<PAGE> 1
As filed with the Securities and Exchange Commission on August 31, 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)
FOREIGN SUBSIDIARY EMPLOYEE STOCK PURCHASE 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 $.01 500,000 shares $ 5.625 $2,812,500 $781.88
===================================================================================================
</TABLE>
(1) ESTIMATED SOLELY FOR THE PURPOSE OF CALCULATING THE REGISTRATION FEE
PURSUANT TO RULE 457(h) ON THE BASIS OF THE HIGH AND LOW PRICES OF
PICTURETEL CORPORATION COMMON STOCK, PAR VALUE $.01, REPORTED ON THE
NATIONAL ASSOCIATION OF SECURITIES DEALERS, INC. AUTOMATED QUOTATIONS
NATIONAL MARKET SYSTEM ON AUGUST 25, 1999.
EXHIBIT INDEX ON PAGE II-6
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 Annual Report on Form 10-K for the fiscal
year ended December 31, 1998, as filed with the Securities and
Exchange Commission (the "Commission") on March 31, 1999,
pursuant to Section 13 under the Securities Exchange Act of
1934, as amended (the "Exchange Act.")
(b) Quarterly Reports on Form 10-Q for the quarters ended April 4,
1999 and July 4, 1999, as filed with the Commission pursuant
to Section 13 under the Exchange Act, on May 19, 1999 and
August 18, 1999, respectively.
(c) Current Report on Form 8-K, as filed with the Commission
pursuant to Section 13 under the Exchange Act, on January 25,
1999.
(d) 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
II-1
<PAGE> 3
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 is 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
<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. Foreign Subsidiary Employee Stock Purchase 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:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the
Registration Statement (or the most recent
post-effective amendment thereof) which,
individually or in the aggregate, represent a
fundamental change in the information set forth
in the Registration Statement;
(iii) 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 this
Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii)
above shall not apply if the information required to be
included in a post-effective amendment by those paragraphs
is contained in periodic reports filed with or furnished to
the Securities and Exchange Commission by the Registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference in this Registration
Statement.
(2) That, for the purposes of determining any liability
under the Securities Act, each such post-effective amendment
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.
(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.
II-3
<PAGE> 5
(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 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
<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 31st day of August, 1999.
PICTURETEL CORPORATION
By: /s/ Arthur L. Fatum
-------------------------------------------
Name: Arthur L. Fatum
Title: Vice President and Chief Financial
Officer (Principal Financial Officer
and Principal Accounting Officer)
POWER OF ATTORNEY
Dated: August 31, 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.
<TABLE>
<CAPTION>
Signature Capacity in Which Signed Date
- --------- ------------------------ ----
<C> <C> <C>
/s/ Bruce R. Bond Chairman of the Board, August 31, 1999
- ------------------------ President and Chief Executive
Bruce R. Bond Officer (Principal Executive
Officer)
/s/ Arthur L. Fatum Vice President and Chief August 31, 1999
- ------------------------ Financial Officer (Principal
Arthur L. Fatum Financial Officer and Principal
Accounting Officer)
/s/ Norman E. Gaut Director August 31, 1999
- ------------------------
Norman E. Gaut
/s/ David B. Levi Director August 31, 1999
- ------------------------
David B. Levi
/s/ Robert T. Knight Director August 31, 1999
- ------------------------
Robert T. Knight
Director
- ------------------------
Enzo Torresi
</TABLE>
II-5
<PAGE> 7
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 Foreign Subsidiary Employee Stock Purchase 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
<PAGE> 1
[ROPES & GRAY LETTERHEAD]
August 31, 1999
Picturetel Corporation
100 Minutemen Road
Andover, MA 01810
Ladies and Gentlemen:
This opinion is being furnished to you in connection with a
registration statement on Form S-8 (the "Registration Statement") to be filed
with the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended, for the registration of 500,000 shares of
Common Stock, $0.01 par value per share (the "Shares"), of PictureTel
Corporation, a Delaware corporation (the "Company").
We have acted as counsel to the Company and are familiar with the
actions taken by the Company in connection with the Company's Foreign Subsidiary
Employee Stock Purchase Plan (the "Plan"). For purposes of this opinion we have
examined the Plan and such other documents as we deemed appropriate.
Based upon 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 and the votes of the Board of Directors of the Company, they will be
validly issued, fully paid and nonassessable.
We hereby consent to your filing this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Ropes & Gray
Ropes & Gray
<PAGE> 1
PICTURETEL CORPORATION
FOREIGN SUBSIDIARY EMPLOYEE STOCK PURCHASE PLAN
1. PURPOSE
The PictureTel Corporation Foreign Subsidiary Employee Stock Purchase Plan
(the "Foreign Plan") is designed to encourage and assist employees of such
foreign subsidiaries of PictureTel Corporation (the "Company") as the Company's
Board of Directors (the "Board") may from time to time designate ("Participating
Subsidiary") to acquire an equity interest in the Company through the purchase
of shares of Common Stock, $.0l par value, of the Company ("Common Stock").
2. ADMINISTRATION OF THE FOREIGN PLAN
The Foreign Plan shall be administered by a committee (the "Committee") of
the Board designated by the Board for that purpose. Unless and until a Committee
is appointed, the Foreign Plan shall be administered by the Board, in which case
all references herein to the "Committee" shall be deemed to be references to the
"Board". The Committee shall supervise the administration and enforcement of the
Foreign Plan according to its terms and provisions and shall have all powers
necessary to accomplish these purposes and discharge its duties hereunder
including, without limitation, the power to (i) employ and compensate agents of
the Committee for the purpose of administering the accounts of participating
employees, (ii) construe or interpret the Foreign Plan, (iii) determine all
questions of eligibility and (iv) compute the amount and determine the manner
and time of payment of all benefits according to the Foreign Plan. The
Committee's determinations hereunder shall be final and binding.
If the Committee in its discretion so elects, it may retain a brokerage
firm, bank, or other institution to assist in the purchase of shares, delivery
of reports, or other administrative aspects of this Foreign Plan. If the
Committee so elects, each Participant shall (unless prohibited by the laws of
the jurisdiction of such Participant's employment or residence) be deemed upon
enrollment in this Foreign Plan to have authorized the establishment of an
account on such Participant's behalf at such institution. Shares purchased by
the Participant under this Foreign Plan shall be held in the account in the name
in which the shares certificate would otherwise be issued.
3. NATURE AND NUMBER OF SHARES TO BE DELIVERED
The Common Stock subject to issuance under the terms of the Foreign Plan
shall be authorized but unissued shares or previously issued shares reacquired
and held by the Company. The aggregate number of shares that may be delivered
under the Foreign Plan shall not exceed 500,000 shares of Common Stock, subject
to adjustment under this Section.
In the event of any reorganization, recapitalization, stock split, reverse
stock split, stock dividend, combination of shares, merger, consolidation, or
other similar change in the capital structure of the Company, the Committee may
make such adjustment, if any, as it deems appropriate in the number, kind and
purchase price of the shares available for purchase under the Foreign Plan and
in the maximum number of shares which may be issued under the Foreign Plan,
subject to the approval of the Board.
<PAGE> 2
4. ELIGIBILITY REQUIREMENTS
Each employee of a Participating Subsidiary, except those employees
described in paragraphs (i) through (iv) below, shall be eligible to participate
in the Foreign Plan pursuant to Section 5. ("Eligible Employee").
The following employees are not eligible to participate in the Foreign Plan:
(i) Employees who, immediately upon enrollment in the Foreign Plan,
own directly or indirectly, or hold options or rights to acquire, an
aggregate of 5% or more of the total combined voting power or value of all
outstanding shares of all classes of the Company or any Subsidiary;
(ii) Employees who have not completed at least 6 months of service
with the Participating Subsidiary as of an Enrollment Date; and
(iii)Employees who are prohibited by the laws of the jurisdiction of
their residence or employment from participation herein.
(iv) Employees who are employed by a corporation as to which the Board
does not take action within ninety (90) days after such corporation becomes
a subsidiary of the Company to include such corporation as a Participating
Subsidiary.
5. PARTICIPATION PROCESS
Each employee who will be an Eligible Employee on the first day of an
Option Period may voluntarily elect to participate in the Foreign Plan by
executing and delivering a payroll deduction authorization in accordance with
Section 6.1. Upon such election, the Eligible Employee will be deemed to be a
participant ("Participant") on the first day of such Option Period and will
remain a Participant until his or her participation is terminated as provided in
the Foreign Plan. For purposes of the Foreign Plan, an "Option Period" is
defined as any of the six month periods beginning September 1, 1999 or any March
1 or September 1 thereafter.
6. ENROLLMENT AND WITHDRAWAL
6.1 ENROLLMENT. Each Eligible Employee may enroll or re-enroll in the
Foreign Plan, as the case may be, as of the first day of any Option Period after
the employee first becomes eligible to participate (the "Enrollment Date"). To
enroll or re-enroll, an Eligible Employee must complete and sign an enrollment
form and submit it to the Human Resources Department of the Participating
Subsidiary at least fifteen (15) days prior to the Enrollment Date with respect
to which the election is effective. Participation in the Foreign Plan is
voluntary.
6.2 WITHDRAWAL. Any Participant may cancel all (BUT NOT LESS THAN ALL) of
his or her Options at any time prior to the exercise thereof by notifying the
Human Resources Department of the Participating Subsidiary in writing at any
time prior to the Purchase Date (as such term is defined in Section 9 herein),
except that such notification will be effective no later than the close of the
first complete pay period following receipt by the Human Resources Department of
the Participating Subsidiary (or such other period established in writing by the
Company's Corporate Human Resources Department). It shall be the responsibility
of the Participant to ensure that any such notification is actually received by
the Human Resources Department of the Participating Subsidiary. Upon the
effective date of any such cancellation, the entire amount credited to the
Participant's account in accordance with Section 7 will be returned to the
Participant without interest. Any Participant who cancels an Option may at any
time thereafter become a Participant with respect to future Option Periods, in
accordance with Section 6.1.
<PAGE> 3
7. METHOD OF PAYMENT
7.1 PAYROLL WITHHOLDING. Payment for shares is to be made in installments
through payroll deductions over the Option Period, with the first such deduction
commencing with the first payroll period ending after the Enrollment Date.
Subject to the limits in Section 8, each Participant may authorize
withholding in each pay period in an amount NOT LESS THAN ONE PERCENT (1%) AND
NOT MORE THAN TEN PERCENT (10%) of his or her Compensation by means of
substantially equal payroll deductions over the Option Period; provided that the
Committee may from time to time before an Enrollment Date, establish limits
other than those herein described for all purchases to occur during the relevant
Option Period. FOR PURPOSES OF THE FOREIGN PLAN, "COMPENSATION" WILL MEAN ALL
REGULAR BASE SALARY PAYMENTS MADE TO THE PARTICIPANT BY THE PARTICIPATING
SUBSIDIARY.
A Participant may increase or decrease the rate of withholding effective as
of the first day of any future Option Period by giving fifteen (15) days prior
written notice to the Human Resources Department of the Participating
Subsidiary. A Participant may terminate his or her payroll deduction
authorization as of any date before the Purchase Date by notifying the Human
Resources Department of the Participating Subsidiary in writing, and such
Participant will thereby cease to participate in the Foreign Plan as of that
date and will be deemed to have canceled his or her Option pursuant to
Section 6.2.
7.2 ACCOUNTS. All amounts withheld under Section 7.1 in accordance with a
Participant's payroll deduction authorization will be credited in local currency
to an account maintained for such Participant. The Company and the Participating
Subsidiary shall be entitled to use the withholdings for any purpose, shall have
no obligation to pay interest on amounts credited to a Participant's account,
and shall not be obligated to segregate withholdings.
7.3 LIMIT ON PURCHASE. In no event shall the rights of any Participant to
purchase shares (under this Foreign Plan and under any other Stock Purchase
Plans of the Company or any Subsidiary), accrue at a rate which exceeds $25,000
U.S. of fair market value of such shares (determined as of the applicable Grant
Date, as defined in Section 9) in any calendar year.
8. GRANT OF RIGHT TO PURCHASE SHARES
Each person who is a Participant on the first day of an Option Period will
be granted an Option for such Option Period for the purchase of the number of
whole shares of Common Stock as determined by dividing (i) the balance in the
Participant's local currency withholding account converted to U.S. dollars on
the last day of the Option Period, by (ii) the U.S. dollar purchase price per
share of the Common Stock determined under Section 9. The Grant Date and the
Purchase Date (as such terms are defined in Section 9) shall constitute the date
of grant and the date of exercise, respectively.
9. PURCHASE OF SHARES
Each Eligible Employee who is a Participant in the Foreign Plan on the last
trading day of an Option Period and who has not cancelled his or her option will
be deemed to have exercised on that day the Option granted to him or her for
that Option Period. Upon exercise, the local currency amounts then credited to
the Participant's account will be converted to U.S. dollars and used to purchase
the whole shares of Common Stock determined in accordance with Section 8, and as
soon as practicable thereafter certificates for such shares will be issued and
delivered to the Participant's account established pursuant to Section 2, above
(unless prohibited by the laws of the jurisdiction of such Participant's
employment or residence). Fractional shares will not be issued. The cost to the
Participant for the shares purchased shall be 85% of the lower of (i) the fair
market value of Common Stock on the first trading day of the respective Option
Period (the "Grant Date"), or (ii) the fair market value of Common Stock on the
last trading day of the respective Option Period (the "Purchase Date").
<PAGE> 4
Fair market value on any date shall mean the average of the high and low
sale prices (or the bid and asked prices if no sales are reported) with respect
to the Common Stock for that date, as reported by the principal exchange on
which the Common Stock is traded or by the National Association of Securities
Dealers, Inc. Automated Quotations System or such other similar system then in
use; or, if on any such date the Common Stock is not quoted by any such
organization, the average of the closing bid and asked prices with respect to
the Common Stock, as furnished by a professional market maker making a market in
the Common Stock selected by the Board and if not available, the fair market
value of the Common Stock as of such day as determined in good faith by the
Board. A good faith determination by the Board of Directors as to fair market
value shall be final and binding.
The balance of the Participant's withholding account, if any, following
exercise shall be returned to the Participant without interest; PROVIDED,
HOWEVER, that if the balance left in the account consists solely of an amount
equal to the value of a fractional share, such fractional-share amount will be
retained in the withholding account and carried over to the next Option Period.
The entire balance of the Participant's-withholding account following the final
Option Period shall be returned to the Participant without interest.
10. TERMINATION OF EMPLOYMENT
Subject to Section 11, upon termination of a Participant's employment with
the Participating Subsidiary for any reason, the individual will (a) cease to be
a Participant, (b) forfeit any Option held under the Foreign Plan (and all such
options will be deemed canceled), (c) be entitled to a return of the balance of
his or her withholding account without interest, and (d) have no further rights
under the Foreign Plan.
11. DEATH OF A PARTICIPANT
A Participant may file a written designation of beneficiary on the
Participant's enrollment form, specifying who is to receive any Common Stock and
/ or cash credited to the Participant under the Foreign Plan in the event of the
Participant's death, which designation will also provide for the election by the
Participant of either (i) cancellation of the Participant's Option upon his or
her death, as provided in Section 6.2 or (ii) application as of the last day of
the Option Period of the balance of the deceased Participant's withholding
account at the time of death to the exercise of his or her Option, pursuant to
Section 9 of the Foreign Plan. In the absence of a valid election otherwise, the
death of a Participant will be deemed to effect a cancellation of his or her
Option. A designation of beneficiary and election may be changed by the
Participant at any time, by written notice to the Human Resources Department of
the Participating Subsidiary.
In the event of the death of a Participant and receipt by the Human
Resources Department of the Participating Subsidiary of proof of the identity
and existence at the Participant's death of a beneficiary validly designated by
him or her under the Foreign Plan, the Company will deliver to such beneficiary
any Common Stock and / or cash to which the beneficiary is entitled under the
Foreign Plan. In the event of the death of a Participant and in the absence of a
beneficiary validly designated under the Foreign Plan who is living at the time
of such Participant's death, the Company will deliver such Common Stock and / or
cash to the executor or administrator of the estate of the Participant, if the
Company is able to identify such executor or administrator. If the Company is
unable to identify such administrator or executor, the Company, in its
discretion, may deliver such stock and / or cash to the spouse or to any one or
more dependents of a Participant as the Company may determine. No beneficiary
will, prior to the death of the Participant by whom he has been designated,
acquire any interest in any Common Stock or cash credited to the Participant
under the Foreign Plan.
<PAGE> 5
12. ASSIGNMENT
The rights of a Participant under the Foreign Plan may not be sold,
pledged, assigned or transferred in any manner. If this provision is violated,
the Participant's election to purchase Common Stock shall terminate and the only
obligation of the Company remaining under the Foreign Plan will be to pay to the
person entitled thereto the amount then credited to his or her account. No
Participant may create a lien on any funds, securities, rights or other property
held for the account of the Participant under the Foreign Plan, except to the
extent that there has been a designation of beneficiaries in accordance with the
Foreign Plan. A Participant's right to purchase shares under the Foreign Plan
shall be exercisable during the Participant's lifetime only by the Participant.
13. COSTS
All costs and expenses incurred in administering the Foreign Plan shall be
paid by the Company; except that any stamp duties or transfer taxes applicable
to participation in the Foreign Plan may be charged to the account of such
Participant. Any brokerage fees for the resale of the Common Stock by a
Participant shall be borne by the Participant.
14. REPORTS
Annually, the Company shall provide or cause to be provided to each
Participant a report of his or her contributions and the shares of Common Stock
purchased with such contributions by that Participant on each Purchase Date.
15. RIGHTS AS STOCKHOLDER
A Participant will have no rights as a stockholder under the election to
purchase until he becomes a stockholder as herein provided. A Participant will
become a stockholder with respect to shares for which payment has been completed
as provided in Section 9 at the close of business on the last business day of
the Option Period.
16. MODIFICATION AND TERMINATION
The Board may terminate the Foreign Plan at any time, provided however, the
Plan will in any event automatically terminate ten years from the date the
shareholders approve the Foreign Plan. The Board may amend the Foreign Plan at
any time for any purpose permitted by law, provided that no amendment shall be
effective unless within one year after it is adopted by the Board it is approved
by the holders of a majority of the outstanding shares present and entitled to
vote on the matter, if such amendment would:
(i) increase the number of shares reserved for purchase under the
Plan;
(ii) change the designation of corporations whose employees may be
offered rights to purchase shares under the Plan; provided, that a
corporation's becoming or ceasing to be a Subsidiary, or the exercise by
the Committee of its discretion under Section 4(iv), shall not be deemed a
change in designation under this paragraph ;
(iii) materially increase the benefits to Participants;
(iv) materially modify the requirements for participation; or
In the event the Foreign Plan is terminated, the Committee may elect to
terminate all outstanding rights to purchase shares under the Foreign Plan
either immediately or upon completion of the purchase of shares on the next
Purchase Date, unless the Committee has determined that the right to make all
such
<PAGE> 6
purchases shall expire on some other designated date occurring prior to the next
Purchase Date. If the rights to purchase shares under the Foreign Plan are
terminated prior to expiration, all funds contributed to the Foreign Plan that
have not been used to purchase shares shall be returned to the Participants
without interest.
If at any time the number of shares of Common Stock authorized for purchase
under the Foreign Plan is less than the purchases to be made, the purchases
shall be reduced proportionately to eliminate the excess.
17. BOARD APPROVAL; EFFECTIVE DATE
This Foreign Plan was adopted by the Board on March 3, 1999 and shall be
effective as of the date the shareholders approve the Foreign Plan
18. CONDITIONS ON THE DELIVERY OF COMMON STOCK
Neither the Company nor any Participating Subsidiary will be obligated to
deliver any shares of Common Stock pursuant to the Foreign Plan or to remove
restrictions from shares previously delivered under the Foreign Plan (a) until,
in the opinion of the Company's counsel, all applicable federal and state laws
and regulations have been complied with, and all applicable local laws in any
jurisdiction outside the United States have been complied with, (b) if the
outstanding Common Stock is at the time listed on any stock exchange, until the
shares to be delivered have been listed or authorized to be listed on such
exchange upon official notice of notice of issuance, and (c) until all other
legal matters in connection with the issuance and delivery of such shares have
been approved by the Company's counsel. If the sale of Common Stock has not been
registered under the Securities Act of 1933, as amended, or under the securities
laws of any other jurisdiction, the Company may require, as a condition to the
delivery of Common Stock under the Foreign Plan, such representations or
agreements as counsel for the Company may consider appropriate to avoid
violation of the Securities Act of 1933, as amended, or laws of jurisdictions
outside the United States and may require that the certificates evidencing such
Common Stock bear an appropriate legend restricting transfer.
19. OTHER PROVISIONS
The agreements to purchase shares of Common Stock under the Foreign Plan
may contain such other provisions as the Committee shall deem advisable,
provided that no such provision shall in any way be in conflict with the terms
of the Foreign Plan.
20. EMPLOYMENT RIGHTS
Nothing contained in the provisions of the Foreign Plan shall be construed
to give to any individual the right to be retained in the employ of the Company
or any Subsidiary or to interfere with the right of the Company or any
Subsidiary to discharge any employee at any time.
21. APPLICABLE LAW.
This Foreign Plan shall governed by and construed in accordance with the
substantive laws (excluding the conflict of laws rules) of the Commonwealth of
Massachusetts.
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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 dated February 12, 1999 relating to the
financial statements, which appears in the 1998 Annual Report to Shareholders of
PictureTel Corporation, which is incorporated by reference in PictureTel
Corporation's Annual Report on Form 10-K for the year ended December 31, 1998.
We also consent to the incorporation by reference of our report dated February
12, 1999 relating to the financial statement schedule, which appears in such
Annual Report on Form 10-K.
/s/ PRICEWATERHOUSECOOPERS LLP
Boston, Massachusetts
August 31, 1999
