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Registration Statement No._____________
SECURITY AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
OpTel, Inc.
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(Exact name of registrant as specified in its charter)
Delaware 95-4495524
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1111 W. Mockingbird Lane
Dallas, Texas 75247
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(Address, including zip code, of principal executive offices)
OpTel, Inc. 1998 Employee Stock Purchase Plan
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(Full title of the plan)
Louis Brunel, President and Chief Executive Officer
OpTel, Inc.
1111 W. Mockingbird Lane
Dallas, Texas 75247
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(Name and address of agent for service)
(214) 634-3800
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(Telephone number, including area code, of agent for service)
Copies to:
Ralph J. Sutcliffe, Esq. Michael E. Katzenstein, Esq.
Kronish, Lieb, Weiner & Hellman LLP OpTel, Inc.
1114 Avenue of the Americas 1111 W. Mockingbird Lane
New York, New York 10036-7798 Dallas, Texas 75247
(212) 479-6170 (214) 634-3800
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=====================================================================================================
Title of Proposed Proposed
securities Amount to maximum maximum Amount of
to be be offering aggregate registration
offered registered price per share(1) offering price (1) fee
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<S> <C> <C> <C> <C>
Class A
Common
Stock, par
value $.01
per share 338,553 $ 17.00 5,755,401 $ 1,600
=====================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee. Based
on the estimated initial offering price of the Common Stock to the public
pursuant to the Company's registration statement under the Securities Act of
1933, as amended (the "Securities Act") in accordance with rule 457(h) under the
Securities Act.
In addition, pursuant to Rule 416(c) under the Securities Act, this Registration
Statement also covers an indeterminate amount of interests to be offered or sold
pursuant to the employee benefit plan described herein.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by OpTel, Inc. ("OpTel" or the "Company")
with the Securities and Exchange Commission (the "SEC") are incorporated by
reference herein:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
August 31, 1998.
(b) The Company's quarterly reports on Form 10-Q for the quarter ended
November 30, 1998 and February 28, 1999.
(c) The Company's current reports on Form 8-K filed with the SEC on
March 25, 1999, January 20, 1999 and January 14, 1999.
(d) The description of the Company's Common Stock which is contained in
the Company's Registration Statement on Form 8-A under the Securities Exchange
Act of 1934, as amended, and the rules and regulations promulgated thereunder
(the "Exchange Act").
All documents subsequently filed by the Company with the SEC pursuant
to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the filing
of a post-effective amendment which indicates that all securities registered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference into this Registration Statement and
to be a part hereof from the date of filing of 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
The Company's Certificate of Incorporation provides that the Company
shall, to the fullest extent permitted by the Delaware General Corporation Law
(the "DGCL"), indemnify all persons who
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it may indemnify pursuant thereto (i.e., directors and officers) and shall
advance expenses incurred in defending any proceeding for which such right to
indemnification is applicable, provided that, if the DGCL so requires, the
indemnitee provides the Company with an undertaking to repay all amounts
advanced if it is determined by a final judicial decision that such person is
not entitled to indemnification pursuant to this provision. The Company's
Certificate of Incorporation also contains a provision eliminating the personal
liability of the Company's directors for monetary damages for breach of any
fiduciary duty. By virtue of this provision, under the DGCL, a director of the
Company will not be personally liable for monetary damages for breach of his
fiduciary duty as a director, except for liability for (i) any breach of the
director's duty of loyalty to the Company or its stockholders, (ii) acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) dividends or stock purchases or redemptions that are
unlawful under the DGCL and (iv) any transaction from which a director derives
an improper personal benefit. However, this provision of the Company's
Certificate of Incorporation pertains only to breaches of duty by directors as
directors and not in any other corporate capacity such as officers, and limits
liability only for breaches of fiduciary duties under the DGCL and not for
violations of other laws, such as the federal securities laws. As a result of
the inclusion of such provision, stockholders may be unable to recover monetary
damages against directors for actions taken by them that constitute negligence
or gross negligence or that are in violation of their fiduciary duties, although
it may be possible to obtain injunctive or other equitable relief with respect
to such actions. The inclusion of this provision in the Company's Certificate of
Incorporation may have the effect of reducing the likelihood of derivative
litigation against directors, and may discourage or deter stockholders or
management from bringing a lawsuit against directors for breach of their duty of
care, even though such an action, if successful, might otherwise have benefitted
the Company and its stockholders.
The directors and officers of the Company are insured (subject to
certain exceptions and deductions) against liabilities that they may incur in
their capacity as such, including liabilities under the Securities Act, under a
liability insurance policy carried by GVL. Such policy provides coverage in an
aggregate amount of $50 million (subject to a $250,000 retention) and expires in
October 2001. The Company expects that this insurance will be renewed in the
ordinary course.
Item 7. Exemption From Registration Claimed
Not applicable.
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Item 8. Exhibits
4.1 Form of Amended and Restated Certificate of Incorporation of OpTel (to
be effective upon consummation of the public offering), filed as
Exhibit 3.1 to Amendment No. 7 to the Company's registration statement
on Form S-1 filed on May 19, 1999, and incorporated herein by
reference.
4.2 Form of Amended and Restated Bylaws of OpTel, filed as Exhibit 3.2 to
Amendment No. 7 to the Company's registration statement on Form S-1
filed on May 19, 1999, and incorporated herein by reference.
5.1 Opinion of Kronish, Lieb, Weiner & Hellman LLP.
23.1 Consent of Kronish, Lieb, Weiner & Hellman LLP, included in Exhibit
5.1.
23.2 Consent of Deloitte & Touche LLP.
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:
(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 the Registration Statement (or the
most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement. 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 SEC pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no
more than 20 percent change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table
in the effective registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in
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the Registration Statement or any material change to
such information in the Registration Statement;
provided, however, that paragraphs (i) and (ii) do not apply if the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the SEC by the Company
pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
(2) That for the purpose of determining any liability under the
Securities Act, 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 initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act, each filing of the Company's annual report pursuant to
Section 13(a) or 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.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company
has been advised that in the opinion of the SEC 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 Company of expenses incurred or paid
by a director, officer or controlling person of the Company in the successful
defense of any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being registered, the
Company will, unless in the opinion of its counsel the matter has been settled
by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the 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, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Dallas, State of Texas, on this 18th day of May,
1999.
OpTel, Inc.
By: /s/ LOUIS BRUNEL
---------------------------------
Louis Brunel
President
and Chief Executive Officer
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated below.
Principal Executive Officer:
<TABLE>
<S> <C> <C>
/s/ LOUIS BRUNEL
- -------------------------------- President and Chief May 18, 1999
Louis Brunel Executive Officer
Principal Financial and Accounting Officers:
/s/ BERTRAND BLANCHETTE May 18, 1999
- -------------------------------- Chief Financial Officer
Bertrand Blanchette
/s/ CRAIG MILACEK May 18, 1999
- -------------------------------- Controller
Craig Milacek
</TABLE>
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Directors:
<TABLE>
<S> <C> <C>
/s/ ANDRE CHAGNON
- -------------------------------- Chairman of the Board May 18, 1999
Andre Chagnon and Director
/s/ ALAIN MICHEL
- -------------------------------- Vice Chairman of the Board May 18, 1999
Alain Michel and Director
/s/ LOUIS BRUNEL
- -------------------------------- Director May 18, 1999
Louis Brunel
/s/ CHRISTIAN CHAGNON
- -------------------------------- Director May 18, 1999
Christian Chagnon
/s/ WILLIAM O. HUNT
- -------------------------------- Director May 18, 1999
William O. Hunt
/s/ R. DOUGLAS LEONHARD
- -------------------------------- Director May 18, 1999
R. Douglas Leonhard
/s/ LYNN MCDONALD
- -------------------------------- Director May 18, 1999
Lynn McDonald
/s/ JAYNE L. STOWELL
- -------------------------------- Director May 18, 1999
Jayne L. Stowell
/s/ FREDERICK W. BENN
- -------------------------------- Director May 18, 1999
Frederick W. Benn
</TABLE>
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Pursuant to the requirements of the Securities Act, the
persons who administer the OpTel, Inc. 1998 Employee Stock Purchase Plan have
caused this Registration Statement to be signed on their behalf by the
undersigned, thereunto duly authorized, in the City of Dallas, State of Texas,
on May 18, 1999.
OpTel, Inc. 1998 Employee
Stock Purchase Plan
By: /s/ ALAIN MICHEL
------------------------------
Alain Michel
Member of the Stock
Purchase Plan Committee
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EXHIBIT INDEX
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<CAPTION>
Exhibit Description
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<S> <C>
4.1 Form of Amended and Restated Certificate of
Incorporation of OpTel (to be effective upon
consummation of the public offering), filed as Exhibit
3.1 to Amendment No. 7 to the Company's registration
statement on Form S-1 filed on May 19, 1999, and
incorporated herein by reference.
4.2 Form of Amended and Restated Bylaws of OpTel, filed as
Exhibit 3.2 to Amendment No. 7 to the Company's
registration statement on Form S-1 filed on May 19,
1999, and incorporated herein by reference.
5.1 Opinion of Kronish, Lieb, Weiner & Hellman LLP.
23.1 Consent of Kronish, Lieb, Weiner & Hellman LLP,
included in Exhibit 5.1.
23.2 Consent of Deloitte & Touche LLP.
</TABLE>
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EXHIBIT 5.1
May 19, 1999
OpTel, Inc.
1111 West Mockingbird Lane
Dallas, Texas 75247
Ladies and Gentlemen:
We have acted as counsel to OpTel, Inc., a Delaware
corporation (the "Company"), in connection with the registration pursuant to a
Registration Statement on Form S-8 (the "Registration Statement") by the Company
under the Securities Act of 1933, as amended (the "Act"), of 338,553 shares of
the Company's common stock, par value $.01 per share (the "Common Stock"), to be
offered for sale by the Company from time to time under the Company's 1998
Employee Stock Purchase Plan adopted on June 4, 1998 (the "Plan").
We have examined the Company's Amended and Restated
Certificate of Incorporation and Amended and Restated By-laws and minute books
and such other documents and records as we have deemed necessary and relevant as
a basis for our opinions hereinafter set forth. For the purposes of this letter,
we have assumed the genuineness of all signatures and the conformity to original
documents of all instruments furnished to us for review or examination as
copies.
Based on the foregoing and having regard to such legal
considerations as we have deemed relevant, it is our opinion that:
1. The Company is a corporation duly organized under the laws
of the State of Delaware.
2. The Common Stock covered by the Registration Statement has
been validly authorized.
3. When (i) the Common Stock has been duly registered under
the Act, (ii) certificates for the Common Stock have been duly delivered, and
(iii) the Company has received
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OpTel, Inc.
May 19, 1999
Page 2
the consideration to be received by it pursuant to and upon exercise of the
related awards issued under the Plan, the Common Stock will be validly issued,
fully paid and non-assessable by the Company, with no personal liability
attaching to ownership thereof.
We hereby consent to the inclusion of this opinion in the
Registration Statement and to the references to this firm contained therein.
Very truly yours,
/s/ KRONISH LIEB WEINER
& HELLMAN, LLP
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EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to incorporation by reference in this Registration Statement of
OpTel, Inc. on Form S-8 of our reports dated October 6, 1998, appearing in the
Annual Report on Form 10-K of OpTel, Inc. for the year ended August 31, 1998.
/s/ DELOITTE & TOUCHE LLP
May 18, 1999
Dallas, Texas
