<PAGE>
As filed with the Securities and Exchange Commission on July 24, 1998.
Registration No. 333-_______
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
---------------
PRECEPT BUSINESS SERVICES, INC.
(Exact name of registrant as specified in its charter)
Texas 75-2487353
(State or other jurisdiction of (I.R.S. employer identification number)
incorporation or organization)
1909 Woodall Rodgers Freeway, Suite 500
Dallas, Texas 75201
(Address of principal executive offices)
---------------
PRECEPT BUSINESS SERVICES, INC. 1998 STOCK INCENTIVE PLAN
and
PRECEPT BUSINESS SERVICES, INC. 1996 STOCK OPTION PLAN
(Full title of the Plan)
---------------
DAVID L. NEELY
1909 Woodall Rodgers Freeway, Suite 500
Dallas, Texas 75201
(Name and address of agent for service of agent for service)
(214) 754-6600
(Telephone number, including area code,
of agent for service)
----------------
COPY TO:
CHARLES D. MAGUIRE, JR.
Jackson & Walker, L.L.P.
901 Main Street
Suite 6000
Dallas, Texas 75202
CALCULATION OF REGISTRATION FEE
<TABLE>
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
Proposed Proposed
Title of Amount Maximum Maximum Amount of
Securities to be Offering Price Aggregate Registration
to be Registered Registered (1) Per Share Offering Price Fee
- --------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A Common Stock, $.01 par value 6,324,901 shares $2.703125 $17,096,998.02 $5,043.61
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee.
Pursuant to Rule 457(c) and 457(h), registration fee is based on a price of
$2.703125 per share, which price is an average of the high and low prices
of the Class A Common Stock on the National Association of Securities
Dealers Automated Quotation SmallCap Market on July 20, 1998.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which have been filed with the Commission by
Precept Business Services, Inc. (the "Company"), are incorporated herein by
reference and made a part hereof:
(i) Quarterly Report of the Company on Form 10-Q for the quarterly
period ended December 31, 1997; and
(iii) Quarterly Report of the Company on Form 10-Q for the quarterly
period ended March 31, 1998; and
(iv) All other reports filed with the Commission pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), since the effectiveness of the Company's Registration
Statement on Form S-4 (File No. 333-42689) and Registration Statement on
Form 8-A (File No. 000-23735); and
(v) Description of the Class A Common Stock contained in the
Company's Registration Statement on Form S-4 (No. 333-42689) and
Registration Statement on Form 8-A (No. 000-23735), effective as of
February 9, 1998.
All documents filed by the Company 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 of the Class A Common Stock offered hereunder has been
sold or which deregisters all of such Class A Common Stock then remaining
unsold, shall be deemed to be incorporated by reference herein and to be a
part hereof from the date of filing of such documents.
Any statement contained 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 also is or
is deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this
Registration Statement.
<PAGE>
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 is a Texas corporation and the Texas Business Corporation
Act ("TBCA") empowers a corporation organized thereunder to indemnify its
directors and officers or former directors and officers and to purchase
insurance with respect to liability arising out of their capacity or status
as directors and officers. Reference is made to Article XIV of the Company's
Articles of Incorporation and Section 33 of the Company's Bylaws, which
provide for indemnification of officers and directors to the fullest extent
permitted by the TBCA.
Additionally, Article XIII of the Company's Articles of Incorporation
limits the liability of directors of the Company to the Company or its
stockholders (in their capacity as directors but not in their capacity as
officers), providing that the directors of the Company will not be personally
liable for monetary damages for breach of a director's fiduciary duty as a
director, except for liability (i) for any breach of the director's duty of
loyalty to the Company or its stockholders, (ii) for an act or omission not
in good faith or which involves intentional misconduct or a knowing violation
of law, (iii) for a transaction from which a director received an improper
benefit whether or not the benefit resulted from an action taken within the
scope of the director's office, (iv) for an act or omission for which the
liability of such director is expressly provided by statute, or (v) for an
act related to an unlawful stock repurchase or payment of a dividend.
The Company has entered into certain agreements (the "Indemnification
Agreements") with each of its directors and executive officers designed to
give effect to the foregoing provisions of the Articles of Incorporation and
to provide certain additional protections against the possibility of
liability. Pursuant to the Indemnification Agreements, the Company will, to
the extent permitted under applicable law, indemnify such persons against all
expenses, judgments, fines and penalties incurred in connection with the
defense or settlement of any actions brought against them by reason of the
fact that they are or were directors or officers of the Company or assumed
certain responsibilities at the direction of the Company. The effect of the
above-described provisions of the Articles of Incorporation and the
Indemnification Agreements will be to eliminate the rights of the Company and
its shareholders (through shareholders' derivative suits on behalf of the
Company) to recover monetary damages against a director or executive officer
for breach of fiduciary duty as a director or executive officer (including
breaches resulting from negligence or gross negligence).
The Company has obtained a directors' and officers' liability insurance
policy to insure its directors and officers against losses resulting from
wrongful acts committed by them in their capacities as directors and officers
of the Company, including liabilities arising under the Securities Act of
1933, as amended (the "Securities Act").
<PAGE>
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or persons controlling the
Company pursuant to the foregoing provisions, the Company has been informed
that in the opinion of the Commission, such indemnification is against public
policy as expressed in the Securities Act and is therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following is a list of all exhibits filed as a part of this
Registration Statement on Form S-8, including those incorporated herein by
reference.
<TABLE>
Exhibit
Number Description of Exhibit
- -------- ----------------------
<S> <C>
5 Opinion of Jackson Walker L.L.P.(1)
23 Consent of Jackson Walker L.L.P. (included in the opinion of Jackson
Walker L.L.P. filed as Exhibit 5).(1)
24 Power of Attorney (contained in signature page).(1)
99.1 Precept Business Services, Inc. 1996 Stock Option Plan (2)
99.2 Precept Business Services, Inc. 1998 Stock Incentive Plan.(2)
</TABLE>
- ------------
(1) Filed herewith.
(2) Previously filed as an exhibit to the Registrant's Registration Statement
on Form S-4, file No. 333-42689 dated as of February 9, 1998, and
incorporated herein by reference.
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 of 1933, as amended;
(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
<PAGE>
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 Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no 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;
(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 paragraphs (a)(1)(i) and (a)(1)(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 by the Company
pursuant to Section 13 or Section 15(d) of the Exchange Act, that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, as amended, 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 of 1933, as amended, 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended, 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 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 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
<PAGE>
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.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Dallas, State of Texas on the 24th day of July, 1998.
PRECEPT BUSINESS SERVICES, INC.
By: /s/ David L. Neely
--------------------------------------------
David L. Neely, Chief Executive Officer and
Chairman of the Board
(Principal Executive Officer)
POWER OF ATTORNEY
Each person whose signature appears below authorizes David L. Neely and
Layne A. Deutscher, and each of them, each of whom may act without joinder of
the other, to execute in the name of each such person who is then an officer or
director of the Registrant, and to file any amendments to this Registration
Statement necessary or advisable to enable the Registrant to comply with the
Securities Act of 1933, as amended, and any rules, regulations and requirements
of the Commission, in respect thereof, in connection with the registration of
the securities which are the subject of this Registration Statement, which
amendments may make such changes in such Registration Statement as such attorney
may deem appropriate.
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Darwin Deason Director and Chairman of the July 24, 1998
- -------------------------- Executive Committee of the Board
Darwin Deason
/s/ David L. Neely Chief Executive Officer and July 24, 1998
- -------------------------- Chairman of the Board
David L. Neely (Principal Executive Officer)
/s/ Douglas R. Deason President and Chief Operating July 24, 1998
- -------------------------- Officer and Director
Douglas R. Deason
/s/ Layne A. Deutscher Senior Vice President, General July 24, 1998
- -------------------------- Counsel and Director
Layne A. Deutscher
- -------------------------- Director
Sheldon I. Stein
- -------------------------- Director
J. Livingston Kosberg
- -------------------------- Director
Robert I. Blackman
</TABLE>
<PAGE>
INDEX TO EXHIBITS
Exhibit No. Exhibit
- ----------- -------
5 Opinion of Jackson Walker L.L.P.(1)
23 Consent of Jackson Walker L.L.P. (included in the opinion of
Jackson Walker L.L.P. filed as Exhibit 5).(1)
24 Power of Attorney (contained in signature page).(1)
99.1 Precept Business Services, Inc. 1996 Stock Option Plan (2)
99.2 Precept Business Services, Inc. 1998 Stock Incentive Plan.(2)
- ----------
(1) Filed herewith.
(2) Previously filed as an exhibit to the Registrant's Registration
Statement on Form S-4, File No. 333-42689 dated as of February 9, 1998
and incorporated herein by reference.
<PAGE>
EXHIBIT 5
OPINION OF JACKSON WALKER L.L.P.
<PAGE>
July 24, 1998
Precept Business Services, Inc.
1909 Woodall Rodgers Freeway, Suite 500
Dallas, Texas 75201
Re: Registration Statement on Form S-8 of Precept Business Services, Inc.
Gentlemen:
We are acting as counsel for Precept Business Services, Inc., a Texas
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933, as amended (the "Act"), of the offering and sale of up
to 6,324,901 shares of the Company's Class A Common Stock, par value $0.01 per
share (the "Shares"), in respect of the Precept Business Services, Inc. 1998
Stock Incentive Plan and the Precept Business Services, Inc. 1996 Stock Option
Plan (collectively, the "Plans"). A Registration Statement on Form S-8 covering
the offering and sale of the Shares (the "Registration Statement") is expected
to be filed with the Securities and Exchange Commission (the "Commission") on or
about the date hereof.
In reaching the conclusions expressed in this opinion, we have examined and
relied upon the originals or certified copies of all documents, certificates and
instruments as we have deemed necessary to the opinions expressed herein,
including the Company's Articles of Incorporation, as amended, the Bylaws of the
Company and copies of the Plans. In making the foregoing examinations, we have
assumed the genuineness of all signatures on original documents, the
authenticity of all documents submitted to us as originals and the conformity to
original documents of all copies submitted to us.
Based solely upon the foregoing, subject to the comments hereinafter
stated, and limited in all respects to the laws of the State of Texas and the
federal laws of the United States of America, it is our opinion that the Shares,
when sold by the Company in respect of the Plans, will be validly issued, fully
paid and nonassessable.
We hereby consent to the use of this opinion as Exhibit 5 to the
Registration Statement. In giving this consent, we do not admit that we come
within the category of persons whose consent is required under Section 7 of the
Act or the rules and regulations of the Commission promulgated thereunder.
Very truly yours,
/s/ Jackson Walker L.L.P.
