<PAGE>
As filed with the Securities and Exchange Commission on August 19, 1997
Registration No. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_____________________
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
_____________________
MICRO WAREHOUSE, INC.
(Exact name of Registrant as specified in its charter)
Delaware 06-1192793
(State of Incorporation) (I.R.S. Employer
Identification No.)
535 Connecticut Avenue
Norwalk, Connecticut 06854
(Address of principal executive offices)
_____________________
MICRO WAREHOUSE, INC. 1994 STOCK OPTION PLAN
(Full title of the Plan)
______________________
Bruce L. Lev, Esq.
Vice President and General Counsel
535 Connecticut Avenue
Norwalk, Connecticut 06854
(203) 899-4000
(Name, address, including zip code and telephone number, including area
code, of agent for service)
______________________
<TABLE>
<CAPTION>
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CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Per Aggregate Offering Amount of
to be Registered Registered(1) Share(2) Price(2) Registration Fee
- ------------------- ------------- ------------------ ------------------ ----------------
<S> <C> <C> <C> <C>
Common Stock, 3,500,000 $21.843 $76,450,500 $23,166.82
par value $.01 per
share
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- ----------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Such additional indeterminable number of shares of Common Stock is hereby
registered as may be required by reason of the anti-dilution provisions of
the Micro Warehouse, Inc. 1994 Stock Option Plan.
(2) Computed in accordance with Rules 457(c) and 457(h) solely for the purpose
of calculating the registration fee on the basis of the average high and
low price of the Common Stock reported in the consolidated reporting system
on August 14, 1997.
<PAGE>
PART II: INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INFORMATION INCORPORATED BY REFERENCE
The contents of the Registration Statement of Micro Warehouse, Inc.
(the "Company") on Form S-8 filed with the Securities and Exchange Commission
(the "Commission") on February 6, 1996 (Registration No. 333-1098) are hereby
incorporated by reference. The Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1996 and the Company's Quarterly Report on Form
10-Q for each of the Quarters ended March 31, 1997 and June 30, 1997 are hereby
incorporated by reference. All other reports filed by the Company pursuant to
Sections 13(a) or 15(d) of the Securities and Exchange Act of 1934, as amended
(the "Exchange Act"), since the end of such fiscal year are also hereby
incorporated by reference.
All documents and reports filed by the Company pursuant to Section
13(a), 13(c), 14, or 15(d) of the Exchange Act after the date of this
Registration Statement and prior to the filing of a post effective amendment
which indicates that all shares of common stock, par value $.01 per share (the
"Common Stock") being offered have been sold or which deregisters all such
Common Stock unsold are deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the dates of filing of such
documents or reports. Any statement contained in a document incorporated or
deemed to be incorporated by reference herein is deemed to be modified or
superseded for purposes of this Registration Statement to the extent that 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 will
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the shares of Common Stock being registered has been
passed upon for the Company by Bruce L. Lev, Esq., Vice President, Secretary and
General Counsel of the Company. As of August 19, 1997, Mr. Lev owns options to
purchase 141,000 shares of Common Stock.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's certificate of incorporation and by laws provide for the
indemnification of the directors, officers, employees, and agents of the Company
and its subsidiaries to the fullest extent that may be permitted by Delaware law
from time to time. Under Delaware law, directors, officers, employees, and
other individuals may be indemnified against expenses (including attorneys'
fees), judgments, fines, and amounts paid in settlement in connection with
specified actions, suits, or proceedings, whether civil, criminal,
administrative, or investigative (other than an action by or in the right of the
corporation (a "derivative action")) if they acted in good faith and in a manner
they reasonably believed to be in or not opposed to the best interests of the
Company and, with respect to any criminal action or proceeding, had no
reasonable cause to believe their conduct was unlawful. A similar standard of
care is applicable in the care of a derivative action, except that
indemnification only extends to expenses (including attorneys' fees) incurred in
connection with the defense or settlement of such an action and Delaware law
requires court approval before there can be any indemnification of expenses
where the person seeking indemnification has been found liable to the Company.
The certificate provides, among other things, that the Company will,
to the fullest extent permitted by Section 145 of the General Corporation Law of
Delaware, as the same may be amended and supplemented, indemnify any and all
persons whom it shall have power to indemnify under such section from and
against any and all of the expenses, liabilities or other matters referred to in
or covered by such section, and the indemnification provided for therein shall
not be deemed exclusive of any other rights to which those indemnified may be
entitled under any by law, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in their official capacity and as to
action in another capacity while holding such office, and shall continue as to a
person who has ceased to be a director, officer, employee or agent and shall
inure to the benefit of the heirs, executors and administrators of such a
person. The certificate also includes a provision eliminating directors'
exposure to liability for monetary damages for breaches of their fiduciary duty
of care as directors. The provision does not eliminate the directors' (i)
liability for monetary damages for breach of the duty of loyalty to the Company
or its stockholders, (ii) liability for acts or omissions not in good faith or
involving intentional misconduct or a knowing violation of law, (iii) liability
for the improper purchase or redemption of stock or the payment of improper
dividends, and (iv) liability for any transaction from which a director
received an improper personal benefit. In addition, the provision does not
apply to claims made against directors by third parties or to persons who are
officers as well as directors when acting in their capacities as officers.
II-1
<PAGE>
The Company is a party to indemnification agreements (the
"Indemnification Agreements") with each of its officers and directors (each an
"Indemnitee"). Under these Indemnification Agreements, the Company must
indemnify an Indemnitee to the fullest extent permitted by Delaware Law for
losses and expenses incurred in connection with actions in which the Indemnitee
is involved by reason of having been a director or employee of the Company. The
Company is also obligated to advance expenses an Indemnitee may incur in
connection with such actions before any resolution of the action, and the
Indemnitee may sue to enforce his or her right to indemnification or advancement
of expenses.
The Company also maintains an insurance policy insuring its directors
and officers against liability for certain acts and omissions while acting in
their official capacities.
Item 6. EXHIBITS
Exhibit
NUMBER DOCUMENT
4.1 Micro Warehouse, Inc. 1994 Stock Option Plan, as amended.
5.1 Opinion of counsel as to legality of securities being
registered.
23.1 Consent of Counsel (contained in Exhibit 5.1).
23.2 Consent of KPMG Peat Marwick LLP.
24.1 Power of Attorney (included on signature page).
II-2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Company 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 Norwalk, State of Connecticut, on August 18, 1997.
MICRO WAREHOUSE, INC.
By: /s/ Linwood A. Lacy, Jr.
---------------------------------------
Linwood A. Lacy, Jr.
PRESIDENT AND CHIEF EXECUTIVE OFFICER
SIGNATURES AND POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Linwood
A. Lacy, Jr., Peter Godfrey and Bruce L. Lev, 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 (or any other registration statement for the same
offering that is to be effective upon filing pursuant to Rule 462(b) under the
Securities Act) and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
and to take such actions in, and file with the appropriate authorities in,
whatever states said attorneys-in-fact and agents, and each of them, shall
determine, such applications, statements, consents and other documents as may be
necessary or expedient to register securities of the Company for sale, granting
unto said attorneys-in-fact and agents full power and authority to do and
perform each and every act and thing requisite or necessary to be done in and
about the premises, as fully 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 or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof and the registration hereby confers like
authority on its behalf.
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 dates indicated:
SIGNATURE TITLE DATE
/s/ Peter Godfrey Chairman of the Board August 18, 1997
- -------------------------
Peter Godfrey
/s/ Linwood A. Lacy, Jr. President, Chief Executive August 18, 1997
- ------------------------- Officer and Director
Linwood A. Lacy, Jr. (Principal Executive Officer)
/s/ Felix Dennis Director August 18, 1997
- -------------------------
Felix Dennis
/s/ Frederick H. Fruitman Director August 18, 1997
- -------------------------
Frederick H. Fruitman
/s/ Joseph M. Walsh Director August 18, 1997
- -------------------------
Joseph M. Walsh
/s/ Wayne P. Garten Senior Vice President and August 18, 1997
- ------------------------- Chief Financial Officer
Wayne P. Garten (Principal Financial
Officer) (Principal
Accounting Officer)
II-3
<PAGE>
INDEX TO EXHIBITS
Exhibit
Number
4.1 Micro Warehouse, Inc. 1994 Stock Option Plan, as amended
5.1 Opinion of counsel as to legality of securities being registered
23.1 Consent of Counsel (contained in Exhibit 5.1)
23.2 Consent of KPMG Peat Marwick LLP
24.1 Power of Attorney (included on signature page)
II-4
<PAGE>
EXHIBIT 4.1
MICRO WAREHOUSE, INC.
1994 STOCK OPTION PLAN
1. PURPOSE. The purpose of this 1994 Stock Option Plan (the "1994 Plan")
is to secure for Micro Warehouse, Inc., a Delaware corporation (the "Company"),
and its shareholders the benefits arising from capital stock ownership by
employees, directors and consultants of the Company and any subsidiaries who
will be responsible for the Company's future by stimulating their efforts on
behalf of the Company's further growth and continued success.
2. SHARES SUBJECT TO THE 1994 PLAN. Subject to adjustment, as provided in
paragraph 10, the stock to be offered under the 1994 Plan shall consist of
shares of the Company's Common Stock ("Stock"), and the number of shares of
Stock that may be issued upon exercise of all options granted under the 1994
Plan shall not exceed in the aggregate 4,000,000 shares; however, the maximum
number of shares underlying an option grant shall not exceed 100,000 in any one
year to any individual. Such shares may be authorized and unissued shares or
may be treasury shares. If an option granted under the 1994 Plan shall expire
or terminate for any reason without having been exercised in full, the
unpurchased shares subject to such option shall again be available under the
1994 Plan. Stock issued under the 1994 Plan may be subject to such restrictions
on transfer, repurchase rights or other restrictions as shall be determined by
the Board of Directors of the Company ("the Board") or a Committee of the Board
(the "Committee") as determined under paragraph 4 hereinbelow.
3. EFFECTIVE DATE AND DURATION OF THE 1994 PLAN.
(a) EFFECTIVE DATE. The 1994 Plan shall become effective when adopted
by the Board or the Committee, but no option granted under the 1994 Plan shall
be exercised prior to the approval of the 1994 Plan by the holders of at least a
majority of the outstanding shares of capital stock of the Company voting
thereon. Subject to this limitation, options may be granted at any time after
the effective date and before termination of the 1994 Plan.
(b) DURATION. The 1994 Plan shall continue in effect until, in the
aggregate, options have been granted and exercised with respect to all of the
shares available under the 1994 Plan as set forth in paragraph 2, subject to any
adjustments herein; provided, however, that unless sooner terminated by action
of the Board or the Committee, the 1994 Plan shall terminate on, and no options
shall be granted on or after, the tenth (10th) anniversary of the effective
date. The Board or the Committee shall have the right to suspend or terminate
the 1994 Plan at any time except with respect to options then outstanding under
the 1994 Plan.
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4. ADMINISTRATION.
The 1994 Plan shall at all times be administered in accordance with the
regulations of Rule 16b-3 of the Securities and Exchange Act of 1934 as amended
by the Securities and Exchange Commission release No. 34-37260. The 1994 Plan
may be administered by the Board of
Directors or by a Committee of two or more "non-employee directors". The Board
or the Committee shall determine and designate, from time to time the employees,
directors and consultants to whom options shall be granted and the number of
shares to be covered by each option, the option price, the period of each
option, and the time or times at which options may be exercised. Subject to the
provisions of the 1994 Plan, the Board or the Committee may, from time to time,
adopt rules and regulation relating to administration of the 1994 Plan and make
all other determinations in the judgment of the Board or the Committee necessary
or desirable for the administration of the 1994 Plan. The interpretation and
construction of the provisions of the 1994 Plan and stock option agreements
implemented thereunder by the Board or the Committee shall be final and
conclusive. The Board or the Committee may correct any defect or supply any
omission or reconcile any inconsistency in the 1994 Plan or in any option
agreement in the manner and to the extent it shall deem expedient to carry the
1994 Plan into effect and it shall be the sole and final judge of such
expediency.
5. GRANTS, AWARDS AND SALES.
(a) TYPE OF SECURITY. The Board or the Committee may, from time to
time, take the following action, separately or in combination, under the 1994
Plan: (i) grant Incentive Stock Options, as defined in Section 422A of the
Internal Revenue Code of 1986, as amended (the "Code"), as provided in paragraph
5(b); and (ii) grant options other than Incentive Stock Options (herein
"Nonstatutory Stock Options") as provided in paragraph 5(c). The Board or the
Committee shall specify the action taken with respect to each optionee granted
any option under the 1994 Plan, and shall specifically designate each option
granted under the 1994 Plan as an Incentive Stock Option or Nonstatutory Stock
Option.
(b) INCENTIVE STOCK OPTIONS. Incentive Stock Options shall be subject
to the following additional terms and conditions:
(i) In no event shall the aggregate fair market value (determined
at the time such options are granted) of the Stock with respect to which the
employee's Incentive Stock Options first become exercisable during any calendar
year under the 1994 Plan or under any other incentive stock option plan (within
the meaning of Section 422A of the Code) of the Company or a subsidiary or
parent corporation of the Company exceed $100,000.
(ii) An Incentive Stock Option may be granted under the 1994
Plan to an employee possessing more than ten percent (10%) of the total
combined voting power of all classes of stock of the Company or of any parent or
subsidiary of the Company only if the option price is at least one hundred ten
percent (110%) of the fair market value of the Stock subject to the option on
the date it is granted and the option by its terms is not exercisable after the
expiration of ten (10) years from the date it is granted.
(iii) Incentive Stock Options may be granted under the 1994 Plan
only to employees of the Company or any parent or subsidiary of the Company.
Except as provided in
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paragraph 9, no Incentive Stock Options granted under the 1994 Plan may be
exercised unless at the time of such exercise the optionee is employed by the
Company or any parent or subsidiary of the Company and shall have been so
employed continuously since the date such option was granted. Absence on leave
or on account of illness or disability shall not be deemed an interruption of
employment for this purpose, except under rules prescribed by the Board or
Committee in its discretion.
(iv) Subject to paragraphs 5(b)(ii) and 5(b)(iii), Incentive
Stock Options granted under the 1994 Plan shall continue in effect for the
period fixed by the Board or the Committee, except that no Incentive Stock
Option shall be exercisable after the expiration of ten (10) years from the date
it is granted.
(v) The option price per share shall be determined by the Board
or the Committee at the time of grant. Except as provided in paragraph
5(b)(ii), the option price shall not be less than one hundred percent (100%) of
the fair market value of the shares covered by the Incentive Stock Option at the
date the option is granted. The fair market value of shares covered by an
Incentive Stock Option shall be determined by the Board or the Committee.
(vi) Stock acquired upon exercise of the Incentive Stock Options
shall not be disposed of: [1] within two (2) years following the date the option
was granted and [2] within one (1) year following the date the Stock is
transferred to the employee.
(c) NONSTATUTORY STOCK OPTIONS. Nonstatutory Stock Options shall be
subject to the following terms and conditions:
(i) Nonstatutory Stock Options may be granted under the 1994
Plan to employees, directors and consultants of the Company or any parent or
subsidiary of the Company. Nonstatutory Stock Options granted under the 1994
Plan shall continue in effect for the period fixed by the Board or the
Committee, except that a Nonstatutory Stock Option shall not be exercisable
after the expiration of ten (10) years from the date it is granted.
(ii) The option price per share shall be determined by the Board
or Committee at the time of grant. The option price may be more or less than or
equal to the fair market value of the shares covered by the Nonstatutory Stock
Option on the date the option is granted, provided that in no event shall the
exercise price be less than eighty-five percent (85%) of the fair market value
on such date. The fair market value of the shares covered by a Nonstatutory
Stock Option shall be determined by the Board or the Committee.
(d) LONG TERM INCENTIVE COMPENSATION PLAN. Options may be granted
under the Company's long Term Incentive Compensation Plan to certain key
executives of the Company. The number of option grants is determined in advance
on the basis of the Company's earnings per share, earnings before interest and
taxes and revenue target levels, subject to amendment by the Board or
Committee.
6. EXERCISE OF OPTIONS. Except as provided in paragraph 8, options
granted under the 1994 Plan may be exercised from time to time over the period
stated in each option agreement in such amounts and at such times as shall be
prescribed by the Board or the Committee, provided that options shall not be
exercised for fractional shares. Unless otherwise determined by the Board or
the Committee at the date of grant, if the optionee does not exercise an option
in any one (1) year with respect to the full number of shares to which the
optionee is entitled in that year,
3
<PAGE>
the optionee's rights shall be cumulative and the optionee may exercise an
option as to those shares in any subsequent year during the term of the option.
1. NONTRANSFERABILITY.
(a) OPTIONS. Each option granted under the 1994 Plan by its terms
shall be nonassignable and nontransferable by the optionee, either voluntarily
or by operation of law, except that options may be assigned or transferred as
follows to: members of the optionee's immediate family intended to include
parents, spouse, children or grandchildren; or trusts, family partnerships, or
other like entities provided that all of the beneficiaries of the same are
members of said immediate family, or to any person or entity by will or by the
laws of descent and distribution of the state or country of the optionee's
domicile at the time of death. In all events, the transferrees' rights with
respect to any such option shall be subject to and fully governed by the
provisions of the Plan and any provisions which would have affected any
transferred options had the same not been transferred shall, PARI PASSU, govern
said options. Upon any attempt to transfer, assign, pledge, hypothecate or
otherwise dispose of any option under this 1994 Plan or of any right or
privilege conferred hereby or hereunder contrary to the provisions hereof, or
upon the sale or levy or any attachment or similar process upon the rights and
privileges conferred hereby or hereunder, such option relating thereto shall
thereupon terminate and become null and void. In all events, each such option
by its terms shall be exercisable by either the optionees or transferrees
permitted hereinabove.
(b) STOCK. Stock issued upon exercise of an option may have, in
addition to restrictions on transfer imposed by law, such restrictions on
transfer as may be determined by the Board or the Committee.
8. TERMINATION OF EMPLOYMENT OR DEATH.
(a) In the event the employment by or affiliation with the Company or
any parent or subsidiary of the Company by an optionee is terminated by
retirement or for any reason, voluntarily or involuntarily, with or without
cause, other than in the circumstances specified in the subparagraph (b) below,
any option held by such optionee may be exercised at any time prior to its
expiration date or the expiration of three (3) months after the date of such
termination of employment (or affiliation), whichever is the shorter period, but
only if and to the extent the optionee was entitled to exercise the option on
the date of such termination. With reference to Nonstatutory Stock Options, the
Board or the Committee may, in its discretion, extend the three (3) month
period any length of time not later than the expiration date of the option,
subject to such terms and conditions as the Board or the Committee may
determine.
(b) In the event an optionee's employment by or affiliation with the
Company or any parent or subsidiary of the Company is terminated because of
death or permanent disability ("permanent disability" is defined as an illness
which will prevent an optionee from performing his duties for a continuous
period of six months), any and all Incentive Stock Options and/or Nonstatutory
Stock Options held by such optionee shall immediately vest and become
exercisable. If an optionee's employment by or affiliation with the Company is
terminated by death, any option
4
<PAGE>
held by the optionee shall be exercisable only by the person or persons to whom
such optionee's rights under such option shall pass by the optionee's will or by
the laws of descent and distribution of the state or country of the optionee's
domicile at the time of death. Any option governed by this subparagraph must be
exercised prior to the earlier of the expiration of twelve (12) months from the
date of disability or death or the expiration of the option; provided, however,
in the event optionee's employment or affiliation with the Company is terminated
because of death or permanent disability, the Board or the Committee may, in
its discretion, extend the twelve (12) month period any length of time not later
than the expiration date of the option, subject to such terms and conditions as
the Board or the Committee may determine.
(c) To the extent an option held by any deceased optionee or by any
optionee whose employment or affiliation with the Company is terminated shall
not have been exercised within the limited periods provided above, all further
rights to purchase shares pursuant to such option and all other rights relating
to such option shall cease and terminate at the expiration of such periods.
(9) PURCHASE OF SHARES PURSUANT TO OPTION. Shares may be purchased or
acquired pursuant to an option granted under the 1994 Plan only upon receipt by
the Company of notice in writing from the optionee of the optionee's intention
to exercise, specifying the number of shares as to which the optionee desires to
exercise the option and the date on which the optionee desires to complete the
transaction, which shall not be more than thirty (30) days after receipt of the
notice and, unless in the opinion of counsel for the Company such a
representation is not required in order to comply with the Securities Act of
1933, as amended, containing a representation that is the optionee's present
intention to acquire the shares for investment and not with a view to
distribution. Unless otherwise approved, on or before the date specified for
completion of the purchase of shares pursuant to an option, the optionee must
have paid the Company for the full purchase price for such shares in cash
(including cash which may be the proceeds of a loan from the Company), in shares
of Common Stock of the Company previously acquired valued at fair market value
as determined by the Board or the Committee, or in any combination of cash and
such shares of Common Stock of the Company. No shares shall be issued until
full payment therefor has been made. Each optionee who has exercised an option
shall, upon notification of the amount due, if any, and prior to or concurrently
with delivery of the certificates representing the shares with respect to which
the option was exercised, pay to the Company amounts necessary to satisfy any
applicable federal, state and local tax withholding requirements. If additional
withholding is or becomes required beyond any amount deposited before delivery
of the certificates, the optionee shall pay such amount to the Company on
demand.
10. CHANGES IN CAPITAL STRUCTURE. In the event that the outstanding
shares of Stock of the Company are hereafter increased or decreased or changed
into or exchanged for a different number or kind of shares or other securities
of the Company or of another corporation, by reason of any reorganization,
merger, consolidation, recapitalization, reclassification, stock split-up,
combination of shares or dividend payable in shares, appropriate adjustment
shall be made by the Board or the Committee in the number and kind of shares
issuable upon exercise of outstanding options, for which options may be granted
under the 1994 Plan. In addition, the Board or the Committee shall make
appropriate adjustment in the number and kind of shares as to which outstanding
options, or portions thereof when unexercised, shall be exercisable, to the end
that
5
<PAGE>
each optionee's proportionate interest shall be maintained as before the
occurrence of such event. The Board or the Committee shall have no obligation
to effect any adjustment which would or might result in the issuance of
fractional shares, and any fractional shares resulting from any adjustment may
be disregarded or provided for in any manner determined by the Board or the
Committee. Any such adjustment made by the Board or the Committee shall be
conclusive. In the event of dissolution or liquidation of the Company or a
merger or consolidation in which the Company is not the surviving corporation,
in lieu of providing for options or Stock subject to restrictions as described
above in this paragraph 10, the Board or the Committee may, in its sole
discretion, (i) provide a thirty (30) day period immediately prior to such event
during which optionees shall have the right to exercise options in whole or in
part without any limitation on exercisability, except as limited by paragraph
5(b)(i) of the 1994 Plan, and (ii) waive or modify any such restrictions.
11. CORPORATE MERGERS, ACQUISITIONS, ETC. The Board or the Committee may
also grant options having terms, conditions and provisions which vary from those
specified in this 1994 Plan provided that any options granted pursuant to this
section are granted in substitution for, or in connection with the assumption
of, existing options or Stock issued by another corporation and assumed or
otherwise agreed to be provided for by the Company pursuant to or by reason of a
transaction involving a corporate merger, consolidation, acquisition of property
or stock, separation, reorganization or liquidation to which the Company or a
subsidiary is a party.
12. AMENDMENT OF 1994 PLAN. The Board or the Committee may, at any time
and from time to time, modify or amend the 1994 Plan in such respects as it
shall deem advisable because of changes in the law while the 1994 Plan is in
effect or for any other reason. Except as provided in paragraph 10, however, no
change in a option already granted shall be made without the written consent of
the holder of such option. Furthermore, unless approved at an annual meeting or
a special meeting by the holders of at least a majority of the votes cast, no
amendment or change shall be made in the 1994 Plan (i) increasing the total
number of shares which may be purchased under the 1994 Plan, (ii) changing the
minimum purchase prices specified in the 1994 Plan, or (iii) increasing the
maximum option periods.
13. APPROVALS. The obligations of the Company under the 1994 Plan shall
be subject to the approval of such state or federal authorities or agencies, if
any, as may have jurisdiction in the matter. The Company will use its best
efforts to take such steps as may be required by state or federal law or
applicable regulations, including rules and regulations of the Securities and
Exchange Commission and any stock exchange in which the Company's shares may
then be listed, in connection with the granting of any option under the 1994
Plan, the issuance or sale of any shares purchased upon exercise of any option
under the 1994 Plan or the listing of such shares on said exchange. The
foregoing notwithstanding, the Company shall not be obligated to issue or
deliver shares of Stock under the 1994 Plan if the Company is advised by its
legal counsel that such issuance or delivery would violate applicable state or
federal securities laws.
14. EMPLOYMENT RIGHTS. Nothing in the 1994 Plan or any option or Stock
granted pursuant to the 1994 Plan shall confer upon (i) any employee any right
to be continued in the employment of the Company or any parent or subsidiary of
the Company, or to interfere in any
6
<PAGE>
way with the right of the Company or any parent or subsidiary of the Company by
whom such employee is employed to terminate such employee's employment at any
time, with or without cause, or to increase or decrease such employee's
compensation, or (ii) any person engaged by the Company any right to be retained
or employed by the Company or to the continuation, extension, renewal or
modification of any compensation, contract or arrangement with or by the
Company.
15. RIGHTS AS A STOCKHOLDER. The holder of an option shall have no rights
as a stockholder with respect to any shares covered by any option agreement
until the date of issue of a stock certificate to him or her for such shares.
Except as otherwise expressly provided in the 1994 Plan, no adjustment shall be
made for dividends or other rights for which the record date is prior to the
date such stock certificate is issued.
7
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Exhibit 5.1
August 19, 1997
Micro Warehouse, Inc.
535 Connecticut Avenue
Norwalk, Connecticut 06854
Ladies and Gentlemen:
I have acted as counsel to Micro Warehouse, Inc., a Delaware corporation
(the "Company"), in connection with the Registration Statement on Form S-8 (the
"Registration Statement") of the Company filed in connection with the
registration under the Securities Act of 1933, as amended, of 3,500,000
additional shares of common stock of the Company, par value $.01 per share (the
"Shares"). The Shares are being registered for issuance by the Company in
connection with two amendments to the 1994 Stock Option Plan (the "Plan")
increasing the aggregate number of shares available for grants under the Plan
from 500,000 to 4,000,000.
For purposes of this opinion, I have examined such matters of law and
originals, or copies certified or otherwise identified to my satisfaction, of
such documents, corporate records and other instruments as I have deemed
necessary. In my examination, I have assumed the genuineness of all signatures,
the authenticity of all documents submitted to me as certified, photostatic or
conformed copies, and the authenticity of originals of all such latter
documents. I have also assumed the due execution and delivery of all documents
where due execution and delivery are prerequisites to the effectiveness thereof.
I have relied upon certificates of public officials and certificates of officers
of the Company for the accuracy of material factual matters contained therein
which were not independently established.
Based on the foregoing, it is my opinion that, subject to effectiveness
with the Securities and Exchange Commission and to registration or qualification
under the securities laws of the states in which Shares may be sold, the Shares
are duly authorized and, upon the sale and issuance thereof in the manner
referred to in the Registration Statement and in the Plan, and upon payment
therefor, will be validly issued, fully paid and nonassessable.
<PAGE>
Micro Warehouse, Inc.
August 19, 1997
Page 2
I hereby consent to the use of this opinion as Exhibit 5.1 to the
Registration Statement.
Very truly yours,
/s/ Bruce L. Lev
Bruce L. Lev, Esq.
Vice President and General Counsel
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Micro Warehouse, Inc.
We consent to the use of our audit reports dated February 10, 1997, on the
consolidated financial statements and schedule of Micro Warehouse, Inc. and
subsidiaries as of December 31, 1996 and December 31, 1995 and for each of the
years in the three year period ended December 31, 1996 incorporated herein by
reference in the Registration Statement on Form S-8 of Micro Warehouse, Inc.
pertaining to the Micro Warehouse, Inc. 1994 Stock Option Plan.
Stamford, Connecticut /s/ KPMG Peat Marwick LLP
August 14, 1997
