-----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, SIC03dHAcAqjkOLNXeB3qdpPHcgKdgH69yNkttEcPvCEMOP8EPmV2r+VLgkh6RVk o85Nj1luYou7YhJN0EDtNQ== /in/edgar/work/20001101/0000912057-00-046660/0000912057-00-046660.txt : 20001106 0000912057-00-046660.hdr.sgml : 20001106 ACCESSION NUMBER: 0000912057-00-046660 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20001101 EFFECTIVENESS DATE: 20001101 FILER: COMPANY DATA: COMPANY CONFORMED NAME: FORTEL INC /CA/ CENTRAL INDEX KEY: 0000731647 STANDARD INDUSTRIAL CLASSIFICATION: [6794 ] IRS NUMBER: 942566313 STATE OF INCORPORATION: CA FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-49046 FILM NUMBER: 750463 BUSINESS ADDRESS: STREET 1: 46328 LAKEVIEW BLVD CITY: FREMONT STATE: CA ZIP: 94538-6517 BUSINESS PHONE: 5104409600 MAIL ADDRESS: STREET 1: 46328 LAKEVIEW BLVD CITY: FREMONT STATE: CA ZIP: 94538-6517 S-8 1 a2029078zs-8.txt FORM S-8 As filed with the Securities and Exchange Commission on November 1, 2000 Registration No. 333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ----------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ----------------- FORTEL INC. (Exact name of registrant as specified in its charter) CALIFORNIA 94-2566313 (State of Incorporation) (I.R.S. Employer Identification No.) ----------------- 46832 LAKEVIEW BLVD. FREMONT, CALIFORNIA 94538-6543 (Address of principal executive offices) ----------------- 2000 EQUITY INCENTIVE PLAN (Full title of the plans) HENRY C. HARRIS SENIOR VICE PRESIDENT, CHIEF FINANCIAL OFFICER AND CORPORATE SECRETARY FORTEL INC. 46832 LAKEVIEW BLVD. FREMONT, CALIFORNIA 94538-6543 TELEPHONE: (510) 440-9600 (Name, address, including zip code, and telephone number, including area code, of agent for service) (formerly known as Zitel Corporation) ----------------- Copies to: JOHN L. CARDOZA, ESQ. KEVIN D. GONZALEZ, ESQ. COOLEY GODWARD LLP 5 PALO ALTO SQUARE 3000 EL CAMINO REAL PALO ALTO, CALIFORNIA 94306-2155 TELEPHONE: (650) 843-5000 ----------------- CALCULATION OF REGISTRATION FEE
==================================================================================================================================== Proposed Maximum Proposed Maximum Title of Securities Offering Aggregate Amount of to be Registered Amount to be Registered Price per Share (1) Offering Price (1) Registration Fee - ------------------------------------------------------------------------------------------------------------------------------------ Stock Options and Common Stock (no par value) 1,000,000 shares $.984375 - $3.96750 $2,927,700.938 $772.91 ====================================================================================================================================
(1) Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(h). The price per share and aggregate offering price are based on (a) the weighted average exercise price for option granted pursuant to Registrant's 2000 Equity Incentive Plan and (b) the average of high and low prices of Registrant's Common Stock on October 30, 2000 as reported on the Nasdaq SmallCap Market. The chart below details the calculations of the registration fee:
- ----------------------------------- --------------------------------- -------------------------------- ----------------------------- SECURITIES NUMBER OF SHARES OFFERING PRICE PER SHARE AGGREGATE OFFERING PRICE - ----------------------------------- --------------------------------- -------------------------------- ----------------------------- Shares issuable pursuant to 645,500 $3.96750(1)(a) $2,561,021.25 outstanding options under the 2000 Equity Incentive Plan - ----------------------------------- --------------------------------- -------------------------------- ----------------------------- Shares issuable pursuant to the 372,500 $0.984375(1)(b) $366,679.6875 2000 Equity Incentive Plan - ----------------------------------- --------------------------------- -------------------------------- ----------------------------- Proposed Maximum Offering Price $2,927,700.938 - ----------------------------------- --------------------------------- -------------------------------- ----------------------------- Registration Fee $772.91 - ----------------------------------- --------------------------------- -------------------------------- -----------------------------
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE The following documents filed by Fortel Inc. (the "Registrant") with the Securities and Exchange Commission are incorporated by reference into this Registration Statement: (a) The Registrant's latest annual report on Form 10-K filed pursuant to Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"). (b) All other reports filed pursuant to Sections 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the annual reports, the prospectus or the registration statement referred to in (a) above. (c) The description of the Registrant's Common Stock which is contained in a registration statement filed under the Exchange Act, including any amendment or report filed for the purpose of updating such description. All reports and other documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part of this registration statement from the date of the filing of such reports and 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 Under California Corporations Code, the Registrant's Restated Articles of Incorporation, the Registrant's Bylaws and under the indemnification contracts between the Registrant and certain officers and directors, the Registrant has broad powers to indemnify directors and officers against liabilities which they may incur in such capacities, including liability arising under the Securities Act of 1933, as amended (the "Securities Act"). The Registrant has obtained insurance to indemnify its directors and officers from certain liabilities, including liability arising under the Securities Act. The underwriting agreement under which shares of Common Stock were sold in the Registrant's initial public offering provide for indemnification by the underwriters of the Registrant, its directors, and its officers for certain liabilities arising under the Securities Act or otherwise. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers, or persons controlling the Registrant pursuant to the foregoing provisions, the Registrant has been informed 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. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED Not Applicable. ITEM 8. EXHIBITS
EXHIBIT NUMBER 5 Opinion of Cooley Godward LLP. 23.1 Consent of PricewaterhouseCoopers LLP. 23.2 Consent of Cooley Godward LLP is contained in Exhibit 5 to this Registration Statement. 24 Power of Attorney follows signature pages. 99.1 2000 Equity Incentive Plan. (1) 99.2 Stock Option Agreement used in connection with the 2000 Equity Incentive Plan.
(1) Filed as exhibit with the Registrant's Definitive Proxy Statement for the 2000 Annual Meeting of the Shareholders, filed January 28, 2000. 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. (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 ore than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table 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. (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 herein, 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, 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 herein, 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 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 Fremont, State of California, on October 30, 2000. FORTEL INC. By: /s/ HENRY C. HARRIS ----------------------------------------------- Henry C. Harris Senior Vice President, Chief Financial Officer and Corporate Secretary POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Asa W. Lanum and Henry C. Harris, and each or any one of them, 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 any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he or she 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 or her substitutes or substitute, 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 and on the dates indicated.
SIGNATURE TITLE DATE /s/ ASA W. LANUM President, Chief Executive Officer October 30, 2000 - -------------------------------------------- and Director (Principal Executive (ASA W. LANUM) Officer) /s/ HENRY C. HARRIS Senior Vice President, Chief Financial October 30, 2000 - -------------------------------------------- Officer and Corporate Secretary (HENRY C. HARRIS) (Principal Financial Officer) /s/ TSVI GAL - -------------------------------------------- Director October 30, 2000 (TSVI GAL) /s/ JACK H. KING - -------------------------------------------- Director October 30, 2000 (JACK H. KING) /s/ PHILIP J. KOEN - -------------------------------------------- Director October 30, 2000 (PHILIP J. KOEN) /s/ WILLIAM R. LONERGAN - -------------------------------------------- Director October 30, 2000 (WILLIAM R. LONERGAN) /s/ WILLIAM M. REGITZ - -------------------------------------------- Director October 30, 2000 (WILLIAM M. REGITZ) /s/ RAMAN KHANNA - -------------------------------------------- Director October 30, 2000 (RAMAN KHANNA) /s/ EDWARD F. THOMPSON - -------------------------------------------- Director October 30, 2000 (EDWARD F. THOMPSON)
EXHIBIT INDEX
EXHIBIT NUMBER DESCRIPTION 5 Opinion of Cooley Godward LLP. 23.1 Consent of PricewaterhouseCoopers LLP. 23.2 Consent of Cooley Godward LLP is contained in Exhibit 5 to this Registration Statement. 24 Power of Attorney follows signature pages. 99.1 2000 Equity Incentive Plan. (1) 99.2 Stock Option Agreements used in connection with the 2000 Equity Incentive Plan.
(1) Filed as exhibit with the Registrant's Definitive Proxy Statement for the 2000 Annual Meeting of the Shareholders, filed January 28, 2000. EX-5 2 a2029078zex-5.txt EXHIBIT 5 EXHIBIT 5 October 31, 2000 Fortel Inc. 46832 Lakeview Blvd. Fremont, California 94538-6543 Ladies and Gentlemen: You have requested our opinion with respect to certain matters in connection with the filing by Fortel Inc. (the "Company") of a Registration Statement on Form S-8 (the "Registration Statement") with the Securities and Exchange Commission covering the offering of up to 1,000,000 shares of the Company's common stock, no par value (the "Shares"), pursuant to the Company's 2000 Equity Incentive Plan (the "Plan"). In connection with this opinion, we have examined and relied on the Registration Statement and related prospectus, the Company's Articles of Incorporation, as amended and Bylaws, as amended, and the originals or copies certified to our satisfaction of such records, documents, certificates, memoranda and other instruments as in our judgment are necessary or appropriate to enable us to render the opinion expressed below. We have assumed the genuineness and authenticity of all documents submitted to us as originals, the conformity to originals of all documents submitted to us as copies, and the due execution and delivery of all documents, where due execution and delivery are a prerequisite to the effectiveness thereof. On the basis of the foregoing, and in reliance thereon, we are of the opinion that the Shares, when sold and issued in accordance with the Plan, and the Registration Statement and related prospectus, will be validly issued, fully paid, and nonassessable (except as to shares issued pursuant to certain deferred payment arrangements, which will be fully paid and nonassessable when such deferred payments are made in full). We consent to the filing of this opinion as an exhibit to the Registration Statement. Very truly yours, COOLEY GODWARD LLP By: /s/ JOHN L. CARDOZA -------------------------------- John L. Cardoza EX-23.1 3 a2029078zex-23_1.txt EXHIBIT 23.1 EXHIBIT 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated December 13, 1999 relating to the financial statements and financial statement schedule, which appears in FORTEL Inc. (formerly Zitel Corporation)'s Annual Report on Form 10-K/A for the year ended September 30, 1999. /s/ PricewaterhouseCoopers LLP PricewaterhouseCoopers LLP San Jose, California October 30, 2000 EX-99.2 4 a2029078zex-99_2.txt EXHIBIT 99.2 EXHIBIT 99.2 FORTEL INC. 2000 EQUITY INCENTIVE PLAN OPTION AGREEMENT (INCENTIVE STOCK OPTION OR NONSTATUTORY STOCK OPTION) Pursuant to your Notice of Grant of Stock Options ("Grant Notice") and this Option Agreement, Fortel Inc. (the "Company") has granted you an option under its 2000 Equity Incentive Plan (the "Plan") to purchase the number of shares of the Company's Common Stock indicated in your Grant Notice at the exercise price indicated in your Grant Notice. Defined terms not explicitly defined in this Option Agreement but defined in the Plan shall have the same definitions as in the Plan. The details of your option are as follows: I. VESTING. Subject to the limitations contained herein, your option will vest as provided in your Grant Notice, provided that vesting will cease upon the termination of your Continuous Service. II. NUMBER OF SHARES AND EXERCISE PRICE. The number of shares of Common Stock subject to your option and your exercise price per share referenced in your Grant Notice may be adjusted from time to time for capitalization adjustments, as provided in Section 11(a) of the Plan. III. METHOD OF PAYMENT. Payment of the exercise price is due in full upon exercise of all or any part of your option. You may elect to make payment of the exercise price either (1) in cash or by check or (2) in the Company's sole discretion at the time your option is exercised and provided that at the time of exercise the Common Stock is publicly traded and quoted regularly in THE WALL STREET JOURNAL, pursuant to a program developed under Regulation T (or similar rule or regulations) as promulgated by the Federal Reserve Board that, prior to the issuance of Common Stock, results in either the receipt of cash (or check) by the Company or the receipt of your irrevocable instructions to pay the aggregate exercise price to the Company from the sales proceeds of shares subject your option. IV. WHOLE SHARES. You may exercise your option only for whole shares of Common Stock. V. SECURITIES LAW COMPLIANCE. Notwithstanding anything to the contrary contained herein, you may not exercise your option unless the shares of Common Stock issuable upon such exercise are then registered under the Securities Act or, if such shares of Common Stock are not then so registered, the Company has determined that such exercise and issuance would be exempt from the registration requirements of the Securities Act. The exercise of your option must also comply with other applicable laws and regulations governing your option, and you may not exercise your option if the Company determines that such exercise would not be in material compliance with such laws and regulations. VI. TERM. You may not exercise your option before the commencement of its term or after its term expires. The term of your option commences on the effective date of the grant of your option (the "Date of Grant") and expires upon the EARLIEST of the following: (a) three (3) months after the termination of your Continuous Service for any reason other than your Disability or death, provided that if during any part of such three- (3-) month period your option is not exercisable solely because of the condition set forth in the preceding paragraph relating to "Securities Law Compliance," your option shall not expire until the earlier of the date of expiration specified in your option (the "Expiration Date") or until it shall have been exercisable for an aggregate period of three (3) months after the termination of your Continuous Service; (b) twelve (12) months after the termination of your Continuous Service due to your Disability; (c) eighteen (18) months after your death if you die either during your Continuous Service or within three (3) months after your Continuous Service terminates; (d) the Expiration Date; or (e) the day before the tenth (10th) anniversary of the Date of Grant. If your option is an incentive stock option, note that, to obtain the federal income tax advantages associated with an "incentive stock option," the Code requires that at all times beginning on the date of grant of your option and ending on the day three (3) months before the date of your option's exercise, you must be an employee of the Company or an Affiliate, except in the event of your death or Disability. The Company has provided for extended exercisability of your option under certain circumstances for your benefit but cannot guarantee that your option will necessarily be treated as an "incentive stock option" if you continue to provide services to the Company or an Affiliate as a Consultant or Director after your employment terminates or if you otherwise exercise your option more than three (3) months after the date your employment terminates. VII. EXERCISE. (f) You may exercise the vested portion of your option during its term by delivering a Notice of Exercise (in a form designated by the Company) together with the exercise price to the Secretary of the Company, or to such other person as the Company may designate, during regular business hours, together with such additional documents as the Company may then require. (g) By exercising your option you agree that, as a condition to any exercise of your option, the Company may require you to enter into an arrangement providing for the payment by you to the Company of any tax withholding obligation of the Company arising by reason of (1) the exercise of your option, (2) the lapse of any substantial risk of forfeiture to which the shares of Common Stock are subject at the time of exercise, or (3) the disposition of shares of Common Stock acquired upon such exercise. (h) If your option is an incentive stock option, by exercising your option you agree that you will notify the Company in writing within fifteen (15) days after the date of any disposition of any of the shares of the Common Stock issued upon exercise of your option that occurs within two (2) years after the date of your option grant or within one (1) year after such shares of Common Stock are transferred upon exercise of your option. VIII. TRANSFERABILITY. Your option is not transferable, except by will or by the laws of descent and distribution, and is exercisable during your life only by you. Notwithstanding the foregoing, by delivering written notice to the Company, in a form satisfactory to the Company, you may designate a third party who, in the event of your death, shall thereafter be entitled to exercise your option. IX. RIGHT OF REPURCHASE. To the extent provided in the Company's bylaws as amended from time to time, the Company shall have the right to repurchase all or any part of the shares of Common Stock you acquire pursuant to the exercise of your option. X. OPTION NOT A SERVICE CONTRACT. Your option is not an employment or service contract, and nothing in your option shall be deemed to create in any way whatsoever any obligation on your part to continue in the employ of the Company or an Affiliate, or of the Company or an Affiliate to continue your employment. In addition, nothing in your option shall obligate the Company or an Affiliate, their respective shareholders, Boards of Directors, Officers or Employees to continue any relationship that you might have as a Director or Consultant for the Company or an Affiliate. XI. WITHHOLDING OBLIGATIONS. (i) At the time you exercise your option, in whole or in part, or at any time thereafter as requested by the Company, you hereby authorize withholding from payroll and any other amounts payable to you, and otherwise agree to make adequate provision for (including by means of a "cashless exercise" pursuant to a program developed under Regulation T (or similar rule or regulation) as promulgated by the Federal Reserve Board to the extent permitted by the Company), any sums required to satisfy the federal, state, local and foreign tax withholding obligations of the Company or an Affiliate, if any, which arise in connection with your option. (j) Upon your request and subject to approval by the Company, in its sole discretion, and compliance with any applicable conditions or restrictions of law, the Company may withhold from fully vested shares of Common Stock otherwise issuable to you upon the exercise of your option a number of whole shares of Common Stock having a Fair Market Value, determined by the Company as of the date of exercise, not in excess of the minimum amount of tax required to be withheld by law. If the date of determination of any tax withholding obligation is deferred to a date later than the date of exercise of your option, share withholding pursuant to the preceding sentence shall not be permitted unless you make a proper and timely election under Section 83(b) of the Code, covering the aggregate number of shares of Common Stock acquired upon such exercise with respect to which such determination is otherwise deferred, to accelerate the determination of such tax withholding obligation to the date of exercise of your option. Notwithstanding the filing of such election, shares of Common Stock shall be withheld solely from fully vested shares of Common Stock determined as of the date of exercise of your option that are otherwise issuable to you upon such exercise. Any adverse consequences to you arising in connection with such share withholding procedure shall be your sole responsibility. (k) You may not exercise your option unless the tax withholding obligations of the Company and/or any Affiliate are satisfied. Accordingly, you may not be able to exercise your option when desired even though your option is vested, and the Company shall have no obligation to issue a certificate for such shares of Common Stock. XII. NOTICES. Any notices provided for in your option or the Plan shall be given in writing and shall be deemed effectively given upon receipt or, in the case of notices delivered by mail by the Company to you, five (5) days after deposit in the United States mail, postage prepaid, addressed to you at the last address you provided to the Company. XIII. GOVERNING PLAN DOCUMENT. Your option is subject to all the provisions of the Plan, the provisions of which are hereby made a part of your option, and is further subject to all interpretations, amendments, rules and regulations which may from time to time be promulgated and adopted pursuant to the Plan. In the event of any conflict between the provisions of your option and those of the Plan, the provisions of the Plan shall control. -----END PRIVACY-ENHANCED MESSAGE-----