As filed with the Securities and Exchange Commission on August 27, 1999
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 OF (I.R.S. EMPLOYER IDENTIFICATION NUMBER)
INCORPORATION OR ORGANIZATION)
INTELECT COMMUNICATIONS, INC. STOCK INCENTIVE PLAN (1)
(FULL TITLE OF THE PLAN)
1100 EXECUTIVE DRIVE
RICHARDSON, TEXAS 75081
(972) 367-2100
(ADDRESS, INCLUDING ZIP CODE, AND
TELEPHONE NUMBER, INCLUDING AREA CODE,
OF REGISTRANT'S PRINCIPAL
EXECUTIVE OFFICES)
-------------------------
HERMAN M. FRIETSCH
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
INTELECT COMMUNICATIONS, INC.
1100 EXECUTIVE DRIVE
RICHARDSON, TEXAS 75081
TELEPHONE: (972) 367-2100
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE
NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
WITH A COPY TO:
ROBERT C. BEASLEY
RYAN & SUDAN, L.L.P.
909 FANNIN, SUITE 3900
HOUSTON, TEXAS 77010
TELEPHONE: (713) 652-0501
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: from time to
time after the effective date of the registration statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box.[ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box.[X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering.[ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering.[ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box.[ ]
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED PROPOSED
MAXIMUM MAXIMUM
OFFERING AGGREGATE AMOUNT OF
TITLE OF SECURITIES AMOUNT TO PRICE OFFERING REGISTRATION
TO BE REGISTERED BE REGISTERED PER SHARE (3) PRICE FEE
- ---------------------- -------------------- -------------- ---------- ------------
<S> <C> <C> <C> <C>
Common Stock,
$.01 par value (2)1,000,000 $ 1.016 $1,016,000 $ 283
- ---------------------- -------------------- -------------- ---------- ------------
</TABLE>
<PAGE>
(1) Of the 6,000,000 shares of Common Stock issuable under the Company's
Stock Incentive Plan amended as of June 18, 1999, 4,000,000 shares were
previously issued or remain issuable 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 and an additional
1,000,000 have been issued or remain issuable under the Company's
Registration Statement on Form S-8 filed on August 13, 1998 (Commission
File No. 333-61333) under the Company's Stock Incentive Plan as amended as
of June 18, 1998.
(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 to prevent dilution from
stock splits, stock dividends or similar transactions.
(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 24, 1999.
<PAGE>
INTRODUCTION
On June 18, 1999, 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 6,000,000 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 and the registration statement on
Form S-8 filed on August 13, 1998 (File No. 333-61333) which covered an
additional 1,000,000 shares.
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 for the year ended December 31, 1998;
2. Quarterly Reports on Form 10-Q for the quaterly periods ended March 31,
1999 and June 30, 1999;
3. Current Reports on Form 8-K filed on July 2, 8, August 18, and 25,
1999;
4. The Company's Definitive Proxy Statement on Schedule 14A filed on
April 30, 1999; and
5. The description of the Company's Common Stock contained in 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.
Our financial statements as of December 31, 1998, and for the year then
ended, incorporated by reference have been audited by Grant Thornton LLP,
independent public accountants, as indicated in their report with respect
thereto, and are included herein in reliance upon the authority of said firm as
experts in accounting and auditing in giving said reports. The report of Grant
Thornton LLP on the consolidated financial statements contains an explanatory
paragraph that states that we have suffered recurring losses from continuing
operations and are dependent upon the successful development and
commercialization of our products and our ability to secure adequate sources of
capital until we operate profitably. These matters raise substantial doubt about
our 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.
Our financial statements as of December 31, 1997, and for the year then
ended, incorporated by reference in this Prospectus and elsewhere in the
registration statement have been audited by Arthur Andersen LLP, independent
public accountants, as indicated in their report with respect thereto, and are
included herein in reliance upon the authority of said firm as experts in
accounting and auditing in giving said reports.
Our consolidated statements of operations, stockholders' equity and cash
flows for the year ended December 31, 1996, the related schedule, and the report
of KPMG Peat Marwick, independent chartered accountants, all contained in our
1998 annual report, are incorporated herein by reference. The KPMG Peat Marwick
report on the aforementioned consolidated financial statements contains an
explanatory paragraph that states that we have suffered recurring losses from
continuing operations and are dependent upon the successful development and
commercialization of our products and our ability to secure adequate sources of
capital until we operate profitably. These matters raise substantial doubt about
our 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.
<PAGE>
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 Intelect. Mr. Sudan beneficially owns 297,084
shares of common stock. Mr. James W. Ryan, a partner in Ryan & Sudan, L.L.P.,
beneficially owns 103,542 shares of common stock. In addition, Messrs. Ryan and
Sudan are holders of certain amended and restated promissory notes ("Promissory
Notes") issued by the Company which have an aggregate principal balance of
$200,000. The Promissory Notes are payable on demand in cash or in Common Stock.
If a holder elects to convert his Promissory Note into Common Stock, the number
of shares to which the holder would be entitled is equal to the aggregate
principal and interest outstanding under the Promissory Note divided by $2.00.
The Promissory Notes were originally issued on December 5, 1997 and bear
interest at the prime rate plus 3%.
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 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
<PAGE>
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.
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;
<PAGE>
(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 Richardson, State of Texas, on August 27, 1999.
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.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
/s/ HERMAN M. FRIETSCH
Herman M. Frietsch Chief Executive Officer and August 27, 1999
Director (Principal Executive Officer)
/s/ ROBERT P. CAPPS
Robert P. Capps Executive Vice President and August 27, 1999
Chief Financial Officer
(Principal Financial Officer and Principal
Accounting Officer)
/s/ PHILIP P. SUDAN, JR.
Philip P. Sudan, Jr. Director August 27, 1999
/s/ ANTON LIECHTENSTEIN
Anton Liechtenstein Director August 27, 1999
/s/ ROBERT E. GARRISON II
Robert E. Garrison II Director August 27, 1999
</TABLE>
<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 Certificate of Amendment to Amended and Restated Certificate
of Incorporation (2)
4.3 Amended and Restated By-laws of the Company(1)
5.1 Opinion of Ryan & Sudan, L.L.P.
10.1 Stock Incentive Plan of the Company, as amended (3)
23.1 Consent of Grant Thornton, L.L.P.
23.2 Consent of Arthur Andersen, L.L.P.
23.3 Consent of KPMG Peat Marwick
23.4 Consent of Ryan & Sudan, L.L.P. (included in Exhibit 5.1)
------------------------------
(1) Incorporated herein by reference to the Form S-4 of the
Company (File No. 333-39063).
(2) Incorporated herein by reference to that certain Form 8-K of
the Company filed March 8, 1999.
(3) Incorporated herein by reference to the Proxy Statement of the
Company filed April 30, 1999.
(b) Financial Statement Schedules
Not applicable.
Exhibit 5.1
[RYAN & SUDAN, L.L.P. LETTERHEAD]
August 27, 1999
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 31, 1999, included in Intelect
Communications, Inc.'s Form 10-K for the year ended December 31, 1998, and to
all references to our firm included in this registration statement.
GRANT THORNTON LLP
Dallas, Texas
August 26, 1999
Exhibit 23.2
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 (Intelect Communications,
Inc. Stock Incentive Plan)(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 26, 1999
Exhibit 23.3
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 27, 1999 of our report dated April 9, 1997, relating to
the consolidated statements of operations, stockholders' equity and cash flows
of Intelect Communications Systems Limited and subsidiaries for the year ended
December 31, 1996, and the related schedule, which report appears in the
December 31, 1998 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 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.
KPMG PEAT MARWICK
Chartered Accountants
Hamilton, Bermuda
August 27, 1999
