INDEX TO EXHIBITS
Sequential
Exhibit Page
Number Document Description Number
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4.1 Fourth Amended and Restated Certificate of Incorporation, as
filed July 7, 1993 with the Secretary of State of Delaware
(incorporated by reference to Exhibit 3.1 to the Company's
quarterly report filed on Form 10-Q for the three months ended
June 30, 1993).
4.2 Bylaws of the Company as adopted by the Board of Directors of
the Company effective as of June 11, 1989 (incorporated by
reference to Exhibit 3.3 to the Company's Registration Statement
on Form S-1, File No. 33-45876, as amended).
4.3 Amendment to Bylaws of the Company as adopted by the Board of
Directors of the Company effective as of April 28, 1992
(incorporated by reference to Exhibit 19.1 to the Company's
Quarterly Report on Form 10-Q for the three months ended March
31, 1992).
4.4 Amendment to the Bylaws of the Company as adopted by the Board
of Directors of the Company effective as of July 10, 1996
(incorporated by reference to Exhibit 4.5 to the Company's
Current Report on Form 8-K dated July 10, 1996).
4.5 Specimen Certificate for the Common Stock (incorporated by
reference to Exhibit 4.1 to the Company's Registration Statement
on Form S-1, File No. 33-45876, as amended).
4.6 Rights Agreement dated as of July 10, 1996 between VTEL
Corporation and First National Bank of Boston, which includes
the form of Certificate of Designations for Designating Series A
Preferred Stock, $.01 par value, the form of Rights Certificate,
and the Summary of Rights to Purchase Series A Preferred Stock,
$.01 par value, the form of Rights Certificate, and the Summary
of Rights to Purchase Series A Preferred Stock (incorporated by
reference to Exhibit 4.1 to the Company's Current Report on Form
8-K dated July 10, 1996).
4.7* VTEL Corporation 1998 Restricted Stock Plan
5.1* Opinion of Jenkens & Gilchrist, a Professional Corporation
23.1* Consent of Jenkens & Gilchrist, a Professional Corporation
(included in opinion filed as Exhibit 5.1 hereto)
23.2* Consent of PricewaterhouseCoopers LLP
23.3* Consent of KPMG LLP
24.1 Power of Attorney (included on the signature page of this Regis-
tration Statement)
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* Filed herewith.
VTEL CORPORATION
1998 RESTRICTED STOCK PLAN
TABLE OF CONTENTS
1. Purpose..................................................................................................1
2. Definitions..............................................................................................1
(a) "Affiliate".....................................................................................1
(b) "Available Shares"..............................................................................1
(c) "Award".........................................................................................1
(d) "Board".........................................................................................1
(e) "Change in Control".............................................................................1
(f) "Change in Control Price".......................................................................2
(g) "Code"..........................................................................................2
(h) "Committee".....................................................................................2
(i) "Common Stock"..................................................................................2
(j) "Company".......................................................................................2
(k) "Date of Grant".................................................................................2
(l) "Director"......................................................................................2
(m) "Disability"....................................................................................2
(n) "Effective Date"................................................................................2
(o) "Eligible Person"...............................................................................2
(p) "Fair Market Value".............................................................................2
(q) "Holder"........................................................................................3
(r) "Parent"........................................................................................3
(s) "Plan"..........................................................................................3
(t) "Plan Year".....................................................................................3
(u) "Potential Change In Control"...................................................................3
(v) "Restriction(s)"................................................................................3
(w) "Restricted Period".............................................................................3
(x) "Restricted Shares".............................................................................4
(y) "Restricted Share Award"........................................................................4
(z) "Restricted Share Distributions"................................................................4
(aa) "Section 162(m) Maximum"........................................................................4
(bb) "Share(s)"......................................................................................4
(cc) "Subsidiary"....................................................................................4
(dd) "1933 Act"......................................................................................4
(ee) "1934 Act"......................................................................................4
3. Award of Available Shares................................................................................4
4. Awards...................................................................................................4
5. Conditions for Grant of Awards...........................................................................5
6. Termination of Award.....................................................................................6
7. Acceleration.............................................................................................6
8. Adjustment of Available Shares...........................................................................6
9. Transferability of Awards................................................................................7
10. Issuance of Shares.......................................................................................7
11. Administration of the Plan...............................................................................8
12. Tax Withholding..........................................................................................9
13. Interpretation...........................................................................................9
14. Amendment and Discontinuation of the Plan...............................................................10
15. Section 83(b) Election..................................................................................10
16. Effective Date and Termination Date.....................................................................10
VTEL Corporation
1998 Restricted Stock Plan
1. Purpose. The purpose of this Plan is to advance the interests of
VTEL Corporation and its Affiliates, and increase shareholder value by providing
additional incentives to attract, retain and motivate those qualified and
competent employees, upon whose efforts and judgment its success is largely
dependent.
2. Definitions. As used herein, the following terms shall have the
meaning indicated:
(a) "Affiliate" means any entity other than the Parent that is
designated by the Board as a participating employer under the Plan, provided
that the Parent directly or indirectly owns at least 50% of the combined voting
power of all classes of stock of such entity or at least 50% of the ownership
interests in such entity.
(b) "Available Shares" shall mean, at each time of reference, the total
number of Shares described in Section 3 with respect to which the Committee may
grant an Award, all of which Available Shares shall be held in the Parent's
treasury or shall be made available from authorized and unissued Shares.
(c) "Award" shall mean Restricted Share Award.
(d) "Board" shall mean the Board of Directors of the Parent.
(e) "Change in Control" shall mean the first to occur of (i) a merger,
consolidation, statutory share exchange or sale, lease, exchange or other
transfer (in one transaction or a series of related transactions) of all or
substantially all of the assets of the Company that requires the consent or vote
of the holders of the Parent's Common Stock, other than a consolidation, merger
or share exchange of the Parent in which the holders of the Parent's Common
Stock immediately prior to such transaction continue to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) more than 60% of the combined voting power of the voting
securities of the Parent or such surviving entity outstanding immediately after
such merger or consolidation; (ii) the shareholders of the Parent approve any
plan or proposal for the liquidation or dissolution of the Company; (iii) the
cessation of control (by virtue of their not constituting a majority of
Directors) of the Board of Directors of the Parent by the individuals (the
"Continuing Directors") who (x) on the Effective Date were Directors or (y)
become Directors after the Effective Date and whose election or nomination for
election by the Parent's shareholders was approved by a vote of at least
two-thirds of the Directors then in office who were Directors at the Effective
Date or whose election or nomination for election was previously so approved;
(iv) the acquisition of beneficial ownership (within the meaning of Rule 13d-3
under the Exchange Act) of an aggregate of 40% or more of the voting power of
the Parent's outstanding voting securities by any person or group (as such term
is used in Rule 13d-5 under the Exchange Act) who beneficially owned less than
30% of the voting power of the Parent's outstanding voting securities on the
Effective Date, or the acquisition of beneficial ownership of an additional 10%
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of the voting power of the Parent's outstanding voting securities by any person
or group who beneficially owned at least 30% of the voting power of the Parent's
outstanding voting securities on the Effective Date; provided, however, that
notwithstanding the foregoing, an acquisition shall not be described hereunder
if the acquiror is (x) a trustee or other fiduciary holding securities under an
employee benefit plan of the Company and acting in such capacity, (y) a
wholly-owned subsidiary of the Parent or a corporation owned, directly or
indirectly, by the shareholders of the Parent in the same proportions as their
ownership of voting securities of the Parent or (z) any other person whose
acquisition of shares of voting securities is approved in advance by a majority
of the Continuing Directors; or (v) in a Title 11 bankruptcy proceeding, the
appointment of a trustee or the conversion of a case involving the Company to a
case under Chapter 7.
(f) "Change in Control Price" shall mean the highest price per share
paid in any transaction reported on the principal trading market for the Common
Stock, or paid or offered in any bona fide transaction related to a Potential or
actual Change in Control at any time during the 60 day period immediately
preceding such occurrence, in each case as determined by the Committee.
(g) "Code" shall mean the Internal Revenue Code of 1986, as now or
hereafter amended.
(h) "Committee" shall mean the Compensation Committee of the Board.
(i) "Common Stock" shall mean the common stock, par value $.01 per
share, of the Parent.
(j) "Company" shall mean the Parent, its Subsidiaries and Affiliates,
except when it shall be appropriate to refer only to VTEL Corporation, then it
shall be referred to as "Parent".
(k) "Date of Grant" shall mean the date on which the Committee takes
formal action to grant an Award.
(l) "Director" shall mean a member of the Board.
(m) "Disability" shall mean a Holder's present incapacity resulting
from an injury or illness (either mental or physical) which, in the reasonable
opinion of the Committee based on such medical evidence as it deems necessary,
will result in death or can be expected to continue for a period of at least
twelve (12) months and will prevent the Holder from performing the normal
services required of the Holder by the Company, provided, however, that such
disability did not result, in whole or in part: (i) from chronic alcoholism;
(ii) from addiction to narcotics; (ii) from a felonious undertaking; or (iv)
from an intentional self-inflicted wound.
(n) "Effective Date" shall mean November 2, 1998.
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(o) "Eligible Person" shall mean employees of the Company who the
Committee determines have the capacity to substantially contribute to the
success of the Company
(p) "Fair Market Value" shall mean, as of a particular date, such
amount as the Committee, in its sole discretion shall determine; provided,
however, that where there is a public market for the Common Stock, the Fair
Market Value per Share shall be determined as follows: (i) if Common Stock is
listed or admitted for trading on any United States national securities exchange
or included in the National Market System of the National Association of
Securities Dealers Automated Quotation System ("NASDAQ/NMS") or the NASDAQ Small
Cap Market, the mean of the highest and lowest sales prices of the Common Stock
on such exchange or system, on the Date of Grant, as reported by The Wall Street
Journal, or (ii) if the securities are quoted on the National Association of
Securities Dealers Automated Quotation System (but not NASDAQ/NMS or NASDAQ
Small Cap Market) or similar system of automated dissemination of quotations of
securities prices in common use, the mean between the closing high bid and low
asked quotations, of the securities on such system on the Date of Grant, as
reported in such system. he closing sale price of Shares, which shall be (i) if
the Shares are listed or admitted for trading on any United States national
securities exchange, the last reported sale price of the Shares on such exchange
as reported in any newspaper of general circulation, or (ii) if the Shares are
quoted on NASDAQ, or any similar system of automated dissemination of quotations
of securities prices in common use, the mean between the closing high bid and
low asked quotation for such day on such system. If neither clause (i) nor
clause (ii) is applicable, the fair market value shall be determined by the
Committee by any fair and reasonable means as determined in its sole discretion.
(q) "Holder" shall mean, at each time of reference, each person with
respect to whom an Award is in effect; and provided, further, that to the extent
provided under, and subject to the conditions of, the Award, it shall refer to
the person who succeeds to the rights of the Holder upon the death of the
Holder.
(r) "Parent" means VTEL Corporation, a Delaware corporation.
(s) "Plan" shall mean this VTEL Corporation 1998 Restricted Stock Plan.
(t) "Plan Year" shall mean the Parent's fiscal year.
(u) "Potential Change In Control" shall mean the first to occur of (i)
approval by shareholders of an agreement by the Parent, the consummation of
which would result in a Change in Control; or (ii) the acquisition of beneficial
ownership, directly or indirectly, by any entity, person or group (other than
the Company or any Company employee benefit plan) of securities of the Company
representing 25% or more of the combined voting power of the Parent's
outstanding securities and the adoption by the Committee of a resolution to the
effect that a Potential Change in Control has occurred for purposes of this
Plan.
(v) "Restriction(s)" "Restricted" and similar shall mean the
restrictions applicable to Available Shares subject to an Award which prohibit
the "transfer" of such Available Shares, and which constitute "a substantial
3
risk of forfeiture" of such Available Shares, as those terms are defined under
Section 83(a)(1) of the Code.
(w) "Restricted Period" shall mean the period during which Restricted
Shares shall be subject to Restrictions.
(x) "Restricted Shares" shall mean the Available Shares granted to an
Eligible Person which are subject to Restrictions.
(y) "Restricted Share Award" shall mean the award of Restricted Shares.
(z) "Restricted Share Distributions" shall mean any amounts, whether
Shares, cash or other property (other than regular cash dividends) paid or
distributed by the Parent with respect to Restricted Shares during a Restricted
Period.
(aa) "Section 162(m) Maximum" shall mean 250,000 Shares.
(bb) "Share(s)" shall mean a share or shares of Common Stock.
(cc) "Subsidiary" shall mean any corporation (other than the Parent) in
any unbroken chain of corporations beginning with the Parent if, at the time of
the granting of the Award, each of the corporations, other than the last
corporation in the unbroken chain, owns stock possessing 50% or more of the
total combined voting power of all classes of stock in one of the other
corporations in such unbroken chain.
(dd) "1933 Act" shall mean the Securities Act of 1933, as amended.
(ee) "1934 Act" shall mean the Securities Exchange Act of 1934, as
amended.
3. Award of Available Shares. As of the Effective Date, 1,000,000
Shares shall automatically, and without further action, become Available Shares.
To the extent any Award shall terminate, expire or be canceled, or the Award
shall be paid in cash, the Available Shares subject to such Award (or with
respect to which the Award is measured), shall remain Available Shares. No
person whose compensation may be subject to the limitations on deductibility
under Section 162(m) of the Code shall be eligible to receive Awards pursuant to
this Plan in any Plan Year which relate to Shares which exceed the Section
162(m) Maximum.
4. Awards.
(a) Each Restricted Share Award shall be evidenced by an agreement that
may contain any provisions selected by the Committee which is not prohibited by
the terms of the Plan. As a condition to the grant of a Restricted Share Award,
the Committee shall require the Eligible Person receiving the Restricted Share
Award to pay an amount, which amount may not be less than the par value of the
Restricted Shares granted under such Restricted Share Award, and such Restricted
Share Award shall automatically terminate if full payment of such amount is not
4
received within 30 days following the Date of Grant. Except as otherwise
provided in the express terms and conditions of each Restricted Share Award, the
Eligible Person receiving the Restricted Share Award shall have all of the
rights of a shareholder with respect to such Restricted Shares including, but
not limited to, voting rights and the right to receive any dividends paid,
subject only to the retention provisions of the Restricted Share Distributions.
(b) The Restrictions on Restricted Shares shall lapse in whole, or in
installments, over whatever Restricted Period shall be selected by the
Committee; provided, however, that a complete lapse of Restrictions always shall
occur on or before the 9th anniversary of the Date of Grant.
(c) Without limitation, the Committee may accelerate the date on which
Restrictions lapse with respect to any Restricted Shares.
(d) During the Restricted Period, the certificates representing the
Restricted Shares, and any Restricted Share Distributions, shall be registered
in the Holder's name and bear a restrictive legend disclosing the Restrictions,
the existence of the Plan, and the existence of the applicable agreement
granting such Restricted Share Award. Such certificates shall be deposited by
the Holder with the Company, together with stock powers or other instruments of
assignment, each endorsed in blank, which will permit the transfer to the
Company of all or any portion of the Restricted Shares, and any assets
constituting Restricted Share Distributions, which shall be forfeited in
accordance with the applicable agreement granting such Restricted Share Award.
Restricted Shares shall constitute issued and outstanding Common Stock for all
corporate purposes and the Holder shall have all rights, powers and privileges
of a Holder of unrestricted Shares except that the Holder will not be entitled
to delivery of the stock certificates until all Restrictions shall have
terminated, and the Company will retain custody of all related Restricted Share
Distributions (which will be subject to the same Restrictions, terms, and
conditions as the related Restricted Shares) until the conclusion of the
Restricted Period with respect to the related Restricted Shares; and provided,
further, that any Restricted Share Distributions shall not bear interest or be
segregated into a separate account but shall remain a general asset of the
Company, subject to the claims of the Company's creditors, until the conclusion
of the applicable Restricted Period; and provided, finally, that any material
breach of any terms of the agreement granting the Restricted Share Award, as
reasonably determined by the Committee will cause a forfeiture of both
Restricted Shares and Restricted Share Distributions.
5. Conditions for Grant of Awards.
(a) Without limitation, Awards shall only be granted to such one or
more Eligible Persons as shall be selected by the Committee.
(b) In granting Awards, the Committee shall take into consideration the
contribution the Eligible Person has made or may be reasonably expected to make
to the success of the Company and such other factors as the Committee shall
determine. The Committee shall also have the authority to consult with and
receive recommendations from officers and other personnel of the Company with
regard to these matters. The Committee may from time to time in granting Awards
5
under the Plan prescribe such other terms and conditions concerning such Awards
as it deems appropriate, including, without limitation, relating an Award to
achievement of specific goals established by the Committee or to the continued
employment of the Eligible Person for a specified period of time, provided that
such terms and conditions are not inconsistent with the provisions of this Plan.
(c) The Plan shall not confer upon any Holder any right with respect to
continuation of employment by the Company, nor shall it interfere in any way
with his right or the Company's right to terminate his employment at any time.
(d) The Awards granted to Eligible Persons shall be in addition to
regular salaries, pension, life insurance or other benefits related to their
service to the Company. Neither the Plan nor any Award granted under the Plan
shall confer upon any person any right to continuance of employment by the
Company; and provided, further, that nothing herein shall be deemed to limit the
ability of the Company to enter into any other compensation arrangements with
any Eligible Person.
(e) The Committee shall determine in each case whether periods of
military or government service shall constitute a continuation of employment for
the purposes of this Plan or any Award.
(f) Without limitation, each Award may provide for the issuance of
Available Shares for consideration consisting of such consideration as the
Committee may determine, including (without limitation) as compensation for past
services rendered.
6. Termination of Award. Each Award shall be evidenced by an agreement
that may contain any provisions selected by the Committee; provided, however,
that in each case, unless expressly provided to the contrary in the Award, the
Restricted portion of an Award shall automatically and without notice be
canceled and become null and void on the date that Holder ceases to be employed
by the Company for any reason other than death or Disability.
7. Acceleration.
(a) Unless expressly provided to the contrary in the Award, in the
event the Holder ceases to be employed by the Company by reason of the Holder's
death, or Disability, the Restricted Period shall terminate, and all
Restrictions shall lapse, as of the day before the date of Holder's death or
Disability.
(b) In the event of either a Change in Control, or a Potential Change
in Control, unless otherwise expressly provided in the Award (i) the Restricted
Period shall terminate, and all Restrictions shall lapse, and (ii) the value of
all outstanding Restricted Shares shall be cashed out on the basis of the Change
in Control Price, effective as the date of the Change in Control, or on such
other date as the Committee may determine prior to the Change in Control.
6
8. Adjustment of Available Shares.
(a) If at any time while the Plan is in effect or Awards with respect
to Available Shares are outstanding, there shall be any increase or decrease in
the number of issued and outstanding Shares through the declaration of a stock
dividend or through any recapitalization resulting in a stock split-up,
combination or exchange of Shares, then and in such event an appropriate
adjustment shall be made in the maximum number of Available Shares which may be
granted under Section 3, and in the Available Shares which are then subject to
each Award, so that the same proportion of the Parent's issued and outstanding
Common Stock shall continue to be subject to grant under Section 3, and to such
Award.
(b) Except as otherwise expressly provided herein, the issuance by the
Parent of shares of its capital stock of any class, or securities convertible
into shares of capital stock of any class, either in connection with direct sale
for adequate consideration, or upon the exercise of rights or warrants to
subscribe therefor, or upon conversion of shares or obligations of the Parent
convertible into such shares or other securities, shall not affect, and no
adjustment by reason thereof shall be made with respect to Available Shares
subject to Awards granted under the Plan.
(c) Without limiting the generality of the foregoing, the existence of
outstanding Awards with respect to Available Shares granted under the Plan shall
not affect in any manner the right or power of the Parent to make, authorize or
consummate (1) any or all adjustments, recapitalizations, reorganizations or
other changes in the Parent's capital structure or its business; (2) any merger
or consolidation of the Parent; (3) any issue by the Parent of debt securities,
or preferred or preference stock which would rank above the Available Shares
subject to outstanding Awards; (4) the dissolution or liquidation of the Parent;
(5) any sale, transfer or assignment of all or any part of the assets or
business of the Company; or (6) any other corporate act or proceeding, whether
of a similar character or otherwise.
9. Transferability of Awards. Unless otherwise expressly provided in
the Award, each Award shall provide that the Holder shall not be permitted to
transfer (which includes, without limitation, a sale, pledge, assignment or
other disposition) the Restricted Shares, except by will or the laws of descent
and distribution; and if a transfer of any type is permitted under the express
terms of the Award, the Restrictions shall remain in effect subsequent to such
transfer.
10. Issuance of Shares. Except as otherwise provided in Section 4(a),
no Holder or other person shall be, or have any of the rights or privileges of,
the owner of Shares subject to an Award unless and until the Restrictions shall
have lapsed and certificates representing such Common Stock shall have been
issued and delivered to such Holder or other person. As a condition of any
issuance of Common Stock with respect to which Restrictions have lapsed, the
Committee may obtain such agreements or undertakings, if any, as the Committee
may deem necessary or advisable to assure compliance with any such law or
regulation, or shareholder agreement including, but not limited to, the
following:
(i) a representation, warranty or agreement by the Holder to
the Parent, at the time any Shares are transferred, that he is
acquiring the Shares to be issued to him for investment and not with a
view to, or for sale in connection with, the distribution of any such
Shares; and
7
(ii) a representation, warranty or agreement to be bound by
any legends that are, in the opinion of the Committee, necessary or
appropriate to comply with the provisions of any securities law deemed
by the Committee to be applicable to the issuance of the Shares and are
endorsed upon the Share certificates.
Notwithstanding any provision hereof to the contrary, no Shares shall
be required to be issued with respect to an Award unless counsel for the Parent
shall be reasonably satisfied that such issuance will be in compliance with
applicable Federal or state securities laws.
11. Administration of the Plan.
(a) The Plan shall be administered by the Compensation Committee of the
Board and, except for the powers reserved to the Board in Section 14 hereof, the
Committee shall have all of the administrative powers under Plan.
(b) The Committee, from time to time, may adopt rules and regulations
for carrying out the purposes of the Plan and, without limitation, may delegate
all of what, in its sole discretion, it determines to be ministerial duties to
an officer of the Parent. The determinations under, and the interpretations of,
any provision of the Plan or an Award by the Committee shall, in all cases, be
in its sole discretion, and shall be final and conclusive.
(c) Any and all determinations and interpretations of the Committee
shall be made either (i) by a majority vote of the members of the Committee at a
meeting duly called, with at least 3 days prior notice and a general explanation
of the subject matter given to each member, or (ii) without a meeting, by the
written approval of all members of the Committee.
(d) No member of the Committee shall be liable for any action taken or
omitted to be taken by him or by any other member of the Committee with respect
to the Plan, and to the extent of liabilities not otherwise insured under a
policy purchased by the Company, the Company does hereby indemnify and agree to
defend and save harmless any member of the Committee with respect to any
liabilities asserted or incurred in connection with the exercise and performance
of their powers and duties hereunder, unless such liabilities are judicially
determined to have arisen out of such member's gross negligence, fraud or bad
faith. Such indemnification shall include attorney's fees and all other costs
and expenses reasonably incurred in defense of any action arising from such act
of commission or omission. Nothing herein shall be deemed to limit the Company's
ability to insure itself with respect to its obligations hereunder.
(e) In particular, and without limitation, the Committee shall have the
authority, consistent with the terms of the Plan:
(i) to select the officers, and other key employees to whom
Awards may from time to time be granted hereunder;
(ii) to determine whether and to what extent Awards are to be
granted hereunder to one or more eligible persons;
8
(iii) to determine the number of Shares to be covered by each
such Award granted hereunder;
(iv) to determine the terms and conditions, not inconsistent
with the terms of the Plan, of any Award granted hereunder (including,
but not limited to, any restriction or limitation, or any vesting
acceleration or waiver of forfeiture restrictions, based in each case
on such factors as the Committee shall determine, in its sole
discretion); and to amend or waive any such terms and conditions to the
extent permitted by the Plan;
(f) The Committee shall have the authority to adopt, alter, and repeal
such rules, guidelines, and practices governing the Plan as it shall, from time
to time, deem advisable; to interpret any and all of the terms and provisions of
the Plan and any and all Awards issued under the Plan (and any agreements
relating thereto), which decisions shall not be subject to review; and to
otherwise supervise the administration of the Plan; provided, however, that to
the extent that this Plan otherwise requires the approval of the Board or the
shareholders of the Parent, all decisions of the Committee shall be subject to
such Board or shareholder approval. Subject to the foregoing, and without
limitation, all decisions made by the Committee pursuant to the provisions of
the Plan shall be made in the Committee's sole discretion and shall be final and
binding on all persons, including the Company and Holders.
12. Tax Withholding. On or immediately prior to the date on which an
amount is required to be included in the income of the Holder as a result of an
Award, the Holder shall be required to pay to the Company, in cash or in Shares
(but in shares only if expressly provided with the Award or upon approval of the
Committee), including, but not limited to, the reservation to the Company of the
requisite number of Available Shares otherwise vested with respect to such
Holder with respect to such Award the amount which the Company reasonably
determines to be necessary in order for the Company to comply with applicable
federal or state tax withholding requirements, and the collection of employment
taxes, if applicable; provided, further, without limitations, that the Committee
may require that such payment be made in cash.
13. Interpretation.
(a) If any provision of the Plan is held invalid for any reason, such
holding shall not affect the remaining provisions hereof, but instead the Plan
shall be construed and enforced as if such provision had never been included in
the Plan.
(b) THIS PLAN SHALL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS.
(c) Headings contained in this Agreement are for convenience only and
shall in no manner be construed as part of this Plan.
(d) Any reference to the masculine, feminine, or neuter gender shall be
a reference to such other gender as is appropriate.
9
(e) The Plan is intended to constitute an "unfunded" plan for incentive
and deferred compensation.
(f) Nothing contained in this Plan shall prevent the Board from
adopting other or additional compensation arrangements, subject to shareholder
approval if such approval is required; and such arrangements may be either
generally applicable or applicable only in specific cases.
14. Amendment and Discontinuation of the Plan. The Board, may from time
to time amend the Plan; provided, however, that no such amendment may, without
approval by the shareholders of the Parent, (a) increase the number of Available
Shares or change the class of Eligible Persons, (b) extend the termination date
of the Plan; (c) increase the Section 162(m) Maximum; or (d) make any change for
which applicable law or regulatory authority (including the regulatory authority
of the market on which the Common Stock is traded) would require shareholder
approval or for which shareholder approval would be required to secure all
deductibility of compensation received under the Plan under Section 162(m) of
the Code 24; and provided, further, that no amendment or suspension of the Plan
or any Award issued hereunder shall, except as specifically permitted in this
Plan or under the terms of such Award, substantially impair any Award previously
granted to any Holder without the consent of such Holder. Solely for purposes of
computing the Section 162(m) Maximum, if any Award(s) previously granted is
canceled and new Award(s) granted with more favorable terms, as generally
defined in applicable Treasury regulations, under some circumstances, as
reasonably determined by the Committee, both the initial Award(s) and the
replacement Award(s) will be deemed to be outstanding (although the canceled
Award(s) will not deemed outstanding for any other purposes).
15. Section 83(b) Election. As a result of receiving an Award a Holder
may elect under Section 83(b) of the Code to include in his gross income, for
his taxable year in which the Restricted Shares are transferred to him, the
excess of the Fair Market Value (determined without regard to any Restriction
other than one which by its terms will never lapse), of such Restricted Shares
at the Date of Grant, over the amount paid for the Restricted Shares. If the
Holder makes the Section 83(b) election described above, the Holder shall (i)
make such election in a manner that is satisfactory to the Committee, (ii)
provide the Committee with a copy of such election, (iii) agree to promptly
notify the Company if any Internal Revenue Service or state tax agent, on audit
or otherwise, questions the validity or correctness of such election or of the
amount of income reportable on account of such election, and (iv) agree to such
federal and state income withholding as the Committee may reasonably require in
its sole and absolute discretion.
16. Effective Date and Termination Date. The Plan shall be effective as
of its Effective Date, and shall terminate on the tenth anniversary of such
Effective Date; provided, however, that unless approved by the shareholders of
the Company in the manner described under Section 422 of the Code on or before
the first anniversary of its Effective Date, the Plan shall be terminated
retroactive to its Effective Date and all Awards granted thereunder shall be
null and void ab initio.
10
VTEL CORPORATION
---------------------------------
11
Exhibit 5.1
May 4, 1999
VTEL Corporation
108 Wild Basin Road
Austin, Texas 78746
Re: Registration Statement on Form S-8
Gentlemen:
We have acted as counsel to VTEL Corporation, a Delaware corporation
(the "Corporation"), in connection with the preparation of the Registration
Statement on Form S-8 (the "Registration Statement") to be filed with the
Securities and Exchange Commission on May 4, 1999, under the Securities Act
of 1933, as amended (the "Securities Act"), relating to 1,000,000 shares of the
$.01 par value common stock (the "Common Stock") of the Corporation that may be
offered through the VTEL Corporation 1998 Restricted Stock Plan (the "Plan").
You have requested the opinion of this firm with respect to certain
legal aspects of the proposed offering. In connection therewith, we have
examined and relied upon the original, or copies identified to our satisfaction,
of (1) the Certificate of Incorporation and the Bylaws of the Corporation, as
amended; (2) minutes and records of the corporate proceedings of the Corporation
with respect to the establishment of the Plan, the reservation of 1,000,000
shares of Common Stock to be issued under the Plan and to which the Registration
Statement relates, the issuance of shares of Common Stock pursuant to the Plan
and related matters; (3) the Registration Statement and exhibits thereto,
including the Plan; and (4) such other documents and instruments as we have
deemed necessary for the expression of the opinions herein contained. In making
the foregoing examinations, we have assumed the genuineness of all signatures
and the authenticity of all documents submitted to us as originals, and the
conformity to original documents of all documents submitted to us as certified
or photostatic copies. As to various questions of fact material to this opinion,
and as to the content and form of the Certificate of Incorporation, the Bylaws,
minutes, records, resolutions and other documents or writings of the
Corporation, we have relied, to the extent we deem reasonably appropriate, upon
representations or certificates of officers or directors of the Corporation and
upon documents, records and instruments furnished to us by the Corporation,
without independent check or verification of their accuracy.
VTEL Corporation
May 4, 1999
Based upon our examination and consideration of, and reliance on, the
documents and other matters described above, we are of the opinion that the
Corporation presently has available at least 1,000,000 shares of authorized but
unissued shares of Common Stock and/or treasury shares of Common Stock. From
these shares of Common Stock, the shares of Common Stock proposed to be sold
through the Plan may be issued. Assuming that: (i) shares to be sold in the
future through the Plan are all in accordance with the terms of the Plan, (ii)
the shares of Common Stock to be issued in the future are duly issued in
accordance with the terms of the Plan, (iii) the Corporation maintains an
adequate number of authorized but unissued shares and/or treasury shares of
Common Stock available for issuance to those persons who purchase shares through
the Plan, and (iv) the consideration for shares of Common Stock issued pursuant
to the Plan is actually received by the Corporation as provided in the Plan and
exceeds the par value of such shares, then the shares of Common Stock issued in
accordance with the terms of the Plan or sold through and in accordance with the
terms of the Plan will be duly and validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to references to our firm included in or made a part
of the Registration Statement. In giving this consent, we do not admit that we
come within the category of persons whose consent is required under Section 7 of
the Securities Act or the Rules and Regulations of the Securities and Exchange
Commission thereunder.
Very truly yours,
JENKENS & GILCHRIST,
a Professional Corporation
By: /s/ L. Steven Leshin
----------------------
L. Steven Leshin
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated September 22, 1998, which
appears in VTEL Corporation's annual reports on Form 10-K and Form 10-K/A for
the year ended July 31, 1998.
PricewaterhouseCoopers LLP
/s/ PricewaterhouseCoopers LLP
- ------------------------------
Austin, Texas
May 3, 1999
Exhibit 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration
statement on Form S-8 of our report dated March 13, 1996 with respect to the
consolidated statements of operations, stockholders' equity and cash flows of
Compression Labs, Incorporated for the year ended December 31, 1995, which
report appears in the annual reports on Form 10-K and Form 10-K/A of VTEL
Corporation for the year ended July 31, 1998.
KPMG LLP
/s/ KPMG LLP
- -------------------------
Mountain View, California
May 3, 1999
