As filed with the Securities and Exchange Commission on September 29, 1998
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 issuer as specified in its charter)
Massachusetts 04-2889151
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
28 Crosby Drive, Bedford, Massachusetts 01730
(Address of Principal Executive Offices) (Zip Code)
1997 EMPLOYEE STOCK INCENTIVE PLAN
(Full title of the plan)
James L. Zucco, Jr.
President and Chief Executive Officer
Shiva Corporation
28 Crosby Drive
Bedford, MA 01730
(Name and address of agent for service)
(781) 687-1000
(Telephone number, including area code, of agent for service)
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
- -----------------------------------------------------------------------------
Proposed
Title of Amount Maximum Proposed Amount of
Securities to be to be Offering Price Maximum Aggregate Registration
Registered Registered Per Share Offering Price Fee
- -----------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock
par value $.01
per share 1,000,000 $4.3125 (1) $4,312,500.00 (1) $1,272.19
----------- ----------------- ---------
- -----------------------------------------------------------------------------
<FN>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rules 457(c) and 457(h) of the Securities act of 1933,
as amended, and based upon the average of the high and low prices
of the Common Stock as reported on the Nasdaq National Market on
September 22, 1998.
</TABLE>
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<PAGE>
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
----------------
The information required by Part I is included in documents sent or
given to participants in the 1997 Employee Stock Incentive Plan of Shiva
Corporation, a Massachusetts corporation (the "Registrant"), pursuant to
Rule 428(b)(1) of the Securities Act of 1933, as amended (the "Securities
Act").
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
-----------------------------------------------
The Registrant is subject to the informational and reporting require-
ments 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 "Commission"). The following documents, which
are filed with the 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 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 of Common Stock
offered hereby have been sold or which deregisters all shares of Common
Stock then remaining unsold, shall be deemed to be incorporated by reference
herein and to be part hereof from the date of the filing of such documents.
Any statement contained in a document incorporated or deemed to be incor-
porated by reference herein shall be deemed to be modified or superseded
for the purposes of this Registration Statement to the extent a statement
contained herein or in any other subsequently filed document which also
is or is deemed to be incorporated by reference herein modifies or super-
sedes such statement. Any statement so modified or superseded shall not
be deemed, except as so modified or superseded, to constitute a part of
this Registration Statement.
Item 4. Description of Securities.
-------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel.
--------------------------------------
Not applicable.
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Item 6. Indemnification.
---------------
Article 6 of the Registrant's Restated Articles of Organization, as
amended, 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, as amended
(the "By-Laws"), provides that directors, officers, employees and other
agents of the Registrant and any person who, at the request of the corpora-
tion, 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 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.
3
<PAGE>
The Registrant maintains on behalf of its directors and officers
insurance protection against certain liabilities arising out of the dis-
charge 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
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. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which
was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective 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 informa-
tion 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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<PAGE>
(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 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 in 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 other-
wise, the Registrant has been advised that in the opinion of the 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 the 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 requirements for filing on Form S-8 and has duly caused this Registra-
ion Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Town of Bedford, Commonwealth of Massachusetts on the 29th
day of September, 1998.
SHIVA CORPORATION
By: /s/ James L. Zucco, Jr.
-----------------------------------------
James L. Zucco, Jr.
President and Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Shiva Corporation hereby
severally constitute James L. Zucco, Jr., Robert P. Cirrone 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
indicated below and on the 29th day of September, 1998.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ James L. Zucco, Jr. Chief Executive Officer September 29, 1998
- ----------------------- and Chairman of the Board
James L. Zucco, Jr. (Pricipal Executive Officer)
/s/ Robert P. Cirrone Senior Vice President, Finance September 29, 1998
- ----------------------- and Administration, and Chief
Robert P. Cirrone Financial Officer (Principal
Financial and Accounting Officer)
/s/ Richard J. Egan Director September 29, 1998
- -----------------------
Richard J. Egan
/s/ Michael E. Lehman Director September 29, 1998
- -----------------------
Michael E. Lehman
/s/ Paul C. O'Brien Director September 29, 1998
- -----------------------
Paul C. O'Brien
6
<PAGE>
/s/ Carol Herod Sharer Director September 29, 1998
- -----------------------
Carol Herod Sharer
/s/ David B. Yoffie Director September 29, 1998
- -----------------------
David B. Yoffie
</TABLE>
7
PAGE
<TABLE>
INDEX TO EXHIBITS
<CAPTION>
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, counsel to the Registrant
23.1 Consent of Hale and Dorr LLP (included in Exhibit 5.1)
23.2 Consent of PricewaterhouseCoopers LLP, independent
accountants
24.1 Power of Attorney (included in the signature pages
of this Registration Statement)
- ----------------
<FN>
(1) Previously filed with the Commission as an Exhibit to the Registrant's
Registration Statement on Form S-1, as amended (File No. 33-84884),
and incorporated herein by reference.
(2) Previously filed with the Commission as an Exhibit to the Registrant's
Annual Report on Form 10-K for the fiscal year ended December 31,
1994 and incorporated herein by reference.
</TABLE>
PAGE
EXHIBIT 5.1
- -----------
HALE AND DORR LLP
60 State Street
Boston, MA 02109
September 29, 1998
Shiva Corporation
28 Crosby Drive
Bedford, MA 01730
Re: 1997 Employee Stock Incentive Plan
----------------------------------
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 (the "Company"), issuable under the Company's
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 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 on the foregoing, we are of the opinion that the Shares have been
duly authorized for issuance under the Plan, and the Shares, when issued
and paid for in accordance with the terms of the Plan and at a price per
share in excess of 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
<PAGE>
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 27, 1998 (except as
to Note 16, which is as of February 19, 1998), appearing in the 1997
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 January 3, 1998. We also consent to the incorporation by ref-
erence of our report on the Financial Statement Schedule, which appears in
such Annual Report on Form 10-K.
PricewaterhouseCoopers LLP
Boston, Massachusetts
September 29, 1998
<PAGE>
