As filed with the Securities and Exchange Commission on April 30, 1997
Registration No. ___________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------------------
FORM S-8
Registration Statement
Under
The Securities Act of 1933
------------------------------------
MICROAGE, INC.
(Exact name of Registrant as specified in charter)
Delaware 86-0321346
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
2400 South MicroAge Way, Tempe, AZ 85282
(Address of Principal Executive Office) (Zip Code)
------------------------------------
MICROAGE, INC. EXECUTIVE SUPPLEMENTAL SAVINGS PLAN
(Full title of plan)
------------------------------------
James H. Domaz Copy To:
Corporate Counsel Matthew P. Feeney
MICROAGE, INC. SNELL & WILMER
2400 South MicroAge Way One Arizona Center
Tempe, Arizona 85282 Phoenix, Arizona 85004-0001
(Name and address of agent for service)
(602) 804-2000
(Telephone number, including area code, of agent for service)
- --------------------------------------------------------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Per Offering Registration
Registered(1) Registered(2) Share Price Fee
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Deferred Compensation $10,000,000 100% $10,000,000 $3,031.00
Obligations
</TABLE>
(1) The Deferred Compensation Obligations are unsecured obligations of MicroAge,
Inc. to pay deferred compensation in the future in accordance with the terms of
the MicroAge Inc. Executive Supplemental Savings Plan for a select group of
eligible employees.
(2) Estimated solely for the purpose of determining the registration fee.
================================================================================
<PAGE>
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents have been filed by the Company with
the Securities and Exchange Commission pursuant to the Securities Exchange Act
of 1934 and are incorporated herein by reference:
1. Annual Report on Form 10-K for the fiscal year ended
November 3, 1996.
2. Quarterly Report on Form 10-Q for the fiscal quarter
ended February 2, 1997.
3. The description of the Company's Common Stock
included in Registration Statements on Form 8-A dated
June 12, 1987 (as amended on August 5, 1993, March
28, 1994, and December 30, 1994), February 24, 1989
(as amended on March 28, 1994 and December 30, 1994),
and December 30, 1994.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934,
prior to the filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of such
documents. Any statement contained in a document incorporated 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 subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Registration
Statement.
Item 4. Description of Securities
Under the MicroAge, Inc. Executive Supplemental Savings Plan
(the "Plan"), the Company will provide eligible employees the opportunity to
defer a portion of their cash compensation. The obligations of the Company
ultimately to pay such deferred amounts in accordance with the Plan (the
"Obligations") will be unsecured general obligations of the Company and will
rank pari passu with other unsecured and unsubordinated indebtedness of the
Company from time to time outstanding. A brief description of certain aspects of
the Plan follows, and is qualified in its entirety by the full text of the Plan:
(a) The Plan allows designated employees ("Participant(s)") to
defer a portion of his or her compensation.
2
<PAGE>
(b) The amount of compensation to be deferred by each
Participant will be determined in accordance with the Plan based on elections by
the Participant. Each Obligation will be payable on a date selected by the
Participant in accordance with the terms of the Plan. The Obligations will be
indexed to one or more investment media individually chosen by the Participant
from a list specified pursuant to the Plan.
(c) Each Participant is an unsecured general creditor of the
Company with respect to his or her own Plan benefits. Benefits are payable
solely from the Company's general assets, and are subject to the risk of
corporate insolvency. In the event of the Company's insolvency, each
Participant's deferred compensation may be subject to a lien or security
interest of the Company's creditors.
(d) The Company reserves the right to amend or partially or
completely terminate the Plan, provided that such amendment or termination does
not result in any reduction of a Participant's vested account balance, including
previous earnings or losses, as of the date of such amendment or termination.
(e) The Company has appointed the Plan Administrator to assist
in administering the Plan. The Plan Administrator has the right to interpret the
Plan and determine all other matters that might arise under the terms and
conditions of the Plan. Its decisions are final and binding on all Participants.
(f) A Participant's right or the right of any other person to
the Obligations cannot be transferred, pledged, or encumbered except by a
written designation of a beneficiary under the Plan or the execution of a
domestic relations order.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Officers and Directors
Reference is made to Section 145 of the Delaware General
Corporation Law (the "Delaware GCL"), as amended from time to time ("Section
145"), which provides for indemnification of directors and officers of a
corporation in certain circumstances. Under Article IX of the registrant's
Restated Certificate of Incorporation, as amended, the registrant shall, to the
full extent permitted by Section 145, indemnify all persons whom it may
indemnify pursuant thereto. Additionally, Article IX provides, among other
matters, that the right to indemnification is a contract right, that the
registrant is expressly authorized to procure insurance, that advancement of
expenses by the registrant is mandatory, (except as limited by law) and for
certain procedural mechanisms for the benefit of indemnified parties.
Article VII of the By-Laws of the registrant provides for
indemnification of directors and officers of the registrant. The provisions of
Article VII, among other matters,
3
<PAGE>
require the registrant to indemnify certain persons to the fullest extent
authorized by the Delaware GCL, as the same may now exist or may hereafter be
amended (but, in the case of any such amendment only to the extent that such
amendment permits the registrant to provide broader indemnification rights than
such law permitted the registrant to provide prior to such amendment). Article
VII provides that the right to indemnification is a contract right and makes
advances of expenses incurred in defending a proceeding mandatory, provided that
if required by the Delaware GCL, the person seeking such advances furnishes an
undertaking to the registrant to repay all amounts so entitled to be
indemnified. Article VII also expressly provides that any person claiming
indemnification may sue the registrant for payment of amounts due, that the
registrant in such case will have the burden of proving that the claimant has
not met the standards of conduct which make it permissible to indemnify the
person for the amount claimed under the Delaware GCL (except in the case of a
claim for advancement of expenses, where the required undertaking, if any, has
been tendered, in which case it shall not be a defense that the person has not
met the applicable standards of conduct) and that neither the failure by the
registrant to have made a determination that indemnification is proper, nor an
actual determination by the registrant that the claimant has not met the
applicable standard of conduct, is a defense to the action or creates a
presumption that the claimant has not met the applicable standard of conduct.
The registrant has entered into indemnity agreements with
certain of its directors and its officers supplementing the indemnification
available under the Delaware GCL and the registrant's Restated Certificate of
Incorporation and By-Laws (as described above). The indemnification agreements
provide that the registrant will pay any amount which the indemnified party is
legally obligated to pay because of claims made against the indemnified party
based on any act, omission, neglect or breach of duty (whether occurring prior
to or after the date of the indemnity agreements), while acting in his capacity
as a director or officer. The payments to be made under the indemnity agreements
include the amounts of all claims, damages, judgments, settlements and costs of
defense of legal actions, claims or proceedings and appeals therefrom, and costs
of attachment or similar bonds. However, if it is determined that such director
or officer was not entitled to be indemnified in full or in part, such officer
or director must repay such amount to the registrant. The indemnity agreements
also cover claims made after the end of an indemnified party's service as an
officer or director, but which relate to acts, omissions, or breaches of duty
which occurred while serving as an officer or director.
The registrant currently maintains directors' and officers'
liability insurance to supplement the protection provided in the registrant's
Restated Certificate of Incorporation, as amended, its By-Laws and
indemnification agreements with its directors and officers, and to fund certain
payments that the registrant may be required to make under any such provisions.
Such insurance is renewable annually and is subject to standard terms and
conditions, including exclusions from coverage.
Item 7. Exemption from Registration Claimed
Not applicable.
4
<PAGE>
Item 8. Exhibits
Exhibit No. Description
----------- -----------
4.1 By-Laws of the Company, amended and restated
as of April 3, 1997
5 Opinion of Snell & Wilmer L.L.P.
23.1 Consent of Price Waterhouse LLP
23.2 Consent of Snell & Wilmer L.L.P. (included
in the opinion filed as Exhibit 5)
24 Power of Attorney (included in signature
page)
In addition to those exhibits shown above, the Company hereby
incorporates by reference the following exhibits:
<TABLE>
<CAPTION>
Exhibit No. Description Originally Filed as Exhibit
----------- ----------- ---------------------------
<S> <C> <C>
4.2 Restated Certificate of Incorporation 3.1 to the Company's Quarterly
of the Company Report on Form 10-Q for fiscal
quarter ended May 1, 1994
4.3 Amended and Restated Rights 1.1 to the Company's Form 8-A,
Agreement, dated as of September 28, dated December 30, 1994
1994 between the Company and First
Interstate Bank of California
4.3.1 First Amendment, dated as of 4.2.1 to the Company's Annual
November 5, 1996 by and between Report on Form 10-K for the fiscal
MicroAge, Inc. and American Stock year ended November 3, 1996
Transfer and Trust Company, to
Amended and Restated Rights
Agreement, dated as of September 28,
1994 between the Company and First
Interstate Bank of California
99 MicroAge, Inc. Executive 10.1 to the Company's Annual
Supplemental Savings Plan Report on Form 10-K for the fiscal
year ended November 3, 1996
99.1 First Amendment, dated January 1, 10.2 to the Company's Quarterly
1997, to the MicroAge, Inc. Executive Report on Form 10-Q for the fiscal
Supplemental Savings Plan quarter ended February 2, 1997
</TABLE>
5
<PAGE>
Item 9. Undertakings
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 (the "1933 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 this registration
statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in this registration statement or any material change to such
information in this registration statement.
(2) That, for the purpose of determining any liability under
the 1933 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.
The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the 1933 Act, each filing of the
registrant's annual report pursuant to section 13(a) or section 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.
Insofar as indemnification for liabilities arising under the
1933 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 Securities and Exchange Commission
such indemnification is against public policy as expressed in the 1933 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
6
<PAGE>
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 1933 Act and
will be governed by the final adjudication of such issue.
7
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Tempe, State of Arizona, on April 28, 1997.
MICROAGE, INC.
By: /s/ Jeffrey D. McKeever
-----------------------
Jeffrey D. McKeever
Chairman of the Board
and Chief Executive Officer
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 date indicated. Each person whose signature appears below
hereby authorizes Jeffrey D. McKeever and James R. Daniel, and each of them, as
attorneys-in-fact, to sign his or her name on his or her behalf, individually
and in each capacity designated below, and to file any additional amendments,
including post-effective amendments to this Registration Statement.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
By:/s/ Jeffrey D. McKeever Director, Chairman of the April 28, 1997
------------------------------------- Board, Chief Executive Officer
Jeffrey D. McKeever (Principal Executive Officer)
By:/s/ Alan P. Hald Director, Vice-Chairman of the April 28, 1997
------------------------------------- Board, and Secretary
Alan P. Hald
By:/s/ William H. Mallender Director April 28, 1997
-------------------------------------
William H. Mallender
By: Director
-------------------------------------
Steven G. Mihaylo
By:/s/ Fred Israel Director April 28, 1997
-------------------------------------
Fred Israel
By:/s/ Linda M. Applegate Director April 28, 1997
-------------------------------------
Linda M. Applegate
By:/s/ Roy A. Herberger, Jr. Director April 28, 1997
-------------------------------------
Roy A. Herberger, Jr.
By:/s/ James R. Daniel Senior Vice President and Chief April 28, 1997
------------------------------------- Financial Officer and Treasurer
James R. Daniel (Principal Financial Officer)
By:/s/ Raymond L. Storck Vice President-Controller and April 28, 1997
------------------------------------- Assistant Treasurer (Principal
Raymond L. Storck Accounting Officer)
</TABLE>
8
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Page in Sequential Numbering
Exhibit System in Manually Signed Original
No. Description On Which Exhibits May Be Found
--- ----------- ------------------------------
<S> <C> <C>
4.1 By-Laws of the Company, amended and
restated as of April 3, 1997
4.2 Restated Certificate of Incorporation (Incorporated by reference to Exhibit 3.1
of the Company to the Company's Quarterly Report on
Form 10-Q for the fiscal quarter ended
May 1, 1994)
4.3 Rights Agreement, dated as of February (Incorporated by reference to Exhibit 4.2
23, 1989, between the Company and First to the Company's Annual Report on
Interstate Bank, N.A. Form 10-K for the fiscal year ended
September 30, 1989)
4.3.1 First Amendment, dated as of November (Incorporated by reference to Exhibit 4.2.1
5, 1996 by and between MicroAge, Inc. to the Company's Annual Report on Form 10-K
and American Stock Transfer and Trust for the fiscal year ended November 3, 1996)
Company, to Amended and Restated
Rights Agreement, dated as of September
28, 1994 between the Company and First
Interstate Bank of California
4.4 First Amendment to Rights Agreement, (Incorporated by reference to Exhibit 1.1
dated March 25, 1994 to Amendment No. 1 to the Company's
Form 8-A, dated March 28, 1994)
5 Opinion of Snell & Wilmer L.L.P.
23.1 Consent of Price Waterhouse LLP
23.2 Consent of Snell & Wilmer L.L.P. Included in Exhibit 5
24 Power of Attorney Included in signature page
99 MicroAge, Inc. Executive Supplemental (Incorporated by reference to Exhibit
Savings Plan 10.1 to the Company's Annual Report on
Form 10-K for the fiscal year ended
November 3, 1996)
99.1 First Amendment, dated January 1, 1997, (Incorporated by reference to Exhibit
to the MicroAge, Inc. Executive 10.2 to the Company's Quarterly Report
Supplemental Savings Plan on Form 10-Q for the fiscal quarter ended
February 2, 1997)
</TABLE>
9
AMENDED AND RESTATED
BY-LAWS
OF
MICROAGE, INC.
ARTICLE I
---------
OFFICES
SECTION 1. REGISTERED OFFICE. The registered office shall be
established and maintained at the office of the United States Corporation
Company, in the City of Dover, in the County of Kent, in the State of Delaware
and said corporation shall be the registered agent of this corporation.
SECTION 2. OTHER OFFICES. The corporation may have other offices,
either within or without the State of Delaware, at such place or places as the
Board of Directors may from time to time appoint or the business of the
corporation may require.
ARTICLE II
----------
MEETINGS OF STOCKHOLDERS
SECTION 1. ANNUAL MEETINGS. The annual meetings of stockholders for the
election of directors shall be held at such place, within or without the State
of Delaware, and at such time and on such date as may from time to time be fixed
by the Board of Directors and specified in the notice of such meeting. In
addition to the election of directors, any other proper business may be
transacted at the annual meeting. In the event the Board of Directors fails to
so determine the place of meeting, the annual meeting of stockholders shall be
held at the offices of MicroAge, Inc., 2400 South MicroAge Way, Tempe, Arizona.
If the date of the annual meeting shall fall upon a legal holiday, the
meeting shall be held on the next succeeding business day. At each annual
meeting, the stockholders entitled to vote shall elect a Board of Directors and
they may transact such other corporate business as may properly come before the
meeting.
SECTION 2. OTHER MEETINGS. Meetings of stockholders for any purpose
other than the election of directors may be held at such time and place, within
or without the State of Delaware, as shall be stated in the notice of the
meeting.
SECTION 2.1. NOTICE OF STOCKHOLDER NOMINATIONS AND BUSINESS.
(a) Nominations of persons for election to the board of directors of
the Corporation and the proposal of business to be considered by the
stockholders may be made at an annual meeting of stockholders: (i) pursuant to
the Corporation's notice of meeting; (ii) by or at the direction of the board of
directors; or (iii) by any stockholder of the Corporation who was a stockholder
of record at the time of giving of notice provided for in this Section, who is
entitled to vote at the meeting and who complies with the notice procedures set
forth in this Section. For nominations or other business to be properly brought
before an annual meeting by a stockholder pursuant to this Section, the
stockholder must have given timely notice thereof in writing to the Secretary of
the Corporation, and such business must be a proper subject for stockholder
action under the General Corporation Law of Delaware. To be timely, a
stockholder's notice shall be delivered to the Secretary at the principal
executive offices of the Corporation not less than
<PAGE>
60 days nor more than 90 days prior to the first anniversary of the preceding
year's annual meeting; provided, however, that in the event that the date of the
annual meeting is more than 30 days before or more than 60 days after such
anniversary date, notice by the stockholder to be timely must be so delivered
not earlier than the 90th day prior to such annual meeting, and not later than
the close of business on the later of the 60th day prior to such annual meeting
or the 10th day following the day on which public announcement of the date of
such meeting is first made.
(b) Nominations of persons for election to the board of directors may
be made at a special meeting of stockholders at which directors are to be
elected pursuant to the Corporation's notice of meeting: (i) by or at the
direction of the board of directors; or (ii) by any stockholder of the
Corporation who is a stockholder of record at the time of giving of notice
provided for in this Section, who shall be entitled to vote at the meeting and
who complies with the notice procedures set forth in this Section. Nominations
by stockholders of persons for election to the board of directors may be made at
such a special meeting of stockholders if the stockholder's notice required by
this Section shall be delivered to the Secretary at the principal executive
offices of the Corporation not earlier than the 90th day prior to such special
meeting and not later than the close of business on the later of the 60th day
prior to such special meeting or the 10th day following the day on which public
announcement is first made of the date of the special meeting and of the
nominees proposed by the Board of Directors to be elected at such meeting.
(c) Any stockholder's notice required by this Section shall set forth:
(i) as to each person whom the stockholder proposes to nominate for election or
re-election as a director, (A) the name, age, business address and residence
address of such person, (B) the principal occupation or employment of such
person and (C) the class and number of shares of the Corporation owned
beneficially by such person and shall include such person's written consent to
being named as a nominee and to serving as a director if elected; (ii) as to any
other business that the stockholder proposes to bring before the meeting, a
brief description of the business desired to be brought before the meeting, the
reasons for conducting such business at the meeting and any material interest in
such business of such stockholder and the beneficial owner, if any, on whose
behalf the proposal is made; and (iii) as to the stockholder giving the notice
and the beneficial owner, if any, on whose behalf the nomination or proposal, is
made (A) the name and address of such stockholder, as they appear on the
Corporation's books, and of such beneficial owner, and (B) the class and number
of shares of the Corporation which are owned beneficially and of record by such
stockholder and such beneficial owner.
(d) Only such persons who are nominated in accordance with the
procedures set forth in this Section shall be eligible for election as directors
at any meeting of stockholders. Only such business shall be conducted at a
meeting of stockholders as shall have been brought before the meeting in
accordance with procedures set forth in this Section. The chairman of the
meeting shall have the power and duty to determine whether a nomination or any
business proposed to be brought before the meeting was made in accordance with
the procedures set forth in this Section and, if any proposed nomination or
business is not in compliance with this Section, to declare that such defective
proposal shall be disregarded.
(e) For purposes of this Section, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service, Associated
Press or comparable national news service or in a document publicly filed by the
Corporation with the Securities and Exchange Commission pursuant to Section 13,
14 or 15(d) of the Securities Exchange Act of 1934, as amended, (the "Exchange
Act").
(f) Notwithstanding the foregoing provisions of this Section, a
stockholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect
2
<PAGE>
to the matters set forth in this Section. Nothing in this Section shall be
deemed to affect any rights of stockholders to request inclusion of proposals in
the Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act.
SECTION 3. CONDUCT OF STOCKHOLDERS' MEETINGS. The meetings of the
stockholders shall be presided over by the Chairman of the Board and Chief
Executive Officer, or if he is not present, by an officer designated by the
Board of Directors, or if the Board of Directors fails to designate such
officer, by a chairman to be elected at the meeting. The Secretary, or any
Assistant Secretary as designated by the chairman of the meeting, of the
Corporation shall act as secretary of such meetings; if neither the Secretary
nor an Assistant Secretary is present, then a secretary shall be appointed by
the chairman of the meeting. The order of business shall be as determined by the
chairman of the meeting.
SECTION 4. VOTING. Except as provided in the Certificate of
Incorporation and these ByLaws, each stockholder entitled to vote in accordance
with the terms of the Certificate of Incorporation and in accordance with the
provisions of these By-Laws shall be entitled to one vote, in person or by
proxy, for each share of stock entitled to be voted which is held by such
stockholder, but no proxy shall be voted after three years from its date unless
such proxy provides for a longer period. Upon the demand of any stockholder, the
vote for directors and the vote upon any question before the meeting, shall be
by ballot. All questions shall be decided by majority vote, except as otherwise
provided by the Certificate of Incorporation or the laws of the State of
Delaware.
A complete list of the stockholders entitled to vote at the ensuing
election, arranged in alphabetical order, with the address of each, and the
number of shares held by each, shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during ordinary business
hours, for a period of at least ten days prior to the meeting, either at a place
within the city where the meeting is to be held, which place shall be specified
in the notice of the meeting, or, if not so specified, at the place where the
meeting is to be held. The list shall also be produced and kept at the time and
place of the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
SECTION 5. QUORUM. Except as otherwise required by law, by the
Certificate of Incorporation or by these By-Laws, the presence, in person or by
proxy, of stockholders holding a majority of the stock of the corporation
entitled to vote shall constitute a quorum at all meetings of the stockholders.
In case a quorum shall not be present at any meeting, a majority in interest of
the stockholders entitled to vote thereat, present in person or by proxy, shall
have power to adjourn the meeting from time to time, without notice other than
announcement at the meeting, until the requisite amount of stock entitled to
vote shall be present. At any such adjourned meeting at which the requisite
amount of stock entitled to vote shall be represented, any business may be
transacted which might have been transacted at the meeting as originally
noticed; but only those stockholders entitled to vote at the meeting as
originally noticed shall be entitled to vote at any adjournment or adjournments
thereof.
SECTION 6. ELECTION INSPECTORS. The Board of Directors shall, in
advance of any meeting of stockholders, appoint one or more election inspectors
to act at such meeting (and any adjournment or adjournments thereof) and make a
written report thereof. The Board of Directors may designate one or more persons
as alternate inspectors to replace any inspector who fails to act. If no
inspector or alternate is able to act at a meeting of stockholders, the chairman
of the meeting shall appoint one or more inspectors to act at the meeting. Each
inspector, before entering upon the discharge of his or her duties, shall take
and sign an oath faithfully to execute the duties of inspector with strict
impartiality and according to the best of his or her ability.
3
<PAGE>
The election inspector or inspectors (acting through a majority of them
if there be more than one) shall: (i) ascertain the number of shares outstanding
and the voting power of each; (ii) determine the shares represented at a meeting
and the validity of proxies and ballots; (iii) count all votes and ballots; (iv)
determine and retain for a reasonable period a record of the disposition of any
challenges made to any determination by the inspectors; and (v) certify and
announce their determination of the number of shares represented at the meeting,
and their count of all votes and ballots. No such election inspector need be a
stockholder of the Corporation. No person who is a candidate for office shall
act as an inspector. The inspectors may appoint or retain other persons or
entities to assist the inspectors in the performance of the duties of the
inspectors.
The date and time of the opening and the closing of the poles for each
matter upon which the stockholders will vote at a meeting shall be announced at
the meeting. No ballot, proxies or votes, nor any revocations thereof or changes
thereto, shall be accepted by the inspectors after the closing of the polls
unless the Court of Chancery upon application by a stockholder shall determine
otherwise.
In determining the validity and counting of proxies and ballots, the
inspectors shall be limited to an examination of the proxies, any envelopes
submitted with those proxies, any information provided in accordance with
section 212(c)(2) of the Delaware General Corporation Law, ballots and the
regular books and records of the corporation, except that the inspectors may
consider other reliable information for the limited purpose of reconciling
proxies and ballots submitted by or on behalf of banks, brokers, their nominees
or similar persons which represent more votes than the holder of a proxy is
authorized by the record owner to cast or more votes than the stockholder holds
of record. If the inspectors consider other reliable information for the limited
purpose permitted herein, the inspectors at the time they make their
certification pursuant to this section shall specify the precise information
considered by them including the person or persons from whom they obtained the
information, when the information was obtained, the means by which the
information was obtained and the basis for the inspectors' belief that such
information is accurate and reliable.
SECTION 7. SPECIAL MEETINGS. Special meetings of the stockholders may
be held whenever and wherever called for by the Chairman of the Board and Chief
Executive Officer or the Board of Directors. The business, including the
election and/or removal of directors, which may be conducted at any such Special
Meeting shall be limited to the purposes stated in the notice thereof.
SECTION 8. NOTICE OF MEETINGS. Written notice, stating the place, date
and time of the meeting, and in the case of a special meeting, the purpose or
purposes for which the meeting is called, shall be given to each stockholder
entitled to vote thereat at his address as it appears on the records of the
corporation, not less than ten nor more than sixty days before the date of the
meeting, except in the case of a meeting to consider the merger or consolidation
of the corporation, notice thereof shall be given not less than twenty nor more
than sixty days before the date of the meeting. Business transacted at a special
meeting shall be limited to the purposes stated in the notice.
SECTION 9. ACTION WITHOUT MEETING. Any action required or permitted to
be taken by the stockholders of the Corporation must be effected at a duly
called annual or special meeting of the stockholders or by the unanimous written
consent of the stockholders entitled to vote on such action.
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ARTICLE III
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DIRECTORS
SECTION 1. NUMBER AND TERM. The number of directors shall be six (6).
The directors, other than those who may be elected by the holders of any series
of Preferred Stock then outstanding, shall be divided into three classes, with
the term of the first class to expire at the 1993 annual meeting of
stockholders, the term of office of the second class to expire at the 1994
annual meeting of stockholders and the term of office of the third class to
expire at the 1995 annual meeting of stockholders. At each annual meeting of
stockholders following such initial classification and election, directors
elected to succeed those directors whose terms expire shall be elected for a
term of office to expire at the third succeeding annual meeting of stockholders
after their election.
SECTION 2. RESIGNATIONS. Any director, member of a committee or officer
may resign at any time. Such resignation shall be made in writing, and shall
take effect at the time specified therein, and if no time be specified, at the
time of its receipt by the Chairman of the Board and Chief Executive Officer or
Secretary. The acceptance of a resignation shall not be necessary to make it
effective.
SECTION 3. VACANCIES. If the office of any director, member of a
committee or other officer becomes vacant, the remaining directors in office,
though less than a quorum, by a majority vote may appoint any qualified person
to fill such vacancy, who shall hold office for the unexpired term and until his
successor shall be duly chosen, or until his earlier resignation or removal.
SECTION 4. RESERVED.
SECTION 5. POWERS. The business and affairs of this corporation shall
be managed by or under the direction of its Board of Directors, which may
exercise all such powers of the corporation and do all such lawful acts and
things as are not by statute or by the Certificate of Incorporation of the
corporation or by these By-Laws conferred upon or reserved to the stockholders.
SECTION 6. COMMITTEES. The Board of Directors may, by resolution passed
by a majority of the whole Board, designate one or more committees, each
committee to consist of one or more of the directors of the corporation. The
Board of Directors may designate one or more directors as alternate members of
any committee, who may replace any absent or disqualified member at any meeting
of the committee. In the absence or disqualification of any member of such
committee or committees, the member or members thereof present at any meeting
and not disqualified from voting, whether or not he or they constitute a quorum,
may unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any such absent or disqualified member.
Any such committee, to the extent provided in the resolution of the
Board of Directors, or in these By-Laws, shall have and may exercise all of the
powers and authority of the Board of Directors in the management of the business
and affairs of the corporation, and may authorize the seal of the corporation to
be affixed to all papers which may require it; but no such committee shall have
the power or authority in reference to amending the Certificate of
Incorporation, adopting an agreement of merger or consolidation, recommending to
the stockholders the sale, lease or exchange of all or substantially all of the
corporation's property and assets, recommending to the stockholders a
dissolution of the corporation or a revocation of a dissolution, or amending the
By-Laws of the corporation; and, unless the resolution, these By-Laws, or the
Certificate of Incorporation expressly so provide, no such committee shall have
the
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power or authority to declare a dividend or to authorize the issuance of stock.
To the extent any such action is not taken by the Board of Directors, each
committee may choose its own chairman and secretary, fix its own rules of
procedure, and meet at such times and at such place or places as may be provided
by such rules. At every meeting of the committee, the presence of a majority of
all the members thereof shall be necessary to constitute a quorum and the
affirmative vote of a majority of the members present shall be necessary to
decide any question before the committee.
SECTION 7. MEETINGS. The Board of Directors of the corporation may hold
meetings, both regular and special, either within or without the State of
Delaware.
The first meeting of each newly elected Board of Directors shall be
held immediately after the annual meeting of stockholders without any notice
other than these By-Laws. The newly elected directors may hold their first
meeting for the purpose of organization and the transaction of business, if a
quorum be present, immediately after the annual meeting of the stockholders; or
the time and place of such meeting may be fixed by consent in writing of all the
directors.
Regular meetings of the directors may be held without notice at such
places and times as shall be determined from time to time by resolution of the
directors.
Special meetings of the Board of Directors may be called by the
Chairman of the Board and Chief Executive Officer, and shall be called by the
Chairman of the Board and Chief Executive Officer or the Secretary on the
request of any two directors on at least two days' notice to each director and
shall be held at such place or places as may be determined by the directors, or
as shall be stated in the call of the meeting.
Unless otherwise restricted by the Certificate of Incorporation or
these By-Laws, members of the Board of Directors, or any committee designated by
the Board of Directors, may participate in a meeting of the Board of Directors,
or any committee, by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and such participation in a meeting shall constitute presence in
person at the meeting.
SECTION 8. QUORUM. A majority of the directors shall constitute a
quorum for the transaction of business. If at any meeting of the Board of
Directors there shall be less than a quorum present, a majority of those present
may adjourn the meeting from time to time until a quorum is obtained, and no
further notice thereof need be given other than by announcement at the meeting
which shall be so adjourned.
SECTION 9. COMPENSATION. Unless otherwise restricted by the Certificate
of Incorporation, the Board of Directors may be paid their expenses, if any, of
attendance at each meeting of the Board of Directors and may be paid a fixed sum
for attendance at each meeting of the Board of Directors or a stated salary as
director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor.
SECTION 10. ACTION WITHOUT MEETING. Any action required or permitted to
be taken at any meeting of the Board of Directors, or of any committee thereof,
may be taken without a meeting, if prior to such action a written consent
thereto is signed by all members of the Board of Directors, or of such committee
as the case may be, and such written consent is filed with the minutes of
proceedings of the Board of Directors or committee.
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SECTION 11. VOTING. The vote of the majority of the directors present
at a meeting at which a quorum is present shall be the act of the board of
directors unless by provision of statute, the certificate of incorporation, or
these By-Laws, the vote of a different number of directors is required, in which
case such provision shall govern.
SECTION 12. APPROVAL OR RATIFICATION BY STOCKHOLDERS. Any contract,
transaction or act of the Corporation or of the Board of Directors or of any
committee thereof or of any officer of the Corporation which shall be approved
or ratified by the holders of a majority of the outstanding stock of the
Corporation at any annual meeting of stockholders or any special meeting of
stockholders called for such purpose shall be as valid and binding upon the
Corporation and all of its stockholders as if it had been approved or ratified
by all the stockholders of the Corporation.
ARTICLE IV
----------
OFFICERS
SECTION 1. OFFICERS. The officers of the Corporation shall be a
Chairman of the Board and Chief Executive Officer, a Treasurer, and a Secretary,
all of whom shall be elected by the Board of Directors and who shall hold office
until their successors are elected and qualified. In addition, the Board of
Directors may elect one or more Vice-Chairmen, a President, Vice Presidents and
such Assistant Secretaries and Assistant Treasurers as they may deem proper.
None of the officers of the Corporation need be directors. The officers shall be
elected at the first meeting of the Board of Directors after each annual
meeting. Any number of offices may be held by the same person unless the
Certificate of Incorporation or these By-Laws otherwise provide.
SECTION 2. OTHER OFFICERS AND AGENTS. The Board may appoint such other
officers and agents as it may deem advisable, who shall hold their offices for
such terms and shall exercise such powers and perform such duties as shall be
determined from time to time by the Board of Directors.
SECTION 3. CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER. The
Chairman of the Board and Chief Executive Officer shall have the primary
responsibility for and the general control and management of all the business
and affairs of the Corporation and the performance by all of its other officers
of their respective duties, under the direction of the Board. He shall be the
presiding officer at all meetings of the Board of Directors and meetings of the
stockholders of the Corporation. Except as the Board of Directors shall
authorize the execution thereof in some other manner, he may execute contracts,
deeds, mortgages, indenture, bonds, consents, guaranties, agreements or other
instruments on behalf of the Corporation. Unless otherwise ordered by the Board
of Directors, the Chairman of the Board and Chief Executive Officer shall have
full power and authority on behalf of the Corporation to attend and to act and
to vote at any meeting of stockholders of any corporation in which the
Corporation may hold stock, and also to execute and deliver for and on behalf of
the Corporation proxies in respect of such meetings, and at any such meeting the
Chairman of the Board and Chief Executive Officer or the individual or
individuals named in the proxy executed by the Chairman of the Board and Chief
Executive Officer in respect of such meeting shall possess and may exercise any
and all rights and powers incident to the ownership of such stock and which, as
the owner thereof, the Corporation might have possessed and exercised if
present; provided, however, the Board of Directors, by resolution, from time to
time may confer like powers upon any other person or persons, which powers may
be general or confined to specific instances.
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SECTION 4. VICE-CHAIRMAN OF THE BOARD. The Board of Directors may elect
one or more Vice-Chairman of the Board to serve as a general executive officer
of the Corporation, and to be vested with such powers and duties as the Board
may from time to time delegate. In the absence of the Chairman of the Board and
Chief Executive Officer, he shall preside at all meetings of the Board of
Directors. Except as the Board of Directors shall authorize the execution
thereof in some other manner, he may execute contracts, deeds, mortgages,
indentures, bonds, consents, guaranties, agreements or other instruments on
behalf of the Corporation. The Vice-Chairman may represent the Corporation at
any meeting of the stockholders of any other corporation in which this
Corporation then holds stock, and may vote this Corporation's stock in such
other corporation in person or by proxy appointed by him, provided that the
Board of Directors may from time to time confer the foregoing authority upon any
other person or persons.
SECTION 5. PRESIDENT. The President shall have such authority and
perform such duties relative to the business and affairs of the Corporation as
may be delegated to him by the Board. Except as the Board of Directors shall
authorize the execution thereof in some other manner, he may execute contracts,
deeds, mortgages, indentures, bonds, consents, guaranties, agreements or other
instruments on behalf of the Corporation. The President may represent the
Corporation at any meeting of the stockholders of any other corporation in which
this Corporation then holds stock, and may vote this Corporation's stock in such
other corporation in person or by proxy appointed by him, provided that the
Board of Directors may from time to time confer the foregoing authority upon any
other person or persons.
SECTION 6. VICE PRESIDENTS. Each Vice President shall have such powers
and shall perform such duties as shall be assigned to him, or her, by the
directors. If authorized to do so by the Board of Directors, any Vice President
may represent the Corporation at any meeting of the stockholders of any other
corporation in which this Corporation then holds stock, and may vote this
Corporation's stock in such other corporation in person or by proxy appointed by
him, provided that the Board of Directors may from time to time confer the
foregoing authority upon any other person or persons.
SECTION 7. TREASURER. The Treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate account of
receipts and disbursements in books belonging to the Corporation. He shall
deposit all moneys and other valuables in the name and to the credit of the
Corporation in such depositaries as may be designated by the Board of Directors.
The Treasurer shall disburse the funds of the Corporation as may be
ordered by the Board of Directors, the Chairman of the Board and Chief Executive
Officer or the President, taking proper vouchers for such disbursements. He
shall render to the Board of Directors at their regular meetings, or whenever
they may request it, an account of all his transactions as Treasurer and of the
financial condition of the Corporation. If required by the Board of Directors,
he shall give the Corporation a bond for the faithful discharge of his duties in
such amount and with such surety as the Board shall prescribe.
SECTION 8. SECRETARY. The Secretary shall give, or cause to be given,
notice of all meetings of stockholders and directors, and all other notices
required by law or by these By-Laws, and in case of his absence or refusal or
neglect so to do, any such notice may be given by any person thereunto directed
by the Chairman and Chief Executive Officer, or by the Board of Directors, upon
whose request the meeting is called as provided by these By-Laws. He shall
record all of the proceedings of the meetings of the Corporation and of the
Board of Directors in a book to be kept for that purpose, and shall perform such
other duties as may be assigned to him by the Board of Directors or the Chairman
of the Board and Chief Executive Officer. He shall have the custody of the seal
of the Corporation and shall affix the same to all
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instruments requiring it, when authorized by the Board of Directors, the
Chairman of the Board and Chief Executive Officer or the President, and attest
the same.
SECTION 9. ASSISTANT TREASURERS AND ASSISTANT SECRETARIES. Assistant
Treasurers and Assistant Secretaries, if any, shall be elected and shall have
such powers and shall perform such duties as shall be assigned to them,
respectively, by the directors.
ARTICLE V
---------
MISCELLANEOUS
SECTION 1. CERTIFICATES OF STOCK. Every holder of stock in the
corporation shall be entitled to have a certificate certifying the number of
shares owned by him in the corporation, signed by the Chairman, the President or
any Vice-President, and the Treasurer or an Assistant Treasurer, or Secretary or
an Assistant Secretary. Any or all the signatures on the certificate may be a
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
SECTION 2. LOST CERTIFICATES. A new certificate of stock may be issued
in the place of any certificate theretofore issued by the corporation, alleged
to have been lost, stolen or destroyed, and the directors may, in their
discretion, require the owner of the lost, stolen or destroyed certificate, or
his legal representative, to give the corporation a bond, in such sum as they
may direct, sufficient to indemnify the corporation against any claim that may
be made against it on account of the alleged loss, theft or destruction of any
such certificate, or the issuance of any such new certificate.
SECTION 3. TRANSFER OF SHARES. Upon surrender to the corporation or
transfer agent of the corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its books. Whenever any transfer of shares shall be made for
collateral security, and not absolutely, it shall be so expressed in the entry
of transfer if, when the certificates are presented to the corporation for
transfer, both the transferor and the transferee request the corporation to do
so.
SECTION 4. STOCKHOLDERS RECORD DATE. In order that the corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or to express consent to corporate
action in writing without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the Board of Directors may fix, in
advance, a record date, which shall not be more than sixty nor less than ten
days before the date of such meeting, nor more than sixty days prior to any
other action. A determination of stockholders of record entitled to notice of or
to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
SECTION 5. REGISTERED STOCKHOLDERS. The corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of shares to receive dividends, and to
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vote as such owner, and to hold liable for calls and assessments a person
registered on its books as the owner of shares, and shall not be bound to
recognize any equitable or other claim to or interest in such share or shares on
the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by the laws of Delaware.
SECTION 6. DIVIDENDS. Subject to the provisions of the Certificate of
Incorporation, the Board of Directors may, out of funds legally available
therefor at any regular or special meeting, declare dividends upon the capital
stock of the corporation as and when they deem expedient. Dividends may be paid
in cash, in property, or in shares of capital stock of the corporation, subject
to the provisions of the Certificate of Incorporation. Before declaring any
dividend there may be set apart out of any funds of the corporation available
for dividends, such sum or sums as the directors from time to time in their
discretion deem proper for working capital or as a reserve fund to meet
contingencies or for equalizing dividends or for such other purposes as the
directors shall deem conducive to the interests of the corporation.
SECTION 7. SEAL. The corporate seal shall be circular in form and shall
contain the name of the corporation, the year of its creation and the words
"CORPORATE SEAL DELAWARE". Said seal may be used by causing it or a facsimile
thereof to be impressed or affixed or reproduced or otherwise.
SECTION 8. FISCAL YEAR. The fiscal year of the corporation shall be
determined by resolution of the Board of Directors.
SECTION 9. CHECKS. All checks, drafts or other orders for the payment
of money, notes or other evidences of indebtedness issued in the name of the
corporation shall be signed by such officer or officers, agent or agents of the
corporation, and in such manner as shall be determined from time to time by
resolution of the Board of Directors.
SECTION 10. NOTICE AND WAIVER OF NOTICE. Whenever any notice is
required by these By-Laws to be given, personal notice is not meant unless
expressly so stated, and any notice so required shall be deemed to be sufficient
if given by depositing the same in the United States mail, postage prepaid,
addressed to the person entitled thereto at his address as it appears on the
records of the corporation, and such notice shall be deemed to have been given
on the day of such mailing. Stockholders not entitled to vote shall not be
entitled to receive notice of any meetings except as otherwise provided by
statute.
Whenever any notice whatever is required to be given under the
provisions of any law, or under the provisions of the Certificate of
Incorporation of the corporation or these By-Laws, a waiver thereof in writing,
signed by the person or persons entitled to said notice, whether before or after
the time stated therein, shall be deemed equivalent thereto. Attendance of a
person at a meeting shall constitute a waiver of notice of such meeting, except
when the person attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened. Neither the business to be transacted at,
nor the purpose of, any regular or special meeting of the stockholders,
directors or members of a committee of directors need be specified in any
written waiver of notice.
SECTION 11. ELECTION NOT TO BE SUBJECT TO ARIZONA CONTROL SHARE
ACQUISITIONS STATUTE. The Corporation elects not to be subject to Title 10,
Chapter 6, Article 2 of the Arizona Revised Statutes, relating to "Control Share
Acquisitions."
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ARTICLE VI
----------
REPAYMENT OF SALARY AND EXPENSE REIMBURSEMENTS
Any payments made to an officer, director, employee or other agent of
the corporation in the nature of salary, wages, other compensation or expense
reimbursements which shall be disallowed in whole or in part as a deductible
expense by the Internal Revenue Service in any judicial or administrative
proceeding, shall be repaid by such officer, director, employee, or other agent
of the corporation to the full extent of such disallowance. In lieu of payment
by such person or persons, subject to the determination of the Board of
Directors, proportionate amounts may be withheld from his or their future
compensation payments until the amount so owed to the corporation has been
recovered.
ARTICLE VII
-----------
INDEMNIFICATION OF OFFICERS
DIRECTORS, EMPLOYEES AND AGENTS
SECTION 1. RIGHT TO INDEMNIFICATION. The Corporation shall to the
fullest extent authorized by the Delaware General Corporation Law, as the same
exists or may hereafter be amended (but, in the case of any such amendment, only
to the extent that such amendment permits the Corporation to provide broader
indemnification rights than such law permitted the Corporation to provide prior
to such amendment), indemnify and hold harmless any person who was or is a
party, or is threatened to be made a party to or is otherwise involved in any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative by reason of the fact that such person
is or was a director or officer of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, including
service with respect to an employee benefit plan (hereinafter an "Indemnitee")
against expenses, liabilities and losses (including attorneys' fees, judgments,
fines, ERISA excise taxes or penalties and amounts paid in settlement)
reasonably incurred or suffered by such Indemnitee in connection therewith;
provided, however, that except as provided in Section 3 of this Article with
respect to proceedings to enforce rights to indemnification, the Corporation
shall indemnify any such Indemnitee in connection with a proceeding (or part
thereof) initiated by such Indemnitee only if such proceeding or part thereof
was authorized by the board of directors of this Corporation.
SECTION 2. RIGHT TO ADVANCEMENT OF EXPENSES. The right to
indemnification conferred in Section 1 of this Article shall include the right
to be paid by the Corporation the expenses (including attorneys' fees) incurred
in defending any such proceeding in advance of its final disposition; provided,
however, that, if the Delaware General Corporation Law requires, an advancement
of expenses incurred by an Indemnitee in his capacity as a director or officer
(and not in any other capacity in which service was or is rendered by such
Indemnitee, including, without limitation, service to an employee benefit plan)
shall be made only upon delivery to the Corporation of an undertaking, by or on
behalf of such Indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right to appeal that such Indemnitee is not entitled to be indemnified
for such expenses under this Section 2 or otherwise. The rights to
indemnification and to the advancement of expenses conferred in this Article
shall be contract rights and such rights shall continue as to an Indemnitee who
has ceased to be a director, officer, employee or agent and shall inure to the
benefit of the Indemnitee's heirs, executors and administrators.
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SECTION 3. RIGHT OF INDEMNITEE TO BRING SUIT. If a claim under Section
1 or 2 of this Article is not paid in full by the Corporation within sixty (60)
days after a written claim has been received by the Corporation, except in the
case of a claim for an advancement of expenses, in which case the applicable
period shall be twenty (20) days, the Indemnitee may at any time thereafter
bring suit against the Corporation to recover the unpaid amount of the claim. If
successful in whole or in part in any such suit, or in a suit brought by the
Corporation to recover an advancement of expenses pursuant to the terms of an
undertaking, the Indemnitee shall be entitled to be paid also the expense of
prosecuting or defending such suit. In (i) any suit brought by the Indemnitee to
enforce a right to indemnification hereunder (but not in a suit brought by the
Indemnitee to enforce a right to an advancement of expenses) it shall be a
defense that and (ii) in any suit brought by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the Corporation
shall be entitled to recover such expenses upon a final adjudication that, the
Indemnitee has not met any applicable standard for indemnification set forth in
the Delaware General Corporation Law. Neither the failure of the Corporation
(including its board of directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
suit that indemnification of the Indemnitee is proper in the circumstances
because the Indemnitee has met the applicable standard of conduct set forth in
the Delaware General Corporation Law, nor an actual determination by the
Corporation (including its board of directors, independent legal counsel, or its
stockholders) that the Indemnitee has not met such applicable standard of
conduct, shall create a presumption that the Indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by the
Indemnitee, be a defense to such suit. In any suit brought by the Indemnitee to
enforce a right to indemnification or to an advancement of expenses hereunder,
or brought by the Corporation to recover an advancement of expenses pursuant to
the terms of an undertaking, the burden of proving that the Indemnitee is not
entitled to be indemnified, or to such advancement of expenses, under this
Article or otherwise shall be on the Corporation.
SECTION 4. NON-EXCLUSIVITY OF RIGHTS. The rights to indemnification and
advancement of expenses conferred in this Article VII shall not be exclusive of
any other rights to which any person may have or hereafter acquire under any
statute, the Corporation's Restated Certificate of Incorporation, these By-Laws,
any agreement, vote of stockholders or disinterested directors, or otherwise.
SECTION 5. INSURANCE. The Corporation shall have the power to purchase
and maintain insurance, at its expense, to protect itself and any director,
officer, employee or agent of the Corporation or another corporation,
partnership, joint venture, trust or other enterprise (including an employee
benefit plan) against any expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
SECTION 6. DEFINITION OF CORPORATION. For purposes of this Article VII,
references to the "Corporation" shall include any subsidiary of this Corporation
from and after the acquisition thereof by this Corporation, so that any person
who is a director, officer, employee or agent of such subsidiary after the
acquisition thereof by this Corporation shall stand in the same position under
the provisions of this Article as such person would have had such person served
in such position for this Corporation.
SECTION 7. INDEMNIFICATION OF EMPLOYEES AND AGENTS OF THE CORPORATION.
The Corporation may, to the extent authorized from time to time by the board of
directors, grant rights to indemnification and to the advancement of expenses to
any employee or agent of the Corporation to the fullest extent of the provisions
of this Article with respect to the indemnification and advancement of expenses
of directors and officers of the Corporation.
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ARTICLE VIII
------------
AMENDMENTS
These By-Laws may be altered, amended or repealed or new by-laws may be
adopted by the stockholders or by the Board of Directors when such power is
conferred upon the Board of Directors by the Certificate of Incorporation, at
any regular meeting of the stockholders or of the Board of Directors, or at any
special meeting of the stockholders or of the Board of Directors if notice of
such alteration, amendment, repeal or adoption of new by-laws be contained in
the notice of such special meeting.
13
EXHIBIT 5
April 30, 1997
MicroAge, Inc.
2400 South MicroAge Way
Tempe, AZ 85282
Ladies and Gentlemen:
You have requested our opinion as counsel for MicroAge, Inc., a
Delaware corporation (the "Company"), in connection with the registration under
the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder, and the proposed offering of up to $10,000,000 of
deferred compensation obligations under the MicroAge, Inc. Executive
Supplemental Savings Plan, as contemplated in the Registration Statement on Form
S-8 to be filed with the Securities and Exchange Commission on or about April
30, 1997 (the "Registration Statement") (the "Plan").
We have examined the Company's Registration Statement, the Plan, the
Restated Certificate of Incorporation and By-Laws of the Company, and
resolutions adopted by the Company's Board of Directors. In addition, we have
examined such corporate records, certificates, and other documents (of which we
are aware) as we have considered necessary or appropriate for the purposes of
this opinion.
On the basis of the foregoing, it is our opinion that the obligations
under the Plan will, when arising under the Plan in accordance with its terms,
constitute valid and binding obligations of the Company.
In connection with this opinion, we have assumed the authenticity of
original documents and the genuineness of all signatures and the conformity to
the originals of all documents submitted to us as copies.
Our opinion is qualified to the extent that enforcement of obligations
issued under the Plan may be subject to applicable federal or state bankruptcy,
insolvency, reorganization, arrangement, moratorium, fraudulent conveyance, or
other laws or court decisions relating to or affecting the rights of creditors
generally and may be limited by equitable principles of general applicability,
including without limitation concepts of materiality, reasonableness, good faith
and fair dealing, equitable subordination, and the possible unavailability of
specific performance or injunctive relief (regardless of whether considered in a
proceeding in equity or at law or whether codified by statutes).
We consent to the filing of this opinion as an exhibit to the
Registration Statement.
<PAGE>
Very truly yours,
/s/ Snell & Wilmer L.L.P.
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated December 11, 1996 appearing in
MicroAge, Inc.'s Annual Report on Form 10-K for the year ended November 3, 1996.
PRICE WATERHOUSE LLP
Phoenix, Arizona
April 28, 1997
