As filed with the Securities and Exchange Commission on December 22, 1997
Registration No. 33-05918
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
INTELECT COMMUNICATIONS, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 76-0471342
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
1100 EXECUTIVE DRIVE
RICHARDSON, TEXAS 75081
(972) 367-2100
(Address, including zip code, and telephone
number, including area code, or Registrant's
principal executive offices)
INTELECT COMMUNICATIONS, INC. 1986 EMPLOYEE STOCK OPTION PLAN
(Full title of the plan)
----------
HERMAN M. FRIETSCH
Chairman and Chief Executive Officer
INTELECT COMMUNICATIONS, INC.
1100 Executive Drive
Richardson, Texas 75081
(Name and address of agent for service)
(972) 367-2100
(Telephone number, including area code, of agent for service)
----------
Copies of correspondence to:
RYAN & SUDAN, L.L.P.
Two Houston Center, Suite 3900
Houston, Texas 77010
Attn: Robert C. Beasley
<PAGE>
Pursuant to Rule 414 promulgated under the Securities Act of 1933, as amended
(the "Securities Act"), this registration statement is hereby expressly adopted
by the registrant as the successor to Intelect Communications Systems Limited, a
Bermuda company ("Intelect (Bermuda)" or "Predecessor"), as its own registration
statement for all purposes under the Securities Act and under the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
CALCULATION OF REGISTRATION FEE
No additional registration fee is due because no additional shares are being
registered.
<PAGE>
INTRODUCTION
Intelect Communications, Inc. (the "Company" or the "Registrant") was
incorporated in Delaware on May 23, 1995. The Company's predecessor, Intelect
Communications Systems Limited ("Intelect (Bermuda)") was incorporated under the
laws of Bermuda in April 1980 and operated under the name Coastal International,
Ltd. until September 1985 and as Challenger International Ltd. until December
1995. On December 4, 1997, the shareholders of Intelect (Bermuda) approved a
proposal, the principal effect of which is to change the domicile of Intelect
(Bermuda) so that it will be a publicly traded U.S.-domiciled, Delaware
corporation (the "Reorganization"). The Reorganization was effected pursuant to
an Agreement and Plan of Merger by and among Intelect (Bermuda), Intelect
Communications, Inc., a Delaware corporation which was wholly owned by Intelect
(Bermuda) prior to the merger, and Intelect Merger Co., a Delaware corporation
which was wholly owned by Intelect Communications, Inc. prior to the merger
("Intelect Merger Co."). As a result of the merger, Intelect Merger Co. was
merged into Intelect (Bermuda), and each share of Intelect (Bermuda) was
automatically converted into the right to receive one share of Intelect
Communications, Inc. The effect of the Reorganization is that the shareholders
of Intelect (Bermuda) have become shareholders of Intelect Communications, Inc.,
with Intelect Communications, Inc. becoming the publicly traded company, and
with Intelect Communications, Inc. replacing Intelect (Bermuda) as the holding
company for Intelect (Bermuda) and its subsidiaries. The merger was effected on
December 4, 1997. This Amendment to Registration Statement No. 33-05918 is being
filed pursuant to Rule 414(d) under the Securities Act of 1933, as amended, in
order to effectuate the adoption of such Registration Statement by Intelect
Communications, Inc. as the successor issuer to Intelect (Bermuda). This
Registration Statement shall hereafter be deemed to relate to that number of
shares of Intelect Communications, Inc.'s Common Stock, $.01 value per share to
which the Registration Statement of Intelect (Bermuda) originally related.
PART I
INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS
Item 1. Plan Information
Not required to be filed as part of this Registration Statement pursuant to Note
to Part 1 of Form S-8.
Item 2. Registrant Information and Employee Plan Annual Information
Not required to be filed as part of this Registration Statement pursuant to Note
to Part 1 of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The following documents filed by the Company's predecessor, Intelect
(Bermuda), with the Securities and Exchange Commission (the "Commission") are
incorporated herein by reference:
1. Annual Report on Form 10-K filed on April 15, 1997 and the Form
10-K/A filed on April 30, 1997;
2. Quarterly Reports on Forms 10-Q filed on May 15, 1997, August 14,
1997, and November 13, 1997;
3. Current Report on Form 8-K filed on March 27, 1997;
4. Current Report on Form 8-K filed on May 8, 1997;
5. Current Report on Form 8-K filed on August 20, 1997; and
6. Current Report on Form 8-K filed on November 5, 1997.
The report of KPMG Peat Marwick on the aforementioned consolidated
financial statements contained in the Annual Report on Form 10-K filed on April
15, 1997, contains an explanatory paragraph that states that Intelect
<PAGE>
(Bermuda) has suffered recurring losses from continuing operations and is
dependent upon the successful development and commercialization of its products
and its ability to secure adequate sources of capital until Intelect (Bermuda)
is operating profitably. These matters raise substantial doubt about the
Company's ability to continue as a going concern. The consolidated financial
statements do not include any adjustments that might result from the outcome of
this uncertainty.
The following documents of the Company filed with the Commission are
incorporated herein by reference:
1. Registration Statement of the Company filed with the Commission on
Form S-4 declared effective October 30, 1997, containing a
description of the Company's Common Shares; and
2. Current Report on Form 8-K filed December 5, 1997.
All documents filed by the Company pursuant to Section 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 offered hereby have been sold or which
deregisters all such securities then remaining unsold shall be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the respective dates 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.
Article VII of the Registrant's Certificate of Incorporation provides that
if Delaware law is amended hereafter to authorize corporate action further
eliminating or limiting the personal liability of directors, then the liability
of a director of the Corporation shall be eliminated or limited to the fullest
extent permitted by Delaware law as so amended. Any amendment, repeal or
modification of Article VII of the Registrant's Certificate of Incorporation
shall not adversely affect any right or protection of a director of the
Corporation existing hereunder with respect to any act or omission occurring
prior to such amendment, repeal or modification.
Article XI of the Registrant's By-Laws provides that the Registrant (i)
shall indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the Registrant) by reason of the fact that he or she is or
was a director or an officer of the Registrant, or is or was serving at the
request of the Registrant as a director or an officer of another corporation,
partnership, joint venture, trust or other enterprise, to the full extent
authorized or permitted by law, as now or hereafter in effect, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him or her in connection with such action,
suit or proceeding if he or she acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the
Registrant, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful, and (ii) may
indemnify, if the Board of Directors determines such indemnification is
appropriate, any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the Registrant) by reason of the fact that he or she is or
was an employee or agent of the Registrant, or is or was serving at the request
of the Registrant as an employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, to the full extent authorized or
permitted by law, as now or hereafter in effect, against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him or her in connection with such action, suit or
proceeding if he or she acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the Registrant, and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe his or
<PAGE>
her conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement or conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he or she reasonably believed to be
in or not opposed to the best interests of the Registrant, and, with respect to
any criminal action or proceeding, had reasonable cause to believe that his or
her conduct was unlawful. To the extent that (i) a director or an officer of the
Registrant or (ii) any other employee or agent of the Registrant who the Board
of Directors has authorized the Registrant to indemnify, has been successful on
the merits or otherwise in defense of any action, suit or proceeding or in
defense of any claim, issue or matter therein, he or she shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred by
him or her in connection therewith. Notwithstanding the foregoing, except for
proceedings to enforce rights to indemnification, the Registrant shall not be
obligated to indemnify any person in connection with a proceeding (or part
thereof) initiated by such person unless such proceeding (or part thereof) was
authorized in advance, or unanimously consented to, by the Board of Directors.
Article XI of the Registrant's By-Laws also provides that any
indemnification provided therein (unless ordered by a court) shall be made by
the Registrant only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in the
circumstances because such person has met the applicable standard of conduct set
forth in sections 1 and 2 of Article XI of the Registrant's By-Laws. Such
determination shall be made (i) by a majority vote of the directors who are not
parties to such action, suit or proceeding even though less than a quorum, or
(ii) if there are no such directors, or if such directors so direct, by
independent legal counsel in a written opinion, or (iii) by the shareholders.
Expenses (including attorneys fees) incurred by an officer or director in
defending any civil, criminal, administrative or investigative action, suit or
proceeding shall be paid by the Registrant in advance of the final disposition
of such action, suit or proceeding upon receipt of an undertaking by or on
behalf of such director or officer to repay such amount if it shall ultimately
be determined that such person is not entitled to be indemnified by the
Registrant or as otherwise authorized by law. Such expenses (including
attorneys' fees) incurred by other employees and agents may be so paid upon such
terms and conditions, if any, as the Board of Directors deems appropriate.
Article XI of the Registrant's By-Laws further provides that the
indemnification and advancement of expenses shall not be deemed exclusive of any
other rights to which those seeking indemnification or advancement of expenses
may be entitled under any by-law, agreement, vote of shareholders or
disinterested directors or otherwise, both as to action in his or her official
capacity and as to action in another capacity while holding such office.
Section 145 of the Delaware General Corporation Law provides that a
corporation may indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative, or investigative, by reason
of the fact that he or she is or was a director, officer, employee or agent of
the corporation or is or was serving at its request in such capacity in another
corporation or business association against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he or she
acted in good faith and in a manner he or she reasonably believed to be in or
not opposed to the best interest of the corporation and, with respect to any
criminal action or proceeding, if he or she had no reasonable cause to believe
his conduct was unlawful; provided that, in the case of actions brought by or in
the right of the corporation, no indemnification will be made with respect to
any matter as to which such person will have been adjudged to be liable to the
corporation unless and only to the extent that the adjudicating court determines
that such indemnification is proper under the circumstances.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
See exhibit Index following signature page.
<PAGE>
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 the Registration Statement as amended
by this Post-Effective Amendment No. 1:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 as amended (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;
(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 paragraph (1)(i) and (1)(ii) do not apply if
the Registration Statement is on Form S-3 or Form S-8 and the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 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 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.
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
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 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
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 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, 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 Houston, State of Texas, on December 22, 1997.
INTELECT COMMUNICATIONS, INC.
By: /S/ HERMAN M. FRIETSCH
Herman M. Frietsch
Chairman and Chief
Executive Officer
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.
SIGNATURE TITLE DATE
/s/ HERMAN M. FRIETSCH Chief Executive Officer and December 22, 1997
Herman M. Frietsch Director (Principal Executive
Officer)
/s/ EDWIN J. DUCAYET, JR. Vice President, Chief Financial December 22, 1997
Edwin J. Ducayet, Jr. Officer Treasurer, and Assistant
Secretary (Principal Financial
Officer and Principal Accounting
Officer)
/s/ PHILIP P. SUDAN, JR. Director December 22, 1997
Philip P. Sudan, Jr.
/s/ ANTON LIECHTENSTEIN Director December 22, 1997
Anton Liechtenstein
/s/ ROBERT E. GARRISON II Director December 22, 1997
Robert E. Garrison II
<PAGE>
Item 21. Exhibits and Financial Statement Schedules
(a) Exhibits
EXHIBIT DESCRIPTION OF EXHIBIT
4.1 Amended and Restated Certificate of Incorporation of the Company (1)
4.2 Amended and Restated By-laws of the Company(1)
4.3 Plan and Agreement of Merger dated as of October 29, 1997 by and
among Intelect (Bermuda), the Company, and Intelect Merger Co.(1)
4.4 Specimen Stock Certificate of the Company(2)
5.1 Opinion of Ryan & Sudan, L.L.P.
23.1 Consent of KPMG Peat Marwick, Chartered Accountants, Hamilton,
Bermuda
23.2 Consent of Ryan & Sudan, L.L.P. (included in Exhibit 5.1)
------------------------------
(1) Incorporated herein by reference to Form S-4 of the Company
(File No. 333-39063)
(2) Incorporated herein by reference to Form 8-K of the Company
filed December 5, 1997
(b) Financial Statement Schedules
Not applicable.
EXHIBIT 5.1
[RYAN & SUDAN, L.L.P. LETTERHEAD]
December 22, 1997
Intelect Communications, Inc.
1100 Executive Drive
Richardson, Texas 75081
Re: Post-Effective Amendment No. 1 to the Registration Statement on Form
S-8 (No. 33-05918) ("Registration Statement") of Intelect
Communications, Inc.
Ladies and Gentlemen:
We have acted as counsel to Intelect Communications, Inc., a Delaware
corporation (the "Registrant"), with respect to the issuance of this opinion
relating to the proposed offering by the Registrant of up to One Million One
Hundred Fifty Nine Thousand Nine Hundred Eighty One (1,159,981) shares (the
"Shares") of the Common Stock of the Registrant, par value $.01 per share (the
"Common Stock"), pursuant to the Registrant's 1986 Employee Stock Option Plan
(the "Plan").
As such counsel, we have examined such corporate records, certificates and
other documents and have made such other factual and legal investigations as we
have deemed relevant and necessary as the basis for the opinions hereinafter
expressed. In such examinations, we have assumed the genuineness of all
signatures and the authenticity of all documents submitted to us as originals
and the conformity to original documents of all documents submitted to us as
conformed or photostatic copies.
Based on the foregoing, we are of the opinion that:
1. The issuance by the Registrant of the Shares pursuant to the Plan has
been duly authorized by all necessary corporate action on the part of the
Registrant.
2. When issued pursuant to the Plan, the Shares will be duly and validly
issued and outstanding, fully paid and non-assessable shares of Common Stock.
We hereby consent to the filing of this opinion as an exhibit to the
Post-Effective Amendment No. 1 to the Registration Statement.
Very truly yours,
/s/ RYAN & SUDAN, L.L.P.
RYAN & SUDAN, L.L.P.
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Intelect Communications Systems Limited
We consent to incorporation by reference in the registration statement (No.
33-05918) on Form S-8 of Intelect Communications, Inc. of our report dated April
9, 1997, relating to the consolidated balance sheets of Intelect Communications
Systems Limited and subsidiaries (the "Company") as of December 31, 1996 and
1995, and the related consolidated statements of operations, shareholders'
equity and cash flows for the year ended December 31, 1996, the two months ended
December 31, 1995 and the years ended October 31, 1995 and 1994, and the related
schedule, which report appears in the December 31, 1996 annual report on Form
10-K of the Company.
Our report dated April 9, 1997, contains an explanatory paragraph that states
that the Company has suffered recurring losses from continuing operations and is
dependent upon the successful development and commercialization of its products
and its ability to secure adequate sources of capital until the Company is
operating profitably. These matters raise substantial doubt about the company's
ability to continue as a going concern. Management's plans with regard to these
matters are described in note 1 to the consolidated financial statements. The
consolidated financial statements and financial statement schedule do not
include any adjustments that might result from the outcome of this uncertainty.
/s/ KPMG PEAT MARWICK
Chartered Accountants
Hamilton, Bermuda
December 19, 1997
