<PAGE>
As filed with the Securities and Exchange Commission on July 22, 1999
Registration No. 333-____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________________________
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
______________________________
DAVOX CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
Delaware 02-0364368
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
6 Technology Park Drive
Westford, Massachusetts 01886
(Address of Principal Executive Offices) (Zip Code)
____________________
Davox Corporation 1996 Stock Plan
(Full Title of the Plan)
____________________
Alphonse M. Lucchese
Chief Executive Officer and Chairman
Davox Corporation
6 Technology Park Drive
Westford, Massachusetts 01886
(Name and Address of Agent For Service)
(978) 952-0200
(Telephone Number, Including Area Code, of Agent For Service)
______________________________
Copy to:
Timothy C. Maguire, Esq.
Testa, Hurwitz & Thibeault, LLP
High Street Tower
125 High Street
Boston, Massachusetts 02110
(617) 248-7000
- --------------------------------------------------------------------------------
Calculation Of Registration Fee
<TABLE>
<CAPTION>
Proposed Proposed
Maximum Maximum
Title of Securities to be Amount to be Offering Price Aggregate Amount of
Registered Registered Per Share Offering Price Registration Fee
---------- ---------- --------- -------------- ----------------
<S> <C> <C> <C> <C>
Common Stock, $.10 par value 161,760 $20.75 $3,356,520(1) $ 933.11(3)
Common Stock, $.10 par value 229,900 $19.88 $4,570,412(1) $1,270.58(3)
Common Stock, $.10 par value 40,000 $19.25 $ 770,000(1) $ 214.06(3)
Common Stock, $.10 par value 199,500 $17.38 $3,467,310(1) $ 963.91(3)
Common Stock, $.10 par value 191,700 $ 7.00 $1,341,900(1) $ 373.05(3)
Common Stock, $.10 par value 10,000 $ 8.31 $ 83,100(1) $ 23.10(3)
Common Stock, $.10 par value 225,250 $ 8.56 $1,928,140(1) $ 536.02(3)
Common Stock, $.10 par value 40,000 $ 8.63 $ 345,200(1) $ 95.97(3)
Common Stock, $.10 par value 15,000 $ 8.94 $ 134,100(1) $ 37.28(3)
Common Stock, $.10 par value 154,250 $ 8.50 $1,311,125(1) $ 364.49(3)
Common Stock, $.10 par value 82,640 $14.01(2) $1,157,786(2) $ 321.87(3)
</TABLE>
(1) Such shares are issuable upon exercise of outstanding options with
fixed exercise prices. Pursuant to Rule 457(h), the aggregate offering price
and the fee have been calculated upon the basis of the price at which such
options may be exercised. The offering price per share set forth for such
shares is the exercise price at which such options are excersiable.
(2) Such shares are not subject to outstanding options. The exercise price
of such options shall be determined at the time of grant. Accordingly, the
price of $14.01 per share, which is the average of the high and low prices of
the Common Stock as reported on the Nasdaq National Market System on July 14,
1999, is set forth solely for purposes of calculating the filing fee pursuant to
Rules 457(c) and (h).
(3) Calculated pursuant to Section 6(b) of the Securities Act of 1933, as
amended.
================================================================================
<PAGE>
This Registration Statement registers additional securities of the same
class as other securities for which Registration Statement No. 333-16209 on Form
S-8 as filed with the Securities and Exchange Commission on November 15, 1996
and Registration Statement No. 333-30727 on Form S-8 as filed with the
Securities and Exchange Commission on July 3, 1997 relating to the Davox
Corporation 1996 Stock Plan are effective. Pursuant to General Instruction E,
the contents of the above-listed Registration Statements are hereby incorporated
by reference.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 8. Exhibits.
Exhibit No. Description of Exhibit
- ----------- ----------------------
4.1 1996 Stock Plan of the Registrant, as amended
5.1 Opinion of Testa, Hurwitz & Thibeault, LLP
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Testa, Hurwitz & Thibeault, LLP
(included in Exhibit 5.1)
24.1 Power of Attorney (found on Page 3 of this Registration Statement)
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
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 Westford, State of Massachusetts, on the 20th day of
July, 1999.
DAVOX CORPORATION
By: /s/ Alphonse M. Lucchese
---------------------------------------
Alphonse M. Lucchese
Chief Executive Officer and Chairman
POWER OF ATTORNEY AND SIGNATURES
EACH PERSON WHOSE SIGNATURE appears below this Registration Statement
hereby constitutes and appoints Alphonse M. Lucchese and Timothy C. Maguire and
each of them, with full power to act without the other, his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him or her and in his or her name, place and stead in any and all capacities
(until revoked in writing) to sign all amendments (including post-effective
amendments) to this Registration Statement on Form S-8 of Davox Corporation, and
to file the same, with all exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary fully to all
intents and purposes as he might or could do in person thereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or their
or his or her substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
Signature Title(s) Date
- --------- -------- ----
/s/ Alphonse M. Lucchese Chief Executive Officer July 20, 1999
- ------------------------- and Chairman
Alphonse M. Lucchese
/s/ John J. Connolly Vice President Finance and Chief July 20, 1999
- ------------------------- Financial Officer
John J. Connolly
/s/ Michael D. Kaufman Director July 20, 1999
- -------------------------
Michael D. Kaufman
/s/ Walter J. Levison Director July 20, 1999
- -------------------------
Walter J. Levison
/s/ R. Scott Asen Director July 20, 1999
- -------------------------
R. Scott Asen
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
- ----------- -----------
4.1 Davox Corporation 1996 Stock Plan, as amended.
5.1 Opinion of Testa, Hurwitz & Thibeault, LLP
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Testa, Hurwitz & Thibeault, LLP
(included in Exhibit 5.1)
24.1 Power of Attorney (found on Page 3 of this
Registration Statement)
<PAGE>
Exhibit 4.1
DAVOX CORPORATION
1996 STOCK PLAN
---------------
1. Purpose. The purpose of the Davox Corporation 1996 Stock Plan (the
-------
"Plan") is to encourage key employees of Davox Corporation (the "Company") and
of any present or future parent or subsidiary of the Company (collectively,
"Related Corporations") and other individuals who render services to the Company
or a Related Corporation, by providing opportunities to participate in the
ownership of the Company and its future growth through (a) the grant of options
which qualify as "incentive stock options" ("ISOs") under Section 422(b) of the
Internal Revenue Code of 1986, as amended (the "Code"); (b) the grant of options
which do not qualify as ISOs ("Non-Qualified Options"); (c) awards of stock in
the Company ("Awards"); and (d) opportunities to make direct purchases of stock
in the Company ("Purchases"). Both ISOs and Non-Qualified Options are referred
to hereafter individually as an "Option" and collectively as "Options."
Options, Awards and authorizations to make Purchases are referred to hereafter
collectively as "Stock Rights." As used herein, the terms "parent" and
"subsidiary" mean "parent corporation" and "subsidiary corporation,"
respectively, as those terms are defined in Section 424 of the Code.
2. Administration of the Plan.
--------------------------
A. Board or Committee Administration. The Plan shall be administered by
---------------------------------
the Board of Directors of the Company (the "Board") or, subject to Paragraph 2D
(relating to compliance with Section 162(m) of the Code), by a committee
appointed by the Board (the "Committee"). Hereinafter, all references in this
Plan to the "Committee" shall mean the Board if no Committee has been appointed.
Subject to ratification of the grant or authorization of each Stock Right by the
Board (if so required by applicable state law), and subject to the terms of the
Plan, the Committee shall have the authority to (i) determine to whom (from
among the class of employees eligible under paragraph 3 to receive ISOs) ISOs
shall be granted, and to whom (from among the class of individuals and entities
eligible under paragraph 3 to receive Non-Qualified Options and Awards and to
make Purchases) Non-Qualified Options, Awards and authorizations to make
Purchases may be granted; (ii) determine the time or times at which Options or
Awards shall be granted or Purchases made; (iii) determine the purchase price of
shares subject to each Option or Purchase, which prices shall not be less than
the minimum price specified in paragraph 6; (iv) determine whether each Option
granted shall be an ISO or a Non-Qualified Option; (v) determine (subject to
paragraph 7) the time or times when each Option shall become exercisable and the
duration of the exercise period; (vi) extend the period during which outstanding
Options may be exercised; (vii) determine whether restrictions such as
repurchase options are to be imposed on shares subject to Options, Awards and
Purchases and the nature of such restrictions, if any, and (viii) interpret the
Plan and prescribe and rescind rules and regulations relating to it. If the
Committee determines to issue a Non-Qualified Option, it shall take whatever
actions it deems necessary, under Section 422 of the Code and the regulations
promulgated thereunder, to ensure that such Option is not treated as an ISO.
The interpretation and construction by the Committee of any provisions of the
Plan or of any Stock Right granted under it shall be final unless otherwise
determined by the Board. The Committee may from time to time adopt such rules
and regulations for carrying out the Plan as it may deem advisable. No member
of the Board or the Committee shall be liable for any action or determination
made in good faith with respect to the Plan or any Stock Right granted under it.
B. Committee Actions. The Committee may select one of its members as its
-----------------
chairman, and shall hold meetings at such time and places as it may determine.
A majority of the Committee
1
<PAGE>
shall constitute a quorum and acts of a majority of the members of the Committee
at a meeting at which a quorum is present, or acts reduced to or approved in
writing by all the members of the Committee (if consistent with applicable state
law), shall be the valid acts of the Committee. From time to time the Board may
increase the size of the Committee and appoint additional members thereof,
remove members (with or without cause) and appoint new members in substitution
therefor, fill vacancies however caused, or remove all members of the Committee
and thereafter directly administer the Plan.
C. Grant of Stock Rights to Board Members. Stock Rights may be granted to
--------------------------------------
members of the Board. All grants of Stock Rights to members of the Board shall
in all respects be made in accordance with the provisions of this Plan
applicable to other eligible persons. Members of the Board who either (i) are
eligible to receive grants of Stock Rights pursuant to the Plan or (ii) have
been granted Stock Rights may vote on any matters affecting the administration
of the Plan or the grant of any Stock Rights pursuant to the Plan, except that
no such member shall act upon the granting to himself or herself of Stock
Rights, but any such member may be counted in determining the existence of a
quorum at any meeting of the Board during which action is taken with respect to
the granting to such member of Stock Rights.
D. Performance-Based Compensation. The Board, in its discretion, may take
- ---------------------------------
such action as may be necessary to ensure that Stock Rights granted under the
Plan qualify as "qualified performance-based compensation" within the meaning of
Section 162(m) of the Code and applicable regulations promulgated thereunder
("Performance-Based Compensation"). Such action may include, in the Board's
discretion, some or all of the following (i) if the Board determines that Stock
Rights granted under the Plan generally shall constitute Performance-Based
Compensation, the Plan shall be administered, to the extent required for such
Stock Rights to constitute Performance-Based Compensation, by a Committee
consisting solely of two or more "outside directors" (as defined in applicable
regulations promulgated under Section 162(m) of the Code), (ii) if any Non-
Qualified Options with an exercise price less than the fair market value per
share of Common Stock are granted under the Plan and the Board determines that
such Options should constitute Performance Based Compensation, such options
shall be made exercisable only upon the attainment of a pre-established,
objective performance goal established by the Committee, and such grant shall be
submitted for, and shall be contingent upon shareholder approval and (iii) Stock
Rights granted under the Plan may be subject to such other terms and conditions
as are necessary for compensation recognized in connection with the exercise or
disposition of such Stock Right or the disposition of Common Stock acquired
pursuant to such Stock Right, to constitute Performance-Based Compensation.
3. Eligible Employees and Others. ISOs may be granted only to employees
-----------------------------
of the Company or any Related Corporation. Non-Qualified Options, Awards and
authorizations to make Purchases may be granted to any employee, officer or
director (whether or not also an employee) or consultant of the Company or any
Related Corporation. The Committee may take into consideration a recipient's
individual circumstances in determining whether to grant a Stock Right. The
granting of any Stock Right to any individual or entity shall neither entitle
that individual or entity to, nor disqualify such individual or entity from,
participation in any other grant of Stock Rights.
4. Stock. The stock subject to Stock Rights shall be authorized but
-----
unissued shares of Common Stock of the Company, par value $.10 per share (the
"Common Stock"), or shares of Common Stock reacquired by the Company in any
manner. The aggregate number of shares which may be issued pursuant to the Plan
is equal to the "Plan Share Limit" as defined below. If any Option granted
under the Plan shall expire or terminate for any reason without having been
exercised in full or shall cease for any
2
<PAGE>
reason to be exercisable in whole or in part or shall be repurchased by the
Company, the unpurchased shares of Common Stock subject to such Option shall
again be available for grants of Stock Rights under the Plan.
For purposes of this Plan the "Plan Share Limit" shall be 900,000 shares,
such total to include the number of shares that are available for grant, award
or purchase under the Company's 1986 Stock Plan (the "Old Plan") at the time of
expiration of the Old Plan.
No employee of the Company or any Related Corporation may be granted
Options to acquire, in the aggregate, more than 500,000 shares of Common Stock
during any fiscal year of the Company. If any Option granted under the Plan
shall expire or terminate for any reason without having been exercised in full
or shall cease for any reason to be exercisable in whole or in part or shall be
repurchased by the Company, the shares subject to such Option shall be included
in the determination of the aggregate number of shares of Common Stock deemed to
have been granted to such employee under the Plan.
5. Granting of Stock Rights. Stock Rights may be granted under the Plan
------------------------
at any time on or after July 25, 1996 and prior to July 25, 2006. The date of
grant of a Stock Right under the Plan will be the date specified by the
Committee at the time it grants the Stock Right; provided, however, that such
date shall not be prior to the date on which the Committee acts to approve the
grant.
6. Minimum Option Price; ISO Limitations.
-------------------------------------
A. Price for Non-Qualified Options, Awards and Purchases. Subject to
-----------------------------------------------------
Paragraph 2D (relating to compliance with Section 162(m) of the Code), the
exercise price per share specified in the agreement relating to each Non-
Qualified Option granted, and the purchase price per share of stock granted in
any Award or authorized as a Purchase, under the Plan may be less than the fair
market value of the Common Stock of the Company on the date of grant, provided
that, in no event shall such exercise price or such purchase price be less than
the minimum legal consideration required therefor under the laws of any
jurisdiction in which the Company or its successors in interest may be
organized. The Committee may, in its discretion, subject any Stock Right
granted under the Plan to any terms or conditions necessary for compensation
recognized in connection with the exercise of such Stock Right or the
disposition of Common Stock acquired pursuant to such Stock Right, to constitute
qualified performance-based compensation under Section 162(m) of the Code and
applicable regulations promulgated thereunder.
B. Price for ISOs. The exercise price per share specified in the
--------------
agreement relating to each ISO granted under the Plan shall not be less than the
fair market value per share of Common Stock on the date of such grant. In the
case of an ISO to be granted to an employee owning stock possessing more than
ten percent (10%) of the total combined voting power of all classes of stock of
the Company or any Related Corporation, the price per share specified in the
agreement relating to such ISO shall not be less than one hundred ten percent
(110%) of the fair market value per share of Common Stock on the date of grant.
For purposes of determining stock ownership under this paragraph, the rules of
Section 424(d) of the Code shall apply. The date of grant for purposes of this
subparagraph shall mean the date that the Company or a Related Corporation
completes the corporate action constituting an offer of stock for sale to an
individual.
C. $100,000 Annual Limitation on ISO Vesting. Each eligible employee may
-----------------------------------------
be granted Options treated as ISOs only to the extent that, in the aggregate
under this Plan and all incentive stock option plans of the Company and any
Related Corporation, ISOs do not become exercisable for the first time by such
employee during any calendar year with respect to stock
3
<PAGE>
having a fair market value (determined at the time the ISOs were granted) in
excess of $100,000. The Company intends to designate any Options granted in
excess of such limitation as Non-Qualified Options and the Company shall issue
separate certificates to the optionee with respect to Options that are
Non-Qualified Options and Options that are ISOs.
D. Determination of Fair Market Value. If, at the time an Option is
----------------------------------
granted under the Plan, the Company's Common Stock is publicly traded, "fair
market value" shall be determined as of the date of grant or, if the prices or
quotes discussed in this sentence are unavailable for such date, the last
business day for which such prices or quotes are available prior to the date of
grant and shall mean (i) the average (on that date) of the high and low prices
of the Common Stock on the principal national securities exchange on which the
Common Stock is traded, if the Common Stock is then traded on a national
securities exchange; or (ii) the last reported sale price (on that date) of the
Common Stock on the Nasdaq National Market, if the Common Stock is not then
traded on a national securities exchange; or (iii) the closing bid price (or
average of bid prices) last quoted (on that date) by an established quotation
service for over-the-counter securities, if the Common Stock is not reported on
the Nasdaq National Market. If the Common Stock is not publicly traded at the
time an Option is granted under the Plan, "fair market value" shall mean the
fair value of the Common Stock as determined by the Committee after taking into
consideration all factors which it deems appropriate, including, without
limitation, recent sale and offer prices of the Common Stock in private
transactions negotiated at arm's length.
7. Option Duration. Subject to earlier termination as provided in
---------------
paragraphs 9 and 10 or in the agreement relating to such Option, each Option
shall expire on the date specified by the Committee, but not more than (i) ten
years from the date of grant in the case of Options generally and (ii) five
years from the date of grant in the case of ISOs granted to an employee owning
stock possessing more than ten percent (10%) of the total combined voting power
of all classes of stock of the Company or any Related Corporation, as determined
under paragraph 6(B). Subject to earlier termination as provided in paragraphs
9 and 10, the term of each ISO shall be the term set forth in the original
instrument granting such ISO, except with respect to any part of such ISO that
is converted into a Non-Qualified Option pursuant to paragraph 16.
8. Exercise of Option. Subject to the provisions of Paragraphs 9 through
------------------
12, each Option granted under the Plan shall be exercisable as follows:
A. Vesting. The Option shall either be fully exercisable on the date of
-------
grant or shall become exercisable thereafter in such installments as the
Committee may specify.
B. Full Vesting of Installments. Once an installment becomes exercisable
----------------------------
it shall remain exercisable until expiration or termination of the Option,
unless otherwise specified by the Committee.
C. Partial Exercise. Each Option or installment may be exercised at any
----------------
time or from time to time, in whole or in part, for up to the total number of
shares with respect to which it is then exercisable.
D. Acceleration of Vesting. The Committee shall have the right to
-----------------------
accelerate the date that any installment of any Option becomes exercisable;
provided that the Committee shall not, without the consent of an optionee,
accelerate the permitted exercise date of any installment of any Option granted
to any employee as an ISO (and not previously converted into a Non-Qualified
Option pursuant to paragraph 16) if such acceleration would violate the annual
vesting limitation contained in Section 422(d) of the Code, as described in
paragraph 6(C).
4
<PAGE>
9. Termination of Employment. Unless otherwise specified in the agreement
-------------------------
relating to such ISO, if an ISO optionee ceases to be employed by the Company
and all Related Corporations other than by reason of death or disability as
defined in paragraph 10, no further installments of his or her ISOs shall become
exercisable, and his or her ISOs shall terminate on the earlier of (a) three
months after the date of termination of his or her employment, or (b) their
specified expiration dates, except to the extent that such ISOs (or unexercised
installments thereof) have been converted into Non-Qualified Options pursuant to
paragraph 16. For purposes of this paragraph 9, employment shall be considered
as continuing uninterrupted during any bona fide leave of absence (such as those
attributable to illness, military obligations or governmental service) provided
that the period of such leave does not exceed 90 days or, if longer, any period
during which such optionee's right to reemployment is guaranteed by statute or
by contract. A bona fide leave of absence with the written approval of the
Committee shall not be considered an interruption of employment under this
paragraph 9, provided that such written approval contractually obligates the
Company or any Related Corporation to continue the employment of the optionee
after the approved period of absence. ISOs granted under the Plan shall not be
affected by any change of employment within or among the Company and Related
Corporations, so long as the optionee continues to be an employee of the Company
or any Related Corporation. Nothing in the Plan shall be deemed to give any
grantee of any Stock Right the right to be retained in employment or other
service by the Company or any Related Corporation for any period of time.
10. Death; Disability.
-----------------
A. Death. If an ISO optionee ceases to be employed by the Company and all
-----
Related Corporations by reason of his or her death, any ISO owned by such
optionee may be exercised, to the extent otherwise exercisable on the date of
death, by the estate, personal representative or beneficiary who has acquired
the ISO by will or by the laws of descent and distribution, until the earlier of
(i) the specified expiration date of the ISO or (ii) 180 days from the date of
the optionee's death.
B. Disability. If an ISO optionee ceases to be employed by the Company
----------
and all Related Corporations by reason of his or her disability, such optionee
shall have the right to exercise any ISO held by him or her on the date of
termination of employment, for the number of shares for which he or she could
have exercised it on that date, until the earlier of (i) the specified
expiration date of the ISO or (ii) 180 days from the date of the termination of
the optionee's employment. For the purposes of the Plan, the term "disability"
shall mean "permanent and total disability" as defined in Section 22(e)(3) of
the Code or any successor statute.
11. Assignability. No Stock Right shall be assignable or transferable by
-------------
the grantee except by will, by the laws of descent and distribution or, in the
case of Non-Qualified Options only, pursuant to a valid domestic relations
order. Except as set forth in the previous sentence, during the lifetime of a
grantee each Stock Right shall be exercisable only by such grantee.
12. Terms and Conditions of Options. Options shall be evidenced by
-------------------------------
instruments (which need not be identical) in such forms as the Committee may
from time to time approve. Such instruments shall conform to the terms and
conditions set forth in paragraphs 6 through 11 hereof and may contain such
other provisions as the Committee deems advisable which are not inconsistent
with the Plan, including restrictions applicable to shares of Common Stock
issuable upon exercise of Options. The Committee may specify that any Non-
Qualified Option shall be subject to the restrictions set forth herein with
respect to ISOs, or to such other termination and cancellation provisions as the
Committee may determine. The Committee may from time to time confer authority
and responsibility on one or more of
5
<PAGE>
its own members and/or one or more officers of the Company to execute and
deliver such instruments. The proper officers of the Company are authorized and
directed to take any and all action necessary or advisable from time to time to
carry out the terms of such instruments.
13. Adjustments. Upon the occurrence of any of the following events, an
-----------
optionee's rights with respect to Options granted to such optionee hereunder
shall be adjusted as hereinafter provided, unless otherwise specifically
provided in the written agreement between the optionee and the Company relating
to such Option:
A. Stock Dividends and Stock Splits. If the shares of Common Stock shall
--------------------------------
be subdivided or combined into a greater or smaller number of shares or if the
Company shall issue any shares of Common Stock as a stock dividend on its
outstanding Common Stock, the number of shares of Common Stock deliverable upon
the exercise of Options shall be appropriately increased or decreased
proportionately, and appropriate adjustments shall be made in the purchase price
per share to reflect such subdivision, combination or stock dividend.
B. Consolidations or Mergers. If the Company is to be consolidated with
-------------------------
or acquired by another entity in a merger or other reorganization in which the
holders of the outstanding voting stock of the Company immediately preceding the
consummation of such event, shall, immediately following such event, hold, as a
group, less than a majority of the voting securities of the surviving or
successor entity, or in the event of a sale of all or substantially all of the
Company's assets or otherwise (each, an "Acquisition"), the Committee or the
board of directors of any entity assuming the obligations of the Company
hereunder (the "Successor Board"), shall, as to outstanding Options, either (i)
make appropriate provision for the continuation of such Options by substituting
on an equitable basis for the shares then subject to such Options either (a) the
consideration payable with respect to the outstanding shares of Common Stock in
connection with the Acquisition, (b) shares of stock of the surviving or
successor corporation or (c) such other securities as the Successor Board deems
appropriate, the fair market value of which shall not materially exceed the fair
market value of the shares of Common Stock subject to such Options immediately
preceding the Acquisition; or (ii) upon written notice to the optionees, provide
that all Options must be exercised, to the extent then exercisable or to be
exercisable as a result of the Acquisition, within a specified number of days of
the date of such notice, at the end of which period the Options shall terminate;
or (iii) terminate all Options in exchange for a cash payment equal to the
excess of the fair market value of the shares subject to such Options (to the
extent then exercisable or to be exercisable as a result of the Acquisition)
over the exercise price thereof.
C. Recapitalization or Reorganization. In the event of a recapitalization
----------------------------------
or reorganization of the Company (other than a transaction described in
subparagraph B above) pursuant to which securities of the Company or of another
corporation are issued with respect to the outstanding shares of Common Stock,
an optionee upon exercising an Option shall be entitled to receive for the
purchase price paid upon such exercise the securities he or she would have
received if he or she had exercised such Option prior to such recapitalization
or reorganization.
D. Modification of ISOs. Notwithstanding the foregoing, any adjustments
--------------------
made pursuant to subparagraphs A, B or C with respect to ISOs shall be made only
after the Committee, after consulting with counsel for the Company, determines
whether such adjustments would constitute a "modification" of such ISOs (as that
term is defined in Section 424 of the Code) or would cause any adverse tax
consequences for the holders of such ISOs. If the Committee determines that
such adjustments made with respect to ISOs would constitute a modification of
such ISOs or would cause adverse tax consequences to the holders, it may refrain
from making such adjustments.
6
<PAGE>
E. Dissolution or Liquidation. In the event of the proposed dissolution
--------------------------
or liquidation of the Company, each Option will terminate immediately prior to
the consummation of such proposed action or at such other time and subject to
such other conditions as shall be determined by the Committee.
F. Issuances of Securities. 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
subject to Options. No adjustments shall be made for dividends paid in cash or
in property other than securities of the Company.
G. Fractional Shares. No fractional shares shall be issued under the Plan
-----------------
and the optionee shall receive from the Company cash in lieu of such fractional
shares.
H. Adjustments. Upon the happening of any of the events described in
-----------
subparagraphs A, B or C above, the class and aggregate number of shares set
forth in paragraph 4 hereof that are subject to Stock Rights which previously
have been or subsequently may be granted under the Plan shall also be
appropriately adjusted to reflect the events described in such subparagraphs.
The Committee or the Successor Board shall determine the specific adjustments to
be made under this paragraph 13 and, subject to paragraph 2, its determination
shall be conclusive.
14. Means of Exercising Options. An Option (or any part or installment
---------------------------
thereof) shall be exercised by giving written notice to the Company at its
principal office address, or to such transfer agent as the Company shall
designate. Such notice shall identify the Option being exercised and specify
the number of shares as to which such Option is being exercised, accompanied by
full payment of the purchase price therefor either (a) in United States dollars
in cash or by check, (b) at the discretion of the Committee, through delivery of
shares of Common Stock having a fair market value equal as of the date of the
exercise to the cash exercise price of the Option, (c) at the discretion of the
Committee, by delivery of the grantee's personal recourse note bearing interest
payable not less than annually at no less than 100% of the lowest applicable
Federal rate, as defined in Section 1274(d) of the Code, (d) at the discretion
of the Committee and consistent with applicable law, through the delivery of an
assignment to the Company of a sufficient amount of the proceeds from the sale
of the Common Stock acquired upon exercise of the Option and an authorization to
the broker or selling agent to pay that amount to the Company, which sale shall
be at the participant's direction at the time of exercise, or (e) at the
discretion of the Committee, by any combination of (a), (b), (c) and (d) above.
If the Committee exercises its discretion to permit payment of the exercise
price of an ISO by means of the methods set forth in clauses (b), (c), (d) or
(e) of the preceding sentence, such discretion shall be exercised in writing at
the time of the grant of the ISO in question. The holder of an Option shall not
have the rights of a shareholder with respect to the shares covered by such
Option until the date of issuance of a stock certificate to such holder for such
shares. Except as expressly provided above in paragraph 13 with respect to
changes in capitalization and stock dividends, no adjustment shall be made for
dividends or similar rights for which the record date is before the date such
stock certificate is issued.
15. Term and Amendment of Plan. This Plan was adopted by the Board on
--------------------------
July 25, 1996, subject, with respect to the validation of ISOs granted under the
Plan, to approval of the Plan by the stockholders of the Company at the next
Meeting of Stockholders or, in lieu thereof, by written consent. If the
approval of stockholders is not obtained prior to July 25, 1997, any grants of
ISOs under the Plan made prior to that date shall be Non-Qualified Options. The
Plan shall expire at the end of the day on July 24, 2006 (except as to Options
outstanding on that date). Subject to the provisions of paragraph 5 above,
Options may be granted under the Plan prior to the date of stockholder approval
of the Plan. The
7
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Board may terminate or amend the Plan in any respect at any time, except that,
without the approval of the stockholders obtained within 12 months before or
after the Board adopts a resolution authorizing any of the following actions:
(a) the total number of shares that may be issued under the Plan may not be
increased (except by adjustment pursuant to paragraph 13); (b) the provisions of
paragraph 3 regarding eligibility for grants of ISOs may not be modified; (c)
the provisions of paragraph 6(B) regarding the exercise price at which shares
may be offered pursuant to ISOs may not be modified (except by adjustment
pursuant to paragraph 13); and (d) the expiration date of the Plan may not be
extended. Except as otherwise provided in this paragraph 15, in no event may
action of the Board or stockholders alter or impair the rights of a grantee,
without such grantee's consent, under any Stock Right previously granted to such
grantee.
16. Modifications of ISOs; Conversion of ISOs into Non-Qualified Options.
--------------------------------------------------------------------
Subject to Paragraph 13D, without the prior written consent of the holder of an
ISO, the Committee shall not alter the terms of such ISO (including the means of
exercising such ISO) if such alteration would constitute a modification (within
the meaning of Section 424(h)(3) of the Code). The Committee, at the written
request or with the written consent of any optionee, may in its discretion take
such actions as may be necessary to convert such optionee's ISOs (or any
installments or portions of installments thereof) that have not been exercised
on the date of conversion into Non-Qualified Options at any time prior to the
expiration of such ISOs, regardless of whether the optionee is an employee of
the Company or a Related Corporation at the time of such conversion. Such
actions may include, but shall not be limited to, extending the exercise period
or reducing the exercise price of the appropriate installments of such ISOs. At
the time of such conversion, the Committee (with the consent of the optionee)
may impose such conditions on the exercise of the resulting Non-Qualified
Options as the Committee in its discretion may determine, provided that such
conditions shall not be inconsistent with this Plan. Nothing in the Plan shall
be deemed to give any optionee the right to have such optionee's ISOs converted
into Non-Qualified Options, and no such conversion shall occur until and unless
the Committee takes appropriate action. Upon the taking of such action, the
Company shall issue separate certificates to the optionee with respect to
Options that are Non-Qualified Options and Options that are ISOs.
17. Application of Funds. The proceeds received by the Company from the
--------------------
sale of shares pursuant to Options granted and Purchases authorized under the
Plan shall be used for general corporate purposes.
18. Notice to Company of Disqualifying Disposition. By accepting an ISO
----------------------------------------------
granted under the Plan, each optionee agrees to notify the Company in writing
immediately after such optionee makes a Disqualifying Disposition (as described
in Sections 421, 422 and 424 of the Code and regulations thereunder) of any
stock acquired pursuant to the exercise of ISOs granted under the Plan. A
Disqualifying Disposition is generally any disposition occurring on or before
the later of (a) the date two years following the date the ISO was granted or
(b) the date one year following the date the ISO was exercised.
19. Withholding of Additional Income Taxes. Upon the exercise of a Non-
--------------------------------------
Qualified Option, the grant of an Award, the making of a Purchase of Common
Stock for less than its fair market value, the making of a Disqualifying
Disposition (as defined in paragraph 18), the vesting or transfer of restricted
stock or securities acquired on the exercise of an Option hereunder, or the
making of a distribution or other payment with respect to such stock or
securities, the Company may withhold taxes in respect of amounts that constitute
compensation includible in gross income. The Committee in its discretion may
condition (i) the exercise of an Option, (ii) the grant of an Award, (iii) the
making of a Purchase of Common Stock for less than its fair market value, or
(iv) the vesting or transferability of restricted stock
8
<PAGE>
or securities acquired by exercising an Option, on the grantee's making
satisfactory arrangement for such withholding. Such arrangement may include
payment by the grantee in cash or by check of the amount of the withholding
taxes or, at the discretion of the Committee, by the grantee's delivery of
previously held shares of Common Stock or the withholding from the shares of
Common Stock otherwise deliverable upon exercise of a Option shares having an
aggregate fair market value equal to the amount of such withholding taxes.
20. Governmental Regulation. The Company's obligation to sell and deliver
-----------------------
shares of the Common Stock under this Plan is subject to the approval of any
governmental authority required in connection with the authorization, issuance
or sale of such shares.
Government regulations may impose reporting or other obligations on the
Company with respect to the Plan. For example, the Company may be required to
send tax information statements to employees and former employees that exercise
ISOs under the Plan, and the Company may be required to file tax information
returns reporting the income received by grantees of Options in connection with
the Plan.
21. Governing Law. The validity and construction of the Plan and the
-------------
instruments evidencing Options shall be governed by the laws of the State of
Delaware, or the laws of any jurisdiction in which the Company or its successors
in interest may be organized.
9
<PAGE>
AMENDMENT NO. 1
TO THE
DAVOX CORPORATION
1996 STOCK PLAN
Pursuant to action taken by the Board of Directors of Davox Corporation
(the "Corporation") on April 27, 1997, the Corporation's 1996 Stock Plan (the
"Plan") is amended effective as of such date by:
1. Amending and restating Section 6(A) thereof so that said Section 6(A) shall
read in its entirety as follows:
"A. Price for non-Qualified Options, Awards and Purchases. Subject to
-----------------------------------------------------
Paragraph 2D (relating to compliance with Section 162(m) of the Code), the
exercise price per share specified in the agreement relating to each Non-
Qualified Option granted, and the purchase price per share of stock granted in
any Award or authorized as a Purchase, under the Plan may be less than the fair
market value of the Common Stock of the Company on the date of grant, provided
that (i) in no event shall such exercise price or such purchase price be less
than the minimum legal consideration required therefor under the laws of any
jurisdiction in which the Company or its successors in interest may be
organized, (ii) options representing the right to purchase in the aggregate a
maximum of ten percent (10%) of the number of shares authorized under the Plan
(as set forth in Section 4 hereof) may be granted with exercise prices below
fair market value, and (iii) no option may be granted with an exercise price of
less than eighty-five percent (85%) of fair market value. The Committee may, in
its discretion, subject any Stock Right granted under the Plan to any terms or
conditions necessary for compensation recognized in connection with the exercise
of such Stock Right or the disposition of Common Stock acquired pursuant to such
Stock Right, to constitute qualified performance-based compensation under
Section 162(m) of the Code and applicable regulations promulgated thereunder."
Except as modified hereby, the Plan shall remain in full force and effect.
10
<PAGE>
AMENDMENT NO. 2
TO THE
DAVOX CORPORATION
1996 STOCK PLAN
Pursuant to actions taken by the Board of Directors of Davox Corporation
(the "Corporation"), the Corporation's 1996 Stock Plan (the "Plan") is amended
as follows:
1. Amending Section 4 thereof to increase the Plan Share Limit so that the
aggregate number of shares which may be issued pursuant to the Plan is increased
to 1,950,000 shares.
Except as modified hereby, the Plan shall remain in full force and effect.
11
<PAGE>
AMENDMENT NO. 3
TO THE
DAVOX CORPORATION
1996 STOCK PLAN
Pursuant to action taken by the Board of Directors of Davox Corporation
(the "Corporation") on July 23, 1998, the Corporation's 1996 Stock Plan (the
"Plan") is amended effective as of such date by:
1. Amending and restating the first (1st) sentence of Section 2(C) of the
Plan so that said sentence shall read in its entirety as follows:
"Stock Rights may be granted to members of the Board who are also employees
of the Company; members of the Board who are not employees of the Company
shall not be eligible to receive Stock Rights."
2. Amending and restating the second (2nd) sentence of Section 3 of the
Plan so that said sentence shall read in its entirety as follows:
"Non-Qualified Options, Awards and authorizations to make Purchases may be
granted to any employee, officer or director (provided such director is
also an employee) or consultant of the Company or any Related Corporation."
3. Amending and restating the fifth (5th) sentence of Section 15 of the
Plan so that said sentence shall read in its entirety as follows:
"The Board may terminate or amend the Plan in any respect at any time,
except that, without the approval of the stockholders obtained within 12
months before or after the Board adopts a resolution authorizing any of the
following actions: (a) the total number of shares that may be issued under
the Plan may not be increased (except by adjustment pursuant to paragraph
13); (b) the provisions of paragraph 3 regarding eligibility for grants of
Stock Rights may not be modified; (c) the provisions of paragraph 6(B)
regarding the exercise price at which shares may be offered pursuant to
ISOs may not be modified (except by adjustment pursuant to paragraph 13);
(d) the expiration date of the Plan may not be extended; (e) the exercise
price of more than ten percent (10%) of outstanding ISOs may not be
reduced; and (f) benefits under the Plan and the group of persons eligible
to receive Stock Rights under the Plan may not be increased."
Except as modified hereby, the Plan shall remain in full force and effect.
12
<PAGE>
AMENDMENT NO. 4
TO THE
DAVOX CORPORATION
1996 STOCK PLAN
Pursuant to action taken by the Board of Directors of Davox Corporation
(the "Corporation") on January 26, 1999, the Corporation's 1996 Stock Plan (the
"Plan") is amended effective as of such date by:
1. Amending Section 4 thereof to increase the Plan Share Limit so that the
aggregate number of shares which may be issued pursuant to the Plan is increased
to 2,700,000 shares.
Except as modified hereby, the Plan shall remain in full force and effect.
13
<PAGE>
Exhibit 5.1
July 20, 1999
Davox Corporation
6 Technology Park Drive
Westford, Massachusetts 01886
Re: Registration Statement on Form S-8 Relating to the
Davox Corporation 1996 Stock Plan (the "Plan")
----------------------------------------------
Ladies and Gentlemen:
Reference is made to the above-captioned Registration Statement on Form S-8
(the "Registration Statement") filed by Davox Corporation (the "Company") with
the Securities and Exchange Commission under the Securities Act of 1933, as
amended, relating to an aggregate of 1,350,000 shares of Common Stock, $.10 par
value, of the Company (the "Shares").
We are counsel to the Company and are familiar with the proceedings of its
stockholders and Board of Directors. We have examined original or certified
copies of the Company's certificate of incorporation, as amended, the Company's
by-laws, as amended, the corporate records of the Company to the date hereof,
and such other certificates, documents, records and materials as we have deemed
necessary in connection with this opinion letter.
We are members only of the Bar of the Commonwealth of Massachusetts and are
not experts in, and express no opinion regarding, the laws of any jurisdiction
other than the Commonwealth of Massachusetts and the United States of America,
and the General Corporation Law of the State of Delaware.
Based upon and subject to the foregoing, we are of the opinion that the
Shares issued or proposed to be issued by the Company pursuant to the Plan will
be, upon receipt of the consideration provided for in the Plan, validly issued,
fully paid and nonassessable after issuance of such Shares in accordance with
the terms of the Plan.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement.
Very truly yours,
/s/ Testa, Hurwitz & Thibeault, LLP
TESTA, HURWITZ & THIBEAULT, LLP
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our report dated January 26, 1999
included in Davox Corporation's Form 10-K for the year ended December 31, 1998
and to all references to our Firm included in this registration statement.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Boston, Massachusetts
July 20, 1999
