As filed with the Securities and Exchange Commission on May 23, 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 STOCK INCENTIVE PLAN
(Full title of the plan)
FRANK A. INGARI,
SHIVA CORPORATION
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)
CALCULATION OF REGISTRATION FEE
<TABLE>
<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 1,400,000 $12.0625 $16,887,500 $5,117.43
par value $.01
per share
<FN>
(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 May 16, 1997 in accordance with Rules 457(c) and
457(h) of the Securities Act of 1933.
</TABLE>
1
<PAGE>
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 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 there- with 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(1),
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 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.
<PAGE> 2
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 indemni-
fication is prohibited by the Business Corporation Law of the Commonwealth
of Massachusetts.
Chapter 156B of the General Laws of Massachusetts (the "Massachusetts Busi-
ness 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 corpora-
tions 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 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.
<PAGE> 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 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 Statement or any
material change to such information in the Registration Statement;
<PAGE> 4
provided, however, that paragraphs (i) and (ii) do not apply if the Registra-
tion 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 registra-
tion 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 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.
5
<PAGE>
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 require-
ments 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 23rd day of May,
1997.
SHIVA CORPORATION
/s/ Frank A. Ingari
By:----------------------------
Frank A. Ingari
Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Shiva Corporation hereby sever-
ally 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 capaci-
ties 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
- --------------------- Chief Executive Officer May 23, 1997
Frank A. Ingari and Chairman of the Board
Principal Executive Officer)
/s/ Lawrence Whitman
- --------------------- Vice President, Corporate May 23, 1997
Lawrence Whitman Controller (Principal
Financial and Accounting
Officer)
/s/ David C. Cole
- --------------------- Director May 23, 1997
David C. Cole
/s/ Henry F. McCance
- --------------------- Director May 23, 1997
Henry F. McCance
- --------------------- Director May 23, 1997
L. John Doerr
<PAGE> 6
/s/ Paul C. O'Brien
- --------------------- Director May 23, 1997
Paul C. O'Brien
/s/ James L. Zucco
- --------------------- Director May 23, 1997
James L. Zucco
7
<PAGE>
EXHIBIT INDEX
-------------
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------ -----------
<S> <C>
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)
- -------------------------------
<FN>
(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.
</TABLE>
8
<PAGE>
Exhibit 5.1
HALE AND DORR LLP
Counsellors at Law
60 State Street
Boston, Massachusetts 02109
May 22, 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 1,400,000 shares (the "Shares") of Common Stock, $.01
par value per share, of Shiva Corporation, a Massachusetts corporation
("Shiva"), issuable under the 1997 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 genuine-
ness 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
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
Boston, Massachusetts
May 22, 1997
