As filed with the Securities and Exchange Commission on April 2, 1997
Registration No. 333-__________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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APPLIED VOICE RECOGNITION, INC
(Exact name of Registrant as specified in its charter)
UTAH 87-042552
(State or other jurisdiction (I.R.S. Employer
of incorporation or Identification Number)
organization)
4615 Post Oak Place, Suite 111 Timothy J. Connolly
Houston, Texas 77027 4615 Post Oak Place, Suite 111
(713) 621-5678 Houston, Texas 77027
(Address, including zip code, and (Name, address, including zip code,
telephone number, including and telephone number, including
area code of registrant's area code, of agent for service)
principal executive offices)
OPTION TO
JESSE MARION
(Full Title of the Plan)
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COPY TO:
Thomas C. Pritchard
Brewer & Pritchard, P.C.
1111 Bagby, 24th Floor
Houston, Texas 77002
Phone (713) 659-1744
Fax (713) 659-2430
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed
Maximum
Proposed Maximum Aggregate Amount of
TITLE OF SECURITIES Amount Being Offering Price Offering Registration
TO BE REGISTERED Registered(1) Per Share(2) Price(2) Fee
========================= ============= ================== =========== ============
<S> <C> <C> <C> <C>
Common Stock, par value
$.001 per share.......... 16,667 $3.75 $62,501 $100
========================= ============= ================== =========== ============
</TABLE>
(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended, the
number of shares of the issuer's Common Stock registered hereunder will
be adjusted in the event of stock splits, stock dividends or similar
transactions.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457, on the basis of the last sales
price of the Common Stock for March 27, 1997.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by Applied Voice Recognition, Inc.
("Company" or "Registrant") with the Securities and Exchange Commission are
incorporated herein by reference.
1. The Company's latest annual report filed pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934, as amended ("Exchange Act"),
or, either (i) the Company's latest prospectus filed pursuant to Rule 424(b)
under the Securities Act of 1933, as amended ("Securities Act") that contains
audited financial statements for the Company's latest fiscal year for which such
statements have been filed, or (ii) the Company's effective Registration
Statement on Form 10 or Form 10-SB filed under the Exchange Act containing
audited financial statements for the Company's latest fiscal year.
2. All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the document referred
to in (1) above.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment to the Registration Statement which indicates that all
shares of common stock offered have been sold or which deregisters all of such
shares then remaining unsold, shall be deemed to be incorporated by reference in
the Registration Statement and to be a part thereof from the date of filing of
such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Under the Company's Articles of Incorporation, the authorized capital
stock of the Company consists of 50 million shares of Common Stock. As of the
date of this Prospectus, the Company had outstanding 10,829,602 shares of Common
Stock. The Company has reserved 660,000 shares for issuance upon exercise of
outstanding Options and 770,000 shares for issuance upon exercise of Warrants.
The following summary description of the securities of the Company is
qualified in its entirety by reference to the Certificate of Incorporation, a
copy of which is filed as an exhibit to the Registration Statement of which this
Prospectus is a part.
COMMON STOCK
The holders of Common Stock are entitled to one vote per share with
respect to all matters required by law to be submitted to stockholders of the
Company. The holders of Common Stock have the sole right to vote, except as
otherwise provided by law or by the Company's Articles. The Common Stock does
not have any cumulative voting, preemptive, subscription or conversion rights.
Election of directors and other general shareholder action requires the
affirmative vote of a majority of shares represented at a meeting in which a
quorum is represented. The outstanding shares of Common Stock are, and the
shares of Common Stock offered hereby will be, upon payment therefor as
contemplated herein, validly issued, fully paid and non-assessable.
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<PAGE>
WARRANTS
There are warrants outstanding authorizing the holders to purchase an
aggregate of 770,000 shares of Common Stock, currently exercisable and expiring
between two and five years from the date of this Prospectus at exercise prices
between $.14 and $3.00.
OPTIONS
The Company has established a 1996 Stock Option Plan pursuant to which
there are options to purchase 660,000 shares of Common Stock currently
outstanding.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
A. The Corporation shall indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Corporation) by reason of the
fact that he is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction or upon a plea of NOLO CONTENDERE or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
B. The Corporation shall indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action
or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director, officer, employee or agent
of the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
C. To the extent that a director, officer, employee or agent of the
Corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (A) and (B), or in defense
of any claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
D. Any indemnification under subsections (A) and (B) (unless ordered by
a court) shall be made by the Corporation only as authorized in the specific
case upon a determination that indemnification of the director, officer,
employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set
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<PAGE>
forth in subsections (A) and (B). Such determination shall be made (i) by a
majority vote of the directors who are not parties to such action, suit or
proceeding, even though less than a quorum, or (ii) if there are no such
directors, or if such directors so direct, by independent legal counsel in a
written opinion, or (iii) by the stockholders.
E. Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by
the Corporation as authorized by the Certificate of Incorporation. Such expenses
(including attorneys' fees) incurred by other employees and agents may be so
paid upon such terms and conditions, if any, as the Board of Directors deems
appropriate.
F. The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this Article shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office.
G. The Corporation shall have the power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the Corporation would have the power to indemnify him
against such liability under the Certificate of Incorporation.
H. The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
ITEM 8. EXHIBITS
The following exhibits are filed as part of this Registration
Statement:
4.1(1) Form of specimen Common Stock
5.1(2) Opinion Regarding Legality
10.1(2) Option to Jesse Marion
24.1(2) Consent of Malone & Bailey
24.2(2) Consent of Brewer & Pritchard (Contained in Exhibit 5.1)
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(1) The information required by this exhibit is incorporated by reference to
the exhibits filed in connection with the Company's Registration Statement
on Form S-18 (Commission File No. 333-1210-D).
(2) Filed herewith.
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
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<PAGE>
(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 the registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate,
represent a fundamental change in the information set
forth in the registration statement; and
iii. To include any additional or changed material
information with respect to the plan of distribution.
(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 a post-effective
amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining liability under the Securities Act, each filing of the Registrant's
annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial BONA FIDE offering thereof.
(c) 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.
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<PAGE>
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 authorized this Registration Statement
to be signed on its behalf by the undersigned, thereunto duly authorized, in the
City of Houston, State of Houston, on the 2nd day of April, 1997.
Applied Voice Recognition, Inc.
By /s/ TIMOTHY J. CONNOLLY
Timothy J. Connolly,
Chief Executive Officer,
Chief Financial Officer,
Principal Accounting
Officer and Director
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Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated:
Signature Title Date
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/s/ TIMOTHY J. CONNOLLY Chief Executive Officer, April 2, 1997
Timothy J. Connolly Chief Financial Officer,
Principal Accounting
Officer and Director
/s/ CHARLES W. SKAMSER President and April 2, 1997
Charles W. Skamser Chief Operating Officer
/s/ JAN CARSON CONNOLLY Vice President Operations April 2, 1997
Jan Carson Connolly and Director
/s/ H. RUSSEL DOUGLAS Vice President Research and April 2, 1997
H. Russel Douglas Development and Director
/s/ JESSE MARION Director April 2, 1997
Jesse Marion
/s/ G. EDWARD POWELL Director April 2, 1997
G. Edward Powell
II-5
April 2, 1997
Applied Voice Recognition
Suite 211
4615 Post Oak Place
Houston, Texas 77027
Re: Applied Voice Recognition, Inc.
Registration Statement on Form S-8
Gentlemen:
We have represented Applied Voice Recognition, Inc., a Utah corporation
("Company"), in connection with the preparation of a registration statement
filed with the Securities and Exchange Commission on Form S-8 ("Registration
Statement") relating to the proposed issuance of up to 16,667 shares ("Shares")
of the Company's common stock, par value $.01 per share ("Common Stock")
pursuant to the terms of Jesse Marion's Non-Incentive Stock Option Agreement. In
this connection, we have examined originals or copies identified to our
satisfaction of such documents, corporate and other records, certificates, and
other papers as we deemed necessary to examine for purposes of this opinion,
including but not limited to the Plan, the Certificate of Incorporation of the
Company, the Bylaws of the Company, and resolutions of the Board of Directors of
the Company.
We are of the opinion that the Shares will be, when issued pursuant to
the Plan, legally issued, fully paid and nonassessable.
We hereby consent to the filing of this Opinion as an Exhibit to the
Registration Statement.
Very truly yours,
BREWER & PRITCHARD
Thomas C. Pritchard
APPLIED VOICE RECOGNITION, INC.
NON-INCENTIVE STOCK OPTION AGREEMENT
To: Jesse Marion Date of Grant: August 15, 1996
Date of Issuance: December 15,1996
---------------------------------
(Social Security No.)
You are hereby granted as an outside director of Applied Voice Recognition, Inc.
(the "Company"), an option to purchase 50,000 shares of Common Stock, par value
$.01 each (the "Shares"), of the Company at an option price of $1.38 per share.
This option is granted to you pursuant to the Applied Voice Recognition 1996
Director Stock Option Plan, and is subject to the terms and conditions set forth
below.
APPLIED VOICE RECOGNITION, INC.
By__________________________________________
Timothy J. Connolly, President
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TERMS AND CONDITIONS
1. PURCHASE RIGHTS. One-third of the shares underlying this option are
exercisable as of the date of issuance, an additional one-third will become
exercisable at the end of each one-year period from the date of the grant for
the succeeding two years. After that you will be entitled to purchase all of the
Shares covered by this option.
2. EXERCISE IN WHOLE OR PART. To the extent this option has become
exercisable, you may purchase on any date or dates all or any part of the Shares
which you are then entitled to purchase. However, no fractional Shares may be
purchased.
3. TERM OF OPTION. To the extent this Option has become exercisable in
accordance with paragraph 1 above, it may be exercised by you at any time during
the five-year period beginning on the date of grant. To the extent this option
remains unexercised at the end of the five-year period, your unexercised
purchase rights will terminate.
4. PAYMENT OF OPTION PRICE. The option price shall be payable at the time
of exercise. The option price shall be paid at the Office of Secretary at the
Company's corporate headquarters
<PAGE>
or at any other place designated by the Secretary. The option price may be paid
in cash, in accordance with such procedures and subject to such further
conditions as the Secretary of the Company may establish from time to time.
Cash payments shall be made in United States dollars, except that
if at the time of exercise you are employed by or on assignment for the Company
or a subsidiary at a location outside the United States a cash payment may, with
the prior approval of the Secretary of the Company, be made in the official
currency used at such location in an amount specified by the Secretary as
equivalent to the same amount in United States dollars.
5. TAXES. Upon any exercise of this option, the Company may withhold
delivery of certificates for the purchased shares until you make arrangements
satisfactory to the Company to pay any withholding, transfer, or other taxes due
as a result of such exercise.
6. SECURITIES LAWS. This option shall not be exercised if such exercise
would violate any federal or state securities laws. The Company will use its
best efforts to make such filings and initiate such proceedings as may be
necessary to prevent such violations unless the Directors of the Company
determine, in their sole discretion, that such filings or proceedings would
result in undue expense or hardship for the Company. The Company may place
appropriate legends on the certificates for the optioned shares, give stop
transfer instructions to its transfer agents, or take any other action to
achieve compliance with those laws in connection with any exercise of this
option or your resale of the optioned shares.
7. TRANSFERABILITY. This option is not transferable other than by will or
the laws of descent and distribution and shall be exercisable during your
lifetime only by you or your guardian or legal representative.
8. ADJUSTMENTS. The Compensation and Stock Option Committee of the
Company may make such adjustments in the option price and in the number of kind
of shares of Common Stock of the Company or other securities covered by this
option as it in its sole discretion may determine are equitably required to
prevent dilution or enlargement of your rights that would otherwise result from
any stock dividend, stock split, combination of shares, recapitalization or
other change in the capital structure of the Company, merger, consolidation,
reorganization, partial or complete liquidation or other corporate transaction
or event having an effect similar to any of the foregoing.
9. THE "COMPANY" INCLUDES ITS SUBSIDIARIES. For purposes of this option,
employment with a subsidiary of the Company will be treated as equivalent to
employment with the Company itself, and your continuous employment will not be
deemed to be interrupted by reason of your transfer among the Company and its
subsidiaries. "Subsidiary" means a corporation or other entity in an unbroken
chain of entities beginning with the Company if each of the entities other than
the last entity in the unbroken chain owns stock or other ownership
2
<PAGE>
interests possessing 50% or more of the total outstanding combined voting power
of all classes of stock or other interests in the next entity in the chain.
10. MISCELLANEOUS. This stock option is subject to all the terms and
conditions of the Applied Voice Recognition, Inc. 1996 Director Stock Option
Plan pursuant to which it is granted. The Compensation of the Company has
authority to interpret and construe any provision of this instrument and the
Applied Voice Recognition, Inc. 1996 Stock Option Plan pursuant to which this
stock option is granted, and any such interpretation and construction shall be
binding and conclusive.
3
EXHIBIT 24.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in this Form S-8 registration
statement of our report, dated March 12, 1997, on the financial statements of
Applied Voice Recognition, Inc., and to reference to our firm under the caption
"experts" in the prospectus.
Houston, Texas
April 1, 1997
MALONE & BAILEY, PLLC
