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As Filed With The Securities and Exchange Commission on June 2, 1998
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
VOICE CONTROL SYSTEMS, INC.
(Exact name of issuer as specified in its charter)
Delaware 75-1707970
(State of incorporation) (I.R.S. employer identification no.)
14140 Midway Road, Suite 100
Dallas, Texas 75244
(Address of principal executive office) (Zip code)
Voice Control Systems, Inc. 1998 Employee Stock Purchase Plan
(Full title of the plan)
Peter J. Foster, President Bruce H. Hallett
Voice Control Systems, Inc. Crouch & Hallett, L.L.P.
14140 Midway Road, Suite 100 717 N. Harwood Street, Suite 1400
Dallas, Texas 75244 Dallas, Texas 75201
(972) 726-1200 (214) 953-0053
(Names, addresses and telephone numbers, including area codes,
of agents for service)
APPROXIMATE DATE OF PROPOSED COMMENCEMENT OF SALES PURSUANT TO THE PLANS: Sales
to the purchasers of securities proposed to be registered hereunder will occur
from time to time after the effective date of this Registration Statement.
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Aggregate Amount of
to be Registered Registered Price Per Share Offering Price Registration Fee*
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$0.01 par value 1,300,000 Shs. $3.09 $4,017,000 $1,186.00
</TABLE>
* Estimated solely for purposes of calculating the registration fee, which has
been computed in accordance with Rule 457(h), based on the average high and low
prices of the registrant's Common Stock on June 1, 1998, as reported on the
Nasdaq National Market.
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ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The documents listed (i) through (iii) below are hereby incorporated by
reference into this Registration Statement. All documents subsequently filed by
the registrant pursuant to Section 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934 (the "1934 Act") prior to 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 hereof from the date of filing
of such documents.
(i) The registrant's latest annual report filed pursuant to Section 13
or 15(d) of the 1934 Act or the latest prospectus filed pursuant to Rule 424(b)
or under the Securities Act of 1933, as amended, (the "1933 Act"), which
contains, either directly or by incorporation by reference, certified financial
statements for the registrant's latest fiscal year for which such statements
have been filed.
(ii) All other reports filed pursuant to Section 13(a) and 15(d) of the
1934 Act since the end of the fiscal year covered by the annual reports or the
prospectus referred to in (i) above.
(iii) The description of the registrant's Common Stock, $.01 par value
("Common Stock") which is contained in the Company's latest registration
statement filed under the 1934 Act, including any amendments or reports filed
for the purpose of updating such description.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
Article VI of the registrant's Bylaws expressly directs the registrant
to indemnify its directors, officers, employees, or agents or any person 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 expenses (including attorney's fees), judgments, fines, and amounts paid
in settlement actually and reasonably incurred in connection with any
threatened, pending or completed action, suit or proceeding (other than an
action by or in the right of the registrant) to which such person is a party by
virtue of such status if he acted in good faith and in a manner reasonably
believed to be in or not opposed to the best interests of the registrant and,
with respect to any criminal action or proceeding, if he had no reasonable cause
to believe his conduct was unlawful. The termination of such action, suit or
proceeding by judgment, order, settlement,
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conviction or upon a plea of nolo contendere or its equivalent, will not create
a presumption that such person did not act in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
registrant and, with respect to any criminal action or proceeding, that he had a
reasonable cause to believe that his conduct was unlawful.
Article VI also provides that the registrant shall indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
procure a judgment in the registrant's favor by reason of the fact that such
person is or was a director, trustee, officer, employee or agent of the
registrant, or is or was serving at the request of the registrant as a director,
trustee, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys' fees)
and amounts paid in settlement actually and reasonably incurred by such person
in connection with the defense or settlement of such action or suit if such
person acted in good faith and in a manner such person reasonably believed to be
in or not opposed to the best interests of the registrant; however, no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable for gross negligence or
willful misconduct in the performance of such person's duty to the registrant
unless and only to the extent, that, the court in which such action or suit was
brought, shall determine upon application that, despite the adjudication of such
liability, but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to the indemnity for such expenses as such court
shall deem proper. The termination of any action or suit by judgment or
settlement shall not, of itself, create a presumption that the person did not
act in good faith and in a manner which such person reasonably believed to be in
or not opposed to the best interest of the registrant.
The Bylaws further provide that any indemnification shall be made only
upon a determination that such indemnification is proper under the standards
described above. Such determination shall be made (i) by a majority vote of a
quorum of the registrant's Board, or (ii) if such quorum is not obtainable, by a
quorum of disinterested directors, or (iii) by independent legal counsel or (iv)
by the shareholders. If successful, in whole or in part, on the merits of any
action, a person shall be indemnified for expenses actually and reasonably
incurred.
Expenses incurred in defending a civil or criminal action, suit or
proceeding shall be paid by the registrant, at any time or from time to time in
advance of the final disposition of such action, suit or proceeding upon receipt
of any undertaking by or on behalf of the director or officer to repay such
amount if it shall ultimately be determined that he is not entitled to be
indemnified by the registrant as authorized in Article VI of the Bylaws. The
indemnification and advancement of expenses provided by or granted pursuant to
Article VI shall not be deemed exclusive of any other rights to which those
indemnified or those seeking advancement of expenses provided by or granted
pursuant to Article VI shall not be deemed exclusive or any other rights to
which those indemnified or those seeking advancement of expenses may be entitled
under any law, bylaw, agreement, vote of shareholders or disinterested directors
or otherwise, both as to action in such person's official capacity and as to
action in another capacity while holding such office and shall
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continue as to a person who has ceased to be a director or officer and shall
insure to the benefit of the heirs, executors and administrators of such person.
The Certificate of Incorporation of the registrant eliminates personal
liability of directors, to the fullest extent permitted by Delaware law, to the
registrant and its stockholders for monetary damages for breach of fiduciary
duty as a director.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
5 Opinion of Crouch & Hallett, L.L.P. (filed herewith).
23(a) Consent of BDO Seidman LLP (filed herewith)
23(b) Consent of Crouch & Hallett, L.L.P. (included as part of
Exhibit 5).
24 Power of Attorney (see signature page of this Registration
Statement)
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 to:
(i) Include any prospectus required by Section 10(a)(3)
of the 1933 Act;
(ii) Reflect in the prospectus any facts or events which,
individually or in the aggregate, represent a
fundamental change in the information set forth in
this registration statement;
(iii) Include any material information on the plan of
distribution not previously disclosed in this
registration statement or any material change to
such information in this registration statement;
provided, however, that (i) and (ii) do not apply if
the information required to be included e 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
in this registration statement.
(b) That, for the purpose of determining any liability under
the 1933 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
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securities at the time shall be deemed to be the initial bona fide
offering thereof; and
(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.
(2) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the 1933 Act, each filing of the registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the 1934 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.
(3) Insofar as indemnification for liabilities arising under the 1933
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the certificate of incorporation or bylaws of the
registrant 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 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 Act and
will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the 1933 Act, 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 and the State of Texas, on the 2nd day of June, 1998.
VOICE CONTROL SYSTEMS, INC.
By: /s/ Peter J. Foster
-------------------------------
Peter J. Foster
President and Chief Executive
Officer
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below hereby constitutes and appoints Peter J. Foster and Kim S. Terry,
and each of them, each with full power to act without the other, his or her true
and lawful attorneys-in-fact and agents, each 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 or all 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
each of said attorneys-in-fact and agents 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 that each of said
attorneys-in-fact and agents or his substitutes may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the 1933 Act, this registration
statement has been signed below by the following persons in the capacities and
on June 2, 1998.
<TABLE>
<CAPTION>
Signature Title
- --------- -----
<S> <C>
/s/ Neal J. Robinson Chairman and Director
- ----------------------------------
Neal J. Robinson
/s/ Peter J. Foster President, Chief Executive Officer
- ---------------------------------- and Director
Peter J. Foster
/s/ Kim S. Terry Vice President Finance, Corporate Secretary
- ---------------------------------- (Principal Financial and Accounting Officer)
Kim S. Terry
/s/ Melvyn J. Goodman Director
- ----------------------------------
Melvyn J. Goodman
/s/ John Lucas-Tooth Director
- ----------------------------------
John Lucas-Tooth
/s/ John B. Torkelsen Director
- ----------------------------------
John B. Torkelsen
</TABLE>
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INDEX TO EXHIBITS
5 Opinion of Crouch & Hallett, L.L.P. (filed herewith).
23(a) Consent of BDO Seidman (filed herewith)
23(b) Consent of Crouch & Hallett, L.L.P. (included as part of
Exhibit 5).
24 Power of Attorney (see signature page of this Registration
Statement)
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EXHIBIT 5
June 2, 1998
Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street, N.W.
Washington, DC 20549
Gentlemen:
We have served as counsel for Voice Control Systems, Inc., a Delaware
corporation (the "Company"), in connection with the Registration Statement on
Form S-8 (the "Registration Statement") filed under the Securities Act of 1933,
as amended, covering the issuance of 1,300,000 shares (the "Shares") of Common
Stock, $.01 par value, of the Company to be issued in connection with the Voice
Control Systems, Inc. 1998 Employee Stock Purchase Plan.
We have examined such documents and questions of law as we have deemed
necessary to render the opinion expressed herein. Based upon the foregoing, we
are of the opinion that the Shares, when issued and delivered, will be duly and
validly issued and outstanding, fully paid and non-assessable.
We consent to the use of this opinion as Exhibit 5 to the Registration
Statement.
Very truly yours,
/s/ Crouch and Hallett, L.L.P.
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EXHIBIT 23(a)
Consent of Independent Certified Public Accountants
Voice Control Systems, Inc.
Dallas, Texas
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8, pertaining to the Voice Control Systems, Inc. 1998
Employee Stock Purchase Plan, of our report dated January 30, 1998, relating to
the financial statements of Voice Control Systems, Inc. appearing in the
Company's Annual Report on Form 10-KSB for the year ended December 31, 1997.
/s/ BDO Seidman, LLP
Dallas, Texas
June 2, 1998
