<PAGE> 1
As filed with the Securities and Exchange Commission on April 1, 1997
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
__________
ASPECT TELECOMMUNICATIONS CORPORATION
(Exact name of Registrant as specified in its charter)
CALIFORNIA 94-2974062
(State of other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
__________
1730 FOX DRIVE
SAN JOSE, CALIFORNIA 95131-2312
(408) 325-2200
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
__________
1996 EMPLOYEE STOCK OPTION PLAN
(Full title of the plan)
__________
JAMES R. CARREKER
Chairman and Chief Executive Officer
ASPECT TELECOMMUNICATIONS CORPORATION
1730 Fox Drive
San Jose, California 95131-2312
(408)325-2200
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
__________
Copies to:
Jon E. Gavenman, Esq.
Edward Y. Kim, Esq.
VENTURE LAW GROUP
2800 SAND HILL ROAD
MENLO PARK, CALIFORNIA 94025
(415) 854-4488
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<TABLE>
<CAPTION>
========================================================================================================
CALCULATION OF REGISTRATION FEE
========================================================================================================
Title of Amount Proposed Maximum Proposed Maximum Amount of
Securities to be to be Offering Price Aggregate Offering Registration
Registered Registered(1) Per Share (2) Price (2) Fee
- --------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Common Stock, $.01
par value . . . 2,000,000 shares $21.0625 $42,125,000 $12,766
========================================================================================================
</TABLE>
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under any of the Plans being registered
pursuant to this Registration Statement by reason of any stock dividend,
stock split, recapitalization or any other similar transaction effected
without the receipt of consideration which results in an increase in the
number of the Registrant's outstanding shares of Common Stock.
(2) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee based upon the average of the high and
the low prices of the Common Stock as reported in the Nasdaq National
Market on March 25, 1997.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") are hereby incorporated by reference:
(a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1996 filed pursuant to Section 13(a) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act");
(b) All other reports filed pursuant to Section 13(a) or 15(d) of
the Exchange Act since the end of the fiscal year covered by the Annual Report
referred to in (a) above.
(c) The description of the Registrant's Common Stock contained in
the Registrant's Registration Statement on Form 8-A filed with the Commission
under Section 12 of the Exchange Act on March 22, 1990, including any amendment
or report filed for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment which indicates that all securities offered hereby
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in this Registration Statement and to
be part hereof from the date of filing such documents.
Item 4. DESCRIPTION OF SECURITIES. Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 317 of the California Corporations Code allows for the
indemnification of officers, directors, and other corporate agents in terms
sufficiently broad to indemnify such persons under certain circumstances for
liabilities (including reimbursement for expenses incurred) arising under the
Securities Act of 1933, as amended (the "Securities Act"). Article IV of the
Registrant's Articles of Incorporation and Article VI of the Registrant's
Bylaws provides for indemnification of the Registrant's directors, officers,
employees and other agents to the extent and under the circumstances permitted
by the California Corporations Code. The Registrant has also entered into
agreements with its directors and officers that will require the Registrant,
among other things, to indemnify them against certain liabilities that may
arise by reason of their status or service as directors to the fullest extent
not prohibited by law. In addition, the Registrant carries director and
officer liability insurance in the amount of $20 million.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable.
Item 8. EXHIBITS.
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<TABLE>
<CAPTION>
Exhibit
Number
------
<S> <C>
4.1 1996 Employee Stock Option Plan and form of stock
option agreement thereunder.
5.1 Opinion of Venture Law Group, a Professional Corporation.
23.1 Consent of Venture Law Group, a Professional Corporation (included in Exhibit 5.1).
23.2 Independent Auditors' Consent (see p. 6).
24.1 Power of Attorney (see p. 5).
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</TABLE>
Item 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales
are being made, a post-effective amendment to this registration statement to
include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to
such information in the registration statement.
(2) that, for purposes 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.
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.
Insofar as the indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in a successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered hereunder, the Registrant will, unless in the opinion of its counsel
the question has already been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question of whether such indemnification
by it is against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant, Aspect Telecommunications Corporation, a corporation organized and
existing under the laws of the State of California, certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing
on Form S-8 and has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of San Jose,
State of California, on April 1, 1997.
ASPECT TELECOMMUNICATIONS CORPORATION
By /s/ JAMES R. CARREKER
------------------------------
James R. Carreker,
Chairman and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints James R. Carreker and Eric J. Keller,
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 amendments
to this Registration Statement on Form S-8, 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 of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ JAMES R. CARREKER Chairman, Chief Executive Officer and April 1, 1997
---------------------------- Director (Principal Executive Officer)
(James R. Carreker)
/s/ ERIC J. KELLER Vice President, Finance and Chief April 1, 1997
---------------------------- Financial Officer (Principal Financial
(Eric J. Keller) and Accounting Officer)
/s/ DEBRA J. ENGEL Director April 1, 1997
----------------------------
(Debra J. Engel)
/s/ NORMAN A. FOGELSONG Director April 1, 1997
----------------------------
(Norman A. Fogelsong)
/s/ JAMES L. PATTERSON Director April 1, 1997
----------------------------
(James L. Patterson)
/s/ JOHN W. PETH Director April 1, 1997
----------------------------
(John W. Peth)
</TABLE>
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INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Aspect Telecommunications Corporation on Form S-8 of our reports dated January
14, 1997 and March 26, 1997, included and incorporated by reference in the
Annual Report on Form 10-K of Aspect Telecommunications Corporation for the
year ended December 31, 1996.
DELOITTE & TOUCHE L.L.P.
/s/ Deloitte & Touche LLP
San Jose, California
March 26, 1997
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit Page
Number No.
- ------- ----
<S> <C>
4.1 1996 Employee Stock Option Plan and form of stock option agreement thereunder.
5.1 Opinion of Venture Law Group, A Professional Corporation.
23.1 Consent of Venture Law Group, A Professional Corporation (included in Exhibit 5.1).
23.2 Independent Auditors' Consent (see page 6).
24.1 Power of Attorney (see page 5).
</TABLE>
<PAGE> 1
EXHIBIT 4.1
ASPECT TELECOMMUNICATIONS CORPORATION
1996 EMPLOYEE STOCK OPTION PLAN
1. Purposes of the Plan. The purposes of this 1996 Employee
Stock Option Plan are to attract and retain the best available personnel for
positions of substantial responsibility, to provide additional incentive to the
Employees and Consultants of the Company and to promote the success of the
Company's business. Options granted hereunder shall be Nonstatutory Stock
Options.
2. Definitions. As used herein, the following definitions shall
apply:
(a) "Administrator" shall mean the Board or any of its
Committees appointed pursuant to Section 4 of the Plan.
(b) "Board" shall mean the Board of Directors of the
Company.
(c) "Code" shall mean the Internal Revenue Code of 1986,
as amended.
(d) "Committee" shall mean the Committee appointed by the
Board of Directors in accordance with paragraph (a) of Section 4 of the Plan,
if one is appointed. The Committee members shall not be required to be Board
members.
(e) "Common Stock" shall mean the Common Stock of the
Company.
(f) "Company" shall mean Aspect Telecommunications
Corporation, a California corporation.
(g) "Consultant" shall mean any person who is engaged by
the Company or any Parent or Subsidiary to render consulting services and is
compensated for such consulting services, excluding any Officers, Named
Executives and Directors.
(h) "Continuous Status as an Employee or Consultant"
shall mean the absence of any interruption or termination of service as an
Employee or Consultant. Continuous Status as an Employee or Consultant shall
not be considered interrupted in the case of sick leave, military leave, or any
other leave of absence approved by the Board; provided that such leave is for a
period of not more than 90 days or reemployment upon the expiration of such
leave is guaranteed by contract or statute.
(i) "Director" shall mean a member of the Board.
(j) "Employee" shall mean any person who is employed by
the Company or any Parent or Subsidiary of the Company, excluding any Officer,
Named Executive and Director.
(k) "Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended.
<PAGE> 2
(l) "Fair Market Value" shall mean, as of any date, the
value of Common Stock determined as follows:
(i) If the Common Stock is listed on any
established stock exchange or a national market system including without
limitation the National Market of the National Association of Securities
Dealers, Inc. Automated Quotation ("Nasdaq") System, its Fair Market Value
shall be the closing sales price for such stock as quoted on such system on the
date of determination (if for a given day no sales were reported, the closing
bid on that day shall be used), as such price is reported in The Wall Street
Journal or such other source as the Administrator deems reliable;
(ii) If the Common Stock is quoted on the Nasdaq
System (but not on the National Market thereof) or regularly quoted by a
recognized securities dealer but selling prices are not reported, its Fair
Market Value shall be the mean between the bid and asked prices for the Common
Stock or;
(iii) In the absence of an established market for
the Common Stock, the Fair Market Value thereof shall be determined in good
faith by the Administrator.
(m) "Named Executive" shall mean any individual who, on
the last day of the Company's fiscal year, is the chief executive officer of
the Company (or is acting in such capacity) or among the four highest
compensated officers of the Company (other than the chief executive officer).
Such officer status shall be determined pursuant to the executive compensation
disclosure rules under the Exchange Act.
(n) "Nonstatutory Stock Option" shall mean an Option not
intended to qualify as an Incentive Stock Option, as designated in the
applicable option agreement. "Incentive Stock Option" shall mean an Option
intended to qualify as an incentive stock option within the meaning of Section
422 of the Code, as designated in the applicable option agreement.
(o) "Officer" shall mean a person who is an officer of
the Company within the meaning of Section 16 of the Exchange Act and the rules
and regulations promulgated thereunder.
(p) "Option" shall mean a stock option granted pursuant
to the Plan.
(q) "Optioned Stock" shall mean the Common Stock subject
to an Option.
(r) "Optionee" shall mean an Employee or Consultant who
receives an Option.
(s) "Parent" shall mean a "parent corporation," whether
now or hereafter existing, as defined in Section 424(e) of the Code.
(t) "Plan" shall mean this 1996 Employee Stock Option
Plan.
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(u) "Rule 16b-3" shall mean Rule 16b-3 promulgated under
the Exchange Act as the same may be amended from time to time, or any successor
provision.
(v) "Share" shall mean a share of the Common Stock, as
adjusted in accordance with Section 11 of the Plan.
(w) "Subsidiary" shall mean a "subsidiary corporation,"
whether now or hereafter existing, as defined in Section 424(f) of the Code.
3. Stock Subject to the Plan. Subject to the provisions of
Section 11 of the Plan, the maximum aggregate number of shares which may be
optioned and sold under the Plan is 2,000,000* shares of Common Stock. The
Shares may be authorized, but unissued, or reacquired Common Stock.
If an Option should expire or become unexercisable for any reason
without having been exercised in full, the unpurchased Shares which were
subject thereto shall, unless the Plan shall have been terminated, become
available for future grant under the Plan. Notwithstanding any other provision
of the Plan, shares issued under the Plan and later repurchased by the Company
shall not become available for future grant or sale under the Plan.
4. Administration of the Plan.
(a) Composition of Administrator. The Plan shall be
administered by (A) the Board or (B) a Committee designated by the Board, which
Committee shall be constituted in such a manner as to satisfy the legal
requirements relating to the administration of nonstatutory stock option plans,
if any, of applicable securities laws and the Code (collectively, the
"Applicable Laws"). If a Committee has been appointed pursuant to this Section
4(a), such Committee shall continue to serve in its designated capacity until
otherwise directed by the Board. From time to time the Board may increase the
size of any Committee and appoint additional members thereof, remove members
(with or without cause) and appoint new members in substitution therefor, fill
vacancies (however caused) and remove all members of a Committee and thereafter
directly administer the Plan, all to the extent permitted by the Applicable
Laws.
(b) Powers of the Administrator. Subject to the
provisions of the Plan, and in the case of a Committee, the specific duties
delegated by, or limitations of authority imposed by, the Board to or on such
Committee, the Administrator shall have the authority, in its discretion:
(i) to grant Options under the Plan;
(ii) to determine, upon review of relevant information and in
accordance with Section 2(l) of the Plan, the fair market value of the Common
Stock;
(iii) to determine the exercise price per share of Options to
be granted, which exercise price shall be determined in accordance with Section
9(a) of the Plan;
______________
* As adjusted to reflect the 2:1 stock split in January 1997.
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<PAGE> 4
(iv) to determine the Employees or Consultants to whom, and
the time or times at which, Options shall be granted and the number of shares
to be represented by each Option;
(v) to interpret the Plan;
(vi) to approve forms of agreement for use under the Plan;
(vii) to determine the terms and provisions of each Option
granted (which need not be identical) and, with the consent of the holder
thereof, modify or amend each Option;
(viii) to accelerate or defer (with the consent of the
Optionee) the exercise date of any Option;
(ix) to authorize any person to execute on behalf of the
Company any instrument required to effectuate the grant of an Option previously
granted by the Administrator; and
(x) to make all other determinations deemed necessary or
advisable for the administration of the Plan.
(c) Effect of Administrator's Decision. All decisions,
determinations and interpretations of the Administrator shall be final and
binding on all Optionees and any other holders of any Options granted under the
Plan.
5. Eligibility.
(a) Options may be granted only to Employees and
Consultants. An Employee or Consultant who has been granted an Option may, if
he is otherwise eligible, be granted an additional Option or Options.
(b) Each Option shall be designated in the written option
agreement as a Nonstatutory Stock Option.
(c) The Plan shall not confer upon any Optionee any right
with respect to continuation of employment or consulting relationship with the
Company, nor shall it interfere in any way with his right or the Company's
right to terminate his employment or consulting relationship at any time, with
or without cause.
6. Term of Plan. The Plan shall become effective upon its
adoption by the Board of Directors. It shall continue in effect for a term of
ten (10) years unless sooner terminated under Section 14 of the Plan.
7. Term of Option. The term of each Nonstatutory Stock Option
shall be ten (10) years from the date of grant thereof or such shorter term as
may be provided in the Nonstatutory Stock Option Agreement.
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<PAGE> 5
8. Limitation on Grants to Employees. Subject to adjustment as
provided in this Plan, the maximum number of Shares which may be subject to
Options granted to any employee under this Plan for any fiscal year of the
Company shall be 250,000.*
9. Exercise Price and Consideration.
(a) The per Share exercise price for the Shares to be
issued pursuant to exercise of an Option shall be such price as is determined
by the Administrator, but shall be equal to 100% of the fair market value per
Share on the date of grant.
(b) The consideration to be paid for the Shares to be
issued upon exercise of an Option, including the method of payment, shall be
determined by the Administrator and may consist entirely of (1) cash, (2)
check, (3) promissory note, (4) other Shares of Common Stock which (i) either
have been owned by the Optionee for more than six (6) months on the date of
surrender or were not acquired, directly or indirectly, from the Company, and
(ii) have a fair market value on the date of surrender equal to the aggregate
exercise price of the Shares as to which said Option shall be exercised, (5)
delivery of a properly executed exercise notice together with irrevocable
instructions to a broker to deliver promptly to the Company the amount of sale
or loan proceeds required to pay the exercise price, (6) any combination of
such methods of payment, or (7) such other consideration and method of payment
for the issuance of Shares to the extent permitted under Sections 408 and 409
of the California General Corporation Law. In making its determination as to
the type of consideration to accept, the Administrator shall consider if
acceptance of such consideration may be reasonably expected to benefit the
Company (Section 315(b) of the California General Corporation Law).
10. Exercise of Option.
(a) Procedure for Exercise; Rights as a Shareholder. Any
Option granted hereunder shall be exercisable at such times and under such
conditions as determined by the Administrator, including performance criteria
with respect to the Company and/or the Optionee, and as shall be permissible
under the terms of the Plan.
An Option may not be exercised for a fraction of a Share.
An Option shall be deemed to be exercised when written notice
of such exercise has been given to the Company in accordance with the terms of
the Option by the person entitled to exercise the Option and full payment for
the Shares with respect to which the Option is exercised has been received by
the Company. Full payment may, as authorized by the Administrator, consist of
any consideration and method of payment allowable under Section 9(b) of the
Plan. Until the issuance (as evidenced by the appropriate entry on the books
of the Company or of a duly authorized transfer agent of the Company) of the
stock certificate evidencing such Shares, no right to vote or receive dividends
or any other rights as a shareholder shall exist with respect to the Optioned
Stock, notwithstanding the exercise of the Option. The Company shall issue (or
cause to be issued) such stock certificate promptly upon exercise of the
______________
* As adjusted to reflect the 2:1 stock split in January 1997.
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<PAGE> 6
Option. No adjustment will be made for a dividend or other right for which the
record date is prior to the date the stock certificate is issued, except as
provided in Section 12 of the Plan.
Exercise of an Option in any manner shall result in a decrease
in the number of Shares which thereafter may be available, both for purposes of
the Plan and for sale under the Option, by the number of Shares as to which the
Option is exercised.
(b) Termination of Status as an Employee or Consultant.
In the event of termination of an Optionee's Continuous Status as an Employee
or Consultant, such Optionee may, but only within thirty (30) days (or such
other period of time, not exceeding six (6) months, as is determined by the
Administrator) after the date of such termination (but in no event later than
the date of expiration of the term of such Option as set forth in the Option
Agreement), exercise his Option to the extent that he was entitled to exercise
it at the date of such termination. To the extent that he was not entitled to
exercise the Option at the date of such termination, or if he does not exercise
such Option (which he was entitled to exercise) within the time specified
herein, the Option shall terminate.
(c) Disability of Optionee. Notwithstanding the
provisions of Section 10(b) above, in the event of termination of an Optionee's
Continuous Status as an Employee or Consultant as a result of his total and
permanent disability (as defined in Section 22(e)(3) of the Code), he may, but
only within six (6) months (or such other period of time not exceeding twelve
(12) months as is determined by the Administrator) from the date of such
termination (but in no event later than the date of expiration of the term of
such Option as set forth in the Option Agreement), exercise his Option to the
extent he was entitled to exercise it at the date of such termination. To the
extent that he was not entitled to exercise the Option at the date of
termination, or if he does not exercise such Option (which he was entitled to
exercise) within the time specified herein, the Option shall terminate.
(d) Death of Optionee. In the event of the death of an
Optionee:
(i) during the term of the Option who is at the
time of his death an Employee or Consultant of the Company and who shall have
been in Continuous Status as an Employee or Consultant since the date of grant
of the Option, the Option may be exercised, at any time within six (6) months
following the date of death (but in no event later than the date of expiration
of the term of such Option as set forth in the Option Agreement), by the
Optionee's estate or by a person who acquired the right to exercise the Option
by bequest or inheritance, but only to the extent of the right to exercise that
would have accrued had the Optionee continued living and remained in Continuous
Status as an Employee or Consultant six (6) months after the date of death; or
(ii) within thirty (30) days (or such other period
of time not exceeding three (3) months as is determined by the Administrator)
after the termination of Continuous Status as an Employee or Consultant, the
Option may be exercised, at any time within six (6) months following the date
of death (but in no event later than the date of expiration of the term of such
Option as set forth in the Option Agreement), by the Optionee's estate or by a
person who
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<PAGE> 7
acquired the right to exercise the Option by bequest or inheritance, but only
to the extent of the right to exercise that had accrued at the date of
termination.
11. Non-Transferability of Options. The Option may not be sold,
pledged, assigned, hypothecated, transferred, or disposed of in any manner
other than by will or by the laws of descent or distribution; provided, that
the Administrator may in its discretion grant transferable Nonstatutory Stock
Options pursuant to option agreements specifying (i) the manner in which such
Nonstatutory Stock Options are transferable and (ii) that any such transfer
shall be subject to the Applicable Laws. The designation of a beneficiary by
an Optionee will not constitute a transfer. An Option may be exercised, during
the lifetime of the Optionee, only by the Optionee or a transferee permitted by
this Section 11.
12. Adjustments Upon Changes in Capitalization or Merger.
(a) Adjustments. Subject to any required action by the
shareholders of the Company, the number of shares of Common Stock covered by
each outstanding Option, and the number of shares of Common Stock which have
been authorized for issuance under the Plan but as to which no Options have yet
been granted or which have been returned to the Plan upon cancellation or
expiration of an Option, the maximum number of shares of Common Stock for which
Options may be granted to any Employee under Section 8 of the Plan, and the
price per share of Common Stock covered by each such outstanding Option, shall
be proportionately adjusted for any increase or decrease in the number of
issued shares of Common Stock resulting from a stock split, reverse stock
split, stock dividend, combination or reclassification of the Common Stock, or
any other increase or decrease in the number of issued shares of Common Stock
effected without receipt of consideration by the Company; provided, however,
that conversion of any convertible securities of the Company shall not be
deemed to have been "effected without receipt of consideration." Such
adjustment shall be made by the Administrator, whose determination in that
respect shall be final, binding and conclusive. Except as expressly provided
herein, no issuance by the Company of shares of stock of any class, or
securities convertible into shares of stock of any class, shall affect, and no
adjustment by reason thereof shall be made with respect to, the number or price
of shares of Common Stock subject to an Option.
(b) Corporate Transactions. In the event of the proposed
dissolution or liquidation of the Company, the Option will terminate
immediately prior to the consummation of such proposed action, unless otherwise
provided by the Administrator. The Administrator may, in the exercise of its
sole discretion in such instances, declare that any Option shall terminate as
of a date fixed by the Administrator and give each Optionee the right to
exercise his Option as to all or any part of the Optioned Stock, including
Shares as to which the Option would not otherwise be exercisable. In the event
of a proposed sale of all or substantially all of the assets of the Company, or
the merger of the Company with or into another corporation, the Option shall be
assumed or an equivalent option shall be substituted by such successor
corporation or a parent or subsidiary of such successor corporation, unless
such successor corporation does not agree to assume the Option or to substitute
an equivalent option, in which case the Administrator shall, in lieu of such
assumption or substitution, provide for the Optionee to have the right to
exercise the
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<PAGE> 8
Option as to all of the Optioned Stock, including Shares as to which the Option
would not otherwise be exercisable. If the Administrator makes an Option fully
exercisable in lieu of assumption or substitution in the event of a merger or
sale of assets, the Administrator shall notify the Optionee that the Option
shall be fully exercisable for a period of fifteen (15) days from the date of
such notice, and the Option will terminate upon the expiration of such period.
13. Time of Granting Options. The date of grant of an Option
shall, for all purposes, be the date on which the Administrator makes the
determination granting such Option. Notice of the determination shall be given
to each Employee or Consultant to whom an Option is so granted within a
reasonable time after the date of such grant.
14. Amendment and Termination of the Plan.
(a) Amendment and Termination. The Board may amend or
terminate the Plan from time to time in such respects as the Board may deem
advisable
(b) Effect of Amendment or Termination. Any such
amendment or termination of the Plan shall not adversely affect Options already
granted (except to the extent contemplated by such Options) and such Options
shall remain in full force and effect, unless mutually agreed otherwise between
the Optionee and the Board (or other body then administering the Plan), which
agreement must be in writing and signed by the Optionee and the Company.
15. Conditions Upon Issuance of Shares. Shares shall not be
issued pursuant to the exercise of an Option unless the exercise of such Option
and the issuance and delivery of such Shares pursuant thereto shall comply with
all relevant provisions of law, including, without limitation, the Securities
Act of 1933, as amended, the Exchange Act, the rules and regulations
promulgated thereunder, and the requirements of any stock exchange upon which
the Shares may then be listed, and shall be further subject to the approval of
counsel for the Company with respect to such compliance.
As a condition to the exercise of an Option, the Company may require
the person exercising such Option to represent and warrant at the time of any
such exercise that the Shares are being purchased only for investment and
without any present intention to sell or distribute such Shares if, in the
opinion of counsel for the Company, such a representation is required by any of
the aforementioned relevant provisions of law.
16. Reservation of Shares. The Company, during the term of this
Plan, will at all times reserve and keep available such number of Shares as
shall be sufficient to satisfy the requirements of the Plan. The inability of
the Company to obtain authority from any regulatory body having jurisdiction,
which authority is deemed by the Company's counsel to be necessary to the
lawful issuance and sale of any Shares hereunder, shall relieve the Company of
any liability in respect of the failure to issue or sell such Shares as to
which such requisite authority shall not have been obtained.
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<PAGE> 9
17. Option Agreement. Options shall be evidenced by written
option agreements in such form as the Administrator shall approve.
18. Information to Optionees. The Company shall provide to each
Optionee upon request, during the period for which such Optionee has one or
more Options outstanding, copies of all annual reports and other information
which are provided to all shareholders of the Company.
19. Withholding Taxes. As a condition to the exercise of Options
granted hereunder, the Optionee shall make such arrangements as the
Administrator may require for the satisfaction of any federal, state, local or
foreign withholding tax obligations that may arise in connection with the
exercise, receipt or vesting of such Option. The Company shall not be required
to issue any Shares under the Plan until such obligations are satisfied.
20. Stock Withholding to Satisfy Withholding Tax Obligations. At
the discretion of the Administrator, Optionees may satisfy withholding
obligations as provided in this paragraph. When an Optionee incurs tax
liability in connection with an Option which tax liability is subject to tax
withholding under applicable tax laws, and the Optionee is obligated to pay the
Company an amount required to be withheld under applicable tax laws, the
Optionee may satisfy the withholding tax obligation by one or some combination
of the following methods: (a) by cash payment, or (b) out of Optionee's
current compensation, or (c) if permitted by the Administrator, in its
discretion, by surrendering to the Company Shares that (i) in the case of
Shares previously acquired from the Company, have been owned by the Optionee
for more than six months on the date of surrender, and (ii) have a fair market
value on the date of surrender equal to or less than Optionee's marginal tax
rate times the ordinary income recognized, or (d) by electing to have the
Company withhold from the Shares to be issued upon exercise of the Option that
number of Shares having a fair market value equal to the amount required to be
withheld. For this purpose, the fair market value of the Shares to be withheld
shall be determined on the date that the amount of tax to be withheld is to be
determined (the "Tax Date").
All elections by an Optionee to have Shares withheld to
satisfy tax withholding obligations shall be made in writing in a form
acceptable to the Administrator and shall be subject to the following
restrictions:
(a) the election must be made on or prior to the
applicable Tax Date;
(b) once made, the election shall be irrevocable as to
the particular Shares of the Option as to which the election is made; and
(c) all elections shall be subject to the consent or
disapproval of the Administrator.
In the event the election to have Shares withheld is made by
an Optionee and the Tax Date is deferred under Section 83 of the Code because
no election is filed under Section 83(b) of the Code, the Optionee shall
receive the full number of Shares with respect to
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<PAGE> 10
which the Option is exercised but such Optionee shall be unconditionally
obligated to tender back to the Company the proper number of Shares on the Tax
Date.
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<PAGE> 11
AGREEMENT FOR A NON-QUALIFIED STOCK OPTION GRANTED UNDER THE 1996 EMPLOYEE STOCK
OPTION PLAN
1996 Employee Stock Option Plan
Non-Qualified Stock Option Award Notice
Number of Shares________________
Expiration Date_________________
Date of Grant___________________
Stock Grant No. ________________
Option Price Per Share__________
This certifies that __________ ("Award Recipient") has the right to
purchase up to the Number of Shares of Common Stock of Aspect
Telecommunications, a California corporation ("Aspect"), for the Option Price
Per Share on or before the Expiration Date, according to the terms and
conditions stated on the reverse side of this Award Notice.
Up to 25% of the Number of Shares under this Option may be exercised
upon completion of one year of employment following the Date of Grant and an
additional 1/48th of the Number of Shares may be exercised upon completion of
each month of service thereafter.
By signing this Stock Option Award Notice and returning the signed
copy to the Aspect stock administrator, Award Recipient accepts the Option
according to the stated terms and conditions.
Aspect Telecommunications Corporation Accepted and Agreed to:
By:
Title: Signature of Award Recipient
<PAGE> 12
AGREEMENT FOR A NON-QUALIFIED STOCK OPTION GRANTED UNDER THE 1996 EMPLOYEE STOCK
OPTION PLAN
GRANT OF OPTION Aspect grants to the Award Recipient a Non-Qualified Stock
Option (not intended as an Incentive Stock Option under the requirements of
Section 422 of the United States Internal Revenue Code) to purchase up to the
Number of Shares stated of Aspect Common Stock at the Option Price per Share
stated, according to the terms, definitions and provisions of the Aspect 1996
Employee Stock Option Plan (the "Plan"), which is incorporated by reference.
CONFIDENTIALITY The Award Recipient agrees not to divulge information about
this award to any person other than his or her domestic partner, tax advisor,
or personal attorney, or in the case of permanent disability or death, to a
personal representative or to the Award Recipient's beneficiaries.
OPTION NONTRANSFERABLE Only the Award Recipient may exercise this Option
during his or her lifetime. This Option may not be transferred in any manner
other than by a valid beneficiary designation in a form satisfactory to Aspect
or by will or by the laws of descent and distribution. The terms and
conditions of this Option shall be binding upon the executors, administrators,
heirs, successors and assigns of the Award Recipient.
EXERCISE OF THE OPTION The Award Recipient may elect to purchase shares of
Aspect Common Stock from Aspect by exercising this Option. The purchase is
described as an "exercise" of this Option. The Award Recipient is advised of
the following provisions that apply to any exercise of this Option:
- CALCULATING NUMBER OF EXERCISABLE SHARES The number of shares
eligible for exercise on a given date is determined by calculating the total
number of shares eligible for exercise at that date and subtracting the number
of shares of this Option previously exercised.
- NO FRACTIONAL SHARES The Option may not be exercised for a fraction
of a share. If at any date the calculation of the number of shares exercisable
results in a whole number and a fraction, only the whole number of shares may
be exercised at that date.
- EXPIRATION DATE The Option may not be exercised in any case after
the Expiration Date stated on the face of this Award Notice.
- EARLY TERMINATION OF OPTION The Option may be exercised for up to
the number of shares eligible as of the last day of employment of the Award
Recipient with Aspect or one of its eligible subsidiaries and for no more
shares thereafter, and only if such exercise takes place no more than 30 days
beyond the last day of employment. If the Award Recipient's employment
terminates by reason of permanent disability or if the Award Recipient dies
while holding this Option, then the Award Recipient or his or her personal
representative or beneficiaries may exercise up to the number of shares
eligible on the last date of employment within six months after such
termination of employment or death.
PAYMENT The amount of payment required to exercise this Option is the number
of shares being exercised times the Option Price Per Share. At the choice of
the Award Recipient, payment for the exercise price may be by personal check,
through a Same-Day Sale through a participating stock broker, or by surrender
of other shares of Aspect Common Stock. If payment is made via surrender of
other shares, the surrendered shares must have been owned by the Award
Recipient for at least six months prior to the exercise date or not been
acquired directly or indirectly from Aspect. If the fair market value of the
surrendered shares on the date of surrender is less than the exercise price of
the shares being purchased, the Award Recipient may pay the balance by personal
check.
MECHANICS OF EXERCISE To exercise the Option, the Award Recipient should
contact the Aspect stock administrator. Following completion of appropriate
Option exercise documents and delivery of payment, the stock administrator will
coordinate with Aspect's stock transfer agent to send the Award Recipient or
his or her broker the appropriate number of shares.
<PAGE> 13
AGREEMENT FOR A NON-QUALIFIED STOCK OPTION GRANTED UNDER THE 1996 EMPLOYEE STOCK
OPTION PLAN
SALES AND DISPOSITIONS The Award Recipient may sell, gift or otherwise dispose
of the shares received on exercise of this Option. The Award Recipient agrees
to notify Aspect in writing within 30 days of any disposition by sale, gift or
otherwise if such disposition occurs within one year of the date of exercise
for such shares.
MERGER, DISSOLUTION, ETC. In the event of the proposed dissolution or
liquidation of Aspect, this Option will terminate immediately prior to the
consummation of such action, unless otherwise provided by the Aspect Board of
Directors. In the event of a proposed sale of all or substantially all of
Aspect's assets or the merger of Aspect into another corporation, then this
Option shall be assumed by the acquiring entity or an equivalent option shall
be substituted by the successor corporation or its parent or subsidiary. If
this Option is not assumed and no Option is substituted, then this Option shall
become automatically exercisable as to the full number of Shares stated on the
face of this Award Notice, to the extent not previously exercised, for 15 days
after notice. At the end of this 15 day period, this Option will terminate and
cease to be exercisable.
ADJUSTMENTS IN OPTION SHARES The existence of this Option shall not in any way
restrict the right of Aspect to adjust, reclassify, reorganize or otherwise
make changes in its capital or business structure or to merge, consolidate,
dissolve, liquidate or sell or transfer all or any part of its business or
assets. If any change is made to Aspect's outstanding common stock (whether by
reason of merger, consolidation, reorganization, recapitalization, stock
dividend, stock split, combination of shares, exchange of shares, or other
change in corporate or capital structure of the Company) the Board of Directors
may make appropriate adjustments to the kind, price per share, and maximum
number of shares subject to this Option. Adjustments made by the Board of
Directors will be final.
EMPLOYMENT RIGHTS Nothing in this stock Option award or in the Plan shall
confer upon the Award Recipient any right to continue in the employment of
Aspect or any of its subsidiaries for any period of specific duration or
otherwise restrict in any way the rights of Aspect, its subsidiaries, or the
Award Recipient to terminate such employment at any time for any reason.
COMPLIANCE WITH LAWS No shares will be issued in response to a notice of
exercise of this Option unless the exercise of the Option and the issuance of
the shares shall comply with all relevant provisions of law and the
requirements of any stock exchange upon which the Option Shares may then be
listed.
ACKNOWLEDGEMENTS By signing this Award Notice, the Award Recipient
acknowledges receipt of a copy of the Plan and accepts this Option subject to
all of the terms and conditions of the Plan. The Award Recipient may obtain a
copy of the Plan from the Aspect stock administrator. The Award Recipient
agrees to accept as final and binding all decisions and interpretations of the
Board of Directors of Aspect or a Committee thereof, upon any questions arising
under the Plan.
NOTIFICATION OF ADDRESS CHANGE The Award Recipient agrees to notify Aspect's
stock administrator of any change in mailing address to facilitate
correspondence about this Option.
WITHHOLDING TAXES As a condition to the exercise of Options granted
hereunder, the Optionee shall make such arrangements as the Administrator may
require for the satisfaction of any federal, state, local or foreign
withholding tax obligations that may arise in connection with the exercise,
receipt or vesting of such Option. The company shall not be required to issue
any Shares under the Plan until such obligations are satisfied.
<PAGE> 1
EXHIBIT 5.1
April 1, 1997
Aspect Telecommunications Corporation
1730 Fox Drive
San Jose, CA 95131-2312
REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by
you with the Securities and Exchange Commission on or about April 1, 1997
(the "Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended, of a total of 2,000,000 shares of your
Common Stock (the "Shares") reserved for issuance under the 1996 Employee Stock
Option Plan, as amended (the "Option Plan"). As your legal counsel, we have
examined the proceedings taken and are familiar with the proceedings proposed
to be taken by you in connection with the sale and issuance of the Shares under
the Option Plan.
It is our opinion that, when issued and sold in the manner referred to
in the Option Plan and pursuant to the respective agreement which accompanies
each grant under the Option Plan, the Shares will be legally and validly
issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the
Registration Statement and further consent to the use of our name wherever it
appears in the Registration Statement and any amendments to it.
Sincerely,
VENTURE LAW GROUP
A Professional Corporation
/s/ VENTURE LAW GROUP
