<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 28, 1995
REGISTRATION NO. _________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
MERISEL, INC.
(Exact name of registrant as specified in its charter)
Delaware 95-4172359
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
200 Continental Boulevard
El Segundo, California 90245
(310) 615-3080
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
----------------
1991 EMPLOYEE STOCK OPTION PLAN
(Full title of the plan)
KELLY M. MARTIN, ESQ.
General Counsel
MERISEL, INC.
200 Continental Boulevard
El Segundo, California 90245
(310) 615-3080
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
----------------
COPIES TO:
Cynthia M. Dunnett, Esq.
Riordan & McKinzie
300 South Grand Avenue, Suite 2900
Los Angeles, California 90071
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=========================================================================================================
PROPOSED PROPOSED
TITLE OF EACH CLASS OF AMOUNT MAXIMUM MAXIMUM AMOUNT OF
SECURITIES TO BE TO BE OFFERING PRICE AGGREGATE REGISTRATION
REGISTERED REGISTERED PER SHARE/(1)/ OFFERING PRICE/(1)/ FEE
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.01 par value 1,500,000 shares $6.6875 $10,031,250 $3,459.05
=========================================================================================================
</TABLE>
/(1)/ Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457, based on the average of the high and low sales
prices for the Company's Common Stock as reported on the Nasdaq National
Market on September 22, 1995.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents which have been filed by Merisel, Inc. (the "Company")
with the Commission, as noted below, are incorporated by reference into this
Registration Statement:
(1) The Annual Report of the Company on Form 10-K for the fiscal year
ended December 31, 1994;
(2) All other reports filed by the Company pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), since December 31, 1994, the end of the Company's
most recently completed fiscal year for which an Annual Report on Form
10-K was filed; and
(3) The description of the Company's Common Stock contained in its
Registration Statement on Form 8-A under the Exchange Act filed on
August 30, 1988 and declared effective on October 19, 1988.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act, and prior to the filing of a post-effective amendment
to the Registration Statement that indicates that all securities offered hereby
have been sold or that deregisters all such securities remaining unsold, shall
be deemed to be incorporated by reference herein and to be a part hereof from
the date of filing such documents. Any statement contained herein or in any
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any other subsequently
filed document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed to constitute a part of this Registration
Statement, except as so modified or superseded.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company is a Delaware corporation. Article VII of the Company's
Certificate of Incorporation provides that the Company may indemnify its
officers and directors to the full extent permitted by law. Section 145 of the
General Corporation Law of the State of Delaware ("GCL") provides that a
Delaware corporation has the power to indemnify its officers and directors in
certain circumstances.
Subsection (a) of Section 145 of the GCL empowers a corporation to indemnify
any director or officer, or former director or officer, 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), against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred in connection with such action, suit or
proceeding provided that
II-1
<PAGE>
such director or officer acted in good faith in a manner reasonably believed to
be in or not opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, provided that such director or officer had
no cause to believe his conduct was unlawful.
Subsection (b) of the Section 145 empowers a corporation to indemnify any
director or officer, or former director or officer, 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 actually and reasonably incurred in connection with the
defense or settlement of such action or suit provided that such director or
officer acted in good faith and in a manner 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 director
or officer shall have been adjudged to be liable to the corporation unless and
only to the extent that the Court of Chancery or the court in which such action
was brought shall determine that despite the adjudication of liability such
director or officer is fairly and reasonably entitled to indemnity for such
expenses which the court shall deem proper.
Section 145 further provides that to the extent a director or officer of a
corporation has been successful in the defense of any action, suit or proceeding
referred to in subsections (a) and (b) or 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; and that the
corporation shall have power to purchase and maintain insurance on behalf of a
director or officer of the corporation against any liability asserted against
him or 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.
Article VI of the Company's Certificate of Incorporation currently provides
that each director shall not be personally liable to the Company 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
Company 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 GCL, or (iv) for any transaction from which the director
derived an improper benefit.
The Company has entered into indemnity agreements with each of its directors.
The indemnity agreements generally indemnify such persons against liabilities
arising out of their service in their capacities as directors, officers,
employees or agents of the Company. The Company may from time to time enter
into indemnity agreements with additional individuals who become officers and/or
directors of the Company.
ITEM 7. EXEMPTIONS FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 1991 Employee Stock Option Plan of the Company (as amended).
5.1 Opinion of Riordan & McKinzie as to the legality of the Common Stock
registered hereby.
23.1 Consent of Riordan & McKinzie - contained in the opinion filed as Exhibit
5.1.
23.2 Consent of Deloitte & Touche LLP.
24.1 Power of Attorney - contained on page S-1 hereof.
II-2
<PAGE>
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, as amended (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;
(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 (i) and (ii) above 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 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, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 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 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 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-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
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 El Segundo, State of California, on this 28th day of
September 1995.
Merisel, Inc.
By: /s/ James L. Brill
---------------------------------------
James L. Brill
Senior Vice President-Finance,
Chief Financial Officer and Secretary
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Michael D. Pickett and James L. Brill and each of them,
his true and lawful attorneys-in-fact and agents 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 to this Registration Statement, and
to file the same, with all 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 or necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said attorneys-in-
fact and agents or any of them, or their 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 Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- ----------------------------- ------------------------------------ ------------------
<S> <C> <C>
/s/ Michael D. Pickett Chairman of the Board of Directors, September 28, 1995
- ----------------------------- President and Chief Executive
Michael D. Pickett Officer
(Principal Executive Officer)
/s/ James L. Brill Senior Vice President-Finance, Chief September 28, 1995
- ----------------------------- Financial Officer, Secretary and
James L. Brill Director (Principal Financial
Officer)
/s/ Gary A. Schultz Corporate Controller September 28, 1995
- ----------------------------- (Principal Accounting Officer)
Gary A. Schultz
/s/ Dr. Arnold Miller Director September 28, 1995
- -----------------------------
Dr. Arnold Miller
</TABLE>
S-1
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
- ----------------------------- ------------------------------------ ------------------
<S> <C> <C>
/s/ Joseph Abrams Director September 28, 1995
- -----------------------------
Joseph Abrams
/s/ Lawrence J. Schoenberg Director September 28, 1995
- -----------------------------
Lawrence J. Schoenberg
/s/ Dwight Steffensen Director September 28, 1995
- -----------------------------
Dwight Steffensen
/s/ David L. House Director September 28, 1995
- -----------------------------
David L. House
</TABLE>
S-2
<PAGE>
EXHIBIT INDEX
-------------
<TABLE>
<CAPTION>
Exhibit No. Description of Document
- ----------- -----------------------
<C> <S>
4.1 1991 Employee Stock Option Plan of the Company (as amended).
5.1 Opinion of Riordan & McKinzie as to the legality of the
Common Stock registered hereby.
23.1 Consent of Riordan & McKinzie - contained in the opinion
filed as Exhibit 5.1.
23.2 Consent of Deloitte & Touche LLP.
24.1 Power of Attorney - contained on page S-1 hereof.
</TABLE>
<PAGE>
EXHIBIT 4.1
MERISEL, INC.
1991 EMPLOYEE STOCK OPTION PLAN
(As Amended through April 10, 1995)
Section 1. Description of Plan. This is the Employee Stock Option Plan
dated April 19, 1991 (the "Plan") of Merisel, Inc., a Delaware Corporation (the
"Company"). Under this Plan, employees and directors of the Company or of any
present and future subsidiaries of the Company to be selected as below set
forth, may be granted options ("Options") to purchase shares of the common
stock, without par value, of the Company ("Common Stock"). For purposes of this
Plan, the term "subsidiary" means any corporation 50% or more of the voting
stock of which is owned by the Company or by a subsidiary (as so defined) of the
Company. It is intended that the Options under this Plan will either qualify
for treatment as incentive stock options under Section 422 of the Internal
Revenue Code of 1986, as amended (the "Code"), and be designated "Incentive
Stock Options" or not quality for such treatment ("Non-qualified Stock Options")
and be designated Non-qualified Stock Options.
Section 2. Purpose of Plan. The purpose of this Plan and of granting
options to specified employees is to further the growth, development and
financial success of the Company and its subsidiaries by providing additional
incentives to certain directors, officers and employees holding responsible
positions by assisting them to acquire shares of Common Stock and to benefit
directly from the Company's growth, development and financial success.
Section 3. Eligibility. The persons who shall be eligible to receive
grants of Options under this Plan shall be the directors, officers and employees
of the Company or any of its subsidiaries, excluding those directors who serve
on the Option Committee (as defined in Section 4). A person who holds an Option
is herein referred to as an "Optionee". More than one Option may be granted to
any one Optionee.
The aggregate fair market value (determined as of the time an Option is
granted) of the Common Stock with respect to which Incentive Stock Options are
exercisable for the first time by any Optionee in any calendar year under this
Plan and any other incentive stock option plans (which quality under Section 422
of the Code) of the Company or any subsidiary shall not exceed $100,000.
Notwithstanding the foregoing, no Optionee may be granted Options to
purchase an aggregate number of shares of Common Stock amounting to 50% or more
of the total number of shares that may be issued pursuant to this Plan upon the
exercise of Options granted hereunder.
Section 4. Administration. The Plan shall be administered by a committee
(the "Option Committee") to be composed of at least two members of the Board of
Directors of the Company (the "Board") each of whom is both a "disinterested"
director (as such term is used in Rule 16b-3 ("Rule 16b-3") promulgated under
the Securities Exchange Act of 1934) and (after the first meeting of the
Company's stockholders at which directors are elected after January 1, 1996) an
"outside" director (as such term is defined or interpreted for purposes of
Section 162(m) of the Code). Members of the Option Committee shall be
appointed, both initially and as vacancies occur, by the Board, to serve at the
pleasure of the Board. The entire Board may serve as the Option Committee, if
by the terms of this Plan all Board members are otherwise eligible to serve on
the Option Committee. No person may serve as a member of the Option Committee
if such person is not "disinterested" as defined under Rule 16b-3 and (after the
first meeting of the Company's stockholders at which directors are elected after
January 1, 1996) an "outside"
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director under Section 162(m) of the Code. The Option Committee shall meet at
such times and places as it determines and may meet through a telephone
conference call. A majority of its members shall constitute a quorum, and the
decision of a majority of those present at any meeting at which a quorum is
present shall constitute the decision of the Option Committee. A memorandum
signed by all of its members shall constitute the decision of the Option
Committee without necessity, in such event, for holding an actual meeting. The
Option Committee is authorized and empowered to administer the Plan and, subject
to the Plan (i) to select the Optionees, to specify the number of shares of
Common Stock with respect to which Options are granted to each Optionee, to
specify the Option Price and the terms of the Options, and in general to grant
Options; (ii) to determine the dates upon which Options shall be granted and the
terms and conditions thereof in a manner consistent with this Plan, which terms
and conditions need not be identical as to the various Options granted; (iii) to
interpret the Plan; (iv) to prescribe, amend and rescind rules relating to the
Plan; (v) to accelerate the time during which an Option may be exercised,
notwithstanding the provisions in the option stating the time during which it
may be exercised; (vi) to accelerate the date by which any unexercised but
vested portion of an Option terminates, thereby requiring the Optionee to
exercise the vested unexercised portion of such Option or forfeit it, but in no
event shall such date be less than two (2) weeks later than the date the
Optionee is informed of such acceleration; and (vii) to determine the rights and
obligations of participants under the Plan. The interpretation and construction
by the Option Committee of any provision of the Plan or of any Option granted
under it shall be final. No member of the Option Committee shall be liable for
any action or determination made in good faith with respect to the Plan or any
Option granted under it.
Section 5. Shares Subject to the Plan. The aggregate number of shares of
Common Stock which may be purchased pursuant to the exercise of Options granted
under the Plan shall not exceed 2,000,000 shares. Upon the expiration or
termination for any reason of an outstanding Option which shall not have been
exercised in full, any shares of Common Stock then remaining unissued which
shall have been reserved for issuance upon such exercise shall again become
available for the granting of additional Options under the Plan.
Section 6. Option Price. Except as provided in Section 11, the purchase
price per share (the "Option Price") of the shares of Common Stock underlying
each Incentive Stock Option shall be not less than the fair market value of such
shares on the date of granting of the Incentive Stock Option; provided, however,
that if the Optionee is a ten percent (10%) stockholder of the Company as
detailed in Code Section 422A(b)(6) at the time such Option is granted, the
Option Price shall be not less than 110 percent (110%) of said fair market
value. The Option Price of the shares of Common Stock underlying each Non-
qualified Stock Option shall be not less than eighty-five percent (85%) of the
fair market value of such shares on the date of granting of the Non-qualified
Stock Option. Such fair market value shall be determined by the Option
Committee on the basis of reported closing sales on such date or, in the absence
of reported sales on such date, on the basis of the average of reported closing
bid and asked prices on such date. In the absence of either reported sales or
reported bid and asked prices, the Option Committee shall determine such market
value on the basis of the best available evidence.
Section 7. Exercise of Options. Subject to all other provisions of the
Plan, each Option shall be exercisable for the full number of shares of Common
Stock subject thereto, or any part thereof, in such installments and at such
intervals as the Option Committee may determine in granting such Option,
provided that no option may be exercisable subsequent to its termination date.
Each Option shall terminate and expire, and shall no longer be subject to
exercise, as the Option Committee may determine in granting such Option, but in
no event later than ten years after the date of grant thereof, unless the
Optionee is a ten percent (10%) stockholder of the Company as described in
Section 422(b)(6) of the Code at the time such Option is granted, in which case
the Option shall terminate and expire no later than five years from the date of
grant thereof. The Option shall be exercised by the Optionee by giving written
notice to the Company specifying the number of shares to be purchased and
accompanied by payment of the full purchase price therefor in cash, by check or
in such other form of lawful consideration as the Board may approve from time to
time, including, without limitation and in the sole discretion of the Board, the
2
<PAGE>
assignment and transfer by the Optionee to the Company of outstanding shares of
the Company's Common Stock theretofore held by Optionee.
Section 8. Issuance of Common Stock. The Company's obligation to issue
shares of its Common Stock upon exercise of an Option granted under the Plan is
expressly conditioned upon (a) the Company registering the issuance of such
shares to the Optionee and the resale to the public of such shares under the
Securities Act of 1933, as amended (the "Act"), on a Form S-8 or upon such other
qualification or exemption of such shares, and any shares issuable under any
other Company employee stock or related plan, under any state and/or federal law
or rulings or regulations thereunder, as the Company in its sole and absolute
discretion shall deem necessary and (b) the making of such investment or other
representations and undertakings by the Optionee (or his legal representative,
heir or legatee, as the case may be) in order to comply with the requirements of
any exemption from any such registration or other qualification of such shares
which the Company in its sole discretion shall deem necessary or advisable.
Such required representations and undertakings may include representations and
agreements that such Optionee (or his legal representative, heir or legatee):
(a) is purchasing such shares for investment and not with any present intention
of selling or otherwise disposing thereof; and (b) agrees to have a legend
placed upon the face and reverse of any certificates evidencing such shares (or,
if applicable, an appropriate data entry made in the ownership records of the
Company) setting forth (i) any representations and undertakings which such
Optionee has given to the Company or a reference thereof, (ii) that, prior to
effecting any sale or other disposition of any such shares, the Optionee must
furnish to the Company an opinion of counsel, satisfactory to the Company and
its counsel, to the effect that (A) such Company Stock is exempt from
registration under the Act and otherwise complies with federal and state
securities laws and (B) the issuance of such shares, when combined with the
issuance of Common Stock or other securities of the Company issuable under any
other Company employee stock option or related plan, will not result in a
violation of federal or state securities laws.
Section 9. Nontransferability. No Option shall be assignable or
transferable, except that an Option shall be transferable by will or by the laws
of descent and distribution. During the lifetime of the Optionee, each Option
shall be exercisable only by the Optionee.
Section 10. Recapitalization, Reorganization, Merger or Consolidation. If
the outstanding shares of Common Stock of the Company are increased, decreased
or exchanged for different securities through reorganization, merger,
consolidation, recapitalization, reclassification, stock split, stock dividend
or like capital adjustment, a proportionate adjustment shall be made (a) in the
aggregate number of shares of Common Stock which may be purchased pursuant to
the exercise of Options granted under the Plan, as provided in Section 5, and
(b) in the number, price, and kind of shares subject to any outstanding Option
granted under the Plan.
Upon the dissolution or liquidation of the Company or upon any
reorganization, merger or consolidation in which the Company does not survive,
the Plan and each outstanding Option shall terminate; provided that in such
event (a) each Optionee who is not tendered an option by the surviving
corporation in accordance with all of the terms of provision (b) immediately
below or who does not accept any such substituted option which is so tendered,
shall have the right until ten days before the effective date of such
dissolution, liquidation, reorganization, merger or consolidation in which the
Company is not the surviving corporation, to exercise, in whole or in part, any
unexpired Option or Options issued to him which said Optionee is then capable of
exercising pursuant to the installment provisions of said Option and of Section
7 of the Plan; provided, however, that should the Option Committee so elect in
its sole and absolute discretion said Optionee may be given the option of
exercising, in whole or in part, any unexpired Option, without regard to said
installment provisions or may elect that said Optionee may be given the right to
surrender such Option or Options to the Company for a price (which may be
payable, in the sole discretion of the Option Committee, in cash or in
securities of the Company or in a combination of both), equal to the difference
between the aggregate exercise price of the Option or Options without regard to
said installment provisions and the aggregate fair market value (as determined
in the manner provided in Section 6 above) of the
3
<PAGE>
shares subject to such Option or Options on the date one day before the
effective date of such dissolution, liquidation, reorganization, merger or
consolidation; or (b) in its sole and absolute discretion, the surviving
corporation may, but shall not be so obligated, tender to any Optionee an option
or options to purchase shares of the surviving corporation, and such new option
or options shall contain such terms and provisions as shall be required
substantially to preserve the rights and benefits of any Option then outstanding
under the Plan.
To the extent that the foregoing adjustments relate to stock or securities
of the Company, such adjustments shall be made by the Board, whose determination
in that respect shall be final, binding and conclusive. Except as herein before
expressly provided in this Section 10, (a) the Optionee shall have no rights by
reason of any subdivision or consolidation of shares of stock of any class or
the payment of any stock dividend or any other increase or decrease in the
number of shares of stock of any class, and (b) the number or price of shares of
Common Stock subject to any Option shall not be affected by, and no adjustment
shall be made by reason of, any dissolution, liquidation, reorganization, merger
or consolidation, or any issuance by the Company of shares of stock of any
class, or rights to purchase or subscribe for stock of any class, or securities
convertible into shares of stock of any class.
The grant of an Option under the Plan shall not affect in any way the right
or power of the Company to make adjustments, reclassifications or changes in its
capital or business structures or to merge, consolidate, dissolve, or liquidate
or to sell or transfer all or any part of its business or assets.
Section 11. Substitute Options. If the Company at any time should succeed
to the business of another corporation through a merger or consolidation, or
through the acquisition of stock or assets of such corporation, Options may be
granted under the Plan to those employees of such corporation or its
subsidiaries who, in connection with such succession, become employees of the
Company or its subsidiaries, in substitution for options to purchase stock of
such corporation held by them at the time of succession. The Option Committee
shall in its sole and absolute discretion determine the extent to which such
substitute Options shall be granted (if at all), the person to receive such
substitute Options (who need not be all optionees of such corporation), the
number of Options to be received by each such person, the Option Price of such
Option (which may be determined without regard to Section 6) and the terms and
conditions of such substitute options; provided, however, that the Option Price
of each such substituted Option shall be an amount such that, in the sole and
absolute judgment of the Option Committee and in compliance with Section 424(a)
of the Code, the economic benefit provided by such Option is not greater than
the economic benefit represented by the option in the acquired corporation as of
the date of the Company's acquisition of such corporation. Notwithstanding
anything to the contrary herein, no option shall be granted, nor any action
taken, permitted or omitted, which would cause the Plan, or any Options granted
hereunder as to which Rule 16b-3 may apply, not to comply with such Rule.
Section 12. Option Agreement. Each Option granted under the Plan shall be
evidenced by a written stock option agreement executed by the Company and
accepted by the Optionee, which (a) shall contain each of the provisions and
agreements herein specifically required to be contained therein, (b) shall
contain terms and conditions permitting each such Incentive Stock Option to
qualify for treatment as an incentive stock option under Section 422 of the
Code, (c) may contain the agreement of the Optionee to remain in the employ of,
and to render services to, the Company or any of its subsidiaries for a period
of one year from the date of the Option, but such agreement shall not impose
upon the Company or any of its subsidiaries any obligation to retain the
Optionee in their employ for any period whatever, and (d) may contain such other
terms and conditions as the Option Committee deems desirable and which are not
inconsistent with the Plan.
Section 13. Rights as a Stockholder. An Optionee or a transferee of an
Option shall have no rights as a stockholder with respect to any shares covered
by this Option until exercise thereof. No adjustment shall be made
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<PAGE>
for dividends (ordinary or extraordinary, whether in cash, securities or other
property) or distributions or other rights for which the record date is prior to
the exercise date, except as expressly provided in Section 10.
Section 14. Termination of Options. Each Option granted under the Plan
shall set forth a termination date thereof, which date shall be not later than
ten years from the date such Option is granted. In any event all Options shall
terminate and expire upon the first to occur of the following events:
(a) the expiration of three months from the date of an Optionee's
termination of employment (other than by reason of death), except that if an
Optionee is then disabled (within the meaning of Section 105(d)(4) of the Code),
the expiration of one year from the date of such Optionee's termination of
employment; or
(b) the expiration of one year from the date of the death of an
Optionee if his death occurs while he is, or not later than three months after
he has ceased to be, employed by the Company or any of its subsidiaries in a
capacity in which he would be eligible to receive grants of Options under the
Plan; or
(c) the termination of the Option pursuant to Sections 10 and 19 of
the Plan.
The termination of employment of an Optionee by death or otherwise shall
not accelerate or otherwise affect the number of shares with respect to which an
Option may be exercised and such Option may only be exercised with respect to
that number of shares which could have been purchased under the Option had the
Option been exercised by the Optionee on the date of such termination.
Section 15. Withholding of Taxes. The Company may deduct and withhold from
the wages, salary, bonus and other compensation paid by the Company to the
Optionee the requisite tax upon the amount of taxable income, if any, recognized
by the Optionee in connection with the exercise in whole or in part of any
Option or the sale of Common Stock issued to the Optionee upon exercise of the
Option, all as may be required from time to time under any federal or state tax
laws and regulations. This withholding of tax shall be made from the Company's
concurrent or next payment of wages, salary, bonus or other income to the
Optionee or by payment to the Company by the Optionee of required withholding
tax, as the Option Committee may determine.
Section 16. Effectiveness and Termination of Plan. The Plan shall be
effective on the date on which it is adopted by the Board of Directors;
provided, however, (a) the Plan shall be approved by the stockholders of the
Company within 12 months of such date of adoption by the Board of Directors, (b)
no Option shall be exercised pursuant to the Plan until the Plan has been
approved by the stockholders of the Company, and (c) no Option may be granted
hereunder on or after that date which is ten years from the effective date of
the Plan. The Plan shall terminate when all Options granted hereunder either
have been fully exercised, and all shares of Common Stock which may be purchased
pursuant to the exercise of such Options have been so purchased, or have
expired; provided, however, that the Board of Directors of the Company may in
its absolute discretion terminate the Plan at any time. No such termination,
other than as provided for in Section 10 hereof, shall in any way affect any
Option then outstanding.
Section 17. Amendment of Plan. The Board may (a) make such changes in the
terms and conditions of granted Options as it deems advisable, provided each
Optionee affected by such change consents thereto, and (b) make such amendments
to the Plan as it deems advisable. Such amendments and changes shall include,
but not be limited to, acceleration of the time at which an Option may be
exercised, but may not, without the written consent or approval of the holders
of a majority of that voting stock of the Company which is represented and is
entitled to vote at a duly held stockholder's meeting (a) increase the maximum
number of shares subject to Options, except pursuant to Section 10 of the Plan,
(b) decrease the Option Price requirement contained in Section 6 (except
5
<PAGE>
as contemplated by Section 11) of the Plan, (c) change the designation of the
class of employees eligible to receive Options, (d) modify the limits set forth
in Section 3 of the Plan regarding the value of Common Stock for which any
Optionee may be granted Incentive Stock Options, unless the provisions of
Section 422A(b)(7) of the Code are likewise modified or (e) in any manner
materially increase the benefits accruing to participants under the Plan.
Section 18. Repurchase of Stock. At the discretion of the Board, the
Option granted to an Optionee may provide that the Company or its nominee shall
have the right, in their sole and absolute discretion to do either or both of
the following:
(a) to purchase any and all shares of Common Stock purchased pursuant
to the exercise of Options granted under the Plan, whether or not such shares
are then held by an Optionee and whether or not accelerated pursuant to Section
4 hereof. Such right shall terminate upon the sale of such shares in a broker's
transaction in accordance with applicable federal and state securities laws,
subsequent to the date the Company has registered shares of Stock under the Act.
The price for repurchase of such shares of Common Stock shall be the fair market
value of such shares as determined in the sole and absolute discretion of the
Company.
(b) to purchase any and all shares of Common Stock purchased pursuant
to the exercise of Options granted under the Plan if the Optionee shall leave
the employ of the Company, either voluntarily or involuntarily. The price for
repurchase of such shares of Common Stock shall be the Option Price of the
Options which were exercised in order to receive such shares.
Section 19. Termination of Employment. Notwithstanding any other provision
of the Plan, the Company shall retain the right to terminate all unexercised
Options, whether vested or not, granted to an Optionee pursuant to the Plan if
the employment of such Optionee is terminated, except if such termination of
employment is by reason of death or permanent disability.
6
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RIORDAN & McKINZIE
300 South Grand Avenue, 29th Floor
Los Angeles, CA 90071
(213) 629-4824
September 28, 1995
Merisel, Inc.
200 Continental Boulevard
El Segundo, California 90245
Ladies and Gentlemen:
You have requested our opinion with respect to 1,500,000 shares of the
Common Stock, par value $0.01 per share (the "Shares"), of Merisel, Inc., a
Delaware corporation (the "Company"), which Shares are to be issued upon the
exercise of stock options (the "Options") to be granted pursuant to the terms of
the Company's 1991 Employee Stock Option Plan, as amended (the "Plan"). The
Shares are the subject of a Registration Statement on Form S-8 (the
"Registration Statement"), to which this opinion is attached as an exhibit, to
be filed with the Securities and Exchange Commission under the Securities Act of
1933, as amended.
We have examined the Company's Restated Certificate of Incorporation
(as amended to date), Bylaws and the Plan. We have also examined the records of
corporate proceedings taken in connection with the adoption of the Plan.
Based upon the foregoing examinations and subject to compliance with
the applicable state securities and "blue sky" laws, we are of the opinion that
the shares of Common Stock, when offered, sold and paid for pursuant to the
exercise of options granted under the Plan, will be duly authorized, validly
issued, fully paid and non-assessable.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ RIORDAN & McKINZIE
EXHIBIT 5.1
<PAGE>
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Merisel, Inc. on Form S-8 of our report dated February 27, 1995 appearing in the
Annual Report on Form 10-K of Merisel, Inc. for the year ended December 31,
1994.
/s/ DELOITTE & TOUCHE LLP
September 26, 1995
Los Angeles, California
EXHIBIT 23.2
