UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported) March 5, 1999
INTELECT COMMUNICATIONS, INC.
(Exact name of registrant as specified in its charter)
Delaware 0-11630 76-0471342
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
1100 Executive Drive, Richardson, Texas 75081
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (972) 367-2100
N/A
(Former name or former address, if changed since last report.)
<PAGE>
ITEM 5. OTHER EVENTS.
A. Intelect Communications, Inc. (the "Company") closed on March 5, 1999 a
private placement of a new series of its preferred stock designated as the
Series E Convertible Preferred Stock (the "Series E Preferred Stock") and
warrants to purchase common stock of the Company, with certain funds managed by
the Citadel Investment Group, L.L.C. ("Citadel"). At the March 5 closing, the
Company received gross proceeds of $3 million for the issuance of 3,000 shares
of the Series E Preferred Stock. The closing was the first of multiple closings
to take place pursuant to a Securities Purchase Agreement, subject to the
satisfaction of the terms and conditions of the Securities Purchase Agreement.
The material terms of the Series E Preferred Stock and the warrants are more
fully set forth in the Form 8-K of the Company filed effective March 2, 1999
(the "March 2 Form 8-K"). The operative transaction documents, which are a
Securities Purchase Agreement, Registration Rights Agreement, Certificate of
Designations, and a Form of Warrant, have also been filed as exhibits to the
March 2 Form 8-K. The disclosure herein is qualified by reference to the March 2
Form 8-K and the full text of the operative transaction documents filed as
exhibits to such Form 8-K.
B. On March 3, 1999, the Company's stockholders approved an amendment to the
Company's Amended and Restated Certificate of Incorporation increasing the
number of authorized shares of common stock of the Company to 100,000,000
shares. In addition, the stockholders approved a proposal to allow for the
issuance of the shares of common stock issuable upon conversion of the Series C
and Series D Convertible Preferred Stock of the Company without regard to
limitations imposed by The Nasdaq Stock Market, Inc. The full text of these
proposals, together with the risks and benefits associated with such proposals,
is set forth in the Company's Definitive Proxy Statement on Schedule 14A filed
on January 29, 1999.
<PAGE>
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(a) Financial Statements of Business to Be Acquired: N/A
(b) Pro Forma Financial Information of the Business to Be Acquired: N/A
(c) Exhibits:
EXHIBIT DESCRIPTION OF EXHIBIT
3.1 Certificate of Amendment of Amended and Restated
Certificate of Incorporation
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
INTELECT COMMUNICATIONS, INC.
(Registrant)
Date: March 8, 1999 By: /s/ HERMAN M. FRIETSCH
(Signature)
Herman M. Frietsch
Chairman of the Board
3
<PAGE>
EXHIBIT INDEX
EXHIBIT DESCRIPTION OF EXHIBIT
3.1 Certificate of Amendment of Amended and Restated
Certificate of Incorporation
- ---------------------
4
EXHIBIT 3.1
CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
Intelect Communications, Inc., a corporation organized and existing under
and by virtue of the General Corporation Law of the States of Delaware, DOES
HEREBY CERTIFY:
FIRST: That the Amended and Restated Certificate of Incorporation of said
Corporation has been amended by amending Section 4.1 of Article IV to read as
follows:
Section 4.1. TOTAL NUMBER OF SHARES OF CAPITAL STOCK. The total number of
shares of capital stock of all classes which the Company shall have authority to
issue is 150,000,000 shares, consisting of 100,000,000 shares of Common Stock,
par value $0.01 per share (the "Common Stock"), and 50,000,000 shares of
Preferred Stock, par value $0.01 per share (the "Preferred Stock").
SECOND, the aforesaid amendment was duly proposed by the Board of
Directors of the Corporation and was duly adopted by the stockholders of the
Corporation entitled to vote thereon in accordance with the applicable
provisions of section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, said Intelect Communications, Inc. has caused this
certificate of be signed by Herman M. Frietsch, it Chairman and Chief Executive
Officer and attested by Edwin J. Ducayet, its Assistant Secretary, this 3rd day
of March, 1999.
INTELECT COMMUNICATIONS, INC.
By: /s/ HERMAN M. FRIETSCH
Herman M. Frietsch
Chairman and Chief Executive Officer
ATTEST:
By: /s/ EDWIN J DUCAYET, JR.
Edwin J. Ducayet, Jr.
Assistant Secretary
<PAGE>
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
INTELECT COMMUNICATIONS, INC.
This document constitutes an amendment and restatement of the original
Certificate of Incorporation of Intelect Communications, Inc. (the
"Corporation"), which was filed with the Secretary of State of Delaware on May
23, 1995. The name under which the original Certificate of Incorporation was
filed was Intelect Systems Corp. This Amended and Restated Certificate of
Incorporation was duly adopted in accordance with the provisions of Sections
245(c) and 242 of the Delaware General Corporation Law.
ARTICLE I
Name
The name of the Corporation is Intelect Communications, Inc.
ARTICLE II
Address of Registered Office:
Name of Registered Agent
The address of the registered office of the Corporation in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, in the City of
Wilmington, county of New Castle,
19801. The name of its registered agent at that address in the
State of Delaware is The
Corporation Trust Company.
ARTICLE III
Purpose and Powers
The purpose of the Corporation is to engage in any lawful act or activity
for which a corporation may now or hereafter be organized under the Delaware
General Corporation Law ("Delaware Law"). It shall have all powers that may now
or hereafter be lawful for a corporation under the Delaware Law.
ARTICLE IV
Capital Stock
Section 4.1. TOTAL NUMBER OF SHARES OF STOCK. The total number of shares
of capital stock of all classes that the Corporation shall have authority to
issue is 100,000,000 (One Hundred Million) shares. The authorized capital stock
is divided into 50,000,000 (Fifty Million) shares of
1
<PAGE>
preferred stock, of the par value of $.01 each (the "Preferred Stock"), and
50,000,000 (Fifty Million) shares of common stock, of the par value of $.01 each
(the "Common Stock").
Section 4.2. PREFERRED STOCK. (a) The shares of Preferred Stock of the
Corporation may be issued from time to time in one or more classes or series
thereof, the shares of each class or series thereof to have such voting powers,
full or limited, or no voting powers, and such designations, preferences and
relative, participating, optional or other special rights, and qualifications,
limitations or restrictions thereof, as are stated and expressed herein or in
the resolution or resolutions providing for the issue of such class or series,
adopted by the board of directors of the Corporation (the "Board of Directors")
as hereinafter provided.
(b) Authority is hereby expressly granted to the Board of Directors,
subject to the provisions of this Article IV and to the limitations prescribed
by the Delaware Law, to authorize the issue of one or more classes, or series
thereof, of Preferred Stock and with respect to each such class or series to fix
by resolution or resolutions providing for the issue of such class or series the
voting powers, full or limited, if any, of the shares of such class or series
and the designations, preferences and relative, participating, optional or other
special rights, and qualifications, limitations or restrictions thereof. The
authority of the Board of Directors with respect to each class or series thereof
shall include, but not be limited to the determination or fixing of the
following:
(i) the maximum number of shares to constitute such class or series,
which may subsequently be increased or decreased by resolutions of the
Board of Directors unless otherwise provided in the resolution providing
for the issue of such class or series, the distinctive designation thereof
and the stated value thereof if different than the par value thereof;
(ii) the dividend rate of such class or series, the conditions and
dates upon which such dividends shall be payable, the relation which such
dividends shall bear to the dividends payable on any other class or
classes of stock or any other series of any class of stock of the
Corporation, and whether such dividends shall be cumulative or
noncumulative;
(iii) whether the shares of such class or series shall be subject to
redemption, in whole or in part, and if made subject to such redemption
the times, prices and other terms and conditions of such redemption,
including whether or not such redemption may occur at the option of the
Corporation or at the option of the holder or holders thereof or upon the
happening of a special event;
(iv) the terms and amount of any sinking fund established for the
purchase or redemption of the shares of such class or series;
2
<PAGE>
(v) whether or not the shares of such class or series shall be
convertible into or exchangeable for shares of any other class or classes
of any stock or any other series of any class of stock of the Corporation,
and, if provision is made for conversion or exchange, the times, prices,
rates, adjustments, and other terms and conditions of such conversion or
exchange;
(vi) the extent, if any, to which the holders of shares of such
class or series shall be entitled to vote with respect to the election of
directors or otherwise;
(vii) the restrictions, if any, on the issue or reissue of any
additional Preferred Stock;
(viii) the rights of the holders of the shares of such class or
series upon the dissolution of, or upon the subsequent distribution of
assets of, the Corporation; and
(ix) the manner in which any facts ascertainable outside the
resolution or resolutions providing for the issue of such class or series
shall operate upon the voting powers, designations, preferences, rights
and qualifications, limitations or restrictions of such class or series.
Section 4.3. COMMON STOCK. The shares of Common Stock of the Corporation
shall be of one and the same class. The holders of Common Stock shall have one
vote per share of Common Stock on all matters on which holders of Common Stock
are entitled to vote.
ARTICLE V
Board of Directors
Section 5.1. POWERS OF THE BOARD OF DIRECTORS. The business and affairs of
the Corporation shall be managed by or under the direction of its Board of
Directors which shall consist of not less than three members. In furtherance,
and not in limitation, of the powers conferred by the laws of the State of
Delaware, the Board of Directors is expressly authorized to:
(a) adopt, amend, alter, change or repeal the By-Laws of the
Corporation; provided, however, that no By-Laws hereafter adopted shall
invalidate any prior act of the directors that would have been valid if
such new By-Laws had not been adopted;
(b) determine the rights, powers, duties, rules and procedures that
affect the power of the Board of Directors to manage and direct the
business and affairs of the Corporation, including the power to designate
and empower committees of the Board of Directors, to elect, appoint and
empower the officers and other agents of the Corporation, and to determine
the time and place of the notice requirements for Board meetings, as well
as quorum and voting requirements for and the manner of taking Board
action; and
3
<PAGE>
(c) exercise all such powers and do all such acts as may be
exercised or done by the Corporation, subject to the provisions of the
Delaware Law, this Certificate of Incorporation and the By-Laws of the
Corporation.
Section 5.2. NUMBER OF DIRECTORS. The number of directors constituting the
Board of Directors shall be determined from time to time exclusively by a vote
of a majority of the Board of Directors in office at the time of such vote.
Section 5.3. CLASSIFIED BOARD OF DIRECTORS. The directors shall be divided
into three classes, with each class to be as nearly equal in number as
reasonably possible, and with the initial term of office of the first class of
directors to expire at the 1998 annual meeting of stockholders, the initial term
of office of the second class of directors to expire at the 1999 annual meeting
of stockholders and the initial term of office of the third class of directors
to expire at the 2000 annual meeting of stockholders, in each case upon the
election and qualification of their successors. Commencing with the 1998 annual
meeting of stockholders, directors elected to succeed those directors whose
terms have thereupon expired shall be elected to a term of office to expire at
the third succeeding annual meeting of stockholders after their election, and
upon the election and qualification of their successors. If the number of
directors is changed, any increase or decrease shall be apportioned among the
classes so as to maintain or attain the number of directors in each class as
nearly equal as reasonably possible, but in no case will a decrease in the
number of directors shorten the term of any incumbent director.
Section 5.4. VACANCIES. Any vacancies in the Board of Directors for any
reason and any newly created directorship resulting by reason of any increase in
the number of directors may be filled only by the Board of Directors, acting by
a majority of the remaining directors then in office, although less than a
quorum, or by a sole remaining director, and any directors so appointed shall
hold office until the next election of the class for which such directors have
been chosen and until their successors are elected and qualified.
Section 5.5. REMOVAL OF DIRECTORS. Except as may be provided in a
resolution or resolutions providing for any class or series of Preferred Stock
pursuant to Article IV hereof with respect to any directors elected by the
holders of such class or series, any director may be removed from office at any
time, but only for cause, and only by the affirmative vote of the holders of at
least ninety percent (90%) of the voting power of all of the shares of capital
stock of the Corporation then entitled to vote generally in the election of
directors, voting together as a single class.
ARTICLE VI
Stockholder Actions and Meetings of Stockholders
Except as may be provided in a resolution or resolutions providing for any
class or series of Preferred Stock pursuant to Article IV hereof, any action
required or permitted to be taken by
4
<PAGE>
the stockholders of the Corporation must be effected at a duly called annual or
special meeting of such holders and may not be effected by any written consent
in lieu of a meeting by such holders. Special meetings of stockholders of the
Corporation may be called only by the Board of Directors pursuant to a
resolution adopted by a majority of the members of the Board of Directors then
in office. Elections of directors need not be by written ballot unless otherwise
provided in the ByLaws.
ARTICLE VII
Limitation on Liability of Directors
No person shall be personally liable to the Corporation or its
stockholders for monetary damages for breach of a fiduciary duty as a director,
including, without limitation, directors serving on committees of the Board of
Directors; provided however, that the foregoing shall not eliminate or limit the
liability of a director (i) for any breach of the director's duty of loyalty to
the Corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) under Section 174 of the Delaware Law, or (iv) for any transaction from
which the director derived an improper personal benefit. If the 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
the Delaware Law as so amended. Any amendment, repeal or modification of this
Article VII 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 VIII
Amendment of By-Laws
The power to adopt, amend, alter, change or repeal any By-Laws of the
Corporation shall be vested exclusively with the Board of Directors.
ARTICLE IX
Amendment of Certificate of Incorporation
The Corporation hereby reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation in any
manner permitted by Delaware Law and all rights and powers conferred upon
stockholders, directors and officers herein are granted subject to this
reservation. Except as may be provided in a resolution or resolutions providing
for any class or series of Preferred Stock pursuant to Article IV hereof and
which relate to such class or series of Preferred Stock, any such amendment,
alteration, change or repeal shall require the affirmative vote of both (a) a
majority of the members of the Board of Directors then in office and
5
<PAGE>
(b) a majority of the voting power of all of the shares of capital stock of the
Corporation entitled to vote generally in the election of directors voting
together as a single class; except that any proposal to amend, alter, change or
repeal the provisions of Article V, Article VI, Article VII, Article VIII and
this Article IX shall require the affirmative vote of ninety percent (90%) of
the voting power of all of the shares of capital stock entitled to vote
generally in the election of directors, voting together as a single class.
ARTICLE X
Severability
In the event that any of the provisions of this Certificate of
Incorporation (including any provision within a single Section, paragraph or
sentence) are held by a court of competent jurisdiction to be unenforceable for
any reason, the remaining provisions of this Certificate of Incorporation shall
be and remain enforceable to the fullest extent permitted by law.
THE UNDERSIGNED, being the Chairman and Chief Executive Officer of the
Corporation, for the purpose of amending and restating the Certificate of
Incorporation of the Corporation pursuant to Delaware Law does make this
Certificate, hereby declaring and certifying that this is the act and deed of
the Corporation and that the facts herein stated are true, and accordingly have
hereunto set my hand as of the 28th day of October 1997.
/s/ HERMAN M. FRIETSCH
HERMAN M. FRIETSCH
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
ATTEST:
/s/ EDWIN J. DUCAYET, JR.
EDWIN J. DUCAYET, JR.
ASSISTANT SECRETARY
6
