<PAGE>
As filed with the Securities and Exchange Commission on October 28, 1999.
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 Number)
3399 Peachtree Road, N.E., The Lenox Building, Suite 600,
Atlanta, Georgia 30326, (404) 262-8400
(Address, including zip code, and telephone number of
principal executive offices)
PREMIERE TECHNOLOGIES, INC. 401(k) PLAN
(Full Title of the Plan)
Boland T. Jones
Chairman of the Board of Directors
and Chief Executive Officer
Premiere Technologies, Inc.
3399 Peachtree Road, N.E.
The Lenox Building, Suite 600
Atlanta, Georgia 30326
(404) 262-8400
(Name, address, and telephone number, including area code, of agent for service)
Copies to: Copies to:
Robert S. Vaters Joel J. Hughey, Esq.
Executive Vice President of Finance Alston & Bird LLP
and Administration One Atlantic Center,
Chief Financial Officer 1201 West Peachtree Street
Premiere Technologies, Inc. Atlanta, Georgia 30309-34244
3399 Peachtree Road, N.E., (404) 881-7000
The Lenox Building, Suite 600
Atlanta, Georgia 30326
(404) 262-8400
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==================================================================================================================================
Proposed Proposed
Maximum Maximum
Title of Securities Amount to Offering Price Aggregate Amount of
to be Registered Be Registered Per Share(1) Offering Price(1) Registration Fee
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.1 par value (including rights to 1,500,000 $5.75 $8,625,000 $2,400
purchase shares of Series C Junior Participating
Preferred Stock)(2)
====================================================================================================================================
</TABLE>
1. Estimated solely for purposes of calculating the registration fee in
accordance with Rule 457, paragraphs (h) and (c), based on the average of
the high and low prices of the Common Stock reported on the National
Association of Securities Dealers automated quotation system on October 26,
1999.
2. Consists of shares of the registrant's Common Stock that may be issued
pursuant to the Premiere Technologies, Inc. 401(k) Plan (the "Plan").
Pursuant to Rule 416(c) under the Securities Act of 1933, this registration
statement also covers an indeterminate amount of interests to be offered or
sold pursuant to the Plan.
<PAGE>
PART II.
INFORMATION REQUIRED IN 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 Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998, filed with the Securities and Exchange Commission (the
"Commission") on March 31, 1999, as amended by the Company's Form 10-K/A filed
with the Commission on April 1, 1999;
(2) the Company's Current Report on Form 8-K dated February 17, 1999 and
filed with the Commission on March 4, 1999, as amended by the Company's Current
Report on Form 8-K/A filed with the Commission filed on May 3, 1999, as further
amended by the Company's Current Report on Form 8-K/A filed with the Commission
filed on May 5, 1999;
(3) the Company's Quarterly Report on Form 10-Q/A for the quarter ended
September 30, 1998, filed with the Commission on May 14, 1999;
(4) the Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1999, filed with the Commission on May 17, 1999, as amended by the
Company's Form 10-Q/A filed with the Commission on May 27, 1999;
(5) the Company's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1999, filed with the Commission on August 16, 1999;
(6) the description of the Company's Common Stock contained in the
Company'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;
(7) the description of the rights to purchase shares of the Company's
Series C Junior Participating Preferred Stock contained in the Company's
Registration Statement on Form 8-A, filed with the Commission on June 26, 1998,
and any amendment or report filed for the purpose of updating any such
description; and
(8) the information set forth in the Company's Proxy Statement, as revised,
under the heading "Security Ownership of Certain Beneficial Owners and
Management," the sub-headings "Nominees For Directors" and "Incumbent Directors
and Executive Officers," and the heading "Executive Compensation and Other
Information," but excluding the information under the sub-headings "Compensation
Committee Report" and "Performance Graphs," as filed with the Commission on
Schedule 14A on April 30, 1999, as revised on May 14 and May 19, 1999.
All other documents subsequently filed by the registrant or the plan
pursuant to Section 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
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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. Subject to the foregoing, all information appearing in
this registration statement is qualified in its entirety by the information
appearing in the documents incorporated by reference.
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: (i) 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 relates 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, as amended, 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 limit 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 (ii) 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, 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
II-2
<PAGE>
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.
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Item 8. Exhibits
The exhibits included as part of this registration statement are as
follows:
Exhibit Number Description
- -------------- -----------
4.1 Articles of Incorporation of the registrant, as amended
(incorporated herein by reference to Exhibit 3.1 to the
Registrant's Quarterly Report on Form 10-Q for the Quarter
Ended June 30, 1998, filed with the Commission on August 14,
1998).
4.2 Amended and Restated Bylaws of the registrant, as amended
(incorporated herein by reference to Exhibit 3.1 to the
Registrant's Quarterly Report on Form 10-Q/A for the Quarter
Ended March 31, 1999, filed with the Commission on May 27,
1999).
4.3 Shareholder Protection Rights Agreement, dated June 23, 1998,
between the Company and SunTrust Bank, Atlanta, as Rights
Agent (incorporated herein by reference to Exhibit 99.1 to the
Registrant's Current Report on Form 8-K dated June 23, 1998,
filed with the Commission on June 26, 1998).
5.1 Opinion of Alston & Bird LLP, counsel to the registrant, as to
the legality of the securities being registered.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Alston & Bird LLP (included in Exhibit 5.1 above).
24.1 Power of Attorney (contained on the signature pages of this
registration statement at p. II-7).
In lieu of the opinion of counsel or determination letter contemplated by
Item 601(b)(5) of Regulation S-K, the undersigned registrant hereby undertakes
that it will submit or has submitted the Plan and any amendment thereto to the
Internal Revenue Service ("IRS") in a timely manner and has made or will make
all changes required by the IRS in order to qualify the Plan under Section 401
of the Internal Revenue Code of 1986, as amended.
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-4
<PAGE>
(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.
(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 Exchange
Act) 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 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 Act and
will be governed by the final adjudication of such issue.
II-5
<PAGE>
SIGNATURES
The Company. 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 28th day of
October, 1999.
PREMIERE TECHNOLOGIES, INC.
By: /s/ Boland T. Jones
-------------------------------
Boland T. Jones
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Boland T. Jones and Robert S. Vaters, 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 Capacity Date
- --------- -------- ----
<S> <C> <C>
/s/ Boland T. Jones Chairman of the Board and October 28, 1999
- --------------------------------- Chief Executive Officer
Boland T. Jones (Principal Executive Officer) and Director
/s/ Robert S. Vaters Executive Vice President of Finance and October 28, 1999
- --------------------------------- Administration and Chief Financial Officer
Robert S. Vaters (Principal Financial and Accounting Officer)
/s/ George W. Baker, Sr. Director October 28, 1999
- ---------------------------------
George W. Baker, Sr.
</TABLE>
II-6
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
/s/ Raymond H. Pirtle, Jr. Director October 28, 1999
- ---------------------------------
Raymond H. Pirtle, Jr.
/s/ Roy B. Andersen, Jr. Director October 28, 1999
- ---------------------------------
Roy B. Andersen, Jr.
/s/ William P. Payne Vice Chairman and October 28, 1999
- --------------------------------- and Director
William P. Payne
/s/ Jeffrey A. Allred President and Chief Operating Officer October 28, 1999
- --------------------------------- and Director
Jeffrey A. Allred
/s/ Jackie M. Ward Director October 28, 1999
- ---------------------------------
Jackie M. Ward
/s/ Jeffrey T. Arnold Director October 28, 1999
- ---------------------------------
Jeffrey T. Arnold
</TABLE>
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<PAGE>
The Plan. Pursuant to the requirements of the Securities Act of 1933,
the trustees (or other persons who administer the employee benefit plan) have
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 October 28, 1999.
PREMIERE TECHNOLOGIES, INC. 401(K) PLAN
BY: ADMINISTRATIVE COMMITTEE OF THE
PREMIERE TECHNOLOGIES, INC. 401(K) PLAN,
Plan Administrator
By: /s/ James Cichanski
-------------------------------------
Name: James Cichanski
II-8
<PAGE>
EXHIBIT INDEX
TO
REGISTRATION STATEMENT ON FORM S-8
Exhibit Number Description
- -------------- ------------
4.1 Articles of Incorporation of the registrant, as amended
(incorporated herein by reference to Exhibit 3.1 to the
Registrant's Quarterly Report on Form 10-Q for the Quarter
Ended June 30, 1998, filed with the Commission on August 14,
1998).
4.2 Amended and Restated Bylaws of the registrant, as amended
(incorporated herein by reference to Exhibit 3.1 to the
Registrant's Quarterly Report on Form 10-Q/A for the Quarter
Ended March 31, 1999, filed with the Commission on May 27,
1999).
4.3 Shareholder Protection Rights Agreement, dated June 23, 1998,
between the Company and SunTrust Bank, Atlanta, as Rights
Agent (incorporated herein by reference to Exhibit 99.1 to the
Registrant's Current Report on Form 8-K dated June 23, 1998,
filed with the Commission on June 26, 1998).
5.1 Opinion of Alston & Bird LLP, counsel to the registrant, as to
the legality of the securities being registered.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Alston & Bird LLP (included in Exhibit 5.1).
24.1 Power of Attorney (contained on the signature pages of this
registration statement at p. II-7).
<PAGE>
EXHIBIT 5.1
[LETTERHEAD OF ALSTON & BIRD LLP APPEARS HERE]
October 28, 1999
Premiere Technologies, Inc.
3399 Peachtree Road, N.E.
The Lenox Building
Suite 600
Atlanta, Georgia 30326
Re: Form S-8 Registration Statement -
Premiere Technologies, Inc. 401(k) Plan
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 1,500,000 shares of the $.01 par value Common Stock of
the Company (the "Shares") that may be issued pursuant to the Premiere
Technologies, Inc. 401(k) Plan (the "Plan") and an indeterminate amount of
interests in the Plan. 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, as amended, and the Amended and
Restated Bylaws of the Company, as amended, resolutions of the Board of
Directors of the Company authorizing the actions to be taken, and certificates
of officers of the Company.
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; that with respect to the issuance of any of the
Shares, the Company shall have sufficient authorized and unissued shares of
Common Stock available at the time of such issuance; that any required
<PAGE>
Premiere Technologies, Inc.
October 28, 1999
Page 2
consideration to be received for the issuance of any of the Shares is in fact
received by the Company prior to such issuance; 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 any 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 the Georgia
Business Corporation code in effect as of the date of this opinion.
Based upon the foregoing, we are of the opinion that the Shares and the
Plan interests to be issued pursuant to the Plan will be, when issued in
accordance with the Plan, legally issued, fully paid and nonassessable under the
provisions of the Georgia Business Corporation Code.
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 therein.
Sincerely,
ALSTON & BIRD LLP
By: /s/ Joel Hughey
-------------------------------------
<PAGE>
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 March
15, 1999 included in Premiere Technologies, Inc.'s Annual Report on Form 10-K
for the year ended December 31, 1998 as amended by Form 10-K/A dated April 1,
1999.
/s/ Arthur Andersen LLP
Atlanta, Georgia
October 22, 1999
