-----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, ENoXU+1A3O8Gcy/n/ubGOkrntnTzjaAsOD9+X0uRTgXxQi+/Iy0tBZ0coygzhdz0 +JgLPAstUKmpE4ZkeJuqZw== 0000950147-98-000280.txt : 19980414 0000950147-98-000280.hdr.sgml : 19980414 ACCESSION NUMBER: 0000950147-98-000280 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19980410 EFFECTIVENESS DATE: 19980410 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: MICROAGE INC /DE/ CENTRAL INDEX KEY: 0000814249 STANDARD INDUSTRIAL CLASSIFICATION: WHOLESALE-COMPUTER & PERIPHERAL EQUIPMENT & SOFTWARE [5045] IRS NUMBER: 860321346 STATE OF INCORPORATION: DE FISCAL YEAR END: 1103 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-49961 FILM NUMBER: 98591931 BUSINESS ADDRESS: STREET 1: 2400 S MICROAGE WY MS8 CITY: TEMPE STATE: AZ ZIP: 85282 BUSINESS PHONE: 6028042000 MAIL ADDRESS: STREET 1: 2400 SOUTH MICROAGE WAY MS8 CITY: TEMPE STATE: AZ ZIP: 85282 S-8 1 INITIAL STATEMENT As filed with the Securities and Exchange Commission on April 10, 1998 Registration No. SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 MICROAGE, INC. (Exact Name of Registrant as Specified in Its Charter) Delaware 86-0321346 (State or Other Jurisdiction (I.R.S. Employer of Incorporation) Identification No.) 2400 South MicroAge Way, Tempe, Arizona, 85252-1896 (Address of Principal Executive Offices) (Zip Code) MICROAGE, INC. 1995 DIRECTOR INCENTIVE PLAN (AMENDED AND RESTATED AS OF APRIL 1, 1998) (Full Title of the Plan) James H. Domaz Copy to: Corporate Counsel Matthew P. Feeney MicroAge, Inc. SNELL & WILMER 2400 South MicroAge Way One Arizona Center Tempe, Arizona 85282-1896 Phoenix, Arizona 85004-0001 (Name and Address of Agent For Service) (602) 366-2000 Telephone Number, Including Area Code, of Agent For Service CALCULATION OF REGISTRATION FEE Proposed Proposed Title of Maximum Maximum Securities Amount Offering Aggregate Amount of To Be To Be Price Offering Registration Registered Registered Per Share(1) Price(1) Fee ---------- ---------- ------------ --------- ------------ Common Stock 170,000 $13.31 $2,262,700 $667.50(2) ($.01 par value per share) - ------------------------- 1 Estimated solely for the purpose of calculating the amount of the registration fee, pursuant to Rules 457(c) and 457(h) of the Securities Act of 1933 (the "Securities Act"), on the basis of the average of the high and low prices for shares of Common Stock on April 9, 1998. 2 Pursuant to Rule 429 of the Securities Act, a combined prospectus relating to the 170,000 shares of Common Stock registered hereby and 80,000 shares of Common Stock registered on April 28, 1995 pursuant to Registration No. 33-58899 will be delivered to plan participants in accordance with Form S-8 and Rule 428 of the Securities Act. The previously-paid filing fees associated with the referenced securities registered under Registration No. 33-58899 totaled $260.67. PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS The documents containing the information specified in Part I, Items 1 and 2, will be delivered to plan participants in accordance with Form S-8 and Rule 428 of the Securities Act. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Certain Documents by Reference. ----------------------------------------------- The following documents have been filed by MicroAge, Inc. (the "Registrant") with the Securities and Exchange Commission pursuant to the Securities Exchange Act of 1934 and are incorporated herein by reference: 1. Annual Report on Form 10-K for the fiscal year ended November 2, 1997. 2. Quarterly Report on Form 10-Q for the fiscal quarter ended February 1, 1998. 3. The description of the Registrant's Common Stock included in Registration Statements on Form 8-A dated June 12, 1987 (as amended on August 5, 1993, March 28, 1994, and December 30, 1994), February 24, 1989 (as amended on March 28, 1994 and December 30, 1994), and December 30, 1994. All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the filing of a post-effective amendment to this Registration Statement 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 hereof from the date of filing such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. Item 4. Description of Securities. Not applicable. ------------------------- Item 5. Interests of Named Experts and Counsel. Not applicable. -------------------------------------- Item 6. Indemnification of Directors and Officers. ----------------------------------------- Reference is made to Section 145 of the Delaware General Corporation Law (the "Delaware GCL"), as amended from time to time ("Section 145"), which provides for indemnification of directors and officers of a corporation in certain circumstances. Under Article IX of the Registrant's Restated Certificate of Incorporation, as amended, and Article VII of the By-laws of the Registrant, the Registrant shall, to the fullest extent permitted by Section 145, indemnify all persons whom it may indemnify pursuant thereto. The provisions of Article VII of the By-laws of the Registrant and Article IX of the Registrant's Restated Certificate of Incorporation, among other matters, require the Registrant to indemnify certain persons to the fullest extent authorized by the Delaware GCL, as the same exists or may hereafter be amended (but, in the case of any such amendment only to the extent that such amendment permits the Registrant to provide broader indemnification rights than such law permitted the Registrant to provide prior to such amendment). Article VII of the By-laws of the Registrant and Article IX of the Registrant's Restated Certificate of Incorporation provide that the right to indemnification is a contract right and that advances of expenses incurred in defending a proceeding are mandatory, provided that if required by the Delaware GCL, the person seeking such advances furnishes an undertaking to the Registrant to repay all amounts so advanced if it shall be determined by a final adjudication that the person who received such expenses is not entitled to be indemnified. Article VII of the By-laws of the Registrant and Article IX of the Registrant's Restated Certificate of Incorporation also expressly provide that any person claiming indemnification may sue the Registrant for payment of amounts due, that the Registrant in such case will have the burden of proving that the claimant has not met the standards of conduct which make it permissible to indemnify the person for the amount claimed under the Delaware GCL (except in the case of a claim for advancement of expenses, where the required undertaking, if any, has been tendered, in which case it shall not be a defense that the person has not met the applicable standards of conduct) and that neither the failure by the Registrant to have made a determination that indemnification is proper, nor an actual determination by the Registrant that the claimant has not met the applicable standard of conduct, is a defense to the action or creates a presumption that the claimant has not met the applicable standard of conduct. The Registrant currently maintains directors' and officers' liability insurance to supplement the protection provided in the Registrant's Restated Certificate of Incorporation, as amended and its By-laws and to fund certain payments that the Registrant may be required to make under any such provisions. Such insurance is renewable annually and is subject to standard terms and conditions, including exclusions from coverage. Item 7. Exemption from Registration Claimed. Not applicable. ----------------------------------- Item 8. Exhibits. -------- Exhibit No. Description ----------- ----------- 5 Opinion of Snell & Wilmer L.L.P. 23.1 Consent of Price Waterhouse LLP 23.2 Consent of Snell & Wilmer L.L.P. (included in the opinion filed as Exhibit 5). 24 Power of Attorney (included in signature pages). 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. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective 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; (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) 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 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 of 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. SIGNATURES The Registrant. 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 Tempe, State of Arizona, on April 1, 1998. MICROAGE, INC. By: /s/ Jeffrey D. McKeever ----------------------------------- Jeffrey D. McKeever 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 Jeffrey D. McKeever and James R. Daniel, and each of them, as attorneys-in-fact, to sign his or her name on his or her behalf, individually and in each capacity designated below, and to file any additional amendments, including post-effective amendments to this Registration Statement.
Signature Title Date --------- ----- ---- By: /s/ Jeffrey D. McKeever Director, Chairman of the April 1, 1998 --------------------------------- Board, Chief Executive Officer Jeffrey D. McKeever (Principal Executive Officer) By: /s/ William H. Mallender Director April 1, 1998 --------------------------------- William H. Mallender By: /s/ Steven G. Mihaylo Director April 1, 1998 --------------------------------- Steven G. Mihaylo By: /s/ Cyrus F. Freidheim, Jr. Director April 1, 1998 --------------------------------- Cyrus F. Freidheim, Jr. By: /s/ Lynda M. Applegate Director April 1, 1998 --------------------------------- Lynda M. Applegate By: /s/ Roy A. Herberger, Jr. Director April 1, 1998 --------------------------------- Roy A. Herberger, Jr. By: /s/ James R. Daniel Senior Vice President, Chief April 1, 1998 --------------------------------- Financial Officer, and James R. Daniel Treasurer (Principal Financial Officer) By: /s/ Raymond L. Storck Vice President, Controller, and April 1, 1998 -------------------------------- Assistant Treasurer (Principal Raymond L. Storck Accounting Officer)
EX-5 2 OPINION RE: LEGALITY EXHIBIT 5 April 9, 1998 MICROAGE, INC. 2400 South MicroAge Way Tempe, AZ 85282 Ladies and Gentlemen: Reference is made to your proposed offering pursuant to the Amended and Restated MicroAge, Inc. 1995 Director Incentive Plan (the "Plan") of up to 170,000 shares of the Registrant's Common Stock, $.01 par value (the "Plan Shares"), as contemplated in the Registration Statement on Form S-8 and the Exhibits thereto to be filed by the Registrant with the Securities and Exchange Commission (the "SEC"), under the Securities Act of 1933, as amended, on April 1, 1998 (the "Registration Statement"). It is our opinion that: 1. The Registrant has been duly organized and is validly existing as a corporation under the laws of the State of Delaware. 2. The Plan Shares, when issued and sold in accordance with the terms of the Plan, will be legally issued, fully paid, and non-assessable. In rendering this opinion, we have reviewed and relied upon such documents and records of the Registrant as we have deemed necessary and have assumed the following: (i) the genuineness of all signatures and the authenticity of documents submitted to us as originals, and the conformity to originals of all documents submitted to us as copies; (ii) the accuracy, completeness, and genuineness of all representations and certifications with respect to factual matters, made to us by officers of the Registrant and public officials; and (iii) the accuracy and completeness of Registrant's records. The opinions expressed herein are limited solely to the laws of the State of Delaware. We express no opinion on the laws of any other jurisdiction or the applicability or effect of any such laws or principles. The opinions expressed herein are based upon the law and other matters in effect on the date hereof, and we assume no obligation to revise or supplement this opinion should such law be changed by legislative action, judicial decision, or otherwise, or should any facts or other matters upon which we have relied be changed. We hereby consent to the use of this opinion as an exhibit to the Registration Statement. Very truly yours, SNELL & WILMER L.L.P. EX-23.1 3 CONSENT OF PRICE WATERHOUSE LLP Exhibit 23.1 Consent of Independent Accountants We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated December 9, 1997 appearing in MicroAge, Inc.'s Annual Report on Form 10-K for the fiscal year ended November 2, 1997. /s/ Price Waterhouse LLP PRICE WATERHOUSE LLP Phoenix, Arizona April 10, 1998 -----END PRIVACY-ENHANCED MESSAGE-----