise acquire such shares at such time and in such manner.
Section 5. REACQUIRED SHARES. Any shares of Series A Junior Participating
Preferred Stock purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and canceled promptly after the acquisition thereof.
All such shares shall upon their cancellation become authorized but unissued
shares of Preferred Stock and may be reissued as part of a new series of
Preferred Stock to be created by vote or votes of the Board of Directors,
subject to the conditions and restrictions on issuance set forth herein.
<PAGE> 17
Section 6. LIQUIDATION, DISSOLUTION OR WINDING UP. (A) Upon any liquidation
(voluntary or otherwise), dissolution or winding up of the Corporation, no
distribution shall be made to the holders of shares of stock ranking junior
(either as to dividends or upon liquidation, dissolution or winding up) to the
Series A Junior Participating Preferred Stock unless, prior thereto, the holders
of shares of Series A Junior Participating Preferred Stock shall have received
$100 per share, plus an amount equal to accrued and unpaid dividends and
distributions thereon, whether or not declared, to the date of such payment (the
"Series A Liquidation Preference"). Following the payment of the full amount of
the Series A Liquidation Preference, no additional distributions shall be made
to the holders of shares of Series A Junior Participating Preferred Stock
unless, prior thereto, the holders of shares of Common Stock shall have received
an amount per share (the "Common Adjustment") equal to the quotient obtained by
dividing (i) the Series A Liquidation Preference by (ii) 100 (as appropriately
adjusted as set forth in subparagraph C below to reflect such events as stock
splits, stock dividends and recapitalizations with respect to the Common Stock)
(such number in clause (ii), the "Adjustment Number"). Following the payment of
the full amount of the Series A Liquidation Preference and the Common Adjustment
in respect of all outstanding shares of Series A Junior Participating Preferred
Stock and Common Stock, respectively, holders of Series A Junior Participating
Preferred Stock and holders of shares of Common Stock shall receive their
ratable and proportionate share of the remaining assets to be distributed in the
ratio of the Adjustment Number to 1 with respect to such Preferred Stock and
Common Stock, on a per share basis, respectively.
(B) In the event, however, that there are not sufficient assets
available to permit payment in full of the Series A Liquidation Preference and
the liquidation preferences of all other series of Preferred Stock, if any,
which rank on a parity with the Series A Junior Participating Preferred Stock,
then such remaining assets shall be distributed ratably to the holders of such
parity shares in proportion to their respective liquidation preferences. In the
event, however, that there are not sufficient assets available to permit payment
in full of the Common Adjustment, then such remaining assets shall be
distributed ratably to the holders of Common Stock.
(C) In the event the Corporation shall at any time declare or pay any
dividend on Common Stock payable in shares of Common Stock, or effect a
subdivision, combination or consolidation of the outstanding Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock, then in each
such case the Adjustment Number in effect immediately prior to such event shall
be adjusted by multiplying such Adjustment Number by a fraction the numerator of
which is the number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
(D) Neither the consolidation, merger or other business combination of
the Corporation with or into any other corporation nor the sale, lease, exchange
or conveyance of all or any part of the property, assets or business of the
Corporation shall be deemed to be a liquidation, dissolution or winding up of
the Corporation for purposes of this Section 6.
Section 7. CONSOLIDATION, MERGER, ETC. In case the Corporation shall enter
into any consolidation, merger, combination or other transaction in which the
shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case the shares of
Series A Junior Participating Preferred Stock shall at the same time be
similarly exchanged or changed in an amount per share (subject to the provision
for adjustment hereinafter set forth) equal to 100 times the aggregate amount of
stock, securities, cash and/or any other property (payable in kind), as the case
may be, into which or for which each share of Common Stock is changed or
exchanged. In the event the
<PAGE> 18
Corporation shall at any time declare or pay any dividend on Common Stock
payable in shares of Common Stock, or effect a subdivision, combination or
consolidation of the outstanding Common Stock (by reclassification or otherwise
than by payment of a dividend in shares of Common Stock) into a greater or
lesser number of shares of Common Stock, then in each such case the amount set
forth in the preceding sentence with respect to the exchange or change of shares
of Series A Junior Participating Preferred Stock shall be adjusted by
multiplying such amount by a fraction the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
Section 8. NO REDEMPTION. The shares of Series A Junior Participating
Preferred Stock shall not be redeemable.
Section 9. RANKING. The Series A Junior Participating Preferred Stock shall
rank junior to all other series of the Corporation's Preferred Stock as to the
payment of dividends and the distribution of assets, unless the terms of any
such series shall provide otherwise.
Section 10. AMENDMENT. The Restated Articles of Organization of the
Corporation shall not be further amended in any manner which would materially
alter or change the powers, preferences or special rights of the Series A Junior
Participating Preferred Stock so as to affect them adversely without the
affirmative vote of the holders of at least seventy-five percent of the
outstanding shares of Series A Junior Participating Preferred Stock, voting
together as a single class.
Section 11. FRACTIONAL SHARES. Series A Junior Participating Preferred
Stock may be issued in fractions of a share which shall entitle the holder, in
proportion to such holders fractional shares, to exercise voting rights, receive
dividends, participate in distributions and to have the benefit of all other
rights of holders of Series A Junior Participating Preferred Stock.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
<PAGE> 19
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto signed
our names this 28th day of September in the year 1995.
/s/ Cynthia M. Deysher Vice President Finance
- ----------------------------------------------------- and Administration
/s/ M. Elizabeth Potthoff Clerk
- -----------------------------------------------------
<PAGE> 20
THE COMMONWEALTH OF MASSACHUSETTS
CERTIFICATE OF VOTE OF DIRECTORS ESTABLISHING
A SERIES OF A CLASS OF STOCK
(General Laws, Chapter 156B, Section 26)
I hereby approve the within certificate and, the
filing fee in the amount of $100.00 having been paid,
said certificate is hereby filed this 29th day of
September, 1995
WILLIAM FRANCIS GALVIN
Secretary of the Commonwealth
TO BE FILLED IN BY CORPORATION
PHOTO COPY OF CERTIFICATE TO BE SENT
TO: Debra A. Buxbaum, Esquire
---------------------------------------------
Testa, Hurwitz & Thibeault, LLP
---------------------------------------------
High Street Tower, 125 High Street
---------------------------------------------
Boston, MA 02110
---------------------------------------------
Telephone (617) 248-7000
----------------------------------------
<PAGE> 21
THE COMMONWEALTH OF MASSACHUSETTS
________ OFFICE OF THE MASSACHUSETTS SECRETARY OF STATE FEDERAL IDENTIFICATION
Examiner MICHAEL J. CONNOLLY, SECRETARY NO. 04-2889151
----------------
ONE ASHBURTON PLACE, BOSTON, MASSACHUSETTS 02108
ARTICLES OF AMENDMENT
GENERAL LAWS, CHAPTER 156B, SECTION 72
We, Cynthia M. Deysher , Vice President, and
M. Elizabeth Potthoff , Clerk
Shiva Corporation
- --------------------------------------------------------------------------------
(Name of Corporation)
located at 63 Third Avenue, Burlington, MA 01803
-------------------------------------------------------------------
do hereby certify that these ARTICLES OF AMENDMENT affecting Articles
NUMBERED: 3, 4
- --------------------------------------------------------------------------------
(Number those articles 1, 2, 3, 4, 5 and/or 6 being amended hereby)
of the Articles of Organization were duly adopted at a meeting held on November
30, 1995, by vote of:
8,509,297 shares of Common Stock out of 12,265,207 shares outstanding,
--------- ---------------- ------------
type, class & series, (if any)
shares of out of shares outstanding,
--------- ---------------- ------------
and
type, class & series, (if any)
shares of out of shares outstanding,
--------- ---------------- ------------
type, class & series, (if any)
CROSS OUT being at least a majority of each type, class or series
INAPPLICABLE outstanding and entitled to vote thereon: -(1)
CLAUSE
C / /
P / /
M / / (1) For amendments adopted pursuant to Chapter 156B, Section 70.
RA / / (2) For amendments adopted pursuant to Chapter 156B, Section 71.
- ------- Note: If the space provided under any Amendment or item on this form
P.C. is insufficient, additions shall be set forth on separate
8 1/2 x 11 sheets of paper leaving a left hand margin of at least
1 inch for binding. Additions to more than one Amendment may be
continued on a single sheet so long as each Amendment requiring each
such addition is clearly indicated.
<PAGE> 22
To CHANGE the number of shares and the par value (if any) of any type, class or
series of stock which the corporation is authorized to issue, fill in the
following:
The total presently authorized is:
WITHOUT PAR VALUE STOCKS WITH PAR VALUE STOCKS
- ---------------------------- ----------------------------------------
TYPE NUMBER OF SHARES TYPE NUMBER OF SHARES PAR VALUE
- ---------------------------- ----------------------------------------
Common: Common: 25,000,000 $.01
- ---------------------------- ----------------------------------------
Preferred: Preferred: 1,000,000 $.01
- ---------------------------- ----------------------------------------
CHANGE the total authorized to:
WITHOUT PAR VALUE STOCKS WITH PAR VALUE STOCKS
- ---------------------------- ----------------------------------------
TYPE NUMBER OF SHARES TYPE NUMBER OF SHARES PAR VALUE
- ---------------------------- ----------------------------------------
Common: Common: 50,000,000 $.01
- ---------------------------- ----------------------------------------
Preferred: Preferred: 1,000,000 $.01
- ---------------------------- ----------------------------------------
ARTICLE 4:
The first paragraph of Article 4 is hereby amended by deleting it in its
entirety and replacing such first paragraph with the following:
The total number of shares of all classes of stock which the Corporation
shall have authority to issue is 51,000,000 shares, consisting of the following
classes of stock: (A) 50,000,000 shares of Common Stock, $.01 par value per
share (the "Common Stock"), and (B) 1,000,000 shares of Preferred Stock, $.01
par value per share (the "Preferred Stock").
<PAGE> 23
The foregoing amendment will become effective when these articles of amendment
are filed in accordance with Chapter 156B, Section 6 of The General Laws unless
these articles specify, in accordance with the vote adopting the amendment, a
later effective date not more than thirty days after such filing, in which event
the amendment will become effective on such later date. LATER EFFECTIVE DATE:
N/A
- ----------------------
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereunto signed
our names this 30th day of November, in the year 1995.
/s/ Cynthia M. Deysher Vice President
- --------------------------------------------------------
Cynthia M. Deysher
/s/ M. Elizabeth Potthoff Clerk
- --------------------------------------------------------
M. Elizabeth Potthoff
<PAGE> 24
THE COMMONWEALTH OF MASSACHUSETTS
ARTICLES OF AMENDMENT
GENERAL LAWS, CHAPTER 156B, SECTION 72
====================================================
I hereby approve the within articles of
amendment and, the filing fee in the amount of
$____________having been paid, said articles are
deemed to have been filed with me this ____ day of
______________, 199__.
MICHAEL JOSEPH CONNOLLY
Secretary of State
TO BE FILLED IN BY CORPORATION
PHOTO COPY OF ARTICLES OF AMENDMENT TO BE SENT
TO: Linda DeRenzo, Esquire
------------------------------------------------
Testa, Hurwitz & Thibeault
------------------------------------------------
High Street Tower, 125 High Street
------------------------------------------------
Boston, MA 02110
------------------------------------------------
Telephone (617) 248-7000
-------------------------------------------
<PAGE> 25
FEDERAL IDENTIFICATION
NO. 04-2889151
Examiner THE COMMONWEALTH OF MASSACHUSETTS
- --------
WILLIAM FRANCIS GALVIN
Secretary of the Commonwealth
One Ashburton Place, Boston, Massachusetts 02108-1512
ARTICLES OF AMENDMENT
- -------- (General Laws, Chapter 156B, Section 72)
Name
Approved
We, Cynthia M. Deysher , Vice President,
and M. Elizabeth Potthoff , Clerk
of Shiva Corporation
---------------------------------------------------------------
(Exact name of Corporation)
located at 28 Crosby Drive, Bedford, MA 01730
---------------------------------------------------------
(Street address of corporation in Massachusetts)
certify that these Articles of Amendment affecting articles numbered:
3 & 4
----------------------------------------------------------------------
(Number those articles 1, 2, 3, 4, 5 and/or 6 being amended)
of the Articles of Organization were duly adopted at a meeting held
on May 15, 1996, by vote of:
9,528,702* shares of Common Stock out of 13,840,496* shares outstanding,
--------- ------------ -----------
(type, class & series, if any)
shares of out of shares outstanding,
--------- ------------ -----------
and (type, class & series, if any)
shares of out of shares outstanding,
--------- ------------ -----------
(type, class & series, if any)
C / /
P / /
M / / (1) being at least a majority of each type, class or series
R.A. / / outstanding and entitled to vote thereon:
(1) For amendments adopted pursuant to Chapter 156B, Section 70.
(2) For amendments adopted pursuant to Chapter 156B, Section 71.
- --------- NOTE: IF THE SPACE PROVIDED UNDER ANY AMENDMENT OR ITEM ON THIS FORM
P.C. IS INSUFFICIENT, ADDITIONS SHALL BE SET FORTH ON SEPARATE 8 1/2 X 11
SHEETS OF PAPER LEAVING A LEFT HAND MARGIN OF AT LEAST 1 INCH FOR
BINDING. ADDITIONS TO MORE THAN ONE AMENDMENT MAY BE CONTINUED ON A
SINGLE SHEET SO LONG AS EACH ARTICLE REQUIRING EACH SUCH ADDITION IS
CLEARLY INDICATED.
* These numbers have not been adjusted to give effect to a two-for-
one stock split in the form of a 100% stock dividend paid on April
22, 1996 to the stockholders of record on April 12, 1996.
<PAGE> 26
To change the number of shares and the par value (if any) of any type, class or
series of stock which the corporation is authorized to issue, fill in the
following:
The total presently authorized is:
WITHOUT PAR VALUE STOCKS WITH PAR VALUE STOCKS
- ---------------------------- ----------------------------------------
TYPE NUMBER OF SHARES TYPE NUMBER OF SHARES PAR VALUE
- ---------------------------- ----------------------------------------
Common: Common: 50,000,000 $.01
- ---------------------------- ----------------------------------------
Preferred: Preferred: 1,000,000 $.01
- ---------------------------- ----------------------------------------
CHANGE the total authorized to:
WITHOUT PAR VALUE STOCKS WITH PAR VALUE STOCKS
- ---------------------------- ----------------------------------------
TYPE NUMBER OF SHARES TYPE NUMBER OF SHARES PAR VALUE
- ---------------------------- ----------------------------------------
Common: Common: 100,000,000 $.01
- ---------------------------- ----------------------------------------
Preferred: Preferred: 1,000,000 $.01
- ---------------------------- ----------------------------------------
ARTICLE 4:
The first paragraph of Article 4 is hereby amended by deleting it in its
entirety and replacing such first paragraph with the following:
The total number of shares of all classes of stock which the Corporation
shall have authority to issue is 101,000,000 shares, consisting of the following
classes of stock: (A) 100,000,000 shares of Common Stock, $.01 par value per
share (the "Common Stock"), and (B) 1,000,000 shares of Preferred Stock, $.01
par value per share (the "Preferred Stock").
<PAGE> 27
The foregoing amendment(s) will become effective when these Articles of
Amendment are filed in accordance with General Laws, Chapter 156B, Section 6
unless these articles specify, in accordance with the vote adopting the
amendment, a later effective date not more than thirty days after such filing,
in which event the amendment will become effective on such later date.
LATER EFFECTIVE DATE: N/A .
------------------------------------------------
SIGNED UNDER THE PENALTIES OF PERJURY, this 15th day of May, 1996.
/s/ Cynthia M. Deysher Vice President,
- ----------------------------------------------------------------
Cynthia M. Deysher
/s/ M. Elizabeth Potthoff Clerk
- ----------------------------------------------------------------
M. Elizabeth Potthoff
<PAGE> 28
THE COMMONWEALTH OF MASSACHUSETTS
ARTICLES OF AMENDMENT
(GENERAL LAWS, CHAPTER 156B, SECTION 72)
====================================================
I hereby approve the within Articles of
Amendment and, the filing fee in the amount of
$____________having been paid, said articles are
deemed to have been filed with me this ____ day of
______________, 199__.
Effective date:
---------------------------------------
WILLIAM FRANCIS GALVIN
Secretary of the Commonwealth
TO BE FILLED IN BY CORPORATION
Photocopy of document to be sent to:
Edward D. Freedman, Esquire
------------------------------------------------
Testa, Hurwitz & Thibeault, LLP
------------------------------------------------
High Street Tower, 125 High Street
------------------------------------------------
Boston, MA 02110
------------------------------------------------
(617) 248-7000
------------------------------------------------
<PAGE> 29
Exhibit 5.1
<PAGE> 1
May 21, 1996
Shiva Corporation
28 Crosby Drive
Bedford, MA 01730
Re: Registration Statement on Form S-8
----------------------------------
Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by you
with the Securities and Exchange Commission on or about May 21, 1996 (the
"Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended, of 4,366,668 shares (the "Shares") of your
Common Stock under the 1988 Stock Plan (the "Plan"). As your counsel in
connection with this transaction, we have examined the proceedings taken and are
familiar with the proceedings proposed to be taken by you in connection with the
issuance and sale of the Shares pursuant to the Plan.
It is our opinion that, when issued and sold in the manner described in
the Plan and pursuant to the agreements which accompany each grant under the
Plan, the Shares will be legally and validly issued, fully-paid and
non-assessable.
We consent to the inclusion of this opinion as an exhibit to the
Registration Statement, and further consent to the use of our name wherever
appearing in the Registration Statement and any amendments thereto.
Very truly yours,
/s/ Testa, Hurwitz & Thibeault, LLP
TESTA, HURWITZ & THIBEAULT, LLP
