<PAGE>
As filed with the Securities and Exchange Commission on July 1, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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SOFTWARE SPECTRUM, INC.
(Exact name of registrant as specified in its charter)
TEXAS 75-1878002
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2140 MERRITT DRIVE 75041
GARLAND, TEXAS (Zip Code)
(Address of Executive Offices)
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SOFTWARE SPECTRUM, INC. 1998 LONG-TERM INCENTIVE PLAN
(Full Title of the Plan)
ROBERT D. GRAHAM
VICE PRESIDENT AND GENERAL COUNSEL
SOFTWARE SPECTRUM, INC.
2140 MERRITT DRIVE
GARLAND, TEXAS 75041
(972) 840-6600
(Name, address and telephone number, including area code, of agent for service)
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WITH COPIES TO:
LINDA A. WILKINS, ESQ.
LOCKE LIDDELL & SAPP LLP
2200 ROSS AVENUE, SUITE 2200
DALLAS, TEXAS 75201-6776
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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TITLE PROPOSED MAXIMUM PROPOSED MAXIMUM
OF SECURITIES AMOUNT TO OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED BE REGISTERED PER SHARE (1) PRICE (1) REGISTRATION FEE
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<S> <C> <C> <C> <C>
Common Stock, 200,000 shares $15.688 $3,137,600.00 $873.00
$.01 Par Value
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</TABLE>
(1) ESTIMATED IN ACCORDANCE WITH RULE 457(h) UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, SOLELY FOR PURPOSES OF CALCULATING THE REGISTRATION FEE. BASED ON
THE AVERAGE OF THE HIGH AND LOW PRICES REPORTED ON THE NASDAQ NATIONAL MARKET ON
JUNE 24, 1999. IN ADDITION, PURSUANT TO RULE 416 UNDER THE SECURITIES ACT OF
1933, AS AMENDED, THIS REGISTRATION STATEMENT ALSO COVERS SHARES OF COMMON STOCK
OF THE COMPANY ISSUABLE TO PREVENT DILUTION RESULTING FROM STOCK SPLITS, STOCK
DIVIDENDS OR SIMILAR TRANSACTIONS.
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<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information specified by Item 1 and Item 2 of Part I of Form S-8 is
omitted from this filing in accordance with the provisions of Rule 428 under the
Securities Act of 1933, as amended (the "Securities Act"), and the Introductory
Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The documents set forth below are incorporated by reference in this
Registration Statement. All documents subsequently filed by Software Spectrum,
Inc. (the "Company") pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference into 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 a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
(1) The Company's Form 10-K Annual Report filed July 28, 1998 with
respect to the fiscal year ended April 30, 1998 pursuant to
Section 13(a) of the Exchange Act;
(2) All other reports filed with the Securities and Exchange
Commission pursuant to Section 13(a) or 15(d) of the Exchange
Act since the end of the fiscal year covered by the report
described in (1) above; and
(3) The description of the Common Stock which is contained in the
Company's Registration Statement on Form 8-A filed with the
Securities and Exchange Commission on June 18, 1991 pursuant
to Section 12 of the Exchange Act, and all amendments thereto
and reports that have been filed for the purpose of updating
such description.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
<PAGE>
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article 2.02-1 of the Texas Business Corporation Act (the "TBCA")
permits a corporation to indemnify certain persons, including officers and
directors and former officers and directors, and to purchase insurance with
respect to liability arising out of their capacity or status as officers and
directors. The TBCA further provides that the indemnification permitted
thereunder shall not be deemed exclusive of any other rights to which officers
and directors may be entitled under the corporation's articles of incorporation,
bylaws, any agreement or otherwise.
Article Eleven of the Company's Restated Articles of Incorporation
provides as follows:
To the full extent permitted by the Texas Business Corporation
Act, the Corporation shall indemnify any director or officer against
judgments, penalties (including excise and similar taxes), fines,
settlements and reasonable expenses (including court costs and
attorneys' fees) actually incurred by any such person who was, is or is
threatened to be made a named defendant or respondent in a proceeding
because the person is or was a director or officer and shall advance to
such person such reasonable expenses as are incurred by him in
connection therewith. The rights of directors and officers set forth in
this Article shall not be exclusive of any other right which directors
or officers may have or hereafter acquire relating to the subject
matter hereof. As used in this Article, the terms "director" and
"officer" shall mean any person who is or was a director or officer of
the Corporation and any person who, while a director or officer of the
Corporation, is, or was serving at the request of the Corporation as a
director, officer, partner, venturer, proprietor, trustee, employee,
agent or similar functionary of any foreign or domestic corporation,
partnership, joint venture, sole proprietorship, trust, employee
benefit plan or other enterprise. As used in this Article, the term
"proceeding" means any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative, arbitrative or
investigative, any appeal in any such action, suit or proceeding and
any inquiry or investigation that could lead to such an action, suit or
proceeding.
In addition, Article 9 of the Company's Restated Bylaws provides that
the Company shall indemnify a director who was, is or is threatened to be made a
named defendant or respondent in a proceeding because the person is or was a
director of the Company only if it is determined in accordance with the Restated
Bylaws that (a) the director conducted himself in good faith and reasonably
believed, in the case of conduct in his capacity as a director of the Company,
that his conduct was in the Company's best interests, and in all other cases,
that his conduct was in the Company's best interests, and (b) in the case of any
criminal proceeding, the director had no reasonable cause to believe his conduct
to be unlawful.
Article Ten of the Company's Restated Articles of Incorporation
includes a provision eliminating the monetary liability of a director of the
Company to the Company and its shareholders for acts or omissions in the
director's capacity as a director to the fullest extent permitted by Texas law.
<PAGE>
The Company has purchased directors' and officers' liability insurance.
Subject to conditions, limitations and exclusions in the policy, the insurance
covers amounts required to be paid for a claim or claims made against directors
and officers for any act, error, omission, misstatement, misleading statement or
breach of duty by directors and officers in their capacity as directors and
officers of the Company.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
5.1* Opinion of Locke Liddell & Sapp LLP.
23.1* Consent of Grant Thornton LLP.
23.2* Consent of Locke Liddell & Sapp LLP (included in opinion filed
as Exhibit 5.1).
24.1* Power of Attorney (included on the signature page of this
Registration Statement).
99.1 Software Spectrum, Inc. 1998 Long-Term Incentive Plan
(incorporated by reference to Exhibit 10.17 to the Company's
Form 10-Q Quarterly Report, filed December 14, 1998, with
respect to the fiscal quarter ended October 31, 1998).
* Filed herewith
ITEM 9. UNDERTAKINGS.
The Company 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;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this 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.
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
<PAGE>
low or high end of the estimated maximum offering
range may be reflected in the form of prospectus
filed with the Securities and Exchange 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
this Registration Statement or any material change to
such information in this Registration Statement;
PROVIDED, HOWEVER, that paragraphs (1)(i) and (1)(ii) above do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Securities and
Exchange Commission by the Company pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by
reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities 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.
(4) That, for purposes of determining any liability under the
Securities Act, each filing of the Company's annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act
(and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Exchange
Act) that is incorporated by reference in this 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.
(5) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the Company pursuant to the foregoing
provisions, or otherwise, the Company has been advised that in
the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities
(other than the payment by the Company of expenses incurred or
paid by a director, officer or controlling person of the
Company 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 Company will, unless in the opinion of its
counsel the matter has been settled by controlling
<PAGE>
precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed
by the final adjudication of such issue.
<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 Garland, State of Texas, on this 30th day of June,
1999.
SOFTWARE SPECTRUM, INC.
By: /s/ Robert D. Graham
---------------------------------------------
Vice President of Strategic Relationships and
General Counsel
POWER OF ATTORNEY
KNOW ALL MEN AND WOMEN BY THESE PRESENTS, that each person whose
signature appears below hereby constitutes and appoints each of Judy O. Sims and
Robert D. Graham, and each of them, his true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto, and all other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done on
and about the premises as fully and to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
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<S> <C> <C>
/s/ JUDY O. SIMS
--------------------- Chairman of the Board and Chief June 30, 1999
Judy O. Sims Executive Officer (Principal
Executive Officer)
/s/ KEITH R. COOGAN
--------------------- President and Chief Operating June 30, 1999
Keith R. Coogan Officer and Director
/s/ JAMES W. BROWN Vice President and Chief June 30, 1999
--------------------- Financial Officer (Principal
James W. Brown Financial Officer and Principal
Accounting Officer)
/s/ MELLON C. BAIRD
--------------------- Director June 30, 1999
Mellon C. Baird
/s/ CARL S. LEDBETTER
--------------------- Director June 30, 1999
Carl S. Ledbetter
/s/ FRANK TINDLE
--------------------- Director June 30, 1999
Frank Tindle
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
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<S> <C> <C>
/s/ BRIAN N. DICKIE
--------------------- Director June 30, 1999
Brian N. Dickie
</TABLE>
<PAGE>
INDEX TO EXHIBITS
Exhibit
Number Exhibit
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5.1* Opinion of Locke Liddell & Sapp LLP.
23.1* Consent of Grant Thornton LLP.
23.2* Consent of Locke Liddell & Sapp LLP (included in
opinion filed as Exhibit 5.1).
24.1* Power of Attorney (included on the signature page of
this Registration Statement).
99.1 Software Spectrum, Inc. 1998 Long-Term Incentive Plan
(incorporated by reference to Exhibit 10.17 to the
Company's Form 10-Q Quarterly Report, filed December
14, 1998, with respect to the fiscal quarter ended
October 31, 1998).
* Filed herewith
<PAGE>
EXHIBIT 5.1
June 30, 1999
Software Spectrum, Inc.
2140 Merritt Drive
Garland, Texas 75041
Re: Registration of 200,000 shares of Common Stock, par value $.01 per
share, pursuant to a Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel for Software Spectrum, Inc., a Texas corporation
(the "Company"), in connection with the registration under the Securities Act of
1933, as amended (the "Securities Act"), pursuant to a Registration Statement on
Form S-8 (the "Registration Statement"), of 200,000 shares of Common Stock, par
value $.01 per share, of the Company (the "Common Stock") to be offered pursuant
to the Software Spectrum 1998 Long-Term Incentive Plan (the "Plan").
In connection with this opinion, we have examined the Registration
Statement, the Company's Articles of Incorporation and Bylaws, each as amended
and restated to date, and such other documents, records, certificates, memoranda
and other instruments as we deem relevant or necessary as a basis for this
opinion. We have assumed the genuineness and authenticity of all documents
submitted to us as originals, the conformity to originals of all documents
submitted to us as copies thereof and the due execution and delivery of all
documents where due execution and delivery are a prerequisite to the
effectiveness thereof.
Based upon our examination of such documents and the investigation of such
matters of law as we have deemed relevant or necessary in rendering this
opinion, we hereby advise you that we are of the opinion that:
1. The Company is a corporation duly incorporated and validly existing in
good standing under the laws of the State of Texas.
2. Assuming, with respect to shares of Common Stock issued after the date
hereof, (i) the receipt of proper consideration for the issuance thereof in
excess of par value thereof, (ii) the availability of a sufficient number of
shares of Common Stock authorized by the
<PAGE>
Software Spectrum, Inc.
June 30, 1999
Page 2
Company's Articles of Incorporation then in effect, (iii) compliance with the
terms of any agreement entered into in connection with any options or
restricted stock under the Plan, and (iv) that no change occurs in the
applicable law or the pertinent facts, the shares of Common Stock purchasable
upon the exercise of any option granted under or issued upon the awarding of
any restricted stock under the Plan will upon issuance be duly authorized and
validly issued, fully paid and non-assessable shares of Common Stock.
We consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement filed by the Company with the Securities and Exchange
Commission for the registration under the Securities Act of 200,000 shares of
Common Stock of the Company covered by the Plan. By so consenting, we do not
thereby admit that our firm's consent is required by Section 7 of the
Securities Act.
Very truly yours,
/s/ LOCKE LIDDELL & SAPP LLP
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED ACCOUNTANTS
We have issued our reports dated June 24, 1998 accompanying the consolidated
financial statements and schedule of Software Spectrum, Inc. and subsidiaries
included in the Annual Report on Form 10-K for the year ended April 30, 1998
which are incorporated by reference in this Registration Statement. We consent
to the incorporation by reference in the Registration Statement of the
aforementioned reports.
/s/ GRANT THORNTON LLP
Dallas, Texas
June 30, 1999
