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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 9, 1998
REGISTRATION NO. 333-_______
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ITERATED SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
GEORGIA 58-1741516
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
3525 PIEDMONT ROAD
SEVEN PIEDMONT CENTER, SUITE 600
ATLANTA, GEORGIA 30305-1530
(404) 264-8000
(Address of registrant's principal executive offices, including zip code
and telephone number, including area code)
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1994 AMENDED AND RESTATED DIRECTORS STOCK OPTION PLAN
1994 AMENDED AND RESTATED STOCK OPTION PLAN
(Full title of the Plans)
JOHN C. BACON COPY TO:
CHIEF EXECUTIVE OFFICER JOHN C. YATES, ESQ.
ITERATED SYSTEMS, INC. ROSEMARIE A. THURSTON, ESQ.
SEVEN PIEDMONT CENTER, SUITE 600 MORRIS, MANNING & MARTIN, L.L.P.
3525 PIEDMONT ROAD 1600 ATLANTA FINANCIAL CENTER
ATLANTA, GEORGIA 30305-1530 3343 PEACHTREE ROAD, N.E.
(404) 264-8000 ATLANTA, GEORGIA 30326
(404) 233-7000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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<CAPTION>
<S> <C> <C> <C> <C>
PROPOSED
MAXIMUM OFFERING PROPOSED MAXIMUM
AMOUNT TO BE REGISTERED PRICE PER SHARE AGGREGATE OFFERING
TITLE OF SECURITIES TO BE REGISTERED (1) (2) PRICE (2) AMOUNT OF REGISTRATION FEE
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Common Stock, $.01 par value per share 3,580,000 shares $ .672 $ 2,405,760 $ 668.80
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(1) Represents 180,000 shares of Common Stock reserved for issuance by
Registrant under the Iterated Systems, Inc. 1994 Amended and Restated
Directors Stock Option Plan (the "1994 Directors Plan") and 3,400,000
shares of Common Stock reserved for issuance by Registrant under the
Iterated Systems, Inc. 1994 Amended and Restated Stock Option Plan (the
"1994 Plan"). (The 1994 Directors Plan and the 1994 Plan are collectively
referred to herein as the "Plans").
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) and (h) of the Securities Act of 1933, as amended
on the basis of the closing selling price per share of the Common Stock on
the Oslo Stock Exchange on December 7, 1998.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I will be sent
or given to employees and/or directors of Iterated Systems, Inc. (the
"Registrant") as specified by Rule 428(b)(1) of the Securities Act of 1933, as
amended (the "Securities Act"). In accordance with the instructions of Part I of
Form S-8, such documents will not be filed with the Securities and Exchange
Commission (the "Commission") either as part of this Registration Statement or
as prospectuses or prospectus supplements pursuant to Rule 424 of the Securities
Act. These documents and the documents incorporated by reference pursuant to
Item 3 of Part II of this Registration Statement, taken together, constitute the
prospectus as required by Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange Commission
(the "Commission") are incorporated herein by reference:
(a) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 10 filed with the Commission on April
24, 1998 (as amended by Form 10/A filed with the Commission on June 18, 1998,
July 24, 1998 and September 24, 1998) (File No. 0-24087);
(b) The Registrant's Quarterly Reports on Form 10-Q for the quarters ended
June 30, 1998 and September 30, 1998 filed with the Commission on August 13,
1998 and November 13, 1998, respectively (File No. 0-24087); and
(c) The Current Report on Form 8-K, filed with the Commission on August
20, 1998 (File No. 0-24087).
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14, and 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), prior to the filing of a post-effective amendment
indicating that all securities offered under the Plans have been sold or
deregistering all securities then remaining unsold thereunder, shall be deemed
to be incorporated herein by reference and shall be deemed to be a part hereof
from the date of filing thereof.
Any statement contained in any document incorporated or deemed to be
incorporated by reference into the Prospectus shall be deemed to be modified or
superseded for purposes thereof to the extent that a statement contained therein
or in any other subsequently filed document that is also incorporated or deemed
to be incorporated therein by reference modifies or supersedes such statement.
Any such statement so modified or superseded shall now be deemed, accepted as so
modified or superseded, to constitute a part of this Registration Statement.
The Company hereby undertakes to provide without charge to each person to
whom this Prospectus has been delivered, upon the written or oral request of any
such person, a copy of any and all of the foregoing documents incorporated
herein by reference (other than exhibits to such documents which are not
specifically incorporated by reference into the information that this Prospectus
incorporates). Written or telephone requests should be directed to Attn: Haines
H. Hargrett, Chief Financial Officer, Iterated Systems, Inc., 3525 Piedmont
Road, Seven Piedmont Center, Suite 600, Atlanta, Georgia 30305-1530, telephone
number: (404) 264-8000.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Legal matters in connection with the shares of Common Stock offered hereby
were passed upon by Morris, Manning & Martin, L.L.P., Atlanta, Georgia.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Amended and Restated Articles of Incorporation eliminate
the personal liability of directors to the Registrant or its shareholders for
monetary damages for breaches of such directors' duty of care or other duties as
a director, except with respect to liability for (i) any appropriation, in
violation of the director's duties, of any business opportunity of the
Registrant, (ii) acts or omissions that involve intentional misconduct or a
knowing violation of law, (iii) liability under Section 14-2-832 (or any
successor provision or redesignation thereof) of the Georgia Business
Corporation Code, or (iv) any transaction from which the director received an
improper personal benefit.
In addition, the Registrant's Restated Bylaws provide broad indemnification
rights to (i) directors, and (ii) officers, employees, or agents of the
Registrant as directed by the directors. The Registrant's Restated Bylaws
provide that the Registrant shall indemnify each of its directors and officers
to the extent that he or she is or was 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 by reason of the fact
that such person is or was a director, officer, employee or agent of the
Registrant, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement in connection with such action, suit or proceeding;
provided, however, that no indemnification shall be made for (i) any
appropriation by a director, in violation of that director's duties, of any
business opportunity of the Registrant, (ii) acts or omissions which involve
intentional misconduct or a knowing violation of law, (iii) any liability under
Section 14-2-832 of the Georgia Business Corporation Code, which relates to
unlawful payments of dividends and unlawful stock repurchases and redemptions,
or (iv) any transaction from which he or she derived an improper personal
benefit.
These provisions of the Amended and Restated Articles of Incorporation and
Restated Bylaws will limit the remedies available to a shareholder who is
dissatisfied with a decision of the Board of Directors that is protected by
these provisions.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following exhibits are filed with or incorporated by reference into
this Registration Statement pursuant to Item 601 of Regulation S-K:
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<CAPTION>
Exhibit No. Description
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<S> <C>
4.1 Amended and Restated Articles of Incorporation of Iterated
Systems, Inc. (incorporated by reference to Exhibit 3.1 to the
Registrant's Registration Statement on Form 10, File Number 0-
24087)
4.2 Restated Bylaws of Iterated Systems, Inc. (incorporated by
reference to Exhibit 3.2 to the Registrant's Registration
Statement on Form 10, File Number 0-24087)
5.1 Opinion of Morris, Manning & Martin, L.L.P. as to the legality
of the securities being registered
23.2 Consent of Morris, Manning & Martin, L.L.P. (included in Exhibit
5.1)
</TABLE>
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24.1 Power of Attorney (included on signature page)
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ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(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 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;
(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 paragraphs (a)(1)(i) and (a)(1)(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 with or furnished to the Commission
by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange
Act 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 the registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (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
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
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,
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.
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SIGNATURES
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Pursuant to the requirements of the Securities Act, the undersigned
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 Atlanta, State of Georgia, on this the 18th day of
November, 1998.
ITERATED SYSTEMS, INC.
By:/s/ John C. Bacon
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John C. Bacon
President and Chief Executive Officer
POWER OF ATTORNEY
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KNOW ALL MEN BY THESE PRESENTS, that each person whose signatures appears
below constitutes and appoints Haines H. Hargrett as his or her true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him or her and in his or her name, place and stead, in any and all
capacities, to sign a Registration Statement relating to the registration of
shares of common stock on Form S-8 and to sign any and all amendments (including
post effective amendments) to the Registration Statement, and to file the same,
with all exhibits thereto and other documents in connection therewith, with the
Commission, granting unto said attorney-in-fact and agent, full power and
authority to do and perform each and every act and thing required or necessary
to be done in and about the premises, as fully to all intents and purposes as he
or she might or could do in person, hereby ratifying and confirming all that
said attorney-in-fact and agent, or his substitute, could lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the date indicated.
/s/ John C. Bacon President, November 11, 1998
- ----------------- Chief Executive Officer
John C. Bacon and Director
(Principal Executive Officer)
/s/ Asmund R. Slogedal Director November 11, 1998
- ----------------------
Asmund R. Slogedal
/s/ Haines H. Hargrett Chief Financial Officer November 11, 1998
- ---------------------- (Principal Financial and
Haines H. Hargrett Accounting Officer)
/s/ John R. Festa Director November 12, 1998
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John R. Festa
/s/ Michael F. Barnsley Director November 18, 1998
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Michael F. Barnsley
/s/ Terje Mikalsen Director November 11, 1998
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Terje Mikalsen
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/s/ Alan D. Sloan Director November 18, 1998
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Alan D. Sloan
/s/ James D. Robinson, III Director November 11, 1998
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James D. Robinson, III
-7-
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[LETTERHEAD OF MORRIS, MANNING & MARTIN APPEARS HERE]
December 9, 1998
Iterated Systems, Inc.
Seven Piedmont Circle, Suite 600
3525 Piedmont Road
Atlanta, Georgia 30305-1530
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel for Iterated Systems, Inc., a Georgia corporation
(the "Registrant"), in connection with the registration under the Securities Act
of 1933, as amended, pursuant to a Registration Statement on Form S-8, of a
proposed offering of (i) 1,800 shares of the Registrant's common stock, $.01 par
value per share ("Shares"), issuable pursuant to the Iterated Systems, Inc. 1994
Directors Stock Option Plan (the "1994 Directors Plan") and (ii) 3,400,000
Shares issuable pursuant to the Iterated Systems, Inc. 1994 Amended and Restated
Stock Option Plan (the "1994 Plan") (together with the 1994 Directors Plan, the
"Plans").
We have examined and are familiar with the originals or copies certified or
otherwise identified to our satisfaction of such documents, corporate records,
and other instruments relating to the incorporation of the Registrant and to the
authorization and issuance of Shares under the Plans as would be necessary and
advisable for purposes of rendering this opinion. Based upon and subject to the
foregoing, we are of the opinion that the Shares have been duly authorized and,
when issued as contemplated by the Plans, will be validly issued, fully paid and
nonassessable.
We hereby consent to the filing of this Opinion as Exhibit 5.1 to the
Registrant's registration statement on Form S-8.
Very truly yours,
MORRIS, MANNING & MARTIN, L.L.P.
/s/ Morris, Manning & Martin, L.L.P.
