<PAGE> 1
As Filed with the Securities and Exchange Commission on March 23, 1999
Registration Statement No. 333-______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
INTERVOICE, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
TEXAS 75-1927578
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
17811 WATERVIEW PARKWAY 75252
DALLAS, TEXAS (Zip Code)
(Address of Principal Executive Offices)
</TABLE>
----------
INTERVOICE, INC. 1998 STOCK OPTION PLAN
(Full title of the Plan)
----------
<TABLE>
<S> <C>
ROB-ROY J. GRAHAM Copy to:
CHIEF FINANCIAL OFFICER DAVID E. MORRISON
AND SECRETARY THOMPSON & KNIGHT
INTERVOICE, INC. A PROFESSIONAL CORPORATION
17811 WATERVIEW PARKWAY 1700 PACIFIC AVENUE
DALLAS, TEXAS 75252 SUITE 3300
(Name and address of agent for service) DALLAS, TEXAS 75201
(214) 969-1700
</TABLE>
(972) 454-8712
(Telephone number, including
area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
======================================================================================================================
Title of Proposed Proposed Maximum Amount
Securities Amount Maximum Aggregate of
to be to be Offering Price Offering Registration
Registered (1) Registered (2) per Unit (3) Price (3) Fee
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
no par value 500,000 shares $ 13.0625 $ 6,531,250 $ 1,816
per share
======================================================================================================================
</TABLE>
(1) This registration statement also covers an equal number of Preferred Share
Purchase Rights issuable pursuant to InterVoice, Inc.'s Rights Agreement,
which rights will be transferable only with related shares of Common Stock.
(2) Pursuant to Rule 416, shares issuable upon any stock split, stock dividend
or similar transaction with respect to these shares are also being
registered hereunder.
(3) Estimated solely for the purposes of determining the registration fee
pursuant to Rule 457(h) on the basis of the average of the high and low
prices for the Common Stock ($13.0625) as reported on the Nasdaq National
Market on March 18, 1999.
================================================================================
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registration Information and Employee Plan Annual Information.*
* Information required by Part I to be contained in the Section
10(a) prospectus is omitted from this Registration Statement
in accordance with Rule 428 under the Securities Act of 1933
and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Registrant with the Securities and
Exchange Commission are incorporated by reference in this Registration
Statement:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended February 28, 1998.
(b) The Company's Quarterly Reports on Form 10-Q for the quarters
ended May 31, 1998, August 31, 1998 and November 30, 1998; and
(c) The description of the Common Stock contained in the
Registration Statement on Form 8-A of the Company heretofore
filed by the Company with the Commission, including any
amendment or report filed for the purpose of updating such
description.
In addition, all documents filed by the Company with the Securities and
Exchange Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934 subsequent to the date of this Registration
Statement and 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 into this
Registration Statement and to be a part hereof from the date of filing of such
documents.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
<PAGE> 3
Item 6. Indemnification of Directors and Officers.
Article 2.02-1 of the Texas Business Corporation Act provides broad
authority for Texas corporations to indemnify their directors and officers under
certain conditions and subject to certain limitations and requires such
indemnification in certain circumstances. Article 8.7 of the Company's Bylaws,
which Bylaws are filed as an Exhibit to this registration statement, provide for
the indemnification of directors and officers of the Company in certain
circumstances, and the Company's Articles of Incorporation do not restrict the
circumstances under which the Company is permitted or required to provide such
indemnification, by insurance or otherwise.
Article 1302-7.06 of the Texas Miscellaneous Corporation Laws Act
permits shareholders of a Texas corporation to amend its articles of
incorporation to provide that directors of the corporation are not liable to the
corporation or its shareholders for monetary damages for an act or omission in
the directors' capacity as directors, but such an amendment cannot eliminate or
limit the liability of a director for certain types of acts or omissions set
forth in Article 1302-7.06. Article Thirteen of the Company's Restated Articles
of Incorporation eliminates the liability of the Company's directors for
monetary damages to the Company and its shareholders to the extent permitted by
Article 1302-7.06.
The foregoing summaries are necessarily subject to the complete text of
the statute, bylaw and charter provisions referred to above and are qualified in
their entirety by reference thereto.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The following documents are filed as exhibits to this Registration
Statement:
4.1 InterVoice, Inc. 1998 Stock Option Plan.
5.1 Opinion of Thompson & Knight, P.C., regarding 500,000 shares
of Common Stock.
23.1 Consent of independent public accountants to incorporation of
reports by reference.
24.2 Consent of counsel (included in the opinion of Thompson &
Knight, P.C., filed herewith as Exhibit 5.1).
99.1 Composite copy of the Bylaws of the Registrant, as currently
in effect (filed as Exhibit 3.2 to the Registrant's annual
report on Form 10-K for the fiscal year ended February 28,
1991 and incorporated herein by reference).
<PAGE> 4
Item 9. Undertakings.
The 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 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;
and
(iii) To include any material information with respect to
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 paragraphs (1)(i) and (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 Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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 post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrant's annual report pursuant
to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 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.
(5) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 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.
<PAGE> 5
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 Dallas and State of Texas on the 19 day of March,
1999.
INTERVOICE, INC.
(Registrant)
By: /s/ Daniel D. Hammond
----------------------------------
Daniel D. Hammond,
Chairman of the Board of Directors
and Chief Executive Officer
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 date indicated. The undersigned persons hereby constitute
and appoint Daniel D. Hammond and Rob-Roy J. Graham, or either of them, as our
true and lawful attorneys-in-fact with full power to execute in our name and on
our behalf in the capacities indicated below any and all amendments to this
Registration Statement to be filed with the Securities and Exchange Commission
and hereby ratify and confirm all that such attorneys-in-fact shall lawfully do
or cause to be done by virtue hereof.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Daniel D. Hammond Chairman of the Board of Directors March 19, 1999
- ---------------------------------- and Chief Executive Officer
Daniel D. Hammond
/s/ Rob-Roy J. Graham Chief Financial Officer and Secretary March 19, 1999
- ---------------------------------- (Principal Financial Officer and
Rob-Roy J. Graham Principal Accounting Officer)
/s/ Joseph J. Pietropaolo Director March 19, 1999
- ----------------------------------
Joseph J. Pietropaolo
/s/ George C. Platt Director March 19, 1999
- ----------------------------------
George C. Platt
/s/ Grant A. Dove Director March 19, 1999
- ----------------------------------
Grant A. Dove
/s/ David W. Brandenburg Director March 19, 1999
- ----------------------------------
David W. Brandenburg
</TABLE>
<PAGE> 6
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NUMBER EXHIBIT
-------------- -------
<S> <C>
4.1 InterVoice, Inc. 1998 Stock Option Plan.
5.1 Opinion of Thompson & Knight, P.C., regarding 500,000 shares
of Common Stock.
23.1 Consent of Independent public accountants to incorporation
of reports by reference.
24.2 Consent of counsel (included in the opinion of Thompson &
Knight, P.C., filed herewith as Exhibit 5.1).
99.1 Composite copy of the Bylaws of the Registrant, as
currently in effect (filed as Exhibit 3.2 to the
Registrant's annual report on Form 10-K for the
fiscal year ended February 28, 1991 and
incorporated herein by reference).
</TABLE>
<PAGE> 1
EXHIBIT 4.1
INTERVOICE, INC.
1998 STOCK OPTION PLAN
ARTICLE 1. ESTABLISHMENT AND PURPOSE
1.1 ESTABLISHMENT. InterVoice, Inc., a Texas corporation, hereby
establishes the InterVoice, Inc. 1998 Stock Option Plan, as set forth in this
document.
1.2 PURPOSE. The purposes of the Plan are to attract able persons to
enter the employ of the Company, to encourage Employees to remain in the employ
of the Company and to provide motivation to Employees to put forth maximum
efforts toward the continued growth, profitability and success of the Company,
by providing incentives to such persons through the ownership and performance of
the Common Stock of InterVoice. A further purpose of the Plan is to provide a
means through which InterVoice may attract able persons to become directors of
InterVoice and to provide directors of InterVoice with additional incentive and
reward opportunities designed to strengthen their concern for the welfare of
InterVoice and its stockholders. Toward these objectives, Options may be granted
under the Plan to Employees and Outside Directors on the terms and subject to
the conditions set forth in the Plan.
1.3 EFFECTIVE DATE OF PLAN. This Plan shall be effective as of March
26, 1998.
ARTICLE 2. DEFINITIONS
2.1 AFFILIATE. "Affiliate" means a "parent corporation" or a
"subsidiary corporation" of InterVoice, as those terms are defined in Section
424(e) and (f) of the Code.
2.2 BOARD. "Board" means the Board of Directors of InterVoice.
2.3 CODE. "Code" means the Internal Revenue Code of 1986, as amended
from time to time, including regulations thereunder and successor provisions and
regulations thereto.
2.4 COMMITTEE. "Committee" means the Compensation Committee of the
Board, or such other committee of the Board as may be designated by the Board to
administer the Plan; provided that the Committee shall consist of two or more
directors of InterVoice, all of whom are "Non-Employee Directors" within the
meaning of Rule 16b-3 under the Exchange Act. The members of the Committee shall
be appointed from time to time by, and shall serve at the discretion of, the
Board.
2.5 COMMON STOCK. "Common Stock" means the Common Stock, no par value
per share, of InterVoice, or any stock or other securities of InterVoice
hereafter issued or issuable in substitution or exchange for the Common Stock.
<PAGE> 2
2.6 COMPANY. "Company" means InterVoice and its Affiliates.
2.7 CORPORATE CHANGE. A "Corporate Change" shall be deemed to have
occurred for purposes of the Plan upon (a) the dissolution or liquidation of
InterVoice; (b) a reorganization, merger or consolidation of InterVoice with one
or more corporations (other than a merger or consolidation effecting a
reincorporation of InterVoice in another state or any other merger or
consolidation in which the shareholders of the surviving corporation and their
proportionate interests therein immediately after the merger or consolidation
are substantially identical to the shareholders of InterVoice and their
proportionate interests therein immediately prior to the merger or
consolidation)(collectively, a "Corporate Change Merger"); (c) the sale of all
or substantially all of the assets of InterVoice; or (d) the occurrence of a
Change in Control. A "Change in Control" shall be deemed to have occurred for
purposes of the Plan if (a) individuals who were directors of InterVoice
immediately prior to a Control Transaction shall cease, within two years of such
Control Transaction, to constitute a majority of the Board (or of the Board of
Directors of any successor to InterVoice or to a company which has acquired all
or substantially all its assets) other than by reason of an increase in the size
of the membership of the applicable Board that is approved by at least a
majority of the individuals who were directors of InterVoice immediately prior
to such Control Transaction or (b) any entity, person or Group acquires shares
of InterVoice in a transaction or series of transactions that result in such
entity, person or Group directly or indirectly owning beneficially 50% or more
of the outstanding shares of Common Stock. As used herein, "Control Transaction"
means (a) any tender offer for or acquisition of capital stock of InterVoice
pursuant to which any person, entity or Group directly or indirectly acquires
beneficial ownership of 20% or more of the outstanding shares of Common Stock,
(b) any Corporate Change Merger of InterVoice, (c) any contested election of
directors of InterVoice or (d) any combination of the foregoing, any one of
which results in a change in voting power sufficient to elect a majority of the
Board. As used herein, "Group" means persons who act "in concert" as described
in Sections 13(d)(3) and/or 14(d)(2) of the Exchange Act.
2.8 EFFECTIVE DATE. "Effective Date" means the date an Option is
determined to be effective by the Committee or the Board upon its grant of such
Option.
2.9 EMPLOYEE. "Employee" means any person treated as an employee by
InterVoice or an Affiliate. "Employee" shall not include any person treated by
InterVoice or an Affiliate as an independent contractor.
2.10 EXCHANGE ACT. "Exchange Act" means the Securities Exchange Act of
1934, as amended from time to time, including rules thereunder and successor
provisions and rules thereto.
2.11 FAIR MARKET VALUE. "Fair Market Value" means the fair market value
of the Common Stock, as determined in good faith by the Committee or, (i) if the
Common Stock is traded in the over-the-counter market, the average of the
representative closing bid and asked
-2-
<PAGE> 3
prices as reported by the National Association of Securities Dealers Automated
Quotation System ("NASDAQ") for the date the Option is granted (or if there was
no quoted price for such date of grant, then for the last preceding business day
on which there was a quoted price), or (ii) if the Common Stock is traded in the
NASDAQ National Market System, the average of the highest and lowest selling
prices for such stock as quoted on the NASDAQ National Market System for the
date the Option is granted (or if there are no sales for such date of grant,
then for the last preceding business day on which there were sales), or (iii) if
the Common Stock is listed on any national stock exchange, the average of the
highest and lowest selling prices for such stock as quoted on such exchange for
the date the Option is granted (or if there are no sales for such date of grant,
then for the last preceding business day on which there were sales).
2.12 INTERVOICE. "InterVoice" means InterVoice, Inc., a Texas
corporation, and any successor thereto.
2.13 OPTION. "Option" means an option to purchase shares of Common
Stock granted to a Participant pursuant to Article 6.
2.14 OPTION AGREEMENT. "Option Agreement" means a written agreement
between InterVoice and a Participant that sets forth the terms, conditions,
restrictions and/or limitations applicable to an Option.
2.15 OUTSIDE DIRECTOR. "Outside Director" means an individual duly
elected or chosen as a director of InterVoice who is not also an Employee.
2.16 PARTICIPANT. "Participant" means any Employee or Outside Director
to whom an Option has been granted under the Plan.
2.17 PLAN. "Plan" means this InterVoice, Inc. 1998 Stock Option Plan.
2.18 RETIREMENT. "Retirement" means the termination of a Participant's
employment or service on or after his or her 65th birthday.
ARTICLE 3. PLAN ADMINISTRATION
3.1 RESPONSIBILITY OF COMMITTEE. Subject to the terms and provisions of
the Plan, including, without limitation, Section 3.6, the Committee shall have
total and exclusive responsibility to control, operate, manage and administer
the Plan in accordance with its terms.
3.2 AUTHORITY OF COMMITTEE. The Committee shall have all the authority
that may be necessary or helpful to enable it to discharge its responsibilities
with respect to the Plan. Without limiting the generality of the preceding
sentence, the Committee shall have the exclusive right, subject to the
provisions of Section 3.6, to: (a) interpret the Plan and the Option Agreements
-3-
<PAGE> 4
executed hereunder; (b) determine eligibility for participation in the Plan; (c)
decide all questions concerning eligibility for, and the size of, Options
granted under the Plan; (d) construe any ambiguous provision of the Plan or any
Option Agreement; (e) prescribe the form of the Option Agreements embodying
Options granted under the Plan; (f) correct any defect, supply any omission or
reconcile any inconsistency in the Plan or any Option Agreement; (g) issue
administrative guidelines as an aid to administer the Plan and make changes in
such guidelines as it from time to time deems proper; (h) make regulations for
carrying out the Plan and make changes in such regulations as it from time to
time deems proper; (i) to the extent permitted under the Plan, grant waivers of
Plan terms, conditions, restrictions and limitations; (j) accelerate the vesting
of an Option when such action or actions would be in the best interests of the
Company; (k) grant Options in replacement of Options previously granted under
the Plan or any other employee benefit plan of the Company; and (l) take any and
all other actions it deems necessary or advisable for the proper operation or
administration of the Plan.
3.3 DISCRETIONARY AUTHORITY. Subject to the provisions of Section 3.6,
(i) the Committee shall have full discretionary authority in all matters related
to the discharge of its responsibilities and the exercise of its authority under
the Plan, including, without limitation, its construction of the terms of the
Plan and its determination of eligibility for participation under the Plan, and
(ii) the decisions of the Committee and its actions with respect to the Plan
shall be final, conclusive and binding on all persons having or claiming to have
any right or interest in or under the Plan, including Participants and their
respective estates, beneficiaries and legal representatives.
3.4 ACTION BY THE COMMITTEE. The Committee may act only by a majority
of its members. Any determination of the Committee may be made, without a
meeting, by a writing or writings signed by all of the members of the Committee.
In addition, the Committee may authorize any one or more of its members to
execute and deliver documents on behalf of the Committee.
3.5 DELEGATION OF AUTHORITY. Notwithstanding anything contained in the
Plan to the contrary, the Committee may, in its discretion, delegate some or all
of its authority under the Plan to any person or persons; provided, however,
that any such delegation shall be in writing; and provided further that only the
Committee may grant Options to Employees who are subject to Section 16 of the
Exchange Act.
3.6 BOARD AUTHORITY. Notwithstanding the authority hereby delegated to
the Committee to administer the Plan, the Board shall have sole and exclusive
authority, subject to the express provisions of the Plan, to grant Options to
Outside Directors under the Plan, to determine the terms, conditions,
restrictions and/or limitations applicable to such Options and to make all other
determinations and take any and all other actions it deems necessary or
advisable with respect to such Options. The Board shall have no authority under
the Plan to select and grant Options to Employees, and such authority is vested
exclusively in the Committee.
3.7 LIABILITY; INDEMNIFICATION. No member of the Committee or the Board
nor any person to whom authority has been delegated by the Committee, shall be
personally liable for any
-4-
<PAGE> 5
action, interpretation or determination made in good faith with respect to the
Plan or Options granted hereunder, and each member of the Committee and the
Board shall be fully indemnified and protected by InterVoice with respect to any
liability he or she may incur with respect to any such action, interpretation or
determination, to the extent permitted by applicable law.
ARTICLE 4. ELIGIBILITY
All Employees and Outside Directors are eligible to participate in the
Plan. The Committee shall select, from time to time, Participants from those
Employees, and the Board shall select, from time to time, Participants from
those Outside Directors, who, in the opinion of the Committee or the Board, can
further the Plan's purposes. In making this selection, the Committee and the
Board may give consideration to the functions and responsibilities of the
Participant, his or her past, present and potential contributions to the growth
and success of the Company and such other factors deemed relevant by the
Committee or the Board. Once a Participant is so selected, the Committee or the
Board shall determine the size of Option to be granted to the Participant and
shall establish in the related Option Agreement the terms, conditions,
restrictions and/or limitations applicable to the Option, in addition to those
set forth in the Plan and the administrative rules and regulations, if any,
established by the Committee. No Employee is entitled to receive an Option
unless selected by the Committee, and no Outside Director is entitled to receive
an Option unless selected by the Board.
ARTICLE 5. SHARES SUBJECT TO THE PLAN
5.1 AVAILABLE SHARES. The maximum number of shares of Common Stock that
shall be available for grant of Options under the Plan shall not exceed 500,000,
subject to adjustment as provided in Sections 5.2 and 5.3. Shares of Common
Stock issued pursuant to the Plan may be shares of original issuance or treasury
shares or a combination of the foregoing, as the Board, in its discretion, shall
from time to time determine.
5.2 ADJUSTMENTS FOR RECAPITALIZATIONS AND REORGANIZATIONS.
(a) The shares with respect to which Options may be granted
under the Plan are shares of Common Stock as presently constituted, but
if, and whenever, prior to the expiration or satisfaction of an Option
theretofore granted, InterVoice shall effect a subdivision or
consolidation of shares of Common Stock or the payment of a stock
dividend on Common Stock without receipt of consideration by
InterVoice, the number of shares of Common Stock with respect to which
such Option may thereafter be exercised or satisfied, as applicable,
(i) in the event of an increase in the number of outstanding shares
shall be proportionately increased, and the exercise price per share
shall be proportionately reduced, and (ii) in the event of a reduction
in the number of outstanding shares shall be proportionately reduced,
and the exercise price per share shall be proportionately increased.
-5-
<PAGE> 6
(b) If InterVoice recapitalizes or otherwise changes its
capital structure, thereafter upon any exercise of an Option
theretofore granted the Participant shall be entitled to purchase under
such Option, in lieu of the number of shares of Common Stock then
covered by such Option, the number and class of shares of stock or
other securities to which the Participant would have been entitled
pursuant to the terms of the recapitalization if, immediately prior to
such recapitalization, the Participant had been the holder of record of
the number of shares of Common Stock then covered by such Option.
(c) In the event of changes in the outstanding Common Stock by
reason of recapitalizations, reorganizations, mergers, consolidations,
combinations, separations (including a spin-off or other distribution
of stock or property), exchanges or other relevant changes in
capitalization occurring after the date of grant of any Option and not
otherwise provided for by this Section 5.2, any outstanding Options and
any Option Agreements evidencing such Options shall be subject to
adjustment by the Committee at its discretion as to the number, price
and kind of shares of Common Stock subject to, and other terms of, such
Options to reflect such changes in the outstanding Common Stock.
(d) In the event of any changes in the outstanding Common
Stock provided for in this Section 5.2, the aggregate number of shares
available for grant of Options under the Plan may be equitably adjusted
by the Committee, whose determination shall be conclusive. Any
adjustment provided for in this Section 5.2(d) shall be subject to any
required stockholder action.
5.3 ADJUSTMENTS FOR OPTIONS. The Committee shall have full discretion
to determine the manner in which shares of Common Stock available for grant of
Options under the Plan are counted. Without limiting the discretion of the
Committee under this Section 5.3, unless otherwise determined by the Committee,
for the purpose of determining the number of shares of Common Stock available
for grant of Options under the Plan: (a) the grant of an Option shall reduce the
number of shares available for grant of Options under the Plan by the number of
shares subject to such Option and (b) if any Option is canceled or forfeited, or
terminates, expires or lapses, for any reason, the shares then subject to such
Option shall again be available for grant of Options under the Plan.
ARTICLE 6. OPTIONS
6.1 GENERAL. All Options granted under this Plan shall be nonqualified
stock options that are not intended to meet the requirements of Section 422(b)
of the Code.
6.2 TERMS AND CONDITIONS OF OPTIONS. All Options granted under the Plan
shall be subject to the terms, conditions, restrictions and limitations of the
Plan. The Committee or the Board may, in its sole judgment, subject any Option
to such other terms, conditions, restrictions and/or limitations (including, but
not limited to, the time and conditions of exercise or vesting of an Option
-6-
<PAGE> 7
and restrictions on transferability of any shares of Common Stock issued or
delivered pursuant to the exercise of an Option), provided they are not
inconsistent with the terms of the Plan. Options granted under the Plan need not
be uniform. Options granted under the Plan shall be exercisable in whole or in
such installments and at such times as may be determined by the Committee or the
Board. The price at which a share of Common Stock may be purchased upon exercise
of an Option shall be determined by the Committee or the Board, but such
exercise price shall not be less than 100% of the Fair Market Value of a share
of Common Stock on the Effective Date of the Option's grant. The term of each
Option shall be as specified by the Committee or the Board; provided, however,
that, unless otherwise designated by the Committee or the Board, no Options
shall be exercisable later than 10 years from the Effective Date of the Option's
grant.
6.3 EXERCISE OF OPTIONS.
(a) Subject to the terms and conditions of the Plan, Options
shall be exercised by the delivery of a written notice of exercise to
InterVoice, setting forth the number of shares of Common Stock with
respect to which the Option is to be exercised, accompanied by full
payment for such shares.
(b) Upon exercise of an Option, the exercise price of the
Option shall be payable to InterVoice in full in cash.
(c) Payment of the exercise price of an Option may also be
made, in the discretion of the Committee, by delivery to InterVoice or
its designated agent of an executed irrevocable option exercise form
together with irrevocable instructions to a broker-dealer to sell or
margin a sufficient portion of the shares with respect to which the
Option is exercised and deliver the sale or margin loan proceeds
directly to InterVoice to pay for the exercise price and any required
withholding taxes.
(d) As soon as reasonably practicable after receipt of written
notification of exercise of an Option and full payment of the exercise
price and any required withholding taxes, InterVoice shall deliver to
the Participant, in the Participant's name, a stock certificate or
certificates in an appropriate amount based upon the number of shares
of Common Stock purchased under the Option.
6.4 TERMINATION OF SERVICE. Each Option Agreement shall set forth the
extent to which the Participant shall have the right to exercise the Option
following termination of the Participant's employment or service with the
Company. Such provisions shall be determined in the sole discretion of the
Committee or the Board, need not be uniform among all Options granted under the
Plan and may reflect distinctions based on the reasons for termination of
employment or service. Subject to Section 5.2 and Article 7, in the event that
an Employee's Option Agreement does not set forth such termination provisions,
the following termination provisions shall apply with respect to such Option:
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(a) RETIREMENT, DISABILITY OR DEATH. If the employment or
service of a Participant shall terminate by reason of Retirement,
permanent and total disability (within the meaning of Section 22(e)(3)
of the Code) or death, outstanding Options held by the Participant may
be exercised, to the extent then vested, no more than two years from
the date of such termination of employment or termination of service,
unless the Options in any way expressly provide for earlier
termination.
(b) OTHER TERMINATION. If the employment or service of a
Participant shall terminate for any reason other than the reasons set
forth in paragraph (a) above, whether on a voluntary or involuntary
basis, outstanding Options held by the Participant may be exercised, to
the extent then vested, no more than two years from the date of such
termination of employment or termination of service, unless the Options
in any way expressly provide for earlier termination.
(c) TERMINATION FOR CAUSE. Notwithstanding paragraphs (a), (b)
and (c) above, if the employment or service of a Participant shall be
terminated by reason of such Participant's fraud, dishonesty or
performance of other acts detrimental to the Company, all outstanding
Options held by the Participant shall immediately be forfeited to the
Company and no additional exercise period shall be allowed, regardless
of the vested status of the Options.
ARTICLE 7. CORPORATE CHANGE
Notwithstanding anything contained in the Plan to the contrary, in the
event of a Corporate Change, unless otherwise provided in the related Option
Agreement, all Options then outstanding shall become exercisable in full and all
restrictions imposed on any Common Stock that may be delivered pursuant to the
exercise of such Options shall be deemed satisfied.
ARTICLE 8. AMENDMENT AND TERMINATION
The Board may at any time suspend, terminate, amend or modify the Plan,
in whole or in part; provided, however, that no amendment or modification of the
Plan shall become effective without the approval of such amendment or
modification by the stockholders of InterVoice if InterVoice, on the advice of
counsel, determines that such stockholder approval is necessary or desirable.
Upon termination of the Plan, the terms and provisions of the Plan shall,
notwithstanding such termination, continue to apply to Options granted prior to
such termination. No suspension, termination, amendment or modification of the
Plan shall adversely affect in any material way any Option previously granted
under the Plan, without the consent of the Participant holding such Option.
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ARTICLE 9. MISCELLANEOUS
9.1 OPTION AGREEMENTS. After the Committee or the Board grants an
Option under the Plan to a Participant, InterVoice and the Participant shall
enter into an Option Agreement setting forth the terms, conditions, restrictions
and/or limitations applicable to the Option and such other matters as the
Committee or the Board may determine to be appropriate. The terms and provisions
of the respective Option Agreements need not be identical. In the event of any
conflict between an Option Agreement and the Plan, the terms of the Plan shall
govern.
9.2 NONASSIGNABILITY. Except as otherwise provided in a Participant's
Option Agreement, no Option granted under the Plan may be sold, transferred,
pledged, exchanged, hypothecated or otherwise disposed of, other than by will or
pursuant to the applicable laws of descent and distribution. Further, no such
Option shall be subject to execution, attachment or similar process. Any
attempted sale, transfer, pledge, exchange, hypothecation or other disposition
of an Option not specifically permitted by the Plan or the Option Agreement
shall be null and void and without effect. All Options granted to a Participant
under the Plan shall be exercisable during his or her lifetime only by such
Participant or, in the event of the Participant's legal incapacity, by his or
her guardian or legal representative.
9.3 NO FRACTIONAL SHARES. No fractional shares of Common Stock shall be
issued pursuant to any Option granted under the Plan, and no payment or other
adjustment shall be made in respect of any such fractional share.
9.4 WITHHOLDING TAXES. The Company shall be entitled to deduct from any
payment made under the Plan, regardless of the form of such payment, the amount
of all applicable income and employment taxes required by law to be withheld
with respect to such payment, may require the Participant to pay to the Company
such withholding taxes prior to and as a condition of the making of any payment
or the issuance or delivery of any shares of Common Stock under the Plan and
shall be entitled to deduct from any other compensation payable to the
Participant any withholding obligations with respect to Options under the Plan.
9.5 REGULATORY APPROVALS AND LISTINGS. Notwithstanding anything
contained in the Plan to the contrary, InterVoice shall have no obligation to
issue or deliver shares of Common Stock under the Plan prior to (a) the
obtaining of any approval from any governmental agency which InterVoice shall,
in its sole discretion, determine to be necessary or advisable, (b) the
admission of such shares to listing on the stock exchange or stock market on
which the Common Stock may be listed and (c) the completion of any registration
or other qualification of such shares under any Federal or state law or ruling
of any governmental body which InterVoice shall, in its sole discretion,
determine to be necessary or advisable.
9.6 BINDING EFFECT. The obligations of InterVoice under the Plan shall
be binding upon any successor corporation or organization resulting from the
merger, consolidation or other reorganization of InterVoice, or upon any
successor corporation or organization succeeding to all
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or substantially all of the assets and business of InterVoice. The terms and
conditions of the Plan shall be binding upon each Participant and his or her
heirs, legatees, distributees and legal representatives.
9.7 SEVERABILITY. If any provision of the Plan or any Option Agreement
is held to be illegal or invalid for any reason, the illegality or invalidity
shall not affect the remaining provisions of the Plan or such agreement, as the
case may be, but such provision shall be fully severable and the Plan or such
agreement, as the case may be, shall be construed and enforced as if the illegal
or invalid provision had never been included herein or therein.
9.8 NO RESTRICTION OF CORPORATE ACTION. Nothing contained in the Plan
shall be construed to prevent InterVoice or any Affiliate from taking any
corporate action (including any corporate action to suspend, terminate, amend or
modify the Plan) that is deemed by InterVoice or such Affiliate to be
appropriate or in its best interest, whether or not such action would have an
adverse effect on the Plan or any Options made or to be made under the Plan. No
Participant or other person shall have any claim against InterVoice or any
Affiliate as a result of such action.
9.9 NOTICES. All notices required or permitted to be given or made
under the Plan or any Option Agreement shall be in writing and shall be deemed
to have been duly given or made if (a) delivered personally, (b) transmitted by
first class registered or certified United States mail, postage prepaid, return
receipt requested, (c) sent by prepaid overnight courier service or (d) sent by
telecopy or facsimile transmission, answer back requested, to the person who is
to receive it at the address that such person has theretofore specified by
written notice delivered in accordance herewith. Such notices shall be effective
(a) if delivered personally or sent by courier service, upon actual receipt by
the intended recipient, (b) if mailed, upon the earlier of five days after
deposit in the mail or the date of delivery as shown by the return receipt
therefor or (c) if sent by telecopy or facsimile transmission, when the answer
back is received. InterVoice or a Participant may change, at any time and from
time to time, by written notice to the other, the address that it or such
Participant had theretofore specified for receiving notices. Until such address
is changed in accordance herewith, notices hereunder or under an Option
Agreement shall be delivered or sent (a) to a Participant at his or her address
as set forth in the records of the Company or (b) to InterVoice at the principal
executive offices of InterVoice clearly marked "Attention: Human Resources
Department."
9.10 GOVERNING LAW. The Plan shall be governed by and construed in
accordance with the internal laws (and not the principles relating to conflicts
of laws) of the State of Texas, except as superseded by applicable federal law.
9.11 NO RIGHT, TITLE OR INTEREST IN COMPANY ASSETS. No Participant
shall have any rights as a stockholder of InterVoice as a result of
participation in the Plan until the date of issuance of a stock certificate in
his or her name and, in the case of Restricted Stock, unless and until such
rights are granted to the Participant under the Plan. To the extent any person
acquires a right to receive payments from the Company under the Plan, such
rights shall be no greater than the rights of an unsecured creditor of the
Company, and such person shall not have any rights in or against any
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specific assets of the Company. All of the Options granted under the Plan shall
be unfunded.
9.12 RISK OF PARTICIPATION. Nothing contained in the Plan shall be
construed either as a guarantee by InterVoice or its Affiliates, or their
respective stockholders, directors, officers or employees, of the value of any
assets of the Plan or as an agreement by InterVoice or its Affiliates, or their
respective stockholders, directors, officers or employees, to indemnify anyone
for any losses, damages, costs or expenses resulting from participation in the
Plan.
9.13 NO GUARANTEE OF TAX CONSEQUENCES. No person connected with the
Plan in any capacity, including, but not limited to, InterVoice and the
Affiliates and their respective directors, officers, agents and employees, makes
any representation, commitment or guarantee that any tax treatment, including,
but not limited to, Federal, state and local income, estate and gift tax
treatment, will be applicable with respect to any Options or payments thereunder
made to or for the benefit of a Participant under the Plan or that such tax
treatment will apply to or be available to a Participant on account of
participation in the Plan.
9.14 OTHER BENEFITS. No Option granted under the Plan shall be
considered compensation for purposes of computing benefits or contributions
under any retirement plan of InterVoice or any Affiliate, nor affect any
benefits or compensation under any other benefit or compensation plan of
InterVoice or any Affiliate now or subsequently in effect.
9.15 CONTINUED EMPLOYMENT. Nothing contained in the Plan or in any
Option Agreement shall confer upon any Participant the right to continue in the
employ of the Company, or interfere in any way with the rights of the Company to
terminate his or her employment at any time, with or without cause.
9.16 MISCELLANEOUS. Headings are given to the articles and sections of
the Plan solely as a convenience to facilitate reference. Such headings shall
not be deemed in any way material or relevant to the construction of the Plan or
any provisions hereof. The use of the masculine gender shall also include within
its meaning the feminine. Wherever the context of the Plan dictates, the use of
the singular shall also include within its meaning the plural, and vice versa.
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IN WITNESS WHEREOF, this Plan has been executed to be effective as of
the 26th day of March, 1998.
INTERVOICE, INC.
By:
Title:
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Exhibit 5.1
[Letterhead of Thompson & Knight, P.C.]
March 8, 1999
InterVoice, Inc.
17811 Waterview Parkway
Dallas, Texas 75252
Re: Registration Statement on Form S-8
Dear Ladies and Gentlemen:
We have acted as counsel for InterVoice, Inc., a Texas corporation (the
"Company"), in connection with the registration under the Securities Act of
1933, as amended (the "Securities Act"), of an aggregate of 500,000 shares of
the Company's Common Stock, no par value per share (the "Shares"), for issuance
under the InterVoice, Inc. 1998 Stock Option Plan (the "Plan").
We have participated in the preparation of the Company's Registration
Statement on Form S-8 (the "Registration Statement"), filed with the Securities
and Exchange Commission, relating to the registration of the Shares under the
Securities Act.
In connection with the foregoing, we have examined the originals or
copies, certified or otherwise authenticated to our satisfaction, of the
resolutions of the Company's Board of Directors establishing the Plan, the
Registration Statement and such corporate records of the Company, certificates
of officers of the Company, and other instruments and documents as we have
deemed necessary to require as a basis for the opinion hereinafter expressed. As
to various questions of fact material to such opinion, we have, where relevant
facts were not independently established, relied upon statements of officers of
the Company whom we believe to be responsible.
Based upon the foregoing and in reliance thereon, we advise you that in
our opinion the Shares, when issued and delivered in accordance with the
provisions of the Plan, will be legally issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Respectfully submitted,
THOMPSON & KNIGHT,
A Professional Corporation
By: /s/ David E. Morrison
--------------------------------
David E. Morrison
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EXHIBIT 23.1
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the InterVoice, inc. 1998 Stock Option Plan of our report
dated April 7, 1998, with respect to the consolidated financial statements and
schedule of InterVoice, Inc. included in its Annual Report (Form 10-K) for the
year ended February 28, 1998, filed with the Securities and Exchange Commission.
March 18, 1999
Dallas, Texas
