AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 4, 1998
REGISTRATION NO. ______________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------
MICROTEST, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN CHARTER)
DELAWARE 86-0485884
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
4747 NORTH 22ND STREET, PHOENIX, ARIZONA 85016
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICE) (ZIP CODE)
MICROTEST, INC. 1998 DIRECTOR COMPENSATION PLAN
(FULL TITLE OF PLAN)
STEVEN D. PIDGEON, ESQ.
SNELL & WILMER L.L.P.
ONE ARIZONA CENTER
PHOENIX, ARIZONA 85004-0001
(NAME AND ADDRESS OF AGENT FOR SERVICE)
(602) 382-6000
(TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
Approximate Date of Commencement of Proposed Sale: As soon as practicable after
the Registration Statement becomes effective.
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CALCULATION OF REGISTRATION FEE
================================================================================
PROPOSED PROPOSED
TITLE OF AMOUNT MAXIMUM MAXIMUM AMOUNT OF
SECURITIES TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED(1) PER SHARE(2) OFFERING PRICE(2) FEE
- ---------------- ------------- -------------- ----------------- ------------
Common Stock 150,000 $2.844 $426,600 $118.59
$.001 par value
================================================================================
- ----------
(1) In addition, pursuant to Rule 416(a) under the Securities Act of 1933,
this registration statement also covers an indeterminate number of
shares as may be required by reason of any stock dividend,
recapitalization, stock split, reorganization, merger, consolidation,
combination or exchange of shares or other similar change affecting the
stock.
(2) Estimated pursuant to Rule 457(h) solely for the purpose of calculating
the registration fee using the average of the high and low price of the
Registrant's Common Stock on November 30, 1998.
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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 participants in accordance with Form S-8 and Rule
428 under the Securities Act of 1933, as amended.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents have been filed by Microtest, Inc. (the
"Registrant") with the Securities and Exchange Commission pursuant to the
Securities Exchange Act of 1934 and are hereby incorporated by reference into
this Registration Statement:
(a) the Registrant's latest annual report on Form 10-K for the
fiscal year ended December 31, 1997;
(b) the Registrant's quarterly report on Form 10-Q for the
fiscal quarters ended March 28, 1998, June 27, 1998, and
September 26, 1998; and
(c) the description of the Registrant's capital stock contained
in the Registrant's Registration Statement on Form 8-A filed
with the Securities and Exchange Commission pursuant to
Section 12(g) of the Securities Exchange Act of 1934.
All documents subsequently filed by the Registrant 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
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.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Bylaws require the Registrant to indemnify its
directors and officers to the fullest extent provided by Delaware law. The
Registrant also has entered into separate indemnification agreements with its
directors and certain officers which would require the Registrant, among other
things, to indemnify them against certain liabilities that may arise by reason
of their status or service as directors or officers, other than liabilities
arising from fraud, actual dishonesty, willful misconduct or violation of
Section 16(b) of the Securities Exchange Act of 1934. The agreements would also
require the Registrant to advance directors and officers' expenses in certain
circumstances.
The Registrant currently maintains directors' and officers' liability
insurance.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The Exhibit Index is located on page 7.
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 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;
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provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the registration statement is
on Form S-3 or Form S-8 and the information required to
be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for purposes 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 such Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other
than 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
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 Phoenix, State of Arizona, on December 4, 1998.
MICROTEST, INC.
a Delaware corporation
By /s/ Richard G. Meise
-------------------------------
Richard G. Meise
Chairman of the Board and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated.
Signature Title Date
--------- ----- ----
/s/ Richard G. Meise
- ---------------------- Chairman of the Board and December 4, 1998
Richard G. Meise Chief Executive Officer
/s/ Steven G. Mihaylo
- ---------------------- Director December 4, 1998
Steven G. Mihaylo
/s/ Roger C. Ferguson
- ---------------------- Director December 4, 1998
Roger C. Ferguson
/s/ William C. Turner
- ---------------------- Director December 4, 1998
William C. Turner
/s/ Dianne C. Walker
- ---------------------- Director December 4, 1998
Dianne C. Walker
/s/ Kent C. Mueller
- ---------------------- Director December 4, 1998
Kent C. Mueller
/s/ John J. O'Block
- ---------------------- Vice President of Operations, December 4, 1998
John J. O'Block Chief Financial Officer,
Treasurer and Secretary
(Principal Financial Officer
and Principal Accounting Officer)
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EXHIBIT INDEX
EXHIBIT PAGE OR METHOD
NUMBER DESCRIPTION OF FILING
- ------ ----------- ---------
4.1 1998 Director Compensation Plan Page 8
5 Opinion re Legality Page 16
23.1 Consent of Independent Accountants Page 17
23.2 Consent of Snell & Wilmer L.L.P. See Exhibit 5
7
EXHIBIT 4.1
MICROTEST, INC.
1998 DIRECTOR COMPENSATION PLAN
ARTICLE 1. ESTABLISHMENT, PURPOSE, AND DURATION
1.1 Establishment of the Plan. Microtest, Inc., a Delaware corporation
(the "Company"), establishes the "Microtest, Inc. 1998 Director Compensation
Plan" (the "Plan") for its non-employee directors, as set forth in this
document. The Plan sets forth the Board Compensation payable to non-employee
directors and grants Nonqualified Stock Options to non-employee directors,
subject to the terms below.
Subject to the approval of the Plan by the Company's shareholders,
the Plan will become effective January 1, 1998 (the "Effective Date"). However,
Options granted under the Plan will be canceled if the Plan is not approved by
the Company's shareholders at its next regularly scheduled shareholders' meeting
after the Effective Date.
1.2 Purpose of the Plan. The purpose of the Plan is to further the
Company's short- and long-term objectives by attracting and retaining the
services of non-employee directors of outstanding competence and by linking the
personal interests of non-employee directors to those of the Company's
shareholders.
1.3 Duration of the Plan. The Plan will begin on the Effective Date and
shall remain in effect until all Stock under the Plan has been granted or
purchased according to the Plan's provisions or until the Board of Directors
exercises its right to terminate the Plan. However, no Option may be granted
under the Plan after December 31, 2007.
ARTICLE 2. DEFINITIONS AND CONSTRUCTION
2.1 Definitions. Whenever used in the Plan, the following terms shall
have the meanings set forth below and, when the meaning is intended, the initial
letter of the word is capitalized:
(a) "Anniversary Grant Date" means the date of the initial election or
appointment of a non-employee director to the Board and, thereafter, the third
business day following the public release of the Company's fiscal or quarterly
earnings information immediately following the third anniversary of the
non-employee director's initial election or appointment and each successive
third year anniversary thereafter. For those individuals who have completed
three years of service as a non-employee director as of the Effective Date,
their Grant Date shall be the third business day following the public release of
the Company's fiscal year-end earnings information immediately following the
Effective Date.
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(b) "Annual Grant Date" means the third business day following the public
release of the Company's fiscal year-end earnings information.
(c) "Annual Retainer" means the annual fee payable by the Company to a
non-employee director, including amounts payable for service as a chairperson of
a committee of the Board, but excluding Board and committee meeting fees.
(d) "Board" or "Board of Directors" means the Board of Directors of
Microtest, Inc., and includes any committee of the Board of Directors designated
by the Board to administer part or all of this Plan.
(e) "Change of Control" means and includes each of the following:
(1) any merger of the Company in which the Company is not the continuing
or surviving entity, or pursuant to which Stock would be converted into cash,
securities or other property, other than a merger of the Company in which the
holders of the Stock immediately prior to the merger have the same proportionate
ownership of beneficial interest of common stock or other voting securities of
the surviving entity immediately after the merger;
(2) any sale, lease, exchange or other transfer (in one transaction or a
series of related transactions) of assets or earning power aggregating more than
40% of the assets or earning power of the Company and its subsidiaries (taken as
a whole);
(3) the shareholders of the Company shall approve any plan or proposal
for liquidation or dissolution of the Company;
(4) any person (as such term is used in Section 13(d) and 14(d)(2) of the
Exchange Act), other than any employee benefit plan of the Company or any
subsidiary of the Company or any entity holding shares of capital stock of the
Company for or pursuant to the terms of any such employee benefit plan in its
role as an agent or trustee for such plan, becomes the beneficial owner (within
the meaning of Rule 13d-3 under the Exchange Act) of 20% or more of the
Company's outstanding Stock or any beneficial owner of 20% or more of the
Company's outstanding Stock as of the Effective Date shall becomes the
beneficial owner of 50% or more of the Company's outstanding Stock; or
(5) during any period of two consecutive years, individuals who at the
beginning of such period fail to constitute a majority of the Board, unless the
election, or the nomination for election by the Company's shareholders, of each
new director was approved by a vote of at least two-thirds of the directors then
still in office who were directors at the beginning of the period.
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(f) "Code" means the Internal Revenue Code of 1986, as amended from time
to time.
(g) "Committee" means the committee of the Board of Directors appointed
by the Board to administer this Plan.
(h) "Company" means Microtest, Inc., a Delaware corporation, or any
successor thereto as provided in Section 10.2 herein.
(i) "Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, or any successor Act thereto.
(j) "Fair Market Value" means the fair market value of such Stock as
determined by the Board in its discretion, under one of the following methods:
(i) the closing price for the Stock as reported on any national securities
exchange on which the Stock is then listed (which shall include the Nasdaq
National Market) for that date or, if no price is so reported for that date,
such price on the next preceding date for which the closing price was reported;
or (ii) the price as determined by such methods or procedures as may be
established from time to time by the Board.
(k) "Non-employee director" means any individual who is a member of the
Board of Directors, but who is not otherwise an employee of the Company.
(l) "Nonqualified Stock Option" or "NQSO" means an option to purchase
Shares, granted under Article 7, which is not intended to be an incentive stock
option qualifying under Code Section 422.
(m) "Option" means a Nonqualified Stock Option under this Plan.
(n) "Participant" means a non-employee director of the Company who has
outstanding an award granted under the Plan.
(o) "Stock" means the shares of common stock of Microtest, Inc..
2.2 Gender and Number. Except where otherwise indicated by the context,
any masculine term used herein also shall include the feminine; the plural shall
include the singular and the singular shall include the plural.
2.3 Severability. In the event that a court of competent jurisdiction
determines that any portion of this Plan is in violation of any statute, common
law, or public policy, then only such portion shall be stricken. All portions of
this Plan that do not violate any statute or public policy shall continue in
full force and effect.
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ARTICLE 3. ADMINISTRATION
3.1 The Committee. The Plan shall be administered by the Board or a
Committee of two or more non-employee directors appointed by the Board to
administer the Plan, subject to the restrictions set forth in this Plan. Except
as otherwise provided, reference to the Committee shall refer to the Board if
the Board does not appoint a Committee to administer the Plan.
3.2 Administration by the Committee. The Committee shall have full power,
discretion, and authority to interpret and administer this Plan in a manner
which is consistent with the Plan's provisions. However, in no event shall the
Committee have the power to take any action that would result in the Plan not
being treated as a formula plan under Section 16 of the Exchange Act.
3.3 Decisions Binding. All decisions made by the Committee pursuant to
the provisions of the Plan, and all related orders or resolutions of the
Committee shall be final, conclusive, and binding on all persons, including the
Company, its stockholders, employees, Participants, and their estates and
beneficiaries.
ARTICLE 4. SHARES SUBJECT TO THE PLAN
4.1 Number of Shares. Subject to adjustment as provided in Section 4.3
herein, the total number of shares of Stock available for grant under the Plan
may not exceed 150,000. The Stock issued may be authorized and unissued Stock or
Stock reacquired by the Company, as determined by the Committee.
4.2 Lapsed Awards. If any Option granted under this Plan terminates,
expires, or lapses for any reason, any Stock subject to purchase pursuant to
such Option again shall be available for the grant under the Plan.
4.3 Adjustments in Authorized Shares. In the event of any merger,
reorganization, consolidation, recapitalization, separation, liquidation, stock
dividend, split-up, Stock combination, or other change in the corporate
structure of the Company affecting the Stock, the number and/or type of Stock
subject to any outstanding Award, the Option exercise price per share under any
outstanding Option, will be automatically adjusted so that the proportionate
interests of the Participants will be maintained as before the occurrence of
such event. Any adjustment pursuant to this Section 4.3 will be conclusive and
binding for all purposes of this Plan.
ARTICLE 5. ELIGIBILITY AND PARTICIPATION
5.1 Eligibility. Persons eligible to participate in this Plan are limited
to non-employee directors.
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5.2 Actual Participation. All eligible non-employee directors shall
receive an Annual Retainer under Article 6 and shall receive grants of Options
pursuant to Article 7.
ARTICLE 6. BOARD COMPENSATION
6.1 Annual Retainer. In consideration for service on the Board, each
non-employee director shall be entitled to an Annual Retainer equal to $8,000
plus a $2,000 Annual Retainer for each committee membership, or such other
amounts as determined from time to time by the Board. The Annual Retainer(s)
shall be paid in quarterly installments provided that the non-employee director
is providing services as a member of the Board on such date. If a non-employee
director terminates service on the Board prior to the last day of a calendar
quarter, the non-employee director shall be entitled to receive a pro rata
portion of his Annual Retainer(s) for such quarter.
6.2 Board and Committee Fees and Expenses. Each non-employee director
shall be entitled to a fee equal to $1,500 for each Board meeting, a fee equal
to $1,000 for each Board committee meeting that is not in conjunction with a
Board meeting and a fee equal to $750 for each telephonic Board or committee
meeting attended. Such amounts may be adjusted from time to time in the Board's
discretion. In addition, the Company shall reimburse each non-employee director
for reasonable expenses incurred by the non-employee director for traveling to
and attending Board and Board committee meetings.
6.3 Method of Payment. A non-employee director's Annual Retainer shall be
paid in cash. The Board and Board committee fees will be paid in cash promptly
after such meetings.
ARTICLE 7. OPTION GRANTS
7.1 Annual Grant of Options. Subject to the limitation on the number of
shares that may be awarded under this Plan, each non-employee director shall be
granted an Option to purchase 1,000 shares of Stock on the Annual Grant Date
occurring in 1998 and 5,000 shares of Stock on each Anniversary Date thereafter.
The Option granted pursuant to this Section 7.1 shall be immediately vested and
exercisable as of the relevant Annual Grant Date.
7.2 Anniversary Grant of Options. Subject to the limitation on the number
of shares that may be awarded under this Plan, each non-employee director shall
be granted an Option to purchase 10,000 shares of Stock on each Anniversary
Grant Date. The Option granted pursuant to this Section 7.2 shall vest 25% on
the Anniversary Grant Date, 25% on the first anniversary of the Anniversary
Grant Date, 25% on the second anniversary of the Anniversary Grant
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Date, and the remaining 25% on the third anniversary of the Anniversary Grant
Date provided, however, that a non-employee director shall not be permitted to
exercise any Option granted under this Section 7.2 until he owns (beneficially
or otherwise) 5,000 shares of Stock other than shares of Stock subject to
unexercised options under this Plan or any other Company plan.
7.3 Individual Award Agreement. Each Option grant shall be evidenced by
an individual agreement that will not include any terms or conditions that are
inconsistent with the terms and conditions of this Plan.
7.4 Option Price. The purchase price per share available for purchaser
under an Option granted pursuant to this Article 7 shall be equal to the Fair
Market Value on the Grant Date.
7.5 Duration of Options. Unless earlier terminated, forfeited, or
surrendered pursuant to a provision of this Plan, each Option granted under this
Article 7 shall expire on the tenth anniversary date of its grant.
7.6 Payment. Options shall be exercised by the delivery of a written
notice of exercise to the Secretary of the Company, setting forth the number of
shares with respect to which the Option is to be exercised, accompanied by full
payment for the Stock. The Option price upon exercise of any Option shall be
payable to the Company in full either: (a) in cash or its acceptable equivalent,
or (b) by tendering previously acquired Stock having a Fair Market Value at the
time of exercise equal to the total Option price (provided that the Stock
tendered upon Option exercise have been held by the Participant for at least six
(6) months prior to their tender to satisfy the Option price), or (c) by a
combination of (a) and (b). The proceeds from such a payment shall be added to
the general funds of the Company and shall be used for general corporate
purposes.
7.7 Restrictions on Share Transferability. To the extent necessary to
ensure that Options granted under this Article 7 comply with applicable law, the
Board shall impose restrictions on any Stock acquired pursuant to the exercise
of an Option under this Article 7, including, without limitation, restrictions
under applicable Federal securities laws, under the requirements of any stock
exchange or market upon which such Stock is then listed and/or traded, and under
any blue sky or state securities laws applicable to such Stock.
7.8 Termination of Service on the Board of Directors. If the service of a
Participant on the Board terminates for any reason, any outstanding Options that
are not vested as of such dated shall be forfeited. The Options that are
otherwise exercisable as of the date of such termination shall be exercisable by
the Participant for one year after such termination, unless the Options expire
earlier under Section 7.5.
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7.9 Nontransferability of Options. No Option granted under this Article 7
may be sold, transferred, pledged, assigned, or otherwise alienated or
hypothecated, other than by will or by the laws of descent and distribution.
Further, all Options granted to a Participant under this Article 7 shall be
exercisable during his or her lifetime only by such Participant.
ARTICLE 8. CHANGE IN CONTROL
In the event of a Change in Control of the Company, all Options granted
under this Plan that are still outstanding and not yet vested, shall become
immediately vested and exercisable. Upon, or in anticipation of, such an event,
the Committee may cause every Option outstanding hereunder to terminate at a
specific time in the future and shall give each Participant the right to
exercise Options during a period of time as the Committee shall determine,
except in the event that the surviving or resulting entity agrees to assume the
Options on terms and conditions that substantially preserve the Participant's
rights and benefits of the Option then outstanding.
ARTICLE 9. AMENDMENT, MODIFICATION, AND TERMINATION
9.1 Amendment, Modification, and Termination. The Board may, at any time
and from time to time, terminate, amend or modify the Plan; provided, however
that to the extent necessary and desirable to comply with any applicable law,
regulation or stock exchange rule, the Company shall obtain shareholder approval
of any Plan amendment in such a manner and to such a degree as required.
9.2 Awards Previously Granted. Unless required by law, no termination,
amendment, or modification of this Plan shall in any manner adversely affect any
Option previously granted under this Plan, without the written consent of the
Participant holding such Option.
ARTICLE 10. MISCELLANEOUS
10.1 Beneficiary Designation. Each Participant under this Plan may, from
time to time, name any beneficiary or beneficiaries (who may be named
contingently or successively) to whom any benefit under this Plan is to be paid
in the event of his or her death. Each designation will revoke all prior
designations by the same Participant, shall be in a form prescribed by the
Committee, and will be effective only when filed by the Participant in writing
with the Committee during his or her lifetime. In the absence of any such
designation, benefits remaining unpaid at the Participant's death shall be paid
to the Participant's estate.
10.2 Successors. All obligations of the Company under this Plan, with
respect to Options, cash or Stock granted hereunder, shall be binding on any
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successor to the Company, whether the existence of such successor is the result
of a direct or indirect purchase, merger, consolidation, or otherwise, of all or
substantially all of the business and/or assets of the Company.
10.3 Requirements of Law. The granting of Options, cash and Stock under
the Plan shall be subject to all applicable laws, rules, and regulations, and to
such approvals by any governmental agencies or national securities exchanges as
may be required. Notwithstanding any other provision set forth in this Plan, the
Committee may, at its sole discretion, terminate, amend, or modify this Plan in
any way necessary to comply with the applicable requirements of Rule 16b-3
promulgated by the Securities and Exchange Commission as interpreted pursuant to
no-action letters and interpretive releases.
10.4 Governing Law. This Plan, and all agreements hereunder, shall be
governed by the laws of the State of Delaware.
8
EXHIBIT 5
December 4, 1998
MICROTEST, INC.
4747 North 22nd Street
Phoenix, AZ 85016
Re: Microtest, Inc. (the "Company") 1998 Director's
Compensation Plan (the "Plan")
Ladies and Gentlemen:
We have acted as counsel to the Company in connection with its
Registration Statement on Form S-8 (the "Registration Statement"), filed by the
Company with the Securities and Exchange Commission under the Securities Act of
1933, as amended, relating to the registration of up to 150,000 shares of the
Company's Common Stock, $.001 par value (the "Shares") issuable pursuant to
options granted in connection with the above-referenced Plan. It is our opinion
that:
1. The Company 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 validly issued, fully paid, and
non-assessable.
In rendering this opinion, we have reviewed and relied upon such
documents and records of the Company 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 Company and public officials; and
(iii) the accuracy and completeness of Company 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 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
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Microtest Inc. on Form S-8, of our report dated February 4, 1998, appearing in
the Annual Report on Form 10-K of Microtest Inc. for the year ended December 31,
1997.
DELOITTE & TOUCHE LLP
Phoenix, Arizona
December 4, 1998
