-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, VZS+5B4p62CHlFmuVsu8HA6M3mpUa1FjdtVYdxd1rN0G74Mp0qQ/OfNH4i0T+OZU Hvu6i8BiirjC0ukj500wBw== 0000950134-94-000805.txt : 19940715 0000950134-94-000805.hdr.sgml : 19940715 ACCESSION NUMBER: 0000950134-94-000805 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19940714 EFFECTIVENESS DATE: 19940802 FILER: COMPANY DATA: COMPANY CONFORMED NAME: DELL COMPUTER CORP CENTRAL INDEX KEY: 0000826083 STANDARD INDUSTRIAL CLASSIFICATION: 3571 IRS NUMBER: 742487834 STATE OF INCORPORATION: DE FISCAL YEAR END: 0131 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 033-54577 FILM NUMBER: 94538905 BUSINESS ADDRESS: STREET 1: 9505 ARBORETUM BLVD CITY: AUSTIN STATE: TX ZIP: 78759-7299 BUSINESS PHONE: 5123384400 MAIL ADDRESS: STREET 1: 9505 ARBORETUM BLVD CITY: AUSTIN STATE: TX ZIP: 78759-7299 S-8 1 FORM S-8 1 As filed with the Securities and Exchange Commission on July 14, 1994 Registration No. 33-______________ ================================================================================ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 DELL COMPUTER CORPORATION (Exact name of registrant as specified in its charter) DELAWARE 74-2487834 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 9505 ARBORETUM BOULEVARD AUSTIN, TEXAS 78759-7299 (Address, including ZIP code, of registrant's principal executive offices) DELL COMPUTER CORPORATION 1993 STOCK OPTION PLAN (Full title of the plan) MICHAEL S. DELL DELL COMPUTER CORPORATION 9505 ARBORETUM BOULEVARD AUSTIN, TEXAS 78759-7299 (512) 338-4400 (Name, address, including ZIP code, and telephone number, including area code, of agent for service) Copies to: ROBERT L. KIMBALL RICHARD E. SALWEN JOHNSON & WORTLEY, P.C. DELL COMPUTER CORPORATION 900 JACKSON STREET 9505 ARBORETUM BOULEVARD DALLAS, TEXAS 75202 AUSTIN, TEXAS 78759-7299
CALCULATION OF REGISTRATION FEE ================================================================================================================== Proposed Proposed Title of maximum maximum securities Amount to be offering price aggregate Amount of to be registered registered per share (1) offering price (1) registration fee - ------------------------------------------------------------------------------------------------------------------ Common Stock 2,216,370 $ 26.94 $ 59,709,007.80 $ 20,589.46 Shares (2) ==================================================================================================================
(1) Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(h) promulgated under the Securities Act of 1933, as amended, based on the average of the high and low prices for registrant's common stock reported in the NASDAQ National Market System on July 7, 1994, pursuant to Rule 457(c). (2) Pursuant to Rule 416, there are also being registered such additional shares of Common Stock as may become issuable pursuant to the antidilution provisions of the Dell Computer Corporation 1989 Stock Option Plan. 2 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE The documents listed in (a) through (c) below are hereby incorporated by reference into this registration statement on Form S-8 (this "Registration Statement"). (a) The registrant's Annual Report on Form 10-K for the fiscal year ended January 30, 1994. (b) All other reports filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 since the end of the fiscal year covered by the Annual Report on Form 10-K referred to in (a) above. (c) The description of the registrant's common stock in Item 1 of the registrant's Registration Statement on Form 8-A dated June 20, 1988, including any amendment or report filed for the purpose of updating such description. All documents subsequently filed by Dell Computer Corporation (the "Company" or "Registrant") pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), after the date of this Registration Statement and before the filing of a post-effective amendment to the Registration Statement which indicates that all shares of Common Stock, par value $.01 per share, offered hereunder have been sold or that deregister all such shares then remaining unsold shall be deemed to be incorporated herein by reference and to be a part hereof from the date of filing of such documents. ITEM 4. DESCRIPTION OF SECURITIES Not Required. ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL None. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS The Registrant's Certificate of Incorporation provides that no director of the Registrant will be personally liable to the Registrant or any of its stockholders for monetary damages arising from the director's breach of fiduciary duty as a director. However, this does not apply with respect to any action in which the director would be liable under Section 174 of Title 8 of the General Corporation Law of Delaware nor does it apply with respect to any liability in which the director (i) breached his duty of loyalty to the Registrant; (ii) did not act in good faith or, in failing to act, did not act in good faith; (iii) acted in a manner involving intentional misconduct or a knowing violation of law or, in failing to act, shall have acted in a manner involving intentional misconduct or a knowing violation of law; or (iv) derived an improper personal benefit. The Registrant's Certificate of Incorporation and Bylaws provide that it will indemnify its officers and directors and former officers and directors against any expenses, judgments or settlement payments sustained or paid by such persons as a result of having acted as an officer or director of the Registrant, or, at the request of the Registrant, as an officer, director, agent or employee of another business entity. The Bylaws further provide that 2 3 the Registrant may, by action of its Board of Directors, provide indemnification to employees and agents of the Registrant, individually or as a group, with the same scope and effect as the indemnification of directors and officers. The Registrant has entered into indemnity contracts with some of its executive officers and directors. Each such Indemnity Agreement provides for indemnification of officers and directors of the Registrant to the greatest extent permitted by the General Corporation Law of Delaware and additionally provides (i) that such persons shall be indemnified for amounts paid in settlement of derivative actions; (ii) for advances of investigation and litigation expenses subject to repayment if indemnification is disallowed; (iii) that indemnification is available unless the Board of Directors or independent legal counsel determines that the relevant standards were not satisfied, with the Registrant bearing the burden of proving same in any suit for indemnification; (iv) for partial indemnification where the officer or director is not entitled to full indemnification; (v) that no claim or cause of action may be asserted by or on behalf of the Registrant after the expiration of two years from the date such persons cease to be directors and/or officers with respect to claims against them in such capacities; and (vi) for payment to such persons of expenses incurred in connection with the successful prosecution, in whole or in part, of any amount not timely paid (generally within 30 days of demand) by the Registrant. In addition, the Registrant currently maintains directors and officers liability insurance. Pursuant to the provisions of Section 145 of the General Corporation Law of Delaware, every Delaware corporation has the power to 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 (other than an action by or in the right of the corporation) by reason of the fact that he is or was a director, officer, employee or agent of any corporation, partnership, joint venture, trust or other enterprise, against any and all expenses, judgments, fines and amounts paid in settlement and reasonably incurred in connection with such action, suit or proceeding. The power to indemnify applies only if such person acted in good faith and in a manner he reasonably believed to be in the best interest, or not opposed to the best interest, of the corporation and with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The power to indemnify applies to actions brought by or in the right of the corporation as well, but only to the extent of defense and settlement expenses and not to any satisfaction of a judgment or settlement of the claim itself, and with the further limitation that in such actions no indemnification shall be made in the event of any adjudication of negligence or misconduct unless the court, in its discretion, believes that in light of all the circumstances indemnification should apply. To the extent any of the persons referred to in the two immediately preceding paragraphs is successful in the defense of the actions referred to therein, such person is entitled pursuant to Section 145 to indemnification as described above. Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended (the "Securities Act"), may be permitted to directors, officers or persons controlling the Registrant pursuant to the foregoing provisions, the Registrant has been informed 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. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED Not Applicable 3 4 ITEM 8. EXHIBITS 4.1 Certificate of Incorporation of Dell Computer Corporation, as amended (incorporated by reference to Exhibit 3.1 of the Company's Annual Report on Form 10-K for the year ended February 2, 1992, Commission File No. 0-17017). 4.2 Certificate of Amendment to the Certificate of Incorporation of the Company (incorporated by reference to Exhibit 3.2 of the Company's Annual Report on Form 10-K for the year ended January 31, 1993, Commission File No. 0-17017). 4.3 Certificate of Stock Designation of the Company (incorporated by reference to Exhibit 3.3 of the Company's Registration Statement on Form S-4 as filed with the Securities and Exchange Commission on October 1, 1993, Registration No. 33-69680). 4.4 Certificate of Corrections dated April 27, 1994 (incorporated by reference to Exhibit 3.1 of the Company's Report on form 10-Q for the Quarterly Period ended May 1, 1994, Commission file No. 0-17017). 4.5 Bylaws of the Company, as amended (incorporated by reference to Exhibit 3.2 of the Company's Annual Report on Form 10-K for the year ended February 2, 1992, Commission File No. 0-17017). 4.6 Dell Computer Corporation 1993 Stock Option Plan (incorporated by reference to Exhibit 10.36 of the Company's Registration Statement on Form S-4 as filed with the Securities and Exchange Commission on October 1, 1993, Registration Statement No. 33-69680). 4.7 Form of Incentive Stock Option Agreement and Nonstatutory Stock Option Agreement under the 1993 Stock Option Plan (incorporated by reference to Exhibit 10.37 of the Company's Registration Statement on Form S-4 as filed with the Securities and Exchange Commission on October 1, 1993, Registration Statement No. 33-69680). 5 Opinion of Johnson & Wortley, P.C. 23.1 Consent of Price Waterhouse. 23.2 Consent of Johnson & Wortley, P.C. (included in Exhibit 5) 24 Power of Attorney of officers and directors of the Company (included on signature page).
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: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (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; 4 5 (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 (a)(1)(i) and (a)(1)(ii) do not apply if the Registration Statement is on Form S-3, Form S-8 or Form F-3 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 Securities Exchange Act of 1934 that are incorporated by reference in the Registration Statement. 2. That, for any 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 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. (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 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 the final adjudication of such issue. 5 6 SIGNATURES Pursuant to 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-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Austin, State of Texas, on July 8, 1994. DELL COMPUTER CORPORATION (Registrant) By: /s/ MICHAEL S. DELL Michael S. Dell Chairman of the Board and Chief Executive Officer 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 date indicated. Each person whose signature appears below hereby authorizes and appoints Michael S. Dell and Thomas J. Meredith as his or her attorney-in-fact to sign on his or her behalf individually and in the capacity stated below all amendments and to this Registration Statement as that attorney-in-fact may deem necessary or appropriate. /s/ MICHAEL S. DELL July 8, 1994 - -------------------------------------------------- Michael S. Dell Chairman of the Board, Chief Executive Officer and Director /s/ THOMAS J. MEREDITH July 8, 1994 - ------------------------------------------------ Thomas J. Meredith Chief Financial Officer (principal financial officer) /s/ DONALD J. CARTY July 8, 1994 - ------------------------------------------------- Donald J. Carty Director /s/ PAUL O. HIRSCHBIEL, JR. July 8, 1994 - -------------------------------------------------- Paul O. Hirschbiel, Jr. Director
7 /s/ MICHAEL H. JORDAN July 8, 1994 - ------------------------------------------------- Michael H. Jordan Director /s/ GEORGE KOZMETSKY July 8, 1994 - ------------------------------------------------ George Kozmetsky Director /s/ THOMAS W. LUCE III July 8, 1994 - ----------------------------------------------- Thomas W. Luce III Director /s/ CLAUDINE B. MALONE July 8, 1994 - ------------------------------------------------ Claudine B. Malone Director
8 EXHIBIT INDEX
Sequentially Exhibit Numbered No. Description of Exhibits Page - ------- ----------------------- ------------ 4.1 Certificate of Incorporation of Dell Computer Corporation, as amended (incorporated by reference to Exhibit 3.1 of the Company's Annual Report on Form 10-K for the year ended February 2, 1992, Commission File No. 0-17017). 4.2 Certificate of Amendment to the Certificate of Incorporation of the Company (incorporated by reference to Exhibit 3.2 of the Company's Annual Report on Form 10-K for the year ended January 31, 1993, Commission File No. 0-17017). 4.3 Certificate of Stock Designation of the Company (incorporated by reference to Exhibit 3.3 of the Company's Registration Statement on Form S-4 as filed with the Securities and Exchange Commission on October 1, 1993, Registration No. 33-69680). 4.4 Certificate of Corrections dated April 27, 1994 (incorporated by reference to Exhibit 3.1 of the Company's Report on form 10-Q for the Quarterly Period ended May 1, 1994, Commission file No. 0-17017). 4.5 Bylaws of the Company, as amended (incorporated by reference to Exhibit 3.2 of the Company's Annual Report on Form 10-K for the year ended February 2, 1992, Commission File No. 0-17017). 4.6 Dell Computer Corporation 1993 Stock Option Plan (incorporated by reference to Exhibit 10.36 of the Company's Registration Statement on Form S-4 as filed with the Securities and Exchange Commission on October 1, 1993, Registration Statement No. 33-69680). 4.7 Form of Incentive Stock Option Agreement and Nonstatutory Stock Option Agreement under the 1993 Stock Option Plan (incorporated by reference to Exhibit 10.37 of the Company's Registration Statement on Form S-4 as filed with the Securities and Exchange Commission on October 1, 1993, Registration Statement No. 33-69680). 5* Opinion of Johnson & Wortley, P.C. 23.1* Consent of Price Waterhouse. 23.2 Consent of Johnson & Wortley, P.C. (included in Exhibit 5) 24 Power of Attorney of officers and directors of the Company (included on signature page).
_________________________ * Filed herewith. 8 EX-5 2 OPINION OF JOHNSON & WORTLEY, P.C. 1 EXHIBIT 5 JOHNSON & WORTLEY A Professional Corporation Fax: 214/977-9004 ATTORNEYS AND COUNSELORS Other Locations: Metro: 214/263-6764 Austin, Texas 900 Jackson Street -- Suite 100 Houston, Texas Writer's Direct Dial Number Dallas, Texas 75202-4499 Washington, D.C. 214/977-9000 (214) 977-9611
July 14, 1994 Dell Computer Corporation 9505 Arboretum Boulevard Austin, Texas 78759-7299 Dear Sirs: This firm has acted as counsel to Dell Computer Corporation, a Delaware corporation ("the Company"), in connection with the registration under the Securities Act of 1933, as amended (the "Securities Act"), of the offer and sale of an aggregate of 2,216,370 shares of common stock, par value $.01 per share, of the Company (the "Common Stock"), as that number may be adjusted from time to time pursuant to the provisions of the Company's 1993 Stock Option Plan (the "Plan"), that may be issued pursuant to stock options granted under the Plan. Unless otherwise defined herein, terms having their initial letters capitalized have the meanings ascribed to them in the Plan. In reaching the opinion set forth herein, this firm has reviewed such agreements, certificates of public officials and officers of the Company, records, documents, and matters of law that this firm deemed relevant. Based upon and subject to the foregoing and subject further to the assumptions, exceptions, and qualifications hereinafter stated, this firm expresses the opinion that each share of Common Stock, when issued in accordance with the terms of the Plan and the relevant award Agreement, will be legally issued, fully paid and non-assessable. The opinion expressed above is subject to the following assumptions, exceptions, and qualifications: 1. This firm has assumed that (i) all information contained in all documents reviewed by this firm is true and correct, (ii) all signatures on all documents reviewed by this firm are genuine, (iii) all documents submitted to this firm as originals are true and complete, (iv) all documents submitted to us as copies are true and complete copies of the originals thereof, (v) each natural person signing any document reviewed by this firm had the legal capacity to do so, and (vi) each person signing in a representative capacity any document reviewed by this firm had authority to sign in such capacity. 2 2. This firm has also assumed that the Company will receive the full amount and type of consideration (as specified in the Plan and each applicable award agreement) for each of the shares of Common Stock or will have received that consideration upon the issuance of Common Stock pursuant to the applicable award agreement, that such consideration will be in cash, personal property, or services already performed, that such consideration will equal or exceed the par value per share of Common Stock, that appropriate certificates evidencing such shares will be properly executed upon such issuance, and that each grant of an award pursuant to the Plan will be duly authorized. The opinion expressed above is limited to the laws of the State of Texas, the Delaware General Corporation Law, and the federal laws of the United States of America. You should be aware that this firm is not admitted to the practice of law in the State of Delaware and the opinion herein with respect to the Delaware General Corporation law is based solely upon the unofficial compilation thereof contained in the Prentice-Hall Information Services Corporation Statutes as of the date hereof. This opinion may be filed as an exhibit to the Registration Statement. In giving this consent, we do not thereby admit that we come into the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Securities and Exchange Commission promulgated thereunder. Very truly yours, JOHNSON & WORTLEY A Professional Corporation By: /s/ JIM A. WATSON For the Corporation EX-23.1 3 CONSENT OF PRICE WATERHOUSE 1 EXHIBIT 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS We consent to the incorporation by reference in the Registration Statement on Form S-8 pertaining to the Dell Computer Corporation 1993 Stock Option Plan of our report dated March 2, 1994, with respect to the consolidated financial statements and schedules of Dell Computer Corporation included in its Annual Report on Form 10-K for the year ended January 30, 1994, filed with the Securities and Exchange Commission. /s/ PRICE WATERHOUSE PRICE WATERHOUSE Austin, Texas July 8, 1994 -----END PRIVACY-ENHANCED MESSAGE-----