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As filed with the Securities and Exchange Commission on April 3, 1997
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
WEST TELESERVICES CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 47-0777362
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
9910 Maple Street
Omaha, Nebraska 68134
(402) 571-7700
(Address, including zip code, and telephone number, including area code,
of principal executive offices)
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West TeleServices Corporation 1996 Stock Incentive Plan
(Full title of the plan)
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Troy L. Eaden
Chief Executive Officer
West TeleServices Corporation
9910 Maple Street
Omaha, Nebraska 68134
(402) 571-7700
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
Copies to
John S. D'Alimonte
Willkie Farr & Gallagher
One Citicorp Center
153 East 53rd Street
New York, NY 10022
(212) 821-8000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ----------------------- ---------------------- ------------------------- --------------------- ----------------------
Title of securities Amount to be Proposed maximum Proposed maximum Amount of
to be registered registered offering price per aggregate offering registration fee
share (1) price (1)
- ----------------------- ---------------------- ------------------------- --------------------- ----------------------
<S> <C> <C> <C> <C>
Common Stock, $.01
par value per share 9,499,500 $12.8125 $121,712,343.75 $36,883
- ----------------------- ---------------------- ------------------------- --------------------- ----------------------
<FN>
(1) Estimated solely for calculating the amount of the registration fee, pursuant to Rule 457(h)
under the Securities Act of 1933 (the "Securities Act").
</FN>
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</TABLE>
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PART II.
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, filed with the Securities and Exchange
Commission (the "Commission") by West TeleServices Corporation, a Delaware
corporation (the "Company" or the "Registrant"), are incorporated herein by
reference:
(a) The Company's latest Prospectus, dated November 26, 1996,
filed pursuant to Rule 424(b) under the Securities Act of 1933, as
amended (the "Securities Act"), which was part of the Company's
Registration Statement on Form S-1 (File No. 333-13991) (the "Form
S-1").
(b) The description of the common stock of the Company, par
value $.01 per share (the "Common Stock"), incorporated by reference
into the Company's Registration Statement on Form 8-A (File No.
000-21771) filed on November 21, 1996 pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
(c) The Company's Annual Report on Form 10-K filed on
March 31, 1997 pursuant to the Exchange Act.
In addition, all documents filed by the Company with the Commission
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 the securities offered hereby
have been sold or which deregisters all securities then remaining unsold shall
be deemed to be incorporated herein by reference and to be a part hereof from
the date of the filing of such documents with the Commission.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
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Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law (the "DGCL")
empowers a Delaware corporation to 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 such corporation) by reason of the
fact that such person is or was a director, officer, employee or agent of such
corporation, or is or was serving at the request of such corporation as a
director, officer, employee or agent of another corporation or enterprise. A
corporation may indemnify such person against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action, suit or proceeding if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful. A corporation may, in advance of the final disposition of any
civil, criminal, administrative or investigative action, suit or proceeding, pay
the expenses (including attorneys' fees) incurred by any officer or director in
defending such action, provided that the director or officer undertakes to repay
such amount if it shall ultimately be determined that he is not entitled to be
indemnified by the corporation.
A Delaware corporation may indemnify officers and directors in an
action by or in the right of the corporation to procure a judgment in its favor
under the same conditions, except that no indemnification is permitted without
judicial approval if the officer or director is adjudged to be liable to the
corporation. Where an officer or director is successful on the merits or
otherwise in the defense of any action referred to above, the corporation must
indemnify him against the expenses (including attorneys' fees) which he actually
and reasonably incurred in connection therewith. The indemnification provided is
not deemed to be exclusive of any other rights to which an officer or director
may be entitled under any corporation's by-laws, agreements, vote or otherwise.
The Registrant's Restated Certificate of Incorporation provides that
the Registrant, to the fullest extent authorized by the DGCL, as the same exists
or may hereafter be amended shall indemnify a director or officer of the
Registrant or a person who is or was serving at the request of the Registrant as
director, trustee, officer, employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, including
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service with respect to an employee benefit plan, who was or is made (or
threatened to be made) a party to a civil, criminal, administrative or
investigation proceeding (an "indemnified person"). The Restated Certificate of
Incorporation also provides that expenses incurred by an indemnified person may
be paid in advance by the Registrant, subject to any limitations or requirements
imposed by the DGCL and the Registrant's Restated By-Laws.
The Restated Certificate of Incorporation provides that a director of
the Company will not be personally liable to the Company or its stockholders for
monetary damages for breach of 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 acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174 of
the DGCL, which concerns unlawful payments of dividends, stock purchases or
redemptions, or (iv) for any transaction from which the director derived an
improper personal benefit.
While the Restated Certificate of Incorporation provides directors with
protection from awards for monetary damages for breaches of their duty of care,
it does not eliminate such duty. Accordingly, the Restated Certificate of
Incorporation will have no effect on the availability of equitable remedies such
as an injunction or rescission based on a director's breach of his or her duty
of care. The provisions of the Restated Certificate of Incorporation described
above apply to an officer of the Company only if he or she is a director of the
Company and is acting in his or her capacity as director, and do not apply to
officers of the Company who are not directors.
Item 7. Exemption from Registration Claimed.
Not applicable
Item 8. Exhibits.
4.01 Restated Certificate of Incorporation of the Company
(incorporated by reference to the Form S-1, Exhibit 3.01)
4.02 Restated By-Laws of the Company (incorporated by reference
to the Form S-1, Exhibit 3.02)
5.01 Opinion of Willkie Farr & Gallagher regarding legality
23.01 Consent of Deloitte & Touche LLP
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23.02 Consent of Willkie Farr & Gallagher (included in
Exhibit 5.01)
24.01 Powers of Attorney (included on Page II-7)
Item 9. Undertakings.
1. The undersigned Registrant hereby undertakes:
(a) 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
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;
(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 this Registration Statement;
provided, however, that paragraphs (a)(i) and (a)(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 this Registration Statement.
(b) 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.
(c) 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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2. The undersigned Registrant hereby undertakes 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 Section 15(d) of the Exchange Act
that is incorporated by reference in this 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.
3. 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 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 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Omaha, State of Nebraska, on the 3rd day of April
1997.
WEST TELESERVICES CORPORATION
By: /s/ Troy L. Eaden
Troy L. Eaden
Chief Executive Officer
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POWER OF ATTORNEY
We, the undersigned officers and directors of West TeleServices
Corporation hereby severally and individually constitute and appoint Troy L.
Eaden, Thomas B. Barker and Michael A. Micek and each of them, as the true and
lawful attorneys-in-fact for the undersigned, in any and all capacities, with
full power of substitution, to sign any and all amendments to this Registration
Statement (including post-effective amendments), and to file the same with
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact, 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 and about the premises, 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, or either of them, 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/Gary L. West Chairman of the Board of April 3, 1997
Gary L. West Directors
/s/Mary E. West Vice Chair of the April 3, 1997
Mary E. West Board of Directors,
Secretary
/s/Troy L. Eaden Director and Chief Executive April 3, 1997
Troy L. Eaden Officer (Principal
Executive Officer)
/s/Thomas B. Barker Director, President and April 3, 1997
Thomas B. Barker Chief Operating Officer
/s/Michael A. Micek Chief Financial Officer, April 3, 1997
Michael A. Micek Treasurer (Principal
Financial and Accounting
Officer)
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INDEX TO EXHIBITS
Exhibit No. Exhibit Document Description
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4.01 Restated Certificate of Incorporation of the Company
(incorporated by reference to the Form S-1,
Exhibit 3.01)
4.02 Restated By-Laws of the Company (incorporated by
reference to the Form S-1, Exhibit 3.02)
5.01 Opinion of Willkie Farr & Gallagher regarding legality
23.01 Consent of Deloitte & Touche LLP
23.02 Consent of Willkie Farr & Gallagher (included in
Exhibit 5.01)
24.01 Powers of Attorney (included on Page II-7)
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Willkie Farr & Gallagher
One Citicorp Center
153 East 53rd Street
New York, New York 10022-4677
April 3, 1997
West TeleServices Corporation
9910 Maple Street
Omaha, Nebraska 68134
Ladies and Gentlemen:
We have acted as counsel for West TeleServices Corporation (the "Company"), a
corporation organized under the laws of the State of Delaware, with respect to
the Company's Registration Statement on Form S-8 (the "Registration Statement")
to be filed by the Company with the Securities and Exchange Commission on April
2, 1997, in connection with the registration under the Securities Act of 1933,
as amended (the "Act"), by the Company of an aggregate of 9,499,500 shares (the
"Shares") of Common Stock, par value $.01 per share (the "Common Stock"),
issuable pursuant to the West TeleServices Corporation 1996 Stock Incentive Plan
(the "Plan").
We have examined and have relied upon originals or copies, certified or
otherwise identified to our satisfaction, of such documents, corporate records,
certificates and other instruments relating to the Company as we have deemed
necessary and advisable to the opinion hereinafter set forth. In such
examination, we have assumed the genuineness and authenticity of all documents
examined by us and all signatures thereon, the legal capacity of all persons
executing such documents, the conformity to originals of all copies submitted to
us as copies and the truth and correctness of any representation and warranty
contained therein.
Based upon and subject to the foregoing, we are of the opinion that the Shares
have been duly authorized and, when issued, sold and delivered as authorized,
will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement referred to above. We do not admit by giving this consent
that we are in the category of persons whose consent is required under Section 7
of the Act.
Very truly yours,
/s/ Willkie Farr & Gallagher
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EXHIBIT 23.01
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
West TeleServices Corporation on Form S-8 of our reports dated February 5, 1997,
appearing in the Annual Report on Form 10-K of West TeleServices Corporation for
the year ended December 31, 1996.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Omaha, Nebraska
April 1, 1997
