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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 10-K/A
AMENDMENT NO. 1
[ X ] Annual report pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934
For the fiscal year ended December 31, 1994 or
[ ] Transition report pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
For the transition period from _______________ to ______________
Commission File Number 0-17920
BRITE VOICE SYSTEMS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
KANSAS 48-0986248
(STATE OF INCORPORATION) (I.R.S. EMPLOYER
IDENTIFICATION NO.)
7309 E. 21ST STREET NORTH
WICHITA, KANSAS 67206-1083
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
Registrant's telephone number, including area code: (316) 652-6500
Securities registered pursuant to Section 12(b) of the Act: None
Securities registered pursuant to Section 12(g) of the Act:
COMMON STOCK, NO PAR VALUE
(Title of class)
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PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
(a) The following documents are filed as part of this report:
(3) Exhibits. The following exhibit is hereby amended:
Exhibit No. Description
- ----------- -----------
10.6 June 1, 1994 Amendment to Agreement between the Registrant and the
Telephone Connection, Inc. Confidential treatment has been
requested with respect to a portion of the Exhibit.
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Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this Amendment to be signed on its behalf by the
undersigned, thereunto duly authorized.
BRITE VOICE SYSTEMS, INC.
(Registrant)
By /s/ Stanley G. Brannan
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Stanley G. Brannan
President and
Chief Executive Officer
By /s/ Glenn A. Etherington
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Glenn A. Etherington
Treasurer and
Chief Financial Officer
Dated: June 9, 1995
Wichita, Kansas
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EXHIBIT 10.6
June 1, 1994 Amendment to Agreement between the Registrant and the Telephone
Connection, Inc. Confidential treatment has been requested with respect to a
portion of the Exhibit.
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AMENDMENT NO. 2
TO
AGREEMENT
THIS AMENDMENT NO. 2 TO AGREEMENT (this "Amendment") is made and entered
into effective for all purposes as of June 1, 1994 by and between BRITE VOICE
SYSTEMS, INC. ("Brite"), a Kansas corporation, with its principal place of
business at 7309 East 21st Street North, Wichita, Kansas 67206 and THE
TELEPHONE CONNECTION, INC. ("TTC"), a Delaware corporation, with its principal
place of business at 15200 Shady Grove Road, Rockville, Maryland 20850.
WHEREAS, the parties hereto have entered into that certain Agreement (the
"Original Agreement") effective as of July 16, 1992;
WHEREAS, the parties hereto have entered into that certain letter agreement
("Amendment No. 1") dated August 2, 1993 which amended certain terms of the
Original Agreement; and
WHEREAS, the parties hereto desire to amend certain provisions of the
Original Agreement (as amended by Amendment No. 1) [together, the "Agreement"]
as hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing, of the mutual promises
herein contained, and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending
legally to be bound, hereby agree as follows:
1. Section 1.i of the Agreement is hereby amended by deleting the words
"Washington, D.C. or" from line 6 thereof, and adding the following to the end
of the section:
"The parties expressly agree that the Washington Post is to be treated
as a Client for all purposes hereunder, and is not to be treated
separately for accounting or royalty calculation purposes."
2. Section 1.j of the Agreement is hereby amended by deleting the table
therein in its entirety and inserting the following new table in lieu thereof:
" Minimum
Period Ended Exclusive Royalty
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Calendar year 1994 $ **
Calendar year 1995 $ **
EXHIBIT 10.6
Calendar year 1996 $ **
** Confidential Treatment Requested
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Calendar year 1997 $ ** "
and subsequent years
3. Section 1.k of the Agreement is hereby amended by deleting the table
therein in its entirety and inserting the following new table in lieu thereof:
" Minimum Non-
Period Ended Exclusive Royalty
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Calendar year 1994 $ **
Calendar year 1995 $ **
Calendar year 1996 $ **
Calendar year 1997 $ ** "
and subsequent years
4. Section 1.q of the Agreement is hereby amended by inserting the phrase
"or any ported version of the Licensed Software" after the word "Software" in
the fourth line thereof.
5. Section 3 of the Agreement is hereby amended by inserting the
following sentence at the end thereof:
"Notwithstanding the foregoing, this Agreement may be terminated by
Brite upon ninety (90) days notice to TTC; provided, however, that
such termination shall not terminate Brite's obligation to pay the
prepaid Royalties provided for in Section 8.c(v). Upon such
termination, Brite will retain its right to continue servicing its
then-existing Clients under the terms and as provided in the last
sentence of Section 8.d(ii).
6. Section 7.c of the Agreement is hereby amended by deleting the second
through sixth sentences thereof.
7. Section 8.b of the Agreement is hereby amended by deleting the word
"and" from line 1 thereof and inserting the word "or" in lieu thereof.
8. Section 8.b of the Agreement is hereby further amended by deleting the
last sentence thereof and inserting the following in lieu thereof:
"If, as of the end of any month, the Royalties for such month exceed
the monthly prorated amount of the Minimum Exclusive Royalty, then
Brite will be allowed to offset the amount of
** Confidential Treatment Requested -2-
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such Royalties in excess of the monthly prorated amount of the Minimum
Exclusive Royalty payments on a ** basis until all
prepaid Royalties shall have been fully offset; thereafter all
Royalties due TTC shall be paid to TTC in cash. If Brite's license
has been converted to a non-exclusive license under Section 8.d(i),
then the references in the preceding sentence to "Minimum Exclusive
Royalty" shall be deemed to be references to "Minimum Non-Exclusive
Royalty.""
9. Section 8.c of the Agreement is hereby amended by deleting the figure
"$1,250,000" from line 2 thereof and inserting the figure "$1,850,000" in lieu
thereof.
10. Section 8.c(iii) of the Agreement is hereby amended by deleting the
word "and" from line 4 thereof.
11. Section 8.c(iv) of the Agreement is hereby amended by deleting "."
from line 4 thereof and inserting "; and" in lieu thereof.
12. Section 8.c of the Agreement is hereby amended by adding the following
new Section 8.c(v) thereto:
"(v) Prepayments of Royalties totalling $600,000, with $100,000 of
such amount payable on the date of execution of this Amendment
and the balance payable in equal installments on the first day of
each month from August, 1994, to and including May, 1995."
13. Section 8.c of the Agreement is hereby amended by adding the following
unnumbered paragraph at the end thereof:
"Beginning in June of 1995 and thereafter, in addition to the
payments made under Sections 8.c(i) through 8.c(v) above, any payments
made to TTC by Brite as Minimum Exclusive Royalty payments or Minimum
Non-Exclusive Royalty payments other than required Royalty payments
based on Operating Income shall be deemed to be prepaid Royalties."
14. Section 8.d(i) of the Agreement is hereby amended by deleting the
existing Section 8.d(i) and inserting the following in lieu thereof:
"(i) Should the total of Royalties actually received by TTC during the
calendar month
** Confidential Treatment Requested -3-
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of ** , or any subsequent month, be less than the
applicable monthly prorated amount of the Minimum Exclusive
Royalty, then TTC shall have the option to notify Brite of its
intention to convert the exclusive license of the Licensed
Software to a non-exclusive license. Within ten (10) days after
receipt of such notice, Brite may, at its option, pay to TTC the
difference between the Royalties already paid during the
applicable calendar month and the monthly prorated Minimum
Exclusive Royalty. If Brite makes such a payment, then it shall
be entitled to the exclusive rights to the Licensed Software
granted hereunder. If Brite does not make such a payment, then
at the expiration of the ten (10) days following TTC's notice to
Brite, TTC shall have the right itself to use and market the
Licensed Software and to license the Licensed Software to other
parties on a non-exclusive basis, and the exclusive license of
the Licensed Software granted to Brite herein shall be converted
to a non-exclusive license."
15. Section 8.d(ii) of the Agreement is hereby amended by deleting the
last eight lines thereof and inserting the following in lieu thereof:
"forth in Section 8.d(i) hereof, TTC then shall have the option to
notify Brite of its intention to revoke the non-exclusive license of
the Licensed Software. Within ten (10) days after receipt of such
notice, Brite may, at its option, pay to TTC the difference between
the Royalties already paid during the applicable calendar year and the
Minimum Non-Exclusive Royalty. If Brite makes such a payment, then it
shall be entitled to the non-exclusive rights to the Licensed Software
granted hereunder. If Brite does not make such a payment, then at the
expiration of the ten (10) days following TTC's notice to Brite, TTC
shall have the right to revoke Brite's right to market the Licensed
Software. Thereafter, Brite's license to use the Licensed Software,
the Patents and the Patent Technology shall be limited to servicing
Brite's then-existing Clients, and Brite's obligation to pay Royalties
to TTC shall continue, with the
** Confidential Treatment Requested -4-
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following modifications: (a) the Royalty rate (as defined in Section
1.p hereof) shall be reduced to ** ; and (b) for purposes of this
8.d(ii), the term "Operating Expenses" shall be redefined to include
ONLY the revenue splits paid to Clients, credit card charges and local
phone expenses directly attributable to the operation of the System."
16. Section 8.d of the Agreement is hereby amended by adding the following
new Section 8.d(iii) thereto:
"(iii) The applicable Minimum Exclusive Royalties for each calendar
year shall, if paid, be paid to TTC in ** monthly
installments, except as follows: (a) the monthly installments for
** shall be paid beginning ** through **
** in the amount of $ ** each, with all payments due before the
date of execution of this Amendment being paid at the time of
execution of this Amendment by both parties; and (b) monthly
installments for the ** ** shall be in the amount of $
** each and no installments shall be due in ** .
Any Royalties (prepaid or actual) actually paid to TTC for such month
shall count toward the Minimum Exclusive Royalties. The failure of
Brite timely to pay TTC any monthly installment of Minimum Exclusive
Royalties shall trigger TTC's option to convert the exclusive license
of the Licensed Software to a non-exclusive license, under the
procedure described in the last three sentences of Section 8.d(i)
hereof."
17. Section 9 of the Agreement is hereby amended by inserting new
subparagraph number "a." in front of the existing text of Section 9 and
appending the following to the end of such section:
"b. In addition to the license granted to Brite in Section 2 hereof,
TTC hereby grants Brite a license to use the Licensed Software
(in source code form), the Patents and the Patent Technology for
the limited purpose of porting the Licensed Software to hardware
and software platforms selected by Brite and operating such
ported software as a Service Bureau. In implementing, creating,
maintaining, revising and enhancing the
** Confidential Treatment Requested -5-
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ported software, Brite agrees that the functionality and features
of the ported software will not be substantially decreased from
the functionality and features of the Licensed Software, without
TTC's prior written consent. The ported version of the Licensed
Software shall be owned by Brite; however, Brite shall not use,
sell, disclose or otherwise distribute any portion of the ported
software that contains the proprietary and confidential coding of
the Licensed Software or implements the Patents or utilizes the
Patent Technology, except for use of the ported software to
operate a Service Bureau as permitted by this subsection 9(b).
The license to use the Patents and Patented Technology shall
terminate at the same time that Brite's right to use the Licensed
Software terminates.
Brite's actual costs of labor and materials, but not to exceed
$ ** , incurred to develop the ported software shall be
included as Operating Expenses."
18. Except as otherwise specifically set forth herein, the parties hereto
hereby ratify and affirm all of the terms and provisions of the Agreement, which
shall remain in full force and effect.
[The remainder of this page has been intentionally left blank.]
** Confidential Treatment Requested -6-
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19. This Amendment may be executed in counterparts and is binding when
each party has executed a copy of the Amendment and exchanged it by facsimile
with the other party or its counsel. If the Amendment is executed and exchanged
by facsimile, then the parties shall thereafter execute two original copies to
replace the facsimile copies.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
effective as of the date first above set forth.
BRITE VOICE SYSTEMS, INC.
Execution date: 07/15/94 By: /s/ Stanley G. Brannan
Name: Stanley G. Brannan
Title: President
THE TELEPHONE CONNECTION, INC.
Execution date: 07/15/94 By: /s/ Merrill Solomon
Name: Merrill Solomon
Title: Chairman
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