-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, FaIQPZ6oCqpJY7Q421guPv+0y6PH6guMoPtFz5ke3tdMk7a6zmcGzpzMaA5PsCaN k+v9sbsS7KoJd7fZEp28Kg== 0000950134-99-004595.txt : 19990520 0000950134-99-004595.hdr.sgml : 19990520 ACCESSION NUMBER: 0000950134-99-004595 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19990519 EFFECTIVENESS DATE: 19990519 FILER: COMPANY DATA: COMPANY CONFORMED NAME: OPTEL INC CENTRAL INDEX KEY: 0001036712 STANDARD INDUSTRIAL CLASSIFICATION: CABLE & OTHER PAY TELEVISION SERVICES [4841] IRS NUMBER: 954495524 STATE OF INCORPORATION: DE FISCAL YEAR END: 0831 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-78791 FILM NUMBER: 99630559 BUSINESS ADDRESS: STREET 1: 1111 W MOCKINGBIRD LANE STREET 2: SUITE 1000 CITY: DALLAS STATE: TX ZIP: 75247 BUSINESS PHONE: 2146343800 MAIL ADDRESS: STREET 1: 1111 W. MOCKINGBIRD LN. STREET 2: SUITE 1000 CITY: DALLAS STATE: TX ZIP: 75247 S-8 1 FORM S-8 1 Registration Statement No.______________ SECURITY AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 OpTel Inc. ------------------------------------------------------------------- (Exact name of registrant as specified in its charter) Delaware 95-4495524 - -------------------------------- --------------------- (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 1111 W. Mockingbird Lane Dallas, Texas 75247 ------------------------------------------------------------------- (Address, including zip code, of principal executive offices) OpTel, Inc. Restated Incentive Stock Plan ------------------------------------------------------------------- (Full title of the plan) Louis Brunel, President and Chief Executive Officer OpTel, Inc. 1111 W. Mockingbird Lane Dallas, Texas 75247 ------------------------------------------------------------------- (Name and address of agent for service) (214) 634-3800 ------------------------------------------------------------------- (Telephone number, including area code, of agent for service) Copies to: Ralph J. Sutcliffe, Esq. Michael E. Katzenstein, Esq. Kronish, Lieb, Weiner & Hellman LLP OpTel, Inc. 1114 Avenue of the Americas 1111 W. Mockingbird Lane New York, New York 10036-7798 Dallas, Texas 75247 (212) 479-6170 (214) 634-3800 1 2 CALCULATION OF REGISTRATION FEE
===================================================================================================== Title of Proposed Proposed securities Amount to maximum maximum Amount of to be be offering aggregate registration offered registered price per share offering price (1) fee - ----------------------------------------------------------------------------------------------------- Class A Common Stock, par value $.01 per share 4,062,635 $17.00 $69,064,795 19,200.07 =====================================================================================================
(1) Estimated solely for the purpose of calculating the registration fee. Based on the estimated initial offering price of the Common Stock to the public pursuant to the Company's registration statement under the Securities Act of 1933, as amended (the "Securities Act") in accordance with rule 457(h) under the Securities Act. 2 3 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference The following documents filed by OpTel, Inc. ("OpTel" or the "Company") with the Securities and Exchange Commission (the "SEC") are incorporated by reference herein: (a) The Company's Annual Report on Form 10-K for the fiscal year ended August 31, 1998. (b) The Company's quarterly reports on Form 10-Q for the quarter ended November 30, 1998 and February 28, 1999. (c) The Company's current reports on Form 8-K filed with the SEC on March 25, 1999, January 20, 1999 and January 14, 1999. (d) The description of the Company's Common Stock which is contained in the Company's Registration Statement on Form 8-A under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the "Exchange Act"). All documents subsequently filed by the Company with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all securities registered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing of such documents. Item 4. Description of Securities Not applicable. Item 5. Interests of Named Experts and Counsel Not applicable. Item 6. Indemnification of Directors and Officers The Company's Certificate of Incorporation provides that the Company shall, to the fullest extent permitted by the Delaware General Corporation Law (the "DGCL"), indemnify all persons who 3 4 it may indemnify pursuant thereto (i.e., directors and officers) and shall advance expenses incurred in defending any proceeding for which such right to indemnification is applicable, provided that, if the DGCL so requires, the indemnitee provides the Company with an undertaking to repay all amounts advanced if it is determined by a final judicial decision that such person is not entitled to indemnification pursuant to this provision. The Company's Certificate of Incorporation also contains a provision eliminating the personal liability of the Company's directors for monetary damages for breach of any fiduciary duty. By virtue of this provision, under the DGCL, a director of the Company will not be personally liable for monetary damages for breach of his fiduciary duty as a director, except for liability for (i) any breach of the director's duty of loyalty to the Company or its stockholders, (ii) acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) dividends or stock purchases or redemptions that are unlawful under the DGCL and (iv) any transaction from which a director derives an improper personal benefit. However, this provision of the Company's Certificate of Incorporation pertains only to breaches of duty by directors as directors and not in any other corporate capacity such as officers, and limits liability only for breaches of fiduciary duties under the DGCL and not for violations of other laws, such as the federal securities laws. As a result of the inclusion of such provision, stockholders may be unable to recover monetary damages against directors for actions taken by them that constitute negligence or gross negligence or that are in violation of their fiduciary duties, although it may be possible to obtain injunctive or other equitable relief with respect to such actions. The inclusion of this provision in the Company's Certificate of Incorporation may have the effect of reducing the likelihood of derivative litigation against directors, and may discourage or deter stockholders or management from bringing a lawsuit against directors for breach of their duty of care, even though such an action, if successful, might otherwise have benefitted the Company and its stockholders. The directors and officers of the Company are insured (subject to certain exceptions and deductions) against liabilities that they may incur in their capacity as such, including liabilities under the Securities Act, under a liability insurance policy carried by GVL. Such policy provides coverage in an aggregate amount of $50 million (subject to a $250,000 retention) and expires in October 2001. The Company expects that this insurance will be renewed in the ordinary course. Item 7. Exemption From Registration Claimed Not applicable. 4 5 Item 8. Exhibits 4.1 Form of Amended and Restated Certificate of Incorporation of OpTel (to be effective upon consummation of the public offering), filed as Exhibit 3.1 to Amendment No. 7 to the Company's registration statement on Form S-1 filed on May 19, 1999, and incorporated herein by reference. 4.2 Form of Amended and Restated Bylaws of OpTel, filed as Exhibit 3.2 to Amendment No. 7 to the Company's registration statement on Form S-1 filed on May 19, 1999, and incorporated herein by reference. 5.1 Opinion of Kronish, Lieb, Weiner & Hellman LLP. 23.1 Consent of Kronish, Lieb, Weiner & Hellman LLP, included in Exhibit 5.1. 23.2 Consent of Deloitte & Touche LLP. 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: (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. 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 SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; 5 6 (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 (i) and (ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the SEC by the Company pursuant to Section 13 or 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 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 Company's annual report pursuant to Section 13(a) or 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. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of the 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 Company of expenses incurred or paid by a director, officer or controlling person of the Company 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 Company 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. 6 7 SIGNATURES Pursuant to the requirements of the Securities Act, the Company certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on this 18th day of May. 1999. OpTel, Inc. By: /s/ LOUIS BRUNEL --------------------------------- Louis Brunel President and Chief Executive Officer 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 dates indicated below. Principal Executive Officer: /s/ LOUIS BRUNEL - -------------------------------- President and Chief May 18, 1999 Louis Brunel Executive Officer Principal Financial and Accounting Officers: /s/ BERTRAND BLANCHETTE May 18, 1999 - -------------------------------- Chief Financial Officer Bertrand Blanchette /s/ CRAIG MILACEK May 18, 1999 - -------------------------------- Controller Craig Milacek
7 8 Directors: /s/ ANDRE CHAGNON - -------------------------------- Chairman of the Board May 18, 1999 Andre Chagnon and Director /s/ ALAIN MICHEL May 18, 1999 - -------------------------------- Vice Chairman of the Board Alain Michel and Director /s/ LOUIS BRUNEL - -------------------------------- Director May 18, 1999 Louis Brunel /s/ CHRISTIAN CHAGNON - -------------------------------- Director May 18, 1999 Christian Chagnon /s/ WILLIAM O. HUNT - -------------------------------- Director May 18, 1999 William O. Hunt /s/ R. DOUGLAS LEONHARD - -------------------------------- Director May 18, 1999 R. Douglas Leonhard /s/ LYNN MCDONALD - -------------------------------- Director May 18, 1999 Lynn McDonald /s/ JAYNE L. STOWELL - -------------------------------- Director May 18, 1999 Jayne L. Stowell /s/ FREDERICK W. BENN - -------------------------------- Director May 18, 1999 Frederick W. Benn
8 9 EXHIBIT INDEX
Exhibit Description - ------- ----------- 4.1 Form of Amended and Restated Certificate of Incorporation of OpTel (to be effective upon consummation of the public offering), filed as Exhibit 3.1 to Amendment No. 7 to the Company's registration statement on Form S-1 filed on May 19, 1999, and incorporated herein by reference. 4.2 Form of Amended and Restated Bylaws of OpTel, filed as Exhibit 3.2 to Amendment No. 7 to the Company's registration statement on Form S-1 filed on May 19, 1999, and incorporated herein by reference. 5.1 Opinion of Kronish, Lieb, Weiner & Hellman LLP. 23.1 Consent of Kronish, Lieb, Weiner & Hellman LLP, included in Exhibit 5.1. 23.2 Consent of Deloitte & Touche LLP.
EX-5.1 2 OPINION/CONSENT OF KRONISH, LIEB, WEINER & HELLMAN 1 EXHIBIT 5.1 May 19, 1999 OpTel, Inc. 1111 West Mockingbird Lane Dallas, Texas 75247 Ladies and Gentlemen: We have acted as counsel to OpTel, Inc., a Delaware corporation (the "Company"), in connection with the registration pursuant to a Registration Statement on Form S-8 (the "Registration Statement") by the Company under the Securities Act of 1933, as amended (the "Act"), of 4,062,635 shares of the Company's common stock, par value $.01 per share (the "Common Stock"), to be offered for sale by the Company from time to time under the Company's Restated Incentive Stock Plan adopted on June 4, 1998 and as amended in January, 1999 and May, 1999 (the "Plan"). We have examined the Company's Amended and Restated Certificate of Incorporation and Amended and Restated By-laws and minute books and such other documents and records as we have deemed necessary and relevant as a basis for our opinions hereinafter set forth. For the purposes of this letter, we have assumed the genuineness of all signatures and the conformity to original documents of all instruments furnished to us for review or examination as copies. Based on the foregoing and having regard to such legal considerations as we have deemed relevant, it is our opinion that: 1. The Company is a corporation duly organized under the laws of the State of Delaware. 2. The Common Stock covered by the Registration Statement has been validly authorized. 2 OpTel, Inc. May 19, 1999 Page 2 3. When (i) the Common Stock has been duly registered under the Act, (ii) certificates for the Common Stock have been duly delivered, and (iii) the Company has received the consideration to be received by it pursuant to and upon exercise of the related awards issued under the Plan, the Common Stock will be validly issued, fully paid and non-assessable by the Company, with no personal liability attaching to ownership thereof. We hereby consent to the inclusion of this opinion in the Registration Statement and to the references to this firm contained therein. Very truly yours, /s/ KRONISH LIEB WEINER & HELLMAN LLP EX-23.2 3 CONSENT OF DELOITTE & TOUCHE LLP 1 EXHIBIT 23.2 INDEPENDENT AUDITORS' CONSENT We consent to incorporation by reference in this Registration Statement of OpTel, Inc. on Form S-8 of our reports dated October 6, 1998, appearing in the Annual Report on Form 10-K of OpTel, Inc. for the year ended August 31, 1998. /s/ DELOITTE & TOUCHE LLP May 18, 1999 Dallas, Texas -----END PRIVACY-ENHANCED MESSAGE-----