As filed with the Securities and Exchange Commission on May 28, 1998
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ODS NETWORKS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 75-1911917
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
1101 EAST ARAPAHO ROAD, RICHARDSON, TEXAS 75081
(Address of principal executive offices) (Zip Code)
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ESSENTIAL COMMUNICATION CORPORATION
1996 STOCK OPTION PLAN
(Full title of the plan)
G. WARD PAXTON
CHAIRMAN OF THE BOARD OF DIRECTORS, PRESIDENT AND CHIEF EXECUTIVE OFFICER
ODS NETWORKS, INC.
1101 EAST ARAPAHO ROAD, RICHARDSON, TEXAS 75081
(Name and address of agent for service)
(972) 234-6400
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered(1) per Share(2) Price(2) Fee(2)
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Common Stock, 103,063 shares $4.49 $462,752.87 $136.51
$0.01 par value per share
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(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the Essential Communication
Corporation 1996 Stock Option Plan by reason of any stock dividend, stock
split, recapitalization or other similar transaction effected without the
receipt of consideration which results in an increase in the number of the
Registrant's outstanding shares of Common Stock.
(2) Calculated solely for purposes of this offering under Rule 457(h) of the
Securities Act of 1933, as amended (the "Securities Act"), on the basis of
the weighted average exercise price of the outstanding options.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
ODS Networks, Inc. (the "Registrant") hereby incorporates by reference
into this Registration Statement the following documents previously filed
with the Securities and Exchange Commission (the "Commission"):
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31,1997 filed with the Commission on March 9, 1998,
pursuant to Section 13 of the Securities Exchange Act of 1934 (the
"1934 Act").
(b) The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 1998, filed with the Commission on May 7,
1998.
(c) The Registrant's Current Report on Form 8-K dated May 7, 1998, filed
with the Commission on May 21, 1998.
(d) The description of the Common Stock of the Registrant incorporated by
reference in its Registration Statement on Form 8-A (File No. 0-20191)
which was declared effective by the Commission on May 21, 1992,
pursuant to Section 12(g) of the Exchange Act, including any amendment
or report filed for the purpose of updating such description.
All reports and definitive proxy or information statements filed
pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act after the date
of this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby 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. 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 subsequently filed document which also 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.
II-2.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant's Certificate of Incorporation relieves its directors
from liability for monetary damages to the fullest extent permitted by
Delaware law. Section 145 of the Delaware General Corporation Law authorizes
a corporation to indemnify, among others, any officer or director against
certain liabilities under specified circumstances, and to purchase and
maintain insurance on behalf of its officers and directors.
Article Six, Section 3, and Article Ten of the Registrant's Certificate
of Incorporation, as amended, provide, in general, that no director of the
Registrant shall be personally liable for monetary damages for breach of the
director's fiduciary duty as a director, except for liability for (i) any
breach of the director's duty of loyalty to the Registrant or its
stockholders; (ii) an act or omission not in good faith or an act or omission
that involves intentional misconduct or a knowing violation of law; (iii) any
liability under Section 174 of the Delaware General Corporation Law
(pertaining to unlawful payment of a dividend or an unlawful stock purchase
or redemption); or (iv) a transaction from which the director received an
improper personal benefit.
Article Six of the Registrant's Bylaws, provides, in general, that the
Registrant shall indemnify its directors and officers under the circumstances
defined in Section 145 of the Delaware General Corporation Law and gives
authority to the Registrant to purchase insurance with respect to such
indemnification.
The Registrant has entered into separate Indemnity Agreements with each
of its directors and certain of its executive officers (each, an
"Indemnitee"), under which the Registrant will, upon proper request of the
Indemnitee, indemnify any Indemnitee if such Indemnitee is a party to or is
threatened to be made a party to or is otherwise involved in any third party
proceedings or proceedings by or in the right of the Registrant to procure a
judgment in its favor by reason of the fact that the Indemnitee is or was a
director and/or officer of the Registrant or is or was serving at the request
of the Registrant as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
all expenses, judgments, fines and penalties, actually and reasonably
incurred by the Indemnitee in connection with the defense or settlement of
any of such proceedings; provided that (i) in the case of a third party
proceeding, the Indemnitee acted in good faith and in a manner which the
Indemnitee reasonably believed to be in or not opposed to the best interests
of the Registrant, and in the case of a criminal proceeding, in addition,
that the Indemnitee had no reasonable cause to believe that his conduct was
unlawful, (ii) in the case of a proceeding by or in the right of the
Registrant, the Indemnitee acted in good faith and in manner which the
Indemnitee reasonably believed to be in or not opposed to the best interests
of the Registrant and in which the Indemnitee shall not have been adjudged to
be liable to the Registrant for negligence or misconduct in the performance
of the Indemnitee's duty to the Registrant, unless the court in which such
proceeding is brought determines that the Indemnitee is fairly and reasonably
entitled to indemnity for expenses as such court deems proper, and (iii) in
the case of a proceeding by or in the right of the Registrant, the Indemnitee
is only indemnified against expenses and not against any judgment, fines or
penalties. Notwithstanding the above, the Registrant shall indemnify an
Indemnitee for all expenses incurred in connection with any proceedings to
the extent that the Indemnitee has been successful in defense of any such
proceeding, or in defense of any claim, issue or matter therein. The
Registrant will also, upon proper request of the Indemnitee, pay in advance
the expenses incurred by the Indemnitee in any of the above proceedings, if
the Indemnitee shall undertake to repay such amounts to the extent it is
determined that the Indemnitee is not entitled to indemnification.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
Item 8. EXHIBITS
The exhibits listed in the accompanying index to exhibits are filed or
incorporated as part of this Registration Statement.
II-3.
Item 9. UNDERTAKINGS
A. The undersigned Registrant hereby undertakes: (1) to file, during
any period in which offers or sales are being made, a post-effective
amendment to this Registration Statement (i) to include any prospectus
required by Section 10(a)(3) of the Securities Act, (ii) to reflect in the
prospectus any facts or events arising after the effective date of the
Registration Statement (or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a fundamental change in
the information set forth in the Registration Statement, and (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
clauses (1)(i) and (1)(ii) shall 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 Registrant pursuant to Section 13 or Section
15(d) of the 1934 Act that are incorporated by reference into the
Registration Statement; (2) that for the purpose of determining any liability
under the Securities Act each such post-effective amendment shall be deemed
to be a new Registration Statement relating to the securities offered therein
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof; and (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 Essential Communication
Corporation 1996 Stock Option Plan.
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
1934 Act that is incorporated by reference into the Registration Statement
shall be deemed to be a new Registration Statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or controlling persons
of the Registrant pursuant to the indemnity provisions summarized in Item 6
or otherwise, the Registrant 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. 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.
II-4.
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 Richardson, State of Texas, on this
28th day of May, 1998.
ODS NETWORKS, INC.
By /s/ G. Ward Paxton
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G. Ward Paxton
Chairman of the Board of Directors,
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints G. Ward Paxton, as such person's true and
lawful attorney-in-fact and agent, each with full power of substitution, for
such person, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
file same, with all exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, 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 connection
therewith, as fully to all intents and purposes as such person might or could
do in person, hereby ratifying and confirming that said attorney-in-fact and
agent, or his or her substitutes, may do or cause to be done by virtue
thereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons on
behalf of the Registrant and in the capacities and on the dates indicated:
Signatures Title Date
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/s/ G. Ward Paxton Chairman of the Board of Directors, May 28, 1998
- ------------------------ President and Chief Executive Officer
G. Ward Paxton (Principal Executive Officer)
/s/ Timothy W. Kinnear Vice President and May 28, 1998
- ------------------------ Chief Financial Officer
Timothy W. Kinnear (Principal Financial Officer)
/s/ Kandis Tate Thompson Controller-Finance and Accounting May 28, 1998
- ------------------------ (Principal Accounting Officer)
Kandis Tate Thompson
II-5.
Signatures Title Date
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/s/ T. Joe Head Senior Vice President and Director May 28, 1998
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T. Joe Head
/s/ Robert Anderson Director May 28, 1998
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Robert Anderson
/s/ J. Fred Bucy Director May 28, 1998
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J. Fred Bucy
/s/ Donald M. Johnston Director May 28, 1998
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Donald M. Johnston
II-6.
INDEX TO EXHIBITS
Exhibit Number Exhibit
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4.1(1) Certificate of Incorporation and Certificate of Amendment to
the Certificate of Incorporation of the Registrant.
4.2(1) Bylaws of the Registrant.
4.3(2) Specimen Common Stock Certificate.
4.4(3) Essential Communication Corporation 1996 Stock Option Plan.
4.5(3) Form of Stock Option Agreement in connection with the
Essential Communication Corporation 1996 Stock Option Plan.
4.6(3) Form of Stock Option Assumption Agreement.
5.1(3) Opinion of Brobeck, Phleger & Harrison LLP.
23.1(3) Consent of Independent Auditors - Ernst & Young LLP.
23.2(3) Consent of Brobeck, Phleger & Harrison LLP is contained in
Exhibit 5.1.
24.1(3) Power of Attorney. Reference is made to page II-5 of this
Registration Statement.
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(1) Such Certificate of Incorporation and Bylaws were each filed as an Exhibit
in the Registrant's Current Report on Form 8-K dated November 6, 1995 (Date
of Earliest Event Reported: October 31, 1995; Commission File
No. 0-20191), which Exhibit is hereby incorporated herein by reference.
Such Certificate of Amendment to the Registrant's Certificate of
Incorporation was filed as an Exhibit in the Registrant's Current Report
on Form 8-K dated May 7, 1997 (Date of Earliest Event Reported: April 24,
1997; Commission File No. 0-20191), which Exhibit is hereby incorporated
herein by reference.
(2) Filed as an Exhibit in the Registrant's Current Report on Form 8-K dated
May 7, 1997 (Date of Earliest Event Reported: April 24, 1997; Commission
File No. 0-20191), which Exhibit is hereby incorporated herein by
reference.
(3) Filed herewith.