Registration
Number 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
MERCURY COMPUTER SYSTEMS, INC.
(Exact name of issuer as specified in its charter)
Massachusetts 04-2741391
(State of Incorporation) (IRS Employer Identification Number)
199 Riverneck Road, Chelmsford, MA 01824
(Address of Principal Executive Offices)
(978) 256-1300
(Registrant's telephone number, including area code)
MERCURY COMPUTER SYSTEMS, INC.
1982 Stock Option Plan
1991 Stock Option Plan
1993 Stock Option Plan for Non-Employee Directors
1997 Stock Option Plan
1997 Employee Stock Purchase Plan
(Full title of the Plans)
Anthony J. Medaglia, Jr., Esquire
Hutchins, Wheeler & Dittmar
A Professional Corporation
l01 Federal Street
Boston, Massachusetts 02110
(617) 951-6600
(Name, address and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
Title of Securities to be Amount to be Proposed Proposed Amount of
Registered Registered Maximum Maximum Registration Fee
(1) Offering Price Aggregate (6)
Per Share Offering Price
Common Stock (par value 2,052,958 (2) $ 3.1157 (3) $ 6,396,402 $1,887
$.01 per share)
1,472,042 (4) $ 16.5625 (5) $24,380,696 $7,193
TOTAL AMOUNT 3,525,000 $30,777,098 $9,080
shares
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(1) Also registered hereunder are such additional number of shares of Common
Stock, presently indeterminable, as may be necessary to satisfy the
antidilution provisions of the Plan to which this Registration Statement
relates.
(2) Represents the sum of all shares reserved for issuance upon exercise of
options under the 1982 Stock Option Plan, the 1991 Stock Option Plan, the
1993 Stock Option Plan for Non- Employee Directors and the 1997 Stock
Option Plan (collectively, the "Option Plans") which are currently
outstanding, plus all shares issued upon exercise of options granted under
the Option Plans.
(3) Represents the weighted average exercise price of options which have been
granted under the Option Plans which are either outstanding or have been
exercised.
(4) Represents shares reserved for issuance upon exercise of options reserved
for grant under the Option Plans and shares reserved for issuance under the
1997 Employee Stock Purchase Plan.
(5) Represents the average of the high and low prices reported on the NASDAQ
National Market on May 18, 1998.
(6) Determined in accordance with Rule 457 of the Securities Act of 1933, as
amended.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The Company hereby incorporates by reference the documents listed in (a)
through (c) below. In addition, all documents subsequently filed by the Company
pursuant to Section 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of
1934 (prior to 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 a part thereof from the date of filing of such
documents.
(a) The Company's latest Prospectus, dated January 29, 1998, filed pursuant
to Rule 424(b) under the Securities Act of 1933 which contains audited financial
statements for the Company's latest fiscal year for which such statements have
been filed.
(b) All of the reports filed by the Company 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 Prospectus referred to in (a) above.
(c) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form S-1, File No. 333-41139, filed on
November 26, 1997, as amended on January 7, 1998, January 23, 1998 and January
28, 1998.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
The validity of the authorization and issuance of the Common Stock offered
hereby will be passed upon for the Company by Hutchins, Wheeler & Dittmar, A
Professional Corporation, Boston, Massachusetts. Anthony J. Medaglia, Jr., a
stockholder of Hutchins, Wheeler & Dittmar, A Professional Corporation, and the
clerk of the Company beneficially owns 27,750 shares of the Compan's Common
Stock. James Westra, who is a stockholder of Hutchins, Wheeler & Dittmar, A
Professional Corporation, beneficially owns 5,150 shares of the Company's Common
Stock.
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Item 6. Indemnification of Directors and Officers
Section 67 of Chapter 156B of the General Laws of the Commonwealth of
Massachusetts provides as follows:
"Section 67. Indemnification of directors, officers, employees and other
agents of a corporation, and persons who serve at its request as directors,
officers, employees or other agents of another organization, or who serve at its
request in any capacity with respect to any employee benefit plan, may be
provided by it to whatever extent shall be specified in or authorized by (i) the
articles of organization or (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. Except as the articles of organization or
by-laws otherwise require, indemnification of any persons referred to in the
preceding sentence who are not directors of the corporation may be provided by
it to the extent authorized by the directors. Such indemnification may include
payment by the corporation of expenses incurred in defending a civil or criminal
action or proceeding in advance of the final disposition of such action or
proceeding, upon receipt of an undertaking by the person indemnified to repay
such payment if he shall be adjudicated to be not entitled to indemnification
under this section which undertaking may be accepted without reference to the
financial ability of such person to make repayment. Any such indemnification may
be provided although the person to be indemnified is no longer an officer,
director, employee or agent of the corporation or of such other organization or
no longer serves with respect to any such employee benefit plan.
No indemnification shall be provided for any person with respect to any
matter as to which he shall have been adjudicated in any proceeding 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 that such matter relates to service
with respect to an employee benefit plan, in the best interests of the
participants or beneficiaries of such employee benefit plan.
The absence of any express provision for indemnification shall not limit
any right of indemnification existing independently of this section.
A corporation shall have power to purchase and maintain insurance on behalf
of any person who is or was a director, officer, employee or other agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or other agent of another organization or with
respect to any employee benefit plan, against any liability incurred by him in
any such capacity, or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such liability."
Article 6 of the Restated Articles of Organization, as amended, of the
Company reads as follows:
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Article 6.
"Other lawful provisions for the conduct and regulation of the business and
affairs of the Corporation, for its voluntary dissolution or for limiting,
defining or regulating the powers of the Corporation, or of its directors or
stockholders, or of any class of stockholders are as follows: [...]
No Director of the Corporation shall be liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a Director
notwithstanding any statutory provision or other law imposing such liability,
except for liability of a director (i) for any breach of the Director's duty of
loyalty to the Corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 61 or 62 of Chapter 156 of the Massachusetts General
Laws, or (iv) for any transaction from which the Director derived an improper
personal benefit."
Article 7 of the Amended By-Laws of the Company provides as follows:
Article 7.
Indemnification of Directors and Officers
Section 7.1 Definitions
"For purposes of this Article 7:
(a) 'Director/officer' means any person who is serving or has served as a
Director, officer or employee of the Corporation appointed or elected by the
Board of Directors or the stockholders of the Corporation, or any Director,
officer or employee of the Corporation who is serving or has served at the
request of the Corporation as a Director, officer, trustee, principal, partner,
employee or other agent of any other organization.
(b) 'Proceeding' means any action, suit or proceeding, civil or criminal,
brought or threatened in or before any court, tribunal, administrative or
legislative body or agency.
(c) 'Expense' means any fine or penalty, and any liability fixed by a judgment,
order, decree or award in a Proceeding, any amount reasonably paid in settlement
of a Proceeding and any professional fees and other disbursements reasonably
incurred in connection with a Proceeding.
Section 7.2 Right to Indemnification
Except as limited by law or as provided in Sections 7.3 and 7.4 of this
Article 7, each Director/officer (and his heirs and personal representatives)
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shall be indemnified by the Corporation against any Expense incurred by such
Director/officer in connection with each Proceeding in which he or she is
involved as a result of his or her serving or having served as a
Director/officer.
Section 7.3 Indemnification Not Available
No indemnification shall be provided to a Director/officer with respect to
a Proceeding as to which it shall have been adjudicated that he or she did not
act in good faith in the reasonable belief that his or her action was in the
best interests of the Corporation.
Section 7.4 Compromise or Settlement
In the event that a Proceeding is compromised or settled so as to impose
any liability or obligation on a Director/officer or upon the Corporation, no
indemnification shall be provided as to said Director/officer with respect to
such Proceeding if such Director/officer shall have been adjudicated not to have
acted in good faith in the reasonable belief that his or her action was in the
best interests of the Corporation.
Section 7.5 Advances
The Corporation shall pay sums on account of indemnification in advance of
a final disposition of a Proceeding upon receipt of an undertaking by the
Director/officer to repay such sums if it is subsequently established that he or
she is not entitled to indemnification pursuant to Sections 7.3 and 7.4 hereof,
which undertaking may be accepted without reference to the financial ability of
such person to make repayment.
Section 7.6 Not Exclusive
Nothing in this Article 7 shall limit any lawful rights to indemnification
existing independently of this Article 7.
Section 7.7 Insurance
The provisions of this Article 7 shall not limit the power of the Board of
Directors to authorize the purchase and maintenance of insurance on behalf of
any Director/officer against any Expense whether or not the Corporation would
have the power to indemnify such Director/officer against such Expense under
this Article 7."
Item 7. Exemption from Registration Claimed
Not Applicable.
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Item 8. Exhibits
Number Description
4.1 1982 Stock Option Plan (incorporated by reference to Exhibit 10.1 to the
Company's Registration Statement on Form S-1 (333-41139))
4.2 1991 Stock Option Plan (incorporated by reference to Exhibit 10.2 to the
Company's Registration Statement on Form S-1 (333-41139))
4.3 1993 Stock Option Plan for Non-Employee Directors (incorporated by
reference to Exhibit 10.3 to the Company's Registration Statement on
Form S-1 (333-41139))
4.4 1997 Stock Option Plan (incorporated by reference to Exhibit 10.4 to the
Company's Registration Statement on Form S-1 (333-41139))
4.5 The First Amendment to the 1997 Stock Option Plan filed herewith
4.6 1997 Employee Stock Purchase Plan (incorporated by reference to
Exhibit 10.5 to the Company's Registration Statement on Form S-1
(333-41139))
5.1 Opinion of Hutchins, Wheeler & Dittmar, A Professional Corporation
23.1 Consent of Independent Public Accountants
23.2 Consent of Hutchins, Wheeler & Dittmar, A Professional Corporation
(included in Exhibit 5.1)
Item 9. Undertakings
The undersigned Registrant hereby undertakes the following:
(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;
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(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;
(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)(l)(i) and (a)(l)(ii) do not apply if 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 the purpose of determining any liability under the
Securities Act of 1933, 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 of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) 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) The undersigned Registrant hereby undertakes, that, insofar as
indemnification for liabilities arising under the Securities Act of 1933 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 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
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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 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 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 Chelmsford, Massachusetts on May 21, 1998.
MERCURY COMPUTER SYSTEMS, INC.
By /s/ James R. Bertelli
James R. Bertelli
President
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/ James R. Bertelli President, Chief Executive May 21, 1998
James R. Bertelli Officer and Director
/s/ G. Mead Wyman Vice President, Chief May 21, 1998
G. Mead Wyman Financial Officer and
Treasurer
/s/ Gordon B. Baty Director May 21, 1998
Gordon B. Baty
/s/ R. Schorr Berman Director May 21, 1998
R. Schorr Berman
/s/ Albert P. Belle Isle Director May 21, 1998
Albert P. Belle Isle
/s/ Sherman N. Mullin Director May 21, 1998
Sherman N. Mullin
/s/ Melvin Sallen Director May 21, 1998
Melvin Sallen
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
EXHIBITS
to
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
MERCURY COMPUTER SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
Exhibit 4.5 First Amendment to the 1997 Stock Option Plan
MERCURY COMPUTER SYSTEMS, INC.
First Amendment to the
Mercury Computer Systems, Inc. 1997 Stock Option Plan
In accordance with the provisions of Section 20 of the Mercury Computer
Systems, Inc. 1997 Stock Option Plan (the "Plan"), the Plan is amended as
follows:
1. Section 2 of the Plan is hereby amended by increasing the number of
shares subject to the Plan from Five Hundred Seventy-Five Thousand (575,000)
shares to One Million Three Hundred Twenty-Five Thousand (1,325,000) shares of
the $.01 par value common stock of the Corporation.
2. This Amendment shall take effect as of the date of its adoption by the
Mercury Computer Systems, Inc. Board of Directors and upon its approval by the
stockholders of Mercury Computer Systems, Inc. in accordance with the provisions
of Section 20 of the Plan.
3. Except as hereinabove provided, the Plan is hereby ratified and
confirmed in all respects.
MERCURY COMPUTER SYSTEMS, INC.
By: /s/ Anthony J. Medaglia, Jr.
Anthony J. Medaglia, Jr.
Clerk
Adopted by the Board of Directors October 20, 1997
Adopted by the Stockholders December 18, 1997
Exhibit 5.1 Opinion of Hutchins, Wheeler & Dittmar, A Professional Corporation
May 21, 1998
Mercury Computer Systems, Inc.
199 Riverneck Road
Chelmsford, MA 01824
Ladies and Gentlemen:
We are general counsel to Mercury Computer Systems, Inc., a Massachusetts
corporation (the "Company"), and as such counsel we are familiar with the
corporate proceedings taken in connection with the adoption of the Company's
1982 Stock Option Plan, 1991 Stock Option Plan, 1993 Stock Option Plan for
Non-Employee Directors, 1997 Stock Option Plan and 1997 Employee Stock Purchase
Plan (collectively the "Plans"). We are also familiar with the registration
statement on Form S-8 to which a copy of this opinion will be attached as an
exhibit.
As such counsel, we have examined the corporate records of the Company,
including the Restated Articles of Organization, By-laws, stock records, minutes
of meetings of its Board of Directors and stockholders and such other documents
as we have deemed necessary as a basis for the opinions herein expressed.
Based upon the foregoing, and having regard for such legal considerations
as we deem relevant, we are of the opinion that:
1. The Company is duly organized and validly existing under the laws of the
Commonwealth of Massachusetts;
2. The Company has authorized the issuance of 25,000,000 shares of common
stock having a par value of $.01 per share and 1,000,000 shares of preferred
stock having a par value of $.01 per share.
3. The shares of common stock issuable pursuant to the Plans, when sold in
accordance with the terms thereof, will be legally issued, fully paid and
non-assessable.
Mercury Computer Systems, Inc.
May 21, 1998
Page 2
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement on Form S-8 and to the reference to us under the caption
"Interests of Named Experts and Counsel" in the Registration Statement.
Very truly yours,
/s/Hutchins, Wheeler & Dittmar
HUTCHINS, WHEELER & DITTMAR
A Professional Corporation
Exhibit 23.1 Consent of Independent Public Accountants
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement
of Mercury Computer Systems, Inc. (the "Company") on Form S-8 of our report
dated August 28, 1997, except for the information in the final paragraph of Note
F, as to which the date is December 12, 1997, on our audits of the consolidated
financial statements of the Company as of June 30, 1996 and 1997, and for the
three years in the period ended June 30, 1997, which report is included in the
Company's registration statement on Form S-1 (File No. 333-41139) filed with the
Securities and Exchange Commission pursuant to the Securities Act of 1933.
Coopers & Lybrand L.L.P.
/s/Coopers & Lybrand L.L.P.
Boston, Massachusetts
May 21, 1998
