SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
(INCLUDING REGISTRATION OF SHARES FOR RESALE BY MEANS OF A FORM S-3 PROSPECTUS)
TO FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
ORIGINALLY FILED ON JULY 26, 1994
PLANTRONICS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 77-0207692
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
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345 ENCINAL STREET
SANTA CRUZ, CALIFORNIA 95060
(831) 426-5858
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
1993 STOCK PLAN
1993 DIRECTORS' STOCK OPTION PLAN
(FULL TITLES OF THE PLANS)
ROBERT S. CECIL,
CHAIRMAN OF THE BOARD AND
CHIEF EXECUTIVE OFFICER
PLANTRONICS, INC.
345 ENCINAL STREET
SANTA CRUZ, CALIFORNIA 95060
(831) 426-5858
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
Copy to:
HENRY P. MASSEY, JR., ESQ.
ERIC JOHN FINSETH, ESQ.
WILSON SONSINI GOODRICH & ROSATI, P.C.
650 PAGE MILL ROAD
PALO ALTO, CALIFORNIA 94304
(650) 493-9300
In reliance on Rule 457(h)(3) and on Interpretation 106 of the Division of Corporation Finance's July 1997 Manual of Publicly Available Telephone
Interpretations, no Calculation of Registration Fee table has been included.
EXPLANATORY NOTE
This Post-Effective Amendment No. 1 to the Registrant's Registration Statement on Form S-8 (Reg. No. 33-81980) is being filed pursuant to General Instruction C to Form S-8 for the purpose of adding to such Registration Statement a resale prospectus with respect to control securities previously registered for issuance by the initial filing of such Registration Statement.
RESALE PROSPECTUS
PLANTRONICS, INC.
UP TO 639,422 SHARES OF COMMON STOCK
WHICH THE SELLING STOCKHOLDERS MAY RESELL UNDER THIS PROSPECTUS
The stockholders of Plantronics, Inc. listed below may offer and resell up to 639,422 shares of Plantronics common stock under this prospectus, for their own accounts. Plantronics will receive no proceeds from such sales.
Plantronics issued or will issue these shares to the selling stockholders under Plantronics' 1993 Stock Plan.
The selling stockholders may offer their Plantronics common stock through public or private transactions, at prevailing market prices or at privately negotiated prices. Such future prices are not currently known.
Plantronics common stock is listed on the New York Stock Exchange under the ticker symbol "PLT". On November 17, 1998, the last reported sale price on the NYSE of one share of Plantronics common stock was $63 3/4.
CONSIDER CAREFULLY THE RISK FACTORS
BEGINNING ON PAGE 3 IN THIS PROSPECTUS.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this prospectus is November 18, 1998
TABLE OF CONTENTS
Plantronics' Address 2 Forward-Looking Statements 2 Risk Factors 3 Plantronics' Business 9 Selling Stockholders 11 Plan of Distribution 12 Information Incorporated by Reference 14 How to Get Information About Plantronics 15 Indemnification and the SEC's Position on Enforceability 15 Accounting Experts 16 |
PLANTRONICS' ADDRESS
Plantronics' principal executive offices are located at 345 Encinal Street, Santa Cruz, California 95060. The telephone number at that location is (831) 426-5858.
FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated herein by reference contain forward-looking statements. Plantronics bases these statements on its current expectations, estimates and projections about its industry. Either the beliefs of management, or assumptions made by management, form the basis for those expectations, estimates and projections. The safe harbor created by Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934 generally protects Plantronics and the selling stockholders from liability for these statements. You can often recognize such forward-looking statements by words such as "anticipates," "expects," "intends," "plans," "believes," "seeks," "estimates," variations of such words, and similar expressions.
These forward-looking statements do not guarantee future performance and are subject to risks, uncertainties and assumptions that are difficult to predict. The Risk Factors section immediately following this paragraph sets forth some of such risks and uncertainties. The documents incorporated by reference may also set forth risks and uncertainties. These risks and uncertainties could cause actual results to differ materially and adversely from those discussed in the forward-looking statements. Plantronics undertakes no obligation to publicly update any of these forward-looking statements to reflect new information or future events.
RISK FACTORS
You should carefully consider the risks described below. The business, financial condition and results of operations of Plantronics could be materially adversely affected if any of the risks occur. If the risks occur, the trading price of Plantronics stock could decline and you could lose all or part of your investment.
BACKGROUND:
In reading these risk factors, you may find it helpful to first review the Plantronics' Business section starting on page 9 of this prospectus.
COMPETITION:
COMPETITIVE PRESSURE:
Plantronics faces vigorous competition. Plantronics' two largest competitors in the call center market segment, GN Netcom and ACS Wireless, Inc., recently merged to form a single company. The effects of that merger cannot yet be determined. However, such effects could include increased price competition, which could adversely impact Plantronics' gross margins.
Plantronics competes primarily on the basis of technology, performance, price, quality, reliability, distribution, customer service and support. To meet competition and make or increase sales, Plantronics may have to invest more heavily in new technologies, reduce its prices or increase the services and support it provides. Reductions in prices or increases in the costs of making and supporting its products could reduce the margins that Plantronics makes. This reduction in margins could, in turn, cause a reduction in net earnings and a resulting decline in the market price of Plantronics stock.
POTENTIAL NEW COMPETITORS:
Plantronics anticipates that it will face additional competition from companies that currently do not offer communications headsets. This is particularly true in the business, home office, wireless telephone and computer market segments. These new competitors may be larger, offer broader product lines and have substantially greater financial and other resources than Plantronics. To compete successfully with such new competitors, Plantronics could have to reduce prices and offer new technologies and increased support. Those efforts to meet competition could negatively affect margins and earnings and result in reductions in the market price of Plantronics stock.
NEED TO SUCCESSFULLY DEVELOP NEW PRODUCTS AND MARKETS:
MEETING CONSUMER NEEDS:
Historically, most sales have been made through independent distributors to call center users. While that segment of the market is still the most significant part of its business, Plantronics believes that the business, home office, mobile and computer headset market segments offer substantial growth potential. To be successful in those segments, Plantronics must be able to develop new products that meet the needs of consumers. Although Plantronics has attempted to determine the specific needs of consumers in these new market segments, there is no assurance that Plantronics' present and future products will be accepted. If the products are not accepted by consumers, Plantronics may not achieve the revenue growth needed to cover the costs of developing, manufacturing and selling the products. Plantronics could also be left with inventories of obsolete and excess products. Earnings could be reduced and there could be a loss in the value of Plantronics stock.
DEMAND OF CHANGING TECHNOLOGIES:
The technology of telephone headsets has traditionally evolved slowly. Products have generally had life cycles of three to five years before introduction of the next generation of products. Next generation products usually included stylistic changes and quality improvements, but were based on similar technologies. Plantronics believes that future changes in technology will come at a faster pace. This is particularly true in headsets for use in the business, home office, mobile and computer market segments. The development of new technologies requires increased spending for research and development. Those increased expenses may reduce the profit to Plantronics and adversely impact earnings and stock price.
RISKS RELATED TO GROSS PROFIT:
RELIANCE UPON SUPPLIERS:
Plantronics buys components and subassemblies from a variety of suppliers. Those components and subassemblies are then assembled by Plantronics into the finished products it sells. The cost, quality, and availability of such components are essential to the successful production of Plantronics' communications products.
o There is always the risk that prices of components and subassemblies will rise and that those cost increases cannot be reflected in sales price increases in the finished products of Plantronics. If costs rise faster than sales prices, gross margins would fall and operating results would be affected.
o Most components and subassemblies are obtained, or are reasonably available, from numerous sources. However, certain subassemblies and components are currently obtained only from single suppliers and alternate sources are not readily available. To date, Plantronics has experienced only minor interruptions in the supply of these components and subassemblies, none of which has adversely affected its operations. However, an interruption in supply from any of Plantronics' single source suppliers in the future could adversely affect operations and financial results:
o If the single-source materials could not be obtained, Plantronics would not be able to manufacture the affected products. The inability to meet customer orders would have a negative impact on revenue and earnings.
o If the inability to deliver continued over an extended period, there could be a long-term impact to the competitive position of Plantronics. Potential customers could turn to competitive sources for the products.
o If alternate sources for the components and subassemblies could be found, those sources could charge more for the materials. o Higher prices for the materials would decrease gross margins and net earnings if the selling price of the finished product is not raised. If the selling price is increased to reflect the higher costs of manufacture, there could be a loss in sales if the higher prices discourage demand.
o Plantronics does not have supply contracts with most of its suppliers. Plantronics buys most components and subassemblies on a purchase order basis. Therefore, there is no contractual requirement that obligates those suppliers to continue to provide components and subassemblies to Plantronics. Deliveries to Plantronics could be affected if those suppliers were to experience increased demand or shortages in their supply. Until alternate sources of the components and subassemblies are developed, Plantronics would be unable to manufacture and sell the products which are dependent on those components and subassemblies. This would reduce revenues and earnings. Also, the alternate sources of supply could charge higher prices, having a potential impact on gross margins and earnings.
NEED TO MATCH PRODUCTION TO DEMAND:
Historically, Plantronics has seen steady increases in customer demand for its products and has generally been able to increase production to meet that demand. However, the demand for Plantronics' products is dependent on many factors and such demand is inherently difficult to forecast.
o If demand increases beyond that forecasted, Plantronics would have to work to rapidly increase its production of the products. Because Plantronics is dependent upon suppliers providing additional volumes of components and subassemblies, there is no certainty that production could be increased rapidly enough to meet unforecasted demand. Failure to meet demand could result in the inability to meet customer expectations and adversely affect Plantronics' operations and operating results.
o Rapid increases in production levels to meet unanticipated demand could result in higher costs for the necessary components and subassemblies and higher costs of production in the form of overtime and other expenses. Those higher expenditures could negatively affect gross margins. Further, if production is increased rapidly, there may be decreased manufacturing yields, again affecting gross margins.
o If forecasted demand does not develop, Plantronics would have excess production. Excess production would result in the holding of higher inventories of finished goods or components. While held on the books, those high inventories would negatively affect earnings. If it were unable to sell these inventories, Plantronics would have to write off some or all of its inventories of obsolete products and unusable components and subassemblies. Such write-offs would have a negative impact on earnings.
DIFFERENCES IN PRODUCT MIX:
Different products sold by Plantronics have different gross profit margins. Therefore, the gross profit percentage in any period depends on the mix of products sold in the period. Meeting the needs of purchasers in the future may cause the product mix to change and the gross profit percentage to fluctuate. This could affect Plantronics' operating results.
VOLUME SALES:
Plantronics may charge a lower price on certain products to high volume purchasers to reflect the economies of scale in such large sales and to meet competition for those accounts. The lower price on the high volume sales results in a lower gross profit to Plantronics, which could adversely impact earnings.
IMPORTANCE OF PATENTS AND OTHER INTELLECTUAL PROPERTY RIGHTS:
Plantronics' success will depend in part on its ability to obtain patents and preserve other intellectual property rights covering the design and operation of its products. Plantronics currently holds certain patents and intends to continue to seek patents on its inventions when appropriate. The process of seeking patent protection can be lengthy and expensive. The costs of these patents, which Plantronics believes are important to its business, negatively impact earnings.
There can be no assurance that patents will issue from currently pending or future applications. There also can be no assurance that Plantronics' existing patents or any new patents issued will be of sufficient scope or strength or provide meaningful protection or any commercial advantage.
Plantronics may be subjected to, or may initiate, litigation or patent office interference proceedings, which may require significant financial and management resources. The failure to obtain necessary licenses or other rights or the advent of litigation arising out of any such claims could have a material adverse effect on Plantronics' operations.
RISK ASSOCIATED WITH FOREIGN OPERATIONS AND SALES:
Approximately 30.7% of Plantronics' net sales in fiscal 1998 were derived from customers outside the United States. In addition, Plantronics conducts substantially all of its headset assembly operations in its Mexican manufacturing facility and obtains most of the components of its products from various foreign suppliers. Offshore operations are subject to certain inherent risks. There can be no assurance that the inherent risks of offshore operations, particularly in Mexico, will not adversely affect Plantronics' business, operating results and financial condition in the future. The types of risks faced in connection with foreign operations and sales include.
GEOGRAPHIC RISK:
Given the distances, there may be geographic limitations on management controls and reporting. There may also be delays in transportation of components and subassemblies and finished products.
o It is inherently more difficult to manage foreign operations due to the distances and time differences. Those problems could adversely impact the conduct of business and decrease earnings.
o There may be delays in obtaining necessary components and subassemblies due to the time required to transport the materials and the increased potential for problems in transportation. Such delays could impact manufacture of Plantronics products. Delays in manufacturing could cause losses in revenues from lost sales. If, due to the delays, Plantronics must turn to alternate sources for the materials, the costs of the materials could be higher. This would decrease gross margins if prices are not increased to reflect the higher costs. Alternatively, if prices were increased, Plantronics could lose sales if demand decreased due to the higher prices.
o Delays in transportation of finished products may prevent timely supply of Plantronics products to foreign customers. This could reduce revenues.
POLITICAL RISK:
There may be changes in governmental policies, import/export regulations, taxes and tariffs.
o Changes in governmental policies may affect the ability to obtain critical components and subassemblies or to ship finished products into the foreign markets.
o Foreign governments could restrict the export of components and/or subassemblies critical to the manufacturing of Plantronics products. This would have an adverse impact on revenues if there was a resulting inability to manufacture. There would be adverse effects upon gross margins if Plantronics had to qualify and use higher cost alternate sources for the components and subassemblies.
o Foreign governments may also place restrictions on the import of Plantronics products or require technical modifications to the products as a requirement selling them within the foreign country. Revenues would be adversely impacted if Plantronics cannot sell products into the foreign country. If Plantronics must modify its products to make sales in the country, its costs of manufacturing may increase. If the price cannot be increased to reflect those costs, margins would be impacted. If prices are increased to reflect any added costs of compliance, revenues could be impacted if the higher prices discourage demand.
o Increased taxes could increase the cost of components and subassemblies, reducing margins and earnings. Similarly, increased taxes charged to purchasers could reduce demand for Plantronics' products. This reduced demand could reduce revenue.
o Higher tariffs in the import of products into foreign countries could adversely affect revenues. Higher tariffs raise the cost of Plantronics products to purchasers in those countries. Those increased costs to purchasers could reduce demand for Plantronics products and, in certain cases, make Plantronics' products non-competitive to other similar products.
o Changes in import/export regulations could result in delays in obtaining components and subassemblies. This could prevent Plantronics from timely manufacture of its products, decreasing revenues. Delays in obtaining components and subassemblies could require Plantronics to turn to alternate sources, which may increase the costs of manufacture.
o Delays in the importation of Plantronics products into the foreign country can impact revenues. Purchasers may turn to other sources if they cannot obtain Plantronics products in a timely manner. If there are significant delays due to changed import/export regulations, Plantronics may have to provide price reductions or extend payment terms to its distributors to reflect their increased costs. Those price reductions or extended payment terms could adversely impact earnings.
CURRENCY RISK:
There may be fluctuations in currency exchange rates. Fluctuations in exchange rates creates risk to Plantronics in both the sale of its products and its purchase of supplies. To date, Plantronics has not been adversely affected by fluctuating currencies. Plantronics does not currently engage in any hedging activities to mitigate exchange rate risks. This strategy will require review and Plantronics may experience greater exposure to currency fluctuations as a result of its increasing international activities. To the extent that Plantronics is successful in increasing its sales to foreign customers, or to the extent that Plantronics increases its transactions in foreign currencies, Plantronics' results of operations could be adversely affected by exchange rate fluctuations.
Plantronics sells its products internationally in both US dollars and local foreign currencies. Transactions conducted in US dollars are subject to foreign exchange risk when declines in the value of local currencies relative to the US dollar result in less competitive pricing for Plantronics' product. In transactions conducted in local foreign currencies, a decline in the value of the foreign currency can result in less revenue if Plantronics is unable to increase prices.
Transactions with Plantronics' suppliers are conducted principally in US dollars. Declines in the value of local currencies in countries from which Plantronics purchases components and subassemblies generally result in lower prices for such materials. However, to the extent that the currency exchange rates reflect the underlying economic health of such foreign economies, there is the risk over the longer term that such foreign suppliers may not continue in business. Substantial increases in the values of local currencies relative to the United States dollar could adversely affect Plantronics by causing suppliers to increase the cost of their products. In this event, Plantronics would have to either pass these cost increases on through higher prices to its customers, possibly making its products less competitive, or accept lower margins.
RISKS ASSOCIATED WITH THE YEAR 2000:
Plantronics is undertaking efforts to ensure that its business systems and those of its suppliers and customers are compliant with the requirements of the Year 2000. There is, however, no assurance that such efforts will successfully ensure against disruptions caused by the arrival of the new millennium. The Year 2000 problem is potentially very wide spread and it is not possible to determine all the potential risks that Plantronics may face. Some of the possible consequences to Plantronics by reason of it or its business partners not being fully Year 2000 compliant include:
o The temporary closing of some portion or all of the manufacturing plant if critical business systems or manufacturing systems fail or local utilities suppliers are unable to supply needed power and water.
o Delays in the delivery of finished products to customers if there are manufacturing delays, inability of carriers to transport the products, or inability of government agencies to process the export and import of the products from the manufacturing facility to the final destination.
o Delays in the receipt of key ingredients due to supplier problems or problems with carriers or the import/export processes. Those delays could, in turn, delay production of Plantronics products and/or result in having to turn to higher priced alternative sources.
o Delays or errors in the purchase orders by which customers order products, resulting in loss of or delays in recognition of revenues.
o Delays or errors in invoicing to customers, resulting in delays in collection or potential losses of revenues.
These consequences could have a material adverse impact on Plantronics' results of operations, financial condition and cash flows.
DEPENDENCE UPON SENIOR MANAGEMENT:
Plantronics believes that it has benefited substantially from the leadership of Robert S. Cecil, the Chairman of the Board and Chief Executive Officer of Plantronics, and the other current members of senior management, and that the loss of their services could have a material adverse effect on Plantronics' business and future operations. Although Plantronics has an employment agreement with Mr. Cecil, such agreement permits him to voluntarily terminate his employment at any time. In addition, although Mr. Cecil's agreement contains a five-year non-compete covenant which takes effect upon termination of his employment, such covenants are generally not enforceable under California law.
On November 11, 1998, Plantronics announced that S. Kenneth Kannappan, President and Chief Operating Officer, will be promoted to Chief Executive Officer and President effective January 4, 1999. Mr. Cecil will continue to serve actively as Chairman of the Board of Directors.
CONCLUSION
Because of the foregoing factors, as well as other variables affecting or which could affect Plantronics' operating results, past financial performance should not be considered a reliable indicator of future performance. Investors should not rely upon historical trends to anticipate results or trends in future periods.
PLANTRONICS' BUSINESS
HEADSETS:
The primary business of Plantronics is the manufacture and sale of lightweight communications headsets. Headsets generally consist of a headset "top" worn on the head or ear and an amplifier "bottom" that connects to the telephone, computer or call distribution system. Many telephones and call distribution systems are now being equipped with headset ports, into which the headset top can be directly plugged. Headsets used with computers and other devices may also plug directly into the computer sound card or other audio input.
HANDSETS:
Plantronics, through its Walker Equipment Division, also manufactures and sells communications handsets. The Walker handsets are principally used as original and replacement handsets for pay telephones, elevator phones, and other non-home telephones. Noise-canceling handsets are manufactured and sold for use with telephones, computers and other products in high-noise environments. Specialized handsets for use in testing telephone lines and equipment are also manufactured and sold under the Walker label. Additionally, the Walker Equipment Division sells specialty telephones and telephone handsets for use by the hearing-impaired.
THE MARKET SEGMENTS:
Plantronics' headset products are used worldwide by users in large and small call centers. The users include telemarketing personnel, reservation agents, customer support personnel, and telephone operators. Call centers range in size from very small technical support groups to very large organizations with literally thousands of users. Call center personnel are on the telephone constantly and a headset is generally thought of as a required piece of equipment. Plantronics estimates that the call center segment, including both large and small call centers, accounts for the majority of Plantronics sales today.
Plantronics also sells headsets for users in the business and home office user market segments. People who use headsets in these segments are those whose occupations may require intensive (but not constant) use of a telephone.
Headsets are also used with mobile and cellular telephones, for both business and personal use.
Finally, headsets can be connected to computers for such applications as multimedia programs, voice recognition programs, computer games and computer telephony.
The handset products offered by the Walker Equipment division are used in many different public telephone settings and as specialty replacement handsets for home and business telephones. The Walker Equipment telephones and handsets for the hearing- impaired are sold both for home and business users who benefit from the special assistance that the Walker Equipment products provide.
DISTRIBUTION:
Plantronics sells its products principally through a worldwide network of independent distributors. Those distributors resell the headsets and handsets to dealers, government purchasers, or end-users. Products are also sold by Plantronics to retailers such as office supply and consumer electronics stores, mail order catalogs, warehouse clubs and office supply distributors. In addition, Plantronics manufactures products under private labels for other companies, who then sell the products under their own names. Finally, Plantronics sells directly to certain large users, such as telephone operating companies and other companies that employ a large number of people in telephone-intensive jobs.
SELLING STOCKHOLDERS
The selling stockholders acquired, or will acquire, beneficial ownership of all the shares listed below through stock options granted under Plantronics' 1993 Stock Plan. The following table shows, in each case as of November 17, 1998:
o the name of each selling stockholder,
o how many shares the selling stockholder beneficially owns,
o how many shares the selling stockholder can resell under this prospectus, and
o assuming a selling stockholder sells all shares listed next to his or her name, how many shares the selling stockholder will beneficially own after completion of the offering.
Plantronics may amend or supplement this prospectus from time to time in the future to update or change this list of selling stockholders and shares which may be resold.
SHARES WHICH MAY BENEFICIAL OWNERSHIP AFTER OFFERING
SHARES BENEFICIALLY BE SOLD UNDER
SELLING STOCKHOLDER OWNED(1) THIS PROSPECTUS SHARES PERCENTAGE
-------------------------------- ----------------------- ---------------------- ---------------------- ----------------------
Robert S. Cecil (2) 1,278,844 (3) 639,422 639,422 (4) 3.6% (5)
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(1) Plantronics has calculated the number and percentage of shares each selling stockholder "beneficially owns" in accordance with Rule 13d-3 under the Exchange Act. Beneficial ownership as defined in Rule 13d-3 does not necessarily indicate beneficial ownership for any other purpose. Under Rule 13d-3, a person beneficially owns all shares as to which they have either sole or shared voting power or sole or shared investment power, as well as all shares which they have the right to acquire within 60 days of the calculation date by exercising any stock option or other right. Since the list above speaks as of November 17, 1998, beneficial ownership therefore includes all shares which the selling stockholder has the right to acquire within 60 days of November 17, 1998 (i.e. on or before January 16, 1999).
(2) As of the date of this prospectus, the selling stockholder serves as the Chairman of the Board of Directors and Chief Executive Officer of Plantronics. Until March 1998, the selling stockholder additionally served as the President of Plantronics. On November 11, 1998, Plantronics announced that S. Kenneth Kannappan, President and Chief Operating Officer, will be promoted to Chief Executive Officer and President effective January 4, 1999. The selling stockholder will continue to serve actively as Chairman of the Board of Directors.
(3) The listed number includes 639,422 shares which the selling stockholder may acquire, and 639,422 additional shares which the spouse of the selling stockholder may acquire, by exercising options which are or which become exercisable within 60 days of November 17, 1998.
(4) The listed number includes 639,422 shares which the spouse of the selling stockholder may acquire by exercising options which are or which become exercisable within 60 days of November 17, 1998.
(5) Based on a total of 16,489,049 shares outstanding as of November 17, 1998, and assumes the exercise of all options to purchase Plantronics common stock held by the selling stockholder and/or his spouse which are or which become exercisable within 60 days of November 17, 1998.
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PLAN OF DISTRIBUTION
RESALES BY SELLING STOCKHOLDERS:
Plantronics is registering the resale of the shares on behalf of the selling stockholders. The selling stockholders may offer and resell the shares from time to time, either in increments or in a single transaction. They may also decide not to sell all the shares they are allowed to resell under this prospectus. The selling stockholders will act independently of Plantronics in making decisions with respect to the timing, manner and size of each sale.
DONEES AND PLEDGEES:
The term "selling stockholders" includes donees, i.e. persons who receive shares from a selling stockholder after the date of this prospectus by gift. The term also includes pledgees, i.e. persons who, upon contractual default by a selling stockholder, may seize shares which the selling stockholder pledged to such person. If a selling stockholder notifies Plantronics that a donee or pledgee intends to sell more than 500 shares, Plantronics will file a supplement to this prospectus.
COSTS AND COMMISSIONS:
Plantronics will pay all costs, expenses and fees in connection with the registration of the shares. The selling stockholders will pay all brokerage commissions and similar selling expenses, if any, attributable to the sale of shares.
TYPES OF SALE TRANSACTIONS:
The selling stockholders may sell the shares in one or more types of transactions (which may include block transactions):
o on the NYSE,
o in the over-the-counter market,
o in negotiated transactions, or
o any combination of such methods of sale.
The shares may be sold at market prices prevailing at the time of sale, or at negotiated prices. Such transactions may or may not involve brokers or dealers. The selling stockholders have informed Plantronics that they have not entered into any agreements, understandings or arrangements with any underwriters or broker-dealers regarding sale of the shares. They have also informed Plantronics no one is acting as underwriter or coordinating broker in connection with the proposed sale of shares.
SALES TO OR THROUGH BROKER-DEALERS:
The selling stockholders may conduct such transactions either by selling shares directly to purchasers, or by selling shares to, or through, broker-dealers. Such broker-dealers may act either as an agent of a selling stockholder, or as a principal for the broker-dealer's own account. Such broker-dealers may receive compensation in the form of discounts, concessions, or commissions from the selling stockholders and/or the
purchasers of shares. This compensation may be received both if the broker-dealer acts as an agent or as a principal. This compensation might also exceed customary commissions.
DEEMED UNDERWRITING COMPENSATION:
The selling stockholders and any broker-dealers that act in connection with
the sale of shares might be deemed to be "underwriters" within the meaning of
Section 2(a)(11) of the Securities Act. Any commissions received by such
broker-dealers, and any profit on the resale of shares sold by them while acting
as principals, could be deemed to be underwriting discounts or commissions under
the Securities Act.
INDEMNIFICATION:
Plantronics has agreed to indemnify each selling stockholder against certain liabilities, including liabilities arising under the Securities Act. The selling stockholders may agree to indemnify any agent, dealer or broker-dealer that participates in transactions involving sales of shares against certain liabilities, including liabilities arising under the Securities Act.
PROSPECTUS DELIVERY REQUIREMENTS:
Because they may be deemed underwriters, the selling stockholders must deliver this prospectus and any supplements to this prospectus in the manner required by the Securities Act. This might include delivery through the facilities of the NYSE in accordance with Rule 153 under the Securities Act. Plantronics has informed the selling stockholders that their sales in the market may be subject to the antimanipulative provisions of Regulation M under the Exchange Act.
STATE REQUIREMENTS:
Some states require that any shares sold in that state only be sold through registered or licensed brokers or dealers. In addition, some states require that the shares have been registered or qualified for sale in that state, or that there exist an exemption from the registration or qualification requirement and that the exemption has been complied with.
SALES UNDER RULE 144:
Selling stockholders may also resell all or a portion of the shares in open market transactions in reliance upon Rule 144 under the Securities Act. To do so, they must meet the criteria and conform to the requirements of Rule 144.
DISTRIBUTION ARRANGEMENTS WITH BROKER-DEALERS:
If a selling stockholder notifies Plantronics that any material arrangement has been entered into with a broker-dealer for the sale of shares through
o a block trade,
o special offering,
o exchange distribution or secondary distribution, or
o a purchase by a broker or dealer,
then Plantronics will file, if required, a supplement to this prospectus under Rule 424(b) under the Securities Act.
The supplement will disclose:
o the name of each such selling stockholder and of the participating broker-dealer(s),
o the number of shares involved,
o the price at which such shares were sold,
o the commissions paid or discounts or concessions allowed to such broker-dealer(s), where applicable,
o that such broker-dealer(s) did not conduct any investigation to verify the information in this prospectus, and
o any other facts material to the transaction.
INFORMATION INCORPORATED BY REFERENCE
This prospectus incorporates by reference the following documents and information, all of which Plantronics has filed in the past with the SEC:
o Plantronics' Annual Report on Form 10-K for the fiscal year ended March 28, 1998, filed on June 24, 1998.
o Plantronics' Quarterly Report on Form 10-Q for the quarterly period ended June 27, 1998, filed on August 6, 1998.
o Plantronics' Quarterly Report on Form 10-Q for the quarterly period ended September 26, 1998, filed on November 10, 1998.
o The description of Plantronics' common stock set forth in Plantronics' Registration Statement on Form S-1 (Reg. No. 33-70744), filed on October 20, 1993, as amended by Amendment No. 1, filed on November 30, 1993, Amendment No. 2, filed on December 27, 1993, and Amendment No. 3, filed on January 18, 1994.
o Item 1 of Plantronics' Registration Statement on Form 8-A, filed on December 20, 1993, as amended on January 14, 1994 and November 7, 1997.
Unless Plantronics has filed a post-effective amendment to the registration
statement under the Securities Act which contains this prospectus indicating
that all of the shares have been sold or which deregisters all shares then
remaining unsold, all documents which Plantronics subsequently files under
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act shall be deemed to be
incorporated by reference in this prospectus and to be part of this prospectus
from the date of filing of such documents.
Plantronics will provide without charge to each person to whom a copy of this prospectus is delivered, upon written or oral request, a copy of the information that has been or may be incorporated by reference in this
prospectus, other than exhibits to such documents. Direct any request for such copies to John A. Knutson, Vice President--Legal, Senior General Counsel and Secretary, Plantronics, Inc., 345 Encinal Street, Santa Cruz, California 95060, Tel: (831) 426-5858.
HOW TO GET INFORMATION ABOUT PLANTRONICS
Plantronics is subject to the informational requirements of the Exchange Act and therefore files reports, proxy and information statements and other information with the SEC. You can inspect many of such reports, proxy and information statements and other information on the SEC's internet website at http://www.sec.gov.
You can also inspect and copy such reports, proxy and information
statements and other information at the SEC's Public Reference Room, 450 Fifth
Street, N.W., Washington, D.C. 20549. You can obtain information on the
operation of the Public Reference Room by calling the SEC at tel:
1-800-SEC-0330. You can also inspect and copy such reports, proxy and
information statements and other information may also be inspected and copied at
the following Regional Offices of the SEC: New York Regional Office, Seven World
Trade Center, Suite 1300, New York, New York 10048; and Chicago Regional Office,
Northwest Atrium Center, 500 West Madison Street, Suite 1400, Chicago, Illinois
60661. Plantronics' common stock is listed on the NYSE, and you can inspect such
reports, proxy and information statements and other information at the offices
of the NYSE, 20 Broad Street, New York, New York 10005.
This prospectus constitutes part of a registration statement on Form S-8 (Reg. No. 33-81980) filed by Plantronics with the SEC under the Securities Act on July 26, 1994, amended on the date of this prospectus. This prospectus does not contain all of the information set forth in the registration statement. For further information with respect to Plantronics and the shares, you should refer to the registration statement either at the SEC's website or at the addresses set forth in the preceding paragraph. Statements in this prospectus concerning any document filed as an exhibit to this prospectus are not necessarily complete, and, in each instance, you should refer to the copy of such document which has been filed as an exhibit to the registration statement. Each such statement is qualified in its entirety by such reference.
No one is authorized to give any information or to make any representations not contained in this prospectus in connection with any offering made by this prospectus. If given or made, you must not rely on such information or representations as having been authorized by Plantronics, any selling stockholder or by any other person. This prospectus does not constitute an offer to sell or a solicitation of an offer to buy any security other than the shares offered hereby. This prospectus also does not constitute an offer to sell or a solicitation of an offer to buy any of the shares offered hereby to any person in any jurisdiction in which it is unlawful to make such an offer or solicitation. Neither delivery of this prospectus, nor any sale or offer to sell shares hereunder, shall under any circumstances create any implication that there has been no change in the affairs of Plantronics since the date of this prospectus or that the information contained in this prospectus is correct as of any time subsequent to the date of this prospectus.
INDEMNIFICATION AND THE SEC'S POSITION ON ENFORCEABILITY
Section 145 of the Delaware General Corporation Law authorizes a court to award, or a corporation's Board of Directors to grant, indemnity to directors and officers. This may under certain circumstances include indemnification for liabilities arising under the Securities Act as well as for expenses incurred in that regard. Article Nine of Plantronics' Certificate of Incorporation and Article V of Plantronics' By-laws provide for indemnification of its directors, officers, employees and other agents to the maximum extent permitted by the
Delaware General Corporation Law. Plantronics has also entered into Indemnification Agreements with its officers and directors.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling Plantronics pursuant to the foregoing provisions, Plantronics has been informed that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
ACCOUNTING EXPERTS
The financial statements incorporated in this prospectus by reference to Plantronics' Annual Report on Form 10-K for the fiscal year ended March 28, 1998, have been so incorporated in reliance on the report of PricewaterhouseCoopers LLP, independent accountants, given on the authority of PricewaterhouseCoopers as experts in auditing and accounting.
PART II: INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 8. EXHIBITS.
Exhibit Number Document ------- -------------------------------------------------------------- 5.1* Opinion of Counsel as to Legality of Securities Being Registered. 10.1 Amended and Restated 1993 Stock Plan. 23.1 Consent of Independent Accountants. |
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(a) (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement to include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to
a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant, Plantronics, Inc., a corporation organized and existing under the laws of the State of Delaware, certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Santa Cruz, State of California, on November 17, 1998.
PLANTRONICS, INC.
Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature Title Date
----------------------------------------- ------------------------------------------- ----------------------------------
s\ Robert S. Cecil Chairman of the Board and Chief Executive November 17, 1998
------------------------------------- Officer (Principal Executive Officer)
Robert S. Cecil
s\ Barbara V. Scherer Senior Vice President--Finance & November 17, 1998
------------------------------------- Administration, and Chief Financial
Barbara V. Scherer Officer (Principal Financial Officer,
Principal Accounting Officer)
s\ Robert F.B. Logan Director November 17, 1998
-------------------------------------
Robert F.B. Logan
s\ M. Saleem Muqaddam Director November 17, 1998
-------------------------------------
M. Saleem Muqaddam
s\ John Mowbray O'Mara Director November 17, 1998
-------------------------------------
John Mowbray O'Mara
s\ Trude C. Taylor Director November 17, 1998
-------------------------------------
Trude C. Taylor
|
Director November ___, 1998
-------------------------------------
J. Sidney Webb
s\ David A. Wegmann Director November 17, 1998
-------------------------------------
David A. Wegmann
|
INDEX TO EXHIBITS
Exhibit Number Document ------- -------------------------------------------------------------- 5.1* Opinion of Counsel as to Legality of Securities Being Registered. 10.1 Amended and Restated 1993 Stock Plan. 23.1 Consent of Independent Accountants. |
* Previously filed.
EXHIBIT 10.1
PI PARENT CORPORATION
1993 STOCK PLAN
(as amended through August 27, 1998)
1. Purposes of the Plan. The purposes of this Stock Plan are to attract and retain the best available personnel for positions of substantial responsibility, to provide additional incentive to Employees and Consultants of the Company and its Subsidiaries and to promote the success of the Company's business. Options granted under the Plan may be incentive stock options or non-statutory stock options, as determined by the Committee at the time of grant.
2. Definitions. As used herein, the following definitions shall apply:
(a) "Applicable Laws" means the legal requirements relating to the administration of stock option plans under state corporate law, federal and state securities laws, the Code, and of any applicable stock exchange.
(b) "Board" means the Board of Directors of the Company.
(c) "Code" means the Internal Revenue Code of 1986, as amended.
(d) "Committee" means the compensation committee appointed by the Board in accordance with Section 4 of the Plan.
(e) "Common Stock" means the Class D Common Stock of the Company and any other class of stock into which the Class D Common Stock is subsequently converted.
(f) "Company" means PI Parent Corporation, a Delaware corporation.
(g) "Company Common Stock" means the common stock of the Company, including the class A common stock, the class B common stock, the class C common stock and the Common Stock and each class of common stock into which such shares are converted.
(h) "Consultant" means any person, including an advisor, engaged by the Company or any Parent or Subsidiary to render services and who is compensated for such services and who does not render such services as an Employee.
(i) "Continuous Status as an Employee or Consultant" means that the employment or consulting relationship is not interrupted or terminated by the Company, any Parent or Subsidiary. Continuous Status as an Employee or Consultant shall not be considered interrupted in the case of: (i) any leave of absence approved by the Committee, including sick leave, military leave, or any other personal leave; provided, however, that for purposes of Incentive Stock Options, no such leave may exceed ninety (90) days, unless reemployment upon the expiration of such leave is guaranteed by
contract (including certain Company policies) or statute; or (ii) transfers between locations of the Company or between the Company, its Parent, its Subsidiaries or its successor.
(j) "Convertible Securities" means securities convertible into or exchangeable for Company Common Stock, including, without limitation, debt, equity, or hybrid debt-equity securities.
(k) "CVC" means Citicorp Venture Capital, Ltd.
(l) "Director" means a member of the Board.
(m) "Disability" means total and permanent disability as defined in Section 22(e)(3) of the Code.
(n) "Employee" means any person, including officers and directors, employed by the Company or any Parent or Subsidiary of the Company. The payment of a Director's fee by the Company shall not be sufficient to constitute "employment" by the Company.
(o) "Exchange Act" means the Securities Exchange Act of 1934, as amended.
(p) "Fair Market Value" means, as of any date of determination, the value of Company Common Stock determined as follows:
(i) If the Company Common Stock is listed on any established stock exchange or a national market system including without limitation the National Market System of the National Association of Securities Dealers, Inc. Automated Quotation ("NASDAQ") System, its Fair Market Value shall be the closing sales price for such stock (or the closing bid, if no sales were reported, as quoted on such exchange or system for the last market trading day prior to the time of determination) as reported in The Wall Street Journal or such other source as the Committee deems reliable;
(ii) If the Company Common Stock is quoted on the NASDAQ System (but not on the National Market System thereof) or regularly quoted by a recognized securities dealer but selling prices are not reported, its Fair Market Value shall be the mean between the high bid and low asked prices for such stock or;
(iii) In the absence of an established market for the Company Common Stock, the Fair Market Value thereof shall be determined in good faith by the Committee in conjunction with a qualified independent appraiser.
(q) "Incentive Stock Option" means an Option intended to qualify as an incentive stock option within the meaning of Section 422 of the Code.
(r) "Initial Public Offering" means an offering of shares of Common Stock to the public (other than to employees or in connection with an acquisition) registered under Form S-1 (or
any successor form) with the SEC under the Securities Act of 1933, as amended.
(s) "Nonstatutory Stock Option" means an Option not intended to qualify as an Incentive Stock Option.
(t) "Officer" means a person who is an officer of the Company within the meaning of Section 16 of the Exchange Act and the rules and regulations promulgated thereunder.
(u) "Option" means a stock option granted pursuant to the Plan.
(v) "Optioned Stock" means the Common stock subject to an Option.
(w) "Optionee" means an Employee or Consultant who receives an Option, or in the event of death or disability, such individual's estate or personal representative.
(x) "Outside Director" means a member of the Board who is neither
an Employee nor a Consultant and whom qualifies as an Outside Director under
Section 162(m) of the Code and any regulations promulgated thereunder.
(y) "Over-Allotment Option Lapse Date" means the earlier of (1) the date the underwriters to the Initial Public Offering have either exercised or opted not to exercise their over-allotment option in full, or (2) the date of the expiration of the term of such over-allotment option.
(z) "Parent" means a "parent corporation", whether now or hereafter existing, as defined in Section 424(e) of the Code.
(aa) "Plan" means this 1993 Stock Option Plan.
(ab) "Private Placement" means the Company sells shares of Company Common Stock, Convertible Securities or derivative securities related thereto (other than pursuant to this Plan).
(ac) "Share" means a share of the Common Stock, as adjusted in accordance with Section 11 below.
(ad) "Subsidiary" means a "subsidiary corporation", whether now or hereafter existing, as defined in Section 424(f) of the Code.
3. Stock Subject to the Plan. Subject to the provisions of Section 11 of the Plan, the maximum aggregate number of Shares that may be optioned and sold under the Plan is 5,459,242 Shares. The 5,459,242 Share amount reflects (i) the 1,589,621 Shares originally authorized, (ii) the 490,000 Share increase approved by the Company's stockholders on August 6, 1996, (iii) the 2:1 stock split effected September 1, 1997 and (iv) the 1,300,000 share increase approved by the Company's stockholders on July 30, 1998. The Shares may be authorized, but unissued, or
reacquired Common Stock, or both.
If an Option should expire or become unexercisable for any reason without having been exercised in full, the unpurchased Shares which were subject thereto shall, unless the Plan shall have been terminated, become available for future grant under the Plan. However, should the Company reacquire Shares which were issued pursuant to the exercise of an Option, such Shares shall not become available for future grant under the Plan.
4. Administration of the Plan.
(a) Initial Plan Procedure and Limitations. Prior to the date, if any, of an Initial Public Offering or of a registered public offering of debt securities by the Company, the Plan shall be administered by the compensation committee of the Board, which Committee shall be composed solely of two or more Outside Directors; provided, however, that such Committee shall not have the discretionary authority to modify, amend or waive any provision of outstanding Options.
(b) Plan Procedure After the Date, if any, of the Initial Public Offering or a Registered Public Offering of Debt Securities. After the date, if any, of the Initial Public Offering or a registered public offering of debt securities by the Company until the date upon which CVC's aggregate ownership of the Company Common Stock becomes an amount less than ten percent of the Company Common Stock, the Plan shall also be administered by the compensation committee appointed by the Board; which Committee shall be composed solely of two or three (but no more than three) Outside Directors, at least one of whom shall be a designee of CVC; provided, however, that such Committee shall have the discretionary authority to take any actions with respect to any outstanding options only with at least a two-thirds vote of the Committee or, in the alternative, upon a majority vote of the Committee ratified by approval of at least two-thirds of the Board.
After the date, if any, upon which CVC's aggregate ownership of the Company Common Stock becomes an amount less than ten percent of the Company Common Stock, the Plan shall also be administered by the compensation committee appointed by the Board; which Committee shall be composed of two or more Outside Directors, and which Committee shall have the full discretionary authority to take all actions as described herein upon a majority vote of such Committee.
Once appointed, such Committee shall continue to serve in its designated capacity until otherwise directed by the Board. Subject to the requirement set forth above that during a certain period at least one member of the Committee shall be a designee of CVC, from time to time the Board may increase the size of the Committee (but not to a size of more than three members so long as CVC owns at least 10% of the Company Common Stock, and appoint additional members thereof, remove members (with or without cause) and appoint new members in substitution therefor, fill vacancies, however caused, all to the extent permitted by Rule 16b-3 with respect to a plan intended to qualify thereunder as a discretionary plan.
(c) Powers of the Committee. Subject to (i) the provisions of the Plan, (ii) the specific limitations on the Committee's exercise of discretion set forth earlier in this Section, (iii) the
specific duties delegated by the Board to such Committee, and (iv) the approval of any relevant authorities, including the approval, if required, of any stock exchange upon which the Common Stock is listed, the Committee shall have the authority, in its discretion:
(i) to determine the Fair Market Value of the Common Stock, in accordance with Section 2(p) of the Plan;
(ii) to select the Consultants and Employees to whom Options may from time to time be granted hereunder;
(iii) to determine whether and to what extent Options are granted hereunder;
(iv) to determine the number of shares of Common Stock to be covered by each such award granted hereunder;
(v) to approve forms of agreement for use under the Plan; provided, however, that the forms of stock option agreement and exercise notice used in successive stock option grants to Robert S. Cecil and the PI Parent Corporation management team (the "Initial Optionees") shall be identical (except as to number of shares and exercise price and as to any changes which would have no adverse effect upon the Initial Optionees) to those forms of stock option agreement and exercise notice used in the initial grants under this Plan to the Initial Optionees;
(vi) to determine the terms and conditions, not inconsistent with the terms of the Plan, of any award granted hereunder. Such terms and conditions include, but are not limited to, the exercise price, the time or times when Options may be exercised (which may be based on performance criteria), any vesting acceleration, and any restriction or limitation regarding any Option or the shares of Common Stock relating thereto, based in each case on such factors as the Committee, in its sole discretion, shall determine;
(vii) to determine whether and under what circumstances an Option may be settled in cash under subsection 9(d) instead of Common Stock;
(viii) to reduce the exercise price of any Option to the then current Fair Market Value if the Fair Market Value of the Common Stock covered by such Option shall have declined since the date the Option was granted; and
(ix) to construe and interpret the terms of the Plan and awards granted pursuant to the Plan.
(d) Effect of Committee's Decision. All decisions, determinations and interpretations of the Committee shall be final and binding on all Optionees and any other holders of any Options.
5. Eligibility
(a) Nonstatutory Stock Options may be granted to Employees and Consultants. Incentive Stock Options may be granted only to Employees. An Employee or Consultant who has been granted an Option may, if otherwise eligible, be granted additional Options. Outside Directors are not eligible to participate in the Plan.
(b) Each Option shall be designated in the written option agreement as either an Incentive Stock Option or a Nonstatutory Stock Option. However, notwithstanding such designations, to the extent that the aggregate Fair Market Value of the Shares with respect to which Options designated as Incentive Stock Options are exercisable for the first time by any Optionee during any calendar year (under all plans of the Company or any Parent or Subsidiary) exceeds $100,000, such excess Options shall be treated as Nonstatutory Stock Options.
(c) For purposes of Section 5(b), Incentive Stock Options shall be taken into account in the order in which they were granted, and the Fair Market Value of the Shares shall be determined as of the time the Option with respect to such Shares is granted.
(d) The Plan shall not confer upon any Optionee any right with respect to continuation of employment or consulting relationship with the Company, nor shall it interfere in any way with his or her right or the Company's right to terminate his or her employment or consulting relationship at any time, with or without cause.
(e) The following limitations shall apply to grants of Options:
(i) No Employee or Consultant shall be granted in any fiscal year of the Company, Options to purchase more than 15,966 Shares; and
(ii) Over the term of the Plan, no Employee or Consultant shall be granted Options to purchase more than 15,966 Shares.
The foregoing limitations set forth in this Section 5(e) are intended to satisfy the requirements applicable to Options intended to qualify as "performance-based compensation" (within the meaning of Section 162(m) of the Code) and are subject to an automatic proportionate increase in the event of an increase to either the Shares issuable pursuant to the Plan or to the Shares issuable pursuant to a particular Option under Sections 3 and 11 herein. In the event the Committee determines that such limitations are not required to qualify Options as performance-based compensation, the Committee may modify or eliminate such limitations.
6. Term of Plan. The Plan shall become effective upon the earlier to occur of its adoption by the Board or its approval by the stockholders of the Company as described in Section 17 of the Plan. It shall continue in effect for a term of ten (10) years unless sooner terminated under Section 13 of the Plan.
7. Term of Option. The term of each Option shall be the term stated in
the Option Agreement; provided, however, that the term shall be no more than ten
(10) years from the date of grant thereof. However, in the case of an Incentive
Stock Option granted to an Optionee who, at the time the Option is granted, owns
stock representing more than ten percent (10%) of the voting power of all
classes of stock of the Company or any Parent or Subsidiary, the term of the
Option shall be five (5) years from the date of grant thereof or such shorter
germ as may be provided in the Option Agreement.
8. Option Exercise Price and Consideration.
(a) The per share exercise price for the Shares to be issued pursuant to exercise of an Option shall be such price as is determined by the Committee, but shall be subject to the following in the case of an Incentive Stock Option:
(i) granted to an Employee who, at the time of the grant of such Incentive Stock Option, owns stock representing more than ten percent (10%) of the voting power of all classes of stock of the Company or any Parent or Subsidiary, the per Share exercise price shall be no less than 110% of the Fair Market Value per Share on the date of grant.
(ii) granted to any Employee, the per Share exercise price shall be no less than 100% of the Fair Market Value per Share on the date of grant.
(b) In the case of a Nonstatutory Stock Option, the per Share exercise price shall be determined by the Committee.
(c) The consideration to be paid for the Shares to be issued upon exercise of an Option, including the method of payment, shall be determined by the Committee (and, in the case of an Incentive Stock Option, shall be determined at the time of grant) and may consist entirely of (1) cash, (2) check, (3) other Shares which (x) in the case of Shares acquired upon exercise of an Option either have been owned by the Optionee for more than six months on the date of surrender or were not acquired, directly or indirectly, from the Company, and (y) have a Fair Market Value on the date of surrender equal to the aggregate exercise price of the Shares as to which said Option shall be exercised, (4) delivery of a properly executed exercise notice together with such other documentation as the Committee and the broker, if applicable, shall require to effect an exercise of the Option and delivery to the Company of the sale or margin loan proceeds required to pay the exercise price, (5) any combination of the foregoing methods of payment, or (6) such other consideration and method of payment for the issuance of Shares to the extent permitted under Applicable Laws.
9. Exercise of option.
(a) Procedure for Exercise; Rights as a Stockholder. Any Option granted hereunder shall be exercisable at such times and under such conditions as determined by the Committee, including performance criteria with respect to the Company and/or the Optionee, and as shall be permissible under the terms of the Plan.
An Option shall be deemed to be exercised when written notice of such exercise has been given to the Company in accordance with the terms of the Option by the person entitled to exercise the option and full payment for the Shares with respect to which the Option is exercised has been received by the Company. Full payment may, as authorized by the Committee, consist of any consideration and method of payment allowable under Section 8(c) of the Plan. Until the issuance (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company) of the stock certificate evidencing such Shares, no right to vote or receive dividends or any other rights as a stockholder shall exist with respect to the Optioned Stock, notwithstanding the exercise of the Option. The Company shall issue (or cause to be issued) such stock certificate promptly upon exercise of the Option. No adjustment will be made for a dividend or other right for which the record date is prior to the date the stock certificate is issued, except as provided in Section 11 of the Plan.
Exercise of an Option in any manner shall result in a decrease in the number of Shares which thereafter may be available, both for purposes of the Plan and for sale under the Option, by the number of Shares as to which the Option is exercised.
(b) Termination of Employment or Consulting Relationship. This entire paragraph being subject to the terms of an individual Optionee's employment agreement with the Company and to the terms of option agreements with respect to Options granted before April 23, 1996, upon termination of an Optionee's Continuous Status as an Employee or Consultant, the Optionee may exercise his or her Option within sixty (60) days from the date of termination. If, on the date of termination, the Optionee is not entitled to exercise his or her entire Option, the Shares covered by the unexercisable portion of the Option shall revert to the Plan. If, after termination, the Optionee does not exercise his or her Option within such sixty (60) day period, the Option shall terminate, and the Shares covered by such Option shall revert to the Plan.
(c) Rule l6b-3. Options granted to persons subject to Section 16(b) of the Exchange Act must comply with Rule 16b-3 and shall contain such additional conditions or restrictions as may be required thereunder to qualify for the maximum exemption from Section 16 of the Exchange Act with respect to Plan transactions.
(d) Buyout Provisions. The Committee may at any time offer to buy out for a payment in cash or Shares, or may specify at the time of award the circumstances under which an Optionee may sell for a payment in cash or Shares, an Option previously granted, based on such terms and conditions as the Committee shall establish and communicate to the Optionee at the time that such offer or award is made.
(e) Amendment of Registration Agreement and Stockholder Agreement. In an effort to ensure that grantees of Options under the Plan are able, upon the conversion of such Options into Common Stock, to participate in those benefits and obligations of ownership of Common Stock offered to the other holders thereof, the Company agrees promptly upon the adoption of the Plan to take such action, and to use its best efforts to request its existing stockholders to take such action, as may be necessary to:
(i) amend the definition of "Executive Stock Agreements" set forth in the Amended and Restated Registration Agreement dated as of December 29, 1989 by and among the Company and its stockholders, as amended (the "Registration Agreement") to include the Plan. The effect of such amendment will be to provide such holders acquiring Common Stock pursuant to the Plan with the demand registration rights and piggy-back registration rights set forth in Sections 1 and 2, respectively, of the Registration Agreement; and
(ii) amend the following provisions set forth in the Amended and Restated Stockholder Agreement dated as of December 29, 1989 by and among the Company and its stockholders, as amended (the "Stockholder Agreement"):
(A) Section 2(a)(iii) of the Stockholder Agreement to provide that Robert S. Cecil shall have the right to nominate one person to the Board for so long as he is the chief executive officer of the Company;
(B) the definition of "Executive" set forth in the Stockholder Agreement to include all Optionees under the Plan. The effect of such amendment will be to provide such holders at any time after they purchase Shares hereunder with the limited purchase rights set forth in Section 7 of the Stockholder Agreement;
(C) Amend Section 6 of the Stockholder Agreement to include as "Participants" (as defined therein) the holders of Common Stock issued pursuant to the Plan. The effect of such amendment will be to provide such holders with the co-sale rights set forth in Section 6.
(D) Amend Section 8 of the Stockholder Agreement to provide that the approval of Robert S. Cecil will be required to consent to any "Freeze-Out" (as defined therein).
10. Non-Transferability of Options. Except as otherwise determined by the Committee, Options may not be sold, pledged, assigned, hypothecated, transferred, or disposed of in any manner other than by will or by the laws of descent or distribution and may be exercised, during the lifetime of the Optionee, only by the Optionee.
11. Adjustments Upon Changes in Capitalization, Dissolution, Liquidation, Merger. Sale of Assets or Change of Control.
(a) Changes in Capitalization. Subject to any required action by the stockholders of the Company, in the event of a stock split, reverse stock split, stock dividend, recapitalization, combination or reclassification of the Company Common Stock, or any other increase or decrease in the number of issued shares of Company Common Stock or in the number or amount of Convertible Securities effected without receipt of consideration by the Company (provided, however, that for purposes of this paragraph, conversion of any Convertible Securities of the Company that are issued subsequent to the date of the adoption of this Plan, including, without limitation, the conversion of
any such preferred stock of the Company into Common Stock, shall not be deemed to have been "effected without receipt of consideration"), the number of shares of Common Stock covered by each outstanding Option (including Options exercised but as to which stock certificates have not been issued), and the number of shares of Common Stock which have been authorized for issuance under the Plan but as to which no Options have yet been granted or which have been returned to the Plan upon cancellation or expiration of an Option, as well as the price per share of Common Stock covered by each such outstanding Option, shall be proportionately adjusted so that such Options' claim on assets, earnings and voting power remains the same before and after any increase or decrease in the number of issued shares of Common Stock resulting from such event. Such adjustment shall be made by the Board, whose determination in that respect shall be final, binding and conclusive. In the event that the Company undertakes any corporate separation or division, including, without limitation, a split-up, split-off or spin-off, the Committee shall provide that the holder of each Option shall receive, upon a subsequent exercise of his or her Option, the same per share consideration for each Share exercised that stockholders of the Company received for each share of their holdings pursuant to the corporate separation or division. In the event that the Company offers for sale any Company Common Stock or any Convertible Securities for an initial consideration price per share of Company Common Stock less than the Fair Market Value (as if the defined term "Fair Market Value" in Section 2(p) herein applied to Convertible Securities as well as to Company Common Stock) of such securities, and in the further event that sales pursuant to such offerings result in the Fair Market Value of the Common Stock declining, the per share exercise price of each outstanding Option shall be adjusted so that the ratio of the exercise price to the Fair Market Value of the Common Stock before and after the closing of such sales remains constant. Such adjustment shall be made by the Board, whose determination in that respect shall be final, binding and conclusive. Except as expressly provided herein, no issuance by the Company of shares of stock of any class, or securities convertible into shares of stock of any class, shall affect, and no adjustment by reason thereof shall be made with respect to, the number or price of shares of Common Stock subject to an Option.
(b) Dissolution or Liquidation. In the event of the proposed dissolution or liquidation of the Company, the Committee shall notify the Optionee at least thirty (30) days prior to such proposed action. To the extent it has not been previously exercised, the Option will terminate immediately prior to the consummation of such proposed action.
(c) Merger, Sale of Assets or Change of Control. In the event of a "Change of Control" (as defined below), the Committee shall provide for the Optionee to have the right to exercise the Option as to all of the Optioned Stock, including Shares as to which it would not otherwise be exercisable. In such event, the Committee shall notify the Optionee that the Option shall be exercisable for a period of not less than thirty (30) days from the date of such notice. For these purposes, a "Change of Control" shall mean the occurrence of any of the following events:
(i) Any "person" (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended) other than CVC and each of its affiliates becomes the "beneficial owner" (as defined in Rule l3d-3 under said Act), directly or indirectly, of securities of the Company representing forty percent (40%) or more of the total voting power represented by the Company's then outstanding voting securities; or
(ii) A change in the composition of the Board occurring within a two-year period, as a result of which fewer than a majority of the directors are Incumbent Directors. "Incumbent Directors" shall mean directors who (a) are directors of the Company as of the date this Plan is adopted, (b) are elected, or nominated for election, to the Board with the affirmative votes of at least a majority of the Incumbent Directors at the time of such election or nomination (but shall not include an individual whose election or nomination is in connection with an actual or threatened proxy contest relating to the election of directors to the Company) or (c) are elected in accordance with the terms of the Board Designation Agreement dated as of October 22, 1993, among CVC and the Company; or
(iii) A merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) at least seventy percent (70%) of the total voting power represented by the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially of the Company's assets.
For purposes of this paragraph 11(c), references to the "Company" shall mean each of the Company, PI Holdings Inc., a Delaware corporation, and Plantronics, Inc., a Delaware corporation.
12. Time of Granting Options. The date of grant of an Option shall, for all purposes, be the date on which the Committee makes the determination granting such Option, or such other date as is determined by the Committee. Notice of the determination shall be given to each Employee or Consultant to whom an Option is so granted within a reasonable time after the date of such grant.
13. Amendment and Termination of the Plan.
(a) Amendment and Termination. The Board may at any time amend, alter, suspend or discontinue the Plan, but no amendment, alteration, suspension or discontinuation shall be made which would impair the rights of any Optionee under any grant theretofore made, without his or her consent. In addition, to the extent necessary and desirable to comply with Rule 16b-3 under the Exchange Act or with Section 422 of the Code (or any other applicable law or regulation, including the requirements of the NASD or an established stock exchange), the Company shall obtain stockholder approval of any Plan amendment in such a manner and to such a degree as required.
(b) Effect of Amendment or Termination. Any such amendment or termination of the Plan shall not affect Options already granted and such Options shall remain in full force and effect as if this Plan had not been amended or terminated, unless mutually agreed otherwise between the Optionee and the Company, which agreement must be in writing and signed by the Optionee and the Company.
14. Conditions Upon Issuance of Shares. Shares shall not be issued pursuant to the
exercise of an Option unless the exercise of such Option and the issuance and delivery of such Shares pursuant thereto shall comply with all relevant provisions of law, including, without limitation, the Securities Act of 1933, as amended, the Exchange Act, the rules and regulations promulgated thereunder, and the requirements of any stock exchange upon which the Shares may then be listed, and shall be further subject to the approval of counsel for the Company with respect to such compliance.
As a condition to the exercise of an Option, the Company may require the person exercising such Option to represent and warrant at the time of any such exercise that the Shares are being purchased only for investment and without any present intention to sell or distribute such Shares if, in the opinion of counsel for the Company, such a representation is required by any of the aforementioned relevant provisions of law.
15. Reservation of Shares. The Company, during the term of this Plan, will at all times reserve and keep available such number of Shares as shall be sufficient to satisfy the requirements of the Plan.
The inability of the Company to obtain authority from any regulatory body having jurisdiction, which authority is deemed by the Company's counsel to be necessary to the lawful issuance and sale of any Shares hereunder, shall relieve the Company of any liability in respect of the failure to issue or sell such Shares as to which such requisite authority shall not have been obtained; provided, however, that the Company shall use its best efforts to obtain such authority; provided, further, that if the Company fails to obtain such authority, the Company shall pay to Optionees such amounts as to ensure that the Optionees suffer no economic detriment by virtue of the failure to obtain such authority.
16. Agreements. Options shall be evidenced by written agreements in such form as the Committee shall approve from time to time.
17. Stockholder Approval. Continuance of the Plan shall be subject to approval by the stockholders of the Company within twelve (12) months before or after the date the Plan is adopted and within twelve (12) months before or after the date of any increase in the number of shares available for issuance pursuant to the Plan, to the extent required by Section 422 of the Code and the regulations thereunder. Such stockholder approval shall be obtained in the degree and manner required under applicable state and federal law and the rules of any stock exchange upon which the Common Stock is listed.
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Resale Prospectus constituting part of this Registration Statement on Form S-8 (No. 33-81980) of Plantronics, Inc., of our report dated April 17, 1998, appearing on page 22 of the 1998 Annual Report to stockholders, which is incorporated by reference in the Annual Report on Form 10-K for the year ended March 28, 1998. We also consent to the reference to us under the heading "Experts" in such Prospectus.
/s/ PRICEWATERHOUSECOOPERS LLP ------------------------------------ PRICEWATERHOUSECOOPERS LLP San Jose, California November 12, 1998 |