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As filed with the Securities and Exchange Commission on July 25, 2001
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
--------------------------
TERAFORCE TECHNOLOGY CORPORATION
(Exact name of Registrant as specified in its charter)
--------------------------
DELAWARE
(STATE OR OTHER JURISDICTION OF 76-0471342
INCORPORATION OR ORGANIZATION) (I.R.S. EMPLOYER IDENTIFICATION NUMBER)
TERAFORCE TECHNOLOGY CORPORATION AMENDED AND RESTATED STOCK INCENTIVE PLAN (1)
TERAFORCE TECHNOLOGY CORPORATION 1986 EMPLOYEE STOCK OPTION PLAN (2)
TERAFORCE TECHNOLOGY CORPORATION DIRECTORS' STOCK PLAN (3)
(FULL TITLE OF THE PLANS)
1240 EAST CAMPBELL ROAD
RICHARDSON, TEXAS 75081
(469) 330-4960
(Address, including zip code, and
telephone number, including area code,
of Registrant's principal
executive offices)
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HERMAN M. FRIETSCH
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
TERAFORCE TECHNOLOGY CORPORATION
1240 EAST CAMPBELL ROAD
RICHARDSON, TEXAS 75081
TELEPHONE: (469) 330-4960
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE
NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
WITH A COPY TO:
MICHAEL T. LARKIN
BISK & FITCH, L.L.P.
750 WESLAYAN TOWER
24 GREENWAY PLAZA
HOUSTON, TEXAS 77046
TELEPHONE: (713) 871-9990
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: from time to
time after the effective date of the Registration Statement.
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.[ ]
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CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
AMOUNT TO MAXIMUM MAXIMUM AMOUNT OF
TITLE OF SECURITIES BE REGISTERED OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED (1)(2)(3) PER SHARE (4) OFFERING PRICE FEE (5)
-------------------- ------------- -------------- -------------- ------------
Common Stock,
$.01 par value(6) 10,176,000 $0.36 $3,663,360 $315.00
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(1) This Registration Statement (and any prospectus relating to this
Registration Statement) relates to earlier registration statements
filed for issuances of shares of Common Stock issuable under the
Company's Amended and Restated Stock Incentive Plan, as amended (the
"Stock Incentive Plan"). Of the 9,500,000 shares issuable under the
Company's Stock Incentive Plan, 3,000,000 shares were registered on the
Company's registration statement on Form S-8, filed on April 4, 1996
(Commission File Number 333-3246), 1,000,000 shares were registered on
the Company's registration statement Form S-8, as amended by the
post-effective amendment no. 1 filed on January 2, 1998 (Commission
File Number 333-3246), 1,000,000 shares were registered on the
Company's registration statement on Form S-8 filed on August 13, 1998
(Commission File No. 333-61333), and 1,000,000 shares were registered
on the Company's registration statement on Form S-8 filed on
August 30, 1999 (Commission File No. 333-86097).
(2) This Registration Statement (and any prospectus relating to this
Registration Statement) also relates to an earlier registration
statement filed for issuances of shares of Common Stock issuable under
the Company's 1986 Employee Stock Option Plan. Approximately 140,000
shares remain issuable and were previously registered on the Company's
registration statement Form S-8, originally filed on May 22, 1986
(Commission File No.33-5918), as amended by post effective amendments
filed on December 5, 1989 and December 23, 1997 under the Company's
1986 Employee Stock Option Plan.
(3) This Registration Statement (and any prospectus relating to this
Registration Statement) also relates to an earlier registration
statement filed for issuances of shares of Common Stock under the
Company's Directors' Stock Plan for non-employee directors.
Approximately 536,000 shares remain issuable and were previously
registered on the Company's registration statement on Form S-8 filed on
August 30, 1999 (Commission File No. 333-86099) under the Company's
Directors' Stock Plan.
(4) Estimated solely for the purpose of calculating the registration fee.
Pursuant to Rule 457(h) under the Securities Act of 1933 as amended
(the "Securities Act"), the registration fee has been calculated based
upon the average of the high and low sales prices of the Common Stock
as reported on the Over the Counter Bulletin Board on July 24, 2001.
(5) Pursuant to Rules 429 and 457, under the Securities Act, any prospectus
relating to the Registration Statement also relates to the earlier
registration statements filed with the SEC referenced in Notes (1)
through (3) above for which an aggregate of 7,150,000 shares was
registered and $ 8,911.41 in registration fees were paid, for which
6,676,000 shares are being carried forward to this Registration
Statement. The amount of fees being carried forward from such prior
registration statements is $600.84.
(6) In addition, pursuant to Rule 416(c) under the Securities Act, this
Registration Statement also covers an indeterminate number of shares of
Common Stock that may be issued to prevent dilution from stock splits,
stock dividends or similar transactions.
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INTRODUCTION
On June 2, 2000, the stockholders of the Company, formerly known as
Intelect Communications, Inc., approved at its Annual Meeting of Stockholders a
proposal to amend the Company's Stock Incentive Plan to, among other things,
increase the number of shares available for issuance under the Stock Incentive
Plan by 2,000,000 for an aggregate amount of shares available for issuance under
the Stock Incentive Plan of 8,000,000 shares and to approve the form of an
Amended and Restated Stock Incentive Plan. On June 15, 2001, the stockholders of
the Company approved at its Annual Meeting of Stockholders a proposal to amend
the Company's Amended and Restated Stock Incentive Plan to increase the number
of shares available for issuance under the Amended and Restated Stock Incentive
Plan by an additional 1,500,000 shares for an aggregate amount of shares
available for issuance under the Amended and Restated Stock Incentive Plan of
9,500,000 shares.
Pursuant to Rule 429, the prospectus relating to this registration
statement also relates to earlier registration statements filed for offering
under the Company's Amended and Restated Stock Incentive Plan (Commission File
Nos. 333-3246, 333-61333, and 333-86097), the Company's 1986 Stock Option Plan
(Commission File No. 33-5918), and the Company's Directors' Stock Plan
(Commission File No. 333-86099).
The Stock Incentive Plan, the Company's 1986 Employee Stock Option
Plan, and the Company's Directors' Stock Plan shall herein collectively be
referred to as the "Stock Plans".
PART I
INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I will be
sent or given to employees as specified by Rule 428(b)(1). Such documents are
not being filed with the Securities and Exchange Commission (the "SEC") either
as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424. Such documents and the documents incorporated
by reference in this Registration Statement pursuant to Item 3 of Part II of
this Form, taken together, constitute a prospectus that meets the requirements
of Section 10(a) of the Securities Act.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The following documents filed by the Company with the Securities and
Exchange Commission (the "Commission") are incorporated herein by reference:
1. Annual Report on Form 10-K for the year ended December 31, 2000,
filed on April 2, 2001;
2. Current Reports on Form 8-K filed on January 5, February 1, March
5, April 10, June 19, and July 2, 2001;
3. The Company's Definitive Proxy Statements on Schedule 14A filed on
January 2 and April 30, 2001;
4. The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 2001, filed on May 15, 2001; and
5. The description of the Company's Common Stock contained in the
registration statement on Form S-4 declared effective on October
30, 1997 (Commission File No. 333-39063), and the Form 8-K of the
Company filed on December 5, 1997.
6. All documents the Company files with the SEC pursuant to Section
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), prior to the filing of this
Registration Statement and before the termination of the offering
of common stock registered under this Registration Statement.
To the extent that prior filings listed in numbers 1-5 above conflict
with this Registration Statement, those prior filings are modified by this
Registration Statement and included herein only as modified. To the extent that
statements in this Registration Statement or in the prior filings listed in
numbers 1-5 above conflict with statements in future filings referenced in
number 6 above, this Registration Statement and the prior filings are modified
by the future filings listed in number 6 above.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable
Item 6. Indemnification of Directors and Officers.
Article VII of the Registrant's Amended and Restated Certificate of
Incorporation, as amended, provides that if Delaware law is amended hereafter to
authorize corporate action further eliminating or limiting the personal
liability of directors, then the liability of a director of the Corporation
shall be eliminated or limited to the fullest extent permitted by Delaware law
as so amended. Any amendment, repeal or modification of Article VII of the
Registrant's Amended and Restated Certificate of Incorporation shall not
adversely affect any right or protection of a director of the Corporation
existing hereunder with respect to any act or omission occurring prior to such
amendment, repeal or modification.
Article XI of the Registrant's Restated By-Laws provides that the
Registrant (i) 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, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of the Registrant) by reason of the fact that he or
she is or was a director or an officer of the Registrant, or is or was serving
at the request of the Registrant as a director or an officer of another
corporation, partnership, joint venture, trust or other enterprise, to the full
extent authorized or permitted by law, as now or hereafter in effect, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him or her in connection with
such action, suit or proceeding if he or she acted in good faith and in a manner
he or she reasonably believed to be in or not opposed to the best interests of
the Registrant, and, with respect to any criminal
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action or proceeding, had no reasonable cause to believe his or her conduct was
unlawful, and (ii) may indemnify, if the Board of Directors determines such
indemnification is appropriate, 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 Registrant) by reason of the
fact that he or she is or was an employee or agent of the Registrant, or is or
was serving at the request of the Registrant as an employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, to the full
extent authorized or permitted by law, as now or hereafter in effect, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him or her in connection with
such action, suit or proceeding if he or she acted in good faith and in a manner
he or she reasonably believed to be in or not opposed to the best interests of
the Registrant, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful. The termination of
any action, suit or proceeding by judgment, order, settlement or conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
or she reasonably believed to be in or not opposed to the best interests of the
Registrant, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his or her conduct was unlawful.
Notwithstanding the foregoing, in the case of actions brought by or in the right
of the Registrant, no indemnification will be made with respect to any matter as
to which such person will have been adjudged to be liable to the Registrant
unless and only to the extent that the adjudicating court or the Court of
Chancery determines that such indemnification is proper under the circumstances.
To the extent that (i) a director or an officer of the Registrant or (ii) any
other employee or agent of the Registrant who the Board of Directors has
authorized the Registrant to indemnify, has been successful on the merits or
otherwise in defense of any action, suit or proceeding or in defense of any
claim, issue or matter therein, he or she shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him or her in
connection therewith. Notwithstanding the foregoing, except for proceedings to
enforce rights to indemnification, the Registrant shall not be obligated to
indemnify any person in connection with a proceeding (or part thereof) initiated
by such person unless such proceeding (or part thereof) was authorized in
advance, or unanimously consented to, by the Board of Directors.
Article XI of the Registrant's Restated By-Laws also provides that any
indemnification provided therein (unless ordered by a court) shall be made by
the Registrant 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 such person has met the applicable standard of conduct set
forth in sections 1 and 2 of Article XI of the Registrant's Restated By-Laws.
Such determination shall be made (i) by a majority vote of the directors who are
not parties to such action, suit or proceeding even though less than a quorum,
or (ii) if there are no such directors, or if such directors so direct, by
independent legal counsel in a written opinion, or (iii) by the shareholders.
Expenses (including attorneys fees) incurred by an officer or director
in defending any civil, criminal, administrative or investigative action, suit
or proceeding shall be paid by the Registrant 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 such person is not entitled to be indemnified by
the Registrant or as otherwise authorized by law. 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.
Article XI of the Registrant's Restated By-Laws further provides that
the indemnification and advancement of expenses shall not be deemed exclusive of
any other rights to which those seeking indemnification or advancement of
expenses may be entitled under any by-law, agreement, vote of shareholders or
disinterested directors or otherwise, both as to action in his or her official
capacity and as to action in another capacity while holding such office.
The Company also maintains for its directors and officers insurance
with provides insurance coverage for certain covered occurrences, as well as for
the payment of certain costs and expenses for such covered occurrences.
Section 145 of the Delaware General Corporation Law 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, by reason
of the fact that he or she is or was a director, officer, employee or agent of
the corporation or is or was serving at its request in such capacity in another
corporation or business association against expenses (including attorneys'
fees), judgments, fines and amounts paid
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in settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he or she acted in good faith in a manner her or
she reasonably believed to be in or not opposed to the best interest of the
corporation and, with respect to any criminal action or proceeding, if he or she
had no reasonable cause to believe in his conduct was unlawful; provided that,
in the case of actions brought by or in the right of the corporation, no
indemnification will be made with respect to any matter as to which such person
will have been adjudged to be liable to the corporation unless and only to the
extent that the adjudicating court determines that such indemnification is
proper under the circumstances.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
See Exhibit Index following the signature page which is incorporated
herein by reference.
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 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. 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 percent change in the maximum
aggregate offering price set forth in the "Calculation
of Registration Fee" table in the effective
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 registration statement is on Form S-3, Form S-8, or
Form F-3, 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 SEC by the Registrant 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.
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(b) The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the 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.
(h) 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 SEC 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
Pursuant to the requirements of the Securities Act, 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 Richardson, State of Texas, on July 25, 2001.
TERAFORCE TECHNOLOGY CORPORATION
By: /s/ HERMAN M. FRIETSCH
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HERMAN M. FRIETSCH
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints Herman M. Frietsch and Robert P. Capps
and each of them his true and lawful attorney-in-fact and agent with full power
of substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same with all
exhibits thereto, and all documents in connection therewith, with the Securities
and Exchange Commission (the "SEC"), granting unto said attorney-in-fact and
agent, 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, hereby ratifying and
confirming all that said attorney-in-fact and agent or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Act, this registration statement
has been signed by the following persons in the capacities and on the dates
indicated.
Signature Title Date
--------- ----- ----
/s/ HERMAN M. FRIETSCH Chief Executive Officer and July 25, 2001
------------------------- Director (Principal Executive Officer)
HERMAN M. FRIETSCH
/s/ ROBERT P. CAPPS Executive Vice President and July 25, 2001
------------------------- Chief Financial Officer (Principal Financial
ROBERT P. CAPPS Officer and Principal Accounting Officer)
/s/ ANTON VON LIECHTENSTEIN Director July 25, 2001
---------------------------
ANTON VON LIECHTENSTEIN
/s/ ROBERT E. GARRISON II Director July 25, 2001
-------------------------
ROBERT E. GARRISON II
/s/ DAVID H. YEDWAB Director July 25, 2001
-------------------------
DAVID H. YEDWAB
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EXHIBIT INDEX
Exhibit Description of Exhibit
------- ----------------------
4.1 Amended and Restated Certificate of Incorporation of
the Company, as amended (1)
4.2 Restated By-Laws of the Company(2)
5.1 Opinion of Bisk & Fitch, L.L.P.
23.1 Consent of Grant Thornton LLP
23.2 Consent of Bisk & Fitch, L.L.P. (included in Exhibit
5.1)
99.1 Amended and Restated Stock Incentive Plan of the
Company (3)
99.2 Amendment to the Amended and Restated Stock Incentive
Plan of the Company(4)
99.3 1986 Employee Stock Option Plan of the Company (5)
99.4 Amendment to the 1986 Employee Stock Option Plan of
the Company(6)
99.5 Directors' Stock Plan for Non-Employee Directors of
the Company (7)
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(1) Incorporated herein by reference to that certain Form 10-Q of
the Company filed August 11, 2000.
(2) Incorporated herein by reference to the Form S-4 of the
Company filed on October 30, 1997 (Commission File No.
333-39063).
(3) Incorporated herein by reference to that certain Definitive
Proxy Statement on Schedule 14A of the Company filed May 1,
2000.
(4) Incorporated herein by reference to that certain Definitive
Proxy Statement on Schedule 14A of the Company filed April 30,
2001.
(5) Incorporated herein by reference to the Form S-8 of the
Company filed on May 26, 1986 (Commission File No. 33-5918).
(6) Incorporated herein by reference to the Form S-8 Post
Effective Amendment No. 1 filed on December 5, 1989
(Commission File No. 33-5918).
(7) Incorporated herein by reference to that certain Definitive
Proxy Statement on Schedule 14A of the Company filed on April
30, 1999.