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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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DAISYTEK INTERNATIONAL CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 75-2421746
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
500 NORTH CENTRAL EXPRESSWAY, PLANO, TEXAS 75074
(Address of principal executive offices) (Zip Code)
1.NON-EMPLOYEE DIRECTOR STOCK OPTION AND RETAINER PLAN OF DAISYTEK
INTERNATIONAL CORPORATION
2. 1997 STOCK OPTION PLAN OF DAISYTEK INTERNATIONAL CORPORATION
3. WRITTEN STOCK OPTION AGREEMENTS
(Full title of the plans)
MARK C. LAYTON
DAISYTEK INTERNATIONAL CORPORATION
500 NORTH CENTRAL EXPRESSWAY
PLANO, TEXAS 75074
(Name and address of agent for service)
(972) 881-4700
(Telephone number, including area code of agent for service)
copy to:
MORRIS BIENENFELD, ESQ.
WOLFF & SAMSON
5 BECKER FARM ROAD
ROSELAND, NJ 07068
(973) 533-6532
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered (1) Per Share (2) Price (2) Fee
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 2,276,351 (3) $23 1/4 $52,922,531.25 $15,612.15
par value $.01
per share
</TABLE>
- ----------
(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended (the
"Securities Act"), this Registration Statement also covers such
additional shares as may hereafter be offered or issued to prevent
dilution resulting from stock splits, stock dividends or similar
transactions.
(2) The aggregate offering price and the registration fee have been
computed pursuant to Rules 457(c) and 457(h)(1) under the Securities
Act upon the basis of (i) an aggregate option exercise price of
$4,609,863 in respect of 324,324 shares to be issued upon the exercise
of outstanding options issued under the Plans (as hereinafter defined)
and (ii) $24.75 per share, being the average of high and low prices of
Common Stock reported on the Nasdaq National Market on May 15, 1998 in
respect of the remaining 1,952,027 shares registered hereunder. In
accordance with Rule 457(h)(3), no additional filing fee is payable in
respect of the resale of the shares to be issued upon the exercise of
options issued, and to be issued, under the Plans.
(3) Includes (i) 2,000,000 shares to be issued pursuant to the 1997 Stock
Option Plan of Daisytek International Corporation (the "1997 Plan"),
(ii) 94,525 shares to be issued pursuant to the Non-Employee Director
Stock Option and Retainer Plan of Daisytek International Corporation
(the "Director Plan") and (iii) 181,826 shares to be issued pursuant to
written Stock Option Agreements between the Registrant and certain
employees and directors (the "Individual Plans", and together with the
1997 Plan and the Director Plan, the "Plans").
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PART II
INFORMATION REQUIRED IN
THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated herein by reference:
1. The Company's prospectus dated March 26, 1998 as filed with
the Commission (File No. 333-46927) pursuant to Rule 424(b) under the Securities
Act.
2. The Company's Annual Report on Form 10-K for the fiscal
year ended March 31, 1997.
3. The Company's Quarterly Reports on Form 10-Q for the fiscal
quarters ended June 30, 1997, September 30, 1997 and December 31, 1997.
4. The Company's Current Reports on Form 8-K dated April 29,
1997, May 13, 1997, July 23, 1997, November 5, 1997, January 28, 1998, February
9, 1998, March 26, 1998 and May 5, 1998.
5. The description of the Company's common stock, par value
$.01 per share, contained in the Company's Prospectus dated January 26, 1995 as
filed with the Commission (File No. 33-86926) on January 31, 1995 pursuant to
Rule 424(b) under the Securities Act.
All documents filed by the Company after the date hereof
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
incorporated by reference herein and to be a part hereof from the date of filing
of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company is organized under the laws of the State of
Delaware. The Delaware General Corporation Law, as amended (the "Act"), provides
that a Delaware corporation has the power generally to indemnify its directors,
officers, employees and other agents (each, a "Corporate Agent") against
expenses and liabilities (including amounts paid in settlement) in connection
with any proceeding involving such person by reason of his being a Corporate
Agent, other than a proceeding by or in the right of the corporation, if such
person acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the corporation and, with respect to any
criminal proceeding, such person had no reasonable cause to believe his conduct
was unlawful. In the case of an action brought by or in the right of the
corporation, indemnification of a Corporate Agent against expenses is permitted
if such person acted in good faith and in a manner he reasonably believed to be
in or not opposed to the best interests of the corporation, however, no
indemnification is permitted in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation,
unless and only to the extent that the Court of Chancery or the court in which
such proceeding was brought shall determine upon application that despite the
adjudication of liability, but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to such indemnification. To the
extent that a Corporate Agent has been successful on the merits of such
proceeding, whether or not by or in the right of the corporation, or in the
defense of any claim, issue or matter therein, the corporation is required to
indemnify the Corporate Agent for expenses in connection therewith. Expenses
incurred by a Corporate Agent in connection with a proceeding may, under certain
circumstances, be paid by the corporation in advance of the final disposition of
the proceeding as authorized by the board of directors. The power to indemnify
and advance expenses under the Act does not exclude other rights to which a
Corporate Agent may be entitled to under the certificate of incorporation,
bylaws, agreement, vote of stockholders or disinterested directors or otherwise.
Under the Act, a Delaware corporation has the power to
purchase and maintain insurance on behalf of any Corporate Agent against any
liabilities asserted against and incurred by him in such capacity, whether or
not the corporation has the power to indemnify him against such liabilities
under the Act.
As permitted by the Act, the Company's Certificate of
Incorporation contains provisions which limit the personal liability of
directors for monetary damages for breach of fiduciary duties as directors
except to the extent such limitation of liability is prohibited by the Act. In
accordance with the Act,
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these provisions do not limit the liability of any director for any breach of
the director's duty of loyalty to the Company or its stockholders; for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, for certain unlawful payments of dividends or stock
repurchases under Section 174 of the Act; or for any transaction from which the
director derives an improper personal benefit. These provisions do not limit the
rights of the Company or any stockholder to seek an injunction or any other
non-monetary relief in the event of a breach of a director's fiduciary duty. In
addition, these provisions apply only to claims against a director arising out
of his role as a director and do not relieve a director from liability for
violations of statutory law, such as certain liabilities imposed on a director
under the federal securities laws.
In addition, the Company's Certificate of Incorporation and
By-laws provide for the indemnification of Corporate Agents for certain
expenses, judgments, fines and payments incurred by them in connection with the
defense or settlement of claims asserted against them in their capacities as
Corporate Agents to the fullest extent authorized by the Act. The Company seeks
to limit its exposure to liability for indemnification of directors and officers
by purchasing directors and officers liability insurance coverage.
Reference is made to Sections 102(b)(7) and 145 of the Act in
connection with the above summary of indemnification, insurance and limitation
of liability.
The purpose of these provisions is to assist the Company in
retaining qualified individuals to serve as officers, directors or other
Corporate Agents of the Company by limiting their exposure to personal liability
for serving as such.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following are filed as exhibits to this registration
statement.
<TABLE>
<CAPTION>
Exhibit Description
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<S> <C>
5 Opinion of Wolff & Samson, Counsel to the Company
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Wolff & Samson (included in Exhibit No. 5)
24 Power of Attorney (included on the signature page)
</TABLE>
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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 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, 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 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, each filing of
the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of any employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this registration statement relating to the
securities offered therein, and the offering of such securities at the time
shall be deemed to be the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the
Securities 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 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 registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
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SIGNATURES
THE REGISTRANT
Pursuant to the requirements of the Securities Act, 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 Plano, State of Texas on May 20, 1998.
DAISYTEK INTERNATIONAL CORPORATION
By: /s/ Thomas J. Madden
----------------------------------------
Thomas J. Madden, Vice President-
Finance
Each person whose signature to this Registration Statement
appears below hereby appoints Thomas J. Madden and Harvey Achatz, or either of
them, as his attorney-in-fact to sign on his behalf individually and in the
capacity stated below and to file all amendments and post-effective amendments
to this Registration Statement, and any and all instruments or documents filed
as a part of or in connection with this Registration Statement or the amendments
thereto, and the attorney-in-fact, or either of them, may make such changes and
additions to this Registration Statement as the attorney-in-fact, or either of
them, may deem necessary or appropriate.
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>
Signature Title
- --------- -----
<S> <C> <C>
/s/ David A. Heap Chairman of the May 20, 1998
- -------------------------- Board
David A. Heap
/s/ Mark C. Layton President, Chief May 20, 1998
- -------------------------- Executive Officer,
Mark C. Layton Chief Operating
Officer and
Director (Principal
Executive Officer)
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ Thomas J. Madden Vice President - May 20, 1998
- -------------------------- Finance, Chief
Thomas J. Madden Financial Officer
(Principal
Financial Officer
and Principal
Accounting Officer)
/s/ Chris Yates Senior Vice May 20, 1998
- -------------------------- President-Business
Chris Yates Development and
Director
/s/ James R. Powell Senior Vice May 20, 1998
- -------------------------- President-Sales
James R. Powell and Marketing
and Director
/s/ Timothy M. Murray Director May 20, 1998
- --------------------------
Timothy M. Murray
/s/ Edgar D. Jannotta, Jr. Director May 20, 1998
- --------------------------
Edgar D. Jannotta, Jr.
/s/ Peter P.J. Vikanis Director May 20, 1998
- --------------------------
Peter P.J. Vikanis
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Page Description
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<S> <C>
5 Opinion of Wolff & Samson, Counsel to the Company
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Wolff & Samson (included in Exhibit No. 5)
24 Power of Attorney (included on the signature page)
</TABLE>
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EXHIBIT 5
WOLFF & SAMSON, P.A.
280 CORPORATE CENTER
5 BECKER FARM ROAD
ROSELAND, NEW JERSEY 07068-1776
May 20, 1998
Daisytek International Corporation
500 North Central Expressway
Plano, Texas 75074
Gentlemen:
We have acted as counsel to Daisytek International
Corporation, a Delaware corporation (the "Company"), in connection with the
preparation and filing by the Company of a Registration Statement on Form S-8
(the "Registration Statement") relating to the issuance of up to 2,276,351
shares of Common Stock, par value $.01 per share, of the Company (the "Shares")
pursuant to the terms of (i) the 1997 Stock Option Plan of Daisytek
International Corporation (the "1997 Plan"), (ii) the Non-Employee Director
Stock Option and Retainer Plan of Daisytek International Corporation (the
"Director Plan") and (iii) certain written Stock Option Agreements between the
Company and certain of its employees and directors (the "Individual Plans" and
together with the 1997 Plan and the Director Plan, the "Plans").
We have examined copies of the Certificate of Incorporation
and By-Laws of the Company, as amended and restated, the Registration Statement,
the Plans and such other corporate records and documents as we deemed necessary
to form the basis for the opinion hereinafter expressed. In our examination of
such material, we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals and the conformity to
original documents of all copies submitted to us. As to various questions of
fact material to such opinion, we have relied upon statements and certificates
of officers and representatives of the Company and others.
Based upon the foregoing, we are of the opinion that all of
the Shares have been duly authorized and, when issued and sold in accordance
with the terms described in the Plans, will be validly issued, fully paid and
non-assessable.
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We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to the reference to us in the Prospectus dated
January 26, 1995 (File No. 33-86926) included in the Registration Statement as a
document incorporated by reference. In giving such consent, we do not admit
hereby that we come within the category of persons whose consent is required
under Section 7 of the Securities Act of 1933 or the rules and regulations of
the Securities and Exchange Commission thereunder.
Very truly yours,
/s/ WOLFF & SAMSON, P.A.
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EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports dated April 25, 1997,
included in Daisytek International Corporation's Form 10-K for the year ended
March 31, 1997, and to all references to our Firm included in this registration
statement.
Dallas, Texas /s/ ARTHUR ANDERSEN LLP
May 20, 1998
