Sun Microsystems, Inc. Form S-8
Table of Contents

As filed with the Securities and Exchange Commission on November 20, 2002

Registration No. _____________



SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

__________________________

FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933


SUN MICROSYSTEMS, INC.
(Exact Name of Registrant as specified in its charter)

         
Delaware
(State or Other Jurisdiction of
Incorporation or Organization)
  4150 Network Circle
Santa Clara, CA 95054

(Address, including zip code, of
Registrant’s Principal Executive Offices)
  94-2805249
(I.R.S. Employer
Identification Number)

PIRUS NETWORKS, INC. 2000 STOCK OPTION PLAN
(Full Title of the Plan)

Scott G. McNealy
Chief Executive Officer
SUN MICROSYSTEMS, INC.
4150 Network Circle
Santa Clara, CA 95054
(650) 960-1300

(Name, address, including zip code, and telephone number,
including area code, of agent for service)

__________________________

Copy to:

Katherine A. Martin, Esq.
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304
(650) 493-9300


CALCULATION OF REGISTRATION FEE

                                 
            Proposed Maximum   Proposed Maximum        
    Amount to be   Offering Price   Aggregate Offering   Amount of
Title of Securities to be Registered   Registered   Per Share(1)   Price   Registration Fee

Common Stock, par value $0.00067 per share, to be issued upon exercise of options granted under the Pirus Networks, Inc. 2000 Stock Option Plan, as amended (the "Plan”)     2,608,846     $ 0.52     $ 1,356,599.92     $ 124.81  


(1)   The Proposed Maximum Offering Price Per Share was computed pursuant to Rule 457(h) under the Securities Act of 1933, as amended (the “Securities Act”) solely for the purpose of calculating the registration fee. Computation is based on the weighted-average per share exercise price (rounded to the nearest cent) of outstanding options under the Plan, the underlying shares of which are registered hereby.



 


TABLE OF CONTENTS

PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Information Incorporated by Reference.
Item 4. Description of Securities.
Item 5. Interests of Named Experts and Counsel.
Item 6. Indemnification of Directors and Officers.
Item 7. Exemption from Registration Claimed.
Item 8. Exhibits.
Item 9. Undertakings.
SIGNATURES
INDEX TO EXHIBITS
EXHIBIT 4.1
EXHIBIT 5.1
EXHIBIT 15.1
EXHIBIT 23.2


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PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3. Information Incorporated by Reference.

     There are hereby incorporated by reference into this Registration Statement the following documents and information heretofore filed with the Securities and Exchange Commission (the “Commission”) by Sun Microsystems, Inc. (the “Registrant”):

        1.    The Registrant’s Annual Report on Form 10-K for the year ended June 30, 2002, filed pursuant to Section 13(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
 
        2.    The Registrant’s Quarterly Report on Form 10-Q for the quarter ended September 29, 2002, filed pursuant to Section 13(a) of the Exchange Act.
 
        3.    The Registrant’s Current Report on Form 8-K filed on August 9, 2002, pursuant to Section 13(a) of the Exchange Act.
 
        4.    The Registrant’s Current Report on Form 8-K filed on September 30, 2002, pursuant to Section 13(a) of the Exchange Act.
 
        5.    The description of the Registrant’s Common Stock contained in Registrant’s Registration Statement on Form 8-A relating to the Registrant’s Common Stock filed pursuant to Section 12(g) of the Exchange Act on October 24, 1986, as amended.
 
        6.    The description of the Registrant’s Preferred Share Purchase Rights contained in Registrant’s Registration Statement on Form 8-A/A Amendment No. 10 filed pursuant to Section 12(g) of the Exchange Act on September 26, 2002.

     All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be 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.

     Not applicable.

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Item 6. Indemnification of Directors and Officers.

     Section 145 of the General Corporation Law of the State of Delaware, as amended, provides that under certain circumstances a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding whether civil, criminal, administrative or investigative, by reason of the fact that he or she is or was a director, officer, employee or agent of the corporation or is or was serving at its request in such capacity in another corporation or business association, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or her in connection with such action, suit or proceeding if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful.

     Section 11 of the Restated Certificate of Incorporation of the Registrant provides in effect that, subject to certain limited exceptions, the Registrant shall indemnify its directors and officers to the extent authorized or permitted by the General Corporation Law of the State of Delaware. The directors and officers of the Registrant are insured under policies of insurance maintained by the Registrant, subject to the limits of the policies, against certain losses arising from any claims made against them by reason of being or having been such directors or officers. Like indemnification and insurance is also provided to those employees of the Registrant who serve as administrators of the Plan. In addition, the Registrant has entered into contracts with certain of its directors providing for indemnification of such persons by the Registrant to the full extent authorized or permitted by law, subject to certain limited exceptions.

Item 7. Exemption from Registration Claimed.

     Not applicable.

Item 8. Exhibits.

     
Number   Document

 
  4.1   Pirus Networks, Inc. 2000 Stock Option Plan, as amended
  5.1   Opinion of Counsel with respect to the legality of the securities being registered
15.1   Letter: Unaudited Interim Financial Information
23.1   Consent of Counsel (contained in Exhibit 5.1)
23.2   Consent of Ernst & Young LLP, Independent Auditors

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Item 9. Undertakings.

     (a)  The undersigned Registrant 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 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.

          (3) 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.

     (b)  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 this 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.

     (c)  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 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.

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SIGNATURES

     Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant, Sun Microsystems, Inc., 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 city of Santa Clara, State of California, on November 20, 2002.

     
  SUN MICROSYSTEMS, INC
 
 
  By:  /s/ Stephen T. McGowan
 
  Stephen T. McGowan
Chief Financial Officer and Executive Vice
President, Corporate Resources

     Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.

         
SIGNATURE   TITLE   DATE

 
 
 
/s/ Scott G. McNealy

Scott G. McNealy
  Chairman of the Board of Directors,
President and Chief Executive Officer
(Principal Executive Officer)
  November 20, 2002
 
/s/ Stephen T. McGowan

Stephen T. McGowan
  Chief Financial Officer and Executive Vice
President, Corporate Resources
(Principal Financial Officer)
  November 20, 2002
 
/s/ Kenneth A. Barker

Kenneth A. Barker
  Vice President, Corporate Controller
(Principal Accounting Officer)
  November 20, 2002
 
/s/ James L. Barksdale

James L. Barksdale
  Director   November 20, 2002
 
/s/ L. John Doerr

L. John Doerr
  Director   November 20, 2002
 
/s/ Judith L. Estrin

Judith L. Estrin
  Director   November 20, 2002
 
/s/ Robert J. Fisher

Robert J. Fisher
  Director   November 20, 2002
 
/s/ Michael E. Lehman

Michael E. Lehman
  Director   November 20, 2002

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SIGNATURE   TITLE   DATE

 
 
 
/s/ Robert L. Long

Robert L. Long
  Director   November 20, 2002
 
/s/ M. Kenneth Oshman

M. Kenneth Oshman
  Director   November 20, 2002
 
/s/ Naomi O. Seligman

Naomi O. Seligman
  Director   November 20, 2002
 
/s/ Lynn Turner

Lynn Turner
  Director   November 20, 2002

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INDEX TO EXHIBITS

     
Exhibit
Number
  Description

 
  4.1   Pirus Networks, Inc. 2000 Stock Option Plan, as amended
 
  5.1   Opinion of Counsel, with respect to the legality of the securities being registered
 
15.1   Letter: Unaudited Interim Financial Information
 
23.1   Consent of Counsel (contained in Exhibit 5.1)
 
23.2   Consent of Ernst & Young LLP, Independent Auditors

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