As filed with the Securities and Exchange Commission on August 13, 1998
Registration No. 333-______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------
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. STOCK INCENTIVE PLAN (1)
(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
Approximate date of commencement of proposed sale to the public: FROM TIME
TO TIME AFTER THE EFFECTIVE DATE OF THE REGISTRATION STATEMENT
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED BE REGISTERED(1)(2) PER SHARE(3) PRICE REGISTRATION FEE
- ------------------- ------------------- ----------------- ------------------ ------------------
<S> <C> <C> <C> <C>
Common Stock,
$.01 par value 1,000,000 $3.86 $3,860,000 $1,139
</TABLE>
(1) Of the 5,000,000 shares of Common Stock issuable under the Company's Stock
Incentive Plan amended as of June 18, 1998, 4,000,000 shares were
previously registered on the Company's Registration Statement on Form S-8,
filed January 2, 1998 (Commission File Number 333-3246), for the original
Stock Incentive Plan.
(2) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as
amended, this Registration Statement also covers an indeterminate number
of shares of Common Stock that may be issued if certain anti-dilution
provisions of the Company's Stock Incentive Plan, as amended, become
operative.
(3) Estimated solely for the purpose of calculating the registration fee.
Pursuant to Rule 457(h), the registration fee has been calculated based
upon the average of the high and low prices of the Common Stock as
reported on the Nasdaq National Market on August 6, 1998.
<PAGE>
INTRODUCTION
On June 18, 1998, the stockholders of the Company approved at its Annual
Meeting of Stockholders a proposal to amend the Company's Stock Incentive Plan
(the "Plan") to increase the number of shares available for issuance under the
Plan by 1,000,000 for an aggregate amount of shares available for issuance under
the Plan of 5,000,000 shares. The Company hereby incorporates by reference the
registration statement on Form S-8 filed on January 2, 1998 (File No. 333-3246)
which covered 4,000,000 shares of Common Stock.
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.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The following documents filed by the Company with the Securities and
Exchange Commission (the "Commission") are incorporated herein by reference:
1. Annual Report on Form 10-K filed on March 31, 1998;
2. Quarterly Report on Form 10-Q filed on May 15, 1998;
3. Current Report on Form 8-K filed on May 11, 1998;
4. Current Report on Form 8-K filed on June 29, 1998; and
5. The description of the Company's Common Stock contained in the
Registration Statement on Form S-4 declared effective on October 30,
1997 (File No. 333-39063) and the Form 8-K of the Company filed on
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.
The consolidated balance sheet of the Company as of December 31, 1997, and
the related consolidated statements of operations, stockholders' equity and cash
flows for the year ended December 31, 1997 have been incorporated by reference
herein together with the related notes and the report of Arthur Andersen LLP
dated March 27, 1998.
The consolidated balance sheet of the Company and its subsidiaries as of
December 31, 1996 and the related consolidated statements of operations,
stockholders' equity and cash flows for the year ended December 31, 1996, the
two month period ended December 31, 1995 and the year ended October 31, 1995,
together with the related notes and the report of KPMG Peat Marwick, independent
chartered accountants, all contained in the Company's 1997 annual report, are
incorporated herein by reference. The report of KPMG Peat Marwick on the
aforementioned consolidated financial statements 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 operates 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.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the Common Stock offered hereby will be passed upon by
Ryan & Sudan, L.L.P., Houston, Texas. Philip P. Sudan, Jr. is a partner of Ryan
& Sudan, L.L.P and a director of the Company. Mr. Sudan beneficially owns
246,688 shares of Common Stock. Mr. James W. Ryan, a partner in Ryan & Sudan,
L.L.P., beneficially owns 63,342 shares of Common Stock.
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
<PAGE>
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 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
<PAGE>
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.
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.
<PAGE>
(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 Richardson, State of Texas, on August 13, 1998.
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 on the dates indicated.
SIGNATURE TITLE DATE
- --------- ----- ----
/s/ HERMAN M. FRIETSCH Chief Executive Officer and August 13, 1998
Herman M. Frietsch Director (Principal
Executive Officer)
/s/ EDWIN J. DUCAYET, JR. Vice President, Chief Financial August 13, 1998
Edwin J. Ducayet, Jr. Treasurer, and Assistant
Secretary (Principal Financial
Officer and Principal
Accounting Officer)
/s/ PHILIP P. SUDAN, JR. Director August 13, 1998
Philip P. Sudan, Jr.
/s/ ANTON LIECHTENSTEIN Director August 13, 1998
Anton Liechtenstein
/s/ ROBERT E. GARRISON II Director August 13, 1998
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)
5.1 Opinion of Ryan & Sudan, L.L.P.
23.1 Consent of Arthur Andersen, L.L.P.
23.2 Consent of KPMG Peat Marwick
23.3 Consent of Ryan & Sudan, L.L.P. (included in Exhibit 5.1)
99.1 Stock Incentive Plan of the Company (2)
------------------------------
(1) Incorporated herein by reference to Form S-4 of the Company
(File No. 333-39063)
(2) Incorporated herein by reference to the Proxy Statement of the
Company filed April 28, 1998.
(b) Financial Statement Schedules
Not applicable.
EXHIBIT 5.1
[RYAN & SUDAN, L.L.P. LETTERHEAD]
August 13, 1998
Intelect Communications, Inc.
1100 Executive Drive
Richardson, Texas 75081
Re: Registration Statement on Form S-8 ("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
(1,000,000) shares (the "Shares") of the Common Stock of the Registrant, par
value $.01 per share (the "Common Stock"), pursuant to the Registrant's Stock
Incentive Plan, as amended (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. Upon the issuance of the Shares against payment therefor as provided in
the Plan, the Shares will be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
RYAN & SUDAN, L.L.P.
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
To the Board of Directors
Intelect Communications, Inc.
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-8 (Registration No.
333-______) of our report dated March 27, 1998, included in Intelect
Communications, Inc.'s Form 10-K for the year ended December 31, 1997, and to
all references to our firm included in this registration statement.
ARTHUR ANDERSEN LLP
Dallas, Texas
August 11, 1998
Exhibit 23.2
CONSENT OF KPMG PEAT MARWICK
The Board of Directors
Intelect Communications, Inc.
We consent to the incorporation by reference in the registration statement on
Form S-8 dated August 10, 1998 of our report dated April 9, 1997, relating to
the consolidated balance sheet of Intelect Communications Systems Limited and
subsidiaries as of December 31, 1996, and the related consolidated statements of
operations, stockholder's equity and cash flows for the year ended December 31,
1996, the two months ended December 31, 1995 and the year ended October 31,
1995, and the related schedule, which report appears in the December 31, 1997
annual report on Form 10-K of Intelect Communications, Inc.
Our report dated April 9, 1997, contains an explanatory paragraph that states
that Intelect Communications Systems Limited has suffered recurring losses from
continuing operations and is dependent upon the successful development and
commercialization of its products and is 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.
KPMG PEAT MARWICK
Chartered Accountants
Hamilton, Bermuda
August 11, 1998
