As filed with the Securities and Exchange Commission on January 21, 1998
Registration No. 333-
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 Identification No.)
Incorporation or Organization)
200 Continental Boulevard
El Segundo, California 90245
(Address of Principal Executive Offices) (Zip Code)
1997 Stock Award and Incentive Plan
(Full Title of the Plan)
Karen A. Tallman
Vice President, General Counsel and Secretary
Merisel, Inc.
200 Continental Boulevard
El Segundo, California 90245
(315) 615-3080
(Name, Address and Telephone Number, Including Area Code, of Agent For Service)
<TABLE>
CALCULATION OF REGISTRATION FEE
==================== ======================== ============================= ========================= ==========================
<CAPTION>
Title of Securities Amount to be Proposed Maximum Offering Proposed Maximum Amount of Registration
to be Registered Registered Price Per Share (1) Aggregate Offering Fee (1)
Price (1)
==================== ======================== ============================= ========================= ==========================
<S> <C> <C> <C> <C>
Common Stock,
par value 8,000,000 (2) $ 3.70 $ 29,625,000 $ 8,739
$.01 per
share
==================== ======================== ============================= ========================= ==========================
</TABLE>
(1)Estimated solely for purposes of calculating the registration fee pursuant to
Rule 457 (h) under the Securities Act of 1933, as amended (the "Securities
Act"), on the basis of the average of the high and low sale prices for a share
of common stock of Merisel, Inc. ("Common Stock") on the Nasdaq National Market
on January 15, 1998.
(2)Plus such additional shares of Common Stock that may be issuable pursuant to
the antidilution provisions of the 1997 Stock Award and Incentive Plan ("Plan").
<PAGE>
(i)
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I of Form
S-8 have been or will be sent or given to employees as specified by Rule
428(b)(1) under the Securities Act.
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, Merisel, Inc., a Delaware
corporation (the "Company"), pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), are incorporated herein by reference:
(1) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996;
(2) Amendment No. 1 to the Annual Report of the Company on Form 10-K/A
for the year ended December 31, 1996;
(3) The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1997, June 30, 1997 and September 30, 1997.
(4) Amendment No. 1 to the Quarterly Report of the Company on Form
10-Q/A for the quarterly period ended March 31, 1997;
(5) The Company's Current Reports on Form 8-K dated April 15, July 15,
July 16, 1997, August 4, 1997, August 26,1997, August 29,1997, September
11,1997, September 17, 1997, September 19, 1997, October 22, 1997 and
December 19, 1997; and
(6) The description of the Common Stock contained in the Company's
Registration Statement on Form 8-A filed with the Commission pursuant to Section
12 of the Exchange Act on August 30, 1988 and declared effective on October 19,
1988.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, 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 herein and to be a part hereof from the date of
filing of such documents. Any statement contained herein or in a document
incorporated or deemed to be incorporated 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 that is or is deemed to be incorporated by reference herein modifies or
supersedes such previous statement. Any such statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this registration statement.
Item 4. Description of Securities
Not Applicable.
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
Restated Certificate of Incorporation and the Company's Bylaws provides that the
Company may indemnify its officers and directors to the fullest extent
authorized by the Delaware Law. To the extent that an officer or director has
been successful on the merits in defense of any claim arising by reason of his
or her position as an officer or director, the Certificate of Incorporation
further provides that the officer or director shall be indeminified against
expenses (including attorneys' fees) actually and reasonably incurred in
connection therewith. Section 145 of the General Corporation Law of the State of
Delaware ("DGCL") provides that a Delaware corporation has the power to
indemnify its officers and directors under certain circumstances.
Subsection (a) of Section 145 of DGCL 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 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) or (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 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 DGCL, 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. Exemption From Registration Claimed.
Not Applicable
Item 8. Exhibits.
Exhibit No. Description
5.1 Opinion of Karen A. Tallman, Esq. regarding the legality
of the securities being registered.
23.1 Consent of Deloitte & Touche, independent accountant.
23.2 Consent of Karen A. Tallman (included in Exhibit 5.1)
24.1 Powers of Attorney (included on the signature page of this
registration statement).
Item 9. Required Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement; provided,
however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be inlcuded 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 and 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 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 Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act 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 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 of
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.
<PAGE>
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Dwight A. Steffensen and James E. Illson, jointly and severally, his true and
lawful attorney-in-fact and agent with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments (including post-effective 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 attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1933,
the registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Los Angeles, State of California, on this 19th
day of January, 1998.
MERISEL, INC
By /s/Dwight A. Steffensen
-----------------------
Dwight A. Steffensen
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
date indicated.
<TABLE>
<CAPTION>
Name Title Date
<S> <C> <C>
/s/Dwight Steffensen
- ------------------------- Chairman of the Board and Chief January 19, 1998
Dwight A. Steffensen Executive Officer
/s/James E. Illson
- ------------------------- Director, Senior Vice January 19, 1998
James E. Illson President-Finance and Chief
Financial Officer (Principal
Financial and Accounting Officer)
/s/Albert J. Fitzgibbons III
- ----------------------------- Director January 19, 1998
Albert J. Fitzgibbons III
/s/Bradley J. Hoecker
- ----------------------------- Director January 19, 1998
Bradley J. Hoecker
/s/Robert J. McInerney
- ----------------------------- Director, President and Chief January 19, 1998
Robert J. McInerney Operating Officer
/s/Stephen M. McLean
- ----------------------------- Director January 19, 1998
Stephen M. McLean
/s/Dr. Arnold Miller
- ----------------------------- Director January 19, 1998
Dr. Arnold Miller
/s/Thomas P. Mullaney
- ---------------------------- Director January 19, 1998
Thomas P. Mullaney
/s/Lawrence J. Schoenberg
- --------------------------- Director January 19, 1998
Lawrence J. Schoenberg
</TABLE>
Exhibit 23.1 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
(relating to the 1997 Stock Award and Incentive Plan) of Merisel, Inc. on Form
S-8 of our report dated April 14, 1997, appearing in the Annual Report on Form
10-K of Merisel, Inc. for the year ended December 31, 1996.
/s/Deloitte & Touche LLP
- ---------------------------
Deloitte & Touche LLP
Los Angeles, California
January 20, 1998
EXHIBIT 5.1
January 16, 1998
Merisel, Inc.
200 Continental Blvd.
El Segundo, CA 90245
Ladies and Gentlemen:
With reference to the Registration Statement on Form S-8 (the
"Registration Statement") to be filed by Merisel, Inc., a Delaware corporation
(the "Company"), with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, relating to 8,000,000 shares of Common
Stock, par value $.01 per share, of the Company (the "Common Stock") issuable
pursuant to the Merisel, Inc. 1997 Stock Award and Incentive Plan (the "Plan"),
it is my opinion that such shares of Common Stock, when issued in accordance
with the Plan, will be legally issued, fully paid and nonassessable.
I 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/ Karen A. Tallman
---------------------
Karen A. Tallman
