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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 11, 1998
Registration No. 333-______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 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 600, ATLANTA, GEORGIA 30326, (404) 262-8400
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
PREMIERE TECHNOLOGIES, INC. SECOND AMENDED AND RESTATED 1995 STOCK PLAN
XPEDITE SYSTEMS, INC. 1992 INCENTIVE STOCK OPTION PLAN*
XPEDITE SYSTEMS, INC. 1993 INCENTIVE STOCK OPTION PLAN*
XPEDITE SYSTEMS, INC. 1996 INCENTIVE STOCK OPTION PLAN*
XPEDITE SYSTEMS, INC. NON-EMPLOYEE DIRECTORS' WARRANT PLAN*
XPEDITE SYSTEMS, INC. OFFICER'S 1996 CONTINGENT STOCK OPTION PLAN*
*Assumed by the registrant
(Full title of the plans)
---------------
Boland T. Jones Copy to: Copy to:
CHAIRMAN OF THE BOARD OF DIRECTORS AND PRESIDENT HARVEY A. WAGNER JOEL J. HUGHEY, ESQ.
PREMIERE TECHNOLOGIES, INC. EXECUTIVE VICE ALSTON & BIRD LLP
3399 PEACHTREE ROAD, N.E. PRESIDENT FINANCE ONE ATLANTIC CENTER
THE LENOX BUILDING, SUITE 400 AND ADMINISTRATION 1201 WEST PEACHTREE STREET
ATLANTA, GEORGIA 30326 AND CHIEF FINANCIAL ATLANTA, GEORGIA 30309-3424
(404) 262-8400 OFFICER (404) 881-7000
(Name, address, including zip code, and telephone PREMIERE TECHNOLOGIES, INC.
number, including area code, of agent for service) 3399 PEACHTREE ROAD, N.E.
LENOX BUILDING, SUITE 600
ATLANTA, GEORGIA 30326
(404) 262-8400
CALCULATION OF REGISTRATION FEE
==================================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED SHARE PRICE REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------------------------------
Common Stock, $.01 par value 4,000,000(1) $29.28125(2) $117,125,000(2) $34,551.88
- ----------------------------------------------------------------------------------------------------------------------------------
Common Stock, $.01 par value 42,576(3) $ .47(4) $ 20,011(5) $ 5.90
- ----------------------------------------------------------------------------------------------------------------------------------
Common Stock, $.01 par value 202,151(6) $ 12.66(4) $ 2,559,232(5) $ 754.97
- ----------------------------------------------------------------------------------------------------------------------------------
Common Stock, $.01 par value 85,564(7) $ 17.22(4) $ 1,473,412(5) $ 434.66
- ----------------------------------------------------------------------------------------------------------------------------------
Common Stock, $.01 par value 116,500(8) $ 15.02(4) $ 1,749,830(5) $ 516.19
- ----------------------------------------------------------------------------------------------------------------------------------
Common Stock, $.01 par value 15,337(9) $ 9.14(10) $ 140,180(5) $ 41.35
- ----------------------------------------------------------------------------------------------------------------------------------
Common Stock, $.01 par value 65,713(11) $29.28125(12) $ 1,924,159(12) $ 567.63
- ----------------------------------------------------------------------------------------------------------------------------------
Total 4,527,841 $124,991,824 $36,872.59
- ----------------------------------------------------------------------------------------------------------------------------------
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(1) Shares of the registrant's Common Stock that may be issued pursuant to
options that may be granted under the Premiere Technologies, Inc. Second
Amended and Restated 1995 Stock Plan.
(2) Computed pursuant to Rule 457, paragraphs (h) and (c), as the average of
the high and low prices of the registrant's Common Stock on May 8, 1998,
as reported by the National Association of Securities Dealers automated
quotation system.
(3) Consists of 42,576 shares of the registrant's Common Stock that may be
issued pursuant to options granted under the Xpedite Systems, Inc. 1992
Incentive Stock Option Plan which were assumed by the registrant in
connection with a business combination transaction between the registrant
and Xpedite Systems, Inc.
(4) Determined for purposes of calculating the registration fee in accordance
with Rule 457(h) of the Securities Act of 1933 and based upon the exercise
price at which such outstanding options to purchase shares of the Common
Stock under the options may be exercised.
(5) Computed pursuant to Rule 457, paragraph (h), as the aggregate exercise
price of the assumed options and warrants.
(6) Consists of 202,151 shares of the registrant's Common Stock that may be
issued pursuant to options granted under the Xpedite Systems, Inc. 1993
Incentive Stock Option Plan which were assumed by the registrant in
connection with a business combination transaction between the registrant
and Xpedite Systems, Inc.
(7) Consists of 151,367 shares of the registrant's Common Stock that may be
issued pursuant to options granted under the Xpedite Systems, Inc. 1996
Incentive Stock Option Plan which were assumed by the registrant in
connection with a business combination transaction between the registrant
and Xpedite Systems, Inc.
(8) Consists of 116,500 shares of the registrant's Common Stock that may be
issued pursuant to options granted under the Xpedite Systems, Inc. Non-
Employee Directors' Warrant Plan which were assumed by the registrant in
connection with a business combination transaction between the registrant
and Xpedite Systems, Inc.
(9) Consists of 15,337 shares of the registrant's Common Stock that may be
issued pursuant to the exercise of certain warrants granted to (i) J.A.
Blanchard, III under a certain warrant agreement, (ii) Robert A. Epstein
under a certain warrant agreement and (iii) Allen Sarnatora under a certain
warrant agreement which were assumed by the registrant in connection with a
business combination transaction between the registrant and Xpedite
Systems, Inc.
(10) Determined for purposes of calculating the registration fee in accordance
with Rule 457(h) of the Securities Act of 1933 and based upon the exercise
price at which such outstanding warrants to purchase shares of the Common
Stock under the warrants may be exercised.
(11) Consists of 65,713 shares of the registrant's common stock that may be
issued pursuant to options granted under the Xpedite Systems, Inc.
Officer's 1996 Contingent Stock Option Plan.
(12) Computed pursuant to Rule 457 as the average of the high and low price of
the registrant's Common Stock on May 8, 1998.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are incorporated by reference into this
registration statement and are deemed to be a part hereof from the date of the
filing of such documents:
(1) The registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997, as amended by the registrant's Form 10-K/A filed with the
Commission on April 22, 1998;
(2) The registrant's Current Report on Form 8-K/A filed with the
Commission on January 27, 1998;
(3) The registrant's Current Report on Form 8-K dated February 3, 1998
and filed with the Commission on February 20, 1998;
(4) The registrant's Current Report on Form 8-K dated February 27, 1998
and filed with the Commission on March 13, 1998, as amended by the registrant's
Current Report on Form 8-K/A filed with the Commission on April 13, 1998;
(5) The registrant's Current Report on Form 8-K dated April 23, 1998 and
filed with the Securities and Exchange Commission (the "Commission") on April
28, 1998; and
(6) The description of the registrant's Common Stock contained in the
registrant's Registration Statement on Form 8-A, declared effective on March 1,
1996, and any amendment or report filed for the purpose of updating any such
description.
All other documents subsequently filed by the registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference herein and to be a part hereof from the date of
filing of such documents.
Any statement contained in a document incorporated or deemed incorporated
herein by reference shall be deemed to be modified or superseded for the purpose
of this registration statement to the extent that a statement contained herein
or in any subsequently filed document which also is, or is deemed to be,
incorporated herein by reference modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this registration statement.
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ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
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 or other duty as a
director, provided that no provision shall eliminate or limit the liability of a
director: (1) for an appropriation, in violation of his duties, of any business
opportunity of the corporation; (ii) for acts or omissions which involve
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 related only to breaches
of duty by directors in their capacity as directors (and not in any other
corporate capacity 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 registrant's Articles of
Incorporation, as amended, exonerate the Company's directors from monetary
liability to the extent described above.
In addition to such rights as may be provided by law, the registrant's
Bylaws provide broad indemnification rights to the registrant'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 registrant's directors. The registrant 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 registrant 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 or alter,
amend or repeal the provisions of the Bylaws or (iii) a majority of the Board of
Directors present at the meeting at which the votes are taken.
The registrant has entered into separate indemnification agreements with
each of its directors and certain of its officers and employees, whereby the
registrant agreed,
II-2
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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.
In addition, the registrant holds an insurance policy covering directors and
officers under which the insurer agrees to pay, subject to certain exclusions,
for any claim made against the directors and officers of the registrant for a
wrongful act that they may become legally obligated to pay or for which the
registrant is required to indemnify the directors or officers.
The registrant believes that the above protections are necessary in order
to attract and retain qualified persons as directors and officers.
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
Securities 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 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 Securities
Act and will be governed by the final adjudication of such issue.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
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EXHIBIT
NUMBER
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4.1 Articles of Incorporation of the registrant (incorporated by reference
to Exhibit 3.1 to the registrant's registration statement on Form S-1
(No. 33-80547)).
4.2 Articles of Amendment to Articles of Incorporation of the registrant
(incorporated by reference to Exhibit 3.2 to the registrant's
registration statement on Form S-8 (No. 333-29787)).
4.3 Amended and Restated Bylaws of the registrant (incorporated by
reference to Exhibit 3.02 to the registrant's registration statement
on Form S-1 (No. 33-80547)).
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5 Opinion of Alston & Bird LLP, counsel to the registrant, as to legality
of the securities being registered.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Ernst & Young LLP.
23.3 Consent of Alston & Bird LLP (included as part of Exhibit 5).
24.1 Power of Attorney (see page II-6).
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.
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(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in 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 Securities Act of 1933 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 Atlanta, State of Georgia, on this 11th day of May,
1998.
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.
Signature Title Date
--------- ----- ----
/s/ Boland T. Jones Chairman of the Board and May 11, 1998
- ----------------------- President (principal executive
Boland T. Jones officer) and Director
/s/ Harvey A. Wagner Executive Vice President May 11, 1998
- ----------------------- Finance and Administration
Harvey A. Wagner and Chief Financial Officer
(principal financial and
accounting officer)
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/s/ George W. Baker, Sr. Director May 11, 1998
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George W. Baker, Sr.
/s/ Raymond H. Pirtle, Jr. Director May 11, 1998
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Raymond H. Pirtle, Jr.
/s/ Roy B. Andersen, Jr. Director May 11, 1998
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Roy B. Andersen, Jr.
</TABLE>
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EXHIBIT INDEX
EXHIBIT
NUMBER
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4.1 Articles of Incorporation of the registrant (incorporated by reference to
Exhibit 3.1 to the registrant's registration statement on Form S-1 (No.
33-80547)).
4.2 Articles of Amendment to Articles of Incorporation of the registrant
(incorporated by reference to Exhibit 3.2 to the registrant's
registration statement on Form S-8 (No. 333-29787)).
4.3 Amended and Restated Bylaws of the registrant (incorporated by reference
to Exhibit 3.2 to the registrant's registration statement on Form S-1
(No. 33-80547)).
5 Opinion of Alston & Bird LLP, counsel to the registrant, as to legality
of the securities being registered.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Ernst & Young.LLP.
23.3 Consent of Alston & Bird LLP (included as part of Exhibit 5).
24.1 Power of Attorney (see page II-6).
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Exhibit 5
Opinion of Alston & Bird LLP
<PAGE>
Exhibit 5
[Alston & Bird LLP Letterhead appears here]
May 11, 1998
Premiere Technologies, Inc.
3399 Peachtree Road, N.E.
The Lenox Building
Suite 600
Atlanta, Georgia 30326
Ladies and Gentlemen:
This opinion is given in connection with the filing by Premiere
Technologies, Inc., a Georgia corporation (the "Company"), of a registration
statement on Form S-8 (the "Registration Statement") with the Securities and
Exchange Commission under the Securities Act of 1933, as amended, in connection
with the registration of 4,527,841 shares of the $.01 par value Common Stock
of the Company (the "Shares") that may be sold or issued pursuant to the
Premiere Technologies, Inc. Second Amended and Restated 1995 Stock Plan or upon
exercise of options granted under the Xpedite Systems, Inc. 1992 Incentive Stock
Option Plan, Xpedite Systems, Inc. 1993 Incentive Stock Option Plan, Xpedite
Systems, Inc. 1996 Incentive Stock Option Plan, Xpedite Systems, Inc. Officers
1996 Contingent Stock Option Plan, Xpedite Systems, Inc. Non-Employee Directors'
Warrant Plan or upon the exercise of warrants granted to J. A. Blanchard, III,
Robert A. Epstein and Allen Sarnatora under certain warrant agreements. This
opinion is rendered pursuant to Item 8 of Form S-8 and Item 601(b)(5) of
Regulation S-K.
We have examined such corporate records and documents as we deemed relevant
and necessary in order to enable us to give the opinion set forth herein,
including the Articles of Incorporation and Bylaws of the Company, as amended,
and resolutions of the Board of Directors of the Company authorizing the actions
to be taken.
In conducting our examination we assumed the genuineness of all signatures,
the legal capacity of all natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies, that the Shares
will be issued in accordance with the current terms of the applicable plans and
the current terms of the resolutions of the Board of Directors authorizing the
issuance of the Shares, and that the relevant provisions of the Articles of
Incorporation and Bylaws of the Company and the Georgia Business Corporation
Code in effect at the time of issuance of the Shares will not differ in any
relevant respect from the relevant provisions of the Articles of Incorporation
and Bylaws of the Company and of the Georgia Business Corporation Code as in
effect as of the date of this opinion.
Based upon the foregoing, we are of the opinion that the Shares, when sold
or issued pursuant to the Premiere Technologies, Inc. Second Amended and
Restated 1995
<PAGE>
Stock Plan or upon exercise of options granted under the Xpedite Systems, Inc.
1992 Incentive Stock Option Plan, Xpedite Systems, Inc. 1993 Incentive Stock
Option Plan, Xpedite Systems, Inc. 1996 Incentive Stock Option Plan, Xpedite
Systems, Inc. Officer's 1996 Contingent Stock Option Plan, Xpedite Systems, Inc.
Non-Employee Directors' Warrant Plan or upon the exercise of warrants granted to
J. A. Blanchard, III, Robert A. Epstein and Allen Sarnatora under certain
warrant agreements, will be legally issued, fully paid and nonassessable.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement.
ALSTON & BIRD LLP
By: /s/ Joel J. Hughey
_________________
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Exhibit 23.1
Consent of Arthur Andersen LLP
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Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-8 of our report dated
February 3, 1998, except with respect to Note 17 which is dated February 27,
1998 included in Premiere Technologies, Inc.'s Annual Report on Form 10-K and
our report dated March 13, 1998 included in Premiere Technologies, Inc.'s
Current Report on Form 8-K as amended by the Company's Current Report on
Form 8-K/A filed on April 13, 1998.
/s/ Arthur Andersen LLP
Atlanta, Georgia
May 5, 1998
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Exhibit 23.2
Consent of Ernst & Young LLP
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Exhibit 23.2
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement Form
S-8 No. 333- , of Premiere Technologies, Inc. and in the related prospectus
of our report dated April 6, 1998, with respect to the consolidated financial
statements of Xpedite Systems, Inc. for the three years ended December 31, 1997
included in the current report (Form 8-K/A) of Premiere Technologies, Inc. dated
April 23, 1998, filed with the Securities and Exchange Commission on April 28,
1998.
/s/ Ernst & Young LLP
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MetroPark, New Jersey
May 5, 1998
