<PAGE>
As filed with the Securities and Exchange Commission on August 18, 1999
Registration Statement No. [333-________ ]
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MERKERT AMERICAN CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 04-3411833
(State of Organization) (I.R.S. Employer
Identification No.)
490 TURNPIKE STREET
CANTON, MASSACHUSETTS 02021
(Address of Principal Executive Offices)
MERKERT AMERICAN CORPORATION
AMENDED AND RESTATED 1998
STOCK OPTION AND INCENTIVE
PLAN
(Full Title of the Plans)
GERALD R. LEONARD
President and Chief Executive Officer
Merkert American Corporation
490 Turnpike Street
Canton, Massachusetts 02021
(781) 828-4800
(Name, Address and Telephone Number, including Area Code, of Agent for Service)
With copy to:
STUART M. CABLE, P.C.
GOODWIN, PROCTER & HOAR LLP
Exchange Place
Boston, Massachusetts 02109-2881
(617) 570-1000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===========================================================================================================
Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
To Be Registered Registered (1) Offering Price Per Aggregate Offering Registration Fee
Share(2) Price(2)
- -----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 400,100 $ 15.00 $ 6,001,500 $1,668.42
$.01 par value
35,000 $13.625 $ 476,875 $ 132.57
245,000 $ 11.25 $ 2,756,250 $ 766.24
50,000 $ 9.25 $ 462,500 $ 128.58
1,117,662 $ 6.02 $ 6,728,325.24 $1,870.47
- -----------------------------------------------------------------------------------------------------------
Total 1,847,762 $16,425,450.24 $4,566.28
- -----------------------------------------------------------------------------------------------------------
</TABLE>
(1) Plus such additional number of shares as may be required pursuant to the
Merkert American Corporation Amended and Restated 1998 Stock Option and
Incentive Plan in the event of a stock dividend, reverse stock split, split-
up, recapitalization or other similar event.
(2) This estimate is made pursuant to Rule 457(c) and (h) under the Securities
Act of 1933, as amended, solely for the purposes of determining the amount
of the registration fee. The registration fee is based upon the average of
the high and low prices for the Registrant's Common Stock, par value $.01
per share, as reported on the Nasdaq National Market on August 12, 1999.
================================================================================
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
This registration statement relates to 1,847,762 shares of common stock, par
value $.01 per share of Merkert American Corporation (the "Registrant")
representing shares under the Merkert American Corporation Amended and Restated
1998 Stock Option and Incentive Plan adopted by the Board on July 1, 1998, as
amended on August 18, 1999.
Item 1. Plan Information.*
----------------
Item 2. Registrant Information and Employee Plan Annual Information.*
-----------------------------------------------------------
*Information required by Part I to be contained in the Section 10(a)
Prospectus is omitted from this Registration Statement in accordance with Rule
428 under the Securities Act of 1933 (the "Securities Act") and the Introductory
Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
-----------------------------------------------
The Registrant hereby incorporates by reference into this Registration
Statement the following documents:
(a) the description of the Registrant's common stock contained in its
registration statement on Form 8-A, and any amendments or reports filed for the
purpose of updating such description;
(b) the Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998;
(c) the Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1999;
(d) the Registrant's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1999; and
(e) the Registrant's Current Report on Form 8-K filed on April 30, 1999.
In addition, all documents subsequently filed with the Securities and
Exchange Commission by the Registrant pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Securities Exchange Act of 1934, as amended, prior to the filing of
a post-effective amendment which indicates that all securities offered hereunder
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in this Registration Statement and to
be a part hereof from the date of filing of such documents. Any statement
contained in a document incorporated by reference herein shall be deemed to be
modified or superseded for purposes hereof to the extent that a statement
contained herein or in any subsequently filed document which also is
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
-------------------------
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
--------------------------------------
Not Applicable.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
Under Section 145 of the Delaware General Corporation Law, as amended (the
"DGCL"), the Registrant has the power to indemnify directors and officers under
certain prescribed circumstances and subject to certain limitations against
certain costs and expenses, including attorneys' fees actually and reasonably
incurred in connection with any action, suit or proceeding, whether civil,
criminal, administrative or investigative, to which any of them is a party by
reason of his or her being a director or officer of the Registrant if it is
determined that he or she acted in accordance with the applicable standard of
conduct set forth in such statutory provisions.
Section 102(b)(7) of the DGCL 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
2
<PAGE>
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 DGCL, or (iv) for any
transaction from which the director derived an improper personal benefit.
Article VII of the Registrant'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 after the effective date of this
Second Amended and Restated Certificate of Incorporation 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 Article VII by either of (i) the
stockholders of the Corporation or (ii) an amendment to the DGCL, shall not
adversely affect any right or protection existing at the time of such repeal
or modification with respect to any acts or omissions occurring before such
repeal or modification of a person serving as a Director at the time of such
repeal or modification.
Article V of the Registrant's Amended and Restated By-laws further states
that:
1. Definitions. For purposes of this Article: (a) "Director" means any
-----------
person who serves or has served the Corporation as a director on the Board
of Directors of the Corporation; (b) "Officer" means any person who serves
or has served the Corporation as an officer appointed by the Board of
Directors of the Corporation;(c) "Non-Officer Employee" means any person who
serves or has served as an employee of the Corporation, but who is not or
was not a Director or Officer; (d) "Proceeding" means any threatened,
pending or completed action, suit, arbitration, alternate dispute resolution
mechanism, inquiry, investigation, administrative hearing or other
proceeding, whether civil, criminal, administrative, arbitrative or
investigative; (e) "Expenses" means all reasonable attorneys' fees,
retainers, court costs, transcript costs, fees of expert witnesses, private
investigators and professional advisors (including, without limitation,
accountants and investment bankers), travel expenses, duplicating costs,
printing and binding costs, costs of preparation of demonstrative evidence
and other courtroom presentation aids and devices, costs incurred in
connection with document review, organization, imaging and computerization,
telephone charges, postage, delivery service fees, and all other
disbursements, costs or expenses of the type customarily incurred in
connection with prosecuting, defending, preparing to prosecute or defend,
investigating, being or preparing to be a witness in, settling or otherwise
participating in, a Proceeding; (f) "Corporate Status" describes the status
of a person who (i) in the case of a Director, is or was a director of the
Corporation and is or was acting in such capacity, (ii) in the case of an
Officer, is or was an officer, employee or agent of the Corporation or is or
was a director, officer, employee, trustee or agent of any other
corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise which such Officer is or was serving at the request of the
Corporation, and (iii) in the case of a Non-Officer Employee, is or was an
employee of the Corporation or is or was a director, officer, employee,
trustee or agent of any other corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise which such Non-Officer
Employee is or was serving at the request of the Corporation; and (g)
"Disinterested Director" means, with respect to each Proceeding in respect
of which indemnification is sought hereunder, a Director of the Corporation
who is not and was not a party to such Proceeding.
2. Indemnification of Directors and Officers. Subject to the operation of
-----------------------------------------
Section 4 of this Article V, each Director and Officer shall be indemnified
and held harmless by the Corporation to the fullest extent authorized by the
DGCL, as the same exists or may hereafter be amended (but, in the case of
any such amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than such law
permitted the Corporation to provide prior to such amendment) against any
and all Expenses, judgments, penalties, fines and amounts reasonably paid in
settlement that are incurred by such Director or Officer or on such Director
or Officer's behalf in connection with any threatened, pending or completed
Proceeding or any claim, issue or matter therein, which such Director or
Officer is, or is threatened to be made, a party to or participant in by
reason of such Director or Officer's Corporate Status, if such Director or
Officer acted in good faith and in a manner such Director or Officer
reasonably believed to be in or not opposed to the best interests of the
Corporation and, with respect to any criminal proceeding, had no reasonable
cause to believe his or her conduct was unlawful. The rights of
indemnification provided by this Section 2 shall continue as to a Director
or Officer after he or she has ceased to be a Director or Officer and shall
inure to the benefit of his or her heirs, executors, administrators and
personal representatives. Notwithstanding the foregoing, the Corporation
shall indemnify any Director or Officer seeking indemnification in
connection with a Proceeding initiated by such Director or Officer only if
such Proceeding was authorized by the Board of Directors of the Corporation.
3
<PAGE>
3. Indemnification of Non-Officer Employees. Subject to the operation of
----------------------------------------
Section 4 of this Article V, each Non-Officer Employee may, in the
discretion of the Board of Directors of the Corporation, be indemnified by
the Corporation to the fullest extent authorized by the DGCL, as the same
exists or may hereafter be amended, against any or all Expenses, judgments,
penalties, fines and amounts reasonably paid in settlement that are incurred
by such Non-Officer Employee or on such Non-Officer Employee's behalf in
connection with any threatened, pending or completed Proceeding, or any
claim, issue or matter therein, which such Non-Officer Employee is, or is
threatened to be made, a party to or participant in by reason of such Non-
Officer Employee's Corporate Status, if such Non-Officer Employee acted in
good faith and in a manner such Non-Officer Employee reasonably believed to
be in or not opposed to the best interests of the Corporation and, with
respect to any criminal proceeding, had no reasonable cause to believe his
or her conduct was unlawful. The rights of indemnification provided by this
Section 3 shall continue as to a Non-Officer Employee after he or she has
ceased to be a Non-Officer Employee and shall inure to the benefit of his or
her heirs, personal representatives, executors and administrators.
Notwithstanding the foregoing, the Corporation may indemnify any Non-Officer
Employee seeking indemnification in connection with a Proceeding initiated
by such Non-Officer Employee only if such Proceeding was authorized by the
Board of Directors of the Corporation.
4. Good Faith. No indemnification shall be provided pursuant to this
----------
Article V to a Director, to an Officer or to a Non-Officer Employee with
respect to a matter as to which such person shall have been finally
adjudicated in any Proceeding (i) not to have acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the Corporation and (ii) with respect to any criminal
Proceeding, to have had reasonable cause to believe his or her conduct was
unlawful. In the event that a Proceeding is compromised or settled prior to
final adjudication so as to impose any liability or obligation upon a
Director, an Officer or a Non-Officer Employee, no indemnification shall be
provided pursuant to this Article V to said Director, Officer or Non-Officer
Employee with respect to a matter if there be a reasonable good faith
determination that with respect to such matter such person did not act in
good faith and in a manner such person reasonably believed to be in, or not
opposed to, the best interests of the Corporation, and, with respect to any
criminal Proceeding, had reasonable cause to believe his or her conduct was
unlawful. The determination contemplated by the preceding sentence shall be
made (a) by a majority vote of the Disinterested Directors, even though less
than a quorum of the Board of Directors, (b) by a committee of Disinterested
Directors designated by a majority vote of Disinterested Directors, even
though less than a quorum of the Board of Directors, (c) if there are no
such Disinterested Directors, or if a majority of Disinterested Directors so
direct, by independent legal counsel in a written opinion, or (d) by the
stockholders of the Corporation.
5. Advancement of Expenses to Directors Prior to Final Disposition. The
---------------------------------------------------------------
Corporation shall advance all Expenses incurred by or on behalf of any
Director in connection with any Proceeding in which such Director is
involved by reason of such Director's Corporate Status within ten days after
the receipt by the Corporation of a written statement from such Director
requesting such advance or advances from time to time, whether prior to or
after final disposition of such Proceeding. Such statement or statements
shall reasonably evidence the Expenses incurred by such Director and shall
be preceded or accompanied by an undertaking by or on behalf of such
Director to repay any Expenses so advanced if it shall ultimately be
determined that such Director is not entitled to be indemnified against such
Expenses.
6. Advancement of Expenses to Officers and Non-Officer Employees Prior to
----------------------------------------------------------------------
Final Disposition. The Corporation may, in the discretion of the Board of
-----------------
Directors of the Corporation, advance any or all Expenses incurred by or on
behalf of any Officer or Non-Officer Employee in connection with any
Proceeding in which such Officer or Non-Officer Employee is involved by
reason of such Officer or Non-Officer Employee's Corporate Status upon the
receipt by the Corporation of a statement or statements from such Officer or
Non-Officer Employee requesting such advance or advances from time to time,
whether prior to or after final disposition of such Proceeding. Such
statement or statements shall reasonably evidence the Expenses incurred by
such Officer or Non-Officer Employee and shall be preceded or accompanied by
an undertaking by or on behalf of such Officer or Non-Officer Employee to
repay any Expenses so advanced if it shall ultimately be determined that
such Officer or Non-Officer Employee is not entitled to be indemnified
against such Expenses.
7. Contractual Nature of Rights. The foregoing provisions of this
----------------------------
Article V shall be deemed to be a contract between the Corporation and each
Director and Officer who serves in such capacity at any time while this
Article V is in effect, and any repeal or modification thereof shall not
affect any rights or obligations then existing with respect to any state of
facts then or theretofore existing or any Proceeding theretofore or
thereafter brought based in whole or in part upon any such state of facts.
If a claim for indemnification or advancement of Expenses hereunder by a
Director or Officer is not paid in full by the Corporation within
(a) 60 days after the Corporation's receipt of a written claim for
indemnification, or (b) in the case of a Director, 10 days after the
Corporation's receipt of documentation of Expenses and the required
undertaking, such Director or Officer may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim, and if
successful in whole or in part, such Director or Officer shall also be
entitled to be paid the expenses of prosecuting such claim. The failure of
the Corporation (including its Board of Directors or any committee thereof,
independent legal counsel, or stockholders) to make a determination
4
<PAGE>
concerning the permissibility of such indemnification or, in the case of a
Director, advancement of Expenses, under this Article V shall not be a
defense to the action and shall not create a presumption that such
indemnification or advancement is not permissible.
8. Non-Exclusivity of Rights. The rights to indemnification and
-------------------------
advancement of Expenses set forth in this Article V shall not be exclusive
of any other right which any Director, Officer or Non-Officer Employee may
have or hereafter acquire under any statute, provision of the Corporation's
Certificate or these By-laws, agreement, vote of stockholders or
Disinterested Directors or otherwise.
9. Insurance. The Corporation may maintain insurance, at its expense, to
---------
protect itself and any Director, Officer or Non-Officer Employee against any
liability of any character asserted against or incurred by the Corporation
or any such Director, Officer or Non-Officer Employee, or arising out of any
such person's Corporate Status, whether or not the Corporation would have
the power to indemnify such person against such liability under the DGCL or
the provisions of this Article V.
The Registrant carries directors' and officers' liability insurance covering
its directors and officers.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers or persons controlling the Registrant
pursuant to the foregoing provisions, the Securities and Exchange Commission has
expressed its opinion that such indemnification is against public policy as
expressed in the Securities Act and is therefore unenforceable.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not Applicable.
Item 8. Exhibits.
--------
The following is a complete list of exhibits filed or incorporated by
reference as part of this Registration Statement.
Exhibit Document
------- --------
3.1 Second Amended and Restated Certificate of Incorporation of the
Registrant (incorporated by reference to Exhibit 3.1 of the
Registrant's Registration Statement on Form S-1
(File No. 333-53419))
3.2 Amended and Restated By-Laws of the Registrant (incorporated by
reference to Exhibit 3.2 of the Registrant's Form 10-K for the
fiscal year ended December 31, 1998))
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of
securities being registered*
10.17 The Registrant's 1998 Amended and Restated Stock Option and
Incentive Plan (incorporated by reference to Exhibit 10.17 of
the Registrant's Registration Statement on Form S-1
(File No. 333-53419))
10.37 Amendment to the Registrant's 1998 Amended and Restated Stock
Option and Incentive Plan dated August 18, 1999* 23.2 Consent of
Arthur Andersen LLP*
23.3 Consent of Goodwin, Procter & Hoar LLP (included in Exhibit 5.1
hereto)
24.1 Power of Attorney (included on the signature page of this
Registration Statement)
- ---------------------
* Filed herewith.
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;
(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
5
<PAGE>
or decease 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 and 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 percent 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 paragraphs (a)(1)(i) and (a)(1)(ii) herein 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
undersigned 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.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing
of the registrant's annual report pursuant to Section 13(a) or 15(d) of
the Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to 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.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of the
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 Act
and will be governed by the final adjudication of such issue.
6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Canton, Massachusetts, on August 17, 1999.
MERKERT AMERICAN CORPORATION
By: /s/ Gerald R. Leonard
-------------------------------------
Gerald R. Leonard
President and Chief Executive Officer
POWER OF ATTORNEY
Know all men by these presents, that we, the undersigned officers and
directors of Merkert American Corporation hereby severally constitute Gerald R.
Leonard and Joseph T. Casey, with full power of substitution and each of them
singly, our true and lawful attorneys with full power to them, and each of them
singly, to sign for us and in our names in the capacities indicated below, the
Registration Statement filed herewith and any and all amendments to said
Registration Statement (or any registration statement for the same offering that
is to be effective upon filing pursuant to Rule 462(b) of the Securities Act)
and to file the same with all exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission (the "Commission") and
any and all other instruments which either of said attorneys-in-fact and agents
deem necessary or advisable to enable the Registrant to comply with the
Securities Act, the rules, regulations and requirements of the Commission in
respect thereof, and the securities or Blue Sky laws of any State or other
governmental subdivision, giving and granting to each of said attorneys-in-fact
and agents full power and authority to do and perform each and every act and
thing whatsoever necessary or appropriate to be done in and about the premises
as fully to all intents as he might or could do if personally present at the
doing thereof, with full power of substitution and resubstitution, hereby
ratifying and confirming all that his said attorneys-in-fact and agents or
substitutes may or shall lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Gerald R. Leonard Chairman of the Board, Chief August 17, 1999
- --------------------------- Executive Officer and President
Gerald R. Leonard
/s/ James L. Monroe Director August 17, 1999
- ---------------------------
James L. Monroe
/s/ Joseph T. Casey Chief Financial Officer August 17, 1999
- --------------------------- and Treasurer
Joseph T. Casey
/s/ Edward P. Grace, III Director August 17, 1999
- ---------------------------
Edward P. Grace, III
/s/ James A. Schlindwein Director
- --------------------------- August 17, 1999
James A. Schlindwein
</TABLE>
7
<PAGE>
EXHIBIT INDEX
Exhibit Document
------- --------
3.1 Second Amended and Restated Certificate of Incorporation of the
Registrant (incorporated by reference to Exhibit 3.1 of the
Registrant's Registration Statement on Form S-1
(File No. 333-53419))
3.2 Amended and Restated By-Laws of the Registrant (incorporated by
reference to Exhibit 3.2 of the Registrant's Form 10-K for the
fiscal year ended December 31, 1998))
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of
securities being registered*
10.17 The Registrant's 1998 Amended and Restated Stock Option and
Incentive Plan (incorporated by reference to Exhibit 10.17 of
the Registrant's Registration Statement on Form S-1
(File No. 333-53419))
10.37 Amendment to the Registrant's 1998 Amended and Restated Stock
Option and Incentive Plan dated August 18, 1999*
23.2 Consent of Arthur Andersen LLP*
23.3 Consent of Goodwin, Procter & Hoar LLP
(included in Exhibit 5.1 hereto)
24.1 Power of Attorney (included on the signature page of this
Registration Statement)
- ---------------------
* Filed herewith.
<PAGE>
EXHIBIT 5.1
August 18, 1999
Merkert American Corporation
490 Turnpike Street
Canton, Massachusetts 02021
Re: Merkert American Amended and Restated 1998 Stock Option and Incentive
---------------------------------------------------------------------
Plan
----
Ladies and Gentlemen:
This opinion is furnished in connection with the registration pursuant to
the Securities Act of 1933, as amended (the "Act"), of 1,847,762 shares (the
"Shares") of Common Stock, par value $.01 per share (the "Common Stock"), of
Merkert American Corporation (the "Company") which may be issued pursuant to
awards granted under the Company's Amended and Restated 1998 Stock Option and
Incentive Plan (the "Plan").
We have acted as counsel to the Company in connection with the registration
of the Shares under the Act. In connection with rendering this opinion, we have
examined the Second Amended and Restated Certificate of Incorporation and the
Amended and Restated By-laws of the Company, each as amended to date; a
registration statement on Form S-8 under the Act relating to the Shares (the
"Registration Statement"); and such records of the corporate proceedings of the
Company as we deemed material; and such other certificates, receipts, records
and documents as we considered necessary for the purposes of this opinion. In
our examination, we have assumed the genuineness of all signatures, the legal
capacity of natural persons, the authenticity of all documents submitted to us
as certified, photostatic or facsimile copies, the authenticity of the originals
of such copies and the authenticity of telephonic confirmations of public
officials and others. As to facts material to our opinion, we have relied upon
certificates or telephonic confirmations of public officials and certificates,
documents, statements and other information of the Company or representatives or
officers thereof.
We are attorneys admitted to practice in the Commonwealth of Massachusetts.
We express no opinion concerning the laws of any jurisdictions other than the
laws of the United States of America, the Commonwealth of Massachusetts and the
General Corporation Law of the State of Delaware.
<PAGE>
Based upon the foregoing, we are of the opinion that upon the issuance and
delivery of, and payment for, the Shares in accordance with the terms of the
Registration Statement, the Plan and the option agreements entered into pursuant
to the Plan, the Shares will be legally issued, fully paid and non-assessable
shares of the Company's Common Stock.
The foregoing opinion assumes that all requisite steps will be taken to
comply with the requirements of the Act and applicable requirements of state
laws regulating the offer and sale of securities. The foregoing opinion further
assumes that the purchase price paid for the Shares is in excess of the par
value thereof.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to us with respect to this opinion
under the heading "Interests of Named Experts and Counsel" in the Prospectus
which is a part of such Registration Statement. In giving such consent, we do
not thereby admit that we are in the category of persons whose consent is
required under Section 7 of the Act.
Very truly yours,
/s/ Goodwin, Procter & Hoar LLP
GOODWIN, PROCTER & HOAR LLP
<PAGE>
EXHIBIT 10.37
FIRST AMENDMENT TO
AMENDED AND RESTATED
MERKERT AMERICAN CORPORATION
1998 STOCK OPTION AND INCENTIVE PLAN
This First Amendment (the "Amendment") to the Amended and Restated Merkert
American Corporation ("Merkert" or the "Company") 1998 Stock Option and
Incentive Plan, dated July 1, 1998 (the "Plan"), was adopted by the Board of
Directors (the "Board") of the Company on August 18, 1999.
WHEREAS, the Board believes that the availability of an adequate number of
shares of common stock, $.01 par value per share (the "Stock"), under the Plan
has been, and in the future will be, an important factor in attracting and
retaining the highest caliber directors, executives, employees and consultants
of the Company;
WHEREAS, the Board has determined that, in light of the proposed merger of
Richmont Marketing Specialists, Inc. with and into the Company and the proposed
issuance of options to purchase 800,000 shares of Stock to employees and other
persons associated with Richmont, the number of shares of Stock available for
issuance under the Plan is currently insufficient; and
WHEREAS, the Board has determined that approximately 13% of the Company's
outstanding Stock should be reserved for issuance under the Plan.
NOW WHEREFORE, the Plan is hereby amended in the following manner:
Section 3 (a) is amended in its entirety as follows:
"(a) Stock Issuable. The maximum number of shares of Stock
reserved and available for issuance under the Plan (the "Maximum Share
Number") shall be such aggregate number of shares of Stock as does not
exceed the sum of (i) 1,847,762 shares (subject to adjustment in accordance
with Section 3(b) hereof); plus (ii) as of January 1, 2000 and each January
1 thereafter, 13.0 percent of any net increase since the date of this
Amendment in the total number of shares of Stock actually outstanding.
Notwithstanding the foregoing, the maximum number of shares of Stock for
which Incentive Stock Options may be granted under the Plan shall not
exceed 1,847,762 shares reduced by the aggregate number of shares subject
to outstanding Awards granted under the Plan. For purposes of this
limitation, if any portion of an Award is forfeited, canceled, reacquired
by the Company, satisfied without the issuance of Stock or otherwise
terminated, the shares of Stock underlying such portion of the Award shall
be added back to the shares of Stock available for
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issuance under the Plan. Subject to such overall limitation, shares of
Stock may be issued up to such maximum number pursuant to any type or types
of Award; provided, however, Stock Options or Stock Appreciation Rights
with respect to no more than 250,000 shares of Stock may be granted to any
one individual participant during any one calendar year period. The shares
available for issuance under the Plan may be authorized but unissued shares
of Stock or shares of Stock reacquired by the Company."
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EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-8 of our report dated March
30, 1999 included in Merkert American Corporation's Form 10-K for the year ended
December 31, 1998 and to all references to our Firm included in this
registration statement.
ARTHUR ANDERSEN LLP
Boston, Massachusetts
August 18, 1999
