AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 21, 2000
REGISTRATION NO. 333 - __________
________________________________________________________________________________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
TELESCAN, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
Delaware 72-1121748
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
5959 Corporate Drive, Suite 2000
Houston, Texas 77036
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
Amended and Restated 1995 Stock Option Plan
2000 Stock Option Plan
(FULL TITLE OF THE PLAN)
Alex Wyche
Corporate Counsel
Telescan, Inc.
5959 Corporate Drive, Suite 2000
Houston, Texas 77036
(NAME AND ADDRESS OF AGENT FOR SERVICE)
(281) 588-9700
(TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
CALCULATION OF REGISTRATION FEE
================================================================================
PROPOSED
PROPOSED MAXIMUM
TITLE OF AMOUNT (MAXIMUM AGGREGATE AMOUNT OF
SECURITIES TO BE OFFERING PRICE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED(1) PER SHARE(2) PRICE(2) FEE
--------------------------------------------------------------------------------
COMMON STOCK, PAR
VALUE $.01 PER SHARE
("COMMON STOCK") 1,585,000 $8.17 $12,947,413 $3,419
================================================================================
(1) The Company has filed previous Registration Statements registering an
aggregate of 637,500 shares of Company Common Stock offered under the
Company's Amended and Restated 1995 Stock Option Plan. This Registration
Statement is being filed to register 585,000 additional shares of Common
Stock that may be issued under the 1995 Stock Option Plan, as amended, and
1,000,000 shares that may be issued under the Company's 2000 Stock Option
Plan, and includes an indeterminate number of shares that may be issuable by
reason of stock splits, stock dividends or similar transactions.
(2) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(c) and (h), based on the average of the high and low sales price
of a share of the Company's Common Stock on the Nasdaq National Market on
November 16, 2000 (which average is $1.875), with respect to 520,703 shares
of Common Stock as to which awards have not been granted as of the date of
this Registration Statement and 1,064,297 shares of Common Stock as to which
awards have been granted as follows: 479,297 shares at an exercise price of
$2.00 per share; 400,000 shares at an exercise price of $19.00 per share;
125,000 shares at an exercise price of $22.50 per share; and 60,000 shares
at an exercise price of $10.00 per share.
________________________________________________________________________________
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Telescan, Inc. (the "Company" or
"Telescan") with the Securities and Exchange Commission under the Securities
Exchange Act of 1934 (File No. 0-17508) are hereby incorporated by reference in
this Registration Statement:
(i) The Company's Annual Report on Form 10-K/A for the year ended
December 31, 1999;
(ii) The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 2000;
(iii) The Company's Quarterly Report on Form 10-Q for the quarter ended
June 30, 2000;
(iv) The Company's Quarterly Report on Form 10-Q for the quarter ended
September 30, 2000;
(v) The Company's Current Report on Form 8-K dated April 13, 2000;
(vi) The Company's Current Report on Form 8-K/A dated April 13, 2000;
(vii) The Company's Current Report on Form 8-K dated May 17, 2000;
(viii) The Company's Current Report on Form 8-K dated August 18, 2000;
(ix) The Company's Current Report on Form 8-K dated September 28, 2000;
and
(x) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form S-1 dated June 15, 1998.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1934, after the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all securities offered hereby have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be part hereof
from the date of the filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware
provides generally and in pertinent part that a Delaware corporation may
indemnify its directors and officers against expenses (including attorneys'
fees), judgments, fines, and amounts paid in settlement actually and reasonably
incurred by them in connection with any civil, criminal, administrative, or
investigative action, suit or proceeding except actions by or in the right of
the corporation if, in connection with the matters in issue, they acted in good
faith and in a manner they reasonably believed to be in or not opposed to the
best interests of the corporation, and in connection with any criminal action or
proceeding if, in connection with the matters in issue, they had no reasonable
cause to believe their conduct was unlawful. Section 145 further provides that
in connection with the defense or settlement of any action or suit by or in the
right of the corporation, a Delaware corporation may indemnify its directors and
officers against expenses (including attorneys' fees) actually and reasonably
incurred by them if, in connection with the matters in issue, they acted in good
faith and in a manner they reasonably believe to be in or not opposed to the
best interests of the corporation, except that no indemnification may be made
with respect to any claim, issue, or matter as to which such person has been
adjudged liable to the corporation unless and only to the extent that the
Delaware Court of Chancery or other court in which such action or suit is
brought approves such indemnification.
Section 145 further permits a Delaware corporation to grant its
directors and officers additional rights of indemnification through bylaw
provisions and otherwise, and to purchase indemnity insurance on behalf of its
directors and officers. In addition, Article V of the Registrant's By-Laws
"Indemnification of Directors, Officers, Employees and Other Agents" provides as
follows:
SECTION 1. DEFINITIONS. For the purpose of this Article V, "agent" means
any person who is or was a director, officer, employee or other agent of
the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another foreign or domestic
corporation, partnership, joint venture, trust or other enterprise, or
was a director, officer, employee or agent of a foreign or domestic
corporation which was a predecessor corporation of the corporation or of
another enterprise at the request of such predecessor corporation;
"proceeding" means any threatened, pending or completed action or
proceeding, whether civil, criminal, administration or investigative;
and "expenses" includes, without limitation, attorneys' fees and any
expenses of establishing a right to indemnification under Section 4 of
Section 5(c) of this Article V.
SECTION 2. ACTIONS BY THIRD PARTIES. The corporation shall indemnify any
person who was or is a party, or is threatened to be made a party, to
any proceeding (other than an action by or in the right of the
corporation) by reason of the fact that such person is or was an agent
of the
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corporation, against expenses, judgments, fines, settlements and other
amounts actually and reasonably incurred in connection with such
proceedings to the fullest extent permitted by the laws of the State of
Delaware as they may exist from time to time.
SECTION 3. ACTION BY OR IN THE RIGHT OF THE CORPORATION. The corporation
shall indemnify any person who was or is a party, or is threatened to be
made a party, to any threatened, pending or completed action by or in
the right of the corporation to procure a judgment in its favor by
reason of the fact that such person is or was an agent of the
corporation, against expenses actually and reasonably incurred by such
person in connection with the defense or settlement of such action to
the fullest extent permitted by the laws of the State of Delaware as
they may exist from time to time.
SECTION 4. ADVANCE OF EXPENSES. Expenses incurred in defending any
proceeding shall be advanced by the corporation prior to the final
disposition of such proceeding upon receipt of a request therefor and an
undertaking by or on behalf of the agent to repay such amount unless it
shall be determined ultimately that the agent is not entitled to be
indemnified as authorized in this Article V.
SECTION 5. CONTRACTUAL NATURE. The provisions of this Article V shall be
deemed to be a contract between the corporation and each director and
officer who serves in such capacity at any time while this Article is in
effect, and any repeal or modification thereof shall not affect any
rights or obligations then existing with respect to any state of facts
then or theretofore existing or any action, suit or proceeding
theretofore existing or any action, suit or proceeding theretofore or
thereafter brought based in whole or in part upon any such state of
facts.
SECTION 6. INSURANCE. Upon and in the event of a determination by the
board of directors to purchase such insurance, the corporation shall
purchase and maintain insurance on behalf of any agent of the
corporation against any liability asserted against or incurred by the
agent in such capacity or arising out of the agent's status as such
whether or not the corporation would have the power to indemnify the
agent against such liability under the provisions of this Article V. All
amounts received by an agent under any such policy of insurance shall be
applied against, but shall not limit, the amounts to which the agent is
entitled pursuant to the foregoing provisions of this Article V.
SECTION 7. ERISA. To assure indemnification under this provision of all
such persons who are or were "fiduciaries" of an employee benefit plan
governed by the Employee Retirement Income Security Act of 1974, as
amended from time to time ("ERISA"), the provisions of this Article V
shall, except as limited by Section 410 of ERISA, be interpreted as
follows: an "other enterprise" shall be deemed to include an employee
benefit plan; the
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corporation shall be deemed to have requested a person to serve as an
employee of an employee benefit plan where the performance by such
person of his duties to the corporation also imposes duties on, or
otherwise involves services by, such person to the plan or participants
or beneficiaries of the plan; excise taxes assessed on a person with
respect to an employee benefit plan pursuant to ERISA shall be deemed
"fines"; and action taken or omitted by a person with respect to an
employee benefit plan in the performance of such person's duties for a
purpose reasonably believed by such person to be in compliance with
ERISA and the terms of the plan shall be deemed to be for a purpose
which is not opposed to the best interests of the corporation.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
EXHIBIT NO. EXHIBIT
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4.1 Restated Certificate of Incorporation of the Company
(incorporated by reference to the Company's Form S-1
dated September 14, 1993 (Registration No. 33-52182)).
4.2 Certificate of Amendment of Restated Certificate of
Incorporation of the Company (incorporated by reference
to the Company's Form S-1 dated September 14, 1993
(Registration No. 33-52182)).
4.3 Certificate of Restated Certificate of Incorporation of
the Company (incorporated by reference to the Company's
Annual Report on Form 10-K/A for the year ended December
31, 1999).
4.4 Bylaws of the Company (incorporated by reference to
Exhibit 3.2 to Post-Effective Amendment No. 1 to the
Company's Registration Statement on Form S-4 (File No.
33-60103)).
*5.1 Opinion of Locke Liddell & Sapp LLP
*23.1 Consent of Locke Liddell & Sapp LLP (Contained in Exhibit
5.1).
*23.2 Consent of Hein + Associates LLP
*24.1 Powers of Attorney (Included on Page II-6).
*99.1 Amended and Restated 1995 Stock Option Plan
*99.2 2000 Stock Option Plan
____________________
* Filed herewith
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ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement to include any
material information with respect to the plan of distribution not previously
disclosed in this Registration Statement or any material change to such
information in this Registration Statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial BONA
FIDE offering thereof; and
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
The undersigned registrant 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
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
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 of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
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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 New York, State of New York, on this 16th day of
November, 2000.
TELESCAN, INC.
By: /s/ LEE K. BARBA
Lee K. Barba
Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Lee K. Barba and Roger C. Wadsworth and each of
them, his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution for him and in his name, place and stead, in any
and all capacities, to sign, execute and file this Registration Statement under
the Securities Act and any and all amendments (including, without limitation,
post-effective amendments and any amendment or amendments or additional
registration statements filed pursuant to Rule 462 under the Securities Act
increasing the amount of securities for which registration is being sought) to
this Registration Statement, and to file the same, with all exhibits thereto,
and all other statements, notices or other documents necessary or advisable to
comply with the applicable state securities laws, and to file the same, together
with other documents in connection therewith, with the appropriate state
securities authorities, granting unto said attorneys-in-fact and agents full
power and authority to do and perform each and every act and thing requisite and
necessary to be done, as fully to all intents and purposes as he might or could
do in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents or any of them, or their or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on November 16, 2000.
SIGNATURE TITLE
/s/ LEE K. BARBA Chief Executive Officer
Lee K. Barba (Principal Executive Officer)
/s/ PAUL A. HELBLING Chief Financial Officer
Paul A. Helbling (Principal Financial Officer and
Principal Accounting Officer)
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/s/ DAVID L. BROWN Director
David L. Brown
/s/ WILLIAM D. SAVOY Director
William D. Savoy
/s/ STEPHEN C. WOOD Director
Stephen C. Wood
/s/ ELISABETH Y. SAMI Director
Elisabeth Y. Sami
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EXHIBIT INDEX
EXHIBIT NO. EXHIBIT
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4.1 Restated Certificate of Incorporation of the Company
(incorporated by reference to the Company's Form S-1 dated
September 14, 1993 (Registration No. 33-52182)).
4.2 Certificate of Amendment of Restated Certificate of
Incorporation of the Company (incorporated by reference to the
Company's Form S-1 dated September 14, 1993 (Registration No.
33-52182)).
4.3 Certificate of Restated Certificate of Incorporation of the
Company (incorporated by reference to the Company's Annual
Report on Form 10-K/A for the year ended December 31, 1999).
4.4 Bylaws of the Company (incorporated by reference to Exhibit 3.2
to Post-Effective Amendment No. 1 to the Company's Registration
Statement on Form S-4 (File No. 33-60103)).
*5.1 Opinion of Locke Liddell & Sapp LLP
*23.1 Consent of Locke Liddell & Sapp LLP (Contained in Exhibit 5.1).
*23.2 Consent of Hein + Associates LLP
*24.1 Powers of Attorney (Included on Page II-6).
*99.1 Amended and Restated 1995 Stock Option Plan
*99.2 2000 Stock Option Plan
_________________________
* Filed herewith
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