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As filed with the Securities and Exchange Commission on October 20, 1997
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)
1997 EMPLOYEE STOCK INCENTIVE PLAN
(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 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 1,000,000 $14.3125 $14,312,500 $4,337.12
par value $.01
per share
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee, and
based upon the average of the high and low prices of the Common Stock on the
Nasdaq National Market on October 14, 1997 in accordance with Rules 457(c) and
457(h) of the Securities Act of 1933.
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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 1997 Employee Stock Incentive Plan of Shiva
Corporation, a Massachusetts corporation (the "Registrant").
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
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of such action, suit, or proceeding, upon receipt of an undertaking by 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.
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 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.
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(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 the question whether such
indemnification by it is against public policy as expressed in the Securities
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 16th
day of October, 1997.
SHIVA CORPORATION
By: /s/ Frank A. Ingari
--------------------------------
Frank A. Ingari
Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Shiva Corporation hereby
severally constitute Frank A. Ingari, James L. Zucco, Jr. 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.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Frank A. Ingari Chief Executive Officer October 16, 1997
- ---------------------- and Chairman of the Board
Frank A. Ingari (Principal Executive Officer)
/s/ Larry D. Whitman Vice President, Corporate October 16, 1997
- ---------------------- Controller (Principal
Larry D. Whitman Financial and Accounting
Officer)
/s/ David C. Cole Director October 16, 1997
- ----------------------
David C. Cole
/s/ Henry F. McCance Director October 16, 1997
- ----------------------
Henry F. McCance
Director October 16, 1997
- ----------------------
L. John Doerr
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ Paul C. O'Brien Director October 16, 1997
- ----------------------
Paul C. O'Brien
Director October 16, 1997
- ----------------------
Richard J. Egan
/s/ James L. Zucco Director October 16, 1997
- ----------------------
James L. Zucco
</TABLE>
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EXHIBIT INDEX
Exhibit
Number Description
- ------ -----------
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 LLP
23.1 Consent of Hale and Dorr LLP(included in Exhibit 5.1)
23.2 Consent of Price Waterhouse LLP
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.
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Exhibit 5.1
HALE AND DORR LLP
Counsellors at Law
60 State Street
Boston, Massachusetts 02109
October 20, 1997
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 1,000,000 shares (the "Shares") of Common Stock, $.01 par
value per share, of Shiva Corporation, a Massachusetts corporation ("Shiva"),
issuable under the 1997 Employee Stock Incentive Plan (the "Plan").
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 LLP
HALE AND DORR LLP
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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, 1997, appearing in the
1996 Annual Report to Shareholders of Shiva corporation, which is incorporated
by reference in Shiva Corporation's Annual Report on Form 10-K for the year
ended December 28, 1996. We also consent to the incorporation by reference of
our report on the financial Statement Schedule, which appears in such Annual
Report on Form 10-K.
PRICE WATERHOUSE LLP
/s/ Price Waterhouse LLP
Boston, Massachusetts
October 17, 1997
