<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 16, 2000
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------
INTELLICALL, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 75-1993841
(State or other jurisdiction (I.R.S. Employer
incorporation or organization) Identification Number)
2155 CHENAULT, SUITE 410
CARROLLTON, TEXAS 75006-5023
(972) 416-0022
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
--------------------
JOHN J. MCDONALD, JR.
CHIEF EXECUTIVE OFFICER
INTELLICALL, INC.
2155 CHENAULT, SUITE 410
CARROLLTON, TEXAS 75006-5023
(972) 416-0022
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
--------------------
Copies to:
PATRICK V. STARK CHARLES S. GILBERT
KANE, RUSSELL, COLEMAN JACKSON WALKER L.L.P.
& LOGAN, P.C. 901 MAIN STREET
3700 THANKSGIVING TOWER SUITE 6000
1601 ELM STREET DALLAS, TEXAS 75201
DALLAS, TEXAS 75201 (214) 953-6000
(214) 777-4200
-------------------- --------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From
time to time after the effective date of this Registration Statement as
determined in light of market conditions and other factors.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box.[ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box: [x]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
CALCULATION OF THE REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================
Proposed Maximum Proposed Maximum
Title of each class of Amount to be Offering Price Aggregate Amount of
securities to be registered registered per Share(1) Offering Price registration fee
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $.01 per
share............................... 2,690,323 $1.21875 $3,278,831.16 $865.61
====================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(c), using the average of the high and low sales
prices reported on the American Stock Exchange for the Registrant's common
stock on February 11, 2000.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
================================================================================
<PAGE> 2
Information in this prospectus is not complete and may be changed. We may not
sell these securities until the registration statement filed with the Securities
and Exchange Commission is effective. This prospectus is not an offer to sell
these securities and it is not soliciting an offer to buy these securities in
any state where the offer or sale is not permitted.
PROSPECTUS
SUBJECT TO COMPLETION, DATED FEBRUARY 16, 2000
2,690,323 SHARES OF COMMON STOCK
INTELLICALL, INC.
-----------------------------------
Banca del Gottardo may offer and sell up to 2,690,323 shares of our
common stock under this prospectus. Banca del Gottardo acquired 1,000,000 of
such shares directly from the Company and may acquire 400,000 of such shares of
common stock upon its exercise of warrants to purchase our common stock and may
acquire 1,290,323 of such shares of our common stock upon the conversion of
notes. Banca del Gottardo may offer and sell the common stock from time to time
in one or more transactions, including block transactions, on the American Stock
Exchange, or such other markets or exchanges on which the common stock is from
time to time eligible for trading or quoting, at prevailing market prices or at
privately negotiated prices. See "Selling Stockholder" beginning on page 6 for
additional information regarding the shares that may be offered under this
prospectus.
We will not receive any proceeds from any sales of common stock by
Banca del Gottardo. We will receive $510,000 if the warrants are fully
exercised.
Our common stock is listed on the American Stock Exchange. On February
15, 2000, the last reported sale price of the common stock on the American
Stock Exchange was $1 3/16 per share.
-----------------------------------
SEE "RISK FACTORS" BEGINNING ON PAGE 4 OF THIS PROSPECTUS FOR A
DISCUSSION OF CERTAIN FACTORS THAT YOU SHOULD CONSIDER BEFORE YOU INVEST IN OUR
COMMON STOCK.
-----------------------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. IT IS ILLEGAL FOR ANY PERSON TO TELL YOU
OTHERWISE.
The date of this prospectus is ______________, 2000
<PAGE> 3
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED IN THIS DOCUMENT OR
THAT WE HAVE REFERRED YOU TO. WE HAVE NOT AUTHORIZED ANYONE TO PROVIDE YOU WITH
INFORMATION THAT IS DIFFERENT. THIS PROSPECTUS IS AN OFFER TO SELL OR TO BUY
ONLY THE SHARES OFFERED HEREBY, BUT ONLY UNDER CIRCUMSTANCES AND IN
JURISDICTIONS WHERE IT IS LAWFUL TO DO SO. THE INFORMATION CONTAINED IN THIS
PROSPECTUS IS CURRENT ONLY AS OF ITS DATE.
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Where You Can Find More Information ........................................ 3
Incorporation of Certain Documents by Reference ............................ 3
Disclosure Regarding Forward-Looking Statements ............................ 4
Recent Developments......................................................... 4
Risk Factors ............................................................... 4
Selling Stockholder ........................................................ 6
Use of Proceeds ............................................................ 7
Plan of Distribution ....................................................... 7
</TABLE>
2
<PAGE> 4
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the Securities and Exchange Commission pursuant to the
Securities Exchange Act of 1934. The registration statement of which this
prospectus is a part and those reports, proxy statements and other information
can be inspected and copied at the public reference facilities maintained by the
Commission at Room 1024, 450 Fifth Street, NW, Washington, D.C. 20549, and at
the Commission's regional offices at Seven World Trade Center, 13th Floor, New
York, New York 10048 and Northwestern Atrium Center, 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661. Copies of the materials may also be
obtained from the Public Reference Section of the Commission at Room 1024,
Judiciary Plaza, 450 Fifth Street, NW, Washington, D.C. 20549 at prescribed
rates.
We have filed with the Commission a registration statement on Form S-3
under the Securities Act of 1933 with respect to the common stock offered under
this prospectus. This prospectus, which constitutes a part of the registration
statement, does not contain all of the information set forth in the registration
statement and the attached exhibits and schedules. Statements contained in this
prospectus as to the contents of any documents filed as exhibits to the
registration statement are summaries of the material provisions of the
documents. The summaries are qualified in all respects by reference to the full
text of the documents.
The Commission maintains a World Wide Web site on the Internet at
http://www.sec.gov that contains reports, proxy and information statements and
other information regarding us. The reports, proxy and information statements
and other information concerning us can also be inspected and copied at the
offices of the American Stock Exchange, Inc., 86 Trinity Place, New York, New
York 10006, on which the common stock is listed.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Commission allows us to "incorporate by reference" the information
we file with them, which means that we can disclose important information to you
by referring you to those documents. The information incorporated by reference
is an important part of this prospectus, and information that we file later with
the Commission will automatically update and supersede this information. We
incorporate by reference the documents listed below and any future filings made
with the Commission under Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934 until all securities offered under this prospectus have
been either sold or deregistered.
o Annual Report on Form 10-K for the fiscal year ended December
31, 1998, as amended by the Annual Report on Form 10-K/A filed
March 29, 1999;
o Proxy Statement, dated April 1, 1999;
o Current Report on Form 8-K filed with the SEC on
February 18, 1999;
o Quarterly Report on Form 10-Q for the three months ended
March 31, 1999;
o Quarterly Report on Form 10-Q for the six months ended
June 30, 1999;
o Quarterly Report on Form 10-Q for the nine months ended
September 30, 1999; and
o The description of our capital stock set forth in our
Registration Statement on Form 8-A filed on June 21, 1999.
We will provide without charge to each person to whom this prospectus
is delivered, upon written or oral request, a copy of any document incorporated
by reference in this prospectus, other than exhibits to any of the documents not
specifically described above. You may request copies of these documents by
writing or telephoning us at the following address:
Intellicall, Inc.
2155 Chenault, Suite 410
Carrollton, Texas 75006
(972) 416-0022
Attention: R. Phillip Boyd
3
<PAGE> 5
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus contains forward-looking statements. All statements
other than statements of historical facts contained in this prospectus,
including statements regarding our future financial position, business strategy,
budgets, projected costs and plans and objectives of management for future
operations, are forward-looking statements. Although we believe our expectations
reflected in these forward-looking statements are based on reasonable
assumptions, we cannot assure you that these expectations will prove to have
been correct.
We undertake no obligation to update or revise our forward-looking
statements, whether as a result of new information, future events or otherwise.
In light of these risks, uncertainties and assumptions, the forward-looking
events discussed in this prospectus might not occur. See "Risk Factors."
RECENT DEVELOPMENTS
On January 18, 2000, we announced that we had entered into an agreement
to acquire Heads Up Technologies, Inc. of Dallas, Texas, pursuant to which we
would issue between 1.3 to 1.4 shares of our common stock for each of the
approximately 8.9 million outstanding shares of Heads Up. The exact number of
our shares to be issued as a result of the merger will be determined following
the completion of due diligence. The transaction is subject to various
conditions, including the satisfactory conclusion of due diligence, each party's
obtaining shareholders' approval and such other conditions and approvals set
forth in the agreement.
RISK FACTORS
Investing in our common stock will provide you with an equity ownership
interest in us. As our stockholder, you will be subject to risks inherent in our
business. The performance of your shares will reflect the performance of our
business relative to, among other things, general economic and industry
conditions, market conditions and competition. The value of your investment may
increase or decline and could result in a loss. You should carefully consider
the following factors as well as other information contained in this prospectus
before deciding to invest in shares of our common stock.
This prospectus also contains forward-looking statements that involve
risks and uncertainties. Our actual results could differ materially from those
anticipated in the forward-looking statements as a result of many factors,
including the risk factors described below and the other factors described
elsewhere in this prospectus. See "Disclosure Regarding Forward-Looking
Statements."
RECENT HISTORY OF LOSSES
We incurred net losses of approximately $1.9 million, $10.9 million and
$5.0 million in 1998, 1997 and 1996, respectively. The reduced losses in 1998
were due to an approximate $7.4 million gain on the sale of assets. For the nine
months ended September 30, 1999, our net losses totaled $7,277,000. Our losses
primarily are attributable to margins on our hardware products that have been
insufficient to cover selling, marketing, engineering and other costs. Our
historical losses have required us to seek various sources of financing,
including the sale of assets and the sale of debt and equity securities. There
can be no assurance that we will be able to return to profitability.
INTEGRATION RISKS
The potential acquisition of Heads Up involves risks and uncertainties.
No assurance can be given that the acquisition will be consummated or if
consummated that we will be able to successfully integrate Heads Up with us or
will be able to successfully implement our business strategy for the combined
company.
CHANGES IN MANAGEMENT
During the past two years, we have made various management changes.
John J. McDonald, Jr., became president and chief executive officer in May 1998
and R. Phillip Boyd became chief financial officer in October 1998. William O.
Hunt, our prior president, has remained as our chairman of the board. Mr.
McDonald joined us in February 1997 and Mr. Boyd joined us in December 1997.
While we believe these management changes are beneficial, there can be no
assurance that our senior management team will be able to implement our
strategy.
POSSIBLE NEED FOR ADDITIONAL FINANCING
Our liquidity has been funded through a combination of bank financing,
sale of assets, sale of debt and equity securities and cash flow from
operations; however, there can be no assurance that we will not require
additional financing in the future or that if additional financing is needed
that it will be available on terms acceptable to us. In the event our liquidity
needs exceed our cash flow and available financing, we could experience a
material adverse change to our operations. Our future liquidity will depend on
several factors, including:
o spending levels;
o working capital turnover;
o volume and timing of equipment sales; and
o gross margins related to equipment sales.
4
<PAGE> 6
TELECOMMUNICATIONS ACT
Our pay telephones in the United States are sold principally to
independent payphone providers. In 1996 Congress passed the Telecommunications
Act of 1996, called the Telecom Act, which authorized the Federal Communications
Commission to evaluate and adjust, in certain situations, the amount of the
compensation paid by long-distance carriers to independent payphone companies.
The FCC specifically addressed a phenomenon known as "dial-around," which occurs
when a consumer accesses a long-distance carrier directly by dialing an access
or 800 number or by using a calling card that is non-billable by the payphone
provider. These actions allow the consumer to "dial-around" the payphone
provider's long-distance carrier from whom the payphone provider receives
compensation in order to reach another long-distance carrier from whom the
payphone provider would not receive compensation. In November 1996, the FCC
issued an order to increase compensation to payphone providers for dial-around.
However, the order was appealed to the U.S. Court of Appeals for the Eighth
Circuit, which ruled in July 1997 that the FCC's basis for determining
dial-around compensation was inappropriate. The Court of Appeals ordered the FCC
to re-examine the dial-around compensation structure. If the FCC reduces the
compensation, that determination could have an adverse impact on our sales of
pay telephones.
COMPETITION
We are a diversified telecommunications services and equipment company.
We provide one primary service, automated operator services for the private pay
telephone, hospitality and inmate services industries. Our primary
telecommunications equipment product offerings are:
o pay telephones, network equipment and software for the United
States market that incorporate advanced technology for
internally performing the functions associated with placing a
pay telephone call, including the completion of automated
operator assisted calls;
o network products and software for regulated phone companies
in the United States;
o pay telephones and network management systems compatible with
international telecommunications standards; and
o call processing systems for hotels, inmate facilities and
other multi-unit users.
The industry in which we operate is intensely competitive. Many of our
existing and potential competitors have far more extensive financial,
engineering, product development, manufacturing and marketing resources than we
have. Our products and services compete on the basis of a number of factors,
including:
o in the case of the equipment business, price, quality,
features and functions, reliability, service and support; and
o in the case of the services business, amount of compensation
paid to payphone providers and pricing of long-distance
services.
Our competitors may introduce products or services incorporating
technology as advanced or more advanced than ours. Changes in the
telecommunications environment may render our competitors' product solutions
more attractive to customers than our solutions. Competitive pressures often
necessitate price reductions that we may not be able to make or that could
adversely affect our profit margins. We may not be able to compete successfully
with existing or new competitors and competitive pressures may materially
adversely affect us.
5
<PAGE> 7
DIVIDEND POLICY
We have never paid cash dividends on our common stock and do not expect
to pay any in the foreseeable future. Our senior secured loan agreements
prohibit us from paying dividends. Any future change in our dividend policy will
depend upon our earnings and financial position, the nature of any restrictions
on the payment of dividends contained in our debt agreements and other factors
as our board of directors may deem appropriate.
YEAR 2000 RISKS
The Year 2000 issue is the result of potential problems with computer
systems or any equipment with computer chips that uses dates that have been
stored as two digits rather than four (e.g., "98" for 1998). As of January 31,
2000, the Company has not experienced any Year 2000 problems or disruptions
other than a temporary failure in the Company's voice mail system, which was
resolved with a minimal expense and which did not result in any serious
operational problems.
PREFERRED STOCK
Our board of directors is authorized to issue shares of preferred stock
without any further action on the part of our stockholders. In the event we
issue preferred stock in the future that has preference over the common stock
with respect to payment of dividends or upon our liquidation, dissolution or
winding up, your rights as holders of common stock could be adversely affected.
ANTI-TAKEOVER PROVISIONS
Certain provisions of our articles of incorporation and by-laws and
certain provisions of applicable law may tend to deter potential unsolicited
offers or other efforts to obtain control of us that are not approved by our
board of directors. The provisions may deprive our stockholders of opportunities
to sell shares of common stock at prices higher than prevailing market prices.
SELLING STOCKHOLDER
On December 29, 1995 we completed the sale of $7.5 million of 8.0%
convertible subordinated notes, due December 31, 2000, to Banca del Gottardo.
The notes were issued with warrants to purchase 300,000 shares of our common
stock at $4.20 per share. As a result of activating anti-dilution provisions in
the warrants, the warrants entitle the holder to purchase 418,507 shares of
common stock, exercisable at $3.01 per share. The notes are convertible into
1,785,714 shares of our common stock at a rate of $4.20 per share. As of
February 4, 2000, $4.87 million of such notes had been converted to 1,159,157
shares of our common stock.
On November 22, 1996 we completed the sale of $5.0 million of 8.0%
convertible subordinated notes, due November 22, 2001, to Banca del Gottardo.
The notes were issued with warrants to purchase 200,000 shares of our common
stock at $5.00 per share. As a result of activating anti-dilution provisions in
the warrants, the warrants entitle the holder to purchase 255,643 shares of
common stock, exercisable at $3.91 per share. The notes are convertible into one
million shares of our common stock at a rate of $5.00 per share.
This prospectus does not relate to the sale by Banca del Gottardo of
the shares of common stock acquired in the above described transactions, but
does relate to the sale by Banca del Gottardo of the shares of common stock
acquired or acquirable as a result of the following transactions.
On June 11, 1999, we completed the sale of $2.0 million of 7.0% convertible
notes, due June 11, 2004, to Banca del Gottardo. The notes were issued with
warrants to purchase 200,000 shares of our common stock at $1.55 per share. The
notes are convertible into 1,290,323 shares of our common stock at a rate of
$1.55 per share.
On December 23, 1999, we sold 1 million shares of our common stock to
Banca del Gottardo for a purchase price of $.85 per share.
On December 31, 1999, we issued to Banca del Gottardo a warrant to
purchase 200,000 shares of our common stock at an exercise price of $1.00 per
share. The warrants were issued in consideration of (i) Banca del Gottardo's
acquiring from certain third parties our 8% subordinated convertible notes due
December 31, 2000 and (ii) amending the put provision in such notes from
December 31, 1999 to June 30, 2000.
6
<PAGE> 8
Intellicall and Banca del Gottardo are also parties to a registration
rights agreement pursuant to which we have agreed, among other things, to
register under the Securities Act the offer and sale of the shares of common
stock issuable upon the exercise of the warrants and conversion of the notes,
and Intellicall and Banca del Gottardo agreed to indemnify each other against
certain liabilities, including liabilities under the Securities Act in
connection with the sale of the shares under this prospectus. Pursuant to the
registration rights agreement, Banca del Gottardo is required to pay the
underwriting discounts, if any, and commissions associated with the offering
contemplated hereby, and we are generally required to pay all of the other
expenses directly associated with the offering, including the cost of
registering the shares, including applicable registration and filing fees,
printing expenses, applicable expenses for legal counsel and accountants
incurred by us and the legal fees of Banca del Gottardo associated with the
offering in an amount not to exceed $5,000. The warrants issued to Banca del
Gottardo, the shares of common stock issuable upon the exercise of those
warrants and the shares of common stock issuable upon conversion of the notes
may be transferred by Banca del Gottardo from time to time. Persons or entities
to whom the warrants or shares are transferred also may be entitled to
registration rights, and the names and other information regarding these persons
and entities will be set forth in a prospectus supplement.
This prospectus covers the offer and resale from time to time by Banca
del Gottardo of certain shares of our common stock. Set forth below is the name
of such selling stockholder, the nature of any position, office, or other
material relationship that the selling stockholder has had within the past three
years with the Company or any of its predecessors or affiliates, the number of
shares of common stock owned as of February 11, 2000, the number of shares of
common stock that may be offered and sold by such selling stockholder pursuant
to this prospectus and the number of shares of common stock, the amount and (if
one percent or more) the percentage of common stock to be owned by such selling
stockholder upon completion of the offering if all such shares are sold. Any or
all of the shares of common stock listed below may be offered for sale by the
selling stockholder from time to time.
<TABLE>
<CAPTION>
Beneficial Ownership Common Stock Offered Beneficial Ownership
of Common Stock for Stockholders of Common Stock Percent of Class
Name Prior to Offering Account After Offering after Offering
<S> <C> <C> <C> <C>
Banca del Gottardo 6,150,187(1) 2,690,323 3,459,864(2) 20.3%
</TABLE>
(1) Includes 418,507 shares issuable on exercise of warrants issued
December 29, 1995; 626,557 shares issuable on conversion of notes issued
December 29, 1995; 255,643 shares issuable on exercise of warrants issued
November 22, 1996; 1,000,000 shares issuable on conversion of notes issued
November 22, 1996; 200,000 shares issuable on exercise of warrants issued on
June 11, 1999; 1,290,323 shares issuable on conversion of notes issued June 11,
1999; 200,000 shares issuable on exercise of warrants issued December 31, 1999;
and 2,159,157 shares of common stock.
(2) Includes 418,507 shares issuable on exercise of warrants issued
December 29, 1995; 626,557 shares issuable on conversion of notes issued
December 29, 1995; 255,643 shares issuable on exercise of warrants issued
November 22, 1996; 1,000,000 shares issuable on conversion of notes issued
November 22, 1996; and 1,159,157 shares of common stock.
USE OF PROCEEDS
We will not receive any proceeds from the sale of the common stock. We
will receive $510,000 if the warrants relating to the shares registered under
this prospectus are fully exercised.
PLAN OF DISTRIBUTION
Banca del Gottardo is offering the common stock under this prospectus.
The common stock may be sold or distributed from time to time by Banca del
Gottardo, or by its donees, transferees or other successors in interest,
directly to one or more purchasers or through brokers, dealers or underwriters
who may act solely as agents or may acquire the common stock as principals, at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices, at negotiated prices or at fixed prices, which may be
changed.
7
<PAGE> 9
Any broker-dealer participating in these transactions as agent may
receive commissions from Banca del Gottardo and, if the broker-dealer acts as
agent for the purchaser of the shares, from the purchaser, Banca del Gottardo
will pay usual and customary brokerage fees. Broker-dealers may agree with Banca
del Gottardo to sell a specified number of shares at a stipulated price per
share, and, to the extent that a broker-dealer is unable to do so acting as
agent for Banca del Gottardo, to purchase as principal any unsold shares at the
price required to fulfill the broker-dealer commitment to Banca del Gottardo.
Broker-dealers who acquire shares as principal may thereafter resell the shares
from time to time in transactions, which may involve crosses and block
transactions and which may involve sales to and through other broker-dealers,
including transactions of the nature described above, on the American Stock
Exchange, or such other markets or exchanges on which the common stock is from
time to time eligible for trading or quoting, in negotiated transactions or
otherwise at market prices prevailing at the time of sale or at negotiated
prices, and in connection with such resales may pay to or receive from the
purchasers of such shares commissions computed as described above.
Upon our being notified by Banca del Gottardo that any material
arrangement has been entered into with a broker or dealer for the sale of any of
the common stock offered hereby through a secondary distribution, or a purchase
by a broker or dealer, a prospectus supplement will be filed, if required,
disclosing:
o the name of the broker or dealer;
o the number of shares of common stock to be sold;
o the price at which the shares are being sold;
o the commissions paid or the discounts or concessions allowed to the
broker or dealer; and
o other facts material to the transaction.
We have advised Banca del Gottardo that the anti-manipulation rules of
Regulation M promulgated by the Securities and Exchange Commission may apply to
its sales in the market and have informed it of the need to deliver copies of
this prospectus to prospective purchasers. Banca del Gottardo may indemnify any
broker-dealer that participates in transactions involving the sale of the shares
against certain liabilities, including liabilities arising under the Securities
Act of 1933. Any commissions paid or any discounts or concessions allowed to any
broker-dealers, and any profits received on the resale of the shares, may be
deemed to be underwriting discounts and commissions under the Securities Act of
1933 if any broker-dealers purchase shares as principal.
Any securities covered by this prospectus that qualify for sale
pursuant to Rule 144 under the Securities Act of 1933 may be sold under Rule 144
rather than pursuant to this prospectus.
We cannot assure you that Banca del Gottardo will sell any or all of
the shares of our common stock offered by it pursuant to this prospectus.
8
<PAGE> 10
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The expenses, all of which will be paid by the Registrant, in
connection with the registration of common stock offered hereby, other than
commissions, are as follows:
SEC Registration Fee.................................. $ 866
Legal Fees and Expenses............................... $ 5,000
Accounting Fees and Expenses.......................... $ 7,000
Miscellaneous......................................... $ 1,134
-------
Total........................................ $ 14,000
------
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law (the "Delaware
Law") provides that a Delaware 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 (a "proceeding") (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 attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding if he 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. A Delaware corporation may indemnify any person under such
section in connection with a proceeding by or in the right of the corporation to
procure judgment in its favor, as provided in the preceding sentence, against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action, except that no
indemnification shall be made in respect thereof unless, and then only to the
extent that, a court of competent jurisdiction shall determine upon application
that such person is fairly and reasonably entitled to indemnity for such
expenses as the court shall deem proper. A Delaware corporation must indemnify a
present or former director or officer of a corporation who was successful on the
merits or otherwise in defense of any action, suit or proceeding or in defense
of any claim, issue or matter in any proceeding, 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 therewith. A Delaware corporation may pay for the
expenses (including attorneys' fees) incurred by an officer or director in
defending a proceeding in advance of the final disposition upon receipt of an
undertaking by or on behalf of such officer or director to repay such amount if
it is ultimately determined that he is not entitled to be indemnified by the
corporation.
Section 102(b)(7) of the Delaware Law permits a corporation to provide
in its certificate of incorporation that a director shall not be personally
liable to the corporation or its stockholders for monetary damages for a breach
of fiduciary duty as a director, except for liability (a) for any breach of the
director's duty of loyalty to the corporation or its stockholders, (b) for any
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (c) in respect of certain unlawful dividend payments
or stock redemptions or repurchases, or (d) for any transaction from which the
director derived an improper personal benefit. Article XIII of the Registrant's
Certificate of Incorporation eliminates the liability of directors to the
fullest extent permitted by Section 102(b)(7) of the Delaware Law.
The Delaware Law permits the purchase of insurance on behalf of the
directors and officers against any liability asserted against directors and
officers and incurred by such persons in such capacity, or arising out of their
status as such, whether or not the corporation would have the power to indemnify
directors and officers against such liability.
The Registrant maintains officers' and directors' liability insurance
for members of its Board of Directors and executive officers, and the Registrant
has entered into agreements to indemnify its directors and officers.
II-1
<PAGE> 11
Articles XIII and XIV of the Registrant's Certificate of Incorporation
and Article VI of the Registrant's Bylaws provide for indemnification of
directors and officers to the fullest extent permitted by law.
II-2
<PAGE> 12
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
Exhibit
Number Description of Exhibits
------- -----------------------
4.1 Specimen Certificate representing Intellicall Common
Stock (Incorporated by reference to the Company's
Form S-1 (No. 33-15723) filed August 28, 1987).
5.1 Opinion of Jackson Walker LLP
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Jackson Walker LLP (included in Exhibit 5.1)
24.1 Power of Attorney of certain officers and directors
(included in Part II of this Registration Statement on
the signature page hereto)
II-3
<PAGE> 13
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) (a) 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 in Section
10(a)(3) of the Securities Act of 1933 (the
"Securities Act");
(ii) to reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the
total dollar value of securities offered would not
exceed that which was registered) and any deviation
from the low or high end of the estimated maximum
offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the
effective registration statement; and
(iii) to include any material information with respect to
the plan of distribution not previously disclosed in
the Registration Statement or any material change to
such information in the Registration Statement.
Provided, however, that paragraph (a)(i) and (a)(ii) do not apply if
the registration statement is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment by those paragraphs
is contained in periodic reports filed by the registrant pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) that, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) to remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) that, for purposes of determining any liability under the
Securities Act, each filing of the Registrant's annual report pursuant to
section 13(a) or section 15(d) of the Securities Exchange Act of 1934 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.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-4
<PAGE> 14
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-3 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 February 4, 2000.
INTELLICALL, INC.
By: /s/ JOHN J. MCDONALD, JR.
------------------------------------
John J. McDonald, Jr.
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below as of February 4, 2000 by the
following persons in the capacities and on the dates indicated. Each person
whose signature to this Registration Statement appears below hereby appoints
John J. McDonald, Jr., and R. Phillip Boyd as his attorney-in-fact to sign on
his or her behalf, individually and in the capacities stated below, and to file
any and all amendments and post-effective amendments to this Registration
Statement, which amendment or amendments may make such changes and additions as
such attorney-in-fact may deem necessary or appropriate.
Signature Title
--------- -----
/s/ JOHN J. MCDONALD
- ------------------------------------ Director; President and Chief
John J. McDonald Executive Officer
/s/ R. PHILLIP BOYD
- ------------------------------------ Vice President; Principal
R. Phillip Boyd Financial and Accounting Officer
/s/ WILLIAM O. HUNT
- ------------------------------------ Chairman of the Board
William O. Hunt
- ------------------------------------ Director
B. Michael Adler
/s/ LEWIS E. BRAZELTON, III
- ------------------------------------ Director
Lewis E. Brazelton, III
/s/ ARTHUR CHAVOYA
- ------------------------------------ Director
Arthur Chavoya
/s/ RICHARD B. CURRAN
- ------------------------------------ Director
Richard B. Curran
II-5
<PAGE> 15
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibits
-------- ------------------------
<S> <C>
4.1 Specimen Certificate representing Intellicall Common Stock
(Incorporated by reference to the Company's Form S-1 (No. 33-15723)
filed August 28, 1987).
5.1 Opinion of Jackson Walker LLP
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Jackson Walker LLP (included in Exhibit 5.1)
24.1 Power of Attorney of certain officers and directors
(included in Part II of this Registration
Statement on the signature page hereto)
</TABLE>
II-6
<PAGE> 1
EXHIBIT 5.1
[JACKSON WALKER LLP LETTERHEAD]
February 16, 2000
Intellicall, Inc.
2155 Chenault, Suite 410
Carrollton, Texas 75006-5023
Ladies and Gentlemen:
We have acted as counsel to Intellicall, Inc., a Delaware corporation
(the "Company"), in connection with the preparation of the Company's
Registration Statement on Form S-3 (the "Registration Statement") relating to
the proposed offer and sale by a stockholder of the Company of up to 2,690,323
shares of the Company's common stock, par value $.01 per share (the "Shares"),
issuable upon exercise of certain warrants held by such stockholder (the
"Warrants"), issuable upon conversion of certain notes held by such stockholder
(the "Notes") and otherwise held by such stockholder. In such capacity, we are
passing on certain legal matters in connection with the registration of the sale
of the Shares. At your request, this opinion is being furnished to you for
filing as an exhibit to the Registration Statement.
In connection with rendering this opinion, we have examined such
certificates, instruments and documents and reviewed such questions of law as we
have considered necessary or appropriate for the purposes of this opinion.
Based upon the foregoing examination and review, we are of the opinion
that the Shares are duly authorized and, as contemplated by the Registration
Statement, when issued upon valid exercise of, and payment made under, the
Warrants and upon valid conversion of the Notes, will be legally issued, fully
paid and nonassessable.
The foregoing opinion is limited to the laws of the United States of
America and to the General Corporation Law of the State of Delaware. For
purposes of this opinion, we assume that the Shares will be issued in compliance
with all applicable state securities or Blue Sky laws.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving this consent, however, we do not hereby admit
that we are within the category of persons whose consent is required under
Section 7 of the Securities Act of 1933 and the rules and regulations of the
Securities and Exchange Commission thereunder.
Very truly yours,
/s/ Jackson Walker LLP
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated February 23, 1999 relating to the
financial statements and financial statement schedules, which appears in
Intellicall, Inc.'s Annual Report on Form 10-K for the year ended December 31,
1998.
PricewaterhouseCoopers LLP
Dallas, Texas
February 15, 2000
