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As filed with the Securities and Exchange Commission on March 17, 1999
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)
BRUCE BOND STOCK OPTION 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 1,500,000 shares $ 6.937 $10,405,500 $2,893
</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 MAXIMUM AGGREGATE OFFERING PRICE HAVE BEEN
DETERMINED PURSUANT TO RULE 457(h) OF THE SECURITIES ACT OF 1933, AS
AMENDED.
EXHIBIT INDEX ON PAGE II-6
Page 1 of 6 Pages
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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 Reports on Form 10-Q for the quarters ended June 30,
1998 and September 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 and
November 12, 1998, respectively.
(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 in the right of the
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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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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. Bruce Bond Stock Option Plan (Incorporated by Reference to
Exhibit 10.3 of the Registrant's Quarterly Report on Form 10-Q
for the quarter ended March 29, 1998).
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, suit or
proceeding) is asserted by such
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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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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 24th day of January, 1999.
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: January 24, 1999
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, January 24 , 1999
Bruce R. Bond President and Chief Executive
Officer (Principal Executive
Officer)
/s/ Arthur L. Fatum
- -------------------- Vice President and Chief January 24, 1999
Arthur L. Fatum Financial Officer (Principal
Financial Officer and Principal
Accounting Officer)
/s/ Norman E. Gaut
- --------------------- Director January 24, 1999
Norman E. Gaut
/s/ David B. Levi
- --------------------- Director January 24, 1999
David B. Levi
/s/ Robert T. Knight
- --------------------- Director January 24, 1999
Robert T. Knight
/s/ Enzo Torresi
- -------------------- Director January 24, 1999
Enzo Torresi
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EXHIBIT INDEX
Number Title of 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 Bruce Bond Stock Option Plan (Incorporated by
Reference to Exhibit 10.3 of the Registrant's
Quarterly Report on Form 10-Q for the quarter
ended March 29, 1998).
23.1. Consent of Ropes & Gray (See Exhibit 5).
23.2. Consent of PricewaterhouseCoopers LLP.
24. Power of Attorney (Included on Signature Page).
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[LETTERHEAD ROPES & GRAY]
March 12, 1999
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 1,500,000 shares of Common Stock, par value $.01 per share
(together with any shares that may be issued in connection with any stock split,
stock dividend, or similar event, the "Shares"), of PictureTel Corporation, a
Delaware corporation (the "Company"), under the Bruce Bond Stock Option 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 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 Common Stock of the
Company previously outstanding, will not exceed the authorized number of shares
of Common Stock specified in the Certificate of Incorporation of the Company as
then in effect and (iii) prior to issuance, the Shares will have been approved
for listing on the Nasdaq National Stock Market.
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.
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PictureTel Corporation -2- March 12, 1999
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
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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 years 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.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Boston, Massachusetts
March 15, 1999
