As filed with the Securities and Exchange Commission on August 6, 1998
Registration Statement No. 333-_________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1993
INTELLICALL, INC.
(Exact name of issuer as specified in its charter)
Delaware 75-1993841
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2155 Chenault, Suite 410
Carrollton, Texas 75006-5023
(Address, including zip code, of issuer's principal executive offices)
--------------------------
1991 INTELLICALL, INC.
STOCK OPTION PLAN
(Full title of the plan)
------------------------
JOHN M. CARRADINE
Vice-President,
Chief Financial Officer
2155 Chenault, Suite 410
Carrollton, Texas 75006-5023
(Name and addresses of agent for service)
(972) 416-0022
(Telephone number, including area code, of agent for service)
-----------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===============================================================================================================================
Proposed Maximum Proposed Maximum
Title of Each Class of Amount to be Offering Price Aggregate Amount of
Securities to be Registered Registered (1) Per Share Offering Price Registration Fee
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Common Stock, par value 2,945,000 Not applicable $1,718,555 $507.00
$.01 per share .................
===============================================================================================================================
<FN>
(1) Estimated pursuant to Rules 457(c) and (h) solely for purposes of
computing the registration fee based upon the average of the high and
low sales prices per share for the Common Stock ($3.6565) reported on
the New York Stock Exchange on August 4, 1998. The registration fee is
based on registering an additional 470,000 shares of Common Stock
pursuant to this registration statement.
Pursuant to Rule 429, the prospectuses included or deemed to be included in this
Registration Statement also relate to the Registration Statement on Form S-8
(Commission Nos. 33-22235, 33-31387, 33-66230, 33-86592 and 333-60235)
previously filed by the registrant to effect the registration of an aggregate of
2,475,000 shares of its Common Stock, and such prospectuses are intended for use
in connection with the shares registered pursuant to such Registration
Statements.
</FN>
</TABLE>
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<PAGE>
EXPLANATORY NOTE
This Registration Statement includes or is deemed to include two forms
of prospectus: one to be sent or given to certain participants (the "Employee
Prospectus") in the 1991 Intellicall, Inc. Stock Option Plan , as amended (the
"Plan"), pursuant to Part I of Form S-8 and Rule 428(b)(1) under the Securities
Act of 1933, as amended (the "Securities Act"), and one to be used in connection
with reoffers and resales (the "Resale Prospectus") of shares of Common Stock,
par value $.01 per share ("Common Stock"), by participants in the Plan as
contemplated by Instruction C to Form S-8 under the Securities Act. The form of
Employee Prospectus has been omitted from this Registration Statement as
permitted by Part I of Form S-8. The form of Resale Prospectus will be filed by
amendment to this Form S-8 Registration Statement.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which the Company has filed with the
Securities and Exchange Commission (the "Commission") pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), are incorporated in this
Registration Statement by reference and shall be deemed to be a part hereof:
(1) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1997;
(2) The Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1998 ; and
(3) The description of the Common Stock contained in the
Company's Registration Statement on Form 8-A
dated July 15, 1987.
All documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date
of this Registration Statement and prior to the filing of a post-effective
amendment to this Registration Statement which indicates that all securities
offered hereby have been sold or which deregisters all securities then remaining
unsold shall be deemed to be incorporated in this Registration Statement by
reference and to be a part hereof from the date of filing of such documents.
Any statement contained in this Registration Statement, in an amendment
hereto or in a document 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, in any subsequently filed supplement to this
Registration Statement or in any document that also is incorporated by reference
herein, modifies or supersedes such statement. Any statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Certain legal matters in connection with the Common Stock offered
pursuant to the Plan are being passed upon for the Company by Kane, Russell,
Coleman & Logan, P.C., 3700 Thanksgiving Tower, 1601 Elm Street, Dallas, Texas
75201.
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<PAGE>
Item 6. Indemnification of Directors and Officers.
Delaware General Corporation Law
Section 145(a) of the General Corporation Law of the State of Delaware
(the "DGCL") 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 (other than an action by or in the right of the corporation) by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorney's fees),
judgments, fines and amounts paid in settlement actually and reasonable incurred
by him in connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful.
Section 145(b) of the DGCL 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 or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that he is
or was a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection with the defense or settlement of such action or
suit if he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the corporation and except that no
indemnification shall be made in respect to any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper.
Section 145(c) of the DGCL provides that to the extent that a director,
officer, employee or agent of a corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in
subsections (a) and (b) of Section 145, or in defense of any claim, issue or
matter therein, he shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection therewith.
Section 145(d) of the DGCL provides that any indemnification under
subsections (a) and (b) of Section 145 (unless ordered by a court) shall be made
by the corporation 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 he has met the applicable standard of conduct set
forth in subsections (a) and (b) of Section 145. Such determination shall be
made (1) by the board of directors by a majority vote of a quorum consisting of
directors who were not
II-2
<PAGE>
parties to such action, suit or proceeding, or (2) if such a quorum is not
obtainable, or, even if obtainable, if a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or (3) by the
stockholders.
Section 145(e) of the DGCL provides that expenses (including attorneys'
fees) incurred by an officer or director in defending any civil, criminal,
administrative or investigative action, suit or proceeding may be paid by the
corporation 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 he is not
entitled to be indemnified by the corporation as authorized in Section 145. 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.
Certificate of Incorporation
Article Tenth of the Company's Certificate of Incorporation, a copy of
which is filed as Exhibit 4.1 to this Registration Statement, provides that a
director of the Company shall not be personally liable to the Company or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to the
Company 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 DGCL or (iv) for any transaction in which the director
derived an improper personal benefit.
Article Tenth of the Company's Certificate of Incorporation further
provides that the Company shall indemnify to the full extent authorized or
permitted by law any person made, or threatened to be made, a party to any
action or proceeding (whether civil or criminal or otherwise) by reason of the
fact that he, his testator or intestate, is or was a director or officer of the
Company, or is or was serving any other corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, in any capacity.
Bylaws
Article I of the Company's Bylaws, a copy of which is filed as Exhibit
4.4 to this Registration Statement, provides that the Company shall indemnify to
the same extent as provided in its Certificate of Incorporation any person made,
or threatened to be made, a party to any action or proceeding (whether civil or
criminal or otherwise) by reason of the fact that he, his testator or intestate,
is or was a director or officer of the Company, or is or was serving any other
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise, in any capacity.
Indemnification Agreements
The Company has entered into Indemnification Agreements (the
"Indemnification Agreements") pursuant to which it has agreed to indemnify
certain of its directors and officers against judgments, claims, damages, losses
and expenses incurred as a result of the fact that any
II-3
<PAGE>
party thereto is, was or has agreed to become a director, officer, employee or
agent of the Company or is or was serving or has agreed to serve in any
capacity, at the request of the Company, in any other corporation, partnership,
joint venture, employee benefit plan, trust or other enterprise, to the fullest
extent permitted by applicable law and in accordance with the terms and
conditions set forth therein. The Indemnification Agreements also provide for
the advancement of certain expenses to the directors and officers party thereto
and authorize such directors and officers to commence litigation in a court of
competent jurisdiction to seek an initial determination as to whether
indemnification is proper or to challenge any action of the Board of Directors
of the Company denying them indemnification. The Indemnification Agreements also
provide that, in the event that the indemnification provided for thereunder is
for any reason unavailable, the Company shall contribute to the amount incurred
by the directors and officers party thereto in such proportion as is fair and
reasonable in light of all the circumstances.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Number Document Description
4.1 Certificate of Incorporation of Intellicall, Inc. (incorporated by
reference to Exhibit 3.1 to the Company's Registration
Statement on Form S-1 (Commission File No. 33-15723).
4.2 Amendment to Certificate of Incorporation of Intellicall, Inc.
(incorporated by reference to Exhibit 3.2 to the Company's Annual
Report on Form 10-K for the fiscal year ended December 31, 1993).
4.3 Amendment to Certificate of Incorporation of Intellicall, Inc.
(incorporated by reference to Exhibit 3.3 to the Company's Annual
Report on Form 10-K for the fiscal year ended December 31, 1995).
4.4 Bylaws of Intellicall, Inc. (incorporated by reference to Exhibit 3.2
to the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1991).
4.5 Form of Certificate evidencing Common Stock (incorporated by reference
to Exhibit 4.1 to the Company' s Registration Statement on Form S-1
(Commission File No. 33-15723).
4.6 1991 Intellicall, Inc. Stock Option Plan, as amended, filed herewith.
5.1 Opinion of Kane, Russell, Coleman & Logan, P.C., filed herewith.
24.1 Consent of Pricewaterhouse Coopers LLP, independent accountants, filed
herewith.
24.2 Consent of Kane, Russell, Coleman & Logan, P.C.
(included in Exhibit 5.1).
II-4
<PAGE>
25.1 Powers of Attorney (included on the signature page hereof).
Item 9. Undertakings.
(a) The Company hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this 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 this
Registration Statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information in this
Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the Company
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this 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.
(b) The Company 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 Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
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<PAGE>
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Company 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.
II-6
<PAGE>
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, thereunto duly
authorized, in the City of Dallas, State of Texas, on August 6, 1998.
INTELLICALL, INC.
By: /s/John J. McDonald, Jr.
--------------------------------
John J. McDonald, Jr., President
and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors
and officers of Intellicall, Inc., a Delaware corporation, which is filing a
Registration Statement on Form S-8 with the Securities and Exchange Commission
under the provisions of the Securities Act of 1933 hereby constitutes and
appoints John J. McDonald, Jr. and John M. Carradine and each of them, his true
and lawful attorneys-in-fact and agents, will have full power of substitution
and resubstitution, for him and in his name, place and stead, and in any and all
capacities, to sign such Registration Statement and any or all amendments
thereto and all other documents in connection therewith to be filed with the
Securities and Exchange Commission, it being understood that said
attorneys-in-fact and agents, and each of them, shall have 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 he
might or could do in person and that each of the undersigned hereby ratifies and
confirms all that said attorneys-in-fact as agents or any of them, or their
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 August 6, 1998.
Signature Signature
/s/ John J. McDonald, Jr. /s/ Lewis E. Brazelton III
------------------------------------ ----------------------------------
John J. McDonald, Jr., Lewis E. Brazelton III, Director
President and Director
/s/ John M. Carradine /s/ Richard B. Curran
-------------------------------------- ----------------------------------
John M. Carradine, Principal Financial Richard B. Curran, Director
Officer
/s/ Arthur Chavoya
-------------------------------------- ----------------------------------
B. Michael Adler, Director Arthur Chavoya, Director
/s/ Thomas J. Berthel /s/ William O. Hunt
-------------------------------------- ----------------------------------
Thomas J. Berthel, Director William O. Hunt
II-7
<PAGE>
EXHIBIT INDEX
4.1 Certificate of Incorporation of Intellicall, Inc.
(incorporated by reference to Exhibit 3.1 to the
Company's Registration Statement on Form S-1
(Commission File No. 33-15723).
4.2 Amendment to Certificate of Incorporation of
Intellicall, Inc. (incorporated by reference to Exhibit
3.2 to the Company's Annual Report on Form 10-K
for the fiscal year ended December 31, 1993).
4.3 Amendment to Certificate of Incorporation of
Intellicall, Inc. (incorporated by reference to
Exhibit 3.3 to the Company's Annual Report on Form
10-K for the fiscal year ended December 31, 1995).
4.4 Bylaws of Intellicall, Inc. (incorporated by reference
to Exhibit 3.2 to the Company's Annual Report on
Form 10-K for the fiscal year ended December 31,
1991).
4.5 Form of Certificate evidencing Common Stock
(incorporated by reference to Exhibit 4.1 to the
Company's Registration Statement on Form S-1
(Commission File No. 33-15723).
4.6 1991 Intellicall, Inc. Stock Option Plan, as amended,
filed herewith.
5.1 Opinion of Kane, Russell, Coleman & Logan, P.C.,
filed herewith.
24.1 Consent of Pricewaterhouse Coopers LLP, independent
accountants, filed herewith.
24.2 Consent of Kane, Russell, Coleman & Logan, P.C.
(included in Exhibit 5).
25.1 Powers of Attorney (included on the signature page
hereof).
EXHIBIT 4.6
AS AMENDED MAY 11, 1995
INTELLICALL, INC.
1991 STOCK OPTION PLAN
WHEREAS, the Company previously adopted the Intellicall, Inc. Incentive
Stock Option Plan, the Intellicall, Inc. Non-Qualified Stock Option Plan and the
Intellicall, Inc. Directors' Stock Option Plan (collectively, the "Plans"), and
WHEREAS, the Plans were previously approved by shareholders in accordance
with Rule 16b-3 promulgated under the Securities Exchange Act of 1934, and
WHEREAS, the Company wishes to administer the Plans as a single Plan in
compliance with Rule 16b-3;
NOW, THEREFORE, the Plans are restated in their entirety in a single
document and shall be known as the Intellicall, Inc. 1991 Stock Option Plan.
1. Purpose. The purpose of this Plan is to strengthen Intellicall, Inc. by
providing an incentive to its key employees and directors thereby encouraging
them to devote their abilities and industry to the success of the Company's
business enterprise. It is intended that this purpose be achieved by extending
to key employees and directors of the Company an added long-term incentive for
high levels of performance and unusual efforts through the grant of options to
purchase shares of the Company's common stock under the Intellicall, Inc. 1991
Stock Option Plan.
2. Definitions. For purposes of the Plan:
(a) "Agreement" means the written agreement between the Company and an
Optionee evidencing the grant of an Option and setting forth the terms and
conditions thereof.
(b) "Board" means the Board of Directors of the Company.
(c ) "Cause" means (i) intentional failure to perform reasonably assigned
duties, (ii) dishonesty or willful misconduct in the performance of an
Optionee's duties, (iii) any act of (A) fraud or intentional
misrepresentation, or (B) embezzlement, misappropriation or conversion of
assets or opportunities of the Company or (iv) willful violation of any
law, rule or regulation in connection with the performance of an Optionee's
duties (other than traffic violations or similar offenses).
(d) "Change in Capitalization" means any increase or reduction in the
number of Shares, or any change (including, but not limited to, a change in
value) in the Shares or exchange of Shares for a different number or kind
of shares or other securities of the Company, by reason of a
reclassification, recapitalization, merger, consolidation, reorganization,
stock dividend, stock split or reverse stock split, combination or exchange
of shares or other similar events.
<PAGE>
(e) A "Change in Control" shall be deemed to have occurred when the first
of the following events occurs:
(i) when the Company acquires actual knowledge that any person or
group (as such terms are used in Sections 13(d) and 14(d) (2) of
the Exchange Act), other than an employee benefit plan
established or maintained by the Company or any of its
subsidiaries or the current largest stockholder, is or becomes
the beneficial owner (as defined under Rule 13d-3 of the Exchange
Act) directly or indirectly, of securities of the Company
representing 30 percent or more of the combined voting power of
the Company's then outstanding securities entitled generally to
vote for the election of the Company's directors; (ii) upon the
approval by the Company's stockholders of (A) a merger or
consolidation of the Company with or into another Corporation
(other than a merger or consolidation in which the Company is the
surviving corporation and which does not result in any capital
reorganization or reclassification or other change in the
Company's then outstanding shares of common stock), (B) a sale or
disposition of all or substantially all of the Company's assets
of (C) a plan of liquidation or dissolution of the Company; or
(iii) if, at any time, two-thirds of the members of the Board are
not "Continuing Directors." For this purpose "Continuing
Directors" shall mean the members of the Board of Directors as of
May 1, 1991, and any individual who becomes a member of the Board
thereafter if his or her election or nomination for election as a
director was approved by a vote or at least two-thirds of the
Continuing Directors then in office.
(f) "Code" means the Internal Revenue Code of 1986, as amended.
(g) "Committee" means a committee consisting of at least two (2)
Disinterested Directors appointed by the Board to administer the Plan and
to perform the functions set forth herein.
(h) "Company" means Intellicall, Inc., a Delaware corporation.
(i) "Director Option" means an Option granted to a Nonemployee Director
pursuant to Section 5.
(j) "Disability" means a physical or mental infirmity which impairs the
Optionee's ability to perform substantially his or her duties for a period
of one hundred eighty (180) consecutive days.
(k) "Disinterested Director" means a director of the Company who is
"disinterested" within the meaning of Rule 16b-3 under the Exchange Act.
(l) "Eligible Employee" means any officer or other key employee of the
Company or a Subsidiary designated by the Committee as eligible to receive
Options subject to the conditions set forth herein.
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<PAGE>
(m) "Employee Options" means an Option granted to an Eligible Employee
pursuant to Section 6.
(n) "Exchange Act" means the Securities Exchange Act of 1934, as amended.
(o) "Fair Market Value" on any date means the closing price of the Shares
on such date on the principal national securities exchange on which such
Shares are listed or admitted to trading, or if such Shares are not so
listed or admitted to trading, the arithmetic mean of the per Share closing
bid price and per Share closing asked price on such date as quoted on the
National Association of Securities Dealers Automated Quotation System or
such then market in which such prices are regularly quoted, or, if there
have been no published bid or asked quotations with respect to Shares on
such date, the Fair Market Value shall be the value established by the
Board in good faith and in accordance with Section 422 of the Code.
(p) "Incentive Stock Option" means an Option satisfying the requirements of
Section 422 of the Code and designated by the Committee as an Incentive
Stock Option.
(q) "Nonqualified Stock Option" means an Option which is not an Incentive
Stock Option.
(r) "Nonemployee Director" means a director of the Company who is not an
employee of the Company or any Subsidiary.
(s) "Option" means an Employee Option, a Director Option, or either or both
of them.
(t) "Optionee" means a person to whom an Option has been granted under the
Plan.
(u) "Parent" means any corporation which is a parent corporation (within
the meaning of Section 424(e) of the Code) with respect to the Company.
(v) "Plan" means the Intellicall, Inc. 1991 Stock Option Plan.
(w) "Shares" means the common stock, par value $.01 per share, of the
Company.
(x) "Subsidiary" means any corporation which is a subsidiary corporation
(within the meaning of Section 424(f) of the Code) with respect to the
Company.
(y) "Successor Corporation" means a corporation, or a parent or subsidiary
thereof within the meaning of section 424(a) of the Code, which issues or
assumes a stock option in a transaction to which Section 424(a) of the Code
applies.
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<PAGE>
(z) "Ten-Percent Stockholder" means an Eligible Employee, who, at the time
an Incentive Stock Option is to be granted to him or her, owns (within the
meaning of Section 422(b) (6) of the Code) stock possessing more than ten
percent (10%) of the total combined voting power of all classes of stock of
the Company, or of a Parent or a Subsidiary.
3. Administration.
(a) The Plan shall be administered by the Committee which shall hold
meetings at such times as may be necessary for the proper administration of
the Plan. The Committee shall keep minutes of its meetings. A quorum shall
consist of not less than two members of the Committee and a majority of a
quorum may authorize any action. Any decision or determination reduced to
writing and signed by a majority of all of the members shall be as fully
effective as if made by a majority vote at a meeting duly called and held.
Each member of the Committee shall be a Disinterested Director. No member
of the Committee shall be liable for any action, failure to act,
determination or interpretation made in good faith with respect to this
Plan or any transaction hereunder, except for liability arising from his or
her own willful misfeasance, gross negligence or reckless disregard of his
or her duties. The Company hereby agrees to indemnify each member of the
Committee for all costs and expenses and, to the extent permitted by
applicable law, any liability incurred in connection with defending
against, responding to, negotiation for the settlement of or otherwise
dealing with any claim, cause of action or dispute of any kind arising in
connection with any actions in administering this Plan or in authorizing or
denying authorization to any transaction hereunder.
(b) Subject to the express terms and conditions set forth herein, the
Committee shall have the power from time to time to determine those
Eligible Employees to whom Employee Options shall be granted under the Plan
and the number of Incentive Stock Options and/or Nonqualified Stock Options
to be granted to each Eligible Employee and to prescribe the terms and
conditions (which need not be identical) of each Employee Option, including
the purchase price per Share subject to each Employee Option, and make any
amendment or modification to any Agreement consistent with the terms of the
Plan;
(c) Subject to the express terms and conditions set forth herein, the
Committee shall have the power from time to time:
(1) to construe and interpret the Plan and the Options granted
thereunder and to establish, amend and revoke rules and regulations
for the administration of the Plan, including, but not limited to,
correcting any defect or supplying any omission, or reconciling any
inconsistency in the Plan or in any Agreement, in the manner and to
the extent it shall deem necessary or advisable to make the Plan fully
effective, and all decisions and determinations by the Committee in
the exercise of this power shall be final, binding and conclusive upon
the Company, its Subsidiaries, the Optionees and all other persons
having any interest therein;
- 4 -
<PAGE>
(2) to determine the duration and purposes for leaves of absence
which may be granted to an Optionee on an individual basis without
constituting a termination of employment or service for purposes of
the Plan;
(3) to exercise its discretion with respect to the powers and
rights granted to it as set forth in the Plan;
(4) generally, to exercise such powers and to perform such acts
as are deemed necessary or advisable to promote the best interests of
the Company with respect to the Plan.
4. Stock Subject to Program.
(a) The maximum number of Shares that may be made the subject of Options
granted under the Plan is as follows: 1,525,000 Shares (1,995,000 per
proposed amendment) with respect to Incentive Stock Options; 600,000 Shares
with respect to Nonqualified Stock Options; and 350,000 Shares with respect
to Director Options (or, in each case, the number and kind of shares of
stock or other securities to which such Shares are adjusted upon a Change
in Capitalization pursuant to Section 8) and the Company shall reserve for
the purposes of the Plan, out of its authorized but unissued Shares or out
of Shares held in the Company's treasury, or partly out of each, such
number of Shares as shall be determined by the Board.
(b) Whenever any outstanding Option or portion thereof expires, is
cancelled or is otherwise terminated for any reason (other than upon the
surrender of the Option pursuant to Section 7(e) hereof), the Shares
allocable to the cancelled or otherwise terminated Option or portion
thereof may again be the subject of Options granted hereunder.
5. Options Grants for Nonemployee Directors.
(a) Grant. Each Nonemployee Director as of February 1, 1993 who has not
previously been granted any Director Options or who has surrendered for
cancellation all Director Options previously granted to him shall receive a
grant of Director Options in respect of (i) 20,000 Shares on February 1,
1993 and (ii) 10,000 Shares on February 1, 1994. Thereafter, each person
who first becomes a Nonemployee Director subsequent to February 1, 1993
shall receive a grant of Director Options in respect of (i) 20,000 Shares
on the first business day of February subsequent to the date such
Nonemployee Director first becomes a Nonemployee Director (the "Election
Date") and (ii) 10,000 Shares on the first business day of February of the
year next succeeding the Election Date. The purchase price therefor of each
Director Option shall be as provided in this Section 5 and such Director
Options shall be exercisable, in whole or in part, in four equal
installments as follows: (i) with respect to the first installment,
immediately upon execution and delivery of the Director Option (the
"Grant"), (ii) with respect to the second installment, on December 31, of
the year of the Grant, (iii) with respect to the third installment, on
December 31 of the year next succeeding the year of the Grant, and (iv)
with respect to the last installment, on December 31 of the year two years
after the date of the Grant. Such Director
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<PAGE>
Options shall be evidenced by an Agreement containing such other terms and
conditions not inconsistent with the provisions of this Plan as determined
by the Board.
(b) Purchase Price. The purchase price for Shares under each Director
Option shall be at least equal to 100% of the Fair Market Value of a Share
on the date the Director Option is granted.
(c) Duration. Director Options shall be for a term of ten (10) years.
(d) Amendment. The provisions in this Section 5 shall not be amended more
than once every six months, other than to comport with changes in the Code
or the rules and regulations thereunder.
6. Option Grants for Eligible Employees.
(a) Grant. Subject to the provisions of the Plan and to Section 4 (a)
above, the Committee shall have full and final authority to select those
Eligible Employees who will receive Employee Options, the terms and
conditions of which shall be set forth in an Agreement; provided, however,
that no Eligible Employee shall receive any Incentive Stock Options unless
he is an employee of the Company, a Parent or a Subsidiary at the time the
Incentive Stock Option is granted.
(b) Purchase Price. The purchase price or the manner in which the purchase
price is to be determined for Shares under each Employee Option shall be
determined by the Committee and set forth in the Agreement, provided that
the purchase price per Share under each Employee Option shall not be less
than 100% of the Fair Market Value of a Share on the date the Employee
Option is granted (110% in the case of an Incentive Stock Option granted to
a Ten-Percent Stockholder).
(c) Duration. Employee Options granted hereunder shall be for such term as
the Committee shall determine, provided that no Employee Option shall be
exercisable after the expiration of ten (10) years from the date it is
granted (five (5) years in the case of an Incentive Stock Option granted to
a Ten-Percent Stockholder). The Committee may, subsequent to the granting
of any Employee Option, extend the term thereof but in no event shall the
term as so extended exceed the maximum term provided for in the preceding
sentence.
(d) Modification or Substitution. The Committee may, in its discretion,
modify outstanding Employee Options or accept the surrender or outstanding
Employee Options (to the extent not exercised) and grant new Options in
substitution for them. Notwithstanding the foregoing, no modification of an
Employee Option shall adversely alter or impair any rights or obligations
under the Employee Option without the Optionee's consent.
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<PAGE>
7. Terms and Conditions Applicable to All Options
(a) Non-transferability. No Option granted hereunder shall be transferable
by the Optionee to whom granted otherwise than by will or the laws of
descent and distribution, and an Option may be exercised during the
lifetime of such Optionee only by the Optionee or his or her guardian or
legal representative. The terms of such Option shall be final, binding and
conclusive upon the beneficiaries, executors, administrators, heirs and
successors of the Optionee.
(b) Vesting and Method of Exercise.
(1) Subject to Section 7(e) hereof, each Option shall become
exercisable in the manner, including installments (which need not be
equal), and at such times as may be designated by the Committee and
set forth in the Agreement. To the extent not exercised, installment
shall accumulate and be exercisable, in whole or in part, at any time
after becoming exercisable, but not later than the date the Option
expires; provided, however, that the Agreement may provide for the
forfeiture of vested and non-vested Options upon the occurrence of
specified events. The Committee may accelerate the exercisability of
any Option or portion thereof at any time.
(2) The exercise of an Option shall be made only by a written
notice delivered in person or by mail to the Secretary of the Company
at the Company's principal executive office, specifying the number of
Shares to be purchased and accompanied by payment therefor and
otherwise in accordance with the Agreement pursuant to which the
Option was granted. The purchase price for any Shares purchased
pursuant to the exercise of an Option shall be paid in full upon such
exercise, by any one or a combination of the following: (i) cash or
(ii) transferring Shares to the Company upon such terms and conditions
as determined by the Committee. The written notice pursuant to this
Section 7(b)(2) may also provide instructions from the Optionee to the
Company that upon receipt of the purchase price in cash from the
Optionee's broker or dealer, designated as such on the written notice,
in payment for any Shares purchased pursuant to the exercise of an
Option, the Company shall issue such Shares directly to the designated
broker or dealer. Any Shares transferred to the Company as payment of
the purchase price under an Option shall be valued at their Fair
Market Value on the day preceding the date of exercise of such Option.
If requested by the Committee, the Optionee shall deliver the
Agreement evidencing the Option to the Secretary of the Company who
shall endorse thereon a notation of such exercise and return such
Agreement to the Optionee. No fractional Shares (or cash in lieu
thereof) shall be issued upon exercise of an Option and the number of
Shares that may be purchased upon exercise shall be rounded to the
nearest number of whole Shares.
(c) Rights of Optionees. No Optionee shall be deemed for any purpose to be
the owner of any Shares subject to any Option unless and until (i) the
Option shall have been exercised pursuant to the terms thereof, (ii) the
Company shall have issued and delivered the Shares to the Optionee and
(iii) the Optionee's name shall have been entered as a stockholder of
record on the books of the Company. Thereupon, the Optionee shall have full
voting, dividend and other ownership rights with respect to such Shares.
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<PAGE>
(d) Termination of Employment or Service. Unless otherwise provided in the
Agreement evidencing the Option, an Option shall terminate upon or
following an Optionee's termination of employment with the Company and its
Subsidiaries or service as a director of the Company and its Subsidiaries
as follows:
(1) if an Optionee's employment or service as a director
terminates for any reason other than death, Disability or Cause, the
Optionee may at any time within three (3) months after his or her
termination of employment or service as a director, exercise an Option
to the extent, and only to the extent, that the Option or portion
thereof was exercisable on the date of termination;
(2) in the event the Optionee's employment or service as a
director terminates as a result of Disability, the optionee may at any
time within one (1) year after such termination exercise such Option
to the extent, and only to the extent, the Option or portion thereof
was exercisable at the date of such termination;
(3) if an Optionee's employment or service as a director
terminates for Cause, the Option shall terminate immediately and no
rights thereunder may be exercised;
(4) if an Optionee dies while a director or an employee of the
Company or any Subsidiary or within three months after termination as
described in clause (1) of this Section 7(d) or within one (1) year
after termination as a result of Disability as described in clause (2)
of this Section 7(d), the Option may be exercised at any time within
one (1) year after the Optionee's death by the person or persons to
whom such rights under the Option shall pass by will or by the laws of
descent and distribution; provided, however, that an Option may be
exercised to the extent, and only to the extent, that the Option or
portion thereof was exercisable on the date of death or earlier
termination.
Notwithstanding the foregoing, (i) in no event may any Option be exercised
by anyone after the expiration of the term of the Option and (ii) a
termination of service as a director shall not be deemed to occur so long
as the director continues to serve the Company as either a director or
director emeritus.
(e) Effect of Change in Control.
Notwithstanding anything contained in the Plan or an Agreement to the
contrary, in the event of a Change in Control, all Options outstanding on
the date of such Change in Control shall become immediately and fully
exercisable.
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<PAGE>
8. Adjustment Upon Changes in Capitalization.
(a) Subject to Section 9, in the event of a Change in Capitalization, the
maximum number and class of Shares or other stock or securities with
respect to which Options may be granted under the Plan, the number and
class of Shares or other stock or securities which are subject to
outstanding Options granted under the Plan, and the purchase price
therefor, if applicable shall be appropriately and equitable adjusted.
(b) Any such adjustment in the Shares or other stock or securities subject
to outstanding Incentive Stock Options (including any adjustments in the
purchase price) shall be made in such manner as not to constitute a
modification as defined by Section 424(h) (3) of the Code and only to the
extent otherwise permitted by Sections 422 and 424 of the Code.
(c) If, by reason of a change in Capitalization, an Optionee shall be
entitled to exercise an Option with respect to new, additional or different
shares of stock or securities, such new, additional or different shares
shall thereupon be subject to all of the conditions which were applicable
to the Shares subject to the Option, as the case may be, prior to such
Change in Capitalization.
9. Effect of Certain Transactions.
Subject to Section 7(e), in the event of (i) the liquidation or dissolution
of the Company or (ii) a merger or consolidation of the Company (a
"Transaction "), the Plan and the Options issued hereunder shall continue
in effect in accordance with their respective terms and each Optionee shall
be entitled to receive in respect of each Share subject to any outstanding
Options, as the case may be, upon exercise of any Option, the same number
and kind of stock, securities, cash, property, or other consideration that
each holder of a Share was entitled to receive in the Transaction in
respect of a Share. In the event that, after a Transaction, there occurs
any change of a type described in Section 2(d) hereof with respect to the
shares of the surviving or resulting corporation, then adjustments similar
to, and subject to the same conditions as, those in Section 8 hereof shall
be made by the Committee.
10. Termination and Amendment of the Plan.
(a) The Plan shall terminate on the day preceding the tenth anniversary of
the date of its adoption by the Board and no Option may be granted
thereafter. The Board may sooner terminate or amend the Plan at any time
and from time to time; provided, however, that to the extent necessary
under Section 16(b) of the Exchange Act and the rules and regulations
promulgated thereunder or other applicable law, no amendment shall be
effective unless approved by the stockholders of the Company in accordance
with applicable law and regulations at an annual or special meeting held
within twelve (12) months after the date of adoption of such amendment.
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<PAGE>
(b) Except as provided in Sections 8 and 9 hereof, rights and obligations
under any Option granted before any amendment or termination of the Plan
shall not be adversely altered or impaired by such amendment or
termination, except with the consent of the Optionee, nor shall any
amendment or termination deprive any Optionee of any Shares which he may
have acquired through or as a result of the Plan.
11. Non-Exclusivity of the Plan. The Adoption of the Plan by the Board
shall not be construed as amending, modifying or rescinding any previously
approved incentive arrangement or as creating any limitations on the power of
the Board to adopt such other incentive arrangements as it may deem desirable,
including, without limitation, the granting of stock options otherwise than
under the Plan, and such arrangements may be either applicable generally or only
in specific cases.
12. Limitation of Liability. As illustrative of the limitations of
liability of the Company, but not intended to be exhaustive thereof, nothing in
the Plan shall be construed to:
(a) give any person any right to be granted an Option other than at the
sole discretion of the Committee;
(b) give any person any rights whatsoever with respect to Shares except as
specifically provided in the Plan;
(c) limit in any way the right of the Company to terminate the employment
of any person at any time; or
(d) be evidence of any agreement or understanding, expressed or implied,
that the Company will employ any person at any particular rate of
compensation or for any particular period of time.
13. Regulations and Other Approvals; Governing Law.
(a) This Plan and the rights of all persons claiming hereunder shall be
construed and determined in accordance with the laws of the State of Texas.
(b) The obligation of the Company to sell or deliver Shares with respect to
Options granted under the Plan shall be subject to all applicable laws,
rules and regulations, including all applicable federal and state
securities laws, and the obtaining of all such approvals by governmental
agencies as may be deemed necessary or appropriate by the Committee.
(c) The Plan is intended to comply with Rule 16b-3 promulgated under the
Exchange Act and the Committee shall interpret and administer the
provisions of the Plan or any Agreement in a manner consistent therewith.
Any provisions inconsistent with such Rule shall be inoperative and shall
not affect the validity of the Plan.
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<PAGE>
(d) The Board may make such changes as may be necessary or appropriate to
comply with the rules and regulations of any government authority, or to
obtain for Eligible Employees granted Incentive Stock Options the tax
benefits under the applicable provisions of the Code and regulations
promulgated thereunder.
(e) Each Option is subject to the requirement that, if at any time the
Committee determines, in its discretion, that the listing, registration or
qualification of Shares issuable pursuant to the Plan is required by any
securities exchange or under any state or federal law, or the consent or
approval of any governmental regulatory body is necessary or desirable as a
condition of, or in connection with, the grant of an Option or the issuance
of Shares, no Options shall be granted or payment made or Shares issued, in
whole or in part, unless listing, registration, qualification, consent or
approval has been effected or obtained free of any conditions as acceptable
to the Committee.
(f) Notwithstanding anything contained in the Plan to the contrary, in the
event that the disposition of Shares acquired pursuant to the Plan is not
covered by a then current registration statement under the Securities Act
of 1933, as amended, and is not otherwise exempt from such registration,
such Shares shall be restricted against transfer to the extent required by
the Securities Act of 1933, as amended, and rule 144 or other regulations
thereunder. The Committee may require any individual receiving Shares
pursuant to the Plan, as a condition precedent to receipt of such Shares
upon exercise of an Option, to represent and warrant to the Company in
writing that the Shares acquired by such individual are acquired without a
view to any distribution thereof and will not be sold or transferred other
than pursuant to an effective registration thereof under said Act or
pursuant to an exemption applicable under the Securities Act of 1933, as
amended, or the rules and regulations promulgated thereunder. The
certificates evidencing any of such Shares shall be appropriately amended
to reflect their status as restricted securities as aforesaid.
14. Miscellaneous.
(a) Multiple Agreements. The terms of each Option may differ from other
Options granted under the Plan at the same time, or at some other time. The
Committee may also grant more than one Option to a given Eligible Employee
during the term of the Plan, either in addition to, or in substitution for,
one or more Options previously granted to that Eligible Employee.
(b) Withholding of Taxes.
(1) The Company shall have the right to deduct from any
distribution of cash to any Optionee, an amount equal to the federal,
state and local income taxes and other amounts as may be required by
law to be withheld (the "Withholding Taxes") with respect to any
Option. If an Optionee is entitled to receive Shares upon exercise of
an Option, the Optionee shall pay the Withholding Taxes to the Company
prior to the issuance, or release from escrow, of such Shares. In
satisfaction of the Withholding Taxes to the company, the Optionee may
make a written election (the "Tax Election"), which may be accepted or
rejected in the discretion
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<PAGE>
of the Committee, to have withheld a portion of the Shares
issuable to him or her upon exercise of the Option having an aggregate
Fair Market Value, on the date preceding the date of exercise, equal
to the Withholding Taxes, provided that in respect of an Optionee who
may be subject to liability under Section 16(b) of the Exchange Act
either (i) (A) the Optionee makes the Tax Election at least six (6)
months after the date the Option was granted, (B) the Option is
exercised during the ten day period beginning on the third business
day and ending on the twelfth business day following the release for
publication of the Company's quarterly or annual statements of
earnings (a "Window Period") and (C) the Tax Election is made during
the window Period in which the Option is exercised or prior to such
Window Period and subsequent to the immediately preceding Window
Period or (ii) (A) the Tax Election is made at least six (6) months
prior to the date the Option is exercised and (B) the Tax Election is
irrevocable with respect to the exercise of all Options which are
exercised prior to the expiration of six (6) months following an
election to revoke the Tax Election. Notwithstanding the foregoing,
the Committee may, by the adoption of rules or otherwise, (i) modify
the provisions in the preceding sentence or impose such other
restrictions or limitations on Tax Elections as may be necessary to
ensure that the Tax Elections will be exempt transactions under
Section 16(b) of the Exchange Act, and (ii) permit Tax Elections to be
made at such other times and subject to such other conditions as the
Committee determines will constitute exempt transactions under Section
16b of the Exchange Act.
(2) If an Optionee makes a disposition, within the meaning of
Section 424(c) of the Code and regulations promulgated thereunder, of
any Share or Shares issued to such Optionee pursuant to the exercise
of an Incentive Stock Option within the two-year period commencing on
the day after the date of the grant or within the one-year period
commencing on the day after the date of transfer of such Share or
Shares to the Optionee pursuant to such exercise, the Optionee shall,
within ten (10) days of such disposition, notify the Company thereof,
by delivery of written notice to the Company at its principal
executive office, and immediately deliver to the Company the amount of
Withholding Taxes.
15. Effective Date. The effective date of the Plan shall be the date of its
adoption by the Board.
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EXHIBIT 5.1
August 5, 1998
Intellicall, Inc.
2155 Chenault, Suite 410
Carrollton, Texas 75006-5023
Gentlemen:
This letter is written in connection with the offering of up to
2,945,000 shares (the "Shares") of the Common Stock, par value $.01 per share,
of the Company pursuant to the 1991 Intellicall, Inc. Stock Option Plan, as
amended (the "Stock Option Plan") as set forth in the Registration Statement on
Form S-8 ( the "Registration Statement") to be filed by Intellicall Inc., a
Delaware corporation (the "Company"), under the Securities Act of 1933, as
amended (the "Act"). We consent to the filing of this opinion as Exhibit 5.1 to
the Registration Statement.
The Stock Option Plan provides for the grant to certain directors and
key employees of the Company and its subsidiaries of (I) nonqualified stock
options ("Nonqualified Options"), (ii) incentive stock options ("Incentive
Options") within the meaning of Section 422 of the Internal Revenue Code of
1986, as amended, and (iii) director stock options ("Director Options"). As used
herein, the term "Options" shall mean Nonqualified Options, Incentive Options,
and Director Options, and the term "Option Shares" shall mean the Shares
issuable upon the exercise of Options.
In connection with delivering this opinion, we have reviewed the
Company's Certificate of Incorporation, as amended, and the Amended and Restated
Bylaws and have examined the originals, or copies certified or otherwise
identified, of corporate records of the Company, certificates of public
officials and of representatives of the Company, statutes and other records,
instruments and documents deemed necessary by us as a basis for the opinions
hereinafter expressed.
Based upon the foregoing and subject to the limitations and
qualifications set forth herein, we are of the opinion that:
1. The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the state of Delaware.
2. When the Organization and Compensation Committee of the
Board of Directors of the Company (the "Compensation Committee") shall have
granted Options pursuant to the Stock Option Plan and shall have fixed the
exercise price therefor, or the dates specified in Section 5(a) of the Stock
Option Plan shall have elapsed, all requisite corporate action on the part of
the Company with respect to the authorization of the issuance of the Option
Shares subject to such Options will have been taken. Upon the issuance and
delivery of such Option Shares upon the exercise of Options
<PAGE>
in accordance with the Stock Option Plan and for the consideration fixed by the
Compensation Committee, such Option Shares will be validly issued, fully paid
and nonassessable.
The opinions set forth above are limited to the General Corporation Law
of the State of Delaware, and no opinion is expressed herein as to matters
governed by any other Law.
This opinion is rendered solely to the Company in connection with the
foregoing matters. This opinion may no be relied upon by the Company for any
other purpose or relied upon by or furnished to any other person without our
prior written consent.
Very truly yours,
KANE, RUSSELL, COLEMAN & LOGAN, P.C.
By: /s/ Patrick V. Stark
__________________________
Patrick V. Stark, Vice President
EXHIBIT 24.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 (Nos. 33-60235 and 33-64583) of our report dated March 20,
1998 appearing on page F-2 of Intellicall, Inc.'s Annual Report on Form 10-K for
the year ended December 31, 1997.
/s/ PricewaterhouseCoopers LLP
PRICEWATERHOUSECOOPERS LLP
Dallas, Texas
August 5, 1998
