As filed with the Securities and Exchange Commission on June 4, 1997
Registration No. 333-______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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VTEL CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 74-2415696
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
108 WILD BASIN ROAD
AUSTIN, TEXAS 78746
(Address of principal executive offices) (Zip Code)
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VTEL CORPORATION 1996 STOCK OPTION PLAN
(Full title of the plan)
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RODNEY S. BOND COPY TO:
CHIEF FINANCIAL OFFICER L. STEVEN LESHIN, ESQ.
108 WILD BASIN ROAD JENKENS & GILCHRIST,
AUSTIN, TEXAS 78746 A PROFESSIONAL CORPORATION
(Name, address and telephone number 1445 ROSS AVENUE, SUITE 3200
including area code of agent for service) DALLAS, TEXAS 75202
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TITLE OF CLASS OF TO BE OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED(1) PER SHARE(2)(3) OFFERING PRICE(2)(3) FEE(3)
- --------------------------------------- ------------------------ ---------------------- ------------------------ ----------------
<S> <C> <C> <C> <C>
Common Stock, $0.01 par value per share 2,700,000 Shares $5.9375 $16,509,987.64 $5,448.30
======================================= ======================== ====================== ======================== ================
</TABLE>
(1) The securities to be registered consist of 2,700,000 shares
reserved for issuance under the VTEL Corporation 1996 Stock Option Plan (the
"Plan"). In addition, pursuant to Rule 416 under the Securities Act of 1933,
this Registration Statement covers an indeterminate number of additional shares
of the Corporation's Common Stock (the "Common Stock") issuable pursuant to the
exercise of options and/or awards granted or to be granted under the Plan to
prevent dilution which may result from any future stock splits, stock dividends
or similar transactions affecting the Common Stock. These additional shares are
also being registered by this Registration Statement.
(2) Estimated solely for the purpose of calculating the registration
fee.
(3) Calculated pursuant to Rule 457(c) and (h). Accordingly, the price
per share of the Common Stock offered hereunder pursuant to the Plan is based on
(i) 2,147,012 shares of Common Stock reserved for issuance under the Plan, but
not subject to outstanding stock options, at a price per share of $5.9375, which
is the average of the highest and lowest selling price per share of Common Stock
on the NASDAQ National Market on May 30, 1997, and (ii) the following shares of
Common Stock reserved for issuance under the Plan and subject to options already
granted thereunder at the following exercise prices:
NUMBER OF SHARES
OF COMMON STOCK EXERCISE PRICE
RESERVED FOR ISSUANCE PER SHARE
--------------------- --------------
1,734 4.063
10,000 4.532
84,015 6.688
9,880 8.125
101,000 9.000
11,250 9.063
15,000 9.938
14,789 4.094
4,345 5.938
50,975 5.688
250,000 6.125
CORPDAL:52067.3 22768-00001
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION*
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The registrant hereby incorporates by reference in this registration
statement the following documents previously filed by the registrant with the
Securities and Exchange Commission (the "Commission"):
(1) the registrant's Annual Report on Form 10-K filed with the Commission
for the transition period ended July 31, 1996;
(2) the registrant's Annual Report on Form 10-K/A filed with the Commission
for the transition period ended July 31, 1996;
(3) the registrant's Quarterly Reports on Form 10-Q for the quarters ended
October 31, 1996, and January 31, 1997, filed with the Commission;
(4) the registrant's Current Report on Form 8-K dated May 23, 1996, filed
with the Commission;
(5) the registrant's Current Report on Form 8-K dated July 10, 1996, filed
with the Commission;
(6) the registrant's Current Report on Form 8-K dated January 6, 1997,
filed with the Commission; and
(7) the description of the Common Stock of the registrant set forth in the
Registration Statement on Form 8-A, filed with the Commission on March 31, 1992,
including any amendment or report filed for the purpose of updating such
description.
All documents filed by the registrant with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), subsequent to the date of this registration
statement shall be deemed to be incorporated herein by reference and to be a
part hereof from the date of the filing of such documents until such time as
there shall have been filed a post-effective amendment that indicates that all
securities offered hereby have been sold or that deregisters all securities
remaining unsold at the time of such amendment.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
- --------
*Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with Rule
428 under the Securities Act of 1933 and the Note to Part I of Form S-8.
CORPDAL:52067.3 22768-00001
II-1
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Fourth Amended and Restated Certificate of Incorporation
of the registrant provides for indemnification as follows:
"NINTH: The Corporation shall indemnify any person:
(a) 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, administrative or investigative (other than an
action by or in the right of the Corporation) by reason of the fact
that he is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as
a 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 him in connection with
such action, suit or proceeding if he acted in good faith and in a
manner he 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 his conduct was
unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner
which he 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 reasonable cause to believe his action was unlawful,
or
(b) 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 by reason
of the fact that he is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he
acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the Corporation and except that no
indemnification shall be made in respect of any claim, issue or matters
as to which such person shall have been adjudged to be liable to the
Corporation unless and only to the extent that the Court of Chancery or
the 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.
To the extent that a director, officer, employee or agent of
the Corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in subparagraphs
(a) and (b) of this Article 9, or in defense of any claim, issue or
matter therein, he shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith.
Any indemnification under subparagraphs (a) and (b) of this
Article 9 (unless ordered by a court) shall be made by the Corporation
only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper
in the circumstances because he has met the applicable standard of
conduct set forth in subparagraphs (a) and (b) of this Article 9. Such
determination shall be made (i) by the Board of Directors by a majority
vote of the quorum consisting of directors who were not parties to such
action, suit or proceeding, or (ii) if such a quorum is not obtainable,
or, even if obtainable a quorum of disinterested directors so directs,
by independent legal counsel in a written opinion, or (iii) by the
stockholders.
Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or
investigative action, suit or proceeding shall be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such
director or officer to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the Corporation
as authorized in this Article 9. Such expenses
CORPDAL:52067.3 22768-00001
II-2
<PAGE>
(including attorneys' fees) incurred by other employees and agents may
be so paid upon such terms and conditions, if any, as the Board of
Directors deems appropriate.
The indemnification and advancement of expenses provided by,
or granted pursuant to, this Article 9 shall not be deemed exclusive of
any other rights to which those seeking indemnification or advancement
of expenses may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action
in his official capacity and as to action in another capacity while
holding such office.
The Corporation may purchase and maintain insurance on behalf
of any person who is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any
liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such
liability under the provisions of this Article 9.
For purposes of this Article 9, references to "the
Corporation" shall include, in addition to the resulting corporation,
any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its
separate existence had continued, would have had power and authority to
indemnify its directors, officers, and employees or agents, so that any
person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under this Article 9 with
respect to the resulting or surviving corporation as he would have with
respect to such constituent corporation if its separate existence had
continued.
For purposes of this Article 9, references to "other
enterprises" shall include employee benefit plans; references to
"fines" shall include any excise taxes assessed on a person with
respect to an employee benefit plan; and references to "serving at the
request of the Corporation" shall include any service as a director,
officer, employee or agent of the Corporation which imposes duties on,
or involves services by, such director, officer, employee or agent with
respect to an employee benefit plan, its participants or beneficiaries;
and a person who acted in good faith and in a manner he reasonably
believed to be in the interest of the participants and beneficiaries of
an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the Corporation" as referred to in
this Article 9.
The indemnification and advancement of expenses provided by,
or granted pursuant to, this Article 9 shall, unless otherwise provided
when authorized or ratified, continue as to a person who has ceased to
be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a person."
ITEM 8. EXHIBITS.
(a) Exhibits.
The following documents are filed as a part of this
registration statement.
Exhibit Description of Exhibit
4.1* VTEL Corporation 1996 Stock Option Plan
4.2* Form of Option Agreement
5.1* Opinion of Jenkens & Gilchrist, a Professional Corporation
CORPDAL:52067.3 22768-00001
II-3
<PAGE>
23.1* Consent of Jenkens & Gilchrist, a Professional Corporation
(included in their opinion filed as Exhibit 5.1)
23.2* Consent of Price Waterhouse LLP.
- --------------------
* Filed herewith.
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, 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; and
(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, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to section 15(d) of the Exchange Act) 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 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 Commission such
indemnification is against public policy as expressed in the Securities 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 of whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by the
final adjudication of such issue.
CORPDAL:52067.3 22768-00001
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Austin, Texas, on April 29, 1997.
VTEL CORPORATION
By: /s/ F. H. (Dick) Moeller
--------------------------
F. H. (Dick) Moeller,
Chief Executive Officer and Chairman
of the Board of Directors
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints F.H. (Dick) Moeller and Rodney S. Bond
and each of this, each with full power to act without the other, his true and
lawful attorneys-in-fact and agents, each with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments to this Registration Statement, and
to file the same with all exhibits, thereto, and all documents in connection
therewith, with the SEC, granting unto each of said attorneys-in-fact and agents
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that each of said attorneys-in-fact and agents or his
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE CAPACITY DATE
--------- -------- ----
/s/ F.H. (Dick) Moeller Chief Executive Officer and Chairman April 29, 1997
- ----------------------- of the Board of Directors (Principal
F.H. (Dick) Moeller Executive Officer)
/s/ Rodney S. Bond Chief Financial Officer, Vice President April 29, 1997
- ----------------------- - Finance, Treasurer and Secretary
Rodney S. Bond (Principal Financial Officer and
Principal Accounting Officer)
/s/ John V. Jaggers Director April 30, 1997
- -----------------------
John V. Jaggers
/s/ Eric L. Jones Director April 30,1997
- -----------------------
Eric L. Jones
/s/ Gordon H. Matthews Director May 4, 1997
- -----------------------
Gordon H. Matthews
Max D. Hopper Director April 30, 1997
- -----------------------
Max D. Hopper
CORPDAL:52067.3 22768-00001
<PAGE>
EXHIBIT INDEX
Sequential
Exhibit Page
Number Document Description Number
------- -------------------- ----------
4.1 VTEL Corporation 1996 Stock Option Plan
4.2 Form of Stock Option Agreement
5.1 Opinion of Jenkens & Gilchrist, P.C.
23.1 Consent of Jenkens & Gilchrist, P.C.
(included in their opinion filed as Exhibit 5.1)
23.2 Consent of Price Waterhouse LLP
CORPDAL:52067.3 22768-00001
EXHIBIT 4.1
CORPDAL:52067.3 22768-00001
<PAGE>
VTEL CORPORATION
1996 STOCK OPTION PLAN
CORPDAL:64565.1 22768-00001
<PAGE>
TABLE OF CONTENTS Page
1. Purposes of the Plan................................................ 1
--------------------
2. Definitions......................................................... 1
-----------
(a) "Board".................................................... 1
-----
(b) "Committee"................................................ 1
---------
(c) "Common Stock"............................................. 1
------------
(d) "Company".................................................. 1
-------
(e) "Consultant"............................................... 1
----------
(f) "Continuous Status as an Employee or Consultant"........... 1
----------------------------------------------
(g) "Date of Grant"............................................ 1
-------------
(h) "Designated Plans"......................................... 1
----------------
(i) "Eligible Committee Member"................................ 2
-------------------------
(j) "Employee"................................................. 2
--------
(k) "Employer"................................................. 2
--------
(l) "Exercise Price"........................................... 2
--------------
(m) "Fair Market Value"........................................ 2
-----------------
(n) "Incentive Stock Option"................................... 2
----------------------
(o) "Non-Statutory Stock Option"............................... 2
--------------------------
(p) "Option"................................................... 2
------
(q) "Option Proceeds".......................................... 2
----------------
(r) "Optioned Stock"........................................... 2
--------------
(s) "Optionee"................................................. 2
--------
(t) "Parent"................................................... 2
------
(u) "Plan"..................................................... 2
----
(v) "Reacquired Shares"........................................ 2
-----------------
(w) "Separation"............................................... 3
----------
(x) "Share".................................................... 3
-----
(y) "Shareholder Approval"..................................... 3
--------------------
(z) "Subsidiary"............................................... 3
----------
3. Stock Subject to the Plan........................................... 3
-------------------------
4. Administration of the Plan.......................................... 3
--------------------------
5. Eligibility......................................................... 4
-----------
6. Term of Plan........................................................ 5
------------
7. Term of Option...................................................... 5
--------------
8. Exercise Price and Method of Payment................................ 5
------------------------------------
9. Exercise of Option.................................................. 6
------------------
10. Non-Transferability of Options...................................... 7
------------------------------
11. Adjustments Upon Changes in Capitalization or Merger................ 7
----------------------------------------------------
12. Time of Granting Options............................................ 7
------------------------
13. Amendment and Termination of the Plan............................... 8
-------------------------------------
14. Conditions Upon Issuance of Shares.................................. 8
----------------------------------
15. Reservation of Shares............................................... 8
---------------------
16. Option Agreement.................................................... 9
----------------
17. Shareholder Approval................................................ 9
--------------------
CORPDAL:64565.1 22768-00001
ii
<PAGE>
VTEL CORPORATION
1996 STOCK OPTION PLAN
1. Purposes of the Plan. The purposes of this Plan are to attract and
retain, and provide additional incentive to Employees and Consultants of the
Company and any Parent or Subsidiary in order to promote the success of such
Employer's business.
It is intended that each option granted hereunder will either qualify
as an "incentive stock option", as defined in Section 422 of the Internal
Revenue Code of 1986, as amended (the "Code") or shall be an option which does
not so qualify.
2. Definitions. As used herein, the following definitions shall apply:
(a) "Board" shall mean the Board of Directors of the Company.
(b) "Committee" shall mean the Committee appointed by the Board in
accordance with paragraph (a) of Section 4 of the Plan.
(c) "Common Stock" shall mean the share or shares of common stock, par
value $.01 per share, of the Company.
(d) "Company" shall mean VTEL Corporation, a Delaware corporation.
(e) "Consultant" shall mean any person or entity who or which is engaged by
the Employer to render consulting services and is compensated for such
consulting services and any director of the Employer whether compensated for
such services or not; provided that, in the event the Company registers any
security under Section 12 of the Securities Exchange Act of 1934, as amended,
the term Consultant shall thereafter not include directors who are not
compensated for their services and are paid only a director's fee by the
Employer.
(f) "Continuous Status as an Employee or Consultant" shall mean the absence
of any interruption or termination of service as an Employee or Consultant.
Continuous Status as an Employee or Consultant shall not be considered
interrupted while an Employee or Consultant is on sick leave, military leave, or
any other leave of absence approved by the Employer, if the period of such leave
does not exceed 90 days, or, if longer, so long as the Employee's or
Consultant's right to reemployment or to continue consulting services, as the
case may be, with the Employer is guaranteed either by statute or by contract.
(g) "Date of Grant" shall mean the date on which the Committee takes formal
action to grant an Option as provided in Section 12.
(h) "Designated Plans" shall mean, collectively, this Plan, the VTEL
[Videotelecom Corp.] 1989 Stock Option Plan, and the VTEL Corporation Employee
Stock Purchase Plan.
(i) "Eligible Committee Member" shall mean a person who is an "outside
director" within the meaning of Section 162(m)(4)(C)(i) of the Code and the
applicable treasury regulations at the time of reference, and also is a person
having such qualifications, if any, as are necessary under Rule 16b-3,
promulgated under the Securities Exchange Act of 1934, as amended, or any
successor regulation or statute adopted under the federal securities laws as in
effect at the time of the determination, to enable the Plan to comply with such
Rule.
(j) "Employee" shall mean any person, including an officer or director,
employed by the Employer. The payment of a director's fee by the Employer shall
not be sufficient to constitute "employment" by the Employer.
CORPDAL:64565.1 22768-00001
1
<PAGE>
(k) "Employer" shall mean, collectively, the Company and any Parent or
Subsidiary.
(l) "Exercise Price" shall mean the per Share price required to be paid by
the Optionee in order to exercise his right to acquire the Share under the terms
of the Option.
(m) "Fair Market Value" shall mean the fair market value of Shares as
determined under Section 8(b).
(n) "Incentive Stock Option" shall mean an option intended to qualify as an
incentive stock option within the meaning of Section 422A(b) of the Code.
(o) "Non-Statutory Stock Option" shall mean an option which is not intended
to qualify as an Incentive Stock Option.
(p) "Option" shall mean an option which is granted pursuant to the Plan to
purchase Shares.
(q) "Option Proceeds" shall mean the cash proceeds received by the Company
from the exercise subsequent to December 31, 1991 of stock options granted under
the Designated Plans.
(r) "Optioned Stock" shall mean the shares of Common Stock subject to an
Option.
(s) "Optionee" shall mean an Employee or Consultant to whom an Option has
been granted.
(t) "Parent" shall mean a "parent corporation" of the Company as defined in
Section 425(e) of the Code. ------
(u) "Plan" shall mean this VTEL Corporation 1996 Stock Option Plan.
(v) "Reacquired Shares" shall mean Shares, if any, reacquired by the
Company on the open market, but which shall not, at the time of reference,
exceed, in the aggregate, the lesser of (i) Shares having an aggregate purchase
price equal to the Option Proceeds at such time of reference, and (ii) fifty
percent (50%) of the aggregate Shares (excluding Reacquired Shares) authorized
in the first paragraph of Section 5, as it may be in effect at such time of
reference.
(w) "Separation" shall mean the date on which an Employee or Consultant
ceases to have such employment or consulting relationship with the Employer for
any reason.
(x) "Share" shall mean a share of Common Stock.
(y) "Shareholder Approval" shall mean the affirmative vote of the holders
of a majority of the shares present in person or represented by proxy at the
shareholder meeting of reference and entitled to vote on the matter in question.
(z) "Subsidiary" shall mean a "subsidiary corporation", of the Company as
defined in Section 425(f) of the Code.
3. Stock Subject to the Plan. Subject to the provisions of Section 11 of
the Plan, the aggregate number of Shares which may be optioned and sold under
the Plan is seven hundred thousand (700,000), plus Reacquired Shares. The Shares
may be authorized, but unissued, or reacquired.
If Shares are received by the Company in connection with the exercise of an
Option hereunder by the delivery of Shares (if authorized), or if an Option
should expire or become unexercisable for any reason without having been
exercised in full, such Shares received, or remaining unpurchased, shall be
available for future grant under the Plan.
CORPDAL:64565.1 22768-00001
2
<PAGE>
4. Administration of the Plan.
(a) Procedure. The Plan shall be administered by a committee (the
"Committee") of two or more directors of the Company appointed by the Board.
(i) Each member of the Committee must be an Eligible Committee Member.
Accordingly, without limitation, under the regulations in existence as of
the effective date of the Plan, a member of the Committee (x) shall not be
granted or awarded Options under the Plan, (y) shall not be granted or
awarded options, grants, awards or other rights pursuant to any other
stock, stock option or stock appreciation rights plan of the Employer or
any of its affiliates (each, an "Other Plan") if a grant or award under
such plan would cause such person not to be or to lose his status as an
Eligible Committee Member (each, a "Disqualifying Grant") and (z) shall not
have been granted or awarded any Options under the Plan and shall not have
been granted or awarded any Disqualifying Grant under any Other Plan at any
time after one year prior to the date of his appointment to the Committee;
provided, however, in the event that the regulations in existence as of the
effective date of the Plan were modified in a manner that would permit any
of the foregoing items specified in clauses (x), (y) or (z) of this Section
4(a)(i), the restrictions contained in clauses (x), (y) and (z) of this
Section 4(a)(i) shall be correspondingly amended to permit the otherwise
proscribed matter.
(ii) If a member of the Committee ceases to be an Eligible Committee
Member for any reason, such person shall immediately, without any action by
the Board, cease to be a member of the Committee.
(iii) Any and all determinations and interpretations of the Committee
shall be made either (w) by a majority vote of the Committee members at a
meeting duly called, or (x) without a meeting, by the written approval of
all members of the Committee. Nothing herein shall preclude the Committee
from delegating its authority (except that authority which is required to
be retained and exercised in order (y) to comply with the requirements of
Rule 16b-3 under the Securities and Exchange Act of 1934, as amended, and
(z) to exclude all amounts relating to each Option from constituting
"applicable employee remuneration" under Section 162(m) of the Code) to an
officer of the Company.
(b) Powers of the Committee. Subject to the provisions of the Plan, the
Committee, from time to time, may adopt rules and regulations for carrying out
the purposes of the Plan. The determinations under, and the interpretations of,
any provision of the Plan or an Option by the Committee shall, in all cases, be
in its sole discretion, and shall be final and conclusive. Without limiting the
generality of the foregoing, the Committee, in its sole discretion, shall have
the authority: (i) to grant Options; (ii) to determine, in accordance with
Section 8(b) of the Plan, the Fair Market Value of a Share; (iii) to determine
the Exercise Price; (iv) to determine the Employees and Consultants to whom, and
the time or times at which, Options shall be granted, the number of Shares to be
represented by each Option and whether such Options shall be Incentive Stock
Options, Non-Statutory Stock Options, or any combination thereof; (v) to
interpret the Plan; (vi) to prescribe, amend and rescind rules and regulations
relating to the Plan; (vii) to determine the terms and provisions of each Option
granted (which need not be identical) and, with the consent of the holder
thereof, to modify or amend any outstanding Option; (viii) to accelerate or
defer, with the consent of the holder thereof, the exercise date of any
outstanding Option; (ix) to authorize any person to execute on behalf of the
Company any instrument required to effectuate the grant of an Option previously
granted by the Committee; and (x) to make all other determinations deemed
necessary or advisable for the administration of the Plan.
(c) Effect of Committee's Decision. All decisions, determinations and
interpretations of the Committee shall be final and binding on all Optionees and
any other holders of any Options granted under the Plan.
5. Eligibility.
(a) Incentive Stock Options may be granted only to Employees. Non-Statutory
Stock Options may be granted to either Employees or Consultants. An Employee or
Consultant who has been granted an Option may, if he is otherwise eligible, be
granted an additional Option or Options; provided, however, that in no case may
an Employee be granted an Option covering more than three hundred thousand
(300,000) Shares during any calendar year.
(b) The Plan shall not confer upon any Optionee any right with respect to
continuation of employment by, or consulting relationship with, the Employer,
nor shall it interfere in any way with his right or the Employer's right to
CORPDAL:64565.1 22768-00001
3
<PAGE>
terminate his employment or consulting relationship at any time, nor shall the
reference to "Employer" confer an employment relationship on a Consultant.
(c) $100,000 Limitation on Annual Vesting of Incentive Stock Options. The
aggregate Fair Market Value (determined as of the Date of Grant) of the Shares
with respect to which any one or more Incentive Stock Option(s) granted
hereunder or under all such plans of the Employer is exercisable for the first
time by an Optionee during any calendar year shall not exceed $100,000.
6. Term of Plan. The Plan shall become effective April 8, 1996, subject to
Shareholder Approval, and shall expire on the tenth anniversary of the effective
date.
7. Term of Option. The term of each Option shall be of such length, not to
exceed ten (10) years (five years in the case of an Incentive Stock Option
granted to an Employee who on the Date of Grant owns stock representing more
than ten percent (10%) of the voting power of all classes of stock of the
Employer) from the Date of Grant, as may be determined by the Committee.
8. Exercise Price and Method of Payment.
(a) The Exercise Price shall be determined by the Committee, but in the
case of an Incentive Stock Option, such Exercise Price shall not be less than
100% (or, in the case of an Incentive Stock Option granted to an Employee who,
at the time of grant, owns stock representing more than ten (10%) percent of the
voting power of all classes of stock of the Employer, 110%) of the Fair Market
Value per Share on the Date of Grant.
(b) The Fair Market Value per Share shall be such amount as the Committee,
in its sole discretion shall determine; provided, however, that where there is a
public market for the Common Stock, the Fair Market Value per Share shall be
determined as follows: (i) if Common Stock is listed or admitted for trading on
any United States national securities exchange or included in the National
Market System of the National Association of Securities Dealers Automated
Quotation System ("NASDAQ/NMS") or the NASDAQ Small Cap Market, the mean of the
highest and lowest sales prices of the Common Stock on such exchange or system,
on the Date of Grant, as reported by The Wall Street Journal, or (ii) if the
securities are quoted on the National Association of Securities Dealers
Automated Quotation System (but not NASDAQ/NMS or NASDAQ Small Cap Market) or
similar system of automated dissemination of quotations of securities prices in
common use, the mean between the closing high bid and low asked quotations, of
the securities on such system on the Date of Grant, as reported in such system.
(c) Payment for the Shares upon exercise of an Option shall be made in
cash, or by check, or if authorized by the Committee, by promissory note or
delivery of other Shares, having a Fair Market Value on the date of delivery
equal to the aggregate Exercise Price of the Shares as to which said Option is
being exercised, or by any combination of such methods of payment or by any
other method of payment as may be permitted under applicable law and authorized
by the Committee.
9. Exercise of Option.
(a) Procedure for Exercise; Rights as a Shareholder. Any Option shall be
exercisable at such times, and under such conditions, as shall be determined by
the Committee, including performance criteria with respect to the Employer
and/or the Optionee, and as shall be permissible under the terms of the Plan.
An Option may not be exercised for a fraction of a Share.
An Option shall be deemed to be exercised when written notice of such
exercise has been given to the Company in accordance with the terms of the
Option by the person entitled to exercise the Option and full payment of the
Exercise Price for the Shares with respect to which the Option is exercised has
been received by the Company. Full payment may, as authorized by the Committee,
consist of any form of consideration and method of payment allowable under
Section 8(c) of the Plan. Until the issuance (as evidenced by the appropriate
entry on the books of the Company or of a duly authorized transfer agent of the
Company) of the stock certificate evidencing such Shares, no right to vote or
receive dividends or any other rights as a shareholder shall exist with respect
to the Optioned Stock, notwithstanding the exercise
CORPDAL:64565.1 22768-00001
4
<PAGE>
of the Option. No adjustment will be made for a dividend or other right for
which the record date is prior to the date as of which the stock certificate is
issued, except as provided in Section 11 of the Plan.
Each exercise of an Option shall reduce, pro tanto, the total number of
Shares that may thereafter be purchased under such Option. Subject to the
provisions of the Section 5(c), in no event shall be exercise of an Incentive
Stock Option by an Employee have any effect on the exercise of any Non-Statutory
Stock Options granted to such Employee, nor shall the exercise of a
Non-Statutory Stock Option have any effect on the exercise of any Incentive
Stock Options granted to such Employee.
(b) Termination of Status as an Employee or Consultant. Following his date
of Separation, an Optionee may, but only within thirty (30) days after such date
of Separation, exercise his Option to the extent that he was entitled to
exercise it on his date of Separation, and thereafter the unexercised portion of
the Option shall terminate.
(c) Disability of Optionee. Notwithstanding the provisions of Section 9(b)
above, in the event an Optionee's Separation is the result of permanent and
total disability (as defined in Section 22(e)(3) of the Code), he may, but only
within twelve (12) months from the date of Separation, exercise his Option to
the extent he was entitled to exercise it at the date of Separation. To the
extent that he was not entitled to exercise the Option at such date of
Separation, or if he does not exercise it within the time specified herein, the
unexercised portion of the Option shall terminate.
(d) Death of Optionee. In the event an Optionee's Separation is by reason
of death, the Option may be exercised, at any time within twelve (12) months
following the date of the Optionee's death, by the Optionee's estate or by a
person who acquired the right to exercise the Option by bequest or inheritance,
but only as to the number of Shares subject to the Option as to which the right
to exercise had accrued to the Optionee at the date of death. Notwithstanding
the foregoing, if an Optionee's death occurs within thirty (30) days after
Separation, the Option may be exercised at any time within three (3) months
following the date of the Optionee's death, by the Optionee's estate or by a
person who acquired the right to exercise the Option by bequest or inheritance,
but only to the extent of the right to exercise that had accrued at the date of
Optionee's Separation.
10. Non-Transferability of Options. Any Option granted hereunder may not be
sold, pledged, assigned, hypothecated, transferred, or disposed of in any manner
other than by will or by the laws of descent or distribution and may be
exercised, during the lifetime of the Optionee, only by the Optionee.
11. Adjustments Upon Changes in Capitalization or Merger. Subject to any
required action by the shareholders of the Company, the number of Shares covered
by each outstanding Option, and the aggregate number of Shares which have been
authorized for issuance under the Plan, as well as the Exercise Price, shall be
proportionately adjusted for any increase or decrease in the number of issued
shares of Common Stock resulting from a stock split or the payment of a stock
dividend with respect to the Common Stock or any other increase or decrease in
the number of issued shares of Common Stock effected without receipt of
consideration by the Company; provided, however, that conversion of any
convertible securities of the Company shall not be deemed to have been "effected
without receipt of consideration". Such adjustment shall be made by the
Committee, whose determination in that respect shall be final, binding and
conclusive. Except as expressly provided herein, no issuance by the Company of
shares of stock of any class, or securities convertible into shares of stock of
any class, shall affect, and no adjustment by reason thereof shall be made with
respect to, the number or Exercise Price of Shares subject to an Option.
In the event of the proposed dissolution or liquidation of the Employer, or
in the event of a proposed sale of all or substantially all of the assets of the
Employer, or the merger of the Employer with or into another corporation, any
Options of such Employer's Employees or Consultants will terminate immediately
prior to the consummation of such proposed action, unless otherwise provided by
the Committee. The Committee may, in the exercise of its sole discretion, in
such instances declare that any Option shall terminate as of a date fixed by the
Committee and give each Optionee the right to exercise his Option as to all or
any part of the Optioned Stock, including Shares as to which the Option would
not otherwise be exercisable.
12. Time of Granting Options. Any Option granted hereunder shall be deemed
to have been granted on the date on which the Committee makes its determination
to grant such Option to the Optionee. Written notice of the
CORPDAL:64565.1 22768-00001
5
<PAGE>
Committee's determination to grant an Option to an Employee or Consultant shall
be given to such Employee or Consultant within a reasonable time after the date
of such grant.
13. Amendment and Termination of the Plan.
(a) Amendment and Termination. The Board may terminate the Plan at any
time. The Board may amend the Plan at any time in such respects as the Board may
deem advisable; provided, that the following amendments shall require
Shareholder Approval:
(i) any change in the aggregate number of Shares (subject to the
adjustments described herein) subject to the Plan;
(ii) any change in the designation of the class of employees eligible
to be granted Incentive Stock Options;
(iii) permitting the granting of an Option which extends beyond Ten
(10) years from the Date of Grant;
(iv) extending the termination date of the Plan past the 10th
anniversary of its effective date; or
(v) if the Company has a class of equity security registered under
Section 12 of the Exchange Act at the time of such amendment, any change in
the Plan which would materially increase the benefits accruing to
participants under the Plan.
(b) Effect of Amendment or Termination. The amendment or termination of the
Plan shall not substantially impair the rights and obligations of the Optionee
under any Option with a Date of Grant prior to such amendment or termination,
unless the Optionee shall have consented to such change in writing.
14. Conditions Upon Issuance of Shares. Shares shall not be issued pursuant
to the exercise of an Option unless the exercise of such Option and the issuance
and delivery of such Shares pursuant thereto shall comply with all relevant
provisions of law, including, without limitation, the Securities Act of 1933, as
amended, the Exchange Act, the rules and regulations promulgated thereunder, and
the requirements of any stock exchange upon which the Shares may then be listed,
and shall be further subject to the approval of counsel for the Company with
respect to such compliance.
As a condition to the exercise of an Option, the Company may require the
person exercising such Option to represent and warrant at the time of any such
exercise that the Shares are being purchased only for investment and without any
present intention to sell or distribute such Shares if, in the opinion of
counsel for the Company, such a representation is required by any of the
aforementioned relevant provisions of law.
15. Reservation of Shares. The Company, during the term of this Plan, will
at all times reserve and keep available such number of Shares as shall be
sufficient to satisfy the requirements of the Plan.
Inability of the Company to obtain authority from any regulatory body
having jurisdiction, which authority is deemed by the Company's counsel to be
necessary to the lawful issuance and sale of any Shares hereunder, shall relieve
the Company of any liability in respect of the failure to issue or sell such
Shares as to which such requisite authority shall not have been obtained.
16. Option Agreement. Options shall be evidenced by written option
agreements in such form as the Committee shall approve.
17. Shareholder Approval. If the Plan is adopted by action of the Board of
Directors prior to Shareholder Approval, continuance of the Plan shall be
subject to Shareholder Approval within 12 months following the date of adoption.
CORPDAL:64565.1 22768-00001
6
EXHIBIT 4.2
CORPDAL:52067.3 22768-00001
<PAGE>
VTEL CORPORATION
INCENTIVE STOCK OPTION AGREEMENT
VTEL CORPORATION, a Delaware corporation (the "Company"), hereby grants
to Optionee this Incentive Stock Option to acquire ( ) Shares pursuant to the
Plan, WHICH OPTION SHALL BE SUBJECT TO, AND HEREBY INCORPORATES BY REFERENCE,
ALL OF THE PROVISIONS OF THE PLAN; provided, however, that where the provisions
of the Plan permit the provisions of the Option to control, such provisions of
this Option shall control; and provided, further, that express references herein
to provisions of the Plan are for convenience, and inclusion or omission of such
reference(s) shall not affect the construction of the terms and provisions of
this Option.
1. EXERCISE PRICE. The Exercise Price is ($ ).
------------- ------
2. EXERCISE OF OPTION. This Option shall be exercisable during
its term as follows:
(i) Right to Exercise.
(a) This Option shall be exercisable under this
paragraph 2(i)(a) that number of full Shares (less Shares
previously acquired) equal to the product of (i) the number of
Shares initially subject to this Option, and (ii) a fraction
whose numerator the number of full calendar months (not in
excess of ) of Continuous Status as an Employee or Consultant
which have elapsed between the Date of Grant and such date of
exercise, and whose denominator is , being exercisable in full
after .
(b) This Option may be exercised in whole or in part
at any time; provided, however, that where the Optionee
Separates prior to , all or any portion of such Shares
acquired which could not have been acquired on or prior to the
date of Separation through an exercise limited as provided in
paragraph 2(i)(a) ("Repurchasable Shares") shall be subject to
repurchase by the Company, upon a payment equal to the
Exercise Price, at any time within sixty (60) days immediately
following the date of such Separation. The Company shall
exercise its right to purchase Repurchasable Shares by written
notice(s) (the "Repurchase Notice") to the Optionee (or
successor). Each Repurchase Notice shall state that the
Company is exercising such right, specify the number of
Repurchasable Shares to be repurchased, and specify a closing
date (at the principal office of the Company) not less than
five (5), nor more than thirty (30), days from the date of
delivering the Repurchase Notice.
(ii) Method of Exercise. This Option shall be exercisable from
time to time by written notice from the Optionee which shall state the number of
Shares in respect of which this Option is being exercised, and which shall
contain or be accompanied by such other representations and agreements as may be
required by the Committee in accordance with the provisions of the Plan. The
written notice shall be accompanied by payment of the Exercise Price for the
Shares to be acquired.
(iii) Compliance With Law. No Shares will be issued pursuant
to the exercise of this Option unless the Company reasonably determines that
such issuance and such exercise shall comply with all relevant provisions of law
and the requirements of any stock exchange upon which the Shares may then be
listed.
(iv) Non-Statutory Option. Notwithstanding the provisions of
the first paragraph hereof, any Shares subject to this Option which are in
excess of the limitations of Section 5(c) of the Plan (after taking into account
any previously granted Incentive Stock Option(s)) will be deemed granted under a
Non-Statutory Stock Option but will in all other respects remain subject to the
terms hereof.
3. METHOD OF PAYMENT. The Exercise Price of any Shares purchased shall
be paid in cash, by check, by delivery of other Shares having a Fair Market
Value on the date of delivery equal to the aggregate Exercise Price of the
Shares as to which this Option is being exercised by delivery of Shares or, if
permitted by the Committee in its sole discretion, with a promissory note (and
security) acceptable to the Committee, or by a combination of the above.
4. TERMINATION OF OPTION PERIOD. The unexercised portion of
this Option shall automatically and without notice terminate and become null and
void at the time of the earliest to occur of the following:
(I) thirty (30) days after the Optionee's Separation,
other than a Separation by reason of death or
Disability;
(II) one (1) year after Separation by reason of Disability;
(III) one (1) year after Separation by reason of death;
(IV) three (3) months after Optionee's death within th
period following Separation described in (i); and
LABDAL:69319.6 22768-00001
1
<PAGE>
(V) the tenth (10th) anniversary of the Date of Grant.
5. EARLY DISPOSITION OF STOCK. Optionee hereby agrees that if Optionee
disposes of any Shares received under this Option either (i) within one (1) year
after the exercise date with respect to such Shares, or (ii) within 2 years
after the Date of Grant of this Option, Optionee will notify the Company in
writing within thirty (30) days after the date of such disposition.
6. NON-SOLICITATION. Without limiting the generality of any other
agreements of the parties, this Option is being issued in consideration for
Optionee's agreement that for twelve (12) months after Separation Optionee shall
not, directly or indirectly, without the prior written consent of the Company
(a) solicit or induce any employee of or consultant to the Company to leave the
employ of, or terminate the consulting relationship with, the Company or (b)
solicit or accept from any customer of the Company business which competes with
the business objectives of the Company. In the event of the breach of the
provisions of this Section 6(a) and/or (b), in addition to the Company's right
to enforce the provisions of this Section 6(a) and/or (b) to the maximum extent
permitted by law, this Option automatically shall become null and void (except
as to this Section 6) and, at the Company's sole discretion, evidenced by a
written notice delivered to the Optionee within 180 days following the first
date on which the President of the Company has actual knowledge of such a
breach, the Company may notify the Optionee that he or she shall be required to
return to the Company either (1) all Shares previously acquired through the
exercise of this Option, in exchange for the Company's payment to the Optionee
of the Exercise Price of each returned Share, (2) the portion of the proceeds of
the sale of such Shares which exceeds the Exercise Price of such Shares, or (3)
both.
DATE OF GRANT:
GRANT NUMBER:
VTEL CORPORATION
A DELAWARE CORPORATION
By:
---------------
President
OPTIONEE ACKNOWLEDGMENT
Optionee acknowledges receipt of a copy of the Plan, which is annexed
hereto as Exhibit A. Optionee represents that Optionee has read the terms and
provisions of the Plan and this Option, and accepts this Option subject to all
of such terms and provisions.
By:
---------------
Optionee
LABDAL:69319.6 22768-00001
2
EXHIBIT 5.1
CORPDAL:52067.3 22768-00001
<PAGE>
June 3, 1997
VTEL Corporation
108 Wild Basin Road
Austin, Texas 78746
Re: Registration Statement on Form S-8
Gentlemen:
We have acted as counsel to VTEL Corporation, a Delaware corporation
(the "Corporation"), in connection with the preparation of the Registration
Statement on Form S-8 (the "Registration Statement") to be filed with the
Securities and Exchange Commission on June 3, 1997, under the Securities Act of
1933, as amended (the "Securities Act"), relating to 2,700,000 shares of the
$.01 par value common stock (the "Common Stock") of the Corporation that may be
offered through the exercise of stock options (the "Options") granted or that
may be granted under the VTEL Corporation 1996 Stock Option Plan (the "Plan").
You have requested the opinion of this firm with respect to certain
legal aspects of the proposed offering. In connection therewith, we have
examined and relied upon the original, or copies identified to our satisfaction,
of (1) the Certificate of Incorporation and the Bylaws of the Corporation, as
amended; (2) minutes and records of the corporate proceedings of the Corporation
with respect to the establishment of the Plan, the reservation of 2,700,000
shares of Common Stock to be issued under the Plan and to which the Registration
Statement relates, the issuance of shares of Common Stock pursuant to the Plan
and related matters; (3) the Registration Statement and exhibits thereto,
including the Plan; and (4) such other documents and instruments as we have
deemed necessary for the expression of the opinions herein contained. In making
the foregoing examinations, we have assumed the genuineness of all signatures
and the authenticity of all documents submitted to us as originals, and the
conformity to original documents of all documents submitted to us as certified
or photostatic copies. As to various questions of fact material to this opinion,
and as to the content and form of the Certificate of Incorporation, the Bylaws,
minutes, records, resolutions and other documents or writings of the
Corporation, we have relied, to the extent we deem reasonably appropriate, upon
representations or certificates of officers or directors of the Corporation and
upon documents, records and instruments furnished to us by the Corporation,
without independent check or verification of their accuracy.
Based upon our examination and consideration of, and reliance on, the
documents and other matters described above, we are of the opinion that the
Corporation presently has available
CORPDAL:8633.1 22768-00001
<PAGE>
VTEL Corporation
June 3, 1997
Page 2
at least 2,700,000 shares of authorized but unissued shares of Common Stock
and/or treasury shares of Common Stock. From these shares of Common Stock, the
2,700,000 shares of Common Stock proposed to be offered pursuant to the exercise
of Options granted or to be sold through the Plan may be issued. Assuming that:
(i) any outstanding Options, if any, were duly granted, that the Options to be
granted in the future are duly granted, and that the shares to be sold in the
future through the Plan are all in accordance with the terms of the Plan, (ii)
the shares of Common Stock to be issued in the future are duly issued in
accordance with the terms of the Plan, (iii) the Corporation maintains an
adequate number of authorized but unissued shares and/or treasury shares of
Common Stock available for issuance to those persons who exercise Options
granted under or purchased through the Plan, and (iv) the consideration for
shares of Common Stock issued pursuant to the Plan and pursuant to such Options
is actually received by the Corporation as provided in the Plan and exceeds the
par value of such shares, then the shares of Common Stock issued in accordance
with the terms of the Plan and issued pursuant to the exercise of the Options
granted under or sold through and in accordance with the terms of the Plan will
be duly and validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to references to our firm included in or made a part
of the Registration Statement. In giving this consent, we do not admit that we
come within the category of persons whose consent is required under Section 7 of
the Securities Act or the Rules and Regulations of the Securities and Exchange
Commission thereunder.
Very truly yours,
JENKENS & GILCHRIST,
a Professional Corporation
By:/s/ L. Steven Leshin
---------------------
L. Steven Leshin
CORPDAL:8633.1 22768-00001
EXHIBIT 23.2
CORPDAL:52067.3 22768-00001
<PAGE>
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated October 10, 1996
appearing on page 31 of VTEL Corporation's Annual Report on Form 10-K for the
transition period from January 1, 1996 to July 31, 1996.
/s/ Price Waterhouse LLP
- ------------------------
PRICE WATERHOUSE LLP
Austin, Texas
May 28, 1997
CORPDAL:52067.3 22768-00001
