As filed with the Securities and Exchange Commission on March 3, 1999
Registration No.333-_______
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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. 1998 ASSOCIATE STOCK AWARD PLAN
(Full Title of the Plan)
James H. Domaz Copy To:
Vice President and Corporate Counsel Matthew P. Feeney
Microage, Inc. Snell & Wilmer L.L.P.
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)
CALCULATION OF REGISTRATION FEE
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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 2,000,000 $12.1875 $24,375,000 $7,190.63
($.01 par value
per share)
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- ----------
(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 February 22, 1999.
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<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
1, 1998; and
2. Form 8-K dated February 19, 1999.
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 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
<PAGE>
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
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4.1 Restated Certificate of Incorporation of
MicroAge, Inc. (Incorporated by reference to
Exhibit 3.1 to the Quarterly Report on Form 10-Q
for the quarter ended May 1, 1994)
4.2 By-Laws of MicroAge, Inc., amended and restated
as of July 16, 1998 (Incorporated by reference to
Exhibit 4.2 to Registration Statement No.
333-62763, filed on September 2, 1998)
<PAGE>
4.3 Amended and Restated Rights Agreement, dated as
of September 28, 1994, between MicroAge, Inc. and
First Interstate Bank of California (Incorporated
by reference to Exhibit 1.1 to the Form 8-A filed
January 13, 1994)
4.3.1 First Amendment, dated as of November 5, 1996, by
and between MicroAge, Inc. and American Stock
Transfer and Trust Company to Amended and Restated
Rights Agreement, dated as of September 28, 1994,
between MicroAge, Inc. and First Interstate Bank
of California (Incorporated by reference to
Exhibit 4.2.1 to the Annual Report on Form 10-K
for year ended November 3, 1996)
4.3.2 Second Amendment, dated January 28, 1999, by and
between MicroAge, Inc. and American Stock
Transfer and Trust Company to Amended and
Restated Rights Agreement, dated as of September
28, 1994, between MicroAge, Inc. and First
Interstate Bank of California.
5 Opinion of Snell & Wilmer L.L.P.
23.1 Consent of PricewaterhouseCoopers 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 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
<PAGE>
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 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 February 26, 1999.
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.
SIGNATURE TITLE DATE
/s/ Jeffrey D. McKeever Director, February 26, 1999
- ---------------------------- Chairman of the Board and
Jeffrey D. McKeever Chief Executive Officer
(Principal Executive
Officer)
/s/ Lynda M. Applegate
- ----------------------------
Lynda M. Applegate Director February 26, 1999
/s/ Cyrus F. Freidheim, Jr.
- ----------------------------
Cyrus F. Freidheim, Jr. Director February 26, 1999
/s/ Roy A. Herberger, Jr.
- ----------------------------
Roy A. Herberger, Jr. Director February 26, 1999
<PAGE>
/s/ William H. Mallender
- ----------------------------
William H. Mallender Director February 26, 1999
/s/ Steven G. Mihaylo
- ----------------------------
Steven G. Mihaylo Director February 26, 1999
/s/ Dianne C. Walker
- ----------------------------
Dianne C. Walker Director February 26, 1999
/s/ James R. Daniel Executive Vice President, February 26, 1999
- ---------------------------- Chief Financial Officer
James R. Daniel and Treasurer
(Principal Financial Officer)
/s/ Raymond L. Storck Vice President - Controller February 26, 1999
- ---------------------------- and Assistant Treasurer
Raymond L. Storck (Principal Accounting Officer)
AMENDMENT TO AMENDED AND RESTATED RIGHTS AGREEMENT
THIS AMENDMENT TO AMENDED AND RESTATED RIGHTS AGREEMENT (the
"AMENDMENT"), dated as of this 28th day of January, 1999, is between MicroAge,
Inc., a Delaware corporation (the "COMPANY"), and American Stock Transfer and
Trust Company (the "RIGHTS AGENT"), and amends that certain Rights Agreement (as
defined herein).
RECITALS
WHEREAS, the Board of Directors adopted a shareholder rights
plan in February 1989, as amended and restated in 1994, and as amended in 1996,
and paid a dividend of one right (the "RIGHT" or "RIGHTS") for each share of
common stock to stockholders of record of the common shares then issued and
outstanding, each Right representing the right to purchase one one-hundredth
(.01) of a share of Series C Junior Participating Preferred Stock upon the terms
and subject to the conditions set forth in the Amended and Restated Rights
Agreement, dated as of September 28, 1994, between the Company and First
Interstate Bank of California, as amended (the "RIGHTS AGREEMENT"); and
WHEREAS, the Board of Directors has authorized the amendment
of the Rights Agreement, such that the term of such agreement is extended
through the end of fiscal year
1999, or October 31, 1999.
NOW THEREFORE, in consideration of the premises and the mutual
agreements herein set forth herein and in the Rights Agreement, the parties
hereby agree as follows:
AGREEMENT
1. AMENDMENT. Section 7(a) of the Rights Agreement is hereby amended in
its entirety as follows:
Section 7. EXERCISE OF RIGHTS: PURCHASE PRICE; EXPIRATION DATE
OF RIGHTS. (a) The registered holder of any Right Certificate may exercise the
Rights evidenced thereby (except as otherwise provided herein) in whole or in
part at any time after the Distribution Date upon surrender of the Right
Certificate, with the form of election to purchase on the reverse side thereof
duly executed, to the Rights Agent at the principal office of the Rights Agent,
together with payment of the Purchase Price for each one one-hundredth of a
Preferred Share as to which the Rights are exercised, at or prior to the
earliest of (i) the close of business on October 31, 1999 (the "Final Expiration
Date"), (ii) the time at which the Rights are redeemed as provided in Section 23
hereof (the "Redemption Date"), or (iii) the time at which such Rights are
exchanged as provided in Section 24 hereof.
<PAGE>
2. FULL FORCE AND EFFECT. Except as expressly provided in this
Amendment, the Rights Agreement will remain unchanged and in full force and
effect.
3. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, all of which taken together will constitute one and the same
instrument, and any of the parties hereto may execute this Amendment by signing
any such counterpart.
4. GOVERNING LAW. It is the intention of the parties that the laws of
Delaware will govern the validity of this Amendment, the construction of its
terms, and the interpretation of
the rights and duties of the parties.
IN WITNESS WHEREOF the parties hereto have executed this Amendment as
of the date first above written.
MICROAGE, INC.
By: /s/ Jeffrey D. McKeever
---------------------------
Name: Jeffrey D. McKeever
---------------------------
Its: Chief Executive Officer
---------------------------
AMERICAN STOCK TRANSFER AND TRUST
COMPANY
By: /s/ Herbert J. Lemmer
---------------------------
Name: Herbert J. Lemmer
---------------------------
Its: Vice President
---------------------------
2
EXHIBIT 5
February 26, 1999
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. 1998 Associate Stock Award Plan (the "PLAN") of up to
2,000,000 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
February 26, 1999 (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.
<PAGE>
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 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.
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated January 8, 1999 appearing in MicroAge,
Inc.'s Annual Report on Form 10-K for the fiscal year ended November 1, 1998.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Phoenix, Arizona
February 25, 1999
