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As filed with the Securities and Exchange Commission on February 3, 1998
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
ENTEX INFORMATION SERVICES, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 93-133715291
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION) IDENTIFICATION NO.)
6 INTERNATIONAL DRIVE
RYE BROOK, NEW YORK 10573-1058
(ADDRESS, INCLUDING ZIP CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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ENTEX HOLDINGS, INC. 1996 STOCK OPTION PLAN
ENTEX INFORMATION SERVICES, INC. 1996 STOCK OPTION PLAN
1996 PERFORMANCE INCENTIVE PLAN
1996 NON-EMPLOYEE DIRECTOR STOCK PLAN
(FULL TITLE OF THE PLANS)
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JOHN A. MCKENNA, JR.
PRESIDENT AND CHIEF EXECUTIVE OFFICER
ENTEX INFORMATION SERVICES, INC.
6 INTERNATIONAL DRIVE
RYE BROOK, NEW YORK 10573-1058
(914) 935-3600
(NAME, ADDRESS, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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Copies to:
JOHN T. SHERIDAN, ESQ. LYNNE A. BURGESS, ESQ.
WILSON SONSINI GOODRICH & ROSATI SENIOR VICE PRESIDENT AND GENERAL COUNSEL
PROFESSIONAL CORPORATION ENTEX INFORMATION SERVICES, INC.
650 PAGE MILL ROAD 6 INTERNATIONAL DRIVE
PALO ALTO, CA 94304 RYE BROOK, NEW YORK 10573-1058
(650) 493-9300 (914) 935-3600
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=================================================================================================================
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF EACH CLASS AMOUNT OFFERING AGGREGATE AMOUNT OF
OF SECURITIES TO TO BE PRICE OFFERING REGISTRATION
BE REGISTERED REGISTERED(1) PER SHARE(2) PRICE(2) FEE
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<S> <C> <C> <C> <C>
COMMON STOCK, $.0001 PAR VALUE.. 9,149,310 SHARES $4.43 $40,531,443.30 $11,956.78
=================================================================================================================
</TABLE>
(1) INCLUDES 2,825,510 SHARES TO BE REGISTERED UNDER THE ENTEX HOLDINGS,
INC. 1996 STOCK OPTION PLAN (THE "HOLDINGS PLAN"), 806,295 SHARES TO BE
REGISTERED UNDER THE ENTEX INFORMATION SERVICES, INC. 1996 STOCK OPTION
PLAN (THE "EIS PLAN"), 5,413,195 SHARES TO BE REGISTERED UNDER THE 1996
PERFORMANCE INCENTIVE PLAN (THE "PIP"), 104,310 SHARES TO BE REGISTERED
UNDER THE 1996 NON-EMPLOYEE DIRECTOR STOCK PLAN (THE "DIRECTOR PLAN")
AND SUCH ADDITIONAL NUMBER OF SHARES AS MAY BE REQUIRED PURSUANT TO THE
HOLDING PLAN, THE EIS PLAN, THE PIP AND THE DIRECTOR PLAN IN THE EVENT
OF A STOCK DIVIDEND, REVERSE STOCK SPLIT, SPLIT-UP, RECAPITALIZATION OR
SIMILAR EVENT.
(2) THE PROPOSED MAXIMUM OFFERING PRICE PER SHARE WAS ESTIMATED PURSUANT TO
RULE 457(h) UNDER THE SECURITIES ACT OF 1933, AS AMENDED. WITH RESPECT
TO (i) 2,825,510
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SHARES WHICH ARE SUBJECT TO OUTSTANDING OPTIONS TO PURCHASE COMMON STOCK
UNDER THE HOLDINGS PLAN, (ii) 806,295 SHARES WHICH ARE SUBJECT TO
OUTSTANDING OPTIONS TO PURCHASE COMMON STOCK UNDER THE EIS PLAN AND
(iii) 2,581,750 SHARES WHICH ARE SUBJECT TO OUTSTANDING OPTIONS TO
PURCHASE COMMON STOCK UNDER THE PIP PLAN, THE PROPOSED MAXIMUM OFFERING
PRICE PER SHARE WAS BY CALCULATED USING THE WEIGHTED AVERAGE EXERCISE
PRICE OF SUCH OPTIONS. THE WEIGHTED AVERAGE EXERCISE PRICE OF : (i) THE
2,825,510 SHARES SUBJECT TO OUTSTANDING OPTIONS UNDER THE HOLDINGS PLAN
IS $5.01, (ii) THE 806,295 SHARES SUBJECT TO OUTSTANDING OPTIONS UNDER
THE EIS PLAN IS $5.41 AND (iii) THE 2,581,750 SHARES SUBJECT TO
OUTSTANDING OPTIONS UNDER THE PIP PLAN IS $3.28. WITH RESPECT TO THE (i)
2,831,445 SHARES AVAILABLE FOR FUTURE GRANT UNDER THE PIP PLAN AND (ii)
104,310 SHARES AVAILABLE FOR FUTURE ISSUANCE UNDER THE DIRECTOR PLAN,
THE ESTIMATED PROPOSED MAXIMUM OFFERING PRICE PER SHARE IS BASED ON AN
ESTIMATED EXERCISE PRICE OF $4.63. THE NUMBER REFERENCED ABOVE IN THE
TABLE ENTITLED "PROPOSED MAXIMUM OFFERING PRICE PER SHARE" REPRESENTS A
WEIGHTED AVERAGE OF THE FOREGOING ESTIMATES CALCULATED IN ACCORDANCE
WITH RULE 457(h).
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
There are hereby incorporated by reference the following documents and
information heretofore filed with the Securities and Exchange Commission (the
"Commission"):
ITEM 3(a).
o The Registrant's Pre-Effective Amendment No. 2 to the Registration
Statement on Form 10 pursuant to Section 12(g) of the Securities
Exchange Act of 1934 (the "Exchange Act") filed with the Commission
on January 29, 1998 and effective February 2, 1998 containing
audited financial statements for the fiscal year ended June 29,
1997.
ITEM 3(b).
o Not Applicable.
ITEM 3(c).
o The description of the Registrant's Common Stock which is contained
in Item 11 of the Registrant's Pre-Effective Amendment No. 2 to the
Registration Statement on Form 10 filed pursuant to Section 12(g) of
the Exchange Act as filed with the Commission on January 29, 1998,
as amended, and any further amendment or report filed hereafter for
the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this registration statement and to be part
hereof from the date of filing such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As permitted by Section 145 of the Delaware General Corporation Law
("DGCL") the Company's Certificate of Incorporation, as amended, includes a
provision that eliminates the personal liability of its
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directors for monetary damages for breach of their duty of care. In addition, as
permitted by Section 145 of the DGCL, the Bylaws of the Company provide that:
(i) the Company is required to indemnify its directors and officers and persons
serving in such capacities in other business enterprises (including, for
example, subsidiaries of the Company) at the Company's request, to the fullest
extent permitted by Delaware law; (ii) the Company is required to indemnify its
directors and officers and persons serving in such capacities in other business
enterprises at the Company's request in connection with any action, suit, or
proceeding initiated by such person only if such initiation was authorized by
the Board of Directors; (iii) the Company may, in its discretion, indemnify
employees and agents in those circumstances where indemnification is not
required by law; (iv) the Company is required to advance expenses, as incurred,
to its directors and officers in connection with defending a proceeding; (v) the
rights conferred in the Bylaws are not exclusive; and (vi) the Company may not
retroactively amend the Bylaw provisions in a way that is adverse to such
directors, officers and employees.
The Company's policy is to enter into indemnification agreements with
each of its directors and officers that provide the maximum indemnity allowed to
directors and officers by Section 145 of the DGCL and the Bylaws, as well as
certain additional procedural protections. In addition, the indemnification
agreements provide that directors and officers will be indemnified to the
fullest possible extent not prohibited by law against all expenses (including
attorney's fees) and settlement amounts paid or incurred by them in any action
or proceeding, including any action by or in the right of the Company, arising
out of such person's services as a director, officer, employee, agent or
fiduciary of the Company, any subsidiary of the Company or any other company or
enterprise to which such person provides services at the request of the Company
unless a reviewing party as appointed by the Board of Directors determines that
the Company is not obligated to indemnify under applicable law. The Company will
not be obligated pursuant to the indemnification agreements to indemnify or
advance expenses to an indemnified party with respect to proceedings or claims
initiated by the indemnified party and not by way of defense, except with
respect to proceedings specifically authorized by the Board of Directors or
brought to enforce a right to indemnification under the indemnification
agreement, the Company's Bylaws or any statute or law or as otherwise required
under Section 145 of the DGCL. Under the agreements, the Company is not
obligated to indemnify the indemnified party (i) for any expenses incurred by
the indemnified party with respect to any proceeding instituted by the
indemnified party to enforce or interpret the agreement, if a court having
jurisdiction determines that each of the material assertions made by the
indemnified party in such proceeding was not made in good faith or was
frivolous; (ii) for any expenses incurred by the indemnified party with respect
to any proceeding instituted by or in the name of the Company to enforce or
interpret the agreement, if a court of competent jurisdiction determines that
each of the material defenses made by the indemnified party in such proceeding
was made in bad faith or was frivolous; (iii) for any amounts paid in settlement
of a proceeding unless the Company consents to such settlement; (iv) for any
expenses resulting from acts, omissions or transactions for which a court having
jurisdiction makes a final judicial determination that the indemnified party is
prohibited from receiving indemnification under the agreement or applicable law;
or (v) on account of any suit in which judgment is rendered against the
indemnified party for an accounting of profits made from the purchase or sale by
the indemnified party of securities of the Company pursuant to the provisions of
Section 16(b) of the Securities Exchange Act of 1934 and related laws.
The indemnification provisions in the Bylaws and the indemnification
agreements entered into between the Company and its directors and officers may
be sufficiently broad to permit indemnification of the Company's directors and
officers for liabilities arising under the Securities Act.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit
Number Document
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<S> <C>
4.1(a) ENTEX Holdings, Inc. 1996 Stock Option Plan and
related agreements.
4.2(a) ENTEX Information Services, Inc. 1996 Stock Option
Plan and related agreements.
4.3(a) 1996 Performance Incentive Plan and related
agreements.
4.4(b) 1996 Non-Employee Director Stock Plan.
5.1 Opinion of Wilson Sonsini Goodrich & Rosati,
Professional Corporation.
23.1 Consent of Independent Auditors.
23.2 Consent of Counsel (contained in Exhibit 5.1).
24.1 Power of Attorney (see pages II-5 and II-6).
</TABLE>
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(a) Incorporated by reference to the Exhibits filed with the Registrant's
Registration Statement on Form 10 (Commission File No. 0-23169) filed on
December 3, 1997 and the Pre-Effective Amendment No. 2 to the
Registrant's Registration Statement on Form 10 filed on January 29,
1998.
(b) Incorporated by reference to the Exhibits filed with the Registrant's
Registration Statement on Form 10 filed on December 3, 1997.
ITEM 9. 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 to include any material information
with respect to the plan of distribution not previously
disclosed in the registration state ment or any material
change to such information in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, as amended (the "Securities
Act"), each such post-effective amendment shall be deemed
to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of post-effective
amendment any of the securities being registered which
remain unsold at the termination of the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) 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.
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Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of
Registrant pursuant to the Delaware General Corporation Law, the Certificate of
Incorporation of the Registrant, the Bylaws of the Registrant and
Indemnification Agreements entered into between Registrant and its officers and
directors, or otherwise, Registrant 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 Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered hereunder, Registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnifica tion by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant, ENTEX Information Services, Inc., 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 Rye Brook, State of
New York, on this 2nd day of February, 1998.
ENTEX INFORMATION SERVICES, INC.
By: /s/ John A. McKenna, Jr.
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John A. McKenna, Jr.
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each such person whose
signature appears below constitutes and appoints, jointly and severally, John A.
McKenna, Jr., Kenneth A. Ghazey and Richard P. Bannon his attorneys-in-fact,
each with the power of substitution, for them in any and all capacities, to sign
any amendments to this Registration Statement on Form S-8 (including
post-effective amendments), and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that each of said
attorneys-in-fact, or his or her substitute or substitutes, may do or cause to
be done by virtue hereof.
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PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE Title Date
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<S> <C> <C>
/s/ John A. McKenna, Jr. President, Chief Executive February 2, 1998
- ------------------------------------- Officer and Director (Principal
(John A. McKenna, Jr.) Executive Officer)
/s/ Kenneth A. Ghazey Executive Vice President, February 2, 1998
- ------------------------------------- Finance and Administration,
(Kenneth A. Ghazey) Chief Financial Officer and
Director (Principal Financial
Officer)
/s/ Richard P. Bannon Senior Vice President February 2, 1998
- ------------------------------------- (Principal Accounting Officer)
(Richard P. Bannon)
/s/ Dort A. Cameron III Chairman of the Board of February 2, 1998
- ------------------------------------- Directors
(Dort A. Cameron III)
/s/ R. Randolph Devening Director February 2, 1998
- -------------------------------------
(R. Randolph Devening)
/s/ Linwood A. (Chip) Lacy, Jr. Director February 2, 1998
- -------------------------------------
(Linwood A. (Chip) Lacy, Jr.)
/s/ Frank W. Miller Director February 2, 1998
- -------------------------------------
(Frank W. Miller)
</TABLE>
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER EXHIBIT PAGE
- ------- ------- ------------
<S> <C> <C>
4.1(a) ENTEX Holdings, Inc. 1996 Stock Option Plan and related agreements.....
4.2(a) ENTEX Information Services, Inc. 1996 Stock Option Plan and related
agreements.............................................................
4.3(a) 1996 Performance Incentive Plan and related agreements.................
4.4(b) 1996 Non-Employee Director Stock Plan..................................
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation
23.1 Consent of Independent Auditors........................................
23.2 Consent of Counsel (contained in Exhibit 5.1...........................
24.1 Power of Attorney (see pages II-5 and II-6)............................
</TABLE>
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(a) Incorporated by reference to the Exhibits filed with the Registrant's
Registration Statement on Form 10 (Commission File No. 0-23169) filed on
December 3, 1997 and the Pre-Effective Amendment No. 2 to the
Registrant's Registration Statement on Form 10 filed on January 29,
1998.
(b) Incorporated by reference to the Exhibits filed with the Registrant's
Registration Statement on Form 10 filed on December 3, 1997.
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<PAGE> 1
EXHIBIT 5.1
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION JOHN ARNOT WILSON
650 PAGE MILL ROAD RETIRED
PALO ALTO, CALIFORNIA 94304-1050
TELEPHONE 650-493-9300 FACSIMILE 650-493-6811
February 2, 1998
ENTEX Information Services, Inc.
6 International Drive
Rye Brook, New York 10573-1058
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by
you with the Securities and Exchange Commission on or about February 2, 1998
(the "Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended, of an aggregate of 9,149,310 shares of your
Common Stock under the ENTEX Holdings, Inc. 1996 Stock Option Plan, the ENTEX
Information Services, Inc. 1996 Stock Option Plan, the 1996 Performance
Incentive Plan and the 1996 Non-Employee Director Stock Plan. Such shares of
Common Stock are referred to herein as the "Shares," and such plans and
compensation agreements are referred to herein as the "Plans." As your counsel
in connection with this transaction, we have examined the proceedings taken and
are familiar with the proceedings proposed to be taken by you in connection with
the issuance and sale of the Shares pursuant to the Plans.
It is our opinion that, when issued and sold in the manner described in
the Plans and pursuant to the agreements which accompany each grant under the
Plans, the Shares will be legally and validly issued, fully-paid and
non-assessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement, and further consent to the use of our name wherever appearing in the
Registration Statement and any amendments thereto.
Very truly yours,
/s/ WILSON SONSINI GOODRICH & ROSATI
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
<PAGE> 1
EXHIBIT 23.1
Consent of KPMG Peat Marwick LLP, Independent Auditors
We consent to the incorporation by reference in this Registration
Statement (Form S-8) pertaining to the ENTEX Holdings, Inc. 1996 Stock Option
Plan, the ENTEX Information Services, Inc. 1996 Stock Option Plan, the 1996
Performance Incentive Plan and the 1996 Non-Employee Director Stock Plan of
ENTEX Information Services, Inc. of our report dated September 17, 1997, except
as to note 13 which is as of November 28, 1997, with respect to the consolidated
financial statements and related schedule of ENTEX Information Services, Inc.
included in its Registration Statement on Form 10 filed with the Securities and
Exchange Commission, Pre-Effective Amendment No. 1 and Pre-Effective Amendment
No. 2 thereto.
/s/ KPMG PEAT MARWICK LLP
Stamford, Connecticut
February 2, 1998
