-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, PTH3f5hezEHpg/zhZ5NEvj28I8w5598rEi4gOiJT0PnE3bOi7bTRjEfIm3382Kmu vMK0crwTUFIq44QExxQQRA== 0000898430-98-001992.txt : 19980518 0000898430-98-001992.hdr.sgml : 19980518 ACCESSION NUMBER: 0000898430-98-001992 CONFORMED SUBMISSION TYPE: S-4/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 19980515 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: EVANS & SUTHERLAND COMPUTER CORP CENTRAL INDEX KEY: 0000276283 STANDARD INDUSTRIAL CLASSIFICATION: MISCELLANEOUS ELECTRICAL MACHINERY, EQUIPMENT & SUPPLIES [3690] IRS NUMBER: 870278175 STATE OF INCORPORATION: UT FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4/A SEC ACT: SEC FILE NUMBER: 333-51041 FILM NUMBER: 98623902 BUSINESS ADDRESS: STREET 1: 600 KOMAS DR CITY: SALT LAKE CITY STATE: UT ZIP: 84108 BUSINESS PHONE: 8015881000 MAIL ADDRESS: STREET 1: 600 KOMAS DR CITY: SALT LAKE CITY STATE: UT ZIP: 84108 S-4/A 1 AMENDMENT NO. 2 TO THE S-4 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 15, 1998 REGISTRATION NO. 333-51041 - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 -------------- AMENDMENT NO. 2 TO FORM S-4 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 -------------- EVANS & SUTHERLAND COMPUTER CORPORATION (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) -------------- UTAH 3699 87-0278175 (STATE OF INCORPORATION) (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
600 KOMAS DRIVE SALT LAKE CITY, UTAH 84108 (801) 588-1000 (ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES) -------------- JOHN T. LEMLEY EVANS & SUTHERLAND COMPUTER CORPORATION 600 KOMAS DRIVE SALT LAKE CITY, UTAH 84108 (801) 588-1000 (NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE) COPIES TO: DAVID F. EVANS MICHAEL W. HALL WILLIAM C. GIBBS STEVEN J. TONSFELDT DAVID K. ARMSTRONG EDMUND S. RUFFIN, JR. JOHN G. WESTON STEPHEN B. THAU SNELL & WILMER L.L.P. VENTURE LAW GROUP 111 EAST BROADWAY, SUITE 900 A PROFESSIONAL CORPORATION SALT LAKE CITY, UTAH 84111 2800 SAND HILL ROAD (801) 237-1900 MENLO PARK, CALIFORNIA 94025 (650) 854-4488
-------------- APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As promptly as practicable after this Registration Statement becomes effective and the effective time of the proposed merger of AccelGraphics, Inc. with and into E&S Merger Corp., a wholly owned subsidiary of the Registrant as described herein. If the securities being registered on this Form are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box. [_] CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- PROPOSED MAXIMUM TITLE OF EACH CLASS AGGREGATE AMOUNT OF OF SECURITIES OFFERING REGISTRATION TO BE REGISTERED PRICE(1) FEE(2) - -------------------------------------------------------------------------------- Common Stock $0.20.................................... $23,335,144 $6,883.87
- ------------------------------------------------------------------------------- (1) Estimated solely for the purpose of calculating the registration fee required by Section 6(b) of the Securities Act of 1933, as amended, and computed pursuant to Rule 457(f)(1) thereunder on the basis of the market value of the AccelGraphics, Inc. Common Stock to be exchanged in the Agreement and Plan of Merger, dated April 22, 1998 (the "Merger"), which was computed, in accordance with Rule 457(c), as 52% of the product of $ 5.31 (the average of the high and low prices for AccelGraphics, Inc. Common Stock on April 23, 1998 as reported by the Nasdaq National Market) and 8,451,088, the aggregate number of shares of AccelGraphics, Inc. Common Stock outstanding on March 31, 1998. (2) Includes $6,883.87 previously paid by the Registrant in connection with the filing of the Registration Statement on April 27, 1998. - ------------------------------------------------------------------------------- THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE. - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- TABLE OF CONTENTS
PAGE ---- AVAILABLE INFORMATION.... 1 INCORPORATION BY REFERENCE............... 2 SUMMARY.................. 3 THE COMPANIES........... 3 WHAT YOU WILL RECEIVE IN THE MERGER............. 4 THE ANNUAL MEETING...... 4 FAIRNESS OPINION........ 5 RISK FACTORS............ 5 REASONS FOR THE MERGER; RECOMMENDATION OF THE AGI BOARD.............. 5 INTERESTS OF CERTAIN PERSONS IN THE MERGER.. 6 ELECTION PROCEDURES..... 7 TREATMENT OF STOCK OPTIONS IN THE MERGER.. 7 REGULATORY APPROVALS.... 7 CONDITIONS TO THE MERGER................. 8 TERMINATION OF THE MERGER AGREEMENT....... 8 TERMINATION FEE......... 8 NO SOLICITATION OF COMPETING TRANSACTIONS. 9 APPRAISAL RIGHTS........ 9 MATERIAL FEDERAL INCOME TAX CONSEQUENCES....... 9 ANTICIPATED ACCOUNTING TREATMENT.............. 9 FORWARD-LOOKING STATEMENTS MAY PROVE INACCURATE............. 9 SELECTED HISTORICAL CONSOLIDATED FINANCIAL DATA................... 10 FORWARD-LOOKING STATEMENTS MAY PROVE INACCURATE.............. 13 RISK FACTORS............. 13 RISK FACTORS REGARDING THE MERGER............. 13 RISK FACTORS REGARDING E&S.................... 14 RISK FACTORS REGARDING AGI.................... 17 THE ANNUAL MEETING....... 24 GENERAL................. 24 MATTERS TO BE CONSIDERED AT THE ANNUAL MEETING.. 24 VOTING AND PROXIES...... 24 SOLICITATION OF PROXIES. 25 COMPARATIVE PER SHARE DATA.................... 26 MARKET PRICE DATA........ 27 THE MERGER............... 28 BACKGROUND OF THE MERGER................. 28 AGI REASONS FOR THE MERGER; RECOMMENDATION OF THE AGI BOARD OF DIRECTORS.............. 30 E&S REASONS FOR THE MERGER................. 31 INTERESTS OF CERTAIN PERSONS IN THE MERGER; CONFLICTS OF INTEREST.. 32 FAIRNESS OPINION OF COWEN & COMPANY........ 33 STRUCTURE OF THE MERGER; EFFECTIVE TIME......... 37 MERGER CONSIDERATION.... 37 DESCRIPTION OF ELECTION PROCEDURES............. 38 PROCEDURES FOR EXCHANGE OF AGI COMMON STOCK CERTIFICATES........... 40 ANTICIPATED ACCOUNTING TREATMENT.............. 41 PLANS FOR AGI AFTER THE MERGER................. 41
PAGE ---- CERTAIN OTHER EFFECTS OF THE MERGER...................................... 41 SOURCE AND AMOUNT OF FUNDS AND OTHER CONSIDERATION....................... 42 MATERIAL FEDERAL INCOME TAX CONSEQUENCES................................. 42 REGULATORY MATTERS....................................................... 44 BLUE SKY LAWS............................................................ 45 APPRAISAL RIGHTS......................................................... 45 THE MERGER AGREEMENT...................................................... 46 CERTAIN REPRESENTATIONS AND WARRANTIES................................... 46 CONDUCT OF BUSINESS PENDING THE MERGER................................... 46 NO SOLICITATION OF COMPETING TRANSACTIONS................................ 47 INDEMNIFICATION AND INSURANCE............................................ 48 STOCK EXCHANGE LISTING................................................... 48 CONDITIONS TO CONSUMMATION OF THE MERGER................................. 48 TERMINATION; EFFECTS OF TERMINATION...................................... 48 EXPENSES................................................................. 50 AMENDMENT; WAIVER........................................................ 51 VOTING AGREEMENT AND IRREVOCABLE PROXY.................................... 51 PRO FORMA CONSOLIDATED FINANCIAL STATEMENTS............................... 52 PRO FORMA CONSOLIDATED STATEMENT OF OPERATIONS............................ 53 PRO FORMA CONSOLIDATED BALANCE SHEET...................................... 55 NOTES TO PRO FORMA CONSOLIDATED FINANCIAL STATEMENTS...................... 56 DESCRIPTION OF E&S........................................................ 57 DESCRIPTION OF E&S CAPITAL STOCK.......................................... 57 DESCRIPTION OF AGI........................................................ 58 BUSINESS OVERVIEW........................................................ 58 SELECTED HISTORICAL CONSOLIDATED FINANCIAL DATA.......................... 59 MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS........................................................... 60 PRODUCTS................................................................. 66 TECHNOLOGY AND CORE COMPETENCIES......................................... 68 STRATEGIC RELATIONSHIPS.................................................. 68 3D PROFESSIONAL MARKETS AND APPLICATIONS................................. 69 CUSTOMERS, SALES AND MARKETING........................................... 69 RESEARCH AND DEVELOPMENT................................................. 70 MANUFACTURING............................................................ 71 PROPRIETARY RIGHTS....................................................... 72 COMPETITION.............................................................. 72 EMPLOYEES................................................................ 73 DESCRIPTION OF PROPERTIES................................................ 73 MANAGEMENT............................................................... 73 EXECUTIVE COMPENSATION................................................... 75 EMPLOYEE BENEFIT PLANS................................................... 76 COMPENSATION COMMITTEE REPORT............................................ 77 PERFORMANCE GRAPH........................................................ 79 SECURITY OWNERSHIP OF PRINCIPAL STOCKHOLDERS AND MANAGEMENT.............. 80 CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS........................... 82 LEGAL PROCEEDINGS........................................................ 82
PAGE ---- COMPARISON OF RIGHTS OF AGI STOCKHOLDERS AND E&S STOCKHOLDERS............. 83 AUTHORIZED CAPITAL STOCK................................................. 83 STOCKHOLDER VOTING RIGHTS................................................ 83 SPECIAL MEETINGS OF STOCKHOLDERS......................................... 84 BUSINESS COMBINATIONS.................................................... 84 BUSINESS CONDUCTED AT STOCKHOLDERS' MEETINGS............................. 86 SHAREHOLDERS CONSENT WITHOUT A MEETING................................... 86 DISSENTERS' RIGHTS....................................................... 86 QUORUM OF DIRECTORS...................................................... 87 DERIVATIVE SUITS......................................................... 87 AMENDMENTS TO THE CHARTER................................................ 88 NOTICE, ADJOURNMENT AND PLACE OF STOCKHOLDERS' MEETINGS.................. 88 DIRECTORS................................................................ 89 ELECTION AND REMOVAL OF DIRECTORS........................................ 89 INSPECTION OF BOOKS AND RECORDS.......................................... 89 TRANSACTIONS WITH OFFICERS AND DIRECTORS................................. 90 LIMITATION ON LIABILITY OF DIRECTORS; INDEMNIFICATION OF OFFICERS AND DIRECTORS............................................................... 90 ELECTION OF CLASS I DIRECTORS............................................. 92 LEGAL MATTERS............................................................. 93 EXPERTS................................................................... 93 ACCELGRAPHICS, INC. CONSOLIDATED FINANCIAL STATEMENTS..................... F-1
ANNEX I AGREEMENT AND PLAN OF MERGER ANNEX II OPINION OF COWEN & COMPANY ANNEX III VOTING AGREEMENT AND IRREVOCABLE PROXY
PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS Section 16-10a-901, et. seq., of the Utah Revised Business Corporation Act authorizes a court to award, or a corporation's board of directors to grant, indemnity to directors and officers in terms sufficiently broad to permit such indemnification under certain circumstances for liabilities (including reimbursement for expenses incurred) arising under the Securities Act of 1933. The E&S Bylaws require E&S to indemnify its directors and officers, including circumstances in which indemnification is otherwise discretionary under Utah law. E&S has entered into indemnification agreements with its directors containing provisions which are in some respects broader than the specific indemnification provisions contained in Utah law. The indemnification agreements may require E&S, among other things, to indemnify its directors and officers against certain liabilities that may arise by reason of their status or service as directors or officers (other than liabilities arising from willful misconduct of a culpable nature), to advance their expenses incurred as a result of any proceeding against them as to which they could be indemnified, and to obtain director and officer insurance, if available on reasonable terms. E&S's Articles of Incorporation provide for indemnification of its directors and officers to the maximum extent permitted by Utah law, and E&S's Bylaws provide for indemnification of its directors, officers, employees and other agents as permitted by Utah law. ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES (a) The following is a list of Exhibits included as part of this Registration Statement. The Registrant agrees to furnish supplementally a copy of any omitted exhibit or schedule to the Commission upon request.
EXHIBIT NUMBER DESCRIPTION ------- ----------- 2.1** Agreement and Plan of Merger, dated April 22, 1998, among the Registrant, E&S Merger Sub, and AccelGraphics, Inc. (included as Annex I to the Proxy Statement / Prospectus). 3.1 Articles of Incorporation, as amended, filed as Exhibit 3.1 to the Registrant's Annual Report on Form 10-K for the fiscal year ended December 25, 1987, and incorporated herein by this reference. 3.1.1 Amendments to Articles of Incorporation filed as Exhibit 3.1.1 to the Registrant's Annual Report on Form 10-K for the fiscal year ended December 30, 1988, and incorporated herein by this reference. 3.2 By-laws, as amended, filed as Exhibit 3.2 to the Registrant's Annual Report on Form 10-K for the fiscal year ended December 25, 1987, and incorporated herein by this reference. 5.1** Form of Opinion of Snell & Wilmer L.L.P. as to the legality of the securities being registered. 8.1* Form of Opinion of Snell & Wilmer L.L.P. as to the United States federal income tax consequences of the Merger. 8.2** Form of Opinion of Venture Law Group, a Professional Corporation, as to the United States federal income tax consequences of the Merger. 10.1 1985 Stock Option Plan, filed as Exhibit 1 to the Registrant's Post-effective Amendment No. 1 to Registration Statement on Form S-8, SEC File No. 2-76027, and incorporated herein by this reference. 10.2 1989 Stock Option Plan for Non-employee Directors, filed as Exhibit 10.5 to the Registrant's Annual Report on Form 10-K for the fiscal year ended December 29, 1989, and incorporated herein by this reference.
II-1
EXHIBIT NUMBER DESCRIPTION ------- ----------- 10.3 The Registrant's 1991 Employee Stock Purchase Plan, filed as Exhibit 4.1 to the Registrant's Registration Statement on Form S- 8, SEC File No. 33-39632, and incorporated herein by this reference. 10.4 Employment Agreement dated November 29, 1994, between the Registrant and Mr. James R. Oyler, filed as Exhibit 10.10 to the Registrant's Annual Report on Form 10-K for the fiscal year ended December 26, 1994, and incorporated herein by this reference. 10.5 The Registrant's 1995 Long-Term Incentive Equity Plan, filed as Exhibit 10.11 to the Registrant's Annual Report on Form 10-K for the fiscal year ended December 29, 1995, and incorporated herein by this reference. 10.6 Asset Purchase Agreement dated March 1, 1995, between the Registrant and Parametric Technology Corporation as to the Registrant's divestiture of its Design Software group (CDRS), filed as Exhibit 10.12 to the Registrant's Annual Report on Form 10-K for the fiscal year ended December 29, 1995, and incorporated herein by this reference. 10.7 The Registrant's Executive Savings Plan, filed as Exhibit 10.14 to the Registrant's Annual Report on Form 10-K for the fiscal year ended December 29, 1995, and incorporated herein by this reference. 10.8 The Registrant's Supplemental Executive Retirement Plan (SERP), filed as Exhibit 10.15 to the Registrant's Annual Report on Form 10-K for the fiscal year ended December 29, 1995, and incorporated herein by this reference. 10.9+ Form of Employment Agreement to be entered into between the Registrant and Jeffrey, W. Dunn. 10.10+ Form of Employment Agreement to be entered into between the Registrant and Nancy E. Bush. 23.1** Consent of KPMG Peat Marwick LLP. 23.2** Consent of Price Waterhouse LLP. 23.3** Consent of Snell & Wilmer L.L.P. (included in Exhibit 5.1 to this Registration Statement) 23.4** Consent of Venture Law Group, a Professional Corporation (included in Exhibit 8.2 to this Registration Statement). 23.5** Consent of Cowen & Company. 24.1+ Powers of Attorney for Messrs. Stewart Carrell, Gerald Casilli, Henry N. Christiansen, Peter O. Crisp, John T. Lemley, Mark C. McBride, James R. Oyler, Ivan E. Sutherland, and John E. Warnock. 27.1+ Financial Data Schedule. 99.1** Voting Agreement, dated April 22, 1998, between the Registrant and certain stockholders of AccelGraphics, Inc. (included as Annex III to the Proxy Statement/Prospectus). 99.2+ Form of Affiliate Letter Agreement between the Registrant and certain officers and directors of AGI. 99.3** Form of proxy card to be mailed to stockholders of AccelGraphics, Inc. 99.4** Form of Chairman and Chief Executive Officer's Letter to the stockholders of AccelGraphics, Inc. (included in the Proxy Statement/Prospectus). 99.5** Form of Notice of Annual Meeting of Stockholders to the stockholders of AccelGraphics, Inc. (included in the Proxy Statement/Prospectus). 99.6** Form of Election. 99.7** Opinion of Cowen & Company (included as Annex II to the Proxy Statement/Prospectus).
- -------- *Exhibits filed herewith. ** Exhibits previously filed with the Registrant's Amendment No. 1 to the Registration Statement on Form S-4/A, dated May 15, 1998. +Exhibits previously filed with the Registrant's Registration Statement on Form S-4, dated April 27, 1998. II-2 SIGNATURES In accordance with the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-4 and has authorized this registration statement to be signed on its behalf by the undersigned, in the City of Salt Lake City, Utah, on this 15th day of May, 1998. Evans & Sutherland Computer Corporation /s/ Mark C. McBride _____________________________________ Mark C. McBride Vice President, Corporate Controller and Corporate Secretary In accordance with 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 stated: SIGNATURE TITLE DATE - --------- ----- ---- /s/ Stewart Carrell* Chairman of the _____________________________________ Board of Directors May 15, 1998 Stewart Carrell /s/ James R. Oyler* Director and _____________________________________ President (Chief May 15, 1998 James R. Oyler Executive Officer) /s/ John T. Lemley* Vice President and _____________________________________ Chief Financial May 15, 1998 John T. Lemley Officer (Principal Financial Officer) /s/ Mark C. McBride Vice President, _____________________________________ Corporate May 15, 1998 Mark C. McBride Controller and Corporate Secretary (Principal Accounting Officer) /s/ Gerald S. Casilli* Director _____________________________________ May 15, 1998 Gerald S. Casilli /s/ Peter O. Crisp* Director _____________________________________ May 15, 1998 Peter O. Crisp /s/ Henry N. Christiansen* Director _____________________________________ May 15, 1998 Henry N. Christiansen II-5 SIGNATURE TITLE DATE - --------- ----- ---- /s/ Ivan E. Sutherland* Director _____________________________________ May 15, 1998 Ivan E. Sutherland /s/ John E. Warnock* Director _____________________________________ May 15, 1998 John E. Warnock /s/ Mark C. McBride *By: _______________________________ May 15, 1998 Mark C. McBride Attorney-in-fact II-6 EXHIBIT INDEX
EXHIBIT NUMBER DESCRIPTION ------- ----------- 2.1** Agreement and Plan of Merger, dated April 22, 1998, among the Registrant, E&S Merger Sub, and AccelGraphics, Inc. (included as Annex I to the Proxy Statement / Prospectus). 3.1 Articles of Incorporation, as amended, filed as Exhibit 3.1 to the Registrant's Annual Report on Form 10-K for the fiscal year ended December 25, 1987, and incorporated herein by this reference. 3.1.1 Amendments to Articles of Incorporation filed as Exhibit 3.1.1 to the Registrant's Annual Report on Form 10-K for the fiscal year ended December 30, 1988, and incorporated herein by this reference. 3.2 By-laws, as amended, filed as Exhibit 3.2 to the Registrant's Annual Report on Form 10-K for the fiscal year ended December 25, 1987, and incorporated herein by this reference. 5.1** Form of Opinion of Snell & Wilmer L.L.P. as to the legality of the securities being registered. 8.1* Form of Opinion of Snell & Wilmer L.L.P. as to the United States federal income tax consequences of the Merger. 8.2** Form of Opinion of Venture Law Group, a Professional Corporation, as to the United States federal income tax consequences of the Merger. 10.1 1985 Stock Option Plan, filed as Exhibit 1 to the Registrant's Post- effective Amendment No. 1 to Registration Statement on Form S-8, SEC File No. 2-76027, and incorporated herein by this reference. 10.2 1989 Stock Option Plan for Non-employee Directors, filed as Exhibit 10.5 to the Registrant's Annual Report on Form 10-K for the fiscal year ended December 29, 1989, and incorporated herein by this reference. 10.3 The Registrant's 1991 Employee Stock Purchase Plan, filed as Exhibit 4.1 to the Registrant's Registration Statement on Form S-8, SEC File No. 33-39632, and incorporated herein by this reference. 10.4 Employment Agreement dated November 29, 1994, between the Registrant and Mr. James R. Oyler, filed as Exhibit 10.10 to the Registrant's Annual Report on Form 10-K for the fiscal year ended December 26, 1994, and incorporated herein by this reference. 10.5 The Registrant's 1995 Long-Term Incentive Equity Plan, filed as Exhibit 10.11 to the Registrant's Annual Report on Form 10-K for the fiscal year ended December 29, 1995, and incorporated herein by this reference. 10.6 Asset Purchase Agreement dated March 1, 1995, between the Registrant and Parametric Technology Corporation as to the Registrant's divestiture of its Design Software group (CDRS), filed as Exhibit 10.12 to the Registrant's Annual Report on Form 10-K for the fiscal year ended December 29, 1995, and incorporated herein by this reference. 10.7 The Registrant's Executive Savings Plan, filed as Exhibit 10.14 to the Registrant's Annual Report on Form 10-K for the fiscal year ended December 29, 1995, and incorporated herein by this reference. 10.8 The Registrant's Supplemental Executive Retirement Plan (SERP), filed as Exhibit 10.15 to the Registrant's Annual Report on Form 10-K for the fiscal year ended December 29, 1995, and incorporated herein by this reference. 10.9+ Form of Employment Agreement to be entered into between the Registrant and Jeffrey, W. Dunn. 10.10+ Form of Employment Agreement to be entered into between the Registrant and Nancy E. Bush.
EXHIBIT NUMBER DESCRIPTION ------- ----------- 23.1** Consent of KPMG Peat Marwick LLP. 23.2** Consent of Price Waterhouse LLP. 23.3** Consent of Snell & Wilmer L.L.P. (included in Exhibit 5.1 to this Registration Statement) 23.4** Consent of Venture Law Group, a Professional Corporation (included in Exhibit 8.2 to this Registrant Statement). 23.5** Consent of Cowen & Company. 24.1+ Powers of Attorney for Messrs. Stewart Carrell, Gerald Casilli, Henry N. Christiansen, Peter O. Crisp, John T. Lemley, Mark C. McBride, James R. Oyler, Ivan E. Sutherland, and John E. Warnock. 27.1+ Financial Data Schedule. 99.1** Voting Agreement, dated April 22, 1998, between the Registrant and certain stockholders of AccelGraphics, Inc. (included as Annex III to the Proxy Statement/Prospectus). 99.2+ Form of Affiliate Letter Agreement between the Registrant and certain officers and directors of AGI. 99.3** Form of proxy card to be mailed to stockholders of AccelGraphics, Inc. 99.4** Form of Chairman and Chief Executive Officer's Letter to the stockholders of AccelGraphics, Inc. (included in the Proxy Statement/Prospectus). 99.5** Form of Notice of Annual Meeting of Stockholders to the stockholders of AccelGraphics, Inc. (included in the Proxy Statement/Prospectus). 99.6** Form of Election. 99.7** Opinion of Cowen & Company (included as Annex II to the Proxy Statement/Prospectus).
- -------- *Exhibits filed herewith. ** Exhibits previously filed with the Registrant's Amendment No. 1 to the Registration Statement on Form S-4/A, dated May 15, 1998. +Exhibits previously filed with the Registrant's Registration Statement on Form S-4, dated April 27, 1998. EX-8.1 2 OPINION OF SNELL & WILMER EXHIBIT 8.1 May 15, 1998 Evans & Sutherland Computer Corporation 600 Komas Drive Salt Lake City, Utah 84108 Re: Merger Opinion Ladies and Gentlemen: We have acted as counsel to Evans & Sutherland Computer Corporation, a Utah corporation ("E&S"), in connection with the Agreement and Plan of Merger dated April 22, 1998 (the "Agreement") by and among E&S, E&S Merger Corp. a Utah corporation and wholly-owned subsidiary of E&S ("Merger Sub"), and AccelGraphics, Inc., a Delaware corporation. Pursuant to the Agreement, AGI will merge with and into Merger Sub (the "Merger") and Merger Sub will continue to be a wholly-owned subsidiary of E&S. Our opinion regarding certain of the federal income tax consequences of the Merger is required in connection with the filing with the Securities and Exchange Commission of a registration statement (the "Registration Statement") which includes the Joint Proxy Statement-Prospectus relating to the Merger. Our opinion is also required pursuant to Section 7.01(f) of the Agreement as a condition to the consummation of the Merger. Except as otherwise provided, capitalized terms referred to herein have the meanings set forth in the Agreement. All section references, unless otherwise indicated, are to the Internal Revenue Code of 1986, as amended (the "Code"). For the purpose of rendering this opinion, we have examined and are relying upon (without any independent investigation or review thereof) the truth and accuracy, at all relevant times, of the statements, covenants, representations and warranties contained in the following documents: Evans & Sutherland Computer Corporation May 15, 1998 Page 2 1. The Agreement; 2. The Registration Statement; 3. Representations made to us by E&S and Merger Sub in a Certificate reproduced as Exhibit A hereto and representations made to us by AGI in a Certificate reproduced as Exhibit B hereto (collectively the "Tax Certificates"); and 4. Such other instruments and documents related to the formation, organization, and operation of AGI, E&S, and Merger Sub, and/or to the consummation of the Merger and the transactions contemplated thereby as we have deemed necessary or appropriate. In connection with rendering this opinion, we have assumed (without any independent investigation) that: 1. Original documents (including signatures) are authentic, documents submitted to us as copies conform to the original documents, and there has been (or will be by the Effective Time of the Merger) due execution and delivery of all documents where due execution and delivery are prerequisites to effectiveness thereof; 2. Any representation or statement referred to above made "to the knowledge of," "to the best of the knowledge," or otherwise similarly qualified is correct without such qualification. As to all matters in which a person or entity making a representation referred to above has represented that such person or entity either is not a party to, does not have, or is not aware of, any plan, intention, understanding or agreement, there is in fact no such plan, intention, understanding or agreement; 3. All statements, descriptions and representations contained in any of the documents referred to herein or otherwise made to us are true and correct in all material respects and will continue to be true and correct in all material respects as of the Effective Time of the Merger and all other relevant times, and no actions have been (or will be) taken which are inconsistent with such representations; 4. The Merger will be reported by E&S and AGI on their respective federal income tax returns in a manner consistent with the opinion set forth below; 5. The Merger will be consummated in accordance with the Agreement (and without any waiver, breach or amendment of any of the provisions thereof) and will be effective under applicable state laws; Evans & Sutherland Computer Corporation May 15, 1998 Page 3 6. The stockholders of AGI will receive in the Merger E&S Common Stock having an aggregate fair market value as of the Effective Time that is not less than 50% of the aggregate fair market value of all consideration received by stockholders of AGI in the Merger, and no transactions have occurred or will occur following the Effective Time of the Merger that would cause the continuity of interest requirement as specified in Treasury Regulations Section 1.368-1(e) to be violated; and 7. The opinion of counsel to be issued by Venture Law Group, A Professional Corporation, to AGI has been delivered and not withdrawn. Based on our examination of the foregoing items and subject to the assumptions, exceptions, limitations, and qualifications set forth herein, we are of the opinion that if the Merger is consummated in accordance with the Agreement (and without any waiver, breach, or amendment of any of the provisions thereof) and the statements set forth in the Tax Certificates are true and correct as of the Effective Time of the Merger, then, for federal income tax purposes, the Merger will qualify as a "reorganization" as defined in Section 368(a) of the Code and that each of E&S, Merger Sub, and AGI will constitute a "party" to the reorganization within the meaning of Section 368(b) of the Code. In addition to the assumptions set forth above, this opinion is subject to the exceptions, limitations, and qualifications set forth below. 1. This opinion represents and is based upon our best judgment regarding the application of federal income tax laws arising under the Code, existing judicial decisions, administrative regulations, and published rulings and procedures. Our opinion is not binding upon the Internal Revenue Service or the courts, and there is no assurance that the Internal Revenue Service will not successfully assert a contrary position. Furthermore, no assurance can be given that future legislative, judicial, or administrative changes, on either a prospective or retroactive basis, would not adversely affect the accuracy of the conclusions stated herein. Nevertheless, we undertake no responsibility to advise you of any new developments in the application or interpretation of the federal income tax laws. 2. This opinion addresses only the classification of the Merger as a reorganization under Section 368(a) of the Code and the consequences of the Merger as described above, and does not address any other federal or any state, local, or foreign tax consequences that Evans & Sutherland Computer Corporation May 15, 1998 Page 4 may result from the Merger or any other transaction (including any transaction undertaken in connection with the Merger). 3. No opinion is expressed as to any transaction other than the Merger as described in the Agreement or to any transaction whatsoever, including the Merger, if all the transactions described in the Agreement are not consummated in accordance with the terms of the Agreement and without waiver or breach of any material provision thereof or if all of the representations, warranties, statements and assumptions upon which we relied are not true and accurate at all relevant times. In the event any one of the statements, representations, warranties, or assumptions upon which we have relied to issue this opinion is incorrect, our opinion might be adversely affected and may not be relied upon. 4. The opinion set forth herein is intended solely for the purpose of including this opinion as an exhibit to the Registration Statement and is intended solely for your benefit. It may not be relied upon for any other purpose or by any other person or entity, and may not be made available to any other person or entity without our prior written consent. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the use of our name under the heading "Material Federal Income Tax Consequences." Yours truly, -----END PRIVACY-ENHANCED MESSAGE-----