As filed with the Securities and Exchange Commission on July 7, 1998
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
-----------------------
COMPUCOM SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
Delaware 38-2363156
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
7171 Forest Lane
Dallas, Texas 75230
(Address of principal executive offices) (Zip Code)
-----------------------
CompuCom Systems, Inc. Employee Stock Purchase Plan
(Full title of the plan)
-----------------------
M. Lazane Smith
Senior Vice President, Finance and Chief Financial Officer
CompuCom Systems, Inc.
7171 Forest Lane
Dallas, Texas 75230
(Name and address of agent for service)
(972) 856-3600
(Telephone number, including area code, of agent for service)
-----------------------
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
CALCULATION OF REGISTRATION FEE
========================================================================================================================
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered (1) (2) per share (3)(4) price (3)(4) fee (4)
- ------------------------------------------------------------------------------------------------------------------------
Common Stock, $0.01 1,000,000 Shares $ 5.3657 $ 5,365,700 $ 1,583
par value per share
========================================================================================================================
<FN>
(1) The securities to be registered include an aggregate of 1,000,000
shares reserved for issuance under the CompuCom Systems, Inc. Employee
Stock Purchase Plan (the "Plan").
(2) Pursuant to Rule 416, this registration statement also covers such
additional shares as may hereinafter be offered or issued to prevent
dilution resulting from stock splits, stock dividends,
recapitalizations or certain other capital adjustments.
(3) Estimated solely for purpose of calculating the registration fee.
(4) Calculated pursuant to Rule 457(c) and 457(h). Accordingly, the price
per share of common stock offered hereunder pursuant to the Plan is
calculated to be $5.3657, which is 85% of the average of the highest
and lowest price per share of common stock on the Nasdaq National
Market on June 30, 1998.
</FN>
</TABLE>
<PAGE>
PART I
Information specified in Part I of Form S-8 (Items 1 and 2) will be
sent or given to Plan participants as specified by Rule 428(b)(1) under the
Securities Act of 1933.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
CompuCom Systems, Inc. (the "Company") hereby incorporates by reference
in this registration statement the following documents previously filed by the
Company with the Securities and Exchange Commission (the "Commission"):
(1) The Company's Annual Report on Form 10-K filed with the Commission
for the fiscal year ended December 31, 1997.
(2) The Company's Quarterly Report on Form 10-Q filed with the
Commission for the quarter ended March 31, 1998.
(3) The description of the common stock of the Company contained in the
Company's Registration Statement on Form 8-B filed with the Commission on June
21, 1989, including any amendment or report filed for the purpose of updating
such description.
All documents filed by the registrant with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), subsequent to the date of this Registration
Statement shall be deemed to be incorporated herein by reference and to be a
part hereof from the date of the filing of such documents until such time as
there shall have been filed a post-effective amendment that indicates that all
securities offered hereby have been sold or that deregisters all securities
remaining unsold at the time of such amendment.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
(a) Section 145(a) of the Delaware General Corporation Law (the "GCL")
empowers a corporation to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that he or she is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation or enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him or her in connection with
such action, suit or proceeding if such person acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct was unlawful.
Section 145(b) of the GCL empowers a corporation to indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person acted in any of the capacities set forth above, against such expenses
actually and reasonably incurred by him or her in connection with the defense or
settlement of such action or suit if he or she acted under similar standards,
except that no indemnification may be made in respect of any claim, issue or
matter as to which such person 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 or suit was brought shall determine upon application
II-1
<PAGE>
application that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnification for such expenses which the court shall deem proper.
Section 145(c) of the GCL further provides that, to the extent
a director, officer, employee or agent of a corporation has been successful on
the merits or otherwise in the defense of any action, suit or proceeding
referred to above or in the defense of any claim, issue or matter therein, he or
she shall be indemnified against expenses (including attorneys' fees) actually
and reasonably incurred by him or her in connection therewith.
Section 145(f) of the GCL provides that the statutory
provisions on indemnification are not exclusive of indemnification provided
pursuant to, among other things, the certificate of incorporation, bylaws or
indemnification agreements. The Certificate of Incorporation and Bylaws of the
Company each contain provisions regarding the indemnification of directors and
officers of the Company. Subject to certain limitations expressed therein,
Article IX of the Company's Certificate of Incorporation provides for the
indemnification of the Company's officers and directors to the fullest extent
permitted by the GCL. In addition, the bylaws of the Company provide expanded
rights to indemnification beyond the indemnification expressly authorized by the
GCL in the following respects:
1. indemnification will be available without regard to the tests
applicable to the indemnified person's conduct, unless
indemnification against the particular liability is expressly
prohibited by applicable law;
2. indemnification is expressly authorized against penalties and
punitive damages, as well as against judgments and amounts
paid in settlement of derivative suits; and
3. under certain circumstances, expenses incurred by a director
in defending a third party or corporate proceeding are
required to be paid by the corporation on behalf of such
director.
(b) The Company has a directors' and officers' liability insurance
policy that affords directors and officers with insurance coverage for losses
arising from claims based on breaches of duty, negligence, error and other
wrongful acts.
Item 7. Exemption from Registration Claimed.
None.
Item 8. Exhibits.
(a) Exhibits.
The following documents are filed as a part of this
registration statement.
Exhibit Description of Exhibit
4.1 CompuCom Systems, Inc. Employee Stock Purchase Plan
5.1 Opinion of Jenkens & Gilchrist, a Professional Corporation
23.1 Consent of Jenkens & Gilchrist, a Professional Corporation
(included in opinion filed as Exhibit 5.1 hereto)
23.2 Consent of KPMG Peat Marwick LLP
24 Power of Attorney (included with signature page of this
Registration Statement)
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
II-2
<PAGE>
(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 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 1934 Act that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
1934 Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the 1934 Act) that is incorporated by
reference in the Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the 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 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.
II-3
<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
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 Dallas, State of Texas, on July 7, 1998:
COMPUCOM SYSTEMS, INC.
By: /s/ M. Lazane Smith
--------------------------------------------
M. Lazane Smith
Senior Vice President, Finance and Chief
Financial Officer (Chief Accounting Officer)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below hereby constitutes and appoints M. Lazane Smith, Edward R.
Anderson and Daniel F. Brown, and each of them, each with full power to act
without the other, 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 or all amendments to this
Registration Statement, and to file the same with all exhibits thereto and other
documents in connection therewith, with the Commission, granting unto each of
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as he might or could do in
person hereby ratifying and confirming that each of said attorneys-in-fact and
agents or his 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 included:
<TABLE>
<CAPTION>
<S> <C> <C>
Signature Capacity Date
- --------- -------- ----
/s/ Edward R. Anderson President, Chief Executive July 7, 1998
- --------------------------- Officer (Principal Executive
Edward R. Anderson Officer) and Director
/s/ M. Lazane Smith Senior Vice President, Finance July 7, 1998
- --------------------------- and Chief Financial Officer
M. Lazane Smith (Principal Accounting Officer)
/s/ Daniel F. Brown Executive Vice President Sales July 7, 1998
- --------------------------- and Director
Daniel F. Brown
/s/ Donald R. Caldwell Director July 7, 1998
- ---------------------------
Donald R. Caldwell
/s/ Michael J. Emmi Director July 7, 1998
- ---------------------------
Michael J. Emmi
/s/ Richard F. Ford Director July 7, 1998
- ---------------------------
Richard F. Ford
/s/ Delbert W. Johnson Director July 7, 1998
- ---------------------------
Delbert W. Johnson
II-4
<PAGE>
/s/ John D. Loewenberg Director July 7, 1998
- ---------------------------
John D. Loewenberg
/s/ John C. Maxwell, III Director July 7, 1998
- ---------------------------
John C. Maxwell, III
/s/ Warren V. Musser Director July 7, 1998
- ---------------------------
Warren V. Musser
/s/ Edward N. Patrone Director July 7, 1998
- ---------------------------
Edward N. Patrone
</TABLE>
II-5
<PAGE>
INDEX TO EXHIBITS
Exhibit Description of Exhibit
- ------- ----------------------
4.1 CompuCom Systems, Inc. Employee Stock Purchase Plan
5.1 Opinion of Jenkens & Gilchrist, a Professional Corporation
23.1 Consent of Jenkens & Gilchrist, a Professional Corporation
(included in opinion filed as Exhibit 5.1 hereto)
23.2 Consent of KPMG Peat Marwick LLP
24 Power of Attorney (included with signature page of this
Registration Statement)
II-6
EXHIBIT 4.1
COMPUCOM SYSTEMS, INC.
----------------------
EMPLOYEE STOCK PURCHASE PLAN
----------------------------
The following constitute the provisions of the Employee Stock Purchase Plan
of CompuCom Systems, Inc.
1. Purpose. The purpose of the Plan is to provide Employees of the Company
and its Subsidiaries with an opportunity to purchase Common Stock of the Company
through accumulated payroll deductions. It is the intention of the Company to
have the Plan qualify as an "Employee Stock Purchase Plan" under Section 423 of
the Code (as defined below). The provisions of the Plan shall be construed
accordingly, so as to extend and limit participation in a manner consistent with
the requirements of that Section of the Code.
2. Definitions.
(a) "Act" shall mean the Securities Exchange Act of 1934, as amended.
(b) "Board" shall mean the Board of Directors of the Company.
(c) "Code" shall mean the Internal Revenue Code of 1986, as amended.
(d) "Common Stock" shall mean the common stock, $.01 par value per
share, of the Company.
(e) "Committee" shall mean the committee appointed pursuant to
Paragraph 11.
(f) "Company" shall mean CompuCom Systems, Inc., a Delaware
corporation, or any successor which adopts this Plan.
(g) "Compensation" shall mean total compensation, i.e., including base
pay or regular straight-time earnings, bonuses, commissions, and overtime,
but excluding any imputed benefits, expense reimbursements, or other
similar items. Compensation in excess of $75,000 per Offering Period will
be disregarded.
(h) "Continuous Status as an Employee" shall mean the absence of any
interruption or termination of service as an Employee. Continuous Status as
an Employee shall not be considered interrupted in the case of a leave of
absence that meets the requirements of Paragraph 9(b).
(i) "Designated Subsidiary" shall mean any Subsidiary that has adopted
the Plan in accordance with Paragraph 29.
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<PAGE>
(j) "Eligible Employee" shall have the meaning defined in Paragraph
3(a).
(k) "Employee" shall mean any person, including an officer, who is
customarily employed for at least 20 hours per week and for more than five
months in the calendar year by an Employer and whose wages are subject to
withholding for purposes of federal income taxes.
(l) "Employer" shall mean the Company and each of its Designated
Subsidiaries.
(m) "Enrollment Date" shall mean the first day of each Offering
Period.
(n) "Exercise Date" shall mean the last day of each Offering Period.
(o) "Exercise Price" shall have the meaning as defined in Paragraph
6(b).
(p) "Offering Period" shall mean that period to be determined by the
Committee beginning on the date Eligible Employees are offered the
opportunity to purchase Shares hereunder. The first Offering Period shall
begin on July 1, 1998 and shall end on December 31, 1998. Until changed by
the Committee in its sole and absolute discretion, a new Offering Period
shall begin on the first day of each six calendar month period beginning on
each January 1 and July 1 of a calendar year, starting with January 1,
1999, and shall end on the end of such six month period.
(q) "Participant" shall mean an Eligible Employee who has elected to
participate herein by authorizing payroll deductions pursuant to Paragraph
4.
(r) "Payroll Deduction Account" shall mean the separate account
maintained hereunder to record the amount of a Participant's Compensation
that has been withheld pursuant to Paragraph 5.
(s) "Plan" shall mean the CompuCom Systems, Inc. Employee Stock
Purchase Plan.
(t) "Share" shall mean a share of Common Stock.
(u) "Subscription Agreement" shall have the meaning as defined in
Paragraph 4(a).
(v) "Subsidiary" shall mean a corporation, domestic or foreign, of
which at the time of the granting of the option pursuant to Paragraph 6,
not less than 50% of the total combined voting power of all classes of
stock are held by the Company or a Subsidiary, whether or not such
corporation now exists or is hereafter organized or acquired by the Company
or a Subsidiary.
-2-
<PAGE>
3. Eligibility.
(a) General Rule. Any Employee on an Enrollment Date shall be
eligible to participate as an "Eligible Employee" during the Offering
Period beginning on such Enrollment Date, subject to the requirements
of Paragraph 4(a) and the limitations imposed by Section 423(b) of the
Code.
(b) Exceptions. Any provisions of the Plan to the contrary
notwithstanding, no Employee shall be an Eligible Employee if:
(i) Immediately after the grant, such Employee (or any
other person whose stock would be attributed to such Employee
pursuant to Section 424(d) of the Code) would own stock
(including for purposes of this Paragraph 3(b) any stock he or
she holds outstanding options to purchase) possessing 5% or
more of the total combined voting power or value of all
classes of stock of the Company or of any Subsidiary computed
in accordance with Section 423(b)(3) of the Code; or
(ii) Such option would permit such Employee's right to
purchase stock under all employee stock purchase plans
(described in Section 423 of the Code) of the Company and its
Subsidiaries to accrue at a rate which exceeds $25,000 of the
fair market value of such stock (determined at the time such
option is granted) for each calendar year in which such option
is outstanding at any time, in accordance with the provisions
of Section 423(b)(8) of the Code.
4. Participation.
(a) An Eligible Employee may become a Participant in the Plan
by completing a Subscription Agreement authorizing payroll deductions,
in a form substantially similar to Exhibit A attached to this Plan
("Subscription Agreement"), and filing it with the Company's Human
Resources Department prior to the applicable Enrollment Date, unless a
later time for filing the Subscription Agreement is set by the
Committee for all Eligible Employees with respect to a given Offering
Period.
(b) Payroll deductions for a Participant shall commence with
the first payroll following the Enrollment Date and shall end on the
last payroll in the Offering Period to which such authorization is
applicable, unless sooner terminated by the Participant as provided in
Paragraph 9.
(c) An Eligible Employee may waive his right to participate
for any Offering Period by declining to authorize a payroll deduction.
Such declination shall result in the Employee's waiver of participation
for only the Offering Period to which it relates and shall be
irrevocable with respect to such Offering Period. Except as otherwise
provided in this Paragraph, an Employee's waiver of participation for a
specified Offering Period shall not, in and of itself, adversely impact
the right of such Employee to participate in the Plan during any
subsequent Offering Periods.
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<PAGE>
5. Payroll Deductions.
(a) At the time a Participant files his or her Subscription
Agreement, such Participant shall elect to have payroll deductions (in
whole percentage increments) made on each pay date during the Offering
Period in an amount of not less than 1% nor more than 10% of the
Compensation which he or she receives on each pay date during the
Offering Period.
(b) All payroll deductions made by a Participant shall be
credited to his or her Payroll Deduction Account under the Plan. No
interest shall accrue on the payroll deductions in a Participant's
Payroll Deduction Account in the Plan.
(c) No changes in the rate of payroll deductions other than a
withdrawal pursuant to Paragraph 9 are permitted.
6. Grant of Option.
(a) On the Enrollment Date of each Offering Period during the
term of the Plan each Participant in such Offering Period shall be
granted an option to purchase up to a number of whole Shares determined
by dividing ten percent (10%) of the Participant's Compensation by the
Exercise Price; provided, however, that the number of shares subject to
such option shall be reduced, if necessary, to a number of shares which
would not exceed the limitations described in Paragraph 3(b) or
Paragraph 10(a) hereof. The fair market value of a Share shall be
determined as provided in Paragraph 6(b).
(b) The "Exercise Price" per Share offered in a given Offering
Period shall be determined by the Committee, but shall not be less than
the lower of: (i) 85% of the fair market value of a Share on the
Enrollment Date, or (ii) 85% of the fair market value of a Share on the
Exercise Date. The fair market value of a Share on a given date shall
be the closing price of such Share as reported by the National
Association of Securities Dealers, Incorporated Automated Quotations,
Incorporated ("Nasdaq") National Market System or reported on such
other national exchange as it may, from time to time, be reported on,
on such date (or if there shall be no trading on such date, then on the
first previous date on which there is such trading), unless the Shares
cease to be traded on a national exchange. If the Shares cease to be
traded on a national exchange, fair market value shall be determined by
the Committee in its discretion consistent with Section 423 of the Code
or the regulations thereunder.
(c) All grants made hereunder shall be deemed to have been
made on the applicable Enrollment Date.
7. Exercise of Option. The Participant's option for the purchase of
Shares will be exercised automatically on the Exercise Date of each Offering
Period, and the maximum number of shares subject to such option will be
purchased for such Participant at the applicable Exercise Price with the payroll
deductions accumulated in his or her Payroll Deduction Account, unless prior to
such Exercise Date the Participant has withdrawn from the Offering Period as
provided in Paragraph 9. During a Participant's lifetime a Participant's option
to purchase shares hereunder is exercisable only by such Participant.
-4-
<PAGE>
8. Delivery. As soon as practicable after the Exercise Date, the
Committee shall arrange the delivery to each Participant, or to his account at a
brokerage firm, of a certificate representing the shares purchased upon exercise
of his or her option.
9. Withdrawal; Termination of Employment.
(a) A Participant may withdraw all, but not less than all, of
the payroll deductions credited to his or her Payroll Deduction Account
and not yet used toward the exercise of his or her option under the
Plan at any time by giving written notice to the Committee on a form
substantially similar to Exhibit B attached to this Plan. All of the
Participant's payroll deductions credited to his or her Payroll
Deduction Account that have not yet been used to purchase Shares will
be paid to such Participant as soon as practicable after receipt of his
or her notice of withdrawal. A withdrawal of a Participant's Payroll
Deduction Account shall terminate the Participant's participation for
the Offering Period in which the withdrawal occurs. No further payroll
deductions for the purchase of shares will be made during the Offering
Period.
(b) Upon termination of the Participant's Continuous Status as
an Employee of the Company for any reason, he or she will be deemed to
have elected to withdraw from the Plan and the payroll deductions
credited to his or her Payroll Deduction Account will be returned to
such Participant and his or her option will be canceled; provided,
however, a Participant who goes on a leave of absence shall be
permitted to remain in the Plan with respect to an Offering Period
which commenced prior to the beginning of such leave of absence. If
such Participant is not guaranteed reemployment by contract or statute
and the leave of absence exceeds 90 days, such Participant shall be
deemed to have terminated employment on the 91st day of such leave of
absence. Payroll deductions for a Participant who has been on a leave
of absence will resume upon return to work at the same rate as in
effect prior to such leave unless the leave of absence begins in one
Offering period and ends in a subsequent Offering Period, in which case
the Participant shall not be permitted to re-enter the Plan until a new
Subscription Agreement is filed with respect to an Offering Period
which commences after such Participant has returned to work from the
leave of absence.
(c) A Participant's withdrawal from one Offering Period will
not have any effect upon his or her eligibility to participate in a
different Offering Period or in any similar plan which may hereafter be
adopted by the Company.
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<PAGE>
10. Shares.
(a) The maximum number of Shares which shall be made available
for sale under the Plan shall be 1,000,000 Shares, subject to
adjustment upon changes in capitalization of the Company as provided in
Paragraph 16. Either authorized and unissued Shares or issued Shares
heretofore or hereafter reacquired by the Employer may be made subject
to purchase under the Plan, in the sole and absolute discretion of the
Committee. Further, if for any reason any purchase of any Shares under
the Plan is not consummated, Shares subject to such purchase agreement
may be subjected to a new Subscription Agreement under the Plan. If, on
the Exercise Date, the number of Shares with respect to which options
are to be exercised exceeds the number of Shares then available under
the Plan, the Company shall make a pro rata allocation of the shares
remaining available for purchase in as uniform a manner as shall be
practicable and as it shall determine to be equitable. In such event,
the Company shall give written notice of such reduction of the Shares
which each Employee shall be allowed to purchase. Notwithstanding
anything to the contrary herein, the Company shall not be obligated to
issue Shares hereunder if, in the opinion of counsel for the Company,
such issuance would constitute a violation of Federal or state
securities laws.
(b) The Participant will have no interest or voting right in
Shares covered by his or her option until such option has been
exercised and the Shares have been issued or transferred to the
Participant.
(c) Shares to be delivered to a Participant under the Plan
will be registered in the name of the Participant or, at the prior
written request of the Participant, in the names of the Participant and
his or her spouse.
11. Administration. The Plan shall be administered by a Committee
appointed by the Board. Such Committee shall have all powers with respect to the
Plan, except for amending or terminating the Plan as set forth in Paragraph 17
hereof.
(a) Each member of the Committee shall serve until his
successor is appointed. Any member of the Committee may be removed at
any time by the Board, with or without cause, which shall have the
power to fill any vacancy which may occur. A Committee member may
resign by giving 30 days written notice to the Company.
(b) The members of the Committee shall serve without
compensation for services as such, but the Company shall pay all
expenses of the Committee.
(c) The Committee shall have the following powers and duties:
(1) To direct the administration of the Plan in accordance
with the provisions herein set forth;
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<PAGE>
(2) To adopt rules of procedure and regulations
necessary for the administration of the Plan provided the
rules are not inconsistent with the terms of the Plan;
(3) To determine all questions with regard to rights
of Employees and Participants under the Plan, including, but
not limited to, the eligibility of an Employee to participate
in the Plan;
(4) To enforce the terms of the Plan and the rules
and regulations it adopts;
(5) To direct the distribution of the Shares
purchased hereunder;
(6) To furnish the Employer with information which
the Employer may require for tax or other purposes;
(7) To engage the service of counsel (who may, if
appropriate, be counsel for an Employer) and agents whom it
may deem advisable to assist it with the performance of its
duties;
(8) To prescribe procedures to be followed by
Participants in electing to participate herein;
(9) To receive from each Employer and from Employees
such information as shall be necessary for the proper
administration of the Plan;
(10) To maintain, or cause to be maintained, separate
accounts in the name of each Participant to reflect the
Participant's Payroll Deduction Account under the Plan; and
(11) To interpret and construe the Plan.
12. Designation of Beneficiary.
(a) A Participant may file a written designation of a
beneficiary (as indicated in the Subscription Agreement or otherwise)
who is to receive any Shares under the Plan in the event of such
Participant's death subsequent to the Exercise Date on which an option
is exercised but prior to the issuance of such shares. In addition, a
Participant may file a written designation of a beneficiary who is to
receive any cash from the Participant's Payroll Deduction Account under
the Plan in the event of such Participant's death prior to the Exercise
Date of the option.
(b) Such designation of beneficiary may be changed by the
Participant at any time by written notice. In the event of the death of
a Participant and in the absence of a beneficiary validly designated
under the Plan, the Committee shall deliver such shares and/or cash to
the executor or administrator of the estate of the Participant, or if
no such executor or administrator has been appointed (to the knowledge
-7-
<PAGE>
of the Company or Committee), the Committee, in its discretion, may
deliver such shares and/or cash to the spouse or to any one or more
dependents or relatives of the Participant, or if no spouse, dependent
or relative is known to the Committee, then to such other person as
the Committee may designate.
13. Transferability. Neither payroll deductions credited to
Participant's Payroll Deduction Account nor any rights with regard to the
exercise of an option to receive Shares under the Plan may be assigned,
transferred, pledged or otherwise disposed of in any way (other than by will,
the laws of descent and distribution or as provided in Paragraph 12 hereof) by
the Participant. Any such attempt at assignment, transfer, pledge or other
disposition shall be without effect, except that the Committee may treat such
act as an election to withdraw funds in accordance with Paragraph 9.
14. Use of Funds. All payroll deductions received or held by the
Company under the Plan may be used by the Company for any corporate purpose, and
the Company shall not be obligated to segregate such payroll deductions.
15. Reports. Individual Payroll Deduction Accounts will be maintained
for each Participant in the Plan. Statements of Payroll Deduction Account will
be given to Participants as soon as practicable following an Exercise Date, such
statements will set forth the amounts of payroll deductions, the per share
purchase price, the number of shares purchased and the remaining cash balance,
if any.
16. Adjustments Upon Changes in Capitalization. If an option under this
Plan is exercised subsequent to any stock split, spinoff, recapitalization,
reorganization, reclassification, merger, consolidation, exchange of shares, or
the like occurring after such option was granted, as a result of which shares of
any class of stock shall be issued in respect of the outstanding shares, or
shares shall be changed into a different number of the same or another class or
classes, the number of Shares to which such option shall be applicable and the
option price for such Shares shall be appropriately adjusted by the Company. Any
such adjustment, however, in the Shares shall be made without change in the
total price applicable to the portion of the Shares purchased hereunder which
has not been fully paid for, but with a corresponding adjustment, if
appropriate, in the price for the Shares.
In the event of the proposed dissolution or liquidation of the Company
or upon a proposed reorganization, merger, or consolidation of the Company with
one or more corporations as a result of which the Company is not the surviving
corporation, or upon a proposed sale of substantially all of the property or
stock of the Company to another corporation, the Offering Period will terminate
immediately prior to the consummation of such proposed action, unless otherwise
provided by the Board, and the holder of each option then outstanding under the
Plan will thereafter be entitled to receive, upon the exercise of such option,
as nearly as reasonably may be determined, the cash, securities, and/or property
which a holder of one Share was entitled to receive upon and at the time of such
transaction for each Share to which such option shall be exercised. The Board
shall take such steps in connection with such transactions as the Board shall
deem necessary to assure that the provisions of this Paragraph shall thereafter
be applicable, as nearly as reasonably may be determined, in relation to the
said cash, securities, and/or property as to which such holder of such option
might thereafter be entitled to receive.
-8-
<PAGE>
17. Amendment or Termination. The Board may at any time and for any
reason terminate or amend the Plan. Except as specifically provided in the Plan,
no such termination can affect options previously granted, provided that an
Offering Period may be terminated by the Board on any Exercise Date if the Board
determines that the termination of the Plan is in the best interest of the
Company and its stockholders. Except as specifically provided in the Plan or as
required to obtain a favorable ruling from the Internal Revenue Service or to
comply with tax or securities law, no amendment may make any change in any
option theretofore granted which adversely affects the rights of any
Participant. To the extent necessary to comply with Rule 16b-3 under the Act or
Section 423 of the Code (or any successor rule or provision or any other
applicable law or regulation), the Company shall obtain stockholder approval in
such manner and to such a degree as required.
18. Notices. All notices or other communications by a Participant to
the Company or Committee under or in connection with the Plan shall be deemed to
have been duly given when received in the form specified by the Committee at the
location, or by the person, designated by the Committee for the receipt thereof.
19. Stockholder Approval. Commencement of the Plan shall be subject to
approval by the stockholders of the Company within 12 months before or after the
date the Plan is adopted. Notwithstanding any provision to the contrary, failure
to obtain such stockholder approval shall void the Plan, any options granted
under the Plan, any Share purchases pursuant to the Plan, and all rights of all
Participants.
20. Conditions Upon Issuance of Shares. Shares shall not be issued with
respect to an option unless the exercise of such option and the issuance and
delivery of such Shares pursuant thereto shall comply with all applicable
provisions of law, domestic or foreign, including, without limitation, the
Securities Act of 1933, as amended, the Act, the rules and regulations
promulgated thereunder, and the requirements of any stock exchange upon which
the Shares may then be listed, and shall be further subject to the approval of
counsel for the Company with respect to such compliance.
As a condition to the exercise of an option, the Company may
require the person exercising such option to represent and warrant at
the time of any such exercise that the Shares are being purchased only
for investment and without any present intention to sell or distribute,
such shares if, in the opinion of counsel for the Company, such a
representation is required by any of the aforementioned applicable
provisions of law.
21. Term of Plan. The Plan shall become effective upon the earlier to
occur of its adoption by the Board or its approval by the stockholders of the
Company as described in Paragraph 19. It shall continue in effect for a term of
ten years unless sooner terminated under Paragraph 17.
22. No Rights Implied. Nothing contained in this Plan or any
modification or amendment to the Plan or in the creation of any Payroll
Deduction Account, or the execution of any participation election form, or the
issuance of any Shares, shall give any Employee or Participant any right to
-9-
<PAGE>
continue employment, any legal or equitable right against the Employer or
Company or any officer, director, or Employee of an Employer or Company, except
as expressly provided by the Plan.
23. Severability. In the event any provision of the Plan shall be held
to be illegal or invalid for any reason, the illegality or invalidity shall not
affect the remaining provisions of the Plan, but shall be fully severable and
the Plan shall be construed and enforced as if the illegal or invalid provision
had never been included herein.
24. Waiver of Notice. Any person entitled to notice under the Plan may
waive the notice.
25. Successors and Assigns. The Plan shall be binding upon all persons
entitled to purchase Shares under the Plan, their respective heirs, legatees,
and legal representatives upon the Employer, its successors and assigns.
26. Headings. The titles and headings of the Paragraphs are included
for convenience of reference only and are not to be considered in construction
of the provisions hereof.
27. Governing Law. All questions arising with respect to the provisions
of this Plan shall be determined by application of the laws of the State of
Texas except to the extent Texas law is preempted by Federal statute. The
obligation of the Employer to sell and deliver Shares under the Plan is subject
to applicable laws and to the approval of any governmental authority required in
connection with the authorization, issuance, sale or delivery of such Shares.
28. No Liability for Good Faith Determinations. Neither the members of
the Board nor any member of the Committee (nor their delegates) shall be liable
for any act, omission, or determination taken or made in good faith with respect
to the Plan or any right to purchase Shares granted under it, and members of the
Board and the Committee (and their delegatees) shall be entitled to
indemnification and reimbursement by the Company in respect of any claim, loss,
damage, or expense (including attorneys' fees, the costs of settling any suit,
provided such settlement is approved by independent legal counsel selected by
the Company, and amounts paid in satisfaction of a judgment, except a judgment
based on a finding of bad faith) arising therefrom to the full extent permitted
by law and under any directors and officers liability or similar insurance
coverage that may from time to time be in effect.
29. Participating Employers. This Plan shall constitute the employee
stock purchase plan of the Company and each Designated Subsidiary. A Designated
Subsidiary may adopt and participate in this Plan beginning as of the next
Enrollment Date, provided the Board has consented to such Designated
Subsidiary's participation. A Designated Subsidiary may withdraw from the Plan
as of any Enrollment Date by giving written notice to the Board, and such notice
must be received by the Board at least 30 days prior to such Enrollment Date.
30. No Guarantee of Interests or Tax Treatment. Neither the Committee
nor the Company guarantees the Common Stock from loss or depreciation. Neither
the Committee nor the Company guarantees favorable tax treatment for the
purchase of Shares hereunder.
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<PAGE>
31. Payment of Expenses. All expenses incident to the administration,
termination, or protection of the Plan, including, but not limited to, legal and
accounting fees, shall be paid by the Company.
IN WITNESS WHEREOF, this Employee Stock Purchase Plan has been executed
effective this 14th day of May, 1998.
CompuCom Systems, Inc.
ATTEST: By: /s/ M. Lazane Smith
/s/ M. Patricia Tarkington -----------------------
- ------------------------------- Its SVP/CFP
Asst. Secretary -------------------
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<PAGE>
EXHIBIT A
---------
COMPUCOM SYSTEMS, INC.
EMPLOYEE STOCK PURCHASE PLAN
SUBSCRIPTION AGREEMENT
----------------------------
I, ___________________, have read the attached prospectus explanation of
the CompuCom Systems, Inc. Employee Stock Purchase Plan (the "Plan"). I have
decided to participate. I wish to purchase that number of shares of CompuCom,
Inc. Common Stock, $.01 par value (the "Shares") that can be purchased with
______% of my Compensation(1) (select the percentage of your compensation from 1
to 10, in increments of 1, that you elect to contribute).
In order to pay for the Shares that I have elected to purchase, I hereby
authorize my Employer to deduct the percentage of my Compensation that I
specified above from my pay each pay period while this election is in effect.
I understand that said payroll deductions shall be accumulated for the
purchase of the Shares at the applicable purchase price determined in accordance
with the Plan. I further understand that, except as otherwise set forth in the
Plan, Shares will be purchased for me automatically on the Exercise Date of the
Offering Period unless I otherwise withdraw from the Offering Period or the
Plan.
I have received a copy of the CompuCom Systems, Inc.'s most recent
prospectus that describes the Plan and a copy of the complete Plan. I understand
that my participation in the Plan is in all respects subject to the terms of the
Plan.
I hereby agree to be bound by the terms of the Plan. The effectiveness of
this Subscription Agreement is dependent upon my eligibility to participate in
the Plan.
Beneficiary Designation. In the event of my death, I hereby designate the
following as my beneficiary to receive all payments and Shares due me and not
yet paid or issued under the Plan, pursuant to Paragraph 12 of the Plan:
- ------------------------------
- ------------------------------
Name and Address of Participant:
- ------------------------------
- ------------------------------
Signature:
_______________________________ Date:___________________________________
- ------------------------
(1) Please refer to the Plan document for definitions of capitalized words
that are not defined in this Subscription Agreement.
<PAGE>
EXHIBIT B
---------
COMPUCOM SYSTEMS, INC.
EMPLOYEE STOCK PURCHASE PLAN
NOTICE OF WITHDRAWAL
----------------------------
The undersigned Participant(1) in the Offering Period of the CompuCom Systems,
Inc. Employee Stock Purchase Plan (the "Plan") which began on , 19 (the
"Enrollment Date") hereby notifies the Committee that effective on the later of
______________________, 19 (the "Withdrawal Date") or the date this form is
received by the Committee, he or she withdraws from the Offering Period.
The undersigned hereby directs the CompuCom Systems, Inc. (the "Company") to pay
to the undersigned as promptly as possible following the Withdrawal Date all the
payroll deductions created to his or her Payroll Deduction Account with respect
to such Offering Period. The undersigned understands and agrees that if
withdrawing from the Offering Period no further payroll deductions will be made
for the purchase of shares in such Offering Period.
- ------------------------------
- ------------------------------
Name and Address of Participant:
- ------------------------------
- ------------------------------
Signature:
_______________________________ Date:___________________________________
- -------------------------
(1) Please refer to the Plan document for definitions of capitalized words
that are not defined in this Notice of Withdrawal.
EXHIBIT 5.1
[LETTERHEAD OF JENKENS & GILCHRIST]
July 7, 1998
CompuCom Systems, Inc.
7171 Forest Lane
Dallas, Texas 75230
Re: CompuCom Systems, Inc. - Registration Statement on Form S-8
Gentlemen:
We are counsel to CompuCom Systems, Inc., a Delaware corporation (the
"Company"), and have acted as such in connection with the preparation of the
Registration Statement on Form S-8 (the "Registration Statement") to be filed
with the Securities and Exchange Commission on or about July 6, 1998, under the
Securities Act of 1933, as amended (the "Securities Act"), relating to 1,000,000
shares (the "Shares") of the $0.01 par value common stock (the "Common Stock")
of the Company that have been or may be issued by the Company pursuant to the
CompuCom Systems, Inc. Employee Stock Purchase Plan between the Company and the
signatories thereto (the "Plan").
You have requested an opinion with respect to certain legal aspects of
the proposed offering. In connection therewith, we have examined and relied upon
the original, or copies identified to our satisfaction, of (1) the Certificate
of Incorporation of the Company, as amended, and the Bylaws of the Company, as
amended; (2) minutes and records of the corporate proceedings of the Company
with respect to the establishment of the Plan, the reservation of 1,000,000
Shares to be issued pursuant to the Plan and to which the Registration Statement
relates, the issuance of the shares of Common Stock pursuant to the Plan and
related matters; (3) the Registration Statement and exhibits thereto, including
the Plan; and (4) such other documents and instruments as we have deemed
necessary for the expression of opinions herein contained. In making the
foregoing examinations, we have assumed the genuineness of all signatures and
the authenticity of all documents submitted to us as originals, and the
conformity to original documents of all documents submitted to us as certified
or photostatic copies. As to various questions of fact material to this opinion,
and as to the content and form of the Certificate of Incorporation, as amended,
the Bylaws, as amended, minutes, records, resolutions and other documents or
writings of the Company, we have relied, to the extent deemed reasonably
appropriate, upon representations or certificates of officers or directors of
the Company and upon documents, records and instruments furnished to us by the
Company, without independent check or verification of their accuracy.
Based upon our examination, consideration of, and reliance on the
documents and other matters described above, and assuming that:
<PAGE>
CompuCom Systems, Inc.
July 7, 1998
Page 2
(1) the Shares to be sold and issued in the future will be duly issued
and sold in accordance with the terms of the Plan;
(2) the Company maintains an adequate number of authorized but unissued
shares and/or treasury shares available for issuance to those persons who
purchase Shares pursuant to the Plan; and
(3) the consideration for the Shares issued pursuant to the Plan is
actually received by the Company as provided in the Plan and exceeds the par
value of such shares;
then, we are of the opinion that, the Shares issued or sold in accordance with
the terms of the Plan will be duly and validly issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to references to us included in or made a part of the
Registration Statement. In giving this consent, we do not admit that we come
within the category of persons whose consent is required under Section 7 of the
Securities Act or the Rules and Regulations of the Securities and Exchange
Commission thereunder.
Very truly yours,
Jenkens & Gilchrist,
A Professional Corporation
By: /s/ Ronald J. Frappier
--------------------------
Ronald J. Frappier,
Authorized Signatory
EXHIBIT 23.2
Consent of Independent Auditors
The Board of Directors
CompuCom Systems, Inc.:
We consent to the incorporation by reference herein of our report dated January
27, 1998, relating to the consolidated balance sheets of CompuCom Systems, Inc.
and subsidiaries as of December 31, 1997 and 1996 and the related consolidated
statements of operations, stockholders' equity and cash flows for each of the
years in the three-year period ended December 31, 1997 and the related schedule,
which report appears in the December 31, 1997 Annual Report on Form 10-K of
CompuCom Systems, Inc.
/s/ KPMG Peat Marwick LLP
----------------------------
July 7, 1998
Dallas, Texas
