As filed with the Securities and Exchange Commission on April 10, 1998
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 Its Charter)
Delaware 86-0321346
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation) Identification No.)
2400 South MicroAge Way, Tempe, Arizona, 85252-1896
(Address of Principal Executive Offices) (Zip Code)
MICROAGE, INC. 1995 DIRECTOR INCENTIVE PLAN
(AMENDED AND RESTATED AS OF APRIL 1, 1998)
(Full Title of the Plan)
James H. Domaz Copy to:
Corporate Counsel Matthew P. Feeney
MicroAge, Inc. SNELL & WILMER
2400 South MicroAge Way One Arizona Center
Tempe, Arizona 85282-1896 Phoenix, Arizona 85004-0001
(Name and Address of Agent For Service)
(602) 366-2000
Telephone Number, Including Area Code, of Agent For Service
<PAGE>
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 Per Share(1) Price(1) Fee
---------- ---------- ------------ --------- ------------
Common Stock 170,000 $13.31 $2,262,700 $667.50(2)
($.01 par value
per share)
- -------------------------
1 Estimated solely for the purpose of calculating the amount of the
registration fee, pursuant to Rules 457(c) and 457(h) of the Securities Act
of 1933 (the "Securities Act"), on the basis of the average of the high and
low prices for shares of Common Stock on April 9, 1998.
2 Pursuant to Rule 429 of the Securities Act, a combined prospectus relating
to the 170,000 shares of Common Stock registered hereby and 80,000 shares
of Common Stock registered on April 28, 1995 pursuant to Registration No.
33-58899 will be delivered to plan participants in accordance with Form S-8
and Rule 428 of the Securities Act. The previously-paid filing fees
associated with the referenced securities registered under Registration No.
33-58899 totaled $260.67.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I, Items 1
and 2, will be delivered to plan participants in accordance with Form S-8 and
Rule 428 of the Securities Act.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
-----------------------------------------------
The following documents have been filed by MicroAge, Inc. (the
"Registrant") 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 2, 1997.
2. Quarterly Report on Form 10-Q for the fiscal quarter ended
February 1, 1998.
3. The description of the Registrant'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 Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
prior to the filing of a post-effective amendment to this Registration Statement
which indicates that all securities offered have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing 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. Not applicable.
-------------------------
Item 5. Interests of Named Experts and Counsel. Not applicable.
--------------------------------------
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
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, and Article VII
<PAGE>
of the By-laws of the Registrant, the Registrant shall, to the fullest extent
permitted by Section 145, indemnify all persons whom it may indemnify pursuant
thereto. The provisions of Article VII of the By-laws of the Registrant and
Article IX of the Registrant's Restated Certificate of Incorporation, among
other matters, require the Registrant to indemnify certain persons to the
fullest extent authorized by the Delaware GCL, 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 Registrant to provide broader indemnification
rights than such law permitted the Registrant to provide prior to such
amendment). Article VII of the By-laws of the Registrant and Article IX of the
Registrant's Restated Certificate of Incorporation provide that the right to
indemnification is a contract right and that advances of expenses incurred in
defending a proceeding are 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 advanced if it shall be determined by a final
adjudication that the person who received such expenses is not entitled to be
indemnified. Article VII of the By-laws of the Registrant and Article IX of the
Registrant's Restated Certificate of Incorporation also expressly provide 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 currently maintains directors' and officers'
liability insurance to supplement the protection provided in the Registrant's
Restated Certificate of Incorporation, as amended and its By-laws 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.
-----------------------------------
Item 8. Exhibits.
--------
Exhibit No. Description
----------- -----------
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).
<PAGE>
24 Power of Attorney (included in signature pages).
Item 9. Undertakings.
------------
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(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. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if
the total dollar value of securities offered would not
exceed that which was registered) and any deviation from
the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a
20% change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the
effective 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;
(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 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
<PAGE>
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 of whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
The Registrant. 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 1, 1998.
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 1, 1998
--------------------------------- Board, Chief Executive Officer
Jeffrey D. McKeever (Principal Executive Officer)
By: /s/ William H. Mallender Director April 1, 1998
---------------------------------
William H. Mallender
By: /s/ Steven G. Mihaylo Director April 1, 1998
---------------------------------
Steven G. Mihaylo
By: /s/ Cyrus F. Freidheim, Jr. Director April 1, 1998
---------------------------------
Cyrus F. Freidheim, Jr.
By: /s/ Lynda M. Applegate Director April 1, 1998
---------------------------------
Lynda M. Applegate
By: /s/ Roy A. Herberger, Jr. Director April 1, 1998
---------------------------------
Roy A. Herberger, Jr.
By: /s/ James R. Daniel Senior Vice President, Chief April 1, 1998
--------------------------------- Financial Officer, and
James R. Daniel Treasurer (Principal Financial
Officer)
By: /s/ Raymond L. Storck Vice President, Controller, and April 1, 1998
-------------------------------- Assistant Treasurer (Principal
Raymond L. Storck Accounting Officer)
</TABLE>
EXHIBIT 5
April 9, 1998
MICROAGE, INC.
2400 South MicroAge Way
Tempe, AZ 85282
Ladies and Gentlemen:
Reference is made to your proposed offering pursuant to the Amended and
Restated MicroAge, Inc. 1995 Director Incentive Plan (the "Plan") of up to
170,000 shares of the Registrant's Common Stock, $.01 par value (the "Plan
Shares"), as contemplated in the Registration Statement on Form S-8 and the
Exhibits thereto to be filed by the Registrant with the Securities and Exchange
Commission (the "SEC"), under the Securities Act of 1933, as amended, on April
1, 1998 (the "Registration Statement"). It is our opinion that:
1. The Registrant has been duly organized and is validly existing
as a corporation under the laws of the State of Delaware.
2. The Plan Shares, when issued and sold in accordance with the
terms of the Plan, will be legally issued, fully paid, and
non-assessable.
In rendering this opinion, we have reviewed and relied upon such
documents and records of the Registrant as we have deemed necessary and have
assumed the following:
(i) the genuineness of all signatures and the authenticity of
documents submitted to us as originals, and the conformity to originals of all
documents submitted to us as copies;
(ii) the accuracy, completeness, and genuineness of all
representations and certifications with respect to factual matters, made to us
by officers of the Registrant and public officials; and
(iii) the accuracy and completeness of Registrant's records.
The opinions expressed herein are limited solely to the laws of the
State of Delaware. We express no opinion on the laws of any other jurisdiction
or the applicability or effect of any such laws or principles.
The opinions expressed herein are based upon the law and other matters
in effect on the date hereof, and we assume no obligation to revise or
supplement this opinion should such law
<PAGE>
be changed by legislative action, judicial decision, or otherwise, or should any
facts or other matters upon which we have relied be changed.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
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 9, 1997 appearing in
MicroAge, Inc.'s Annual Report on Form 10-K for the fiscal year ended November
2, 1997.
/s/ Price Waterhouse LLP
PRICE WATERHOUSE LLP
Phoenix, Arizona
April 10, 1998
