<PAGE>
As filed with the Securities and Exchange Commission on July 26, 1996.
Registration No. 333-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
WESTERN MICRO TECHNOLOGY, INC.
(Exact name of registrant as specified in its charter)
California 94-2414428
------------------------------- ------------------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
254 E. Hacienda Avenue
Campbell, California 95008
------------------------------ ------------------------------
(Address of Principal (Zip Code)
Executive Offices)
WESTERN MICRO TECHNOLOGY, INC. 1994 STOCK OPTION PLAN
-----------------------------------------------------------
(Full title of the plan)
JAMES W. DORST Copy to:
Chief Financial Officer KATHARINE A. MARTIN, ESQ.
Western Micro Technology, Inc. Pillsbury Madison & Sutro LLP
254 E. Hacienda Avenue 2700 Sand Hill Road
Campbell, California 95008 Menlo Park, CA 94025
(408) 983-5950 (415) 233-4500
- ----------------------------------- --------------------------
(Name, address and telephone
number, including area code,
of agent for service)
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
Title of Amount Proposed Maximum Proposed Amount of
Securities To To Be Offering Price Maximum Aggregate Registration
Be Registered Registered(1) per Share(2) Offering Price(1) Fee
- --------------------------------------------------------------------------------
Common Stock, 350,000 $6.875 $2,406,250 $829.74
without par value
- --------------------------------------------------------------------------------
(1) Calculated pursuant to General Instruction E on Form S-8.
(2) Estimated solely for the purpose of calculating the registration fee on
the basis of the average of the high and low prices as reported on the
Nasdaq National Market on July 22, 1996.
(3) The Registration Fee has been calculated pursuant to Rule 457(h).
_________________
The Registration Statement shall become effective upon filing in
accordance with Rule 462 under the Securities Act of 1933.
- --------------------------------------------------------------------------------
Page 1 of 26 pages
Exhibit Index Appears on page 9.
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<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
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, as
amended, and the 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 following documents, filed with the Securities and Exchange Commission
(the "Commission") by the Registrant, are hereby incorporated by reference in
this Registration Statement:
(i) The Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1995;
(ii) The Registrant's Quarterly Report on Form 10-Q for the
quarterly period ended March 31, 1996; and
(iii) The information with regard to the Registrant's capital
stock contained in the Registrant's Registration Statement on Form 10,
filed with the Commission pursuant to section 12 of the Securities
Exchange Act of 1934, including any subsequent amendment or report
filed for the purpose of updating such information.
In addition, all documents subsequently filed by the Registrant pursuant to
sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of
such documents.
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<PAGE>
Item 4. Description of Securities.
- ------ -------------------------
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
- ------ --------------------------------------
Not Applicable.
Item 6. Indemnification of Officers and Directors.
- ------ -----------------------------------------
Sections 204 and 317 of the General Corporation Law of the State of
California (the "General Law") empower a corporation to indemnify its directors,
officers, employees and agents (collectively "Agents") under certain circum-
stances. Article Sixth of the Registrant's Certificate of Amendment of Articles
of Incorporation authorizes the Registrant to indemnify its Agents
in excess of the indemnification otherwise permitted by Section 317 of the
General Law, subject to applicable limits set forth in Section 204 of the
General Law with respect to actions for breach of duty to the Registrant and its
shareholders. Article IX of the Registrant's Bylaws empowers the Registrant to
indemnify Agents of the Registrant pursuant to certain requirements, except as
prohibited by law.
The Registrant has also entered into agreements with its directors and
certain officers to provide indemnity to such persons against certain liabili-
ties and expenses by reason of their being or having been directors or officers
to the maximum extent permitted by applicable laws.
The directors and officers of the Registrant have a policy of insurance
under which they are insured, within limits and subject to limitations, against
certain expenses in connection with the defense of actions, suits or pro-
ceedings, and certain liabilities which might be imposed as a result of such
actions, suits or proceedings, in which they are parties by reason of their
being or having been directors or officers.
Item 7. Exemption from Registration Claimed.
- ------ -----------------------------------
Not Applicable.
Item 8. Exhibits.
- ------ --------
See Index to Exhibits on page 9.
Item 9. Undertakings.
- ------ ------------
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made of the securities registered hereby, a post-effective amendment
to this Registration Statement:
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<PAGE>
(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 this 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 this Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
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 this 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 further undertakes that, for pur-
poses of determining any liability under the Securities Act of 1933, each filing
of the Registrant's annual report pursuant to section 13(a) or section 15(d) of
the Securities Exchange Act of 1934 that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the
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<PAGE>
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.
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<PAGE>
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 autho-
rized, in the City of Campbell, State of California, on July 19, 1996.
WESTERN MICRO TECHNOLOGY, INC.
By /s/ P. SCOTT MUNRO
------------------------------------------------
P. Scott Munro
President,
Chief Executive Officer,
Secretary and Director
By /s/ JAMES W. DORST
------------------------------------------------
James W. Dorst
Chief Financial Officer
(Principal Financial and
Accounting Officer)
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<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints P. Scott Munro and James W. Dorst, and each of
them, his true and lawful attorneys-in-fact and agents, each with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments, including post-effective
amendments, to this Registration Statement, and to file the same, with exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said 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, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that each of
said attorneys-in-fact and agents or his substitute or substitutes may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registra-
tion Statement has been signed by the following persons in the capacities and on
the date indicated:
Signature Title Date
--------- ----- ----
/s/ P. SCOTT MUNRO President, Chief July 19, 1996
------------------ Executive Officer,
P. Scott Munro Secretary and Director
(Principal Executive
Officer)
/s/ JAMES W. DORST Chief Financial Officer July 19, 1996
------------------ (Principal Financial and
James W. Dorst Accounting Officer)
/s/ JAMES J. HEFFERNAN Director July 19, 1996
----------------------
James J. Heffernan
Director July 19, 1996
--------------------
Jerome A. Martin
/s/ K. WILLIAM SICKLER Director July 19, 1996
----------------------
K. William Sickler
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<PAGE>
Signature Title Date
--------- ----- ----
/s/ J. LARRY SMART Director July 19, 1996
------------------
J. Larry Smart
/s/ WILLIAM H. WELLING Director July 19, 1996
----------------------
William H. Welling
-8-
<PAGE>
INDEX TO EXHIBITS
-----------------
Exhibit Sequentially
Number Exhibit Numbered Page
------- ------- -------------
4.1 1994 Stock Option Plan 10
5.1 Opinion regarding legality of securities 25
to be offered.
23.1 Consent of Independent Auditors. 26
23.2 Consent of Pillsbury Madison & Sutro LLP
(included in Exhibit 5.1).
24.1 Power of Attorney (see pages 7-8).
-9-
<PAGE>
Exhibit 4.1
1994 STOCK OPTION PLAN
OF
WESTERN MICRO TECHNOLOGY, INC.
(As Amended and Restated Effective as of January 18, 1996)
<PAGE>
TABLE OF CONTENTS
-----------------
Page
----
SECTION 1. ESTABLISHMENT AND PURPOSE. . . . . . . . . . . . . . . . . . 1
SECTION 2. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . 1
(a) "Board of Directors" . . . . . . . . . . . . . . . . . . . . . . 1
(b) "Change in Control" . . . . . . . . . . . . . . . . . . . . . . . 1
(c) "Code" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
(d) "Committee" . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
(e) "Company" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
(f) "Consultant" . . . . . . . . . . . . . . . . . . . . . . . . . . 2
(g) "Employee" . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
(h) "Exchange Act" . . . . . . . . . . . . . . . . . . . . . . . . . 2
(i) "Exercise Price" . . . . . . . . . . . . . . . . . . . . . . . . 2
(j) "Fair Market Value" . . . . . . . . . . . . . . . . . . . . . . . 2
(k) "ISO" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
(l) "Nonstatutory Option" . . . . . . . . . . . . . . . . . . . . . . 2
(m) "Option" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
(n) "Optionee" . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
(o) "Outside Director" . . . . . . . . . . . . . . . . . . . . . . . 2
(p) "Plan" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
(q) "Service" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
(r) "Share" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
(s) "Stock" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
(t) "Stock Option Agreement" . . . . . . . . . . . . . . . . . . . . 3
(u) "Subsidiary" . . . . . . . . . . . . . . . . . . . . . . . . . . 3
(v) "Total and Permanent Disability" . . . . . . . . . . . . . . . . 3
SECTION 3. ADMINISTRATION. . . . . . . . . . . . . . . . . . . . . . . 3
(a) Committee Procedures . . . . . . . . . . . . . . . . . . . . . . 3
(b) Committee Responsibilities . . . . . . . . . . . . . . . . . . . 3
SECTION 4. ELIGIBILITY . . . . . . . . . . . . . . . . . . . . . . . . 4
(a) General Rule . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(b) Outside Directors . . . . . . . . . . . . . . . . . . . . . . . . 4
(c) Ten-Percent Shareholders . . . . . . . . . . . . . . . . . . . . 5
SECTION 5. STOCK SUBJECT TO PLAN . . . . . . . . . . . . . . . . . . . 5
(a) Basic Limitation . . . . . . . . . . . . . . . . . . . . . . . . 5
(b) Additional Shares . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 6. TERMS AND CONDITIONS OF OPTIONS . . . . . . . . . . . . . . 5
(a) Stock Option Agreement . . . . . . . . . . . . . . . . . . . . . 5
(b) Number of Shares . . . . . . . . . . . . . . . . . . . . . . . . 5
(c) Exercise Price . . . . . . . . . . . . . . . . . . . . . . . . . 6
(d) Withholding Taxes . . . . . . . . . . . . . . . . . . . . . . . . 6
(e) Exercisability and Term . . . . . . . . . . . . . . . . . . . . . 6
(f) Nontransferability . . . . . . . . . . . . . . . . . . . . . . . 6
(g) Exercise of Options Upon Termination of Service . . . . . . . . . 6
(h) Leaves of Absence . . . . . . . . . . . . . . . . . . . . . . . . 6
-i-
<PAGE>
Page
(i) No Rights as a Shareholder . . . . . . . . . . . . . . . . . . . . . . 6
(j) Modification, Extension and Renewal of Options . . . . . . . . . 6
(k) Restrictions on Transfer of Shares . . . . . . . . . . . . . . . 7
SECTION 7. PAYMENT FOR SHARES . . . . . . . . . . . . . . . . . . . . . 7
(a) General Rule . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(b) Surrender of Stock . . . . . . . . . . . . . . . . . . . . . . . 7
(c) Cashless Exercise . . . . . . . . . . . . . . . . . . . . . . . . 7
(d) Other Forms of Payment . . . . . . . . . . . . . . . . . . . . . 7
SECTION 8. ADJUSTMENT OF SHARES . . . . . . . . . . . . . . . . . . . . 7
(a) General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(b) Reorganizations . . . . . . . . . . . . . . . . . . . . . . . . . 7
(c) Reservation of Rights . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 9. LEGAL AND REGULATORY REQUIREMENTS . . . . . . . . . . . . . 8
SECTION 10. NO EMPLOYMENT RIGHTS . . . . . . . . . . . . . . . . . . . . 8
SECTION 11. DURATION AND AMENDMENTS . . . . . . . . . . . . . . . . . . 8
(a) Term of the Plan . . . . . . . . . . . . . . . . . . . . . . . . 8
(b) Right to Amend or Terminate the Plan . . . . . . . . . . . . . . 8
(c) Effect of Amendment or Termination . . . . . . . . . . . . . . . 8
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<PAGE>
1994 STOCK OPTION PLAN
OF
WESTERN MICRO TECHNOLOGY, INC.
(As Amended and Restated Effective as of January 18, 1996)
SECTION 1. ESTABLISHMENT AND PURPOSE.
- --------- -------------------------
The Plan was established in 1994 to offer selected employees,
consultants and non-employee directors an opportunity to acquire a proprietary
interest in the success of the Company, or to increase such interest through the
grant of Options to purchase Shares. Options granted under the Plan may include
Nonstatutory Options as well as ISOs intended to qualify under Code section 422.
This amendment and restatement (i) revises the formula for granting
Options to Outside Directors, (ii) increases the number of Shares subject to the
Plan and (iii) adds a new Code section 162(m) individual Option grant limit for
Optionees who are newly hired.
SECTION 2. DEFINITIONS.
- --------- -----------
(a) "Board of Directors" shall mean the Board of Directors of the
------------------
Company, as constituted from time to time.
(b) "Change in Control" means the occurrence of any of the following
-----------------
events:
(i) The shareholders of the Company approve a merger or
consolidation of the Company with any other corporation, other
than a merger or consolidation which would result in the voting
securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving entity)
at least 50% of the total voting power represented by the voting
securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation; or
(ii) The shareholders of the Company approve (i) a plan of
complete liquidation of the Company or (ii) an agreement for the
sale or disposition by the Company of all or substantially all of
the Company's assets; or
(iii) Any "person" (as defined below) is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act), directly or
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<PAGE>
indirectly, of securities of the Company representing 50% or more of
the total voting power represented by the Company's then outstanding
voting securities.
For purposes of Subsection (iii) above, the term "person" shall
have the same meaning as when used in sections 13(d) and 14(d) of the
Exchange Act, but shall exclude (i) a trustee or other fiduciary
holding securities under an employee benefit plan of the Company or of
a parent or Subsidiary of the Company and (ii) a corporation owned
directly or indirectly by the shareholders of the Company in
substantially the same proportions as their ownership of the common
stock of the Company.
Any other provision of this Section 2(b) notwithstanding, the
term "Change in Control" shall not include either of the following
events, if undertaken at the election of the Company:
(i) A transaction, the sole purpose of which is to change
the state of the Company's incorporation; or
(ii) A transaction, the result of which is to sell all or
substantially all of the assets of the Company to another
corporation (the "surviving corporation"); provided that the
surviving corporation is owned directly or indirectly by the
shareholders of the Company immediately following such transac-
tion in substantially the same proportions as their ownership of
the Company's common stock immediately preceding such
transaction; and provided, further, that the surviving corpo-
ration expressly assumes this Plan and all outstanding options.
(c) "Code" shall mean the Internal Revenue Code of 1986, as amended.
----
(d) "Committee" shall mean the committee designated by the Board of
---------
Directors, which is authorized to administer the Plan under Section 3 hereof.
The Committee's membership shall enable the Plan to qualify under Rule 16b-3
with regard to the grant of Options under the Plan to persons who are subject to
section 16 of the Exchange Act. If the Compensation Committee of the Board of
Directors determines to qualify compensation attributable to Options for
exemption from the deduction limit of section 162(m) of the Code, then the
Committee membership shall satisfy such requirements as may be necessary to
ensure that income attributable to Options qualifies for such exemption.
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<PAGE>
(e) "Company" shall mean Western Micro Technology, Inc., a California
-------
corporation.
(f) "Consultant" shall mean an individual who provides services to
----------
the Company or any Subsidiary other than as a common-law employee.
(g) "Employee" shall mean any individual who is (i) a common-law
--------
employee of the Company or of a Subsidiary, (ii) a Consultant or (iii) an
Outside Director.
(h) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
------------
amended.
(i) "Exercise Price" shall mean the amount for which one Share may be
--------------
purchased upon exercise of an Option, as specified by the Committee in the
applicable Stock Option Agreement.
(j) "Fair Market Value" shall mean (i) the closing price of a Share
-----------------
on the principal exchange which the Shares are trading, on the first trading day
immediately preceding the date on which the Fair Market Value is determined, or
(ii) if the Shares are not traded on an exchange but are quoted on the Nasdaq
National Market or a successor quotation system, the closing price on the first
trading day immediately preceding the date on which the Fair Market Value is
determined, or (iii) if the Shares are not traded on an exchange or quoted on
the Nasdaq National Market or a successor quotation system, the fair market
value of a Share, as determined by the Committee in good faith. Such
determination shall be conclusive and binding on all persons.
(k) "ISO" shall mean an employee incentive stock option described in
---
Code section 422.
(l) "Nonstatutory Option" shall mean an employee stock option that is
-------------------
not an ISO.
(m) "Option" shall mean an ISO or Nonstatutory Option granted under
------
the Plan and entitling the holder to purchase Shares.
(n) "Optionee" shall mean an individual who holds an Option.
--------
(o) "Outside Director" shall mean a member of the Board of Directors
----------------
who is not a common-law employee of the Company or of a Subsidiary.
(p) "Plan" shall mean this 1994 Stock Option Plan of Western Micro
----
Technology, Inc., as amended from time to time.
(q) "Service" shall mean service as an Employee.
-------
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<PAGE>
(r) "Share" shall mean one share of Stock.
-----
(s) "Stock" shall mean the Common Stock of the Company.
-----
(t) "Stock Option Agreement" shall mean the agreement between the
----------------------
Company and an Optionee which contains the terms, conditions and restrictions
pertaining to his or her Option.
(u) "Subsidiary" shall mean any corporation, if the Company and/or
----------
one or more other Subsidiaries own not less than 50 percent of the total
combined voting power of all classes of outstanding stock of such corporation.
A corporation that attains the status of a Subsidiary on a date after the
adoption of the Plan shall be considered a Subsidiary commencing as of such
date.
(v) "Total and Permanent Disability" shall mean that the Optionee is
------------------------------
unable to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in
death or which has lasted, or can be expected to last, for a continuous period
of not less than 12 months, as determined by the Committee.
SECTION 3. ADMINISTRATION.
- --------- --------------
(a) Committee Procedures. The Board of Directors shall designate one
--------------------
of the members of the Committee as chairperson. The Committee may hold meetings
at such times and places as it shall determine. The acts of a majority of the
Committee members present at meetings at which a quorum exists, or acts reduced
to or approved in writing by all Committee members, shall be valid acts of the
Committee.
(b) Committee Responsibilities. Subject to the provisions of the
--------------------------
Plan, the Committee shall have full authority and discretion to take the
following actions:
(i) To interpret the Plan and to apply its provisions;
(ii) To adopt, amend or rescind rules, procedures and forms relating
to the Plan;
(iii) To authorize any person to execute, on behalf of the Company,
any instrument required to carry out the purposes of the Plan;
(iv) To determine when Options are to be granted under the Plan;
(v) To select Optionees;
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<PAGE>
(vi) To determine the number of Shares to be made subject to each
Option;
(vii) To prescribe the terms and conditions of each Option, including
(without limitation) the Exercise Price, the vesting or duration of the
Option (including accelerating the vesting of the Option), to determine
whether such Option is to be classified as an ISO or as a Nonstatutory
Option, and to specify the provisions of the Stock Option Agreement
relating to such Option;
(viii) To amend any outstanding Stock Option Agreement, subject to
applicable legal restrictions;
(ix) To prescribe the consideration for the grant of each Option
under the Plan and to determine the sufficiency of such consideration;
(x) To determine the disposition of each Option under the Plan in the
event of an Optionee's divorce or dissolution of marriage;
(xi) To determine whether Options under the Plan will be granted in
replacement of other grants under an incentive or other compensation plan
of an acquired business;
(xii) To correct any defect, supply any omission, or reconcile any
inconsistency in the Plan or any Stock Option Agreement; and
(xiii) To take any other actions deemed necessary or advisable for
the administration of the Plan.
Subject to the requirements of applicable law, the Committee may designate
persons other than members of the Committee to carry out its responsibilities
and may prescribe such conditions and limitations as it may deem appropriate,
except that the Committee may not delegate its authority with regard to the
selection for participation of or the granting of Options under the Plan to
persons subject to Section 16 of the Exchange Act. All decisions,
interpretations and other actions of the Committee shall be final and binding on
all Optionees and all persons deriving their rights from an Optionee. No member
of the Committee shall be liable for any action that he has taken or has failed
to take in good faith with respect to the Plan or any Option.
SECTION 4. ELIGIBILITY.
- --------- -----------
(a) General Rule. Only Employees shall be eligible for designation
------------
as Optionees by the Committee. In addition,
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<PAGE>
only individuals who are employed as common-law employees by the Company or a
Subsidiary shall be eligible for the grant of ISOs.
(b) Outside Directors. Any other provision of the Plan
-----------------
notwithstanding, the participation of Outside Directors in the Plan shall be
subject to the following restrictions:
(i) Outside Directors shall only be eligible for the grant of
Nonstatutory Options as described in this Section 4(b).
(ii) Each Outside Director shall automatically be granted a
Nonstatutory Option to purchase 10,000 Shares (subject to adjustment
under Section 8) as a result of his or her initial appointment as an
Outside Director at or after the 1996 Annual Meeting of Shareholders.
Effective for the 1996 Annual Meeting, and upon the conclusion of
every regular annual meeting of the Company's shareholders following
the annual meeting at which an Outside Director was appointed, each
such Outside Director who will continue serving as a member of the
Board thereafter shall receive a Nonstatutory Option to purchase 2,500
Shares (subject to adjustment under Section 8). All such Nonstatutory
Options shall vest and become exercisable at the rate of 25% upon each
one-year anniversary of the date the option is granted to the Outside
Director.
(iii) All Nonstatutory Options granted to an Outside Director
under this Section 4(b) shall also become exercisable in full in the
event of (A) the termination of such Outside Director's service
because of death or Total and Permanent Disability or (B) a Change in
Control of the Company.
(iv) The Exercise Price of any Nonstatutory Option granted to an
Outside Director under this Section 4(b) shall be equal to the number
of Shares covered by such Option multiplied by 100% of the Fair Market
Value of a Share on the date of grant, and shall be payable in a form
described in Section 7.
(v) All Nonstatutory Options granted to an Outside Director
under this Section 4(b) shall terminate on the earliest of (A) the
10th anniversary of the date of grant of such Nonstatutory Options,
(B) the date 90 days after the termination of such Outside Director's
service for any reason other than death, Total and Permanent
Disability or voluntary retirement as an Outside Director at or after
the age of 60, or (C) the date 12 months after the termination of such
Outside Director's service because of death,
-6-
<PAGE>
Total and Permanent Disability or voluntary retirement as an Outside
Director at or after the age of 60.
(c) Ten-Percent Shareholders. An Employee who owns more than 10
------------------------
percent of the total combined voting power of all classes of outstanding stock
of the Company or any of its Subsidiaries shall not be eligible for the grant of
an ISO unless such grant satisfies the requirements of Code section 422(c)(5).
For purposes of this Subsection, in determining stock ownership, an Employee
shall be deemed to own the stock owned, directly or indirectly, by or for his or
her brothers, sisters, spouse, ancestors and lineal descendants. Stock owned,
directly or indirectly, by or for a corporation, partnership, estate or trust
shall be deemed to be owned proportionately by or for its shareholders, partners
or beneficiaries. For purposes of this Subsection, "outstanding stock" shall
include all stock actually issued and outstanding immediately after the grant.
"Outstanding stock" shall not include shares authorized for issuance under
outstanding options held by the Employee or by any other person.
SECTION 5. STOCK SUBJECT TO PLAN.
- --------- ---------------------
(a) Basic Limitation. Shares offered under the Plan shall be
----------------
authorized but unissued Shares or Shares acquired on the open market. The
aggregate number of Shares which may be issued under the Plan upon the exercise
of Options shall not exceed 821,801 plus the shares that remained available
for grant under the Western Micro Technology, Inc. Amended and Restated
Incentive and Non-Incentive Stock Option Plan as of June 15, 1994, including any
shares subject to any option granted under such plan and outstanding on such
date that is terminated prior to exercise. The aggregate number of Shares which
may be issued under the Plan shall at all times be subject to adjustment
pursuant to Section 8. The number of Shares which are subject to Options out-
standing at any time under the Plan shall not exceed the number of Shares which
are available for issuance under the Plan. The Company, during the term of the
Plan, shall at all times reserve and keep available sufficient Shares to satisfy
the requirements of the Plan.
(b) Additional Shares. In the event that any outstanding Option for
-----------------
any reason expires or is canceled or otherwise terminated, the Shares allocable
to the unexercised portion of such Option shall again be available for the
purposes of the Plan.
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<PAGE>
SECTION 6. TERMS AND CONDITIONS OF OPTIONS.
- --------- -------------------------------
(a) Stock Option Agreement. Each grant of an Option under the Plan
----------------------
shall be evidenced by a Stock Option Agreement between the Optionee and the
Company. Such Option shall be subject to all applicable terms and conditions of
the Plan and may be subject to any other terms and conditions which are not
inconsistent with the Plan and which the Committee deems appropriate for
inclusion in a Stock Option Agreement. Except for options granted pursuant to
Section 4(b), the provisions of the various Stock Option Agreements entered into
under the Plan need not be identical.
(b) Number of Shares. Each Stock Option Agreement shall specify the
----------------
number of Shares that are subject to the Option and shall provide for the
adjustment of such number in accordance with Section 8. The Stock Option Agree-
ment shall also specify whether the Option is an ISO or a Nonstatutory Option.
Options granted to any Optionee in a single calendar year shall in no event
cover more than 150,000 Shares, subject to adjustment in accordance with Section
8; provided, however, options granted to an Optionee in the calendar year in
which he or she is newly hired shall in no event cover more than 300,000 Shares,
subject to adjustment in accordance with Section 8.
(c) Exercise Price. Each Stock Option Agreement shall specify the
--------------
Exercise Price. The Exercise Price of an ISO shall not be less than 100 percent
of the Fair Market Value of a Share on the date of grant, except as otherwise
provided in Section 4(b). Subject to the preceding sentence and Section 4(b),
the Exercise Price under any Option shall be determined by the Committee at its
sole discretion. The Exercise Price shall be payable in a form described in
Section 7. The Exercise Price of an Option that is intended to qualify under
Code section 162(m) shall not be less than 100 percent of the Fair Market Value
of a share on the date of grant.
(d) Withholding Taxes. As a condition to the exercise of an Option,
-----------------
the Optionee shall make such arrangements as the Committee may require for the
satisfaction of any federal, state or local withholding tax obligations that may
arise in connection with such exercise. The Optionee shall also make such
arrangements as the Committee may require for the satisfaction of any federal,
state or local withholding tax obligations that may arise in connection with the
disposition of Shares acquired by exercising an Option.
(e) Exercisability and Term. Subject to Section 4(b), each Stock
-----------------------
Option Agreement shall specify the date when all or any installment of the
Option is to become exercisable. The Stock Option Agreement shall also specify
the term of the Option. The term shall not exceed 10 years
-8-
<PAGE>
from the date of grant, except as otherwise provided in Section 4(b). Subject
to the preceding three sentences, the Committee at its sole discretion shall
determine when all or any installment of an Option is to become exercisable and
when an Option is to expire.
(f) Nontransferability. During an Optionee's lifetime, his or her
------------------
Option(s) shall be exercisable only by him and shall not be transferable. In
the event of an Optionee's death, his or her Option(s) shall not be transferable
other than by will or by the laws of descent and distribution.
(g) Exercise of Options Upon Termination of Service. Each Stock
-----------------------------------------------
Option Agreement shall set forth the extent to which the Optionee shall have the
right to exercise the Option following termination of the Optionee's Service
with the Company and its Subsidiaries, and the right to exercise the Option of
any executors or administrators of the Optionee's estate or any person who has
acquired such Option(s) directly from the Optionee by bequest or inheritance.
Subject to Section 4(b), such provisions shall be determined in the sole
discretion of the Committee, need not be uniform among all Options issued
pursuant to the Plan, and may reflect distinctions based on the reasons for
termination of Service.
(h) Leaves of Absence. An Optionee's Service shall be deemed to
-----------------
continue while the Optionee is on military leave, sick leave or other bona fide
leave of absence (as determined by the Committee); provided, however, that the
Committee may determine, consistent with applicable law, that Service shall
continue during a leave of absence only if the Optionee returns to employment
with the Company or a Subsidiary at the expiration of the leave. The foregoing
notwithstanding, in the case of an ISO granted under the Plan, Service shall not
be deemed to continue beyond the first 90 days of such leave, unless the Option-
ee's reemployment rights are guaranteed by statute or by contract.
(i) No Rights as a Shareholder. An Optionee, or a transferee of an
--------------------------
Optionee, shall have no rights as a shareholder with respect to any Shares
covered by his or her Option until the date of the issuance of a stock
certificate for such Shares. No adjustments shall be made, except as provided
in Section 8.
(j) Modification, Extension and Renewal of Options. Within the
----------------------------------------------
limitations of the Plan, the Committee may modify, extend or renew outstanding
Options or may accept the cancellation of outstanding Options (to the extent not
previously exercised) in return for the grant of new Options at the same or a
different price. The foregoing notwithstanding, no modification, extension or
renewal of an
-9-
<PAGE>
Option shall, without the consent of the Optionee, impair his or her rights or
increase his or her obligations under such Option.
(k) Restrictions on Transfer of Shares. Any Shares issued upon
----------------------------------
exercise of an Option shall be subject to such special forfeiture conditions,
rights of repurchase, rights of first refusal and other transfer restrictions as
the Committee may determine. Such restrictions shall be set forth in the appli-
cable Stock Option Agreement and shall apply in addition to any general
restrictions that may apply to all holders of Shares.
SECTION 7. PAYMENT FOR SHARES.
- --------- ------------------
(a) General Rule. The entire Exercise Price for Shares issued under
------------
the Plan shall be payable in lawful money of the United States of America at the
time when such Shares are purchased, except as provided in Subsections (b), (c)
and (d) below.
(b) Surrender of Stock. To the extent that a Stock Option Agreement
------------------
so provides, payment may be made all or in part with Shares which have already
been owned by the Optionee or his or her representative for more than six months
and which are surrendered to the Company in good form for transfer. Such Shares
shall be valued at their Fair Market Value on the date when the new Shares are
purchased under the Plan.
(c) Cashless Exercise. To the extent that a Stock Option Agreement
-----------------
so provides, payment may be made all or in part by delivery (on a form
prescribed by the Committee) of an irrevocable direction to a securities broker
to sell Shares and to deliver all or part of the sale proceeds to the Company in
payment of the aggregate Exercise Price.
(d) Other Forms of Payment. To the extent that a Stock Option
----------------------
Agreement so provides, payment may be made in any other form that is consistent
with applicable laws, regulations and rules.
SECTION 8. ADJUSTMENT OF SHARES.
- --------- --------------------
(a) General. In the event of a subdivision of the outstanding Stock,
-------
a declaration of a dividend payable in Shares, a declaration of a dividend
payable in a form other than Shares in an amount that has a material effect on
the value of Shares, a combination or consolidation of the outstanding Stock (by
reclassification or otherwise) into a lesser number of Shares, a
recapitalization or a similar occurrence, the Committee shall make appropriate
adjustments
-10-
<PAGE>
in one or more of (i) the number of Shares available for future grants under
Section 5, (ii) the number of Shares covered by each outstanding Option or (iii)
the Exercise Price under each outstanding Option.
(b) Reorganizations. In the event that the Company is a party to a
---------------
merger or other reorganization, outstanding Options shall be subject to the
agreement of merger or reorganization. Such agreement may provide for the
assumption of outstanding Options by the surviving corporation or its parent or
for their continuation by the Company (if the Company is a surviving corpora-
tion); provided, however, that if assumption or continuation of the outstanding
Options is not provided by such agreement then the Committee shall have the
option of offering the payment of a cash settlement equal to the difference
between the amount to be paid for one Share under such agreement and the
Exercise Price, in all cases without the Optionees' consent.
(c) Reservation of Rights. Except as provided in this Section 8, an
---------------------
Optionee shall have no rights by reason of any subdivision or consolidation of
shares of stock of any class, the payment of any dividend or any other increase
or decrease in the number of shares of stock of any class. Any issue by the
Company of shares of stock of any class, or securities convertible into shares
of stock of any class, shall not affect, and no adjustment by reason thereof
shall be made with respect to, the number or Exercise Price of Shares subject to
an Option. The grant of an Option pursuant to the Plan shall not affect in any
way the right or power of the Company to make adjustments, reclassifications,
reorganizations or changes of its capital or business structure, to merge or
consolidate or to dissolve, liquidate, sell or transfer all or any part of its
business or assets.
SECTION 9. LEGAL AND REGULATORY REQUIREMENTS.
- --------- ---------------------------------
Shares shall not be issued under the Plan unless the issuance and
delivery of such Shares complies with (or is exempt from) all applicable re-
quirements of law, including (without limitation) the Securities Act of 1933, as
amended, the rules and regulations promulgated thereunder, state securities laws
and regulations and the regulations of any stock exchange on which the Company's
securities may then be listed, and the Company has obtained the approval or
favorable ruling from any governmental agency which the Company determines is
necessary or advisable.
SECTION 10. NO EMPLOYMENT RIGHTS.
- ---------- --------------------
No provision of the Plan, nor any Option granted under the Plan, shall be
construed to give any person any right to
-11-
<PAGE>
become, to be treated as, or to remain an Employee. The Company and its
Subsidiaries reserve the right to terminate any person's Service at any time and
for any reason.
SECTION 11. DURATION AND AMENDMENTS.
- ---------- -----------------------
(a) Term of the Plan. The Plan shall become effective on January 18,
----------------
1996, subject to the approval of the Company's shareholders. In the event that
the shareholders fail to approve this Plan within 12 months of its adoption by
the Board of Directors, any Option grants already made shall be null and void,
and no additional Option grants shall be made after such date. The Plan shall
terminate automatically 10 years after its adoption by the Board of Directors
and may be terminated on any earlier date pursuant to Subsection (b) below.
(b) Right to Amend or Terminate the Plan. The Board of Directors may
------------------------------------
amend the Plan at any time and from time to time except that the provisions of
Section 4(b) relating to the amount, price and timing of the Option grants to
Outside Directors shall not be amended more than once in any six-
month period after the Plan becomes effective, except as may be required by the
Code. Rights and obligations under any Option granted before amendment of the
Plan shall not be materially altered, or impaired adversely, by such amendment,
except with consent of the person to whom the Option was granted. An amendment
of the Plan shall be subject to the approval of the Company's shareholders only
to the extent required by applicable laws, regulations or rules.
(c) Effect of Amendment or Termination. No Shares shall be issued or
----------------------------------
sold under the Plan after the termination thereof, except upon exercise of an
Option granted prior to such termination. The termination of the Plan, or any
amendment thereof, shall not affect any Option previously granted under the
Plan.
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<PAGE>
Exhibit 5.1
Law Offices Of
PILLSBURY MADISON & SUTRO LLP
2700 Sand Hill Road
Los Angeles MENLO PARK, CALIFORNIA 94025-7020 Menlo Park
New York Telephone (415) 233-4500 Orange County
Sacramento Telecopier (415) 233-4545 San Diego
Washington, D.C. San Jose
Tokyo Hong Kong
- --------
Writer's Direct Dial Number
July 24, 1996
Western Micro Technology, Inc.
254 E. Hacienda Avenue
Campbell, CA 95008
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
With reference to the Registration Statement on Form S-8 to be filed by
Western Micro Technology, Inc., a California corporation (the "Company"), with
the Securities and Exchange Commission under the Securities Act of 1933, relat-
ing to 350,000 shares of the Company's common stock, without par value (the
"Common Stock"), issuable pursuant to the Company's 1994 Stock Option Plan (the
"Plan"), it is our opinion that the Common Stock, when issued and sold in accor-
dance with the Plan, will be legally issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion with the
Securities and Exchange Commission as Exhibit 5.1 to the Registration Statement.
Very truly yours,
/s/ Pillsbury Madison & Sutro LLP
5573
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement on
Form S-8 (File No. 333- ) of our reports dated February 2, 1996 on our
audits of the consolidated financial statements and financial statement
schedules of Western Micro Technology, Inc.
/s/ COOPERS & LYBRAND LLP
San Jose, CA
July 24, 1996
