0000927016-01-503510.txt : 20011119 0000927016-01-503510.hdr.sgml : 20011119 ACCESSION NUMBER: 0000927016-01-503510 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20011106 EFFECTIVENESS DATE: 20011106 FILER: COMPANY DATA: COMPANY CONFORMED NAME: DAVOX CORP CENTRAL INDEX KEY: 0000811640 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-COMPUTER INTEGRATED SYSTEMS DESIGN [7373] IRS NUMBER: 020364368 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-72850 FILM NUMBER: 1776219 BUSINESS ADDRESS: STREET 1: 6 TECHNOLOGY PARK DR CITY: WESTFORD STATE: MA ZIP: 01886 BUSINESS PHONE: 5089520200 MAIL ADDRESS: STREET 1: 6 TECHNOLOGY PARK DRIVE STREET 2: 6 TECHNOLOGY PARK DRIVE CITY: WESTFORD STATE: MA ZIP: 01886 S-8 1 ds8.txt FORM S-8 As filed with the Securities and Exchange Commission on November 6, 2001 Registration No. 333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ______________________________ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ______________________________ DAVOX CORPORATION (Exact Name of Registrant as Specified in Its Charter) Delaware 02-0364368 (State or Other Jurisdiction of (I.R.S. Employer Identification No.) Incorporation or Organization) 6 Technology Park Drive Westford, Massachusetts 01886 (Address of Principal Executive Offices) (Zip Code) ____________________ Davox Corporation 2001 Stock Option Plan (Full Title of the Plan) ____________________ James D. Foy President and Chief Executive Officer Davox Corporation 6 Technology Park Drive Westford, Massachusetts 01886 (Name and Address of Agent For Service) (978) 952-0200 (Telephone Number, Including Area Code, of Agent For Service) ______________________________ Copy to: Timothy C. Maguire, Esq. Testa, Hurwitz & Thibeault, LLP 125 High Street Boston, Massachusetts 02110 (617) 248-7000 -------------------------------------------------------------------------------- Calculation Of Registration Fee
Proposed Maximum Proposed Maximum Title of Securities to be Amount to be Offering Price Aggregate Offering Amount of Registered Registered Per Share Price Registration Fee ---------- ---------- --------- ----- ---------------- Options Reserved for Grant -------------------------- Common Stock, $.10 par value(1) 20,000 $ 9.26 $185,200 $46.30
(1) Based on options to purchase 20,000 shares of Davox Corporation's Common Stock granted as of October 15, 2001 under the Davox Corporation 2001 Stock Option Plan. Such shares are issuable upon exercise of outstanding options with a fixed exercise price. Pursuant to Rule 457(h)(I), the aggregate offering price and the fee have been calculated upon the basis of the price at which such options may be exercised. The offering price per share set forth for such shares is the exercise price at which such options are exercisable. ================================================================================ PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS Item 1. Plan Information. The documents containing the information specified in this Item 1 will be sent or given to employees, directors and others as specified by Rule 428(b)(1). In accordance with the rules and regulations of the Securities and Exchange Commission (the "Commission") and the instructions to Form S-8, such documents are not being filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424. Item 2. Registrant Information and Employee Plan Annual Information. The documents containing the information specified in this Item 2 will be sent or given to employees, directors or others as specified by Rule 428(b)(1). In accordance with the rules and regulations of the Commission and the instructions to Form S-8, such documents are not being filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The following documents filed by the Registrant with the Commission pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), are incorporated in this Registration Statement by reference as of their respective dates: (a) The Registrant's Annual Report on Form 10-K for the fiscal year ended December 31, 2000, filed pursuant to the Exchange Act which contains audited financial statements for the fiscal year ended December 31, 2000. (b) The Registrant's Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2001, filed pursuant to the Exchange Act. (c) The Registrant's Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 2001, filed pursuant to the Exchange Act. (d) The Registrant's Quarterly Report on Form 10-Q for the fiscal quarter ended September 30, 2001, filed pursuant to the Exchange Act. (e) Description of Capital Stock contained in the Registrant's Restated Certificate of Incorporation, as amended, filed as Exhibit 3.01 to the Registrant's Annual Report on Form 10-K for the fiscal year ended December 31, 1997. All documents subsequently filed with the Commission by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all securities offered herein have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents. Item 4. Description of Securities. Not applicable. Item 5. Interest of Named Experts and Counsel. Not applicable. Item 6. Indemnification of Directors and Officers. The Delaware General Corporation Law and the Registrant's charter and by-laws provide for indemnification of the Registrant's directors and officers for liabilities and expenses that they may incur in such capacities. In general, directors and officers are indemnified with respect to actions taken in good faith in a manner reasonably believed to be in, or not opposed to, the best interests of the Registrant, and with respect to any criminal action or proceeding, actions that the indemnitee had no reasonable cause to believe were unlawful. Reference is made to the Registrant's charter and by-laws filed as Exhibits 3.01 and 3.02 to the Registrant's Annual Report on Form 10-K for the fiscal year ended December 31, 1997, as amended. The Registrant maintains directors and officers liability insurance for the benefit of its directors and certain of its officers. Item 7. Exemption From Registration Claimed. Not applicable. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 8. Exhibits. Exhibit No. Description of Exhibit ----------- ---------------------- 4.1 Restated Certificate of Incorporation of the Registrant, as amended (filed as Exhibit 3.01 to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1997, as amended, and incorporated herein by reference) 4.2 By-laws of the Registrant, as amended (filed as Exhibit 3.02 to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1997, as amended, and incorporated herein by reference) 4.3 Davox Corporation 2001 Stock Option Plan 5.1 Opinion of Testa, Hurwitz & Thibeault, LLP 23.1 Consent of Arthur Andersen LLP 23.2 Consent of Testa, Hurwitz & Thibeault, LLP (included in Exhibit 5.1) 24.1 Power of Attorney (included as part of the signature page of this Registration Statement) 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) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; (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; (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 such securities at that time shall be deemed to be the initial bona fide offering thereof; (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (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 Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) 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 Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, 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 whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Westford, Commonwealth of Massachusetts, on the 6/th/ day of November, 2001. DAVOX CORPORATION By: /s/ James D. Foy ------------------------------------- James D. Foy President and Chief Executive Officer POWER OF ATTORNEY AND SIGNATURES EACH PERSON WHOSE SIGNATURE appears below this Registration Statement hereby constitutes and appoints James D. Foy and Michael J. Provenzano III and each of them, with full power to act without the other, his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead in any and all capacities (until revoked in writing) to sign all amendments (including post-effective amendments) to this Registration Statement on Form S-8 of Davox Corporation, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary fully to all intents and purposes as he might or could do in person thereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his or her substitute, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
Signature Title(s) Date --------- -------- ---- /s/ Alphonse M. Lucchese Chairman of the Board of Directors November 6, 2001 --------------------------- Alphonse M. Lucchese /s/ James D. Foy President, Chief Executive Officer November 6, 2001 --------------------------- and Director James D. Foy /s/ Michael J. Provenzano III Vice President of Finance November 6, 2001 ----------------------------- and Chief Financial Officer Michael J. Provenzano III /s/ Michael D. Kaufman Director November 6, 2001 --------------------------- Michael D. Kaufman /s/ R. Scott Asen Director November 6, 2001 --------------------------- R. Scott Asen /s/ Peter Gyenes Director November 6, 2001 --------------------------- Peter Gyenes
EXHIBIT INDEX Exhibit No. Description ----------- ----------- 4.1 Restated Certificate of Incorporation of the Registrant, as amended (filed as Exhibit 3.01 to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1997, as amended, and incorporated herein by reference) 4.2 By-laws of the Registrant, as amended (filed as Exhibit 3.02 to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1997, as amended, and incorporated herein by reference) 4.3 Davox Corporation 2001 Stock Option Plan 5.1 Opinion of Testa, Hurwitz & Thibeault, LLP 23.1 Consent of Arthur Andersen LLP 23.2 Consent of Testa, Hurwitz & Thibeault, LLP (included in Exhibit 5.1) 24.1 Power of Attorney (included as part of the signature page of this Registration Statement) EX-4.3 3 dex43.txt 2001 STOCK OPTION PLAN Exhibit 4.3 DAVOX CORPORATION 2001 STOCK OPTION PLAN 1. PURPOSE The name of this plan is the Davox Corporation 2001 Stock Option Plan (the "2001 Plan"). The purpose of the 2001 Plan is to promote the long-term success --------- of Davox Corporation, a Delaware corporation (the "Company"), by providing ------- financial incentives to employees or consultants of the Company or to members of the Company's Board of Directors (the "Board") who are in positions to make ----- significant contributions toward such success. The 2001 Plan is designed to attract individuals of outstanding ability to become or to continue as employees, consultants or members of the Board, to enable such individuals to acquire or increase proprietary interests in the Company through the ownership of shares of common stock of the Company, and to render superior performance during their associations with the Company. The Company intends that this purpose will be effected by the granting, pursuant to the 2001 Plan, of options for shares of the Company's Common Stock that do not meet the definition of "incentive stock options" in Section 422(b) of the Internal Revenue Code of 1986, as amended (the "Code") (such options granted hereunder, "Nonqualified ---- ------------ Options"). ------- References herein to "the Company" shall include any successor corporation to the Company and, except where the context requires otherwise, also any direct or indirect subsidiary of the Company (such that if the Company has one or more subsidiaries, individuals who are employees thereof or consultants thereto or members of the board of directors thereof are eligible to be granted Nonqualified Options under the 2001 Plan). References herein to "the Board" shall include the board of directors of any successor corporation to the Company. 2. OPTIONS TO BE GRANTED AND ADMINISTRATION (a) Options Granted. Options granted under the 2001 Plan shall only be Nonqualified Options. (b) Administration of 2001 Plan. The 2001 Plan shall be administered by the Board or by a committee (the "Option Committee") appointed by the Board. ---------------- Hereinafter, all references in this 2001 Plan to the "Option Committee" shall mean the Board if no Option Committee is appointed. The Option Committee may select one of its members as its chairman, and shall hold meetings at such time and places as it may determine. A majority of the Option Committee shall constitute a quorum and acts of a majority of the members of the Option Committee at a meeting at which a quorum is present, or acts reduced to or approved in writing by all the members of the Option Committee (if consistent with applicable state law), shall be the valid acts of the Option Committee. From time to time, the Board may increase the size of the Option Committee and appoint additional members thereof, remove members (with or without cause) and appoint new members in substitution therefor, fill vacancies however caused, or remove all members of the Option Committee and thereafter directly administer the 2001 Plan. (c) Option Committee. Subject to the terms and conditions of the 2001 Plan, the Option Committee shall have the power: (i) To determine from time to time the Nonqualified Options to be granted to eligible persons under the 2001 Plan, and to prescribe the terms and provisions (which need not be identical) of each Nonqualified Option granted under the 2001 Plan to such persons; (ii) To construe and interpret the 2001 Plan and Nonqualified Options granted thereunder and to establish, amend, and revoke rules and regulations for administration of the 2001 Plan. In this connection, the Option Committee may correct any defect or supply any omission, or reconcile any inconsistency in the 2001 Plan, or in any nonqualified option agreement, in the manner and to the extent it shall deem necessary or expedient to make the 2001 Plan fully effective. All decisions and determinations by the Option Committee in the exercise of this power shall be final and binding upon the Company and all optionees; and (iii) Generally, to exercise such powers and to perform such acts as are deemed necessary or expedient to promote the best interests of the Company with respect to the 2001 Plan, including all actions the Option Committee deems necessary, under Section 422 of the Code and the regulations thereunder, to ensure that no Nonqualified Option issued hereunder is treated as an "incentive stock option" under Section 422(b) of the Code. 3. STOCK SUBJECT TO THE 2001 Plan (a) Stock under the 2001 Plan. The stock subject to the Nonqualified Options granted under the 2001 Plan shall be shares of the Company's authorized but unissued common stock, par value $.10 per share (the "Common Stock"), or ------------ previously issued shares of Common Stock that have been reacquired and reserved by the Board for resale upon exercise of Nonqualified Options granted under the 2001 Plan. The total number of shares of Common Stock that may be issued pursuant to Nonqualified Options granted under the 2001 Plan shall not exceed an aggregate of 20,000 shares of Common Stock. Such number shall be subject to adjustment as provided in Section 9 hereof. (b) Reallocation of Unexercised Options. Whenever any outstanding Nonqualified Option under the 2001 Plan expires, is canceled or is otherwise terminated (other than by exercise), the shares of Common Stock allocable to the unexercised portion of such Nonqualified Option may again be the subject of Nonqualified Options under the 2001 Plan. 4. STOCK OPTION GRANTS Nonqualified Options may be granted to employees of the Company, to consultants to the Company who are not employees of the Company, to members of the Board, and to such other persons as the Option Committee shall select from time to time. The determination of the persons eligible to receive grants and the number of shares of Common Stock for which Nonqualified Options are granted shall be made by the Option Committee. 5. TERMS OF THE NONQUALIFIED OPTION AGREEMENTS Each nonqualified option agreement for Nonqualified Options granted under the 2001 Plan (each, a "Nonqualified Option Agreement") shall contain such ----------------------------- provisions as the Option Committee shall from time to time deem appropriate, including restrictions applicable to shares of Common Stock issuable upon exercise of Nonqualified Options. The Option Committee may from time to time confer authority and responsibility on one or more of its own members and/or one or more officers of the Company to execute and deliver the Nonqualified Option Agreements. The proper officers of the Company are authorized and directed to take any and all action necessary or advisable from time to time to carry out the terms of the Nonqualified Option Agreements. The Nonqualified Option Agreements need not be identical, but each Nonqualified Option Agreement by appropriate language, or by reference to this Section 5 of the 2001 Plan, shall include the substance of all of the following provisions: (a) Expiration. Each Nonqualified Option shall expire on the date specified in the Nonqualified Option Agreement, which date shall not be later than the tenth anniversary of the date on which the Nonqualified Option was granted. Unless otherwise determined by the Option Committee, each Nonqualified Option shall in any event expire not later than 90 days after the optionee is for any reason no longer employed by (or in the case of a consultant, engaged in a business relationship with; or in the case of a member of the Board, no longer on the Board of Directors of) the Company, except (i) if such termination of employment (or business relationship) results from optionee's disability (within the meaning of Section 22(e)(3) of the Code), a Nonqualified Option may be exercised within 180 days thereafter (but in no event later than the scheduled expiration date set forth in the Nonqualified Option Agreement), to the extent such Nonqualified Option could have been exercised on the date of such termination of employment, and (ii) if such termination of employment (or business relationship) results from the optionee's death, a Nonqualified Option may be exercised by his executors or administrators within 180 days thereafter (but in no event later than the scheduled expiration date set forth in the Nonqualified Option Agreement), to the extent such Nonqualified Option could have been exercised on the date of such optionee's death. (b) Exercise. Subject to the provisions of Section 5(a), each Nonqualified Option granted under the 2001 Plan shall be exercisable as follows: 1. Vesting. The Nonqualified Option shall either be fully ------- exercisable on the date of grant or shall become exercisable thereafter in such installments as the Option Committee may specify. 2. Full Vesting of Installments. Once an installment becomes ---------------------------- exercisable it shall remain exercisable until expiration or termination of the Nonqualified Option, unless otherwise specified by the Option Committee. 3. Partial Exercise. Each Nonqualified Option or installment may be ---------------- exercised at any time or from time to time, in whole or in part, for up to the total number of shares with respect to which it is then exercisable. 4. Acceleration of Vesting. The Option Committee shall have the ----------------------- right to accelerate the date that any installment of any Nonqualified Option becomes exercisable. Unless otherwise provided by the Option Committee, for this purpose the date of the grant of a Nonqualified Option shall be the date on which the Option Committee approves the grant. To the extent not exercised, vested installments shall accumulate and be exercisable in whole or in part at any time after becoming exercisable, but not later than the date the Nonqualified Option expires or terminates. Nonqualified Option Agreements may also contain provisions relating to the treatment of Nonqualified Options in the event of a merger, consolidation or liquidation of, or sale of assets by, the Company. (c) Purchase Price. Unless the Option Committee shall otherwise determine at the time the Nonqualified Option is granted, the purchase price per share of Common Stock under each Nonqualified Option shall be not less than the fair market value of a share of Common Stock on the date the Nonqualified Option is granted. For the purposes of the 2001 Plan, the fair market value of the shares of Common Stock of the Company shall be determined by the Option Committee. 6. LIMITATION ON RIGHTS OF OPTIONEES (a) Transferability of Nonqualified Options. Except as set forth below, (i) no Nonqualified Option shall be transferable by any optionee other than by will or by the laws of descent and distribution and (ii) Nonqualified Options may be exercised during the optionee's lifetime only by the optionee (or, if the optionee is disabled and so long as the Nonqualified Option remains exercisable, by the optionee's duly appointed guardian or other legal representative). However, the Option Committee may, in its discretion, permit a Nonqualified Option recipient to transfer such Nonqualified Option to family members or other persons for estate planning purposes. In connection with permitting transfers, the Option Committee may require that (i) no consideration be given or payment made for any such transfer, (ii) the Nonqualified Option Agreement pursuant to which such Nonqualified Option is granted must be approved by the Option Committee, and must expressly provide for transferability at the date of grant in a manner consistent with the 2001 Plan, and (iii) subsequent transfers of the transferred Nonqualified Option shall be prohibited except those in accordance with this Section. Following any such transfer, any such Nonqualified Options shall continue to be subject to the same terms and conditions as were applicable immediately prior to transfer, provided that for purposes of Sections 2(c)(ii), 6(b), 6(c), 7, 8, 9 and 12 hereof the term "optionee" shall be deemed to refer to the transferee. The events of termination of employment (or business relationship in the case of a consultant or membership on the Board in the case of a member of the Board) set forth in an optionee's Nonqualified Option Agreement shall continue to be applied with respect to the original optionee, following which the Nonqualified Options shall be exercisable by the transferee only to the extent, and for the periods specified, therein. (b) No Shareholder Rights. No optionee shall be deemed for any purpose to be the owner of any shares of Common Stock subject to any Nonqualified Option unless and until (i) the Nonqualified Option shall have been exercised pursuant to the terms thereof, (ii) the Company shall have issued and delivered the shares to the optionee, and (iii) the optionee's name shall have been entered as a shareholder of record on the books of the Company. Thereupon, the optionee shall have full voting, dividend and other ownership rights with respect to such shares of Common Stock. (c) No Employment Rights. Neither the 2001 Plan nor the grant of any Nonqualified Option thereunder shall be deemed to confer upon any optionee any rights of employment with the Company, including, without limitation, any right to continue in the employ of the Company, or affect the right of the Company to terminate the employment of an optionee at any time, with or without cause. (d) Authority of the Company. The existence of the Nonqualified Options shall not affect: the right or power of the Company or its shareholders to make adjustments, recapitalizations, reorganizations or other changes in the Company's capital structure or its business; any issue of bonds, debentures, preferred or prior preference stock affecting the Common Stock or the rights thereof; the dissolution or liquidation of the Company, or sale or transfer of any part of its assets or business; or any other act, whether of a similar character or otherwise. 7. METHOD OF EXERCISE; PAYMENT OF PURCHASE PRICE (a) Notice of Exercise. Any Nonqualified Option granted under the 2001 Plan may be exercised by the optionee by delivering to the Chief Financial Officer of the Company (or such other representative of the Company as the Option Committee may designate), on any business day within the Company's "trading window" (as defined in the Company's Securities Compliance Policy in effect on the date of such exercise), a written notice specifying the number (which shall be consistent with the provisions of Section 5(b) hereof) of shares of Common Stock the optionee then desires to purchase (the "Notice"). ------ (b) Payment. A Nonqualified Option (or any part or installment thereof) shall be exercised by giving written notice to the Company at its principal office address, or to such transfer agent as the Company shall designate. Such notice shall identify the Nonqualified Option being exercised and specify the number of shares as to which such Nonqualified Option is being exercised, accompanied by full payment of the purchase price therefor either (a) in United States dollars in cash or by check, (b) at the discretion of the Option Committee, through delivery of shares of Common Stock having a fair market value equal as of the date of the exercise to the cash exercise price of the Nonqualified Option, (c) at the discretion of the Option Committee, by delivery of the optionee's personal recourse note bearing interest payable not less than annually at no less than 100% of the lowest applicable Federal rate, as defined in Section 1274(d) of the Code, (d) at the discretion of the Option Committee and consistent with applicable law, through the delivery of an assignment to the Company of a sufficient amount of the proceeds from the sale of the Common Stock acquired upon exercise of the Nonqualified Option and an authorization to the broker or selling agent to pay that amount to the Company, which sale shall be at the participant's direction at the time of exercise, or (e) at the discretion of the Option Committee, by any combination of (a), (b), (c) and (d) above. 8. WITHHOLDING; ESCROW The Company shall be entitled to withhold from any compensation or other payments then or thereafter due to the optionee such amounts as may be necessary to satisfy any withholding requirements of federal or state law or regulation and, further, to collect from the optionee any additional amounts which may be required for such purpose as a condition of delivering the shares of Common Stock acquired pursuant to a Nonqualified Option. The Option Committee may, in its discretion, require shares of the Common Stock acquired by an optionee upon the exercise of a Nonqualified Option to be held in an escrow arrangement for the purpose of enabling compliance with this Section 8. 9. ADJUSTMENT UPON CHANGES IN CAPITALIZATION Upon the occurrence of any of the following events, an optionee's rights with respect to Nonqualified Options granted to such optionee hereunder shall be adjusted as hereinafter provided, unless otherwise specifically provided in the Nonqualified Option Agreement between the optionee and the Company relating to such Nonqualified Option: (a) Stock Dividends and Stock Splits. If the shares of Common Stock shall be subdivided or combined into a greater or smaller number of shares or if the Company shall issue any shares of Common Stock as a stock dividend on its outstanding Common Stock, the number of shares of Common Stock deliverable upon the exercise of Nonqualified Options shall be appropriately increased or decreased proportionately, and appropriate adjustments shall be made in the purchase price per share to reflect such subdivision, combination or stock dividend. (b) Consolidations or Mergers. If the Company is to be consolidated with or acquired by another entity in a merger or other reorganization in which the holders of the outstanding voting stock of the Company immediately preceding the consummation of such event, shall, immediately following such event, hold, as a group, less than a majority of the voting securities of the surviving or successor entity, or in the event of a sale of all or substantially all of the Company's assets or otherwise (each, an "Acquisition"), the Option Committee or the board of directors of any entity ----------- assuming the obligations of the Company hereunder (the "Successor Board"), --------------- shall, as to outstanding Nonqualified Options, either (i) make appropriate provision for the continuation of such Nonqualified Options by substituting on an equitable basis for the shares then subject to such Nonqualified Options either (a) the consideration payable with respect to the outstanding shares of Common Stock in connection with the Acquisition, (b) shares of stock of the surviving or successor corporation or (c) such other securities as the Successor Board deems appropriate, the fair market value of which shall not materially exceed the fair market value of the shares of Common Stock subject to such Nonqualified Options immediately preceding the Acquisition; or (ii) upon written notice to the optionees, provide that all Nonqualified Options must be exercised, to the extent then exercisable or to be exercisable as a result of the Acquisition, within a specified number of days of the date of such notice, at the end of which period the Nonqualified Options shall terminate; or (iii) terminate all Nonqualified Options in exchange for a cash payment equal to the excess of the fair market value of the shares subject to such Nonqualified Options (to the extent then exercisable or to be exercisable as a result of the Acquisition) over the exercise price thereof. (c) Recapitalization or Reorganization. In the event of a recapitalization or reorganization of the Company (other than a transaction described in subparagraph (b) above) pursuant to which securities of the Company or of another corporation are issued with respect to the outstanding shares of Common Stock, an optionee upon exercising a Nonqualified Option shall be entitled to receive for the purchase price paid upon such exercise the securities he or she would have received if he or she had exercised such Nonqualified Option prior to such recapitalization or reorganization. (d) Dissolution or Liquidation. In the event of the proposed dissolution or liquidation of the Company, each Nonqualified Option will terminate immediately prior to the consummation of such proposed action or at such other time and subject to such other conditions as shall be determined by the Option Committee. (e) Issuances of Securities. Except as expressly provided herein, no issuance by the Company of shares of stock of any class, or securities convertible into shares of stock of any class, shall affect, and no adjustment by reason thereof shall be made with respect to, the number or price of shares subject to Nonqualified Options. No adjustments shall be made for dividends paid in cash or in property other than securities of the Company. (f) Fractional Shares. No fractional shares shall be issued under the 2001 Plan and the optionee shall receive from the Company cash in lieu of such fractional shares. (g) Adjustments. Upon the happening of any of the events described in subparagraphs (a), (b) or (c) above, the class and aggregate number of shares set forth in Section 3 hereof that are subject to Nonqualified Options which previously have been or subsequently may be granted under the 2001 Plan shall also be appropriately adjusted to reflect the events described in such subparagraphs. The Option Committee or the Successor Board shall determine the specific adjustments to be made under this Section 9 and, subject to Section 2, its determination shall be conclusive. 10. AMENDMENT OR TERMINATION OF 2001 Plan The Board may modify, revise or terminate the 2001 Plan at any time and from time to time. Except as provided in Section 9 hereof, rights and obligations under any Nonqualified Option granted before any amendment of the 2001 Plan shall not be altered or impaired by such amendment, except with the consent of the optionee. 11. EFFECTIVE DATE; NONEXCLUSIVITY (a) Effective Date. This 2001 Plan will be deemed to have been adopted and to be effective when approved by the Board. (b) Nonexclusivity. The adoption of the 2001 Plan shall not be construed as creating any limitations on the power of the Board to adopt such other incentive arrangements as it may deem desirable, including, without limitation, the granting of options otherwise than under the 2001 Plan, and such arrangements may be either applicable generally or only in specific cases. 12. GOVERNMENT AND OTHER REGULATIONS; GOVERNING LAW (a) Securities Laws. If in the opinion of legal counsel for the Company, the issuance or sale of any shares of Common Stock pursuant to the exercise of a Nonqualified Option would not be lawful for any reason, including, without limitation, the inability of the Company to obtain from any governmental authority or regulatory body having jurisdiction the authority deemed by such counsel to be necessary to such issuance or sale, the Company shall not be obligated to issue or sell any shares of Common Stock pursuant to the exercise of a Nonqualified Option to an optionee or any other authorized person unless a registration statement that complies with the provisions of the Securities Act of 1933, as amended (the "Act"), in respect of such shares of Common Stock is in --- effect at the time thereof, or other appropriate action has been taken under and pursuant to the terms and provisions of the Act, or the Company receives evidence satisfactory to such counsel that the issuance and sale of such shares of Common Stock, in the absence of an effective registration statement or other appropriate action, would not constitute a violation of the Act or any applicable state securities law. The Company is in no event obligated to register any such shares of Common Stock, to comply with any exemption from registration requirements or to take any other action which may be required in order to permit, or to remedy or remove any prohibition or limitation on, the issuance or sale of such shares of Common Stock to any optionee or other authorized person. (b) Governing Law. The 2001 Plan shall be governed by and interpreted under the laws of the State of Delaware. 13. TERMINATION OF GRANTING OF NONQUALIFIED OPTIONS UNDER THE 2001 Plan No Nonqualified Option may be granted under the 2001 Plan after the tenth anniversary of the effective date of the 2001 Plan (as set forth in Section 11 hereto). EX-5.1 4 dex51.txt OPINION OF TESTA, HURWITZ & THIBEAULT Exhibit 5.1 Testa, Hurwitz & Thibeault, LLP 125 High Street Boston, MA 02110 November 6, 2001 Davox Corporation 6 Technology Park Drive Westford, Massachusetts 01886 Re: Registration Statement on Form S-8 ---------------------------------- Ladies and Gentlemen: We are acting as counsel to Davox Corporation, a Delaware corporation (the "Company"), in connection with its registration on a Registration Statement on Form S-8 (the "Registration Statement") under the Securities Act of 1933, as amended, relating to an aggregate of 20,000 shares (the "Shares") of the Company's common stock, $.10 par value per share, to be issued upon the exercise of options issued under the Company's 2001 Stock Option Plan (the "Plan"). In rendering our opinion, we have examined original or certified copies of the Company's Restated Certificate of Incorporation, as amended, the Company's By-laws, as amended, the corporate records of the Company to the date hereof, and such other certificates, documents, records and materials as we have deemed necessary in connection with this opinion letter. Based upon and subject to the foregoing, we are of the opinion that the Shares issued or proposed to be issued by the Company pursuant to the Plan will be, upon receipt of the consideration provided for in the Plan, validly issued, fully paid and nonassessable after issuance of such Shares in accordance with the terms of the Plan. We hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement. Very truly yours, /s/ Testa, Hurwitz & Thibeault, LLP TESTA, HURWITZ & THIBEAULT, LLP EX-23.1 5 dex231.txt CONSENT OF ARTHUR ANDERSEN Exhibit 23.1 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference in this registration statement of our report dated January 19, 2001 included in Davox Corporation's Form 10-K for the year ended December 31, 2000 and to all references to our Firm included in this registration statement. /s/ Arthur Andersen LLP Boston, Massachusetts November 6, 2001