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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 12, 2000
REGISTRATION NO. 333-58857
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Post-Effective Amendment No. 1 to
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
INGRAM MICRO INC.
(Exact Name of Registrant as Specified in Its Charter)
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DELAWARE 5045 62-1644402
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employee
incorporation or organization) Classification Code Number) Identification Number)
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1600 E. ST. ANDREW PLACE
SANTA ANA, CA 92705
(714) 566-1000
(Address, including zip code, and telephone number, including area code,
of Registrant's principal executive offices)
JAMES E. ANDERSON, JR., ESQ.
SENIOR VICE PRESIDENT, SECRETARY
AND GENERAL COUNSEL
INGRAM MICRO INC.
1600 E. ST. ANDREW PLACE
SANTA ANA, CA 92705
(714) 566-1000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
COPIES TO:
WINTHROP B. CONRAD, JR., ESQ.
DAVIS POLK & WARDWELL
450 LEXINGTON AVENUE
NEW YORK, NEW YORK 10017
(212) 450-4000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF THE SECURITIES TO
THE PUBLIC: Not applicable.
If the only securities being registered on this Form are being offered
pursuant to dividend or reinvestment plans, please check the following box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed on continuous basis pursuant to Rule 415 under the
Securities Act of 1933, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ] __________
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ] __________
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
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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.
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DEREGISTRATION OF DEBENTURES AND SHARES
The registration statement (File No. 333-58857) was originally filed to register
resales of zero coupon convertible debentures of Ingram Micro that were issued
in June 1998. The registration statement also covered resales of common stock,
if any, issued upon conversion of the debentures. Ingram Micro filed the
registration statement pursuant to its obligations under a registration rights
agreement. Ingram Micro's obligation to keep the registration statement
effective expires after June 9, 2000. Therefore, this Post-Effective Amendment
No. 1 to the registration statement is being filed to deregister, as of 9:00
a.m., Eastern time, June 30, 2000, all debentures and shares of common stock
that were registered under the registration statement but that have not been
previously sold under the prospectus that is a part of the registration
statement. As of June 12, 2000, Ingram Micro believes that $877,090,000
principal amount at maturity of debentures had been sold under the prospectus,
leaving $292,650,000 principal amount at maturity of debentures unsold under the
prospectus. As of June 12, 2000, $160,260,000 principal amount at maturity of
debentures have been cancelled. These numbers may change prior to
deregistration. No shares of common stock had been sold under the prospectus as
of that date, because no debentures had been converted into shares of common
stock.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
An itemized statement of the estimated amount of the expenses, other
than underwriting discounts and commissions, incurred and to be incurred in
connection with the distribution of the securities registered pursuant to this
Registration Statement follows. Except for the Securities and Exchange
Commission registration fee, all amounts are estimates.
Securities and Exchange Commission registration fee................ $142,973
Printing and engraving expenses.................................... 25,000
Accounting fees and expenses....................................... 15,000
Legal fees and expenses............................................ 50,000
Trustee fees and expenses.......................................... 5,000
Transfer Agent fees and expenses................................... 5,000
Miscellaneous...................................................... 7,027
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Total........................................................... $250,000
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ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law (the "DGCL")
provides, in effect, that any person made a party to any action by reason of the
fact that he is or was a director, officer, employee or agent of the Company may
and, in certain cases, must be indemnified by the Company against, in the case
of a non-derivative action, judgments, fines, amounts paid in settlement and
reasonable expenses (including attorneys' fees) incurred by him as a result of
such action, and in the case of a derivative action, against expenses (including
attorneys' fees), if in either type of action he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Company. This indemnification does not apply, in a derivative action, to
matters as to which it is adjudged that the director, officer, employee or agent
is liable to the Company, unless upon court order it is determined that, despite
such adjudication of liability, but in view of all the circumstances of the
case, he is fairly and reasonably entitled to indemnity for expenses, and, in a
non-derivative action, to any criminal proceeding in which such person had
reasonable cause to believe his conduct was unlawful.
Section 102 of the DGCL allows the Company to eliminate or limit the
personal liability of a director to the Company or to any of its stockholders
for monetary damage for a breach of fiduciary duty as a director, except in the
case where the director (i) breaches such person's duty of loyalty to the
Company or its stockholders, (ii) fails to act in good faith, engages in
intentional misconduct or knowingly violates a law, (iii) authorizes the payment
of a dividend or approves a stock purchase or redemption in violation of Section
174 of the DGCL or (iv) obtains an improper personal benefit. Article Tenth of
the Company's Certificate of Incorporation includes a provision which eliminates
directors' personal liability to the fullest extent permitted under the Delaware
General Corporation Law.
Article Tenth of the Company's Certificate of Incorporation provides
that the Company shall indemnify any person (and the heirs, executors or
administrators of such person) who was or is a party or is threatened to be made
a party to, or is involved in any threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that such person is or was a director or officer of the
Company or is or was serving at the request of the Company as a director or
officer of another corporation, partnership, joint venture, trust or other
enterprise, to the fullest extent permitted by Delaware Law. Each such
indemnified party shall have the right to be paid by the Company for any
expenses incurred in connection with any such proceeding in advance of its final
disposition to the fullest extent authorized by Delaware Law. Article Tenth of
the Company's Certificate of Incorporation also provides that the Company may,
by action of its Board of Directors, provide indemnification to such of the
employees and agents of the Company to such extent and to such effect as the
Board of Directors shall determine to be appropriate and authorized by Delaware
Law.
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As permitted by Delaware Law and the Company's Certificate of
Incorporation, the Company maintains insurance covering its directors and
officers against certain liabilities incurred by them in their capacities as
such, including among other things, certain liabilities under the Securities Act
of 1933, as amended.
ITEM 16. EXHIBITS
4.01 Indenture, dated as of June 9, 1998, between Ingram Micro Inc. and
the First National Bank of Chicago.*
4.02 Form of Zero Coupon Convertible Senior Debentures due 2018
(included in Exhibit 4.01).
4.03 Registration Rights Agreement dated as of June 9, 1998 between
Ingram Micro Inc. and Morgan Stanley & Co. Incorporated as Initial
Purchaser.*
5.01 Opinion of Davis Polk & Wardwell.*
12.01 Statement re: computation of ratios.*
23.01 Consent of PricewaterhouseCoopers LLP.*
23.02 Consent of Davis Polk & Wardwell (included in Exhibit 5.01).
24.01 Powers of Attorney of certain officers and directors of Ingram
Micro Inc. (included on the signature pages of the initial filing
hereof).
25.01 Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939, as amended, of The First National Bank of Chicago, as
Trustee under the Indenture.*
99.01 Cautionary Statements for Purposes of the "Safe Harbor" Provisions
of the Private Securities Litigation Reform Act of 1995
(incorporated by reference to Exhibit 99.01 to Ingram Micro Inc's
Annual Report on Form 10-K for the fiscal year ended January 1,
2000, filed with the commission on March 31, 2000).
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* Previously filed.
ITEM 17. UNDERTAKING
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; and
(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 if the information required to be included in a
post-effective amendment by paragraphs (1) (i) and (ii) above is contained in
periodic reports filed with or furnished to the Commission by the registrant
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934,
paragraphs (1) (i) and (ii) shall not apply.
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(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.
(4) 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 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 relating
to securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(5) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company
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 Company of expenses
incurred or paid by a director, officer or controlling person of the Company 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 Company 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 Securities Act and will be governed by the
final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Ingram
Micro Inc. certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this
Post-Effective Amendment to the Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Santa Ana,
State of California, on this 12th day of June, 2000.
INGRAM MICRO INC.
By /s/ JAMES E. ANDERSON, JR.
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Name: James E. Anderson, Jr.
Title: Senior Vice President,
Secretary and General Counsel
Pursuant to the requirements of the Securities Act of 1933, this
Post-Effective Amendment to the Registration Statement has been signed by the
following persons in the capacities and on the dates indicated.
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SIGNATURE TITLE DATE
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/s/ KENT B. FOSTER Chief Executive Officer and President June 12, 2000
------------------------------ (Principal Executive Officer);
Kent B. Foster Chairman of the Board
* Executive Vice President and Worldwide June 12, 2000
------------------------------ Chief Financial Officer (Principal
Michael J. Grainger Financial Officer and Principal
Accounting Officer)
* Director June 12, 2000
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Martha R. Ingram
* Director June 12, 2000
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John R. Ingram
* Director June 12, 2000
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Philip M. Pfeffer
* Director June 12, 2000
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Don H. Davis, Jr.
Director June 12, 2000
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Gerhard Schulmeyer
* Director June 12, 2000
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* Director June 12, 2000
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J. Phillip Samper
* Director June 12, 2000
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Joe B. Wyatt
* Pursuant to Power of Attorney previously filed with the Commission.
/s/ JAMES E. ANDERSON, JR.
------------------------------ Attorney-in-Fact June 12, 2000
James E. Anderson, Jr.
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