-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, DPTBUYn9mrEclC86U/EefBWZVZwDVj37ubZfqKBdrCsa9P5CEgGjXGDsrSiziKo3 OcOPmf73x72oEKovtf8JLw== 0000931763-99-002677.txt : 19990924 0000931763-99-002677.hdr.sgml : 19990924 ACCESSION NUMBER: 0000931763-99-002677 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19990923 EFFECTIVENESS DATE: 19990923 FILER: COMPANY DATA: COMPANY CONFORMED NAME: PREMIERE TECHNOLOGIES INC CENTRAL INDEX KEY: 0000880804 STANDARD INDUSTRIAL CLASSIFICATION: COMMUNICATION SERVICES, NEC [4899] IRS NUMBER: 593074176 STATE OF INCORPORATION: GA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-87635 FILM NUMBER: 99715777 BUSINESS ADDRESS: STREET 1: 3399 PEACHTREE RD NE STREET 2: LENOX BLDG STE 400 CITY: ATLANTA STATE: GA ZIP: 30326 BUSINESS PHONE: 4042628400 MAIL ADDRESS: STREET 1: 3399 PEACHTREE RD NE STREET 2: STE 400 CITY: ATLANTA STATE: GA ZIP: 30326 S-8 1 FORM S-8 As filed with the Securities and Exchange Commission on September 23, 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) INTELLIVOICE COMMUNICATIONS, INC. 1995 INCENTIVE STOCK PLAN PREMIERE TECHNOLOGIES, INC. STOCK OPTION AGREEMENTS (FULL TITLE OF THE PLANS) 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 AND ADMINISTRATION ALSTON & BIRD LLP CHIEF FINANCIAL OFFICER ONE ATLANTIC CENTER, PREMIERE TECHNOLOGIES, INC. 1201 WEST PEACHTREE STREET 3399 PEACHTREE ROAD, N.E., THE LENOX BUILDING, SUITE 600 ATLANTA, GEORGIA 30309-3424 ATLANTA, GEORGIA 30326 (404) 881-7000 (404) 262-8400
CALCULATION OF REGISTRATION FEE
PROPOSED PROPOSED TITLE OF SECURITIES AMOUNT TO MAXIMUM MAXIMUM AMOUNT OF TO BE REGISTERED BE REGISTERED(1) OFFERING PRICE AGGREGATE REGISTRATION FEE PER SHARE OFFERING PRICE - --------------------------------------------------------------------------------------------------------------------------------- Common Stock, $.01 par value (including rights to 47,114 $5.9375(2) $279,740 $ 80 purchase shares of Series C Junior Participating Preferred Stock) - --------------------------------------------------------------------------------------------------------------------------------- Common Stock, $.01 par value (including rights to 75,000 $ 7.00(3) $525,000 $146 purchase shares of Series C Junior Participating Preferred Stock) - --------------------------------------------------------------------------------------------------------------------------------- Common Stock; $.01 par value (including rights to 75,000 $ 7.00(3) $525,000 $146 purchase shares of Series C Junior Participating Preferred Stock) - --------------------------------------------------------------------------------------------------------------------------------- TOTAL 197,114 -- $372 - ---------------------------------------------------------------------------------------------------------------------------------
(1) Consists of shares of the registrant's Common Stock that may be issued pursuant to options that may be granted under the Intellivoice Communications, Inc. 1995 Incentive Stock Plan and certain Stock Option Agreements by and between the registrant and certain of its employees (collectively, the "Plans"). 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 Plans. (2) 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 September 22, 1999. (3) Determined for purposes of calculating the registration fee in accordance with Rule 457(h) and based upon the exercise price at which such outstanding options to purchase shares of the Common Stock under the options may be exercised. II-2 PART II. INFORMATION REQUIRED IN REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference The following documents are incorporated by reference into this Registrant 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 September 15, 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 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 a statement contained herein or in any subsequently filed document which also is, or is deemed to be, II-1 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 II-2 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. II-3 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).
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; II-4 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 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 23rd day of September, 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.
Signature Capacity Date - ------------------------ --------------------------------------------- ------------------------- /s/ Boland T. Jones Chairman of the Board and September 23, 1999 - ------------------------ Chief Executive Officer Boland T. Jones (Principal Executive Officer) and Director /s/ Robert S. Vaters Executive Vice President of Finance and September 23, 1999 - ------------------------ Administration and Chief Financial Officer Robert S. Vaters (Principal Financial and Accounting Officer) /s/ George W. Baker, Sr. Director September 23, 1999 - ------------------------ George W. Baker, Sr.
II-6
Signature Capacity Date - -------------------------- ------------------------------------- ------------------------- /s/ Raymond H. Pirtle, Jr. Director September 23, 1999 - -------------------------- Raymond H. Pirtle, Jr. /s/ Roy B. Andersen, Jr. Director September 23, 1999 - -------------------------- Roy B. Andersen, Jr. /s/ William P. Payne Vice Chairman and September 23, 1999 - -------------------------- and Director William P. Payne /s/ Jeffrey A. Allred President and Chief Operating Officer September 23, 1999 - -------------------------- and Director Jeffrey A. Allred /s/ Jackie M. Ward Director September 23, 1999 - -------------------------- Jackie M. Ward /s/ Jeffrey T. Arnold Director September 23, 1999 - -------------------------- Jeffrey T. Arnold
II-7 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).
EX-5.1 2 OPINION OF ALSTON & BIRD LLP EXHIBIT 5.1 [Letterhead of Alston & Bird LLP] September 23, 1999 Premiere Technologies, Inc. 3399 Peachtree Road, N.E. The Lenox Building Suite 600 Atlanta, Georgia 30326 Re: Form S-8 Registration Statement Intellivoice Communications, Inc. 1995 Incentive Stock Plan Premiere Technologies, Inc. Stock Option Agreements 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 197,114 shares of the $.01 par value Common Stock of the Company (the "Shares") that may be sold or issued pursuant to the Intellivoice Communications, Inc. 1995 Incentive Stock Plan, and upon the exercise of options granted to two (2) individuals under employee stock option agreements, as referenced in a certificate of the Secretary of the Company of even date hereof (the "Secretary's Certificate"). 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 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 Premiere Technologies, Inc. September 23, 1999 Page 3 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, when sold or issued pursuant to the Intellivoice Communications, Inc. 1995 Incentive Stock Plan, or upon the exercise of options granted to the individuals identified in the Secretary's Certificate will be 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 J. Hughey ------------------ EX-23.1 3 CONSENT OF ARTHUR ANDERSEN LLP 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 Atlanta, Georgia September 20, 1999 -----END PRIVACY-ENHANCED MESSAGE-----