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EXHIBIT 4
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (the "Agreement"), dated as of
November 9, 2000, by and between Cisco Systems, Inc., a California corporation
("Parent"), and Active Voice Corporation, a Washington corporation ("Company").
WHEREAS, concurrently with the execution and delivery of this
Agreement, Company, Parent and Aqua Acquisition Corporation, a Delaware
corporation ("Merger Sub"), are entering into an Agreement and Plan of Merger
and Reorganization, dated as of the date hereof (the "Reorganization
Agreement"), which provides that, among other things, upon the terms and subject
to the conditions thereof, Merger Sub will be merged with and into Company (the
"Merger"), with Company continuing as the surviving corporation; and
WHEREAS, as a condition and inducement to Parent's willingness to
enter into the Reorganization Agreement, Parent has required that Company agree,
and Company has so agreed, to grant to Parent an option with respect to certain
shares of Company's common stock on the terms and subject to the conditions set
forth herein.
NOW, THEREFORE, in consideration of the foregoing and of the
mutual covenants and agreements set forth herein and in the Reorganization
Agreement, the parties hereto agree as follows:
1. Grant of Option. Company hereby grants Parent an irrevocable
option (the "Company Option") to purchase up to 2,275,000 shares of the
Company's outstanding shares (the "Company Shares") of common stock, no par
value per share, of Company (the "Company Common Stock") in the manner set forth
below at a price (the "Exercise Price") of $15 per Company Share, payable in
cash. Capitalized terms used herein but not defined herein shall have the
meanings set forth in the Reorganization Agreement.
2. Exercise of Option. The Company Option may be exercised by
Parent, in whole or in part, at any time or from time to time after the
occurrence of any of the events that obligate Company to pay Parent the
Termination Fee pursuant to Section 7.3(b) or 7.3(c) of the Reorganization
Agreement. In the event Parent wishes to exercise the Company Option, Parent
shall deliver to Company a written notice (an "Exercise Notice") specifying the
total number of Company Shares it wishes to purchase. Each closing of a purchase
of Company Shares (a "Closing") shall occur at a place, on a date and at a time
designated by Parent in an Exercise Notice delivered at least two business days
prior to the date of the Closing.
3. Termination of Option. The Company Option shall terminate upon
the earlier of: (a) the Effective Time; (b) the termination of the
Reorganization Agreement pursuant to Section 7.1 thereof (other than a
termination in connection with which Parent is entitled to any payments as
specified in Section 7.3(b) or 7.3(c) thereof); (c) 180 days following any
termination of the Reorganization Agreement in connection with which Parent is
entitled to a payment as specified in Section 7.3(b) thereof (or if, at the
expiration of such 180 day period, the Company
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Option cannot be exercised by reason of any applicable judgment, decree, order,
law or regulation, ten business days after such impediment to exercise shall
have been removed or shall have become final and not subject to appeal); or (d)
12 months following any termination of the Reorganization Agreement in
connection with which Parent is entitled to a payment as specified in Section
7.3(c) thereof (or if, at the expiration of such 12 month period, the Company
Option cannot be exercised by reason of any applicable judgment, decree, order,
law or regulation, ten business days after such impediment to exercise shall
have been removed or shall have become final and not subject to appeal);
provided, however, that if Parent has exercised the Company Option but the
Closing has not occurred as provided in Section 5 with respect to such exercise,
the Company Option shall survive until immediately following such Closing.
Notwithstanding the foregoing, the Company Option may not be exercised if Parent
is in material breach of any of its representations, warranties, covenants or
agreements contained in this Agreement or in the Reorganization Agreement.
4. Conditions to Closing. The obligation of Company to issue the
Company Shares to Parent hereunder is subject to the conditions that (a) all
waiting periods, if any, under the Hart-Scott-Rodino Antitrust Improvements Act
of 1976, as amended, and the rules and regulations promulgated thereunder ("HSR
Act"), applicable to the issuance of the Company Shares hereunder shall have
expired or have been terminated; (b) all consents, approvals, orders or
authorizations of, or registrations, declarations or filings with, any Federal,
state or local administrative agency or commission or other Federal, state or
local governmental authority or instrumentality, if any, required in connection
with the issuance of the Company Shares hereunder shall have been obtained or
made, as the case may be; and (c) no preliminary or permanent injunction or
other order by any court of competent jurisdiction prohibiting or otherwise
restraining such issuance shall be in effect. Company shall use its reasonable
best efforts to satisfy such conditions as soon as practicable after Parent
exercises the Company Option.
5. Closing. At any Closing, (a) Company will deliver to Parent a
single certificate in definitive form representing the number of Company Shares
designated by Parent in its Exercise Notice, such certificate to be registered
in the name of Parent and to bear the legend set forth in Section 11, and (b)
Parent will deliver to Company the aggregate price for the Company Shares so
designated and being purchased by wire transfer of immediately available funds
or, at the option of the Company, certified check or bank check. At any Closing
at which Parent is exercising the Company Option in part, Parent shall present
and surrender this Agreement to Company, and Company shall deliver to Parent an
executed new agreement with the same terms as this Agreement evidencing the
right to purchase the balance of the shares of Company Common Stock purchasable
hereunder.
6. Representations and Warranties of Company. Company represents
and warrants to Parent that (a) Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Washington and has
the corporate power and authority to enter into this Agreement and to carry out
its obligations hereunder; (b) the execution and delivery of this Agreement by
Company and the consummation by Company of the transactions contemplated hereby
have been duly authorized by all necessary corporate action on the part of
Company and no other corporate proceedings on the part of Company are necessary
to authorize this Agreement or any of the transactions contemplated hereby; (c)
this Agreement has been duly
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executed and delivered by Company and constitutes a valid and binding obligation
of Company, and, assuming this Agreement constitutes a valid and binding
obligation of Parent and the receipt of all required governmental approvals,
enforceable against Company in accordance with its terms, except as
enforceability may be limited by bankruptcy and other laws affecting the rights
and remedies of creditors generally and general principles of equity; (d)
Company has taken all necessary corporate action to authorize and reserve for
issuance and to permit it to issue, upon exercise of the Company Option, and at
all times from the date hereof through the expiration of the Company Option will
have reserved, that number of unissued Company Shares that are subject to the
Company Option, all of which, upon their issuance and delivery in accordance
with the terms of this Agreement, will be validly issued, fully paid and
nonassessable; (e) upon delivery of the Company Shares to Parent upon the
exercise of the Company Option, Parent will acquire the Company Shares free and
clear of all claims, liens, charges, encumbrances and security interests of any
nature whatsoever; (f) except as may be required under the Securities Act of
1933, as amended (the "Securities Act"), the execution and delivery of this
Agreement by Company does not, and the performance of this Agreement by Company
will not, conflict with, or result in any violation of, or default (with or
without notice or lapse of time, or both) under, or give rise to a right of
termination, cancellation or acceleration of any obligation or the loss of a
benefit under, or the creation of a lien, pledge, security interest or other
encumbrance on assets (any such conflict, violation, default, right of
termination, cancellation or acceleration, loss or creation, a "Violation") of
Company pursuant to, (i) any provision of the Restated Articles of
Incorporation, as amended, or Restated By-laws, as amended, of Company; (ii) any
provisions of any material mortgage, indenture, lease, contract or other
agreement, instrument, permit, concession, franchise, or license of Company or
to which it is a party or by which its assets are bound; or (iii) any judgment,
order, decree, statute, law, ordinance, rule or regulation applicable to Company
or its properties or assets, which Violation, in the case of each of clauses
(ii) and (iii), would have a Material Adverse Effect on Company; and (g) except
as described in Section 2.3 of the Reorganization Agreement and except for the
expiration of the waiting period under the HSR Act and except as contemplated by
Sections 8(a) and 8(b), the execution and delivery of this Agreement by Company
does not, and the performance of this Agreement by Company will not, require any
consent, approval, authorization or permit of, or filing with or notification
to, any governmental or regulatory authority, other than applicable filings with
and payment of fees to the Nasdaq National Market with respect to the inclusion
for quotation thereon of the additional shares of Company Common Stock which may
be purchased hereunder.
7. Representations and Warranties of Parent. Parent represents
and warrants to Company that (a) Parent is a corporation duly organized, validly
existing and in good standing under the laws of the State of California and has
the corporate power and authority to enter into this Agreement and to carry out
its obligations hereunder; (b) the execution and delivery of this Agreement by
Parent and the consummation by Parent of the transactions contemplated hereby
have been duly authorized by all necessary corporate action on the part of
Parent and no other corporate proceedings on the part of Parent are necessary to
authorize this Agreement or any of the transactions contemplated hereby; (c)
this Agreement has been duly executed and delivered by Parent and constitutes a
valid and binding obligation of Parent, enforceable against Parent in accordance
with its terms, except as enforceability may be limited by bankruptcy and other
laws affecting the rights and remedies of creditors generally and general
principles of equity; (d) except as described in Section 3.3 of the
Reorganization Agreement, the execution and delivery of this Agreement by Parent
does not, and the performance of this Agreement by Parent
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will not, result in any Violation pursuant to, (i) any provision of the Articles
of Incorporation, as amended, or By-laws, as amended, of Parent, (ii) any
provisions of any material mortgage, indenture, lease, contract or other
agreement, instrument, permit, concession, franchise, or license of Parent; or
(iii) any judgment, order, decree, statute, law, ordinance, rule or regulation
applicable to Parent or its properties or assets, which Violation, in the case
of each of clauses (ii) and (iii), would have a Material Adverse Effect on
Parent; (e) except as described in Section 3.3 of the Reorganization Agreement
and Section 4(a) of this Agreement, and except as may be required under the
Securities Act and the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), the execution and delivery of this Agreement by Parent does
not, and the performance of this Agreement by Parent will not, require any
consent, approval, authorization or permit of, or filing with or notification
to, any governmental or regulatory authority; and (f) any Company Shares
acquired by Parent upon exercise of the Company Option will be acquired for
Parent's own account for investment purposes only and will not be, and the
Company Option is not being, acquired by Parent with a view to the public
distribution thereof.
8. Put and Call.
(a) Exercise. At any time during which the Company Option
is exercisable pursuant to Sections 2 and 3 (the "Repurchase Period"), upon
written demand by Parent, Parent shall have the right to sell to Company (or any
successor entity thereof), and Company (or such successor entity) shall be
obligated to repurchase from Parent (the "Put"), and upon written demand by
Company, Company (or any successor entity thereof) shall have the right to
purchase from Parent and Parent shall be obligated to sell to Company (or any
successor entity) (the "Call"), all or any portion of the Company Option, to the
extent not previously exercised, at the price set forth in subparagraph (i)
below, or all or any portion of the Company Shares purchased by Parent pursuant
thereto, at a price set forth in subparagraph (ii) below:
(i) The difference between the "Market/Tender Offer
Price" for shares of Company Common Stock as of the date (the "Notice
Date") written notice of exercise of the Put or Call, as the case may
be, is given to the other party (defined as the higher of (A) the price
per share offered as of the Notice Date pursuant to any tender or
exchange offer or other Takeover Proposal (as defined in the
Reorganization Agreement) which was made prior to the Notice Date and
not terminated or withdrawn as of the Notice Date (the "Tender Price")
or (B) the average of the closing prices of shares of Company Common
Stock on The Nasdaq National Market for the ten trading days immediately
preceding the Notice Date (the "Market Price")), and the Exercise Price,
multiplied by the number of Company Shares purchasable pursuant to the
Company Option (or portion thereof with respect to which Parent is
exercising its rights under this Section 8), but only if the
Market/Tender Offer Price is greater than the Exercise Price.
(ii) The Exercise Price paid by Parent for the
Company Shares acquired pursuant to the Company Option plus the
difference between the Market/Tender Offer Price and the Exercise Price,
but only if the Market/Tender Offer Price is greater than the Exercise
Price, multiplied by the number of Company Shares so purchased.
(iii) Notwithstanding subparagraphs (i) and (ii)
above, in no event shall the proceeds payable to Parent pursuant to this
Section 8 exceed the sum of
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(x) $11,800,000 plus (y) the Exercise Price multiplied by the number of
Company Shares purchased minus (z) any amount paid to Parent by Company
pursuant to Section 7.3(b) or Section 7.3(c) of the Reorganization
Agreement.
(b) For purposes of Section 8(a), the Tender Price shall
be the highest price per share offered pursuant to a tender or exchange offer or
other Takeover Proposal during the Repurchase Period.
(c) Payment and Redelivery of Company Option or Shares. In
the event Parent or Company exercises its rights under this Section 8, Company
shall, within ten business days of the Notice Date, pay the required amount to
Parent in immediately available funds and Parent shall surrender to Company the
Company Option or the certificates evidencing the Company Shares purchased by
Parent pursuant thereto, and Parent shall warrant that it owns such shares and
that such shares are then free and clear of all liens, claims, charges and
encumbrances of any kind or nature whatsoever.
9. Registration Rights.
(a) Following any exercise of the Company Option, Parent
may by written notice (the "Registration Notice") to Company request Company to
register under the Securities Act all or any part of the shares of Company
Common Stock acquired pursuant to this Agreement (the "Restricted Shares")
beneficially owned by Parent (the "Registrable Securities") pursuant to a bona
fide firm commitment underwritten public offering in which Parent and the
underwriters shall effect as wide a distribution of such Registrable Securities
as is reasonably practicable and shall use their reasonable best efforts to
prevent any Person (including any group as used in Rule 13d-5 under the Exchange
Act) and its affiliates from purchasing through such offering Restricted Shares
representing more than 1% of the outstanding shares of Common Stock of Company
on a fully diluted basis (a "Permitted Offering"); provided, further, that any
such Registration Notice must relate to a number of shares equal to at least 2%
of the outstanding shares of Company Common Stock and that any rights to require
registrations hereunder shall terminate with respect to any shares that may be
sold pursuant to Rule 144(k) under the Securities Act. The Registration Notice
shall include a certificate executed by Parent and its proposed managing
underwriter, which underwriter shall be an investment banking firm of nationally
recognized standing (the "Manager"), stating that (i) they have a good faith
intention to commence promptly a Permitted Offering and (ii) the Manager in good
faith believes that, based on the then prevailing market conditions, it will be
able to sell the Registrable Securities at a per share price equal to at least
80% of the Fair Market Value of such shares. For purposes of this Section 9, the
term "Fair Market Value" shall mean the per share average of the closing sale
prices of Company's Common Stock on The Nasdaq National Market for the ten
trading days immediately preceding the date of the Registration Notice.
(b) Company shall use its reasonable best efforts to
effect, as promptly as practicable, the registration under the Securities Act of
the unpurchased Registrable Securities; provided, however, that (i) Parent shall
not be entitled to demand more than an aggregate of two effective registration
statements hereunder and (ii) Company will not be required to file any such
registration statement during any period of time (not to exceed 40 days after
such request in the case of clause (A) below or 90 days in the case of clauses
(B) and (C)
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below) when (A) Company is in possession of material non-public information
which it reasonably believes (i) would be detrimental to be disclosed at such
time and, (ii) after consultation with counsel to Company, such information
would have to be disclosed if a registration statement were filed at that time;
(B) Company is required under the Securities Act to include audited financial
statements for any period in such registration statement and such financial
statements are not yet available for inclusion in such registration statement;
or (C) Company determines, in its reasonable judgment, that such registration
would interfere with any financing, acquisition or other material transaction
involving Company or any of its affiliates. If consummation of the sale of any
Registrable Securities pursuant to a registration hereunder does not occur
within 120 days after the filing with the SEC of the initial registration
statement, the provisions of this Section 9 shall again be applicable to any
proposed registration; provided, however, that Parent shall not be entitled to
request more than two registrations pursuant to this Section 9. Company shall
use its reasonable best efforts to cause any Registrable Securities registered
pursuant to this Section 9 to be qualified for sale under the securities or Blue
Sky laws of such jurisdictions as Parent may reasonably request and shall
continue such registration or qualification in effect in such jurisdiction;
provided, however, that Company shall not be required to qualify to do business
in, or consent to general service of process in, any jurisdiction by reason of
this provision.
(c) The registration rights set forth in this Section 9
are subject to the condition that Parent shall provide Company with such
information with respect to Parent's Registrable Securities, the plans for the
distribution thereof, and such other information with respect to Parent as, in
the reasonable judgment of counsel for Company, is necessary to enable Company
to include in such registration statement all material facts required to be
disclosed with respect to a registration thereunder.
(d) If Company's securities of the same type as the
Registrable Securities are then authorized for quotation or trading or listing
on the New York Stock Exchange, The Nasdaq National Market, or any other
securities exchange or automated quotations system, Company, upon the request of
Parent, shall promptly file an application, if required, to authorize for
quotation, trading or listing the shares of Registrable Securities on such
exchange or system and will use its reasonable best efforts to obtain approval,
if required, of such quotation, trading or listing as soon as practicable.
(e) A registration effected under this Section 9 shall be
effected at Company's expense, except for underwriting discounts and commissions
and the fees and the expenses of counsel to Parent, and Company shall provide to
the underwriters such documentation (including certificates, opinions of counsel
and "comfort" letters from auditors) as are customary in connection with
underwritten public offerings as such underwriters may reasonably require. In
connection with any such registration, the parties agree (i) to indemnify each
other and the underwriters in the customary manner and (ii) to enter into an
underwriting agreement in form and substance customary to transactions of this
type with the Manager and the other underwriters participating in such offering.
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10. Adjustment Upon Changes in Capitalization.
(a) In the event of any change in Company Common Stock by
reason of stock dividends, splitups, mergers (other than the Merger),
recapitalizations, combinations, exchange of shares or the like, the type and
number of shares or securities subject to the Company Option, and the purchase
price per share provided in Section 1, shall be adjusted appropriately, and
proper provision shall be made in the agreements governing such transaction so
that Parent shall receive, upon exercise of the Company Option, the number and
class of shares or other securities or property that Parent would have received
in respect of the Company Common Stock if the Company Option had been exercised
immediately prior to such event or the record date therefor, as applicable.
(b) In the event that Company shall enter in an agreement:
(i) to consolidate with or merge into any person, other than Parent or one of
its subsidiaries, and Company shall not be the continuing or surviving
corporation of such consolidation or merger; (ii) to permit any person, other
than Parent or one of its subsidiaries, to merge into Company and Company shall
be the continuing or surviving corporation, but, in connection with such merger,
the then-outstanding shares of Company Common Stock shall be changed into or
exchanged for stock or other securities of Company or any other person or cash
or any other property or the outstanding shares of Company Common Stock
immediately prior to such merger shall after such merger represent less than 50%
of the outstanding shares and share equivalents of the merged company; or (iii)
to sell or otherwise transfer all or substantially all of its assets to any
person, other than Parent or one of its subsidiaries, then, and in each such
case, the agreement governing such transaction shall make proper provisions so
that upon the consummation of any such transaction and upon the terms and
conditions set forth herein, Parent shall receive for each Company Share with
respect to which the Company Option has not been exercised an amount of
consideration in the form of and equal to the per share amount of consideration
that would be received by the holder of one share of Company Common Stock less
the Exercise Price (and, in the event of an election or similar arrangement with
respect to the type of consideration to be received by the holders of Company
Common Stock, subject to the foregoing, proper provision shall be made so that
the holder of the Company Option would have the same election or similar rights
as would the holder of the number of shares of Company Common Stock for which
the Company Option is then exercisable).
11. Restrictive Legends. Each certificate representing shares of
Company Common Stock issued to Parent hereunder shall include a legend in
substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY BE
REOFFERED OR SOLD ONLY IF SO REGISTERED OR IF AN EXEMPTION FROM SUCH
REGISTRATION IS AVAILABLE. SUCH SECURITIES ARE ALSO SUBJECT TO
ADDITIONAL RESTRICTIONS ON TRANSFER AS SET FORTH IN THE STOCK OPTION
AGREEMENT, DATED AS OF NOVEMBER 8, 2000, A COPY OF WHICH MAY BE OBTAINED
FROM THE ISSUER.
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12. Binding Effect; No Assignment. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns. Except as expressly provided for in this
Agreement, neither this agreement nor the rights or the obligations of either
party hereto are assignable, except by operation of law, or with the written
consent of the other party. Nothing contained in this Agreement, express or
implied, is intended to confer upon any person other than the parties hereto and
their respective permitted assigns any rights or remedies of any nature
whatsoever by reason of this Agreement. Any Restricted Shares sold by Parent in
compliance with the provisions of Section 9 shall, upon consummation of such
sale, be free of the restrictions imposed with respect to such shares by this
Agreement, unless and until Parent shall repurchase or otherwise become the
beneficial owner of such shares, and any transferee of such shares shall not be
entitled to the rights of Parent. Certificates representing shares sold in a
registered public offering pursuant to Section 9 shall not be required to bear
the legend set forth in Section 11.
13. Specific Performance. The parties recognize and agree that if
for any reason any of the provisions of this Agreement are not performed in
accordance with their specific terms or are otherwise breached, immediate and
irreparable harm or injury would be caused for which money damages would not be
an adequate remedy. Accordingly, each party agrees that, in addition to other
remedies, the other party shall be entitled to an injunction restraining any
violation or threatened violation of the provisions of this Agreement. In the
event that any action should be brought in equity to enforce the provisions of
this Agreement, neither party will allege, and each party hereby waives the
defense, that there is adequate remedy at law.
14. Entire Agreement. This Agreement and the Reorganization
Agreement (including the Company Disclosure Schedule and the Parent Disclosure
Schedule relating thereto) constitute the entire agreement among the parties
with respect to the subject matter hereof and supersede all other prior
agreements and understandings, both written and oral, among the parties or any
of them with respect to the subject matter hereof.
15. Further Assurance. Each party will execute and deliver all
such further documents and instruments and take all such further action as may
be necessary in order to consummate the transactions contemplated hereby.
16. Validity. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of the other
provisions of this Agreement, which shall remain in full force and effect. In
the event any court or other competent authority holds any provision of this
Agreement to be null, void or unenforceable, the parties hereto shall negotiate
in good faith the execution and delivery of an amendment to this Agreement in
order, as nearly as possible, to effectuate, to the extent permitted by law, the
intent of the parties hereto with respect to such provision. Each party agrees
that, should any court or other competent authority hold any provision of this
Agreement or part hereof to be null, void or unenforceable, or order any party
to take any action inconsistent herewith, or not take any action required
herein, the other party shall not be entitled to specific performance of such
provision or part hereof or to any other remedy, including but not limited to
money damages, for breach hereof or of any other provision of this Agreement or
part hereof as the result of such holding or order.
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17. Notices. Any notice or communication required or permitted
hereunder shall be in writing and either delivered personally, telegraphed or
telecopied or sent by certified or registered mail, postage prepaid, and shall
be deemed to be given, dated and received when so delivered personally,
telegraphed or telecopied or, if mailed, five business days after the date of
mailing to the following address or telecopy number, or to such other address or
addresses as such person may subsequently designate by notice given hereunder.
(a) if to Parent or Merger Sub, to:
Cisco Systems, Inc.
170 West Tasman Drive
San Jose, CA 95134-1706
Attention: Senior Vice President, Legal and
Government Affairs
Facsimile No.: (408) 526-5925
Telephone No.: (408) 526-8252
with a copy to:
Brobeck, Phleger & Harrison LLP
Two Embarcadero Place
2200 Geng Road
Palo Alto, CA 94303
Attention: Therese A. Mrozek, Esq.
Facsimile No.: (650) 496-2885
Telephone No.: (650) 424-0160
(b) if to Company, to:
Active Voice Corporation
2901 Third Avenue, Suite 500
Seattle, Washington 98121-9800
Attention: Chief Executive Officer
Facsimile No.: (206) 441-4784
Telephone No.: (206) 441-4700
with a copy to:
Gray Cary Ware & Freidenrich LLP
999 Third Avenue, Suite 4003
Seattle, WA 98104-4099
Attention: John M. Steel, Esq.
Facsimile No.: (206) 839-4801
Telephone No.: (206) 839-4824
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18. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California applicable to
agreements made and to be performed entirely within such State without regard to
any applicable conflicts of law rules.
19. Descriptive Headings. The descriptive headings herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
20. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which,
taken together, shall constitute one and the same instrument.
21. Expenses. Except as otherwise expressly provided herein or in
the Reorganization Agreement, all costs and expenses incurred in connection with
the transactions contemplated by this Agreement shall be paid by the party
incurring such expenses.
22. Amendments; Waiver. This Agreement may be amended by the
parties hereto and the terms and conditions hereof may be waived only by an
instrument in writing signed on behalf of each of the parties hereto, or, in the
case of a waiver, by an instrument signed on behalf of the party waiving
compliance.
[SIGNATURE PAGE FOLLOWS.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their respective duly authorized officers as of the date first
above written.
CISCO SYSTEMS, INC.
By:
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Name:
Title:
ACTIVE VOICE CORPORATION
By:
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Name:
Title:
[SIGNATURE PAGE TO STOCK OPTION AGREEMENT]
