<PAGE>
As filed with the Securities and Exchange Commission on December 22, 1999
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
POLYCOM, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 94-3128324
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
2584 JUNCTION AVENUE
SAN JOSE, CA 95134
(ADDRESS, INCLUDING ZIP CODE OF PRINCIPAL EXECUTIVE OFFICES)
ATLAS COMMUNICATION ENGINES, INC.
1996 STOCK INCENTIVE PLAN
(FULL TITLE OF THE PLAN)
MICHAEL R. KOUREY
CHIEF FINANCIAL OFFICER
POLYCOM, INC.
2584 JUNCTION AVENUE
SAN JOSE, CA 95134
(408) 526-9000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
Copy to:
MARK A. BERTELSEN, ESQ.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304-1050
(650) 493-9300
CALCULATION OF REGISTRATION FEE
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TITLE OF SECURITIES PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TO AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
BE REGISTERED REGISTERED PER SHARE (2) PRICE FEE
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<S> <C> <C> <C> <C>
Atlas Communication Engines, Inc. 476,817 shares $53.125 $25,330,903.12 $6,687.36
1996 Stock Incentive Plan (the "Plan")(1)
Common Stock, $.0005 par value
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</TABLE>
(1) Pursuant to an Agreement and Plan of Reorganization dated as of November 18,
1999, (the "REORGANIZATION AGREEMENT") by and among Polycom, Periscope
Acquisition Corporation and Atlas Communication Engines, Inc. ("ATLAS"), the
Registrant assumed all of the outstanding options to purchase common stock of
Atlas under the Plan (the "ASSUMED OPTIONS"), with appropriate adjustments to
the number of shares and exercise price of each Assumed Option to reflect the
ratio at which the common stock of Atlas was converted into common stock of the
Registrant under the Reorganization Agreement.
(2) Estimated solely for the purpose of computing the registration fee required
by Section 6(b) of the Securities Act of 1933, as amended (the "SECURITIES ACT")
and computed pursuant to Rule 457(c) under the Securities Act based upon the
average of the high and low prices of the Common Stock on December 20, 1999, as
reported on the Nasdaq National Market.
<PAGE>
POLYCOM, INC.
REGISTRATION STATEMENT ON FORM S-8
PART I
INFORMATION REQUIRED IN THE PROSPECTUS
ITEM 1. PLAN INFORMATION.
The documents containing the information specified in this Item 1 will
be sent or given to employees, officers, directors or others as specified by
Rule 428(b)(1). In accordance with the rules and regulations of the Securities
and Exchange Commission (the "Commission") and the instructions to Form S-8,
such documents are not being filed with the Commission either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424.
ITEM 2. REGISTRATION INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
The documents containing the information specified in this Item 2 will
be sent or given to employees, officers, directors or others as specified by
Rule 428(b)(1). In accordance with the rules and regulations of the Commission
and the instructions to Form S-8, such documents are not being filed with the
Commission either as part of this Registration Statement or as prospectuses or
prospectus supplements pursuant to Rule 424.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents and information previously filed with the
Securities and Exchange Commission (the "COMMISSION") by Polycom, Inc. (the
"REGISTRANT") are hereby incorporated herein by reference:
- The Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1998 filed with the Commission on
March 15, 1999 pursuant to Section 13(a) the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT");
- The Registrant's Quarterly Report on Form 10-Q for the
quarters ended April 4, 1999, July 4, 1999 and October 3, 1999
filed with the Commission on May 18, 1999, August 17, 1999 and
November 16, 1999, respectively, pursuant to Section 13(a) of
the Exchange Act;
- The description of Registrant's Common Stock contained in the
Registrant's Registration Statement No. 00-27978 on Form 8-A
filed with the Commission on March 12, 1996, pursuant to
Section 12 of the Exchange Act, including any amendment or
report filed for the purpose of updating such description; and
- The information contained in the Registrant's Registration
Statements on Form S-8 (File No.'s 333-43059, 333-45351 and
333-86681) filed on or about December 23, 1997, January 30,
1998, and September 7, 1999, respectively.
In addition, all documents subsequently filed with the Commission by
the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange
Act on or after the date of this Registration Statement and prior to the filing
of a post-effective amendment which indicates that all securities offered
hereunder have been sold or which deregisters all securities then remaining
unsold under this Registration Statement, shall be deemed to be incorporated by
reference in this Registration Statement and to be part hereof from the date of
filing of such
<PAGE>
documents. Any statement contained herein or in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Registration Statement to the extent that
a statement contained herein or in any other subsequently filed document
which also is or is deemed to be incorporated by reference herein modifies or
supersedes such earlier statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a
part of this Registration Statement.
ITEMS 4 - 7.
Items 4 - 7, inclusive, are omitted in reliance upon General
Instruction E to Form S-8, and the above incorporation by reference of a
previously filed and currently effective S-8 (File No. 333-45351).
ITEM 8. EXHIBITS.
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EXHIBIT
NUMBER DESCRIPTION
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4.1 Instruments Defining Rights of Stockholders. Reference is made
to Registrant's Registration Statement No. 00-27978 on Form 8-A
as amended (including the exhibits thereto) which is
incorporated by reference herein as indicated in Item 3(4).
4.2 Atlas Communication Engines, Inc. 1996 Stock Incentive Plan and
related agreements.
5.1 Opinion of counsel as to legality of securities being
registered.
23.1 Consent of counsel (contained in Exhibit 5.1).
23.2 Consent of PricewaterhouseCoopers LLP, Independent Accountants
24.1 Powers of Attorney (see page 4).
</TABLE>
ITEM 9. UNDERTAKINGS.
Item 9 is omitted in reliance upon General Instruction E to Form S-8,
and the above incorporation by reference of a previously filed and currently
effective S-8 (File No. 333-45351).
<PAGE>
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 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of San Jose, State of California, on this 22nd
day of December 1999.
POLYCOM, INC.
By: /s/ Michael R. Kourey
-------------------------------------------------
Michael R. Kourey
Senior Vice President, Finance and Administration,
Chief Financial Officer, Secretary and Director
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Robert C. Hagerty and Michael R.
Kourey, and each of them, his or her true and lawful agent, proxy and
attorney-in-fact, with full power of substitution and resubstitution, for him or
her and in his or her name, place and stead, in any and all capacities, to (i)
act on, sign and file with the Securities and Exchange Commission any and all
amendments (including post-effective amendments) to this Registration Statement
on Form S-8 together with all schedules and exhibits thereto (ii) act on, sign
and file such certificates, instruments, agreements and other documents as may
be necessary or appropriate in connection therewith, and (iii) take any and all
actions that may be necessary or appropriate to be done, as fully for all
intents and purposes as he or she might or could do in person, hereby approving,
ratifying and confirming all that such agent, proxy and attorney-in-fact or any
of his substitutes may lawfully do or cause to be done by virtue thereof.
IN ACCORDANCE WITH THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED ON THIS 22ND DAY OF DECEMBER 1999 BY
THE FOLLOWING PERSONS IN THE CAPACITIES INDICATED:
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SIGNATURES TITLE
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<S> <C>
/s/ Brian L. Hinman Chairman of the Board of Directors
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Brian L. Hinman
/s/ Robert C. Hagerty President, Chief Executive Officer and Director
- ------------------------ (PRINCIPAL EXECUTIVE OFFICER)
Robert C. Hagerty
/s/ Michael R. Kourey Senior Vice President, Finance and Administration, Chief Financial
- ------------------------ Officer, Secretary and Director
Michael R. Kourey (PRINCIPAL FINANCIAL AND ACCOUNTING OFFICER)
/s/ Betsey S. Atkins Director
- ------------------------
Betsey S. Atkins
<PAGE>
/s/ John Seely Brown Director
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John Seely Brown
/s/ Stanley J. Meresman Director
- ------------------------
Stanley J. Meresman
/s/ William Owens Director
- ------------------------
William Owens
/s/ James R. Swartz Director
- ------------------------
James R. Swartz
</TABLE>
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
NUMBER -----------
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4.1 Instruments Defining Rights of Stockholders. Reference is made
to Registrant's Registration Statement No. 00-27978 on Form 8-A
as amended (including the exhibits thereto) which is
incorporated by reference herein as indicated in Item 3(4).
4.2 Atlas Communication Engines, Inc. 1996 Stock Incentive Plan and
related agreements.
5.1 Opinion of counsel as to legality of securities being
registered.
23.2 Consent of PricewaterhouseCoopers LLP, Independent Accountants
</TABLE>
<PAGE>
ATLAS COMMUNICATION ENGINES, INC.
1996 STOCK INCENTIVE PLAN
1. PURPOSE.
1.1 INCENTIVE TO EMPLOYEES. This 1996 Stock Incentive Plan (the
"Plan") is intended to provide incentive to, and to encourage stock ownership
by, selected employees, officers, directors and consultants of Atlas
Communication Engines, Inc., a California corporation (the "Company"), any
Subsidiary (as defined below) and any Parent (as defined below), so that such
employees, officers, directors and consultants may acquire a proprietary
interest in, or increase their proprietary interest in, the Company. For the
purposes of the Plan, the terms "Subsidiary" and "Parent" shall mean any present
or future corporation which would be a "subsidiary corporation" or a "parent
corporation," respectively, of the Company, as those terms are defined in
Section 424 of the Internal Revenue Code of 1986, as amended (the "Code").
1.2 STOCK INCENTIVE AWARDS. The Plan provides for the grant of
options to purchase shares of the Company's authorized but unissued Common Stock
("Shares") to selected officers, employees, directors and consultants of the
Company (sometimes collectively referred to herein as "offerees", "grantees" or
"optionees"). Options granted under the Plan may include non-statutory options
and options intended to qualify as "incentive stock options", as that term is
defined in Section 422 of the Code ("incentive stock options").
2. ADMINISTRATION.
2.1 BOARD OF DIRECTORS. The Plan shall be administered by the Board
of Directors of the Company (the "Board") or by a Committee as defined in
Section 2.2 below. The interpretation and construction by the Board or the
Committee of any provision of the Plan, or of any agreement or option issued or
executed under or pursuant to the Plan, shall be final and binding upon
optionees hereunder. No member of the Board or the Committee shall be liable
for any action or determination undertaken or made in good faith with respect to
the Plan or any agreement or option issued or executed under or pursuant to the
Plan.
2.2 COMMITTEE OF THE BOARD. The Board may, in its sole and absolute
discretion, delegate any or all of its duties and authority with respect to the
Plan to a committee of at least two (2) Directors of the Company (the
"Committee") to be appointed by and to serve at the pleasure of the Board. Once
appointed, the Committee shall continue to serve until otherwise directed by the
Board. From time to time, the Board may increase or decrease the size of the
Committee, add additional members to, remove members (with or without cause)
from, appoint new members in substitution therefor, and fill vacancies, however
caused, in the Committee. The Committee shall act pursuant to a vote of the
majority of its members, whether present in person or by telephonic means at a
meeting of the Committee, or by the unanimous written consent of its members,
and minutes shall be kept of all of its meetings and copies thereof shall
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be provided to the Board. Subject to the limitations prescribed by the Plan and
the Board, the Committee may establish and follow such rules and regulations for
the conduct of its business as it may determine to be advisable.
2.3 ADMINISTRATIVE POWERS. Subject to the provisions of the Plan, the
Board or the Committee, as the case may be (the "Administrator"), shall have
authority to take the following actions:
(a) to construe and interpret the Plan and apply its
provisions;
(b) to promulgate, amend and rescind rules and regulations
relating to the administration of the Plan;
(c) to authorize any person to execute, on behalf of the
Company, any instrument required to carry out the purposes of the Plan;
(d) to determine when options are to be granted under the Plan;
(e) from time to time to select those officers, employees,
directors and consultants to whom options shall be granted from among the
eligible officers, employees, directors and consultants (as determined pursuant
to Section 3 below) of the Company, any Subsidiary or Parent;
(f) to determine the number of Shares to be made subject to
each option;
(g) to prescribe the terms and condition of each option,
including, without limitation, the exercise price and medium of payment, to
determine whether such option is to be classified as an incentive stock option
or as a non-statutory stock option, and to specify the provisions of the stock
option agreement relating to such option;
(h) to amend any outstanding stock option agreement for the
purpose of modifying the exercise price as the case may be, subject to
applicable legal restrictions and to the consent of the other party to such
agreement;
(i) to determine the duration and purpose of leaves of absences
which may be granted to employees without constituting termination of their
employment for purposes of the Plan; and
(j) to make any and all other determinations which they
determine to be necessary or advisable for administration of the Plan.
3. ELIGIBILITY.
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3.1 GENERAL RULE. Any employee, officer, director or consultant of
the Company, any Subsidiary or Parent, shall be eligible to receive options
granted under the Plan and may hold more than one option.
3.2 ELIGIBLE DIRECTOR LIMITATION. Notwithstanding the provisions of
Section 3.1 above, no person shall be eligible to receive an option granted
under the Plan if at the time the option is granted, he or she is a director of
the Company and has not by resolution of the Board of Directors been designated
as an "eligible director." No member of the Committee may be designated as an
eligible director.
3.3 LIMITATION WITH RESPECT TO INCENTIVE STOCK OPTIONS.
3.3.1 LIMITATION TO EMPLOYEES. No incentive stock option shall
be granted under the Plan except to employees (including employees who are
officers) of the Company, any Subsidiary, or any parent.
3.3.2 LIMITATION ON AMOUNT. The aggregate Fair Market Value
(determined as of the date of grant) of Shares with respect to which incentive
stock options are exercisable for the first time by an optionee during any
calendar year (under the Plan and all such plans of the Company) shall not
exceed $100,000.
4. FAIR MARKET VALUE.
For purposes of the Plan, "Fair Market Value" of Shares of Common Stock
of the Company on any date shall mean that amount which the Administrator
determines in good faith to be the amount which a willing buyer would pay to an
equally willing seller to purchase such Shares subject to an option agreement on
such date.
5. THE STOCK.
The stock subject to any option granted under the Plan shall be shares of
the Company's authorized but unissued Common Stock. Subject to adjustment as set
forth in this Section 5, the total number of Shares which may be issued under
the Plan upon exercise of options or other rights to purchase Shares shall not
exceed 250,000 Shares; PROVIDED, HOWEVER, that if (a) any outstanding option
shall for any reason expire or terminate unexercised, or (b) any Shares issued
under the Plan are repurchased by the Company pursuant to the terms of the
option agreement or stock purchase agreement under which they were issued, then
such Shares shall again be available for issuance under the Plan. Each time any
of the events set forth in Section 6.8(a) or Section 6.8(b) of the Plan occurs,
the number of Shares purchasable under the Plan shall be adjusted in the same
manner as the number of Shares subject to any outstanding option would be
adjusted under the provisions of Section 6.8(c) of the Plan.
6. TERMS AND CONDITIONS OF OPTIONS.
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6.1 OPTION AGREEMENT. Each option granted under the Plan shall be
evidenced by an option agreement between the optionee and the Company in the
form from time to time adopted by the Administrator and containing such terms
and conditions which the Administrator deems appropriate; provided such terms
and conditions are not inconsistent with the Plan. The provisions of the
various option agreements entered into under the Plan need not be identical.
6.2 EXERCISE PRICE. Each option agreement shall state the price at
which the Shares subject to the option may be purchased (the "Exercise Price").
In the case of an incentive stock option, the Exercise Price shall not be less
than 100% of the Fair Market Value of such Shares on the date the option is
granted (as determined by the Administrator); PROVIDED, HOWEVER, that in the
case of an incentive stock option granted to a "Ten Percent Shareholder" (as
defined below), the Exercise Price shall not be less than 110% of the Fair
Market Value on the date the option is granted (as determined by the
Administrator). The exercise price of a non-statutory option shall be at the
price determined by the Administrator. For purposes of the Plan, "Ten Percent
Shareholder" means a person who, on the date of grant by the Administrator of an
option to that person owns, either directly or through attribution as provided
in Section 424(d) of the Code, capital stock of the Company possessing more than
10% of the total combined voting power of all classes of stock of his or her
employer corporation or of any Parent or Subsidiary.
6.3 NUMBER OF SHARES. Each option agreement shall state the number of
Shares which may be purchased upon exercise, and shall specify that the option
is an incentive stock option or a non-statutory stock option.
6.4 TERM OF OPTION. Each option agreement shall provide that the
option shall terminate at the expiration of the earliest of:
(a) that date selected by the Administrator, which shall be not
more than ten (10) years after the date the option is granted or, in the case of
an incentive option granted to a Ten Percent Shareholder, five (5) years after
the date the option is granted;
(b) thirty (30) days (one hundred eighty (180) days in the case
of a non-statutory stock option) after the date of termination of the optionee's
services to or employment with the Company, any Subsidiary or any Parent for any
reason other than those set forth in clauses (c), (d) or (e) below;
(c) one year after the date of termination of the optionee's
employment with the Company, any Subsidiary or any Parent as a result of the
permanent and total disability of the optionee;
(d) one year after the death of the optionee, provided that
such death occurs during the optionee's employment by the Company or within
thirty (30) days after termination of such employment other than for cause; and
(e) in the event that the optionee's employment is terminated
(i) voluntarily by the optionee, or (ii) for cause (of which the Administrator
shall be the sole judge), all of the optionee's unexercised options shall expire
as of the date of termination;
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PROVIDED, that the option agreement for any option may provide for shorter
periods in each of the foregoing instances if so determined by the
Administrator. For the purposes of Section 6.4(c), "permanent and total
disability" shall mean a disability of the type defined in Section 22(e)(3) of
the Code. An individual shall not be considered permanently disabled unless he
or she furnishes proof of the existence of such permanent disability in such
form and manner, and at such times, as the Administrator may require.
6.5 TRANSFER OF OPTION. Each option agreement shall provide that the
option shall not be transferable by the optionee otherwise than by will or the
laws of descent and distribution.
6.6 EXERCISE OF OPTION. Each option agreement shall provide that the
option shall not be exercisable during the lifetime of the optionee by any
person other than the optionee. Except as provided in Section 6.12 hereof, each
option granted pursuant to the Plan shall be exercisable, in whole or in part,
no earlier than six months from the date of grant of the option. At the
discretion of the Administrator, options may be exercisable in installments at a
rate of not less than 20% per year, in which case such installments (if more
than one) shall (to the extent not exercised) accumulate and be exercisable, in
whole or in part, in any subsequent installment period but in no event later
than the date of the termination of the option.
6.7 INVESTMENT PURPOSES. Unless and until the issuance and sale of
the Shares acquired by an optionee pursuant to the exercise of options granted
under the Plan are registered under the Act or any similar subsequent
legislation, each option agreement under the Plan shall provide that the
purchase of Shares pursuant to the option agreement shall be for investment
purposes, and not with a view to resale or distribution other than as permitted
under the Act. Each option agreement shall further provide that no Shares shall
be purchased or sold thereunder unless and until (a) any then applicable
requirements of state or federal laws and regulatory agencies shall have been
fully complied with to the satisfaction of the Company and its counsel, and (b)
if required to do so by the Company, the optionee shall have executed and
delivered to the Company a stock restriction agreement in such form and
containing such provisions as the Administrator may require.
6.8 STOCK SPLITS, ETC. Each option agreement shall provide that,
subject to any required action by the shareholders of the Company:
(a) If outstanding Shares shall be subdivided into a greater
number of Shares, or a dividend in Shares or other securities of the Company
convertible into or exchangeable for the Shares (in which latter event the
number of Shares issuable upon the conversion or exchange of such securities
shall be deemed to have been distributed) shall be paid in respect of the
Shares, the Exercise Price of any outstanding option in effect immediately prior
to such subdivision or at the record date of such dividend shall, simultaneously
with the effectiveness of such subdivision or immediately after the record date
of such dividend, be proportionately reduced, and conversely, if the outstanding
Shares shall be combined into a small number of Shares, the Exercise Price of
any outstanding option in effect immediately prior to such combination shall,
simultaneously with the effectiveness of such combination, be proportionately
increased.
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(b) In the event the Company at any time, or from time to time,
shall make or issue, or fix a record date for the determination of holders of
Shares entitled to receive, a dividend or other distribution payable in
securities of the Company other than Shares or securities convertible into or
exchangeable for Shares then and in each such event, provision shall be made so
that the holders of options shall receive upon exercise thereof, in addition to
the number of Shares receivable thereupon, the amount of securities of the
Company which they would have received had their option been exercised on the
date of such event and had thereafter, during the period from the date of such
event to and including the date of exercise, retained such securities receivable
by them as aforesaid during such period, giving application to all adjustments
called for during such period under this Section 6.8 with respect to the rights
of the holders of options.
(c) When any adjustment is required to be made in the Exercise
Price, the number of Shares purchasable upon the exercise of any outstanding
option shall be adjusted to that number of Shares determined by (i) multiplying
an amount equal to the number of Shares purchasable upon the exercise of the
option immediately prior to such adjustment by the Exercise Price in effect
immediately prior to such adjustment, and then (ii) dividing that product by the
Exercise Price in effect immediately after such adjustment.
(d) In the case of any capital reorganization, any
reclassification of the Shares (other than a change in par value or
recapitalization described in Section 6.8(a) or 6.8(b) hereof), or the
consolidation of the Company with, or a sale of substantially all of the assets
of the Company to (which sale is followed by a liquidation or dissolution of the
Company), or the merger of the Company with another person, except as provided
in Section 6.12 hereof, the holder of any outstanding option shall thereafter be
entitled upon exercise of the option to purchase the kind and number of Shares
or other securities or property of the surviving corporation receivable upon
such event by a holder of the number of Shares which such option entitles the
holder to purchase from the Company immediately prior to such event. In every
such case, appropriate adjustment shall be made in the application of the
provisions set forth in the option agreement and in the Plan with respect to the
rights and interests thereafter of the optionee, to the end that the provisions
set forth in the option agreement and in the Plan (including the specified
changes and other adjustments to the Exercise Price) shall thereafter be
applicable in relation to any Shares or other securities or property thereafter
purchasable upon exercise of such option.
(e) A dissolution or liquidation of the Company shall cause
each outstanding option to terminate; PROVIDED that each optionee shall have the
right exercisable during a 10-day period ending on the fifth day prior to such
dissolution or liquidation to exercise his or her option in whole or in part,
without regard to any installment provisions under his or her option agreement;
but any exercise of the option which except for the provisions of this Section
6.8(e) would not then be exercisable, shall be conditioned upon the actual
occurrence of such dissolution or liquidation, and if such dissolution or
liquidation does not occur, the optionee's exercise of the option during such
10-day period shall be null and void, and of no force and effect. For purposes
of this Section 6.8(e) and subject to the previous sentence, any exercise of
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the option by the optionee pursuant to this Section 6.8(e) shall be deemed to
occur immediately prior to the consummation of any such dissolution or
liquidation.
(f) To the extent that the foregoing adjustments relate to
stock or securities of the Company, such adjustments shall be made by the
Administrator, whose determination in that respect shall be final, binding and
conclusive.
(g) Except as expressly provided in this Section 6.8 or in
Section 6.12, no optionee shall have any rights by reason of any subdivision or
consolidation of shares of stock of any class or the payment of any stock
dividend or any other increase or decrease in the number of shares of stock of
any class, and the dissolution, liquidation, merger, consolidation or split-up
or sale of assets or stock to another corporation, or any issue by the Company
of shares of stock of any class, or securities convertible into shares of stock
of any class, shall not affect, and no adjustment by reason thereof shall be
made with respect to, the number of, or Exercise Price for, the shares.
(h) The grant of an option pursuant to the Plan shall not
affect in any way the rights or power of the Company to make adjustments,
reclassification, reorganizations or changes of its capital or business
structure or to merge, consolidate, dissolve or liquidate, or to sell or
transfer all or any part of its business or assets.
6.9 RIGHTS AS A SHAREHOLDER. Each option agreement shall provide that
no optionee or transferee of an option shall have any rights as a shareholder
with respect to any of the Shares subject to the option until the date of
issuance of a stock certificate for such Shares. No adjustment shall be made
for dividends (ordinary or extraordinary, whether in cash, securities or other
property) or distribution or other rights for which the record date is prior to
the date such stock certificate is issued, except as provided in Section 6.8
above.
6.10 RESTRICTIONS ON TRANSFERS OF SHARES. Each option agreement may
contain such restrictions on transfer of Shares obtained pursuant to the
exercise of options as the Administrator may determine including without
limitation, rights of repurchase and rights of refusal.
6.11 MODIFICATION, EXTENSION AND RENEWAL OF OPTION. Subject to the
terms and conditions and within the limitations of the Plan and the Code, the
Administrator may modify (including a modification of the Exercise Price) extend
or renew outstanding options granted under the Plan, or accept the surrender of
outstanding options (to the extent not previously exercised) and authorize the
granting of new options in substitution therefor (to the extent not previously
exercised). However, no modification of an option shall be made without the
consent of the optionee which would alter or impair any rights of the optionee
under the option.
6.12 ACCELERATION.
(a) A "Change in Control" for purposes of this Plan shall mean
(i) a single entity or group of affiliated entities acquires more than 50% of
the stock of the Company issued
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and outstanding immediately prior to such acquisition; or (ii) shareholders
approve the consummation of any merger of the Company or any sale or other
disposition of all or substantially all of its assets, if the shareholders of
the Company immediately before such transaction own, immediately after
consummation of such transaction, equity securities (other than options and
other rights to acquire equity securities) possessing less than 50% of the
voting power of the surviving or acquiring corporation.
(b) If a Change in Control has occurred or if the Board of
Directors determines in good faith that a Change in Control is about to occur,
the Board of Directors may determine that it is necessary or desirable to
accelerate the options granted hereunder. Upon such determination, all
outstanding options will be immediately exercisable by the holder of the option
for the total remaining number of Shares covered by the option. Such option may
then be exercised by its respective holder at any time within a period of 30
calendar days following the date on which the Board of Directors determines that
it is necessary or desirable to accelerate the options.
(c) Any options subject to acceleration under this Section that
are not exercised during the period of 30 days provided in subsection (b) above
shall be treated as if no Change in Control had occurred and shall be governed
by their original terms. Nevertheless, by a notice to that effect which is
communicated in any reasonable manner to as many of the holders of options as is
feasible and which is communicated before the last day of the 30 day period
created by subsection (b) above, the Board of Directors may provide that any
options accelerated pursuant to this Section 6.12 shall expire at midnight upon
the last day of the 30 day period provided by subsection (b).
7. PAYMENT FOR SHARES.
7.1 GENERAL RULE. The Exercise Price for any Shares purchased under
the Plan shall be payable in cash, by check or, at the discretion of the
Administrator, with Shares which are already owned by the optionee and which are
surrendered to the Company in good form for transfer. Such Shares shall be
valued at their Fair Market Value on the date when the new Shares are purchased
under the Plan.
7.2 PROMISSORY NOTE. The Administrator in its sole discretion may
specify in any option agreement entered into hereunder that payment may be made
with a full recourse promissory note executed by the optionee or offeree. Such
note shall bear interest at the rate specified in the option agreement for a
term of no more than five years with interest only payable during the term.
Subject to the foregoing, the Administrator in its sole discretion shall specify
the term, interest rate and other provisions of the note. The Administrator may
require that the offeree or optionee pledge his Shares to the Company for the
purpose of securing payment for the note, and the Administrator may require that
the certificate(s) representing such Shares be held by the Company as a security
holder in order to perfect the Company's security interest.
7.3 WITHHOLDING.
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7.3.1 GENERALLY. Notwithstanding the provisions of Sections 7.1
and 7.2 hereof, whenever under any agreement evidencing options, shares or any
monetary amount are issued to any grantee, the Company shall be entitled to
require as a condition of delivery that the grantee agree to remit, at the time
of such delivery or at such later date as the Company may determine, an amount
sufficient to satisfy all federal, state and local withholding tax requirements
relating thereto.
7.3.2 WITHHOLDING OF SHARES. With the consent of the
Administrator, and in accordance with any rules and procedures from time to time
adopted by the Administrator, a grantee may elect to satisfy by (i) directing
the Company to withhold a portion of the Shares otherwise deliverable or (ii)
tendering to the Company other Shares which are already owned by such grantee or
purchaser, which, in all cases, have a Fair Market Value on the date as of which
the amount of tax to be withhold is determined (the "Tax Date") equal to the
amount of tax to be paid with respect to such Shares.
7.3.3 FORM OF ELECTION. Any election made pursuant to Paragraph
7.3.2 above must:
(i) be made in writing on or prior to the Tax
Date and specify whether all or a stated percentage of the applicable taxes will
be paid with Shares and whether the amounts so paid shall be made in accordance
with the "flat" withholding rates for supplemental wages or as determined in
accordance with the grantee's Form W-4 (or comparable state or local forms);
(ii) be irrevocable once made; and
(iii) conform in all respects to all rules and
procedures from time to time adopted by the Administrator and be subject to
rejection by the Administrator for any reason.
8. TERM OF THE PLAN.
Unless sooner terminated by the Board in its sole discretion, the Plan
shall expire on April 10, 2006.
9. AMENDMENTS TO THE PLAN.
The Plan may be amended from time to time by the Board; PROVIDED that any
amendment which (a) increases the number of Shares which may be issued under the
Plan, (b) materially increases the benefits accruing to persons eligible to
purchase Shares under the Plan or (c) materially modifies the requirements for
eligibility for purchasing Shares under the Plan, shall not become effective
unless and until approved by the shareholders of the Company.
The Company intends that the Plan shall comply with the requirements of
Section 422 of the Code with respect to incentive stock options issued under the
Plan. Should any provisions of
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the Plan not be necessary to comply with the Code requirements or should any
additional provisions be necessary for the Plan to comply with the Code
requirements, the Board may amend the Plan to add or modify the provisions of
the Plan accordingly without the necessity of shareholder approval.
10. EFFECTIVE DATE; SHAREHOLDER APPROVAL.
This Plan shall be effective as of the date it has been adopted by the
Board of Directors of the Company; however, no Shares may be sold under the Plan
unless and until shareholder approval of the Plan shall have been obtained.
Options may be granted prior to obtaining shareholder approval; PROVIDED that
each option agreement shall provide that the option may not be exercised unless
such approval is obtained prior to April 10, 1997.
11. ASSUMPTION.
The terms and conditions of any outstanding options granted pursuant to
this Plan shall be assumed by, be binding upon and inure to the benefit of any
successor corporation to the Company and shall continue to be governed by, to
the extent applicable, the terms and conditions of this Plan.
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AMENDMENT NO. 1
TO
ATLAS COMMUNICATIONS ENGINES, INC.
1996 STOCK INCENTIVE PLAN
THIS AMENDMENT NO. 1 (the "Amendment") to the ATLAS COMMUNICATIONS,
INC., 1996 STOCK INCENTIVE PLAN (the "Plan") was approved effective June 24,
1999, by the Board of Directors and Shareholders of ATLAS COMMUNICATIONS, INC.,
a California corporation (the "Company").
RECITALS
A. The Plan, which was adopted by the Board of Directors and
Shareholders of the Company on May 13, 1996, originally provided that the
Company may grant options to issue up to 250,000 shares of the Corporation's
common stock.
B. On January 9, 1998, the Corporation's Articles of Incorporation were
amended to increase the authorized shares to 100,000,000, and to effect a 4:1
stock split of the outstanding shares. Pursuant to Section 5 of the Plan, the
total number of shares reserved for issuance under the Plan was simultaneously
increased (by the same 4:1 ratio) to 1,000,000 shares.
B. The Company desires to increase the total number of shares reserved
under the Plan to 1,400,000 shares, by amending Section 5 of the Plan.
AMENDMENT
NOW, THEREFORE, Section 5 of the Plan is amended to read in its
entirety as follows:
"5. THE STOCK.
The stock subject to any option granted under the Plan shall
be shares of the Company's authorized but unissued Common Stock.
Subject to adjustment as set forth in this Section 5, the total number
of Shares which may be issued under the Plan upon exercise of options
or other rights to purchase Shares shall not exceed 1,400,000 Shares;
PROVIDED, HOWEVER, that if (a) any outstanding option shall for any
reason expire or terminate unexercised, or (b) any Shares issued under
the Plan are repurchased by the Company pursuant to the terms of the
option agreement or stock purchase agreement under which they were
issued, then such Shares shall again be available for issuance under
the Plan. Each time any of the events set forth in Section 6.8(a) or
Section 6.8(b) of the Plan occurs, the number of Shares purchaseable
under the Plan shall be adjusted in the same manner as the number of
Shares subject to any outstanding option would be adjusted under the
provisions of Section 6.8(c) of the Plan."
Except as set forth above, the Plan shall continue in full force and
effect.
<PAGE>
EXHIBIT 5.1
December 22, 1999
Polycom, Inc.
2584 Junction Avenue
San Jose, CA 95134
RE: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 (the
"REGISTRATION STATEMENT") to be filed by Polycom, Inc., a Delaware corporation
(the "REGISTRANT" or "YOU"), with the Securities and Exchange Commission on or
about the date hereof, in connection with the registration under the Securities
Act of 1933, as amended, of an aggregate of 476,817 shares of your Common Stock,
$.0005 par value (the "SHARES"), reserved for issuance pursuant to the Atlas
Communication Engines, Inc. 1996 Stock Incentive Plan (the "PLAN"). As your
legal counsel, we have reviewed the actions proposed to be taken by you in
connection with the proposed sale and issuance of the Shares by the Registrant
under the Plan. We assume that the consideration received by you in connection
with each issuance of Shares will include an amount in the form of cash,
services rendered or property that exceeds the greater of (i) the aggregate par
value of such Shares or (ii) the portion of such consideration determined by the
Company's Board of Directors to be "capital" for purposes of the Delaware
General Corporation Law. We also assume that each issuance of Shares will be
made in accordance with the terms of the Plan.
It is our opinion that, upon completion of the actions being taken, or
contemplated by us as your counsel to be taken by you prior to the issuance of
the Shares pursuant to the Registration Statement and the Plan, and upon
completion of the actions being taken in order to permit such transactions to be
carried out in accordance with the securities laws of the various states where
required, the Shares will be legally and validly issued, fully paid and
nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement, and further consent to the use of our name wherever appearing in the
Registration Statement and any amendments thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ Wilson Sonsini Goodrich & Rosati, P.C.
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement on
Form S-8 of Polycom, Inc. to be filed with the Securities and Exchange
Commission on December 21, 1999 pertaining to the Atlas Communication
Engines, Inc. 1996 Stock Incentive Plan of our report dated January 20, 1999,
with respect to the financial statements of Polycom, Inc. incorporated by
reference in its Annual Report on Form 10-K for the year ended December 31,
1998 filed with the Securities and Exchange Commission.
We also consent to the incorporation by reference therein of our report dated
January 20, 1999, with respect to the financial statement schedule of Polycom,
Inc. for the year ended December 31, 1998 included in its Annual Report on Form
10-K for the year ended December 31, 1998 filed with the Securities and Exchange
Commission.
PRICEWATERHOUSECOOPERS LLP
/s/ PricewaterhouseCoopers LLC
San Jose, California
December 21, 1999
