<PAGE> 1
As filed with the Securities and Exchange Commission on June 23, 1998
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 of principal executive offices)
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ANNUAL RETAINER COMPENSATION PLAN FOR THE BOARD OF DIRECTORS
1998 DIRECTORS' STOCK OPTION PLAN
1990 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
-----------------
JAMES R. CARREKER
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
ASPECT TELECOMMUNICATIONS CORPORATION
1730 FOX DRIVE
SAN JOSE, CALIFORNIA 95131-2312
(408) 325-2200
(Name, address and telephone number, including area code, of agent for service)
-----------------
Copies to:
Jon E. Gavenman
Venture Law Group
A Professional Corporation
2800 Sand Hill Road
Menlo Park, California 94025
(650) 854-4488
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Maximum Amount Maximum Maximum Amount of
Securities to be to be Offering Price Aggregate Registration
Registered Registered(1) Per Share(2) Offering Price(2) Fee
- ----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Annual Retainer
Compensation Plan
Common Stock, $.01
par value................. 50,000 $25.0625 $ 1,253,125 $ 369.67
1998 Directors' Stock
Option Plan Common Stock,
$.01 par value............ 300,000 $25.0625 $ 7,518,750 $2,218.03
1990 Employee Stock
Purchase Plan
Common Stock, $.01
par value................. 1,000,000 $25.0625 $25,062,500 $7,393.44
==============================================================================================
</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) under the Securities Act solely
for the purpose of calculating the registration fee. Computation based
upon the average of the high and the low sale prices of the Common Stock
as reported in the Nasdaq National Market System on June 17, 1998.
<PAGE> 2
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:
(1) The Company's Annual Report on Form 10-K for the year ended December
31, 1997;
(2) The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1998;
(3) The Company's Current Reports on Form 8-K filed with the Securities
and Exchange Commission on February 27, 1998 and May 22, 1998; and
(4) The description of the Company's capital stock contained in its
Registration Statement on Form 8-A as filed with the Commission on
March 22, 1990, including any amendment thereto or report filed for
the purpose of updating such description.
All documents filed by Registrant pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act after the date hereof, and prior to the filing of
a post-effective amendment which indicates that all securities offered hereunder
have been sold or which deregisters all securities then remaining unsold under
this registration statement, shall be deemed to be incorporated by reference
herein and to be part hereof from the date of filing of 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 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
provide 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
the 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
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<PAGE> 3
ITEM 8. EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Document
------- --------
<S> <C>
4.1 Articles of Incorporation of the Registrant (1)
4.2 Bylaws of the Registrant (1)
4.3 Annual Retainer Compensation Plan
4.4 1998 Directors' Stock Option Plan
4.5 1990 Employee Stock Purchase Plan
5.1 Opinion of Venture Law Group, A Professional Corporation
23.1 Independent Auditors' Consent
23.2 Consent of Venture Law Group, A Professional Corporation
(included in Exhibit 5.1 hereto)
24.1 Power of Attorney (see page 4)
</TABLE>
(1) Incorporated by reference to Registrant's Registration Statement on Form
S-8 (333-38041) filed with the Commission on October 16, 1997.
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 indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered 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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<PAGE> 4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 June 19, 1998.
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, as amended,
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 June 19, 1998
James R. Carreker Officer and Director
(Principal Executive
Officer)
/s/ ERIC J. KELLER
- ----------------------------- Vice President, Finance and June 19, 1998
Eric J. Keller Chief Financial Officer
(Principal Financial and
Accounting Officer)
/s/ DEBRA J. ENGEL
- ----------------------------- Director June 19, 1998
Debra J. Engel
/s/ NORMAN A. FOGELSONG
- ----------------------------- Director June 19, 1998
Norman A. Fogelsong
/s/ JAMES L. PATTERSON
- ----------------------------- Director June 19, 1998
James L. Patterson
/s/ JOHN W. PETH
- ----------------------------- Director June 19, 1998
John W. Peth
</TABLE>
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<PAGE> 5
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number
- -------
<S> <C>
4.1 Articles of Incorporation of the Registrant (1)
4.2 Bylaws of the Registrant (1)
4.3 Annual Retainer Compensation Plan
4.4 1998 Directors' Stock Option Plan
4.5 1990 Employee Stock Purchase Plan
5.1 Opinion of Venture Law Group, A Professional Corporation
23.1 Independent Auditors' Consent
23.2 Consent of Venture Law Group, A Professional Corporation
(contained in Exhibit 5.1)
24.1 Power of Attorney (see page 4)
</TABLE>
(1) Incorporated by reference to Registrant's Registration Statement on Form
S-8 (333-38041) filed with the Commission on October 16, 1997.
-5-
<PAGE> 1
EXHIBIT 4.3
ASPECT TELECOMMUNICATIONS CORPORATION
ANNUAL RETAINER COMPENSATION PLAN
FOR BOARD OF DIRECTORS
EFFECTIVE JULY 1, 1998
1. Purpose of Plan.
The purposes of this Plan are to attract and retain the best available
personnel for service as non-employee directors of Aspect Telecommunications
Corporation (the "Company"), to encourage ownership of Company Stock by
non-employee directors, to provide financial incentive as a result of Company
performance to the non-employee directors of the Company who own Company stock
and to encourage their continued service on the Board of Directors of the
Company (the "Board").
2. Term of Plan.
The term of the Plan shall be ten (10) years with the initial one (1)
year period commencing on July 1, 1998 and ending on June 30, 1999 unless
earlier terminated by the Board (the "Term"), with any adjustments in the Plan
and the terms hereunder as may be approved by the Board over such term. The Plan
relates to the retainer fee payable to the members of the Board during each one
year period commencing on July 1 of each year from 1998 through 2007.
3. Annual Retainer.
A non-employee director shall be eligible for the annual retainer
payable quarterly under this Plan (the "Retainer") if he or she was serving as a
director on the first trading day after the end of each fiscal quarter during
the time that the Retainer Plan is in effect. The Retainer will be paid as soon
as practical thereafter. The dollar amount of the Retainer shall be determined
by the Board over the Term of the Plan in accordance with the authority granted
to the Board under the Company's Bylaws.
4. Payment of Retainer in Shares in Lieu of Cash Compensation.
With respect to the quarterly payments of the Retainer payable under
this Plan, each director, at his or her election, has the right to elect to
accept payment in fully vested shares of the Company's Common Stock equal to 50
or 100 percent of the Retainer. Each director must make this election for each
respective one (1) year period of the Plan on or before the date of the Annual
Meeting of the Company's shareholders preceding the beginning of the next
succeeding one-year period. The election shall be made on the form attached as
Exhibit A hereto. An individual who first becomes a non-employee director after
the effective date of the Plan shall make the election for his or her initial
period of service on the Board on or before the date on which he or she first
commences service as a director.
The number of shares issued each quarter will equal the dollar amount of
the Retainer to be taken in shares, divided by 100 percent of the market value
of the shares on the first trading day after the end of each fiscal quarter for
which the Retainer is due. The market value shall be determined to be the
closing sale price of the shares on the date payable as reported by the Nasdaq
National Market (or, if not so reported, as otherwise reported by the National
Association of Securities Dealers Automated Quotation System), or in the event
the Common Stock is listed on a stock exchange, the market value shall be the
closing sale price on such exchange on the payment date. No fractional shares
will be issued. The number of shares issued will be rounded down to the nearest
number of whole shares.
The shares will be issued in accordance with the instructions provided
by the director on the form attached as Exhibit A hereto.
<PAGE> 2
The sale or other transfer of the shares purchased by a director with a
part or all of his/her Retainer will be restricted for a period of six months
after the date of purchase. Notwithstanding the above, a director will be
allowed to transfer such shares within the restricted period to a family trust
established by the director or to a member of the director's immediate family,
provided, however, that any such transferee shall be subject to the same six
month restriction on sale or subsequent transfer of the shares.
Shares of the Company's Common Stock to be issued to directors shall be
issued out of the Company's authorized but unissued shares. The number of shares
reserved for this purpose shall be 50,000 shares, to be increased
proportionately in the event of stock dividends or stock splits (or other
similar adjustments) or to be decreased proportionately in the event of a
combination of shares. The Board of Directors may increase or decrease the
number of shares reserved for this purpose, subject to approval of the Company's
shareholders as set forth below.
5. Cash Incentive for Payment in Shares.
As an inducement to a director to elect to accept payment of all or a
portion of his or her Retainer in shares of the Company's Common Stock so as to
increase a director's ownership of Company stock and to help defray a director's
tax liability with respect to the issuance of the shares, the Company will pay a
cash incentive to the directors electing payment in shares equal to 20 percent
of the Retainer. This incentive will be paid quarterly, in cash, at the time the
quarterly installment of the Retainer is payable in shares.
6. Policy on Purchase and Sale of Shares.
As indicated above, the sale or other transfer of shares acquired in
lieu of payment of all or part of the Retainer is restricted for a period of six
(6) months after the shares are issued. Under current law, a director's
acquisition of shares in lieu of the cash payment of a retainer qualifies for an
exemption under Rule 16b-3(d)(i) of the Securities Exchange Act of 1934 and,
therefore, is not a "purchase" for purposes of Section 16(b) of that Act.
Accordingly, it will not be a violation of Section 16(b) if a director sells
shares of Company stock (regardless of the price at which such other shares are
sold) within six (6) months before or six (6) months after the director acquires
shares pursuant to this Plan. These laws are subject to change. The Company will
amend the Plan as necessary to comply with any changes in the law. A director
shall be required to comply with applicable law.
For a complete statement of the Company's policy with respect to the
purchase and sale of Company shares, directors are referred to the full
statement of policy, which the Company has distributed separately to each of
them.
7. Administration and Interpretation.
This Plan will be administered and interpreted by the Board of
Directors. Issues arising under this Plan will be decided by the Board of
Directors and its decision will be final and binding on the Company and the
directors. All stock issuances shall be automatic and in accordance with the
election filed by a director. No person shall have any discretion to select
which non-employee directors can participate or to determine the number of
shares to be issued to a director, except as otherwise set forth in this Plan
with respect to an individual director's election to accept payment of his or
her Retainer in shares of the Company's Common Stock.
8. Board Approval.
The terms of this Compensation Plan shall become effective upon adoption
by the Board of Directors and shall continue in effect as set forth in Section
2.
9. Shareholder Approval.
Continuance of the Plan shall be subject to approval by the shareholders
of the Company. Such shareholder approval shall be obtained in the degree and
manner required under applicable state and federal law and
<PAGE> 3
the rules of any stock exchange upon which the Common Stock is listed. No shares
may be issued under this Plan until such approval is obtained.
<PAGE> 4
EXHIBIT A
ASPECT TELECOMMUNICATIONS CORPORATION
Stock Administration Department
1730 Fox Dr., San Jose, CA 95131
p) 408-325-2486 f) 408-325-2766
ELECTION TO RECEIVE SHARES OF COMMON STOCK
Pursuant to the terms of the Aspect Telecommunications Corporation Annual
Retainer Compensation Plan (the "Plan"), I elect to receive payment of
___________% [indicate 0%, 50% or 100%] of my annual retainer for the period of
JULY 1, 1998 - JUNE 30, 1999 in shares of the Company's Common Stock.
I understand that I cannot revoke this election for the period indicated above.
I further understand that I must execute a new election for each subsequent year
under the Plan prior to the beginning of each one-year period as set forth in
the Plan document.
I understand that I can not dispose of shares issued under the Plan until six
months after the date of issuance.
If I elected above to receive part or all of my Retainer paid in stock, I hereby
direct Aspect to [check one]:
[ ] hold the shares in a book entry account until I give the Company a written
request directing them to issue the shares.
[ ] issue the shares in my name or in the name of my family trust, as it
appears below, and mail the certificate to the address indicated below:
Registration of Shares:
______________________________________________________
Address where Stock Certificate should be Mailed:
______________________________________________________
______________________________________________________
______________________________________________________
______________________________________________________
Date: ___________________ ________________________________________
Signature
________________________________________
Printed Name
PLEASE RETURN THIS FORM TO ASPECT'S STOCK ADMINISTRATION DEPARTMENT.
<PAGE> 1
EXHIBIT 4.4
ASPECT TELECOMMUNICATIONS CORPORATION
1998 DIRECTORS' STOCK OPTION PLAN
1. PURPOSES OF THE PLAN. The purposes of this Directors' Stock Option
Plan are to attract and retain the best available individuals for service as
Directors of the Company, to provide additional incentive to the Outside
Directors of the Company to serve as Directors, and to encourage their continued
service on the Board.
All options granted hereunder shall be nonstatutory stock options.
2. DEFINITIONS. As used herein, the following definitions shall apply:
(a) "Board" shall mean the Board of Directors of the Company.
(b) "Code" shall mean the Internal Revenue Code of 1986, as amended.
(c) "Common Stock" shall mean the Common Stock of the Company.
(d) "Company" shall mean Aspect Telecommunications Corporation, a
California corporation.
(e) "Continuous Status as a Director" shall mean the absence of any
interruption or termination of service as a Director.
(f) "Director" shall mean a member of the Board.
(g) "Employee" shall mean any person, including any officer or
director, employed by the Company or any Parent or Subsidiary of the Company.
The payment of a director's fee by the Company shall not be sufficient in and of
itself to constitute "employment" by the Company.
(h) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
(i) "Option" shall mean a stock option granted pursuant to the Plan.
All options shall be nonstatutory stock options (i.e., options that are not
intended to qualify as incentive stock options under Section 422 of the Code).
(j) "Optioned Stock" shall mean the Common Stock subject to an
Option.
(k) "Optionee" shall mean an Outside Director who receives an Option.
(l) "Outside Director" shall mean a Director who is not an Employee.
(m) "Parent" shall mean a "parent corporation," whether now or
hereafter existing, as defined in Section 424(e) of the Code.
(n) "Plan" shall mean this 1998 Directors' Stock Option Plan.
(o) "Share" shall mean a share of the Common Stock, as adjusted in
accordance with Section 11 of the Plan.
(p) "Subsidiary" shall mean a "subsidiary corporation," whether now
or hereafter existing, as defined in Section 424(f) of the Code.
<PAGE> 2
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 300,000 Shares (the "Pool") 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. If Shares which were acquired upon exercise of an
Option are subsequently repurchased by the Company, such Shares shall not in any
event be returned to the Plan and shall not become available for future grant
under the Plan.
4. ADMINISTRATION OF AND GRANTS OF OPTIONS UNDER THE PLAN.
(a) ADMINISTRATOR. Except as otherwise required herein, the Plan
shall be administered by the Board.
(b) PROCEDURE FOR GRANTS. All grants of Options hereunder shall be
automatic and nondiscretionary and shall be made strictly in accordance with the
following provisions:
(i) No person shall have any discretion to select which Outside
Directors shall be granted Options or to determine the number of Shares to be
covered by Options granted to Outside Directors.
(ii) Each person who becomes an Outside Director after the
effective date of this Plan, as determined in accordance with Section 6 hereof,
shall be automatically granted an Option to purchase 24,000 Shares (the "First
Option"), on the date on which such person first becomes an Outside Director,
whether through election by the shareholders of the Company or appointment by
the Board of Directors to fill a vacancy.
(iii) Each Outside Director shall be automatically granted an
Option to purchase 6,000 Shares (a "Subsequent Option") on August 31 of each
year (if August 31 falls on a Saturday, Sunday or holiday, then the Option shall
be automatically granted on the immediately preceding business day), provided
that, on such date, he or she shall have served on the Board for at least six
(6) months.
(iv) Notwithstanding the provisions of subsections (ii) and (iii)
hereof, in the event that a grant would cause the number of Shares subject to
outstanding Options plus the number of Shares previously purchased upon exercise
of Options to exceed the Pool, then each such automatic grant shall be for that
number of Shares determined by dividing the total number of Shares remaining
available for grant by the number of Outside Directors receiving an Option on
such date on the automatic grant date. Any further grants shall then be deferred
until such time, if any, as additional Shares become available for grant under
the Plan through action of the shareholders to increase the number of Shares
which may be issued under the Plan or through cancellation or expiration of
Options previously granted hereunder.
(v) Notwithstanding the provisions of subsections (ii) and (iii)
hereof, any grant of an Option made before the Company has obtained shareholder
approval of the Plan in accordance with Section 17 hereof shall be conditioned
upon obtaining such shareholder approval of the Plan in accordance with Section
17 hereof.
(vi) The terms of each First Option granted hereunder shall be as
follows:
(1) the First Option shall be exercisable only while the
Outside Director remains a Director of the Company, except as set forth in
Sections 4(e) and 9 hereof;
(2) the exercise price per Share shall be 100% of the fair
market value per Share on the date of grant of the First Option, determined in
accordance with Section 8 hereof; and
<PAGE> 3
(3) the First Option shall become vested and exercisable in
installments cumulatively as to 25% of the Shares subject to the First Option on
each of the first, second, third and fourth anniversaries of the date of grant
of the Option.
(vii) The terms of each Subsequent Option granted hereunder shall
be as follows:
(1) the Subsequent Option shall be vested and exercisable
only while the Outside Director remains a Director of the Company, except as set
forth in Sections 4(e) and 9 hereof;
(2) the exercise price per Share shall be 100% of the fair
market value per Share on the date of grant of the Subsequent Option, determined
in accordance with Section 8 hereof; and
(3) the Subsequent Option shall become vested and
exercisable as to one hundred percent (100%) of the Shares subject to the
Subsequent Option on the fourth anniversary of the date of grant of the
Subsequent Option.
(c) POWERS OF THE BOARD. Subject to the provisions and restrictions
of the Plan, the Board shall have the authority, in its discretion: (i) to
determine, upon review of relevant information and in accordance with Section
8(b) of the Plan, the fair market value of the Common Stock; (ii) to determine
the exercise price per share of Options to be granted, which exercise price
shall be determined in accordance with Section 8(a) of the Plan; (iii) to
interpret the Plan; (iv) to prescribe, amend and rescind rules and regulations
relating to the Plan; (v) to authorize any person to execute on behalf of the
Company any instrument required to effectuate the grant of an Option previously
granted hereunder; and (vi) to make all other determinations deemed necessary or
advisable for the administration of the Plan.
(d) EFFECT OF BOARD'S DECISION. All decisions, determinations and
interpretations of the Board shall be final and binding on all Optionees and any
other holders of any Options granted under the Plan.
(e) SUSPENSION OR TERMINATION OF OPTION. If the Chief Executive
Officer or his or her designee reasonably believes that an Optionee has
committed an act of misconduct, the Chief Executive Officer may suspend the
Optionee's right to exercise any option pending a determination by the Board of
Directors (excluding the Outside Director accused of such misconduct). If the
Board of Directors (excluding the Outside Director accused of such misconduct)
determines an Optionee has committed an act of embezzlement, fraud, dishonesty,
nonpayment of an obligation owed to the Company, breach of fiduciary duty or
deliberate disregard of the Company rules resulting in loss, damage or injury to
the Company, or if an Optionee makes an unauthorized disclosure of any Company
trade secret or confidential information, engages in any conduct constituting
unfair competition, induces any Company customer to breach a contract with the
Company or induces any principal for whom the Company acts as agent to terminate
such agency relationship, neither the Optionee nor his or her estate shall be
entitled to exercise any option whatsoever. In making such determination, the
Board of Directors (excluding the Outside Director accused of such misconduct)
shall act fairly and shall give the Optionee an opportunity to appear and
present evidence on Optionee's behalf at a hearing before the Board or a
committee of the Board.
5. ELIGIBILITY. Options may be granted only to Outside Directors. All
Options shall be automatically granted in accordance with the terms set forth in
Section 4(b) hereof. An Outside Director who has been granted an Option may, if
he or she is otherwise eligible, be granted an additional Option or Options in
accordance with such provisions.
The Plan shall not confer upon any Optionee any right with respect to
continuation of service as a Director or nomination to serve as a Director, nor
shall it interfere in any way with any rights which the Director or the Company
may have to terminate his or her directorship at any time.
<PAGE> 4
6. TERM OF PLAN; EFFECTIVE DATE. The Plan shall become effective upon
its approval by the shareholders of the Company as described in Section 17 of
the Plan. It shall continue in effect for a term of ten (10) years unless sooner
terminated under Section 13 of the Plan.
7. TERM OF OPTIONS. The term of each Option shall be ten (10) years from
the date of grant thereof.
8. EXERCISE PRICE AND CONSIDERATION.
(a) EXERCISE PRICE. The per Share exercise price for the Shares to be
issued pursuant to exercise of an Option shall be 100% of the fair market value
per Share on the date of grant of the Option.
(b) FAIR MARKET VALUE. The fair market value shall be determined by
the Board; provided, however, that in the event the Common Stock is traded on
the Nasdaq National Market or listed on a stock exchange, the fair market value
per Share shall be the closing sale price on such system or exchange on the date
of grant of the Option (or, in the event that the Common Stock is not traded on
such date, on the immediately preceding trading date), as reported by Nasdaq or
the stock exchange.
(c) FORM OF CONSIDERATION. The consideration to be paid for the
Shares to be issued upon exercise of an Option shall consist entirely of cash,
check, other Shares of Common Stock having 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 (which, if acquired from the Company, shall have been
held for at least six months), delivery of a properly executed exercise 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, or any
combination of such methods of payment and/or any other consideration or method
of payment as shall be permitted under applicable corporate law.
9. EXERCISE OF OPTION.
(a) PROCEDURE FOR EXERCISE; RIGHTS AS A SHAREHOLDER. Any Option
granted hereunder shall be exercisable at such times as are set forth in Section
4(b) hereof; provided, however, that no Options shall be exercisable prior to
shareholder approval of the Plan in accordance with Section 17 hereof has been
obtained.
(i) An Option may not be exercised for a fraction of a Share.
(ii) An Option shall be deemed to be exercised when properly
executed 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 consist of any consideration and
method of payment allowable under Section 8(c) of the Plan. Until the issuance
(as evidenced by the appropriate entry on the books of the Company or of a duly
authorized transfer agent of the Company) of the stock certificate evidencing
such Shares, no right to vote or receive dividends or any other rights as a
shareholder shall exist with respect to the Optioned Stock, notwithstanding the
exercise of the Option. A share certificate (or appropriate entry on the books
of the Company or of a duly authorized transfer agent of the Company) for the
number of Shares so acquired shall be issued (or made) to (or for) the Optionee
as soon as practicable after exercise of the Option. No adjustment will be made
for a dividend or other right for which the record date is prior to the date the
stock certificate is issued, except as provided in Section 11 of the Plan.
(iii) 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 A DIRECTOR. If an Outside Director
ceases to serve as a Director, he or she may, but only within thirty (30) days
after the date he or she ceases to be a Director of the Company, exercise his or
her Option to the extent that he or she was entitled to exercise it at the date
of such termination. Notwithstanding the foregoing, in no event may the Option
be exercised after its term set forth in
<PAGE> 5
Section 7 has expired. To the extent that such Outside Director was not entitled
to exercise an Option at the date of such termination, or does not exercise such
Option (which he or she was entitled to exercise) within the time specified
herein, the Option shall terminate.
(c) DISABILITY OF OPTIONEE. Notwithstanding Section 9(b) above,
in the event a Director is unable to continue his or her service as a Director
with the Company as a result of his or her total and permanent disability (as
defined in Section 22(e)(3) of the Code), he or she (or his or her authorized
representative) may, but only within six (6) months from the date of such
termination, exercise his or her Option to the extent he or she was entitled to
exercise it at the date of such termination. Notwithstanding the foregoing, in
no event may the Option be exercised after its term set forth in Section 7 has
expired. To the extent that he or she was not entitled to exercise the Option at
the date of termination, or if he or she does not exercise such Option (which he
or she 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, if the Optionee is, at the
time of his or her death, a Director of the Company and has been in Continuous
Status as a Director 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, by the
Optionee's estate or by a person or entity 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 Director for six (6) months after the date of death.
Notwithstanding the foregoing, in no event may the Option be exercised after its
term set forth in Section 7 has expired.
(ii) Within thirty (30) days after the termination of
Continuous Status as a Director, the Option may be exercised, at any time within
six (6) months following the date of death, 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 had accrued at the date of
termination. Notwithstanding the foregoing, in no event may the option be
exercised after its term set forth in Section 7 has expired.
10. Limited Transferability of Options. Except as set forth below, 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 or pursuant to a qualified domestic relations order (as defined by
the Code or the rules thereunder). An Option shall be transferable by an
Optionee to a living trust or a family trust established by the Optionee, under
such terms and conditions as are established by the Administrator. Any such
transfer shall also be subject to the Applicable Laws. The designation of a
beneficiary by an Optionee does not constitute a transfer. An Option may be
exercised during the lifetime of an Optionee only by the Optionee or a
transferee permitted by this Section.
11. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION; CORPORATE TRANSACTIONS.
(a) ADJUSTMENT. 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, as well as 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 Board, whose determination in that respect
shall be final, binding and conclusive. Except as expressly provided herein, no
issuance by the Company of shares of stock of any class, or securities
convertible into shares of stock of any class, shall affect, and no adjustment
by reason thereof shall be made with respect to, the number or price of shares
of Common Stock subject to an Option.
<PAGE> 6
(b) CORPORATE TRANSACTIONS. In the event of (i) a dissolution or
liquidation of the Company, (ii) a sale of all or substantially all of the
Company's assets, (iii) a merger or consolidation in which the Company is not
the surviving corporation, or (iv) any other capital reorganization in which
more than fifty percent (50%) of the shares of the Company entitled to vote are
exchanged, the Company shall give to the Eligible Director, at the time of
adoption of the plan for liquidation, dissolution, sale, merger, consolidation
or reorganization, either a reasonable time thereafter within which to exercise
the Option, including Shares as to which the Option would not be otherwise
vested and exercisable, prior to the effectiveness of such liquidation,
dissolution, sale, merger, consolidation or reorganization, at the end of which
time the Option shall terminate, or the right to exercise the Option, including
Shares as to which the Option would not be otherwise exercisable (or receive a
substitute option with comparable terms), as to an equivalent number of shares
of stock of the corporation succeeding the Company or acquiring its business by
reason of such liquidation, dissolution, sale, merger, consolidation or
reorganization.
12. TIME OF GRANTING OPTIONS. The date of grant of an Option shall, for
all purposes, be the date determined in accordance with Section 4(b) hereof.
Notice of the determination shall be given to each Outside Director to whom an
Option is so granted within a reasonable time after the date of such grant.
13. AMENDMENT AND TERMINATION OF THE PLAN.
(a) AMENDMENT AND TERMINATION. The Board may amend or terminate the
Plan from time to time in such respects as the Board may deem advisable;
provided that, to the extent necessary and desirable to comply with Rule 16b-3
under the Exchange Act (or any other applicable law or regulation), the Company
shall obtain approval of the shareholders of the Company to Plan amendments to
the extent and in the manner required by such law or regulation.
(b) EFFECT OF AMENDMENT OR TERMINATION. Any such amendment or
termination of the Plan that would impair the rights of any Optionee shall not
affect Options already granted to such Optionee and such Options shall remain in
full force and effect as if this Plan had not been amended or terminated, unless
mutually agreed otherwise between the Optionee and the Board, which agreement
must be in writing and signed by the Optionee and the Company.
14. CONDITIONS UPON ISSUANCE OF SHARES. Shares shall not be issued
pursuant to the exercise of an Option unless the exercise of such Option and the
issuance and delivery of such Shares pursuant thereto shall comply with all
relevant provisions of law, including, without limitation, the Securities Act of
1933, as amended, the Exchange Act, the rules and regulations promulgated
thereunder, state securities laws, and the requirements of any stock exchange
upon which the Shares may then be listed, and shall be further subject to the
approval of counsel for the Company with respect to such compliance. As a
condition to the exercise of an Option, the Company may require the person
exercising such Option to represent and warrant at the time of any such exercise
that the Shares are being purchased only for investment and without any present
intention to sell or distribute such Shares, if, in the opinion of counsel for
the Company, such a representation is required by any of the aforementioned
relevant provisions of law.
15. RESERVATION OF SHARES. The Company, during the term of this Plan,
will at all times reserve and keep available such number of Shares as shall be
sufficient to satisfy the requirements of the Plan. 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.
16. OPTION AGREEMENT. Options shall be evidenced by written option
agreements in such form as the Board shall approve.
17. SHAREHOLDER APPROVAL. The effectiveness of the Plan shall be
contingent upon approval by the shareholders of the Company at or prior to the
first annual meeting of shareholders held subsequent to the date on which the
Plan is adopted by the Board. If such shareholder approval is obtained at a duly
held shareholders'
<PAGE> 7
meeting, it may be obtained by the affirmative vote of the holders of a majority
of the outstanding shares of the Company present or represented and entitled to
vote thereon. If such shareholder approval is obtained by written consent, it
may be obtained by the written consent of the holders of a majority of the
outstanding shares of the Company.
<PAGE> 1
EXHIBIT 4.5
ASPECT TELECOMMUNICATIONS CORPORATION
1990 EMPLOYEE STOCK PURCHASE PLAN
The following constitute the provisions of the 1990 Employee Stock
Purchase Plan of Aspect Telecommunications Corporation.
1. Purpose. The purpose of the Plan is to provide employees of the
Company and its Designated Subsidiaries with an opportunity to purchase Common
Stock of the Company through accumulated payroll deductions. It is the intention
of the Company to have the Plan qualify as an "Employee Stock Purchase Plan"
under Section 423 of the Internal Revenue Code of 1986, as amended. The
provisions of the Plan shall, accordingly, be construed so as to extend and
limit participation in a manner consistent with the requirements of that section
of the Code.
2. Definitions.
(a) "Board" shall mean the Board of Directors of the Company.
(b) "Code" shall mean the Internal Revenue Code of 1986, as amended.
(c) "Common Stock" shall mean the Common Stock of the Company.
(d) "Company" shall mean Aspect Telecommunications Corporation, a
California corporation.
(e) "Compensation" shall mean all base straight time gross earnings
plus commissions, overtime, shift differential, on-call pay, call-in pay,
incentive compensation, bonus or other cash compensation but exclusive of fringe
benefits (including disability benefits).
(f) "Designated Subsidiaries" shall mean the Subsidiaries which have
been designated by the Board from time to time in its sole discretion as
eligible to participate in the Plan.
(g) "Employee" shall mean any individual who is an employee of the
Company for purposes of tax withholding under the Code whose customary
employment with the Company or any Designated Subsidiary is at least twenty (20)
hours per week and more than five (5) months in any calendar year. For purposes
of the Plan, the employment relationship shall be treated as continuing intact
while the individual is on sick leave or other leave of absence approved by the
Company. Where the period of leave exceeds 90 days and the individual's right to
reemployment is not guaranteed either by statute or by contract, the employment
relationship will be deemed to have terminated on the 91st day of such leave.
(h) "Enrollment Date" shall mean the first day of each Offering
Period.
(i) "Exercise Date" shall mean the last day of each Offering Period.
(j) "Offering Period" shall mean a period of approximately six (6)
months, commencing on February 16 and terminating on August 15, or commencing on
August 16 and terminating on February 15 of the next year, during which an
option granted pursuant to the Plan may be exercised. If February 16 or August
16 falls on a Saturday, Sunday or holiday, then the period will commence on be
the next business day. If August 15 or February 15 falls on a Saturday, Sunday
or holiday, then the period will terminate on the preceding business day.
(k) "Plan" shall mean this Employee Stock Purchase Plan.
<PAGE> 2
(l) "Reserves" shall mean the number of shares of Common Stock
covered by each option under the Plan which have not yet been exercised and the
number of shares of Common Stock which have been authorized for issuance under
the Plan but not yet placed under option.
(m) "Subsidiary" shall mean a corporation, domestic or foreign, of
which not less than 50% of the voting shares are held by the Company or a
Subsidiary, whether or not such corporation now exists or is hereafter organized
or acquired by the Company or a Subsidiary.
(n) "Trading Day" shall mean a day on which national stock exchanges
and the National Association of Securities Dealers Automated Quotation System
are open for trading.
3. Eligibility.
(a) Any Employee as defined in paragraph 2 who shall be employed by
the Company on a given Enrollment Date shall be eligible to participate in the
Plan.
(b) Any provisions of the Plan to the contrary notwithstanding, no
Employee shall be granted an option under the Plan (i) if, immediately after the
grant, such Employee (or any other person whose stock would be attributed to
such Employee pursuant to Section 425(d) of the Code) would own stock and/or
hold outstanding options to purchase stock possessing five percent (5%) or more
of the total combined voting power or value of all classes of stock of the
Company or of any subsidiary of the Company, or (ii) which permits his or her
rights to purchase stock under all employee stock purchase plans of the Company
and its subsidiaries to accrue at a rate which exceeds Twenty-Five Thousand
Dollars ($25,000) worth of stock (determined at the fair market value of the
shares at the time such option is granted) for each calendar year in which such
option is outstanding at any time.
4. Offering Periods. The Plan shall be implemented by consecutive
Offering Periods with a new Offering Period commencing on February 16 and August
16 of each year (if February 16 or August 16 falls on a Saturday, Sunday or
holiday, the period will commence on the next business day), or on such other
date as the Board shall determine, and continuing thereafter until terminated in
accordance with paragraph 19 hereof. The Board shall have the power to change
the duration of Offering Periods with respect to future offerings without
shareholder approval if such change is announced at least fifteen (15) days
prior to the scheduled beginning of the first Offering Period to be affected.
5. Participation.
(a) An eligible Employee may become a participant in the Plan either
by enrolling via the Genie Human Resources Information Access and Processing
System or by completing a subscription agreement authorizing payroll deductions
in the form provided by the Company's Stock Administration department.
Enrollment must be received by the Stock Administration department prior to the
close of business on the applicable Enrollment Date, unless a later time for
filing the subscription agreement is set by the Board for all eligible Employees
with respect to a given Offering Period.
(b) Payroll deductions for a participant shall commence on the first
payroll following the Enrollment Date and shall end on the last payroll in the
Offering Period to which such authorization is applicable, unless sooner
terminated by the participant as provided in paragraph 10.
6. Payroll Deductions.
(a) At the time a participant files his or her subscription
agreement, he or she shall elect to have payroll deductions made on each payday
during the Offering Period in an amount not exceeding ten percent (10%) of the
Compensation which he or she receives on each payday during the Offering Period,
and the aggregate of such payroll deductions during the Offering Period shall
not exceed ten percent (10%) of the participant's Compensation during said
Offering Period.
<PAGE> 3
(b) All payroll deductions made for a participant shall be credited
to his or her account under the Plan and will be withheld in whole percentages
only. A participant may not make any additional payments into such account.
(c) A participant may discontinue his or her participation in the
Plan as provided in paragraph 10, or may decrease, but not increase, the rate of
his or her payroll deductions during the Offering Period (within the limitations
of Section 6(a)) by changing his or her payroll deduction rate through the Genie
Human Resources Information Access and Processing System or by completing and
filing with the Company a new subscription agreement authorizing a change in
payroll deduction rate. The Board shall be authorized to limit the number of
participation rate changes during any Offering Period. The change in rate shall
be effective with the first full payroll period following ten (10) business days
after the Company's receipt of the new subscription agreement or change in
payroll deduction rate unless the Company elects to process a given change in
participation more quickly. A participant's subscription agreement or change in
payroll deduction rate shall remain in effect for successive Offering Periods
unless revised as provided herein or terminated as provided in paragraph 10.
(d) Notwithstanding the foregoing, to the extent necessary to comply
with Section 423(b)(8) of the Code and paragraph 3(b) herein, a participant's
payroll deductions may be decreased to 0% at such time during any Offering
Period which is scheduled to end during the current calendar year (the "Current
Offering Period") that the aggregate of all payroll deductions which were
previously used to purchase stock under the Plan in a prior Offering Period
which ended during that calendar year plus all payroll deductions accumulated
with respect to the Current Offering Period equal $21,250. Payroll deductions
shall recommence at the rate provided in such participant's subscription
agreement at the beginning of the first Offering Period which is scheduled to
end in the following calendar year, unless terminated by the participant as
provided in paragraph 10.
(e) At the time the option is exercised, in whole or in part, or at
the time some or all of the Company's Common Stock issued under the Plan is
disposed of, the participant must make adequate provision for the Company's
federal, state, or other tax withholding obligations, if any, which arise upon
the exercise of the option or the disposition of the Common Stock. At any time,
the Company may, but will not be obligated to, withhold from the participant's
compensation the amount necessary for the Company to meet applicable withholding
obligations, including any withholding required to make available to the Company
any tax deductions or benefit attributable to sale or early disposition of
Common Stock purchased by the Employee under this Plan.
7. Grant of Option.
(a) On the Enrollment Date of each Offering Period, each eligible
Employee participating in such Offering Period shall be granted an option to
purchase on each Exercise Date during such Offering Period (at the per share
option price) up to a number of shares of the Company's Common Stock determined
by dividing such Employee's payroll deductions accumulated prior to such
Exercise Date and retained in the Participant's account as of the Exercise Date
by the lower of (i) eighty-five percent (85%) of the fair market value of a
share of the Company's Common Stock on the Enrollment Date or (ii) eighty-five
percent (85%) of the fair market value of a share of the Company's Common Stock
on the Exercise Date; provided, however, that the maximum number of shares an
Employee may purchase during each Offering Period shall be determined at each
Enrollment Date by dividing $25,000 by the fair market value of a share of the
Company's Common Stock on the Enrollment Date, reduced by the fair market value
of any shares purchased by Employee under the Plan in an Offering Period in the
same calendar year, as determined on the Enrollment Date of such period and
provided further that such purchase shall be subject to the limitations set
forth in Sections 3(b) and 12 hereof. Exercise of the option shall occur as
provided in Section 8, unless the participant has withdrawn pursuant to Section
10, and shall expire on the last day of the Offering Period. Fair market value
of a share of the Company's Common Stock shall be determined as provided in
Section 7(b) herein.
(b) The option price per share of the shares offered in a given
Offering Period shall be the lower of: (i) 85% of the fair market value of a
share of the Common Stock of the Company on the Enrollment Date; or (ii) 85% of
the fair market value of a share of the Common Stock of the Company on the
Exercise Date. The fair market value of the Company's Common Stock on a given
date shall be determined by the Board in its discretion;
<PAGE> 4
provided, however, that where there is a public market for the Common Stock, the
fair market value per share shall be the closing sale price of the Common Stock
for such date, as reported by the Nasdaq National Market, or, in the event the
Common Stock is listed on a stock exchange, the fair market value per share
shall be the closing price on such exchange on such date, as reported in the
Wall Street Journal. In the event the enrollment date or the exercise date
occurs on a weekend or legal holiday, the fair market value shall be based on
the closing sale price on the next Trading Day.
8. Exercise of Option. Unless a participant withdraws from the Plan as
provided in paragraph 10 below, his or her option for the purchase of shares
will be exercised automatically on the Exercise Date, and the maximum number of
full shares subject to option shall be purchased for such participant at the
applicable option price with the accumulated payroll deductions in his or her
account. No fractional shares will be purchased and any payroll deductions
accumulated in a participant's account which are not used to purchase shares
shall be refunded to the participant or retained in the participant's account
for the subsequent Offering Period, as the Board or its committee shall
determine, subject to an earlier withdrawal by the participant as provided in
paragraph 10. During a participant's lifetime, a participant's option to
purchase shares hereunder is exercisable only by him or her.
9. Delivery. As promptly as practicable after each Exercise Date on
which a purchase of shares occurs, the Company shall arrange the delivery to
each participant, as appropriate, of a certificate representing the shares
purchased upon exercise of his or her option.
10. Withdrawal; Termination of Employment.
(a) A participant may withdraw all but not less than all the payroll
deductions credited to his or her account and not yet used to exercise his or
her option under the Plan at any time by withdrawing through the Genie Human
Resources Information Access and Processing System or by giving written notice
to the Company. All of the participant's payroll deductions credited to his or
her account will be paid to such participant promptly after receipt of notice of
withdrawal and such participant's option for the Offering Period will be
automatically terminated, and no further payroll deductions for the purchase of
shares will be made during the Offering Period. If a participant withdraws from
an Offering Period, payroll deductions will not resume at the beginning of the
succeeding Offering Period unless the participant delivers to the Company a new
subscription agreement.
(b) Upon a participant's ceasing to be an Employee for any reason or
upon termination of a participant's employment relationship (as described in
Section 2(g)), the payroll deductions credited to such participant's account
during the Offering Period but not yet used to exercise the option will be
returned to such participant or, in the case of his or her death, to the person
or persons entitled thereto under paragraph 14, and such participant's option
will be automatically terminated.
(c) In the event an Employee fails to remain an Employee of the
Company for at least twenty (20) hours per week during an Offering Period in
which the Employee is a participant, he or she will be deemed to have elected to
withdraw from the Plan and the payroll deductions credited to his or her account
will be returned to such participant and such participant's option terminated.
(d) A participant's withdrawal from an Offering Period will not have
any effect upon his or her eligibility to participate in any similar plan which
may hereafter be adopted by the Company or in succeeding Offering Periods which
commence after the termination of the Offering Period from which the participant
withdraws.
11. Interest. No interest shall accrue on the payroll deductions of a
participant in the Plan.
<PAGE> 5
12. Stock.
(a) The maximum number of shares of the Company's Common Stock which
shall be made available for sale under the Plan shall be 3,100,000* shares,
subject to adjustment upon changes in capitalization of the Company as provided
in paragraph 18. If on a given Exercise Date the number of shares with respect
to which options are to be exercised exceeds the number of shares then available
under the Plan, the Company shall make a pro rata allocation of the shares
remaining available for purchase in as uniform a manner as shall be practicable
and as it shall determine to be equitable.
(b) The participant will have no interest or voting right in shares
covered by his option until such option has been exercised.
(c) Shares to be delivered to a participant under the Plan will be
registered in the name of the participant or in the name of the participant and
his or her spouse.
13. Administration. The Plan shall be administered by the Board of the
Company or a committee of members of the Board appointed by the Board. The Board
or its committee shall have full and exclusive discretionary authority to
construe, interpret and apply the terms of the Plan, to determine eligibility
and to adjudicate all disputed claims filed under the Plan. Every finding,
decision and determination made by the Board or its committee shall, to the full
extent permitted by law, be final and binding upon all parties. Members of the
Board who are eligible Employees are permitted to participate in the Plan,
provided that:
(a) Members of the Board who are eligible to participate in the Plan
may not vote on any matter affecting the administration of the Plan or the grant
of any option pursuant to the Plan.
(b) If a Committee is established to administer the Plan, no member
of the Board who is eligible to participate in the Plan may be a member of the
Committee.
14. Designation of Beneficiary.
(a) A participant may designate a beneficiary through the Genie
Human Resources Information Access and Processing System or by giving written
notice to the Company. Such beneficiary will receive any shares and cash, if
any, from the participant's account under the Plan in the event of such
participant's death subsequent to an Exercise Date on which the option is
exercised but prior to delivery to such participant of such shares and cash. In
addition, a participant may file a written designation of a beneficiary who is
to receive any cash from the participant's account under the Plan in the event
of such participant's death prior to exercise of the option.
(b) Such designation of beneficiary may be changed by the
participant at any time by written notice. In the event of the death of a
participant and in the absence of a beneficiary validly designated under the
Plan who is living at the time of such participant's death, the Company shall
deliver such shares and/or cash to the executor or administrator of the estate
of the participant, or if no such executor or administrator has been appointed
(to the knowledge of the Company), the Company, in its discretion, may deliver
such shares and/or cash to the spouse or to any one or more dependents or
relatives of the participant, or if no spouse, dependent or relative is known to
the Company, then to such other person as the Company may designate.
15. Transferability. Neither payroll deductions credited to a
participant's account nor any rights with regard to the exercise of an option or
to receive shares under the Plan may be assigned, transferred, pledged or
otherwise disposed of in any way (other than by will, the laws of descent and
distribution or as provided in paragraph 14 hereof) by the participant. Any such
attempt at assignment, transfer, pledge or other disposition shall
- -----------------
* As adjusted to reflect the two 2-for-1 stock splits in September 1995 and in
January 1997.
<PAGE> 6
be without effect, except that the Company may treat such act as an election to
withdraw funds from an Offering Period in accordance with paragraph 10.
16. Use of Funds. All payroll deductions received or held by the Company
under the Plan may be used by the Company for any corporate purpose, and the
Company shall not be obligated to segregate such payroll deductions.
17. Reports. Individual accounts will be maintained for each participant
in the Plan. Statements of account will be given to participating Employees at
least semi-annually, which statements will set forth the amounts of payroll
deductions, the per share purchase price, the number of shares purchased and the
remaining cash balance, if any.
18. Adjustments Upon Changes in Capitalization. Subject to any required
action by the shareholders of the Company, the Reserves as well as the price per
share of Common Stock covered by each option under the Plan which has not yet
been exercised, 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 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 Board, whose determination in that respect shall
be final, binding and conclusive. Except as expressly provided herein, no issue
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.
In the event of the proposed dissolution or liquidation of the
Company, the Offering Period will terminate immediately prior to the
consummation of such proposed action, unless otherwise provided by the Board. 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, each
option under the Plan shall be assumed or an equivalent option shall be
substituted by such successor corporation or a parent or subsidiary of such
successor corporation, unless the Board determines, in the exercise of its sole
discretion and in lieu of such assumption or substitution, to shorten the
Offering Period then in progress by setting a new Exercise Date (the "New
Exercise Date"). If the Board shortens the Offering Period then in progress in
lieu of assumption or substitution in the event of a merger or sale of assets,
the Board shall notify each participant in writing, at least ten (10) days prior
to the New Exercise Date, that the Exercise Date for his option has been changed
to the New Exercise Date and that his option will be exercised automatically on
the New Exercise Date, unless prior to such date he has withdrawn from the
Offering Period as provided in paragraph 10. For purposes of this paragraph, an
option granted under the Plan shall be deemed to be assumed if, following the
sale of assets or merger, the option confers the right to purchase, for each
share of option stock subject to the option immediately prior to the sale of
assets or merger, the consideration (whether stock, cash or other securities or
property) received in the sale of assets or merger by holders of Common Stock
for each share of Common Stock held on the effective date of the transaction
(and if such holders were offered a choice of consideration, the type of
consideration chosen by the holders of a majority of the outstanding shares of
Common Stock); provided, however, that if such consideration received in the
sale of assets or merger was not solely common stock of the successor
corporation or its parent (as defined in Section 424(e) of the Code), the Board
may, with the consent of the successor corporation and the participant, provide
for the consideration to be received upon exercise of the option to be solely
common stock of the successor corporation or its parent equal in fair market
value to the per share consideration received by holders of Common Stock and the
sale of assets or merger.
The Board may, if it so determines in the exercise of its sole
discretion, also make provision for adjusting the Reserves, as well as the price
per share of Common Stock covered by each outstanding option, in the event the
Company effects one or more reorganizations, recapitalizations, rights offerings
or other increases or reductions of shares of its outstanding Common Stock, and
in the event of the Company being consolidated with or merged into any other
corporation.
<PAGE> 7
19. Amendment or Termination.
(a) The Board of Directors of the Company may at any time and for
any reason terminate or amend the Plan. Except as provided in paragraph 18, no
such termination can affect options previously granted, provided that an
Offering Period may be terminated by the Board of Directors on any Exercise Date
if the Board determines that the termination of the Plan is in the best
interests of the Company and its shareholders. Except as provided in paragraph
18, no amendment may make any change in any option theretofore granted which
adversely affects the rights of any participant. To the extent necessary to
comply with Rule 16b-3 under the Securities Exchange Act of 1934, as amended, or
under Section 423 of the Code (or any successor rule or provision or any other
applicable law or regulation), the Company shall obtain shareholder approval in
such a manner and to such a degree as required.
(b) Without shareholder consent and without regard to whether any
participant rights may be considered to have been "adversely affected," the
Board (or its committee) shall be entitled to change the Offering Periods, limit
the frequency and/or number of changes in the amount withheld during an Offering
Period, establish the exchange ratio applicable to amounts withheld in a
currency other than U.S. dollars, permit payroll withholding in excess of the
amount designated by a participant in order to adjust for delays or mistakes in
the Company's processing of properly completed withholding elections, establish
reasonable waiting and adjustment periods and/or accounting and crediting
procedures to ensure that amounts applied toward the purchase of Common Stock
for each participant properly correspond with amounts withheld from the
participant's Compensation, and establish such other limitations or procedures
as the Board (or its committee) determines in its sole discretion advisable
which are consistent with the Plan.
20. Notices. All notices or other communications by a participant to the
Company under or in connection with the Plan shall be deemed to have been duly
given when received in the form specified by the Company at the location, or by
the person, designated by the Company for the receipt thereof.
21. Conditions Upon Issuance of Shares. Shares shall not be issued with
respect to an option unless the exercise of such option and the issuance and
delivery of such shares pursuant thereto shall comply with all applicable
provisions of law, domestic or foreign, including, without limitation, the
Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as
amended, 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 applicable provisions of law.
22. Term of Plan. The Plan shall become effective upon the earlier to
occur of its adoption by the Board of Directors or its approval by the
shareholders of the Company. It shall continue in effect for a term of twenty
(20) years unless sooner terminated under paragraph 19.
<PAGE> 8
ASPECT TELECOMMUNICATIONS
1730 Fox Drive
San Jose, CA 95131-2312
NOTICE OF ENROLLMENT IN THE EMPLOYEE STOCK PURCHASE PLAN
Plan Participation Agreement and Payroll Deduction Authorization
Aspect Telecommunications is hereby authorized to deduct (CIRCLE ONE):
1% 2% 3% 4% 5% 6% 7% 8% 9% 10%
from by compensation per pay period to purchase shares of Aspect
Telecommunications Common Stock for my account under the Aspect
Telecommunications EMPLOYEE STOCK PURCHASE PLAN (the "Plan"). Compensation is
defined as all base straight time gross earnings plus commission, overtime,
shift differential, on-call pay, call-in pay, incentive compensation, bonus or
other cash compensation but exclusive of fringe benefits (including disability
benefits).
I understand that this deduction authorization shall be placed in effect as soon
as practicable upon its presentation to Aspect Telecommunications and that it
may be terminated by me upon written notice to Aspect Telecommunications (see
Notice of Withdrawal from the Employee Stock Purchase Plan). I understand that I
may decrease, but not increase this elected rate of deduction during the six
month offering period. I understand and accept that no interest will be paid or
allowed on any money in my account under the Plan.
I instruct Aspect Telecommunications to instruct the transfer agent to register
and mail the stock certificate of Aspect Telecommunication shares resulting from
participation in the Employee Stock Purchase Plan as indicated
(CHECK ONE):
_________ Issue the stock certificate in my name, as printed below, and mail the
certificate directly to me at the address indicated below.
_________ Issue and/or mail the stock certificate directly to my brokerage firm
or to another party. (MUST BE ACCOMPANIED BY A REGISTRATION AND MAILING NOTICE.)
_________ Issue the stock certificate to Hambrecht & Quist, in accordance with
their Next-Day-Sale program. (MUST BE ACCOMPANIED BY A NOTICE OF NEXT-DAY-SALE.)
I have received a copy of, and have read and understand, the Plan.
_______________________________________________ ___________________________
Signature and Date Daytime Telephone Number
_______________________________________________ ___________________________
Employee Name (Please print full name clearly) Mailing Address
_______________________________________________ ___________________________
Social Security Number City/Town/State/Zip Code
TO BE FILLED OUT BY ASPECT TELECOMMUNICATIONS:
_______________________________________________ ___________________________
Signature of Authorized Recipient Date Received
<PAGE> 9
ASPECT TELECOMMUNICATIONS
1730 Fox Drive
San Jose, CA 95131-2312
NOTICE OF WITHDRAWAL FROM THE EMPLOYEE STOCK PURCHASE PLAN
I hereby withdraw my participation in the Employee Stock Purchase Plan from the
offering beginning on __________________________ by completing the information
below:
Date of Current Offering Period
I understand that any balance of funds in my account will be returned to me as
soon as practicable. I also understand that my withdrawal will make me
ineligible to purchase Aspect Telecommunications Common Stock through the
employee stock purchase plan during the current offering period and that to
re-enter the Plan I must file a new Notice of Enrollment. Reentry into the Plan
cannot become effective before the beginning of the next offering following
withdrawal.
TO BE FILLED OUT BY THE EMPLOYEE:
_______________________________________________ ___________________________
Signature Date
_______________________________________________ ___________________________
Employee Name (Please print full name clearly) Social Security Number
TO BE FILLED OUT BY ASPECT TELECOMMUNICATIONS:
_______________________________________________ ___________________________
Signature of Authorized Recipient Date Received
<PAGE> 1
EXHIBIT 5.1
June 22, 1998
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
Aspect Telecommunications Corporation (the "Company") with the Securities and
Exchange Commission on or about June 23, 1998 (the "Registration Statement")
in connection with the registration under the Securities Act of 1933, as
amended, of a total of 50,000 shares of your Common Stock (the "Shares")
reserved for issuance under the Company's Annual Retainer Compensation Plan,
300,000 Shares reserved for issuance under the Company's 1998 Directors' Stock
Option Plan and 1,000,000 Shares reserved for issuance under the Company's 1990
Employee Stock Purchase Plan (the "Option Plans"). 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 Plans.
It is our opinion that, when issued and sold in the manner referred to
in the Option Plans and pursuant to the respective agreement which accompanies
each purchase or grant, as the case may be, under the Option Plans, 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
<PAGE> 1
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Aspect Telecommunications Corporation on Form S-8 of our January 14, 1998
(February 27, 1998 as to Note 15) and March 24, 1998, appearing in and
incorporated by reference in the Annual Report on Form 10-K of Aspect
Telecommunications Corporation for the year ended December 31, 1997.
DELOITTE & TOUCHE LLP
/s/ DELOITTE & TOUCHE LLP
- ------------------------------
San Jose, California
June 16, 1998
