<PAGE> 1
As Filed with the Securities and Exchange Commission on October 15, 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-BRITE, INC.
(Exact name of registrant as specified in its charter)
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)
--------------
INTERVOICE-BRITE, INC. 1999 STOCK OPTION PLAN
(Full title of the Plan)
--------------
ROB-ROY J. GRAHAM Copy to:
CHIEF FINANCIAL OFFICER DAVID E. MORRISON
AND SECRETARY THOMPSON & KNIGHT L.L.P.
INTERVOICE-BRITE, INC. 1700 PACIFIC AVENUE
17811 WATERVIEW PARKWAY SUITE 3300
DALLAS, TEXAS 75252 DALLAS, TEXAS 75201
(Name and address of agent for service) (214) 969-1700
(972) 454-8712
(Telephone number, including
area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -------------------------- ---------------------- --------------------- ---------------------- ----------------------
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 4,000,000 shares $11.26 $45,040,000 $12,522
per share
- -------------------------- ---------------------- --------------------- ---------------------- ----------------------
</TABLE>
(1) This registration statement also covers an equal number of Preferred Share
Purchase Rights issuable pursuant to InterVoice-Brite, 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 ($11.26) as reported on the Nasdaq National
Market on October 13, 1999.
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<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, 1999.
(b) The Company's Quarterly Reports on Form 10-Q for the quarters
ended May 31, 1999 and August 31, 1999; 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-Brite, Inc. 1999 Stock Option Plan.
5.1 Opinion of Thompson & Knight L.L.P., regarding 4,000,000
shares of Common Stock.
23.1 Consent of independent public accountants to incorporation of
reports by reference.
23.2 Consent of counsel (included in the opinion of Thompson &
Knight L.L.P., 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
Registration Statement is on Form S-8 (Section 239.16b), and 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
The Registrant. 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 15th
day of October, 1999.
INTERVOICE-BRITE, 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 October 15, 1999
- --------------------- and Chief Executive Officer
Daniel D. Hammond
/s/ Rob-Roy J. Graham Chief Financial Officer and Secretary October 15, 1999
- --------------------- (Principal Financial Officer and
Rob-Roy J. Graham Principal Accounting Officer)
/s/ Joseph J. Pietropaolo Director October 15, 1999
- -------------------------
Joseph J. Pietropaolo
/s/ George C. Platt Director October 15, 1999
- -------------------
George C. Platt
/s/ Grant A. Dove Director October 15, 1999
- -----------------
Grant A. Dove
/s/ David W. Brandenburg Director October 15, 1999
- ------------------------
David W. Brandenburg
/s/ Stanley G. Brannan Director October 15, 1999
- ----------------------
Stanley G. Brannan
</TABLE>
<PAGE> 6
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT SEQUENTIALLY NUMBERED
NUMBER EXHIBIT PAGE
- ------- ------- ---------------------
<S> <C>
4.1 InterVoice-Brite, Inc. 1999 Stock Option Plan.
5.1 Opinion of Thompson & Knight L.L.P., regarding 4,000,000 shares of
Common Stock.
23.1 Consent of Independent public accountants to incorporation of reports
by reference.
23.2 Consent of counsel (included in the opinion of Thompson & Knight
L.L.P., 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-BRITE, INC.
1999 STOCK OPTION PLAN
ARTICLE 1. ESTABLISHMENT AND PURPOSE
1.1 ESTABLISHMENT. InterVoice-Brite, Inc., a Texas
corporation, hereby establishes the InterVoice-Brite, Inc. 1999 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-Brite. A further purpose of the
Plan is to provide a means through which InterVoice-Brite may attract able
persons to become directors of InterVoice-Brite and to provide directors of
InterVoice-Brite with additional incentive and reward opportunities designed to
strengthen their concern for the welfare of InterVoice-Brite 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 became effective as
of August 17, 1999, upon approval by the Company's shareholders at the annual
meeting.
ARTICLE 2. DEFINITIONS
2.1 AFFILIATE. "Affiliate" means a "parent corporation" or a
"subsidiary corporation" of InterVoice-Brite, 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-Brite.
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.
<PAGE> 2
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-Brite, all of whom are both a "Non-Employee
Director" within the meaning of Rule 16b-3 under the Exchange Act and an
"outside director" within the meaning of the definition of such term as
contained in Treasury Regulation Section 1.162-27(e)(3) interpreting Section
162(m) of the Code, or any successor definitions adopted. 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-Brite, or any stock or other securities of
InterVoice-Brite hereafter issued or issuable in substitution or exchange for
the Common Stock.
2.6 COMPANY. "Company" means InterVoice-Brite 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-Brite; (b) a reorganization, merger or consolidation of
InterVoice-Brite with one or more corporations (other than a merger or
consolidation effecting a reincorporation of InterVoice-Brite 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-Brite 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-Brite; 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-Brite 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-Brite 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-Brite immediately prior to such Control Transaction or (b) any
entity, person or Group acquires shares of InterVoice-Brite 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-Brite 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-Brite, (c) any contested election of directors of
InterVoice-Brite 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"
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<PAGE> 3
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 the grant of
such Option.
2.9 EMPLOYEE. "Employee" means any person treated as an
employee by InterVoice-Brite or an Affiliate. "Employee" shall not include an
Outside Director or any other person treated by InterVoice-Brite 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 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-BRITE. "InterVoice-Brite" means
InterVoice-Brite, 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-Brite 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-Brite who is not also an
Employee.
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<PAGE> 4
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-Brite, Inc. 1999
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 Plan
shall be administered by the Committee. 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 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
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<PAGE> 5
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 or who are "covered employees" within the
meaning of Section 162(m) of the Code.
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 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 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-Brite 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
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<PAGE> 6
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 4,000,000, 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-Brite 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-Brite, 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.
(b) If InterVoice-Brite 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
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<PAGE> 7
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 or the Common Stock underlying such Option to such other
terms, conditions, restrictions and/or limitations (including,
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<PAGE> 8
but not limited to, the time and conditions of exercise or vesting of an Option
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-Brite, 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-Brite 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-Brite 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-Brite 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-Brite 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 or an Affiliate. Such provisions
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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 a Participant's Option
Agreement does not set forth such termination provisions, the following
termination provisions shall apply with respect to such Option:
(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) and (b) 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 or an Affiliate, 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.
6.5 MAXIMUM OPTION GRANTS. Notwithstanding any provision
contained in the Plan to the contrary, the maximum number of shares of Common
Stock for which Options may be granted under the Plan to any one Participant
during a calendar year is 300,000 shares.
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.
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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-Brite if
InterVoice-Brite, 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 (except that such consent shall not be required
in the case of an amendment or modification required following a change in law
or interpretation thereof to cause the Options under the Plan to continue to
qualify as "performance-based compensation" within the meaning of Section
162(m) of the Code).
ARTICLE 9. MISCELLANEOUS
9.1 OPTION AGREEMENTS. After the Committee or the Board
grants an Option under the Plan to a Participant, InterVoice-Brite 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.
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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-Brite 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-Brite 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 of any governmental body which InterVoice-Brite shall, in its
sole discretion, determine to be necessary or advisable.
9.6 BINDING EFFECT. The obligation of InterVoice-Brite under
the Plan shall be binding upon any successor corporation or organization
resulting from the merger, consolidation or other reorganization of
InterVoice-Brite, or upon any successor corporation or organization succeeding
to all or substantially all of the assets and business of InterVoice-Brite. 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-Brite 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-Brite 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-Brite or any Affiliate as a result of such action.
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<PAGE> 12
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-Brite 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-Brite at the principal executive offices of
InterVoice-Brite clearly marked "Attention: Human Resources Department."
9.10 GOVERNING LAW. The Plan shall be governed 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-Brite as a
result of participation in the Plan until the date of issuance of a stock
certificate in his or her name. 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 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-Brite or its Affiliates,
or their respective stockholders, directors, officers or employees, or the
value of any assets of the Plan or as an agreement by InterVoice-Brite 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-Brite
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
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<PAGE> 13
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-Brite or any Affiliate, nor affect any
benefits or compensation under any other benefit or compensation plan of
InterVoice-Brite or any Affiliate now or subsequently in effect.
9.15 CONTINUED EMPLOYMENT OR SERVICE. 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. Further, participation in this Plan shall not give any Outside
Director any right to continue as a director of InterVoice-Brite.
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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Exhibit 5.1
[Letterhead of Thompson & Knight L.L.P.]
October 15, 1999
InterVoice-Brite, 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-Brite, 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
4,000,000 shares of the Company's Common Stock, no par value per share (the
"Shares"), for issuance under the InterVoice-Brite, Inc. 1999 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 L.L.P.
By: /s/ David E. Morrison
-----------------------------------
David E. Morrison, Senior Partner
<PAGE> 1
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-Brite, Inc. 1999 Stock Option Plan of
our report dated April 7, 1999, except for Note 0, as to which the date is
April 27, 1999, with respect to the consolidated financial statements and
schedule of InterVoice-Brite, Inc. included in its Annual Report on Form 10-K/A
(Amendment No. 2) for the year ended February 28, 1999, filed with the
Securities and Exchange Commission.
/s/ Ernst & Young LLP
October 13, 1999
Dallas, Texas
