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As filed with the Securities and Exchange Commission on July 2, 1997
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
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TRANSCRYPT INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 47-0801192
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
4800 NW 1ST STREET
LINCOLN, NEBRASKA 68521
(Address of Principal Executive Offices and Zip Code)
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TRANSCRYPT INTERNATIONAL, INC. 1996 STOCK INCENTIVE PLAN
(Full Title of Plan)
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JOHN T. CONNOR
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
TRANSCRYPT INTERNATIONAL, INC.
4800 NW 1ST STREET
LINCOLN, NEBRASKA 68521
(Name and address of agent for service)
(402) 474-4800
(Telephone number, including area code, of agent for service)
WITH A COPY TO:
ALLEN Z. SUSSMAN, ESQ.
MANATT, PHELPS & PHILLIPS, LLP
11355 WEST OLYMPIC BOULEVARD
LOS ANGELES, CALIFORNIA 90064
(310) 312-4000
Calculation of Registration Fee
<TABLE>
<CAPTION>
===========================================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate Amount of
to be Registered Registered(1) per Share(2) Offering Price(2) Registration Fee
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.01 1,200,000 $10.9375 $13,125,000 $3,977.27
par value per share
===========================================================================================================================
</TABLE>
(1) This Registration Statement covers, in addition to the number of shares
of Common Stock stated above, such indeterminate number of shares of
Common Stock as may become available under the Registrant's 1996 Stock
Incentive Plan as a result of adjustment provisions thereof.
(2) Estimated solely for purposes of calculating the amount of the
registration fee pursuant to Rule 457, based upon the average of the
high and low prices of the Common Stock as reported on the Nasdaq
National Market System on July 1, 1997.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The following documents listed under this Part I and the documents
incorporated by reference under Item 3 of Part II to this Form S-8, taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act of 1933, as amended (the "Securities Act"), and are
incorporated herein by reference.
Item 1. Plan Information
(a) Transcrypt International, Inc. 1996 Stock Incentive Plan,
together with forms of stock option agreements.
(b) Prospectus for the 1996 Stock Incentive Plan
Item 2. Registrant Information and Employee Plan Annual Information
The written statement required to be provided to participants pursuant
to this Item 2 is set forth in the Prospectus referred to in Item 1 above.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Transcrypt International, Inc. (the "Registrant") hereby files this
Registration Statement on Form S-8 with the Securities and Exchange Commission
(the "Commission") to register 1,200,000 shares of the Registrant's Common Stock
for issuance pursuant to the Registrant's 1996 Stock Incentive Plan (the
"Plan"), and such indeterminate number of shares as may become available under
the Plan as a result of the adjustment provisions thereof.
Item 3. Incorporation of Documents by Reference
The following documents previously filed by the Registrant with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act") are incorporated herein by reference:
(a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1996 filed pursuant to Section 13(a)
or 15(d) of the Exchange Act;
(b) All other reports filed by the Registrant pursuant to Section
13(a) or 15(d) of the Exchange Act since the end of the latest
fiscal year covered by the Annual Report referred to in (a)
above; and
(c) The description of the class of securities contained in the
Registrant's Registration Statement on Form 8-A, as amended,
as declared effective by the Commission on January 22, 1997,
filed under Section 12 of the Exchange Act, including any
amendments or reports filed for the purpose of updating such
description.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act subsequent to the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all securities offered hereby have been sold or which
deregisters all securities then remaining unsold shall be deemed to be
incorporated herein by reference and to be a part hereof from the date of filing
of such documents.
Any statement made in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which is also
incorporated or deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
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Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Under Delaware law, the directors and officers of the Registrant are
entitled, under certain circumstances, to be indemnified by the Registrant
against all expenses and liabilities incurred or imposed upon them as a result
of suits brought against them as such directors and officers, if they act in
good faith and in a manner they reasonably believe to be in or not opposed to
the best interests of the Registrant, and, with respect to any criminal action
or proceeding, have no reasonable cause to believe their conduct was unlawful,
except that no indemnification shall be made against expenses in respect of any
claim, issue or matter as to which they shall have been adjudged to be liable to
the Registrant, unless and only to the extent that the court in which such
action or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, they
are fairly and reasonably entitled to be indemnified for such expenses which
such court shall deem proper. Any such indemnification may be made by the
Registrant only as authorized in each specific case upon a determination by the
stockholders or disinterested directors that indemnification is proper because
the indemnitee has met the applicable statutory standard of conduct.
Article Eight of the Registrant's Second Amended and Restated
Certificate of Incorporation, as amended, provides that a director shall not be
liable to the Registrant or its stockholders for monetary damages for a breach
of fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the Registrant or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under the Delaware statutory provisions making
directors personally liable for unlawful dividends or unlawful stock repurchases
or redemptions or (iv) for any transaction from which the director derived an
improper personal benefit.
The Registrant's Bylaws provide that the Registrant shall indemnify its
directors and officers to the fullest extent permitted by Delaware law. The
Registrant has also entered into indemnification agreements with its directors
and officers. The indemnification agreements may require the Registrant, among
other things, to indemnify its directors and officers against certain
liabilities that may arise by reason of their status or service as directors or
officers (other than liabilities arising from willful misconduct of a culpable
nature) and to advance their expenses incurred as a result of any proceedings
against them as to which they could be indemnified.
The Registrant maintains a standard policy of officers' and directors'
liability insurance.
Item 7. Exemption from Registration Claimed
Not applicable.
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Item 8. Exhibits
Exhibit
Number Description
5.1 Opinion of Manatt, Phelps & Phillips, LLP
23.1 Consent of Manatt, Phelps & Phillips, LLP (see Exhibit 5.1)
23.2 Consent of Coopers & Lybrand L.L.P.
24.1 Power of Attorney (see page II-5)
Item 9. Undertakings
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this Registration Statement;
(i) To include any Prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the Prospectus any facts or events
arising after the effective date of this 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 this
Registration Statement. Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) of the Securities
Act if, in the aggregate, the changes in volume and price represent no
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<PAGE> 6
more than a 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 this
Registration Statement or any material change to such information in this
Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in the post-effective
amendment by those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the Registrant pursuant to Section 13 or Section
15(d) of the Exchange Act that are incorporated by reference in this
Registration Statement.
(2) That, for the purpose of determining any liability under
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 a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, 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 this Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the 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 the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
(d) The undersigned Registrant hereby undertakes to deliver or cause to
be delivered with the Prospectus, to each person to whom the Prospectus is sent
or given, the latest annual report to security holders that is incorporated by
reference in the Prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Exchange Act; and, where
interim financial information required to be presented by Article 3 of
Regulation S-X are not set forth in the Prospectus, to deliver, or cause to be
delivered to each person to whom the Prospectus is sent or given, the latest
quarterly report that is specifically incorporated by reference in the
Prospectus to provide such interim financial information.
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<PAGE> 7
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Lincoln, State of Nebraska, on this 2nd day of
July, 1997.
TRANSCRYPT INTERNATIONAL, INC.
By /s/ John T. Connor
------------------------------------
John T. Connor
Chairman, Chief Executive Officer
and Chief Financial Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints John T. Connor his true and lawful
attorney-in-fact and agent, with full power of substitution, for him and in his
name, place and stead, in any and all capacities, to sign any or all amendments
to this Registration Statement, and to file the same with all exhibits thereto,
and all other documents in connection therewith, with the Commission, granting
unto said attorney-in-fact and agent with full power and authority to do and
perform each and every act and thing requisite and necessary to be done in and
about the premises, as fully to all intents and purposes as he might or could do
in person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitute, may lawfully do or cause to be done by virtue hereon.
Pursuant to the requirement of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
date indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ John T. Connor Chairman of the Board, Chief July 2, 1997
- ----------------------- Executive Officer and
John T. Connor Chief Financial Officer
/s/ Jeffery L. Fuller President, Chief Operating Officer July 2, 1997
- ----------------------- and Director
Jeffery L. Fuller
/s/ Terry L. Fairfield Vice Chairman of the Board and July 2, 1997
- ----------------------- Director
Terry L. Fairfield
/s/ Thomas R. Larsen Director July 2, 1997
- -----------------------
Thomas R. Larsen
/s/ Thomas C. Smith Director July 2, 1997
- -----------------------
Thomas C. Smith
/s/ Thomas R. Thomsen Director July 2, 1997
- -----------------------
Thomas R. Thomsen
/s/ Winston J. Wade Director July 2, 1997
- -----------------------
Winston J. Wade
/s/ Thomas E. Henning Director July 2, 1997
- -----------------------
Thomas E. Henning
</TABLE>
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TRANSCRYPT INTERNATIONAL, INC.
FORM S-8
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT PAGE NUMBER
NUMBER
<S> <C> <C>
5.1 Opinion of Manatt, Phelps & Phillips, LLP ___
23.1 Consent of Manatt, Phelps & Phillips, LLP (see Exhibit 5.1) *
23.2 Consent of Coopers & Lybrand L.L.P. ___
24.1 Power of Attorney (see page II-5) *
</TABLE>
* Not applicable.
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<PAGE> 1
EXHIBIT 5.1
- ----------------
MANATT
- ----------------
PHELPS
- ----------------
PHILLIPS
- ----------------
ATTORNEYS AT LAW
July 2, 1997
Transcrypt International, Inc.
4800 NW 1st Street
Lincoln, Nebraska 68521
RE: TRANSCRYPT INTERNATIONAL, INC. 1996 STOCK INCENTIVE PLAN
Gentlemen:
At your request, we have examined the Registration Statement
on Form S-8 (the "Registration Statement") to be filed by Transcrypt
International, Inc., a Delaware corporation (the "Company"), with the Securities
and Exchange Commission (the "Commission") in connection with the registration
under the Securities Act of 1933, as amended (the "Securities Act"), of
1,200,000 shares of the Company's common stock, par value $.01 per share (the
"Common Stock"), that may be issued in the aggregate under the Company's 1996
Stock Incentive Plan (the "Plan").
In rendering this opinion, we have examined all instruments,
documents and records which we deemed relevant and necessary for the basis of
our opinion hereinafter expressed. In our examination, we have assumed the
genuineness of all signatures and the authenticity of all documents submitted to
us as originals and the conformity to the originals of all documents submitted
to us as copies. We have also obtained from officers of the Company certificates
as to such factual matters as we considered necessary for the purposes of this
opinion, and insofar as our opinion is based on matters of fact upon which
conclusions of law are expressed, we have relied upon such certificates. While
we have no reason to believe that the officers executing such certificates did
not have personal knowledge of the matters contained therein, or did not
accurately set forth such knowledge in such certificates, we did not
independently verify the matters set forth in such certificates.
Based upon the foregoing and such further review of fact and
law as we have deemed necessary or appropriate under the circumstances, and
assuming, without further inquiry, that (i) all awards granted under the Plan to
date have been, and all awards to be granted under the Plan will be, duly and
validly granted in accordance with the terms of the Plan, (ii) the consideration
for the shares of Common Stock to be issued pursuant to the exercise of such
awards will be received prior to the issuance thereof, (iii) the shares of
Common Stock to be issued pursuant to the exercise of such awards will be issued
in accordance with the terms of the Plan and the various agreements, (iv) the
Registration Statement will become effective under the Securities Act prior to
the issuance of any shares of Common Stock under the Plan and no stop order
suspending the effectiveness of the
MANATT, PHELPS & PHILLIPS, LLP
11355 West Olympic Boulevard, Los Angeles, California 90064-1614
310-312-4000 - FAX 310-312-4224
Los Angeles - Washington, D.C. - Nashville
<PAGE> 2
Transcrypt International, Inc.
July 2, 1997
Page 2
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or be pending before the Commission, (v) a
prospectus will be updated and delivered to participants in the Plan as required
by the Securities Act and the rules and regulations promulgated by the
Commission thereunder and (vi) the grant of such awards and the issuance of
shares of Common Stock upon the exercise thereof will comply with the securities
laws of each state or jurisdiction applicable thereto (other than the Securities
Act, as to which this opinion is addressed), upon which assumptions the opinions
contained herein are expressly conditioned, we are of the opinion that:
If, as and when the shares of Common Stock have been issued
and sold pursuant to exercise of awards granted under the terms of the Plan, the
shares of Common Stock will be duly authorized, validly issued, fully paid and
non-assessable.
The opinions expressed herein are limited to the General
Corporation Law of the State of Delaware and the Securities Act and the rules
and regulations promulgated by the Commission thereunder, to present judicial
interpretations thereof and to facts as they presently exist. We assume no
obligations to supplement this letter if any applicable laws change after the
date hereof or if we become aware of any facts that might change the opinions
expressed herein after the date hereof.
This opinion is issued to you solely for use in connection
with the Registration Statement and is not to be quoted or otherwise referred to
in any financial statements of the Company or related document, nor is it to be
filed with or furnished to any government agency or other person, without our
prior written consent.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement.
Respectfully submitted,
/s/ Manatt, Phelps & Phillips, LLP
-----------------------------------------
Manatt, Phelps & Phillips, LLP
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EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement of
Transcrypt International, Inc. on Form S-8, relating to the 1996 Stock
Incentive Plan, of our report dated February 3, 1997, on our audits of the
consolidated financial statements of Transcrypt International, Inc. as of
December 31, 1996 and 1995 and for the three years ended December 31, 1996,
which report is included in its Annual Report on Form 10-K.
/s/ Coopers & Lybrand L.L.P.
Coopers & Lybrand L.L.P.
Lincoln, Nebraska
July 1, 1997
