-----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, UGaf3qOIdfe7Yv2i2nugENXfu0NY/RWmx6IxvrpvAe4rObhzk43VUxpM68lBxg+Z RQKkPvdtiY8xp0oGj5bwaw== 0000950135-98-005771.txt : 19981111 0000950135-98-005771.hdr.sgml : 19981111 ACCESSION NUMBER: 0000950135-98-005771 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19981110 EFFECTIVENESS DATE: 19981110 FILER: COMPANY DATA: COMPANY CONFORMED NAME: PICTURETEL CORP CENTRAL INDEX KEY: 0000755095 STANDARD INDUSTRIAL CLASSIFICATION: TELEPHONE & TELEGRAPH APPARATUS [3661] IRS NUMBER: 042835972 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-67081 FILM NUMBER: 98743511 BUSINESS ADDRESS: STREET 1: 100 MINUTEMAN RD CITY: ANDOVER STATE: MA ZIP: 01810 BUSINESS PHONE: 5087625000 MAIL ADDRESS: STREET 1: 222 ROSEWOOD DR CITY: DANVERS STATE: MA ZIP: 01923 FORMER COMPANY: FORMER CONFORMED NAME: PICTEL CORP DATE OF NAME CHANGE: 19870505 S-8 1 PICTURETEL CORPORATION 1 As filed with the Securities and Exchange Commission on November 10, 1998 File No. 333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ----------------------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------------------------------ PICTURETEL CORPORATION (Exact name of registrant as specified in its charter) DELAWARE 04-2835972 (State or Other Jurisdiction (I.R.S. Employer of Incorporation or Organization) Identification No.) 100 Minutemen Road Andover, Massachusetts 01810 (Address of Principal Executive Offices) 1998 BONUS RETENTION PLAN ------------------------- (Full title of the Plan) W. Robert Kellegrew, Esq. General Counsel PictureTel Corporation 100 Minutemen Road Andover, Massachusetts 01810 (978) 292-5000 ------------------------------------ (Name, Address and Telephone Number, including Area Code, of Agent for Service) CALCULATION OF REGISTRATION FEE
==================================================================================================================== Title Of Securities Amount Proposed Maximum Proposed Maximum Amount Of To Be To Be Offering Price Per Aggregate Offering Registration Registered Registered Share (1) Price (1) Fee - -------------------------------------------------------------------------------------------------------------------- Common Stock, Par Value $.01 177,382 shares $7.25 $1,286,020 $358.00 ====================================================================================================================
(1) Estimated solely for the purpose of determining the Registration Fee. For the purpose of determining the Registration Fee, the Maximum Offering Price Per Share and Aggregate Offering Price have been determined, pursuant to Rule 457(h) of the Securities Act of 1933, on the basis of the average of the high and low prices of the common stock, par value $.01 per share (the "Common Stock"), of PictureTel Corporation, reported on the National Association of Security Dealers, Inc. Automated Quotations National Market System on November 6, 1998. Exhibit Index on Page II-5 Page 1 of 6 Pages. 2 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE. PictureTel Corporation (the "Registrant" or the "Company") hereby incorporates the following documents herein by reference: (a) The Registrant's Prospectus filed with the Securities and Exchange Commission (the "Commission") on September 22, 1998 under the Securities Act of 1933, as amended, in connection with the Registrant's Registration Statement on Form S-4 relating to the Merger of SNI Acquisition Corporation, a California corporation and an indirect wholly owned subsidiary of PictureTel ("Merger Sub"), with and into Starlight Networks Incorporated, a California corporation ("Starlight"), pursuant to an Agreement and Plan of Merger dated as of August 14, 1998 by and among PictureTel, PictureTel Technology Corporation, a Delaware corporation and a wholly owned subsidiary of PictureTel, Merger Sub and Starlight. (b) Quarterly Report on Form 10-Q for the quarter ended June 30, 1998, as filed with the Commission pursuant to Section 13 under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), on August 12, 1998. (c) Form of the Registrant's Common Stock Certificate (Incorporated by Reference to Exhibit 4(b) to the Registrant's Registration Statement on Form S-8, No. 33-36315, as filed with the Commission on August 10, 1990.) All documents subsequently filed by the Registrant pursuant to Section 13(a), Section 13(c), Section 14 and Section 15(d) of the Exchange Act prior to the filing of a post-effective amendment to this Registration Statement that indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated herein by reference 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. Section 145 of the Delaware General Corporation Law, as amended, provides that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal or investigative (other than an action by or in the right of the corporation) by reason of the fact that such person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe such person's conduct was unlawful. Section 145 further provides that a corporation similarly may indemnify any such person serving in any such capacity who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or II-1 3 in the right of the corporation to procure a judgment in its favor, against expenses actually and reasonably incurred in connection with the defense or settlement of such action or suit if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interest of the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Delaware Court of Chancery or such other court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person in fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper. Section 102(b)(7) of the Delaware General Corporation Law, as amended, permits a corporation to include in its certificate of incorporation a provision eliminating or limiting the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, provided, however, that such provision shall not eliminate or limit the liability of a director (i) for any breach of the director's duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law (relating to unlawful payment of dividends and unlawful stock purchase and redemption) or (iv) for any transaction from which the director derived an improper personal benefit. The Registrant's Third Restated Certificate of Incorporation provides that the Registrant's directors shall not be liable to the Registrant or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent and only to the extent that exculpation from liabilities is not permitted under the Delaware General Corporation Law as in effect at the time such liability is determined. Item 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. II-2 4 Item 8. EXHIBITS. Exhibit 3.1. Third Restated Certificate of Incorporation of the Registrant (Incorporated by Reference to Exhibit 3.1.4 of the Registrant's Quarterly Report on Form 10-Q for the quarter ended June 27, 1992). 3.2. Amended and Restated By-Laws of the Registrant (Incorporated by Reference to Exhibit 1 to the Registrant's Current Report on Form 8-K as filed with the Commission on September 14, 1994). 5. Opinion of Ropes & Gray. 10.1. 1998 Bonus Retention Plan. 23.1. Consent of Ropes & Gray (See Exhibit 5). 23.2. Consent of PricewaterhouseCoopers, LLP. 24. Power of Attorney (Included on Signature Page). 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, 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. (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 herein, 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 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 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 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, II-3 5 suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. II-4 6 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, 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 on Form S-8 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Andover, The Commonwealth of Massachusetts, on this 30th day of October, 1998. PICTURETEL CORPORATION By: /s/ Bruce R. Bond --------------------------------- Name: Bruce R. Bond Title: Chairman of the Board President and Chief Executive Officer POWER OF ATTORNEY Dated: October 30, 1998 Pursuant to the requirement of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated. Each person whose signature appears below hereby authorizes and constitutes W. Robert Kellegrew and Bruce R. Bond, and each of them singly, his true and lawful attorneys, with full power to them, to execute in the name and on behalf of such person in the capacities indicated below any and all amendments (including any post-effective amendments) to this Registration Statement and to file the same, with exhibits thereto, and other documents in connection therewith, making such changes in this Registration Statement as the Registrant deems appropriate, and hereby ratifies and confirms his signature as it may be signed by said attorneys, or any of them, to any and all such amendments.
Signature Capacity In Which Signed Date - --------- ------------------------ ------ /s/ Bruce R. Bond Chairman of the Board, October 30, 1998 - ---------------------------- President and Chief Executive Bruce R. Bond Officer (Principal Executive Officer) /s/ Norman E. Gaut Director October 30, 1998 - ---------------------------- Norman E. Gaut Director October 30, 1998 - ---------------------------- David B. Levi /s/ Robert T. Knight Director October 30, 1998 - ---------------------------- Robert T. Knight /s/ Enzo Torresi Director October 30, 1998 - ---------------------------- Enzo Torresi /s/ Arthur L. Fatum Vice President and Chief November 9, 1998 - ---------------------------- Financial Officer (Principal Arthur L. Fatum Accounting Officer and Principal Financial Officer)
II-5 7 EXHIBIT INDEX
Number Title of Exhibit - ------ ---------------- Third Restated Certificate of 3.1. Incorporation of the Registrant (Incorporated by Reference to Exhibit 3.1.4 of the Registrant's Quarterly Report on Form 10-Q for the quarter ended June 27, 1992). 3.2. Amended and Restated By-Laws of the Registrant (Incorporated by Reference to Exhibit 1 to the Registrant's Current Report on Form 8-K as filed with the Commission on September 14, 1994) 5. Opinion of Ropes & Gray 10.1 1998 Bonus Retention Plan. 23.1. Consent of Ropes & Gray (See Exhibit 5). 23.2. Consent of PricewaterhouseCoopers, LLP. 24. Power of Attorney (Included on Signature Page).
II-6 EX-5 2 OPINION OF ROPES & GRAY 1 Ropes & Gray ONE INTERNATIONAL PLACE 30 KENNEDY PLAZA BOSTON, MASSACHUSETTS 02110-2624 ONE FRANKLIN SQUARE PROVIDENCE, RI 02903-2328 (617) 951-7000 1301 K STREET, N.W. (401) 455-4400 FAX: (617) 951-7050 SUITE 800 EAST FAX: (401) 445-4401 WASHINGTON, DC 200005-3333 (202) 626-3900 FAX: (202) 626-3961
November 10, 1998 PictureTel Corporation 100 Minuteman Road Andover, MA 01810 Re: PICTURETEL CORPORATION Ladies and Gentlemen: This opinion is furnished to you in connection with a registration statement on Form S-8 (the "Registration Statement") filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended, for the registration of 177,382 shares of Common Stock, par value $.01 per share (the "Shares"), of PictureTel Corporation, a Delaware corporation (the "Company"), under the 1998 Bonus Retention Plan (the "Plan"). The Shares are to be sold from time to time pursuant to the Plan. We have acted as counsel for the Company and are familiar with the action taken by the Company in connection with the Plan. For purposes of this opinion, we have examined the Plan and such other documents, records, certificates, and other instruments as we have deemed necessary. For purposes of our opinion, we have assumed that (i) any consideration received by the Company upon the issuance or exercise of any option granted under the Plan will at least be equal to the par value of the Shares issuable upon the exercise of any such option, and (ii) the number of Shares to be issued upon any such exercise, together with the total number of shares of the Company's Common Stock previously outstanding, will not exceed the authorized number of shares of Common Stock specified in the Company's certificate of incorporation as then in effect. We express no opinion as to the applicability of compliance with or effect of federal law or the law of any jurisdiction other than The Commonwealth of Massachusetts and the General Corporation Law of the State of Delaware. Based on the foregoing, we are of the opinion that the Shares have been duly authorized and, when the Shares have been issued and sold and consideration received therefor by the Company in accordance with the terms of the Plan, the Shares will be validly issued, fully paid, and non-assessable. We hereby consent to your filing this opinion as an exhibit to the Registration Statement. It is understood that this opinion is to be used only in connection with the offer and sale of the Shares while the Registration Statement is in effect. 2 2 PictureTel Corporation We hereby consent to your filing this opinion as an exhibit to the Registration Statement. It is understood that this opinion is to be used only in connection with the offer and sale of the Shares while the Registration Statement is in effect. Very truly yours, /s/ Ropes & Gray --------------------------- Ropes & Gray EX-10.1 3 RETENTION BONUS PROGRAM 1 STARLIGHT NETWORKS INCORPORATED RETENTION BONUS PROGRAM 1. PURPOSES OF PLAN. The purpose of the Retention Bonus Program (the "Bonus Program") is to encourage long-term service of certain employees, consultants and members of the Board of Directors of Starlight Networks Incorporated (the "Company"). 2. TERM OF PLAN. The Plan shall become effective upon its adoption by the Board. The Plan shall continue until terminated under Section 8 of the Plan. 3. BONUS POOL. Cash or stock bonuses shall be paid under the Bonus Program from a bonus pool (the "Bonus Pool") equal in value to 15.86% of the gross proceeds offered to shareholders in consideration for their shares of the capital stock of the Company in a merger or acquisition of the Company or the sale of all or substantially all of the assets of the Company (an "Acquisition Transaction"). 4. PARTICIPATION. Only the employees, consultants and members of the Board of Directors determined by the Compensation Committee of the Board of Directors shall be eligible to participate in the Bonus Program (the "Participants"). Except as otherwise provided in the Bonus Program, a Participant's right to participate in the Bonus Program may not be terminated without the Participant's consent. Participation in the Bonus Program shall not affect any other benefits or compensation from the Company to which a Participant may be or become entitled. 5. DISTRIBUTABLE AMOUNT; PAYMENT. (a) DISTRIBUTABLE AMOUNT. Subject to the provisions below, each Participant shall be paid a bonus (the "Bonus") in an amount to be determined by the Compensation Committee of the Board of Directors of the Company. The Compensation Committee shall also determine whether such Bonus is to be paid in cash or in the shares of the unrelated issuer in the Acquisition Transaction. (b) METHOD OF PAYMENT. The Bonus shall be payable either immediately upon the closing of the Acquisition Transaction (the "Closing Date") or on the next business day following the Closing Date. 6. EMPLOYMENT CONDITION. The distribution of each Participant's Bonus is contingent upon the Participant's continuing status as an employee, consultant or member of the Board of Directors of the Company through the Closing Date. If a Participant voluntarily terminates employment or service as a Director with the Company, or a Participant is terminated for Cause (as defined below) by the Company prior to the Closing Date, then such Participant shall not be eligible to receive any Bonus payments, and such Participant's Bonus shall revert back to the Bonus Pool, to be reallocated among the remaining Participants in such amounts as determined in the discretion of the Compensation Committee 2 of the Board of Directors. For purposes of this Bonus Program only, Cause shall mean (i) an act of dishonesty made by a Participant in connection with such Participant's responsibilities as an employee that is materially and demonstrably injurious to the Company, (ii) a Participant's conviction of, or plea of NOLO CONTENDERE to a felony, an act of fraud or embezzlement, (iii) a willful act by a Participant which constitutes misconduct and is injurious to the Company, (iv) a Participant's continued violation of his employment duties after such Participant has received a written demand for performance from the Company which specifically sets forth the factual basis for the Company's belief that such Participant has not performed his duties, or (v) gross incompetence or gross insubordination on the part of a Participant. If, prior to the Closing Date, a Participant ceased to be employed by the Company for any reason other than for Cause or voluntary termination, then such Participant shall continue to be eligible to receive the Bonus. 7. WITHHOLDING. Distributions pursuant to this Plan shall be subject to all applicable tax and withholding requirements, including federal and state requirements. 8. TERMINATION. The Bonus Program shall terminate upon the Closing of an Acquisition Transaction (the "Closing"). Upon the termination of the Bonus Program, the rights of all Participants hereunder will terminate immediately, provided that any rights to the Bonus which have accrued at the Closing shall survive the Closing. 9. EMPLOYMENT. No provision of this Plan shall be construed as conferring on an employee of the Company the right to continue as an employee of the Company. Notwithstanding the previous sentence, the Company shall not take any action solely to avoid payment pursuant to the Bonus Program. 10. GOVERNING LAW. The Plan shall be governed by the laws of the State of California. EX-23.2 4 CONSENT OF PRICEWATERHOUSECOOPERS, LLP 1 EXHIBIT 23.2 CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report, which includes an explanatory paragraph regarding the restatement of the financial statements for the year ended December 31, 1996, dated February 25, 1998, which appears in the 1997 PictureTel Corporation Annual Report on Form 10-K, on our audits of the consolidated financial statements of PictureTel Corporation as of December 31, 1997 and 1996 and for each of the three year in the period ended December 31, 1997. We also consent to the incorporation by reference of such report to the Financial Statement Schedule for the three years ended December 31, 1997 listed under Item 14(a) of PictureTel Corporation's Annual Report on Form 10-K for the year ended December 31, 1997 when such schedule is read in conjunction with the financial statements referred to in our report. The audits referred to in such report also included this Financial Statement Schedule. PricewaterhouseCoopers LLP -------------------------- PricewaterhouseCoopers LLP Boston, Massachusetts November 10, 1998 -----END PRIVACY-ENHANCED MESSAGE-----