<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 16, 1999
REGISTRATION NO. 333-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
------------------
AXCESS INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<CAPTION>
DELAWARE 3690 85-0294536
<S> <C> <C>
(State or other jurisdiction of (Primary standard industrial (I.R.S. Employer
incorporation or organization) classification code number) Identification No.)
3208 COMMANDER DRIVE
DALLAS, TEXAS 75006
(972) 407-6080
</TABLE>
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
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AXCESS INC. STOCK OPTION PLAN
(Full title of the plan)
------------------
Harry S. Budow Copies of communications to:
President and Chief Executive Officer
AXCESS Inc. Michael R. Dorey, Esq.
3208 COMMANDER DRIVE SAYLES & LIDJI, P.C.
CARROLLTON, TEXAS 75006 4400 RENAISSANCE TOWER
(972) 407-6080 1201 ELM STREET
(NAME, ADDRESS, INCLUDING ZIP CODE, DALLAS, TEXAS 75270
NUMBER, INCLUDING AREA CODE, OF AGE (214) 939-8700
------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===============================================================================================================================
Proposed maximum Proposed maximum
Title of each class of Amount to offering price aggregate Amount of
securities to be registered be registered per unit offering price registration fee
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.01
par value per share 900,000 $2.56 (1) $2,304,000 $641
===============================================================================================================================
</TABLE>
- --------------------------------
(1) Pursuant to Rule 457(h), based on the average of the bid
and asked prices of the common stock reported on the Nasdaq
SmallCap Market as of June 14, 1999, which is within five (5)
business days prior to the date of the filing of the Registration
Statement.
===============================================================================
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of Form
S-8 (plan information and registrant information) will be sent or given to
employees as specified by Rule 428(b)(i) of the Securities Act of 1933. Such
documents need not be filed with the Securities and Exchange Commission either
as a part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424 of the Securities Act of 1933. These documents,
which include the statement of availability required by Item 2 of Form S-8, and
the documents incorporated by reference in this Registration Statement pursuant
to Item 3 of Form S-8 (Part II hereof), taken together, constitute a prospectus
that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
AXCESS Inc. hereby incorporates by reference into this registration
statement the following documents previously filed with the SEC.
(1) Annual Report on Form 10-KSB for the fiscal year ended
December 31, 1998;
(2) Quarterly Report on Form 10-Q for the quarter ended March 31,
1999; and
(3) the description of the stock contained in the company's
registration statement on Form 8-A, filed with the SEC on
April 27, 1984, including any amendment or report filed for
the purpose of updating such description.
All documents subsequently filed by the company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Securities and Exchange Act of 1934 prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference into this Registration Statement and
to be part thereof from the date of filing of such documents. Any statement
contained herein or in a document, all or a portion of which is incorporated or
deemed to be incorporated by reference herein, shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or amended, to constitute a part of this
Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
AXCESS Inc.'s stock, par value $0.01 per share, is registered pursuant
to Section 12 of the Securities and Exchange Act of 1934, and, therefore, the
description of securities is omitted.
<PAGE> 3
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article Ninth of the Certificate of Incorporation, as amended, of the
Company requires indemnification of directors and officers to the fullest extent
permitted by the Delaware General Corporation Law.
Generally, the Delaware General Corporation Law permits a corporation
to indemnify a person who was or is an officer, director, agent, or employee, or
who serves at the corporation's request as an officer, director, agent, or
employee, of another corporation, partnership, trust joint venture, or other
enterprise ("nominee"), who was, is, or is threatened to be named a defendant in
a legal proceeding by virtue of such person's position in the corporation or
nominee, but only if the person acted in good faith and reasonably believed that
the conduct was in or at least not opposed to the corporation's best interest,
and, in the case of a criminal proceeding, the person had no reasonable cause to
believe the conduct was unlawful. A person may be indemnified within the above
limitations against judgments, fines, settlements, and reasonable expenses
actually incurred. Generally, a director, officer, agent, or employee of the
corporation or nominee may not be indemnified, however, against judgments,
fines, and settlements incurred in a proceeding in which the person is found
liable to the corporation and may not be indemnified for expenses unless, and
only to the extent that, in view of all the circumstances, the person is fairly
and reasonably entitled to indemnification for such expenses. A corporation must
indemnify a director, officer, employee, or agent against reasonable expenses
incurred in connection with a proceeding in which the person is a party because
of the person's corporate position, if the person was successful, on the merits
or otherwise, in the defense of the proceeding. Under certain circumstances, a
corporation may also advance expenses to such person. Under the Delaware General
Corporation Law, a corporation may purchase and maintain insurance on behalf of
any person who is or was a director, officer, employee, or agent of the
corporation against any liability asserted against and incurred by the person in
such capacity, or arising out of the person's status as such a person,
regardless of whether the applicable law otherwise empowers the corporation to
indemnify that person against such liability.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
None.
II-2
<PAGE> 4
ITEM 8. EXHIBITS
The following documents are filed as a part of this registration
statement. Where such filing is made by incorporation by reference to a
previously filed report, such report is identified. The Index to Exhibits
included with the exhibits is filed as a part of this report.
<TABLE>
<CAPTION>
Exhibit Description
------- -----------
<S> <C>
4.1 AXCESS Inc. Stock Option Plan
5.1 Opinion of Sayles & Lidji, P.C.
23.1 Consent of Sayles & Lidji, P.C. (included in the opinion filed as Exhibit 5.1)
23.2 Consent of KPMG LLP
24.1 Power of Attorney (see signature page of this Registration Statement - Page II-5)
</TABLE>
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) to file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement 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;
(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; and
(3) to remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933,
each filing of the registrant's annual report pursuant to section 13(a)
or section 15(d) of the Securities and 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 and Exchange Act of 1934)
that is incorporated by reference in the registration statement shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
II-3
<PAGE> 5
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 SEC such indemnification is against public policy as
expressed in the Securities Act of 1933 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
of the question whether such indemnification by it is against public
policy as expressed in the Securities Act of 1933 and will be governed
by the final adjudication of such issue.
II-4
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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, thereto duly authorized
in the City of Dallas, State of Texas, on the 15th day of June, 1999.
AXCESS INC.
By: /s/ Harry S. Budow
--------------------------------------------
Harry S. Budow,
President and Chief Executive Officer
POWER OF ATTORNEY
Each individual whose signature appears below hereby designates and
appoints Harry S. Budow as such person's true and lawful attorney-in-fact and
agent (the "Attorney-in-Fact") with full power of substitution and
resubstitution, for such person and in such person's name, place, and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this registration statement, which amendments may make such
changes in this registration statement as the Attorney-in-Fact deems appropriate
and requests to accelerate the effectiveness of this registration statement, and
to file each such amendment with all exhibits thereto, and all documents in
connection therewith, with the Securities and Exchange Commission, granting unto
such Attorney-in-Fact, full power and authority to do and perform each and every
act and thing requisite and necessary to be done in and about the premises, as
fully to all intents and purposes as such person might or could do in person,
hereby ratifying and confirming all that such Attorney-in-Fact, or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on the 15th day of June, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
/s/ Harry S. Budow President, Chief Executive Officer, and Director
- ---------------------------------------------------- (Principal Executive Officer)
Harry S. Budow
/s/ Danny G. Hair Executive Vice President, Secretary and Chief
- ---------------------------------------------------- Financial Officer
Danny G. Hair (Principal Financial and Accounting Officer)
/s/ Richard C.E. Morgan Chairman of the Board of Directors
- ----------------------------------------------------
Richard C. E. Morgan
/s/ C. Seth Cunningham Director
- ----------------------------------------------------
C. Seth Cunningham
/s/ Richard M. Clarke Director
- ----------------------------------------------------
Richard M. Clarke
/s/ Paul J. Coleman, Jr. Director
- ----------------------------------------------------
Paul J. Coleman, Jr.
/s/ Gregory W. Haskell Director
- ----------------------------------------------------
Gregory W. Haskell
</TABLE>
II-5
<PAGE> 7
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION OF EXHIBIT
- ------- ----------------------
<S> <C>
4.1 AXCESS Inc. Stock Option Plan
5.1 Opinion of Sayles & Lidji, P.C.
23.1 Consent of Sayles & Lidji, P.C. (included in the opinion filed as Exhibit 5.1)
23.2 Consent of KPMG LLP
24.1 Power of Attorney (see signature page of this Registration Statement -
Page II-5)
</TABLE>
<PAGE> 1
EXHIBIT 4.1
AXCESS INC.
STOCK OPTION PLAN
<PAGE> 2
AXCESS INC.
STOCK OPTION PLAN
1. Purpose
The purpose of the Stock Option Plan (referred to herein as the "Plan")
is to promote the interests of the company by ensuring continuity of management
and increased incentive on the part of officers and executive employees
responsible for major contributions to effective management, through
facilitating their acquisition of an equity interest in the company on
reasonable terms.
2. Administration
The Plan shall be administered by the Compensation Committee of the
Board of Directors (referred to herein as the "Committee"). The Committee shall
consist of not less than three directors who shall not be eligible to
participate in the Plan while members of the Committee. It shall have the power
to select optionees, to establish the number of shares and other terms
applicable to each such option, to constitute the provisions of the Plan and to
adopt rules and regulations governing the administration of the Plan.
3. Eligibility
Those eligible to participate in the Plan will be selected by the
Committee from the following:
(1) Directors who are employees of the Company or its domestic
subsidiaries (excluding members from time to time of the
Committee).
(2) Officers and other key employees of the Company and its
domestic subsidiaries.
In all cases, optionees shall be selected on the basis of the
demonstrated ability to contribute substantially to the effective management of
the Company.
In no event shall an option be granted to any individual who,
immediately after such option is granted, is considered to own stock possessing
more than 10% of the combined voting power of all classes of stock of the
Company or any of its subsidiaries within the meaning of Section 422 of the
Internal Revenue Code of 1986, as amended (referred to herein as the "Internal
Revenue Code").
4. Allotment of Shares
A maximum of 900,000 authorized but unissued shares of the common stock
of the Company (par value $.01) will be allotted to the Plan, subject to the
required approval by the stockholders. The Committee may, in its discretion, use
treasury shares in lieu of authorized but unissued shares for the options. To
the extent this is done, the number of authorized but unissued shares to be used
for the Plan will be reduced.
Shares covered by options which lapse or have been terminated during
the duration of this Plan may be reallocated by the Committee.
<PAGE> 3
5. Effective Date and Term of Plan
The Plan shall become effective on May 29, 1991. No option shall be
granted pursuant to this Plan later than May 28, 2001, but options theretofore
granted may extend beyond that date in accordance with their terms.
6. Terms and Conditions
A. All Options
The following shall apply to all options granted under the
Plan.
(i) Option Price
The option price per share for each stock option
shall be determined by the Committee and shall not be less
than the fair market value on the date the option is granted.
The fair market value shall be determined as prescribed by the
Internal Revenue Code and Regulations.
(ii) Time of Exercise of Option
The Committee shall establish the time or times
within the option period when the stock option may be
exercised in whole or in such parts as may be specified from
time to time by the Committee. With respect to an optionee who
is about to retire, the Committee may in its discretion
accelerate the time or times when any particular stock option
held by said optionee may be so exercised so that such time or
times are earlier than those originally provided in said
option. In all cases exercise of a stock option shall be
subject to the provisions of Section 6B(ii) or 6C(iii), as the
case may be.
(iii) Payment
The entire option price may be paid at the time the
option is exercised. When an option is exercised prior to
termination of employment, the Committee shall have the
discretion to arrange for the payment of such price, in whole
or in part, in installments. In such cases, the Committee
shall obtain such evidence of the optionee's obligation,
establish such interest rate and require such security as it
may deem appropriate for the adequate protection of the
Company.
(iv) Non-Transferability of Option
An option by its terms shall not be transferable by
the optionee otherwise than by will or by the laws of descent
and distribution and shall be exercisable during the
optionee's lifetime only by the optionee.
(v) Adjustment in Event of Recapitalization of the Company
In the event of a reorganization, recapitalization,
stock split, stock dividend, combination of shares, merger,
consolidation, rights offering, or any other change in the
corporate structure or shares of the Company, the Board of
Directors shall make such adjustment as it may deem equitably
required in the number and kind of shares authorized
-2-
<PAGE> 4
by and for the Plan, in the number and kind of shares covered
by the options granted, and in the option price.
B. Non-Qualified Stock Options
The Committee may, in its discretion, grant options under the Plan
which, in whole or in part, do not qualify as incentive stock options under
Section 422 of the Internal Revenue Code. In addition to the terms and
conditions set forth in Section 6A above, the following terms and conditions
shall govern any option (or portion thereof) to the extent that it does not so
qualify.
(i) Form of Payment
Payment of the option price of any option (or portion
thereof) not qualifying as an incentive stock option shall be
made in cash or, in the discretion of the Committee, in the
common stock of the company valued at its fair market value
(as the same shall be determined by the Committee), or a
combination of such common stock and cash.
(ii) Rights after Termination of Employment
In the event of termination of employment due to any
cause including death, disability or retirement, rights to
exercise the stock option shall cease, except for those which
have accrued to the date of termination, unless the Committee
shall otherwise specify. These rights shall remain exercisable
for a period of three months, or such longer period (not to
exceed three years) as the Committee shall provide, following
termination for any cause other than death, disability or
retirement and for a period of three years following
termination due to death, disability or retirement, unless the
Committee otherwise specifies. The Committee may, in its
discretion, extend the period within which any particular
option may be exercised beyond the expiration date originally
provided in said option. However, no stock option shall, in
any event, be exercised after the termination of the full term
of the option.
(iii) Period of Option
The exercise period of each non-qualified stock
option shall be specified by the Committee at the time of the
grant.
C. Incentive Stock Options
The Committee may, in its discretion, grant options under the Plan
which qualify in whole or in part as incentive stock options under Section 422
of the Internal Revenue Code. In addition to the terms and conditions set forth
in Section 6A above, the following terms and conditions shall govern any option
(or portion thereof) to the extent that it so qualifies.
(i) Maximum Fair Market Value of Incentive Stock Options
The aggregate fair market value (determined as of the
time such option is granted) of the common stock for which any
optionee may have stock options vest in any calendar year
(under all incentive stock option plans of the Company and its
subsidiary corporations) shall not exceed $100,000.
-3-
<PAGE> 5
(ii) Form of Payment
Payment of the option price for incentive stock
options shall be made in cash or in the common stock of the
company valued at its fair market value (as the same shall be
determined by the Committee), or a combination of such common
stock and cash. Where payment of the option price is to be
made with common stock acquired under a company compensation
plan (within the meaning of paragraph 11(g) of Opinion No. 25
of the Accounting Principles Board), such common stock will
not be accepted as payment unless the optionee has
beneficially owned such common stock for at least six months
(increased to one year if such common stock was acquired under
an incentive stock option) prior to such payment.
(iii) Rights after Termination of Employment
In the event of termination of employment due to any
cause including death, disability or retirement, rights to
exercise the stock option shall cease, except for those which
have accrued to the date of termination, unless the Committee
shall otherwise specify. These rights shall remain exercisable
for a period of three months, or such longer period (not to
exceed three years) as the Committee shall provide, following
termination for any cause other than death, disability or
retirement, unless the Committee otherwise specifies. However,
no stock option shall, in any event, be exercised after the
expiration of 10 years from the date such option is granted,
or such earlier date as may be specified in the option.
(iv) Period of Option
The exercise period of each incentive stock option by
its terms shall not be more than 10 years from the date the
option is granted.
-4-
<PAGE> 1
EXHIBIT 5.1
OPINION OF SAYLES & LIDJI, P.C.
<PAGE> 2
June 15, 1999
AXCESS Inc.
3208 Commander Drive
Dallas, Texas 75006
Re: AXCESS Inc. - Registration Statement on Form S-8
Gentlemen:
We have acted as counsel to AXCESS Inc., a Delaware corporation (the
"Company"), in connection with the preparation of the Registration Statement on
Form S-8 (the "Registration Statement"), filed with the Securities and Exchange
Commission under the Securities Act of 1933, as amended (the "Securities Act"),
relating to 900,000 shares of the $0.01 par value common stock (the "Common
Stock") of the Company that are offered on the exercise of Incentive Stock
Options ("Options") granted or that may be granted under the AXCESS Inc. Stock
Option Plan (the "Plan"), as more fully described in the Registration Statement.
You have requested the opinion of this firm with respect to certain
legal aspects of the proposed offering. In connection therewith, we have
examined and relied upon the original, or copies certified to our satisfaction,
of (1) the Certificate of Incorporation, as amended, and the Bylaws of the
Company; (2) minutes and records of the corporate proceedings of the Company
with respect to the establishment of the Plan, the issuance of shares of Common
Stock pursuant to the Plan and related matters; and (3) the Registration
Statement and exhibits deemed necessary for the expression of opinions herein
contained. In making the foregoing 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 certified or photostatic copies. As to various questions of fact
material to this opinion and as to the content and form of the Certificate of
Incorporation, as amended, the Bylaws, minutes, records, resolutions and other
documents or writings of the Company, we have relied to the extent we deem
reasonably appropriate on representations or certificates of officers or
directors of the Company and upon documents, records and instruments furnished
to us by the Company without independently checking or verifying their accuracy.
Based upon our examination, consideration of, and reliance on the
documents and other matters described above, and subject to the comments and
exceptions noted below, we are of the opinion that the Company presently has
available at least 900,000 shares of authorized but unissued stock and/or
treasury shares from which the 900,000 shares of Common Stock proposed to be
sold pursuant to exercise of the Options granted under the Plan may be issued.
Assuming that the Company maintains an adequate number of authorized but
unissued shares and/or treasury shares available for issuance to those persons
who exercise Options granted under the Plan and assuming that the consideration
for shares of Common Stock issued pursuant to such Options is actually received
by the Company as provided in the Plan and exceeds the par value of such shares,
then the shares of Common Stock issued pursuant to the exercise of the Options
granted under and in accordance with the terms of the Plan will be duly and
validly issued, fully paid and nonassessable.
<PAGE> 3
AXCESS Inc.
June 15, 1999
Page 2
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to references to our firm included in or made a part
of the Registration Statement. In giving this consent, we do not admit that we
come within the category of persons whose consent is required under Section 7 of
the Securities Act of 1933 or the Rules and Regulations of the Securities and
Exchange Commission thereunder.
Sincerely,
SAYLES & LIDJI,
A Professional Corporation
By: /s/ Michael R. Dorey
-----------------------------------
Michael R. Dorey
<PAGE> 1
EXHIBIT 23.2
CONSENT OF KPMG LLP
<PAGE> 2
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
AXCESS Inc.
We consent to use of our report incorporated by reference herein.
Our report dated March 19, 1999, contains an explanatory paragraph that states
that the company's recurring losses from operations and resulting continued
dependence upon access to additional external financing 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.
/s/ KPMG LLP
Dallas, Texas
June 7, 1999
