<PAGE>
As filed with the Securities and Exchange Commission on May 16, 1995.
Registration No. 33-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
----------------
Form S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
BRITE VOICE SYSTEMS, INC.
(Exact name of issuer as specified in its charter)
Kansas 48-0986248
(State or other (I.R.S. Employer
jurisdiction of incorporation) Identification No.)
7309 East 21st Street North
Wichita, Kansas 67206
(Address of Principal Executive Offices) (Zip Code)
BRITE VOICE SYSTEMS, INC.
1994 STOCK OPTION PLAN
Glenn A. Etherington
Chief Financial Officer
7309 East 21st Street North
Wichita, Kansas 67206-1083
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (316) 652-6500
Copy to:
Thomas P. Garretson, Esq.
Triplett, Woolf & Garretson, LLP
151 North Main Street, Suite 800
Wichita, Kansas 67202-1409
- --------------------------------------------------------------------------------
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
TITLE OF CLASS OF AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO TO BE OFFERING PRICE AGGREGATE REGISTRATION
BE REGISTERED REGISTERED PER SHARE * OFFERING FEE
PRICE
- ------------------------------------------------------------------------------------------------
Common Stock, 1,000,000 $18.25 $18,250,000 $6,293
no par value,
under 1994 Stock
Option Plan
- ------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------
<FN>
* Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457, on the basis of the average high and low prices of the
Registrant's common stock on the NASDAQ Stock Market on May 12, 1995.
</TABLE>
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. PLAN INFORMATION.
The documents containing the information specified in this Item 1 will be
sent or given to eligible employees as specified by Rule 428(b)(1). In
accordance with the rules and regulations of the Securities and Exchange
Commission (the "Commission") and the instructions to Form S-8, such documents
are not being filed with the Commission, either as part of this Registration
Statement or as prospectuses or prospectus supplements pursuant to Rule 424.
Item 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
The documents containing the information specified in this Item 2 will be
sent or given to eligible employees as specified by Rule 428(b)(1). In
accordance with the rules and regulations of the Commission and the instructions
to Form S-8, such documents are not being filed with the Commission, either as
part of this Registration Statement or as prospectuses or prospectus supplements
pursuant to Rule 424.
I - 1
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Commission are incorporated by
reference in this Registration Statement:
A. Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1994, filed pursuant to Section 13(a) of the Securities
Exchange Act of 1934, as amended.
B. Registrant's Quarterly Report on Form 10-Q for the quarter ended March
31, 1995, filed pursuant to Section 13(a) of the Securities Exchange
Act of 1934, as amended, and all other reports, if any, filed by the
Registrant pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 since the end of the fiscal year ended December
31, 1994.
C. Item 1, "Description of Registrant's Securities to be Registered",
contained in the Registrant's Registration Statement on Form 8-A filed
pursuant to Section 12(g) of the Securities Exchange Act of 1934, as
amended, on August 9, 1989.
All documents subsequently filed with the Commission by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934 prior to the filing of a post-effective amendment which indicates that
all securities offered herein have been sold, or which de-registers all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part thereof from the date
of filing of such documents.
Item 4. DESCRIPTION OF SECURITIES.
Not applicable; the class of securities to be offered is registered under
Section 12 of the Securities Exchange Act of 1934.
Item 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
Not applicable.
II - 1
<PAGE>
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 17-6305 of the Kansas Statutes Annotated, as amended ("K.S.A.")
contains detailed provisions for indemnification of certain persons, including
directors and officers of Kansas corporations, against expenses, judgments,
fines and settlements in connection with litigation.
Article VIII of the Company's Restated Articles of Incorporation limits a
director's liability to the Company or its stockholders for monetary damages for
breach of fiduciary duty as a director, except (i) for any breach of the
director's duty of loyalty to the Company or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) for dividends, stock repurchases and other distributions
made in violation of Kansas law, or (iv) for any transaction from which the
director derived any improper personal benefit.
Article V of the Company's Bylaws provides for indemnification of certain
persons, including directors and officers of the Company, substantially the same
as that permitted by K.S.A. section 17-6305. Section 17-6305(g) provides that a
Kansas corporation may obtain insurance to indemnify its directors and officers.
The Company has directors' and officers' insurance which protects each director
or officer from liability for actions taken in their capacity as directors or
officers.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable
Item 8. EXHIBITS
EXHIBIT NO. DESCRIPTION
- ----------- -----------
4.1 Specimen certificate representing the common stock of the
Registrant (filed as Exhibit 4.1 to registrant's Registration
Statement on Form S-1, Registration No. 33-29750, and
incorporated herein by reference).
4.2 Restated Articles of Incorporation of the registrant (filed as
Exhibit 3.1 to Registrant's Registration Statement on Form S-1,
Registration No. 33-29750, and incorporated herein by reference).
II - 2
<PAGE>
4.3 Bylaws of the registrant, as amended (filed as Exhibit 3.2 to
registrant's Registration Statement on Form S-1, Registration No.
33-29750, and incorporated herein by reference).
4.4 Brite Voice Systems, Inc. 1994 Stock Option Plan
5.1 Opinion of Triplett, Woolf & Garretson, LLP
23.1 Consent of Baird, Kurtz & Dobson
23.2 Consent of Arthur Andersen LLP
23.3 Consent of Triplett, Woolf & Garretson, LLP (contained in Exhibit
5.1)
24.1 Power of Attorney (included as part of the Signature Page to this
Registration Statement).
Item 9. UNDERTAKINGS.
(a) The undersigned 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 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;
(iii) to include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such information
in the registration statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed by the registrant pursuant to section 13 or section
15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new
II - 3
<PAGE>
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 hereof.
(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 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 (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to section
15(d) of the Securities Exchange Act of 1934) 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 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.
II - 4
<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 has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Wichita, State of Kansas, on the 12th day of May,
1995.
BRITE VOICE SYSTEMS, INC.
By /s/ Stanley G. Brannan
---------------------------------------------------
Stanley G. Brannan, Chairman and
President (Principal Executive Officer)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each such person whose signature
appears below constitutes and appoints, jointly and severally, Stanley G.
Brannan and Glenn A. Etherington his attorneys-in-fact, each with the power of
substitution, for him and in any and all capacities, to sign any amendments to
this Registration Statement on Form S-8 (including post-effective amendments)
and to file the same, with all Exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, hereby
ratifying and confirming all that each of said attorneys-in-fact, or his
substitute or substitutes, may do or cause to be done by virtue hereof.
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 date indicated:
Signature Title Date
- -------------------------------------------------------------------------------
/s/ Stanley G. Brannan President, Chief May 12, 1995
- ---------------------------- Executive Officer
Stanley G. Brannan and Director
/s/ Glenn A. Etherington Chief Financial May 12, 1995
- ---------------------------- Officer (Principal
Glenn A. Etherington Accounting Officer) and
Director
II - 5
<PAGE>
/s/ Perry E. Esping Director May 12, 1995
- ----------------------------
Perry E. Esping
/s/ C. MacKay Ganson, Jr. Director May 12, 1995
- ----------------------------
C. MacKay Ganson, Jr.
Director May , 1995
- ----------------------------
David S. Gergacz
/s/ John F. Kelsey, III Director May 12, 1995
- ----------------------------
John F. Kelsey, III
II - 6
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
- ----------- -----------
4.1 Specimen certificate representing the common stock of the Registrant
(filed as Exhibit 4.1 to registrant's Registration Statement on Form
S-1, Registration No. 33-29750, and incorporated herein by reference).
4.2 Restated Articles of Incorporation of the registrant (filed as Exhibit
3.1 to Registrant's Registration Statement on Form S-1, Registration
No. 33-29750, and incorporated herein by reference).
4.3 Bylaws of the registrant, as amended (filed as Exhibit 3.2 to
registrant's Registration Statement on Form S-1, Registration No.
33-29750, and incorporated herein by reference).
4.4 Brite Voice Systems, Inc. 1994 Stock Option Plan
5.1 Opinion of Triplett, Woolf & Garretson, LLP
23.1 Consent of Baird, Kurtz & Dobson
23.2 Consent of Arthur Andersen LLP
23.3 Consent of Triplett, Woolf & Garretson, LLP (contained in Exhibit 5.1)
24.1 Power of Attorney (included as part of the Signature Page to this
Registration Statement).
<PAGE>
EXHIBIT 4.4
Brite Voice Systems, Inc. 1994 Stock Option Plan
<PAGE>
BRITE VOICE SYSTEMS, INC.
1994 STOCK OPTION PLAN
1. PURPOSE. The purpose of the Plan is to advance the interests of the
Company and its stockholders by helping the Company or its Subsidiaries obtain
and retain the services of employees upon whose judgment, initiative and efforts
the Company and its Subsidiaries are substantially dependent, and to provide
those persons with further incentives to advance the interests of the Company
and its Subsidiaries. The Plan is intended to provide incentives to the
employees of the Company and its Subsidiaries by providing them with
opportunities to purchase common stock in the Company pursuant to ISOs and/or
NSOs (as defined herein) granted hereunder.
2. EFFECTIVE DATE AND TERM OF PLAN.
(a) EFFECTIVE DATE. The Plan will become effective on the date of
its adoption by the Board, provided the Plan is approved by the
stockholders of the Company (excluding holders of shares of Stock issued by
the Company pursuant to the exercise of Options granted under the Plan)
within 12 months after that date. If the Plan is not so approved by the
stockholders of the Company, any Options granted under the Plan will be
rescinded and will be void.
(b) TERM. The Plan will remain in effect until it is terminated by
the Board or the Compensation Committee under section 11 hereof, or the
10th anniversary of the date of the Plan's adoption by the Board, whichever
is earlier.
3. DEFINITIONS. Unless the context otherwise requires, the following
defined terms (together with other capitalized terms defined elsewhere in the
Plan) will govern the construction of the Plan, and of any Option Agreements
entered into pursuant to the Plan:
(a) "10% Stockholder" means a person who owns, either directly or
indirectly by virtue of the ownership attribution provisions set forth in
Section 424(d) of the Code at the time he or she is granted an Option,
stock possessing more than 10% of the total combined voting power or value
of all classes of stock of the Company and/or of its Subsidiaries;
(b) "1933 Act" means the Securities Act of 1933, as amended, and the
rules and regulations thereunder;
(c) "1934 Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations thereunder;
(d) "Board" means the Board of Directors of the Company;
(e) "Code" means the Internal Revenue Code of 1986, as amended
(references herein to Sections of the Code are intended to refer to
Sections of the Code as enacted at the
<PAGE>
time of the Plan's adoption by the Board and as subsequently amended, or to
any substantially similar successor provisions of the Code resulting from
recodification, renumbering or otherwise);
(f) "Company" means Brite Voice Systems, Inc., a Kansas corporation;
(g) "Compensation Committee" means a committee of two or more
Disinterested Directors, appointed by the Board, to administer and
interpret the Plan; provided that the such term will refer to the Board
during such times as no Compensation Committee is appointed by the Board;
(h) "Disability" has the same meaning as "permanent and total
disability," as defined in Section 22(e)(3) of the Code;
(i) "Disinterested Director" means a member of the Board who is not
during the period of one year prior to his or her service as an
administrator of the Plan, or during the period of such service, granted or
awarded Stock, options to acquire Stock, or similar equity securities of
the Company under the Plan or any similar plan of the Company, other than a
member of the Board who (1) participates in a formula plan meeting the
conditions of Rule 16b-3(c)(2)(ii) under the 1934 Act, or (2) participates
in an ongoing securities acquisition plan meeting the conditions of Rule
16b-3(d)(2)(i);
(j) "Disqualifying Disposition" means any disposition (including any
sale) of Stock acquired by reason of the exercise of an ISO before the
later of (1) two years after the Optionee was granted the ISO under which
he or she acquired the Stock, or (2) one year after the Optionee acquired
the Stock by exercising the ISO. If the Optionee has died before such
Stock is sold, the holding period requirements do not apply and no
Disqualifying Disposition will thereafter occur.
(k) "Eligible Participants" means persons who, at a particular time,
are employees of the Company or its Subsidiaries;
(l) "Fair Market Value" means the market price per share of the Stock
determined by the Compensation Committee, consistent with the requirements
of Section 422 of the Code and, to the extent consistent therewith, as
follows:
(i) If the Stock was traded on a stock exchange on the date in
question, then the Fair Market Value will be equal to the closing
price reported by the applicable composite transactions report for
such date;
- 2 -
<PAGE>
(ii) If the Stock was traded over-the-counter on the date in
question and was classified as a National Market System issue, then
the Fair Market Value will be equal to the closing price quoted by the
National Association of Securities Dealers Automated Quotation
("NASDAQ") System for such date;
(iii) If the Stock was traded over-the-counter on the date in
question but was not classified as a National Market System issue,
then the Fair Market Value will be equal to the average of the last
reported representative bid and asked prices quoted by the NASDAQ
System for such date; and
(iv) If none of the foregoing provisions is applicable, then the
Fair Market Value will be determined by the Compensation Committee in
good faith on such basis as it deems appropriate.
(m) "ISO" has the same meaning as "incentive stock option," as
defined in Section 422 of the Code;
(n) "NSO" means any Option granted under the Plan whether designated
by the Compensation Committee as a "non-qualified stock option," a
"non-statutory stock option" or otherwise, other than an Option designated
by the Compensation Committee as an ISO, or any Option so designated but
which, for any reason, fails to qualify as an ISO pursuant to Section 422
of the Code and the rules and regulations thereunder;
(o) "Option" means an option granted pursuant to the Plan entitling
the Optionee to acquire shares of Stock issued by the Company pursuant to
the valid exercise of the option;
(p) "Option Agreement" means an agreement between the Company and an
Optionee, in form and substance satisfactory to the Compensation Committee
in its sole discretion, consistent with the Plan;
(q) "Option Price" with respect to any particular Option means the
exercise price at which the Optionee may acquire each share of the Option
Stock called for under such Option;
(r) "Option Stock" means Stock issued or issuable by the Company
pursuant to the valid exercise of an Option;
(s) "Optionee" means an Eligible Participant to whom Options are
granted hereunder, and any transferee thereof pursuant to a Transfer
authorized under the Plan;
- 3 -
<PAGE>
(t) "Plan" means the 1994 Stock Option Plan of the Company;
(u) "QDRO" has the same meaning as "qualified domestic relations
order" as defined in Section 414(p) of the Code;
(v) "Stock" means shares of the Company's no par value Common Stock;
(w) "Subsidiary" has the same meaning as "Subsidiary Corporation" as
defined in Section 424(f) of the Code;
(x) "Transfer," with respect to Option Stock, includes, without
limitation, a voluntary or involuntary sale, assignment, transfer,
conveyance, pledge, hypothecation, encumbrance, disposal, loan, gift,
attachment or levy of such Option Stock, including without limitation an
assignment for the benefit of creditors of the Optionee, a transfer by
operation of law, such as a transfer by will or under the laws of descent
and distribution, an execution of judgment against the Option Stock or the
acquisition of record or beneficial ownership thereof by a lender or
creditor, a transfer pursuant to a QDRO, or to any decree of divorce,
dissolution or separate maintenance, any property settlement, any
separation agreement or any other agreement with a spouse (except for
estate planning purposes) under which a part or all of the shares of Option
Stock are transferred or awarded to the spouse of the Optionee or are
required to be sold; or a transfer resulting from the filing by the
Optionee of a petition for relief, or the filing of an involuntary petition
against such Optionee, under the bankruptcy laws of the United States or of
any other nation.
4. ELIGIBILITY. The Company may grant Options under the Plan only to
persons who are Eligible Participants as of the time of such grant. Subject to
the provisions of Sections 6 and 7 hereof, there is no limitation on the number
of Options that may be granted to an Eligible Participant. Notwithstanding the
general eligibility provisions of section 1 hereof, the Compensation Committee
may grant ISOs only to persons who are employees of the Company and/or its
Subsidiaries.
5. ADMINISTRATION.
(a) COMPENSATION COMMITTEE. The Compensation Committee, if appointed
by the Board, will administer the Plan. If the Board, in its discretion,
does not appoint such a Committee, the Board itself will administer the
Plan and take such other actions as the Compensation Committee is
authorized to take hereunder; provided that the Board may take such actions
hereunder in the same manner as the Board may take other actions under the
Company's Articles of incorporation and
- 4 -
<PAGE>
bylaws generally. From time to time the Board may increase the size of the
Compensation Committee and appoint additional members thereof, remove
members (with or without cause) and appoint new members in substitution
therefor, fill vacancies however caused, or remove all members of the
Compensation Committee and thereafter directly administer the Plan.
(b) AUTHORITY AND DISCRETION OF COMPENSATION COMMITTEE. The
Compensation Committee will have full and final authority in its
discretion, subject only to the express terms, conditions and other
provisions of the Company's Articles of incorporation, bylaws and the Plan,
and the specific limitations on such discretion set forth herein:
(i) to select and approve the persons who will be granted
Options under the Plan from among the Eligible Participants, and to
grant to any person so selected one or more Options to purchase such
number of shares of Option Stock as the Compensation Committee may
determine;
(ii) to determine the period or periods of time during which
Options may be exercised, the Option Price and the duration of such
Options, and other matters to be determined by the Compensation
Committee in connection with specific Option grants and Option
Agreements as specified under the Plan; and
(iii) to interpret the Plan, to prescribe, amend and rescind
rules and regulations relating to the Plan, and to make all other
determinations necessary or advisable for the operation and
administration of the Plan.
(c) LIMITATION ON AUTHORITY. Notwithstanding the foregoing, or any
other provision of the Plan, the Compensation Committee will have no
authority to grant Options to any of its members, whether or not approved
by the Board.
(d) PROCEDURE. The Compensation Committee may select one of its
members as its chairman, and shall hold meetings at such time and places as
it may determine. Acts by a majority of the Compensation Committee, or
acts reduced to or approved in writing by a majority of the members of the
Compensation Committee, shall be the valid acts of the Compensation
Committee.
(e) DESIGNATION OF OPTIONS. Except as otherwise provided herein, the
Compensation Committee will designate any Option granted hereunder either
as an ISO or as an NSO. If the Fair Market Value (determined at the time
the Option is granted) of Stock with respect to which all ISOs are
exercisable for the first time by any individual during any calendar year
(pursuant to the Plan and all other plans of the Company
- 5 -
<PAGE>
and/or its Subsidiaries) exceeds $100,000, that portion of the Option which
exceeds $100,000 shall be treated as an NSO.
6. SHARES RESERVED FOR OPTIONS.
(a) OPTION POOL. The aggregate number of shares of Option Stock that
may be issued pursuant to the exercise of Options granted under the Plan
will not exceed 1,000,000 (the "Option Pool"). Shares of Option Stock
that would have been issuable pursuant to Options, but that are no longer
issuable because all or part of those Options have terminated or expired,
will be deemed not to have been issued for purposes of computing the number
of shares of Option Stock remaining in the Option Pool and available for
issuance.
(b) ADJUSTMENTS UPON CHANGES IN STOCK. In the event of any change in
the outstanding Stock of the Company as a result of a stock split, reverse
stock split, stock dividend, recapitalization, combination or
reclassification, proportionate adjustments will be made in the aggregate
number of shares of Option Stock in the Option Pool that may be issued
pursuant to the exercise of Options granted hereunder, and other rights and
matters determined on a per share basis under the Plan. Any such
adjustments will be made only by the Board, and when so made will be
effective, conclusive and binding for all purposes with respect to the
Plan. No such adjustments will be required by reason of the issuance or
sale by the Company for cash or other consideration of additional shares of
its Stock or securities convertible into or exchangeable for shares of its
Stock.
7. OPTION AGREEMENTS. An Option will be deemed granted hereunder at such
time as the Compensation Committee has taken action to grant such Option in
accordance with the procedures set forth in Section 5.(d), except as otherwise
determined by the Compensation Committee as a part of such action. Each Option
granted pursuant to the Plan will be evidenced by an Option Agreement, and
(unless otherwise stated therein) shall comply with and be subject to the
following terms and conditions:
(a) NUMBER OF SHARES. Each Option Agreement shall state the number
of shares of Option Stock to which the Option pertains.
(b) PAYMENT OF OPTION PRICE. Each Option Agreement will specify the
Option Price with respect to the exercise of Option Stock thereunder, to be
fixed by the Compensation Committee in its discretion, but in no event will
the Option Price for an ISO granted hereunder be less than the Fair Market
Value (or, if the Optionee is a 10% Stockholder, 110% of such Fair Market
Value) of the Option Stock at the time such ISO is granted, and in no event
will the Option Price
- 6 -
<PAGE>
for an NSO granted hereunder be less than 85% of Fair Market Value of the
Option Stock at the time such NSO is granted. The Option Price will be
payable to the Company in United States dollars in cash or by check or such
other legal consideration as may be approved by the Compensation Committee,
in its discretion.
(c) TERM OF THE OPTION. Except as otherwise provided herein, each
Option Agreement will specify the period of time (the "Option Period")
during which the Option granted therein will be exercisable. The Option
Period shall not exceed 10 years from the date of grant; provided that the
Option Period shall not exceed five years from the date of grant in the
case of an ISO granted to a 10% Stockholder. To the extent not previously
exercised, each Option will terminate upon the expiration of the Option
Period specified in the Option Agreement.
(d) VESTING PERIODS. No Option shall be exercisable, either in whole
or in part, prior to one year from the date it is granted. Subject to the
right of accumulation hereinafter provided, each Option shall be
exercisable in accordance with such vesting schedule as the Compensation
Committee may approve during each successive period specified by the
Compensation Committee until all shares covered by the Option are
exercisable. To the extent not exercised, installments shall accumulate
and be exercisable in whole or in part in any subsequent period. The
Compensation Committee may provide, however, for the exercise of Options
after the initial period, either as to an increased percentage or shares
per year or as to all remaining shares.
(e) TERMINATION OF EMPLOYMENT EXCEPT UPON DEATH. In the event an
Optionee shall cease to be employed by the Company or its Subsidiaries for
any reason other than death and shall be no longer in the employ of any of
them, such Optionee shall have the right to exercise the Option which is an
ISO at any time within three months after such termination of employment to
the extent his or her right to exercise such Option had accrued pursuant to
Section 7.(c) of the Plan and had not previously been exercised at the date
of such termination; provided, however, if such termination of employment
is by reason of the Optionee's Disability, the three-month period set forth
above shall be one year.
(f) DEATH OF OPTIONEE AND TRANSFER OF OPTION. If an Optionee shall
die while in the employ of the Company or any of its Subsidiaries, or
within a period of three months after the termination of his or her
employment with the Company and all Subsidiaries, and shall not have fully
exercised the Option, an Option which is an ISO may be exercised to the
extent that the Employee's right to exercise such Option had
- 7 -
<PAGE>
accrued pursuant to Section 7.(c) of the Plan at the time of his or her
death and had not previously been exercised, at any time within one year
after the Optionee's death, by the executor or administrator of the estate
of the Optionee or by any person or persons who shall have acquired the
Option directly from the Optionee by bequest or inheritance.
(g) OPTIONS NONTRANSFERABLE. No Option will be transferable by the
Optionee other than by will or the laws of descent and distribution, or in
the case of an NSO, pursuant to a QDRO. During the lifetime of the
Optionee, the Option will be exercisable only by him or her, or the
transferee of an NSO if it was transferred pursuant to a QDRO.
(h) COVENANTS OF OPTIONEE. At the discretion of the Compensation
Committee, the person to whom an Option is granted hereunder, as a
condition to the granting of the Option, must execute and deliver to the
Company a confidential information agreement and/or non-competition
agreement approved by the Compensation Committee.
(i) RECAPITALIZATION.
(i) Subject to any required action by the stockholders, the
number of shares of Stock covered by each outstanding Option, and the
price per share thereof of each such Option shall be proportionately
adjusted for any increase or decrease in the number of issued shares
of Stock of the Company resulting from a subdivision or consolidation
of shares or the payment of a stock dividend (but only on the Stock)
or any increase or decrease in the number of such shares effected
without receipt of consideration by the Company.
(ii) In the event of a sale of all or substantially all of the
assets of the Company, or a merger or consolidation or other
reorganization in which the Company is not the surviving corporation,
or in which the Company becomes a subsidiary of another corporation
(any of the foregoing events, a "Corporate Transaction"), then
notwithstanding anything else herein, the right to exercise all then
outstanding Options will vest immediately prior to such Corporate
Transaction and will terminate immediately after such Corporate
Transaction; provided, however, that if the Board, in its sole
discretion, determines that such immediate vesting of the right to
exercise outstanding Options is not in the best interests of the
Company, then the successor corporation must agree to assume the
outstanding Options or substitute therefor comparable options of such
successor corporation or a parent or subsidiary of such successor
corporation.
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<PAGE>
(iii) In the event of a change in the Stock of the Company as
presently constituted, which is limited to a change of all of its
authorized shares without par value into the same number of shares
with a par value, the shares resulting from any such change shall be
deemed to be the Stock within the meaning of the Plan.
(iv) To the extent that the foregoing adjustments relate to
Stock, such adjustments shall be made by the Compensation Committee
whose determination in that respect shall be final, binding and
conclusive, provided that each ISO granted pursuant to the Plan shall
not be adjusted in a manner that causes the ISO to fail to continue to
qualify as an incentive stock option within the meaning of Section 422
of the Code. Notwithstanding the foregoing, any adjustments with
respect to ISOs shall be made only after the Compensation Committee,
after consulting with counsel for the Company, determines whether such
adjustments would constitute a "modification" of such ISOs as that
term is defined in Section 425 of the Code, or would cause any adverse
tax consequences for the holders of such ISOs. If the Compensation
Committee determines that such adjustments made with respect to ISOs
would constitute a modification of such ISOs, it may refrain from
making such adjustments.
(v) Except as hereinbefore expressly provided in Section 7.(i),
the Optionee shall have no rights by reason of any subdivision or
consolidation of shares of stock of any class or the payment of any
stock dividend or any other increase or decrease in the number of
shares of stock of any class or by reason of any dissolution,
liquidation, merger, or consolidation or spin-off of assets or stock
of another corporation, and any issue by the Company of shares of
stock of any class, or securities convertible into shares of stock of
any class, shall not affect, and no adjustment by reason thereof shall
be made with respect to, the number or price of shares of Stock
subject to the Option.
(vi) No fractional share shall be issued under the Plan. Any
fractional share which, but for this section 7.(i)(vi), would have
been issued to an Optionee pursuant to an Option, shall be deemed to
have been issued and immediately sold to the Company for its Fair
Market Value, and the Optionee shall receive from the Company cash in
lieu of such fractional share.
(vii) The grant of an Option pursuant to the Plan shall not
affect in any way the right or power of the Company to make
adjustments, reclassifications, reorganization or changes of its
capital or business structure or
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to merge or to consolidate or to dissolve, liquidate or sell, or
transfer all or any part of its business or assets.
(j) LEAVES AND TRANSFERS. A leave of absence with the written
approval of the Compensation Committee shall not be considered an
interruption of employment, provided that such written approval
contractually obligates the Company or any Subsidiary to continue the
employment of the employee after the approved period of absence.
Employment shall also be considered as continuing uninterrupted during any
other bona fide leave of absence (such as those attributable to illness,
military obligations or governmental service) provided that the period of
such leave does not exceed 90 days or, if longer, any period during which
such Optionee's right to re-employment is guaranteed by statute. ISOs
granted under the Plan shall not be affected by any change of employment
within or among the Company and Subsidiaries, so long as the Optionee
continues to be an employee of the Company or any Subsidiary.
(k) OTHER PROVISIONS. The Option Agreement may contain such other
terms, provisions and conditions, including such special forfeiture
conditions, conditions to vesting, rights of repurchase, rights of first
refusal and other restrictions on Transfer of Option Stock issued upon
exercise of any Options granted hereunder, not inconsistent with the Plan,
as may be determined by the Compensation Committee in its sole discretion.
8. EXERCISE OF THE OPTION.
(a) MECHANICS AND NOTICE. An Option may be exercised to the extent
exercisable (1) by giving written notice of exercise to the Company,
specifying the number of full shares of Option Stock to be purchased and
accompanied by full payment of the Option Price thereof and the amount of
withholding taxes due pursuant to section 8.(c) below; and (2) by giving
assurances satisfactory to the Company that the shares of Option Stock to
be purchased upon such exercise are being purchased for investment and not
with a view to resale in connection with any distribution of such shares in
violation of the 1933 Act; provided, however, that in the event the Option
Stock called for under the Option is registered under the 1933 Act, or in
the event resale of such Option Stock without such registration would
otherwise be permissible, this second condition will be inoperative if, in
the opinion of counsel for the Company, such condition is not required
under the 1933 Act, or any other applicable law, regulation or rule of any
governmental agency.
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<PAGE>
(b) NOTICE TO COMPANY OF DISQUALIFYING DISPOSITION. Each Optionee
shall agree to notify the Company in writing immediately after the Optionee
makes a Disqualifying Disposition of any Option Stock received pursuant to
the exercise of an ISO.
(c) WITHHOLDING TAXES. As a condition to the issuance of shares of
Option Stock upon full or partial exercise of an NSO granted under the
Plan, and upon the making of a Disqualifying Disposition, the Optionee will
pay to the Company in cash, or in such other form as the Compensation
Committee may determine in its discretion, the amount of the Company's tax
withholding liability required in connection with such exercise or
disposition. For purposes of this section 8.(c), "tax withholding
liability" will mean all federal and state income taxes, social security
tax, and any other taxes applicable to the compensation income arising from
the transaction required by applicable law to be withheld by the Company.
(d) QUALIFICATION OF STOCK. The right to exercise an Option will be
further subject to the requirement that if at any time the Board
determines, in its discretion, that the listing, registration or
qualification of the shares of Option Stock called for thereunder upon any
securities exchange or under any state or federal law, or the consent or
approval of any governmental regulatory authority, is necessary or
desirable as a condition of or in connection with the granting of such
Option or the purchase of shares of Option Stock thereunder, the Option may
not be exercised, in whole or in part, unless and until such listing,
registration, qualification, consent or approval is effected or obtained
free of any conditions not acceptable to the Board, in its discretion.
(e) ADDITIONAL RESTRICTIONS ON TRANSFER. By accepting Options and/or
Option Stock under the Plan, the Optionee will be deemed to represent,
warrant and agree as follows:
(i) SECURITIES ACT OF 1933. The Optionee understands that the
shares of Option Stock have not been registered under the 1933 Act,
and that such shares are not freely tradeable and must be held
indefinitely unless such shares are either registered under the 1933
Act or an exemption from such registration is available. The Optionee
understands that the Company is under no obligation to register the
shares of Option Stock.
(ii) OTHER APPLICABLE LAWS. The Optionee further understands
that Transfer of the Option Stock requires full compliance with the
provisions of all applicable laws.
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<PAGE>
(iii) INVESTMENT INTENT. Unless a registration statement is in
effect with respect to the sale of Option Stock obtained through
exercise of Options granted hereunder: (1) Upon exercise of any
Option, the Optionee will purchase the Option Stock for his or her own
account and not with a view to distribution within the meaning of the
1933 Act, other than as may be effected in compliance with the 1933
Act and the rules and regulations promulgated thereunder; (2) no one
else will have any beneficial interest in the Option Stock; and (3) he
or she has no present intention of disposing of the Option Stock at
any particular time.
(f) COMPLIANCE WITH LAW. Notwithstanding any other provision of the
Plan, Options may be granted pursuant to the Plan, and Option Stock may be
issued pursuant to the exercise thereof by an Optionee, only after there
has been compliance with all applicable federal and state securities laws,
and all of the same will be subject to this overriding condition. The
Company will not be required to register or qualify Option Stock with the
Securities and Exchange Commission or any State agency, except that the
Company will register with, or as required by local law, file for and
secure an exemption from such registration requirements from, the
applicable securities administrator and other officials of each
jurisdiction in which an Eligible Participant would be granted an Option
hereunder prior to such grant.
(g) STOCK CERTIFICATES. Certificates representing the Option Stock
issued pursuant to the exercise of Options will bear all legends required
by law and necessary to effectuate the Plan's provisions. The Company may
place a "stop transfer" order against shares of the Option Stock until all
restrictions and conditions set forth in the Plan and in the legends
referred to in this section 8.(g) have been complied with.
(h) NOTICES. Any notice to be given to the Company under the terms
of an Option Agreement will be addressed to the Company at its principal
executive office, Attention: Corporate Secretary, or at such other address
as the Company may designate in writing. Any notice to be given to an
Optionee will be addressed to the Optionee at the address provided to the
Company by the Optionee. Any such notice will be deemed to have been duly
given if and when enclosed in a properly sealed envelope, addressed as
aforesaid, and deposited, postage prepaid, in a post office or branch post
office.
9. PROCEEDS FROM SALE OF STOCK. Cash proceeds from the sale of shares of
Option Stock issued from time to time upon the exercise of Options granted
pursuant to the Plan will be added to
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the general funds of the Company and as such will be used from time to time for
general corporate purposes.
10. MODIFICATION, EXTENSION AND RENEWAL OF OPTIONS. Subject to the terms
and conditions and within the limitations of the Plan, the Compensation
Committee may modify, extend or renew outstanding Options granted under the
Plan, or accept the surrender of outstanding Options (to the extent not
theretofore exercised) and authorize the granting of new Options in substitution
therefor (to the extent not theretofore exercised). The Compensation Committee
shall not, however, modify any outstanding Options so as to specify a lower
price. The Compensation Committee may accept the surrender of outstanding
Options and authorize the granting of new Options in substitution therefor,
specifying a lower price and a new vesting schedule consistent with the vesting
schedule set forth in the surrendered Options, but beginning as of the date of
surrender. Notwithstanding the foregoing, however, no modification of any
Option will, without the consent of the holder of the Option, alter or impair
any rights or obligations under any Option theretofore granted under the Plan.
11. AMENDMENT AND DISCONTINUANCE. The Board may amend, suspend or
discontinue the Plan; provided that no action of the Board will cause ISOs
granted under the Plan not to comply with Section 422 of the Code unless the
Board specifically declares such action to be made for that purpose and provided
further that no such action may, without the approval of the stockholders of the
Company, materially increase (other than by reason of an adjustment pursuant to
section 6.(b) hereto the maximum aggregate number of shares of Option Stock in
the Option Pool that may be issued under Options granted pursuant to the Plan or
materially increase the benefits accruing to Plan participants or materially
modify eligibility requirements for the participants. Moreover, no such action
may alter or impair any Option previously granted under the Plan without the
consent of the holder of such Option.
12. PLAN COMPLIANCE WITH RULE 16b-3. With respect to persons subject to
Section 16 of the 1934 Act, transactions under the plan are intended to comply
with all applicable conditions of Rule 16b-3 under the 1934 Act. To the extent
any provision of the plan or action by the plan administrators fails so to
comply, it shall be deemed null and void, to the extent permitted by law and
deemed advisable by the plan administrators.
13. STATUS. Nothing contained in the Plan, any Option Agreement or in any
other agreement executed in connection with the granting of an Option under the
Plan will confer upon any Optionee any right with respect to the continuation of
his or her status as an employee of the Company or its Subsidiaries.
14. GOVERNING LAW. The Plan will be governed by, and construed in
accordance with, the laws of the State of Kansas.
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<PAGE>
15. COPIES OF PLAN. A copy of the Plan will be delivered to each Optionee
at or before the time he or she executes an Option Agreement.
The foregoing is a true and correct copy of the 1994 Stock Option Plan of
Brite Voice Systems, Inc. as adopted by the Board of Directors on March 8, 1994
and approved by the stockholders on May 10, 1994.
/s/ Glenn A. Etherington
--------------------------------
Glenn A. Etherington,
Chief Financial Officer and
Secretary
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EXHIBIT 5.1
Opinion of Triplett, Woolf & Garretson, LLP
<PAGE>
[TRIPLETT, WOOLF & GARRETSON, LLP LETTERHEAD]
Exhibit 5.1
May 15, 1995
Brite Voice Systems, Inc.
7309 East 21st Street North
Wichita, Kansas 67206-1083
Re: Brite Voice Systems, Inc.
1994 Stock Option Plan
Gentlemen:
You have requested our opinion as counsel for Brite Voice Systems, Inc., a
Kansas corporation (the "Company"), in connection with the registration under
the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder, and the public offering by the Company of up to
1,000,000 shares of common stock issuable upon exercise of options granted under
the Brite Voice Systems, Inc. 1994 Stock Option Plan (the "Plan").
We have examined the Company's Registration Statement on Form S-8, in the
form to be filed with the Securities and Exchange Commission on or about May 16,
1995 (the "Registration Statement"). We have also examined the Articles of
Incorporation, Bylaws and minutes of the Company as a basis for the opinion
expressed herein.
Based upon the foregoing examinations, we are of the opinion that, upon
issuance and sale in the manner described in the Registration Statement, the
shares of common stock covered by the Registration Statement will be duly
authorized, validly issued, fully paid and non-assessable.
We consent to the filing of this opinion as an Exhibit to the Registration
Statement.
Very truly yours,
TRIPLETT, WOOLF & GARRETSON, LLP
/s/ Thomas P. Garretson
By Thomas P. Garretson
<PAGE>
EXHIBIT 23.1
INDEPENDENT ACCOUNTANTS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of Brite Voice Systems, Inc., on Form S-8 of our report dated January 29, 1993,
except for the effects of restatement as described in Note 1, as to which the
date is February 7, 1994, appearing in the Annual Report on Form 10-K of Brite
Voice Systems, Inc., for the year ended December 31, 1994.
/s/ Baird, Kurtz & Dobson
Baird, Kurtz & Dobson
Wichita, Kansas
May 12, 1995
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANT
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated February 3, 1995
included in Brite Voice Systems, Inc.'s Form 10-K for the year ended December
31, 1994 and to all references to our Firm included in this registration
statement.
/s/ Arthur Anderson LLP
Kansas City, Missouri,
May 12, 1995
