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As filed with the Securities and Exchange Commission on July 22, 1996
Registration No. 333-___
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 (IRS Employer Identification No.)
incorporation or organization)
28 Crosby Drive, Bedford, Massachusetts 01730
(Address of Principal Executive Offices) (Zip Code)
AIRSOFT, INC. 1993 STOCK PLAN
AND CERTAIN INDIVIDUAL STOCK OPTION AGREEMENTS
(Full title of the plan)
FRANK A. INGARI
SHIVA CORPORATION
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)
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
Proposed
Maximum Maximum Proposed
Title of Amount Offering Aggregate Amount of
Securities to to be Price Per Offering Registration
be Registered Registered Share (1) Price(1) Fee
- -----------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 119,076 $6.4108 $763,375.82 $263.23
par value $.01
per share
- ----------
<FN>
(1) Computed on the basis of the average exercise price of unexercised options
pursuant to Rule 457(h) of the Securities Act of 1933, as amended.
</TABLE>
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PART I. INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. Plan Information
----------------
The information required by Part I of Form S-8 is included in documents
sent or given to participants in the AirSoft, Inc. 1993 Stock Plan and the
persons who are parties to individual stock option agreements pursuant to which
shares of Common Stock of Shiva Corporation, a Massachusetts corporation (the
"Registrant"), are registered hereunder.
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT.
Item 3. Incorporation of Documents by Reference
---------------------------------------
The Registrant is subject to the informational and reporting requirements
of Sections 13(a), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and in accordance therewith files reports, proxy
statements and other information with the Securities and Exchange Commission.
The following documents, which are on file with the Securities and Exchange
Commission, are incorporated in this Registration Statement by reference:
(a) The Registrant's latest annual report filed pursuant to Section 13(a)
or 15(d) of the Exchange Act or either (1) the latest prospectus filed pursuant
to Rule 424(b) under the Securities Act of 1933, as amended (the "Securities
Act"), that contains audited financial statements for the Registrant's latest
fiscal year for which such financial statements have been filed or (2) the
Registrant's effective registration statement on Form 10 or 20-F filed under the
Exchange Act containing audited financial statements for the Registrant's latest
fiscal year.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the Registrant document
referred to in (a) above.
(c) The description of the Common Stock which is contained in a
registration statement filed under the Exchange Act, including any amendment or
report filed for the purpose of updating such description.
All documents subsequently filed by the Registrant 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 shares offered hereby have
been sold or which deregisters all shares then remaining unsold, shall be deemed
to be incorporated in this Registration Statement by reference and to be a part
hereof from the date of filing of such documents.
Item 4. Description of Securities
-------------------------
Not applicable.
Item 5. Interests of Named Experts and Officers
---------------------------------------
Not applicable.
Item 6. Indemnification
---------------
Article 6 of the Registrant's Restated Articles of Organization
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provides that no director of the Registrant shall be liable for any breach of
fiduciary duty, except to the extent that (1) the Massachusetts Corporation Law
prohibits the elimination or limitation of liability of directors for breach of
fiduciary duty, or (2) the act or omission occurred prior to the effective date
of the provision.
Section 2 of Article V of the Registrant's Restated By-Laws provides that
directors, officers, employees and other agents of the Registrant and any person
who, at the request of the corporation, serves as a director, officer, employee
or other agent of another organization in which the Registrant directly or
indirectly owns shares or of which it is a creditor shall be indemnified by the
Registrant against all cost, expense (including attorneys' fees), judgment,
liability and/or amount paid in settlement reasonably incurred by or imposed
upon him in connection with any action, suit or proceeding (including any
proceeding before any administrative or legislative body or agency) to which he
may be made a party or otherwise involved or with which he shall be threatened,
by reason of his being, or related to his status as a director, officer,
employee or other agent of the Registrant or of any other organization in which
the Registrant directly or indirectly owns shares or of which the Registrant is
a creditor, which other organization he serves or has served as director,
officer, employee or other agent at the request of the Registrant (whether or
not he continues to be an officer, director, employee or other agent of the
corporation or such other organization at the time such action, suit or
proceeding is brought or threatened), unless such indemnification is prohibited
by the Business Corporation Law of the Commonwealth of Massachusetts.
Chapter 156B of the General Laws of Massachusetts (the "Massachusetts
Business Corporation Law") prohibits the elimination or limitation of directors'
liability for any of the following:
(a) Breaches of the director's duty of loyalty to the Registrant
or its stockholders;
(b) Acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law;
(c) Acts covered by Sections 61 or 62 of the Massachusetts Business
Corporation Law (which relate generally to the liability of
directors for authorizing distributions to stockholders at a time
when the Registrant is insolvent or bankrupt and the liability of
directors for approving loans to officers or directors of the
Registrant which are not repaid and which were not approved or
ratified by a majority of disinterested directors or stockholders);
and
(d) Transactions from which the director derived an improper
personal benefit.
The Massachusetts Business Corporation Law authorizes Massachusetts
corporations to indemnify directors and officers for actions taken in good faith
and in a manner such person reasonably believed to be in the best interests of
the corporation.
The right of indemnification is in addition to any rights to which any
such person may otherwise be entitled and inures to the benefit of the executors
or administrators of each such person. The Registrant may pay the expenses
incurred by any such person in defending a civil or criminal action, suit or
proceeding in advance of the final disposition of such action, suit, or
proceeding, upon receipt of an undertaking by
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such person to repay such payment if it is determined that such person is not
entitled to indemnification hereunder. This section is subject to amendment or
repeal only by action of the stockholders.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
The Registrant maintains on behalf of its directors and officers insurance
protection against certain liabilities arising out of the discharge of their
duties. The Registrant also maintains insurance covering the Registrant against
indemnification payments to its directors and officers for certain liabilities.
However, to the extent such coverage is inadequate to cover claims against
directors or officers, the Registrant may be required pursuant to the By-Laws to
reimburse the directors or officers for the uninsured portion of such claims. In
such an event, the Registrant's indemnification obligations to its directors and
officers could have a material negative impact on the Registrant's financial
condition and on stockholder equity.
Item 7. Exemption from Registration Claimed
-----------------------------------
Not applicable.
Item 8. Exhibits
--------
The Exhibit Index immediately preceding the exhibits is attached hereto
and incorporated herein by reference.
Item 9. Undertakings
------------
1. The Registrant hereby undertakes:
(a) 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;
(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; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the Registration
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statement or any material change to such information in the Registration
Statement;
PROVIDED, HOWEVER, that paragraphs (i) and (ii) do not apply if the
Registration Statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section 13 or Section
15(d) of the Exchange Act that are incorporated by reference in the Registration
Statement.
(b) 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.
(c) 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.
2. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
3. Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions or otherwise, the Registrant has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction on the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by final adjudication
of such issue.
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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 Town of Bedford, Commonwealth of Massachusetts, on the 19th
day of July, 1996.
SHIVA CORPORATION
By: /s/ Frank A. Ingari
------------------------------
Frank A. Ingari
President and Chief
Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Shiva Corporation hereby
severally constitute Frank A. Ingari, Cynthia Deysher and M. Elizabeth Potthoff,
and each of them singly, our true and lawful attorneys with full power to them,
and each of them singly, to sign for us and in our names in the capacities
indicated below, the Registration Statement on Form S-8 filed herewith and any
and all subsequent amendments to said Registration Statement, and generally to
do all such things in our names and behalf in our capacities as officers and
directors to enable Shiva Corporation to comply with all requirements of the
Securities and Exchange Commission, hereby ratifying and confirming our
signatures as they may be signed by said attorneys, or any of them, to said
Registration Statement and any and all amendments thereto.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated.
Signature Title Date
- --------- ----- ----
/s/ Frank A. Ingari President, Chief Executive July 19, 1996
- ---------------------- Officer and Chairman of the
Frank A. Ingari Board (Principal Executive
Officer)
/s/ Cynthia Deysher Senior Vice President, July 19, 1996
- ---------------------- Finance and Administration
Cynthia Deysher and Chief Financial Officer
(Principal Financial and
Accounting Officer)
/s/ David C. Cole Director July 19, 1996
- ----------------------
David C. Cole
/s/ Henry F. McCance Director July 19, 1996
- ----------------------
Henry F. McCance
Director
- ----------------------
L. John Doerr
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/s/ Paul C. O'Brien Director July 19, 1996
- ----------------------
Paul C. O'Brien
Director
- ----------------------
Mitchell E. Kertzman
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EXHIBIT INDEX
Exhibit
Number Description Page
- ------ ----------- ----
4.1 (1) Restated Articles of Organization of the
Registrant, as amended -
4.2 (2) Restated By-Laws of the Registrant, as amended -
5.1 Opinion of Hale and Dorr 9
10.1 (3) Agreement and Plan of Merger dated as of
June 16, 1996 by and among Shiva Corporation,
a Massachusetts corporation, SV Acquisition
Corp., a Delaware corporation, and AirSoft,
Inc., a Delaware corporation -
23.1 Consent of Hale and Dorr (included in Exhibit 5.1) -
23.2 Consent of Price Waterhouse LLP 10
24.1 Power of Attorney (included on the signature page
of this Registration Statement) -
- ------------------
(1) Incorporated herein by reference from the Registrant's Registration
Statement on Form S-1, filed October 24, 1994 (Registration No. 33-
84884), as amended by Amendment No. 1, filed November 4, 1994; Amendment
No. 2, filed November 8, 1994; and Amendment No. 3, filed November 16,
1994.
(2) Incorporated by reference from the Registrant's Form 10-K, filed October 24,
1994.
(3) Incorporated by reference from the Registrant's Form 8-K, filed June 27,
1996, as amended bu Amendment No. 1 on Form 8-K/A filed July 9, 1996.
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Exhibit 5.1
HALE AND DORR
Counsellors at Law
60 State Street
Boston, Massachusetts 02109
July 22, 1996
Shiva Corporation
28 Crosby Drive
Bedford, Massachusetts 01730
Ladies and Gentlemen:
We have assisted in the preparation of a Registration Statement on Form
S-8 (the "Registration Statement") to be filed with the Securities and
Exchange Commission relating to 119,076 shares (the "Shares") of Common
Stock, $.01 par value per share, of Shiva Corporation, a Massachusetts
corporation ("Shiva"), issuable under the Airsoft, Inc. ("Airsoft") 1993
Stock Plan and certain individual stock option agreements of Airsoft assumed
by Shiva pursuant to the Agreement and Plan of Merger dated as of June 16,
1996 by and among Shiva, SV Acquisition Corp. and Airsoft (collectively, the
"Options").
We have examined the Restated Articles of Organization of the Company,
as amended, the Restated By-laws of the Company, as amended, and originals,
or copies certified to our satisfaction, of all pertinent records of the
meetings of the directors and stockholders of the Company, the Registration
Statement and such other documents relating to the Company as we have deemed
material for the purposes of this opinion.
In examination of the foregoing documents, we have assumed the
genuineness of all signatures and the authenticity of all documents submitted
to us as originals, the conformity to original documents of all documents
submitted to us as certified, photostatic or facsimile copies, and the
authenticity of the originals of any such documents.
Based upon and subject to the foregoing, we are of the opinion that the
Shares have been duly authorized for issuance, and the Shares, when issued
and paid for in accordance with the terms of the Options at a price per share
at least equal to the par value per share for such Shares, will be legally
issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission in connection with the Registration Statement.
Very truly yours,
/s/ Hale and Dorr
----------------------------
HALE AND DORR
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EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
----------------------------------
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated January 23, 1996, which appears on
page 42 of the 1995 Annual Report to Stockholders of Shiva Corporation, which
is incorporated by reference in Shiva Corporation's Annual Report on Form 10-K
for the year ended December 30, 1995. We also consent to the incorporation by
reference of our report on the Financial Statement Schedule, which appears on
page S-1 of such Annual Report on Form 10-K.
/s/ PRICE WATERHOUSE LLP
- -------------------------
PRICE WATERHOUSE LLP
Boston, Massachusetts
July 22, 1996
