SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM S-8
REGISTRATION STATEMENT Under THE SECURITIES ACT OF 1933
-------------------------
STERLING ELECTRONICS CORPORATION
(Exact name of registrant as specified in its charter)
NEVADA 74-1261194
(State or other jurisdiction of (I.R.S. Employer Identification
organization) Number)
4201 SOUTHWEST FREEWAY
HOUSTON, TEXAS 77027
(Address of principal executive offices, including zip code)
STERLING ELECTRONICS CORPORATION 1996 EMPLOYEE STOCK PURCHASE PLAN
July 18, 1996 Non-Qualified Stock Option Agreement with Ronald S. Spolane
July 18, 1996 Non-Qualified Stock Option Agreement with David A. Spolane
(Full title of plan)
RONALD S. SPOLANE
4201 SOUTHWEST FREEWAY
HOUSTON, TEXAS 77027
(Name and address of agent for service)
(713) 627-9800
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
================================================================================
Proposeed Proposed
maximum maximum
Title of each Amount offering aggregate Amount of
class of securities to be price per offering registration
be registered (1) registered (1) share (1) price (1) fee
================================================================================
Common Stock,
$0.50 par value 315,000 shares $12.625 $3,976,875 $1,206.00
================================================================================
Common Stock,
$0.50 par value 367,500 shares $10.71 $3,937,500 $1,194.00
================================================================================
(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(c) and 457(h) under the Securities Act of 1933, as
amended, based on the closing price of the Common Stock on December 30, 1996 for
the 315,000 shares of Common Stock issuable under the Plan and the option
exercise price of $10.71 for the 367,500 shares of Common Stock issuable under
the option agreements.
<PAGE>
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following, which have been filed with the Securities and Exchange
Commission (the "Commission") by Sterling Electronics Corporation, a Nevada
corporation ("Sterling" or the "Company"), are incorporated herein by reference
and made a part hereof:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
March 30, 1996.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), since the
fiscal year ended March 30, 1996.
(c) The description of the Company's common stock, par value $0.50 per
share (the "Common Stock"), which is contained in a Registration Statement on
Form S-1 (File No. 33-28665) as amended, filed with the Commission on May 11,
1989, and a Registration Statement on Form 8-A (File No. 1-1522), as amended,
filed with the Commission June 27, 1994 under the Exchange Act, including any
amendment or report filed for the purpose of updating such description.
All documents filed subsequent to the effective date of this Registration
Statement by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act prior to the filing of a post effective amendment to this
Registration Statement which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference herein and to be a part hereof from the
date of filing such documents. Any statement contained herein or in any 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 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 to constitute a part of this Registration
Statement, except as so modified or superseded.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
David R. Toomim, a director of the Company, is "Of Counsel" to the firm of
Schlanger, Mills, Mayer & Grossberg, L.L.P. and beneficially owns 19,864 shares
of Common Stock which includes currently exercisable options to purchase
11,865 shares of Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
As provided for in Section 78.037 of the Nevada Revised Statutes ("NRS"),
Article XII of the Company's Articles of incorporation, as amended (the
"Articles") ("Article XII"), eliminates or limits the personal liability of
directors for damages for breach of fiduciary duty as a director, except for
acts or omissions which involve intentional misconduct, fraud or a knowing
violation of the law, or the unlawful payment of a dividend.
Article XII further provides that any person who is or was made a party or
is threatened to be made a party to an action by reason of the fact that he is a
director or officer of the Company shall be indemnified and held harmless by the
Company to the full extent authorized by Nevada law against all expense
liability and loss incurred in connection therewith. With respect to the extent
a corporation is permitted to indemnify its directors and officers, NRS Section
78.751 provides as follows:
1) A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative,
except an action by or in the right of the corporation, by reason of the fact
that he is or was a director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses, including attorneys' fees, judgments, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with the action, suit or proceeding if he acted in good faith and in
a manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding, by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, does not, or
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, and that, with respect to any criminal action or
proceeding, he had reasonable cause to believe that his conduct was unlawful.
2) A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses, including amounts paid in
settlement and attorneys' fees actually and reasonably incurred by him in
connection with the defense or settlement of the action or suit if he acted in
good faith and in a manner which he reasonably believed to be in or not opposed
to the best interests of the corporation. Indemnification may not be made for
any claim, issue or matter as to which such a person has been adjudged by a
court of competent jurisdiction, after exhaustion of all appeals therefrom, to
be liable to the corporation or for amounts paid in settlement to the
corporation, unless and only to the extent that the court in which the action or
suit was brought or other court of competent jurisdiction determines upon
application that in view of all the circumstances of the case, the person is
fairly and reasonably entitled to indemnity for such expense as the court deems
proper.
3) To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to the subsections 1 and 2, or in defense of
any claim, issue or matter therein, he must be indemnified by the corporation
against expenses, including attorneys' fees, actually and reasonably incurred by
him in connection with the defense.
4) Any indemnification under subsections 1 and 2, unless ordered by a court
or advanced pursuant to subsection 5, must be made by the corporation only as
authorized in the specific case upon a determination that indemnification of the
director, officer, employee or agent is proper in the circumstances. The
determination must be made:
(a) By the stockholders;
(b) By the board of directors by majority vote of a quorum consisting of
directors who were not parties to the act, suit or proceeding;
(c) If a majority vote of a quorum consisting of directors who were not
parties to the act, suit or proceeding so orders, by independent legal counsel
in a written opinion; or
(d) If a quorum consisting of directors who were not parties to the act,
suit or proceeding cannot be obtained, by independent legal counsel in a written
opinion.
5) The certificate or articles of incorporation, the bylaws or an agreement
made by the corporation may provide that the expenses of officers and directors
incurred in defending a civil or criminal action, suit or proceeding must be
paid by the corporation as they are incurred and in advance of the final
deposition of the action, suit or proceeding upon receipt of an undertaking by
or on behalf of the director or officer to repay the amount if it is ultimately
determined by a court of competent jurisdiction that he is not entitled to be
indemnified by the corporation. The provisions of this subsection do not affect
any rights to advancement of expenses to which corporate personnel other than
directors or officers may be entitled under any contract or otherwise by law.
6) The indemnification and advancement of expenses authorized in or ordered
by a court pursuant to this section:
(a) Does not exclude any other rights to which a person seeking
indemnification or advancement of expenses may be entitled under the certificate
or articles of incorporation or any bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, for either an action in his official
capacity or an action in another capacity while holding his office, except that
indemnification, unless ordered by a court pursuant to subsection 2 or for the
advancement of expenses made pursuant to subsection 5, may not be made to or on
behalf of any director or officer if a final adjudication establishes that his
acts or omission involved intentional misconduct, fraud or a knowing violation
of the law and was material to the cause of action.
(b) Continues for a person who has ceased to be a director, officer,
employee or agent and inures to the benefit of the heirs, executors and
administrators of such a person.
Article V of the Company's bylaws provides that each director and officer
of the Company shall be indemnified by the Company against liabilities and
expenses incurred by him in connection with any claim made against him by reason
of having been such a director or officer except: (i) when he is adjudged to be
liable for negligence or misconduct in the performance of a duty; (ii) with
respect to matters settled, independent counsel shall have deemed the settlement
payment not to be reasonable; or (iii) where such indemnification would be
against public policy.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 (the "Act") may be permitted to directors, officers or persons
controlling the Company pursuant to the foregoing provisions, the Company has
been informed that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is
therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
Unless otherwise indicated below as being incorporated by reference to
another filing of the Company with the Commission, each of the following
exhibits is filed herewith:
4.1 - Sterling Electronics Corporation 1996 Employee Stock Purchase Plan
(filed as Exhibit B to the Company's Definitive Proxy Statement dated July 18,
1996)
4.2 - Option Agreement by and between the Company and Ronald S. Spolane
(filed as Exhibit C to the Company's Definitive Proxy Statement dated July 18,
1996)
4.3 - Option Agreement by and between the Company and David A. Spolane
(filed as Exhibit C to the Company's Definitive Proxy Statement dated July 18,
1996)
4.4 - Specimen stock certificates evidencing Common Stock of Sterling
Electronics Corporation (Incorporated by reference to Exhibit 4.3 to the
Registration Statement on Form S-1 of the Company (File No. 33-28665) filed with
the Securities and Exchange Commission on May 11, 1989)
4.5 - Articles of Incorporation, as amended, of the Company (Incorporated
by reference to Exhibit 3.1 to the Registration Statement on Form S-1 of the
Company (File No. 33-28665) filed with the Securities and Exchange Commission on
May 11, 1989)
4.6 - Bylaws, as amended, of the Company (Incorporated by reference to
Exhibit 3.2 to the Registration Statement on Form S-1 of the Company (File No.
33-28665) filed with the Securities and Exchange Commission on May 11, 1989)
5.1 - Opinion of Schlanger, Mills, Mayer & Grossberg, L.L.P.
23.1 - Consent of Ernst & Young LLP
24.1 - Powers of Attorney
ITEM 9. UNDERTAKING
The undersigned 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 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;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement of any
material change to such information in the Statement; provided, however, that
paragraphs (1) (i) and (1) (ii) do not apply if the information required to be
included in a post-effective amendment by those paragraphs is contained in the
periodic reports filed by the Company pursuant to Section 13 or Section 15(d) of
the Exchange Act that are incorporated by reference in the Registration
Statement.
2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
4) That, for the purposes of determining any liability under the Securities
Act of 1933, each filing of the Company'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.
5) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 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 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 persons 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 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.
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 HOUSTON, STATE OF TEXAS, ON THE 31st DAY OF DECEMBER,
1996.
STERLING ELECTRONICS CORPORATION
By: /s/ MAC McCONNELL
--------------------------------
Mac McConnell,
Vice President-Finance
and Chief Financial Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATE INDICATED.
Signature Title Date
/s/RONALD S. SPOLANE* Chairman of the Board, December 31, 1996
- ---------------------- President, Chief
Ronald S. Spolane Executive Officer and
Director (Principal
Executive Officer)
/s/DAVID A. SPOLANE* Executive Vice President December 31, 1996
- ---------------------- and Director
David A. Spolane
/s/MAC McCONNELL* Vice President-Finance December 31, 1996
- ---------------------- Chief Financial Officer
Mac McConnell Principal Financial
and Accounting Officer)
/s/LEON WEBB, JR.* Vice President, December 31, 1996
- ----------------------
Leon Webb, Jr. Secretary and Treasurer
/s/JAY H. GOLDING* Director December 31, 1996
- ----------------------
Jay H. Golding
/s/S. M. LAMBERT* Director December 31, 1996
- ----------------------
S. M. Lambert, Ph. D.
/s/HERSCHEL G. MALTZ* Director December 31, 1996
- ----------------------
Herschel G. Maltz
/s/DAVID R. TOOMIM* Director December 31, 1996
- ----------------------
David R. Toomim
*By: Mac McConnell
/S/ MAC McCONNELL
-------------------------------
Mac McConnell, Attorney-In-Fact December 31, 1996
Exhibit 5.1
Opinion of Schlanger, Mills, Mayer & Grossberg
December 30, 1996
Sterling Electronics Corp.
4201 Southwest Freeway
Houston, Texas 77027
Ladies and Gentlemen:
We have acted as counsel to Sterling Electronics Corp., a Nevada
corporation (the "Company"), with respect to the Company's Registration
Statement on Form S-8 (the "Registration Statement") relating to the
registration under the Securities Act of 1933, as amended, of up to 682,500
shares of Common Stock, $0.50 par value per share (the "Common Stock") of the
Company pursuant to (i) the Company's 1996 Employee's Stock Purchase Plan (the
"Plan"), (ii) Non-Qualified Stock Option Grant pursuant to Option Agreement by
and between the Company and Ronald Spolane dated July 17, 1996 (the "RSS Option
Agreement"), and (iii) a July 17, 1996 Non-Qualified Stock Option Grant pursuant
to Option Agreement by and between the Company and Donald A. Spolane dated July
17,1996 (the "DAS Option Agreement").
We have examined copies of the Amended and Restated Articles of
Incorporation and the Restated Bylaws of the Company as amended and corrected
and restated to date. We have examined the Plan, the RSS Option Agreement, the
DAS Option Agreement, the Registration Statement and records of corporate
proceedings of the Company.
Based upon the foregoing and the matters hereinafter referred to, and
having due regard for the legal considerations we deem relevant, we are of the
opinion that, subject to the limitations set forth below:
(a) The shares of Common Stock to be issued pursuant to the Plan
(collectively, the "Plan Shares") are duly and validly authorized; and
(b) When the Plan Shares have been duly delivered against payment therefor
as contemplated by the Plan, the Plan Shares will be legally issued, fully paid
and nonassessable.
(c) The shares of Common Stock to be issued upon the exercise of either the
RSS Option Agreement or the DAS Option Agreement (collectively, the "Option
Shares") are duly and validly authorized; and
(d) When the Option Shares have been duly delivered against payment
therefor as contemplated by the applicable Option Agreement, the Option Shares
will be fully paid and nonassessable.
The opinions expressed above are subject to the following assumptions,
qualifications and limitations:
(a) We assume (i) all signatures not witnessed by us are genuine, (ii) the
competency of all persons other than the Company executing such documents,
(iii) all documents submitted to us as originals are authentic, and (iv) all
documents submitted to us as copies are accurate and complete copies of the
originals thereof.
(b) This opinion is limited to the matters expressly set forth herein, and
no opinion is to be implied or may be inferred beyond the matters expressly so
stated.
(c) The opinions expressed herein are limited to the laws of the State of
Texas and applicable federal law. We have assumed for the purposes of this
opinion that the corporate laws of the state of Nevada are the same as the
corporate laws of the State of Texas.
David Toomim, who is Of Counsel to this firm, is a stockholder and director
of the Company. We hereby consent to the use of this opinion as an exhibit to
the Registration Statement.
Very truly yours,
Schlanger, Mills, Mayer & Grossberg, L.L.P.
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Sterling Electronics Corporation 1996 Employee
Stock Purchase Plan, the July 18, 1996 Option Agreement with Ronald S. Spolane,
and the July 18, 1996 Option Agreement with David A. Spolane of our report dated
May 10, 1996, with respect to the consolidated financial statements of Sterling
Electronics Corporation incorporated by reference in its Annual Report (Form
10-K) for the fiscal year ended March 30, 1996 and our report dated June 27,
1996 with respect to the related consolidated financial schedule included
therein, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Houston, Texas
January 2, 1997
Exhibit 24.1
POWER OF ATTORNEY
WHEREAS, Sterling Electronics Corporation, a Nevada corporation (the
"Company"), intends to file with the Securities and Exchange Commission ("SEC")
under the Securities Act of 1933, as amended (the "Act"), a Registration
Statement on Form S-8 (the "Registration Statement"), including any amendments
thereto as may be required by the SEC pursuant to the Act and the rules and
regulations of the SEC promulgated thereunder, along with any and all exhibits
and other documents having relation thereto, which filing will be in connection
with the registration of approximately (i) 315,000 shares of Common Stock, par
value $0.50 per share, of the Company for issuance to certain employees and
directors of the Company pursuant to the Sterling Electronics Corporation 1996
Employee Stock Purchase Plan and (ii) grant of nonqualified stock options to
purchase 367,500 shares of common stock to two executive officers of the
company.
NOW THEREFORE, the undersigned, in their capacities as directors or
officers or both, as the case may be, of the Company, do hereby appoint Messrs.
Ronald S. Spolane and Mac McConnell, or either of them severally, their true and
lawful attorney or attorneys, with power to act with or without the other and
with full power of substitution and resubstitution, to execute in the name,
place, and stead in the capacity as a director, officer, or both, as the case
may be, of the Company, the Registration Statement and any and all amendments to
such Registration Statement, and all instruments necessary of incidental in
connection therewith and to file the same with the SEC. Each of the attorneys
shall have full power and authority to do and perform in the name and on behalf
of the undersigned in any and all capacities every act whatsoever necessary or
desirable to be done in the premises as fully and to all intents and purposes as
the undersigned might or could do in person, the undersigned hereby ratifying
and approving the acts of said attorneys and each of them.
IN WITNESS WHEREOF, the undersigned have executed this instrument in
multiple original counterparts as of the 23rd day of December, 1996.
/s/ LEON WEBB, JR. /S/ HERSCHEL G. MALTZ
-------------------------- -----------------------------
Leon Webb, Jr. Herschel G. Maltz
/S/ S. M. LAMBERT /S/ DAVID A. SPOLANE
__________________________ _____________________________
S. M. Lambert, Ph. D. David A. Spolane
/S/ DAVID R. TOOMIM /S/ RONALD S. SPOLANE
__________________________ _____________________________
David R. Toomim Ronald S. Spolane
/S/ MAC MCCONNELL /S/ JAY H. GOLDING
__________________________ _____________________________
Mac McConnell Jay H. Golding
