<PAGE> 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
<TABLE>
<CAPTION>
====================================================================================================================
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
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
Par Value $.01 177,382 shares $7.25 $1,286,020 $358.00
====================================================================================================================
</TABLE>
(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.
<PAGE> 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
<PAGE> 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.
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<PAGE> 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
<PAGE> 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.
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<PAGE> 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.
<TABLE>
<CAPTION>
Signature Capacity In Which Signed Date
- --------- ------------------------ ------
<S> <C> <C>
/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)
</TABLE>
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<PAGE> 7
EXHIBIT INDEX
<TABLE>
<CAPTION>
Number Title of Exhibit
- ------ ----------------
<S> <C>
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).
</TABLE>
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<PAGE> 1
<TABLE>
<S> <C> <C>
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
</TABLE>
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.
<PAGE> 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
<PAGE> 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
<PAGE> 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.
<PAGE> 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
