<PAGE> 1
As filed with the Securities and Exchange Commission on February 18, 2000
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)
ARTHUR L. FATUM NON-STATUTORY STOCK OPTION AGREEMENT
----------------------------------------------------
(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)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
====================================================================================================================
Title Of Securities Amount Proposed Maximum Proposed Maximum Amount Of
To Be To Be Offering Price Per Aggregate Offering Registration
Registered Registered Share Price Fee
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
Par Value $.01 125,000 shares $ 7.219 $902,375 $250.90
====================================================================================================================
</TABLE>
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, July 4, 1999, and October 3, 1999, as filed with the
Commission pursuant to Section 13 under the Exchange Act, on
May 19, 1999, August 18, 1999, and November 16, 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 corporation to procure a judgment in its
favor, against expenses actually and reasonably incurred in connection with
II-1
<PAGE> 3
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. Arthus L. Fatum Non-Statutory Stock Option Agreement.
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 purpose 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 23rd day of December, 1999.
PICTURETEL CORPORATION
By: /s/ Norman E. Gaut
--------------------------------------------
Name: Norman E. Gaut
Title: Chairman of the Board
President and Chief Executive Officer
POWER OF ATTORNEY
Dated: December 23, 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
- --------- ------------------------ ----
<S> <C> <C>
/s/ Norman E. Gaut
- ------------------------------ Chairman of the Board, December 23, 1999
Norman E. Gaut President and Chief Executive
Officer (Principal Executive
Officer)
/s/ Arthur L. Fatum
- ------------------------------ Vice President and Chief December 23, 1999
Arthur L. Fatum Financial Officer (Principal
Financial Officer and Principal
Accounting Officer)
/s/ Carl Ledbetter
- ------------------------------ Director December 23, 1999
Carl Ledbetter
/s/ David B. Levi
- ------------------------------ Director December 23, 1999
David B. Levi
/s/ Robert T. Knight
- ------------------------------ Director December 23, 1999
Robert T. Knight
/s/ Enzo Torresi
- ------------------------------ Director December 23, 1999
Enzo Torresi
</TABLE>
II-5
<PAGE> 7
EXHIBIT INDEX
<TABLE>
<CAPTION>
Number Title of Exhibit
- ------ ----------------
<S> <C>
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 Arthur L. Fatum Non-Statutory Stock Option Agreement
23.1. Consent of Ropes & Gray (See Exhibit 5).
23.2. Consent of PricewaterhouseCoopers LLP.
24. Power of Attorney (Included on Signature Page).
</TABLE>
II-6
<PAGE> 1
EXHIBIT 5
[ROPES & GRAY LETTERHEAD]
December 23, 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 125,000 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 Arthur L. Fatum
Non-Statutory Stock Option Agreement (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
EXHIBIT 10.1
PICTURETEL CORPORATION
NON-STATUTORY STOCK OPTION AGREEMENT
1. GRANT OF OPTION.
PictureTel Corporation, a Delaware corporation (the "Company"),
hereby grants to Arthur L. Fatum (the "Executive"), an option to purchase an
aggregate of 125,000 shares of authorized but not issued Common Stock of the
Company, $.01 par value ("Common Stock") (hereinafter referred to as the
"Option"), at a price of $7.219 per share, purchasable as set forth in and
subject to the terms and conditions of this Stock Option Agreement (the
"Agreement"). The Option is intended to be a non-statutory stock option and the
purchase price of the Option is 100% of the fair market value per share of the
Common Stock on the Grant Date. The date of grant of this Option is November 9,
1998 (hereinafter referred to as the "Grant Date") and the date ending twelve
(12) months thereafter and each subsequent three (3) month period thereafter is
hereinafter referred to as "First Exercise Date", "Second Exercise Date", "Third
Exercise Date", etc.
In granting this Option, the Committee has determined that the
Option will advance the interests of PictureTel Corporation by enhancing its
ability to (a) attract and retain an executive who is in a position to make
significant contributions to the success of the Company and its subsidiaries and
(b) encourage this executive to take into account the long-term interests of the
Company through ownership of shares of the Company's Common Stock ("Stock").
2. EXERCISE OF OPTION AND PROVISIONS FOR TERMINATION.
(a) EXERCISE SCHEDULE.
Except as otherwise provided in this Agreement, this Option may be
exercised during the period ending ten (10) years after the Grant Date
(hereinafter the "Expiration Date"), on a cumulative basis as described below,
in installments as to not more than the following percentage of the shares
covered by this option during the respective installment periods set forth
below:
<TABLE>
<CAPTION>
PERCENTAGE (NUMBER) OF OPTION
EXERCISE PERIOD SHARES EXERCISABLE
--------------- -----------------------------
<S> <C> <C>
On and After the Grant Date and Prior to the First Exercise Date None
On and After the First Exercise Date and Prior to the Second Exercise Date 25.00% (31,250)
On and After the Second Exercise Date and Prior to the Third Exercise Date 31.25% (39,062)
On and After the Third Exercise Date and Prior to the Fourth Exercise Date 37.50% (46,875)
On and After the Fourth Exercise Date and Prior to the Fifth Exercise Date 43.75% (54,687)
On and After the Fifth Exercise Date and Prior to the Sixth Exercise Date 50.00% (62,500)
On and After the Sixth Exercise Date and Prior to the Seventh Exercise Date 56.25% (70,312)
On and After the Seventh Exercise Date and Prior to the Eighth Exercise Date 62.50% (78,125)
On and After the Eighth Exercise Date and Prior to the Ninth Exercise Date 68.75% (85,937)
On and After the Ninth Exercise Date and Prior to the Tenth Exercise Date 75.00% (93,750)
On and After the Tenth Exercise Date and Prior to the Eleventh Exercise Date 81.25% (101,562)
On and After the Eleventh Exercise Date and Prior to the Twelfth Exercise Date 87.50% (109,375)
On and After the Twelfth Exercise Date and Prior to the Thirteenth Exercise Date 93.75% (117,187)
On and After the Thirteenth Exercise Date 100.00% (125,000)
</TABLE>
The right of exercise shall be cumulative so that if the Option is
not exercised to the maximum extent permissible during any exercise period it
shall be exercisable, in whole or in part, with respect to all shares not so
purchased at any time prior to the Expiration Date or the earlier termination of
this option. This Option may not be exercised at any time after the Expiration
Date.
<PAGE> 2
(b) EXERCISE PROCEDURE.
Subject to the conditions set forth in this Agreement, this option
shall be exercised by the Executive's delivery of written notice of exercise to
the Company, specifying the Option Grant Date, number of shares to be purchased,
and the purchase price to be paid therefor and accompanied by payment in full in
accordance with Section 3. below. Such exercise shall be effective upon receipt
by the Company of such written notice together with the required payment. The
Executive may purchase less than the total number of shares covered hereby,
provided that no partial exercise of this option may be for any fractional share
or for less than ten whole shares.
(c) CONTINUOUS EMPLOYMENT REQUIRED.
Except as otherwise provided in this Section 2., this option may
not be exercised unless the Executive, at the time he exercises this Option, is,
and has been at all times since the Grant Date of this Option, an employee of
one or more of the Company or a Subsidiary. A "Subsidiary" for purposes of this
Option shall be a corporation in which the Company owns directly or indirectly,
stock possessing fifty (50) percent of the total combined voting power of all
classes of stock. If this Option shall be assumed or a new option substituted
therefor in a transaction to which Section 425(a) of the Internal Revenue Code
of 1986, as amended (the "Code") applies, employment by such assuming or
substituting corporation (hereinafter called the "Successor Corporation") or a
Subsidiary thereof (but with the Successor Corporation substituted for the
Company) shall be considered for all purposes of this Option to be employment by
the Company or a Subsidiary, as the case may be.
(d) VOLUNTARY TERMINATION OF EMPLOYMENT.
If the Executive voluntarily ceases to be employed by the Company
or Subsidiary, the right to exercise this Option shall terminate three (3)
months after such cessation (but in no event after the Expiration Date),
provided that this Option shall then be exercisable only to the extent that the
Executive was entitled to exercise this option on the date of such cessation.
(e) TERMINATION UPON DEATH OR DISABILITY.
If the Executive dies or becomes disabled (within the meaning of
Section 105(d) (4) of the Code) prior to the Expiration Date, while he is in the
employ of the Company or a Subsidiary, this Option shall have the exercise
rights thereto accelerated so that for each full year of service with the
Company prior thereto, no less than twenty-five (25) percent of the aggregate
number of options covered hereby and not yet exercisable shall thereupon become
exercisable as of the termination date (not to exceed one hundred (100) percent
of the aggregate number of shares); all unexercised options for shares not
accelerated under the foregoing formula shall terminate as of the termination
day. All options that are exercisable after giving effect to the foregoing will
remain exercisable until one year following the date of death or disability of
the Executive (but in no event after the Expiration Date) by the Employee or by
the person to whom this option is transferred by will or the laws of descent and
distribution. Except as otherwise indicated by the context, the term
"Executive", as used in this Option, shall be deemed to include the estate of
the Executive, or any person who acquires the right to exercise this Option by
bequest or inheritance or otherwise by reason of death of the Executive or the
Executive's legal guardian in the event of disability.
(f) TERMINATION FOR CAUSE.
If the Executive, prior to the Expiration Date, ceases his
employment with the Company or a Subsidiary because he is discharged for "Cause"
(as defined below), the right to exercise this Option shall be terminated
immediately by the Company upon such cessation of employment. "Cause" shall be
defined as and be limited to, conviction of a felony or willful misconduct or
gross negligence in the performance of duties which result in material harm to
PictureTel, as determined by the Compensation Committee of the Company, which
determination shall be conclusive.
(g) INVOLUNTARY TERMINATION-WITHOUT CAUSE.
If prior to the Expiration Date, the employment of the Executive
is terminated by the Company or Subsidiary without Cause, the right to exercise
this Option shall terminate three (3) months after such cessation (but in no
event after the Expiration Date), provided that this Option shall then be
exercisable only to the extent that the Executive was entitled to exercise this
Option on the date of such cessation.
-2-
<PAGE> 3
(h) TERMINATION UPON RETIREMENT.
If, prior to the Expiration Date, the Executive, prior to the
normal retirement date (as determined by the Committee), retires with the
consent of the Company, as determined by the Committee, the Executive shall be
entitled to exercise this Option on the same basis, terms and conditions as set
forth above in clause (d).
(i) LEAVE OF ABSENCE.
If the Executive, prior to the Expiration Date, is absent from
work under a leave of absence authorized under the Company's then current Human
Resources Policies and he does not return to work within the period provided by
the terms of such leave of absence, he shall be considered as having voluntarily
terminated his employment on such date as provided under the Company's then
current Human Resources Policies. However, for the purpose of calculating the
Percentage of Option Shares Exercisable under Section 2(a) hereof, the period of
the leave of absence shall not be credited and the Executive shall have the
right to exercise only that Percentage of Option Shares Exercisable on the date
the leave of absence commenced, subject to the provisions of Section 2. (i). In
addition, while the Executive is on a leave of absence, he shall not be entitled
to exercise this Option. Upon resuming full status as an employee, the Executive
shall be entitled to exercise this Option, but with the period of leave of
absence not credited under Section 2. (a), and accordingly, the installment
exercise periods in Section 2. (a) shall be appropriately adjusted to give
effect thereto.
3. PAYMENT OF PURCHASE PRICE.
(a) METHOD OF PAYMENT.
Payment of the purchase price for shares purchased upon exercise
of this option shall be made by delivery to the Company of cash, certified
check, money order, or bank check (as the Company may require), to the order of
the Company in an amount equal to the purchase price of such shares, or by
delivery to the Company of shares of Common Stock of the Company then owned by
the Executive having a fair market value equal in amount to the purchase price
of such shares, or by delivery of an unconditional and irrevocable undertaking
by a broker to deliver to the Company sufficient funds to pay the exercise
price, or by any combination of such methods of payment. No shares of Common
Stock may be tendered or used in payment of the purchase price payable upon
exercise of this option unless the tendered shares have been held by the
Executive for at least six (6) months.
(b) VALUATION OF SHARES TENDERED IN PAYMENT OF PURCHASE PRICE.
For the purposes hereof, the fair market value of any share of the
Company's Common Stock which may be delivered to the Company in exercise of this
Option shall be equal to the fair market value on the last business day
preceding the date of exercise as determined in good faith by the Committee.
(c) DELIVERY OF SHARES TENDERED IN PAYMENT OF PURCHASE PRICE.
If the Executive exercises this Option by delivery of shares of
Common Stock of the Company, the certificate or certificates representing the
shares of Common Stock of the Company to be delivered shall be duly executed in
blank by the Executive or shall be accompanied by a stock power duly executed in
blank suitable for purposes of transferring such shares to the Company.
Fractional shares of Common Stock of the Company will not be accepted in payment
of the purchase price shares acquired upon exercise of this Option.
4. DELIVERY OF SHARES.
The Company shall, upon payment of the option price for the number
of shares purchased and paid for, make prompt delivery of such shares to the
Executive, provided that if any law or regulation requires the Company to take
any action with respect to such shares before the issuance thereof, then the
date of delivery of such shares shall be extended for the period necessary to
complete such action. No shares shall be issued and delivered upon exercise of
any option unless and until, in the opinion of counsel for the Company, any
applicable registration requirements of the Securities Act of 1933, any
applicable listing requirements of any national securities exchange on which
stock of the same class is then listed, and any other requirements of law or of
any regulatory bodies having jurisdiction over such issuance and delivery, shall
have been fully complied with.
-3-
<PAGE> 4
5. NON-TRANSFERABILITY OF OPTION.
Except as provided in Section 2. (e), this Option is personal and
no rights granted hereunder may be transferred, assigned, pledged or
hypothecated in any way (whether by operation of law or otherwise) nor shall any
such rights be subject to execution, attachment or similar process. Upon any
attempt to transfer, assign, pledge, hypothecate or otherwise dispose of this
Option or of such rights contrary to the provisions hereof, or upon the levy of
any attachment or similar process upon this option or such rights, this Option
and such rights shall, at the election of the Company, become null and void.
Notwithstanding the foregoing, a transfer for estate planning purposes may be
permitted by the Committee in its discretion.
6. NO SPECIAL EMPLOYMENT RIGHTS.
Nothing contained in the Option shall be construed as a contract
of employment between the Company or Subsidiary and the Executive, or as a right
of the Executive to be continued in the employ of the Company or Subsidiary, or
as a limitation of the right of the Company or Subsidiary to deal with the
Executive, and his hiring, discharge, layoff, compensation, and all other
conditions of employment in all respects as though this Option did not exist.
However, during the period of the Executive's employment, the Executive shall
render diligently and faithfully the services which are assigned from time to
time by the Board of Directors of the Company or Subsidiary and shall at no time
take any action which directly or indirectly would be inconsistent with the best
interests of the foregoing entities.
7. RIGHTS AS A SHAREHOLDER.
The Executive shall have no rights as a shareholder with respect
to any shares that may be purchased by exercise of this option unless and until
a certificate representing such shares is duly issued and delivered to the
Executive. Except as otherwise expressly provided in the Option, no adjustment
shall be made for dividends or other rights for which the record date is prior
to the date such stock certificate is issued.
8. ADJUSTMENTS IN THE EVENT OF CERTAIN TRANSACTIONS.
(a) In the event of a stock dividend, stock split or combination
of shares, recapitalization or other change in the Company's capitalization, or
other distribution to common shareholders other than normal cash dividends, the
Committee will make any appropriate adjustments to (i) the maximum number of
shares that may be delivered under this Option, (ii) the exercise price relating
to this Option, and (iii) any other provision of this Option affected by such
change.
(b) In any event referred to in clause (a), The Committee may also
make such adjustments to take into account material changes in law or in
accounting practices or principles, mergers, consolidations, acquisitions,
dispositions or similar corporate transactions, or any other event, if it is
determined by the Committee that adjustments are appropriate to avoid distortion
in the operation of this Option.
9. CHANGE IN CONTROL.
(a) CHANGE IN CONTROL.
As used herein, a Change in Control and related definitions shall
have the meanings as set forth in Section 9. (b) below. Immediately prior to the
occurrence of a Change in Control, the Option, to the extent not then
exercisable, shall automatically become fully exercisable.
(b) CHANGE IN CONTROL AND RELATED DEFINITIONS.
A "Change in Control" shall be deemed to have occurred if the
conditions set forth in any one of the following paragraphs shall have been
satisfied: (i) any person is or becomes the Beneficial Owner, directly or
indirectly, of securities of the company representing twenty-five (25) percent
or more of the combined voting power of the Company's then outstanding
securities; or (ii) during any period of not more than two consecutive years
(not including any period prior to December 31, 1995), individuals who at the
beginning of such period constitute the Board and any new director (other than a
director designated by a Person who has entered into an agreement with the
Company to effect a transaction described in Clause (i), (ii), or (iii) of
Section 9.(b)) whose election by the Board or nomination for
-4-
<PAGE> 5
election by the shareholders of the Company was approved by a vote of at least
two-thirds (2/3) of the directors then still in office who either were directors
at the beginning of the period or whose election or nomination for election was
previously so approved, cease for any reason to constitute a majority thereof;
or (iii) the shareholders of the Company approve a merger or consolidation of
the Company with any other corporation, other than (1) a merger or consolidation
which would result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or being converted into voting securities of the surviving entity)
sixty (60) percent or more of the combined voting power of the voting securities
of the Company or such surviving entity outstanding immediately after such
merger or consolidation, or (2) a merger or consolidation effected to implement
a recapitalization of the Company (or similar transaction) in which no person
acquires twenty-five (25) percent or more of the combined voting power of the
Company's then outstanding securities; or (iv) the shareholders of the Company
approve a plan of complete liquidation of the Company or an agreement for the
sale or disposition by the Company of all or substantially all the Company's
assets.
A "Person" shall have the meaning given in Section 3 (a) (9) of
the Securities Exchange Act of 1934, as modified and used in Sections 13 9D and
14 (d) thereof: however, a Person shall not include (1) the Company, or (2) a
trustee or other fiduciary holding securities under an employee benefit plan of
the Company, or (3) a corporation or other entity owned, directly or indirectly,
by the shareholders of the Company in substantially the same proportions as
their ownership of stock of the Company.
A "Beneficial Owner" shall have the meaning defined in Rule 13d-3
under the Securities Exchange Act of 1934, as amended from time to time.
10. CERTAIN CORPORATE TRANSACTIONS.
(a) In the event of a consolidation or merger in which the Company
is not the surviving corporation or which results in the acquisition of
substantially all the Company's outstanding Stock by a single person or entity
or by a group of persons and/or entities acting in concert, or in the event of
the complete liquidation of the Company or the sale or transfer of substantially
all of the Company's assets (a "Covered Transaction"), all outstanding Options
will terminate as of the effective date of the Covered Transaction, provided
that at least twenty (20) days prior to the effective date of any such merger,
consolidation, liquidation or sale of assets, but subject to clause (b) below,
the Committee shall make all outstanding Options exercisable immediately prior
to consummation of such Covered Transaction (to the extent that such Options are
not exercisable immediately prior to the consummation of the Covered Transaction
pursuant to Section 9).
(b) With respect to an outstanding Option held by the Executive
who, following the Covered Transaction, will be employed by a corporation which
is a surviving or acquiring corporation in such transaction or an affiliate of
such a corporation, the Committee may, in lieu of the action of the Committee
described in clause (a) above or in addition to the Option being exercisable
immediately prior to consummation of the Covered Transaction pursuant to Section
9. above, arrange to have such surviving or acquiring corporation or affiliate
assume the Option or grant to the Executive a replacement option which, in the
judgment of the Committee, is substantially equivalent to the Option.
11. WITHHOLDING TAXES
The Company's obligation to deliver shares upon the exercise of
this option shall be subject to the Executive's satisfaction of all applicable
federal, state and local income tax withholding requirements.
12. ADMINISTRATION.
The Option shall be administered by the Compensation Committee of
the Board of Directors of the Company (the "Committee"), all of the members of
which Committee must be disinterested persons within the meaning of Rule 16b-3
under the Securities Exchange Act of 1934. Alternately, the Board of Directors
of the Company (the "Board") may serve as the Committee so long as a majority of
the members of the Board are disinterested persons within the meaning of Rule
16b-3.
The Committee shall have the authority, not inconsistent with the
express provisions of the Option, to adopt, amend, rescind rules and regulations
for the administration of the option, accelerate the time at which all or part
of the Option may be exercised, waive any term or condition of the Option, with
the consent of the Executive, cancel the Option
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in whole or in part and grant a new option, and interpret the Option and decide
any questions and settle all controversies and disputes that may arise in
connection with the Option. Such determinations and actions of the Committee,
and all other determinations and actions of the Committee made or taken under
authority granted by any provision of the Option, will be conclusive and will
bind all parties. A majority of the members of the Committee will constitute a
quorum, and all determinations of the Committee must be made by a majority of
its members.
13. EMPLOYMENT RIGHTS.
This Option does not confer upon the Executive any right to
continued employment with the Company or any subsidiary or affect in any way the
right of the Company or subsidiary to terminate an employment relationship at
any time. Except as specifically provided by the Committee, the loss of existing
or potential profit in this Option will not constitute an element of damages in
the event of termination of an employment relationship even if the termination
is in violation of an obligation of the Company to the Executive.
14. MISCELLANEOUS.
(a) The grant of this Option will not affect the Company's right
to grant to the Executive options or other awards that are subject to the
Company's Equity Incentive Plan or other plans or are not subject to the plans,
or to issue to the Executive stock as a bonus or otherwise or adopt other plans
or arrangements under which stock may be issued to the Executive.
(b) The Committee may at any time or times amend this Option for
any purpose which may at the time be permitted by law, provided that (except to
the extent expressly required or permitted by this Option) no such amendment may
adversely affect the rights of the Executive without the Executive's written
consent.
(c) All notices under this Option shall be mailed or delivered by
hand to the parties at their respective addresses set forth beneath their names
below or at such other address as may be designated in writing by either of the
parties to one another.
(d This Option shall be governed by and construed in accordance
with the laws of the Commonwealth of Massachusetts.
(e) The Executive may only accept this Option by executing this
Agreement and delivering the Agreement to the Company not later than 5:00 P.M.
Boston time, on December 31, 1998, (the "Offer Termination Date"). Any Agreement
received after the Offer Termination Date shall be null and void and the grant
of this stock option shall be deemed rescinded.
Date of Grant: NOVEMBER 9, 1998 PictureTel Corporation
100 Minuteman Road
Andover, MA 01810
By: ________________________
EXECUTIVE'S ACCEPTANCE
The undersigned hereby accepts the foregoing option and agrees to the
terms and conditions thereof.
EXECUTIVE
Signature: ________________________
Print Name: _______________________
Address: __________________________
__________________________
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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 of Form 10-K.
/s/ PricewaterhouseCoopers LLP
Boston, Massachusetts
February 17, 2000
