-----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, TNSfmSiIF54i79J3kU8yMSh8LY7vMSfGVXuEpE+u9ZVjhV0dvt5I/ZLmlbmldH34 mbDJH/uuN5DPT5OH1qO1YQ== 0001047469-98-028305.txt : 19980727 0001047469-98-028305.hdr.sgml : 19980727 ACCESSION NUMBER: 0001047469-98-028305 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 19980724 EFFECTIVENESS DATE: 19980724 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: PRECEPT BUSINESS SERVICES INC CENTRAL INDEX KEY: 0001051285 STANDARD INDUSTRIAL CLASSIFICATION: WHOLESALE-PAPER AND PAPER PRODUCTS [5110] IRS NUMBER: 752487353 STATE OF INCORPORATION: TX FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-59815 FILM NUMBER: 98671101 BUSINESS ADDRESS: STREET 1: 1909 WOODALL ROGERS FREEWAY STREET 2: STE 500 CITY: DALLAS STATE: TX ZIP: 75201 BUSINESS PHONE: 2147546000 MAIL ADDRESS: STREET 1: PO BOX 219008 CITY: DALLAS STATE: TX ZIP: 75201 S-8 1 FORM S-8 As filed with the Securities and Exchange Commission on July 24, 1998. Registration No. 333-_______ - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 --------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 --------------- PRECEPT BUSINESS SERVICES, INC. (Exact name of registrant as specified in its charter) Texas 75-2487353 (State or other jurisdiction of (I.R.S. employer identification number) incorporation or organization) 1909 Woodall Rodgers Freeway, Suite 500 Dallas, Texas 75201 (Address of principal executive offices) --------------- PRECEPT BUSINESS SERVICES, INC. 1998 STOCK INCENTIVE PLAN and PRECEPT BUSINESS SERVICES, INC. 1996 STOCK OPTION PLAN (Full title of the Plan) --------------- DAVID L. NEELY 1909 Woodall Rodgers Freeway, Suite 500 Dallas, Texas 75201 (Name and address of agent for service of agent for service) (214) 754-6600 (Telephone number, including area code, of agent for service) ---------------- COPY TO: CHARLES D. MAGUIRE, JR. Jackson & Walker, L.L.P. 901 Main Street Suite 6000 Dallas, Texas 75202 CALCULATION OF REGISTRATION FEE - -------------------------------------------------------------------------------------------------------- - -------------------------------------------------------------------------------------------------------- Proposed Proposed Title of Amount Maximum Maximum Amount of Securities to be Offering Price Aggregate Registration to be Registered Registered (1) Per Share Offering Price Fee - -------------------------------------------------------------------------------------------------------- Class A Common Stock, $.01 par value 6,324,901 shares $2.703125 $17,096,998.02 $5,043.61 - -------------------------------------------------------------------------------------------------------- - --------------------------------------------------------------------------------------------------------
(1) Estimated solely for the purpose of calculating the registration fee. Pursuant to Rule 457(c) and 457(h), registration fee is based on a price of $2.703125 per share, which price is an average of the high and low prices of the Class A Common Stock on the National Association of Securities Dealers Automated Quotation SmallCap Market on July 20, 1998. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents, which have been filed with the Commission by Precept Business Services, Inc. (the "Company"), are incorporated herein by reference and made a part hereof: (i) Quarterly Report of the Company on Form 10-Q for the quarterly period ended December 31, 1997; and (iii) Quarterly Report of the Company on Form 10-Q for the quarterly period ended March 31, 1998; and (iv) All other reports filed with the Commission pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), since the effectiveness of the Company's Registration Statement on Form S-4 (File No. 333-42689) and Registration Statement on Form 8-A (File No. 000-23735); and (v) Description of the Class A Common Stock contained in the Company's Registration Statement on Form S-4 (No. 333-42689) and Registration Statement on Form 8-A (No. 000-23735), effective as of February 9, 1998. All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all of the Class A Common Stock offered hereunder has been sold or which deregisters all of such Class A Common Stock then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. 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 is a Texas corporation and the Texas Business Corporation Act ("TBCA") empowers a corporation organized thereunder to indemnify its directors and officers or former directors and officers and to purchase insurance with respect to liability arising out of their capacity or status as directors and officers. Reference is made to Article XIV of the Company's Articles of Incorporation and Section 33 of the Company's Bylaws, which provide for indemnification of officers and directors to the fullest extent permitted by the TBCA. Additionally, Article XIII of the Company's Articles of Incorporation limits the liability of directors of the Company to the Company or its stockholders (in their capacity as directors but not in their capacity as officers), providing that the directors of the Company will not be personally liable for monetary damages for breach of a director's fiduciary duty as a director, except for liability (i) for any breach of the director's duty of loyalty to the Company or its stockholders, (ii) for an act or omission not in good faith or which involves intentional misconduct or a knowing violation of law, (iii) for a transaction from which a director received an improper benefit whether or not the benefit resulted from an action taken within the scope of the director's office, (iv) for an act or omission for which the liability of such director is expressly provided by statute, or (v) for an act related to an unlawful stock repurchase or payment of a dividend. The Company has entered into certain agreements (the "Indemnification Agreements") with each of its directors and executive officers designed to give effect to the foregoing provisions of the Articles of Incorporation and to provide certain additional protections against the possibility of liability. Pursuant to the Indemnification Agreements, the Company will, to the extent permitted under applicable law, indemnify such persons against all expenses, judgments, fines and penalties incurred in connection with the defense or settlement of any actions brought against them by reason of the fact that they are or were directors or officers of the Company or assumed certain responsibilities at the direction of the Company. The effect of the above-described provisions of the Articles of Incorporation and the Indemnification Agreements will be to eliminate the rights of the Company and its shareholders (through shareholders' derivative suits on behalf of the Company) to recover monetary damages against a director or executive officer for breach of fiduciary duty as a director or executive officer (including breaches resulting from negligence or gross negligence). The Company has obtained a directors' and officers' liability insurance policy to insure its directors and officers against losses resulting from wrongful acts committed by them in their capacities as directors and officers of the Company, including liabilities arising under the Securities Act of 1933, as amended (the "Securities Act"). Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling the Company pursuant to the foregoing provisions, the Company has been informed that in the opinion of the Commission, such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. ITEM 8. EXHIBITS. The following is a list of all exhibits filed as a part of this Registration Statement on Form S-8, including those incorporated herein by reference. Exhibit Number Description of Exhibit - -------- ---------------------- 5 Opinion of Jackson Walker L.L.P.(1) 23 Consent of Jackson Walker L.L.P. (included in the opinion of Jackson Walker L.L.P. filed as Exhibit 5).(1) 24 Power of Attorney (contained in signature page).(1) 99.1 Precept Business Services, Inc. 1996 Stock Option Plan (2) 99.2 Precept Business Services, Inc. 1998 Stock Incentive Plan.(2)
- ------------ (1) Filed herewith. (2) Previously filed as an exhibit to the Registrant's Registration Statement on Form S-4, file No. 333-42689 dated as of February 9, 1998, and 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 Securities Act of 1933, as amended; (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; (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 information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Company 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 of 1933, as amended, 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. (b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, as amended, 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. (c) Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended, 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. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Dallas, State of Texas on the 24th day of July, 1998. PRECEPT BUSINESS SERVICES, INC. By: /s/ David L. Neely -------------------------------------------- David L. Neely, Chief Executive Officer and Chairman of the Board (Principal Executive Officer) POWER OF ATTORNEY Each person whose signature appears below authorizes David L. Neely and Layne A. Deutscher, and each of them, each of whom may act without joinder of the other, to execute in the name of each such person who is then an officer or director of the Registrant, and to file any amendments to this Registration Statement necessary or advisable to enable the Registrant to comply with the Securities Act of 1933, as amended, and any rules, regulations and requirements of the Commission, in respect thereof, in connection with the registration of the securities which are the subject of this Registration Statement, which amendments may make such changes in such Registration Statement as such attorney may deem appropriate. Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated. Signature Title Date - --------- ----- ---- /s/ Darwin Deason Director and Chairman of the July 24, 1998 - -------------------------- Executive Committee of the Board Darwin Deason /s/ David L. Neely Chief Executive Officer and July 24, 1998 - -------------------------- Chairman of the Board David L. Neely (Principal Executive Officer) /s/ Douglas R. Deason President and Chief Operating July 24, 1998 - -------------------------- Officer and Director Douglas R. Deason /s/ Layne A. Deutscher Senior Vice President, General July 24, 1998 - -------------------------- Counsel and Director Layne A. Deutscher - -------------------------- Director Sheldon I. Stein - -------------------------- Director J. Livingston Kosberg - -------------------------- Director Robert I. Blackman
INDEX TO EXHIBITS Exhibit No. Exhibit - ----------- ------- 5 Opinion of Jackson Walker L.L.P.(1) 23 Consent of Jackson Walker L.L.P. (included in the opinion of Jackson Walker L.L.P. filed as Exhibit 5).(1) 24 Power of Attorney (contained in signature page).(1) 99.1 Precept Business Services, Inc. 1996 Stock Option Plan (2) 99.2 Precept Business Services, Inc. 1998 Stock Incentive Plan.(2) - ---------- (1) Filed herewith. (2) Previously filed as an exhibit to the Registrant's Registration Statement on Form S-4, File No. 333-42689 dated as of February 9, 1998 and incorporated herein by reference. EX-5 2 EXHIBIT 5 EXHIBIT 5 OPINION OF JACKSON WALKER L.L.P. July 24, 1998 Precept Business Services, Inc. 1909 Woodall Rodgers Freeway, Suite 500 Dallas, Texas 75201 Re: Registration Statement on Form S-8 of Precept Business Services, Inc. Gentlemen: We are acting as counsel for Precept Business Services, Inc., a Texas corporation (the "Company"), in connection with the registration under the Securities Act of 1933, as amended (the "Act"), of the offering and sale of up to 6,324,901 shares of the Company's Class A Common Stock, par value $0.01 per share (the "Shares"), in respect of the Precept Business Services, Inc. 1998 Stock Incentive Plan and the Precept Business Services, Inc. 1996 Stock Option Plan (collectively, the "Plans"). A Registration Statement on Form S-8 covering the offering and sale of the Shares (the "Registration Statement") is expected to be filed with the Securities and Exchange Commission (the "Commission") on or about the date hereof. In reaching the conclusions expressed in this opinion, we have examined and relied upon the originals or certified copies of all documents, certificates and instruments as we have deemed necessary to the opinions expressed herein, including the Company's Articles of Incorporation, as amended, the Bylaws of the Company and copies of the Plans. In making the foregoing examinations, we have assumed the genuineness of all signatures on original documents, the authenticity of all documents submitted to us as originals and the conformity to original documents of all copies submitted to us. Based solely upon the foregoing, subject to the comments hereinafter stated, and limited in all respects to the laws of the State of Texas and the federal laws of the United States of America, it is our opinion that the Shares, when sold by the Company in respect of the Plans, will be validly issued, fully paid and nonassessable. We hereby consent to the use of this opinion as Exhibit 5 to the Registration Statement. In giving this consent, we do not admit that we come within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission promulgated thereunder. Very truly yours, /s/ Jackson Walker L.L.P. -----END PRIVACY-ENHANCED MESSAGE-----