As filed with the Securities and Exchange Commission on April 1, 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)
WARRANT TO
HAKEEM, INC.
(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
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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
Common Stock, par value
$.001 per share....... 65,000 $3.75 $24,375 $100
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(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.
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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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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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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) Warrant to Hakeem, Inc.
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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(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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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 ___ 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
//S// TIMOTHY J. CONNOLLY Chief Executive Officer, April 1, 1997
Timothy J. Connolly Chief Financial Officer,
Principal Accounting Officer and
Director
//S// CHARLES W. SKAMSER President and April 1, 1997
Charles W. Skamser Chief Operating Officer
//S// JAN CARSON CONNOLLY Vice President Operations April 1, 1997
Jan Carson Connolly and Director
//S// H. RUSSEL DOUGLAS Vice President Research and April 1, 1997
H. Russel Douglas Development and Director
//S// JESSE MARION Director April 1, 1997
Jesse Marion
//S// G. EDWARD POWELL Director April 1, 1997
G. Edward Powell
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April 1, 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 6,500 shares ("Shares")
of the Company's common stock, par value $.01 per share ("Common Stock")
pursuant to the terms of Warrant No. 2 of Hakeem, Inc. 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
WARRANT NO. 2 TO PURCHASE COMMON STOCK
OF
APPLIED VOICE RECOGNITION, INC.
VOID AFTER AUGUST 31, 2001
This certifies that HAKEEM, INC., a Texas corporation, is entitled
to purchase at any time prior to August 31, 2001 FIVE HUNDRED THOUSAND (500,000)
Shares of fully paid and nonassessable Common Stock, $0.01 par value (the Common
Stock"), of Applied Voice Recognition, Inc., a Utah corporation (the "Company"),
at a price of $1.50 per share, subject to adjustment as provided herein, by
surrendering this Warrant with the subscription form hereinafter set forth fully
executed, at the principal office of the Company in Houston, Texas, accompanied
by payment of the full purchase price of the shares so purchased in cash, and
upon compliance with and subject to the conditions set forth herein. The
purchase price per share and the number of shares covered by this Warrant are
subject to adjustment from time to time as hereinafter set forth.
The purchase price per share of Common Stock from time to time
in effect under this Warrant, and the number and character of shares covered
hereby, shall be subject to adjustments from time to time in certain instances
as follows, and the term "Warrant Price" shall mean the price per share
originally set forth in this Warrant or any price resulting from adjustments
pursuant to the terms hereof.
1. In case the Company shall subdivide its outstanding shares of
Common Stock into a greater number of shares or shall issue in exchange for its
outstanding shares of Common Stock a greater number of shares of Common Stock,
then in each such case from and after the record date for such subdivision or
exchange, the number of shares of Common Stock covered by this Warrant shall be
increased in proportion to such increase in the number of outstanding shares of
Common Stock and the Warrant Price then in effect shall be correspondingly
decreased; and in the case the Company shall reduce the number of shares of its
Common Stock by a combination of shares or shall issue in exchange for its
outstanding shares of Common Stock a lesser number of shares of Common Stock,
then in each such case from and after the record date for such combination or
exchange, the number of shares of Common Stock covered by this Warrant shall be
decreased in proportion to such reduction in the number of outstanding shares of
Common Stock, and the then prevailing Warrant Price shall be correspondingly
increased.
2. In case the Company shall declare and pay a dividend upon its
Common Stock payable in Common Stock, then in each such case from and after the
record date for determining the stockholders entitled to receive such dividend,
the number of shares of Common Stock covered by this Warrant shall be increased
in proportion to the increase in the number of outstanding shares of Common
Stock through such stock dividend, and the then prevailing Warrant price shall
be correspondingly decreased.
<PAGE>
3. In case of any reclassification or change of outstanding shares
of Common Stock (other than as a result of a subdivision, combination or stock
dividend) or in case of the consolidation or merger of the Company with or into
any other corporation (other than a merger in which the Company is the
continuing corporation and which does not result in any reclassification or
change in its outstanding shares of Common Stock), or in case of any sale by the
Company of all or substantially all of its assets to another corporation, the
holder of this Warrant shall have the right thereafter to receive upon exercise
hereof the amount and kind of shares of capital stock and other securities and
property entitled to be received upon such reclassification, change,
consolidation, merger or sale by a holder of the number of shares of Common
Stock of the Company covered by such Warrant at the then prevailing Warrant
Price, subject to subsequent adjustments as provided herein.
4. In case at any time:
(a) the Company shall declare any dividend upon its
Common Stock or make any other distribution to the holders of its
Common Stock; or
(b) the Company shall propose to offer for subscription to the
holders of its Common Stock any additional shares of stock of any
class of any other securities or rights; or
(c) the Company shall propose any reclassification or change
of outstanding shares of Common Stock, or any consolidation or
merger of the Company or any sale by the Company of its assets to
which paragraphs 1, 2 or 3 would be applicable, then, in any one of
more of such cases, the Company shall cause at least twenty (20)
days' prior notice to be mailed to the registered holder of this
Warrant on the date on which the books of the Company shall close or
a record shall be taken for such dividend, distribution or
subscription rights, or for a vote upon such reclassification,
change, consolidation, merger or sale, as the case may be. In
addition, the Company shall mail to the registered holder of this
Warrant copies of each report of communication of the Company mailed
to the holders of its Common Stock simultaneously with such mailing
to holders of Common Stock.
5. (a) As a condition precedent to the taking of any action which
would cause an adjustment reducing the Warrant Price below the then par value of
the shares of Common Stock issuable upon the exercise hereof, the Company will
take such corporate action as may be necessary in order that it may validly and
legally issue fully paid and nonassessable shares of such Common Stock at such
adjusted Warrant Price.
(b) No adjustment shall be made in the number of shares
purchasable upon exercise of this Warrant in any case in which the adjustment
would result in a change of less than 2/100ths of a share of Common Stock, as
such Common Stock is constituted immediately subsequent
<PAGE>
to the event giving rise to the proposed adjustment, except that any action
taken by the Company which otherwise would occasion an adjustment in an amount
less than 2/100ths of a shares shall be carried forward and taken into account
at the time of any subsequent adjustment in the number of shares purchasable
hereunder.
6. (a) This Warrant and all rights hereunder are transferable, in
whole or in part, on the books of the Company maintained at its principal office
in Houston, Texas, by the registered holder hereof, in person or by duly
authorized attorney, upon surrender of this Warrant, properly endorsed and with
the signature of such endorsement either notarized or guaranteed by a commercial
bank or trust company or by a firm which is a member of the New York Stock
Exchange or the American Stock Exchange Clearing Corporation, and upon payment
of any necessary transfer tax or other governmental charge imposed upon such
transfer. Upon any partial transfer, the Company will issue and deliver to such
holder a new Warrant or Warrants with respect to the Common Stock subject to the
Warrants not so transferred.
(b) Each taker and holder of this Warrant, by taking or
holding the same, consents and agrees that this Warrant, when endorsed in blank,
shall be deemed negotiable, and that when this Warrant shall have been so
endorsed, the holder hereof may be treated by the Company and all other persons
dealing with this Warrant as the absolute owner hereof, for any purpose and as
the person entitled to exercise the rights represented hereby, or to the
transfer hereof on the books of the Company, any notice to the contrary
notwithstanding (with the exception of the notice provided by any transfer
restrictions noted on the assignment form hereinafter set forth); but until such
transfer on such books, the Company may treat the registered holder hereof as
the owner for all purposes.
7. (a) This Warrant may be exercised for all or part of the shares
covered hereby. In the event of a partial exercise of this Warrant, the Company
will issue to the holder hereof the number of shares of Common Stock purchased
under this Warrant, together with a new, similar Warrant for the unused portion.
This Warrant may be subdivided into or combined with similar Warrants at any
time, at the option of the holder hereof, at the principal office of the Company
in Houston, Texas.
(b) The Company shall not be required to issue fractional
shares of Common Stock upon any exercise of Warrants. As to any final fraction
of a share in which the same holder of one or more Warrants, the rights under
which are exercised in the same transaction, would otherwise be entitled to
purchase upon such exercise, the Company shall pay a sum in cash equal to the
excess of the market value of such fractional share (determined in such
reasonable manner as the Board of Directors of the Company may prescribe) over
the proportional part f the exercise price represented by such fractional share.
8. The holder of the Warrant shall not be entitled, as such, to any
of the rights of a stockholder of the Company.
IN WITNESS WHEREOF, THE COMPANY HAS CAUSED THIS WARRANT TO BE
EXECUTED BY THE PRESIDENT EFFECTIVE AS OF SEPTEMBER 16, 1996.
<PAGE>
APPLIED VOICE RECOGNITION, INC.
By:___________________________________
Timothy J. Connolly,
Chief Executive Officer,
Chief Financial Officer,
Principal Accounting Officer and
Director
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
