-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, CkNzCiuupYiNX8oPr4XN+QlF7ovoNAgGY69Tr3ABd0s3jPgwL92/GuzLoGNxwTfT rMProJb4ucG0EA2esYghJA== 0000950128-97-000850.txt : 19970721 0000950128-97-000850.hdr.sgml : 19970721 ACCESSION NUMBER: 0000950128-97-000850 CONFORMED SUBMISSION TYPE: S-8 POS PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 19970718 EFFECTIVENESS DATE: 19970718 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: TOLLGRADE COMMUNICATIONS INC \PA\ CENTRAL INDEX KEY: 0001002531 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-TELEPHONE INTERCONNECT SYSTEMS [7385] IRS NUMBER: 251537134 STATE OF INCORPORATION: PA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 POS SEC ACT: 1933 Act SEC FILE NUMBER: 333-04290 FILM NUMBER: 97642572 BUSINESS ADDRESS: STREET 1: 493 NIXON RD CITY: CHESWICK STATE: PA ZIP: 15024 BUSINESS PHONE: 4122742156 S-8 POS 1 TOLLGRADE INC. 1 As filed with the Securities and Exchange Commission on July 18, 1997 Registration No. 333- =============================================================================== SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ------ Post-Effective Amendment No. 1 to FORM S-8 REGISTRATION STATEMENT Under The Securities Act of 1933 ------ TOLLGRADE COMMUNICATIONS, INC. (Exact name of registrant as specified in its charter) PENNSYLVANIA 25-1537134 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 493 Nixon Road Cheswick, Pennsylvania 15024 412-274-2156 (Address, including Zip Code, and telephone number, including area code, of registrant's principal executive offices) ------ Christian L. Allison Chief Executive Officer Tollgrade Communications, Inc. 493 Nixon Road Cheswick, Pennsylvania 15024 412-274-2156 (Name, address, including Zip Code, and telephone number, including area code, of agent for service) Copy to: Pasquale D. Gentile, Jr., Esq. Reed Smith Shaw & McClay 435 Sixth Avenue Pittsburgh, PA 15219 412-288-4112 ------ CALCULATION OF REGISTRATION FEE
======================================================================================================================= Proposed Proposed Amount of Securities to be Amount to be Maximum Offering Maximum Aggregate Registration Registered Registered Price per share Offering Price Fee - ----------------------------------------------------------------------------------------------------------------------- Common Stock, 17,500 $ 25.75 $ 450,625 $.20 par value 375,000 $ 21.25* $7,968,750* ------- ------- ---------- 392,500 $8,419,375* $2,552* ---------- ------ =======================================================================================================================
* Estimated solely for the purposes of calculating the amount of the registration fee. Pursuant to Rules 457(h) and (c), the proposed maximum aggregate offering price for shares subject to stock options outstanding is based on the actual option price and for shares which may be issued but are not subject to outstanding stock options is based on the average of the high and low sales prices of the Common Stock as reported by the Nasdaq National Market Issues listing for July 14, 1997, as quoted in The Wall Street Journal. 2 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Except as modified below, the contents of the Tollgrade Communications, Inc. (the "Company") Form S-8 Registration Statement under the Securities Act of 1933, as amended, File No. 333-4290 (the "Original Form S-8"), which was filed with the Commission on May 1, 1996, are incorporated by reference in this Post-Effective Amendment No. 1 to the Form S-8 Registration Statement. ITEM 8. EXHIBITS.
Exhibit No. Description and Method of Filing - -------- -------------------------------- 4.1 Amended and Restated Articles of Incorporation of the Company, as amended, incorporated herein by reference to Exhibit 3.1 to the Company's Registration Statement on Form S-1 (Reg. No. 33-98322), filed on October 18, 1995, as amended by Amendment No. 1 filed November 20, 1995 and Amendment No. 2 filed December 11, 1995 (as so amended, the "Form S-1"). 4.2 Stock Option Agreement entered into June 2, 1992 between the Company and J. Garvin Warden, incorporated herein by reference to Exhibit 4.2 to the Original Form S-8. 4.3 Stock Option Agreement entered into January 1, 1994 between the Company and Frederick Kiko, together with a schedule listing substantially identical agreements with Christian L. Allison and Rocco L. Flaminio, incorporated herein by reference to Exhibit 10.12 to the Company's Annual Report on Form 10-K for the year ended December 31, 1995 (the "1996 10-K"). 4.4 Stock Option Agreement entered into July 7, 1994 between the Company and R. Craig Allison, together with a schedule listing substantially identical agreements with Gordon P. Anderson, John H. Guelcher, Richard H. Heibel and Joseph T. Messina, incorporated herein by reference to Exhibit 10.13 to the Company's 1996 10-K. 4.5 Stock Option Agreement entered into December 14, 1995 between the Company and R. Craig Allison, together with a schedule listing substantially identical agreements with Gordon P. Anderson, Jeffrey Blake, John H. Guelcher, Richard H. Heibel, Joseph T. Messina and Douglas T. Halliday, incorporated herein by reference to Exhibit 10.14 to the Company's 1996 10-K.
-2- 3 4.6 Form of Stock Option Agreement dated December 14, 1995 and December 29, 1995 for Non-Statutory Stock Options granted under the Company's 1995 Long-Term Incentive Compensation Plan (the "Plan"), incorporated herein by reference to Exhibit 10.15 to the Company's Annual Report on Form 10-K for the year ended December 31, 1996 (the "1997 10-K"). 4.7 Form of Stock Option Agreement for Non-Statutory Options granted under the Plan in 1996 and 1997, incorporated herein by reference to Exhibit 10.2 of the Report on Form 10-Q of the Company filed on November 12, 1996. 4.8 Amended and Restated Non-employee Stock Option Agreement entered into December 13, 1996 between the Company and Lawrence Arduini, together with a schedule listing substantially identical agreements with Daniel Barry, Robert Kampmeinert and Dr. Richard Heibel, filed herewith. 4.9 Form of Stock Option Agreement for Non-Statutory Stock Options granted to employees of the Company under the Plan, filed herewith. 4.10 Form of Stock Option Agreement for Non-Statutory Stock Options granted to non-employee directors of the Company under the Plan, filed herewith. 5.1 Opinion of Reed Smith Shaw & McClay regarding legality of shares of the Company's Common Stock being registered, filed herewith. 23.1 Consent of Reed Smith Shaw & McClay (contained in the opinion filed as Exhibit 5.1 hereto). 23.2 Consent of Coopers & Lybrand L.L.P., independent certified accountants, filed herewith. 24.1 Powers of Attorney (filed herewith as part of the signature pages).
-3- 4 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 Pittsburgh, Commonwealth of Pennsylvania, on July 17, 1997. TOLLGRADE COMMUNICATIONS, INC. By /s/ Christian L. Allison ----------------------------- Christian L. Allison Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated on July 17, 1997. KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and appoints Christian L. Allison and Sara Antol, and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and revocation, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, 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 to be done, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their substitutes, may lawfully do or cause to be done by virtue hereof.
Signature Title --------- ----- /s/ R. Craig Allison Chairman of the Board - ---------------------------- R. Craig Allison /s/ Christian L. Allison Director and Chief Executive - ---------------------------- Officer (Principal Executive Christian L. Allison Officer) /s/ James J. Barnes Director - ---------------------------- James J. Barnes /s/ Daniel P. Barry Director - ---------------------------- Daniel P. Barry /s/ Rocco L. Flaminio Director, Vice Chairman - ---------------------------- and Chief Technology Officer Rocco L. Flaminio /s/ Richard M. Heibel, M.D. Director - ---------------------------- Richard M. Heibel, M.D.
-4- 5 /s/ Robert W. Kampmeinert Director - ---------------------------- Robert W. Kampmeinert /s/ Samuel C. Knoch Chief Financial Officer and Treasurer - ---------------------------- (Principal Financial Officer) Samuel C. Knoch /s/Bradley N. Dinger Controller - ---------------------------- (Principal Accounting Officer) Bradley N. Dinger
-5- 6 EXHIBIT INDEX (Pursuant to Item 601 of Regulation S-K)
Exhibit Sequential No. Description and Method of Filing Page - ------- -------------------------------- ---------- 4.1 Amended and Restated Articles of Incorporation of the Company, as amended, incorporated herein by reference to Exhibit 3.1 to the Company's Form S-1. * 4.2 Stock Option Agreement entered into June 2, 1992 between the Company and J. Garvin Warden, incorporated herein by reference to Exhibit 4.2 to the Original Form S-8. * 4.3 Stock Option Agreement entered into January 1, 1994 between the Company and Frederick Kiko, together with a schedule listing substantially identical agreements with Christian L. Allison and Rocco L. Flaminio, incorporated herein by reference to Exhibit 10.12 to the Company's Annual Report on Form 10-K for the year ended December 31, 1995 (the "1996 10-K"). * 4.4 Stock Option Agreement entered into July 7, 1994 between the Company and R. Craig Allison, together with a schedule listing substantially identical agreements with Gordon P. Anderson, John H. Guelcher, Richard H. Heibel and Joseph T. Messina, incorporated herein by reference to Exhibit 10.13 to the Company's 1996 10-K. * 4.5 Stock Option Agreement entered into December 14, 1995 between the Company and R. Craig Allison, together with a schedule listing substantially identical agreements with Gordon P. Anderson, Jeffrey Blake, John H. Guelcher, Richard H. Heibel, Joseph T. Messina and Douglas T. Halliday, incorporated herein by reference to Exhibit 10.14 to the Company's 1996 10-K. * 4.6 Form of Stock Option Agreement dated December 14, 1995 and December 29, 1995 for Non-Statutory Stock Options granted under the Company's 1995 Long-Term Incentive Compensation Plan (the "Plan"), incorporated herein by reference to Exhibit 10.15 to the Company's Annual Report on Form 10-K for the year ended December 31, 1996 (the "1997 10-K"). * 4.7 Form of Stock Option Agreement for Non-Statutory Options granted under the Plan in 1996 and 1997, incorporated herein by reference to Exhibit 10.2 of the Report on Form 10-Q of the Company filed on November 12, 1996. *
-6- 7 4.8 Amended and Restated Non-employee Stock Option Agreement entered into December 13, 1996 between the Company and Lawrence Arduini, together with a schedule listing substantially identical agreements with Daniel Barry, Robert Kampmeinert and Dr. Richard Heibel, filed herewith. 8 4.9 Form of Stock Option Agreement for Non-Statutory Stock Options granted to employees of the Company under the Plan, filed herewith. 12 4.10 Form of Stock Option Agreement for Non-Statutory Stock Options granted to non-employee directors of the Company under the Plan, filed herewith. 16 5.1 Opinion of Reed Smith Shaw & McClay regarding legality of shares of the Company's Common Stock being registered, filed herewith. 20 23.1 Consent of Reed Smith Shaw & McClay (contained in the opinion filed as Exhibit 5.1 hereto). 23.2 Consent of Coopers & Lybrand L.L.P., independent certified accountants, filed herewith. 21 24.1 Powers of Attorney (filed herewith as part of the signature pages).
- ------------ * Incorporated by reference. -7- EX-4.8 2 TOLLGRADE INC. 1 Exhibit 4.8 TOLLGRADE COMMUNICATIONS, INC. AMENDED AND RESTATED STOCK OPTION AGREEMENT THIS AGREEMENT is made and entered into this 13th day of December, 1996, as amended and restated as of this ________ day of July, 1997, by and between TOLLGRADE COMMUNICATIONS, INC., a Pennsylvania corporation (the "Company") and ______________________, an individual (the "Holder"). WHEREAS, the Company has issued, and the Holder has received, an option to purchase shares of the common stock of the Company, pursuant to the terms described herein; WHEREAS, since the original date of this Agreement, the Company has amended its 1995 Long-Term Incentive Compensation Plan (as so amended, the "Plan") to permit grants of nonstatutory stock options thereunder to non-employee Directors; WHEREAS, since the original date of this Agreement the Company has registered, or shortly will register, the shares underlying the nonstatutory stock options covered by this Agreement on a Form S-8 Registration Statement; WHEREAS, the parties hereto desire to amend and restate this Agreement to incorporate the Plan by reference in order to define the rights and obligations of the parties under this Agreement, and to include the stock options granted hereby under the Form S-8. NOW, THEREFORE, in consideration of the terms and conditions contained herein and intending to be legally bound hereby, the parties agree as follows: 1. Grant of Option. The Company hereby confirms the grant to the Holder on ____________ (the "Date of Grant") of an option (the "Option") to purchase, in accordance with the terms hereof, up to __________ (________) shares of common stock of the Company, par value $.20 per share (the "Common Stock") at an option price of $________ per share. The Option will expire at the close of business on ____________________. 2. Acceptance of Grant of Option. The Holder accepts the grant of the Option confirmed hereby, acknowledges having received a copy of the Plan and agrees to be bound by the terms and provisions of the Plan, as the Plan may be amended from time to time; provided, however, that no alteration, amendment, revocation or termination of the Plan shall, without the written consent of the Holder, adversely affect the rights of the Holder with respect to the Option. 2 3. Incorporation of Plan by Reference. Although the Options covered by this Agreement were not issued pursuant to the Plan, the parties hereby agree to treat such Options as if they were so issued under and subject to the terms and conditions of Plan, and the Plan is incorporated herein by reference and made a part hereof as though set forth in full herein; provided, however, that such Options shall not count against the total Options which may be issued under the Plan. 4. Exercise. The Option confirmed hereby is a nonstatutory stock option as that term is defined in Section 2.20 of the Plan. Subject to Section 6.9 of the Plan regarding the periods during which stock options may be exercised upon termination of Board Service, and Section 14.1 of the Plan regarding the periods during which the Option may be exercised during a Change-in-Control (as defined in the Plan), the Option shall be immediately exercisable. 5. Non-Transferability. This Option shall not be transferrable otherwise than by Will or the laws of descent or distribution, and the Option shall be exercisable during the lifetime of the Holder only by the Holder. 6. Procedure for Exercise of Option. The Option may be exercised only by (a) execution and delivery by the Holder to the Company of an exercise form or forms prescribed by the Committee; and (b) surrender of this Agreement at the principal office of the Company. Each exercise form must set forth the number of shares of Common Stock for which the Option is exercised and must be dated and signed by the person exercising the Option. Subject to the last paragraph of this Section 6, the exercise is not effective until the Company receives payment of the full option price for the number of shares of Common Stock for which the Option is exercised. The Option Price shall be paid to the Company in full in the manner specified in Section 6.6 of the Plan. To the extent the Holder pays the Option Price in whole or in part by shares of already-owned Common Stock, as permitted by the Plan, the Company shall advise any person exercising the Option in such manner as to the amount of any cash required to be paid to the Company for any shares representing a fraction of a share, and such person will be required to pay any such cash directly to the Company before any distribution of certificates representing shares of Common Stock will be made. The person exercising the Option should execute the form of assignment on the back of the certificate or should deliver an executed Assignment Separate from Certificate with respect to each stock certificate delivered in payment of the Option Price. If any person other than the Holder exercises the Option, the exercise material must include proof satisfactory to the Company of the right of such person to exercise the Option, and the signature on all certificates or stock powers must be guaranteed by a commercial bank or trust company or by a firm having membership in the New York Stock Exchange, Inc., the American Stock Exchange, Inc., or the National Association of Securities Dealers, Inc. The date of exercise of the Option is the date on which the exercise form or forms, proof of right to exercise (if required) and payment of the Option Price are received by the Company. 2 3 For purposes of determining the date of exercise where payment of the Option Price is made in shares of already-owned Common Stock, any cash required to be paid to the Company with respect to a fraction of a share shall not be taken into account when determining whether payment of the Option Price has been made. 7. Issuance of Certificates. Subject to Section 6 above and this Section 7, the Company will issue a certificate or certificates representing the number of shares of Common Stock for which the Option is exercised as soon as practicable after the date of exercise. Unless otherwise directed, the certificate(s) will be registered in the name of the person exercising the Option and delivered to such person. If the Option Price is paid in whole or in part with shares of already-owned Common Stock, the Company will issue at the same time and return to the person exercising the Option a certificate representing the number of any excess shares included in any certificate or certificates delivered to the Company at the time of exercise. The obligation of the Company to issue shares on exercise of an option is subject to the effectiveness of a Registration Statement under the Securities Act of 1933, as amended, with respect to such shares, if deemed necessary or appropriate by counsel to the Company. The Company is not obligated to file such a Registration Statement. If at the time of exercise of the Option, no such Registration Statement is in effect, the issuance of shares on exercise of the Option may also be made subject to restrictions on the transfer of the shares, including the placing of an appropriate legend on the certificates restricting the transfer thereof, and to such other restrictions as the Committee, on the advice of counsel, may deem necessary or appropriate to prevent a violation of applicable securities laws. 8. Withholding of Taxes. The Holder will be advised by the Company as to the amount of any federal income, employment or excise taxes required to be withheld by the Company on any compensation income resulting from the exercise of the Option, and the Holder will pay such taxes directly to the Company upon request. State, local or foreign income or employment taxes may also be required to be withheld by the Company and the Holder will also be required to pay such taxes directly to the Company upon request. If the Holder does not pay any taxes required to be withheld directly to the Company within ten (10) days after any such request, the Company may withhold such taxes from any other compensation to which the Holder is entitled from the Company. The Holder will hold the Company harmless in acting to satisfy its withholding obligations in this manner if it becomes necessary to do so. 9. Interpretation of Plan and Agreement. This Agreement is an award agreement referred to in Section 6.2 of the Plan. If there is any conflict between the Plan and this Agreement, the provisions of the Plan shall control. However, there may be provisions in this Agreement not contained in the Plan, which provisions shall nevertheless be effective. In addition, to the extent that provisions of the Plan are expressly modified for purposes of this Agreement pursuant to authorization in the Plan, the provisions of this Agreement shall control. Any dispute or disagreement which shall arise under or in any way relate to the construction or interpretation of the Plan or this Agreement shall be resolved by the Board, and the decision of the Board shall be final, binding and conclusive for all purposes. 3 4 10. Effect of Agreement on Rights of Company and Holder. This Agreement does not confer any rights on the Holder to continue as a Director. 11. Indemnification. The Holder indemnifies and holds harmless the Company from and against any and all loss, damages, liability or expense, including costs and reasonable attorneys' fees, to which the Company may be put or may incur by reason of or in connection with any misrepresentation made by the Holder, any breach of the Holder's warranties, or the Holder's failure to fulfill any of his or her covenants or agreements set forth herein. 12. Binding Effect. This Agreement shall be binding upon the successors and assigns of the Company and upon the legal representatives, heirs and legatees of the Holder. 13. Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior agreements and understandings, oral or written, between the parties with respect to the subject matter of this Agreement. 14. Amendment. This Agreement may be amended only a written instrument signed by the Company and the Holder. 15. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the Commonwealth of Pennsylvania. IN WITNESS WHEREOF, the Company and the Holder have executed this Agreement as of the date first written above. TOLLGRADE COMMUNICATIONS, INC. By: ------------------------- Title: ---------------------- WITNESS: HOLDER: - -------------------------------- ---------------------------- 4 EX-4.9 3 TOLLGRADE, INC. 1 Exhibit 4.9 TOLLGRADE COMMUNICATIONS, INC. 1995 LONG-TERM INCENTIVE COMPENSATION PLAN EMPLOYEE NONSTATUTORY STOCK OPTION AGREEMENT THIS AGREEMENT is made and entered into this _____ day of ____________, 199__, by and between TOLLGRADE COMMUNICATIONS, INC., a Pennsylvania corporation (the "Company") and ______________________, an employee of the Company (the "Holder"). WHEREAS, the Company desires to issue, and the Holder desires to receive, an option to purchase shares of the common stock of the Company, pursuant to the terms described herein. NOW, THEREFORE, in consideration of the terms and conditions contained herein and intending to be legally bound hereby, the parties agree as follows: 1. Grant of Option. The Company hereby confirms the grant to the Holder on ____________ (the "Date of Grant") of an option (the "Option") to purchase, from time to time in accordance with the terms hereof __________ (________) shares of common stock of the Company, par value $.20 per share (the "Common Stock") at an option price of $________ per share, under and subject to the terms and conditions of the Company's 1995 Long-Term Incentive Compensation Plan, as amended (the "Plan") and this Agreement. The Plan is incorporated herein by reference and made a part hereof as though set forth in full herein. Terms which are capitalized herein but which are not defined herein have the same meaning as in the Plan unless the context otherwise requires. The Option confirmed hereby is a nonstatutory stock option as that term is defined in Section 2.20 of the Plan. Subject to the terms of Section 6.8 of the Plan regarding the periods during which stock options may be exercised upon termination of employment, and Section 14.1 of the Plan regarding the periods during which the Option may be exercised during a Change-in-Control (as defined in the Plan), the Option shall be exercisable as follows: (a) From and after ___________, the Option shall be exercisable for________ shares covered hereby. (b) From and after _________, the Option shall be exercisable for an additional ____________shares covered hereby. (c) From and after __________, the Option shall be exercisable for all of the shares covered hereby. 2 The Option will expire at the close of business on _________________. 2. Acceptance of Grant of Option. The Holder accepts the grant of the Option confirmed hereby, acknowledges having received a copy of the Plan and agrees to be bound by the terms and provisions of the Plan, as the Plan may be amended from time to time; provided, however, that no alteration, amendment, revocation or termination of the Plan shall, without the written consent of the Holder, adversely affect the rights of the Holder with respect to the Option. 3. Non-Transferability. This Option shall not be transferrable otherwise than by Will or the laws of descent or distribution, and the Option shall be exercisable during the lifetime of the Holder only by the Holder. 4. Procedure for Exercise of Option. The Option may be exercised only by (a) execution and delivery by the Holder to the Company of an exercise form or forms prescribed by the Committee; and (b) surrender of this Agreement at the principal office of the Company. Each exercise form must set forth the number of shares of Common Stock for which the Option is exercised and must be dated and signed by the person exercising the Option. Subject to the last paragraph of this Section 4, the exercise is not effective until the Company receives payment of the full option price for the number of shares of Common Stock for which the Option is exercised. The Option Price shall be paid to the Company in full in the manner specified in Section 6.6 of the Plan. To the extent the Holder pays the Option Price in whole or in part by shares of already-owned Common Stock, as permitted by the Plan, the Company shall advise any person exercising the Option in such manner as to the amount of any cash required to be paid to the Company for any shares representing a fraction of a share, and such person will be required to pay any such cash directly to the Company before any distribution of certificates representing shares of Common Stock will be made. The person exercising the Option should execute the form of assignment on the back of the certificate or should deliver an executed Assignment Separate from Certificate with respect to each stock certificate delivered in payment of the Option Price. If any person other than the Holder exercises the Option, the exercise material must include proof satisfactory to the Company of the right of such person to exercise the Option, and the signature on all certificates or stock powers must be guaranteed by a commercial bank or trust company or by a firm having membership in the New York Stock Exchange, Inc., the American Stock Exchange, Inc., or the National Association of Securities Dealers, Inc. The date of exercise of the Option is the date on which the exercise form or forms, proof of right to exercise (if required) and payment of the Option Price are received by the Company. For purposes of determining the date of exercise where payment of the Option Price is made in shares of already-owned Common Stock, any cash required to be paid to the Company with respect to a fraction of a share shall not be taken into account when determining whether payment of the Option Price has been made. 2 3 5. Issuance of Certificates. Subject to Section 4 above and this Section 5, the Company will issue a certificate or certificates representing the number of shares of Common Stock for which the Option is exercised as soon as practicable after the date of exercise. Unless otherwise directed, the certificate(s) will be registered in the name of the person exercising the Option and delivered to such person. If the Option Price is paid in whole or in part with shares of already-owned Common Stock, the Company will issue at the same time and return to the person exercising the Option a certificate representing the number of any excess shares included in any certificate or certificates delivered to the Company at the time of exercise. The obligation of the Company to issue shares on exercise of an option is subject to the effectiveness of a Registration Statement under the Securities Act of 1933, as amended, with respect to such shares, if deemed necessary or appropriate by counsel to the Company. The Company is not obligated to file such a Registration Statement. If at the time of exercise of the Option, no such Registration Statement is in effect, the issuance of shares on exercise of the Option may also be made subject to restrictions on the transfer of the shares, including the placing of an appropriate legend on the certificates restricting the transfer thereof, and to such other restrictions as the Committee, on the advice of counsel, may deem necessary or appropriate to prevent a violation of applicable securities laws. 6. Withholding of Taxes. The Holder will be advised by the Company as the amount of any Federal income, employment or excise taxes required to be withheld by the Company on any compensation income resulting from the exercise of the Option, and the Holder will pay such taxes directly to the Company upon request. State, local or foreign income or employment taxes may also be required to be withheld by the Company and the Holder will also be required to pay such taxes directly to the Company upon request. If the Holder does not pay any taxes required to be withheld directly to the Company within ten (10) days after any such request, the Company may withhold such taxes from any other compensation to which the Holder is entitled from the Company. The Holder will hold the Company harmless in acting to satisfy its withholding obligations in this manner if it becomes necessary to do so. 7. Interpretation of Plan and Agreement. This Agreement is an award agreement referred to in Section 6.2 of the Plan. If there is any conflict between the Plan and this Agreement, the provisions of the Plan shall control. However, there may be provisions in this Agreement not contained in the Plan, which provisions shall nevertheless be effective. In addition, to the extent that provisions of the Plan are expressly modified for purposes of this Agreement pursuant to authorization in the Plan, the provisions of this Agreement shall control. Any dispute or disagreement which shall arise under or in any way relate to the construction or interpretation of the Plan or this Agreement shall be resolved by the Committee, and the decision of the Committee shall be final, binding and conclusive for all purposes. 8. Effect of Agreement on Rights of Company and Holder. This Agreement does not confer any rights on the Holder to continue in the employ of the Company or interfere in any way with the rights of the Company to terminate the employment of the Holder or to otherwise reassign or change the current position of the Holder. 3 4 9. Indemnification. The Holder indemnifies and holds harmless the Company from and against any and all loss, damages, liability or expense, including costs and reasonable attorneys' fees, to which the Company may be put or may incur by reason of or in connection with any misrepresentation made by the Holder, any breach of the Holder's warranties, or the Holder's failure to fulfill any of his or her covenants or agreements set forth herein. 10. Binding Effect. This Agreement shall be binding upon the successors and assigns of the Company and upon the legal representatives, heirs and legatees of the Holder. 11. Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior agreements and understandings, oral or written, between the parties with respect to the subject matter of this Agreement. 12. Amendment. This Agreement may be amended only a written instrument signed by the Company and the Holder. 13. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the Commonwealth of Pennsylvania. IN WITNESS WHEREOF, the Company and the Holder have executed this Agreement as of the date first written above. TOLLGRADE COMMUNICATIONS, INC. By: -------------------------- Title: ----------------------- WITNESS: HOLDER: - ----------------------------- ------------------------------ 4 EX-4.10 4 TOLLGRADE, INC. 1 Exhibit 4.10 TOLLGRADE COMMUNICATIONS, INC. NON-EMPLOYEE DIRECTOR NONSTATUTORY STOCK OPTION AGREEMENT THIS AGREEMENT is made and entered into this _____ day of ____________, 199__, by and between TOLLGRADE COMMUNICATIONS, INC., a Pennsylvania corporation (the "Company") and ______________________, an individual (the "Holder"). WHEREAS, the Company desires to issue, and the Holder desires to receive, an option to purchase shares of the common stock of the Company, pursuant to the terms described herein. NOW, THEREFORE, in consideration of the terms and conditions contained herein and intending to be legally bound hereby, the parties agree as follows: 1. Grant of Option. The Company hereby confirms the grant to the Holder on ____________ (the "Date of Grant") of an option (the "Option") to purchase, in accordance with the terms hereof, up to __________ (________) shares of common stock of the Company, par value $.20 per share (the "Common Stock") at an option price of $________ per share, under and subject to the terms and conditions of the Company's 1995 Long-Term Incentive Compensation Plan, as amended (the "Plan") and this Agreement. The Plan is incorporated herein by reference and made a part hereof as though set forth in full herein. Terms which are capitalized herein but which are not defined herein have the same meaning as in the Plan unless the context otherwise requires. The Option confirmed hereby is a nonstatutory stock option as that term is defined in Section 2.20 of the Plan. Subject to the terms of Section 6.9 of the Plan regarding the periods during which stock options may be exercised upon termination of Board service, and Section 14.1 of the Plan regarding the periods during which the Option may be exercised during a Change-in-Control (as defined in the Plan), the Option shall be exercisable as follows: (a) From and after ______________, the Option shall be exercisable for _________ shares covered hereby. (b) From and after ______________, the Option shall be exercisable for an additional ________________ shares covered hereby. (c) From and after ____________, the Option shall be exercisable for all of the shares covered hereby. 2 The Option will expire at the close of business on _________________ . 2. Acceptance of Grant of Option. The Holder accepts the grant of the Option confirmed hereby, acknowledges having received a copy of the Plan and agrees to be bound by the terms and provisions of the Plan, as the Plan may be amended from time to time; provided, however, that no alteration, amendment, revocation or termination of the Plan shall, without the written consent of the Holder, adversely affect the rights of the Holder with respect to the Option. 3. Non-Transferability. This Option shall not be transferrable otherwise than by Will or the laws of descent or distribution, and the Option shall be exercisable during the lifetime of the Holder only by the Holder. 4. Procedure for Exercise of Option. The Option may be exercised only by (a) execution and delivery by the Holder to the Company of an exercise form or forms prescribed by the Committee; and (b) surrender of this Agreement at the principal office of the Company. Each exercise form must set forth the number of shares of Common Stock for which the Option is exercised and must be dated and signed by the person exercising the Option. Subject to the last paragraph of this Section 4, the exercise is not effective until the Company receives payment of the full option price for the number of shares of Common Stock for which the Option is exercised. The Option Price shall be paid to the Company in full in the manner specified in Section 6.6 of the Plan. To the extent the Holder pays the Option Price in whole or in part by shares of already-owned Common Stock, as permitted by the Plan, the Company shall advise any person exercising the Option in such manner as to the amount of any cash required to be paid to the Company for any shares representing a fraction of a share, and such person will be required to pay any such cash directly to the Company before any distribution of certificates representing shares of Common Stock will be made. The person exercising the Option should execute the form of assignment on the back of the certificate or should deliver an executed Assignment Separate from Certificate with respect to each stock certificate delivered in payment of the Option Price. If any person other than the Holder exercises the Option, the exercise material must include proof satisfactory to the Company of the right of such person to exercise the Option, and the signature on all certificates or stock powers must be guaranteed by a commercial bank or trust company or by a firm having membership in the New York Stock Exchange, Inc., the American Stock Exchange, Inc., or the National Association of Securities Dealers, Inc. The date of exercise of the Option is the date on which the exercise form or forms, proof of right to exercise (if required) and payment of the Option Price are received by the Company. For purposes of determining the date of exercise where payment of the Option Price is made in shares of already-owned Common Stock, any cash required to be paid to the Company with respect to a fraction of a share shall not be taken into account when determining whether payment of the Option Price has been made. 2 3 5. Issuance of Certificates. Subject to Section 4 above and this Section 5, the Company will issue a certificate or certificates representing the number of shares of Common Stock for which the Option is exercised as soon as practicable after the date of exercise. Unless otherwise directed, the certificate(s) will be registered in the name of the person exercising the Option and delivered to such person. If the Option Price is paid in whole or in part with shares of already-owned Common Stock, the Company will issue at the same time and return to the person exercising the Option a certificate representing the number of any excess shares included in any certificate or certificates delivered to the Company at the time of exercise. The obligation of the Company to issue shares on exercise of an option is subject to the effectiveness of a Registration Statement under the Securities Act of 1933, as amended, with respect to such shares, if deemed necessary or appropriate by counsel to the Company. The Company is not obligated to file such a Registration Statement. If at the time of exercise of the Option, no such Registration Statement is in effect, the issuance of shares on exercise of the Option may also be made subject to restrictions on the transfer of the shares, including the placing of an appropriate legend on the certificates restricting the transfer thereof, and to such other restrictions as the Committee, on the advice of counsel, may deem necessary or appropriate to prevent a violation of applicable securities laws. 6. Withholding of Taxes. The Holder will be advised by the Company as to the amount of any federal income, employment or excise taxes required to be withheld by the Company on any compensation income resulting from the exercise of the Option, and the Holder will pay such taxes directly to the Company upon request. State, local or foreign income or employment taxes may also be required to be withheld by the Company and the Holder will also be required to pay such taxes directly to the Company upon request. If the Holder does not pay any taxes required to be withheld directly to the Company within ten (10) days after any such request, the Company may withhold such taxes from any other compensation to which the Holder is entitled from the Company. The Holder will hold the Company harmless in acting to satisfy its withholding obligations in this manner if it becomes necessary to do so. 7. Interpretation of Plan and Agreement. This Agreement is an award agreement referred to in Section 6.2 of the Plan. If there is any conflict between the Plan and this Agreement, the provisions of the Plan shall control. However, there may be provisions in this Agreement not contained in the Plan, which provisions shall nevertheless be effective. In addition, to the extent that provisions of the Plan are expressly modified for purposes of this Agreement pursuant to authorization in the Plan, the provisions of this Agreement shall control. Any dispute or disagreement which shall arise under or in any way relate to the construction or interpretation of the Plan or this Agreement shall be resolved by the Board, and the decision of the Board shall be final, binding and conclusive for all purposes. 8. Effect of Agreement on Rights of Company and Holder. This Agreement does not confer any rights on the Holder to continue as a Director. 9. Indemnification. The Holder indemnifies and holds harmless the Company from and against any and all loss, damages, liability or expense, including costs and reasonable 3 4 attorneys' fees, to which the Company may be put or may incur by reason of or in connection with any misrepresentation made by the Holder, any breach of the Holder's warranties, or the Holder's failure to fulfill any of his or her covenants or agreements set forth herein. 10. Binding Effect. This Agreement shall be binding upon the successors and assigns of the Company and upon the legal representatives, heirs and legatees of the Holder. 11. Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior agreements and understandings, oral or written, between the parties with respect to the subject matter of this Agreement. 12. Amendment. This Agreement may be amended only a written instrument signed by the Company and the Holder. 13. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the Commonwealth of Pennsylvania. IN WITNESS WHEREOF, the Company and the Holder have executed this Agreement as of the date first written above. TOLLGRADE COMMUNICATIONS, INC. By: --------------------------- Title: ------------------------ WITNESS: HOLDER: - ------------------------------- ----------------------------- 4 EX-5.1 5 TOLLGRADE, INC. 1 Exhibit 5.1 Reed Smith Shaw & McClay LLP 435 Sixth Avenue Pittsburgh, PA 15219-1886 Phone: 412-288-3131 Fax: 412-288-3063 July 18, 1997 Tollgrade Communications, Inc. 493 Nixon Road Cheswick, PA 15024 Re: Post-Effective Amendment No. 1 to Registration Statement on Form S-8 Gentlemen: We have acted as counsel to Tollgrade Communications, Inc., a Pennsylvania corporation (the "Company"), in connection with its Post-Effective Amendment No. 1 to Registration Statement on Form S-8, File No. 333-4290 (the "Registration Statement"), relating to 392,500 shares of Common Stock, par value $.20 per share, of the Company (the "Common Stock") which may be purchased by certain employees or non-employee directors of the Company pursuant to stock options granted them in connection with services provided to the Company (the "Options"). In rendering our opinion below, we have assumed that any previously issued shares reacquired by the Company and delivered under the Options will have been duly authorized, validly issued and fully paid at the time of their original issuance. In connection with this opinion, we have examined, among other things: (1) the Articles of Incorporation and Bylaws of the Company, as amended to date; (2) actions taken by the Board of Directors of the Company on December 13, 1996 and February 17, 1997, authorizing the granting of the Options; and (3) the agreements governing the Options, as currently in effect. Based upon the foregoing and upon an examination of such other documents, corporate proceedings, statutes, decisions and questions of law as we considered necessary in order to enable us to furnish this opinion, and subject to the assumption set forth above, we are pleased to advise you that in our opinion the 392,500 shares of Common Stock being registered and which may be issued by the Company upon the exercise of the Options have been duly authorized, and upon such issuance such shares will, when sold, be validly issued, fully paid and nonassessable. In rendering the foregoing opinion, we have not examined the laws of any jurisdiction other than the laws of the Commonwealth of Pennsylvania and the federal laws of the United States of America and the foregoing opinion is limited to such laws. We hereby consent to the filing of this opinion as an Exhibit to the Registration Statement and to the use of our name in the Prospectus under the caption "Legal Opinion." Yours truly, /s/ Reed Smith Shaw & McClay PDG,Jr. EX-23.2 6 TOLLGRADE, INC. 1 Exhibit 23.2 Coopers & Lybrand L.L.P. COOPERS & LYBRAND a professional services firm CONSENT OF INDEPENDENT ACCOUNTANTS We consent to the incorporation by reference in the registration statement of Tollgrade Communications, Inc. and subsidiaries on Post-Effective Amendment No. 1 to Form S-8 (File No. 333-4290) of our report dated January 29, 1997, on our audits of the consolidated financial statements and financial statement schedule of Tollgrade Communications, Inc. and subsidiaries as of December 31, 1996 and 1995, and for each of the three years in the period ended December 31, 1996, which report is incorporated by reference in the Annual Report to Shareholders on Form 10-K. Coopers & Lybrand L.L.P. Pittsburgh, Pennsylvania July 17, 1997 Coopers & Lybrand L.L.P. is a member of Coopers & Lybrand international, a limited liability association incorporated in Switzerland. 2 COOPERS Coopers & Lybrand L.L.P. 600 Grant Street & LYBRAND 35th Floor a professional services firm Pittsburgh, Pennsylvania 15219-2777 telephone (412) 365-8000 facsimile (412) 355-8069 Securities and Exchange Commission 450 Fifth Street, NW Washington, DC 20549 Re: Tollgrade Communications, Inc. Post Effective Amendment No. 1 to Form S-8 (File No. 333-4290) We are aware that our report dated April 10, 1997 on our review of interim consolidated financial information of Tollgrade Communications, Inc. and subsidiaries for the three-month period ended March 29, 1997 and included in the Company's quarterly report on Form 10-Q for the quarter then ended is incorporated by reference in this registration statement. Pursuant to Rule 436(c) under the Securities Act of 1933, this report should not be considered a part of the registration statement prepared or certified by us within the meaning of Sections 7 and 11 of that Act. Very truly yours. Coopers & Lybrand L.L.P. Coopers & Lybrand L.L.P. Pittsburgh, Pennsylvania Coopers & Lybrand L.L.P. is a member of Coopers & Lybrand international, a limited liability association incorporated in Switzerland. -----END PRIVACY-ENHANCED MESSAGE-----