<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 23, 1996
REGISTRATION NO. 33-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
BRITE VOICE SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
KANSAS 7309 East 21st Street North 48-0986248
(State or other jurisdiction Wichita, Kansas 67206 (I.R.S. Employer
of
incorporation or organization) (316) 625-6500 Identification
Number)
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
</TABLE>
Glenn A. Etherington
Chief Financial Officer
Brite Voice Systems, Inc.
7309 East 21st Street North
Wichita, Kansas 67206
(316) 625-6500
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
------------------------------
COPY TO:
<TABLE>
<S> <C>
Thomas P. Garretson Kenneth J. Vaughan
Triplett, Woolf & Garretson, LLP Chapman and Cutler
151 North Main Suite 800 111 West Monroe St.
Wichita, Kansas 67202 Chicago, Illinois 60603
(316) 265-5700 (312) 845-3000
</TABLE>
--------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC:
AS SOON AS PRACTICABLE AFTER THE REGISTRATION STATEMENT BECOMES EFFECTIVE.
--------------------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933 (the "Securities Act"), other than securities offered only in connection
with dividend or interest reinvestment plans, check the following box. / /
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. /X/
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM
AMOUNT TO PROPOSED MAXIMUM AGGREGATE
TITLE OF EACH CLASS OF BE OFFERING PRICE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED (1) PER UNIT (2) PRICE (2) REGISTRATION FEE
<S> <C> <C> <C> <C>
Common Stock, no par value........ 1,584,011 $14.625 $23,166,161 $7,988
</TABLE>
(1) Includes 206,610 shares which the Underwriter has the option to purchase to
cover over-allotments, if any.
(2) Estimated pursuant to Rule 457(c) solely for the purpose of calculating the
amount of the registration fee. The average of the high and low prices
reported on the NASDAQ Stock Market was $14 5/8 on February 16, 1996.
--------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE>
SUBJECT TO COMPLETION, DATED FEBRUARY 23, 1996
PROSPECTUS
1,377,401 SHARES
[LOGO]
COMMON STOCK
All of the shares of Common Stock offered hereby are being sold by certain
stockholders (the "Selling Stockholders") of Brite Voice Systems, Inc. (the
"Company"). See "Principal and Selling Stockholders." The Company will not
receive any proceeds from the sale of the shares by the Selling Stockholders.
The Company's Common Stock is quoted on the Nasdaq National Market under the
symbol "BVSI." The last reported sale price for the Common Stock on February 22,
1996, as reported by the Nasdaq National Market, was $15.125 per share. See
"Price Range of Common Stock and Dividend Policy."
SEE "RISK FACTORS" ON PAGE 4 FOR A DISCUSSION OF CERTAIN MATTERS THAT SHOULD
BE CONSIDERED BY PROSPECTIVE PURCHASERS OF THE COMMON STOCK OFFERED HEREBY.
---------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
<TABLE>
<CAPTION>
PROCEEDS TO
PRICE TO UNDERWRITING SELLING
PUBLIC DISCOUNT (1) STOCKHOLDERS (2)
<S> <C> <C> <C>
Per Share......................... $ $ $
Total (3)......................... $ $ $
</TABLE>
(1) See "Underwriting" for indemnification arrangements with the Underwriter.
(2) Before deducting expenses payable by certain Selling Stockholders, estimated
at $120,000.
(3) The Company has granted the Underwriter a 30-day option to purchase up to
206,610 shares, solely to cover over-allotments, if any. See "Underwriting."
If all such shares are purchased, the Total Price to Public and Underwriting
Discount will be $ and $ , respectively, and the proceeds to
the Company will be $ .
The shares of Common Stock are offered by the Underwriter when, as and if
delivered to and accepted by it and subject to its right to reject orders in
whole or in part. It is expected that delivery of the certificates for the
Common Stock will be made on or about , 1996.
WILLIAM BLAIR & COMPANY
THE DATE OF THIS PROSPECTUS IS , 1996
<PAGE>
AVAILABLE INFORMATION
Brite Voice Systems, Inc. (together with its subsidiaries as the context
indicates, the "Company"), is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules
and regulations promulgated thereunder, and, in accordance therewith, files
reports, proxy statements and other information with the Securities and Exchange
Commission (the "Commission"). Such reports, proxy statements and other
information filed by the Company may be inspected and copied at the public
reference facilities maintained by the Commission at Room 1024, Judiciary Plaza,
450 Fifth Street, N.W., Washington, D.C. 20549, and at the Commission's regional
offices at 500 West Madison Street, Chicago, Illinois 60661, and Seven World
Trade Center, New York, New York 10048. Copies of such material can be obtained
from the Public Reference Section of the Commission at Judiciary Plaza, 450
Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates.
Additional information regarding the Company and the shares offered hereby
is contained in a Registration Statement on Form S-3 and the exhibits thereto
filed by the Company with the Commission under the Securities Act of 1933, as
amended (the "Securities Act"). For further information pertaining to the
Company and the shares of Common Stock, reference is made to the Registration
Statement and the exhibits thereto, which may be inspected without charge at,
and copies thereof may be obtained at prescribed rates from, the office of the
Commission at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-K for the fiscal year ended December
31, 1995, as filed by the Company with the Commission, is incorporated in this
Prospectus by reference. All documents filed by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this Prospectus
and prior to the completion of the offering of the shares offered hereby shall
be deemed to be incorporated by reference herein and to be a part hereof from
the date of the filing of such documents. Any statement contained herein or in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Prospectus.
THE COMPANY WILL PROVIDE A COPY OF ANY OR ALL DOCUMENTS THAT HAVE BEEN
INCORPORATED BY REFERENCE HEREIN BUT NOT DELIVERED HEREWITH (NOT INCLUDING
EXHIBITS TO THE INFORMATION THAT IS INCORPORATED BY REFERENCE HEREIN UNLESS SUCH
EXHIBITS ARE SPECIFICALLY INCORPORATED BY REFERENCE INTO THE INFORMATION THAT
THIS PROSPECTUS INCORPORATES), WITHOUT CHARGE TO EACH PERSON TO WHOM THIS
PROSPECTUS IS DELIVERED, UPON WRITTEN OR ORAL REQUEST OF SUCH PERSON TO BRITE
VOICE SYSTEMS, INC., 7309 EAST 21ST STREET NORTH, WICHITA, KANSAS 67206,
TELEPHONE (316) 652-6500, ATTENTION SECRETARY.
------------------------
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITER MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE COMMON STOCK OF
THE COMPANY AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN
MARKET. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITER AND SELLING GROUP MEMBERS,
IF ANY, MAY ENGAGE IN PASSIVE MARKET MAKING TRANSACTIONS IN THE COMMON STOCK ON
THE NASDAQ NATIONAL MARKET IN ACCORDANCE WITH RULE 10B-6A UNDER THE EXCHANGE
ACT. SEE "UNDERWRITING."
2
<PAGE>
PROSPECTUS SUMMARY
THE FOLLOWING SUMMARY IS QUALIFIED IN ITS ENTIRETY BY THE MORE DETAILED
INFORMATION AND FINANCIAL STATEMENTS AND NOTES THERETO APPEARING ELSEWHERE OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS. UNLESS OTHERWISE INDICATED, ALL
INFORMATION IN THIS PROSPECTUS ASSUMES NO EXERCISE OF THE UNDERWRITER'S
OVER-ALLOTMENT OPTION.
THE COMPANY
The Company designs, integrates, assembles, markets and supports voice
processing systems and services which incorporate voice response, voice
recognition, voice/facsimile messaging, audiotex and interactive computer
applications into customized market solutions. Since its August 1995 acquisition
of the TSL Companies (see "The Company -- Organizational History") engaged
primarily in providing telecommunications management services, the Company has
offered a broad array of services and products which assist customers in
managing various aspects of their telecommunications functions, including
controlling and reducing expenses, developing management reports and
applications, selecting service and equipment vendors, designing and
implementing telecommunications systems and managing day-to-day operations.
THE OFFERING
<TABLE>
<S> <C>
Common Stock offered by the Selling 1,377,401 shares
Stockholders....................................
Common Stock Outstanding at February 16, 1996.... 11,495,075 shares (1)
Nasdaq National Market Symbol.................... BVSI
The Company will not receive any proceeds of
the offering unless the Underwriter's
over-allotment option is exercised.
Proceeds.........................................
</TABLE>
SUMMARY CONSOLIDATED FINANCIAL INFORMATION
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
FISCAL YEAR ENDED DECEMBER 31,
-----------------------------------------------------
1991 1992 1993 1994 1995
--------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Revenues....................................................... $ 41,846 $ 42,265 $ 56,412 $ 79,940 $ 97,078
S corporation distributions (2)................................ -- 2,616 2,292 6,989 4,303
Merger and other costs (3)..................................... -- -- 4,600 -- 4,327
Income (loss) from operations.................................. 2,017 (3,951) (1,606) 6,005 5,708
Net income (loss).............................................. $ 2,339 $ (2,423) $ (1,303) $ 4,425 $ 3,950
--------- --------- --------- --------- ---------
--------- --------- --------- --------- ---------
Earnings (loss) per share (4).................................. $ .21 $ (.22) $ (.12) $ .38 $ .33
--------- --------- --------- --------- ---------
--------- --------- --------- --------- ---------
Weighted average shares outstanding............................ 11,031 10,865 11,068 11,526 11,922
</TABLE>
<TABLE>
<CAPTION>
DECEMBER 31,
BALANCE SHEET DATA: 1995
---------------
<S> <C>
Working capital................................................................ $ 26,934
Total assets................................................................... 58,832
Long term debt................................................................. --
Stockholders' equity........................................................... 40,446
</TABLE>
- ------------------------------
(1) Excludes 1,490,392 shares of Common Stock issuable upon the exercise of
stock options.
(2) On August 9, 1995, the Company completed the TSL Merger. See "The Company --
Organizational History." Prior to the TSL Merger, the TSL Companies elected
to be taxed as S corporations under the Internal Revenue Code. The TSL
Companies distributed the majority of their tax basis earnings in the form
of additional compensation to officers and stockholders. Distributions in
excess of the salary and bonus amounts contracted for pursuant to employment
agreements entered into concurrently with the TSL Merger have been
classified as S corporation distributions in the Company's Consolidated
Financial Statements. These distributions will not recur in future periods.
(3) Merger and other costs of $4,327,000 in 1995 include $3,509,000 of
brokerage, legal and other professional fees associated with the
consummation of the TSL Merger, and $818,000 representing the write-off of
certain equipment and prepaid royalties associated with the Company's
"Person-to-Person" product. In 1993, the Company recorded a $4,600,000
charge related to its merger with Perception Technology Corporation,
consisting of fees to financial advisors, attorneys and accountants, and
costs of integrating operations.
(4) Exclusive of S corporation distributions and Merger and other costs,
adjusted for an appropriate provision for income taxes, earnings per share
in the years 1993, 1994 and 1995 would have been $.35, $.81 and $.89,
respectively.
3
<PAGE>
RISK FACTORS
IN ADDITION TO THE OTHER INFORMATION SET FORTH OR INCORPORATED BY REFERENCE
IN THIS PROSPECTUS, THE FOLLOWING RISK FACTORS SHOULD BE CONSIDERED CAREFULLY IN
EVALUATING THE COMPANY AND ITS BUSINESS BEFORE PURCHASING THE SHARES OF COMMON
STOCK OFFERED HEREBY.
LIMITED BACKLOG; FLUCTUATION IN QUARTERLY RESULTS
The Company is typically able to deliver systems within several weeks of
receipt of the order and therefore has a minimal backlog of system orders. In
addition, the Company has no long-term supply agreements with customers, and, as
a result, revenues in any quarter are substantially dependent upon orders that
are received and shipped during that quarter. Historically, a large percentage
of a quarter's systems are shipped in the last month of the quarter. In
addition, because certain of the Company's systems have relatively high selling
prices, the timing of shipments may have a significant effect on quarterly
results. Because a significant portion of the Company's overhead is fixed in the
short-term, the Company's results of operations may be materially adversely
affected if revenues fall below expectations and any such shortfall may not be
known until very late in the quarter.
Billing verification services represent a substantial portion of the
revenues derived from the Company's telecommunications management business.
Because the timing and amount of refunds varies substantially from quarter to
quarter, revenues derived from this service will fluctuate significantly and
will be largely unpredictable.
HIGHLY COMPETITIVE MARKET
The voice response industry is highly competitive. There are no substantial
patents or technological barriers which would prevent other companies from
entering the market and producing equipment or applications similar to those of
the Company. The Company currently competes with companies whose primary
business is voice response equipment, and also with larger companies for whom
voice response represents a small portion of their overall business. Certain of
the Company's competitors have substantially greater resources than the Company,
and there can be no assurance that present and future competitors will not exert
increased competitive pressures on the Company.
The market for managed services and telecommunications management services
is extremely fragmented, and competitors range from small start-up companies who
compete on a local basis to large nationally known firms such as AT&T,
Electronic Data Systems, and IBM. There are no significant barriers to entry,
and the Company expects that additional competition will develop. Such
competition may include large companies with substantially greater resources
than the Company; such competition could adversely affect the revenues and
operating income of the Company.
RISK OF RAPID TECHNOLOGICAL CHANGES
The voice processing industry is subject to rapid technological change,
including continuing improvements in hardware and software performance. In order
to maintain its competitive position, the Company must continually release new
products and develop enhancements and new features for its existing products on
a timely basis. There can be no assurance that the Company will be successful in
developing and marketing, on a timely basis, product modifications or
enhancements or new products that respond to technological advances by others,
or that such new or enhanced products or features will adequately and
competitively address the needs of the marketplace. Moreover, the Company must
manage product transitions successfully, since announcements or introductions,
or the perception that such events are likely to occur, by either the Company or
its competitors could adversely affect sales of existing Company products.
The Company expects that, in order to remain competitive, it will continue
to increase its level of research and development expenditures in absolute
terms, and such expenditures may also increase as a percentage of sales.
The Company performs rigorous testing prior to releasing its products.
Nevertheless, products as complex as the Company's often contain undetected
errors or "bugs" when first released, which are
4
<PAGE>
discovered only after the product has been used by many different customers and
in varying applications. Although the Company's current products have not
experienced bugs that have had a significant financial or operating impact on
the Company, there can be no assurance that such problems will not occur in the
future.
RISK OF INTERNATIONAL SALES
Revenues derived from customers outside the United States have accounted for
approximately 18%, 20% and 27% of total revenues for the years ended December
31, 1993, 1994 and 1995, respectively. The Company faces a number of risks in
conducting its international business that do not affect its domestic business,
including greater concentration of business with fewer customers, longer payment
cycles, greater difficulty in accounts receivable collection, differing national
telecommunications standards and regulatory requirements, and difficulty in
staffing and managing foreign subsidiary operations. There can be no assurance
that these factors will not have an adverse impact on the Company's future
international sales or operating results.
DEPENDENCE ON SUPPLIERS
For product standardization, quality control and volume purchasing
efficiencies, the Company has elected to purchase certain components from sole
suppliers. Although the Company historically has been able to obtain supplies of
these components in a timely manner, the interruption in supply of any of these
components could have an adverse impact on the Company's revenues and operating
results. While the Company believes that other suppliers could provide required
components in the event of an interruption in supply, a change in suppliers
could cause a delay in manufacturing and a possible loss of sales, which would
adversely affect operating results.
STOCK PRICE VOLATILITY
The market for the Company's stock is highly volatile. Fluctuations in
quarterly operating results and any variance in operating results from industry
analysts' expectations, or changes in estimated results by such analysts, could
have an adverse affect on the trading price of the Company's Common Stock.
Furthermore, in recent years the market prices of securities of many high
technology companies have experienced extreme fluctuations, in many cases for
reasons unrelated to the operating performance of the specific companies. These
broad market fluctuations may adversely affect the market price of the Company's
Common Stock.
5
<PAGE>
THE COMPANY
The Company designs, integrates, assembles, markets and supports voice
processing systems and services which incorporate voice response, voice
recognition, voice/facsimile messaging, audiotex and interactive computer
applications into customized market solutions. The Company also offers a broad
array of telecommunications management services.
Voice processing systems allow callers to use a telephone to leave or
retrieve messages, obtain information stored in a computer database, or input
and retrieve information from a host computer. A caller who accesses a voice
processing system is typically greeted by a message identifying the owner or
principal sponsor of the system, and is then requested to select options from a
menu of choices. Most callers using touch-tone telephones input responses by
pushing the keys on their telephone key pad. Many of the Company's systems, such
as voice activated dialers, allow input of information using spoken commands.
Typical applications for the Company's systems allow callers to obtain
personalized account balances for bank, credit card, or mutual fund accounts,
order products or product literature for delivery by mail or by facsimile, pay
bills, enroll for college courses, apply for credit cards, and receive stock
quotes or other personalized information. The enhanced level of service
available through the Company's systems enables the Company's customers to
reduce the costs associated with the provision of similar services using live-
agent call centers. The Company's audiotex systems allow callers to use the
telephone to access a wide variety of computer-stored information, such as
sports scores, weather, stock quotes, business news, classified ads or other
similar information. Newspapers and Yellow Pages publishers generate revenue
through the sales of sponsorships to these categories of information.
The Company provides a wide range of services to support its customers'
voice response activities. In addition to traditional maintenance services, the
Company employs a staff of writers and broadcasters who record information for
play back on customers' systems, and a staff of telephone operators who process
and create personal ads for newspaper customers, provide back office support
such as advertiser and system management for Yellow Pages publishers, and assist
customers in modifying voice response content for use in Internet or other
on-line applications.
ORGANIZATIONAL HISTORY
Incorporated in 1984, the Company initially concentrated its efforts on the
provision of audiotex systems, primarily to newspaper publishers which used the
systems to establish themselves as leading information providers in their
respective markets. In May 1991, the Company, through its newly-formed
subsidiary, Brite Voice Systems Group, Limited ("BVSGL"), acquired substantially
all of the assets of the Voice Systems Group of Ferranti Business
Communications, Ltd. BVSGL assembles and distributes voice messaging systems
which are sold as customer premise equipment for use behind a private branch
exchange and as public telephone network equipment. BVSGL is responsible for the
Company's European business and maintains design and production facilities in
Manchester, England and sales and support offices in Cambridge, England;
Germany; Switzerland and Italy.
In July 1993, the Company merged with one of its leading competitors,
Perception Technology Corporation ("Perception"). Perception's experience as a
provider of interactive voice response systems significantly broadened the
Company's participation in the voice response industry. In addition, the Company
believes that the combined audiotex experience of the two companies established
the Company as the leading provider of audiotex systems and information services
to the newspaper and Yellow Pages publishing industries.
In March 1995, the Company acquired Touch-Talk, Incorporated ("Touch-Talk"),
based in Dallas, Texas. Pursuant to the Agreement and Plan of Reorganization and
Merger (the "Touch-Talk Merger Agreement") by and among the Company, Touch-Talk
and its stockholders, Michael D. Heinrich and Laurence W. Potter, III
(collectively the "Touch-Talk Stockholders"), the Company issued an aggregate of
150,000 shares of the Company's Common Stock to the Touch-Talk Stockholders in
conversion of all of the outstanding shares of common stock of Touch-Talk. Prior
to the merger, Touch-Talk had been the largest provider of customized
application software solutions used by the Company in providing interactive
voice response applications. In
6
<PAGE>
addition, the Company had licensed from Touch-Talk certain application software
development tools for sublicense to its customers. The acquisition of Touch-Talk
broadened the Company's capabilities in providing turnkey voice response
applications to customers seeking a single vendor for all of their voice
response requirements.
In August 1995, the Company acquired Telecom Services Limited (U.S.), Inc.,
Telecom Services Limited (West), Inc., TSL Software Services, Inc., and TSL
Management Group, Inc. (collectively the "TSL Companies," or "TSL"), which were
affiliated by common ownership. Pursuant to the terms of an Agreement and Plan
of Reorganization and Merger (the "TSL Merger Agreement") by and among the
Company, the TSL Companies and Alan C. Maltz, Stephen B. Rockoff, Scott A. Maltz
and Alan C. Maltz as custodian for Sari Maltz and Lori Maltz (collectively the
"TSL Stockholders"), each of the TSL Companies was merged into the Company and
the Company issued to the TSL Stockholders an aggregate of 3,331,000 shares of
the Company's Common Stock in conversion of all of the outstanding shares of
Common Stock of the TSL Companies (the "TSL Merger"). As a result of the TSL
Merger, the Company now offers a broad array of services and products which
assist clients in managing various aspects of their telecommunications functions
including controlling and reducing expenses, developing management reports and
applications, selecting service and equipment vendors, designing and
implementing telecommunications systems, and managing day-to-day operations.
The Company is a Kansas corporation. Its principal executive offices are
located at 7309 East 21st Street North, Wichita, Kansas 67206 and its telephone
number is (316) 652-6500.
USE OF PROCEEDS
The Company will not receive any of the proceeds from the sale of the Common
Stock by the Selling Stockholders. If the Underwriter exercises any portion of
the over-allotment option, the net proceeds received by the Company will be used
for general corporate purposes.
PRICE RANGE OF COMMON STOCK AND DIVIDEND POLICY
The Company's Common Stock is traded on the Nasdaq National Market under the
symbol "BVSI." The following table sets forth, for the periods indicated, the
range of high and low sale prices, by quarter, for the Common Stock as reported
by the Nasdaq National Market.
<TABLE>
<CAPTION>
HIGH LOW
--------- ---------
<S> <C> <C>
1996:
First quarter (through February 22, 1996).................................................... $ 15.75 $ 10.50
1995:
March 31..................................................................................... 21.88 15.25
June 30...................................................................................... 21.00 15.88
September 30................................................................................. 24.50 18.25
December 31.................................................................................. 18.50 12.00
1994:
March 31..................................................................................... 15.75 9.63
June 30...................................................................................... 13.63 7.63
September 30................................................................................. 14.13 9.38
December 31.................................................................................. 19.75 12.25
</TABLE>
On February 22, 1996, the last reported sale price of the Company's Common
Stock as reported on the Nasdaq National Market was $15.125.
Since its initial public offering in 1989, the Company has not paid cash
dividends on its Common Stock and does not anticipate paying cash dividends in
the forseeable future. The Company currently intends to retain its earnings to
finance future growth of its business.
7
<PAGE>
PRINCIPAL AND SELLING STOCKHOLDERS
The Common Stock offered by this Prospectus was initially issued to the
Selling Stockholders pursuant to either the TSL Merger Agreement or the
Touch-Talk Merger Agreement. See "The Company -- Organizational History." The
following table sets forth certain information, furnished by the persons named
below, concerning beneficial ownership of Common Stock as of February 16, 1996
(except as otherwise indicated), and as adjusted to reflect the sale of shares
offered hereby (assuming the over-allotment option is not exercised) by (i) each
person known by the Company to own beneficially more than 5% of the outstanding
shares of Common Stock; (ii) the Selling Stockholders; (iii) each director and
executive officer of the Company; and (iv) all directors and executive officers
of the Company as a group.
<TABLE>
<CAPTION>
SHARES BENEFICIALLY OWNED SHARES BENEFICIALLY OWNED
PRIOR TO OFFERING NUMBER OF AFTER OFFERING
--------------------------- SHARES TO ----------------------------
NAME NUMBER PERCENT(1) BE SOLD NUMBER PERCENT(1)
- ----------------------------------------------- ------------ ------------- --------- ------------- -------------
<S> <C> <C> <C> <C> <C>
Alan C. Maltz ................................. 2,174,844(2) 18.9 869,738 1,305,106(2) 11.4
50 Broad Street
20th Floor
New York, NY 10004
Stanley G. Brannan ............................ 1,447,562(3) 12.6 -- 1,447,562(3) 12.6
7309 E. 21st Street North
Wichita, KS 67206
Scott A. Maltz ................................ 787,702 6.9 315,081 472,621 4.1
220 Montgomery Street
Suite 917
San Francisco, CA 94104
FMR Corp. (4) ................................. 650,500 5.7 -- 650,500 5.7
Fidelity Management Research Co.,
Edward C. Johnson 3d,
and Abigail P. Johnson
82 Devonshire Street
Boston, MA 02109
Stephen B. Rockoff ............................ 368,954 3.2 147,582 221,372 1.9
50 Broad Street
20th Floor
New York, NY 10004
Michael D. Heinrich (5) ....................... 141,250 1.2 42,000 99,250 *
1325 Capital Parkway
Suite 109
Carrollton, TX 75006
Laurence W. Potter, III ....................... 16,250 * 3,000 13,250 *
1325 Capital Parkway
Suite 109
Carrollton, TX 75006
Perry E. Esping................................ 445,000 3.9 -- 445,000 3.9
Glenn A. Etherington........................... 68,517 * -- 68,517 *
Leon A. Ferber................................. 137,500 1.2 -- 137,500 1.2
C. MacKay Ganson, Jr........................... 29,862 * -- 29,862 *
David S. Gergacz............................... 2,500 * -- 2,500 *
David F. Hemmings.............................. 146,000 1.3 -- 146,000 1.3
John F. Kelsey, III............................ 5,333 * -- 5,333 *
Donald R. Walsh................................ 44,499 * -- 44,499 *
All directors and executive officers as a group 5,289,319 44.8 1,184,819 4,104,500 34.7
(11 persons)..................................
</TABLE>
- --------------------------
* Less than 1%.
8
<PAGE>
(1) In calculating the percentages shown, the number of shares owned by the
named individuals includes the shares they had the right to purchase within
60 days of February 16, 1996, upon exercise of stock options. The options
held by the named individuals and the group are: Stanley G. Brannan --
25,000; Perry E. Esping -- 10,000; Glenn A. Etherington -- 67,222; Leon A.
Ferber -- 12,500; C. MacKay Ganson, Jr. -- 9,000; David S. Gergacz -- 2,500;
Michael D. Heinrich -- 6,250; David F. Hemmings -- 145,000; John F. Kelsey,
III -- 2,500; Laurence W. Potter, III -- 1,250; Donald R. Walsh -- 43,750;
and all directors and executive officers as a group -- 317,472.
(2) Includes 80,000 shares held by Mr. Maltz as custodian for his two minor
daughters, beneficial ownership of which is disclaimed by Mr. Maltz.
(3) Includes 25,000 shares owned by Mr. Brannan's wife. Also includes 6,000
shares held in trust for the benefit of Mr. Brannan's children, beneficial
ownership of which is disclaimed by Mr. Brannan.
(4) Fidelity Management & Research Co. is a wholly owned subsidiary of FMR Corp.
and an investment advisor registered under Section203 of the Investment
Advisors Act of 1940. Edward C. Johnson, 3d is Chairman of FMR Corp. and
Abigail Johnson is a director of FMR Corp. The information is derived from a
Schedule 13G jointly filed with the Commission by the reporting persons. The
number of shares owned is as of December 31, 1995. The percentage amount is
calculated as of February 16, 1996.
(5) The shares are owned by Michael D. Heinrich and Carolyn M. Heinrich as joint
tenants with rights of survivorship.
Pursuant to the terms of the TSL Merger Agreement, Alan C. Maltz and Scott
A. Maltz were appointed to the Company's Board of Directors after consummation
of the merger. The TSL Stockholders have the right to designate two persons to
be nominated for election to the Company's Board of Directors during the period
that they collectively own at least 20% of the issued and outstanding shares of
Common Stock. At such time as their collective ownership is less than 20% of the
issued and outstanding shares of Common Stock, and until their collective
ownership is less than 10% of the issued and outstanding shares of Common Stock,
the TSL Stockholders have the right to designate one person to be nominated for
election to the Company's Board of Directors.
Upon consummation of the merger, the Company entered into employment
agreements with Alan C. Maltz, Scott A. Maltz and Stephen B. Rockoff, each of
which continues for a term ending December 31, 1997. Alan C. Maltz is Executive
Vice President of the Company having primary responsibilities for the TSL
division. Scott A. Maltz and Stephen B. Rockoff are Vice Presidents of the
Company having primary responsibility for the TSL division's sales and
operations, respectively.
Upon consummation of the Touch-Talk Merger, Michael D. Heinrich and Laurence
W. Potter, III entered into employment agreements with the Company which
continue until March 31, 1997. Mr. Heinrich is Vice President of the Company's
Interactive Information Systems division and Mr. Potter is a software
development engineer.
9
<PAGE>
DESCRIPTION OF CAPITAL STOCK
The Company's authorized capital stock consists of 30,000,000 shares of
Common Stock, no par value, of which 11,495,075 shares were issued and
outstanding as of February 16, 1996, and 10,000,000 shares of Preferred Stock,
none of which have been issued. As of February 16, 1996, there were outstanding
options to purchase an additional 1,490,392 shares of the Company's Common
Stock.
COMMON STOCK
Subject to the rights of any Preferred Stock which may be outstanding, upon
liquidation, dissolution or winding up of the Company, holders of Common Stock
will be entitled to the assets remaining after payment to creditors. The shares
of Common Stock are not convertible or redeemable and do not have preemptive
rights. Holders of Common Stock are entitled to cast one vote for each share
held of record on all matters presented to stockholders for a vote. At all
elections of directors, each holder of Common Stock shall be entitled to as many
votes as shall equal the number of his shares of Common Stock, multiplied by the
number of directors to be elected. Such votes may be cast for a single director
or may be distributed among any two or more directors. The holders of Common
Stock are entitled to receive such dividends as may be declared by the Board of
Directors out of funds legally available therefor. All of the issued and
outstanding shares of Common Stock are, and any shares of Common Stock to be
sold by the Company in this offering will be, duly authorized, validly issued,
fully paid and non-assessable.
PREFERRED STOCK
No shares of Preferred Stock are currently outstanding. The Preferred Stock
may be issued at any time and from time to time, upon resolution or resolutions
duly adopted by the Board of Directors. Such Preferred Stock will be subject to
such voting powers, full or limited, or no voting powers, and such designations,
preferences and relative, participating, optional or other special rights and
qualifications, limitations or restrictions as may be specified pursuant to such
resolution or resolutions. Any shares of Preferred Stock so authorized and
issued may have priority over the Common Stock with respect to voting, dividend,
liquidation or other rights. The Board of Directors could authorize the issuance
of one or more series of Preferred Stock, with voting rights or other rights and
preferences, which would impede the success of any proposed merger, tender
offer, proxy contest, or other attempt to gain control of the Company not
approved by the Board of Directors. Although the issuance of Preferred Stock may
have an adverse affect on the right of holders of Common Stock, the consent of
the holders of Common Stock would not be required for any such issuance of
Preferred Stock. The Company has no present plans to issue any shares of
Preferred Stock.
CERTAIN ANTI-TAKEOVER MATTERS
BUSINESS COMBINATIONS. The Company is a Kansas corporation and subject to
Chapter 17 of the Kansas Statutes Annotated, which embodies the Kansas General
Corporation Code ("KGCC"). The KGCC prohibits, subject to certain exceptions set
forth therein, various business combinations with "interested stockholders" (as
defined herein), including mergers or consolidations of the corporation, or of
any direct or indirect majority-owned subsidiary of the corporation, with an
interested stockholder for a period of three years following the date such
stockholder became an interested stockholder unless (a) prior to such date the
board of directors of the corporation approved either the business combination
or the transaction which resulted in the stockholder becoming an interested
stockholder; (b) upon consummation of the transaction which resulted in the
stockholder becoming an interested stockholder, the interested stockholder owned
at least 85% of the voting stock of the corporation outstanding at the time the
transaction commenced (excluding for purposes of determining the number of
shares outstanding those shares owned by persons who are directors and also
officers, and employee stock plans in which employee participants do not have
the right to determine confidentially whether shares held subject to the plan
will be tendered in a tender or exchange offer); or (c) on or subsequent to such
date the business combination is approved by the board of directors and
authorized at a meeting of the stockholders of the corporation (but not by
written consent of the stockholders), by the affirmative vote of at least
66 2/3% of the outstanding voting stock of the corporation which is not owned by
the interested stockholder. "Interested stockholder" means any person, other
than the corporation and any direct or indirect majority-owned subsidiary of the
corporation, that is (i) the owner of
10
<PAGE>
15% or more of the outstanding voting stock of the corporation; or (ii) an
affiliate or associate of the corporation and was the owner of 15% or more of
the outstanding voting stock of the corporation at any time within the
three-year period immediately prior to the date on which it is sought to be
determined whether such person is an interested stockholder, and the affiliates
and associates of such person. "Business combination" includes certain mergers,
consolidations, assets sales and stock issuances and certain other transactions
resulting in a financial benefit to an "interested stockholder."
CONTROL SHARE ACQUISITIONS. The KGCC also contains a "control share
acquisition" provision which effectively denies voting rights to shares of an
issuing public corporation acquired in control share acquisitions unless the
articles of incorporation or bylaws of the corporation provide that this
provision of the KGCC does not apply or a resolution granting voting rights is
approved by (i) the affirmative vote of a majority of all outstanding shares
entitled to vote at the election of directors voting by class if required by the
terms of the shares; and (ii) the affirmative vote of a majority of all
outstanding shares entitled to vote at the election of directors voting by class
if required by the terms of the shares, excluding all interested shares. As used
in this paragraph, a "control share acquisition" means the acquisition of
one-fifth, one-third or a majority of all voting power under various
circumstances of the issuing public corporation. "Issuing public corporation"
means a Kansas corporation which has (i) 100 or more shareholders; (ii) its
principal place of business, principal office, or substantial assets within
Kansas; and (iii) either (a) more than 10% of its shareholders resident in
Kansas, (b) more than 10% of its shares owned by Kansas residents, or (c) 2,500
shareholders resident in Kansas.
REGISTRATION RIGHTS
As a part of the TSL Merger Agreement, the Company agreed to register up to
40% of the total number of shares of Common Stock received by the TSL
Stockholders at any time after six months from the closing of the TSL Merger.
The TSL Stockholders have agreed that Alan C. Maltz, Scott A. Maltz and Stephen
B. Rockoff would be entitled to sell the shares of Common Stock listed herein
under the heading "Principal and Selling Stockholders." In addition to these
demand registration rights, the TSL Merger Agreement also provides that, subject
to certain limitations, if the Company at any time after August 9, 1997,
proposes to register shares of Common Stock for its own benefit or for the
benefit of stockholders of the Company, each TSL Stockholder shall have the
opportunity to include in such registration up to 50% of the shares held by such
person immediately after this offering.
As a part of the Touch-Talk Merger Agreement, the Company agreed to register
up to 40% of the shares of Common Stock received by the Touch-Talk Stockholders
and the Touch-Talk Stockholders are selling the shares of Common Stock listed
herein under the heading "Principal and Selling Stockholders."
Under a Stock Purchase Agreement dated March 28, 1990, between the Company
and Perry E. Esping, a director of the Company, the Company is obligated to
register up to 350,000 shares of the Common Stock owned by Mr. Esping upon Mr.
Esping's written request. No shares have been registered pursuant to the Stock
Purchase Agreement.
TRANSFER AGENT AND REGISTRAR
The Transfer Agent and Registrar for the Common Stock is UMB Bank, N.A.,
Kansas City, Missouri.
UNDERWRITING
The Company and the Selling Stockholders have entered into an Underwriting
Agreement (the "Underwriting Agreement") with William Blair & Company, L.L.C.
(the "Underwriter"). Subject to the terms and conditions set forth in the
Underwriting Agreement, the Selling Stockholders have agreed to sell to the
Underwriter, and the Underwriter has agreed to purchase from the Selling
Stockholders, all of the shares of Common Stock offered hereby. The Underwriter
is committed to purchase all such shares if any shares are purchased.
The Underwriter has advised the Selling Stockholders that it proposes to
offer the shares of Common Stock to the public initially at the public offering
price set forth on the cover page of this Prospectus and to certain dealers at
such price less a concession of not more than $ per share. Additionally,
the
11
<PAGE>
Underwriter may allow, and such dealers may reallow, a concession not in excess
of $ per share to certain other dealers. After the shares are released for
sale to the public, the public offering price and other selling terms may be
changed by the Underwriter.
The Company has granted to the Underwriter an option, exercisable within 30
days after the date of this Prospectus, to purchase up to 206,610 shares of
Common Stock at the same price per share to be paid by the Underwriter for the
other shares offered hereby. The Underwriter may exercise the option only for
the purpose of covering over-allotments, if any, made in connection with the
distribution of the Common Stock offered hereby.
The Company, the Selling Stockholders, and the Company's directors and
executive officers have agreed not to offer, sell, contract to sell or otherwise
dispose of any shares of Common Stock for a period of 90 days after the
effective date of the Registration Statement of which this Prospectus is a part
without the written consent of the Underwriter, except, with respect to the
Company, for the issuance of securities upon the exercise of outstanding stock
options.
The Underwriter currently acts as a market maker for the Company's Common
Stock and may engage in "passive market making" in such securities on the Nasdaq
National Market in accordance with Rule 10b-6A under the Exchange Act. Rule
10b-6A permits, upon the satisfaction of certain conditions, underwriters
participating in a distribution that are also Nasdaq market makers in the
security being distributed to engage in limited market making transactions
during the period when Rule 10b-6 under the Exchange Act would otherwise
prohibit such activity. Rule 10b-6A prohibits underwriters engaged in passive
market making generally from entering a bid or effecting a purchase at a price
that exceeds the highest bid for those securities displayed on the Nasdaq
National Market by a market maker that is not participating in the distribution.
Under Rule 10b-6A each underwriter engaged in passive market making is subject
to a daily net purchase limitation equal to 30% of such entity's average daily
trading volume during the two full consecutive calendar months immediately
preceding the date of the filing of the registration statement under the
Securities Act pertaining to the security to be distributed.
The Company and the Selling Stockholders have agreed to indemnify the
Underwriter against certain liabilities, including liabilities under the
Securities Act of 1933, as amended, or to contribute to payments the Underwriter
may be required to make in respect thereof.
LEGAL MATTERS
The validity of the shares of Common Stock offered hereby will be passed
upon for the Company by Triplett, Woolf & Garretson, LLP, Wichita, Kansas.
Kelley Drye & Warren, New York, New York, is acting as counsel for the Selling
Stockholders who are the TSL Stockholders. Stinson, Mag & Fizzell, P.C., Kansas
City, Missouri, is acting as counsel for the Selling Stockholders who are the
Touch-Talk Stockholders. Certain legal matters in connection with this offering
will be passed upon for the Underwriter by Chapman and Cutler, Chicago,
Illinois. As of the date of this Prospectus, a total of approximately 4,750
shares of Common Stock were beneficially owned by certain partners of Triplett,
Woolf & Garretson, LLP.
EXPERTS
The consolidated financial statements of Brite Voice Systems, Inc. appearing
in the Brite Voice Systems, Inc. Annual Report on Form 10-K for the year ended
December 31, 1995, and incorporated herein by reference, have been audited by
Arthur Andersen LLP, independent auditors, as set forth in their report thereon,
included therein and incorporated herein by reference. In that report, Arthur
Andersen LLP states that with respect to certain operations, its opinion is
based on the report of other independent public accountants, namely Ernst &
Young LLP. Such consolidated financial statements are incorporated herein by
reference in reliance on such reports given upon the authority of such firms as
experts in giving said reports.
12
<PAGE>
- -------------------------------------------
-------------------------------------------
- -------------------------------------------
-------------------------------------------
NO DEALER, SALES REPRESENTATIVE OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE
ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS IN CONNECTION WITH THIS OFFERING
OTHER THAN THOSE CONTAINED OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS, AND
IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS
HAVING BEEN AUTHORIZED BY THE COMPANY, ANY SELLING STOCKHOLDERS OR THE
UNDERWRITER. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL, OR A
SOLICITATION OF AN OFFER TO BUY, ANY OF THE SECURITIES OFFERED HEREBY BY ANYONE
IN ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN
WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO OR
TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION. NEITHER
THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THE INFORMATION CONTAINED HEREIN IS
CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE.
-------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
-----
<S> <C>
Available Information.......................... 2
Incorporation of Certain Documents
by Reference.................................. 2
Prospectus Summary............................. 3
Risk Factors................................... 4
The Company.................................... 6
Use of Proceeds................................ 7
Price Range of Common Stock and
Dividend Policy............................... 7
Principal and Selling Stockholders............. 8
Description of Capital Stock................... 10
Underwriting................................... 11
Legal Matters.................................. 12
Experts........................................ 12
</TABLE>
1,377,401 SHARES
[LOGO]
COMMON STOCK
-------------------
PROSPECTUS
, 1996
-------------------
WILLIAM BLAIR & COMPANY
- -------------------------------------------
-------------------------------------------
- -------------------------------------------
-------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the estimated expenses payable by the Company
in connection with the filing of this Registration Statement. All of such
expenses, other than the filing fee for the Commission, are estimates and will
be paid by the Company and certain Selling Stockholders pro rata based upon the
number of shares sold.
<TABLE>
<S> <C>
Securities and Exchange Commission Filing Fee..................... $ 7,988
NASD Filing Fee................................................... 2,836
Printing and Engraving Expenses................................... 35,000
Legal Fees and Expenses........................................... 35,000
Accounting Fees and Expenses...................................... 12,000
Blue Sky Fees and Expenses........................................ 14,000
Transfer Agent Fees............................................... 1,000
Miscellaneous..................................................... 12,176
---------
TOTAL......................................................... $ 120,000
---------
---------
</TABLE>
- ------------------------
ITEM 15. 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 16. EXHIBITS
The following exhibits are filed as part of this Registration Statement:
<TABLE>
<CAPTION>
EXHIBIT NO. EXHIBIT DESCRIPTION
- ----------- ----------------------------------------------------------------------------------------------------
<C> <S>
1.1 Proposed form of Underwriting Agreement.
2.1 Agreement and Plan of Reorganization and Merger dated May 24, 1995, by and among Brite Voice
Systems, Inc., Telecom Services Limited (U.S.), Inc., Telecom Services Limited (West), Inc., TSL
Software Services, Inc., TSL Management Group, Inc. and Alan C. Maltz, Scott A. Maltz, Stephen B.
Rockoff, and Alan C. Maltz as Custodian for Sari Maltz and Lori Maltz (incorporated by reference to
Annex A to the Company's definitive Proxy Statement dated July 17, 1995).
2.2 Agreement and Plan of Reorganization and Merger dated March 31, 1995 by and among Brite Voice
Systems, Inc., Touch-Talk Incorporated, Michael D. Heinrich and Laurence W. Potter, III
(incorporated by reference to the exhibit filed with the Registrant's Form 10-K Report for the year
ended December 31, 1995).
4.1 Restated Articles of Incorporation of Brite Voice Systems, Inc. (incorporated by reference to the
exhibit filed with the Registrant's Registration Statement on Form S-1, No. 33-29750).
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. EXHIBIT DESCRIPTION
- ----------- ----------------------------------------------------------------------------------------------------
<C> <S>
4.2 Bylaws of Brite Voice Systems, Inc. (incorporated by reference to the exhibit filed with the
Registrant's Registration Statement on Form S-1, No. 33-29750).
5.1 Opinion of Triplett, Woolf & Garretson, LLP as to the validity of the shares of Common Stock.
23.1 Consent of Triplett, Woolf & Garretson, LLP (included in Exhibit 5.1 above).
23.2 Consent of independent public accountants.
23.3 Consent of independent public accountants.
24.1 Power of attorney (included on the signature pages to this Registration Statement).
</TABLE>
- ------------------------
ITEM 17. UNDERTAKINGS
(a) The undersigned Company hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the Company pursuant to Rule 424((b)(1) or (4)
or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus 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.
(b) The undersigned Company hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Company'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 Company pursuant to the foregoing provisions, or otherwise, the Company 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 Company of expenses incurred or
paid by a director, officer or controlling person of the Company 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 Company 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-2
<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-3 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 22nd day of
February, 1996.
BRITE VOICE SYSTEMS, INC.
By STANLEY G. BRANNAN
------------------------------------
Stanley G. Brannan, Chairman and
President (Principal Executive
Officer)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each 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-3 (including post-effective amendments) and any
Registration Statement filed pursuant to Rule 462 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:
<TABLE>
<C> <S> <C>
SIGNATURE TITLE DATE
- ------------------------------------------------ --------------------------------------- ----------------------
STANLEY G. BRANNAN
-------------------------------------- President, Chief Executive Officer and February 22, 1996
Stanley G. Brannan Director
GLENN A. ETHERINGTON Chief Financial Officer (Principal
-------------------------------------- Financial and Principal Accounting February 22, 1996
Glenn A. Etherington Officer)
PERRY E. ESPING
-------------------------------------- Director February 22, 1996
Perry E. Esping
C. MACKAY GANSON, JR.
-------------------------------------- Director February 22, 1996
C. MacKay Ganson, Jr.
DAVID S. GERGACZ
-------------------------------------- Director February 22, 1996
David S. Gergacz
JOHN F. KELSEY, III
-------------------------------------- Director February 22, 1996
John F. Kelsey, III
ALAN C. MALTZ
-------------------------------------- Director February 22, 1996
Alan C. Maltz
SCOTT A. MALTZ
-------------------------------------- Director February 22, 1996
Scott A. Maltz
</TABLE>
II-3
<PAGE>
BRITE VOICE SYSTEMS, INC.
1,377,401 Shares Common Stock*
UNDERWRITING AGREEMENT
February ___, 1996
William Blair & Company, L.L.C.
222 West Adams Street
Chicago, Illinois 60606
Ladies and Gentlemen:
SECTION 1. INTRODUCTORY. Brite Voice Systems, Inc. ("COMPANY") a
Kansas corporation, has an authorized capital stock consisting of 10,000,000
shares of Preferred Stock, no par value, none of which shares were outstanding
as of February ___, 1996 and 30,000,000 shares of Common Stock, no par value
("COMMON STOCK"), of which __________ shares were outstanding as of such date.
Certain stockholders of the Company (collectively referred to as the "SELLING
STOCKHOLDERS" and named in Schedule A) propose to sell 1,377,401 shares ("FIRM
SHARES") of the Company's issued and outstanding Common Stock to you
("UNDERWRITER"). In addition, the Company proposes to grant to you an option to
purchase up to 206,610 additional shares of Common Stock ("OPTION SHARES") as
provided in Section 5 hereof. The Firm Shares and, to the extent such option is
exercised, the Option Shares, are hereinafter collectively referred to as the
"SHARES."
You have advised the Company and the Selling Stockholders that you propose
to make a public offering of the Shares as soon as you deem advisable after the
registration statement hereinafter referred to becomes effective, if it has not
yet become effective, and the Pricing Agreement hereinafter defined has been
executed and delivered.
Prior to the purchase and public offering of the Shares by you, you, the
Company and the Selling Stockholders shall enter into an agreement substantially
in the form of Exhibit A hereto (the "PRICING AGREEMENT"). The Pricing
Agreement may take the form of an exchange of any standard form of written
telecommunication between the Company, the Selling Stockholders and you and
shall specify such applicable information as is indicated in Exhibit A hereto.
The offering of the Shares will be governed by this Agreement, as supplemented
by the Pricing Agreement. From and after the date of the execution and delivery
of the Pricing Agreement, this Agreement shall be deemed to incorporate the
Pricing Agreement.
The Company and each of the Selling Stockholders hereby confirm their
agreements with you as follows:
- -------------------------
* Plus an option to acquire up to 206,610 additional shares to cover
overallotments.
<PAGE>
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to you and the Selling Stockholders that:
(a) A registration statement on Form S-3 (File No. 33-______) and a
related preliminary prospectus with respect to the Shares have been
prepared and filed with the Securities and Exchange Commission
("COMMISSION") by the Company in conformity with the requirements of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "1933 ACT"; unless otherwise
indicated, all references herein to specific rules are rules promulgated
under the 1933 Act); and the Company has so prepared and has filed such
amendments thereto, if any, and such amended preliminary prospectuses as
may have been required to the date hereof. If the Company has elected not
to rely upon Rule 430A, the Company has prepared and will promptly file an
amendment to the registration statement and an amended prospectus. If the
Company has elected to rely upon Rule 430A, it will prepare and file a
prospectus pursuant to Rule 424(b) that discloses the information
previously omitted from the prospectus in reliance upon Rule 430A. There
have been or will promptly be delivered to you three signed copies and to
each Selling Stockholder one copy, of such registration statement and
amendments, together with an equal number of copies of all documents
incorporated by reference therein and of each exhibit filed therewith, and
conformed copies of such registration statement and amendments (but without
exhibits) and of the related preliminary prospectus or prospectuses and
final forms of prospectus.
Such registration statement (as amended, if applicable) at the
time it becomes effective and the prospectus constituting a part thereof
(including the information, if any, deemed to be part thereof pursuant to
Rule 430A(b) and/or Rule 434), as from time to time amended or
supplemented, are hereinafter referred to as the "REGISTRATION STATEMENT,"
and the "PROSPECTUS," respectively, except that if any revised prospectus
shall be provided to you by the Company for use in connection with the
offering of the Shares which differs from the Prospectus on file at the
Commission at the time the Registration Statement became or becomes
effective (whether or not such revised prospectus is required to be filed
by the Company pursuant to Rule 424(b)), the term Prospectus shall refer to
such revised prospectus from and after the time it was provided to you for
such use. If the Company elects to rely on Rule 434 of the 1933 Act, all
references to "Prospectus" shall be deemed to include, without limitation,
the form of prospectus and the term sheet, taken together, provided to you
by the Company in accordance with Rule 434 of the 1933 Act ("RULE 434
PROSPECTUS"). Any registration statement (including any amendment or
supplement thereto or information which is deemed part thereof) filed by
the Company under Rule 462(b) ("RULE 462(b) REGISTRATION STATEMENT") shall
be deemed to be part of the "Registration Statement" as defined herein, and
any prospectus (including any amendment or supplement thereto or
information which is deemed part thereof) included in such registration
statement shall be deemed to be part of the "Prospectus," as defined
herein, as appropriate. The Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission thereunder are hereinafter
collectively referred to as the "EXCHANGE ACT." Any reference herein to
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any preliminary prospectus or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to
Form S-3 under the 1933 Act ("Incorporated Documents"), as of the date of
such preliminary prospectus or Prospectus, as the case may be. Any
document filed by the Company under the Exchange Act after the effective
date of the Registration Statement or the date of the Prospectus and
incorporated by reference in the Prospectus shall be deemed to be included
in the Registration Statement and the Prospectus as of the date of such
filing.
The Incorporated Documents, when they were or are filed with the
Commission, conformed or will conform in all material respects to the
requirements of the Exchange Act and none of such documents contained or
will contain an untrue statement of a material fact or omitted or will omit
to state a material fact required to be stated therein or necessary to make
the statements therein not misleading.
(b) The Commission has not issued any order preventing or suspending
the use of any preliminary prospectus, and each preliminary prospectus has
conformed in all material respects with the requirements of the 1933 Act
and, as of its date, has not included any untrue statement of a material
fact or omitted to state a material fact necessary to make the statements
therein not misleading; and when the Registration Statement became or
becomes effective, and at all times subsequent thereto, up to the First
Closing Date or the Second Closing Date hereinafter defined, as the case
may be, the Registration Statement, including the information deemed to be
part of the Registration Statement at the time of effectiveness pursuant to
Rule 430A(b), if applicable, and the Prospectus and any amendments or
supplements thereto, contained or will contain all statements that are
required to be stated therein in accordance with the 1933 Act and in all
material respects conformed or will in all material respects conform to the
requirements of the 1933 Act, and neither the Registration Statement nor
the Prospectus, nor any amendment or supplement thereto, included or will
include any untrue statement of a material fact or omitted or will omit to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading; provided, however, that the Company
makes no representation or warranty as to information contained in or
omitted from any preliminary prospectus, the Registration Statement, the
Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by you
specifically for use in the preparation thereof.
(c) The Company and its subsidiaries have been duly incorporated and
are validly existing as corporations in good standing under the laws of
their respective places of incorporation, with corporate power and
authority to own their properties and conduct their business as described
in the Prospectus; the Company and each of its subsidiaries are duly
qualified to do business as foreign corporations under the corporation law
of, and are in good standing as such in, each jurisdiction in which they
own or lease substantial properties, have an office, or in which
substantial business is conducted and such qualification is required except
in any such case where the failure to so qualify or be in good standing
would not have a material adverse effect upon the Company and its
subsidiaries taken as a whole; and no proceeding of
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which the Company has knowledge has been instituted in any such
jurisdiction, revoking, limiting or curtailing, or seeking to revoke, limit
or curtail, such power and authority or qualification.
(d) Except as disclosed in the Registration Statement, the Company
owns directly or indirectly 100 percent of the issued and outstanding
capital stock of each of its subsidiaries, free and clear of any claims,
liens, encumbrances or security interests and all of such capital stock has
been duly authorized and validly issued and is fully paid and
nonassessable.
(e) The issued and outstanding shares of capital stock of the Company
(including the Shares to be sold by the Selling Stockholders to you) as set
forth in the Prospectus have been duly authorized and validly issued, are
fully paid and nonassessable, and conform to the description thereof
contained in the Prospectus.
(f) The Shares to be sold by the Company, if any, have been duly
authorized and when issued, delivered and paid for pursuant to this
Agreement, will be validly issued, fully paid and nonassessable, and will
conform to the description thereof contained in the Prospectus.
(g) The making and performance by the Company of this Agreement has
been duly authorized by all necessary corporate action and will not violate
any provision of the Company's charter or bylaws and will not result in the
breach, or be in contravention, of any provision of any agreement,
franchise, license, indenture, mortgage, deed of trust, or other instrument
to which the Company or any subsidiary is a party or by which the Company,
any subsidiary or the property of any of them may be bound or affected, or
any order, rule or regulation applicable to the Company or any subsidiary
of any court or regulatory body, administrative agency or other
governmental body having jurisdiction over the Company or any subsidiary or
any of their respective properties, or any order of any court or
governmental agency or authority entered in any proceeding to which the
Company or any subsidiary was or is now a party or by which it is bound.
No consent, approval, authorization or other order of any court, regulatory
body, administrative agency or other governmental body is required for the
execution and delivery of this Agreement or the consummation of the
transactions contemplated herein on the part of the Company, except for
compliance with the 1933 Act and blue sky laws applicable to the public
offering of the Shares by you and clearance of such offering with the
National Association of Securities Dealers, Inc. ("NASD"). This Agreement
has been duly executed and delivered by the Company.
(h) The accountants who have expressed their opinions with respect to
certain of the financial statements included or incorporated by reference
in the Registration Statement are independent accountants as required by
the 1933 Act.
(i) The consolidated financial statements of the Company included or
incorporated by reference in the Registration Statement present fairly the
consolidated
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financial position of the Company as of the respective dates of such
financial statements, and the consolidated results of operations and cash
flows of the Company for the respective periods covered thereby, all in
conformity with generally accepted accounting principles consistently
applied throughout the periods involved, except as disclosed in the
Prospectus. The financial information set forth in the Prospectus under
"Summary" presents fairly on the basis stated in the Prospectus, the
information set forth therein.
(j) Neither the Company nor any subsidiary is in violation of its
charter or bylaws or in default under any consent decree, or in default
with respect to any material provision of any lease, loan agreement,
franchise, license, permit or other contract obligation to which it is a
party; and there does not exist any state of facts which constitutes an
event of default as defined in such documents or which, with notice or
lapse of time or both, would constitute such an event of default, in each
case, except for defaults which neither singly nor in the aggregate are
material to the Company and its subsidiaries taken as a whole.
(k) There are no material legal or governmental proceedings pending,
or to the Company's knowledge, threatened to which the Company or any
subsidiary is or may be a party or of which material property owned or
leased by the Company or any subsidiary is or may be the subject, or
related to environmental or discrimination matters which are not disclosed
in the Prospectus, or which question the validity of this Agreement or the
Pricing Agreement or any action taken or to be taken pursuant hereto or
thereto.
(l) There are no holders of securities of the Company having rights
to registration thereof or preemptive rights to purchase Common Stock
except as disclosed in the Prospectus. Holders of registration rights who
are not Selling Stockholders have waived such rights with respect to the
offering being made by the Prospectus.
(m) The Company and each of its subsidiaries have good and marketable
title to all the properties and assets reflected as owned in the financial
statements hereinabove described (or elsewhere in the Prospectus), subject
to no lien, mortgage, pledge, charge or encumbrance of any kind except
those, if any, reflected in such financial statements (or elsewhere in the
Prospectus) or which are not material to the Company and its subsidiaries
taken as a whole. The Company and each of its subsidiaries hold their
respective leased properties which are material to the Company and its
subsidiaries taken as a whole under valid and binding leases.
(n) The Company has not taken and will not take, directly or
indirectly, any action designed to or which has constituted or which might
reasonably be expected to cause or result, under the Exchange Act or
otherwise, in stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Shares.
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(o) Subsequent to the respective dates as of which information is
given in the Registration Statement and Prospectus, and except as
contemplated by the Prospectus, the Company and its subsidiaries, taken as
a whole, have not incurred any material liabilities or obligations, direct
or contingent, nor entered into any material transactions not in the
ordinary course of business and there has not been any material adverse
change in their condition (financial or otherwise) or results of operations
nor any material change in their capital stock, short-term debt or long-
term debt.
(p) The Company agrees not to sell, contract to sell or otherwise
dispose of any Common Stock or securities convertible into Common Stock
(except Common Stock issued pursuant to currently outstanding options,
warrants or convertible securities) for a period of 90 days after this
Agreement becomes effective without your prior written consent. The
Company has obtained similar agreements from each of its officers and
directors, except for any Shares covered by this Agreement.
(q) There is no material document of a character required to be
described in the Registration Statement or the Prospectus or to be filed as
an exhibit to the Registration Statement which is not described or filed as
required.
(r) The Company together with its subsidiaries owns and possesses all
right, title and interest in and to, or has duly licensed from third
parties, all patents, patent rights, trade secrets, inventions, know-how,
trademarks, trade names, copyrights, service marks and other proprietary
rights ("TRADE RIGHTS") material to the business of the Company and each of
its subsidiaries taken as a whole. Neither the Company nor any of its
subsidiaries has received any notice of infringement, misappropriation or
conflict from any third party as to such material Trade Rights which has
not been resolved or disposed of and neither the Company nor any of its
subsidiaries has infringed, misappropriated or otherwise conflicted with
material Trade Rights of any third parties, which infringement,
misappropriation or conflict would have a material adverse effect upon the
condition (financial or otherwise) or results of operations of the Company
and its subsidiaries taken as a whole.
(s) The conduct of the business of the Company and each of its
subsidiaries is in compliance in all respects with applicable federal,
state, local and foreign laws and regulations, except where the failure to
be in compliance would not have a material adverse effect upon the
condition (financial or otherwise) or results of operations of the Company
and its subsidiaries taken as a whole.
(t) All offers and sales of the Company's capital stock prior to the
date hereof were at all relevant times either exempt from the registration
requirements of the 1933 Act or duly registered thereunder and were duly
registered with or the subject of an available exemption from the
registration requirements of the applicable state securities or blue sky
laws.
(u) The Company has filed all necessary federal, state and foreign
income and franchise tax returns and has paid all taxes shown as due
thereon, and there is no
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tax deficiency that has been, or to the knowledge of the Company might be,
asserted against the Company or any of its properties or assets that would
or could be expected to have a material adverse effect upon the condition
(financial or otherwise) or results of operations of the Company and its
subsidiaries taken as a whole.
(v) A registration statement relating to the Common Stock has been
declared effective by the Commission pursuant to the Exchange Act and the
Common Stock is duly registered thereunder. The Shares have been
designated for trading on the Nasdaq National Market.
(w) The Company is not, and does not intend to conduct its business
in a manner in which it would become, an "investment company" as defined in
Section 3(a) of the Investment Company Act of 1940, as amended ("INVESTMENT
COMPANY ACT").
(x) The Company confirms as of the date hereof that it is in
compliance with all provisions of Section 1 of Laws of Florida, Chapter 92-
198, AN ACT RELATING TO DISCLOSURE OF DOING BUSINESS WITH CUBA, and the
Company further agrees that if it commences engaging in business with the
government of Cuba or with any person or affiliate located in Cuba after
the date the Registration Statement becomes or has become effective with
the Commission or with the Florida Department of Banking and Finance (the
"Department"), whichever date is later, or if the information reported in
the Prospectus, if any, concerning the Company's business with Cuba or with
any person or affiliate located in Cuba changes in any material way, the
Company will provide the Department notice of such business or change, as
appropriate, in a form acceptable to the Department.
SECTION 3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SELLING
STOCKHOLDERS.
(a) Each Selling Stockholder severally represents and warrants to,
and agrees with, the Company and you that:
(i) Such Selling Stockholder has, and on the First Closing Date
(as hereinafter defined), will have, valid and unencumbered title to
the Shares proposed to be sold by such Selling Stockholder hereunder
and full right, power and authority to enter into this Agreement and
the Pricing Agreement and to sell, assign, transfer and deliver such
Shares hereunder on such date, free and clear of all voting trust
arrangements, liens, encumbrances, equities, claims and community
property rights; and upon delivery of and payment for such Shares
hereunder on such date, assuming you acquire such Shares in good faith
and without notice of any adverse claim within the meaning of the
Uniform Commercial Code ("UCC"), you will acquire valid and
unencumbered title to such Shares on such date, free and clear of all
voting trust arrangements, liens, encumbrances, equities, claims and
community property rights.
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(ii) Such Selling Stockholder has not taken and will not take,
directly or indirectly, any action designed to or which might be
reasonably expected to cause or result, under the Exchange Act or
otherwise, in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Shares.
(iii) Such Selling Stockholder has duly executed and delivered a
Power of Attorney ("POWER OF ATTORNEY") among the Selling Stockholder,
________________, ____________________, and _____________ (the
"AGENTS"), naming the Agents as such Selling Stockholder's attorneys-
in-fact (and, by the execution by any Agent of this Agreement, such
Agent hereby represents and warrants that he has been duly appointed
as attorney-in-fact by the Selling Stockholders pursuant to the Power
of Attorney) for the purpose of entering into and carrying out this
Agreement and the Pricing Agreement, and a copy thereof has been
delivered to you.
(iv) Such Selling Stockholder has deposited in custody, under a
Custody Agreement ("CUSTODY AGREEMENT") with UMB Bank, National
Association, as custodian ("CUSTODIAN"), certificates in negotiable
form representing the Shares to be sold hereunder by such Selling
Stockholder, for the purpose of further delivery pursuant to this
Agreement. Such Shares on deposit with the Custodian are subject to
the interests of the Company, the Underwriter and the other Selling
Stockholders, the arrangements made for such custody, and the
appointment of the Agents pursuant to the Power of Attorney, are to
that extent irrevocable, and the obligations of such Selling
Stockholder hereunder and under the Power of Attorney and the Custody
Agreement shall not be terminated except as provided in this
Agreement, the Power of Attorney or the Custody Agreement by any act
of such Selling Stockholder, by operation of law (whether, in the case
of an individual Selling Stockholder, by the death or incapacity of
such Selling Stockholder or, in the case of a trust or estate, by the
death of the trustee or trustees or the executor or executors or the
termination of such trust or estate, or, in the case of a partnership
or corporation, by the dissolution, winding-up or other event
affecting the legal life of such entity) or by the occurrence of any
other event. If any individual Selling Stockholder, trustee or
executor should die or become incapacitated, or any such trust,
estate, partnership or corporation should be terminated, or if any
other event should occur before the delivery of the Shares hereunder,
the documents evidencing such Shares then on deposit with the
Custodian shall be delivered by the Custodian in accordance with the
terms and conditions of this Agreement as if such death, incapacity,
termination or other event had not occurred, regardless of whether or
not the Custodian shall have received notice thereof. Each Agent has
been authorized by such Selling Stockholder to execute and deliver
this Agreement and the Pricing Agreement and the Custodian has been
authorized to receive and acknowledge receipt of the proceeds of sale
of such Shares against delivery thereof and otherwise act on behalf of
such Selling Stockholder. The
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Custody Agreement has been duly executed by such Selling Stockholder
and a copy thereof has been delivered to you.
(v) Such Selling Stockholder agrees with the Company and you not
to sell, contract to sell or otherwise dispose of any Common Stock for
a period of 90 days after this Agreement becomes effective without
your prior written consent.
(vi) The Stockholder Information (as defined below) relating to
such Selling Stockholder does not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading. The parties
acknowledge and agree that "Stockholder Information" consists solely
of the information with respect to such Selling Stockholder included
or incorporated by reference in the Prospectus.
(vii) This Agreement has been duly authorized and validly executed
and delivered by or on behalf of such Selling Stockholder assuming
due execution and delivery by the other parties hereto, and
constitutes a valid and legally binding agreement of such Selling
Stockholder, enforceable against such Selling Stockholder in
accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer and
similar laws affecting creditors' rights and remedies generally and to
general principles of equity (regardless of whether enforcement is
sought in a proceeding at law or in equity).
(viii) No consent, approval, authorization, or order of, or filing
with, any governmental agency or body or by any court or arbitrator is
required to be obtained by such Selling Stockholder for the
consummation of the transactions contemplated by this Agreement in
connection with the sale of the Shares by such Selling Stockholder,
except such as may be required under the 1933 Act and such as may be
required under applicable state securities or blue sky laws
or the requirements of the NASD.
(ix) The sale of the Shares, the execution, delivery and
performance of this Agreement and the consummation of the transactions
herein contemplated and the fulfillment of the terms hereof, will not
result in a breach or violation of any of the terms and provisions of,
or constitute a default under, any material agreement or instrument to
which such Selling Stockholder is a party or by which such Selling
Stockholder is bound or to which any of the properties of such Selling
Stockholder is subject, except in each case where such breach,
violation or default would have no material effect on the consummation
of the transactions contemplated by this Agreement or any effect on
title to the Shares, and such Selling Stockholder has full power and
authority to sell the Shares to be sold by it as contemplated by this
Agreement.
(x) The sale of the Shares by such Selling Stockholder, the
execution, delivery and performance of this Agreement by such Selling
Stockholder and
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the consummation by such Selling Stockholder of the transactions
herein contemplated and the fulfillment by such Selling Stockholder of
the terms hereof, will not result in a breach or violation of any of
the terms and provisions of any statute or any rule, regulation or
order applicable to such Selling Stockholder of any governmental
agency or body or any court, domestic or foreign, having jurisdiction
over such Selling Stockholder or any of its properties.
(b) Each of the Selling Stockholders severally represents and
warrants to, and agrees with, the Underwriter that nothing has come to such
Selling Stockholder's attention that causes such Selling Stockholder to
believe that the representations and warranties of the Company set forth in
Section 2 of this Agreement are not true and correct.
In order to document your compliance with the reporting and withholding
provisions of the Internal Revenue Code of 1986, as amended, with respect to the
transactions herein contemplated, each of the Selling Stockholders severally
agrees to deliver to you prior to or on the First Closing Date a properly
completed and executed United States Treasury Department Form W-8 or W-9 as to
such Selling Stockholder (or other applicable form of statement specified by
Treasury Department regulations in lieu thereof).
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE UNDERWRITER. You
represent and warrant to the Company and the Selling Stockholders that the
information set forth (a) on the cover page of the Prospectus with respect to
price, underwriting discount and terms of the offering and (b) under
"Underwriting" in the Prospectus was furnished to the Company by you for use in
connection with the preparation of the Registration Statement and is correct and
complete in all material respects.
SECTION 5. PURCHASE, SALE AND DELIVERY OF SHARES. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Selling Stockholders, severally and
not jointly, agree to sell to you, and you agree to purchase from the Selling
Stockholders, the respective number of Firm Shares set forth opposite the names
of the Selling Stockholders in Schedule A hereto at the price per share set
forth in the Pricing Agreement. The initial public offering price and the
purchase price shall be set forth in the Pricing Agreement.
At 9:00 A.M., Chicago Time, on the fourth business day, if permitted under
Rule 15c6-1 under the Exchange Act (or the third business day if required under
Rule 15c6-1 under the Exchange Act), following the date the Registration
Statement becomes effective (or, if the Company has elected to rely upon Rule
430A, the fourth business day, if permitted under Rule 15c6-1 under the Exchange
Act (or the third business day if required under Rule 15c6-1 under the Exchange
Act), after execution of the Pricing Agreement), or such other time not later
than ten business days after such date as shall be agreed upon by you and the
Company, the Custodian will deliver to you at the offices of your counsel or
through the facilities of The Depository Trust Company, certificates
representing the Firm Shares to be sold by the Selling Stockholders, against
payment of the purchase price therefor
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by certified or bank cashier's checks in Chicago Clearing House funds (next-day
funds) payable to the order of the Custodian. Such time of delivery and payment
is herein referred to as the "FIRST CLOSING DATE." The certificates for the Firm
Shares so to be delivered will be in such denominations and registered in such
names as you request by notice to the Custodian prior to 10:00 A.M., Chicago
Time, on the second full business day preceding the First Closing Date, and will
be made available at the Company's expense for checking and packaging by you at
10:00 A.M., Chicago Time, on the business day preceding the First Closing Date.
Payment for the Firm Shares so to be delivered shall be made at the time and in
the manner described above at the offices of counsel for the Underwriter.
In addition, on the basis of the representations, warranties and agreements
herein contained, but subject to the terms and conditions herein set forth, the
Company hereby grants an option to you to purchase up to 206,610 Option Shares,
at the same purchase price per share to be paid for the Firm Shares, for use
solely in covering any overallotments made by you in the sale and distribution
of the Firm Shares. The option granted hereunder may be exercised at any time
(but not more than once) within 30 days after the date of the initial public
offering upon notice by you to the Company setting forth the aggregate number of
Option Shares as to which you are exercising the option, the names and
denominations in which the certificates for such shares are to be registered and
the time and place at which such certificates will be delivered. Such time of
delivery (which may not be earlier than the First Closing Date), being herein
referred to as the "SECOND CLOSING DATE," shall be determined by you, but if at
any time other than the First Closing Date, shall not be earlier than three nor
later than 10 full business days after delivery of such notice of exercise.
Certificates for the Option Shares will be made available at the Company's
expense for checking and packaging at 10:00 A.M., Chicago Time, on the first
full business day preceding the Second Closing Date. The manner of payment for
and delivery of the Option Shares shall be the same as for the Firm Shares as
specified in the preceding paragraph.
SECTION 6. COVENANTS OF THE COMPANY. The Company covenants and agrees
that:
(a) The Company will advise you and the Selling Stockholders promptly
of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of the institution of any
proceedings for that purpose, or of any notification of the suspension of
qualification of the Shares for sale in any jurisdiction or the initiation
or threatening of any proceedings for that purpose, and will also advise
you and the Selling Stockholders promptly of any request of the Commission
for amendment or supplement of the Registration Statement, of any
preliminary prospectus or of the Prospectus, or for additional information.
(b) The Company will give you and the Selling Stockholders notice of
its intention to file or prepare any amendment to the Registration
Statement (including any post-effective amendment) or any Rule 462(b)
Registration Statement or any amendment or supplement to the Prospectus
(including any revised prospectus which the Company proposes for use by you
in connection with the offering of the Shares which differs from the
prospectus on file at the Commission at the time the Registration Statement
became or becomes effective, whether or not such revised
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prospectus is required to be filed pursuant to Rule 424(b) and any term
sheet as contemplated by Rule 434) and will furnish you and the Selling
Stockholders with copies of any such amendment or supplement a reasonable
amount of time prior to such proposed filing or use, as the case may be,
and will not file any such amendment or supplement or use any such
prospectus to which you or your counsel shall reasonably object.
(c) If the Company elects to rely on Rule 434 of the 1933 Act, the
Company will prepare a term sheet that complies with the requirements of
Rule 434. If the Company elects not to rely on Rule 434, the Company will
provide you with copies of the form of prospectus, in such numbers as you
may reasonably request, and file with the Commission such prospectus in
accordance with Rule 424(b) of the 1933 Act by the close of business in
Washington, D.C. on the second business day immediately succeeding the date
of the Pricing Agreement. If the Company elects to rely on Rule 434, the
Company will provide you with copies of the form of Rule 434 Prospectus, in
such numbers as you may reasonably request, by the close of business in
Washington, D.C. on the business day immediately succeeding the date of the
Pricing Agreement.
(d) If at any time when a prospectus relating to the Shares is
required to be delivered under the 1933 Act any event occurs as a result of
which the Prospectus, including any amendments or supplements, would
include an untrue statement of a material fact, or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend the
Prospectus, including any amendments or supplements thereto and including
any revised prospectus which the Company proposes for use by you in
connection with the offering of the Shares which differs from the
prospectus on file with the Commission at the time of effectiveness of the
Registration Statement, whether or not such revised prospectus is required
to be filed pursuant to Rule 424(b) to comply with the 1933 Act, the
Company promptly will advise you thereof and will promptly prepare and file
with the Commission an amendment or supplement which will correct such
statement or omission or an amendment which will effect such compliance;
and, in case you are required to deliver a prospectus nine months or more
after the effective date of the Registration Statement, the Company upon
request, but at your expense, will prepare promptly such prospectus or
prospectuses as may be necessary to permit compliance with the requirements
of Section 10(a)(3) of the 1933 Act.
(e) Neither the Company nor any of its subsidiaries will, prior to
the earlier of the Second Closing Date or termination or expiration of the
related option, incur any liability or obligation, direct or contingent, or
enter into any material transaction, other than in the ordinary course of
business, except as contemplated by the Prospectus.
(f) Neither the Company nor any of its subsidiaries will acquire any
capital stock of the Company prior to the earlier of the Second Closing
Date or termination
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or expiration of the related option nor will the Company declare or pay any
dividend or make any other distribution upon the Common Stock payable to
stockholders of record on a date prior to the earlier of the Second Closing
Date or termination or expiration of the related option, except in either
case as contemplated by the Prospectus.
(g) Not later than _________, 1997 the Company will make generally
available to its security holders an earnings statement (which need not be
audited) covering a period of at least 12 months beginning after the
effective date of the Registration Statement, which will satisfy the
provisions of the last paragraph of Section 11(a) of the 1933 Act.
(h) During such period as a prospectus is required by law to be
delivered in connection with offers and sales of the Shares by you or a
dealer, the Company will furnish to you at its expense, subject to the
provisions of subsection (d) hereof, copies of the Registration Statement,
the Prospectus, each preliminary prospectus, the Incorporated Documents and
all amendments and supplements to any such documents in each case as soon
as available and in such quantities as you may reasonably request, for the
purposes contemplated by the 1933 Act.
(i) The Company will cooperate with you in qualifying or registering
the Shares for sale under the blue sky laws of such jurisdictions as you
designate, and will continue such qualifications in effect so long as
reasonably required for the distribution of the Shares. The Company shall
not be required to qualify as a foreign corporation or to file a general
consent to service of process in any such jurisdiction where it is not
currently qualified or where it would be subject to taxation as a foreign
corporation.
(j) During the period of five years hereafter, the Company will
furnish you with a copy (i) as soon as practicable after the filing
thereof, of each report filed by the Company with the Commission, any
securities exchange or the NASD; (ii) as soon as practicable after the
release thereof, of each material press release in respect of the Company;
and (iii) as soon as available, of each report of the Company mailed to
stockholders.
(k) The Company will use the net proceeds received by it from the
sale of the Shares, if any, being sold by it in the manner specified in the
Prospectus.
(l) If, at the time of effectiveness of the Registration Statement,
any information shall have been omitted therefrom in reliance upon Rule
430A and/or Rule 434, then immediately following the execution of the
Pricing Agreement, the Company will prepare, and file or transmit for
filing with the Commission in accordance with such Rule 430A, Rule 424(b)
and/or Rule 434, copies of an amended Prospectus, or, if required by such
Rule 430A and/or Rule 434, a post-effective amendment to the Registration
Statement (including an amended Prospectus), containing all information so
omitted. If required, the Company will prepare and file,
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or transmit for filing, a Rule 462(b) Registration Statement not later than
the date of the execution of the Pricing Agreement. If a Rule 462(b)
Registration Statement is filed, the Company shall make payment of, or
arrange for payment of, the additional registration fee owing to the
Commission required by Rule 111.
(m) The Company will comply with all registration, filing and
reporting requirements of the Exchange Act and the Nasdaq National Market.
SECTION 7. PAYMENT OF EXPENSES. Whether or not the transactions
contemplated hereunder are consummated or this Agreement becomes effective as to
all of its provisions or is terminated, the Company agrees to pay (i) all costs,
fees and expenses (other than legal fees and disbursements of your counsel and
the expenses incurred by you) incurred in connection with the performance of the
Company's and the Selling Stockholder's obligations hereunder, including without
limiting the generality of the foregoing, all fees and expenses of legal counsel
for the Company and the Selling Stockholders and of the Company's independent
accountants, all costs and expenses incurred in connection with the preparation,
printing, filing and distribution of the Registration Statement, each
preliminary prospectus and the Prospectus (including all Incorporated Documents,
exhibits and financial statements) and all amendments and supplements provided
for herein, this Agreement, the Pricing Agreement and the Blue Sky Memorandum,
(ii) all costs, fees and expenses (including legal fees not to exceed $12,500
and disbursements of your counsel) incurred in connection with qualifying or
registering all or any part of the Shares for offer and sale under blue sky
laws, including the preparation of a blue sky memorandum relating to the Shares
and clearance of such offering with the NASD, and (iii) all fees and expenses of
the Company's transfer agent, printing of the certificates for the Shares and
all transfer taxes, if any, with respect to the sale and delivery of the Shares
to you.
The provisions of this Section shall not affect any agreement which the
Company and the Selling Stockholders have previously made for the allocation or
sharing of such expenses and costs.
SECTION 8. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITER. Your
obligation to purchase and pay for the Firm Shares on the First Closing Date and
the Option Shares on the Second Closing Date shall be subject to the accuracy of
the representations and warranties on the part of the Company and the Selling
Stockholders herein set forth as of the date hereof and as of the First Closing
Date or the Second Closing Date, as the case may be, to the accuracy of the
statements of officers of the Company made pursuant to the provisions hereof, to
the performance by the Company and the Selling Stockholders of their respective
obligations hereunder, and to the following additional conditions:
(a) The Registration Statement shall have become effective either
prior to the execution of this Agreement or not later than 1:00 P.M.,
Chicago Time, on the first full business day after the date of this
Agreement, or such later time as shall have been consented to by you but in
no event later than 1:00 P.M., Chicago Time, on the third full business day
following the date hereof; and prior to the First Closing Date or the
Second Closing Date, as the case may be, no stop order suspending the
effectiveness of
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the Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted or shall be pending or, to the
knowledge of the Company, the Selling Stockholders or you, shall be
contemplated by the Commission. If the Company has elected to rely upon
Rule 430A and/or Rule 434, the information concerning the initial public
offering price of the Shares and price-related information shall have been
transmitted to the Commission for filing pursuant to Rule 424(b) within the
prescribed period and the Company will provide evidence satisfactory to you
of such timely filing (or a post-effective amendment providing such
information shall have been filed and declared effective in accordance with
the requirements of Rules 430A and 424(b)). If a Rule 462(b) Registration
Statement is required, such Registration Statement shall have been
transmitted to the Commission for filing and become effective within the
prescribed time period and, prior to the First Closing Date, the Company
shall have provided evidence of such filing and effectiveness in accordance
with Rule 462(b).
(b) The Shares shall have been qualified for sale under the blue sky
laws of such states as shall have been specified by you.
(c) The legality and sufficiency of the authorization, issuance and
sale or transfer and sale of the Shares hereunder, the validity and form of
the certificates representing the Shares, the execution and delivery of
this Agreement and the Pricing Agreement, and all corporate proceedings and
other legal matters incident thereto, and the form of the Registration
Statement and the Prospectus (except financial statements) shall have been
approved by your counsel exercising reasonable judgment.
(d) You shall not have advised the Company that the Registration
Statement or the Prospectus or any amendment or supplement thereto,
contains an untrue statement of fact, which, in the opinion of your
counsel, is material or omits to state a fact which, in the opinion of such
counsel, is material and is required to be stated therein or necessary to
make the statements therein not misleading.
(e) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred any change, or any development involving a
prospective change, in or affecting particularly the business or properties
of the Company or its subsidiaries, whether or not arising in the ordinary
course of business, which, in your judgment, makes it impractical or
inadvisable to proceed with the public offering or purchase of the Shares
as contemplated hereby.
(f) There shall have been furnished to you, on the First Closing Date
or the Second Closing Date, as the case may be, except as otherwise
expressly provided below:
(i) An opinion of Triplett, Woolf & Garretson, LLP, counsel for
the Company, addressed to you and dated the First Closing Date or the
Second Closing Date, as the case may be, to the effect that:
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(1) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Kansas with corporate power and authority to own its
properties and conduct its business as described in the
Prospectus; and the Company has been duly qualified to do
business as a foreign corporation under the corporation law of,
and is in good standing as such in, every jurisdiction where the
ownership or leasing of property, or the conduct of its business
requires such qualification except where the failure so to
qualify would not have a material adverse effect upon the
condition (financial or otherwise) or results of operations of
the Company and its subsidiaries taken as a whole;
(2) an opinion to the same general effect as clause (1) of
this subparagraph (i) in respect of each direct and indirect
United States subsidiary of the Company;
(3) all of the issued and outstanding capital stock of
each United States subsidiary of the Company has been duly
authorized, validly issued and is fully paid and nonassessable,
and, except as disclosed in the Registration Statement, the
Company owns directly or indirectly 100 percent of the
outstanding capital stock of each subsidiary, and to the best
knowledge of such counsel, such stock is owned free and clear of
any claims, liens, encumbrances or security interests;
(4) the authorized capital stock of the Company, of which
there is outstanding the amount set forth in the Registration
Statement and Prospectus (except for subsequent issuances, if
any, pursuant to stock options or other rights referred to in the
Prospectus), conforms as to legal matters in all material
respects to the description thereof in the Registration Statement
and Prospectus;
(5) the issued and outstanding capital stock of the
Company (including the Shares) has been duly authorized and
validly issued and is fully paid and nonassessable;
(6) the certificates for the Shares to be delivered
hereunder are in due and proper form and when duly countersigned
by the Company's transfer agent and delivered to you or upon your
order against payment of the agreed consideration therefor in
accordance with the provisions of this Agreement and the Pricing
Agreement, the Shares represented thereby will be duly authorized
and validly issued, fully paid and nonassessable;
(7) the Registration Statement has become effective under
the 1933 Act, and, to the best knowledge of such counsel, no stop
order suspending the effectiveness of the Registration Statement
has been issued
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and no proceedings for that purpose have been instituted or are
pending or contemplated under the 1933 Act, and the Registration
Statement (including the information deemed to be part of the
Registration Statement at the time of effectiveness pursuant to
Rule 430A(b) and/or Rule 434, if applicable), the Prospectus and
each amendment or supplement thereto (except for the financial
statements and other statistical or financial data included
therein as to which such counsel need express no opinion) comply
as to form in all material respects with the requirements of the
1933 Act; such counsel have no reason to believe that either the
Registration Statement (including the information deemed to be
part of the Registration Statement at the time of effectiveness
pursuant to Rule 430A(b) and/or Rule 434, if applicable) or the
Prospectus, or the Registration Statement or the Prospectus as
amended or supplemented (except as aforesaid), as of their
respective effective or issue dates, contained any untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus as amended or
supplemented, if applicable, as of the First Closing Date or the
Second Closing Date, as the case may be, contained any untrue
statement of a material fact or omitted to state any material
fact necessary to make the statements therein not misleading in
light of the circumstances under which they were made; the
statements in the Registration Statement and the Prospectus
summarizing statutes, rules and regulations are accurate and
fairly and correctly present the information required to be
presented by the 1933 Act or the rules and regulations
thereunder, in all material respects and such counsel does not
know of any statutes, rules and regulations required to be
described or referred to in the Registration Statement or the
Prospectus that are not described or referred to therein as
required; and such counsel does not know of any legal or
governmental proceedings pending or threatened required to be
described in the Prospectus which are not described as required,
nor of any contracts or documents of a character required to be
described in the Registration Statement or Prospectus or to be
filed as exhibits to the Registration Statement which are not
described or filed, as required;
(8) this Agreement and the performance of the Company's
obligations hereunder have been duly authorized by all necessary
corporate action and this Agreement has been duly executed and
delivered by and on behalf of the Company, and is a legal, valid
and binding agreement of the Company enforceable in accordance
with its terms, except as enforceability of the same may be
limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting creditors' rights and by the
exercise of judicial discretion in accordance with general
principles applicable to equitable and similar remedies and
except as to those provisions relating to indemnities for
liabilities arising under the 1933 Act as to which no opinion
need be expressed; and no
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approval, authorization or consent of any public board, agency,
or instrumentality of the United States or of any state or other
jurisdiction is necessary in connection with the issue or sale of
the Shares by the Selling Stockholders pursuant to this Agreement
(other than under the 1933 Act, applicable blue sky laws and the
rules of the NASD) or the consummation by the Company of any
other transactions contemplated hereby;
(9) the execution and performance of this Agreement will
not contravene any of the provisions of, or result in a default
under, any agreement, franchise, license, indenture, mortgage,
deed of trust, or other instrument known to such counsel, of the
Company or any of its subsidiaries or by which the property of
any of them is bound and which contravention or default would be
material to the Company and its subsidiaries taken as a whole; or
violate any of the provisions of the charter or bylaws of the
Company or any of its subsidiaries or, so far as is known to such
counsel, violate any statute, order, rule or regulation of any
regulatory or governmental body having jurisdiction over the
Company or any of its subsidiaries;
(10) all documents incorporated by reference in the
Prospectus, when they were filed with the Commission, complied as
to form in all material respects with the requirements of the
Exchange Act; and such counsel have no reason to believe that any
of such documents, when they were so filed, contained an untrue
statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they were made when such
documents were so filed, not misleading; such counsel need
express no opinion as to the financial statements or other
financial or statistical data contained in any such document; and
(11) to such counsel's knowledge, all offers and sales of
the Company's capital stock since January 1, 1993 were at all
relevant times exempt from the registration requirements of the
1933 Act or duly registered thereunder and were duly registered
or the subject of an available exemption from the registration
requirements of the applicable state securities or blue sky laws.
In rendering such opinion, such counsel may state that they are
relying upon the certificate of UMB Bank, National Association, the
transfer agent for the Common Stock, as to the number of shares of Common
Stock at any time or times outstanding, and that insofar as their opinion
under clause (7) above relates to the accuracy and completeness of the
Prospectus and Registration Statement, it is based upon a general review
with the Company's representatives and independent accountants of the
information contained therein, without independent verification by such
counsel of the accuracy or completeness of such information. Such counsel
may also rely upon the opinions of other competent counsel and, as to
factual matters, on
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certificates of officers of the Company and of state officials, in which
case their opinion is to state that they are so doing and copies of said
opinions or certificates are to be attached to the opinion unless said
opinions or certificates (or, in the case of certificates, the information
therein) have been furnished to you in other form.
(ii) An opinion of Addleshaw Sons & Latham, counsel for the
Company, addressed to you and dated the First Closing Date or the
Second Closing Date, as the case may be, to the effect that:
(1) Brite Voice Systems Group, Limited (the "FOREIGN
SUBSIDIARY") has been duly incorporated and is validly existing
as a corporation in good standing under the laws of its
jurisdiction of incorporation;
(2) the Foreign Subsidiary has the corporate power to own,
lease and operate its properties and to conduct its business as
it is currently being conducted;
(3) the Foreign Subsidiary is duly qualified to do
business as a foreign corporation and is in good standing in each
jurisdiction, if any, in which the ownership or leasing of its
properties or the conduct of its business requires such
qualification, except where the failure so to qualify would not
have a material adverse effect on the financial condition,
earnings, operations, business or business prospects of such
corporation; and
(4) with respect to the Foreign Subsidiary, the
performance of this Agreement and the consummation of the
transactions herein contemplated (other than performance of the
Company's indemnification and contribution obligations hereunder,
concerning which no opinion need be expressed) will not, to such
counsel's knowledge, result in the violation of any statue, rule
or regulation.
Counsel rendering the foregoing opinion may rely as to
questions of fact upon representations or certificates of
officers of the Company and of government officials, in which
case their opinion is to state that they are so relying. Copies
of any representation or certificate so relied upon shall be
delivered to you.
(iii) An opinion of Kelley Drye & Warren or Stinson Mag & Fizell,
as applicable, each counsel for certain of the Selling Stockholders,
addressed to you and dated the First Closing Date, with respect to
the Selling Stockholders so represented, to the effect that:
(1) this Agreement and the Pricing Agreement have been
duly authorized (as applicable), executed and delivered by or on
behalf of each such Selling Stockholder; the Custody Agreement
and Power of Attorney
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have been duly authorized (as applicable), executed and delivered
by each such Selling Stockholder; and the performance of this
Agreement and the Pricing Agreement and the consummation of the
transactions herein contemplated by each such Selling Stockholder
will not result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any statute, any
indenture, mortgage, deed of trust, note agreement or other
agreement or instrument known to such counsel to which such
Selling Stockholder is a party or is bound or to which any of the
property of such Selling Stockholder is subject, or any order,
rule or regulation known to such counsel of any court or
governmental agency or body having jurisdiction over any of such
Selling Stockholder or any of their properties, except such as
would not materially effect the consummation of the transactions
contemplated hereby or effect title to the Shares; and, to the
knowledge of such counsel, no consent, approval, authorization or
order of any court or governmental agency or body is required for
the consummation of the transactions contemplated by this
Agreement and the Pricing Agreement in connection with the sale
of Shares to be sold by such Selling Stockholder hereunder,
except such as have been obtained under the 1933 Act (or the
rules and regulations thereunder) and such as may be required
under applicable blue sky laws (or the rules and regulations
thereunder) in connection with the purchase and distribution of
such Shares by you and the clearance of such offering with the
NASD;
(2) each such Selling Stockholder has full power and
authority to enter into this Agreement, the Pricing Agreement,
the Custody Agreement and the Power of Attorney and to sell,
transfer and deliver the Shares to be sold on the First Closing
Date by such Selling Stockholder hereunder and, assuming you
acquire the Shares in good faith and without notice of any
adverse claim within the meaning of the UCC, title to such Shares
so sold, free and clear of all voting trust arrangements, liens,
encumbrances, equities, claims and community property rights
whatsoever, has been transferred to you upon payment therefor, as
contemplated by this Agreement; and
(3) assuming due authorization, execution and delivery by
the other parties thereto, this Agreement, the Pricing Agreement,
the Custody Agreement and the Power of Attorney are valid and
legally binding agreements of each such Selling Stockholder
enforceable in accordance with their respective terms, except as
enforceability of the same may be limited by bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or
other similar laws affecting creditors' rights and by general
equitable principles and except with respect to those provisions
relating to indemnities for liabilities arising under the 1933
Act and applicable blue sky laws, as to which no opinion need be
expressed.
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In rendering such opinion, such counsel may assume the legal capacity
of all natural persons.
(iv) Such opinion or opinions of Chapman and Cutler, your
counsel, dated the First Closing Date or the Second Closing Date, as
the case may be, with respect to the incorporation of the Company, the
validity of the Shares, the Registration Statement and the Prospectus
and other related matters as you may reasonably require, and the
Company shall have furnished to such counsel such documents and shall
have exhibited to them such papers and records as they request for the
purpose of enabling them to pass upon such matters.
(v) A certificate of the chief executive officer and the
principal financial officer of the Company, dated the First Closing
Date or the Second Closing Date, as the case may be, to the effect
that:
(1) the representations and warranties of the Company set
forth in Section 2 of this Agreement are true and correct as of
the date of this Agreement and as of the First Closing Date or
the Second Closing Date, as the case may be, and the Company has
complied with all the agreements and satisfied all the conditions
on its part to be performed or satisfied at or prior to such
Closing Date; and
(2) the Commission has not issued an order preventing or
suspending the use of the Prospectus or any preliminary
prospectus filed as a part of the Registration Statement or any
amendment thereto; no stop order suspending the effectiveness of
the Registration Statement has been issued; and to the best
knowledge of the respective signers, no proceedings for that
purpose have been instituted or are pending or contemplated under
the 1933 Act.
The delivery of the certificate provided for in this subparagraph
shall be and constitute a representation and warranty of the Company as to
the facts required in the immediately foregoing clauses (1) and (2) of this
subparagraph to be set forth in said certificate.
(vi) A certificate of each Selling Stockholder dated the First
Closing Date to the effect that the representations and warranties of
such Selling Stockholder set forth in Section 3 of this Agreement are
true and correct as of such date and the Selling Stockholder has
complied with all the agreements and satisfied all the conditions on
the part of such Selling Stockholder to be performed or satisfied at
or prior to such date.
(vii) At the time the Pricing Agreement is executed and also on
the First Closing Date or the Second Closing Date, as the case may be,
there shall be delivered to you a letter addressed to you from Arthur
Andersen LLP, independent accountants, the first one to be dated the
date of the Pricing
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Agreement, the second one to be dated the First Closing Date and the
third one (in the event of a second closing) to be dated the Second
Closing Date, to the effect set forth in Schedule B. There shall not
have been any change or decrease specified in the letters referred to
in this subparagraph which makes it impractical or inadvisable in your
judgment to proceed with the public offering or purchase of the Shares
as contemplated hereby.
(viii) Such further certificates and documents as you may
reasonably request.
All such opinions, certificates, letters and documents shall be in
compliance with the provisions hereof only if they are satisfactory to you and
to Chapman and Cutler, your counsel, which approval shall not be unreasonably
withheld. The Company shall furnish you with such manually signed or conformed
copies of such opinions, certificates, letters and documents as you request.
The obligation of each Selling Stockholder to sell or deliver the Firm
Shares on the First Closing Date shall be subject to the condition that the
Registration Statement shall have become effective prior to the First Closing
Date and that no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been instituted or shall be pending or to the knowledge of the Company, the
Selling Stockholder or you, shall be contemplated by the Commission.
If any condition to your obligations or the obligations of the Selling
Stockholders hereunder to be satisfied prior to or at the First Closing Date is
not so satisfied, this Agreement at your election or, with respect to conditions
to the Selling Stockholders obligations at the election of any Selling
Stockholder, will terminate upon notification to you, the Company and the
Selling Stockholders, as the case may be, without liability on your part or the
part of the Company or any Selling Stockholder, except for the expenses to be
paid or reimbursed by the Company and the Selling Stockholders pursuant to
Sections 7 and 9 hereof and except to the extent provided in Section 11 hereof.
SECTION 9. REIMBURSEMENT OF UNDERWRITER'S EXPENSES. If the sale of the
Shares to you on the First Closing Date is not consummated because any condition
of your obligations hereunder is not satisfied or because of any refusal,
inability or failure on the part of the Company or the Selling Stockholders to
perform any agreement herein or to comply with any provision hereof, unless such
failure to satisfy such condition or to comply with any provision hereof is due
to a default or omission by you, the Company agrees to reimburse you upon demand
for all out-of-pocket expenses (including reasonable fees and disbursements of
your counsel) that shall have been reasonably incurred by you in connection with
the proposed purchase and the sale of the Shares. Any such termination shall be
without liability of any party to any other party except that the provisions of
this Section, Section 7 and Section 11 shall at all times be effective and shall
apply. Except as provided in the preceding sentence and in Section 7, you shall
not be entitled to reimbursement of any such expenses.
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SECTION 10. EFFECTIVENESS OF REGISTRATION STATEMENT. You, the Company
and the Selling Stockholders will use your, its and their best efforts to cause
the Registration Statement to become effective, if it has not yet become
effective, and to prevent the issuance of any stop order suspending the
effectiveness of the Registration Statement and, if such stop order be issued,
to obtain as soon as possible the lifting thereof.
SECTION 11. INDEMNIFICATION. (a) The Company and each Selling
Stockholder, jointly and severally, agree to indemnify and hold harmless you and
each person, if any, who controls you within the meaning of the 1933 Act or the
Exchange Act against any losses, claims, damages or liabilities, joint or
several, to which you or such controlling person may become subject under the
1933 Act, the Exchange Act or other federal or state statutory law or
regulation, at common law or otherwise (including in settlement of any
litigation if such settlement is effected with the written consent of the
Company and/or such Selling Stockholders, as the case may be), insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, including the information
deemed to be part of the Registration Statement at the time of effectiveness
pursuant to Rule 430A and/or Rule 434, if applicable, any preliminary
prospectus, the Prospectus, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein (or, in the Prospectus or any supplement thereto, in light
of the circumstances under which they were made) not misleading; and will
reimburse you and each such controlling person for any legal or other expenses
reasonably incurred by you or such controlling person in connection with
investigating or defending any such loss, claim, damage, liability or action;
PROVIDED, HOWEVER, that neither the Company nor any Selling Stockholder will be
liable in any such case to the extent, but only to the extent, that (i) any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
the Registration Statement, any preliminary prospectus, the Prospectus or any
amendment or supplement thereto in reliance upon and in conformity with written
information furnished to the Company by you, specifically for use therein; or
(ii) if such statement or omission was contained or made in any preliminary
prospectus and corrected in the Prospectus and (1) any such loss, claim, damage
or liability suffered or incurred by you (or any person who controls you)
resulted from an action, claim or suit by any person who purchased Shares which
are the subject thereof from you in the offering and (2) you failed to deliver
or provide a copy of the Prospectus to such person at or prior to the
confirmation of the sale of such Shares in any case where such delivery is
required by the 1933 Act. In addition to their other obligations under this
Section 11(a), the Company and the Selling Stockholders agree that, as an
interim measure during the pendency of any claim, action, investigation, inquiry
or other proceeding arising out of or based upon any statement or omission, or
any alleged statement or omission described in this Section 11(a), they will
reimburse you and such controlling person on a monthly basis for all reasonable
legal and other expenses incurred in connection with investigating or defending
any such claim, action, investigation, inquiry or other proceeding,
notwithstanding the absence of a judicial determination as to the propriety and
enforceability of the Company's and the Selling Stockholders' obligation to
reimburse you and each such controlling person for such
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expenses and the possibility that such payments might later be held to have been
improper by a court of competent jurisdiction. This indemnity agreement will be
in addition to any liability which the Company and the Selling Stockholders may
otherwise have.
In the event of a claim for indemnity pursuant to the provisions
contained in paragraph (a) of this Section 11, the Underwriter agrees, in the
event it pursues such claim against one or more Selling Stockholders, to also
pursue such claim against the Company and, prior to seeking collection from
one or more of the Selling Stockholders on any judgment, order, award or
determination obtained pursuant to such claim, to first use its reasonable
best efforts during the six month period immediately following the date of
said judgment, order, award or determination to collect such claim in full
from the Company; provided, however, that if the Underwriter reasonably
determines that collection from the Company is unlikely to be received in
full within such six month period, the Underwriter may seek collection of
such claim from one or more of the Selling Stockholders without waiting
for the expiration of such six month period.
Without limiting the full extent of the Company's agreement to indemnify
you as herein provided, each Selling Stockholder shall be liable under the
indemnity agreements contained in paragraph (a) of this Section only for an
amount not exceeding the proceeds received by such Selling Stockholder from the
sale of Shares hereunder.
(b) You agree to indemnify and hold harmless the Company, each of its
directors, each of its officers who signed the Registration Statement, and each
Selling Stockholder and each person, if any, who controls the Company or any
Selling Stockholder within the meaning of the 1933 Act or the Exchange Act
against any losses, claims, damages or liabilities to which the Company or any
such director, officer, Selling Stockholder or controlling person may become
subject under the 1933 Act, the Exchange Act or other federal or state statutory
law or regulation, at common law or otherwise (including in settlement of any
litigation, if such settlement is effected with your written consent), insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue or alleged untrue statement of any
material fact contained in the Registration Statement, any preliminary
prospectus, the Prospectus, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein (or, in the Prospectus or any supplement thereto, in light
of the circumstances under which they were made) not misleading, in each case to
the extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in the Registration
Statement, any preliminary prospectus, the Prospectus or any amendment or
supplement thereto in reliance upon and in conformity with Section 4 of this
Agreement or any other written information furnished to the Company by you
specifically for use in the preparation thereof, and will reimburse any legal or
other expenses reasonably incurred by the Company or any such director, officer,
Selling Stockholder or controlling person in connection with investigating or
defending any such loss, claim, damage, liability or action. In addition to
your other obligations under this Section 11(b), you agree that, as an interim
measure during the pendency of any claim, action, investigation, inquiry or
other proceeding arising out of or based upon any statement or omission, or any
alleged statement or omission described in this Section 11(b), you will
reimburse the Company and the Selling Stockholders and such controlling person
on a
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<PAGE>
monthly basis for all reasonable legal and other expenses incurred in connection
with investigating or defending any such claim, action, investigation, inquiry
or other proceeding, notwithstanding the absence of a judicial determination as
to the propriety and enforceability of your obligation to reimburse the Company
and the Selling Stockholders and such controlling person for such expenses and
the possibility that such payments might later be held to have been improper by
a court of competent jurisdiction. This indemnity agreement will be in addition
to any liability which you may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 11
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party under this
Section, notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party under this Section 11
except to the extent that the indemnifying party was materially prejudiced by
such failure to notify. In case any such action is brought against any
indemnified party and it notifies an indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate in, and, to the
extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party; PROVIDED, HOWEVER, if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, or the
indemnified and indemnifying parties may have conflicting interests which would
make it inappropriate for the same counsel to represent both of them, the
indemnified party or parties shall have the right to select separate counsel to
assume such legal defense and otherwise to participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt of notice
from the indemnifying party to such indemnified party of its election so to
assume the defense of such action and approval by the indemnified party of such
counsel, the indemnifying party will not be liable to such indemnified party
under this Section 11 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof (other than
reasonable costs of investigation) unless (i) the indemnified party shall have
employed such counsel in connection with the assumption of legal defense in
accordance with the proviso to the next preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel, approved by you if you are an indemnified party,
representing all indemnified parties not having different or additional defenses
or potential conflicting interest among themselves who are parties to such
action), (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party. After the indemnifying party
has notified the indemnified party that it is assuming such defense, the
indemnified party shall have the right to employ separate counsel in any such
action, suit or proceeding and to participate in the defense thereof, but except
as provided above, the fees and expenses of such counsel shall be at the expense
of such indemnified party. No indemnifying party shall, without the prior
written consent of
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<PAGE>
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on any claims that are the subject matter of such
proceeding.
(d) If the indemnification provided for in this Section 11 is unavailable
to an indemnified party under subsection (a) or (b) hereof in respect of any
losses, claims, damages or liabilities referred to therein, then each applicable
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company, the
Selling Stockholders and you from the offering of the Shares or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company, the
Selling Stockholders and you in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The respective relative benefits
received by the Company, the Selling Stockholders and you shall be deemed to be
in the same proportion in the case of the Company and the Selling Stockholders,
as the total price paid to the Company and the Selling Stockholders for the
Shares by you (net of underwriting discount but before deducting expenses), and
in your case, as the underwriting discount received by you, bears, in each case,
to the total of such amounts paid to the Company and the Selling Stockholders
and received by you as underwriting discount, in each case as contemplated by
the Prospectus. The relative fault of the Company and the Selling Stockholders
and you shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or by the Selling Stockholders or by you and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by a party as a result of the
losses, claims, damages and liabilities referred to in the first sentence of
this subsection (d) shall be deemed to include any legal or other fees or
expenses reasonably incurred by such party in connection with investigating or
defending any action or claim which is the subject of this subsection (d).
The Company, the Selling Stockholders and you agree that it would not be
just and equitable if contribution pursuant to this Section 11 were determined
by pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section, you shall not be
required to contribute any amount in excess of the amount by which the total
price at which the Shares underwritten by you and distributed to the public were
offered to the public exceeds the amount of any damages which you have otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission and no Selling Stockholder shall be required to
contribute any amount in excess of the net proceeds received by it in connection
with the offer and sale of the Shares. No person guilty of fraudulent
misrepresentation (within the meaning of
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<PAGE>
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
(e) The provisions of this Section 11 shall survive any termination of
this Agreement.
SECTION 12. EFFECTIVE DATE. This Agreement shall become effective
immediately as to Sections 7, 9, 11 and 13 and as to all other provisions at
10:00 A.M., Chicago Time, on the day following the date upon which the Pricing
Agreement is executed and delivered, unless such a day is a Saturday, Sunday or
holiday (and in that event this Agreement shall become effective at such hour on
the business day next succeeding such Saturday, Sunday or holiday); but this
Agreement shall nevertheless become effective at such earlier time after the
Pricing Agreement is executed and delivered as you may determine on and by
notice to the Company and the Selling Stockholders or by release of any Shares
for sale to the public. For the purposes of this Section, the Shares shall be
deemed to have been so released upon the release for publication of any
newspaper advertisement relating to the Shares or upon the release by you of
telegrams offering the Shares for sale to securities dealers, whichever may
occur first.
SECTION 13. TERMINATION. Without limiting the right to terminate this
Agreement pursuant to any other provision hereof:
(a) This Agreement may be terminated by the Company by notice to
you and the Selling Stockholders or by any Selling Stockholder by
notice to the Company, the other Selling Stockholders and you, or by
you by notice to the Company and the Selling Stockholders at any time
prior to the time this Agreement shall become effective as to all its
provisions, and any such termination shall be without liability on the
part of the Company or the Selling Stockholders to you (except for the
expenses to be paid or reimbursed pursuant to Section 7 hereof and
except to the extent provided in Section 11 hereof) or of you to the
Company or the Selling Stockholders or of any Selling Stockholder to
the Company or any other Selling Stockholder.
(b) This Agreement may also be terminated by you prior to the
First Closing Date, and the option referred to in Section 5, if
exercised, may be cancelled at any time prior to the Second Closing
Date, if (i) trading in securities on the New York Stock Exchange
shall have been suspended or minimum prices shall have been
established on such exchange, or (ii) a banking moratorium shall have
been declared by Illinois, New York, or United States authorities, or
(iii) there shall have been any change in financial markets or in
political, economic or financial conditions which, in your opinion,
either renders it impracticable or inadvisable to proceed with the
offering and sale of the Shares on the terms set forth in the
Prospectus or materially and adversely affects the market for the
Shares, or (iv) there shall have been an outbreak of major armed
hostilities between the United States and any foreign power which in
your opinion makes it impractical or inadvisable to offer or sell the
Shares. Any termination pursuant to this paragraph (b) shall be
without liability on your part to the Company or the Selling
Stockholders or on the part of the Company to you or
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<PAGE>
the Selling Stockholders (except for expenses to be paid or reimbursed
pursuant to Section 7 hereof and except to the extent provided in
Section 11 hereof) or on the part of any Selling Stockholder to the
Company or any other Selling Stockholder.
SECTION 14. REPRESENTATIONS AND INDEMNITIES TO SURVIVE DELIVERY. The
respective indemnities, agreements, representations, warranties and other
statements of the Company, of its officers, of the Selling Stockholders and of
you set forth in or made pursuant to this Agreement will remain in full force
and effect, regardless of any investigation made by or on behalf of you or the
Company or any of its or their partners, principals, members, officers or
directors or any controlling person, or the Selling Stockholders or any of their
controlling persons as the case may be, and will survive delivery of and payment
for the Shares sold hereunder.
SECTION 15. DEFAULT OF SELLING STOCKHOLDERS. If any Selling Stockholder
or Selling Stockholders default in their obligations to sell and deliver Shares
hereunder on the First Closing Date and the aggregate number of Shares that such
defaulting Selling Stockholder or Selling Stockholders agreed but failed to sell
and deliver does not exceed 10% of the total number of Shares that the Selling
Stockholders are obligated to sell and deliver on the First Closing Date, the
other Selling Stockholders may make arrangements satisfactory to you for the
sale and delivery of such Shares by other persons, including any of the Selling
Stockholders, but if no such arrangements are made within 36 hours after such
default, this Agreement will terminate without liability on the part of you, the
Company or any non-defaulting Selling Stockholder. As used in this Agreement,
the term "Selling Stockholder" includes any person substituted for a Selling
Stockholder under this Section. Nothing herein will relieve a defaulting
Selling Stockholder from liability for its default.
SECTION 16. NOTICES. All communications hereunder will be in writing
and, if sent to you will be mailed, delivered or telegraphed and confirmed to
you c/o William Blair & Company, L.L.C., 222 West Adams Street, Chicago,
Illinois 60606, with a copy to Jonathan A. Koff, Chapman and Cutler, 111 West
Monroe Street, Chicago, Illinois 60603; if sent to the Company will be mailed,
delivered or telegraphed and confirmed to the Company at its corporate
headquarters with a copy to Thomas P. Garretson, Triplett, Woolf & Garretson
LLP, Suite 800 Centre City Plaza, 151 North Main, Wichita, Kansas 67202; and if
sent to the Selling Stockholders will be mailed, delivered or telegraphed and
confirmed to the Agents and the Custodian at such address as they have
previously furnished to the Company and you, with a copy to Marc A. Salle,
Stinson Mag & Fizell, 1201 Walnut, Suite 2800, P.O. Box 419251, Kansas City,
Missouri 64141-6251, and Merrill B. Stone, Kelley Drye & Warren, 101 Park
Avenue, New York, New York 10178. Copies of any notice sent pursuant to this
Agreement shall be sent to all parties and their respective counsel.
SECTION 17. SUCCESSORS. This Agreement and the Pricing Agreement will
inure to the benefit of and be binding upon the parties hereto and their
respective successors, personal representatives and assigns, and to the benefit
of the officers and directors and controlling persons referred to in Section 11,
and no other person will have any right or
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<PAGE>
obligation hereunder. The term "SUCCESSORS" shall not include any purchaser of
the Shares as such from you merely by reason of such purchase.
SECTION 18. PARTIAL UNENFORCEABILITY. If any section, paragraph or
provision of this Agreement is for any reason determined to be invalid or
unenforceable, such determination shall not affect the validity or
enforceability of any other section, paragraph or provision hereof.
SECTION 19. APPLICABLE LAW. This Agreement and the Pricing Agreement
shall be governed by and construed in accordance with the laws of the State of
Illinois.
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to us the enclosed duplicates hereof, whereupon it will
become a binding agreement among the Company, the Selling Stockholders and you,
all in accordance with its terms.
Very truly yours,
BRITE VOICE SYSTEMS, INC.
By
--------------------------------------
Chief Executive Officer
[SELLING STOCKHOLDERS]
By
--------------------------------------
Agent and Attorney-in-Fact
The foregoing Agreement is hereby
confirmed and accepted as of
the date first above written.
WILLIAM BLAIR & COMPANY, L.L.C.
By
-----------------------------------
Principal
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<PAGE>
SCHEDULE A
Number of
Shares
to be Sold
----------
SELLING STOCKHOLDERS:
Alan C. Maltz . . . . . . . . . . . . . . . . 869,738
Scott A. Maltz. . . . . . . . . . . . . . . . 315,081
Stephen B. Rockoff. . . . . . . . . . . . . . 147,582
Michael D. Heinrich . . . . . . . . . . . . . 42,000
Laurence W. Potter, III . . . . . . . . . . . 3,000
----------
Total . . . . . . . . . . . . . . . . . . . . 1,377,401
----------
----------
<PAGE>
SCHEDULE B
Comfort Letter of Arthur Andersen LLP
(1) They are independent public accountants with respect to the Company
and its subsidiaries within the meaning of the 1933 Act.
(2) In their opinion the consolidated financial statements of the Company
and its subsidiaries included or incorporated by reference in the Registration
Statement and the consolidated financial statements of the Company from which
the information presented under the caption "Summary Consolidated Financial
Information" has been derived which are stated therein to have been examined by
them comply as to form in all material respects with the applicable accounting
requirements of the 1933 Act and the Exchange Act.
(3) On the basis of specified procedures (but not an examination in
accordance with generally accepted auditing standards), including inquiries of
certain officers of the Company and its subsidiaries responsible for financial
and accounting matters as to transactions and events subsequent to December 31,
1995, a reading of minutes of meetings of the stockholders and directors of the
Company and its subsidiaries since December 31, 1995, a reading of the latest
available interim unaudited consolidated financial statements of the Company and
its subsidiaries (with an indication of the date thereof) and other procedures
as specified in such letter, nothing came to their attention which caused them
to believe that at a specified date not more than five days prior to the date
thereof in the case of the first letter and not more than two business days
prior to the date thereof in the case of the second and third letters, there was
any change in the capital stock or long-term debt or short-term debt (other than
normal payments) of the Company and its subsidiaries on a consolidated basis or
any decrease in consolidated net current assets or consolidated stockholders'
equity as compared with amounts shown on the latest balance sheet of the Company
included in the Registration Statement or for the period from the date of such
balance sheet to a date not more than five days prior to the date thereof in the
case of the first letter and not more than two business days prior to the date
thereof in the case of the second and third letters, there were any decreases,
as compared with the corresponding period of the prior year, in consolidated net
sales, consolidated income before income taxes or in the total or per share
amounts of consolidated net income except, in all instances, for changes or
decreases which the Prospectus discloses have occurred or may occur or which are
set forth in such letter.
(4) They have carried out specified procedures, which have been agreed to
by you, with respect to certain information in the Prospectus specified by you,
and on the basis of such procedures, they have found such information to be in
agreement with the general accounting records of the Company and its
subsidiaries.
<PAGE>
EXHIBIT A
BRITE VOICE SYSTEMS, INC.
1,377,401 Shares Common Stock *
PRICING AGREEMENT
February ___, 1996
William Blair & Company, L.L.C.
222 West Adams Street
Chicago, Illinois 60606
Ladies and Gentlemen:
Reference is made to the Underwriting Agreement dated February ___ , 1996
(the "UNDERWRITING AGREEMENT") relating to the sale by the Selling Stockholders
and the purchase by you of the above Shares and the possible sale by the Company
and the purchase by you, at your option, of up to 206,610 additional shares to
cover overallotments. All terms herein shall have the definitions contained in
the Underwriting Agreement except as otherwise defined herein.
Pursuant to Section 5 of the Underwriting Agreement, the Company and each
of the Selling Stockholders agrees with you as follows:
1. The initial public offering price per share for the Shares shall
be $_______________.
2. The purchase price per share for the Shares to be paid by you
shall be $________, being an amount equal to the initial public offering
price set forth above less $________ per share.
- -------------------------
* Plus an option to acquire up to 206,610 additional shares to cover
overallotments.
<PAGE>
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to us the enclosed duplicates hereof, whereupon it will
become a binding agreement among the Selling Stockholders and you, all in
accordance with its terms.
BRITE VOICE SYSTEMS, INC.
By
------------------------------------
Chief Executive Officer
[SELLING STOCKHOLDERS]
By
------------------------------------
Agent and Attorney-in-Fact
The foregoing Agreement is hereby
confirmed and accepted as of
the date first above written.
WILLIAM BLAIR & COMPANY, L.L.C.
By
---------------------------------
Principal
-2-
<PAGE>
EXHIBIT 5.1
LAW OFFICES OF
TRIPLETT, WOOLF & GARRETSON
SUITE 800
CENTRE CITY PLAZA
151 N. MAIN
WICHITA, KANSAS 67202-1409
TELEPHONE TELECOPY
(316) 265-5700 (316) 265-6165
February 23, 1996
Brite Voice Systems
7309 East 21st Street North
Wichita, KS 67206-1083
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 certain stockholders
("Selling Stockholders") of an aggregate of 1,377,401 shares of common
stock of the Company, no par value, and an additional 206,610 shares of such
stock by the Company to the extent that the Underwriter, William Blair &
Company, L.L.C. (the "Underwriter") exercises its over-allotment option with
respect thereto.
We have examined the Company's Registration Statement on Form S-3
("Registration Statement") filed with the Securities and Exchange Commission
("Commission") pursuant to the Securities Act of 1933. We have also examined
the Articles of Incorporation of the Company, as certified by the Secretary
of State of Kansas, the Bylaws and the minute book of the Company, the form
of the Agreement between the Company, the Underwriter and the Selling
Stockholders ("Underwriting Agreement") and such other documents as we deemed
pertinent as a basis for the opinion hereinafter expressed.
Based on the foregoing, it is our opinion that the shares of common
stock, when sold and issued in accordance with the final Prospectus and the
Underwriting Agreement, will be legally and validly issued and outstanding,
fully paid and nonassessable.
We consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to this firm under the caption
"Legal Matters" in the Prospectus constituting a part of the Registration
Statement.
Very truly yours,
TRIPLETT, WOOLF & GARRETSON, LLP
/s/ Thomas P. Garretson
By Thomas P. Garretson
TPG:scp
<PAGE>
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated February 2,
1996, included in Brite Voice Systems, Inc.'s Annual Report on Form 10-K for
the year ended December 31, 1995, and to all references to our Firm included
in this registration statement.
/s/ Arthur Andersen LLP
---------------------------------------
Arthur Andersen LLP
Kansas City, Missouri,
February 22, 1996
<PAGE>
Consent of Independent Auditors
We consent to the reference to our firm under the caption "Experts" and to
the use of our reports dated April 7, 1995, with respect to the combined
financial statements of Telecom Services Limited (U.S.), Inc., Telecom
Services Limited (West), Inc., TSL Software Services, Inc., and TSL Management
Group, Inc. included in the Registration Statement on Form S-3 and related
Prospectus of Brite Voice Systems, Inc. for the registration of 1,377,401
shares of common stock.
/s/ ERNST & YOUNG LLP
---------------------
ERNST & YOUNG LLP
MetroPark, New Jersey
February 21, 1996
