As filed with the Securities and Exchange Commission on January 20, 1998
Registration No. 333-_______
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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VTEL CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 74-2415696
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
108 Wild Basin Road
Austin, Texas 78746
(Address of principal executive offices) (Zip Code)
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VTEL Corporation
401(k) Plan
(Full title of the plan)
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RODNEY S. BOND
Chief Financial Officer
VTEL Corporation
108 Wild Basin Road
Austin, Texas 78746
(Name and address of agent for service)
(512) 314-2700
(Telephone number including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Amount Proposed maximum Proposed maximum
Title of securities to be offering price aggregate Amount of
to be registered registered(1) per share(2)(3) offering price(2)(3) registration fee
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Common Stock, par value $.01 per share...... 900,000 shares $6.6875 $6,018,750 $1,824
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<FN>
(1) Consists of 900,000 shares of Common Stock available for purchase by
employees of VTEL Corporation and its subsidiaries pursuant to the VTEL
Corporation 401(k) Plan. Pursuant to a Rights Agreement, each share of
Common Stock also has an associated preferred stock purchase right. In
addition, pursuant to Rule 416(c) under the Securities Act of 1933, as
amended (the "Securities Act"), this Registration Statement also covers an
indeterminant amount of interests (including any associated preferred stock
purchase rights) to be offered or sold pursuant to the employee benefit
plan described herein.
(2) Estimated solely for the purpose of calculating the registration fee.
(3) Calculated pursuant to Rule 457(c) and (h) solely for the purposes of
computing the registration fee, based upon the average of the highest and
lowest selling price per share of the Common Stock on the NASDAQ National
Market on January 15, 1998 under the Securities Act.
</FN>
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. Plan Information*
Item 2. Registrant Information and Employee Plan Annual Information*
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The registrant hereby incorporates by reference in this registration
statement the following documents previously filed by the registrant with the
Securities and Exchange Commission (the "Commission"):
(1) the registrant's Annual Report on Form 10-K filed with the
Commission for the fiscal year ended July 31, 1997;
(2) the registrant's Quarterly Report on From 10-Q filed with the
Commission for the three months ended October 31, 1997;
(3) the description of the Common Stock of the registrant set
forth in the Registration Statement on Form 8-A, filed with the
Commission on March 31, 1992, including any amendment or report filed
for the purpose of updating such description; and
(4) the description of the Company'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 registrant with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), subsequent to the date of this registration
statement shall be deemed to be incorporated herein by reference and to be a
part hereof from the date of the filing of such documents until such time as
there shall have been filed a post-effective amendment that indicates that all
securities offered hereby have been sold or that deregisters all securities
remaining unsold at the time of such amendment.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
The Fourth Amended and Restated Certificate of Incorporation of
the registrant provides for indemnification as follows:
"NINTH: The Corporation shall indemnify any person:
(a) who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an
action by or in the right of the Corporation) by reason of the fact
that he is or was a director,
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*Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with Rule
428 under the Securities Act of 1933 and the Note to Part I of Form S-8.
II-1
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 reason-
ably incurred by him in connection with such action, suit or proceed-
ing 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.
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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
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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
(incorporated by reference to Exhibit 4.1 to the Company's
Current Report on Form 8-K dated July 10, 1996).
II-3
4.7 Basic Plan Document
4.8 Adoption Agreement -- Non-Standardized Profit Sharing/Thrift Plan
with 401(k) Feature
5.1 Internal Revenue Service Letter, dated September 4, 1997
23.1 Consent of Price Waterhouse LLP
23.2 Consent of KPMG Peat Marwick LLP
24.1 Power of Attorney (included in the signature page of this
Registration Statement)
The undersigned registrant hereby undertakes to submit, or has
submitted, the Plan and any amendments thereto to the Internal Revenue
Service ("IRS") in a timely manner and has made or will make all
changes required by the IRS in order to qualify the Plan.
Item 9. Undertakings.
A. The undersigned registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement to
include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in 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 registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of
the Exchange Act (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in
the Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment
by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Austin, Texas, on January 20, 1998.
VTEL CORPORATION
By: /s/ Dick Moeller
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F. H. (Dick) Moeller,
Chief Executive Officer and Chairman of the
Board of Directors
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints F.H. (Dick) Moeller and Rodney S. Bond
and each of them, each with full power to act without the other, his true and
lawful attorneys-in-fact and agents, each with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments to this Registration Statement, and
to file the same with all exhibits, thereto, and all documents in connection
therewith, with the SEC, granting unto each of said attorneys-in-fact and agents
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that each of said attorneys-in-fact and agents or his
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Capacity Date
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/s/ Dick Moeller Chief Executive Officer and January 20, 1998
- -------------------------- Chairman of the Board of
F.H. (Dick) Moeller Directors (Principal
Executive Officer)
/s/ Rodney S. Bond Chief Financial Officer, January 20, 1998
- -------------------------- Vice President - Finance,
Rodney S. Bond Treasurer and Secretary
(Principal Financial Officer
and Principal Accounting
Officer)
/s/ Jerry S. Bensen, Jr. Director January 20, 1998
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Jerry S. Bensen, Jr.
/s/ Eric L. Jones Director January 20, 1998
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Eric L. Jones
Director January 20, 1998
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Gordon H. Matthews
/s/ Max D. Hopper Director January 20, 1998
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Max D. Hopper
Director January 20, 1998
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T. Gary Trimm
/s/ Dr. Arthur G. Anderson Director January 20, 1998
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Dr. Arthur G. Anderson
Director January 20, 1998
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Richard Snyder
EXHIBIT INDEX
Sequential
Exhibit Page
Number Document Description Number
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4.7 Basic Plan Document
4.8 Adoption Agreement -- Non-Standardized Profit
Sharing/Thrift Plan with 401(k) Feature
5.1 Internal Revenue Service Letter, dated
September 4, 1997
23.1 Consent of Price Waterhouse LLP
23.2 Consent of KPMG Peat Marwick LLP
24.1 Power of Attorney (included on the signature
page of this Registration Statement)
The Plan. Pursuant to the requirements of the Securities Act of 1933, as
amended, the trustee of the VTEL Corporation 401(k) Plan has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Austin, State of Texas, on January 20, 1998.
VTEL CORPORATION 401(K) PLAN
By: VTEL Corporation
Plan Administrator
By: /s/ Dianne Johnson
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Name: Dianne Johnson