<PAGE>
As filed with the Securities and Exchange Commission on February 13, 1997
Registration No. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ACTIVE VOICE CORPORATION
(Exact name of registrant as specified in its charter)
<TABLE>
<CAPTION>
<S> <C> <C>
Washington 3661 91-1235111
(State or Other Jurisdiction of (Primary Standard Industrial (I.R.S. Employer Identification No.)
Incorporation or Organization) Classification Code Number)
</TABLE>
2901 Third Avenue, Suite 500
Seattle, Washington 98121-9800
(206) 441-4700
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
--------------
Active Voice Corporation
1996 Stock Option Plan
--------------
Jose S. David, Chief Financial Officer
2901 Third Avenue, Suite 500
Seattle, Washington 98121-9800
(206) 441-4700
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
--------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
Title of Each Class of Amount to be Proposed Maximum Amount of
Securities to Be Registered Registered (1) Aggregate Offering Price (2) Registration Fee
- --------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Common Stock 230,000 shares $3,220,000 $976
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
</TABLE>
(1) Plus (i) an indeterminate number of shares of Common Stock that may become
issuable under the Plan as a result of the adjustment provisions therein,
and (ii) if any interests in the Plan constitute separate securities
required to be registered under the Securities Act of 1933, then, pursuant
to Rule 416(c), an indeterminate amount of such interests to be offered or
sold pursuant to the Plan.
(2) Computed pursuant to Rules 457(c) and 457(h) based on an offering price of
$14.00 per share (the average of the high and low sales prices reported by
the Nasdaq Stock Market on February 7, 1997) for the shares issuable upon
exercise of options granted or to be granted under the Plan.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents are incorporated in this Registration Statement by
reference:
1. The Registrant's Annual Report on Form 10-K for its fiscal
year ended March 31, 1996, filed by the Registrant with the Securities
and Exchange Commission pursuant to the Securities Exchange Act of
1934, as amended (the "Exchange Act");
2. All other reports filed by the Registrant with the
Securities and Exchange Commission pursuant to Section 13(a) or 15(d)
of the Exchange Act since March 31, 1996; and
3. The description of the Registrant's Common Stock set forth
in the Registration Statement on Form 8-A filed by the Registrant with
the Securities and Exchange Commission on November 4, 1993, under
Section 12(g) of the Exchange Act.
All documents filed by the Registrant with the Securities and Exchange
Commission after the date of this Registration Statement pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, before the filing of a
post-effective amendment that indicates that all securities offered pursuant to
this Registration Statement have been sold or that deregisters all securities
then remaining unsold, shall also be deemed to be incorporated by reference in
this Registration Statement and to be part hereof from the respective dates of
filing of such documents.
Any statement incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this Registration Statement to the extent
that a statement contained herein or in any other subsequently filed document
that also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not required.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
None.
II-1
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Sections 23B.08.500 through 23B.08.600 of the Washington Business
Corporation Act authorize a court to award, or a corporation's board of
directors to grant, indemnification to directors and officers on terms
sufficiently broad to permit indemnification under certain circumstances for
liabilities arising under the Securities Act of 1933, as amended. Section 5.5
of the Registrant's Restated Articles of Incorporation and Article 10 of the
Registrant's Restated Bylaws provide for indemnification of the Registrant's
directors, officers, employees and agents to the maximum extent permitted by
Washington law. The directors and officers of the Registrant also may be
indemnified against liability they may incur for serving in that capacity
pursuant to one or more liability insurance policies maintained by the
Registrant for such purpose. The Registrant currently maintains a policy of
directors' and officers' liability insurance with an aggregate coverage limit
of $1 million.
Section 23B.08.320 of the Washington Business Corporation Act authorizes a
corporation to limit a director's liability to the corporation or its
shareholders for monetary damages for acts or omissions as a director, except in
certain circumstances involving intentional misconduct, self-dealing or illegal
corporate loans or distributions, or any transaction from which the director
personally receives a benefit in money, property or services to which the
director is not legally entitled. Section 5.5 of the Registrant's Restated
Articles of Incorporation contains provisions implementing, to the fullest
extent permitted by Washington law, such limitations on a director's liability
to the Registrant and its shareholders.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
5 Opinion of Graham & James LLP
23.1 Consent of Graham & James LLP
23.2 Consent of Ernst & Young LLP, Independent Auditors
24 Powers of Attorney
99.1 Active Voice Corporation 1996 Stock Option Plan
99.2 Form of Stock Option Agreement
II-2
<PAGE>
ITEM 9. UNDERTAKINGS
(a) 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;
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof) that,
individually or in the aggregate, represent a fundamental change
in the information set forth in the Registration Statement; and
(iii) 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;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated
by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new Registration Statement relating to the securities offered
therein, and the offering of the 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 that remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act that is incorporated by reference in the Registration Statement shall be
deemed to be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial BONA FIDE offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act of 1933 and is, therefore, unenforceable. If a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless, in
the opinion of its counsel, the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question of whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe it meets all 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 Seattle, State of Washington, on February 13, 1997.
ACTIVE VOICE CORPORATION
By /s/ Jose S. David
----------------------------------
Jose S. David
Chief Financial Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Robert L. Richmond and Jose S. David, and each of them severally, such person's
true and lawful attorneys-in-fact and agents, with full power to act without the
other and with full power of substitution and resubstitution, to execute in the
name and on behalf of such person, individually and in each capacity stated
below, any and all amendments and post-effective amendments to this Registration
Statement, any and all supplements hereto, and any and all other instruments
necessary or incidental in connection herewith, and to file the same with the
Securities and Exchange Commission.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated below.
SIGNATURE TITLE DATE
/s/ Robert L. Richmond Chairman of the Board and
- ------------------------- Chief Executive February 13, 1997
Robert L. Richmond Officer (Principal
Executive Officer)
/s/ Robert C. Greco Vice President--Product
- ------------------------- Development, Secretary, February 13, 1997
Robert C. Greco Treasurer and Director
/s/ Jose S. David Chief Financial Officer
- ------------------------- (Principal Financial and
Jose S. David Accounting Officer) February 13, 1997
/s/ Tom A. Alberg
- ------------------------- Director February 13, 1997
Tom A. Alberg
/s/ Harold H. Kawaguchi
- ------------------------- Director February 13, 1997
Harold H. Kawaguchi
II-4
<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
5 Opinion of Graham & James LLP
23.1 Consent of Graham & James LLP (included in Exhibit 5)
23.2 Consent of Ernst & Young LLP, Independent Auditors
24 Powers of Attorney (included on signature page)
99.1 Active Voice Corporation 1996 Stock Option Plan
99.2 Form of Stock Option Agreement
<PAGE>
Exhibit 5
February 13, 1997
Active Voice Corporation
Suite 500
2901 Third Avenue
Seattle, Washington 98121
RE: FORM S-8 REGISTRATION STATEMENT
Ladies and Gentlemen:
We have acted as counsel to Active Voice Corporation (the "Company") in
connection with the preparation of its Registration Statement on Form S-8 (the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Act"), which the Company will file with the Securities and Exchange Commission,
with respect to an aggregate of 230,000 shares of Common Stock of the Company
(the "Shares") issuable upon exercise of options granted or to be granted under
the Company's 1996 Stock Option Plan (the "Plan").
We have examined the Registration Statement and such other documents and records
as we have deemed relevant and necessary for the purpose of this opinion.
Based upon and subject to the foregoing, we are of the opinion that the Shares
issuable under the Plan will, upon due execution by the Company and the
registration by its registrar of the certificates for the Shares and issuance
thereof by the Company and receipt by the Company of the consideration therefor
in accordance with the terms of the Plan, be validly issued, fully paid and
nonassessable.
<PAGE>
Active Voice Corporation
February 13, 1997
Page 2
- --------------------------------------------------------------------------------
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not admit that we are in
the category of persons whose consent is required under Section 7 of the Act.
Very truly yours,
/s/ Frank C. Woodruff
Frank C. Woodruff
of
GRAHAM & JAMES LLP/RIDDELL WILLIAMS P.S.
for
GRAHAM & JAMES LLP
<PAGE>
Exhibit 23.2
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the registration of 230,000 shares of common stock for
the Active Voice Corporation 1996 Stock Option Plan of our report dated
May 3, 1996, with respect to the consolidated financial statements and schedule
of Active Voice Corporation included in its Annual Report (Form 10-K) for the
year ended March 31, 1996, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Seattle, Washington
February 13, 1997
<PAGE>
Exhibit 99.1
ACTIVE VOICE CORPORATION
1996 STOCK OPTION PLAN
<PAGE>
TABLE OF CONTENTS
PAGE
ARTICLE 1 PURPOSE AND EFFECTIVENESS . . . . . . . . . . . . . . . . . . . 1
1.1 Purpose. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Effective Date; Notification and Approval Requirements . . . . 1
ARTICLE 2 DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE 3 ADMINISTRATION. . . . . . . . . . . . . . . . . . . . . . . . . 4
3.1 Committee. . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3.2 Appointment of Committee . . . . . . . . . . . . . . . . . . . 4
3.3 Powers; Regulations. . . . . . . . . . . . . . . . . . . . . . 4
3.4 Limits on Authority. . . . . . . . . . . . . . . . . . . . . . 5
3.5 Exercise of Authority. . . . . . . . . . . . . . . . . . . . . 5
ARTICLE 4 SHARES SUBJECT TO THE PLAN. . . . . . . . . . . . . . . . . . . 5
4.1 Number of Shares . . . . . . . . . . . . . . . . . . . . . . . 5
4.2 Adjustments. . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE 5 ELIGIBILITY . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE 6 STOCK OPTIONS . . . . . . . . . . . . . . . . . . . . . . . . . 6
6.1 Grant of Options . . . . . . . . . . . . . . . . . . . . . . . 6
6.2 Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . 6
6.3 Limitations on Incentive Stock Options . . . . . . . . . . . . 6
6.4 Term of Options. . . . . . . . . . . . . . . . . . . . . . . . 7
6.5 Option Agreement . . . . . . . . . . . . . . . . . . . . . . . 7
6.6 Exercise of Options. . . . . . . . . . . . . . . . . . . . . . 7
6.7 Legends. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
6.8 Nontransferability . . . . . . . . . . . . . . . . . . . . . . 8
6.9 Authority of Chief Executive Officer to Grant Options. . . . . 8
ARTICLE 7 GENERAL PROVISIONS. . . . . . . . . . . . . . . . . . . . . . . 8
7.1 Termination of Service . . . . . . . . . . . . . . . . . . . . 8
7.2 Certain Events . . . . . . . . . . . . . . . . . . . . . . . . 9
7.3 Right to Terminate Service . . . . . . . . . . . . . . . . . . 10
7.4 Nonalienation of Benefits. . . . . . . . . . . . . . . . . . . 10
7.5 Termination and Amendment. . . . . . . . . . . . . . . . . . . 11
7.6 Government and Other Regulations . . . . . . . . . . . . . . . 11
7.7 Withholding. . . . . . . . . . . . . . . . . . . . . . . . . . 11
7.8 Separability . . . . . . . . . . . . . . . . . . . . . . . . . 11
7.9 Plan Not Exclusive . . . . . . . . . . . . . . . . . . . . . . 12
7.10 Exclusion from Pension and Profit-Sharing Computation. . . . . 12
7.11 No Shareholder Rights. . . . . . . . . . . . . . . . . . . . . 12
7.12 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . 12
7.13 Company's Rights . . . . . . . . . . . . . . . . . . . . . . . 12
-i-
<PAGE>
ACTIVE VOICE CORPORATION
1996 STOCK OPTION PLAN
ARTICLE 1
PURPOSE AND EFFECTIVENESS
1.1 PURPOSE. The purpose of the 1996 Stock Option Plan (the "Plan") is
to provide a method by which selected individuals performing services for Active
Voice Corporation, a Washington corporation (the "Company"), or any of its
Affiliates, may be offered an opportunity to invest in capital stock of the
Company, thereby increasing their personal interest in the growth and success of
the Company and its Affiliates.
1.2 EFFECTIVE DATE; NOTIFICATION AND APPROVAL REQUIREMENTS. The Plan
shall be effective at the time specified in the resolutions of the Board
adopting the Plan (the "Effective Date"). Issuance of Incentive Stock Options
within twelve (12) months after the Effective Date shall be subject to the
approval of the Plan by the shareholders of the Company at a duly held meeting
of shareholders at which a majority of all outstanding voting stock of the
Company is represented in person or by proxy. The approval required shall be a
majority of the votes cast on the proposal to approve the Plan. Such approval
may also be provided pursuant to a written consent in lieu of such meeting. No
Incentive Stock Option shall be exercisable until this approval requirement has
been satisfied. If this requirement is not satisfied within twelve (12) months
after the Effective Date, then (a) no Incentive Stock Options may thereafter be
granted, and (b) each Incentive Stock Option granted prior thereto shall
automatically be deemed to be a Nonqualified Stock Option (except to the extent
its Option Agreement expressly provides otherwise).
ARTICLE 2
DEFINITIONS
Capitalized terms in the Plan shall have the following meanings (whether
used in the singular or plural):
"Affiliate" of the Company means any corporation, partnership or other
entity which, through one or more intermediaries, directly or indirectly
controls, is controlled by, or is under common control with the Company.
"Approved Transaction" means any of the following transactions consummated
with the approval, recommendation or authorization of the Board:
(a) any merger, consolidation, statutory or contractual share
exchange, or other transaction to which the Company or any of its
Affiliates or shareholders is a party if, immediately following the
transaction, the persons who held Common Stock (or securities convertible
into Common Stock) immediately prior to the transaction hold less than a
majority of the combined Common Equity of the Company (or if, pursuant to
the transaction, shares of Common Stock are changed or converted into or
exchanged for, in whole or part, securities of another corporation or
entity, the combined Common Equity of that corporation or entity);
-1-
<PAGE>
(b) any liquidation or dissolution of the Company; and
(c) any sale, lease, exchange or other transfer not in the
ordinary course of business (in one transaction or a series of related
transactions) of all, or substantially all, of the assets of the
Company.
"Board" means the Board of Directors of the Company.
"Cause" means, in connection with the termination of the Service of a
Holder (a) repeated failures to carry out directions of the Board or the
Holder's supervisors with regard to material matters reasonably consistent with
the Holder's duties; (b) knowing violation of a state or federal law involving
the commission of a crime against the Company or any of its Affiliates or a
felony; (c) any misrepresentation, deception, fraud or dishonesty that is
materially injurious to the Company or any of its Affiliates; and (d) any act or
omission in willful disregard of the interests of the Company or any of its
Affiliates that substantially impairs the goodwill, business or reputation of
the Company or any of its Affiliates, including but not limited to any violation
of any proprietary rights or confidentiality agreement between the Company and
the Holder.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, or any successor statute or statutes thereto. Reference to any specific
section of the Code shall include any successor section.
"Committee" is defined in Section 3.1.
"Common Equity" means the capital stock of a corporation (or corresponding
securities of a noncorporate entity) ordinarily, and apart from rights accruing
under special circumstances, having the right to vote in an election for
directors (or for members of the governing body of the noncorporate entity).
"Common Stock" means the Common Stock, no par value, of the Company.
"Company" is defined in Section 1.1.
"Continuing Option" is defined in Section 7.2(b)(v).
"Control Purchase" means any transaction (or series of related
transactions), consummated without the approval, recommendation or authorization
of the Board, in which any person, corporation or other entity (including any
"person" as defined in Section 13(d)(3) or Section 14(d)(2) of the Exchange Act)
purchases any Common Stock (or securities convertible into Common Stock),
pursuant to a tender offer or a request or invitation for tenders (as those
terms are defined in Section 14(d)(1) of the Exchange Act) or otherwise, and
thereafter is the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act) of securities of the Company representing at least twenty-five
percent (25%) of the combined Common Equity of the Company.
"Disability" means the inability to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment
that can be expected to result in death or that has lasted or can be expected to
last for a continuous period of not less than twelve (12) months.
"Effective Date" is defined in Section 1.2.
"Eligible Person" is defined in Article 5.
-2-
<PAGE>
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time, or any successor statute or statutes thereto. Reference to any
specific section of the Exchange Act shall include any successor section.
"Executive Officer" means any employee of the Company who is an "officer"
within the meaning of Rule 16a-1(f) of the Exchange Act, as amended from time to
time, or any successor rule thereto.
"Fair Market Value" for the Common Stock (or any other security) on any day
means, if the Common Stock (or other security) is publicly traded, the last
sales price (or, if no last sales price is reported, the average of the high bid
and low asked prices) for a share of Common Stock (or unit of the other
security) on that day (or, if that day is not a trading day, on the next
preceding trading day), as reported by the principal exchange on which the
Common Stock (or other security) is listed, or, if the Common Stock (or other
security) is publicly traded but not listed on an exchange, as reported by The
Nasdaq Stock Market, or, if such prices or quotations are not reported by The
Nasdaq Stock Market, as reported by any other available source of prices or
quotations selected by the Committee. If the Common Stock (or other security) is
not publicly traded, or if the Fair Market Value is not determinable by any of
the foregoing means, the Fair Market Value on any day shall be determined in
good faith by the Committee on the basis of such considerations as the Committee
determines to be appropriate.
"Good Reason" means, with respect to a Holder, the occurrence in connection
with an Approved Transaction, without the Holder's express written consent, of
one of the following events or conditions:
(a) A material reduction in the level of the Holder's
responsibilities in comparison to the level thereof at the time of the
Approved Transaction;
(b) The assignment to the Holder of a job title that is not
of comparable prestige and status as the Holder's job title at the
time of the Approved Transaction;
(c) The assignment to the Holder of any duties inconsistent
with the Holder's position at the time of the Approved Transaction,
other than pursuant to the Holder's promotion;
(d) A material reduction in the Holder's salary level;
(e) A material reduction in the overall level of employee
benefits or perquisites available to the Holder at the time of the
Approved Transaction, or the Holder's right to participate therein,
unless such reduction is nondiscriminatory as to the Holder;
(f) Requiring the Holder to be based anywhere more than
fifty (50) miles from the business location to which the Holder
normally reported for work at the time of the Approved Transaction,
other than for required business travel not significantly greater than
the Holder's business travel obligations at the time of the Approved
Transaction; or
(g) Any of the foregoing events and conditions occurring
prior to the Approved Transaction which the Holder reasonably
demonstrates was at the request of a third party or otherwise arose in
connection with or in anticipation of the Approved Transaction.
-3-
<PAGE>
"Holder" means an Eligible Person who has received an Option or, if rights
under the Option continue following the death of the Eligible Person or are
transferred in a manner permitted by Section 6.8, the person who succeeds to
those rights by will or by the laws of descent and distribution or by such
transfer.
"Incentive Stock Option" means an Option that is an incentive stock option
within the meaning of Section 422 of the Code.
"Nonqualified Stock Option" means an Option that is not an Incentive Stock
Option.
"Option" means an option with respect to shares of Common Stock awarded
pursuant to Article 6.
"Option Agreement" is defined in Section 6.5.
"Plan" is defined in Section 1.1.
"Securities Act" means the Securities Act of 1933, as amended from time to
time, or any successor statute or statutes thereto. Reference to any specific
section of the Securities Act shall include any successor section.
"Service" means the performance of services on a periodic basis for the
Company or any of its Affiliates in the capacity of an employee, a nonemployee
member of a board of directors or other governing body, or an independent
consultant or advisor.
"Transaction Date" is defined in Section 7.2(b)(i).
"10% Shareholder" means a person who owns (or is considered as owning
within the meaning of Section 424 of the Code) stock possessing more than 10% of
the total combined voting power of all classes of capital stock of the Company.
ARTICLE 3
ADMINISTRATION
3.1 COMMITTEE. The Plan shall be administered by the Board unless the
Board appoints a separate committee of the Board to administer the Plan pursuant
to Section 3.2 (the Board, or such committee, if it is administering the Plan,
will be referred to as the "Committee"). The Committee shall select one of its
members as its chairman and shall hold its meetings at such times and places as
it shall deem advisable. A majority of its members shall constitute a quorum and
all determinations shall be made by a majority of that quorum. Any determination
reduced to writing and signed by all of the members of the Committee shall be as
effective as if it had been made by a majority vote at a meeting duly called and
held.
3.2 APPOINTMENT OF COMMITTEE. The Board may appoint a committee
consisting of two or more of its members to administer the Plan. Once appointed,
the committee shall continue to serve until otherwise directed by the Board.
From time to time the Board may increase the size of the committee and appoint
additional members, remove members (with or without cause) and appoint new
members in their place, fill vacancies however caused, and/or remove all members
of the committee and thereafter directly administer the Plan.
3.3 POWERS; REGULATIONS. The Committee shall have full power and
authority, subject only to the provisions of the Plan (a) to administer or
supervise the administration of the Plan; (b) to interpret the provisions of the
Plan and the Option Agreements; (c) to correct any defect,
-4-
<PAGE>
supply any information and reconcile any inconsistency in such manner and to
such extent as it determines to be necessary or advisable to carry out the
purpose of the Plan; and (d) to take such other actions in connection with the
Plan as it determines to be necessary or advisable. The Committee is authorized
to adopt, amend and rescind such rules, regulations and procedures not
inconsistent with the provisions of the Plan as it determines to be necessary or
advisable for the proper administration of the Plan, and each Option shall be
subject to all such rules, regulations and procedures (whether the Option was
granted before or after promulgation thereof). Without limiting the authority of
the Committee to interpret the provisions of the Plan, the Committee shall have
the right to determine that a transaction (or series of related transactions) is
not a Control Purchase, even though literally included within the definition of
that term, if the Committee determines that the transaction (or series of
related transactions) does not have the effect of significantly changing or
influencing the control of the Company on a permanent basis.
3.4 LIMITS ON AUTHORITY. Exercise by the Committee of its authority shall
be consistent with the intent that (a) all Incentive Stock Options be qualified
under the terms of Section 422 of the Code, and (b) the Plan be administered in
a manner so that, to the extent possible, the grant of Options and all other
transactions with respect to the Plan, to Options and to any Common Stock
acquired upon exercise of Options, shall be exempt from the operation of
Section 16(b) of the Exchange Act.
3.5 EXERCISE OF AUTHORITY. Each action and determination made or taken by
the Committee, including but not limited to any interpretation of the Plan and
the Option Agreements, shall be final, conclusive and binding for all purposes
and upon all persons. No member of the Committee shall be liable for any action
or determination made or taken by the member or the Committee in good faith.
ARTICLE 4
SHARES SUBJECT TO THE PLAN
4.1 NUMBER OF SHARES. Subject to the provisions of this Article 4, the
maximum number of shares of Common Stock for which Options may be granted during
the term of the Plan shall be two hundred thirty thousand (230,000). Shares of
Common Stock will be made available from the authorized but unissued shares of
the Company or from shares reacquired by the Company. If an Option terminates
for any reason without having been exercised in full, the shares of Common Stock
for which the Option has not been exercised shall again be available for
purposes of the Plan.
4.2 ADJUSTMENTS. If the Company subdivides its outstanding shares of
Common Stock into a greater number of shares (by stock dividend, stock split,
reclassification or otherwise) or combines its outstanding shares of Common
Stock into a smaller number of shares (by reverse stock split, reclassification
or otherwise), or if the Committee determines that any stock dividend,
extraordinary cash dividend, reclassification, recapitalization, reorganization,
split-up, spin-off, combination, exchange of shares, rights offering, or other
transaction or event that is not an Approved Transaction or Control Purchase
affects the Common Stock such that an adjustment is required in order to
preserve the benefits or potential benefits intended to be made available under
the Plan, then the Committee shall, in such manner as it determines to be
equitable and appropriate, adjust any or all of (a) the number of shares of
Common Stock (or number and kind of other securities or property) for which, and
the time or times when, outstanding Options may thereafter be exercised; (b) the
purchase price for the shares (or other
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securities or property) under outstanding Options; and (c) the number of shares
of Common Stock (or number and kind of other securities or property) for which
Options may thereafter be granted. In connection with any adjustment made
pursuant to this Section 4.2, the Committee may, if deemed equitable and
appropriate, provide for a cash payment to be made to the Holder of an Option,
in cancellation of the Option, of such amount as the Committee determines
represents the value the Option would then have if it were exercisable for all
of the shares under the Option.
ARTICLE 5
ELIGIBILITY
The persons eligible to participate in the Plan and to receive Options
("Eligible Persons") shall be persons performing Service for the Company or any
of its Affiliates.
ARTICLE 6
STOCK OPTIONS
6.1 GRANT OF OPTIONS. The Committee shall from time to time determine
(a) the Eligible Persons to whom Options are to be granted; (b) the number of
shares of Common Stock for which the Options are exercisable and the purchase
price of such shares; (c) whether the Options are Incentive Stock Options or
Nonqualified Stock Option; and (d) all of the other terms and conditions (which
need not be identical) of the Options; PROVIDED, HOWEVER, that all such
determinations shall be subject to the express limitations of the Plan.
6.2 PURCHASE PRICE. The price at which shares of Common Stock may be
purchased upon exercise of an Option may be more than, less than or equal to the
Fair Market Value of the shares on the date the Option is granted; PROVIDED,
HOWEVER, that the purchase price of each share of Common Stock under an
Incentive Stock Option shall be (a) at least 110% of the Fair Market Value of
such share on the date of grant of the Option, if it is granted to a
10% Shareholder, and (b) at least 100% of the Fair Market Value of such share on
the date of grant of the Option, if it is granted to any other Eligible Person.
6.3 LIMITATIONS ON INCENTIVE STOCK OPTIONS.
(a) GRANTS ONLY TO EMPLOYEES. Incentive Stock Options may only be
granted to Eligible Persons who are employees of the Company or an Affiliate
that constitutes a "parent corporation" or a "subsidiary corporation" within the
meaning of Section 424 of the Code.
(b) LIMITATION ON SHARES. The aggregate Fair Market Value of the
shares of Common Stock for which, during any calendar year, one or more
Incentive Stock Options under the Plan (and/or one or more options under any
other plan maintained by the Company or any of its Affiliates for the granting
of options intended to qualify under Section 422 of the Code) become exercisable
for the first time by a Holder shall not exceed $100,000 (said value to be
determined as of the respective dates on which the options are granted to the
Holder). If (a) a Holder holds one or more Incentive Stock Options under the
Plan (and/or one or more options under any other plan maintained by the Company
or any of its Affiliates for the granting of options intended to qualify under
Section 422 of the Code), and (b) the aggregate Fair Market Value of the shares
of Common Stock for which, during any calendar year, such options become
exercisable for the first time exceeds $100,000 (said value to be determined as
provided above),
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then such option or options are intended to qualify under Section 422 of the
Code with respect to the maximum number of such shares as can, in light of the
foregoing limitation, be so qualified, with the shares so qualified to be the
shares under the option or options earliest granted to the Holder. If an Option
that would otherwise qualify as an Incentive Stock Option becomes exercisable
for the first time in any calendar year for shares of Common Stock that would
cause such aggregate Fair Market Value to exceed $100,000, then the portion of
the Option in respect of such shares shall be deemed to be a Nonqualified Stock
Option.
6.4 TERM OF OPTIONS. Subject to the provisions of the Plan with respect
to termination of Options upon or following death, Disability or other
termination of Service, the Committee shall determine the term of each Option,
which term shall not be more than (a) five (5) years from the date of grant in
the case of an Incentive Stock Option granted to a 10% Shareholder, and (b) ten
(10) years from the date of grant in the case of any other Incentive Stock
Option.
6.5 OPTION AGREEMENT. Each Option shall be evidenced by an agreement (the
"Option Agreement") containing the terms and conditions of the Option as
determined by the Committee. Each grantee of an Option shall be notified
reasonably promptly of the grant, an Option Agreement shall be executed and
delivered by the Company to the grantee within sixty (60) days after the date
the Committee approves the grant, and the Committee may terminate the grant if
the Option Agreement is not signed by the grantee and delivered to the Company
within sixty (60) days after it is delivered to the grantee. An Option Agreement
may contain (but shall not be required to contain) such terms and conditions as
the Committee determines to be necessary or appropriate to ensure that the
penalty provisions of Section 4999 of the Code will not apply to any stock
received by the Holder from the Company. An Option Agreement may be amended from
time to time pursuant to Section 7.5(b).
6.6 EXERCISE OF OPTIONS.
(a) TIME EXERCISABLE. An Option shall become and remain exercisable
to the extent provided in its Option Agreement and in the Plan. If an Option is
scheduled to become exercisable on one or more dates specified in its Option
Agreement, and its Holder has a leave of absence without pay, such date or dates
shall be postponed for a period equal to the duration of the leave unless the
Committee determines otherwise.
(b) MANNER OF EXERCISE. An Option shall be exercised by written
notice to the Company in compliance with the terms and conditions of its Option
Agreement and such procedures for exercise of Options as the Committee may adopt
from time to time. The method or methods of payment of the purchase price of the
shares to be purchased upon exercise of the Option and of any amounts required
by Section 7.7 shall be determined by the Committee and set forth in the Option
Agreement for the Option. Such method or methods may consist of (i) check for
United States funds, (ii) whole shares of Common Stock already owned by the
Holder, (iii) the delivery, together with a properly executed exercise notice,
of irrevocable instructions to a broker to deliver promptly to the Company the
amount of sale or loan proceeds required to pay the purchase price, (iv) any
combination of the foregoing methods of payment, or (v) such other consideration
and method of payment as may be permitted for the issuance of shares under
applicable securities and other laws. The Committee may specify a minimum number
of shares of Common Stock for which an Option must be exercised, but such
minimum shall not prevent exercise of an Option for the full number of shares
for which it is exercisable.
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(c) VALUE OF SHARES. Shares of Common Stock delivered in payment of
all or any part of the amounts payable upon exercise of an Option, and shares of
Common Stock withheld for such payment, shall be valued at their Fair Market
Value on the exercise date of the Option.
(d) ISSUANCE OF SHARES. The Company shall issue the shares of Common
Stock purchased under an Option as soon as practicable after the Option has been
duly exercised; PROVIDED, HOWEVER, that no fractional shares shall be issuable
under the Plan, and any fractional shares that would otherwise be issuable shall
be disregarded. Following exercise of an Incentive Stock Option, the Committee
shall cause the information statement required by Section 6039 of the Code to be
furnished to the Holder within the time and in the manner prescribed by law.
6.7 LEGENDS. Each certificate representing shares of Common Stock issued
upon exercise of an Option shall contain any legends that the Committee
determines to be necessary or appropriate. The Company may cause the transfer
agent for the Common Stock to place a stop transfer order with respect to such
shares.
6.8 NONTRANSFERABILITY. Unless the Committee determines otherwise at the
time an Option is granted (or at any later time when the Committee, by written
notice to the Holder, releases in whole or in part the restrictions under this
Section 6.8), an Option shall not be transferable other than by will or the laws
of descent and distribution and may be exercised during the lifetime of the
Holder thereof only by the Holder (or his or her court appointed legal
representative).
6.9 AUTHORITY OF CHIEF EXECUTIVE OFFICER TO GRANT OPTIONS. The Chief
Executive Officer of the Company shall have the authority to determine from time
to time (a) the Eligible Persons to whom Options are to be granted; (b) the
number of shares of Common Stock for which the Options are exercisable and the
purchase price of such shares; (c) whether the Options are Incentive Stock
Options or Nonqualified Stock Options; and (d) all of the other terms and
conditions (which need not be identical) of the Options; PROVIDED, HOWEVER, that
(i) the authority delegated to the Chief Executive Officer under this
Section 6.9 shall not exceed that of the Committee under the foregoing
provisions of this Article 6 and shall be subject to any limitations, in
addition to those specified in this Section 6.9, as may be specified by the
Board from time to time; (ii) the Chief Executive Officer may not grant any
Option to any person who is an Executive Officer or a director of the Company at
the time of the grant; (iii) the purchase price of each share of Common Stock
under an Option granted under this Section 6.9 shall not be less than the Fair
Market Value of such share on the date of grant of the Option; and (iv) the
Chief Executive Officer shall promptly provide a report to the Committee of each
person to whom an Option has been granted under this Section 6.9 and the
material terms and conditions of the Option.
ARTICLE 7
GENERAL PROVISIONS
The provisions of this Article 7 shall apply to all Options, except to the
extent that one or more Option Agreements expressly provide otherwise.
7.1 TERMINATION OF SERVICE.
(a) GENERAL. If a Holder's Service terminates without Cause prior to
the full exercise of an Option, then the Option shall thereafter be exercisable,
to the extent the Holder
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was entitled to exercise the Option on the date of such termination, for a
period of thirty (30) days following such termination (but not later than the
end of the term of the Option); PROVIDED, HOWEVER, that, if the Holder's Service
terminates by reason of death or Disability, the Option shall be exercisable for
a period of one (1) year following such termination (but not later than the end
of the term of the Option). At the end of such period, the Option shall
terminate.
(b) TERMINATION FOR CAUSE. If a Holder's Service is terminated for
Cause, then all Options held by the Holder shall immediately terminate.
Following termination of a Holder's Service, if the Holder engages in any act
that would have constituted Cause if the Holder had remained in the Service of
the Company or any of its Affiliates, then the Company shall be entitled to
terminate any Options held by the Holder.
(c) MISCELLANEOUS. The Committee may determine whether a leave of
absence of a Holder constitutes a termination of the Holder's Service; PROVIDED,
HOWEVER, that neither (i) a leave of absence, duly authorized in writing by the
Company or any of its Affiliates for military service or sickness, or for any
other purpose approved by the Company or any of its Affiliates, if the period of
the leave does not exceed ninety (90) days, nor (ii) a leave of absence in
excess of ninety (90) days, duly authorized in writing by the Company or any of
its Affiliates, provided the Holder's right to return to Service with the
Company or the Affiliate is guaranteed either by statute or by contract, shall
be deemed a termination of the Holder's Service. An Option shall not be affected
by any change in the Holder's Service so long as the Holder continues to be in
the Service of the Company or any of its Affiliates. If a Holder is in the
Service of an Affiliate of the Company that ceases to be an Affiliate, such
event shall, for purposes of any Option held by the Holder, be deemed to
constitute a termination of the Holder's Service for a reason other than death
or Disability.
7.2 CERTAIN EVENTS.
(a) CONTROL PURCHASE. Effective upon a Control Purchase, if the
Holder of an Option is in the Service of the Company or any of its Affiliates at
that time, the Option shall become exercisable for all of the shares under the
Option.
(b) APPROVED TRANSACTION. The following provisions shall apply if an
Approved Transaction occurs:
(i) The Company shall provide each Holder with notice of the
pendency of the Approved Transaction at least fifteen (15) days prior to the
expected date of consummation thereof (the date on which the Approved
Transaction is consummated will be referred to as the "Transaction Date").
(ii) Effective immediately prior to the Transaction Date, if the
Holder of an Option is in the Service of the Company or any of its Affiliates on
the Transaction Date and has been in Service for at least one (1) year, the
Option shall become exercisable for the number of shares for which it would have
been exercisable if the Holder had remained in Service until --
(A) the first (1st) anniversary of the Transaction
Date, if the Holder on the Transaction Date has been in Service for
less than two (2) years; or
(B) the second (2nd) anniversary of the Transaction
Date, if the Holder on the Transaction Date has been in Service for at
least two (2) years but less than three (3) years;
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and the Option shall become exercisable for all of the shares under the Option
if the Holder on the Transaction Date has been in Service for at least three (3)
years.
(iii) Following notice of the Approved Transaction, any
exercise of an Option may be contingent upon consummation of the Approved
Transaction, if so elected by the Holder in the notice of exercise, and shall be
contingent upon such consummation with respect to any portion of the Option that
will only become exercisable immediately prior to the Transaction Date.
(iv) Upon consummation of the Approved Transaction, all Options
shall terminate.
(v) Section 7.2(b)(ii) through Section 7.2(b)(iv) shall not
apply to an Option, if the Committee determines that the Company or another
party to the Approved Transaction has made equitable and appropriate provision
for continuation of the Option, or for replacement of the Option with a new
award on terms which are, as nearly as practicable, the financial equivalent of
the Option, taking into account the consideration that holders of Common Stock
will receive in the Approved Transaction (any Option so continued or replaced
shall be referred to as a "Continuing Option"). An equitable and appropriate
replacement of an Option shall include, but not be limited to, the making of a
cash payment to the Holder, in cancellation of the Option, of such amount as the
Committee determines represents the value the Option would then have if it were
exercisable for all of the shares under the Option.
(c) TERMINATION AFTER CERTAIN APPROVED TRANSACTIONS. If there are
one or more Continuing Options following an Approved Transaction and the Service
of the Holder of a Continuing Option is terminated without Cause within a period
of eighteen (18) months following the Transaction Date, or if the Holder
voluntarily terminates his or her Service for Good Reason during such period,
then (i) all Continuing Options held by the Holder shall become exercisable for
all of the shares thereunder; (ii) all restrictions under the Plan or any Option
Agreement with respect to Common Stock issued pursuant to exercise of any such
Continuing Option (other than restrictions on transfer under applicable
securities laws), including but not limited to contractual restrictions on
transfer, rights of repurchase or first refusal in favor of the Company and
restrictions on certificates for the Common Stock (other than restrictions on
certificates designed to promote compliance with applicable securities laws)
shall automatically terminate; and (iii) each such Continuing Option shall
remain exercisable until a period of eighteen (18) months has elapsed following
the Transaction Date or until the date on which the Continuing Option would have
terminated if the Service of the Holder had not terminated, whichever occurs
first.
7.3 RIGHT TO TERMINATE SERVICE. Nothing contained in the Plan or in any
Option Agreement, and no action of the Company or the Committee with respect
thereto, shall confer on any Holder any right to continue in the Service of the
Company or any of its Affiliates or interfere in any way with the right of the
Company or any of its Affiliates, subject to the terms and conditions of any
agreement between the Holder and the Company or any of its Affiliates, to
terminate at any time, with or without Cause, the Service of the Holder.
7.4 NONALIENATION OF BENEFITS. Except as permitted pursuant to
Section 6.8, no right or benefit under the Plan or any Option shall be
(a) subject to anticipation, alienation, sale, assignment, hypothecation,
pledge, exchange, transfer, encumbrance or charge (and any attempt to
anticipate, alienate, sell, assign, hypothecate, pledge, exchange, transfer,
encumber or charge
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the same shall be void); or (b) liable for or subject to the debts, contracts,
liabilities or torts of the person entitled to the right or benefit.
7.5 TERMINATION AND AMENDMENT.
(a) TERMINATION. The Plan shall terminate on the tenth (10th)
anniversary of the Effective Date; PROVIDED, HOWEVER, that the Board or the
Committee may terminate the Plan at any earlier time. No Options may be granted
following termination of the Plan, but the provisions of the Plan shall continue
in effect until all Options terminate or are exercised in full and all rights of
all persons with any interest in the Plan expire.
(b) AMENDMENT OF PLAN. The Board or the Committee may from time to
time amend the Plan, whether before of after termination of the Plan, in such
respects as it shall deem advisable; PROVIDED, HOWEVER, that any such amendment
(i) shall comply with all applicable laws and stock exchange listing
requirements, and (ii) with respect to Incentive Stock Options granted or to be
granted under the Plan, shall be subject to any approval by shareholders of the
Company required under the Code. No amendment of the Plan may adversely affect
the rights of the Holder of an Option in any material way unless the Holder
consents thereto.
(c) AMENDMENT OF OPTIONS. The Committee may amend the Option
Agreement for an Option in such respects as it shall deem advisable, including
but not limited to any amendment that would accelerate the time or times at
which the Option may be exercised or extend the scheduled termination date of
the Option; PROVIDED, HOWEVER, that (i) no amendment may adversely affect the
rights of the Holder of the Option in any material way unless the Holder
consents thereto, and (ii) the Option Agreement, as amended, shall satisfy all
of the requirements of the Plan at the time of the amendment. Nothing in this
Section 7.5 shall prevent the Committee from adopting, amending or rescinding
rules, regulations and procedures pursuant to Section 3.3.
7.6 GOVERNMENT AND OTHER REGULATIONS. The obligation of the Company with
respect to Options and the issuance of Common Stock upon the exercise thereof
shall be subject to all applicable laws, rules and regulations and such
approvals by any governmental agencies as may be required, including but not
limited to the effectiveness of any registration statement required under the
Securities Act, and the rules and regulations of any securities exchange or
over-the-counter market on which the Common Stock may be listed or quoted. The
Company shall have no obligation to register shares of Common Stock issuable
upon exercise of Options under the Securities Act or to register, qualify or
list such shares under the laws of any state or other jurisdiction or the rules
of any securities exchange or over-the-counter market.
7.7 WITHHOLDING. By accepting an Option, the Holder shall be deemed to
have agreed to pay, or make arrangements satisfactory to the Committee for
payment to the Company of, all taxes required to be withheld by the Company in
connection with the exercise of the Option or any sale, transfer or other
disposition of any shares of Common Stock acquired upon exercise of the Option.
If the Holder shall fail to pay, or make arrangements satisfactory to the
Committee for the payment of, all such taxes, then the Company or any of its
Affiliates shall, to the extent not prohibited by law, have the right to deduct
from any payment of any kind otherwise due to the Holder an amount equal to any
taxes of any kind required to be withheld by the Company or any of its
Affiliates with respect to the Option.
7.8 SEPARABILITY. With respect to Incentive Stock Options, if the Plan
does not contain any provision required to be included herein under Section 422
of the Code, such provision shall
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be deemed to be incorporated herein with the same force and effect as if such
provision had been set out in full herein; PROVIDED, HOWEVER, that to the extent
any Option that is intended to qualify as an Incentive Stock Option cannot so
qualify, the Option, to that extent, shall be deemed to be a Nonqualified Stock
Option for all purposes of the Plan.
7.9 PLAN NOT EXCLUSIVE. Neither the adoption of the Plan by the Board nor
any submission of the Plan to the shareholders of the Company for approval shall
be construed as creating any limitations on the power of the Board to adopt such
other incentive arrangements as it may deem desirable, including but not limited
to the granting of stock options and the awarding of stock and cash outside of
the Plan, and such arrangements may be either generally applicable or applicable
only in specific cases.
7.10 EXCLUSION FROM PENSION AND PROFIT-SHARING COMPUTATION. By accepting
an Option, the Holder shall be deemed to have agreed that the Option is special
incentive compensation that will not be taken into account, in any manner, as
salary, compensation or bonus in determining the amount of any payment or other
benefit under any pension, retirement or other employee benefit plan, program or
policy of the Company or any of its Affiliates.
7.11 NO SHAREHOLDER RIGHTS. No Holder or other person shall have any
voting or other shareholder rights with respect to shares of Common Stock under
an Option until the Option has been duly exercised, full payment of the purchase
price has been made, all conditions under the Option and the Plan to issuance of
the shares have been satisfied, and a certificate for the shares has been
issued. No adjustment shall be made for cash or other dividends or distributions
to shareholders for which the record date is prior to the date of such issuance.
7.12 GOVERNING LAW. The Plan and all Options shall be governed by, and
interpreted in accordance with, the laws of the State of Washington.
7.13 COMPANY'S RIGHTS. The grant of Options shall not affect in any way
the right or power of the Company to make reclassifications, reorganizations or
other changes of or to its capital or business structure or to merge,
consolidate, liquidate, sell or otherwise dispose of all or any part of its
business or assets.
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Exhibit 99.2
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (this "Agreement") is entered into, effective
as of [DATE OF GRANT], by ACTIVE VOICE CORPORATION, a Washington corporation
(the "Company"), and [NAME OF HOLDER] (the "Holder").
R E C I T A L S
A. The Company has adopted the Active Voice Corporation 1996 Stock Option
Plan (the "Plan"). Capitalized terms that are used but not defined in this
Agreement will have the meanings given those terms in the Plan.
B. The Holder has been designated to receive an option under the Plan.
NOW, THEREFORE, the Company and the Holder agree as follows:
1. GRANT OF THE OPTION. The Company grants to the Holder an option (the
"Option") to acquire from the Company [NUMBER OF SHARES ( )] shares of
Common Stock at the price of [PURCHASE PRICE] per share (the "Purchase Price").
The Option is subject to all of the provisions of the Plan and this Agreement.
The Option is not intended to qualify as an Incentive Stock Option.
2. TERM OF THE OPTION. Unless earlier terminated pursuant to the Plan,
the Option will terminate on the earliest to occur of the following: (a) the
date of termination of the Holder's Service for any reason other than death or
Disability; (b) the expiration of six (6) months following the date of
termination of the Holder's Service by reason of death or Disability; and (c)
[OPTION TERMINATION DATE].
3. EXERCISABILITY. The Option will become exercisable in accordance with
the following schedule:
CUMULATIVE NUMBER
OF SHARES FOR WHICH
DATE OPTION IS EXERCISABLE
__/__/__ [20%]
__/__/__ [40%]
__/__/__ [60%]
__/__/__ [80%]
__/__/__ [100%]
If the Holder's Service terminates by reason of death or Disability, then the
Option shall become exercisable for all of the shares under the Option.
4. OTHER LIMITATIONS ON THE OPTION. The Option is subject to all of the
provisions of the Plan, including but not limited to Section 4.2 (which permits
adjustments to the Option upon the occurrence of certain corporate events such
as stock dividends, stock splits, reclassifications, recapitalizations,
reorganizations, split-ups, spin-offs, combinations, exchanges of shares, and
rights offerings) and Section 7.2 (which will apply if an Approved Transaction
or Control Purchase occurs).
<PAGE>
5. EXERCISE OF THE OPTION. In order to exercise the Option, the Holder
must do the following:
(a) deliver to the Company a written notice, in substantially
the form of the attached Exhibit A, specifying the number of shares of
Common Stock for which the Option is being exercised;
(b) surrender this Agreement to the Company;
(c) tender payment in cash or by check of the aggregate Purchase
Price for the shares for which the Option is being exercised;
(d) pay, or make arrangements satisfactory to the Committee for
payment to the Company of, all taxes required to be withheld by the
Company in connection with the exercise of the Option; and
(e) execute and deliver to the Company any other documents
required from time to time by the Committee in order to promote
compliance with applicable laws, rules and regulations.
Unless the Option has terminated or been exercised in full, the Company shall
affix to this Agreement an appropriate notation indicating the number of shares
for which the Option was exercised and return this Agreement to the Holder.
6. ACCEPTANCE OF OPTION; FURTHER ASSURANCES. By executing this Agreement,
the Holder accepts the Option, acknowledges receipt of a copy of the Plan, and
agrees to comply with and be bound by all of the provisions of the Plan and this
Agreement. The Holder agrees to from time to time execute such additional
documents as the Company may reasonably require in order to effectuate the
purposes of the Plan and this Agreement.
7. ENTIRE AGREEMENT; AMENDMENTS; BINDING EFFECT. This Agreement,
together with the Plan, constitutes the entire agreement and understanding
between the Company and the Holder regarding the subject matter hereof. Except
as permitted by the Plan, no amendment of the Option or this Agreement, or
waiver of any provision of this Agreement or the Plan, shall be valid unless in
writing and duly executed by the Company and the Holder. The failure of any
party to enforce any of that party's rights against the other party for breach
of any of the terms of this Agreement or the Plan shall not be construed as a
waiver of such rights as to any continued or subsequent breach. This Agreement
shall be binding upon the Holder and his or her heirs, successors and assigns.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
"Company" ACTIVE VOICE CORPORATION
By
---------------------------------
Robert L. Richmond, President and
Chief Executive Officer
"Holder"
---------------------------------
[NAME OF HOLDER]
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FORM OF EXERCISE OF OPTION
To: ACTIVE VOICE CORPORATION
Suite 500
2901 Third Avenue
Seattle, Washington 98121
The undersigned holds Option Number NQO96-___ (the "Option"), represented
by a Stock Option Agreement dated effective as of __[DATE OF GRANT]__ (the
"Agreement"), granted to the undersigned pursuant to the Active Voice
Corporation 1996 Stock Option Plan (the "Plan"). The undersigned hereby
exercises the Option and elects to purchase _______________ shares (the
"Shares") of Common Stock of Active Voice Corporation (the "Company") pursuant
to the Option. This notice is accompanied by full payment of the Purchase Price
for the Shares in cash or by check or in another manner permitted by
Section 5(c) of the Agreement. The undersigned has also paid, or make
arrangements satisfactory to the Committee for payment of, all taxes, if any,
required to be withheld by the Company in connection with the exercise of the
Option.
Date: ___________________, 199__.
____________________________________
Name of Holder
EXHIBIT A
