As filed with the Securities and Exchange Commission on January 28, 2000
Registration No. 333-________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------
VODAVI TECHNOLOGY, INC.
(Exact name of Registrant as specified in its charter)
----------
Delaware 86-0789350
- --------------------------------- ----------------------
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
8300 Raintree Drive
Scottsdale, Arizona 85260
(Address of Principal executive offices)(zip code)
----------
VODAVI TECHNOLOGY, INC.
Stock Option Agreement
(Full Title of the Plan)
----------
Gregory K. Roeper
President and Chief Executive Officer
VODAVI TECHNOLOGY, INC.
8300 Raintree Drive, Scottsdale, Arizona 85260
(480) 443-6000
(Telephone number, including area code, of agent for service)
This Registration Statement shall become effective immediately upon filing with
the Securities and Exchange Commission, and sales of the registered securities
will begin as soon as reasonably practicable after such effective date.
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
============================================================================================
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 registration fee
- --------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 58,750 Shares $4.00 $235,000 $62.04
============================================================================================
</TABLE>
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the Stock Option Agreement by
reason of any stock dividend, stock split, recapitalization or any other
similar transaction without receipt of consideration which results in an
increase in the number of outstanding shares of Common Stock of Vodavi
Technology, Inc.
(2) Calculated solely for purposes of this offering under Rule 457(h) of the
Securities Act of 1933, as amended.
================================================================================
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
Vodavi Technology, Inc. (the "Registrant") hereby incorporates by reference
into this Registration Statement the following documents previously filed with
the Securities and Exchange Commission (the "Commission"):
(a) The Registrant's latest annual report filed pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934, as amended (the "1934 Act"), or
the latest prospectus filed pursuant to the Securities Act of 1933, as amended
(the "Securities Act"), that contains audited financial statements for the
Registrant's latest fiscal year for which such statements have been filed;
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the 1934
Act since the end of the fiscal year covered by the document referred to in (a)
above; and
(c) The description of the Registrant's capital stock contained in the
Registrant's Registration Statement on Form 8-A (No. 0-26912) filed with the
Commission on October 3, 1995 and declared effective October 6, 1995.
All reports and definitive proxy or information statements filed pursuant
to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act after the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all securities offered hereby have been sold or which
deregisters all securities then remaining unsold shall be deemed to be
incorporated by reference into this Registration Statement and 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
Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Amended Certificate of Incorporation of the Registrant requires the
Registrant to indemnify and advance expenses and certain other liabilities
arising out of conduct on behalf of the Registrant, to the fullest extent
permitted by the Delaware General Corporation Law, to each person who is or was
a director, officer or agent of the Registrant, or who serves or served any
other enterprise or organization at the request of the Registrant (an
"Indemnitee"). However, the Registrant's Amended Certificate of Incorporation
prohibits indemnification with respect to proceedings or claims initiated or
brought voluntarily by a director, officer, or other representative of the
Registrant against the Registrant unless such proceeding or claim is approved by
the Registrant's Board of Directors.
Under Delaware law, to the extent that an Indemnitee is successful on the
merits in defense of a suit or proceeding brought against him or her by reason
of the fact that he or she is or was a director, officer or agent of the
Registrant, or serves or served any other enterprise or organization at the
request of the Registrant, the Registrant shall indemnify him or her against
expenses (including attorneys' fees actually and reasonably incurred in
connection with such action).
If unsuccessful in defense of a third-party civil suit or a criminal suit,
or if such a suit is settled, an Indemnitee may be indemnified under Delaware
law against both (i) expenses, including attorney's fees, and (ii) judgments,
fines and amounts paid in settlement if he or she acted in good faith and in a
manner he or she reasonably believed to be in, or not opposed to, the best
interests of the Registrant and, with respect to any criminal action, had no
reasonable cause to believe his or her conduct was unlawful.
II-1
<PAGE>
If unsuccessful in defense of a suit brought by or in the right of the
Registrant, where the suit is settled, an Indemnitee may be indemnified under
Delaware law only against expenses (including attorney's fees) actually and
reasonably incurred in the defense or settlement of the suit if he or she acted
in good faith and in a manner he or she reasonably believed to be in, or not
opposed to, the best interests of the Registrant except that if the Indemnitee
is adjudged to be liable for negligence or misconduct in the performance of his
or her duty to the Registrant, he or she cannot be made whole even for expenses
unless a court determines that he or she is fully and reasonably entitled to
indemnification for such expenses.
Also under Delaware law, expenses incurred by an officer or director in
defending a civil or criminal action, suit or proceeding may be paid by the
Registrant in advance of the final disposition of the suit, action or proceeding
upon receipt of an undertaking by or on behalf of the officer or director to
repay such amount if it is ultimately determined that he or she is not entitled
to be indemnified by the Registrant. The Registrant may also advance expenses
incurred by other employees and agents of the Registrant upon such terms and
conditions, if any, that the Board of Directors of the Registrant deems
appropriate.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
Item 8. EXHIBITS
Exhibit Number Exhibit
- -------------- -------
5 Opinion and consent of Greenberg Traurig, LLP
10.39 Stock Option Agreement dated February 20, 1998, between the
Registrant and Larry L. Steinmetz
23.1 Consent of Independent Public Accountants - Arthur Andersen
LLP
23.2 Consent of Greenberg Traurig, LLP is contained in Exhibit 5
24 Power of Attorney. Reference is made to page II.4 of the
Registration Statement
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 the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high and of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement; and
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
PROVIDED, however, that clauses (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed 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 into the
Registration Statement;
II-2
<PAGE>
(2) that, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; and
(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 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers or 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 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.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Scottsdale, state of Arizona, on this 27th day of
January, 2000.
VODAVI TECHNOLOGY, INC.
By: /s/ Gregory K. Roeper
--------------------------------
Gregory K. Roeper, President and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints jointly and severally, William J. Hinz
and Gregory K. Roeper, and each of them, as his true and lawful attorney-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 connection therewith, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that 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 Position Date
--------- -------- ----
/s/ William J. Hinz Chairman of the Board January 27, 2000
- -----------------------
William J. Hinz
/s/ Gregory K. Roeper President and Chief Executive January 27, 2000
- ----------------------- Officer, and Director
Gregory K. Roeper (Principal Executive Officer)
/s/ Tammy M. Powers Vice President - Finance, Chief January 27, 2000
- ----------------------- Financial Officer, and Treasurer
Tammy M. Powers (Principal Financial and Accounting
Officer)
/s/ Nam K. Woo Director January 27, 2000
- -----------------------
Nam K. Woo
/s/ Stephen A McConnell Director January 27, 2000
- -----------------------
Stephen A McConnell
/s/ Gilbert H. Engels Director January 27, 2000
- -----------------------
Gilbert H. Engels
/s/ Emmet E. Mitchell Director January 27, 2000
- -----------------------
Emmett E. Mitchell
II-4
[LETTERHEAD OF GREENBERG TRAURIG]
January 28, 2000
Vodavi Technology, Inc.
8300 E. Raintree Drive
Scottsdale, AZ 85260
RE: REGISTRATION STATEMENT ON FORM S-8
VODAVI TECHNOLOGY, INC.
Ladies and Gentlemen:
As legal counsel to Vodavi Technology, Inc., a Delaware corporation (the
"Company"), we have assisted in the preparation of the Company's Registration
Statement on Form S-8 (the "Registration Statement") to be filed with the
Securities and Exchange Commission on or about January 28, 2000 in connection
with the registration under the Securities Act of 1933, as amended, of 58,750
shares of the Company's common stock, par value $0.001 per share, (the "Shares")
issuable pursuant to a stock option agreement (the "Agreement"). The facts, as
we understand them, are set forth in the Registration Statement.
With respect to the opinion set forth below, we have examined originals,
certified copies, or copies otherwise identified to our satisfaction as being
true copies, only of the following:
A. The Certificate of Incorporation of the Company, as filed with the
Secretary of State of the State of Delaware, as amended through the date hereof;
B. The Bylaws of the Company, as amended through the date hereof;
C. Various resolutions of the Board of Directors of the Company authorizing
the issuance of the Shares;
D. The Registration Statement; and
E. The Agreement.
<PAGE>
GREENBERG TRAURIG
Vodavi Technology, Inc.
January 28, 2000
Page Two
Subject to the assumptions that (i) the documents and signatures examined
by us are genuine and authentic and (ii) the persons executing the documents
examined by us have the legal capacity to execute such documents, and subject to
the further limitations and qualifications set forth below, it is our opinion
that the Shares, when issued and sold in accordance with the terms of the
Agreement, will be duly authorized, validly issued, fully paid and
nonassessable.
Please be advised that we are members of the State Bar of Arizona, and our
opinion is limited to the legality of matters under federal securities laws and
the laws of the State of Delaware. Further, our opinion is based solely upon
existing laws, rules and regulations, and we undertake no obligation to advise
you of any changes that may be brought to our attention after the date hereof.
We hereby expressly consent to any reference to our firm in the
Registration Statement, inclusion of this opinion as an exhibit to the
Registration Statement, and to the filing of this opinion with any other
appropriate governmental agency.
Very truly yours,
/s/ Greenberg Traurig, LLP, a partnership
of limited liability entities
VODAVI TECHNOLOGY, INC.
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT ("Agreement") is made as of February 4, 1998,
by and between VODAVI TECHNOLOGY, INC., a Delaware corporation (the "Company"),
and LARRY L. STEINMETZ ("Steinmetz").
WHEREAS, Steinmetz and the Company have entered into a Separation Agreement
dated as of February 4, 1998 (the "Separation Agreement"), whereby Steinmetz'
employment with the Company will be terminated; and
WHEREAS, the Separation Agreement provides that the Company will grant to
Steinmetz an option to purchase 58,750 shares of the Company's common stock, par
value $.001 per share (the "Common Stock").
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, it is agreed by and between the parties as follows:
1. GRANT OF OPTION; OPTION PRICE. Subject in all respects to the terms,
conditions, and provisions of this Agreement, the Company grants to Steinmetz,
as of February 20, 1998, the right, privilege, and option (the "Option") to
purchase 58,750 shares of Common Stock (the "Optioned Shares") at a price of
$4.00 per share (the "Option Price").
2. VESTING OF OPTION. The Option shall be fully vested and exercisable with
respect to all of the Optioned Shares as of the date of this Agreement.
3. EXERCISE OF OPTION. All or any portion of the Optioned Shares may be
purchased by Steinmetz upon written notice to the Company, addressed to the
Company at its principal place of business. Such notice shall be signed by
Steinmetz and shall state the election to exercise the Option and the number of
Optioned Shares with respect to which it is being exercised. Such notice shall
be accompanied by payment in full of the Option Price for the number of shares
of Common Stock being purchased. Payment may be made in cash or by check or by
tendering duly endorsed certificates representing shares of Common Stock then
owned by Steinmetz. Upon the exercise of the Option, the Company shall deliver,
or cause to be delivered, to Steinmetz a certificate or certificates
representing the shares of Common Stock purchased upon such exercise as soon as
practicable after payment for those shares has been received by the Company. All
shares that are purchased and paid for in full upon exercise of the Option shall
be fully paid and non-assessable.
4. TERMINATION OF OPTION. This Option, to the extent not previously
exercised, shall terminate on February 20, 2003.
5. NO PRIVILEGE OF COMMON STOCK OWNERSHIP. Steinmetz shall not have any of
the rights of a stockholder with respect to the Optioned Shares until Steinmetz
has exercised the Option and paid the Option Price for the Optioned Shares
purchased upon such exercise.
6. COMPLIANCE WITH LAWS AND REGULATIONS. The exercise of this Option and
the issuance of the Common Stock upon such exercise shall be subject to
compliance by the Company and Steinmetz with all applicable requirements of law
relating thereto and with all applicable regulations of any stock exchange or
trading market on which the shares of the Common Stock may be listed or traded
at the time of such exercise and issuance. In connection with the exercise of an
Option hereunder, Steinmetz shall execute and deliver to the Company such
representations in writing as may be requested by the Company in order for it to
comply with applicable requirements of federal and state securities laws.
7. LIABILITY OF THE COMPANY. The inability of the Company to obtain
approval from any regulatory body having authority deemed by the Company to be
necessary to the lawful issuance and sale of any Common Stock pursuant to this
Agreement shall relieve the Company of any liability with respect to the
<PAGE>
nonissuance or sale of the Common Stock as to which such approval shall not have
been obtained. The Company, however, shall use its best efforts to obtain all
such approvals.
8. CAPITAL ADJUSTMENTS. The number of Optioned Shares shall be
proportionately adjusted for any increase or decrease in the number of
outstanding shares of Common Stock of the Company resulting from a subdivision
or consolidation of shares or any other capital adjustment or the payment of a
stock dividend or any other increase or decrease in the number of such shares
effected without the Company's receipt of consideration therefor in money,
services or property.
9. MERGERS, ETC; CHANGE OF CONTROL. If the Company is the surviving
corporation in any merger or consolidation, or upon consummation of a "Change of
Control," as defined below, the Option granted herein shall pertain to and apply
to the securities to which a holder of the number of shares of Common Stock
subject to the Option prior to the merger or consolidation would have been
entitled. A "Change of Control" shall mean (a) a merger or consolidation in
which the Company is not the surviving entity or (b) any reverse merger in which
the Company is the surviving entity.
10. ASSIGNMENT. This Option and the right to acquire Common Stock under
this Agreement may not be assigned, encumbered or otherwise transferred by
Steinmetz.
11. SECURITIES RESTRICTIONS.
(a) LEGEND ON CERTIFICATES. Except as provided in Section 11(c),
below. All certificates representing shares of Common Stock issued hereunder
shall be endorsed with a legend reading as follows:
THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND ARE `RESTRICTED
SECURITIES' AS DEFINED BY RULE 144 UNDER THAT ACT. THE SHARES MAY
NOT BE SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE
OF AN EFFECTIVE REGISTRATION STATEMENT REGISTERING THE SHARES
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR, IN LIEU
THEREOF, AN OPINION OF COUNSEL FOR THIS COMPANY TO THE EFFECT
THAT REGISTRATION IS NOT REQUIRED UNDER THAT ACT.
(b) PRIVATE OFFERING FOR INVESTMENT ONLY. If the shares to be issued
to Steinmetz upon the exercise of any Option have not been registered under the
Securities Act of 1933, as amended (the "1933 Act"), the Arizona Securities Act
(the "Arizona Act") or the securities laws of any other jurisdiction, those
shares will be "restricted securities" within the meaning of Rule 144 under the
1933 Act and must be held indefinitely without any transfer, sale or other
disposition unless (i) the shares are subsequently registered under the 1933
Act, the Arizona Act and the securities laws of any other applicable
jurisdiction, or (ii) Steinmetz obtains an opinion of counsel which is
satisfactory to counsel for the Company that the shares may be sold in reliance
on an exemption from registration requirements. By the act of accepting an
Option, Steinmetz agrees (1) that any shares of Common Stock acquired will be
solely for investment and not with any intention to resell or redistribute those
shares, and (2) such intention will be confirmed by an appropriate certificate
at the time the Common Stock is acquired if requested by the Company. The
neglect or failure to execute such a certificate, however, shall not limit or
negate the foregoing agreement.
(c) REGISTRATION STATEMENT. If a registration statement covering the
shares of Common Stock issuable hereunder is filed under the 1933 Act and is
declared effective by the Securities and Exchange Commission, the provisions of
SECTIONS 11(a) and 11(b) shall terminate during the period of time that such
registration statement, as periodically amended, remains effective.
12. TAX WITHHOLDING. The Company's obligation to deliver Common Stock under
this Agreement shall be subject to Steinmetz's satisfaction of all applicable
federal, state, and local income tax withholding requirements.
<PAGE>
13. BINDING EFFECT. Subject to the restrictions on transfer set forth in
SECTIONS 10 and 11, this Agreement shall inure to the benefit of and be binding
upon the parties hereto.
14. DEFINED TERMS. All capitalized terms herein that are not otherwise
defined herein shall have the same meaning ascribed to such terms in the
Employment Agreement.
15. NOTICES. Any notice required to be given or delivered to the Company
under the terms of this Agreement shall be in writing and addressed to the
Company in care of the Corporate Secretary at its principal corporate offices.
Any notice required to be given or delivered to Steinmetz shall be in writing
and addressed to Steinmetz at the address indicated on the signature page
hereto. All notices shall be deemed to have been given or delivered upon
personal delivery or upon deposit in the United States mail, postage prepaid,
return receipt requested, and properly addressed to the party to be notified.
16. INTEGRATION AND MODIFICATION. This Agreement and the Separation
Agreement embody the full understanding of the parties with respect to the
subject matter hereof, superseding any and all prior agreements, and no
amendment or modification thereof shall be effective unless the same shall be in
writing and signed by both of said parties.
17. GOVERNING LAW. This Agreement shall be construed in accordance with,
and governed by, the laws of the state of Arizona, without regard to application
of conflicts of law principles.
18. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which, taken
together, shall constitute one and the same instrument.
<PAGE>
IN WITNESS WHEREOF the parties hereto have executed this Agreement or
caused it to be executed on the day and year first above written.
VODAVI TECHNOLOGY, INC.
By: /s/ Glenn R. Fitchet, President
---------------------------------
/s/ Larry L. Steinmetz
---------------------------------
LARRY L. STEINMETZ
Address:
5520 E. Muriel Drive
Scottsdale, AZ 85254
ARTHUR ANDERSEN LLP
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our report dated January 29,
1999, included in Vodavi Technology, Inc. and subsidiaries' Annual Report on
Form 10-K for the year ended December 31, 1998.
/s/ Arthur Andersen LLP
Phoenix, Arizona,
January 26, 2000.
