<PAGE> 1
As filed with the Securities and Exchange Commission on November 23, 1998
Registration No. 333-_________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
-------------------------------
PLANTRONICS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
-------------------------------
DELAWARE 77-0207692
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
345 ENCINAL STREET
SANTA CRUZ, CALIFORNIA 95060
(831) 426-5858
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
-------------------------------
ROBERT S. CECIL,
CHAIRMAN OF THE BOARD AND
CHIEF EXECUTIVE OFFICER
PLANTRONICS, INC.
345 ENCINAL STREET
SANTA CRUZ, CALIFORNIA 95060
(831) 426-5858
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
-------------------------------
Copy to:
HENRY P. MASSEY, JR., ESQ.
ERIC JOHN FINSETH, ESQ.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304
(650) 493-9300
-------------------------------
Approximate date of commencement of proposed sale to the public: As
soon as practicable after the effective date of this Registration Statement.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please check the
following box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
-------------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
<PAGE> 2
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=================================================================================================================
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF EACH CLASS AMOUNT OFFERING AGGREGATE AMOUNT OF
OF SECURITIES TO TO BE PRICE OFFERING REGISTRATION
BE REGISTERED REGISTERED PER SHARE PRICE FEE
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock
$0.01 par value......... 1,000,000 shares(1) $63.65625(2) $63,656,250 $17,697
=================================================================================================================
</TABLE>
(1) Registers the resale of up to 1,000,000 shares by the selling
stockholder.
(2) Calculated pursuant to Rule 457(c) as the average of the high
($64.3125) and low ($63) per share prices of the Registrant's Common
Stock on the New York Stock Exchange on November 17, 1998.
<PAGE> 3
The information in this prospectus is not complete and may be changed. The
selling stockholder may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is effective. This
prospectus is not an offer to sell these securities and it is not soliciting an
offer to buy these securities in any state where the offer or sale is not
permitted.
Subject to Completion, dated November 23, 1998
RESALE PROSPECTUS
PLANTRONICS, INC.
UP TO 1,000,000 SHARES OF COMMON STOCK
WHICH THE SELLING STOCKHOLDER MAY RESELL UNDER THIS PROSPECTUS
The stockholder of Plantronics, Inc. listed on page 11 may offer and
resell up to 1,000,000 shares of Plantronics common stock under this prospectus,
for its own account. Plantronics will receive no proceeds from such sales.
The selling stockholder may offer its Plantronics common stock
through public or private transactions, at prevailing market prices or at
privately negotiated prices. Such future prices are not currently known.
Plantronics common stock is listed on the New York Stock Exchange
under the ticker symbol "PLT". On November 20, 1998, the last reported sale
price on the NYSE of one share of Plantronics common stock was $66 1/2.
-------------------------------
CONSIDER CAREFULLY THE RISK FACTORS
BEGINNING ON PAGE 3 IN THIS PROSPECTUS.
-------------------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
-------------------------------
The date of this prospectus is November ___, 1998
<PAGE> 4
TABLE OF CONTENTS
<TABLE>
<S> <C>
Plantronics' Address................................................... 2
Forward-Looking Statements............................................. 2
Risk Factors........................................................... 3
Plantronics' Business.................................................. 9
Selling Stockholder.....................................................10
Plan of Distribution....................................................11
Information Incorporated by Reference...................................13
How to Get Information About Plantronics................................14
Accounting Experts......................................................14
</TABLE>
PLANTRONICS' ADDRESS
The Company's principal executive offices are located at 345 Encinal
Street, Santa Cruz, California 95060. The Company's telephone number at that
location is (831) 426-5858. Its internet website is at
http://www.plantronics.com.
FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated herein by reference
contain forward-looking statements. Plantronics bases these statements on its
current expectations, estimates and projections about its industry. Either the
beliefs of management, or assumptions made by management, form the basis for
those expectations, estimates and projections. The safe harbor created by
Section 27A of the Securities Act of 1933 and Section 21E of the Securities
Exchange Act of 1934 generally protects Plantronics and the selling stockholder
from liability for these statements. You can often recognize such
forward-looking statements by words such as "anticipates," "expects," "intends,"
"plans," "believes," "seeks," "estimates," variations of such words, and similar
expressions.
These forward-looking statements do not guarantee future performance
and are subject to risks, uncertainties and assumptions that are difficult to
predict. The Risk Factors section immediately following this paragraph sets
forth some of such risks and uncertainties. The documents incorporated by
reference may also set forth risks and uncertainties. These risks and
uncertainties could cause actual results to differ materially and adversely from
those discussed in the forward-looking statements. The Company undertakes no
obligation to publicly update any of these forward-looking statements to reflect
new information or future events.
-2-
<PAGE> 5
RISK FACTORS
You should carefully consider the risks described below. The
business, financial condition and results of operations of Plantronics could be
materially adversely affected if any of the risks occur. If the risks occur, the
trading price of Plantronics stock could decline and you could lose all or part
of your investment.
BACKGROUND
In reading these risk factors, you may find it helpful to first review the
Plantronics' Business section starting on page 9 of this prospectus.
COMPETITION
COMPETITIVE PRESSURE
Plantronics faces vigorous competition. The two largest competitors of
Plantronics in the call center market segment, GN Netcom and ACS Wireless, Inc.,
recently merged to form a single company. The effects of that merger cannot yet
be determined. However, such effects could include increased price competition,
which could adversely affect Plantronics' profit margins.
Plantronics competes primarily on the basis of technology, performance, price,
quality, reliability, distribution, customer service and support. To meet
competition and make or increase sales, Plantronics may have to invest more
heavily in new technologies, reduce its prices or increase the services and
support it provides. Reductions in prices or increases in the costs of making
and supporting its products could reduce profit margins. Such reduction in
margins could, in turn, cause a reduction in net earnings and a resulting
decline in the market price of Plantronics common stock.
POTENTIAL NEW COMPETITORS
Plantronics anticipates that it will face additional competition from companies
that currently do not offer communications headsets. This is particularly true
in the business, home office, wireless telephone and computer market segments.
These new competitors may be larger, offer broader product lines and have
substantially greater financial and other resources than Plantronics. To compete
successfully with such new competitors, Plantronics could have to reduce prices
and offer new technologies and increased customer support. Those efforts to meet
competition could negatively affect profit margins and earnings and result in
reductions in the market price of Plantronics' common stock.
NEED TO SUCCESSFULLY DEVELOP NEW PRODUCTS AND MARKETS
MEETING CONSUMER NEEDS
Historically, Plantronics has sold most of its products through independent
distributors to call center users. While that segment of the market is still the
most significant part of its business, Plantronics believes that the business,
home office, mobile and computer headset market segments offer substantial
growth potential. To be successful in those segments, Plantronics must be able
to develop new products that meet the needs of consumers. Although Plantronics
has attempted to determine the specific needs of consumers in these new market
segments, there is no assurance that Plantronics' present and future products
will be accepted. If the products are not accepted by consumers, Plantronics may
not achieve the revenue growth needed to cover the costs of developing,
manufacturing and selling the products. Plantronics could also be left with
inventories of obsolete and excess products. Earnings could be reduced and there
could be a loss in the value of Plantronics stock.
-3-
<PAGE> 6
DEMAND OF CHANGING TECHNOLOGIES
The technology of telephone headsets has traditionally evolved slowly. Products
have generally had life cycles of three to five years before introduction of the
next generation of products. Next generation products usually included stylistic
changes and quality improvements, but were based on similar technologies.
Plantronics believes that future changes in technology will come at a faster
pace. This is particularly true of headsets for use in the business, home
office, mobile and computer market segments. The development of new technologies
requires increased spending for research and development. Those increased
expenses may reduce the profit to Plantronics and adversely affect earnings and
the price of Plantronics' common stock.
RISKS RELATED TO GROSS PROFIT
RELIANCE UPON SUPPLIERS
Plantronics buys components and subassemblies from a variety of suppliers and
assembles them into finished products. The cost, quality, and availability of
such components are essential to the successful production of Plantronics'
communications products.
- There is always the risk that prices of components and subassemblies
will rise and that those cost increases cannot be reflected in sales
price increases in the finished products of Plantronics. If costs
rise faster than sales prices, gross profit margins would fall and
operating results would be affected.
- Plantronics obtains most components and subassemblies from numerous
sources or they are otherwise reasonably available. However,
Plantronics obtains certain subassemblies and components only from
single suppliers and alternate sources are not readily available. To
date, Plantronics has experienced only minor interruptions in the
supply of these components and subassemblies, none of which has
adversely affected its operations. However, an interruption in
supply from any of Plantronics' single source suppliers in the
future could adversely affect operations and financial results:
o If Plantronics could not obtain the single-source materials it
would not be able to manufacture the affected products. The
inability to meet customer orders would have a negative impact
on revenue and earnings.
o If the inability to deliver continued over an extended period,
there could be a long-term impact to the competitive position of
Plantronics. Potential customers could turn to competitive
sources for the products.
o If Plantronics could find alternate sources for the components
and subassemblies, those sources could charge more for the
materials. Higher prices for the materials would decrease gross
margins and net earnings if the selling price of the finished
product is not raised. If Plantronics increases selling prices
to reflect the higher costs of manufacture, there could be a
loss in sales.
- Plantronics does not have supply contracts with most of its
suppliers. Plantronics buys most components and subassemblies on a
purchase order basis. Therefore, there is no contractual requirement
that obligates those suppliers to continue to provide components and
subassemblies to Plantronics. If those suppliers were to experience
increased demand or shortages in their supply, it could affect
deliveries to Plantronics. Until alternate sources of the components
and subassemblies are developed, Plantronics would be unable to
manufacture and sell the products which are dependent on those
components and subassemblies. This would reduce revenues and
earnings. Also, the alternate sources of supply could charge higher
prices, having a potential impact on gross margins and earnings.
-4-
<PAGE> 7
NEED TO MATCH PRODUCTION TO DEMAND
Historically, Plantronics has seen steady increases in customer demand for its
products and has generally been able to increase production to meet that demand.
However, the demand for Plantronics' products is dependent on many factors and
such demand is inherently difficult to forecast.
- If demand increases beyond that forecasted, Plantronics would have
to rapidly increase production. Because Plantronics depends on
suppliers to provide additional volumes of components and
subassemblies, it might not be able to increase production rapidly
enough to meet unforecasted demand. This could cause Plantronics to
fail to meet customer expectations and adversely affect Plantronics'
operations and operating results.
- Rapid increases in production levels to meet unanticipated demand
could result in higher costs for components and subassemblies and
higher overtime costs and other expenses. Those higher expenditures
could negatively affect gross profit margins. Further, if production
is increased rapidly, there may be decreased manufacturing yields,
again affecting gross margins.
- If forecasted demand does not develop, Plantronics would have excess
production. Excess production would result in higher inventories of
finished goods and components. While held on the books, those high
inventories would negatively affect earnings. If it were unable to
sell these inventories, Plantronics would have to write off some or
all of its inventories of obsolete products and unusable components
and subassemblies. Such write-offs would have a negative impact on
earnings.
DIFFERENCES IN PRODUCT MIX
Different products sold by Plantronics have different gross profit margins.
Therefore, the gross profit percentage in any period depends on the mix of
products sold in the period. Meeting the needs of purchasers in the future may
cause the product mix to change and the gross profit percentage to fluctuate.
This could affect Plantronics' operating results.
VOLUME SALES
Plantronics may charge a lower price on certain products to high volume
purchasers to reflect the economies of scale in such large sales and to meet
competition for those accounts. The lower price on the high volume sales results
in a lower gross profit to Plantronics, which could adversely impact earnings.
IMPORTANCE OF PATENTS AND OTHER INTELLECTUAL PROPERTY RIGHTS:
Plantronics' success will depend in part on its ability to obtain patents and
preserve other intellectual property rights covering the design and operation of
its products. Plantronics currently holds certain patents and intends to
continue to seek patents on its inventions when appropriate. The process of
seeking patent protection can be lengthy and expensive. The costs to obtain
these patents, which Plantronics believes are important to its business,
negatively affect earnings.
Patents may not ultimately issue from currently pending or future patent
applications. Further, existing patents or any new patents issued may not be of
sufficient scope or strength to provide meaningful protection or commercial
advantage. Plantronics may be subjected to, or may initiate, litigation or
patent office interference proceedings, which may require significant financial
and management resources. The failure to obtain necessary licenses or other
rights or the advent of litigation arising out of any such claims could have a
material adverse effect on Plantronics' operations.
-5-
<PAGE> 8
RISK ASSOCIATED WITH FOREIGN OPERATIONS AND SALES
Approximately 30.7% of Plantronics' net sales in fiscal 1998 were derived from
customers outside the United States. In addition, Plantronics conducts
substantially all of its headset assembly operations in its Mexican
manufacturing facility and obtains most of the components of its products from
various foreign suppliers. Offshore operations are subject to certain inherent
risks. The inherent risks of offshore operations, particularly in Mexico, could
adversely affect Plantronics' business, operating results and financial
condition in the future. The types of risks faced in connection with foreign
operations and sales include:
GEOGRAPHIC RISK
Given the distances, there may be geographic limitations on management controls
and reporting. There may also be delays in transportation of components and
subassemblies and finished products.
- It is inherently more difficult to manage foreign operations due to
the distances and time differences. Those problems could adversely
impact the conduct of business and decrease earnings.
- There may be delays in obtaining necessary components and
subassemblies due to the time required to transport the materials
and the increased potential for problems in transportation. Such
delays could impact the manufacturing of Plantronics products.
Delays in manufacturing could cause losses in revenues from lost
sales. If, due to the delays, Plantronics must turn to alternate
sources for the materials, the costs of the materials could be
higher. This would decrease gross margins if prices are not
increased to reflect the higher costs. Alternatively, if prices were
increased, Plantronics could lose sales if demand decreased due to
the higher prices.
- Delays in transportation of finished products may prevent timely
supply of Plantronics products to foreign customers. This could
reduce revenues.
POLITICAL RISK
There may be changes in governmental policies, import/export regulations, taxes
and tariffs.
- Changes in governmental policies may affect the ability to obtain
critical components and subassemblies or to ship finished products
into the foreign markets.
o Foreign governments could restrict the export of components
and/or subassemblies critical to Plantronics products. This
could adversely affect revenues if there was a resulting
inability to manufacture. There would be adverse effects upon
gross margins if Plantronics was forced to qualify and use
higher cost alternate sources for the components and
subassemblies.
o Foreign governments may also place restrictions on the import of
Plantronics products or require technical modifications to the
products to sell them within the foreign country. Revenues would
be adversely affected if Plantronics sells products into the
foreign country. If Plantronics had to modify its products to
make sales in the country, its costs of manufacturing could
increase. If the price cannot be increased to reflect those
costs, margins would be affected. If prices are increased to
reflect any added costs of compliance, revenues could be
affected due to reduced demand.
-6-
<PAGE> 9
- Increased taxes could increase the cost of components and
subassemblies, reducing margins and earnings. Similarly, increased
taxes charged to purchasers could reduce demand for Plantronics'
products. This reduced demand could reduce revenue.
- Higher tariffs in the import of products into foreign countries
could adversely affect revenues. Higher tariffs raise the cost of
Plantronics products to purchasers in those countries. Those
increased costs to purchasers could reduce demand for Plantronics
products and, in certain cases, make Plantronics' products
non-competitive to other similar products.
- Changes in import/export regulations could result in delays in
obtaining components and subassemblies. This could prevent
Plantronics from timely manufacturing its products, thereby
decreasing revenues. Delays in obtaining components and
subassemblies could require Plantronics to turn to alternate
sources, which may increase manufacturing costs.
- Delays in the importation of Plantronics products into the foreign
country can affect revenues. Purchasers may turn to other sources if
they cannot obtain Plantronics products in a timely manner. If there
are significant delays due to changed import/export regulations,
Plantronics could have to provide price reductions or extend payment
terms to its distributors to reflect their increased costs. Those
price reductions or extended payment terms could adversely affect
earnings.
CURRENCY RISK
There may be fluctuations in currency exchange rates. Fluctuations in exchange
rates creates risk to Plantronics in both the sale of its products and its
purchase of supplies. To date, Plantronics has not been adversely affected by
fluctuating currencies. Plantronics does not currently engage in any hedging
activities to mitigate exchange rate risks. This strategy will require review,
and Plantronics may experience greater exposure to currency fluctuations as a
result of its increasing international activities. To the extent that
Plantronics increases sales to foreign customers, or to the extent that
Plantronics increases its transactions in foreign currencies, Plantronics'
results of operations could be adversely affected by exchange rate fluctuations.
Plantronics sells its products internationally in both United States dollars and
local foreign currencies. Transactions conducted in U.S. dollars are subject to
foreign exchange risk when declines in the value of local currencies relative to
the U.S. dollar result in less competitive pricing for Plantronics' product. In
transactions conducted in local foreign currencies, a decline in the value of
the foreign currency can result in less revenue if Plantronics is unable to
increase prices.
Transactions with Plantronics' suppliers are conducted principally in U.S.
dollars. Declines in the value of local currencies in countries from which
Plantronics purchases components and subassemblies generally result in lower
prices for such materials. However, to the extent that the currency exchange
rates reflect the underlying economic health of such foreign economies, there is
the risk over the longer term that such foreign suppliers may not continue in
business. Substantial increases in the values of local currencies relative to
the United States dollar could adversely affect Plantronics by causing suppliers
to increase the cost of their products. In this event, Plantronics would have to
either pass these cost increases on through higher prices to its customers,
possibly making its products less competitive, or accept lower margins.
-7-
<PAGE> 10
RISKS ASSOCIATED WITH THE YEAR 2000
Plantronics is undertaking efforts to ensure that its business systems and those
of its suppliers and customers are compliant with the requirements of the Year
2000. However, such efforts may not ensure against disruptions caused by the
arrival of the year 2000. The Year 2000 problem is potentially very widespread
and it is not possible to determine all the potential risks that Plantronics may
face. Some of the possible consequences to Plantronics include:
- The temporary closing of some portion or all of the manufacturing
plant if critical business systems or manufacturing systems fail or
local utilities suppliers are unable to supply needed power or
water.
- Delays in the delivery of finished products to customers if there
are manufacturing delays, inability of carriers to transport the
products, or inability of government agencies to process the export
and import of the products from the manufacturing facility to the
final destination.
- Delays in the receipt of key components or subassemblies due to
supplier problems or problems with carriers or the import/export
processes. Those delays could, in turn, delay production of
Plantronics products and/or result in having to turn to higher
priced alternative sources.
- Delays or errors in the purchase orders by which customers order
products, resulting in loss of or delays in recognition of revenues.
- Delays or errors in invoicing to customers, resulting in delays in
collection or potential losses of revenues.
These consequences could have a material adverse impact on Plantronics' results
of operations, financial condition and cash flows.
DEPENDENCE UPON SENIOR MANAGEMENT
Plantronics believes that it has benefited substantially from the leadership of
Robert S. Cecil, the Chairman of the Board and Chief Executive Officer of
Plantronics, and the other current members of senior management, and that the
loss of their services could have a material adverse effect on Plantronics'
business and future operations. Although Plantronics has an employment agreement
with Mr. Cecil, such agreement permits him to voluntarily terminate his
employment at any time. In addition, although Mr. Cecil's agreement contains a
five-year non-compete covenant which takes effect upon termination of his
employment, such covenants are generally not enforceable under California law.
On November 11, 1998, Plantronics announced that S. Kenneth Kannappan, President
and Chief Operating Officer, will be promoted to Chief Executive Officer and
President effective January 4, 1999. Mr. Cecil will continue to serve actively
as Chairman of the Board of Directors.
CONCLUSION
Because of the foregoing factors, as well as other variables affecting or which
could affect Plantronics' operating results, past financial performance should
not be considered a reliable indicator of future performance. Investors should
not rely upon historical trends to anticipate results or trends in future
periods.
-8-
<PAGE> 11
PLANTRONICS' BUSINESS
HEADSETS
The primary business of Plantronics is the manufacture and sale of lightweight
communications headsets. Headsets generally consist of a headset "top" worn on
the head or ear and an amplifier "bottom" that connects to the telephone,
computer or call distribution system. Many telephones and call distribution
systems are now being equipped with headset ports, into which the headset top
can be directly plugged. Headsets used with computers and other devices may also
plug directly into the computer sound card or other audio input.
HANDSETS
Plantronics, through its Walker Equipment Division, also manufactures and sells
communications handsets. The Walker handsets are principally used as original
and replacement handsets for pay telephones, elevator phones, and other non-home
telephones. Noise-canceling handsets are manufactured and sold for use with
telephones, computers and other products in high-noise environments. Specialized
handsets for use in testing telephone lines and equipment are also manufactured
and sold under the Walker label. Additionally, the Walker Equipment Division
sells specialty telephones and telephone handsets for use by the
hearing-impaired.
THE MARKET SEGMENTS
Plantronics' headset products are used worldwide by users in large and small
call centers. The users include telemarketing personnel, reservation agents,
customer support personnel, and telephone operators. Call centers range in size
from very small technical support groups to very large organizations with
literally thousands of users. Call center personnel are on the telephone
constantly and a headset is generally thought of as a required piece of
equipment. Plantronics estimates that the call center segment, including both
large and small call centers, accounts for the majority of Plantronics sales
today.
Plantronics also sells headsets for users in the business and home office user
market segments. People who use headsets in these segments are those whose
occupations may require intensive (but not constant) use of a telephone.
Headsets are also used with mobile and cellular telephones, for both business
and personal use.
Finally, headsets can be connected to computers for such applications as
multimedia programs, voice recognition programs, computer games and computer
telephony.
The handset products offered by the Walker Equipment division are used in many
different public telephone settings and as specialty replacement handsets for
home and business telephones. The Walker Equipment telephones and handsets for
the hearing- impaired are sold both for home and business users who benefit from
the special assistance that the Walker Equipment products provide.
DISTRIBUTION
Plantronics sells its products principally through a worldwide network of
independent distributors. Those distributors resell the headsets and handsets to
dealers, government purchasers, or end-users. Products are also sold by
Plantronics to retailers such as office supply and consumer electronics stores,
mail order catalogs, warehouse clubs and office supply distributors. In
addition, Plantronics manufactures products under private labels for other
companies, who then sell the
-9-
<PAGE> 12
products under their own names. Finally, Plantronics sells directly to certain
large users, such as telephone operating companies and other companies that
employ a large number of people in telephone-intensive jobs.
SELLING STOCKHOLDERS
The following table shows, in each case as of October 31, 1998:
- - the name of the selling stockholder,
- - how many shares the selling stockholder beneficially owns,
- - how many shares the selling stockholder can resell under this
prospectus, and
- - assuming the selling stockholder sells all shares listed next to its
name, how many shares the selling stockholder will beneficially own
after completion of the offering.
Plantronics may amend or supplement this prospectus from time to
time in the future to update or change this list of selling stockholders and
shares which may be resold.
<TABLE>
<CAPTION>
BENEFICIAL OWNERSHIP
SHARES SHARES WHICH MAY AFTER OFFERING
BENEFICIALLY BE SOLD UNDER -----------------------
SELLING STOCKHOLDER OWNED THIS PROSPECTUS SHARES PERCENTAGE
------------------- ------------ ---------------- -----------------------
<S> <C> <C> <C> <C>
Citicorp Foundation(1)(2)(3) 1,000,000 1,000,000 0 (4) 0.0%
</TABLE>
- ---------------------
(1) As of the date of this prospectus, the selling stockholder is a private
charitable foundation affiliated with Citicorp Venture Capital, Ltd.
Citicorp Venture Capital, Ltd. owns approximately 5,660,000 shares of
Plantronics common stock as of October 31, 1998, approximately 34% of the
total outstanding shares of Plantronics as of that date. Citicorp Venture
Capital, Ltd. has the right to, and has, designated three of the seven
members of Plantronics' Board of Directors.
(2) As of October 31, 1998, Citicorp Foundation does not actually own any of
these 1,000,000 shares. Instead, Citicorp Venture Capital, Ltd., which is
affiliated with Citicorp Foundation, owns all of such shares. However,
Citicorp Venture Capital, Ltd. has informed Plantronics that as soon as
practicable after the date of this prospectus Citicorp Venture Capital,
Ltd. will transfer all 1,000,000 shares to Citicorp Foundation by gift.
Because that transfer is anticipated, and because this prospectus
registers resales by Citicorp Foundation which may occur only after such
transfer, Citicorp Foundation has been shown as the beneficial owner of
the shares for purposes of this prospectus.
(3) It is expected that Citicorp Foundation's name will change to Citigroup
Foundation in early 1999.
(4) Assumes that Citicorp Foundation sells all 1,000,000 shares which it may
sell by using this prospectus.
-10-
<PAGE> 13
PLAN OF DISTRIBUTION
RESALES BY SELLING STOCKHOLDER
Plantronics is registering the resale of the shares on behalf of the
selling stockholder. The selling stockholder may offer and resell the shares
from time to time, either in increments or in a single transaction. It may also
decide not to sell all the shares it is allowed to resell under this prospectus.
The selling stockholder will act independently of Plantronics in making
decisions with respect to the timing, manner and size of each sale.
DONEES AND PLEDGEES
The term "selling stockholder" includes donees, i.e. persons who
receive shares from the selling stockholder after the date of this prospectus by
gift. The term also includes pledgees, i.e. persons who, upon contractual
default by the selling stockholder, may seize shares which the selling
stockholder pledged to such person. If the selling stockholder notifies
Plantronics that a donee or pledgee intends to sell more than 500 shares,
Plantronics will file a supplement to this prospectus.
COSTS AND COMMISSIONS
This prospectus has been prepared and filed by Plantronics with the
SEC pursuant to the terms of the Amended and Restated Registration Agreement
dated December 29, 1989. The Registration Agreement is among Plantronics,
Citicorp Venture Capital, Ltd. and certain other stockholders of Plantronics who
purchased shares of Plantronics prior to Plantronics' public offering in 1994.
Plantronics will pay all costs, expenses and fees in connection with the
registration of the shares. The selling stockholder will pay all brokerage
commissions and similar selling expenses, if any, attributable to the sale of
shares.
TYPES OF SALE TRANSACTIONS
The selling stockholder may sell the shares in one or more types of
transactions (which may include block transactions):
- - on the NYSE,
- - in negotiated transactions,
- - through put or call option transactions,
- - through short sales, or
- - any combination of such methods of sale.
The shares may be sold at market prices prevailing at the time of
sale, or at negotiated prices. Such transactions may or may not involve brokers
or dealers. The selling stockholder has informed Plantronics that it has not
entered into any agreements, understandings or arrangements with any
underwriters or broker-dealers regarding sale of the shares. It has also
informed Plantronics no one is acting as underwriter or coordinating broker in
connection with the proposed sale of shares.
-11-
<PAGE> 14
SALES TO OR THROUGH BROKER-DEALERS
The selling stockholder may conduct such transactions either by
selling shares directly to purchasers, or by selling shares to, or through,
broker-dealers. Such broker-dealers may act either as an agent of the selling
stockholder, or as a principal for the broker-dealer's own account. Such
broker-dealers may receive compensation in the form of discounts, concessions,
or commissions from the selling stockholder and/or the purchasers of shares.
This compensation may be received both if the broker-dealer acts as an agent or
as a principal. This compensation might also exceed customary commissions.
DEEMED UNDERWRITING COMPENSATION
The selling stockholder and any broker-dealers that act in
connection with the sale of shares might be deemed to be "underwriters" within
the meaning of Section 2(a)(11) of the Securities Act. Any commissions received
by such broker-dealers, and any profit on the resale of shares sold by them
while acting as principals, could be deemed to be underwriting discounts or
commissions under the Securities Act.
INDEMNIFICATION
Plantronics has agreed to indemnify the selling stockholder and the
selling stockholder has agreed to indemnify Plantronics, against certain
liabilities, including liabilities arising under the Securities Act. The selling
stockholder may agree to indemnify any agent, dealer or broker-dealer that
participates in transactions involving sales of shares against certain
liabilities, including liabilities arising under the Securities Act.
PROSPECTUS DELIVERY REQUIREMENTS
Because it may be deemed an underwriter, the selling stockholder
must deliver this prospectus and any supplements to this prospectus in the
manner required by the Securities Act. This might include delivery through the
facilities of the NYSE in accordance with Rule 153 under the Securities Act.
Plantronics has informed the selling stockholder that its sales in the market
may be subject to the antimanipulative provisions of Regulation M under the
Exchange Act.
STATE REQUIREMENTS
Some states require that any shares sold in that state only be sold
through registered or licensed brokers or dealers. In addition, some states
require that the shares have been registered or qualified for sale in that
state, or that there exist an exemption from the registration or qualification
requirement and that the exemption has been complied with.
DISTRIBUTION ARRANGEMENTS WITH BROKER-DEALERS
If the selling stockholder notifies Plantronics that any material
arrangement has been entered into with a broker-dealer for the sale of shares
through
- - a block trade,
- - special offering,
- - exchange distribution or secondary distribution, or
-12-
<PAGE> 15
- - a purchase by a broker or dealer,
then Plantronics will file, if required, a supplement to this prospectus under
Rule 424(b) under the Securities Act.
The supplement will disclose:
- - the name of the selling stockholder and of the participating
broker-dealer(s),
- - the number of shares involved,
- - the price at which such shares were sold,
- - the commissions paid or discounts or concessions allowed to such
broker-dealer(s), where applicable,
- - that such broker-dealer(s) did not conduct any investigation to
verify the information in this prospectus, and
- - any other facts material to the transaction.
INFORMATION INCORPORATED BY REFERENCE
This prospectus incorporates by reference the following documents
and information, all of which Plantronics has filed in the past with the SEC:
- - Plantronics' Annual Report on Form 10-K for the fiscal year ended
March 28, 1998, filed on June 24, 1998.
- - Plantronics' Quarterly Report on Form 10-Q for the quarterly period
ended June 27, 1998, filed on August 6, 1998.
- - Plantronics' Quarterly Report on Form 10-Q for the quarterly period
ended September 26, 1998, filed on November 10, 1998.
- - Item 1 of Plantronics' Registration Statement on Form 8-A, filed on
December 20, 1993, as amended on January 14, 1994 and November 7,
1997 (which in turn incorporates by reference the description of
Plantronics' common stock set forth in Plantronics' Registration
Statement on Form S-1 (Reg. No. 33-70744), filed on October 20,
1993, as amended by Amendment No. 1, filed on November 30, 1993,
Amendment No. 2, filed on December 27, 1993, and Amendment No. 3,
filed on January 18, 1994).
Unless Plantronics has filed a post-effective amendment to the
registration statement under the Securities Act which contains this prospectus
indicating that all of the shares have been sold or which deregisters all shares
then remaining unsold, all documents which Plantronics subsequently files under
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act shall be deemed to be
incorporated by reference in this prospectus and to be part of this prospectus
from the date of filing of such documents.
Plantronics will provide without charge to each person to whom a
copy of this prospectus is delivered, upon written or oral request, a copy of
the information that has been or may be incorporated by reference in this
prospectus, other than exhibits to such documents. Direct any request for such
copies to John A. Knutson, Vice President--Legal, Senior General Counsel and
Secretary, Plantronics, Inc., 345 Encinal Street, Santa Cruz, California 95060,
Tel: (831) 426-5858.
-13-
<PAGE> 16
HOW TO GET INFORMATION ABOUT PLANTRONICS
Plantronics is subject to the informational requirements of the
Exchange Act and therefore files reports, proxy and information statements and
other information with the SEC. You can inspect many of such reports, proxy and
information statements and other information on the SEC's internet website at
http://www.sec.gov.
You can also inspect and copy such reports, proxy and information
statements and other information at the SEC's Public Reference Room, 450 Fifth
Street, N.W., Washington, D.C. 20549. You can obtain information on the
operation of the Public Reference Room by calling the SEC at tel:
1-800-SEC-0330. You can also inspect and copy such reports, proxy and
information statements and other information may also be inspected and copied at
the following Regional Offices of the SEC: New York Regional Office, Seven World
Trade Center, Suite 1300, New York, New York 10048; and Chicago Regional Office,
Northwest Atrium Center, 500 West Madison Street, Suite 1400, Chicago, Illinois
60661. Plantronics' common stock is listed on the NYSE, and you can inspect such
reports, proxy and information statements and other information at the offices
of the NYSE, 20 Broad Street, New York, New York 10005.
This prospectus constitutes part of a registration statement on Form
S-3 (Reg. No. 333-________) initially filed by Plantronics with the SEC under
the Securities Act on November ___, 1998. This prospectus does not contain all
of the information set forth in the registration statement. For further
information with respect to Plantronics and the shares, you should refer to the
registration statement either at the SEC's website or at the addresses set forth
in the preceding paragraph. Statements in this prospectus concerning any
document filed as an exhibit to this prospectus are not necessarily complete,
and, in each instance, you should refer to the copy of such document which has
been filed as an exhibit to the registration statement. Each such statement is
qualified in its entirety by such reference.
No one is authorized to give any information or to make any
representations not contained in this prospectus in connection with any offering
made by this prospectus. If given or made, you must not rely on such information
or representations as having been authorized by Plantronics, the selling
stockholder or by any other person. This prospectus does not constitute an offer
to sell or a solicitation of an offer to buy any security other than the shares
offered hereby. This prospectus also does not constitute an offer to sell or a
solicitation of an offer to buy any of the shares offered hereby to any person
in any jurisdiction in which it is unlawful to make such an offer or
solicitation. Neither delivery of this prospectus, nor any sale or offer to sell
shares hereunder, shall under any circumstances create any implication that
there has been no change in the affairs of Plantronics since the date of this
prospectus or that the information contained in this prospectus is correct as of
any time subsequent to the date of this prospectus.
ACCOUNTING EXPERTS
The financial statements incorporated in this prospectus by
reference to Plantronics' Annual Report on Form 10-K for the fiscal year ended
March 28, 1998 have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
PricewaterhouseCoopers as experts in auditing and accounting.
-14-
<PAGE> 17
PART II: INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 14. EXPENSES.
The following table sets forth costs and expenses of the
sale and distribution of the securities being registered. All
amounts other than the registration filing fee are estimates. All of
the following expenses have been or will be paid by the Registrant,
rather than by the selling stockholder.
<TABLE>
<S> <C>
Registration filing fee $ 17,697
Printer costs 3,500
Legal fees 15,000
Accounting fees $ 2,500
--------
Total: $ 38,697
</TABLE>
ITEM 15. INDEMNIFICATION.
Section 145 of the Delaware General Corporation Law authorizes a
court to award, or a corporation's Board of Directors to grant,
indemnity to directors and officers. This may under certain
circumstances include indemnification for liabilities arising under
the Securities Act as well as for expenses incurred in that regard.
Article Nine of the Registrant's Certificate of Incorporation and
Article V of the Registrant's By-laws provide for indemnification of
its directors, officers, employees and other agents to the maximum
extent permitted by the Delaware General Corporation Law. The
Registrant has also entered into Indemnification Agreements with its
officers and directors.
In addition, the Registrant is party to a Registration Agreement
with Citicorp Venture Capital, Ltd. and certain other stockholders.
The Registration Agreement grants certain holders of the
Registrant's common stock, including the selling stockholder, the
right to demand registration of their shares, and to participate in
other registrations which the Registrant may undertake. The
Registrant filed this prospectus with the SEC in order to fulfill
its contractual obligations under the Registration Agreement. Under
the Registration Agreement, the Registrant has agreed to indemnify
the selling stockholder, and the selling stockholder has agreed to
indemnify the Registrant, against certain liabilities in connection
with this registration.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit
Number Document
------- --------
<S> <C>
5.1 Opinion of Counsel as to Legality of Securities Being
Registered.
10.1 Amended and Restated Registration Agreement dated December 29,
1989, as amended, between the Registrant and certain
stockholders of the Registrant.
23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants.
</TABLE>
-15-
<PAGE> 18
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(a) (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.
(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 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 Securities and Exchange 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 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.
-16-
<PAGE> 19
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant,
Plantronics, Inc., a corporation organized and existing under the laws of the
State of Delaware, certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Santa Cruz, State of California, on November
23, 1998.
PLANTRONICS, INC.
By: /s/ ROBERT S. CECIL
--------------------------------------
Robert S. Cecil,
Chairman of the Board
and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that each person whose signature
appears below constitutes and appoints Robert S. Cecil and John A. Knutson,
jointly and severally, his or her attorneys-in-fact, each with the power of
substitution, for him or her in any and all capacities, to sign any amendment to
this Registration Statement on Form S-3, and to file the same, with exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, hereby ratifying and confirming all that each of said
attorneys-in-fact, or his or her substitute or substitutes, may do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ ROBERT S. CECIL Chairman of the Board and Chief November 23, 1998
- ----------------------------- Executive Officer (Principal
Robert S. Cecil Executive Officer)
/s/ BARBARA V. SCHERER Senior Vice President--Finance & November 23, 1998
- ----------------------------- Administration, and Chief Financial
Barbara V. Scherer Officer (Principal Financial Officer,
Principal Accounting Officer)
/s/ ROBERT F.B. LOGAN Director November 23, 1998
- -----------------------------
Robert F.B. Logan
/s/ M. SALEEM MUQADDAM Director November 23, 1998
- -----------------------------
M. Saleem Muqaddam
/s/ JOHN MOWBRAY O'MARA Director November 23, 1998
- -----------------------------
John Mowbray O'Mara
</TABLE>
<PAGE> 20
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ TRUDE C. TAYLOR Director November 23, 1998
- -----------------------------
Trude C. Taylor
/s/ J. SIDNEY WEBB Director November 23, 1998
- -----------------------------
J. Sidney Webb
/s/ DAVID A. WEGMANN Director November 23, 1998
- -----------------------------
David A. Wegmann
</TABLE>
<PAGE> 21
INDEX TO EXHIBITS
<TABLE>
<S> <C>
5.1 Opinion of Counsel as to Legality of Securities Being Registered.
10.1 Amended and Restated Registration Agreement dated December 29, 1989,
as amended, between the Registrant and certain stockholders of the
Registrant.
23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants.
</TABLE>
<PAGE> 1
[Exhibit 5.1]
[WSGR LETTERHEAD]
November 20, 1998
Plantronics, Inc.
337 Encinal Street
Santa Cruz, California 95060
RE: LEGALITY OF SECURITIES COVERED BY REGISTRATION STATEMENT ON FORM
S-3
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-3 to be filed
by you with the Securities and Exchange Commission on or about November 20,
1998, Reg. No. 333-________ (the "Registration Statement"), in connection with
the registration under the Securities Act of 1933, as amended, of a total of
1,000,000 shares of your Common Stock (the "Shares"), all of which are issued
and outstanding and may be offered for sale by and for the benefit of certain
selling stockholders. As legal counsel for Plantronics, Inc., we have examined
the proceedings taken and are familiar with the proceedings proposed to be taken
by you in connection with sales, if any, of the Shares by such selling
stockholders.
It is our opinion that the Shares are legally and validly issued,
fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the
Registration Statement, including the prospectus constituting a part thereof,
and further consent to the use of our name wherever it appears in the
Registration Statement and any amendments thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ Wilson Sonsini Goodrich & Rosati
by hpm
<PAGE> 1
EXHIBIT 10.1
AMENDED AND RESTATED
REGISTRATION AGREEMENT
This Amended and Restated Registration Agreement is made as of December
29, 1989, by and among PI Parent Corporation, a Delaware corporation (the
"Company"), Citicorp Venture Capital, Ltd., a New York corporation ("CVC"),
Kidder, Peabody Group Inc., a Delaware corporation ("Kidder"), KP/Hanover
Partners, 1988 L.P., a Delaware limited partnership ("KP/Hanover"), David A.
Wegmann ("Wegmann"), Neil J. Hynes ("Hynes"), Trude C. Taylor ("Taylor"),
Sidney Webb ("Webb"), The Equitable Life Assurance Society of the United States
("Equitable"), Equitable Deal Flow Fund, L.P. ("Deal Flow Fund") and Tandem
Insurance Group, Inc. ("Tandem Group") and the individuals named on Schedule I
hereto (hereinafter referred to as the "Executives"). Certain capitalized terms
not otherwise defined herein are defined in Section 10 below.
WHEREAS, CVC, Kidder, Wegmann, Hynes and the Company entered into a
Stock and Note Purchase Agreement, a Registration Agreement and a Stockholder
Agreement, each dated as of September 14, 1988 (the "Investor Purchase
Agreement," the "Registration Agreement" and the "Stockholder Agreement,"
respectively) as amended by that certain Amendment No. 1 Agreement, dated as of
November 30, 1988, by and among such parties ("Amendment No. 1"), and as
further amended by that certain Amendment No. 2 Agreement, dated as of March 1,
1989, by and among such parties and Taylor, pursuant to which Taylor purchased
certain shares of Common Stock and Preferred Stock and certain of the Company's
Notes ("Amendment No. 2") and as yet further amended by that certain Purchase
Agreement and Amendment to Prior Agreements dated as of November 22, 1989, by
and among such parties and Webb, pursuant to which Webb purchased certain
shares of Common Stock and Preferred Stock and certain of the Company's Notes
("Amendment No. 3") (as so amended by Amendment No. 1, Amendment No. 2, and
Amendment No. 3, the "Existing Investor Purchase Agreement", the "Existing
Registration Agreement" and the "Existing Stockholder Agreement,"
respectively). Kidder transferred a portion of its interest in the capital
stock of the Company to KP/Hanover pursuant to an assignment effective November
30, 1988 and in connection therewith, KP/Hanover became a party to the
Stockholder Agreement pursuant to an agreement dated as of November 30, 1988
between KP/Hanover and the Company;
WHEREAS, the Certificate of Incorporation of the Company has been
amended in order to, among other things, increase the number of shares of stock
which the Company has authority to issue and authorize 100,000 shares of Class
D Common Stock, par value $0.01 per share ("Class D Common");
<PAGE> 2
WHEREAS, the Company desires to sell and the Equitable Investors desire
to purchase an aggregate of 7,323.3 shares of Class D Common (the "Shares"),
pursuant to the Stock Purchase Agreement dated as of December 29, 1989 by and
among the Company and the Equitable Investors (the "Stock Purchase Agreement");
and
WHEREAS, the parties hereto desire to amend and restate the
Registration Agreement in order to, among other things, add the Equitable
Investors as parties thereto and provide the registration rights set forth in
this Agreement. Except as otherwise indicated, capitalized terms used herein
are defined in Section 10 hereof.
NOW, THEREFORE, in consideration of the foregoing and the respective
covenants and agreements of the parties contained in this document, the parties
hereto agree as follows:
1. DEMAND REGISTRATIONS.
(a) REQUESTS FOR REGISTRATION. At any time, the holders of
a majority of the outstanding Registrable Securities may request registration
under the Securities Act of all or any portion of their Registrable Securities
on Form S-1 or any similar long-form registration ("Long-Form Registrations"),
or on Form S-2 or S-3 or any similar short-form registration ("Short-Form
Registrations"), if available, provided, that if the Company has not previously
filed a registration statement on Form S-1 (or any successor form) which has
become effective pursuant to the Securities Act covering the sale of shares of
its common stock (an "Initial Public Offering"), such majority shall include
the holders of a majority of the Investor Registrable Securities.
Notwithstanding the foregoing, if there has been no Initial Public Offering
within five years after the date of this Agreement, holders of at least 60
percent of the outstanding Registrable Securities not held by Citicorp Venture
Capital, Ltd. or its affiliates will have the right to request a Long-Form
Registration hereunder (the "Standby Registration Right"). Within ten days
after receipt of any such request, the Company will give written notice of such
requested registration to all other holders of Registrable Securities and will
include in such registration all Registrable Securities with respect to which
the Company has received written requests from any holder of Registrable
Securities for inclusion therein within 15 days after the receipt of the
Company's notice. All registrations requested pursuant to this Section 1(a) or
Section 1(d) are collectively referred to herein as "Demand Registrations."
(b) LONG-FORM REGISTRATIONS. Subject to Section 1(a) above,
the holders of Registrable Securities will be entitled
- 2 -
<PAGE> 3
to request three Long-Form Registrations (in addition to any demand
registration under Section 1(d)), provided that the aggregate offering price of
Registrable Securities requested to be registered in any Long-Form Registration
must equal or exceed $7.5 million if such Demand Registration is an Initial
Public Offering (other than pursuant to the Standby Registration Right), and $4
million in the case of any other Long-Form Registrations. A registration will
not count as one of the permitted Long-Form Registrations until it has become
effective (unless such Long-Form Registration has not become effective due
solely to the fault of the holders requesting such registration) and unless the
holders of Registrable Securities are able to register and sell at least 90% of
the Registrable Securities requested to be included in such registration;
provided that in any event the Company will pay all Registration Expenses in
connection with any registration initiated as a Long-Form Registration. All
Long-Form Registrations shall be underwritten registrations.
(c) SHORT-FORM REGISTRATIONS. In addition to the Long-Form
Registrations provided pursuant to Section 1(b), the holders of at least 15% of
the outstanding Registrable Securities will be entitled to request an unlimited
number of Short-Form Registrations; provided that the aggregate offering price
of Registrable Securities requested to be registered in any Short-Form
Registration must equal or exceed $500,000. Demand Registrations will be
Short-Form Registrations whenever the Company is permitted to use any
applicable short form. The Company will use its best efforts to make Short-Form
Registrations on Form S-3 available for the sale of Registrable Securities once
it has become subject to the reporting requirements of the Securities Exchange
Act.
(d) EQUITABLE INVESTORS REQUEST FOR REGISTRATIONS. In the event
that any of the Equitable Investors exercise their right to require the Company
to repurchase all of the Warrants in accordance with the terms of Section 6 of
the Stock Purchase Agreement and the Company fails, for any reason whatsoever
or for no reason, to make the payments required thereunder in the manner and at
the time required, or otherwise fails to comply with the provisions thereof
(disregarding for such purposes the last sentence of such Section 6), the
Majority of the Equitable Investors holding Registrable Securities may request
in writing that the Company effect the registration under the Securities Act of
all or part of such holder's or holders' Registrable Securities, specifying in
the request the number and type of Registrable Securities to be registered by
each such holder and the intended method of disposition thereof (such notice is
hereinafter referred to as an "Equitable Holder Request"). Upon receipt of such
Equitable Holder Request, the Company will promptly give written notice of such
requested registration to
- 3 -
<PAGE> 4
all other holders of Registrable Securities, which other holders shall have the
right to include the Registrable Securities held by them in such registration,
and thereupon the Company will, as soon as reasonably possible, use its best
efforts to effect the registration under the Securities Act of:
(i) the Registrable Securities which the Company has been so
requested to register by such Equitable Investors; and
(ii) all other Registrable Securities which the Company has been
requested to register by any other holder thereof by written request given
to the Company within 30 calendar days after the giving of such written
notice by the Company, all to the extent necessary to permit the
disposition (in accordance with the intended method thereof as aforesaid)
of the Registrable Securities so to be registered;
provided, however, that the Company shall not be obligated to file a
registration statement relating to any Equitable Holder Request under this
Section 1(d) unless the Company shall have received requests for such
registration with respect to all of the Shares then held by the Equitable
Investors.
Each Equitable Investor agrees, on behalf of itself and its successors and
assigns, that upon written request of the Majority of the Equitable Investors,
it will participate in any Demand Registration initiated under this Section
1(d) in the same manner and to the same extent as the Equitable Investors
constituting such Majority of the Equitable Investors.
Notwithstanding the foregoing provisions of Section 1(d), the Company
shall not be obligated to file more than one registration statement pursuant to
this Section 1(d).
(e) Priority on Demand Registrations. The Company will not include in any
Demand Registration any securities which are not Registrable Securities without
the written consent of the holders of a majority of the Registrable Securities
requesting such registration. If a Demand Registration is an underwritten
offering and the managing underwriters advise the Company in writing that in
their opinion the number of Registrable Securities and other securities
requested to be included exceeds the number of Registrable Securities and other
securities which can be sold in such offering, the Company will include in such
registration (A) first, the Registrable Securities requested to be included pro
rata on the basis of the number of Registrable Securities of the applicable
type owned by each such holder and (B) second, other securities (if any)
permitted to be included in
-4-
<PAGE> 5
such registration; provided, however, for any Demand Registration made pursuant
to Section 1(d), the Company will include in such registration (x) first, all of
the Registrable Securities requested to be included by the Equitable Investors
(pro rata, on the basis of the respective numbers of shares of Warrant Stock
held, or subject to Warrants held, by the Equitable Investors) and (y) then as
set forth in subclauses (A) and (B) above.
(f) Restrictions on Demand Registrations. The Company will not be
obligated to effect any Long-Form Registration within four months after the
effective date of a previous registration initiated as a Demand Registration or
a registration in which the holders of Registrable Securities were given
piggyback rights pursuant to Section 2. The Company may postpone for up to three
months (but not more than once with respect to any registration) the filing or
the effectiveness of a registration statement for a Demand Registration if (i)
the Company determines in good faith that such Demand Registration might
reasonably be expected to have an adverse effect on any proposal or plan by the
Company or any of its Subsidiaries to engage in any acquisition of assets or
stock (other than in the ordinary course of business) or any merger,
consolidation, tender offer or similar transaction or (ii) the Board determines
in good faith that to effect the registration in the time requested by the
holders of Registrable Securities would have a material adverse effect on the
Company; provided that in any such event the holders of a majority of the type
of Registrable Securities requesting such Demand Registration will be entitled
to withdraw such request and, if such request is withdrawn, such Demand
Registration will not count as a Demand Registration.
(g) Selection of Underwriters. The holders of a majority of the
Registrable Securities requesting any Demand Registration will have the right to
select the investment banker(s) and manager(s) to administer the applicable
offering and to approve underwriting arrangements, subject to the Company's
approval, which will not be unreasonably withheld. The parties acknowledge that
Kidder, Peabody & Co. Incorporated has certain rights to serve as underwriter in
connection with the Company's registration statements through September 14, 1990
pursuant to a letter agreement with PI Holdings Inc., a Delaware subsidiary and
a wholly owned subsidiary thereof, dated August 9, 1988.
(h) Other Registration Rights. Except as provided in this Agreement,
the Company will not grant to any Person the right to request the Company to
register any equity securities of the Company, or any securities convertible
into or exercisable or exchangeable for such securities, without the
-5-
<PAGE> 6
written consent of the holders of a majority of the outstanding Registrable
Securities; provided, that the Company may grant rights to other Persons to
participate in Piggyback Registrations so long as such rights are subordinate
to the rights of the holders of Registrable Securities with respect to such
Piggyback Registrations.
(i) Registration Expenses. The Company will pay all Registration
Expenses in connection with any registration initiated as a Demand Registration;
provided, that, at the option of the Company, holders of securities other than
Registrable Securities permitted to be included in any Demand Registration may
be requested to pay their share of the Registration Expenses in connection with
such Demand Registration.
2. Piggyback Registrations.
(a) Right to Piggyback. Whenever the Company proposes to register any
of its securities under the Securities Act (other than pursuant to a Demand
Registration) and the registration form to be used may be used for the
registration of Registrable Securities (a "Piggyback Registration"), the
Company will give prompt written notice (in any event within five business days
after its receipt of notice of any exercise of other demand registration
rights) to all holders of Registrable Securities of its intention to effect
such a registration and, subject to subsections 2(c) and (d) below, will
include in such registration all Registrable Securities with respect to which
the Company has received written requests for inclusion therein within 30 days
after the receipt of the Company's notice.
(b) Piggyback Expenses. The Registration Expenses of the holders of
Registrable Securities will be paid by the Company in all Piggyback
Registrations.
(c) Priority on Primary Registrations. If a Piggyback Registration is
an underwritten primary registration on behalf of the Company and the managing
underwriters advise the Company in writing that in their opinion the number of
securities requested to be included in such registration exceeds the number
which can be sold in such offering, the Company will include in such
registration (i) first, the securities the Company proposes to sell, (ii)
second, the Registrable Securities requested to be included in such
registration, pro rate among the respective holders thereof on the basis of the
number of Registrable Securities owned by such holders, and (iii) third, other
securities requested to be included in such registration.
-6-
<PAGE> 7
(d) Priority on Secondary Registrations. If a Piggyback Registration
is an underwritten secondary registration on behalf of holders of the Company's
securities other than Registrable Securities and the managing underwriters
advise the Company in writing that in their opinion the number of securities
requested to be included in such registration exceeds the number which can be
sold in such offering, the Company will include in such registration (i) first,
the securities requested to be included therein by the holders requesting such
registration and the Registrable Securities requested to be included in such
registration, pro rata among the respective holders thereof on the basis of the
number of such other securities and/or Registrable Securities owned by such
holders, and (ii) second, other securities requested to be included in such
registration.
(e) Selection of Underwriters. If any Piggyback Registration is an
underwritten offering, the selection of investment banker(s) and manager(s) for
the offering and any underwriting arrangements must be approved by the holders
of a majority of the Registrable Securities included in such Piggyback
Registration. Such approval will not be unreasonably withheld.
(f) Other Registration. If the Company has previously filed a
registration statement with respect to Registrable Securities pursuant to
Section 1 or pursuant to this Section 2 and if such previous registration has
not been withdrawn or abandoned, the Company will not file or cause to be
effected any other registration of any of its equity securities or any
securities convertible into or exercisable or exchangeable for its equity
securities under the Securities Act (except on Form S-8 or any successor form),
whether on its own behalf or at the request of any holder or holders of such
securities, until a period of at least six months has elapsed from the effective
date of such previous registration.
3. Holdback Agreements.
(a) Each holder of Registrable Securities agrees not to effect any
public sale or distribution of equity securities of the Company, or any
securities convertible into or exercisable or exchangeable for such securities,
during the seven days prior to and the 90-day period beginning on the effective
date of any underwritten Demand Registration or any underwritten Piggyback
Registration in which Registrable Securities are included (except as part of
such underwritten registration), unless the underwriters managing the registered
public offering otherwise agree.
-7-
<PAGE> 8
(b) The Company agrees (i) not to effect any public sale or
distribution of its equity securities, or any securities convertible into or
exercisable or exchangeable for such securities, during the seven days prior to
and during the 90-day period beginning on the effective date of any underwritten
Demand Registration or any underwritten Piggyback Registration in which
Registrable Securities are included (except as part of such underwritten
registration or pursuant to registrations on Form S-8 or any successor form),
unless the underwriters managing such registered public offering otherwise
agree, and ii) to cause each holder of 3 percent or more (on a fully-diluted
basis) of its equity securities, or any securities convertible into or
exercisable or exchangeable for such securities, purchased from the Company at
any time after the date of this Agreement (other than in a registered public
offering), if such holder is not or does not become a party to this Agreement,
to agree not to effect any public sale or distribution of any such securities
during such period (except as part of such underwritten registration, if
otherwise permitted), unless the underwriters managing the registered public
offering otherwise agree.
4. REGISTRATION PROCEDURES.
(i) Whenever the holders of Registrable Securities have
requested that any Registrable Securities be registered pursuant to this
Agreement, the Company will use its best efforts to effect the registration and
the sale of such Registrable Securities in accordance with the intended method
of disposition thereof (including the registration of Class B Common, Class C
Common or Class D Common held by a holder of Registrable Securities requesting
registration as to which the Company has received reasonable assurances that
only Registrable Securities will be distributed to the public) and pursuant
thereto the Company will as expeditiously as possible:
(ii) prepare and file with the Securities and Exchange
Commission a registration statement with respect to such Registrable Securities
and use its best efforts to cause such registration statement to become
effective; provided that, before filing a registration statement or prospectus
or any amendments or supplements thereto, the Company will, if requested by any
holder of Registrable Securities covered by such registration statement,
furnish to any counsel selected by such holder copies for review of all such
documents proposed to be filed;
(iii) prepare and file with the Securities and Exchange
Commission such amendments and supplements to such registration statement and
the prospectus used in
-8-
<PAGE> 9
connection therewith as may be necessary to keep such registration statement
effective for a period of not less than six months (or (i) in the case of an
underwritten registration, for such shorter period as may be agreed to by the
underwriters managing such registration and (ii) in the case of any other
registration and (ii) in the case of any other registration, if earlier, until
the sale of all securities covered by such registration or the termination of
the distribution pursuant to such registration) and comply with the provisions
of the Securities Act with respect to the disposition of all securities covered
by such registration statement during such period in accordance with the
intended methods of disposition by the sellers thereof set forth in such
registration statement;
(iv) furnish to each seller of Registrable Securities such number of
copies of such registration statement, each amendment and supplement thereto,
the prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as such seller may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such seller;
(v) use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions
as any seller reasonably requests and do any and all other acts and things
which may be reasonably necessary or advisable to enable such seller to
consummate the disposition in such jurisdictions of the Registrable Securities
owned by such seller (provided that the Company will not be required to (i)
qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this subsection, (ii) subject itself
to taxation in any such jurisdiction or (iii) consent to general service of
process in any such jurisdiction);
(vi) notify each seller of such Registrable Securities, at any time when a
prospectus relating thereto is required to be delivered under the Securities
Act, of the happening of any event as a result of which the prospectus included
in such registration statement contains an untrue statement of a material fact
or omits any fact necessary to make the statements therein not misleading, and,
at the request of any such seller, prepare a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus will not contain an untrue statement of
a material fact or omit to state any fact necessary to make the statements
therein not misleading;
-9-
<PAGE> 10
(vii) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are then
listed;
(viii) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration statement;
(ix) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the holders of
a majority of the Registrable Securities being sold or the underwriters, if
any, reasonably request in order to expedite or facilitate the disposition of
such Registrable Securities (including effecting a recapitalization of the
Common Stock, including a stock split or a combination of shares);
(x) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement, and any attorney, accountant or other agent retained by
any such seller or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the Company's
officers, directors, employees and independent accountants to supply all
information reasonably requested by such seller, underwriter, attorney,
accountant or agent in connection with such registration statement;
(xi) obtain a cold comfort letter from the Company's independent
public accountants in customary form and covering such matters of the type
customarily covered by cold comfort letters as the holders of a majority of the
Registrable Securities being sold reasonably request (provided, in the case of
a Piggyback Registration, that such Registrable Securities constitute at least
10% of the securities covered by such registration statement);
(xii) otherwise use its best efforts to comply with all applicable
rules and regulations of the Securities and Exchange Commission and make
generally available to any seller, in each case as soon as practicable, but not
later than 45 calendar days after the close of the period covered thereby (90
calendar days in case the period covered corresponds to a fiscal year of the
Company), an earnings statement of the Company which will satisfy the
provisions of Section 11(a) of the Securities Act; and
(xiii) execute and deliver all instruments and documents and take such
other actions and obtain such certificates and opinions as holders of a
majority of the
-10-
<PAGE> 11
Registrable Securities being sold reasonably request in order to effect an
underwritten public offering of such Registrable Securities.
(a) Each holder of Registrable Securities will, upon receipt of any
notice from the Company of the happening of any event of the kind described in
subsection 4(a)(v), forthwith discontinue disposition of the Registrable
Securities pursuant to the registration statement covering such Registrable
Securities until such holder's receipt of the copies of the supplemented or
amended prospectus contemplated by subsection 4(a)(v).
(b) In lieu of converting any share of Class D Common into Class A
Common prior to or simultaneously with the filing or the effectiveness of any
registration statement filed pursuant to Section 1 or 2, the holder of Class D
Common shall be permitted to sell such Class D Common to the underwriter of the
offering being registered upon the undertaking of such underwriter to convert
such Class D Common before making any distribution pursuant to such registration
statement and to include the Class A Common issued upon such conversion among
the securities being offered pursuant to such registration statement. The
Company agrees to cause such Class A Common to be included among the securities
being offered pursuant to such registration statement to be issued within such
time as will permit the underwriter to make and complete the distribution
contemplated by the underwriting.
5. REGISTRATION EXPENSES.
(a) All expenses incident to the Company's performance of or
compliance with this Agreement, including without limitation all registration
and filing fees, fees and expenses of compliance with securities or blue sky
laws, printing expenses, messenger and delivery expenses, and fees and
disbursements of counsel for the Company and all independent certified public
accountants, underwriters (excluding discounts and commissions other than those
relating to Registrable Securities being offered by the Company) and other
Persons retained by the Company (all such expenses being herein called
"Registration Expenses"), will be borne as provided in this Agreement, except
that the Company will, in any event, pay its internal expenses (including
without limitation all salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of any annual audit or
quarterly review, the expense of any liability insurance and the expenses and
fees for listing the securities to be registered on each securities exchange on
which similar securities issued by the Company are then listed.
-11-
<PAGE> 12
(b) In connection with each Long-Form Registration, each Short-Form
Registration and each Piggyback Registration, the Company will reimburse the
holders of Registrable Securities covered by such registration for the
reasonable fees and disbursements of one counsel chosen by the holders of a
majority of such Registrable Securities.
6. Indemnification.
(a) The Company agrees to indemnify, to the extent permitted by law,
the Equitable Investors, Equitable Capital Management Corporation, a Delaware
corporation and each holder or former holder of Registrable Securities, its
officers and directors, and each Person that controls such holder (within the
meaning of the Securities Act) (collectively, the "Indemnified Parties")
against all losses, claims, damages, liabilities and expenses caused by any
untrue and alleged untrue statement of material fact contained in any
registration statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein
not misleading, except insofar as the same are caused by or contained in any
information furnished in writing to the Company by such Indemnified Party
expressly for use therein or by such Indemnified Party's failure to deliver a
copy of the final prospectus or any amendments or supplements thereto after the
Company has furnished such Indemnified Party with a sufficient number of copies
of the same. In connection with an underwritten offering, the Company will
indemnify such Indemnified Parties underwriters, their officers and directors
and each Person who controls such underwriters (within the meaning of the
Securities Act) to the same extent as provided above with respect to the
indemnification of the holders of Registrable Securities.
(b) In connection with any registration statement in which a holder
of Registrable Securities is participating, each such holder and each other
Indemnified Parties will furnish to the Company in writing such information and
affidavits as the Company reasonably requests for use in connection with any
such registration statement or prospectus and, to the extent permitted by law,
will indemnify the Company, its directors and officers and each Person who
controls the Company (within the meaning of the Securities Act) against any
losses, claims, damages, liabilities and expenses resulting from any untrue and
alleged untrue statement of material fact contained in the registration
statement, prospectus or preliminary prospectus or any amendment thereof or
supplement thereto or any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not
- 12 -
<PAGE> 13
misleading, but only to the extent that such untrue statement or omission is
contained in any information or affidavit so furnished in writing by such
holder; provided that the obligation to indemnify will be several, not joint and
several, among such holders of Registrable Securities and the liability of each
such holder of Registrable Securities will be limited to an amount equal to the
net proceeds (after deducting underwriting discounts and expenses) received by
such holder from the sale of Registrable Securities sold by such holder pursuant
to such registration statement.
(c) Any Person entitled to indemnification hereunder will (i) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification and (ii) unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party. If such defense is assumed, the
indemnifying party will not be subject to any liability for any settlement made
by the indemnified party without its consent (but such consent will not be
unreasonably withheld). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim will not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and other of such indemnified parties with respect to such
claim in which event the indemnifying party shall be obligated to pay the fees
and expenses of such additional counsel or counsels.
(d) The indemnification provided for under this Agreement will
remain in full force and effect regardless of any investigation made by or on
behalf of the indemnified party or any officer, director or controlling Person
of such indemnified party and will survive the transfer of securities. The
Company and each seller of Registrable Securities shall provide for the
indemnification provided for under this Agreement with appropriate modifications
in any underwriting agreement with respect to any required registration or other
qualification of securities under any federal or state law or regulation or
governmental authority.
7. Participation in Underwritten Registrations. No Person may participate
in any registration hereunder which is underwritten unless such Person (a)
agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Person or Persons entitled
-13-
<PAGE> 14
hereunder to approve such arrangements and (b) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents required under the terms of such underwriting arrangements.
8. Contribution. In order to provide for just and equitable contribution
in circumstances under which the indemnity contemplated by Section 6 is for any
reason not available, the parties required to indemnify by the terms thereof
shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by such indemnity agreement incurred by the
Company, any seller of Registrable Securities and one or more of the
underwriters, except to the extent that contribution is not permitted under
Section 11(f) of the securities Act. In determining the amounts which the
respective parties shall contribute, there shall be considered the relative
benefits received by each party from the offering of the Registrable Securities
(taking into account the portion of the proceeds of the offering realized by
each), the parties' relative knowledge and access to information concerning the
matter with respect to which the claim was asserted, the opportunity to correct
and prevent any statement or omission and any other equitable considerations
appropriate under the circumstances. The Company and each Person selling
securities agree with each other that no seller of Registrable Securities shall
be required to contribute any amount in excess of the amount such seller would
have been required to pay to an indemnified party if the indemnity under
Section 6 were available. The Company and each such seller agree with each
other and the underwriters of the Registrable Securities, if requested by such
underwriters, that it would not be equitable if the amount of such contribution
were determined by pro rata or per capita allocation (even if the underwriters
were treated as one entity for such purpose) or for the underwriters' portion
of such contribution to exceed the percentage that the underwriting discount
bears to the initial public offering price of the Registrable Securities. For
purposes of this Section 8, each Person, if any, who controls an underwriter
within the meaning of Section 15 of the Securities Act shall have the same
rights to contribution as such underwriter, and each director and each officer
of the Company who signed the registration statement, and each Person, if any,
who controls the Company or a seller of Registrable Securities within the
meaning of Section 15 of the Securities Act shall have the same rights to
contribution as the Company or a seller of Registrable Securities, as the case
may be.
9. Rule 144. If the Company shall have filed a registration statement
pursuant to the requirements of Section 12 of the Exchange Act or a
registration statement pursuant to the requirements of the Securities Act, the
Company
- 14 -
<PAGE> 15
covenants that it will file the reports required to be filed by it under the
Securities Act and the Exchange Act and the rules and regulations adopted by the
Commission thereunder (or, if the Company is not required to file such reports,
it will, upon the request of any holder of Registrable Securities, make publicly
available other information), and it will take such further action as any holder
of Registrable Securities may reasonably request, all to the extent required
from time to time to enable such holder to sell shares of Registrable Securities
without registration under the Securities Act within the limitation of the
exemptions provided by (i) Rule 144 under the Securities Act, as such Rule may
be amended from time to time, or (ii) any similar rule or regulation hereafter
adopted by the Commission. Upon the request of any holder of Registrable
Securities, the Company will deliver to such holder a written statement as to
whether it has complied with such requirements.
10. Definitions.
"Class A Common" means the Class A Common Stock, $.01 par value per
share, of the Company.
"Class B Common" means the Class B Common Stock, $.01 par value per
share, of the Company.
"Class C Common" means the Class C Common Stock, $.01 par value per
share, of the Company.
"Class D Common" means the Company's Class D Common Stock, par value
$.01 per share.
"Common Stock" means collectively the Class A Common, the Class B
Common, the Class C Common and the Class D Common.
"Equitable Investors" means The Equitable Life Assurance Society of
the United States, Equitable Deal Flow Fund, L.P. and Tandem Group Life
Insurance Company and each transferee of such Person who holds the Warrants or
becomes a stockholder in accordance with the terms of the Amended and Restated
Stockholder Agreement dated as of December 29, 1989 by and among the Company and
the stockholders of the Company.
"Executive Stock Agreements" means the Hynes Executive Stock Agreement
and any other Executive Stock and Note Purchase Agreement contemplated by the
Existing Investor Purchase Agreement and entered into by the Company and members
of management or other key employees after the date hereof; provided that any
such agreement will be deemed to be an "Executive Stock Agreement" for purposes
hereof (including the definition of "Registrable Securities") only if the party
-15-
<PAGE> 16
thereto acquiring Executive Stock (as defined therein) becomes a party to this
Agreement.
"Investor Registrable Securities" means Registrable Securities issued
pursuant to the Existing Investor Purchase Agreement (including any amendments
thereto), or issued or issuable, directly or indirectly, upon conversion or
exercise of such Registrable Securities.
"Majority of the Equitable Investors" means at any time the holders of a
majority of the outstanding Shares then held by all of the Equitable Investors.
"Person" means an individual, a partnership, a joint venture, a
corporation, a trust, an unincorporated organization or a government or any
department or agency thereof.
"Registrable Securities" means (i) any Class A Common issued pursuant to
the Existing Investor Purchase Agreement (including any amendments thereto) or
any Executive Stock Agreement, (ii) any Class A Common issued or issuable,
directly or indirectly, upon exercise of any warrants or other rights to acquire
Common Stock, or upon conversion of any Class B Common or Class C Common,
issued pursuant to the Existing Investor Purchase Agreement (including any
amendments thereto) (including any amendment thereto) or any Executive Stock
Agreement, (iii) any shares of Class A Common issued or issuable upon the
conversion of outstanding shares of Class D Common in accordance with the
applicable provisions of the Certificate of Incorporation, and (iv) any Class A
Common issued or issuable, directly or indirectly, with respect to the
securities referred to in clauses (i), (ii) and (iii) by way of a stock dividend
or stock split or in connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization. As to any particular Registrable
Securities, such securities will cease to be "Registrable Securities" when they
have been sold pursuant to a registration statement that has become effective
under the Securities Act or pursuant to Rule 144 (or any other similar rule in
force) under the Securities Act. For all purposes of this Agreement (including
without limitation any determination as to whether a required percentage of
Registrable Securities has consented to a particular action), a Person will be
deemed to be a holder of outstanding Registrable Securities whenever such Person
has the right to acquire such Registrable Securities (by conversion or
otherwise, but disregarding any legal restrictions upon the exercise of such
right), whether or not such acquisition has actually been effected.
"Securities Act" means the Securities Act of 1933, as amended, or any
similar federal law then in force.
-16-
<PAGE> 17
"Securities and Exchange Commission" includes any governmental body or
agency succeeding to the functions thereof.
"Securities Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any similar federal law then in force.
11. Miscellaneous.
(a) No Inconsistent Agreements. The Company will not hereafter enter into
any agreement with respect to its securities which is inconsistent with the
rights granted to the holder of Registrable Securities in this Agreement.
(b) Adjustments Affecting Registrable Securities. The Company will not
take any action, or permit any change to occur, with respect to its securities
which would materially and adversely affect the ability of the holders of
Registrable Securities to include such Registrable Securities in a registration
undertaken pursuant to this Agreement or which would materially and adversely
affect the marketability of such Registrable Securities in any such
registration (including effecting a stock split or a combination of shares).
(c) Remedies. Any person having rights under any provision of this
Agreement will be entitled to enforce such rights specifically to recover
damages caused by reason of any breach of any provision of this Agreement and
to exercise all other rights granted by law.
(d) Amendments and Waivers. Except as otherwise provided herein, the
provisions of this Agreement may be amended and the Company may take any action
herein prohibited, or omit to take any action herein required to be performed by
it, only if the Company has obtained the written consent of holders of a
majority of the Registrable Securities, and, in the case of amendment or other
action adversely affecting any rights granted to the Equitable Investors or the
holders of Investor Registrable Securities, the consent of the Majority of the
Equitable Investors or the holders of a majority of Investor Registrable
Securities, as appropriate, shall be required to amend this Agreement.
(e) Successors and Assigns. All covenants and agreements in this Agreement
by or on behalf of any of the parties hereto will bind and inure to the benefit
of the respective successors and assigns of the parties hereto whether so
expressed or not. In addition, whether or not any express assignment has been
made, the provisions of this Agreement which are for the benefit of purchasers
or holders of Registrable Securities are also for the benefit of, and
enforceable by, any subsequent holder of Registrable Securities.
<PAGE> 18
(f) Additional Parties. The Company contemplates additional purchases
of the Company's securities by certain management persons and other key
employees, and all parties hereto agree that such purchasers may be added as
parties hereto. Each such purchaser will be entitled to become a party to this
Agreement by executing a counterpart copy hereof, which counterpart copy shall
also be executed by the Company.
(g) Severability. Whenever possible, each provision of this
Agreement will be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Agreement is held to be
invalid, illegal or unenforceable under any applicable law or rule in any
jurisdiction, such provision will be ineffective only to the extent of such
invalidity, illegality or unenforceability in such jurisdiction, without
invalidating the remainder of this Agreement in such jurisdiction or any
provision hereof in any other jurisdiction.
(h) Counterparts. This Agreement may be executed simultaneously in
two or more counterparts, any one of which need not contain the signatures of
more than one party, but all of which taken together will constitute one and the
same Agreement.
(i) Descriptive Headings. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement.
(j) Governing Law. All questions concerning the construction,
validity and interpretation of this Agreement and the exhibits and schedules
hereto will be governed by the internal law, and not the law of conflicts, of
Delaware.
(k) Notices. All notices, demands or other communications to be given
or delivered under or by reason of the provisions of this Agreement will be in
writing and will be deemed to have been given when delivered personally or
mailed by certified or registered mail, return receipt requested and postage
prepaid, to the recipient. Such notices, demands and other communications will
be sent to CVC Kidder, Hynes, Wegmann, Taylor, Webb, the Equitable Investors and
the Company at the respective address indicated below:
To the Company:
PI Parent Corporation
c/o Plantronics, Inc.
337 Encinal Street
Santa Cruz, CA 95061-1802
Attention: President
- 18 -
<PAGE> 19
To CVC:
Citicorp Venture Capital, Ltd.
399 Park Avenue, 6th Floor
New York, New York 10022
Attention: Saleem Muqaddam
To Kidder:
Kidder, Peabody Group Inc.
555 California Street
Suite 2950
San Francisco, CA 94104
Attention:
To Hynes:
c/o Plantronics, Inc.
337 Encinal Street
Santa Cruz, CA 95061-1802
To Wegmann:
David A. Wegmann
1000 Green Street, Apt. 1105
San Francisco, CA 94133
To Taylor:
Trude C. Taylor
747 E. Green Street
Suite 309
Pasadena, CA 91101
To Webb:
Sidney Webb
5857 Fitzpatrick Road
Calabasas, CA 91302
To Equitable:
The Equitable Life Assurance Society
of the United States
c/o Equitable Capital Management Corporation
1285 Avenue of the Americas
19th Floor
New York, New York 10019
Attention: Corporation Finance Department
-19-
<PAGE> 20
To Deal Flow Fund:
Equitable Deal Flow Fund, L.P.
c/o Equitable Capital Management Corporation
1285 Avenue of the Americas
19th Floor
New York, New York 10019
Attention: Corporation Finance Department
To Tandem Group:
Tandem Insurance Group, Inc.
1700 Broadway
10th Floor
New York, NY 10019
Attention: Ms. Marianne Kearns
with a copy to:
Equitable Capital Management Corporation
1285 Avenue of the Americas
19th Floor
New York, New York 10019
Attention: Ms. Lorraine Chevere
or to such other address or to the attention of such other Person as the
recipient party has specified by prior written notice to the sending party.
(1) Equitable Investors Covenant. If at any time after the date hereof a
Majority of the Equitable Investors shall determine to take any action pursuant
to Sections 1 or 2 with respect to the sale, transfer or other disposition of
the Common Stock held by them in a public offering, then, upon reasonable prior
written notice to the other Equitable Investors, the other Equitable Investors
shall take all actions necessary or appropriate to sell, transfer or otherwise
dispose of concurrently with the Majority of the Equitable Investors and in the
same manner and upon the same terms a proportionate amount of Common Stock held
by each such other Equitable Investor.
-20-
<PAGE> 21
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
PI PARENT CORPORATION CITICORP VENTURE CAPITAL, LTD.
By: [SIG] By:
----------------- -----------------------------------
Its: V.P. Its:
----------------- -----------------------------------
KIDDER, PEABODY GROUP INC.
By:
-----------------------------------
Its:
-----------------------------------
KP/HANOVER PARTNERS 1988, L.P.
By: KP/Hanover Management
Corporation
Its: General Partner
By:
-----------------------------------
Its:
-----------------------------------
-----------------------------------
Neil J. Hynes
-----------------------------------
Trude C. Taylor
-----------------------------------
David A. Wegmann
-----------------------------------
Sydney Webb
<PAGE> 22
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
PI PARENT CORPORATION CITICORP VENTURE CAPITAL, LTD.
By: [SIG] By: [SIG]
------------------ --------------------------
Its: VP Its: Vice President
----------------- -------------------------
KIDDER, PEABODY GROUP INC.
By:
--------------------------
Its:
-------------------------
KP/HANOVER PARTNERS 1988, L.P.
By: KP/Hanover Management
Corporation
Its: General Partner
By:
--------------------------
Its:
-------------------------
------------------------------
Neil J. Hynes
------------------------------
Trude C. Taylor
------------------------------
David A. Wegmann
------------------------------
Sidney Webb
<PAGE> 23
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
PI PARENT CORPORATION CITICORP VENTURE CAPITAL, LTD.
By: By:
------------------ --------------------------
Its: Its:
----------------- -------------------------
KIDDER, PEABODY GROUP INC.
By: [SIG]
--------------------------
Its:VICE PRESIDENT & TREASURER
--------------------------
KP/HANOVER PARTNERS 1988, L.P.
By: KP/Hanover Management
Corporation
Its: General Partner
By: [SIG]
--------------------------
Its:
-------------------------
------------------------------
Neil J. Hynes
------------------------------
Trude C. Taylor
------------------------------
David A. Wegmann
------------------------------
Sidney Webb
<PAGE> 24
THE EQUITABLE LIFE ASSURANCE
SOCIETY OF THE UNITED STATES
By: /s/ HOWARD GELLIS
---------------------------------
Title: INVESTMENT OFFICER
EQUITABLE DEAL FLOW FUND, L.P.
By: EQUITABLE MANAGED
ASSETS, L.P., as General
Partner
By: THE EQUITABLE LIFE ASSURANCE
SOCIETY OF THE UNITED STATES,
as General Partner
By: /s/ HOWARD GELLIS
---------------------------------
Title: INVESTMENT OFFICER
TANDEM INSURANCE GROUP, INC.
By: [SIG]
---------------------------------
Title: Vice President
5038C
<PAGE> 25
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
PI PARENT CORPORATION CITICORP VENTURE CAPITAL, LTD.
By: By:
------------------------- -------------------------
Its: Its:
------------------------- -------------------------
KIDDER, PEABODY GROUP INC.
By:
-------------------------
Its:
-------------------------
KP/HANOVER PARTNERS 1988, L.P.
By: KP/Hanover Management
Corporation
Its: General Partner
By:
-------------------------
Its:
-------------------------
/s/ NEIL J. HYNES
-----------------------------
Neil J. Hynes
-----------------------------
Trude C. Taylor
-----------------------------
David A. Wegmann
-----------------------------
Sidney Webb
<PAGE> 26
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
PI PARENT CORPORATION CITICORP VENTURE CAPITAL, LTD.
By: By:
------------------------------ ---------------------------
Its: Its:
----------------------------- --------------------------
KIDDER, PEABODY GROUP INC.
By:
---------------------------
Its:
--------------------------
KP/HANOVER PARTNERS 1988, L.P.
By: KP/Hanover Management
Corporation
Its: General Partner
By:
---------------------------
Its:
--------------------------
------------------------------
Neil J. Hynes
/s/ TRUDE C. TAYLOR
------------------------------
Trude C. Taylor
------------------------------
David A. Wegmann
------------------------------
Sidney Webb
<PAGE> 27
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
<TABLE>
<S> <C>
PI PARENT CORPORATION CITICORP VENTURE CAPITAL, LTD.
By: By:
------------------------------- -----------------------------------
Its: Its:
------------------------------- -----------------------------------
RIDDER, PEABODY GROUP INC.
By:
-----------------------------------
Its:
-----------------------------------
RIDDER, PEABODY GROUP INC.
By:
-----------------------------------
Its:
-----------------------------------
KP/HANOVER PARTNERS 1988, L.P.
By: KP/Hanover Management Corporation
Its: General Partner
By:
-----------------------------------
Its:
-----------------------------------
-----------------------------------
Neil J. Hynes
-----------------------------------
Trude C. Taylor
/s/ DAVID A. WEGMANN
-----------------------------------
David A. Wegmann
-----------------------------------
Sidney Webb
</TABLE>
<PAGE> 28
SCHEDULE I
/s/ MARY MANDERS
- ----------------------
Mary Manders
- ----------------------
Frank Schillaci
/s/ SUSAN TOMLEY
- ----------------------
Susan Tomley
- ----------------------
Salvador Perez
- ----------------------
Thomas Stuart
/s/ ROBERT LEE
- ----------------------
Robert Lee
/s/ JOHN TYMOCEKO, JR.
- ----------------------
John Tymoceko, Jr.
- ----------------------
Fred Wolfrum
- ----------------------
Robert Bernardi
- ----------------------
Carlos Garner
- ----------------------
Timothy Ryan
- ----------------------
Robert Richardson
<PAGE> 29
/s/ LAWRENCE WARD
- --------------------------------------
Lawrence Ward
/s/ DAVID DODEN
- --------------------------------------
David Doden
- --------------------------------------
Don Kinney
- --------------------------------------
Roland Gerard
- --------------------------------------
Pierre Matteau
/s/ MARVIN TSEU
- --------------------------------------
Marvin Tseu
/s/ MICHAEL EBERTIN
- --------------------------------------
Michael Ebertin
- --------------------------------------
Richard R. Sivertson
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Resale Prospectus
constituting part of this Registration Statement on Form S-3 of Plantronics,
Inc. of our report dated April 17, 1998, appearing on page 22 of the 1998
Annual Report to stockholders, which is incorporated by reference in the Annual
Report on Form 10-K for the year ended March 28, 1998. We also consent to the
reference to us under the heading "Experts" in such Prospectus.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
San Jose, California
November 19, 1998
