<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 23, 1997
REGISTRATION NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
--------------------
PREMIERE TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
GEORGIA 59-3074176
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3399 PEACHTREE ROAD, N.E., THE LENOX BUILDING, SUITE 400, ATLANTA, GEORGIA 30326
(404) 262-8400
(Address, including zip code, and telephone number, including
area code of registrant's principal executive offices)
1991 NON-QUALIFIED AND INCENTIVE STOCK OPTION PLAN
OF VOICE-TEL ENTERPRISES, INC.
1991 NON-QUALIFIED AND INCENTIVE STOCK OPTION PLAN
OF VTN, INC.
(ASSUMED BY PREMIERE TECHNOLOGIES, INC.)
PREMIERE TECHNOLOGIES, INC. STOCK OPTION AGREEMENTS
(Full title of the plans)
--------------------
BOLAND T. JONES
CHAIRMAN OF THE BOARD OF DIRECTORS AND PRESIDENT
PREMIERE TECHNOLOGIES, INC.
3399 PEACHTREE ROAD, N.E.
THE LENOX BUILDING, SUITE 400
ATLANTA, GEORGIA 30326
(404) 262-8400
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
COPY TO:
JEFFREY A. ALLRED, ESQ.
ALSTON & BIRD LLP
ONE ATLANTIC CENTER
1201 WEST PEACHTREE STREET
ATLANTA, GEORGIA 30309-3424
(404) 881-7000
--------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED (1) PER SHARE (2) PRICE (2) REGISTRATION FEE
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par value 25,854 $17.385 $ 449,472 $ 137
- -----------------------------------------------------------------------------------------------------------------
Common Stock, $.01 par value 6,241 8.41 52,487 16
- -----------------------------------------------------------------------------------------------------------------
Common Stock, $.01 par value 10,712 32.488 348,012 106
- -----------------------------------------------------------------------------------------------------------------
Common Stock, $.01 par value 2,585 0.54 1,396 1
- -----------------------------------------------------------------------------------------------------------------
Common Stock, $.01 par value 920,000 23.875 21,965,000 6,657
- -----------------------------------------------------------------------------------------------------------------
Common Stock, $.01 par value 15,000 25.875 388,125 118
- -----------------------------------------------------------------------------------------------------------------
Total 980,392 $23,204,492 $7,035
- -----------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Pursuant to Rule 416 of the Securities Act of 1933, as amended (the
"Securities Act"), this Registration Statement also covers any additional
shares that may hereafter become issuable as a result of the adjustment and
anti-dilution provisions of the 1991 Non-Qualified and Incentive Stock
Option Plan of Voice-Tel Enterprises, Inc. ("VTE") and the 1991 Non-
Qualified and Incentive Stock Option Plan of VTN, Inc. (assumed by Premiere
Technologies, Inc.) and certain Stock Option Agreements by and between
Premiere Technologies, Inc. and certain current or former employees of VTE
(collectively, the "Plans").
(2) Determined for purposes of calculating the registration fee in accordance
with Rule 457(h) of the Securities Act and based upon the exercise price at
which such outstanding options to purchase shares of the Common Stock under
the Plans may be exercised.
================================================================================
<PAGE>
INTRODUCTORY STATEMENT
Premiere Technologies, Inc. (the "Company") assumed the obligation to issue
shares of its common stock, $.01 par value per share (the "Common Stock"),
upon the exercise of outstanding stock options granted under the 1991 Non-
Qualified and Incentive Stock Option Plan of Voice-Tel Enterprises, Inc.
("VTE") (the "VTE Plan") and the 1991 Non-Qualified and Incentive Stock Option
Plan of VTN, Inc. ("VTN") (the "VTN Plan") and granted options under certain
Stock Option Agreements by and between the Company and certain current or
former employees of VTE (the "Stock Option Agreements") in connection with the
acquisitions of VTE and VTN. The VTE Plan, VTN Plan and Stock Option
Agreements are referred to herein collectively as the "Plans".
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents constituting Part I of this Registration Statement will be
sent or given to participants in the Plans as specified by Rule 428(b)(1)
under the Securities Act of 1933, as amended (the "Securities Act").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents previously filed by the Company (File No. 0-2778)
with the Securities and Exchange Commission under Section 13(a) or 15(d) of
the Securities Exchange Act of 1934, as amended, (the "Exchange Act") are
hereby incorporated by reference into this Registration Statement:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996 (including those portions of the Company's
Definitive Proxy Statement for the Annual Meeting of Shareholders
held on June 11, 1997 incorporated by reference therein).
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1997, the Company's Current Reports on Form 8-K dated
April 2, 1997, April 30, 1997, May 16, 1997, June 12, 1997 and June
16, 1997 and the Company's Amended Current Reports on Form 8-K/A
dated November 13, 1996 and April 30, 1997.
(c) The description of the Company's Common Stock set forth in the
Company's Registration Statement on Form 8-A dated February 14,
1996, and any amendment or report filed for the purpose of updating
any such description.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior
to the date an acquisition is consummated are hereby incorporated by reference
in this Prospectus and shall be deemed to be a part hereof from the date of
filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The legality of the issuance of the securities being registered hereby has
been passed upon by the law firm of Alston & Bird LLP, counsel for the
Company.
II-1
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Georgia Business Corporation Code permits a corporation to eliminate or
limit the personal liability of a director to the corporation or its
shareholders for monetary damages for breach of duty of care of other duty as
a director, provided that no provision shall eliminate or limit the liability
of a director: (i) for an appropriation, in violation of his duties, of any
business opportunity of the corporation; (ii) for acts or omissions which
involve knowing or intentional misconduct or a knowing violation of law; (iii)
for unlawful corporate distributions; or (iv) for any transaction from which
the director received an improper personal benefit. This provision pertains
only to breaches of duty by directors in their capacity as directors (and not
in any other corporate capacity, such as officers, and limits liability only
for breaches of fiduciary duties under Georgia corporate law (and not for
violation of other laws, such as the federal securities laws). The Company's
Articles of Incorporation, as amended, exonerate the Company's directors from
monetary liability to the extent permitted by this statutory provision.
In addition to such rights as may be provided by law, the Company's Bylaws
provide broad indemnification rights to the Company's directors and such
officers, employees and agents as may be selected by such directors, with
respect to various civil and criminal liabilities and losses which may be
incurred by such director, officer, agent or employee pursuant to any pending
or threatened litigation or other proceedings, except that such
indemnification does not apply in the same situations described above with
respect to the exculpation from liability of the Company's directors. The
Company is also obligated to reimburse such directors and other parties for
expenses, including legal fees, court costs and expert witness fees, incurred
by such person in defending against any such liabilities and losses, as long
as such person in good faith believes that he or she acted in accordance with
the applicable standard of conduct with respect to the underlying accusations
giving rise to such liabilities or losses and agrees to repay to the Company
any advances made under the Bylaws. Any amendment or other modification to
the Bylaws which limits or otherwise adversely affects the rights to
indemnification currently provided therein shall apply only to proceedings
based upon actions and events occurring after such amendment and delivery of
notice thereof to the indemnified parties. Such amendments can only be made
upon the affirmative vote of (i) the holders of at least 75% of the shares
entitled to vote to alter, amend or repeal the provisions of the Bylaws or
(ii) a majority of the Board of Directors present at the meeting at which the
vote is held.
The Company has entered into separate indemnification agreements with each
of its directors and certain of its officers and employees, whereby the
Company agreed, among other things, to provide for indemnification and
advancement of expenses in a manner and subject to terms and conditions
similar to those set forth in the Bylaws. These agreements may not be
abrogated by action of the shareholders.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
3.1 Articles of Incorporation (incorporated by reference to Exhibit 3.1 to
the Registrant's Registration Statement on Form S-1 (No. 33-80547)).
3.2 Articles of Amendment to Articles of Incorporation.
3.3 Amended and Restated Bylaws (incorporated by reference to Exhibit 3.2
to the Registrant's Registration Statement on Form S-1 (No. 33-
80547)).
4.1 See Exhibits 3.1 - 3.3 for provisions of the Articles of
Incorporation, as amended, and Amended and Restated Bylaws defining
the rights of the holders of common stock of the Registrant.
II-2
<PAGE>
4.2 1991 Non-Qualified and Incentive Stock Option Plan of Voice-Tel
Enterprises, Inc. (assumed by the Registrant).
4.2 1991 Non-Qualified and Incentive Stock Option Plan of VTN, Inc.
(assumed by the Registrant).
4.3 Form of Stock Option Agreement by and between the Registrant and
certain current or former employees of Voice-Tel Enterprises, Inc.
5.1 Opinion of Alston & Bird LLP, as counsel to the Registrant, as to the
legality of the shares being registered.
23.1 Consent of Alston & Bird LLP (included as part of Exhibit 5.1).
23.2 Consent of Arthur Andersen LLP.
24.1 Power of Attorney (contained on signature page of this filing).
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this 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
this Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this Registration
Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above do not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with or furnished
to the Commission 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 being offered
therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
II-3
<PAGE>
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
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 Registrant's articles of
incorporation, bylaws, 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 Securities Act of 1933 and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with
the securities being registered, the Registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Act and will be governed by
the final adjudication of such issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
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 Atlanta, State of Georgia, on June 18, 1997.
Premiere Technologies, Inc.
By: /s/ Boland T. Jones
--------------------
Boland T. Jones
Chairman of the Board and
President
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Boland T. Jones and Patrick G. Jones,
and each of them, as true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said attorneys-in-
fact and agents, and each of them, full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about
the premises, as fully and to all intents and purposes as he might or could do
in person, hereby ratifying and confirming all which said attorneys-in-fact
and agents or any of them, or their or his substitute or substitutes, may
lawfully 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 by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------------------------- ------------------------------------ -------------
<S> <C> <C>
/s/ Boland T. Jones Chairman of the Board and President June 18, 1997
- --------------------------- (principal executive officer)
Boland T. Jones
/s/ D. Gregory Smith Executive Vice President and June 18, 1997
- --------------------------- Director
D. Gregory Smith
/s/ Patrick G. Jones Senior Vice President of Finance June 18, 1997
- --------------------------- and Legal and Secretary (principal
Patrick G. Jones financial and accounting officer)
/s/ George W. Baker, Sr. Director June 18, 1997
- ---------------------------
George W. Baker, Sr.
/s/ Eduard J. Mayer Director June 18, 1997
- ---------------------------
Eduard J. Mayer
/s/ Robert A. Jetmudsen Director June 18, 1997
- ---------------------------
Robert A. Jetmundsen
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT PAGE
------ ---------------------- ----
3.1 Articles of Incorporation (incorporated by reference to
Exhibit 3.1 to the Registrant's Registration Statement on Form
S-1 (No. 33-80547)).
3.2 Articles of Amendment to Articles of Incorporation.
3.3 Amended and Restated Bylaws (incorporated by reference to
Exhibit 3.2 to the Registrant's Registration Statement on Form
S-1 (No. 33-80547)).
4.1 See Exhibits 3.1 - 3.3 for provisions of the Articles of
Incorporation, as amended, and Amended and Restated Bylaws
defining the rights of the holders of common stock of the
Registrant.
4.2 1991 Non-Qualified and Incentive Stock Option Plan of Voice-
Tel Enterprises, Inc. (assumed by the Registrant).
4.3 1991 Non-Qualified and Incentive Stock Option Plan of VTN,
Inc. (assumed by the Registrant).
4.4 Form of Stock Option Agreement by and between the Registrant
and certain current or former employees of Voice-Tel
Enterprises, Inc.
5.1 Opinion of Alston & Bird LLP, as counsel to the Registrant, as
to the legality of the shares being registered.
23.1 Consent of Alston & Bird LLP (included as part of Exhibit
5.1).
23.2 Consent of Arthur Andersen LLP.
24.1 Power of Attorney (contained on signature page of this
filing).
<PAGE>
EXHIBIT 3.2
[Secretary of State -- Corporations Division -- Letterhead]
CT CORPORATION SYSTEM
JOYCE BOOTH
1201 PEACHTREE STREET, N.E.
ATLANTA, GA 30361
CERTIFICATE OF AMENDMENT
I, Lewis A. Massey, the Secretary of State and the Corporation Commissioner of
the State of Georgia, do hereby certify under the seal of my office that
PREMIERE TECHNOLOGIES, INC.
A DOMESTIC PROFIT CORPORATION
has filed articles of amendment in the office of the Secretary of State and has
paid the required fees as provided by Title 14 of the Official Code of Georgia
Annotated. Attached hereto is a true and correct copy of said articles of
amendment.
WITNESS my hand and official seal in the City of Atlanta and the State of
Georgia on the date set forth above.
[SEAL]
/s/ Lewis A. Massey
---------------------------
Lewis A. Massey
Secretary of State
<PAGE>
ARTICLES OF AMENDMENT
TO ARTICLES OF INCORPORATION
OF PREMIERE TECHNOLOGIES, INC.
1. The name of the Corporation is Premiere Technologies, Inc.
2. Article III of the Articles of Incorporation of the Corporation are amended
to designate a new series of the preferred stock, par value $.01 per share, of
the Corporation, as follows:
"The second series of preferred stock, par value $.01 per share, shall be
designated as Series B Voting Preferred Stock ("Series B Voting Preferred"),
will consist of one (1) share, and will have the preferences, voting powers,
relative, participating, optional or other special rights and privileges, and
the qualifications, limitations and restrictions as shown on EXHIBIT "B"
attached hereto and incorporated herein by reference."
3. The amendment was adopted on April 28, 1997.
4. The amendment was duly adopted by the board of directors of the
Corporation.
PREMIERE TECHNOLOGIES, INC.
By: /s/ Patrick G. Jones
----------------------
Patrick G. Jones
Senior Vice President-Finance and Legal
<PAGE>
EXHIBIT "B"
Preferences, Limitations and Rights of Series B Voting Preferred:
1. Dividends. The holder of Series B Voting Preferred shall not be entitled
to receive any dividends declared and paid by the Corporation.
2. Voting Rights. Except as otherwise required by law or the Articles of
Incorporation, (i) the holder of record of the share of Series B Voting
Preferred shall have a number of votes equal to the number of votes that the
holders of the outstanding Exchangeable Non-Voting Shares ("Exchangeable
Shares") of Voice-Tel Canada Limited, a wholly-owned subsidiary of the
Corporation (the "Subsidiary") from time to time, which are not owned by the
Corporation, any of its subsidiaries or any person directly or indirectly
controlled by or under common control of the Corporation, would be entitled to
if all such Exchangeable Shares were exchanged by the holders thereof for
shares of the Common Stock of the Corporation pursuant to the terms of the
Exchangeable Shares, in each case for the election of directors and on all
matters submitted to a vote of the shareholders of the Corporation, and (ii)
in respect of all matters concerning the voting of shares, the Series B Voting
Preferred and the Common Stock of the Corporation shall vote as a single
class.
3. Liquidation Preference. Upon any liquidation, dissolution or winding-up of
the Corporation, whether voluntary or involuntary, and subject to any prior
rights of holders of shares of preferred stock ranking senior to the Series B
Voting Preferred, the holder of the share of Series B Voting Preferred shall
be paid an amount equal to $1.00, together with payment to any class of stock
ranking equally with the Series B Voting Preferred, and before payment shall
be made to holders of any stock ranking on liquidation junior to the Series B
Voting Preferred (such amount payable with respect to the Series B Voting
Preferred being referred to as the Series B Voting Preferred Liquidation
Preference Payment").
4. Cancellation. At such time as the Series B Voting Preferred has no votes
attached to it because there are no Exchangeable Shares of the Subsidiary
outstanding which are not owned by the Corporation, any of its subsidiaries or
any person directly or indirectly controlled by or under common control of the
Corporation, and there are no shares of stock, debt, options or other
agreements of the Subsidiary which could give rise to the issuance of any
Exchangeable Shares of the Subsidiary to any person (other than the
Corporation, any of its subsidiaries or any person directly or indirectly
controlled by or under common control of the Corporation), the Series B Voting
Preferred shall be canceled without any action required by the holder thereof
or the Corporation.
-2-
<PAGE>
EXHIBIT 4.2
1991
NON-QUALIFIED AND INCENTIVE
STOCK OPTION PLAN
OF
VOICE-TEL ENTERPRISES, INC.
1. Purpose of the Plan. This 1991 Non-Qualified and Incentive Stock
-------------------
Option Plan of Voice-Tel Enterprises, Inc. adopted on this 30th day of November,
1991, is intended to encourage key employees and officers of the Company and its
Subsidiaries who provide services to the Company or its Subsidiaries, to acquire
or increase their ownership of common stock of the Company on reasonable terms.
The opportunity so provided is intended to foster in participants a strong
incentive to put forth maximum effort for the continued success and growth of
the Company and its Subsidiaries, to aid in retaining individuals who put forth
such efforts, and to assist in attracting the best available individuals to the
Company and its Subsidiaries in the future.
2. Definitions. When used herein, the following terms shall have the
-----------
meaning set forth below:
2.1 "Board" means the Board of Directors of the Company.
2.2 "Code" means the Internal Revenue Code of 1986, as in effect at
the time of reference, or any successor revenue code which may hereafter be
adopted in lieu thereof and reference to any specific provisions of the
Code shall refer to the corresponding provisions of the Code as it may
hereafter be amended or replaced.
2.3 "Company" means Voice-Tel Enterprises, Inc.
2.4 "Employees" means key employees and officers of the Company or
any of its Subsidiaries (including officers who are also members of the
Board).
<PAGE>
2.5 "Fair Market Value" means with respect to the Company's Shares
the fair market value of the Shares as of the date on which the value is to
be determined, as determined by the Board in its sole discretion. In
determining the option price of an Incentive Stock Option, the Board will
apply the principles of Section 422A of the Code in determining Fair Market
Value.
2.6 "Incentive Stock Option" means an Option meeting the requirements
and containing the limitations and restrictions set forth in Section 422A
of the Code.
2.7 "Non-Qualified Stock Option" mean an Option other than an
Incentive Stock Option.
2.8 "Option" means the right to purchase, at a price and for a term
fixed by the Board in accordance with the Plan, and subject to such other
limitations and restrictions as the Plan and the Board impose, the number
of Shares specified by the Board.
2.9 "Option Agreement" means a written agreement in such form as may
be, from time to time, hereafter approved by the Board, which shall be duly
executed by the Company and an Employee and which sets forth the terms and
conditions of an Option under the Plan.
2.10 "Parent" means any corporation, other than the Company, in an
unbroken chain of corporations ending with the Company if each of the
corporations other than the Company owns stock possessing fifty percent
(50%) or more of the total combined voting power of all classes of stock in
one of the other corporations in the chain.
2.11 "Plan" means the 1991 Non-Qualified and Incentive Stock Option
Plan of the Company.
-2-
<PAGE>
2.12 "Shares" means shares of the Company's no par value voting common
stock or, if by reason of the adjustment provisions contained herein any
rights under an Option under the Plan pertain to any other security, such
other security.
2.13 "Subsidiary" means any corporation other than the Company in an
unbroken chain of corporations beginning with the Company if each of the
corporations other than the last corporation in the unbroken chain owns
stock possessing fifty percent (50%) or more of the total combined voting
power of all classes of stock in one of the other corporations in such
chain.
2.14 "Successor" means the legal representative of the estate of a
deceased Employee or the person or persons who shall acquire the right to
exercise an Option by bequest or inheritance or by reason of the death of
an Employee.
2.15 "Term" means the period during which a particular Option may be
exercised.
3. Stock Subject to the Plan. There will be reserved for use, upon the
-------------------------
exercise of Options to be granted from time to time under the Plan, an aggregate
of thirty-six (36) Shares, which Shares may be, in whole or in part, as the
Board shall from time to time determine, authorized but unissued Shares, or
issued Shares which shall have been reacquired by the Company. Any Shares
subject to issuance upon exercise of Options but which are not issued because of
a surrender, lapse, expiration or termination of any such Option prior to
issuance of the Shares shall once again be available for issuance in
satisfaction of Options.
4. Administration of the Plan. The Board shall administer the Plan.
--------------------------
Subject to the provisions of the Plan, the Board shall have full authority, in
its discretion, to determine the Employees to whom Options shall be granted, the
number of Shares to be
-3-
<PAGE>
covered by each of the Options, and the terms of any such Option; to amend or
cancel Options (subject to Section 17 of the Plan); to accelerate the vesting of
Options; to require the cancellation or surrender of any options previously
granted under this Plan or any other plans of the Company as a condition to the
granting of an Option; to interpret the Plan; to prescribe, amend, and rescind
rules and regulations relating to the Plan; and generally to interpret and
determine any and all matters whatsoever relating to the administration of the
Plan and the granting of Options hereunder. Any action of the Board with respect
to the Plan may be taken by a written instrument signed by all of the members,
and any action so taken shall be fully as effective as if it had been taken by a
vote of a majority of the members at a meeting duly called and held. No member
of the Board shall be liable, in the absence of bad faith, for any act or
omission with respect to his actions in administering the Plan.
5. Employees to Whom Options May Be Granted. Options may be granted
----------------------------------------
while the Plan is in effect to such of the Employees as the Board, in its
discretion, shall determine. In determining the Employees to whom Options shall
be granted and the number of Shares to be subject to purchase under such
Options, the Board shall take into account the services performed by the
respective Employees, their present and potential contributions to the success
of the Company and its Subsidiaries, and such other factors as the Board shall
deem relevant in connection with accomplishing the purposes of the Plan.
6. Stock Options.
-------------
6.1 Types of Options. Options granted under this Plan may be (i)
----------------
Incentive Stock Options, (ii) Non-Qualified Stock Options, or (iii) a
combination of the foregoing. The Board shall designate in the Option
Agreement whether an Option is an Incentive Stock Option or a Non-Qualified
Stock Option and separate Option Agreements shall be issued for each type
of Option when an Incentive Stock Option and a Non-Qualified Stock Option
are granted on the same
-4-
<PAGE>
date to the same Employee. Any Option which is designated as a Non-
Qualified Stock Option shall not be treated by the Company or any Employee
to whom the Option is granted as an Incentive Stock Option for federal
income tax purposes.
6.2 Option Price. The option price per share of any Option granted
------------
under the Plan shall not be less than the Fair Market Value of the Shares
covered by the Option on the date the Option is granted. Notwithstanding
anything herein to the contrary, in the event an Incentive Stock Option is
granted to an Employee who, at the time such Incentive Stock Option is
granted, owns, as defined in Section 425 of the Code, stock possessing more
than ten percent (10%) of the total combined voting power of all classes of
stock of:
(i) the Company; or
(ii) if applicable, a Subsidiary; or
(iii) if applicable, a Parent,
then the option price per share of any Incentive Stock Option granted to
such Employee shall not be less than one hundred ten percent (110%) of the
Fair Market Value of the Shares covered by the Option on the date the
Option is granted.
6.3 Term of Options. Options granted hereunder shall be exercisable
---------------
for a Term of not more than ten (10) years from the date of grant thereof,
but shall be subject to earlier termination as provided in Section 13.
Each Option Agreement issued hereunder shall specify the Term of the
Option, which Term shall be determined by the Board in accordance with its
discretionary authority hereunder. Notwithstanding anything herein to the
contrary, in the event an Incentive Stock Option is granted to an Employee
who, at the time such Incentive Stock Option is granted, owns, as defined
in Section 425 of the Code, stock
-5-
<PAGE>
possessing more than ten percent (10%) of the total combined voting power
of all classes of stock of:
(i) the Company; or
(ii) if applicable, a Subsidiary; or
(iii) if applicable, a Parent,
then the Term of the option shall not exceed five (5) years from the date
of grant thereof.
7. Limit on Fair Market Value of Incentive Stock Options. No Employee
-----------------------------------------------------
may be granted an Incentive Stock Option hereunder to the extent that the
aggregate Fair Market Value (such Fair Market Value being determined as of the
date of grant of the Option) of the stock with respect to which incentive stock
options are first exercisable under the terms of the Plan by any Employee during
any calendar year (under all such plans of the Company and its parent and
Subsidiary corporations) exceeds the sum of One hundred Thousand Dollars
($100,000). For purposes of the preceding sentence, options shall be taken into
account in the order in which they were granted. Any Option granted under the
Plan which is intended to be an Incentive Stock Option, but which exceeds the
limitation set forth in this Section 7, shall be a Non-Qualified Stock Option.
8. Option Provisions. Each Option Agreement setting forth the terms of
-----------------
an Option shall contain such other terms and conditions not inconsistent
herewith as shall be approved by the Board.
9. Date of Grant. The date of grant of an Option granted hereunder shall
-------------
be the date on which the Board acts in granting the Option.
10. Exercise of Rights Under Options. An Employee entitled to exercise an
--------------------------------
Option may do so by delivery of a written notice to that effect specifying the
number of Shares with respect to which the Option is being exercised and any
other information the Board may prescribe. The notice shall be accompanied by
payment in full of the purchase
-6-
<PAGE>
price of any Shares to be purchased, which payment may be made in cash or, with
the Board's approval, in Shares held by the Employee for more than six (6)
months, valued at Fair Market Value at the time of exercise or a combination
thereof. No Shares shall be issued upon exercise of an Option until full payment
has been made therefor. All notices or requests provided for herein shall be
delivered to the Secretary of the Company.
11. Rights of Option Holder. The holder of an Option shall not have any
-----------------------
of the rights of a stockholder with respect to the Shares subject to purchase
under his Option, except to the extent that one or more certificates for such
Shares shall be delivered to him upon the due exercise of the Option.
12. Nontransferability of Options. An Option shall not be transferable,
-----------------------------
other than by will or the laws of descent and distribution, and an Option may be
exercised during the lifetime of an Employee only by him, his Successor or, in
the event of disability, by this personal representative.
13. Adjustments Upon Changes in Capitalization. In the event of changes
------------------------------------------
in all of the outstanding Shares by reason of stock dividends, stock splits,
recapitalizations, mergers, consolidation, combinations, or exchanges of shares,
separations, reorganizations or liquidations, or similar transactions or, in the
event of extraordinary cash or non-cash dividends being declared with respect to
outstanding Shares, or similar transactions, the number and class of Shares
available under the Plan in the aggregate, the number and class of Shares
subject to Options theretofore granted, applicable purchase prices and all other
applicable provisions, shall, subject to the provisions of the Plan, be
equitably adjusted by the Board, in its sole discretion (which adjustment may,
but need not, include payment in cash or in Shares in an amount equal to the
difference between the then current fair market value of the Shares subject to
such Option, as equitably determined by the Board, and the price at which such
Option may be exercised). The foregoing adjustment and the
-7-
<PAGE>
manner of application of the foregoing provisions shall be determined by the
Board in its sole discretion. Any such adjustment may provide for the
elimination of any fractional Share which might otherwise become subject to an
Option.
14. Form of Options. Nothing contained in the Plan nor any resolution
---------------
adopted by the Board or the stockholders of the Company shall constitute the
granting of any Option. An Option shall be granted hereunder only by action
taken by the Board in specifically granting an Option. Whenever the Board shall
designate an Employee for the receipt of an Option, the Secretary or the
President of the Company, or such other person as the Board shall appoint, shall
forthwith send notice thereof to the Employee, in such form as the Board shall
approve, stating the number of Shares subject to the Option, its Term, and the
other terms and conditions thereof. The notice shall be accompanied by a
written Option Agreement in such form as may from time to time hereafter be
approved by the Board, which shall have been duly executed by or on behalf of
the Company. If the surrender of previously issued Options is made a condition
of the grant, the notice shall set forth the pertinent details of such
condition. Execution by the Employee to whom such Option is granted of said
Option Agreement in accordance with the provisions set forth in this Plan shall
be a condition precedent to the exercise of any Option.
15. Taxes. The Company shall have the right to require a person entitled
-----
to receive Shares pursuant to the exercise of an Option under the Plan to pay
the Company the amount of any taxes which the Company is or will be required to
withhold with respect to such Shares before the certificate for such Shares is
delivered pursuant to the Option. Furthermore, the Company may elect to deduct
such taxes from any other amounts payable then or any time thereafter in cash or
Shares or otherwise to an Employee. If an Employee disposes of Shares acquired
pursuant to an Incentive Stock Option in any transaction considered to be a
disqualifying transaction under Sections 421 and 422A of
-8-
<PAGE>
the Code, the Employee shall so notify the Company as soon as possible after
such disqualifying transaction, and the Company shall have the right to deduct
any taxes required by law to be withheld from any amounts otherwise payable then
or at any time thereafter in cash or Shares or otherwise to such Employee.
16. Termination of Plan. The Plan shall terminate ten (10) years from the
-------------------
date hereof, and an Option shall not be granted under the Plan after that date
although the terms of any Options may be amended at any date prior to the end of
its Term in accordance with the Plan. Any Options outstanding at the time of
termination of the Plan shall continue in full force and effect according to the
terms and conditions of the Option and this Plan.
17. Amendment of the Plan. The Plan may be amended at any time and from
---------------------
time to time by the Board, but no amendment without the approval of stockholders
of the Company shall be made if stockholder approval under Section 422A of the
Code would be required. Notwithstanding the discretionary authority granted to
the Board in Section 4 of the Plan, no amendment or cancellation of the Plan or
any Option granted under the Plan shall impair any of the rights of any person,
without his consent, under any Option theretofore granted under the Plan.
18. Delivery of Shares on Exercise. The Company will use its best efforts
------------------------------
to register the Shares under applicable state or federal securities laws if
issuance of the Shares on exercise of an Option would, in the judgment of the
Company's counsel, constitute a violation of any state or federal law absent
such registration. Delivery of certificates for Shares pursuant to an Option
exercise may be postponed by the Company for such period as may be required for
it with reasonable diligence to comply with any applicable requirements of any
federal state or local law or regulation or any administrative or quasi-
administrative requirement applicable to the sale, issuance, distribution or
delivery of such Shares. The Board may, in its sole discretion, require an
-9-
<PAGE>
Employee to furnish the Company with appropriate representations and a written
investment letter prior to the exercise of an Option or the delivery of any
Shares pursuant to an Option.
19. Fees and Costs. The Company shall pay all original issue taxes on the
--------------
exercise of any Option granted under the Plan and all other fees and expenses
necessarily incurred by the Company in connection therewith.
20. Effectiveness of the Plan. The Plan shall become effective when
-------------------------
approved by the Board. The Plan shall thereafter be submitted to the Company's
stockholders for approval and unless the Plan is approved by the affirmative
votes of the holders of shares having a majority of the voting power of all
shares represented at a meeting duly held in accordance with Delaware law within
twelve (12) months after being approved by the Board, the Plan and all Options
made under it shall be void and of no force and effect.
21. Other Provisions. As used in the Plan, and in Options and other
----------------
documents prepared in implementation of the Plan, references to the masculine
pronoun shall be deemed to refer to the feminine or neuter, and references in
the singular or the plural shall refer to the plural or the singular, as the
identity of the person or persons or entity or entities being referred to may
require. The captions used in the Plan and in such Options and other documents
prepared in implementation of the Plan are for convenience only and shall not
affect the meaning of any provision hereof or thereof.
-10-
<PAGE>
EXHIBIT 4.3
1991
NON-QUALIFIED AND INCENTIVE
STOCK OPTION PLAN
OF
VTN, INC.
1. Purpose of the Plan. This 1991 Non-Qualified and Incentive Stock
-------------------
Option Plan of VTN, Inc. adopted on this 30th day of November, 1991, is intended
to encourage key employees and officers of the Company and its Subsidiaries who
provide services to the Company or its Subsidiaries, to acquire or increase
their ownership of common stock of the Company on reasonable terms. The
opportunity so provided is intended to foster in participants a strong incentive
to put forth maximum effort for the continued success and growth of the Company
and its Subsidiaries, to aid in retaining individuals who put forth such
efforts, and to assist in attracting the best available individuals to the
Company and its Subsidiaries in the future.
2. Definitions. When used herein, the following terms shall have the
-----------
meaning set forth below:
2.1 "Board" means the Board of Directors of the Company.
2.2 "Code" means the Internal Revenue Code of 1986, as in effect at
the time of reference, or any successor revenue code which may hereafter be
adopted in lieu thereof, and reference to any specific provisions of the
Code shall refer to the corresponding provisions of the Code as it may
hereafter be amended or replaced.
2.3 "Company" means VTN, Inc.
2.4 "Employees" mean key employees and officers of the Company or any
of its Subsidiaries (including officers who are also members of the Board).
<PAGE>
2.5 "Fair Market Value" means with respect to the Company's Shares
the fair market value of the Shares as of the date on which the value is to
be determined, as determined by the Board in its sole discretion. In
determining the option price of an Incentive Stock Option, the Board will
apply the principles of Section 422A of the Code in determining Fair Market
Value.
2.6 "Incentive Stock Option" mean an Option meeting the requirements
and containing the limitations and restrictions set forth in Section 422A
of the Code.
2.7 "Non-Qualified Stock Option" mean an Option other than an
Incentive Stock Option.
2.8 "Option" means the right to purchase, at a price and for a term
fixed by the Board in accordance with the Plan, and subject to such other
limitations and restrictions as the Plan and the Board impose, the number
of Shares specified by the Board.
2.9 "Option Agreement" means a written agreement in such form as may
be, from time to time, hereafter approved by the Board, which shall be duly
executed by the Company and an Employee and which sets forth the terms and
conditions of an Option under the Plan.
2.10 "Parent" means any corporation, other than the Company, in an
unbroken chain of corporations ending with the Company if each of the
corporations other than the Company owns stock possessing fifty percent
(50%) or more of the total combined voting power of all classes of stock in
one of the other corporations in the chain.
2.11 "Plan" means the 1991 Non-Qualified and Incentive Stock Option
Plan of the Company.
-2-
<PAGE>
2.12 "Shares" mean shares of the Company's no par value voting common
stock or, if by reason of the adjustment provisions contained herein any
rights under an Option under the Plan pertain to any other security, such
other security.
2.13 "Subsidiary" means any corporation other than the Company in an
unbroken chain of corporations beginning with the Company if each of the
corporations other than the last corporation in the unbroken chain owns
stock possessing fifty percent (50%) or more of the total combined voting
power of all classes of stock in one of the other corporations in such
chain.
2.14 "Successor" means the legal representative of the estate of a
deceased Employee or the person or persons who shall acquire the right to
exercise an Option by bequest or inheritance or by reason of the death of
an Employee.
2.15 "Term" means the period during which a particular Option may be
exercised.
3. Stock Subject to the Plan. There will be reserved for use, upon the
-------------------------
exercise of Options to be granted from time to time under the Plan, an aggregate
of thirty-six (36) Shares, which Shares may be, in whole or in part, as the
Board shall from time to time determine, authorized but unissued Shares, or
issued Shares which shall have been reacquired by the Company. Any shares
subject to issuance upon exercise of Options but which are not issued because of
a surrender, lapse, expiration or termination of any such Option prior to
issuance of the Shares shall once again be available for issuance in
satisfaction of Options.
4. Administration of the Plan. The Board shall administer the Plan.
--------------------------
Subject to the provisions of the Plan, the Board shall have full authority, in
its discretion, to determine the Employees to whom Options shall be granted, the
number of Shares to be
-3-
<PAGE>
covered by each of the Options, and the terms of any such Option; to amend or
cancel Options (subject to Section 17 of the Plan); to accelerate the vesting of
Options; to require the cancellation or surrender of any options previously
granted under this Plan or any other plans of the Company as a condition to the
granting of an Option; to interpret the Plan; to prescribe, amend, and rescind
rules and regulations relating to the Plan; and generally to interpret and
determine any and all matters whatsoever relating to the administration of the
Plan and the granting of Options hereunder. Any action of the Board with respect
to the Plan may be taken by a written instrument signed by all of the members,
and any action so taken shall be fully as effective as if it had been taken by a
vote of a majority of the members at a meeting duly called and held. No member
of the Board shall be liable, in the absence of bad faith, for any act or
omission with respect to his actions in administering the Plan.
5. Employees to Whom Options May Be Granted. Options may be granted
----------------------------------------
while the Plan is in effect to such of the Employees as the Board, in its
discretion, shall determine. In determining the Employees to whom Options shall
be granted and the number of Shares to be subject to purchase under such
Options, the Board shall take into account the services performed by the
respective Employees, their present and potential contributions to the success
of the Company and its Subsidiaries, and such other factors as the Board shall
deem relevant in connection with accomplishing the purposes of the Plan.
6. Stock Options.
-------------
6.1 Types of Options. Options granted under this Plan may be (i)
----------------
Incentive Stock Options, (ii) Non-Qualified Stock Options,. or (iii) a
combination of the foregoing. The Board shall designate in the Option
Agreement whether an Option is an Incentive Stock Option or a Non--
Qualified Stock Option and separate Option Agreements shall be issued for
each type of Option when an Incentive Stock Option and a Non-Qualified
Stock Option are granted on the same
-4-
<PAGE>
date to the same Employee. Any Option which is designated as a Non-
Qualified Stock Option shall not be treated by the Company or any Employee
to whom the Option is granted as an Incentive Stock Option for federal
income tax purposes.
6.2 Option Price. The option price per share of any Option granted
------------
under the Plan shall not be less than the Fair Market Value of the Shares
covered by the Option on the date the Option is granted. Notwithstanding
anything herein to the contrary, in the event an Incentive Stock Option is
granted to an Employee who, at the time such Incentive Stock Option is
granted, owns, as defined in Section 425 of the Code, stock possessing more
than ten percent (10%) of the total combined voting power of all classes of
stock of:
(i) the Company; or
(ii) if applicable, a Subsidiary; or
(iii) if applicable, a Parent,
then the option price per share of any Incentive Stock Option granted to
such Employee shall not be less than one hundred ten percent (110%) of the
Fair Market Value of the Shares covered by the Option on the date the
Option is granted.
6.3 Term-of Options. Options granted hereunder shall be exercisable
---------------
for a Term of not more than ten (10) years from the date of grant thereof,
but shall be subject to earlier termination as provided in Section 13.
Each Option Agreement issued hereunder shall specify the Term of the
Option, which Term shall be determined by the Board in accordance with its
discretionary authority hereunder. Notwithstanding anything herein to the
contrary, in the event an Incentive Stock Option is granted to an Employee
who, at the time such Incentive Stock Option is granted, owns, as defined
in Section 425 of the Code, stock
-5-
<PAGE>
possessing more than ten percent (10%) of the total combined voting power
of all classes of stock of:
(i) the Company; or
(ii) if applicable, a Subsidiary; or
(iii) if applicable, a Parent,
then the Term of the option shall not exceed five (5) years from the date
of grant thereof.
7. Limit on Fair Market Value of Incentive Stock Options. No Employee may
-----------------------------------------------------
be granted an Incentive Stock Option hereunder to the extent that the aggregate
Fair Market Value (such Fair Market Value being determined as of the date of
grant of the Option) of the stock with respect to which incentive stock options
are first exercisable under the terms of the Plan by any Employee during any
calendar year (under all such plans of the Company and its Parent and Subsidiary
corporations) exceeds the sum of One Hundred Thousand Dollars ($100,000). For
purposes of the preceding sentence, options shall be taken into account in the
order in which they were granted. Any Option granted under the Plan which is
intended to be an Incentive Stock Option, but which exceeds the limitations set
forth in this Section 7, shall be a Non-Qualified Stock Option.
8. Option Provisions. Each Option Agreement setting forth the terms of
-----------------
an Option shall contain such other terms and conditions not inconsistent
herewith as shall be approved by the Board.
9. Date of Grant. The date of grant of an Option granted hereunder shall
-------------
be the date on which the Board acts in granting the Option.
10. Exercise of Rights Under Options. An Employee entitled to exercise an
--------------------------------
Option may do so by delivery of a written notice to that effect specifying the
number of Shares with respect to which the Option is being exercised and any
other information the Board may prescribe. The notice shall be accompanied by
payment in full of the purchase
-6-
<PAGE>
price of any Shares to be purchased, which payment may be made in cash or, with
the Board's approval in Shares held by the Employee for more than six (6)
months, valued at Fair Market Value at the time of exercise or a combination
thereof. No Shares shall be issued upon exercise of an Option until full payment
has been made therefor. All notices or requests provided for herein shall be
delivered to the Secretary of the Company.
11. Rights of Option Holder. The holder of an Option shall not have any
-----------------------
of the rights of a stockholder with respect to the Shares subject to purchase
under his Option, except to the extent that one or more certificates for such
Shares shall be delivered to him upon the due exercise of the Option.
12. Nontransferability of Options. An Option shall not be transferable,
-----------------------------
other than by will or the laws of descent and distribution, and an Option may be
exercised during the lifetime of an Employee only by him, his Successor or, in
the event of disability, by his personal representative.
13. Adjustments Upon Changes in Capitalization. In the event of changes
------------------------------------------
in all of the outstanding Shares by reason of stock dividends, stock splits,
recapitalizations, mergers, consolidations, combinations, or exchanges of
shares, separations, reorganizations or liquidations, or similar transactions
or, in the event of extraordinary cash or non-cash dividends being declared with
respect to outstanding Shares, or similar transactions, the number and class of
Shares available under the Plan in the aggregate, the number and class of Shares
subject to Options theretofore granted, applicable purchase prices and all other
applicable provisions, shall, subject to the provisions of the Plan, be
equitably adjusted by the Board, in its sole discretion (which adjustment may,
but need not, include payment in cash or in Shares in an amount equal to the
difference between the then current fair market value of the Shares subject to
such Option, as equitably determined by the Board, and the price at which such
Option may be exercised). The foregoing adjustment and the manner of
application of the foregoing provisions shall be
-7-
<PAGE>
determined by the Board in its sole discretion. Any such adjustment may provide
for the elimination of any fractional Share which might otherwise become subject
to an Option.
14. Form of Options. Nothing contained in the Plan nor any resolution
---------------
adopted by the Board or the stockholders of the Company shall constitute the
granting of any Option. An Option shall be granted hereunder only by action
taken by the Board in specifically granting an Option. Whenever the Board shall
designate an Employee for the receipt of an Option, the Secretary or the
President of the Company, or such other person as the Board shall appoint, shall
forthwith send notice thereof to the Employee, in such form as the Board shall
approve, stating the number of Shares subject to the Option, its Term, and the
other terms and conditions thereof. The notice shall be accompanied by a
written Option Agreement in such form as may from time to time hereafter be
approved by the Board, which shall have been duly executed by or on behalf of
the Company. If the surrender of previously issued Options is made a condition
of the grant, the notice shall set forth the pertinent details of such
condition. Execution by the Employee to whom such Option is granted of said
Option Agreement in accordance with the provisions set forth in this Plan shall
be a condition precedent to the. exercise of any Option.
15. Taxes. The Company shall have the right to require a person entitled
-----
to receive Shares pursuant to the exercise of an Option under the Plan to pay
the Company the amount of any taxes which the Company is or will be required to
withhold with respect to such Shares before the certificate for such Shares is
delivered pursuant to the Option. Furthermore, the Company may elect to deduct
such taxes from any other amounts payable then or any time thereafter in cash or
Shares or otherwise to an Employee. If an Employee disposes of Shares acquired
pursuant to an Incentive Stock Option in any transaction considered to be a
disqualifying transaction under Sections 421 and 422A of the Code, the Employee
shall so notify the Company as soon as possible after such disqualifying
transaction, and the Company shall have the right to deduct any taxes
-8-
<PAGE>
required by law to be withheld from any amounts otherwise payable then or at any
time thereafter in cash or Shares or otherwise to such Employee.
16. Termination of Plan. The Plan shall terminate ten (10) years from the
-------------------
date hereof, and an Option shall not be granted under the Plan after that date
although the terms of any Options may be amended at any date prior to the end of
its Term in accordance with the Plan. Any Options outstanding at the time of
termination of the Plan shall continue in full force and effect according to the
terms and conditions of the Option and this Plan.
17. Amendment of the Plan. The Plan may be amended at any time and from
---------------------
time to time by the Board, but no amendment without the approval of stockholders
of the Company shall be made if stockholder approval under Section 422A of the
Code would be required. Notwithstanding the discretionary authority granted to
the Board in Section 4 of the Plan, no amendment or cancellation of the Plan or
any Option granted under the Plan shall impair any of the rights of any person,
without his consent, under any Option theretofore granted under the Plan.
18. Delivery of Shares on Exercise. The Company will use its best efforts
------------------------------
to register the Shares under applicable state or federal securities laws if
issuance of the Shares on exercise of an Option would, in the judgment of the
Company's counsel, constitute a violation of any state or federal law absent
such registration. Delivery of certificates for Shares pursuant to an Option
exercise may be postponed by the Company for such period as may be required for
it with reasonable diligence to comply with any applicable requirements of any
federal, state or local law or regulation or any administrative or quasi-
administrative requirement applicable to the sale, issuance, distribution or
delivery of such Shares. The Board may, in its sole discretion, require an
Employee to furnish the Company with appropriate representations and a written
-9-
<PAGE>
investment letter prior to the exercise of au Option or the delivery of any
Shares pursuant to an Option.
19. Fees and Costs. The Company shall pay all original issue taxes on the
--------------
exercise of any Option granted under the Plan and all other fees and expenses
necessarily incurred by the Company in connection therewith.
20. Effectiveness of the Plan. The Plan shall become effective when
-------------------------
approved by the Board. The Plan shall thereafter be submitted to the Company's
stockholders for approval and unless the Plan is approved by the affirmative
votes of the holders of shares having a majority of the voting power of all
shares represented at a meeting duly held in accordance with Delaware law within
twelve (12) months after being approved by the Board, the Plan and all Options
made under it shall be void and of no force and effect.
21. Other Provisions. As used in the Plan, and in Options and other
----------------
documents prepared in implementation of the Plan, references to the masculine
pronoun shall be deemed to refer to the feminine or neuter, and references in
the singular or the plural shall refer to the plural or the singular, as the
identity of the person or persons or entity or entities being referred to may
require. The captions used in the Plan and in such Options and other documents
prepared in implementation of the Plan are for convenience only and shall not
affect the meaning of any provision hereof or thereof.
-10-
<PAGE>
EXHIBIT 4.4
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (the "Agreement") is made and entered into as of
the ______ day of _____________, 1997 (the "Effective Date"), by and between
PREMIERE TECHNOLOGIES, INC., a Georgia corporation (the "Corporation"), and
________________ (the "Employee").
W I T N E S S E T H:
WHEREAS, the Employee is an employee of Voice-Tel Enterprises, Inc. ("VTE"),
which has been acquired by the Corporation; and
WHEREAS, the Board of Directors of the Corporation (the "Board") has
authorized the granting of stock options to certain employees of VTE to purchase
shares of the Corporation's $.01 par value common stock (the "Common Stock"),
upon the terms and conditions herein contained; and
WHEREAS, the Employee has been granted stock options by the Board as provided
herein;
NOW, THEREFORE, in consideration of the premises and the mutual agreements and
covenants contained herein, and other good and valuable consideration, the
receipt, adequacy and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
1. GRANT OF OPTION. Subject to the terms and conditions of this
Agreement, the Corporation hereby grants to the Employee the right and
option (the "Option") to purchase __________ shares of Common Stock
(the "Option Shares").
2. EXERCISE PRICE. The purchase price (the "Exercise Price") for each
Option Share shall be ___________ Dollars ($________).
3. EXERCISE OF OPTION.
(a) To the extent that the Option has become and remains exercisable
it may be exercised by the Employee delivering to the Corporation a written
notice of exercise signed by the Employee, in substantially the form attached
hereto as EXHIBIT A (a "Notice of Exercise"), together with a check payable to
the Corporation in the amount of the total Exercise Price for the Option Shares
to be purchased pursuant to the Notice of Exercise. In lieu of a check, all or
any portion of the Exercise Price may be paid by tendering to the Corporation
shares of Common Stock owned by the Employee and duly endorsed for transfer, or
by authorization to the Corporation to withhold Option Shares otherwise issuable
upon exercise of the Option, in each case to be credited against the Exercise
Price of the Option Shares to be purchased at the market value of the Common
Stock tendered or the Option Shares withheld on the date of exercise; provided,
however,
<PAGE>
no fractional shares of Common Stock may be so tendered, and the Corporation
shall not be obligated to make any cash payments to the Employee in
consideration of any excess of the aggregate market value of shares of Common
Stock tendered over the aggregate Exercise Price.
(b) The Option shall first become exercisable on such dates and with
respect to such number of Option Shares as are specified below, provided that
the Employee is employed by VTE, the Corporation or any subsidiary of the
Corporation (collectively the "Premiere Group") on each such date:
[INSERT VESTING SCHEDULE]
(c) The Employee may exercise the Option for less than the full number
of Option Shares with respect to which the Option is exercisable (the "Available
Option Shares"), but such exercise shall not be made at any one time for less
than ten percent (10%) of the total number of Option Shares specified in Section
1 hereof, and no fractional shares of Common Stock shall be issued. Subject to
the other restrictions on exercise set forth herein, the unexercised portion of
the exercisable Option may be exercised at a later date by the Employee, and the
10 percent requirement shall not apply to any exercise of the Option if all
remaining Available Option Shares are being purchased.
(d) Within thirty (30) days after the exercise of the Option as herein
provided, the Corporation shall deliver to the Employee a certificate or
certificates for the total Option Shares being purchased, in such names and
denominations as are requested by the Employee.
(e) Neither the Option nor the Option Shares have been registered
under the Securities Act of 1933, as amended (the "Act"), or under the
securities laws of any state. The Corporation shall use its best efforts to
file a registration statement on Form S-8 with the Securities and Exchange
Commission by June 30, 1997. Each certificate representing Option Shares issued
upon the exercise of the Option prior to the date such registration statement
becomes effective shall bear the following legend:
THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY
APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE
TRANSFERRED UNTIL (i) A REGISTRATION STATEMENT UNDER THE ACT OR SUCH
APPLICABLE STATE SECURITIES LAWS SHALL HAVE BECOME EFFECTIVE WITH REGARD
THERETO, OR (ii) THE CORPORATION HAS RECEIVED AN OPINION OF COUNSEL
ACCEPTABLE TO THE CORPORATION THAT REGISTRATION UNDER THE ACT OR SUCH
APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED IN CONNECTION WITH SUCH
PROPOSED SALE, PLEDGE OR TRANSFER.
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The Employee and the Corporation agree to execute such documents and instruments
as counsel for the Corporation reasonably deems necessary to ensure that the
granting of the Option and the issuance of any Option Shares upon the exercise
thereof will be in compliance with applicable federal and state securities laws.
(f) The Employee agrees not to sell, transfer or otherwise dispose of
his interest in, or reduce his risk relative to, any of the Option Shares
purchased hereunder until such time as the requirements of ASRs 130 and 135 have
been met. The Employee understands that ASRs 130 and 135 relate to the
publication of financial results of at least thirty (30) days of post-merger
combined operations of the Corporation and VTE. Premiere agrees that it shall
publish such results within forty-five (45) days after the end of the first
fiscal quarter of Premiere containing the required period of post-merger
combined operations.
(g) The Corporation covenants and agrees that all Option Shares which
may be issued upon exercise of the Option shall, upon issuance and payment
therefor, be legally and validly issued and outstanding, fully paid and
nonassessable, and free from all liens, claims and encumbrances, except
restrictions imposed by applicable securities laws, the Corporation's Articles
of Incorporation and/or this Agreement. The Corporation shall at all times
reserve and keep available for issuance upon the exercise of the Option such
number of authorized but unissued shares of Common Stock as will be sufficient
to permit the exercise in full of the Option.
4. TERM OF OPTION.
(a) The term of the Option shall commence on the respective exercise
dates set forth in Section 3(b) hereof, and shall continue in effect until the
first to occur of the following: (i) the first date (the "Employment Termination
Date") on which the Employee is no longer employed by any member of the Premiere
Group, if that occurs prior to the third (3rd) anniversary of the Effective
Date; (ii) the date on which the Option has been fully exercised with respect to
all of the Option Shares; or (iii) the eighth (8th) anniversary of the Effective
Date.
(b) In the event the Option is terminated pursuant to subsection
(a)(i) of this Section 4, the Option, to the extent it has not become
exercisable pursuant to Section 3(b) hereof, shall be canceled as of the
Employment Termination Date.
(c) In the event of the Employee's death, the Option may be exercised
hereunder by the Employee's personal representative, legatees or heirs at law,
as the case may be, and in the case of the Employee's mental incompetence, by
his legal guardian, or if none has been appointed, by his duly authorized
attorney-in-fact.
5. NONTRANSFERABILITY. This Agreement, the Option and all rights
hereunder are nontransferable and nonassignable by the Employee, other than by
the last will and
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testament of the Employee or the laws of descent and distribution, unless the
Corporation consents thereto in writing. Any transfer or attempted transfer
except pursuant to the preceding sentence shall be null and void and of no
effect whatsoever.
6. ADJUSTMENTS.
(a) If, prior to the termination of the Option as provided in Section
4(a) hereof:
(i) The number of outstanding shares of Common Stock is increased
by a stock split, stock dividend or other similar event, the Exercise Price
shall be proportionately reduced and the number of Option Shares that have
not theretofore been purchased by the Employee shall be proportionately
increased.
(ii) The number of outstanding shares of Common Stock is
decreased by a combination or reclassification of shares, or other similar
event, the Exercise Price shall be proportionately increased and the number
of Option Shares that have not theretofore been purchased by the Employee
shall be proportionately reduced.
If any adjustment under this Section 6(a) would create a fractional share of
Common Stock or a right to acquire a fractional share of Common Stock, such
fractional share shall be disregarded and the number of Option Shares subject to
the Option shall be the next higher number of shares.
(b) If, prior to the termination of the Option as provided in Section
4(a) hereof, there shall be any merger, consolidation, exchange of shares,
recapitalization, reorganization or other similar event, as a result of which
shares of Common Stock shall be changed into the same or a different number of
shares of the same or another class or classes of stock or securities of the
Corporation or another entity, then the Employee shall thereafter have the right
to purchase and receive upon the basis and upon the terms and conditions
specified in this Agreement and in lieu of the Option Shares immediately
theretofore purchasable and receivable upon the exercise of the Option, such
shares of stock and/or securities as may be issued or payable with respect to or
in exchange for the number of Option Shares immediately theretofore purchasable
and receivable upon the exercise of the Option had such merger, consolidation,
exchange of shares, recapitalization or reorganization not taken place, and, in
any such case, appropriate provisions shall be made with respect to the rights
and interests of the Employee to the end that the provisions hereof (including,
without limitation, provisions for adjustment of the Exercise Price and of the
number of shares purchasable upon the exercise of the Option) shall thereafter
be applicable, as nearly as may be practicable in relation to any shares of
stock or securities thereafter deliverable upon the exercise hereof. The
Corporation shall not effect any transaction described in this subsection (b)
unless the resulting successor or acquiring entity (if not the Corporation)
assumes by written instrument the obligation to deliver to the Employee such
shares of stock and/or securities as, in accordance with the
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foregoing provisions, the Employee may be entitled to purchase. The foregoing
notwithstanding, in the event of a merger or consolidation in which the
Corporation is not the surviving entity, if the Corporation concludes that it
will be unable to satisfy the conditions of this subsection (b) without a
material adverse effect on the terms of such proposed transaction, then the
Corporation shall have the option, prior to or contemporaneously with the
closing of such merger or consolidation, to purchase the Option from the
Employee at its then fair value, determined with regard to both the spread
between the Exercise Price and the value of the consideration to be received in
the transaction and the remaining term of the Option. The Corporation and the
Employee shall agree on such fair value or, in the event they are unable to
agree, shall submit the question of fair value to an investment banking firm to
be selected by the Corporation, with the cost of such investment banking firm to
be paid by the Corporation.
7. NO EMPLOYMENT RIGHT. Neither this Agreement nor the Option shall give
rise to any entitlement to the Employee to continue to be employed or be
compensated for any services by any member of the Premiere Group.
8. NO RIGHTS AS A SHAREHOLDER. The Employee shall not have any interest
in or shareholder rights with respect to any shares of Common Stock which are
subject to the Option until such shares have been issued and delivered to the
Employee in accordance with this Agreement.
9. TAXES. As a condition to the issuance of Option Shares hereunder, the
Corporation may withhold, or require the Employee to pay or reimburse the
Corporation for, any taxes which the Corporation determines are required to be
withheld under federal, state or local law in connection with the exercise of
the Option.
10. HEIRS AND SUCCESSORS. This Agreement and all terms and conditions
hereof shall be binding upon the Corporation and its successors and assigns, and
upon the Employee and his heirs, legatees and legal representatives.
11. GOVERNING LAW. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of Georgia.
12. NOTICES. All notices, requests and other communications required or
permitted hereunder shall be in writing and shall be deemed to have been duly
given and received when delivered in person, when delivered by overnight
delivery service, or three (3) business days after being mailed by registered or
certified mail, postage prepaid, return receipt requested, to the following
addresses (or to such other address as one party may from time to time designate
in writing to the other party hereto):
If to the Corporation: Premiere Technologies, Inc.
3399 Peachtree Road, N.E.
The Lenox Building, Suite 400
Atlanta, Georgia 30326
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Attn: President
If to the Employee: ________________________
________________________
________________________
13. SEVERABILITY. The provisions of this Agreement, and of each separate
section and subsection, are severable, and if any one or more provisions may be
determined to be illegal or otherwise enforceable, in whole or in part, the
remaining provisions, and any unenforceable provisions to the extent
enforceable, shall nevertheless be binding and enforceable.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first set forth above.
PREMIERE TECHNOLOGIES, INC.
By: ________________________________
Title: __________________________
EMPLOYEE:
____________________________________
____________________________________
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EXHIBIT 5.1
[Alston & Bird LLP -- Letterhead]
One Atlantic Center
1201 West Peachtree Street
Atlanta, Georgia 30309-3424
404-881-7000
Fax: 404-881-7777
Premiere Technologies, Inc.
3399 Peachtree Road, N.E.
The Lenox Building, Suite 400
Atlanta, Georgia 30326
Re: Registration Statement on Form S-8
----------------------------------
Ladies and Gentlemen:
We have acted as counsel to Premiere Technologies, Inc. (the "Company") in
connection with the filing of the Registration Statement on Form S-8 (the
"Registration Statement") under the Securities Act of 1933, as amended, covering
the offering of up to an aggregate of 980,392 shares of the Company's common
stock, $.01 par value per share, (the "Shares") that may be issued by the
Company upon the exercise of options granted pursuant to the 1991 Non-Qualified
and Incentive Stock Option Plan of Voice-Tel Enterprises, Inc. ("VTE") and the
1991 Non-Qualified and Incentive Stock Option Plan of VTN, Inc. ("VTN") assumed
by the Company in connection with the acquisitions of VTE and VTN and certain
Stock Option Agreements by and between the Company and certain current or former
employees of VTE. This opinion is rendered pursuant to Item 8 of Form S-8 and
Item 601(b)(5) of Regulation S-K. In connection therewith, we have examined such
corporate records, certificates of public officials and other documents and
records as we have considered necessary or proper for the purpose of this
opinion.
This opinion is limited by and is in accordance with, the January 1, 1992
edition of the Interpretive Standards Applicable to Legal Opinions to Third
Parties in Corporate Transactions adopted by the Legal Opinion Committee of the
Corporate and Banking Law Section of the State Bar of Georgia.
Based upon the foregoing, and having regard to legal considerations which
we deem relevant, it is our opinion that the Shares covered by the Registration
Statement will, when issued and delivered, be legally issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and further consent to the use of our name wherever
appearing in the Registration Statement.
Sincerely,
ALSTON & BIRD LLP
By: /s/ Jeffrey A. Allred
-----------------------
Jeffrey A. Allred
[AD971420.188]
601 Pennsylvania Avenue, N.W.
North Building, Suite 250
Washington, D.c. 20004-2601
<PAGE>
EXHIBIT 23.2
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 11, 1997
included in Premiere Technologies, Inc.'s Form 10-K for the year ended December
31, 1996 and our reports included in Premiere Technologies, Inc.'s Current
Report on Form 8-K dated April 30, 1997.
/s/ Arthur Andersen LLP
Atlanta, GA
June 18, 1997
