<PAGE>
Registration No. 333-________
Filed May 27, 1998
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
MIAMI COMPUTER SUPPLY CORPORATION
- -------------------------------------------------------------------------------
(Exact Name of Registrant as specified in its Articles of Incorporation)
Ohio 31-1001529
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(State of incorporation) (IRS Employer Identification No.)
4750 Hempstead Station Drive
Dayton, Ohio 45429
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(Address of principal executive offices, including zip code)
MIAMI COMPUTER SUPPLY CORPORATION
1998 EMPLOYEE PAYROLL DEDUCTION STOCK PURCHASE PLAN
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(Full Title of the Plan)
Copies to:
Michael E. Peppel Jeffrey A. Koeppel, Esq.
President Elias, Matz, Tiernan & Herrick L.L.P.
Miami Computer Supply Corporation 734 15th Street, N.W.
4750 Hempstead Station Drive Washington, D.C. 20005
Dayton, Ohio 45429 (202) 347-0300
(937) 291-8282
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(Name, address, and telephone number
of agent for service)
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Proposed Proposed
Securities Maximum Maximum Amount of
to be Amount to be Offering Price Aggregate Registration
Registered Registered(1) Per Share Offering Price Fee
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, no par
value 450,000 $17.5625 (2) $7,903,125 $2,335
</TABLE>
(1) Together with an indeterminate number of additional shares which may be
necessary to adjust the number of shares reserved for issuance pursuant to
the Miami Computer Supply Corporation ("Company" or "Registrant") 1998
Employee Payroll Deduction Stock Purchase Plan (the "Plan") as a result of a
stock split, stock dividend or similar adjustment of the outstanding common
stock, no par value ("Common Stock"), of the Company.
(2) Estimated solely for the purposes of calculating the registration fee in
accordance with Rule 457(c) promulgated under the Securities Act. The
Proposed Maximum Offering Price Per Share for the 450,000 shares available
under the Plan is equal to the closing sales price of the Common Stock of the
Company on May 26, 1998 on the National Association of Securities Dealers
Automated Quotation ("NASDAQ") National Market System.
-------------------------
This Registration Statement shall become effective automatically upon the
date of filing in accordance with Section 8(a) of the Securities Act and 17
C.F.R. Section 230.462.
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PART I
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
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* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from the Registration Statement in accordance with Rule
428 under the Securities Act of 1933, as amended ("Securities Act"), and the
Note to Part I on Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed or to be filed with the Securities and
Exchange Commission (the "Commission") are incorporated by reference in this
Registration Statement:
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 1997 filed with the Commission on March 25, 1998 (File No.
0-21561);
(b) All reports filed by the Company pursuant to Sections 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), since the end of the fiscal year covered by the financial statements
in the Annual Report referred to in clause (a) above;
(c) The description of the Common Stock of the Company contained
in the Company's Registration Statement on Form 8-A (File No. 0-21561)
filed with the Commission on October 15, 1996 (which incorporates by
reference the section entitled "Description of Capital Stock" from the
Company's registration statement on Form S-1, Registration No. 333-12689);
(d) All documents filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date hereof and prior to
the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold.
Any statement contained in this Registration Statement, or 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
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statement contained herein, or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein, modifies or
supersedes such statement. Any such 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 since the Company's Common Stock is registered under Section
12 of the Exchange Act.
ITEM. 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company is an Ohio corporation. Section 1701.59 of the Ohio
General Corporation law states:
"(B) A director shall perform his duties as a director, including his
duties as a member of any committee of the directors upon which he may serve, in
good faith, in a manner he reasonably believes to be in or not opposed to the
best interests of the corporation, and with the care that an ordinarily prudent
person in a like position would use under similar circumstances. In performing
his duties, a director is entitled to rely on information, opinions, reports, or
statements, including financial statements and other financial data, that are
prepared or presented by:
(1) One or more directors, officers, or employees of the corporation
who the director reasonably believes are reliable and competent in the matters
prepared or presented;
(2) Counsel, public accountants, or other persons as to matters that
the director reasonably believes are within the person's professional or expert
competence;
(3) A committee of the directors upon which he does not serve, duly
established in accordance with a provision of the articles or the regulations,
as to matters within its designated authority, which committee the director
reasonably believes to merit confidence.
(C) For purposes of division (B) of this section:
(1) A director shall not be found to have violated his duties under
division (B) of this section unless it is proved by clear and convincing
evidence that the director has not acted in good faith, in a manner he
reasonably believes to be in or not opposed to the best interests of the
corporation, or with the care that an ordinarily prudent person in a like
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position would use under similar circumstances in any action brought against
a director, including actions involving or affecting any of the following:
(a) A change or potential change in control of the corporation,
including a determination to resist a change or potential change in control made
pursuant to division (F)(7) of section 1701.13 of the Revised Code.
(b) A termination or potential termination of his service to the
corporation as a director;
(c) His service in any other position or relationship with the
corporation.
(2) A director shall not be considered to be acting in good faith if he
has knowledge concerning the matter in question that would cause reliance on
information, opinions, reports, or statements that are prepared or presented by
the persons described in divisions (B)(1) to (3) of this section to be
unwarranted.
(3) Nothing contained in this division limits relief available under
section 1701.60 of the Revised Code.
(D) A director shall be liable in damages for any action he takes or
fails to take as a director only if it is proved by clear and convincing
evidence in a court of competent jurisdiction that his action or failure to act
involved an act or omission undertaken with deliberate intent to cause injury to
the corporation or undertaken with reckless disregard for the best interests of
the corporation. Nothing contained in this division affects the liability of
directors under section 1701.95 of the Revised Code or limits relief available
under section 1701.60 of the Revised Code. This division does not apply if, and
only to the extent that, at the time of a director's act or omission that is the
subject of complaint, the articles for the regulations of the corporation state
by specific reference to this division that the provisions of this division do
not apply to the corporation.
(E) For purposes of this section, a director, in determining what he
reasonably believes to be in the best interests of the corporation, shall
consider the interests of the corporation's shareholders and, in his discretion,
may consider any of the following:
(1) The interests of the corporation's employees, suppliers, creditors,
and customers;
(2) The economy of the state and nation;
(3) Community and societal considerations;
(4) The long-term as well as short-term interests of the corporation
and its shareholders, including the possibility that these interests may be best
served by the continued independence of the corporation.
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(F) Nothing contained in division (C) or (D) of this section affects
the duties of either of the following:
(1) A director who acts in any capacity other than his capacity as a
director;
(2) A director of a corporation that does not have issued and
outstanding shares that are listed on a national securities exchange or are
regularly quoted in an over-the-counter market by one or more members of a
national or affiliated securities association, who votes for or assents to any
action taken by the directors of the corporation that, in connection with a
change in control of the corporation, directly results in the holder or holders
or a majority of the outstanding shares of the corporation receiving a greater
consideration for their shares than other shareholders."
Section 1701.13(E) of the OGCL states:
"(E)(1) A corporation may indemnify or agree 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, whether civil, criminal,
administrative, or investigative, 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 the corporation, or is or was serving at the request of
the corporation as a director, trustee, officer, employee, member, manager, or
agent of another corporation, domestic or foreign, nonprofit or for profit, a
limited liability company, or a partnership, joint venture, trust, or other
enterprise, against expenses, including attorney's fees, judgments, fines, and
amounts paid in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding, if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, if he had
no reasonable cause to believe his conduct was unlawful. The termination of any
action, suit, or proceeding by judgment, order, settlement, or conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of it self, create
a presumption that the person did not act in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, he had
reasonable cause to believe that his conduct was unlawful.
(2) A corporation may indemnify or agree 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 or suit by or in the right of the corporation to
procure a judgment in its favor, by reason of the fact that he is or was a
director, officer, employee, or agent of the corporation, or is or was serving
at the request of the corporation, as a director, trustee, officer, employee,
member, manager, or agent of another corporation, domestic or foreign, nonprofit
or for profit, a limited liability company, or a partnership, joint venture,
trust, or other enterprise, against expenses, including attorney's fees,
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit, if he acted in good faith
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and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation, except that no indemnification shall be made in
respect of any of the following:
(a) Any claim, issue, or matter as to which such person is adjudged to
be liable for negligence or misconduct in the performance of his duty to the
corporation unless, and only to the extent that, the court of common pleas of
the court in which such action or suit was brought determines, upon application,
that, despite the adjudication of liability, but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses as the court of common pleas or such other court
shall deem proper;
(b) Any action or suit in which the only liability asserted against a
director is pursuant to section 1701.95 of the Revised Code.
(3) To the extent that a director, trustee officer, employee, member,
manager, or agent has been successful on the merits or otherwise in defense of
any action, suit, or proceeding referred to in division (E)(1) or (2) of this
section, or in defense of any claim, issue, or matter therein, he shall be
indemnified against expenses, including attorney's fees, actually and reasonably
incurred by him in connection with the action, suit, or proceeding.
(4) Any indemnification under division (E)(1) or (2) of this section,
unless ordered by a court, shall be made by the corporation only as authorized
in the specific case, upon a determination that indemnification of the director,
trustee, officer, employee, member, manager or agent is proper in the
circumstances because he has met the applicable standard of conduct set forth in
division (E)(1) or (2) of this section. Such determination shall be made as
follows:
(a) By a majority vote of a quorum consisting of directors of the
indemnifying corporation who were not and are to parties to or threatened with
the action, suit, or proceeding referred to in division (E)(1) or (2) of this
section;
(b) If the quorum described in division (E)(4)(a) of this section is
not obtainable or if a majority vote of a quorum of disinterested directors so
directs, in a written opinion by independent legal counsel other than an
attorney, or a firm having associated with it an attorney, who has been retained
by or who has performed services for the corporation or any person to be
indemnified within the past five years;
(c) By the shareholders;
(d) By the court of common pleas or the court in which the action,
suit, or proceeding referred to in division (E)(1) or (2) of this section was
brought.
Any determination made by the disinterested directors under division
(E)(4)(a) or by independent legal counsel under division (E)(4)(b) of this
section shall be promptly
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communicated to the person who threatened or brought the action or suit by or
in the right of the corporation under division (E)(2) of this section, and,
within ten days after receipt of such notification, such person shall have
the right to petition the court of common pleas or the court in which such
action or suit was brought to review the reasonableness of such determination.
(5)(a) Unless at the time of a director's act or omission that is the
subject of an action, suit, or proceeding referred to in division (E)(1) or (2)
of this section, the articles or the regulations of a corporation state, by
specific reference to this division, that the provisions of this division do not
apply to the corporation and unless the only liability asserted against a
director in an action, suit, or proceeding referred to in division (E)(1) or (2)
of this section, the articles or the regulations of a corporation state, by
specific reference to this division, that the provisions of this division do not
apply to the corporation and unless the only liability asserted against a
director in an action, suit, or proceeding referred to in division (E)(1) or (2)
of this section is pursuant to section 1701.95 of the Revised Code, expenses,
including attorney's fees, incurred by a director in defending the action, suit,
or proceeding shall be paid by the corporation as they are incurred, in advance
of the final disposition of the action, suit, or proceeding, upon receipt of an
undertaking by or on behalf of the director in which he agrees to do both of the
following:
(i) Repay such amount if it is provided by clear and convincing
evidence in a court of competent jurisdiction that his action or failure to act
involved an act or omission undertaken with deliberate intent to cause injury to
the corporation or undertaken with reckless disregard for the best interests of
the corporation;
(ii) Reasonably cooperate with the corporation concerning the action,
suit, or proceeding.
(b) Expenses, including attorney's fees, incurred by a director,
trustee, officer, employee, member, manager, or agent in defending any action,
suit, or proceeding referred to in division (E)(1) or (2) of this section, may
be paid by the corporation as they are incurred, in advance of the final
disposition of the action, suit, or proceeding, as authorized by the directors
in the specific case, upon the receipt of an undertaking by or on behalf of the
director, trustee, officer, employee, member, manager, or agent to repay such
amount, if it ultimately is determined that he is not entitled to be indemnified
by the corporation.
(6) The indemnification authorized by this section shall not be
exclusive of, and shall be in addition to, any other rights granted to those
seeking indemnification under the articles, the regulations, any agreement, a
vote of shareholders or disinterested directors, or otherwise, both as to action
in their official capacities and as to action in another capacity while holding
their offices or positions, and shall continue as to a person who has ceased to
be a director, trustee, officer, employee, member, manager, or agent and shall
inure to the benefit of the heirs, executors, and administrators of such a
person.
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(7) A corporation may purchase and maintain insurance or furnish
similar protection, including, but not limited to, trust funds, letters of
credit, or self-insurance, on behalf of or for any person who is or was a
director, officer, employee, or agent of the corporation, or is or was serving
at the request of the corporation as a director, trustee, officer, employee,
member, manager, or agent of another corporation, domestic or foreign, nonprofit
or for profit, a limited liability company, or a partnership, joint venture,
trust, or other enterprise, against any liability asserted against him and
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 under this section. Insurance may be purchased from or
maintained with a person in which the corporation has a financial interest.
(8) The authority of a corporation to indemnify persons pursuant to
division (E)(1) or (2) of this section does not limit the payment of expenses as
they are incurred, indemnification, insurance, or other protection that may be
provided pursuant to divisions (E)(5), (6), and (7) of this section. Divisions
(E)(1) and (2) of this section do not create any obligation to repay or return
payments made by the corporation pursuant to division (E)(5)(6), or (7).
(9) As used in division (E) of this section, "corporation" includes all
constituent entities in a consolidation or merger and the new or surviving
corporation, so that any person who is or was a director, officer, employee,
trustee, member, manager, or agent of such a constituent entity, or is or was
serving at the request of such constituent entity as a director, trustee,
officer, employee, member, manager, or agent or another corporation, domestic or
foreign, nonprofit or for profit, a limited liability company, or a partnership,
joint venture, trust or other enterprise, shall stand in the same position under
this section with respect to the new or surviving corporation as he would if he
had served the new or surviving corporation in the same capacity."
The Amended and Restated Articles of Incorporation of the Company also
limit the liability of, and provide indemnification to, directors and officers
of the Company. Article VIII of the Company's Articles states:
"A. LIMITATION OF LIABILITY. No director shall be personally liable
to the Corporation or its stockholders for monetary damages for any act or
omission by such director as a director; provided that a director's liability
shall not be limited or eliminated to the extent that it is proved by clear and
convincing evidence in a court of competent jurisdiction that his action or
failure to act involved an act or omission undertaken with deliberate intent to
cause injury to the Corporation, or was undertaken with reckless disregard for
the best interests of the Corporation. No amendment to or repeal of this
Article VIII.A. shall apply to or have any effect on the liability or alleged
liability of any director of the Corporation for or with respect to any acts or
omissions of such director occurring prior to such amendment.
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B. INDEMNIFICATION. The Corporation shall 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, whether civil, criminal,
administrative, arbitrative or investigative, by reason of the fact that such
person is or was a director, trustee, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, trustee, officer, employee, member, manager or agent of another
corporation, domestic or foreign, nonprofit or for profit, a limited liability
company, partnership, joint venture, trust or other enterprise or employee
benefit plan, against liability and expenses (including court costs and
attorney's fees), judgments, fines, excise taxes and amounts paid in
satisfaction, settlement or compromise actually and reasonably incurred by such
person in connection with such action, suit or proceeding to the full extent
authorized by Section 1701.13 of the OGCL or any successor provision thereto.
C. ADVANCEMENT OF EXPENSES. Reasonable expenses incurred by a
director, officer, employee or agent of the Corporation in defending an action,
suit or proceeding described in Article VIII.B. shall be paid by the Corporation
as they are incurred, in advance of the final disposition of such action, suit
or proceeding, as authorized by the Board of Directors only upon receipt of
written affirmation by or on behalf of such person in which he agrees to do both
of the following: (i) repay such amount if it is proved by clear and convincing
evidence in a court of competent jurisdiction that his action or failure to act
involved an act or omission undertaken with the deliberate intent to cause
injury to the Corporation or undertaken with reckless disregard for the best
interests of the Corporation, and (ii) reasonably cooperate with the Corporation
concerning the action, suit or proceeding.
D. OTHER RIGHTS AND REMEDIES. The indemnification provided by this
Article VIII shall not be deemed to exclude any other rights to which those
seeking indemnification or advancement of expenses may be entitled under the
Corporation's Articles of Amendment, any insurance or other agreement, trust
fund, letter of credit, surety bond, vote of stockholders or disinterested
directors or otherwise, both as to actions in their official capacity and as to
actions in another capacity while holding such office, and shall continue as to
a person who has ceased to be a director, officer, employee, member, manager or
agent and shall inure to the benefit of the heirs, executors and administrators
of such person; provided that no indemnification shall be made to or on behalf
of an individual in respect of any of the following: (i) any claim, issue, or
matter as to which such person is adjudged to be liable for negligence or
misconduct in the performance of his duty to the Corporation unless, and only to
the extent that, a court of competent jurisdiction determines that, despite the
adjudication of liability, but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses as
the court shall deem proper; or (ii) any action or suit in which the only
liability asserted against a director is pursuant to Section 1701.95 of the OGCL
or any successor thereto.
E. INSURANCE. Upon resolution passed by the Board of Directors, the
Corporation may purchase and maintain insurance on behalf of any person who is
or was a director, officer, employee, or agent of the Corporation, or was
serving at the request of the
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Corporation as a director, officer, employee, member, manager or agent of
another corporation, domestic or foreign, nonprofit or for profit, a limited
liability company, partnership, joint venture, trust or another enterprise or
employee benefit plan, against any liability asserted against him or incurred
by him in any such capacity, or arising out of his status, whether or not the
Corporation would have the power to indemnify him against such liability
under the provisions of this Article or the OGCL.
F. MODIFICATION. The duties of the Corporation to indemnify and to
advance expenses to a director, officer, employee or agent provided in this
Article VIII shall be in the nature of a contract between the Corporation and
each such director, officer, employee or agent and no amendment or repeal of any
provision of this Article VIII shall alter, to the detriment of such director,
officer, employee or agent, the right of such person to the advance of expenses
or indemnification related to a claim based on an act or failure to act which
took place prior to such amendment or repeal."
Article X of the Company's Code of Regulations states:
"(a) A director of the Corporation shall not be personally
liable for monetary damages for action taken, or any failure to take action, as
a director, to the extent set forth in the Corporation's Amended and Restated
Articles of Incorporation, which provisions are incorporated herein with the
same affect as if they were set forth herein.
(b) The Corporation shall indemnify any person who is a
director, officer, employee or agent of the Corporation to the extent set forth
in the Corporation's Amended and Restated Articles of Incorporation, which
provisions are incorporated herein with the same affect as if they were set
forth herein."
In addition, the Company has obtained a directors and officers
liability insurance policy relating to certain actions or omissions which may be
taken, or omitted to be taken, by the directors and officers of the Company, as
well as a policy which insures against errors and omissions in the offering
documents relating to the offer and sale of the Common Stock to the public.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable since no restricted securities will be reoffered or resold
pursuant to this Registration Statement.
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ITEM 8. EXHIBITS
The following exhibits are filed with or incorporated by reference into
this Registration Statement on Form S-8 (numbering corresponds to Exhibit Table
in Item 601 of Regulation S-K):
NO. EXHIBIT
--- -------
4 Common Stock Certificate*
5 Opinion of Elias, Matz, Tiernan & Herrick
L.L.P. as to the legality of the securities
23.1 Consent of Elias, Matz, Tiernan & Herrick
L.L.P. (contained in the opinion included
as Exhibit 5)
23.2 Consent of Price Waterhouse L.L.P.
24 Power of attorney for any subsequent
amendments is located in the signature pages
99 Miami Computer Supply Corporation
1998 Employee Payroll Deduction Stock Purchase Plan
- --------------------
* Incorporated by reference from the Company's Registration Statement on Form
S-1 (Commission File No. 333-12689) filed with the Commission on September
25, 1996, as amended.
ITEM 9. UNDERTAKINGS.
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,
(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, and (iii) to include any material information with
respect to the plan of distribution not previously
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disclosed in the Registration Statement or any material change in such
information in the Registration Statement; provided, however, that clauses
(i) and (ii) do not apply if the information required to be included in a
post-effective amendment by those clauses is contained in periodic reports
filed by the Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the Registration Statement.
2. That, for the 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.
4. That, for the 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 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.
5. 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 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 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 questions whether such indemnification by it is against public
policy 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, 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 Dayton, State of Ohio, on May 27,
1998.
MIAMI COMPUTER SUPPLY CORPORATION
By: /s/ Michael E. Peppel
-------------------------------------
Michael E. Peppel
President 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 dates indicated. Each person whose signature appears
below hereby makes, constitutes and appoints Michael E. Peppel his true and
lawful attorney, with full power to sign for such person and in such person's
name and capacity indicated below, and with full power of substitution any
and all amendments to this Registration Statement, hereby ratifying and
confirming such person's signature as it may be signed by said attorney to
any and all amendments.
/s/ Anthony W. Liberati May 27, 1998
- ----------------------------------------
Anthony W. Liberati
Chairman of the Board
/s/ Michael E. Peppel May 27, 1998
- ----------------------------------------
Michael E. Peppel
Director, President and
Chief Executive Officer
(Principal Executive Officer)
/s/ Robert G. Hecht
- ----------------------------------------
Robert G. Hecht May 27, 1998
Director and Vice Chairman of the Board
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/s/ Harry F. Radcliffe May 27, 1998
- ----------------------------------------
Harry F. Radcliffe
Director and Treasurer
/s/ Thomas C. Winstel May 27, 1998
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Thomas C. Winstel
Director, Secretary and Vice President
/s/ Ira H. Stanley
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Ira H. Stanley May 27, 1998
Vice President--Finance
(Principal Financial and
Accounting Officer)
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EXHIBIT 5
Law Offices
ELIAS, MATZ, TIERNAN & HERRICK L.L.P.
12th Floor
734 15th Street, N.W.
Washington, D.C. 20005
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May 27, 1998
VIA EDGAR
Board of Directors
Miami Computer Supply Corporation
4750 Hempstead Station
Dayton, Ohio 45429
Re: Registration Statement on Form S-8
450,000 Shares of Common Stock
Gentlemen:
We are special counsel to Miami Computer Supply Corporation, an Ohio
corporation (the "Corporation"), in connection with the preparation and filing
with the Securities and Exchange Commission pursuant to the Securities Act of
1933, as amended, of a Registration Statement on Form S-8 (the "Registration
Statement"), relating to the registration of up to 450,000 shares of common
stock, no par value ("Common Stock"), to be issued pursuant to the Miami
Computer Supply Corporation 1998 Employee Payroll Deduction Stock Purchase Plan
(the "Plan"). The Registration Statement also registers an indeterminate number
of additional shares which may be necessary under the Plan to adjust the number
of shares reserved thereby for issuance as the result of a stock split, stock
dividend or similar adjustment of the outstanding Common Stock of the
Corporation. We have been requested
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Board of Directors
May 27, 1998
Page 2
by the Corporation to furnish an opinion to be included as an exhibit to the
Registration Statement.
For this purpose, we have reviewed the Registration Statement and
related Prospectus, the Amended and Restated Articles of Incorporation and
the Amended and Restated Code of Regulations of the Corporation, the Plan, a
specimen stock certificate evidencing the Common Stock of the Corporation and
such other corporate records and documents as we have deemed appropriate. We
are relying upon the originals, or copies certified or otherwise identified
to our satisfaction, of the corporate records of the Corporation and such
other instruments, certificates and representations of public officials,
officers and representatives of the Corporation as we have deemed relevant as
a basis for the opinions expressed herein. In addition, we have assumed,
without independent verification, the genuineness of all signatures and the
authenticity of all documents furnished to us and the conformance in all
respects of copies to originals. Furthermore, we have made such factual
inquiries and reviewed such laws as we determined to be relevant for this
opinion.
For purposes of this opinion, we have also assumed that (i) the shares
of Common Stock issuable pursuant to the terms of the Plan will continue to
be validly authorized on the dates the Common Stock is issued; (ii) the
Common Stock is purchased on behalf of each Participant in accordance with
the terms of the Plan; (iii) no change occurs in applicable law or the
pertinent facts; and (iv) the provisions of "blue sky" and other securities
laws as may be applicable will have been complied with to the extent required.
Based on the foregoing, and subject to the assumptions set forth
herein, we are of the opinion as of the date hereof that the shares of Common
Stock to be issued pursuant to the Plan, when issued and sold pursuant to the
Plan and upon receipt of the consideration required thereby, will be legally
issued, fully paid and non-assessable shares of Common Stock of the
Corporation.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
ELIAS, MATZ, TIERNAN & HERRICK L.L.P.
By: /s/ Jeffrey A. Koeppel
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Jeffrey A. Koeppel, a Partner
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EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 pertaining to the Miami Computer Supply Corporation
Employee Payroll Deduction Stock Purchase Plan of our report dated February
23, 1998 appearing in Miami Computer Supply Corporation's Annual Report on
Form 10-K for the year ended December 31, 1997.
/s/ PRICE WATERHOUSE LLP
PRICE WATERHOUSE LLP
Cincinnati, Ohio
May 26, 1998
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EXHIBIT 99
MIAMI COMPUTER SUPPLY CORPORATION
1998 EMPLOYEE PAYROLL DEDUCTION STOCK PURCHASE PLAN
ARTICLE I
ESTABLISHMENT OF THE PLAN
Miami Computer Supply Corporation (the "Corporation") hereby establishes
this 1998 Employee Payroll Deduction Stock Purchase Plan (the "Plan") upon the
terms and conditions hereinafter stated.
ARTICLE II
PURPOSE OF THE PLAN
The purpose of this Plan is to contribute to the growth and profitability
of the Corporation by providing Employees with an opportunity to purchase shares
of Common Stock of the Corporation (the "Common Stock") as an incentive to work
toward the success of the Corporation. This Plan is not intended to comply with
the requirements of Section 423 of the Code, and the regulations thereunder, or
any other plan described in Section 401(a) of the Code and all provisions
hereunder shall be read, interpreted and applied with that purpose in mind.
ARTICLE III
DEFINITIONS
3.01 "Agent" means The Ohio Company or such other agent as may be
appointed by the Compensation Committee of the Board or by the Board of the
Corporation.
3.02 "Board" means the Board of Directors of the Corporation.
3.03 "Code" means the Internal Revenue Code of 1986, as amended.
3.04 "Common Stock" means shares of the common stock, no par value per
share, of the Corporation.
3.05 "Effective Date" means the date upon which the Board approves this
Plan.
3.06 "Employee" means any person who is employed by the Corporation or
one of its subsidiaries.
3.07 "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
3.08 "Participant" means an Employee who participates in the Plan
3.09 "Participant's Account" means the account maintained for the
Participant by the Agent pursuant to this Plan.
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ARTICLE IV
STOCK SUBJECT TO PLAN
4.01 The stock purchasable under the Plan may be shares of authorized
but unissued shares, treasury shares or shares purchased by the Corporation on
the open market or from private sources for use under the Plan. The maximum
number of shares of Common Stock which may be issued over the term of the Plan
shall not exceed 300,000.
4.02 The aggregate number of shares that may be issued over the term of
the Plan shall be adjusted for any increase or decrease in the total number of
outstanding shares of Common Stock issued subsequent to the effective date of
this Plan resulting from a split, subdivision or consolidation of shares or any
other capital adjustment, the payment of a stock dividend or other increase or
decrease in such shares effected without receipt or payment of consideration by
the Corporation.
ARTICLE V
ADMINISTRATION OF PLAN
5.01 ADMINISTRATION. The Compensation Committee of the Board of the
Corporation shall direct the Human Resources Department of the Corporation which
shall administer, coordinate and counsel on all decisions concerning the
administration of this Plan. The Compensation Committee may adopt, amend and
rescind such rules, regulations and procedures as, in its opinion, may be
advisable in the administration of the Plan. The interpretation and
construction by the Compensation Committee of any provision of the Plan, any
rule, regulation or procedure adopted by it pursuant thereto shall be final and
binding.
5.02 SHARES PURCHASED. The Agent will act as a custodian for all cash, if
any, held by it for the benefit of a Participant and for all shares of the
Common Stock purchased pursuant to this Plan. The Agent will maintain a
separate account for each Participant in the Plan. The relationship between
each Participant and the Agent shall be the relationship of client and broker.
5.03 INFORMATION AND VOTING RIGHTS. Each Participant will receive interim
and annual reports, proxy statements and all other shareholder material issued
by the Corporation. Each participant shall have all rights of a stockholder of
the Corporation appurtenant to the shares of Common Stock held in his account.
5.04 ACTION BY THE CORPORATION. The Corporation, in its sole discretion,
may fund the Plan in any manner. As one means of funding the Plan, the
Corporation may purchase Common Stock in the open market on the last trading day
of the month at the prevailing market price. The Corporation will sell shares
of Common Stock to the Participants and have such shares transferred to the
Participant's account pursuant to the Participant's authorized payroll deduction
in the manner described in Section 8.01.
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5.05 LIMITATION ON LIABILITY. The Corporation and its subsidiaries and
its directors, officers, employees and agents, and the Compensation Committee of
the Board (the "Corporate Group") are in no way obligated, liable or responsible
to a Participant for any claims, loss or damage sustained as a result of any
transaction under the Plan. The Participant by virtue of his participation
shall waive and release the Corporate Group for any liability related thereto.
If a member of the Corporate Group is a party or is threatened to be made a
party to any threatened, pending, or completed action, suit or proceeding,
whether civil, criminal, administrative, arbitrative or investigative, by reason
of anything done or not done by him in such capacity under or with respect to
the Plan, the Corporation shall indemnify him to the extent permitted by the
Corporation's Amended and Restated Articles of Incorporation and Amended and
Restated Code of Regulations and by the Ohio General Corporation Law. The
Corporate Group does not guarantee the Participant's Account in any manner
against investment loss or depreciation in asset value. The Corporate Group
does not recommend participation in the Plan to any Employee and participation
in the Plan shall be completely voluntary on the part of any Employee and is
expressly not a condition to employment with the Corporation.
5.06 EXPENSES PAID BY COMPANY. Neither the Company nor any of its
subsidiaries will pay more than its expenses of payroll deductions and the
reasonable fees and charges relating to share purchases, as agreed upon with the
Agent, for brokerage commissions and bookkeeping and custodial expenses.
5.07 COMPLIANCE WITH LAW AND REGULATIONS. All shares of Common Stock
purchased under this Plan shall be subject to all applicable federal and state
laws, rules and regulations and to such approvals by any government or
regulatory agency as may be required. No shares of Common Stock shall be
transferred to or from a Participant's account absent compliance with applicable
law and regulations.
5.08 RESTRICTIONS ON TRANSFER. The shares of the Common Stock purchased
pursuant to this Plan shall have a legend noting that the transfer of such
shares by the Participant is restricted for one year from the date of purchase.
ARTICLE VI
ELIGIBILITY AND PARTICIPATION
6.01 ELIGIBILITY. All regular full-time Employees of the Corporation or
any subsidiary over eighteen (18) years of age shall be eligible to be a
Participant in the Plan.
6.02 PARTICIPATION. An eligible Employee may begin participating in the
Plan in the next succeeding payroll period beginning after the delivery of a
completed Employee Payroll Deduction Stock Purchase Authorization Form to the
Corporation's Human Resources Department.
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<PAGE>
6.03 AUTHORIZED PAYROLL DEDUCTION. A Participant in the Plan may
authorize the deduction from his compensation an amount per semi-monthly payroll
period for the purchase of shares of Common Stock for the Participant's Account.
The Participant's authorized payroll deduction must be at least ten dollars
($10), or any greater amount in $10 increments.
6.04 CHANGE IN PAYROLL DEDUCTION. A Participant may increase or decrease
his authorized payroll deduction six months after (i) his initial payroll
deduction election or (ii) any subsequent increase or decrease in his payroll
deduction election.
6.05 TERMINATION OF PARTICIPATION. A Participant may terminate his or her
participation in the Plan at any time by written notice to the Corporation's
Human Resources Department. Such termination shall be effective the first
payroll period beginning after receipt of the Participant's written notification
to the Corporation's Human Resources Department to terminate participation in
the Plan.
6.06 RE-ENTRY. A Participant who terminates his participation in the Plan
may not participate in the Plan again except upon written notice to the
Corporation's Human Resources Department and may not recommence payroll
deductions until a date which is six (6) months after his or her last payroll
deduction under the Plan.
ARTICLE VII
CONTRIBUTION BY CORPORATION
7.01 CONTRIBUTIONS BY THE CORPORATION. The Corporation shall, each month,
make a contribution equal to ten percent (10%) of each Participant's authorized
payroll deduction ("Corporation Contribution"). A Participant shall have no
right to any Corporation Contribution under this section prior to the purchase
by the Participant of Common Stock from the Corporation. The Corporation
Contribution is an unfunded and unsecured general obligation of the Corporation,
and is not to be paid to any Participant in cash.
7.02 TERMINATION OF CONTRIBUTIONS BY THE CORPORATION. The Corporation
Contribution for a Participant shall cease upon a Participant's termination of
participation in the Plan.
ARTICLE VIII
PARTICIPANT'S ACCOUNT
8.01 PARTICIPANT'S PURCHASE OF COMMON STOCK. Each Participant's Account
with the Agent shall be credited with the number of shares of Common Stock
purchased from the Corporation based upon such Participant's authorized payroll
deduction and the Corporation Contribution (the "Purchase Amount") divided by
the prevailing market price of the Common Stock on the last trading day of the
month. The number of shares purchased by the Participant and credited to the
Participant's Account shall be rounded down to the
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<PAGE>
nearest whole number. The value of any fractional share not credited to the
Participant's account shall carryover to the succeeding month and be added to
the Participant's Purchase Amount for such succeeding month.
8.02 COMMISSIONS. No commissions will be charged to the Participant for
the purchase of the shares of Common Stock pursuant to the Plan.
8.03 CASH DIVIDENDS. All cash dividends paid on the shares of Common
Stock held in a Participant's Account will automatically be credited to such
Participant's Account and reinvested by the Agent in additional shares of Common
Stock.
8.04 OTHER ADJUSTMENTS. The aggregate number of shares of Common Stock
held in a Participant's Account shall be adjusted for any increase or decrease
in the total number of outstanding shares of Common Stock issued subsequent to
the effective date of this Plan resulting from a split, subdivision or
consolidation of shares or any other capital adjustment, the payment of a stock
dividend or other increase or decrease in such shares effected without receipt
or payment of consideration by the Corporation.
ARTICLE IX
SALE OF STOCK AND ISSUANCE OF STOCK CERTIFICATE
9.01 SALE OF COMMON STOCK. A Participant may direct the Agent to sell any
part or all of the shares of Common Stock in such Participant's Account. A
Participant's request to sell shares of Common Stock of the Company in his
account must comply with the Corporation's Insider Trading Policy and will be
made by completing the appropriate authorization form and returning such form to
the Corporation's Human Resources Department.
9.02 COMMISSIONS. The Agent may charge a Participant a commission on all
sales of shares of the Common Stock at the rate of $0.50 per share. Other
normal charges of the Agent also are payable by the Participant and will be
deducted from the proceeds of the sale.
9.03 REQUEST FOR CERTIFICATES. A Participant may request the Agent to
issue share certificates for one hundred (100) or more shares of Common Stock
directly to such Participant. All share certificates issued to a Participant
will contain the legend described in Section 5.08 hereof.
ARTICLE X
AMENDMENT AND TERMINATION OF PLAN
10.01 TERMINATION OF PLAN BY CORPORATION. The Corporation may, at any
time, amend in any manner, suspend, or terminate the Plan.
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<PAGE>
10.02 TERMINATION OF PARTICIPANT'S ACCOUNT. Upon termination of the Plan
pursuant to Section 10.01 or a Participant's termination of participation in the
Plan pursuant to Section 6.05, a Participant may direct the Agent to deliver (1)
the net proceeds of the sale of the shares of Common Stock in the Participant's
Account or (2) a share certificate in the Participant's name or such other name
as directed for the number of full shares of Common Stock in the Participant's
Account and a check for any fractional interest in a share in the Participant's
Account, or (3) if no shares have been purchased, a check for the Participant's
contribution. No interest shall be payable on the cash, if any, or shares held
in such account.
10.03 CERTIFICATES. All share certificates issued to a Participant
pursuant to this Article shall contain the legend described in Section 5.08.
ARTICLE XI
EMPLOYMENT RIGHTS
Neither the Plan nor the authorization of a payroll deduction to purchase
shares of Common Stock, nor any action taken by the Corporation or any of its
subsidiaries in connection with the Plan, shall create any right on the part of
any Employee of the Corporation to continue in such capacity.
ARTICLE XII
TAXES AND WITHHOLDING
12.01 AUTHORIZED PAYROLL DEDUCTIONS. The Participant's authorized payroll
deduction will be made with after tax compensation.
12.02 CONTRIBUTION BY THE CORPORATION. The Corporation Contribution
described in Section 7.01 will be treated as additional compensation to the
Participant subject to any applicable withholding and employment taxes.
ARTICLE XIII
EFFECTIVE DATE OF THE PLAN; TERM
13.01 EFFECTIVE DATE OF THE PLAN. This Plan shall become effective on the
Effective Date.
13.02 TERM OF PLAN. This Plan shall remain in effect until such time as
(i) the maximum number of shares of Common Stock specified in Section 4.01 of
the Plan available under the Plan shall have been purchased or (ii) the Plan is
terminated by the Corporation.
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<PAGE>
ARTICLE XIV
MISCELLANEOUS
14.01 GOVERNING LAW. To the extent not governed by Federal law, this Plan
shall be construed under the laws of the State of Ohio.
14.02 PRONOUNS. Wherever appropriate, the masculine pronoun shall include
the feminine pronoun, and the singular shall include the plural.
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