As filed with the Securities and Exchange Commission on May 4, 1999
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 1998 RESTRICTED STOCK PLAN
(Full title of the plan)
----------------------------------
RODNEY S. BOND
Chief Financial Officer
VTEL CORPORATION
108 Wild Basin Road
Austin, Texas 78746
(Name and address of agent for service)
(512) 437-2702
(Telephone number, including area code, of agent for service)
Copy to:
L. Steven Leshin
Jenkens & Gilchrist
1445 Ross Avenue, Suite 3200
Dallas, Texas 75202
Tel: (214) 855-4500
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 1,000,000 $5.34 $5,340,000 $1,485
per share
<FN>
- ---------------------------------------------------------------------------------------------------------------------------
(1) Consists of 1,000,000 shares of common stock (and associated preferred stock
purchase rights) reserved for issuance to key employees of VTEL Corporation (the
"Corporation") pursuant to the VTEL Corporation 1998 Restricted Stock Plan (the
"Plan"). 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 Plan
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 Plan is based upon 1,000,000
shares of Common Stock reserved for issuance under the Plan, at a price of
$5.34, which is the average of the highest and lowest price per share of
Common Stock on the NASDAQ National Market System on April 30, 1999.
</FN>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Information specified in Part I of Form S-8 (Items 1 and 2) 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, as
amended (the "Securities Act") and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Corporation 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 Reports on Form 10-K and Form
10-K/A filed with the Commission for the fiscal year ended July 31,
1998;
(2) the Corporation's Quarterly Reports on Form 10-Q filed
with the Commission for the three months ended October 31, 1998 and
January 31, 1999;
(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.
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 de-
termined 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 approp-
riate.
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 State-
ment 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 in the signature page of this
Registration Statement)
-------
* 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 May 4, 1999.
VTEL CORPORATION
By: /s/ Jerry S. Bensen, Jr.
------------------------------------------------
Jerry S. Bensen, Jr.
President and Chief Executive Officer (Principal
Executive Officer)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENT, that each individual whose signature
appears below hereby constitutes and appoints Jerry S. Bensen, Jr. 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 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 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 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 included:
Signature Capacity Date
- --------- -------- ----
/s/ Jerry S. Bensen, Jr. President and Chief Executive Officer May 4, 1999
- --------------------------- and Director (Principal Executive Officer)
Jerry S. Bensen, Jr.
/s/ Rodney S. Bond Chief Financial Officer, Vice President- May 4, 1999
Rodney S. Bond Finance and Secretary (Principal Financial
Officer and Principal Accounting Officer)
/s/ F.H. (Dick) Moeller Chairman of the Board of Directors May 4, 1999
- ---------------------------
F.H. (Dick) Moeller
/s/ Eric L. Jones Director May 4, 1999
- ---------------------------
Eric L. Jones
/s/ Gordon H. Mathews Director May 4, 1999
- ---------------------------
Gordon H. Mathews
/s/ Max D. Hopper Director May 4, 1999
- ---------------------------
Max D. Hopper
/s/ T. Gary Trimm Director May 4, 1999
- ---------------------------
T. Gary Trimm
/s/ Richard Snyder Director May 4, 1999
- ---------------------------
Richard Snyder
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 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)
- ---------
<FN>
* Filed herewith.
</FN>