As filed with the Securities and Exchange Commission on April 21, 2000
Registration No. 333-93783
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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INGRAM MICRO INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 5045 62-1644402
(State or other jurisdiction of (Primary Standard (I.R.S. Employer
incorporation or organization) Industrial Identification Number)
Classification
Code Number)
1600 E. St. Andrew Place
Santa Ana, CA 92705
(714) 566-1000
(Address, including zip code,
and telephone number, including
area code, of Registrant's
principal executive offices)
James E. Anderson, Jr., Esq. With copies to:
Senior Vice President, Secretary Francis J. Morison, Esq.
and General Counsel Davis Polk & Wardwell
Ingram Micro Inc. 450 Lexington Avenue
1600 E. St. Andrew Place New York, New York 10017
Santa Ana, CA 92705 (212) 450-4000
(714) 566-1000
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
Approximate date of commencement of proposed sale to the public:
As soon as practicable after the Registration Statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or reinvestment plans, please check the following box. |_|
If any of the securities being registered on this form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, check the following box. |X|
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering.|_|
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_| ______________
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The registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with section 8(a) of
the Securities Act of 1933 or until the registration statement shall become
effective on such date as the SEC, acting pursuant to said section 8(a), may
determine.
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PROSPECTUS
INGRAM MICRO INC.
1,500,000 Shares of Class A Common Stock,
Par Value $0.01 per Share
Prospective investors should carefully The selling shareholder may offer or sell
consider the matters discussed under the up to 1,500,000 shares of our Class A
caption "Risk Factors" beginning on page 5. common stock under this prospectus from
time to time. The selling shareholder is
described in more detail on page 17.
We issued a warrant to purchase these
shares to the selling shareholder on
December 3, 1999.
Our common stock is quoted on the New
York Stock Exchange under the symbol "IM."
On April 20, 2000, the closing price of the
common stock on the New York Stock Exchange
was $18.875 per share.
The selling shareholder may offer its
shares of common stock through public or
private transactions, at prevailing market
prices, or at privately negotiated prices.
We will not receive any of the proceeds
from the sale of the common stock. All
costs, expenses and fees in connection with
the registration of the common stock will be
paid by us, except that the selling
shareholder will pay its own underwriting
discounts and selling commissions. See "Plan
of Distribution" beginning on page 17.
The Securities and Exchange Commission has not approved or disapproved of
these shares or determined if this prospectus is truthful or complete. Any
representation to the contrary is a criminal offense.
The date of this prospectus is April 21, 2000.
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TABLE OF CONTENTS
Page
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Prospectus Summary............................................................4
Risk Factors..................................................................5
Where You Can Find More Information...........................................7
Incorporation of Certain Documents by
Reference................................................................7
Forward-Looking Statements....................................................9
Use of Proceeds..............................................................10
Dividend Policy..............................................................10
Description of Capital Stock.................................................11
Selling Shareholder..........................................................17
Plan of Distribution ........................................................17
Legal Matters................................................................19
Experts......................................................................19
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This prospectus includes or incorporates by reference various trademarks and
service marks owned or licensed by Ingram Micro Inc.
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Except as otherwise indicated, all references to "we," "us," or "Ingram
Micro" mean Ingram Micro Inc. and its consolidated subsidiaries, unless the
context otherwise requires.
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Prospectus Summary
This summary highlights some information from this prospectus and in the
documents incorporated by reference in this prospectus.
The Company
We are the leading distributor of information technology products and
services worldwide. We market microcomputer hardware, networking equipment, and
software products to more than 175,000 reseller customers in more than 100
countries. As a distributor, we market our products to resellers and vendors as
opposed to marketing directly to end-user customers.
The Offering
Securities Offered...... 1,500,000 shares of common stock which may be
issued to the selling shareholder under a warrant
dated December 3, 1999. See "Description of
Capital Stock."
Use of Proceeds......... We will not receive any proceeds from the sale by
the selling shareholder of the offered shares.
Registration Agreement.. We have agreed to use our reasonable best efforts to
keep effective a registration statement of which this
prospectus forms a part covering resales of the
offered shares for a certain period. The period
commences on the date this registration statement is
effective and ends on December 3, 2005, or an
earlier date if all of the offered shares have been
sold or cease to be registrable securities under the
terms of the registration agreement. See
"Description of Capital Stock - Registration
Agreement."
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Risk Factors
In addition to the risk factors and other information included or
incorporated by reference in this prospectus, including the information
contained in Exhibit 99.01 to our 1999 Form 10-K and any future updates to that
exhibit, you should carefully consider the following risk factors in connection
with an investment in the offered shares.
The Ingram family stockholders own 86.3% of the aggregate voting power of
our common equity, and are parties to a board representation agreement that
contains various anti-takeover provisions. As of February 1, 2000, Martha R.
Ingram, her children, certain trusts created for their benefit, two charitable
trusts and a foundation created by the Ingram family held 133,528 shares of our
common stock, including 7,666 shares issuable for stock options exercisable
within 60 days of February 1, 2000, in the aggregate and 69,389,096 shares of
Class B common stock in the aggregate, amounting to 86.3% of the aggregate
voting power of the Ingram Micro common equity. Ingram Industries Inc., Ingram
Micro's former parent, which is controlled by the Ingram family stockholders,
held 231,000 shares of our common stock as of February 1, 2000. In addition,
Ingram Entertainment Inc., which is controlled by David B. Ingram, held 2,901
shares of our common stock as of February 1, 2000.
The Ingram family stockholders have entered into a board representation
agreement with Ingram Micro. The board representation agreement provides that
some corporate transactions may not be entered into without the written
approval of a majority of the voting power held by the Ingram family
stockholders, including:
o transactions involving the potential sale or merger of Ingram
Micro,
o the issuance of additional equity, warrants, or options,
o acquisitions involving an aggregate consideration of more than
10% of our common equity, or
o the incurrence of specified types of indebtedness.
The board representation agreement also provides for the election of certain
directors designated by the Ingram family stockholders. See "Description of
Capital Stock - Board Representation Agreement." Voting control by the Ingram
family stockholders may discourage some transactions involving an actual or
potential change of control of Ingram Micro, including transactions in which
the holders of the common stock might receive a premium for their shares over
the prevailing market price of the common stock. In addition, the Delaware
General Corporation Law and Ingram Micro's certificate of incorporation may
make any attempt to obtain control of Ingram Micro more difficult. See
"Description of Capital Stock."
The market price of our common stock has experienced significant
fluctuations and may continue to fluctuate significantly. The market price of
the shares may be significantly affected by, among other factors:
o quarterly variations in our results of operations,
o changes in earnings estimates by market analysts, as well as
failure to meet those estimates,
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o conditions in the personal computer and technology industries,
o general market or economic conditions.
Statements or changes in opinions, ratings, or earnings estimates made by
brokerage firms or industry analysts relating to the market in which we do
business or relating to us specifically could result in an immediate and
adverse effect on the market price of the shares. In addition, in recent years
the stock market has experienced extreme price and volume fluctuations. These
fluctuations have had a substantial effect on the market prices for many
companies in technology-related industries, often unrelated to the operating
performance of the specific companies. We cannot assure you that the market
price of the shares will not decline below the levels prevailing at the time of
purchase of shares offered under this prospectus.
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Where You Can Find More Information
We file annual, quarterly and current reports and other information with
the SEC. You may read and copy any reports, statements or other information on
file at the SEC's public reference room located at 450 Fifth Street, N.W.,
Washington, D.C. 20549. You can request copies of those documents upon payment
of a duplicating fee, by writing to the SEC. In addition, you can inspect
reports, proxy statements and other information concerning Ingram Micro at the
offices of the New York Stock Exchange, 20 Broad Street, New York, New York
10005.
We have filed with the SEC a registration statement on Form S-3. This
prospectus, which forms a part of the registration statement, does not contain
all of the information included in the registration statement. References in
this prospectus to any of our contracts or other documents are not necessarily
complete and you should refer to the exhibits attached to the registration
statement for copies of the actual contract or document. You may review a copy
of the registration statement and the exhibits at the SEC's public reference
room in Washington, D.C. at the above location and at the SEC's regional
offices in Chicago, Illinois and New York, New York. Please call the SEC at
1-800-SEC-0330 for further information on the operation of the public reference
rooms. Our SEC filings and the registration statement can also be reviewed by
accessing the SEC's Internet site at http://www.sec.gov. Copies of the
registration statement and exhibits are also on file at the NYSE and may be
obtained at the above location.
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Incorporation of Certain Documents by Reference
We incorporate by reference into this prospectus the information we file
with the SEC, which means that we can disclose important information to you by
referring you directly to those documents. The information incorporated by
reference is considered part of this prospectus and information that we file
subsequently with the SEC will automatically update and supersede information
contained in this prospectus and the accompanying prospectus supplement. We
incorporate by reference the documents listed below and any filings we make
with the SEC (Exchange Act File Number: 001-12203) under Sections 13(a), 13(c),
14 or 15(d) of the Securities Exchange Act of 1934 after the initial filing of
the registration statement that contains this prospectus and prior to the time
that the securities offered by this prospectus are sold:
o Annual Report on Form 10-K for the fiscal year ended
January 1, 2000, filed with the SEC on March 31, 2000.
o Proxy Statement in connection with our 2000 Annual Meeting
of Shareowners to be held on May 17, 2000, filed with the
SEC on April 13, 2000.
o The description of our common stock contained in our
Exchange Act registration statement on Form 8-A dated
September 19, 1996, filed with the SEC pursuant to Section
12 of the Exchange Act, including any amendment thereto or
report filed for the purpose of updating this description.
o All other reports filed by us pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act since the date of
this prospectus and prior to the termination of this
offering of the shares offered by this prospectus.
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You may request a copy of these filings at no cost, by writing or
telephoning us at the following address:
Ingram Micro Inc.
1600 E. St. Andrew Place
Santa Ana, CA 92705
Attention: Vice President, Investor and Corporate Communications
Telephone number: (714) 566-1000
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Forward-Looking Statements
This prospectus contains "forward-looking statements" within the meaning
of Section 27A of the Securities Act and Section 21E of the Exchange Act. We
caution investors that these forward-looking statements included or
incorporated by reference in this prospectus involve risks and uncertainties.
We intend to identify those forward-looking statements by using words such as:
o "expects,"
o "anticipates,"
o "intends,"
o "plans,"
o "believes,"
o "seeks,"
o "estimates,"
or variations of these words or similar expressions. These statements are based
on current expectations and projections about the technology distribution
industry and assumptions made by our management and are not guarantees of
future performance.
Actual events and results may differ materially from those expressed or
forecasted in the forward- looking statements due to factors such as:
o continued pricing and margin pressures,
o intense competition,
o fluctuations in quarterly results,
o the potential decline as well as seasonal variations in demand
for Ingram Micro's products,
o the capital intensive nature of Ingram Micro's business,
o management of growth and acquisitions,
o dependence on information systems,
o exposure to foreign markets,
o dependence on key individuals,
o dependence on key suppliers and product supply shortages,
o risk of declines in inventory value,
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o dependence on independent shipping companies,
o rapid technological change, and resulting obsolescence risks,
o any reduction of floor planning financing for Ingram Micro's
master reseller business, and
o other risk factors identified in "Risk Factors" and elsewhere
in this prospectus.
We do not undertake any obligation to update any forward-looking
statements in this prospectus.
Use of Proceeds
We will not receive any proceeds from the sale by the selling shareholder
of the offered shares.
Dividend Policy
We have never declared or paid any dividends on our capital stock other
than a distribution of $20 million to Ingram Industries in connection with our
split-off from Ingram Industries in 1996. We currently intend to retain our
future earnings to finance the growth and development of our business and do
not anticipate declaring or paying cash dividends on our capital stock for the
foreseeable future. Any future decision to declare or pay dividends will be at
the discretion of the board of directors. The board of directors may consider
our financial condition, results of operations, capital requirements, and other
factors as they deem relevant. In addition, some of our debt facilities contain
restrictions on the declaration and payment of dividends.
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Description of Capital Stock
Our authorized capital stock consists of:
o 265,000,000 shares of Class A common stock, par value $0.01
per share, of which 71,597,655 shares were issued and
outstanding as of March 27, 2000, and
o 135,000,000 shares of Class B common stock, par value $0.01
per share, of which 73,142,787 shares were issued and
outstanding as of March 27, 2000.
We refer to the Class A common stock as common stock, and we refer to the
Class A common stock together with the Class B common stock as the common
equity in this prospectus.
Our certificate of incorporation also authorizes us to issue up to
1,000,000 shares of preferred stock, par value $0.01 per share, on terms
determined by our board of directors. This summary describes our capital stock
structure. For greater detail, you should rely on our certificate of
incorporation and the amended and restated bylaws of Ingram Micro, which have
been filed or incorporated by reference as exhibits to this registration
statement.
Common Equity
The shares of common stock and Class B common stock are identical in all
respects, except for voting rights and certain conversion rights, as described
below.
Voting Rights. Each share of common stock entitles the holder to one vote
on each matter submitted to a vote of our shareowners, including the election
of directors. Each share of Class B common stock entitles the holder to ten
votes on each of these matters. Except as required by applicable law, holders
of the common stock and Class B common stock vote together as a single class on
all matters submitted to a vote of our shareowners. There is no cumulative
voting. See "Risk Factors - The Ingram family stockholders own 86.3% of the
aggregate voting power of the Ingram Micro common equity, and are parties to a
board representation agreement that contains various anti-takeover provisions."
So long as any shares of Class B common stock are outstanding, if we
receive signed consents from shareowners having the minimum number of votes
necessary to approve an action at a meeting at which all shares entitled to
vote on the matter were present and voted, any action that may be taken at a
meeting of the shareowners may be taken by written consent in lieu of a
meeting. This action could permit certain holders of Class B common stock to
take action regarding matters without providing other shareowners the
opportunity to voice dissenting views or raise other matters. The right to take
this action by written consent of shareowners will expire when all outstanding
shares of Class B common stock cease to be outstanding.
Dividends, Distributions, and Stock Splits. Holders of common stock and
Class B common stock are entitled to receive dividends at the same rate if any
dividends are declared by the board of directors out of assets legally
available therefor after the payment of dividends required to be paid on shares
of preferred stock, if any.
In the case of dividends or distributions payable in common equity, only
shares of common stock will be distributed to the common stockholders and only
shares of Class B common stock will be distributed to the Class B common
stockholders.
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Neither the common stock nor the Class B common stock may be subdivided or
combined in any manner unless the other class is subdivided or combined in the
same proportion.
Conversion. The common stock has no conversion rights.
The Class B common stock is convertible into common stock, in whole or in
part, at any time, on the basis of one share of common stock for each share of
Class B common stock converted.
Each share of Class B common stock will also automatically convert into
one share of common stock upon the earliest to occur of:
o November 6, 2001;
o the sale or transfer of a share of Class B common stock (a)
by a holder that is a party to the board representation
agreement to any person that is not an affiliate, spouse or
descendant of that holder, their estates or trusts for
their benefit or any other party to the exchange agreement
which effected the split-off from Ingram Industries in
1996, or (b) by any other holder, to a holder that is not
the spouse or descendant of that holder or their estates or
trusts for their benefit; or
o the date on which the number of shares of Class B common
stock then outstanding is less than 25% of the aggregate
number of shares of common equity then outstanding.
Liquidation. If we dissolve, liquidate or wind up our affairs, whether
voluntarily or involuntarily, after paying our debts and other liabilities and
making provision for the holders of preferred stock, if any, our remaining
assets will be distributed ratably among the holders of the common stock and
the Class B common stock, treated as a single class.
Mergers and Other Business Combinations. The holders of each class of
common equity will be entitled to receive an equal per share amount of stock,
securities, cash and/or any other property, upon a merger, combination, or
other similar transaction in which our shares of common equity are exchanged
for or changed into other stock or securities, cash and/or any other property.
We note that in a transaction where shares of capital stock are distributed,
the shares so exchanged for or changed into may differ as to voting rights and
some conversion rights to the extent that the voting rights and those
conversion rights of common stock and Class B common stock differ at that time.
Other Provisions. The holders of the common stock and Class B common stock
are not entitled to preemptive rights. There are no redemption provisions or
sinking fund provisions applicable to the common stock or the Class B common
stock.
Preferred Stock
Our board of directors is authorized to provide for the issuance of shares
of preferred stock in one or more series. This authority includes the right:
o to establish the number of shares;
o to fix the rights, powers, preferences, and privileges of the
shares;
o to fix any qualifications and restrictions thereon; and,
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o to increase or decrease the number of shares, without any
further vote or action by the shareowners.
Depending upon the terms of the preferred stock established by the board
of directors, any or all series of preferred stock could have preference over
the common equity dividends and other distributions and upon our liquidation.
They could also have voting or conversion rights that may adversely affect the
holders of the outstanding common equity. We have no present plans to issue any
shares of preferred stock.
Registration Agreement
We have filed this registration statement with the SEC. We will use our
reasonable best efforts to keep the registration statement effective under the
registration agreement for a defined period. This period starts when this
registration statement is effective and ends on December 3, 2005 or an earlier
date if all of the offered shares have been sold or cease to be registrable
securities. According to the terms of the registration agreement, registrable
securities means any shares of Ingram Micro common stock issued or issuable to
a selling shareholder upon exercise of the warrant; provided that the offered
shares shall cease to be registrable securities if:
o a registration statement concerning the offered shares
shall have become effective under the Securities Act and
the shares shall have been disposed of under this effective
registration statement,
o the offered shares shall have been sold under Rule 144,
o all of the offered shares have been otherwise transferred
to selling shareholder who may trade these shares without
restriction under the Securities Act, and Ingram Micro has
delivered a new certificate or other evidence of ownership
for the offered shares not bearing a restrictive legend, or
o in our counsel's opinion, all of the offered shares may be
sold without any time, volume or manner limitations under
Rule 144(k).
If there is any change in corporate structure affecting our common stock,
an adjustment shall be deemed to be made in the definition of registrable
securities in the registration agreement as is appropriate in order to prevent
any dilution or enlargement of the rights granted under that agreement.
We are permitted to suspend the use of this prospectus under certain
circumstances relating to pending corporate developments, public filings with
the SEC and similar events for a period no longer than 60 days, and no more
than 120 days in any 12-month period.
A holder who sells shares pursuant to the registration statement generally
will be required to be named as a selling shareholder in this prospectus,
deliver this prospectus to purchasers of the offered shares and be bound by
certain provisions of the registration agreement that are applicable to that
holder, including indemnification provisions.
We have agreed to pay all expenses of the registration statement, except
for underwriting fees attributable to the sale of registrable securities. We
have also agreed to provide to each registered holder copies of this
prospectus, to notify each registered holder when the registration statement
has become effective and to take certain other required actions to permit
unrestricted resales of the shares. The plan
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of distribution of this prospectus permits resales of offered shares by selling
shareholder through brokers and dealers.
Limitation of Liability; Indemnification
As permitted by the Delaware General Corporation Law, the certificate of
incorporation provides that our directors shall not be personally liable to
Ingram Micro or our shareowners for monetary damages for breach of fiduciary
duty as a director. The DGCL provides that this liability may be so limited,
except for liability:
o for any breach of the director's duty of loyalty to Ingram Micro
or its shareowners,
o for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of the law,
o under Section 174 of the DGCL, relating to prohibited dividends
or distributions or the repurchase or redemption of stock, or
o for any transaction from which the director derives an improper
personal benefit.
Each person who is or was a party to any action by reason of the fact that
the person is or was a director or officer of Ingram Micro shall be indemnified
and held harmless by us to the fullest extent permitted by the DGCL. This right
to indemnification also includes the right to have us pay the expenses incurred
in connection with any proceeding in advance of its final disposition. We may,
by action of the board of directors, provide indemnification to other employees
and agents of Ingram Micro to the extent the board of directors determines to
be appropriate under the DGCL.
As a result of this provision, Ingram Micro and its shareowners may be
unable to obtain monetary damages from a director for breach of his duty of
care. Although shareowners may continue to seek injunctive or other equitable
relief for an alleged breach of fiduciary duty by a director, shareowners may
not have any effective remedy against the challenged conduct. We also reserve
the right to purchase and maintain directors' and officers' liability
insurance.
Board Representation Agreement
Ingram Micro and the Ingram family stockholders have entered into a board
representation agreement. The board representation agreement provides for the
designation of specific nominees. These nominees are as follows:
o not more than three directors designated by the Ingram family
stockholders,
o one director designated by our chief executive officer, and
o four or five additional independent directors who are not
members of the Ingram family or executive officers or
employees of Ingram Micro.
Directors designated by the Ingram family stockholders may, but are not
required to, include Martha R. Ingram, any of her legal descendants, or any of
their respective spouses. Messrs. Orrin H. Ingram II and John R. Ingram and
Mrs. Ingram are the directors designated by the Ingram family stockholders; Mr.
Kent B. Foster is the director designated by our chief executive officer; and
Messrs. Don H. Davis, Jr.,
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Philip M. Pfeffer, Gerhard Schulmeyer, Jerre L. Stead, and Joe B. Wyatt are
considered independent directors. Each of the parties to the board
representation agreement, other than Ingram Micro, has agreed to vote its
shares of common equity in favor of the designated nominees. The Ingram family
stockholders' holdings of common equity are sufficient to guarantee the
election of the designated nominees.
The board representation agreement provides for the formation of certain
committees of the board of directors. As provided in the bylaws and the board
representation agreement, Ingram Micro has four committees:
o an executive committee,
o a nominating committee,
o an audit committee, and
o a human resources committee.
In addition to provisions relating to the designation of directors, the
board representation agreement provides that some corporate transactions may
not be entered into without the written approval of a majority of the voting
power held by the Ingram Family stockholders. These transactions are described
in more detail under the caption "Risk Factors".
The board representation agreement will terminate on the date on which the
Ingram family stockholders collectively cease to beneficially own at least
25,000,000 shares of our common equity. This number may be equitably adjusted
to reflect stock splits, stock dividends, recapitalizations, and other
transactions in the capital stock of Ingram Micro. All decisions for the Ingram
family stockholders that are trusts or foundations will be made by the trustees
thereof, who in some cases are members of the Ingram family.
Other Certificate of Incorporation and Bylaw Provisions
The bylaws provide that a majority of the total number of directors shall
constitute a quorum for the transaction of business. The board of directors may
act by unanimous written consent. The board representation agreement contains
additional provisions relating to corporate governance, as described above.
Annual meetings of shareowners shall be held to elect the board of
directors and transact any other business as may be properly brought before the
meeting. Special meetings of shareowners may be called by the chairman and
shall be called by the secretary on the written request of shareowners having
10% of the voting power of Ingram Micro. Shareowners may act by written consent
in lieu of a meeting until all shares of Class B common stock cease to be
outstanding.
The certificate of incorporation may be amended with the approval of the
board of directors by the vote required as described above. For so long as any
shares of Class B common stock remain outstanding, in addition to any vote
required by law, any amendment also requires the approval of the holders of a
majority of Ingram Micro's outstanding voting power and a majority of the
members of the board of directors.
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However, any amendment to the provisions of the certificate of
incorporation relating to the common equity also requires the consent of a
majority of the outstanding voting power held by the Ingram family
stockholders. The bylaws may be amended with the approval of three-quarters of
the entire board of directors or by the holders of 75% of Ingram Micro's voting
power present and entitled to vote at any annual or special meeting of
shareowners at which a quorum is present.
The number of directors which shall constitute the whole board of
directors shall be fixed by resolution of the board of directors. The number of
directors shall be eight or nine. The board currently has nine members. The
vote of a majority of the entire board is required for all actions of the
board. The directors shall be elected at the annual meeting of the shareowners,
except for filling vacancies. Directors may be removed with the approval of the
holders of a majority of Ingram Micro's voting power present and entitled to
vote at a meeting of shareowners. Vacancies and newly created directorships on
the board of directors resulting from any increase in the number of directors
may be filled by a majority of the directors then in office, although less than
a quorum, a sole remaining director, or the holders of a majority of the voting
power present and entitled to vote at a meeting of shareowners. So long as the
Ingram family stockholders and their permitted transferees own at least
25,000,000 shares of the common equity, the bylaws will provide for the
appointment of the designated nominees.
The presence, in person or by proxy, of the holders of a majority of the
votes entitled to be cast by the shareowners entitled to vote generally, shall
constitute a quorum for shareowner action at any meeting.
Section 203 of the DGCL
We are subject to Section 203 of the DGCL which, subject to certain
exceptions, prohibits a Delaware corporation from engaging in a "business
combination" with an "interested stockholder" for a period of three years after
the date of the transaction in which the person became an interested
stockholder, unless:
o upon consummation of such transaction the interested
stockholder owned 85% of the voting stock of the
corporation outstanding at the time the transaction
commenced, or
o the business combination is, or the transaction in which
such person became an interested stockholder was, approved
in a prescribed manner.
A "business combination" includes a merger, an asset sale and any other
transaction resulting in a financial benefit to the interested stockholder. An
"interested stockholder" is a person who, together with affiliates and
associates, owns 15% or more of the corporation's voting stock.
Transfer Agent
The transfer agent and registrar for the common stock is First Chicago
Trust Company of New York, a division of EquiServe.
Selling Shareholder
We originally issued the right to purchase the 1,500,000 shares of common
stock offered in this prospectus to the selling shareholder under a warrant
dated December 3, 1999, in a transaction exempt from the registration
requirements of the Securities Act. The term "selling shareholder" includes
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SOFTBANK Corp., a Japanese corporation, and its transferees, pledgees, donees,
successors or assigns, and any other person who becomes a party to or agrees to
be bound by the registration agreement. In 1998, we entered into a strategic
alliance with SOFTBANK to provide global services to value-added resellers,
with Ingram Micro serving as SOFTBANK's supplier in markets outside Japan and
Korea, and SOFTBANK fulfilling our sales to the Japanese and Korean markets.
The selling shareholder currently owns 1,168,682 outstanding shares of our
common stock and has the right to purchase an additional 1,500,000 shares
pursuant to the warrant. Assuming the selling shareholder had exercised its
warrant to purchase 1,500,000 shares of Ingram Micro common stock on March 27,
2000, it would have owned approximately 1.81% of the outstanding common equity
as of such date.
Plan of Distribution
The selling shareholder may offer the common stock from time to time:
o on the New York Stock Exchange,
o on other exchanges on which the common stock may be listed,
o in the over-the-counter market,
o in other ways not involving market-makers or established
trading markets, including direct sales to purchasers or
sales effected through agents.
The shares may be sold at prices and at terms then prevailing, at prices
related to the then current market price or in negotiated transactions. The
shares may be sold in one or more of these transactions:
o a block trade in which the broker or dealer so engaged will
attempt to sell the shares as agent, but may position and
resell a portion of the block as principal to facilitate
the transaction,
o purchases by a broker or dealer as principal and resale by such
broker or dealer for its account pursuant to this prospectus,
o an exchange distribution in accordance with the rules of an
exchange,
o ordinary brokerage transactions and transactions in which the
broker or dealer solicits purchasers,
o pursuant to call and put options or similar rights giving
the holder, the broker or dealer the right to purchase or
the selling shareholder, the broker or dealer the right to
sell a fixed amount of common stock at pre-negotiated
prices,
o by bona fide pledgees of shares pursuant to loan and pledge
agreements with the selling shareholder.
Brokers or dealers will receive commissions or discounts from the selling
shareholder in amounts to be negotiated by the selling shareholder.
17
At the time a particular offering of the offered shares is made, a
prospectus supplement, if required, will be distributed. This prospectus
supplement and, if necessary, a post-effective amendment to the registration
statement of which this prospectus is a part, will be filed with the SEC to
reflect the disclosure of the additional information. In addition, the offered
shares covered by this prospectus may be sold in private transactions or under
Rule 144 rather than with this prospectus.
To the best of our knowledge, the selling shareholder currently has no
plans, arrangements or understandings with any broker/dealer, agent or
underwriter regarding the sale of the offered shares.
The selling shareholder and any other person participating in this
distribution will be subject to applicable provisions of the Exchange Act and
the rules and regulations thereunder, including, without limitation, Regulation
M of the Exchange Act which may limit the timing of purchases and sales of any
of the offered shares by the selling shareholder or any other person.
Furthermore, Regulation M may restrict the ability of any person engaged in the
distribution of the offered shares to engage in market- making activities with
respect to the particular offered shares being distributed for a period of up
to five business days prior to the commencement of that distribution. All of
the foregoing may affect the marketability of the offered shares and the
ability of any person or entity to engage in market-making activities with
respect to the offered shares.
Under the registration agreement entered into in connection with the
registration of the shares by Ingram Micro, each of Ingram Micro and the
selling shareholder will be indemnified by the other against certain
liabilities, including certain liabilities under the Securities Act, or will be
entitled to contribution in connection therewith.
Under the registration agreement, the selling shareholder will not pay any
expenses of the registration of the offered shares, including, without
limitation, all registration and filing fees, including, without limitation:
o with respect to filings required to be made with the National
Association of Securities Dealers, Inc. and
o of compliance with federal and state securities or blue sky
laws.
Ingram Micro will register or qualify or cooperate with the selling
shareholder in connection with the registration or qualification or exemption
from the registration or qualification of the offered shares for offer and sale
under securities or blue sky laws of the jurisdictions within the United States
as any selling shareholder reasonably requests in writing.
Legal Matters
The validity of the shares offered by this prospectus will be passed upon
for Ingram Micro by Davis Polk & Wardwell.
18
Experts
The consolidated financial statements incorporated in this prospectus by
reference to Ingram Micro's Annual Report on Form 10-K for the year ended
January 1, 2000, have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
19
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
An itemized statement of the estimated amount of the expenses, other than
underwriting discounts and commissions, incurred and to be incurred in
connection with the distribution of the shares registered pursuant to this
registration statement follows. Except for the Securities and Exchange
Commission registration fee, all amounts are estimates.
Securities and Exchange Commission registration fee.................$ 4,925
Printing and engraving expenses..................................... 10,000
Accounting fees and expenses........................................ 8,000
Legal fees and expenses............................................. 25,000
Transfer Agent fees and expenses.................................... 5,000
Miscellaneous....................................................... 2,075
----------
Total.....................................................$ 55,000
==========
Item 15. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law provides, in effect,
that any person made a party to any action by reason of the fact that he is or
was a director, officer, employee or agent of Ingram Micro may and, in certain
cases, must be indemnified by Ingram Micro against, in the case of a non-
derivative action, judgments, fines, amounts paid in settlement and reasonable
expenses (including attorneys' fees) incurred by him as a result of such
action, and in the case of a derivative action, against expenses (including
attorneys' fees), if in either type of action he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
Ingram Micro. This indemnification does not apply, in a derivative action, to
matters as to which it is adjudged that the director, officer, employee or
agent is liable to Ingram Micro, unless upon court order it is determined that,
despite such adjudication of liability, but in view of all the circumstances of
the case, he is fairly and reasonably entitled to indemnity for expenses, and,
in a non-derivative action, to any criminal proceeding in which such person had
reasonable cause to believe his conduct was unlawful.
Section 102 of the DGCL allows Ingram Micro to eliminate or limit the
personal liability of a director to Ingram Micro or to any of its stockholders
for monetary damage for a breach of fiduciary duty as a director, except in the
case where the director:
o breaches such person's duty of loyalty to the Company or its
stockholders,
o fails to act in good faith, engages in intentional misconduct or
knowingly violates a law,
o authorizes the payment of a dividend or approves a stock
purchase or redemption in violation of Section 174 of the
DGCL or
o obtains an improper personal benefit.
Article Tenth of Ingram Micro's certificate of incorporation includes a
provision which eliminates directors' personal liability to the fullest extent
permitted under the DGCL.
II- 1
Article Tenth of Ingram Micro's certificate of incorporation also provides
that Ingram Micro shall indemnify any person (and the heirs, executors or
administrators of such person) who was or is a party or is threatened to be
made a party to, or is involved in any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative,
by reason of the fact that such person is or was a director or officer of
Ingram Micro or is or was serving at the request of Ingram Micro as a director
or officer of another corporation, partnership, joint venture, trust or other
enterprise, to the fullest extent permitted by Delaware Law. Each such
indemnified party shall have the right to be paid by Ingram Micro for any
expenses incurred in connection with any such proceeding in advance of its
final disposition to the fullest extent authorized by Delaware Law. Article
Tenth of Ingram Micro's certificate of incorporation also provides that Ingram
Micro may, by action of its board of directors, provide indemnification to such
of the employees and agents of Ingram Micro to such extent and to such effect
as the board of directors shall determine to be appropriate and authorized by
Delaware Law.
As permitted by Delaware Law and Ingram Micro's certificate of
incorporation, we maintain insurance covering our directors and officers
against certain liabilities incurred by them in their capacities as such,
including among other things, certain liabilities under the Securities Act of
1933, as amended.
Item 16. Exhibits
(a) List of Exhibits.
4.01 -- Registration Agreement dated as of December 3, 1999 between Ingram
Micro Inc. and SOFTBANK Corp.*
4.02 -- Warrant Agreement dated as of December 3, 1999 between Ingram Micro
Inc. and SOFTBANK Corp.*
5.01 -- Opinion of Davis Polk & Wardwell*
23.01 -- Consent of PricewaterhouseCoopers LLP
23.02 -- Consent of Davis Polk & Wardwell (included in Exhibit 5.01)*
24.01 -- Powers of Attorney of certain officers and directors of Ingram Micro
Inc. (included on the signature pages hereof and of the original
filing of this registration statement)
99.01 -- Cautionary Statements for Purposes of the "Safe Harbor" Provisions
of the Private Securities Litigation Reform Act of 1995 (incorporated
by reference to Exhibit 99.01 to Ingram Micro Inc.'s Annual Report on
Form 10-K for the fiscal year ended January 1, 2000 filed with the
SEC on March 31, 2000)
- -------------------
* Filed previously with the original registration statement on December 29,
1999.
Item 17. Undertakings
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
II- 2
registration statement. Notwithstanding the foregoing, any increase
or decrease in volume of shares offered (if the total dollar value of
shares 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 SEC
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; and
(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;
provided, however, that if the information required to be included in a
post-effective amendment by paragraphs (1) (i) and (ii) above is contained in
periodic reports filed with or furnished to the SEC by the registrant pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934, paragraphs (1)
(i) and (ii) shall not apply.
(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 shares offered therein,
and the offering of such shares 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 shares being registered which remain unsold at the
termination of the offering.
(4) The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 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 relating to shares offered therein, and the
offering of such shares at that time shall be deemed to be the initial
bona fide offering thereof.
(5) The undersigned registrant hereby undertakes to supplement the
prospectus, after the expiration of the subscription period, to set forth
the results of the subscription offer, the transactions by any
underwriters during the subscription period, the amount of unsubscribed
securities to be purchased by any underwriters, and the terms of any
subsequent offering thereof. If any public offering by the underwriters is
to be made on terms differing from those set forth on the cover page of
the prospectus, a post-effective amendment will be filed to set forth the
terms of such offering.
(6) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of Ingram Micro pursuant to the foregoing provisions, or
otherwise, Ingram Micro has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by Ingram Micro of expenses incurred
or paid by a director, officer or controlling person of Ingram Micro in
the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the shares
being registered, Ingram Micro 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 of whether such indemnification by
it is
II- 3
against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
II- 4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Ingram Micro
Inc. certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-3 and has duly caused this amendment to
the registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Santa Ana, State of California, on
this 21 day of April, 2000.
INGRAM MICRO INC.
By: /s/ James E. Anderson, Jr.
----------------------------------
Name: James E. Anderson, Jr.
Title: Senior Vice President,
Secretary and General
Counsel
POWER OF ATTORNEY
The registrant and each person whose signature appears below constitutes
and appoints Jerre L. Stead, Michael J. Grainger, James E. Anderson, Jr., and
Kent B. Foster, and any agent for service named in this amendment to the
registration statement and each of them, his, her, or its true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him, her, or it and in his, her, or its name, place and
stead, in any and all capacities, to sign and file (i) any and all further
amendments (including post-effective amendments) to this registration
statement, with all exhibits thereto, and other documents in connection
therewith, and (ii) a registration statement, and any and all amendments
thereto, relating to the offering covered hereby filed pursuant to Rule 462(b)
under the Securities Act of 1933, with the Securities and Exchange Commission,
granting unto said attorneys-in- fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite or
necessary to be done in and about the premises, as fully to all intents and
purposes as he, she, or it 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.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS AMENDMENT
TO THE REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
Signature Title Date
--------- ----- ----
/s/ Kent B. Foster
- -------------------------- Chief Executive Officer and April 21, 2000
KENT B. FOSTER President (Principal Executive
Officer and Director)
*
- -------------------------- Executive Vice President and April 21, 2000
MICHAEL J. GRAINGER Worldwide Chief Financial
Officer (Principal Financial
Officer and Principal Accounting
Officer)
*
- -------------------------- Chairman of the Board April 21, 2000
JERRE L. STEAD
*
- -------------------------- Director April 21, 2000
DON H. DAVIS, JR.
II- 5
Signature Title Date
--------- ----- ----
*
- -------------------------- Director April 21, 2000
JOHN R. INGRAM
*
- -------------------------- Director April 21, 2000
MARTHA R. INGRAM
*
- -------------------------- Director April 21, 2000
ORRIN H. INGRAM II
*
- -------------------------- Director April 21, 2000
PHILIP M. PFEFFER
*
- -------------------------- Director April 21, 2000
GERHARD SCHULMEYER
*
- -------------------------- Director April 21, 2000
JOE B. WYATT
/s/ James E. Anderson, Jr.
- --------------------------
James E. Anderson, Jr.
Attorney-in-fact
II- 6
EXHIBIT INDEX
Exhibit
No. Description
- ------- -----------
4.01 -- Registration Agreement dated as of December 3, 1999 between Ingram
Micro Inc. and SOFTBANK Corp.*
4.02 -- Warrant Agreement dated as of December 3, 1999 between Ingram Micro
Inc. and SOFTBANK Corp.*
5.01 -- Opinion of Davis Polk & Wardwell*
23.01 -- Consent of PricewaterhouseCoopers LLP
23.02 -- Consent of Davis Polk & Wardwell (included in Exhibit 5.01)*
24.01 -- Powers of Attorney of certain officers and directors of Ingram Micro
Inc. (included on the signature pages hereof and of the original
filing of this registration statement)
99.01 -- Cautionary Statements for Purposes of the "Safe Harbor" Provisions
of the Private Securities Litigation Reform Act of 1995 (incorporated
by reference to Exhibit 99.01 to Ingram Micro Inc.'s Annual Report on
Form 10-K for the fiscal year ended January 1, 2000 filed with the
SEC on March 31, 2000)
- -------------------
* Filed previously with the original registration statement on December 29,
1999.
II- 7
EXHIBIT 23.01
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated February 17, 2000, except as to the
second paragraph of Note 5, which is as of March 8, 2000, relating to the
financial statements, which appears in the 1999 Annual Report to Shareowners,
which is incorporated by reference in Ingram Micro Inc.'s Annual Report on Form
10-K for the year ended January 1, 2000. We also consent to the incorporation
by reference of our report dated February 17, 2000, except as to the second
paragraph of Note 5, which is as of March 8, 2000, relating to the financial
statement schedule, which appears in such Annual Report on Form 10-K. We also
consent to the references to us under the headings "Experts" in such
Registration Statement.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Costa Mesa, California
April 14, 2000