<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
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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AXCESS INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
DELAWARE 3690 85-0294536
(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. DIRECTOR COMPENSATION PLAN
(Full title of the plan)
-----------
<TABLE>
<S> <C>
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, AND TELEPHONE DALLAS, TEXAS 75270
NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE) (214) 939-8700
</TABLE>
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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 150,000 $2.56 (1) $384,000 $107
========================================================================================================================
</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
directors 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 of the Company, as
amended, 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. Director Compensation 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
- ------------------------------------ (Principal Financial and Accounting Officer)
Danny G. Hair
/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. Director Compensation 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.
DIRECTOR COMPENSATION PLAN
<PAGE> 2
AXCESS INC.
DIRECTOR COMPENSATION PLAN
1. PURPOSE. The purpose of the Director Compensation Plan (the "Plan")
of AXCESS Inc., a Delaware corporation ("AXCESS"), is to (a) provide an
incentive to directors of AXCESS who are not also employees or significant
stockholders of AXCESS ("Directors") to concentrate their efforts in a manner
that will provide for the long-term growth and profitability of AXCESS; (b)
encourage stock ownership by Directors in order to promote an identity of
interests with AXCESS stockholders; and (c) provide a means of attracting and
retaining qualified Directors.
2. EFFECTIVE DATE AND TERM OF PLAN. The Plan shall become effective on
such date as it is approved by the stockholders of AXCESS and shall remain in
effect until terminated by the Board of Directors of AXCESS (the "Board").
3. STOCK OPTIONS SUBJECT TO THE PLAN. Nonstatutory options may be
granted to eligible directors under the Plan for the purchase of an aggregate of
up to 150,000 shares of Common Stock, $.01 par value per share ("Common Stock"),
subject to adjustment as provided in Section 8 hereof. Shares issued upon the
exercise of options may be, in whole or in part, authorized but unissued shares,
whether now or hereafter authorized, or issued shares that have been reacquired
by AXCESS.
4. PLAN ADMINISTRATION. The Plan shall be administered by the Stock
Option Committee (the "Committee") of the Board of Directors. The Committee
shall have full and final authority to interpret the Plan, adopt, amend and
rescind rules and regulations relating to the Plan, and make all other
determinations and take all other actions necessary and advisable for the
administration of the Plan. Decisions and determinations of the Committee on all
matters relating to the Plan shall be in its sole discretion and shall be
conclusive. The Plan shall be interpreted in view of the intention to qualify as
an exempt transaction under Rule 16b-3 under the Securities Exchange Act of
1934, as amended (the "Exchange Act").
5. ELIGIBILITY. Any member of the Board of Directors who is not an
employee of AXCESS or a subsidiary of AXCESS and who does not beneficially own
(as defined by Rule 13d-3 of the Exchange Act) 5% of the outstanding Common
Stock of the Company may participate in the plan.
6. CHANGES IN CAPITALIZATION. If the outstanding shares of Common Stock
are increased, decreased or exchanged for a different number or kind of shares
or other securities, or if additional shares or other property (other than
ordinary dividends) are distributed with respect to such shares of Common Stock
or other securities, through merger, consolidation, sale of all or substantially
all of the assets of AXCESS, reorganization, recapitalization, reclassification,
dividend, stock split, spin-off, split-off or other distribution with respect to
such shares of Common Stock, or other securities, an appropriate and
proportionate adjustment may be made in the maximum number and kind of shares
reserved for issuance under the Plan.
7. NO RIGHT TO CONTINUE AS A DIRECTOR. Neither the Plan nor any action
taken pursuant to the Plan, shall constitute evidence of any agreement or
understanding, express or implied, that AXCESS will retain a participant as a
Director for any period of time, or at any particular rate of compensation.
8. AMENDMENT, MODIFICATION, AND TERMINATION. The Board at any time may
terminate and in any respect amend or modify the Plan; provided, however, that
the Board of Directors shall condition any amendments on the approval of
stockholders, if such approval is necessary or advisable with respect to
securities, tax or other applicable law. No amendment, modification, or
termination of the Plan shall in any manner adversely affect the rights of any
participant with respect to shares of Common Stock to which he
<PAGE> 3
or she became entitled prior to such amendment, modification or termination or
with respect to amounts that have been credited to a deferred compensation
account.
9. STOCKHOLDER APPROVAL. The Plan shall be submitted to the
stockholders of AXCESS for their approval at the 1998 Annual Meeting of
Stockholders. If such approval is not obtained, no shares of Common Stock will
be issued to Directors through the Plan.
10. RESTRICTIONS ON DELIVERY AND SALE OF SHARES; LEGENDS. Each share of
Common Stock issued upon the exercise of an option under the Plan is subject to
the condition that if at any time the Committee, in its discretion, shall
determine that the listing, registration or qualification of such shares upon
any securities exchange or under any state or federal law is necessary or
desirable as a condition of or in connection with the delivery of shares
thereunder, the delivery of any or all shares may be withheld unless and until
such listing, registration or qualification shall have been effected. If a
registration statement is not in effect under the Securities Act of 1933, as
amended (the "1933 Act"), or any applicable state securities laws with respect
to the shares of Common Stock deliverable upon the exercise of options
hereunder, the Director shall represent in writing, as a condition to any
delivery of Common Stock hereunder, that the shares received are being acquired
for investment and not with a view to distribution and agree that the shares
will not be disposed of except pursuant to an effective registration statement,
unless AXCESS shall have received an opinion of counsel that such disposition is
exempt from such registration under the 1993 Act and any applicable state
securities laws. AXCESS shall include on certificates representing shares
delivered upon the exercise of options issued pursuant to the Plan such legends
referring to the foregoing representations or restrictions and any other
applicable restrictions on resale as the Committee, in its discretion, shall
deem appropriate. In addition, unless waived by the Committee, each Director, as
a condition of receipt of Common Stock upon the exercise of an option shall
agree that such Common Stock shall not be sold for two years following its
issuance unless consented to in writing by the Committee.
<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 an aggregate of 150,000 shares of the $0.01 par value common stock
(the "Common Stock") of the Company that are offered on the exercise of
nonstatutory options (the "Options") granted or that may be granted under the
AXCESS Inc. Director Compensation 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 150,000 shares of authorized but unissued stock and/or
treasury shares from which the 150,000 shares of Common Stock proposed to be
sold pursuant to the 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 the 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
