As filed with the Securities and Exchange Commission on June 29, 2001
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
---------------------------------
VTEL CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 74-2415696
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
108 Wild Basin Road
Austin, Texas 78746
(Address of principal executive offices, including zip code)
-----------------------------------
VTEL CORPORATION 1992 DIRECTOR STOCK OPTION PLAN
AND
VTEL CORPORATION EMPLOYEE STOCK PURCHASE PLAN
(Full titles of the plans)
----------------------------------
Jay Peterson
Chief Financial Officer
VTEL CORPORATION
108 Wild Basin Road
Austin, Texas 78746
(Name and address of agent for service)
(512) 437-2483
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------------------
Proposed maximum Proposed maximum
Title of Amount to offering price aggregate Amount of
securities to be registered Be registered (1) per share (2)(3) offering price (2)(3) registration fee (3)
- ------------------------------------------------------------------------------------------------------------------------
Common Stock, par value $.01 600,000 $1.09 $654,000 $164.00
per share
- ------------------------------------------------------------------------------------------------------------------------
(1) Consists of 500,000 shares and 100,000 shares of common stock (and
associated preferred stock purchase rights) reserved for issuance to employees
and directors of VTEL Corporation (the "Corporation") pursuant to (i) the VTEL
Corporation Employee Stock Purchase Plan; and (ii) the VTEL Corporation 1992
Director Stock Option Plan, respectively (collectively, the "Plans"). In
addition, pursuant to Rule 416 under the Securities Act of 1933, this
Registration Statement also covers an indeterminate number of additional shares
of the Corporation's Common Stock (the "Common Stock") issuable pursuant to the
exercise of options and/or awards granted or to be granted under the Plans to
prevent dilution that may result from any future stock splits, stock dividends
or similar transactions affecting the Common Stock.
(2) Estimated solely for the purpose of computing the registration fee.
(3) Calculated pursuant to Rule 457(c) and (h). Accordingly, the price per share
of Common Stock offered hereunder pursuant to the Plans is based upon 600,000
shares of Common Stock reserved for issuance under the Plans, at a price of
$1.09, which is the average of the highest and lowest price per share of Common
Stock on the NASDAQ National Market System on June 28, 2001.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. Plan Information*
----------------
Item 2. Registrant Information and Employee Plan Annual Information*
-----------------------------------------------------------
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
The Corporation hereby incorporates by reference in this registration
statement the separate Registration Statements on Form S-8 relating to the VTEL
Corporation Employee Stock Purchase Plan, Registration Numbers 33-65464 and
33-95754, and the Registration Statements on Form S-8 relating to the VTEL
Corporation 1992 Director Stock Option Plan (f/k/a the VideoTelecom Corp. 1992
Director Stock Option Plan), Registration Numbers 33-65472 and 333-48885.
The Corporation also hereby incorporates by reference in this
registration statement the following documents previously filed by the
registrant with the Securities and Exchange Commission (the "Commission"):
(1) the Corporation's Annual Report on Form 10-K filed with
the Commission for the fiscal year ended July 31, 2000;
(2) the Corporation's Quarterly Reports on Form 10-Q filed
with the Commission for the three months ended October 31, 2000 and
January 31, 2001;
(3) the description of the Common Stock of the Corporation set
forth in the Registration Statement on Form 8-A, filed with the
Commission on March 31, 1992, including any amendment or report filed
for the purpose of updating such description; and
(4) the description of the Corporation's Rights contained in
the Company's Registration Statement on Form 8-A, filed with the
Commission on July 11, 1996, including any amendment or report filed
for the purpose of updating such description.
All documents filed by the Corporation with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), subsequent to the date of this registration
statement shall be deemed to be incorporated herein by reference and to be a
part hereof from the date of the filing of such documents until such time as
there shall have been filed a post-effective amendment that indicates that all
securities offered hereby have been sold or that deregisters all securities
remaining unsold at the time of such amendment.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
None.
- ------------------------
*Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with Rule
428 under the Securities and Exchange Act of 1933 and the Note to Part I of Form
S-8.
Item 6. Indemnification of Directors and Officers.
The Fourth Amended and Restated Certificate of Incorporation
of the Corporation provides for indemnification as follows:
"NINTH: The Corporation shall indemnify any person:
(a) who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an
action by or in the right of the Corporation) by reason of the fact
that he is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as
a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with
such action, suit or proceeding if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was
unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner
which he reasonably believed to be in or not opposed to the best
interests of the Corporation, and with respect to any criminal action
or proceeding, had reasonable cause to believe his action was unlawful,
or
(b) who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the
right of the Corporation to procure a judgment in its favor by reason
of the fact that he is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he
acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the Corporation and except that no
indemnification shall be made in respect of any claim, issue or matters
as to which such person shall have been adjudged to be liable to the
Corporation unless and only to the extent that the Court of Chancery or
the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of
all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or
such other court shall deem proper.
To the extent that a director, officer, employee or agent of
the Corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in subparagraphs
(a) and (b) of this Article 9, or in defense of any claim, issue or
matter therein, he shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith.
Any indemnification under subparagraphs (a) and (b) of this
Article 9 (unless ordered by a court) shall be made by the Corporation
only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper
in the circumstances because he has met the applicable standard of
conduct set forth in subparagraphs (a) and (b) of this Article 9. Such
determination shall be made (i) by the Board of Directors by a majority
vote of the quorum consisting of directors who were not parties to such
action, suit or proceeding, or (ii) if such a quorum is not obtainable,
or, even if obtainable a quorum of disinterested directors so directs,
by independent legal counsel in a written opinion, or (iii) by the
stockholders.
Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or
investigative action, suit or proceeding shall be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such
director or officer to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the Corporation
as authorized in this Article 9. Such expenses (including attorneys'
fees) incurred by other employees and agents may be so paid upon such
terms and conditions, if any, as the Board of Directors deems
appropriate.
The indemnification and advancement of expenses provided by,
or granted pursuant to, this Article 9 shall not be deemed exclusive of
any other rights to which those seeking indemnification or advancement
of expenses may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action
in his official capacity and as to action in another capacity while
holding such office.
The Corporation may purchase and maintain insurance on behalf
of any person who is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any
liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such
liability under the provisions of this Article 9.
For purposes of this Article 9, references to "the
Corporation" shall include, in addition to the resulting corporation,
any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its
separate existence had continued, would have had power and authority to
indemnify its directors, officers, and employees or agents, so that any
person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under this Article 9 with
respect to the resulting or surviving corporation as he would have with
respect to such constituent corporation if its separate existence had
continued.
For purposes of this Article 9, references to "other
enterprises" shall include employee benefit plans; references to
"fines" shall include any excise taxes assessed on a person with
respect to an employee benefit plan; and references to "serving at the
request of the Corporation" shall include any service as a director,
officer, employee or agent of the Corporation which imposes duties on,
or involves services by, such director, officer, employee or agent with
respect to an employee benefit plan, its participants or beneficiaries;
and a person who acted in good faith and in a manner he reasonably
believed to be in the interest of the participants and beneficiaries of
an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the Corporation" as referred to in
this Article 9.
The indemnification and advancement of expenses provided by,
or granted pursuant to, this Article 9 shall, unless otherwise provided
when authorized or ratified, continue as to a person who has ceased to
be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a person."
Item 7. Exemption from Registration Claimed.
None.
Item 8. Exhibits.
(a) Exhibits.
The following documents are filed as a part of this
registration statement.
Exhibit Description of Exhibit
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 1992 Director Stock Option Plan (incorporated
by reference to the Company's Registration Statement on Form
S-8, File No. 33-65472)
4.8 VTEL Corporation Employee Stock Purchase Plan (incorporated by
reference to the Company's Registration Statement on Form S-8,
File No. 33-65464)
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 Ernst & Young LLP
24.1 Power of Attorney (included in the signature page of this
Registration Statement)
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* Filed herewith.
Item 9. Undertakings.
A. The undersigned Corporation hereby undertakes:
(1) to file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement
to include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in this Registration Statement;
(2) that, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof; and
(3) to remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
B. The undersigned Corporation hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Corporation's annual report pursuant to section 13(a) or section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Corporation pursuant to the foregoing provisions, or otherwise, the
Corporation has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Corporation of expenses
incurred or paid by a director, officer or controlling person of the Corporation
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 Corporation will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question of whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Corporation certifies that it has reasonable grounds to believe that it
meets all the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Austin, Texas, on June 27, 2001.
VTEL CORPORATION
By: /s/ Richard Snyder
---------------------------------------
Richard Snyder
President and Chief Executive Officer,
Assistant Secretary
(Principal Executive Officer)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENT, that each individual whose signature
appears below hereby constitutes and appoints Richard Snyder his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution
for him and in his name, place and stead, in any and all capacities, to sign any
or all amendments to this Registration Statement, and to file the same with all
exhibits thereto and other documents in connection therewith, with the SEC,
granting unto each of said attorney-in-fact and agent full power and authority
to do and perform each and every act and thing requisite and necessary to be
done in connection therewith, as fully to all intents and purposes as he might
or could do in person hereby ratifying and confirming that each of said
attorney-in-fact and agent or his substitute may lawfully do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates included:
Signature Capacity Date
- --------- -------- ----
/s/Richard Snyder President and Chief Executive Officer, June 27, 2001
- --------------------------------- Assistant Secretary
Richard Snyder (Principal Executive Officer)
/s/ Jay Peterson Chief Financial Officer June 27, 2001
- --------------------------------- (Principal Financial Officer and
Jay Peterson Principal Accounting Officer)
/s/ F.H. (Dick) Moeller Director June 27, 2001
- ---------------------------------
F.H. (Dick) Moeller
/s/ Gordon H. Matthews Director June 27, 2001
- ---------------------------------
Gordon H. Matthews
/s/ T. Gary Trimm Director June 27, 2001
- ---------------------------------
T. Gary Trimm
/s/ Kathleen A. Cote Director June 27, 2001
- ---------------------------------
Kathleen A. Cote
/s/ James H. Wells Director June 27, 2001
- ---------------------------------
James H. Wells
INDEX TO EXHIBITS
Sequential
Exhibit Page
Number Document Description Number
------ -------------------- ------
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 1992 Director Stock Option Plan (incorporated
by reference to the Company's Registration Statement on Form
S-8, File No. 33-65472)
4.8 VTEL Corporation Employee Stock Purchase Plan (incorporated by
reference to the Company's Registration Statement on Form S-8,
File No. 33-65464)
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 Ernst & Young LLP
24.1 Power of Attorney (included on the signature page of this
Registration Statement)
- ---------
* Filed herewith.
Exhibit 5.1
June 29, 2001
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 or about June 29, 2001, under the
Securities Act of 1933, as amended (the "Securities Act"), relating to 500,000
shares and 100,000 shares of the $.01 par value common stock (the "Common
Stock") of the Corporation that may be offered through the VTEL Corporation 1992
Director Stock Option Plan and the VTEL Corporation Employee Stock Purchase
Plan, respectively (the "Plans").
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 Plans, the reservation of 600,000
shares of Common Stock to be issued under the Plans and to which the
Registration Statement relates, the issuance of shares of Common Stock pursuant
to the Plans and related matters; (3) the Registration Statement and exhibits
thereto, including the Plans; and (4) such other documents and instruments as we
have deemed necessary for the expression of the opinions herein contained. In
making the foregoing examinations, we have assumed the genuineness of all
signatures and the authenticity of all documents submitted to us as originals,
and the conformity to original documents of all documents submitted to us as
certified or photostatic copies. As to various questions of fact material to
this opinion, and as to the content and form of the Certificate of
Incorporation, the Bylaws, minutes, records, resolutions and other documents or
writings of the Corporation, we have relied, to the extent we deem reasonably
appropriate, upon representations or certificates of officers or directors of
the Corporation and upon documents, records and instruments furnished to us by
the Corporation, without independent check or verification of their accuracy.
Based upon our examination and consideration of, and reliance on, the
documents and other matters described above, we are of the opinion that the
Corporation presently has available at least 600,000 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 Plans may be issued. Assuming that: (i) shares to be sold in the
future through the Plans are all in accordance with the terms of the Plans, (ii)
the shares of Common Stock to be issued in the future are duly issued in
accordance with the terms of the Plans, (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 Plans, and (iv) the consideration for shares of Common Stock issued pursuant
to the Plans is actually received by the Corporation as provided in the Plans
and exceeds the par value of such shares, then the shares of Common Stock issued
in accordance with the terms of the Plans or sold through and in accordance with
the terms of the Plans 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 consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the 1992 Director Stock Option Plan and the Employee Stock
Purchase Plan of VTEL Corporation of our report dated August 25, 2000 with
respect to the consolidated financial statements of VTEL Corporation and
Subsidiaries included in its Annual Report (Form 10-K) for the year ended July
31, 2000, filed with the Securities and Exchange Commission.
Austin, Texas /s/ Ernst & Young LLP
June 29, 2001
Ernst & Young LLP