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As filed with the Securities and Exchange Commission on August 21, 1997.
Registration No. 333-______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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BRITE VOICE SYSTEMS, INC.
(Exact name of issuer as specified in its charter)
Kansas 48-0986248
(State or other (I.R.S. Employer
jurisdiction of incorporation) Identification No.)
250 International Parkway, Suite 300
Heathrow, Florida 32746
(Address of Principal Executive Offices) (Zip Code)
NON-STATUTORY STOCK OPTION AGREEMENT
[FULL TITLE OF PLAN]
Glenn A. Etherington
Chief Financial Officer
250 International Parkway, Suite 300
Heathrow, Florida 32746
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (407) 357-1000
Copy to:
Thomas P. Garretson, Esq.
Triplett, Woolf & Garretson, LLC
151 North Main Street, Suite 800
Wichita, Kansas 67202-1409
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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TITLE OF CLASS OF AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO TO BE OFFERING PRICE AGGREGATE REGISTRATION
BE REGISTERED REGISTERED(1) PER SHARE(2) OFFERING FEE
PRICE(2)
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<S> <C> <C> <C> <C>
Common Stock, 100,000 $5.875 $587,500 $178
no par value
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</TABLE>
(1) This Registration Statement is being filed to register 100,000 shares of
common stock which may be issued pursuant to non-qualified options granted
pursuant to a Non-Statutory Stock Option Agreement between the Registrant
and David F. Hemmings, a former executive officer of the Registrant, plus
such indeterminable number of shares of common stock as may be issuable
because of the anti-dilution provisions set forth in such Agreement.
(2) Calculated in accordance with the provisions of Rule 457(h).
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. PLAN INFORMATION.
The documents containing information related to the non-statutory stock
option agreement (the "Options") which are not filed as a part of this
Registration Statement and documents incorporated by reference in response to
Item 3 of Part II of this Registration Statement, which taken together
constitute a prospectus that meets the requirements of Section 10(a) of the
Securities Act of 1933, as amended, (the "Securities Act") will be sent or given
to the holder of the Options (the "Optionee") by the Registrant as specified by
Rule 428(b)(1) of the Securities Act.
Item 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
As required by this Item, the Registrant will provide to the Optionee a
written statement advising him of the availability without charge upon written
or oral notice of documents incorporated by reference in Item 3 of Part II of
this Registration Statement and of documents required to be delivered pursuant
to Rule 428(b) under the Securities Act. The statement will include the address
listing the title or department and telephone number to which the request is to
be directed.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Commission are incorporated by
reference in this Registration Statement:
A. Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996;
B. Registrant's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1997 and June 30, 1997; and
C. Item 1, "Description of The Common Stock" contained in the Exhibits to
the Registrant's Registration Statement on Form 8-A pursuant to
Section 12(g) of the Securities Exchange Act of 1934, as amended, on
August 9, 1989.
All documents subsequently filed with the Commission by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934 prior to the filing of a post-effective amendment which indicates that
all securities offered herein have been sold, or which de-registers all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing of such documents.
Item 4. DESCRIPTION OF SECURITIES.
Not applicable; the class of securities to be offered is registered under
Section 12 of the Securities Exchange Act of 1934.
Item 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 17-6305 of the Kansas Statutes Annotated, as amended ("K.S.A.")
contains detailed provisions for indemnification of certain persons, including
directors and officers of Kansas corporations, against expenses, judgments,
fines and settlements in connection with litigation.
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Article VIII of the Company's Restated Articles of Incorporation limits a
director's liability to the Company or its stockholders for monetary damages for
breach of fiduciary duty as a director, except (i) for any breach of the
director's duty of loyalty to the Company or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) for dividends, stock repurchases and other distributions
made in violation of Kansas law, or (iv) for any transaction from which the
director derived any improper personal benefit.
Article V of the Company's Bylaws provides for indemnification of certain
persons, including directors and officers of the Company, substantially the same
as that permitted by K.S.A. Section 17-6305. Section 17-6305(g) provides that a
Kansas corporation may obtain insurance to indemnify its directors and officers.
The Company has directors' and officers' insurance which protects each director
or officer from liability for actions taken in their capacity as directors or
officers.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
Item 8. EXHIBITS.
EXHIBIT NO. DESCRIPTION
5.1 Opinion of Triplett, Woolf & Garretson, LLC as to the legality of
the Registrant's Common Stock being registered hereby
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Triplett, Woolf & Garretson, LLC (contained in Exhibit
5.1)
24.1 Power of Attorney (included as part of the Signature Page to this
Registration Statement)
3
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Item 9. UNDERTAKINGS.
(a) The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) to include any prospectus required by section 10(a)(3)
of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the Registration Statement;
(iii) to include any material information with respect to
the plan of distribution not previously disclosed in the
Registration Statement or any material change to such information
in the Registration Statement.
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a post-
effective amendment by those paragraphs is contained in periodic
reports filed by the Registrant pursuant to section 13 or section
15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering hereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing
of the Registrant's
4
<PAGE>
annual report pursuant to section 13(a) or section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in the Registration
Statement shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing provisions,
or otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense
of any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Heathrow, State of Florida, on the 12th day of
August, 1997.
BRITE VOICE SYSTEMS, INC.
By /s/ David S. Gergacz
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David S. Gergacz, President and
Chief Executive Officer (Principal
Executive Officer)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each such person whose signature
appears below constitutes and appoints, jointly and severally, David S. Gergacz
and Glenn A. Etherington, his attorneys-in-fact, each with the power of
substitution, for him and in any and all capacities, to sign any amendments to
this Registration Statement on Form S-8 (including post-effective amendments)
and to file the same, with all Exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, hereby
ratifying and confirming all that each of said attorneys-in-fact, or his
substitute or substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated:
Signature Title Date
/s/ David S. Gergacz President, Chief August 12, 1997
- -------------------------- Executive Officer
David S. Gergacz and Director
/s/ Glenn A. Etherington Chief Financial August 12, 1997
- -------------------------- Officer (Principal
Glenn A. Etherington Financial and Principal
Accounting Officer)
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- -------------------------- Chairman of the August __, 1997
Stanley G. Brannan Board of Directors
/s/ Perry E. Esping Director August 12, 1997
- --------------------------
Perry E. Esping
/s/ C. MacKay Ganson, Jr. Director August 12, 1997
- --------------------------
C. MacKay Ganson, Jr.
/s/ John F. Kelsey, III Director August 12, 1997
- --------------------------
John F. Kelsey, III
/s/ Alan C. Maltz Director August 12, 1997
- --------------------------
Alan C. Maltz
- -------------------------- Director August __, 1997
Scott A. Maltz
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<PAGE>
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
5.1 Opinion of Triplett, Woolf & Garretson, LLC as to the legality of
the Registrant's Common Stock being registered hereby
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Triplett, Woolf & Garretson, LLC (contained in Exhibit
5.1)
24.1 Power of Attorney (included as part of the
Signature Page to this Registration Statement)
<PAGE>
Exhibit 5.1
TRIPLETT, WOOLF & GARRETSON, LLC
151 NORTH MAIN STREET, SUITE 800
WICHITA, KANSAS 67202
(316) 265-5700
August 15, 1997
Brite Voice Systems, Inc.
250 International Parkway, Suite 300
Heathrow, FL 32748
Gentlemen:
We have acted as counsel for Brite Voice Systems, Inc. (the "Company") in
connection with the filing of a Registration Statement on Form S-8 (the
"Registration Statement") under the Securities Act of 1933, as amended, covering
100,000 shares of common stock (the "Shares") of the Company issuable in
connection with the Stock Option Agreement between the Company and a former
employee. We have reviewed the corporate actions of the Company in connection
with this matter and have examined those documents, corporate records, and other
instruments we deem necessary for the purposes of this opinion.
Based on the foregoing, it is our opinion that:
1. The Company is a corporation duly organized and validly existing under
the laws of the state of Kansas; and
2. 100,000 shares of the Company's common stock to be issued upon
exercise of the options granted under the Stock Option Agreement have been duly
authorized and, when issued in accordance with the terms of the Stock Option
Agreement, will be validly issued, fully paid, and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement on Form S-8.
Very truly yours,
TRIPLETT, WOOLF & GARRETSON, LLC
/s/ Thomas P. Garretson
---------------------------------
By Thomas P. Garretson
<PAGE>
Exhibit 23.1
ARTHUR ANDERSEN LLP
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 7, 1997,
incorporated by reference in Brite Voice Systems, Inc. Form 10-K for the year
ended December 31, 1996, and to all references to our firm included in this
registration statement.
/s/ Arthur Andersen LLP
Kansas City, Missouri,
August 18, 1997
