As filed with the Securities and Exchange Commission on November 23, 1998
Registration No. 333-_________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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
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)
Approximate date of commencement of proposed sale to the public: As soon as practicable after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. [ ]
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. [ ]
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
CALCULATION OF REGISTRATION FEE
=================================================================================================================
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF EACH CLASS AMOUNT OFFERING AGGREGATE AMOUNT OF
OF SECURITIES TO TO BE PRICE OFFERING REGISTRATION
BE REGISTERED REGISTERED PER SHARE PRICE FEE
- -----------------------------------------------------------------------------------------------------------------
Common Stock
$0.01 par value......... 1,000,000 shares(1) $63.65625(2) $63,656,250 $17,697
=================================================================================================================
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(1) Registers the resale of up to 1,000,000 shares by the selling stockholder.
(2) Calculated pursuant to Rule 457(c) as the average of the high ($64.3125) and low ($63) per share prices of the Registrant's Common Stock on the New York Stock Exchange on November 17, 1998.
The information in this prospectus is not complete and may be changed. The selling stockholder may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
Subject to Completion, dated November 23, 1998
RESALE PROSPECTUS
PLANTRONICS, INC.
UP TO 1,000,000 SHARES OF COMMON STOCK
WHICH THE SELLING STOCKHOLDER MAY RESELL UNDER THIS PROSPECTUS
The stockholder of Plantronics, Inc. listed on page 11 may offer and resell up to 1,000,000 shares of Plantronics common stock under this prospectus, for its own account. Plantronics will receive no proceeds from such sales.
The selling stockholder may offer its 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 20, 1998, the last reported sale price on the NYSE of one share of Plantronics common stock was $66 1/2.
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 ___, 1998
TABLE OF CONTENTS
Plantronics' Address................................................... 2 Forward-Looking Statements............................................. 2 Risk Factors........................................................... 3 Plantronics' Business.................................................. 9 Selling Stockholder.....................................................10 Plan of Distribution....................................................11 Information Incorporated by Reference...................................13 How to Get Information About Plantronics................................14 Accounting Experts......................................................14 |
PLANTRONICS' ADDRESS
The Company's principal executive offices are located at 345 Encinal Street, Santa Cruz, California 95060. The Company's telephone number at that location is (831) 426-5858. Its internet website is at http://www.plantronics.com.
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 stockholder
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. The Company 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. The two largest competitors of Plantronics 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 affect Plantronics' profit 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 profit margins. Such reduction in margins could, in turn, cause a reduction in net earnings and a resulting decline in the market price of Plantronics common 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 customer support. Those efforts to meet competition could negatively affect profit margins and earnings and result in reductions in the market price of Plantronics' common stock.
NEED TO SUCCESSFULLY DEVELOP NEW PRODUCTS AND MARKETS
MEETING CONSUMER NEEDS
Historically, Plantronics has sold most of its products 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 of 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 affect earnings and the price of Plantronics' common stock.
RISKS RELATED TO GROSS PROFIT
RELIANCE UPON SUPPLIERS
Plantronics buys components and subassemblies from a variety of suppliers and assembles them into finished products. The cost, quality, and availability of such components are essential to the successful production of Plantronics' communications products.
- 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 profit margins would fall and operating results would be affected.
- Plantronics obtains most components and subassemblies from numerous sources or they are otherwise reasonably available. However, Plantronics obtains certain subassemblies and components 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 Plantronics could not obtain the single-source materials it 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 Plantronics could find alternate sources for the components and subassemblies, those sources could charge more for the materials. Higher prices for the materials would decrease gross margins and net earnings if the selling price of the finished product is not raised. If Plantronics increases selling prices to reflect the higher costs of manufacture, there could be a loss in sales.
- 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. If those suppliers were to experience increased demand or shortages in their supply, it could affect deliveries to Plantronics. 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.
- If demand increases beyond that forecasted, Plantronics would have to rapidly increase production. Because Plantronics depends on suppliers to provide additional volumes of components and subassemblies, it might not be able to increase production rapidly enough to meet unforecasted demand. This could cause Plantronics to fail to meet customer expectations and adversely affect Plantronics' operations and operating results.
- Rapid increases in production levels to meet unanticipated demand could result in higher costs for components and subassemblies and higher overtime costs and other expenses. Those higher expenditures could negatively affect gross profit margins. Further, if production is increased rapidly, there may be decreased manufacturing yields, again affecting gross margins.
- If forecasted demand does not develop, Plantronics would have excess production. Excess production would result in higher inventories of finished goods and 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 to obtain these patents, which Plantronics believes are important to its business, negatively affect earnings.
Patents may not ultimately issue from currently pending or future patent applications. Further, existing patents or any new patents issued may not be of sufficient scope or strength to provide meaningful protection or 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. The inherent risks of offshore operations, particularly in Mexico, could 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.
- 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.
- 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 the manufacturing 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.
- 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.
- 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 Plantronics products. This could adversely affect revenues if there was a resulting inability to manufacture. There would be adverse effects upon gross margins if Plantronics was forced 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 to sell them within the foreign country. Revenues would be adversely affected if Plantronics sells products into the foreign country. If Plantronics had to modify its products to make sales in the country, its costs of manufacturing could increase. If the price cannot be increased to reflect those costs, margins would be affected. If prices are increased to reflect any added costs of compliance, revenues could be affected due to reduced demand.
- 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.
- 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.
- Changes in import/export regulations could result in delays in obtaining components and subassemblies. This could prevent Plantronics from timely manufacturing its products, thereby decreasing revenues. Delays in obtaining components and subassemblies could require Plantronics to turn to alternate sources, which may increase manufacturing costs.
- Delays in the importation of Plantronics products into the foreign country can affect 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 could 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 affect 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 increases 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 United States dollars and local foreign currencies. Transactions conducted in U.S. dollars are subject to foreign exchange risk when declines in the value of local currencies relative to the U.S. 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 U.S. 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. However, such efforts may not ensure against disruptions caused by the arrival of the year 2000. The Year 2000 problem is potentially very widespread and it is not possible to determine all the potential risks that Plantronics may face. Some of the possible consequences to Plantronics include:
- 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 or water.
- 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.
- Delays in the receipt of key components or subassemblies 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.
- Delays or errors in the purchase orders by which customers order products, resulting in loss of or delays in recognition of revenues.
- 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 following table shows, in each case as of October 31, 1998:
- - the name of the selling stockholder,
- - how many shares the selling stockholder beneficially owns,
- - how many shares the selling stockholder can resell under this
prospectus, and
- - assuming the selling stockholder sells all shares listed next to its
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
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time in the future to update or change this list of selling stockholders and shares which may be resold.
BENEFICIAL OWNERSHIP
SHARES SHARES WHICH MAY AFTER OFFERING
BENEFICIALLY BE SOLD UNDER -----------------------
SELLING STOCKHOLDER OWNED THIS PROSPECTUS SHARES PERCENTAGE
------------------- ------------ ---------------- -----------------------
Citicorp Foundation(1)(2)(3) 1,000,000 1,000,000 0 (4) 0.0%
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(1) As of the date of this prospectus, the selling stockholder is a private charitable foundation affiliated with Citicorp Venture Capital, Ltd. Citicorp Venture Capital, Ltd. owns approximately 5,660,000 shares of Plantronics common stock as of October 31, 1998, approximately 34% of the total outstanding shares of Plantronics as of that date. Citicorp Venture Capital, Ltd. has the right to, and has, designated three of the seven members of Plantronics' Board of Directors.
(2) As of October 31, 1998, Citicorp Foundation does not actually own any of these 1,000,000 shares. Instead, Citicorp Venture Capital, Ltd., which is affiliated with Citicorp Foundation, owns all of such shares. However, Citicorp Venture Capital, Ltd. has informed Plantronics that as soon as practicable after the date of this prospectus Citicorp Venture Capital, Ltd. will transfer all 1,000,000 shares to Citicorp Foundation by gift. Because that transfer is anticipated, and because this prospectus registers resales by Citicorp Foundation which may occur only after such transfer, Citicorp Foundation has been shown as the beneficial owner of the shares for purposes of this prospectus.
(3) It is expected that Citicorp Foundation's name will change to Citigroup Foundation in early 1999.
(4) Assumes that Citicorp Foundation sells all 1,000,000 shares which it may sell by using this prospectus.
PLAN OF DISTRIBUTION
RESALES BY SELLING STOCKHOLDER
Plantronics is registering the resale of the shares on behalf of the selling stockholder. The selling stockholder may offer and resell the shares from time to time, either in increments or in a single transaction. It may also decide not to sell all the shares it is allowed to resell under this prospectus. The selling stockholder 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 stockholder" includes donees, i.e. persons who receive shares from the selling stockholder after the date of this prospectus by gift. The term also includes pledgees, i.e. persons who, upon contractual default by the selling stockholder, may seize shares which the selling stockholder pledged to such person. If the 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
This prospectus has been prepared and filed by Plantronics with the SEC pursuant to the terms of the Amended and Restated Registration Agreement dated December 29, 1989. The Registration Agreement is among Plantronics, Citicorp Venture Capital, Ltd. and certain other stockholders of Plantronics who purchased shares of Plantronics prior to Plantronics' public offering in 1994. Plantronics will pay all costs, expenses and fees in connection with the registration of the shares. The selling stockholder will pay all brokerage commissions and similar selling expenses, if any, attributable to the sale of shares.
TYPES OF SALE TRANSACTIONS
The selling stockholder may sell the shares in one or more types of transactions (which may include block transactions):
- - on the NYSE,
- - in negotiated transactions,
- - through put or call option transactions,
- - through short sales, or
- - any combination of such methods of sale.
The shares may be sold at market prices prevailing at the time of
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sale, or at negotiated prices. Such transactions may or may not involve brokers or dealers. The selling stockholder has informed Plantronics that it has not entered into any agreements, understandings or arrangements with any underwriters or broker-dealers regarding sale of the shares. It has 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 stockholder 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 the 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 stockholder 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 stockholder 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 the selling stockholder and the selling stockholder has agreed to indemnify Plantronics, against certain liabilities, including liabilities arising under the Securities Act. The selling stockholder 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 it may be deemed an underwriter, the selling stockholder 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 stockholder that its 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.
DISTRIBUTION ARRANGEMENTS WITH BROKER-DEALERS
If the selling stockholder notifies Plantronics that any material arrangement has been entered into with a broker-dealer for the sale of shares
through - - a block trade, - - special offering, - - exchange distribution or secondary distribution, or |
- - 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:
- - the name of the selling stockholder and of the participating
broker-dealer(s),
- - the number of shares involved,
- - the price at which such shares were sold,
- - the commissions paid or discounts or concessions allowed to such
broker-dealer(s), where applicable,
- - that such broker-dealer(s) did not conduct any investigation to
verify the information in this prospectus, and
- - any other facts material to the transaction.
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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:
- - Plantronics' Annual Report on Form 10-K for the fiscal year ended
March 28, 1998, filed on June 24, 1998.
- - Plantronics' Quarterly Report on Form 10-Q for the quarterly period
ended June 27, 1998, filed on August 6, 1998.
- - Plantronics' Quarterly Report on Form 10-Q for the quarterly period
ended September 26, 1998, filed on November 10, 1998.
- - 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 (which in turn incorporates by reference 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).
Unless Plantronics has filed a post-effective amendment to the
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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-3 (Reg. No. 333-________) initially filed by Plantronics with the SEC under the Securities Act on November ___, 1998. 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, the 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.
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 14. EXPENSES.
The following table sets forth costs and expenses of the sale and distribution of the securities being registered. All amounts other than the registration filing fee are estimates. All of the following expenses have been or will be paid by the Registrant, rather than by the selling stockholder.
Registration filing fee $ 17,697
Printer costs 3,500
Legal fees 15,000
Accounting fees $ 2,500
--------
Total: $ 38,697
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ITEM 15. INDEMNIFICATION.
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 the Registrant's Certificate of Incorporation and Article V of the Registrant's By-laws provide for indemnification of its directors, officers, employees and other agents to the maximum extent permitted by the Delaware General Corporation Law. The Registrant has also entered into Indemnification Agreements with its officers and directors.
In addition, the Registrant is party to a Registration Agreement with Citicorp Venture Capital, Ltd. and certain other stockholders. The Registration Agreement grants certain holders of the Registrant's common stock, including the selling stockholder, the right to demand registration of their shares, and to participate in other registrations which the Registrant may undertake. The Registrant filed this prospectus with the SEC in order to fulfill its contractual obligations under the Registration Agreement. Under the Registration Agreement, the Registrant has agreed to indemnify the selling stockholder, and the selling stockholder has agreed to indemnify the Registrant, against certain liabilities in connection with this registration.
ITEM 16. EXHIBITS.
Exhibit
Number Document
------- --------
5.1 Opinion of Counsel as to Legality of Securities Being
Registered.
10.1 Amended and Restated Registration Agreement dated December 29,
1989, as amended, between the Registrant and certain
stockholders of the Registrant.
23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants.
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ITEM 17. 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-3 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 23, 1998.
PLANTRONICS, INC.
By: /s/ ROBERT S. CECIL -------------------------------------- Robert S. Cecil, Chairman of the Board and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that each person whose signature appears below constitutes and appoints Robert S. Cecil and John A. Knutson, jointly and severally, his or her attorneys-in-fact, each with the power of substitution, for him or her in any and all capacities, to sign any amendment to this Registration Statement on Form S-3, and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said attorneys-in-fact, or his or her substitute or substitutes, may do or cause to be done by virtue hereof.
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 November 23, 1998
- ----------------------------- Executive Officer (Principal
Robert S. Cecil Executive Officer)
/s/ BARBARA V. SCHERER Senior Vice President--Finance & November 23, 1998
- ----------------------------- Administration, and Chief Financial
Barbara V. Scherer Officer (Principal Financial Officer,
Principal Accounting Officer)
/s/ ROBERT F.B. LOGAN Director November 23, 1998
- -----------------------------
Robert F.B. Logan
/s/ M. SALEEM MUQADDAM Director November 23, 1998
- -----------------------------
M. Saleem Muqaddam
/s/ JOHN MOWBRAY O'MARA Director November 23, 1998
- -----------------------------
John Mowbray O'Mara
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Signature Title Date
--------- ----- ----
/s/ TRUDE C. TAYLOR Director November 23, 1998
- -----------------------------
Trude C. Taylor
/s/ J. SIDNEY WEBB Director November 23, 1998
- -----------------------------
J. Sidney Webb
/s/ DAVID A. WEGMANN Director November 23, 1998
- -----------------------------
David A. Wegmann
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INDEX TO EXHIBITS
5.1 Opinion of Counsel as to Legality of Securities Being Registered.
10.1 Amended and Restated Registration Agreement dated December 29, 1989,
as amended, between the Registrant and certain stockholders of the
Registrant.
23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants.
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[Exhibit 5.1]
[WSGR LETTERHEAD]
November 20, 1998
Plantronics, Inc.
337 Encinal Street
Santa Cruz, California 95060
RE: LEGALITY OF SECURITIES COVERED BY REGISTRATION STATEMENT ON FORM
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-3 to be filed by you with the Securities and Exchange Commission on or about November 20, 1998, Reg. No. 333-________ (the "Registration Statement"), in connection with the registration under the Securities Act of 1933, as amended, of a total of 1,000,000 shares of your Common Stock (the "Shares"), all of which are issued and outstanding and may be offered for sale by and for the benefit of certain selling stockholders. As legal counsel for Plantronics, Inc., we have examined the proceedings taken and are familiar with the proceedings proposed to be taken by you in connection with sales, if any, of the Shares by such selling stockholders.
It is our opinion that the Shares are legally and validly issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration Statement, including the prospectus constituting a part thereof, and further consent to the use of our name wherever it appears in the Registration Statement and any amendments thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ Wilson Sonsini Goodrich & Rosati |
by hpm
EXHIBIT 10.1
AMENDED AND RESTATED
REGISTRATION AGREEMENT
This Amended and Restated Registration Agreement is made as of December 29, 1989, by and among PI Parent Corporation, a Delaware corporation (the "Company"), Citicorp Venture Capital, Ltd., a New York corporation ("CVC"), Kidder, Peabody Group Inc., a Delaware corporation ("Kidder"), KP/Hanover Partners, 1988 L.P., a Delaware limited partnership ("KP/Hanover"), David A. Wegmann ("Wegmann"), Neil J. Hynes ("Hynes"), Trude C. Taylor ("Taylor"), Sidney Webb ("Webb"), The Equitable Life Assurance Society of the United States ("Equitable"), Equitable Deal Flow Fund, L.P. ("Deal Flow Fund") and Tandem Insurance Group, Inc. ("Tandem Group") and the individuals named on Schedule I hereto (hereinafter referred to as the "Executives"). Certain capitalized terms not otherwise defined herein are defined in Section 10 below.
WHEREAS, CVC, Kidder, Wegmann, Hynes and the Company entered into a Stock and Note Purchase Agreement, a Registration Agreement and a Stockholder Agreement, each dated as of September 14, 1988 (the "Investor Purchase Agreement," the "Registration Agreement" and the "Stockholder Agreement," respectively) as amended by that certain Amendment No. 1 Agreement, dated as of November 30, 1988, by and among such parties ("Amendment No. 1"), and as further amended by that certain Amendment No. 2 Agreement, dated as of March 1, 1989, by and among such parties and Taylor, pursuant to which Taylor purchased certain shares of Common Stock and Preferred Stock and certain of the Company's Notes ("Amendment No. 2") and as yet further amended by that certain Purchase Agreement and Amendment to Prior Agreements dated as of November 22, 1989, by and among such parties and Webb, pursuant to which Webb purchased certain shares of Common Stock and Preferred Stock and certain of the Company's Notes ("Amendment No. 3") (as so amended by Amendment No. 1, Amendment No. 2, and Amendment No. 3, the "Existing Investor Purchase Agreement", the "Existing Registration Agreement" and the "Existing Stockholder Agreement," respectively). Kidder transferred a portion of its interest in the capital stock of the Company to KP/Hanover pursuant to an assignment effective November 30, 1988 and in connection therewith, KP/Hanover became a party to the Stockholder Agreement pursuant to an agreement dated as of November 30, 1988 between KP/Hanover and the Company;
WHEREAS, the Certificate of Incorporation of the Company has been amended in order to, among other things, increase the number of shares of stock which the Company has authority to issue and authorize 100,000 shares of Class D Common Stock, par value $0.01 per share ("Class D Common");
WHEREAS, the Company desires to sell and the Equitable Investors desire to purchase an aggregate of 7,323.3 shares of Class D Common (the "Shares"), pursuant to the Stock Purchase Agreement dated as of December 29, 1989 by and among the Company and the Equitable Investors (the "Stock Purchase Agreement"); and
WHEREAS, the parties hereto desire to amend and restate the Registration Agreement in order to, among other things, add the Equitable Investors as parties thereto and provide the registration rights set forth in this Agreement. Except as otherwise indicated, capitalized terms used herein are defined in Section 10 hereof.
NOW, THEREFORE, in consideration of the foregoing and the respective covenants and agreements of the parties contained in this document, the parties hereto agree as follows:
1. DEMAND REGISTRATIONS.
(a) REQUESTS FOR REGISTRATION. At any time, the holders of
a majority of the outstanding Registrable Securities may request registration
under the Securities Act of all or any portion of their Registrable Securities
on Form S-1 or any similar long-form registration ("Long-Form Registrations"),
or on Form S-2 or S-3 or any similar short-form registration ("Short-Form
Registrations"), if available, provided, that if the Company has not previously
filed a registration statement on Form S-1 (or any successor form) which has
become effective pursuant to the Securities Act covering the sale of shares of
its common stock (an "Initial Public Offering"), such majority shall include
the holders of a majority of the Investor Registrable Securities.
Notwithstanding the foregoing, if there has been no Initial Public Offering
within five years after the date of this Agreement, holders of at least 60
percent of the outstanding Registrable Securities not held by Citicorp Venture
Capital, Ltd. or its affiliates will have the right to request a Long-Form
Registration hereunder (the "Standby Registration Right"). Within ten days
after receipt of any such request, the Company will give written notice of such
requested registration to all other holders of Registrable Securities and will
include in such registration all Registrable Securities with respect to which
the Company has received written requests from any holder of Registrable
Securities for inclusion therein within 15 days after the receipt of the
Company's notice. All registrations requested pursuant to this Section 1(a) or
Section 1(d) are collectively referred to herein as "Demand Registrations."
(b) LONG-FORM REGISTRATIONS. Subject to Section 1(a) above, the holders of Registrable Securities will be entitled
to request three Long-Form Registrations (in addition to any demand registration under Section 1(d)), provided that the aggregate offering price of Registrable Securities requested to be registered in any Long-Form Registration must equal or exceed $7.5 million if such Demand Registration is an Initial Public Offering (other than pursuant to the Standby Registration Right), and $4 million in the case of any other Long-Form Registrations. A registration will not count as one of the permitted Long-Form Registrations until it has become effective (unless such Long-Form Registration has not become effective due solely to the fault of the holders requesting such registration) and unless the holders of Registrable Securities are able to register and sell at least 90% of the Registrable Securities requested to be included in such registration; provided that in any event the Company will pay all Registration Expenses in connection with any registration initiated as a Long-Form Registration. All Long-Form Registrations shall be underwritten registrations.
(c) SHORT-FORM REGISTRATIONS. In addition to the Long-Form Registrations provided pursuant to Section 1(b), the holders of at least 15% of the outstanding Registrable Securities will be entitled to request an unlimited number of Short-Form Registrations; provided that the aggregate offering price of Registrable Securities requested to be registered in any Short-Form Registration must equal or exceed $500,000. Demand Registrations will be Short-Form Registrations whenever the Company is permitted to use any applicable short form. The Company will use its best efforts to make Short-Form Registrations on Form S-3 available for the sale of Registrable Securities once it has become subject to the reporting requirements of the Securities Exchange Act.
(d) EQUITABLE INVESTORS REQUEST FOR REGISTRATIONS. In the event that any of the Equitable Investors exercise their right to require the Company to repurchase all of the Warrants in accordance with the terms of Section 6 of the Stock Purchase Agreement and the Company fails, for any reason whatsoever or for no reason, to make the payments required thereunder in the manner and at the time required, or otherwise fails to comply with the provisions thereof (disregarding for such purposes the last sentence of such Section 6), the Majority of the Equitable Investors holding Registrable Securities may request in writing that the Company effect the registration under the Securities Act of all or part of such holder's or holders' Registrable Securities, specifying in the request the number and type of Registrable Securities to be registered by each such holder and the intended method of disposition thereof (such notice is hereinafter referred to as an "Equitable Holder Request"). Upon receipt of such Equitable Holder Request, the Company will promptly give written notice of such requested registration to
all other holders of Registrable Securities, which other holders shall have the right to include the Registrable Securities held by them in such registration, and thereupon the Company will, as soon as reasonably possible, use its best efforts to effect the registration under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register by such Equitable Investors; and
(ii) all other Registrable Securities which the Company has been requested to register by any other holder thereof by written request given to the Company within 30 calendar days after the giving of such written notice by the Company, all to the extent necessary to permit the disposition (in accordance with the intended method thereof as aforesaid) of the Registrable Securities so to be registered;
provided, however, that the Company shall not be obligated to file a
registration statement relating to any Equitable Holder Request under this
Section 1(d) unless the Company shall have received requests for such
registration with respect to all of the Shares then held by the Equitable
Investors.
Each Equitable Investor agrees, on behalf of itself and its successors and assigns, that upon written request of the Majority of the Equitable Investors, it will participate in any Demand Registration initiated under this Section 1(d) in the same manner and to the same extent as the Equitable Investors constituting such Majority of the Equitable Investors.
Notwithstanding the foregoing provisions of Section 1(d), the Company shall not be obligated to file more than one registration statement pursuant to this Section 1(d).
(e) Priority on Demand Registrations. The Company will not include in any Demand Registration any securities which are not Registrable Securities without the written consent of the holders of a majority of the Registrable Securities requesting such registration. If a Demand Registration is an underwritten offering and the managing underwriters advise the Company in writing that in their opinion the number of Registrable Securities and other securities requested to be included exceeds the number of Registrable Securities and other securities which can be sold in such offering, the Company will include in such registration (A) first, the Registrable Securities requested to be included pro rata on the basis of the number of Registrable Securities of the applicable type owned by each such holder and (B) second, other securities (if any) permitted to be included in
such registration; provided, however, for any Demand Registration made pursuant to Section 1(d), the Company will include in such registration (x) first, all of the Registrable Securities requested to be included by the Equitable Investors (pro rata, on the basis of the respective numbers of shares of Warrant Stock held, or subject to Warrants held, by the Equitable Investors) and (y) then as set forth in subclauses (A) and (B) above.
(f) Restrictions on Demand Registrations. The Company will not be obligated to effect any Long-Form Registration within four months after the effective date of a previous registration initiated as a Demand Registration or a registration in which the holders of Registrable Securities were given piggyback rights pursuant to Section 2. The Company may postpone for up to three months (but not more than once with respect to any registration) the filing or the effectiveness of a registration statement for a Demand Registration if (i) the Company determines in good faith that such Demand Registration might reasonably be expected to have an adverse effect on any proposal or plan by the Company or any of its Subsidiaries to engage in any acquisition of assets or stock (other than in the ordinary course of business) or any merger, consolidation, tender offer or similar transaction or (ii) the Board determines in good faith that to effect the registration in the time requested by the holders of Registrable Securities would have a material adverse effect on the Company; provided that in any such event the holders of a majority of the type of Registrable Securities requesting such Demand Registration will be entitled to withdraw such request and, if such request is withdrawn, such Demand Registration will not count as a Demand Registration.
(g) Selection of Underwriters. The holders of a majority of the Registrable Securities requesting any Demand Registration will have the right to select the investment banker(s) and manager(s) to administer the applicable offering and to approve underwriting arrangements, subject to the Company's approval, which will not be unreasonably withheld. The parties acknowledge that Kidder, Peabody & Co. Incorporated has certain rights to serve as underwriter in connection with the Company's registration statements through September 14, 1990 pursuant to a letter agreement with PI Holdings Inc., a Delaware subsidiary and a wholly owned subsidiary thereof, dated August 9, 1988.
(h) Other Registration Rights. Except as provided in this Agreement, the Company will not grant to any Person the right to request the Company to register any equity securities of the Company, or any securities convertible into or exercisable or exchangeable for such securities, without the
written consent of the holders of a majority of the outstanding Registrable Securities; provided, that the Company may grant rights to other Persons to participate in Piggyback Registrations so long as such rights are subordinate to the rights of the holders of Registrable Securities with respect to such Piggyback Registrations.
(i) Registration Expenses. The Company will pay all Registration Expenses in connection with any registration initiated as a Demand Registration; provided, that, at the option of the Company, holders of securities other than Registrable Securities permitted to be included in any Demand Registration may be requested to pay their share of the Registration Expenses in connection with such Demand Registration.
2. Piggyback Registrations.
(a) Right to Piggyback. Whenever the Company proposes to register any of its securities under the Securities Act (other than pursuant to a Demand Registration) and the registration form to be used may be used for the registration of Registrable Securities (a "Piggyback Registration"), the Company will give prompt written notice (in any event within five business days after its receipt of notice of any exercise of other demand registration rights) to all holders of Registrable Securities of its intention to effect such a registration and, subject to subsections 2(c) and (d) below, will include in such registration all Registrable Securities with respect to which the Company has received written requests for inclusion therein within 30 days after the receipt of the Company's notice.
(b) Piggyback Expenses. The Registration Expenses of the holders of Registrable Securities will be paid by the Company in all Piggyback Registrations.
(c) Priority on Primary Registrations. If a Piggyback Registration is an underwritten primary registration on behalf of the Company and the managing underwriters advise the Company in writing that in their opinion the number of securities requested to be included in such registration exceeds the number which can be sold in such offering, the Company will include in such registration (i) first, the securities the Company proposes to sell, (ii) second, the Registrable Securities requested to be included in such registration, pro rate among the respective holders thereof on the basis of the number of Registrable Securities owned by such holders, and (iii) third, other securities requested to be included in such registration.
(d) Priority on Secondary Registrations. If a Piggyback Registration is an underwritten secondary registration on behalf of holders of the Company's securities other than Registrable Securities and the managing underwriters advise the Company in writing that in their opinion the number of securities requested to be included in such registration exceeds the number which can be sold in such offering, the Company will include in such registration (i) first, the securities requested to be included therein by the holders requesting such registration and the Registrable Securities requested to be included in such registration, pro rata among the respective holders thereof on the basis of the number of such other securities and/or Registrable Securities owned by such holders, and (ii) second, other securities requested to be included in such registration.
(e) Selection of Underwriters. If any Piggyback Registration is an underwritten offering, the selection of investment banker(s) and manager(s) for the offering and any underwriting arrangements must be approved by the holders of a majority of the Registrable Securities included in such Piggyback Registration. Such approval will not be unreasonably withheld.
(f) Other Registration. If the Company has previously filed a
registration statement with respect to Registrable Securities pursuant to
Section 1 or pursuant to this Section 2 and if such previous registration has
not been withdrawn or abandoned, the Company will not file or cause to be
effected any other registration of any of its equity securities or any
securities convertible into or exercisable or exchangeable for its equity
securities under the Securities Act (except on Form S-8 or any successor form),
whether on its own behalf or at the request of any holder or holders of such
securities, until a period of at least six months has elapsed from the effective
date of such previous registration.
3. Holdback Agreements.
(a) Each holder of Registrable Securities agrees not to effect any public sale or distribution of equity securities of the Company, or any securities convertible into or exercisable or exchangeable for such securities, during the seven days prior to and the 90-day period beginning on the effective date of any underwritten Demand Registration or any underwritten Piggyback Registration in which Registrable Securities are included (except as part of such underwritten registration), unless the underwriters managing the registered public offering otherwise agree.
(b) The Company agrees (i) not to effect any public sale or distribution of its equity securities, or any securities convertible into or exercisable or exchangeable for such securities, during the seven days prior to and during the 90-day period beginning on the effective date of any underwritten Demand Registration or any underwritten Piggyback Registration in which Registrable Securities are included (except as part of such underwritten registration or pursuant to registrations on Form S-8 or any successor form), unless the underwriters managing such registered public offering otherwise agree, and ii) to cause each holder of 3 percent or more (on a fully-diluted basis) of its equity securities, or any securities convertible into or exercisable or exchangeable for such securities, purchased from the Company at any time after the date of this Agreement (other than in a registered public offering), if such holder is not or does not become a party to this Agreement, to agree not to effect any public sale or distribution of any such securities during such period (except as part of such underwritten registration, if otherwise permitted), unless the underwriters managing the registered public offering otherwise agree.
4. REGISTRATION PROCEDURES.
(i) Whenever the holders of Registrable Securities have requested that any Registrable Securities be registered pursuant to this Agreement, the Company will use its best efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof (including the registration of Class B Common, Class C Common or Class D Common held by a holder of Registrable Securities requesting registration as to which the Company has received reasonable assurances that only Registrable Securities will be distributed to the public) and pursuant thereto the Company will as expeditiously as possible:
(ii) prepare and file with the Securities and Exchange Commission a registration statement with respect to such Registrable Securities and use its best efforts to cause such registration statement to become effective; provided that, before filing a registration statement or prospectus or any amendments or supplements thereto, the Company will, if requested by any holder of Registrable Securities covered by such registration statement, furnish to any counsel selected by such holder copies for review of all such documents proposed to be filed;
(iii) prepare and file with the Securities and Exchange Commission such amendments and supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration statement effective for a period of not less than six months (or (i) in the case of an underwritten registration, for such shorter period as may be agreed to by the underwriters managing such registration and (ii) in the case of any other registration and (ii) in the case of any other registration, if earlier, until the sale of all securities covered by such registration or the termination of the distribution pursuant to such registration) and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such registration statement;
(iv) furnish to each seller of Registrable Securities such number of copies of such registration statement, each amendment and supplement thereto, the prospectus included in such registration statement (including each preliminary prospectus) and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller;
(v) use its best efforts to register or qualify such Registrable Securities under such other securities or blue sky laws of such jurisdictions as any seller reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller (provided that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subsection, (ii) subject itself to taxation in any such jurisdiction or (iii) consent to general service of process in any such jurisdiction);
(vi) notify each seller of such Registrable Securities, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in such registration statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading, and, at the request of any such seller, prepare a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus will not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading;
(vii) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed;
(viii) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(ix) enter into such customary agreements (including underwriting agreements in customary form) and take all such other actions as the holders of a majority of the Registrable Securities being sold or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including effecting a recapitalization of the Common Stock, including a stock split or a combination of shares);
(x) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors, employees and independent accountants to supply all information reasonably requested by such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(xi) obtain a cold comfort letter from the Company's independent public accountants in customary form and covering such matters of the type customarily covered by cold comfort letters as the holders of a majority of the Registrable Securities being sold reasonably request (provided, in the case of a Piggyback Registration, that such Registrable Securities constitute at least 10% of the securities covered by such registration statement);
(xii) otherwise use its best efforts to comply with all applicable rules and regulations of the Securities and Exchange Commission and make generally available to any seller, in each case as soon as practicable, but not later than 45 calendar days after the close of the period covered thereby (90 calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement of the Company which will satisfy the provisions of Section 11(a) of the Securities Act; and
(xiii) execute and deliver all instruments and documents and take such other actions and obtain such certificates and opinions as holders of a majority of the
Registrable Securities being sold reasonably request in order to effect an underwritten public offering of such Registrable Securities.
(a) Each holder of Registrable Securities will, upon receipt of any notice from the Company of the happening of any event of the kind described in subsection 4(a)(v), forthwith discontinue disposition of the Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holder's receipt of the copies of the supplemented or amended prospectus contemplated by subsection 4(a)(v).
(b) In lieu of converting any share of Class D Common into Class A Common prior to or simultaneously with the filing or the effectiveness of any registration statement filed pursuant to Section 1 or 2, the holder of Class D Common shall be permitted to sell such Class D Common to the underwriter of the offering being registered upon the undertaking of such underwriter to convert such Class D Common before making any distribution pursuant to such registration statement and to include the Class A Common issued upon such conversion among the securities being offered pursuant to such registration statement. The Company agrees to cause such Class A Common to be included among the securities being offered pursuant to such registration statement to be issued within such time as will permit the underwriter to make and complete the distribution contemplated by the underwriting.
5. REGISTRATION EXPENSES.
(a) All expenses incident to the Company's performance of or compliance with this Agreement, including without limitation all registration and filing fees, fees and expenses of compliance with securities or blue sky laws, printing expenses, messenger and delivery expenses, and fees and disbursements of counsel for the Company and all independent certified public accountants, underwriters (excluding discounts and commissions other than those relating to Registrable Securities being offered by the Company) and other Persons retained by the Company (all such expenses being herein called "Registration Expenses"), will be borne as provided in this Agreement, except that the Company will, in any event, pay its internal expenses (including without limitation all salaries and expenses of its officers and employees performing legal or accounting duties), the expense of any annual audit or quarterly review, the expense of any liability insurance and the expenses and fees for listing the securities to be registered on each securities exchange on which similar securities issued by the Company are then listed.
(b) In connection with each Long-Form Registration, each Short-Form Registration and each Piggyback Registration, the Company will reimburse the holders of Registrable Securities covered by such registration for the reasonable fees and disbursements of one counsel chosen by the holders of a majority of such Registrable Securities.
6. Indemnification.
(a) The Company agrees to indemnify, to the extent permitted by law, the Equitable Investors, Equitable Capital Management Corporation, a Delaware corporation and each holder or former holder of Registrable Securities, its officers and directors, and each Person that controls such holder (within the meaning of the Securities Act) (collectively, the "Indemnified Parties") against all losses, claims, damages, liabilities and expenses caused by any untrue and alleged untrue statement of material fact contained in any registration statement, prospectus or preliminary prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as the same are caused by or contained in any information furnished in writing to the Company by such Indemnified Party expressly for use therein or by such Indemnified Party's failure to deliver a copy of the final prospectus or any amendments or supplements thereto after the Company has furnished such Indemnified Party with a sufficient number of copies of the same. In connection with an underwritten offering, the Company will indemnify such Indemnified Parties underwriters, their officers and directors and each Person who controls such underwriters (within the meaning of the Securities Act) to the same extent as provided above with respect to the indemnification of the holders of Registrable Securities.
(b) In connection with any registration statement in which a holder of Registrable Securities is participating, each such holder and each other Indemnified Parties will furnish to the Company in writing such information and affidavits as the Company reasonably requests for use in connection with any such registration statement or prospectus and, to the extent permitted by law, will indemnify the Company, its directors and officers and each Person who controls the Company (within the meaning of the Securities Act) against any losses, claims, damages, liabilities and expenses resulting from any untrue and alleged untrue statement of material fact contained in the registration statement, prospectus or preliminary prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not
misleading, but only to the extent that such untrue statement or omission is contained in any information or affidavit so furnished in writing by such holder; provided that the obligation to indemnify will be several, not joint and several, among such holders of Registrable Securities and the liability of each such holder of Registrable Securities will be limited to an amount equal to the net proceeds (after deducting underwriting discounts and expenses) received by such holder from the sale of Registrable Securities sold by such holder pursuant to such registration statement.
(c) Any Person entitled to indemnification hereunder will (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification and (ii) unless in such indemnified party's reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying party will not be subject to any liability for any settlement made by the indemnified party without its consent (but such consent will not be unreasonably withheld). An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim will not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party a conflict of interest may exist between such indemnified party and other of such indemnified parties with respect to such claim in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel or counsels.
(d) The indemnification provided for under this Agreement will remain in full force and effect regardless of any investigation made by or on behalf of the indemnified party or any officer, director or controlling Person of such indemnified party and will survive the transfer of securities. The Company and each seller of Registrable Securities shall provide for the indemnification provided for under this Agreement with appropriate modifications in any underwriting agreement with respect to any required registration or other qualification of securities under any federal or state law or regulation or governmental authority.
7. Participation in Underwritten Registrations. No Person may participate in any registration hereunder which is underwritten unless such Person (a) agrees to sell such Person's securities on the basis provided in any underwriting arrangements approved by the Person or Persons entitled
hereunder to approve such arrangements and (b) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents required under the terms of such underwriting arrangements.
8. Contribution. In order to provide for just and equitable contribution
in circumstances under which the indemnity contemplated by Section 6 is for any
reason not available, the parties required to indemnify by the terms thereof
shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by such indemnity agreement incurred by the
Company, any seller of Registrable Securities and one or more of the
underwriters, except to the extent that contribution is not permitted under
Section 11(f) of the securities Act. In determining the amounts which the
respective parties shall contribute, there shall be considered the relative
benefits received by each party from the offering of the Registrable Securities
(taking into account the portion of the proceeds of the offering realized by
each), the parties' relative knowledge and access to information concerning the
matter with respect to which the claim was asserted, the opportunity to correct
and prevent any statement or omission and any other equitable considerations
appropriate under the circumstances. The Company and each Person selling
securities agree with each other that no seller of Registrable Securities shall
be required to contribute any amount in excess of the amount such seller would
have been required to pay to an indemnified party if the indemnity under
Section 6 were available. The Company and each such seller agree with each
other and the underwriters of the Registrable Securities, if requested by such
underwriters, that it would not be equitable if the amount of such contribution
were determined by pro rata or per capita allocation (even if the underwriters
were treated as one entity for such purpose) or for the underwriters' portion
of such contribution to exceed the percentage that the underwriting discount
bears to the initial public offering price of the Registrable Securities. For
purposes of this Section 8, each Person, if any, who controls an underwriter
within the meaning of Section 15 of the Securities Act shall have the same
rights to contribution as such underwriter, and each director and each officer
of the Company who signed the registration statement, and each Person, if any,
who controls the Company or a seller of Registrable Securities within the
meaning of Section 15 of the Securities Act shall have the same rights to
contribution as the Company or a seller of Registrable Securities, as the case
may be.
9. Rule 144. If the Company shall have filed a registration statement pursuant to the requirements of Section 12 of the Exchange Act or a registration statement pursuant to the requirements of the Securities Act, the Company
covenants that it will file the reports required to be filed by it under the Securities Act and the Exchange Act and the rules and regulations adopted by the Commission thereunder (or, if the Company is not required to file such reports, it will, upon the request of any holder of Registrable Securities, make publicly available other information), and it will take such further action as any holder of Registrable Securities may reasonably request, all to the extent required from time to time to enable such holder to sell shares of Registrable Securities without registration under the Securities Act within the limitation of the exemptions provided by (i) Rule 144 under the Securities Act, as such Rule may be amended from time to time, or (ii) any similar rule or regulation hereafter adopted by the Commission. Upon the request of any holder of Registrable Securities, the Company will deliver to such holder a written statement as to whether it has complied with such requirements.
10. Definitions.
"Class A Common" means the Class A Common Stock, $.01 par value per share, of the Company.
"Class B Common" means the Class B Common Stock, $.01 par value per share, of the Company.
"Class C Common" means the Class C Common Stock, $.01 par value per share, of the Company.
"Class D Common" means the Company's Class D Common Stock, par value $.01 per share.
"Common Stock" means collectively the Class A Common, the Class B Common, the Class C Common and the Class D Common.
"Equitable Investors" means The Equitable Life Assurance Society of the United States, Equitable Deal Flow Fund, L.P. and Tandem Group Life Insurance Company and each transferee of such Person who holds the Warrants or becomes a stockholder in accordance with the terms of the Amended and Restated Stockholder Agreement dated as of December 29, 1989 by and among the Company and the stockholders of the Company.
"Executive Stock Agreements" means the Hynes Executive Stock Agreement and any other Executive Stock and Note Purchase Agreement contemplated by the Existing Investor Purchase Agreement and entered into by the Company and members of management or other key employees after the date hereof; provided that any such agreement will be deemed to be an "Executive Stock Agreement" for purposes hereof (including the definition of "Registrable Securities") only if the party
thereto acquiring Executive Stock (as defined therein) becomes a party to this Agreement.
"Investor Registrable Securities" means Registrable Securities issued pursuant to the Existing Investor Purchase Agreement (including any amendments thereto), or issued or issuable, directly or indirectly, upon conversion or exercise of such Registrable Securities.
"Majority of the Equitable Investors" means at any time the holders of a majority of the outstanding Shares then held by all of the Equitable Investors.
"Person" means an individual, a partnership, a joint venture, a corporation, a trust, an unincorporated organization or a government or any department or agency thereof.
"Registrable Securities" means (i) any Class A Common issued pursuant to the Existing Investor Purchase Agreement (including any amendments thereto) or any Executive Stock Agreement, (ii) any Class A Common issued or issuable, directly or indirectly, upon exercise of any warrants or other rights to acquire Common Stock, or upon conversion of any Class B Common or Class C Common, issued pursuant to the Existing Investor Purchase Agreement (including any amendments thereto) (including any amendment thereto) or any Executive Stock Agreement, (iii) any shares of Class A Common issued or issuable upon the conversion of outstanding shares of Class D Common in accordance with the applicable provisions of the Certificate of Incorporation, and (iv) any Class A Common issued or issuable, directly or indirectly, with respect to the securities referred to in clauses (i), (ii) and (iii) by way of a stock dividend or stock split or in connection with a combination of shares, recapitalization, merger, consolidation or other reorganization. As to any particular Registrable Securities, such securities will cease to be "Registrable Securities" when they have been sold pursuant to a registration statement that has become effective under the Securities Act or pursuant to Rule 144 (or any other similar rule in force) under the Securities Act. For all purposes of this Agreement (including without limitation any determination as to whether a required percentage of Registrable Securities has consented to a particular action), a Person will be deemed to be a holder of outstanding Registrable Securities whenever such Person has the right to acquire such Registrable Securities (by conversion or otherwise, but disregarding any legal restrictions upon the exercise of such right), whether or not such acquisition has actually been effected.
"Securities Act" means the Securities Act of 1933, as amended, or any similar federal law then in force.
"Securities and Exchange Commission" includes any governmental body or agency succeeding to the functions thereof.
"Securities Exchange Act" means the Securities Exchange Act of 1934, as amended, or any similar federal law then in force.
11. Miscellaneous.
(a) No Inconsistent Agreements. The Company will not hereafter enter into any agreement with respect to its securities which is inconsistent with the rights granted to the holder of Registrable Securities in this Agreement.
(b) Adjustments Affecting Registrable Securities. The Company will not take any action, or permit any change to occur, with respect to its securities which would materially and adversely affect the ability of the holders of Registrable Securities to include such Registrable Securities in a registration undertaken pursuant to this Agreement or which would materially and adversely affect the marketability of such Registrable Securities in any such registration (including effecting a stock split or a combination of shares).
(c) Remedies. Any person having rights under any provision of this Agreement will be entitled to enforce such rights specifically to recover damages caused by reason of any breach of any provision of this Agreement and to exercise all other rights granted by law.
(d) Amendments and Waivers. Except as otherwise provided herein, the provisions of this Agreement may be amended and the Company may take any action herein prohibited, or omit to take any action herein required to be performed by it, only if the Company has obtained the written consent of holders of a majority of the Registrable Securities, and, in the case of amendment or other action adversely affecting any rights granted to the Equitable Investors or the holders of Investor Registrable Securities, the consent of the Majority of the Equitable Investors or the holders of a majority of Investor Registrable Securities, as appropriate, shall be required to amend this Agreement.
(e) Successors and Assigns. All covenants and agreements in this Agreement by or on behalf of any of the parties hereto will bind and inure to the benefit of the respective successors and assigns of the parties hereto whether so expressed or not. In addition, whether or not any express assignment has been made, the provisions of this Agreement which are for the benefit of purchasers or holders of Registrable Securities are also for the benefit of, and enforceable by, any subsequent holder of Registrable Securities.
(f) Additional Parties. The Company contemplates additional purchases of the Company's securities by certain management persons and other key employees, and all parties hereto agree that such purchasers may be added as parties hereto. Each such purchaser will be entitled to become a party to this Agreement by executing a counterpart copy hereof, which counterpart copy shall also be executed by the Company.
(g) Severability. Whenever possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable under any applicable law or rule in any jurisdiction, such provision will be ineffective only to the extent of such invalidity, illegality or unenforceability in such jurisdiction, without invalidating the remainder of this Agreement in such jurisdiction or any provision hereof in any other jurisdiction.
(h) Counterparts. This Agreement may be executed simultaneously in two or more counterparts, any one of which need not contain the signatures of more than one party, but all of which taken together will constitute one and the same Agreement.
(i) Descriptive Headings. The descriptive headings of this Agreement are inserted for convenience only and do not constitute a part of this Agreement.
(j) Governing Law. All questions concerning the construction, validity and interpretation of this Agreement and the exhibits and schedules hereto will be governed by the internal law, and not the law of conflicts, of Delaware.
(k) Notices. All notices, demands or other communications to be given or delivered under or by reason of the provisions of this Agreement will be in writing and will be deemed to have been given when delivered personally or mailed by certified or registered mail, return receipt requested and postage prepaid, to the recipient. Such notices, demands and other communications will be sent to CVC Kidder, Hynes, Wegmann, Taylor, Webb, the Equitable Investors and the Company at the respective address indicated below:
To the Company:
PI Parent Corporation
c/o Plantronics, Inc.
337 Encinal Street
Santa Cruz, CA 95061-1802
Attention: President
To CVC:
Citicorp Venture Capital, Ltd.
399 Park Avenue, 6th Floor
New York, New York 10022
Attention: Saleem Muqaddam
To Kidder:
Kidder, Peabody Group Inc.
555 California Street
Suite 2950
San Francisco, CA 94104
Attention:
To Hynes:
c/o Plantronics, Inc.
337 Encinal Street
Santa Cruz, CA 95061-1802
To Wegmann:
David A. Wegmann
1000 Green Street, Apt. 1105
San Francisco, CA 94133
To Taylor:
Trude C. Taylor
747 E. Green Street
Suite 309
Pasadena, CA 91101
To Webb:
Sidney Webb
5857 Fitzpatrick Road
Calabasas, CA 91302
To Equitable:
The Equitable Life Assurance Society
of the United States
c/o Equitable Capital Management Corporation
1285 Avenue of the Americas
19th Floor
New York, New York 10019
Attention: Corporation Finance Department
To Deal Flow Fund:
Equitable Deal Flow Fund, L.P.
c/o Equitable Capital Management Corporation
1285 Avenue of the Americas
19th Floor
New York, New York 10019
Attention: Corporation Finance Department
To Tandem Group:
Tandem Insurance Group, Inc.
1700 Broadway
10th Floor
New York, NY 10019
Attention: Ms. Marianne Kearns
with a copy to:
Equitable Capital Management Corporation
1285 Avenue of the Americas
19th Floor
New York, New York 10019
Attention: Ms. Lorraine Chevere
or to such other address or to the attention of such other Person as the recipient party has specified by prior written notice to the sending party.
(1) Equitable Investors Covenant. If at any time after the date hereof a Majority of the Equitable Investors shall determine to take any action pursuant to Sections 1 or 2 with respect to the sale, transfer or other disposition of the Common Stock held by them in a public offering, then, upon reasonable prior written notice to the other Equitable Investors, the other Equitable Investors shall take all actions necessary or appropriate to sell, transfer or otherwise dispose of concurrently with the Majority of the Equitable Investors and in the same manner and upon the same terms a proportionate amount of Common Stock held by each such other Equitable Investor.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.
PI PARENT CORPORATION CITICORP VENTURE CAPITAL, LTD.
By: [SIG] By:
----------------- -----------------------------------
Its: V.P. Its:
----------------- -----------------------------------
|
KIDDER, PEABODY GROUP INC.
KP/HANOVER PARTNERS 1988, L.P.
By: KP/Hanover Management
Corporation
Its: General Partner
Neil J. Hynes
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.
PI PARENT CORPORATION CITICORP VENTURE CAPITAL, LTD.
By: [SIG] By: [SIG]
------------------ --------------------------
Its: VP Its: Vice President
----------------- -------------------------
KIDDER, PEABODY GROUP INC.
By:
--------------------------
Its:
-------------------------
KP/HANOVER PARTNERS 1988, L.P.
By: KP/Hanover Management
Corporation
Its: General Partner
By:
--------------------------
Its:
-------------------------
------------------------------
Neil J. Hynes
------------------------------
Trude C. Taylor
------------------------------
David A. Wegmann
------------------------------
Sidney Webb
|
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.
PI PARENT CORPORATION CITICORP VENTURE CAPITAL, LTD.
By: By:
------------------ --------------------------
Its: Its:
----------------- -------------------------
KIDDER, PEABODY GROUP INC.
By: [SIG]
--------------------------
Its:VICE PRESIDENT & TREASURER
--------------------------
KP/HANOVER PARTNERS 1988, L.P.
By: KP/Hanover Management
Corporation
Its: General Partner
By: [SIG]
--------------------------
Its:
-------------------------
------------------------------
Neil J. Hynes
------------------------------
Trude C. Taylor
------------------------------
David A. Wegmann
------------------------------
Sidney Webb
|
THE EQUITABLE LIFE ASSURANCE
SOCIETY OF THE UNITED STATES
By: /s/ HOWARD GELLIS
---------------------------------
Title: INVESTMENT OFFICER
EQUITABLE DEAL FLOW FUND, L.P.
By: EQUITABLE MANAGED
ASSETS, L.P., as General
Partner
By: THE EQUITABLE LIFE ASSURANCE
SOCIETY OF THE UNITED STATES,
as General Partner
By: /s/ HOWARD GELLIS
---------------------------------
Title: INVESTMENT OFFICER
TANDEM INSURANCE GROUP, INC.
By: [SIG]
---------------------------------
Title: Vice President
|
5038C
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.
PI PARENT CORPORATION CITICORP VENTURE CAPITAL, LTD.
By: By:
------------------------- -------------------------
Its: Its:
------------------------- -------------------------
KIDDER, PEABODY GROUP INC.
By:
-------------------------
Its:
-------------------------
KP/HANOVER PARTNERS 1988, L.P.
By: KP/Hanover Management
Corporation
Its: General Partner
By:
-------------------------
Its:
-------------------------
/s/ NEIL J. HYNES
-----------------------------
Neil J. Hynes
-----------------------------
Trude C. Taylor
-----------------------------
David A. Wegmann
-----------------------------
Sidney Webb
|
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.
PI PARENT CORPORATION CITICORP VENTURE CAPITAL, LTD.
By: By:
------------------------------ ---------------------------
Its: Its:
----------------------------- --------------------------
KIDDER, PEABODY GROUP INC.
By:
---------------------------
Its:
--------------------------
KP/HANOVER PARTNERS 1988, L.P.
By: KP/Hanover Management
Corporation
Its: General Partner
By:
---------------------------
Its:
--------------------------
------------------------------
Neil J. Hynes
/s/ TRUDE C. TAYLOR
------------------------------
Trude C. Taylor
------------------------------
David A. Wegmann
------------------------------
Sidney Webb
|
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.
PI PARENT CORPORATION CITICORP VENTURE CAPITAL, LTD.
By: By:
------------------------------- -----------------------------------
Its: Its:
------------------------------- -----------------------------------
RIDDER, PEABODY GROUP INC.
By:
-----------------------------------
Its:
-----------------------------------
RIDDER, PEABODY GROUP INC.
By:
-----------------------------------
Its:
-----------------------------------
KP/HANOVER PARTNERS 1988, L.P.
By: KP/Hanover Management Corporation
Its: General Partner
By:
-----------------------------------
Its:
-----------------------------------
-----------------------------------
Neil J. Hynes
-----------------------------------
Trude C. Taylor
/s/ DAVID A. WEGMANN
-----------------------------------
David A. Wegmann
-----------------------------------
Sidney Webb
|
SCHEDULE I
/s/ MARY MANDERS - ---------------------- Mary Manders |
/s/ SUSAN TOMLEY - ---------------------- Susan Tomley |
/s/ ROBERT LEE - ---------------------- Robert Lee /s/ JOHN TYMOCEKO, JR. - ---------------------- John Tymoceko, Jr. |
/s/ LAWRENCE WARD
- --------------------------------------
Lawrence Ward
/s/ DAVID DODEN
- --------------------------------------
David Doden
|
/s/ MARVIN TSEU
- --------------------------------------
Marvin Tseu
/s/ MICHAEL EBERTIN
- --------------------------------------
Michael Ebertin
|
Richard R. Sivertson
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-3 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 19, 1998 |