AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 30, 1998.
REGISTRATION NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PENTACON, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 76-0531585
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
9432 OLD KATY ROAD
SUITE 222
HOUSTON, TEXAS 77055
(ADDRESS, INCLUDING ZIP CODE, OF PRINCIPAL EXECUTIVE OFFICES)
PENTACON, INC.
1998 STOCK OPTION PLAN
(FULL TITLE OF THE PLAN)
BRUCE M. TATEN
SENIOR VICE PRESIDENT,
GENERAL COUNSEL AND SECRETARY
9432 OLD KATY ROAD
SUITE 222
HOUSTON, TEXAS 77055
(713) 463-8850
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
COPY TO:
CHRISTOPHER S COLLINS
ANDREWS & KURTH L.L.P.
600 TRAVIS, SUITE 4200
HOUSTON, TEXAS 77002
------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=======================================================================================================================
PROPOSED
PROPOSED MAXIMUM
AMOUNT MAXIMUM AGGREGATE AMOUNT OF
TO BE OFFERING PRICE OFFERING REGISTRATION
TITLE OF SECURITIES TO BE REGISTERED REGISTERED (1) PER SHARE (2) PRICE (2) FEE
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock $.01 Par Value Per Share 1,700,000 Shares $ 11.47 $ 19,499,000 $ 5,752
=======================================================================================================================
</TABLE>
(1) The number of shares of Common Stock registered herein is subject to
adjustment to prevent dilution resulting from stock splits, stock
dividends or similar transactions.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(h) under the Securities Act, based
upon the average of the high and low prices of the Registrant's Common
Stock on the New York Stock Exchange on March 24, 1998 as reported in the
WALL STREET JOURNAL on March 25, 1998.
================================================================================
<PAGE>
PART I
INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I of Form S-8
will be sent or given to participating employees as specified by Rule 428(b)(1)
of the Securities Act of 1933, as amended (the "Securities Act"). These
documents and the documents incorporated by reference hereto pursuant to Item 3
of Part II of this Registration Statement, taken together, constitute a
prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
Pentacon, Inc. (the "Company") incorporates herein by reference the
following documents as of their respective dates as filed with the Securities
and Exchange Commission (the "Commission"):
(a) The registrant's prospectus filed pursuant to 424(b) under the
Securities Act of 1933, as amended (the "Act") filed with the Securities and
Exchange Commission (the "Commission") on March 11, 1998.
(b) The description of the Company's common stock, par value $0.01
per share (the "Common Stock"), contained in the Company's Registration
Statement on Form 8-A (No. 1-13931) filed with the Commission on March 5, 1998
pursuant to Section 12 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of the offering made hereby shall be deemed to be incorporated
by reference in this Prospectus and to be a part hereof from the date of filing
of such documents. Any statement contained herein or in a document incorporated
or deemed to be incorporated herein by reference shall be deemed to be modified
or superseded for purposes of the Registration Statement and this Prospectus 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 such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of the Registration Statement or this Prospectus.
ITEM 4. DESCRIPTION OF SECURITIES.
The information required by Item 4 is not applicable to this Registration
Statement since the class of securities to be offered is registered under
Section 12 of the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The information required by Item 5 is not applicable to this Registration
Statement.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Subsection (a) of Section 145 of the General Corporation Law of the State
of Delaware empowers a corporation 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, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or
II-1
<PAGE>
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, had no reasonable cause to believe his
conduct was unlawful.
Subsection (b) of Section 145 empowers a corporation 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 such
person acted in any of the capacities set forth above, against expenses
(including attorneys' 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 and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation, except that no indemnification may be made in
respect of any claim, issue or matter as to which such person shall have been
made to be liable to the corporation unless and only to the extent that the
Court of Chancery or the court in which such action or suit was brought shall
determine 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 which the Court of Chancery or such
other court shall deem proper.
Section 145 further provides that to the extent a director or officer of a
corporation has been successful on the merits or otherwise in the defense of any
action, suit or proceeding referred to in subsections (a) and (b) of Section 145
in the defense of any claim, issue or matter therein, he shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred by
him in connection therewith; that indemnification provided for by Section 145
shall not be deemed exclusive of any other rights to which the indemnified party
may be entitled; that indemnification provided for by Section 145 shall, unless
otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of such person's heirs, executors and administrators; and empowers the
corporation to purchase and maintain insurance on behalf of a director or
officer of the corporation 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 liabilities under Section 145.
Section 102(b)(7) of the General Corporation Law of the State of Delaware
provides that a certificate of incorporation may contain a provision eliminating
or limiting the personal liability of a director to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director
provided that such provision shall not eliminate or limit the 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 174 of the Delaware General Corporation Law, or (iv) for any transaction
from which the director derived an improper personal benefit.
Section 7(d) of the Company's Second Amended and Restated Certificate of
Incorporation states that:
A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (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 174 of the DGCL, or (iv) for any
transaction from which the director derived an improper personal benefit. If the
DGCL is amended to authorize corporate action further eliminating or limiting
the personal liability of directors, then the liability of a director of the
Corporation shall be eliminated or limited to the fullest extent permitted by
the DGCL, as so amended. Any repeal or modification of this Section by the
stockholders of the Corporation shall be prospective only, and shall not
adversely affect any limitation on the personal liability of a director of the
Corporation existing at the time of such repeal or modification.
The Company enters into indemnification agreements with each of its
executive officers and directors.
II-2
<PAGE>
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
The information required by Item 7 is not applicable to this Registration
Statement.
ITEM 8. EXHIBITS.
EXHIBIT
NUMBER DESCRIPTION
- ------ -----------
4.1* Amended and Restated Certificate of Incorporation (incorporated by
reference to Exhibit 3.1 of Amendment No. 5 to the Company's Form S-1
(No. 333-41383)).
4.2* Bylaws (incorporated by reference to Exhibit 3.2 of Amendment No. 5 to
the Company's Form S-1 (No. 333-41383)).
4.3* Pentacon, Inc. 1998 Stock Option Plan (incorporated by reference to
Exhibit 10.4 of Amendment No. 1 to the Company's Form S-1
(No. 333-41383)).
5.1 Opinion of Andrews & Kurth L.L.P. as to the legality of the shares being
registered.
23.1 Consent of Ernest & Young, LLP.
23.2 Consent of McGladrey & Pullen, LLP
23.3 Consent of Andrews & Kurth L.L.P. (included in the opinion filed as
Exhibit 5.1 to this Registration Statement).
24.1 Powers of Attorney (set forth on the signature page contained in Part II
of this Registration Statement).
- ---------------------
* Incorporated by reference to the indicated filing.
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;
II-3
<PAGE>
(iii) To include any material information with respect
to the plan of distribution not previously
disclosed in the registration statement or any
material change to such information in the
registration statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the 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, each filing of the registrant's annual report pursuant to
Section 13(a) or 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 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it
is against public policy as expressed in the Securities Act
and will be governed by the final adjudication of such issue.
II-4
<PAGE>
SIGNATURES
THE REGISTRANT
Pursuant to the requirements of the Securities Act, Pentacon, Inc.
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 Houston, State of Texas on March 20, 1998.
PENTACON, INC.
(Registrant)
By:/s/MARK E. BALDWIN
Mark E. Baldwin
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned officers and
directors of PENTACON, INC. (the "Company") hereby constitutes and appoints Mark
E. Baldwin and Bruce M. Taten, or either of them (with full power to each of
them to act alone), his true and lawful attorney-in-fact and agent, with full
power of substitution, for him and on his behalf and in his name, place and
stead, in any and all capacities, to sign, execute and file this Registration
Statement under the Securities Act of 1933, as amended, and any or all
amendments (including, without limitation, post-effective amendments), with all
exhibits and any and all documents required to be filed with respect thereto,
with the Securities and Exchange Commission or any regulatory authority,
granting unto such attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises in order to effectuate the same,
as fully to all intents and purposes as he himself might or could do, if
personally present, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their substitute or
substitutes, may lawfully do or cause to be done.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE CAPACITIES AND
ON THE DATES INDICATED.
SIGNATURE TITLE DATE
--------- ----- ----
/s/MARK E. BALDWIN Chairman of the Board of Direct March 20, 1998
Mark E. Baldwin and Chief Executive Officer
(Principal Executive Officer)
/s/BRIAN FONTANA Senior Vice President and March 20, 1998
Brian Fontana Chief Financial Officer
(Principal Financial and
Accounting Officer)
/s/ROBERT CHISTE Director March 20, 1998
Robert Chiste
II-5
<PAGE>
SIGNATURE TITLE DATE
--------- ----- ----
/s/JACK FATICA President, Chief Operating Officer March 20, 1998
Jack Fatica and Director
/s/CARY M. GROSSMAN Director March 20, 1998
Cary M. Grossman
/s/DONALD LIST Director March 20, 1998
Donald List
/s/ Director March 20, 1998
Mary E. McClure
/s/MICHAEL PETERS Director March 20, 1998
Michael Peters
/s/BENJAMIN E. SPENCE, JR. Director March 20, 1998
Benjamin E. Spence, Jr.
/s/
Clayton Trier Director March 20, 1998
II-6
<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
- ------ -----------
4.1* Amended and Restated Certificate of Incorporation (incorporated by
reference to Exhibit 3.1 of Amendment No.5 to the Company's Form S-1 (No.
333-41383)).
4.2* Bylaws (incorporated by reference to Exhibit 3.2 of Amendment No. 5 to the
Company's Form S-1 (No. 333-41383)).
4.3* Pentacon, Inc. 1997 Stock Option Plan (incorporated by reference to
Exhibit 10.4 of Amendment No. 1 to the Company's Form S-1
(No. 333-41383)).
5.1 Opinion of Andrews & Kurth L.L.P. as to the legality of the shares being
registered.
23.1 Consent of Ernst & Young, LLP.
23.2 Consent of McGladsey & Pullen, LLP
23.3 Consent of Andrews & Kurth L.L.P. (included in the opinion filed as
Exhibit 5.1 to this Registration Statement).
24.1 Powers of Attorney (set forth on the signature page contained in Part II
of this Registration Statement).
- ----------------------
* Incorporated by reference to the indicated filing.
II-7
EXHIBIT 5.1
March 26, 1998
Pentacon, Inc.
9432 Old Katy Road, Suite 222
Houston, Texas 77055
Gentlemen:
We have acted as counsel to Pentacon, Inc., a Delaware corporation
(the "Company"), in connection with the preparation of its Registration
Statement on Form S-8 (the "Registration Statement"), filed by the Company under
the Securities Act of 1933, as amended (the "Securities Act"), with respect to
the offering and sale by the Company of up to 1,700,000 shares of its common
stock, par value $0.01 per share (the "Common Stock") in connection with the
Pentacon, Inc. 1998 Stock Option Plan (the "Plan").
We have examined originals or copies of (i) the Second Amended and
Restated Certificate of Incorporation of the Company; (ii) the Bylaws of the
Company, as amended; (iii) certain resolutions of the Board of Directors and the
stockholders of the Company; and (iv) such other documents and records as we
have deemed necessary and relevant for purposes hereof. We have relied upon
certificates of public officials and officers of the Company as to certain
matters of fact relating to this opinion and have made such investigations of
law as we have deemed necessary and relevant as a basis hereof. We have not
independently verified any factual matter relating to this opinion.
We have assumed the genuineness of all signatures, the authenticity
of all documents, certificates and records submitted to us as copies, and the
conformity to original documents, certificates and records of all documents,
certificates and records submitted to us as copies.
Based upon the foregoing, and subject to the limitations and
assumptions set forth herein, and having due regard for such legal
considerations as we deem relevant, we are of the opinion that:
1. The Company is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Delaware.
<PAGE>
Pentacon, Inc.
March 26, 1998
Page 2
2. The Common Stock to be issued in connection with the Plan has
been duly authorized and, when issued and delivered by the Company pursuant to
the terms of the Plan, such shares will be validly issued, fully paid and
nonassessable.
The foregoing opinion is based on and is limited to the General
Corporation Law of the State of Delaware and the relevant laws of the United
States of America, and we render no opinion with respect to the laws of any
other jurisdiction.
We hereby consent to the filing of this opinion with the Securities
and Exchange Commission as Exhibit 5.1 to the Registration Statement. By giving
such consent, we do not admit that we are included within the category of
persons whose consent is required under Section 7 of the Securities Act or the
rules and regulations issued thereunder.
Very truly yours,
/s/ ANDREWS & KURTH L.L.P.
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration
Statement (Form S-8) pertaining to the Pentacon, Inc. 1998 Stock Option
Plan of our reports dated October 16, 1997 with respect to the financial
statements of Pentacon, Inc., dated November 21, 1997 (except for Note
3, as to which the date is November 26, 1997), with respect to the
financial statements of Alatec Products, Inc., dated November 7, 1997,
with respect to the financial statements of AXS Solutions, Inc., dated
October 15, 1997, with respect to the financial statements of Maumee
Industries, Inc., and dated October 20, 1997, with respect to the
financial statements of Sales Systems, Limited included in the Pentacon,
Inc. Registration Statement (No. 333-41383) on Form S-1 and related
Prospectus dated March 9, 1998, filed with the Securities and Exchange
Commission.
ERNST & YOUNG LLP
Houston, Texas
March30, 1998
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We hereby consent to the incorporation by reference in the March
30, 1998 Registration Statement on Form S-8 of our report dated November 2, 1997
(except for Note 3, as to which date is November 26, 1997), on the consolidated
financial statements of Alatec Products, Inc. as of December 31, 1996 and for
the year then ended, which appears on page F-19 of the March 9, 1998
Registration Statement on Form S-1 (No. 333-41383).
Pasadena, California /s/ MC GLADREY & PULLEN, LLP
March 30, 1998
