As filed with the Securities and Exchange Commission on May 14, 1997
Registration No. 333-______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
STRATUS COMPUTER, INC.
(Exact name of registrant as specified in its charter)
04-2697554
(I.R.S. employer identification no.)
Massachusetts
(State or other jurisdiction of incorporation or organization)
55 Fairbanks Boulevard, Marlborough, MA 01752
(Address of principal executive offices) (Zip Code)
Stock Option Plan (January, 1983)
Non-Qualified Common Stock Option Plan
Employee Stock Purchase Plan
1997 Non-Qualified Common Stock Option Plan
(Full title of plans)
William E. Foster, Chief Executive Officer
Stratus Computer, Inc.
55 Fairbanks Boulevard
Marlborough, MA 01752
(Name and address of agent for service)
(508) 460-2000
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount
to be to be price per offering of
registered registered (1) share (2) price (2) registration fee
---------- -------------- --------- --------- ----------------
Common Stock, 5,500,000 $40.9375 $225,156,250 $68,230
$.01 par value shares
(1) Plus such additional number of shares as may be required pursuant to the
Plans in the event of a stock dividend, split-up of shares, recapitalization or
other similar change in the Common Stock.
(2) Estimated solely for the purpose of calculating the registration fee, in
accordance with Rule 457(h)(1), on the basis of the average of the high and low
prices of the Common Stock as reported on the New York Stock Exchange on May 8,
1997.
EXPLANATORY NOTE
This registration statement on Form S-8 covers an additional 1,500,000 shares
of Common Stock, $.01 par value, reserved for issuance under the Company's
Stock Option Plan (January 1983) and Non-Qualified Common Stock Option Plan,
an additional 1,000,000 shares of Common Stock reserved for issuance under
the Company's Employee Stock Purchase Plan, and 3,000,000 shares of Common
Stock reserved for issuance under the Company's 1997 Non-Qualified Common
Stock Option Plan (the aforementioned plans are referred to collectively
herein as the "Plans"). The Company has previously registered an aggregate
of 13,919,600 shares issued or issuable under the Plans (exclusive of the 1997
Non-Qualified Common Stock Option Plan) and the Company's Incentive Stock
Option Plan (now terminated) pursuant to the following registration statements
on Form S-8: 2-88104, 2-89901, 33-2174, 33-11864, 33-28742, 33-67758 and
33-64709.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange
Commission (the "Commission") (File No. 0-12064) are hereby incorporated by
reference in this Registration Statement:
(a) The Company's annual report on Form 10-K for the year ended
December 29, 1996; and
(b) The Company's quarterly report on Form 10-Q for the quarter
ending March 30, 1997; and
(c) The description of the Company's capital stock that is contained in
the Company's Registration Statements (as amended) on Form 8-A filed with the
Commission on April 27, 1984, December 6, 1990 and April 3, 1995 and any
amendment or report filed by the Company with the Commission under the
Securities Exchange Act of 1934 for the purpose of updating such description.
In addition, all documents filed by the Company after the initial filing
date of this registration statement pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and prior to the filing of a post-effective amendment which indicates that all
shares registered hereunder have been sold or which de-registers all shares then
remaining unsold, shall be deemed to be incorporated by reference in this
registration statement 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 Counsel.
The validity of the shares registered hereby has been passed upon by
Choate, Hall & Stewart, Boston, Massachusetts. Richard N. Hoehn, a partner of
Choate, Hall & Stewart, is Clerk of the Company.
Item 6. Indemnification of Directors and Officers.
Section 67 of Chapter 156B of the Massachusetts General Laws provides
that a corporation may indemnify its directors and officers to the extent
specified in or authorized by (i) the articles of organization, (ii) a by-law
adopted by the stockholders, or (iii) a vote adopted by the holders of a
majority of the shares of stock entitled to vote on the election of directors.
Such Section further
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provides, however, that no indemnification may be provided with respect to any
matter as to which the officer or director is adjudicated not to have acted in
good faith in the reasonable belief that his action was in the best interest of
the corporation or, to the extent such matter relates to service with respect to
an employee benefit plan, in the best interest of the participants or
beneficiaries of such employee benefit plan.
Article V, Section 2 of the By-laws of the Company provides that every
person who is, or has been, a director or officer of the Company is entitled to
indemnification by the Company to the fullest extent permitted by law against
liability and against all expenses reasonably incurred or paid by him in
connection with any claim, action, suit or proceeding in which he becomes
involved as a party or otherwise by virtue of his being or having been a
director or officer and against amounts paid or incurred by him in the
settlement thereof.
No indemnification is provided under the By-laws to a director or officer
with respect to any matter as to which he has been finally adjudicated not to
have acted in good faith in the reasonable belief that his action was in the
best interests of the corporation. Nor is indemnification provided to a director
or officer in the event of a settlement involving a payment by the officer or
director unless there has been a determination that such director or officer is
entitled to indemnification under Article V, Section 2 of the By-laws by one of
the following: (i) the court or other body approving the settlement; (ii) vote
of stockholders of the Company; (iii) vote of two-thirds of those directors of
the Company who are not themselves involved in the claim, action, suit or
proceeding, provided that a majority of the directors consists of members not so
involved; or (iv) written opinion of independent counsel.
The Company's By-laws authorize the Company to obtain insurance to cover
its indemnification obligations. The Company currently maintains director and
officer liability insurance for the benefit of its directors and certain of its
officers.
Article 6 of the Articles of Organization of the Company, as amended,
provides that, to the fullest extent permitted by the Massachusetts General
Laws, no director of the Company shall be personally liable to the Company or
its stockholders for monetary damages for breach of fiduciary duty as a
director.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
*4.1 Article 4 of the Company's Articles of Organization, as amended.
**4.2 Articles I, II, IV and VII of the Company's Bylaws, as amended.
***4.3 Rights Agreement dated December 4, 1990.
5.1 Opinion of Choate, Hall & Stewart as to validity of shares being
registered.
10.1 The Company's Stock Option Plan (January, 1983) (Restatement Number 6
effective April 23, 1997)
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10.2 The Company's Non-Qualified Common Stock Option Plan (Restatement
Number 5 effective April 23, 1997).
10.3 The Company's Employee Stock Purchase Plan (amended and restated as
of April 23, 1997).
10.4 The Company's 1997 Non-Qualified Common Stock Option Plan (effective
January 13, 1997).
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Choate, Hall & Stewart (included in Exhibit 5.1).
24.1 Power of Attorney (part of page II-6).
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* Incorporated by reference to Exhibits 3.1 and 3.1(a) to the Company's Report
on Form 10-K filed with the Commission on March 31, 1997.
** Incorporated by reference to Exhibit 3.2(b) to the Company's Report on Form
10-K filed with the Commission on March 31, 1997.
*** Incorporated by reference to Exhibit 1 to the Registration Statement on Form
8-A filed by the Company with the Commission on December 6, 1990 as
amended by Amendment No. 1 thereto filed with the Commission on December 20,
1990.
Item 9. Undertakings.
(a) The Company hereby undertakes:
(1) to file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement 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;
(2) that, for the purpose o 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; and
(3) to remove from registration by means of a posteffective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's annual report
pursuant to Section 13(a) or 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.
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(h) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company
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 Company of expenses incurred or paid
by a director, officer or controlling person of the Company 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
Company will, unless in the opinion of 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 expressed
in the Securities Act and will be governed by the final adjudication of such
issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
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 registrations
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Town of Marlborough, Commonwealth of Massachusetts, on May 9,
1997.
Stratus Computer, Inc. (Issuer and Employer)
By: William E. Foster, Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints William E. Foster, Robert E. Donahue and
Eileen Casal, jointly and severally, his true and lawful attorneys-in-fact and
agents with full powers of substitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this registration statement, and to file the same,
with all exhibits thereto, and all documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be in and about the premises, as
fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or any of
them, or their or his substitute or substitutes, may lawfully do or cause to be
done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed below on May 9, 1997 by the following persons in the
capacities indicated.
Name Capacity
/s/ William E. Foster President, Chief Executive Officer
(Principal Executive Officer) and Director
/s/ Robert E. Donahue Senior Vice President, Chief Financial Officer
(Principal Financial and Accounting Officer)
/s/ Alexander V. d'Arbeloff Director
/s/ Paul J. Ferri Director
/s/ Robert M. Morrill Director
/s/ Paul J. Severino Director
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INDEX TO EXHBITS
Exhibits Number
*4.1 Article 4 of the Company's Articles of Organization, as amended.
**4.2 Articles I, II, IV and VII of the Company's Bylaws, as amended.
***4.3 Rights Agreement dated December 4, 1990.
5.1 Opinion of Choate, Hall & Stewart as to validity of shares being
registered.
10.1 The Company's Stock Option Plan (January, 1983) (Restatement
Number 6 effective April 23, 1997).
10.2 The Company's Non-Qualified Common Stock Option Plan
(Restatement Number 5 effective April 23, 1997).
10.3 The Company's Employee Stock Purchase Plan (amended and restated as
of April 23, 1997).
10.4 The Company's 1997 Non-Qualified Common Stock Option Plan
(effective January 13, 1997)
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Choate, Hall & Stewart
(included in Exhibit 5.1).
24.1 Power of Attorney (part of page II-6).
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* Incorporated by reference to Exhibits 3.1 and 3.1(a) to the Company's Report
on Form 10-K filed with the Commission on March 31, 1997.
** Incorporated by reference to Exhibit 3.2(b) to the Company's Report on Form
10-K filed with the Commission on March 31, 1997.
*** Incorporated by reference to Exhibit 1 to the Registration Statement on Form
8-A filed by the Company with the Commission on December 6, 1990 as
amended by Amendment No. 1 thereto filed with the Commission on December 20,
1990.
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