As filed with the Securities and Exchange Commission on January 16, 1998
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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COMVERSE TECHNOLOGY, INC.
(Exact name of registrant as specified in its charter)
New York 13-3238402
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
170 Crossways Park Drive
Woodbury, NY 11797
(Address of Principal Executive Offices)
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Boston Technology, Inc. 1989 Stock Option Plan
Boston Technology, Inc. 1992 Directors' Stock Option Plan
Boston Technology, Inc. 1994 Stock Incentive Plan
Boston Technology, Inc. 1995 Director Stock Option Plan
Boston Technology, Inc. Amended and Restated 1996 Stock Incentive Plan
Nonstatutory Stock Option Agreement
Comverse Technology, Inc. 1997 Stock Incentive Compensation Plan
Comverse Technology, Inc. 1997 Employee Stock Purchase Plan
(Full title of the plans)
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Kobi Alexander
Chairman of the Board and Chief Executive Officer
Comverse Technology, Inc.
170 Crossways Park Drive
Woodbury, New York 11797
(516) 677-7200
(Name, address and telephone number, including area code,
of agent for service)
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF SECURITIES:
PROMPTLY AFTER FILING OF THIS REGISTRATION STATEMENT
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CALCULATION OF REGISTRATION FEE
Proposed Proposed
maximum maximum Amount
Title of each offering aggregate of
class of securities Amount to pricer per offering registration
to be registered be registered(1) security(2) price(2) fee
Common Stock, par
value $0.10 per share.. 5,550,214 $34-7/8 $193,563,713.25 $57,101.30
================================================================================
(1) Includes 177,013 shares, 68,250 shares, 488,475 shares, 195,000
shares, 1,853,581 shares, 17,895 shares, 2,500,000 shares and 250,000
shares registered under the Boston Technology, Inc. 1989 Stock Option
Plan, Boston Technology, Inc. 1992 Directors' Stock Option Plan,
Boston Technology, Inc. 1994 Stock Incentive Plan, Boston Technology,
Inc. 1995 Director Stock Option Plan, Boston Technology, Inc. Amended
and Restated 1996 Stock Incentive Plan, Nonstatutory Stock Option
Agreement, Comverse Technology, Inc. 1997 Stock Incentive Compensation
Plan and Comverse Technology, Inc. 1997 Employee Stock Purchase Plan,
respectively.
(2) Estimated solely for purposes of calculating the registration fee
required by Section 6(b) of the Securities Act of 1933, as amended
(the "Securities Act"), and calculated pursuant to Rule 457(h) under
the Securities Act. Pursuant to Rule 457(h)(1) under the Securities
Act, the proposed maximum aggregate offering price of the Common Stock
was calculated in accordance with Rule 457(c) under the Securities Act
as: (a) $34-7/8, the average of the high and low prices per share of
the Registrant's Common Stock on January 14, 1998, as reported in The
Wall Street Journal, multiplied by (b) 5,550,214, the maximum number
of shares of the Registrant's Common Stock issuable under the plans
covered by this Registration Statement.
===========================================================================
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Information required in Part I to be contained in the Section
10(a) prospectus is omitted from this Registration Statement in accordance
with Rule 428 under the Securities Act of 1933, as amended, and the "Note"
to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
Comverse Technology, Inc., a New York corporation ("Comverse" or the
"Registrant"), hereby incorporates by reference into this Registration
Statement the following documents previously filed with the Securities and
Exchange Commission (the "SEC") pursuant to the Securities Exchange Act of
1934, as amended (the "Exchange Act"):
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996, as amended;
(b) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1997;
(c) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1997;
(d) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1997;
(e) All other reports and other documents filed by the Registrant
pursuant to Section 13(a) or 15(d) of the Exchange Act since
December 31, 1996; and
(f) The description of the Registrant's Common Stock contained in its
Registration Statement on Form 8-A filed with the SEC on March
17, 1987.
All documents subsequently filed by the Registrant pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of
this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold
or that deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference into this Registration Statement and to be
a part hereof from the date of filing of such documents. Any statement
contained in a document incorporated or deemed to be 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 subsequently filed document which also is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration
Statement.
<PAGE>
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Counsel for the Company, William F. Sorin, 823 Park Avenue, New
York, New York 10021, has rendered an opinion to the effect that the Common
Stock offered hereby will, when issued in accordance with the Boston
Technology, Inc. 1989 Stock Option Plan, Boston Technology, Inc. 1992
Directors' Stock Option Plan, Boston Technology, Inc. 1994 Stock Incentive
Plan, Boston Technology, Inc. 1995 Director Stock Option Plan, Boston
Technology, Inc. Amended and Restated 1996 Stock Incentive Plan,
Nonstatutory Stock Option Agreement, Comverse Technology, Inc. 1997 Stock
Incentive Compensation Plan and Comverse Technology, Inc. 1997 Employee
Stock Purchase Plan be legally and validly issued, fully-paid and
nonassessable. Mr. Sorin is an officer and director of the Company and the
beneficial owner of 25,000 shares of Common Stock issuable upon exercise of
stock options.
Item 6. Indemnification of Directors and Officers
The Company has included in its Certificate of Incorporation,
pursuant to Section 402(b) of the Business Corporation Law of the State of
New York, a provision that no director of the Company shall be personally
liable to the Company or its shareholders in damages for any breach of duty
as a director, provided that such provision shall not be construed to
eliminate or limit the liability of any director if a judgment or other
final adjudication adverse to him establishes that his acts or omissions
were in bad faith or involved intentional misconduct or a knowing violation
of law, that he personally gained in fact a financial profit or other
advantage to which he was not legally entitled or that his acts violated
Section 719 of the Business Corporation Law.
The By-Laws of the Company further provide that the Company shall
indemnify its directors and officers, and shall advance their expenses in
the defense of any action for which indemnification is sought, to the full
extent permitted by the Business Corporation Law and when authorized by
resolution of the shareholders or directors of the Company or any agreement
providing for such indemnification or advancement of expenses, provided
that no indemnification may be made to or on behalf of any director or
officer if a judgment or other final adjudication adverse to him
establishes that his acts were committed in bad faith or were the result of
active and deliberate dishonesty material to the cause of action so
adjudicated, or that he personally gained in fact a financial profit or
their advantage to which he was not legally entitled. The Company has
entered into indemnity agreements with each of its directors and officers
pursuant to the foregoing provisions of its By-Laws.
Item 7. Exemption from Registration Claimed
Not applicable.
<PAGE>
Item 8. Exhibits
See Index to Exhibits following the signature pages to
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;
(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) of this section
do not apply if the Registration Statement is on Form S-8 or Form S-3, and
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished
to the Commission by the Registrant pursuant to section 13 or section 15(d)
of the Securities Exchange Act of 1934 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 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.
(4) 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.
<PAGE>
(5) 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
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.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it
meets all the requirements for filing this 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 New York, State of New York, on
the 14th day of January, 1998.
Comverse Technology, Inc.
(Registrant)
By: /s/ Kobi Alexander
Kobi Alexander
President, Chairman of the Board and
Chief Executive Officer
<PAGE>
POWERS OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that each person whose
signature appears below hereby constitutes and appoints Kobi Alexander,
William F. Sorin and David Kreinberg, and each of them singly, his or her
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, to sign any and all amendments, including
post-effective amendments, to this Registration Statement (any of which
amendments may make such changes and additions to this Registration
Statement as such attorneys-in-fact may deem necessary or appropriate) and
to file the same, with all exhibits thereto, and any other documents that
may be required in connection therewith, granting unto said
attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and
about the premises, as fully to all intents and purposes as he or she might
or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or their substitutes, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed below by the following persons on
January 14, 1998 in the capacities indicated.
/s / Kobi Alexander President, Chairman of the
Kobi Alexander Board and Chief Executive
Officer and Director
(Principal Executive Officer)
/s/ Igal Nissim Chief Financial Officer
Igal Nissim (Principal Financial and
Accounting Officer)
/s/ Carmel Vernia Chief Operating Officer and
Carmel Vernia Director
/s/ Zvi Alexander Director
Zvi Alexander
/s/ Sam Oolie Director
Sam Oolie
/s/ John H. Friedman Director
John H. Friedman
<PAGE>
/s/ William F. Sorin Director
William F. Sorin
/s/ Shaula A. Yemini Director
Shaula A. Yemini, Ph.D.
<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
4.1 Excerpts from certificate of incorporation, as amended. [1]
4.2 Excerpts from by-laws, as amended. [2]
4.3 Specimen stock certificate. [3]
4.4 Indenture dated as of November 30, 1993 from Comverse Technology,
Inc. to The Chase Manhattan Bank, N.A., Trustee. [3]
4.5 Specimen 5-1/4% Convertible Subordinated Debenture due 2003. [3]
4.6 Indenture dated as of October 4, 1996 from Comverse Technology,
Inc. to The Chase Manhattan Bank, N.A., Trustee. [4]
4.7 Specimen 5-3/4% Convertible Subordinated Debenture due 2005. [5]
4.8 Boston Technolgy, Inc. 1989 Stock Option Plan.
4.9 Boston Technology, Inc. 1992 Directors' Stock Option Plan.
4.10 Boston Technology, Inc. 1994 Stock Incentive Plan.
4.11 Boston Technology, Inc. 1995 Director Stock Option Plan.
4.12 Boston Technology, Inc. Amended and Restated 1996 Stock
Incentive Plan.
4.13 Comverse Technology, Inc. 1997 Stock Incentive Compensation Plan.
- ----------------
[1] Incorporated by reference to Exhibits filed with Annual Report on Form
10-K under the Securities Exchange Act of 1934 for the year ended
December 31, 1994.
[2] Incorporated by reference to Exhibits filed with Annual Report on Form
10-K under the Securities Exchange Act of 1934 for the year ended
December 31, 1992.
[3] Incorporated by reference to Exhibits filed with Annual Report on Form
10-K under the Securities Exchange Act of 1934 for the year ended
December 31, 1993.
[4] Incorporated by reference to Exhibits filed with Annual Report on Form
10-K under the Securities Exchange Act of 1934 for the year ended
December 31, 1996.
[5] Included in Exhibit 4.6.
<PAGE>
4.14 Comverse Technology, Inc. 1997 Employee Stock Purchase Plan.
5.1 Opinion of William F. Sorin, Esq.
23.1 Consent of William F. Sorin, Esq. (included in Exhibit 5.1).
23.2 Consent of Deloitte & Touche L.L.P.
<PAGE>
EXHIBIT 4.8
BOSTON TECHNOLOGY, INC.
Amendments to 1989 Incentive Stock Option Plan
The 1989 Incentive Stock Option Plan (the "Plan") was amended by
the Board of Directors of the Company on October 10, 1991, February 5,
1992, and May 13, 1992; the amendments were approved by the stockholders of
the Company on July 14, 1992. The Plan was amended to increase the number
of shares of common stock available for issuance from 1,500,000 shares to
3,500,000 shares and, further, to authorize the issuance of nonstatutory
options (in addition to incentive stock options under the Plan). The
following are the amendments made to the Plan:
1. The title of the Plan is deleted in its entirety and the
following title substituted therefor:
BOSTON TECHNOLOGY, INC.
1989 Stock option Plan
2. The words "Incentive Stock Option Plan" in the first sentence
of Section 1 shall be deleted and replaced with the words "Stock Option
Plan."
3. The words "and its subsidiaries" shall be added to Section 1
after the words "Boston Technology, Inc."
4. The number "500,000" in the first sentence of Section 2 shall
be deleted and the number 3,500,000 substituted therefor.
5. The following sentence shall be added to the end of Section 2:
"Options granted pursuant to the Plan may be either incentive stock
options ('Incentive Stock Options') meeting the requirements of
Section 422 of the Internal Revenue Code of 1986, as amended or
replaced from time to time (the "Code") or non-statutory options which
are not intended to meet the requirements of Section 422 of the Code."
6. The first sentence of Section 4(a) shall be deleted in its
entirety and the following sentence substituted therefor:
"Options may be granted to persons who are, at the time of grant,
employees, officers or directors of, or consultants or advisors to,
the Company; provided, that the class of employees to whom Incentive
Stock Options may be granted shall be limited to all employees of the
Company."
7. Section 5 shall be deleted in its entirety and the following
shall be substituted therefor:
"Price. The purchase price per share of stock deliverable upon the
exercise of an option shall be determined by the Board of Directors,
provided, however, that in the case of an Incentive Stock Option, the
exercise price shall not be less than 100% of the fair market value of
such stock on the date of grant (determined as the closing bid price
of such shares on the date of grant, unless no such information is
available, and in that event the fair market value will be determined
as the closing bid price on the next day that such information is
<PAGE>
available), or less than 110% of such fair market value in the case of
options described in Section 21(b)."
8. Section 6 shall be deleted in its entirety and the following
shall be substituted therefor:
"Incentive Stock Options, and all options granted to Reporting Persons
(as defined under Section 16(a) of the Securities Exchange Act of 1934
(the "Exchange Act")), shall not be assignable or transferable by the
person to whom they are granted, either voluntarily or by operation of
law, except by will or the laws of descent and distribution, and,
during the life of the optionee, shall be exercisable only by the
optionee; provided, however, that non-statutory options may be
transferred pursuant to a qualified domestic relations order (as
defined in Rule 16b-3 of the Exchange Act)."
9. Section 8 shall be deleted in its entirety and the
following shall be substituted therefor:
"Duration and Exercise of Options. Each option and all rights
thereunder shall expire on such date as shall be set forth in the
applicable option agreement, except that, in the case of an
Incentive Stock Option, such date shall not be later than ten
years after the date on which the option is granted and, in all
cases, options shall be subject to earlier termination as provided
in the Plan. Each option granted under the Plan shall be
exercisable either in full or in installments at such time or
times and during such period as shall be set forth in the
agreement evidencing such option, subject to the provisions of the
Plan."
10. Section 10 shall be deleted in its entirety and the following
shall be substituted therefor:
"Except as provided in Section 21(d) with respect to Incentive
Stock Options, and subject to the provisions of the Plan, the
Board of Directors shall determine the period of time during
which an optionee may exercise an option following (i) the
termination of the optionee's employment or other relationship
with the Company or (ii) the death or disability of the optionee.
Such periods shall be set forth in the agreement evidencing such
option."
11. The following shall be added as Section 21 to the Plan:
21. Provisions Applicable to Incentive Stock Options. Options granted
under the Plan which are intended to be Incentive Stock Options shall
be subject to the following additional terms and conditions:
(a) Express Designation. All Incentive Stock Options granted
under the Plan shall, at the time of grant, be specifically
designated as such in the option agreement covering such
Incentive Stock Options.
(b) 10% Shareholder. If any employee to whom an Incentive Stock
Option is to be granted under the Plan is, at the time of
the grant of such option, the owner of stock possessing more
than 10% of the
<PAGE>
total combined voting power of all classes of stock of the
Company (after taking into account the attribution of stock
ownership rules of Section 424(d) of the Code), then the
following special provisions shall be applicable to the
Incentive Stock Option granted to such individual:
(i) The purchase price per share of the Common Stock
subject to such Incentive Stock Option shall not be
less than 110% of the fair market value of one share of
Common Stock at the time of grant; and
(ii) the option exercise period shall not exceed five
years from the date of grant.
(c) Dollar Limitation. For so long as the Code shall so provide,
options granted to any employee under the Plan (and any
other incentive stock option plans of the Company) which are
intended to constitute Incentive Stock Options shall not
constitute Incentive Stock Options to the extent that such
options, in the aggregate, become exercisable for the first
time in any one calendar year for shares of Common Stock
with an aggregate fair market value (determined as of the
respective date or dates of grant) of more than $100,000.
(d) Termination of Employment, Death or Disability. No Incentive
Stock Option may be exercised unless, at the time of such
exercise, the optionee is, and has been continuously since
the date of grant of his or her option, employed by the
Company, except that:
(i) an Incentive Stock Option may be exercised within
the period of three months after the date the optionee
ceases to be an employee of the Company (or within such
lesser period as may be specified in the applicable
option agreement), provided, that the agreement with
respect to such option may designate a longer exercise
period and that the exercise after such three-month
period shall be treated as the exercise of a
nonstatutory option under the Plan;
(ii) if the optionee dies while in the employ of the
Company, or within three months after the optionee
ceases to be such an employee, the Incentive Stock
Option may be exercised by the person to whom it is
transferred by will or the laws of descent and
distribution within the period of one year after the
date of death (or within such lesser period as may be
specified in the applicable option agreement); and
(iii) if the optionee becomes disabled (within the
meaning of Section 22(e)(3) of the Code or any
successor provision thereto) while in the employ of the
Company, the Incentive Stock Option may be exercised
within the period of one
<PAGE>
year after the date the optionee ceases to be such an
employee because of such disability (or within such
lesser period as may be specified in the applicable
option agreement).
For all purposes of the Plan and any option granted hereunder, "employment"
shall be defined in accordance with the provisions of Section 1.421-7(h) of
the Income Tax Regulations (or any successor regulations). Notwithstanding
the foregoing provisions, no Incentive Stock Option may be exercised after
its expiration date.
<PAGE>
BOSTON TECHNOLOGY, INC.
1989 Incentive Stock Option Plan
1. Purpose of the Plan. This Incentive Stock Option Plan
(hereinafter called the "Plan") is intended to advance the interests of
Boston Technology, Inc. (hereinafter called the "Company") by providing the
participating employees with an added incentive to continue their services
to the Company and to intensify their interest in the success of the
Company.
2. Stock Subject to the Plan. There will be authorized for use
upon the exercise of options to be granted from time to time under the Plan
(hereinafter called "options") an aggregate of 5,000,000 shares of Common
Stock of the Company, with a par value of $.001 per share, which shares may
be, in whole or in part, as the Board of Directors of The Company
(hereinafter called the "Board" or "Board of Directors") shall determine,
authorized but unissued shares or issued shares which have been reacquired
by the Company.
3. Stock Option Committee. At the discretion of the Board of
Directors, the Plan may be administered by a Stock Option Committee
(hereinafter called the "Committee") consisting of two or more directors of
the Company designated from time to time by the Board. Subject to the
provisions of the Plan, the Committee shall have plenary authority in its
discretion to determine the employees of the Company to whom options shall
be granted, the number of shares to be covered by each of the options, the
option price (consistent with the provisions of Paragraph 5 hereof), the
method of exercise of any option as related to exercise in whole or in
installments, the time or times at which options shall be granted, to
interpret the Plan, and to prescribe, amend, and rescind rules and
regulations relating to it. The Board of Directors may from time to time
appoint members of the Committee in substitution for or in addition to
members previously appointed and may fill vacancies, however caused, in the
Committee. The Committee shall select one of its members as its chairman
and shall hold its meetings in such times and places as it shall deem
advisable. A majority of its members shall constitute a quorum. All action
of the Committee shall be taken by a majority of its members. Any action
may be taken by a written instrument signed by a majority of the members
and action so taken shall be fully as effective as if it had been taken by
a vote of a majority of its members at a meeting duly called and held. The
Committee may appoint a secretary, shall keep minutes of its meetings, and
shall make such rules and regulations for the conduct of its business as it
shall deem advisable.
4. Participants. The class of employees who shall be eligible to
receive options under the Plan shall be full-time and part-time employees
who are employees of either Boston Technology, Inc. or any wholly owned
subsidiary of the Company. The Board nay, in its discretion, provide that
certain options not vest (i.e. become exercisable) until expiration of a
certain period of time or until other conditions are satisfied, so long as
such conditions are not contrary to this Plan or violative of Section 422A
of the Code. No option granted under the Plan shall be, nor shall it be
construed to be, a contract of employment or a grant of any right to the
optionee to remain in the employ of the Company or any subsidiary. The
Company retains the right to terminate the employment of each and every
employee optionee at any time for any reason whatsoever, subject only to
the terms of any employment agreement entered into
<PAGE>
with a particular employee. The Board of Directors or the Committee, if
such Committee is in existence, shall from time to time designate from
among the eligible in dividuals the persons to whom options shall be
granted.
5. Price. The option price or prices of shares offered to any
participants under this Plan shall not be less than the fair market value
of such shares on the date upon which an option is granted (determined as
the closing bid price of such shares on the date of grant, unless no such
information is available, and in that event the fair market value will be
determined as the closing bid on the next day that such information is
available). In the case of an optionee who is also a more than 10%
stockholder of the Company, the option price or prices of shares offered
shall not be less than 110% of the fair market value of such shares on the
date upon which an option is granted. The aggregate fair market value
(determined at the time the option is granted) of the shares with respect
to which options are exercisable for the first time by the optionee during
any calendar year [under all plans relating to incentive stock options, as
defined in Section 422A(b) of the Internal Revenue Code of 1986, as amended
(the "Code"), maintained by the Company and any parent and/or subsidiary
corporation of the Company] shall not exceed one hundred thousand dollars
($100,000).
6. Non-Transferability of Option. No option granted under the
Plan to an employee shall be transferable by him otherwise than by will or
the laws of descent and distribution, and such option shall be exercisable,
during his lifetime, only by him; provided, that in the event of the legal
disability of an optionee, the guardian or personal representative of the
optionee may exercise the option if such guardian or personal
representative obtains a ruling from the Internal Revenue Service or an
opinion of legal counsel to the effect that neither the grant nor the
exercise of such power is violative of Section 422A(b)(5) of the Code. Any
opinion of counsel must be in a form acceptable to the Board.
7. When Shares May be Re-optioned. If any option granted under
the Plan shall expire or terminate for any reason without having been
exercised in full, the shares subject to such option shall be available to
be optioned for the purposes of the Plan. Optioned shares which have ceased
to be exercisable and have become forfeited under any option may be
re-optioned.
8. Duration and Exercise of Options. Options granted under the
Plan may, be of such duration as shall be determined by the Board of
Directors or the Committee, but in no event shall an option be exercisable
after a period of ten (10) years [five (5) years in the case of a more than
10% stockholder] from the date of grant thereof. An option may be exercised
in whole at any time, or in part from time to time, during the option
period subject to such limitations and restrictions as may be included in
the option. Except as otherwise provided in Paragraph 10 of the Plan, no
option may be exercised unless the optionee, at all times during the period
beginning on the date of the granting of the option and ending on the day
three months before the date of such exercise, was an employee of the
Company or of any subsidiary corporation. In no event may an option be
exercised in respect of a fractional share.
9. Method of Exercising Option. (a) Options may be exercised by
giving written notice to the Secretary of the Company at its principal
office, presently located at One Kendall Square, Building 300, Cambridge,
Massachusetts 02139. Each notice shall state the election to exercise the
option and the number of shares in respect of which it is
<PAGE>
being exercised, and shall be signed by the person or persons so exercising
the option. Such notice shall either: (i) be accompanied by payment of the
full purchase price of such shares, in which event the Company shall,
subject to the provisions of subparagraphs (b) and (c) of this Paragraph 9,
deliver a certificate or certificates representing such shares as soon as
practicable after the notice shall be received, or (ii) fix a date (not
less than five nor more than ten business days from the date such notice
shall be received by the Company) for the payment of the full purchase
price of such shares against delivery, subject to the provisions of
subparagraphs (b) and (c) of this Paragraph 9, of a certificate or
certificates representing such shares. Payment of such purchase price
shall, in either case, be made by bank draft or check payable to the order
of the Company, and/or, subject to and in accordance with the rules
established by the Committee, by shares of Common Stock of the Company or
other property. The certificate or certificates for the shares as to which
the option shall have been so exercised shall be registered in the name of
the person or persons so exercising the option and shall be delivered as
provided above to the person or persons exercising the option. All shares
that shall be purchased upon the exercise of the option as provided herein
shall be fully paid and non-assessable.
(b) Unless prior to the exercise of an option the shares of
Common Stock issuable upon such exercise have been registered with the
Securities and Exchange Commission pursuant to the Securities Act of 1933,
as amended, the notice of exercise shall be accompanied by a representation
or agreement of the individual exercising the option to the Company to the
effect that such shares are being acquired for investment and not with a
view to the resale or distribution thereof and the individual exercising
the option shall provide such other documentation as may be required by the
Company, unless in the opinion of counsel to the Company such
representation, agreement or documentation is not necessary to comply with
said Act.
(c) Unless the optionee is in compliance with subsection
(b) of this Paragraph 9, the Company shall not be obligated to issue and
deliver any shares of Common Stock until those shares have been listed on
each securities exchange on which the Company's Common Stock may then be
listed nor until there has been qualification under or compliance with such
state or federal laws, rules or regulations as the Company may deem
applicable. The Company shall use reasonable efforts to obtain such
listing, qualification and compliance.
10. Severance; Death. (a) In the event that a participant shall
cease to be employed by the Company or a subsidiary corporation for any
reason other than death or termination for cause, the participant may not
exercise any options theretofore granted to him except that the terminated
optionee may, within thirteen (13) months after severance, exercise any
portion of any options theretofore granted to him which were available to
him for exercise under the terms of said options at the time of such
severance. If an optionee is on military or sick leave or other bona fide
leave of absence (such as temporary employment by the Government), he shall
be considered as remaining in the employ of the Company or of a subsidiary
corporation for ninety (90) days or such longer period as his right to
reemployment is guaranteed either by statute or by contract.
(b) In the event that a participant shall cease to be employed by
the Company or a subsidiary corporation by virtue of termination for cause,
any options theretofore granted to the participant shall expire forthwith.
<PAGE>
(c) In the event of the death of a participant while in the
employ of the Company or a subsidiary corporation, such amounts of any
options theretofore granted to him which shall not have been previously
exercised shall be exercisable for a period of nineteen (19) months after
the death of the participant by the estate of the participant or by any
person who acquires the right to exercise such option by bequest or
inheritance or by reason of the death of the participant. Such options may
be exercised in the event of the death of the participant irrespective of
whether any segment of said options was available for exercise by him as of
the date of his death under any terms of the option deferring its
exercisability. In the event of the death of a participant within thirteen
(13) months after the termination of his employment, any portion of any
options theretofore granted to him which were available to him for exercise
under the terms of said options at the time of such termination shall be
exercisable, for a period of nineteen (19) months after the termination of
the participant, by the estate of the participant or by any person who
acquires the right to exercise such option by bequest or inheritance or by
reason of the death of the participant.
(d) In any case contemplated by this Paragraph 10, if any option
expires prior to the termination of the periods hereinabove referred to,
the option must be exercised prior to its expiration.
11. Changes in Capital Structure. In the event that the
outstanding shares of Common Stock of the Company are hereafter changed or
exchanged by reason of reorganization, merger, reclassification,
consolidation, recapitalization, split or combination of shares, stock
dividend or otherwise, the number and kind of shares of stock of the
Company and options then outstanding or to be granted hereunder and the
option price shall be appropriately adjusted by the Board of Directors or
the Committee. The existence of the Plan or of options thereunder shall
not, however, prevent any such change or exchange.
12. Effective Date and Termination of the Plan. The Plan shall
become effective upon adoption by the Board of Directors. The Plan shall be
submitted for approval and ratification by the shareholders of the Company
at a meeting which shall be held within twelve months before or after the
date the Plan is adopted by the Board of Directors. The Plan shall
terminate ten years from the date of the adoption of the Plan or from the
date the Plan is approved by the shareholders, whichever is earlier.
13. Amendment of the Plan. The Plan may at any time, or from time
to time, be modified or amended by the Board of Directors or the Committee,
as the case may be, in such respects as: (a) to conform to any change in
the applicable law; or (b) in any other respect except as hereinafter
provided. An amendment to the Plan may not at any time affect: (1) the
maximum number of shares for which options may be granted under the Plan,
(2) the periods during which options may be granted or exercised, or (3)
the provisions relating to adjustments to be made upon changes in
capitalization, until such amendment has been approved by the shareholders
of the Company. The termination or any modification of the Plan shall not,
without the consent of a participant, affect his rights under an option
theretofore granted to him.
14. Administration of the Plan. The Plan shall be administered by
the Committee, if elected, and so empowered under the provisions of the
Plan, and, if not elected, under the supervision of the Board of Directors.
<PAGE>
15. Rights as a Shareholder. The optionee shall have no rights as
a shareholder with respect to any shares covered by his option until the
date of the issuance of such shares. No adjustment shall be made for
dividends or other rights for which the record date is prior to the date of
such issuance other than dividends payable in stock which shall be adjusted
in accordance with Paragraph 11 hereof.
16. Use of Proceeds. The proceeds from the sale of shares
pursuant to options granted under the Plan shall constitute general funds
of the Company.
17. Restriction on Issuance of Shares. The Company shall not be
obligated to sell or issue any shares pursuant to any agreement if the
issuance of such shares would constitute a violation of any statute,
regulation or order respecting the issuance of such shares.
18. Sale of Shares. In the event the shares subject to
options granted or to be granted pursuant to the Plan have not been
registered under the Securities Act of 1933, as amended, any transfer or
sale thereof shall be subject to compliance with the rules and regulations
promulgated pursuant to such Act and with this Plan, including subsection
(b) of Paragraph 9 hereof.
19. Notification by Optionee who Fails to Meet the Holding Period
Requirements. Any optionee who sells shares received pursuant to the
exercise of an option granted hereunder: (a) prior to the expiration of a
one (1) year period measured from the date of transfer of such shares to
him, or a two (2) year period measured from the date such options were
granted, or who, (b) at all times during the period beginning on the date
of the granting of the option and ending on the day three (3) months before
the date of such exercise, was not an employee of the Company or any parent
or subsidiary corporation, which sale(s) may result in ordinary income to
such optionee, shall notify the Company in writing within twenty days of
each such sale.
20. Certain Definitions. As used herein, the terms "subsidiary"
and "subsidiary corporation," and "parent" and "parent corporation" shall
mean any present or future subsidiary or parent corporation, respectively,
of the Company coming within the respective definitions of "subsidiary
corporation" and "parent corporation" contained in Section 425 of the Code.
The term "Common Stock" shall, except as otherwise indicated by the
context, mean the shares of Common Stock of the Company as authorized at
the date hereof. The term "10% stockholder" shall mean an individual who
owns, at the time the option is granted, ten percent (10%) or more of the
total combined voting power of all classes of stock of the Company or a
subsidiary of the Company. For the purposes of determining stock ownership,
the attribution rules of Section 425(d) of the Code shall apply.
Attest: BOSTON TECHNOLOGY, INC.
By:
- --------------------------- -----------------------------------
William J. Burke, Secretary Greg C. Carr, President
<PAGE>
EXHIBIT 4.9
BOSTON TECHNOLOGY, INC.
1992 Directors' Stock Option Plan
1. Purpose. The purpose of this 1992 Directors' Stock Option Plan
(the "Plan") of Boston Technology, Inc. (the "Company") is to encourage
ownership in the Company by outside (nonemployee) directors of the Company
whose continued services are considered essential to the Company's future
progress and to provide them with a further incentive to serve as directors
of the Company. Except where the context otherwise requires, the term
"Company" shall include all present and future subsidiaries of the Company
as defined in Sections 424(e) and 424(f) of the Internal Revenue Code of
1986, as amended from time to time (the "Code").
2. Administration. The Plan will be administered by the Board of
Directors of the Company, whose construction and interpretation of the
terms and provisions of the Plan shall be final and conclusive. Grants of
stock options under the Plan and the amount and nature of the awards to be
granted shall be automatic and nondiscretionary in accordance with Section
5. However, all questions of interpretation of the Plan or of any options
issued under it shall be determined by the Board of Directors and such
determination shall be final and binding upon all persons having an
interest in the Plan. No director shall be liable for any action or
determination under the Plan made in good faith.
3. Participation in the Plan. Directors of the Company who are
not employees of the Company shall be eligible to be granted options under
the Plan.
4. Stock Subject to the Plan. (a) The maximum number of shares
which may be issued under the Plan shall be 135,000 shares of the Company's
Common Stock, $.001 par value per share ("Common Stock"), subject to
adjustment as provided in Section 9.
(b) If any outstanding option under the Plan for any reason
expires or is terminated without having been exercised in full, the shares
allocable to the unexercised portion of such option shall again become
available for grant pursuant to the Plan.
(c) All options granted under the Plan shall be nonstatutory
options which are not intended to meet the requirements of Section 422 of
the Code.
5. Terms, Conditions and Form of Option Agreements. Each option
granted under the Plan shall be evidenced by a written agreement in such
form as the Board of Directors shall from time to time approve, which
agreements shall comply with and be subject to the following terms and
conditions:
(a) Option Grant Dates. Options shall be granted automatically to
all eligible directors as follows: each eligible director shall be
granted an option to purchase 15,000 shares of Common Stock on each
March 1 from March 1, 1992, through and including March 1, 1994,
provided he or she is an eligible director on the date of grant.
(b) Option Exercise Price. The option exercise price per share
for each option granted under the Plan shall equal (i) the closing
sale price per share of the Company's Common Stock on the NASDAQ
National Market System (or, if the Company is traded on a nationally
recognized securities exchange on the date of grant, the reported
closing sale price per share of the Company's Common Stock
<PAGE>
by such exchange) on the date of grant (or if no such price is
reported on such date, such price as reported on the nearest preceding
day) or (ii) if the Common Stock is not traded on NASDAQ or an
exchange, the fair market value per share on the date of grant as
determined by the Board of Directors.
(c) Options Nontransferable. Each option granted under the Plan
by its terms shall not be transferable by the optionee otherwise than
by will or by the laws of descent and distribution, or pursuant to a
qualified domestic relations order (as defined in Section 414(p) of
the Code), and shall be exercised during the lifetime of the optionee
only by such optionee. No option or interest therein may be
transferred, assigned, pledged or hypothecated by the optionee during
his or her lifetime, whether by operation of law or otherwise, or be
made subject to execution, attachment or similar process.
(d) Exercise Period. Each option granted pursuant to Section 5(a)
above shall be immediately exercisable in full upon grant; provided,
however, that (i) no option granted under the Plan may be exercised
more than six months after the optionee ceases to serve as a director
of the Company, (ii) all options granted under the Plan shall
terminate on the tenth anniversary of the date of grant and (iii) all
options granted under the Plan are subject to Section 12(a) below.
(e) Exercise Procedure. Options may be exercised only by written
notice to the Company at its principal office accompanied by payment
in cash of the full consideration for the shares as to which they are
exercised.
(f) Payment of Purchase Price. Payment of the exercise price may
be made, at the election of the optionee, (i) by delivery of cash or a
check to the order of the Company in an amount equal to the exercise
price, (ii) by delivery to the Company of shares of Common Stock of
the Company already owned and held by the optionee for at least 12
months and having a fair market value equal in amount to the exercise
price of the options being exercised, or (iii) by any combination of
such methods of payment. The fair market value of any shares of Common
Stock which may be delivered upon exercise of an option shall be
determined by the Company as of the date that such shares are
delivered.
6. Assignments. The rights and benefits under the Plan may not be
assigned except as provided in Section 5.
7. Time for Granting Options. All options for shares subject to
the Plan shall be granted, if at all, not later than December 31, 1994.
8. Limitation of Rights. (a) No Right to Continue as a Director.
Neither the Plan, nor the granting of an option nor any other action taken
pursuant to the Plan, shall constitute or be evidence of any agreement or
understanding, express or implied, that the Company will retain a director
for any period of time.
(b) No Stockholder Rights for Options. An optionee shall have no
rights as a stockholder with respect to the shares covered by his or her
option until the date of the issuance to him or her of a stock certificate
therefor, and no adjustment will be made
<PAGE>
for dividends or other rights for which the record date is prior to the
date such certificate is issued.
9. Changes in Common Stock. (a) If the outstanding shares of
Common Stock are increased, decreased or exchanged for a different number
or kind of shares or other securities, or if additional shares or new or
different shares or other securities are distributed with respect to such
shares of Common Stock or other securities, through merger, consolidation,
sale of all or substantially all of the assets of the Company,
reorganization, recapitalization, reclassification, stock dividend, stock
split, reverse stock split or other distribution with respect to such
shares of Common Stock, or other securities, an appropriate and
proportionate adjustment will be made in (i) the maximum number and kind of
shares reserved for issuance under the Plan, (ii) the number and kind of
shares or other securities subject to then outstanding options under the
Plan and (iii) the price for each share subject to any then outstanding
options under the Plan, without changing the aggregate purchase price as to
which such options remain exercisable. No fractional shares will be issued
under the Plan on account of any such adjustments.
(b) In the event that the Company is merged or consolidated into
or with another corporation (in which consolidation or merger the
stockholders of the Company receive distributions of cash or securities of
another issuer as a result thereof), or in the event that all or
substantially all of the assets of the Company are acquired by any other
person or entity, or in the event of a reorganization or liquidation of the
Company, the Board of Directors of the Company, or the board of directors
of any corporation assuming the obligations of the Company, shall, as to
outstanding options, either (i) provide that such options shall be assumed,
or equivalent options shall be substituted, by the acquiring or successor
corporation (or an affiliate thereof), or (ii) upon written notice to the
optionees, provide that all unexercised options will terminate immediately
prior to the consummation of such merger, consolidation, acquisition,
reorganization or liquidation unless exercised by the optionee within a
specified number of days following the date of such notice.
10. Amendment of the Plan. The Board of Directors may suspend or
discontinue the Plan or amend it in any respect whatsoever; provided,
however, that without approval of the stockholders of the Company no
revision or amendment shall change the number of shares subject to the Plan
(except as provided in Section 9), change the designation of the class of
directors eligible to receive options, or materially increase the benefits
accruing to participants under the Plan. The Plan may not be amended more
than once in any six-month period.
11. Notice. Any written notice to the Company required by any of
the provisions of the Plan shall be addressed to the Treasurer of the
Company and shall become effective when it is received.
12. Miscellaneous Provisions. (a) Effective Date. The Plan shall
become effective when approved by the Company's stockholders. No option
granted under the Plan may be exercised prior to such approval, and in the
event such approval is not obtained all options granted hereunder shall
immediately terminate.
(b) Termination. The Plan shall terminate upon the earlier of (i)
December 31, 1994, or (ii) the date on which all shares available for
issuance under
<PAGE>
the Plan shall have been issued pursuant to the exercise of options granted
under the Plan. If the date of termination is determined under (i) above,
then options outstanding on such date shall continue to have force and
effect in accordance with the provisions of the instruments evidencing such
options.
(c) Governing Law. The Plan and all determinations made and
actions taken pursuant hereto shall be governed by the laws of the State of
Delaware.
Adopted by the Board of Directors on February 5, 1992.
<PAGE>
BOSTON TECHNOLOGY, INC.
1992 DIRECTORS' STOCK OPTION PLAN
Amendment
Section 4(a) of the 1992 Directors' Stock Option Plan of Boston
Technology, Inc. is amended to increase the number of shares authorized to
be issued under said Plan from 135,000 shares to 150,000 shares.
"(a) The maximum number of shares which may be issued under the
Plan shall be 150,000 shares of the Company's common stock, $.001 par value
per share ('Common Stock'), subject to adjustment as provided in Section
9."
<PAGE>
EXHIBIT 4.10
BOSTON TECHNOLOGY, INC.
1994 Stock Incentive Plan
1. Purpose. The purpose of this Stock Incentive Plan (the "Plan")
is to advance the interests of Boston Technology, Inc. by enhancing its
ability to attract and retain key employees, consultants and others who are
in a position to contribute to the Company's future growth and success.
2. Definitions. "Award" means any Option, Stock Appreciation
Right, Performance Share, Restricted Stock or Unrestricted Stock awarded
under the Plan.
"Board" means the Board of Directors of the Company.
"Code" means the Internal Revenue Code of 1986, as amended from
time to time.
"Committee" means a committee of not less than two members of the
Board appointed by the Board to administer the Plan, provided that if and
when the Common Stock is registered under Section 12 of the Securities
Exchange Act of 1934, each member of the Committee shall be a
"disinterested person" within the meaning of Rule 16b-3 under the
Securities Exchange Act of 1934 ("Rule 16b3").
"Common Stock" or "Stock" means the Common Stock, $.01 par value
per share, of the Company.
"Company" means Boston Technology, Inc. and, except where the
content otherwise requires, all present and future subsidiaries of the
Company as defined in Sections 424(f) of the Code.
"Designated Beneficiary" means the beneficiary designated by a
Participant, in a manner determined by the Board, to receive amounts due or
exercise rights of the Participant in the event of the Participant's death.
In the absence of an effective designation by a Participant, Designated
Beneficiary shall mean the Participant's estate.
"Fair Market Value" means, with respect to Common Stock or any
other property, the fair market value of such property as determined by the
Board in good faith or in the manner established by the Board from time to
time.
"Incentive Stock Option" means an option to purchase shares of
Common Stock awarded to a Participant under Section 6 which is intended to
meet the requirements of Section 422 of the Code or any successor
provision.
"Nonstatutory Stock Option" means an option to purchase shares of
Common Stock awarded to a Participant under Section 6 which is not intended
to be an Incentive Stock Option.
"Option" means an Incentive Stock Option or a Nonstatutory Stock
Option.
"Participant" means a person selected by the Board to receive an
Award under the Plan.
<PAGE>
"Performance Shares" mean shares of Common Stock which may be
earned by the achievement of performance goals awarded to a Participant
under Section 8.
"Reporting Person" means a person subject to Section 16 of the
Securities Exchange Act of 1934 or any successor provision.
"Restricted Period" means the period of time selected by the
Board during which shares subject to a Restricted Stock Award may be
repurchased by or forfeited to the Company.
"Restricted Stock" means shares of Common Stock awarded to a
Participant under Section 9.
"Stock Appreciation Right" or "SAR" means a right to receive any
excess in Fair Market Value of shares of Common Stock over the exercise
price awarded to a Participant under Section 7.
"Unrestricted Stock" means shares of Common Stock awarded to a
Participant under Section 9(c).
3. Administration. The Plan will be administered by the Board.
The Board shall have authority to make Awards and to adopt, amend and
repeal such administrative rules, guidelines and practices relating to the
Plan as it shall deem advisable from time to time, and to interpret the
provisions of the Plan. The Board's decisions shall be final and binding.
No member of the Board shall be liable for any action or determination
relating to the Plan made in good faith. To the extent permitted by
applicable law, the Board may delegate to one or more executive officers of
the Company the power to make Awards to Participants who are not Reporting
Persons and all determinations under the Plan with respect thereto,
provided that the Board shall fix the maximum amount of such Awards to be
made by such executive officers and a maximum amount for any one
Participant. To the extent permitted by applicable law, the Board may
appoint a Committee to administer the Plan and, in such event, all
references to the Board in the Plan shall mean such Committee or the Board.
All decisions by the Board or the Committee pursuant to the Plan shall be
final and binding on all persons having or claiming any interest in the
Plan or in any Award.
4. Eligibility. All of the Company's employees, officers,
directors, consultants and advisors who are expected to contribute to the
Company's future growth and success, other than persons who have
irrevocably elected not to be eligible, are eligible to be Participants in
the Plan. The maximum number of shares of Common Stock which may be the
subject of Awards made to any one employee under the Plan shall be 100,000
shares of Common Stock. For this purpose, the grant of new Awards in
substitution for outstanding Awards shall be deemed to constitute a new
grant of additional Awards separate from the original grant of Awards that
are to be canceled. Incentive Stock Options may be awarded only to persons
eligible to receive Incentive Stock Options under the Code.
5. Stock Available for Awards. (a) Subject to adjustment under
subsection (b) below, Awards may be made under the Plan for up to 1,500,000
shares of Common Stock. If any Award in respect of shares of Common Stock
expires or is
<PAGE>
terminated unexercised or is forfeited for any reason or settled in a
manner that results in fewer shares outstanding than were initially
awarded, the shares subject to such Award or so surrendered, as the case
may be, to the extent of such expiration, termination, forfeiture or
decrease, shall again be available for award under the Plan, subject,
however, in the case of Incentive Stock Options, to any limitation required
under the Code. Shares issued under the Plan may consist in whole or in
part of authorized but unissued shares or treasury shares.
(b) In the event that the Board, in its sole discretion,
determines that any stock dividend, extraordinary cash dividend,
recapitalization, reorganization, merger, consolidation, split-up,
spin-off, combination or other similar transaction 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
Board, subject, in the case of Incentive Stock Options, to any limitation
required under the Code, shall equitably adjust any or all of (i) the
number and kind of shares in respect of which Awards may be made under the
Plan, (ii) the number and kind of shares subject to outstanding Awards, and
(iii) the award, exercise or conversion price with respect to any of the
foregoing, and if considered appropriate, the Board may make provision for
a cash payment with respect to an outstanding Award, provided that the
number of shares subject to any Award shall always be a whole number.
(c) The Board may grant Awards under the Plan in substitution for
stock and stock based awards held by employees of another corporation who
concurrently become employees of the Company as a result of a merger or
consolidation of the employing corporation with the Company or a Subsidiary
or the acquisition by the Company or a subsidiary of property or stock of
the employing corporation. The substitute Awards shall be granted on such
terms and conditions as the Board considers appropriate in the
circumstances. The shares which may be delivered under such substitute
Awards shall be in addition to the maximum number of shares provided for in
Section 5(a) only to the extent that the substitute Awards are both (i)
granted to persons whose relationship to the Company does not make (and is
not expected to make) them Reporting Persons; and (ii) granted in
substitution for awards issued under a plan approved, to the extent then
required under Rule 16b-3, by the stockholders of the entity which issued
such predecessor awards.
6. Stock Options. (a) General. (i) Subject to the provisions-of
the Plan, the Board may award Incentive Stock Options and Nonstatutory
Stock Options, and determine the number of shares to be covered by each
Option, the option price therefor and the conditions and limitations
applicable to the exercise of the option. The terms and conditions of
Incentive Stock Options shall be subject to and comply with Section 422 of
the Code, or any successor provision, and any regulations thereunder.
(ii) The Board shall establish the exercise price at the time
each Option is awarded. In the case of Incentive Stock Options, such
price shall not be less than 100% of the Fair Market Value of the
Common Stock on the date of award.
(iii) Each Option shall be exercisable at such times and subject
to such terms and conditions as the Board may specify in the
applicable Award or thereafter. The Board may impose such conditions
with respect to the exercise of Options, including conditions relating
to applicable Federal or state securities laws, as it considers
necessary or advisable.
<PAGE>
(iv) Options granted under the Plan may provide for the payment
of the exercise price by delivery of cash or check in an amount equal
to the exercise price of such Options or, to the extent permitted by
the Board at or after the award of the Option, by (A) delivery of
shares of Common Stock owned by the optionee for at least six months
(or such shorter period as is approved by the Board), valued at their
Fair Market Value, (B) delivery of a promissory note of the optionee
to the Company on terms determined by the Board, (C) delivery of an
irrevocable undertaking by a broker to deliver promptly to the Company
sufficient funds to pay the exercise price or delivery of irrevocable
instructions to a broker to deliver promptly to the Company cash or a
check sufficient to pay the exercise price, (D) payment of such other
lawful consideration as the Board may determine, or (E) any
combination of the foregoing.
(v) The Board may provide for the automatic award of an Option
upon the delivery of shares to the Company in payment of the exercise
price of an Option for up to the number of shares so delivered.
(vi) The Board may at any time accelerate the time at which all
or any part of an Option may be exercised.
(b) Incentive Stock Options. Options granted under the Plan which
are intended to be Incentive Stock Options shall be subject to the
following additional terms and conditions:
(i) All Incentive Stock Options granted under the Plan shall, at
the time of grant, be specifically designated as such in the option
agreement covering such Incentive Stock Options. The Option exercise
period shall not exceed 10 years from the date of grant.
(ii) If any employee to whom an Incentive Stock Option is to be
granted under the Plan is, at the time of the grant of such option,
the owner of stock possessing more than 10% of the total combined
voting power of all classes of stock of the Company (after taking into
account the attribution of stock ownership rule of Section 424(b) and
of the Code), then the following special provisions shall be
applicable to the Incentive Stock Option granted to such individual:
(x) The purchase price per share of the Common Stock subject
to such Incentive Stock Option shall not be less than 110% of the
Fair Market Value of one share of Common Stock at the time of
grant; and
(y) The option exercise period shall not exceed five years
from the date of grant.
(iii) For so long as the Code shall so provide, options granted
to any employee under the Plan (and any other incentive stock option
plans of the Company) which are intended to constitute Incentive Stock
Options shall not constitute Incentive Stock Options to the extent
that such options, in the aggregate, become exercisable for the first
time in any one calendar year for shares of Common Stock with an
aggregate Fair Market Value (determined as of the respective date or
dates of grant) of more than $100,000.
<PAGE>
(iv) No Incentive Stock Option may be exercised unless, at the
time of such exercise, the Participant is, and has been continuously
since the date of grant of his or her option, employed by the Company,
except that:
(x) an Incentive Stock Option may be exercised within the
period of three months after the date the Participant ceases to
be an employee of the Company (or within such lesser period as
may be specified in the applicable option agreement); provided,
that the agreement with respect to such Option may designate a
longer exercise period and that the exercise after such
three-month period shall be treated as the exercise of a
Nonstatutory Stock Option under the Plan;
(y) if the Participant dies while in the employ of the
Company, or within three months after the Participant ceases to
be such an employee, the Incentive Stock Option may be exercised
by the Participant's Designated Beneficiary within the period of
one year after the date of death (or within such lesser period as
may be specified in the applicable Option agreement); and
(z) if the Participant becomes disabled (within the meaning
of Section 22(e)(3) of the Code or any successor provision
thereto) while in the employ of the Company, the Incentive Stock
Option may be exercised within the period of one year after the
date of death (or within such lesser period as may be specified
in the Option agreement).
For all purposes of the Plan and any option granted hereunder, "employment"
shall be defined in accordance with the provisions of Section 1.421-7(h) of
the Income Tax Regulations (or any successor regulations). Notwithstanding
the foregoing provisions, no Incentive Stock Option may be exercised after
its expiration date.
7. Stock Appreciation Rights. (a) The Board may grant Stock
Appreciation Rights entitling recipients on exercise of the SAR to receive
an amount, in cash or Stock or a combination thereof (such form to be
determined by the Board), determined in whole or in part by reference to
appreciation in the Fair Market Value of the Stock between the date of the
Award and the exercise of the Award. A Stock Appreciation Right shall
entitle the Participant to receive, with respect to each share of Stock as
to which the SAR is exercised, the excess of the share's Fair Market Value
on the date of exercise over its Fair Market Value on the date the SAR was
granted. The Board may also grant Stock Appreciation Rights that provide
that, following a change in control of the Company (as defined by the Board
at the time of the Award), the holder of such SAR will be entitled to
receive, with respect to each share of Stock subject to the SAR, an amount
equal to the excess of a specified value (which may include an average of
values) for a share of Stock during a period preceding such change in
control over the Fair Market Value of a share of Stock on the date the SAR
was granted.
(b) Stock Appreciation Rights may be granted in tandem with, or
independently of, Options granted under the Plan. A Stock Appreciation
Right granted in tandem with an Option which is not an Incentive Stock
Option may be granted either at or after the time the Option is granted. A
Stock Appreciation Right granted in tandem with an Incentive Stock Option
may be granted only at the time the Option is granted.
<PAGE>
(c) When Stock Appreciation Rights are granted in tandem with
Options, the following provisions will apply:
(i) The Stock Appreciation Right will be exercisable only at such
time or times, and to the extent, that the related Option is
exercisable and will be exercisable in accordance with the procedure
required for exercise of the related Option.
(ii) The Stock Appreciation Right will terminate and no longer be
exercisable upon the termination or exercise of the related Option,
except that a Stock Appreciation Right granted with respect to less
than the full number of shares covered by an Option will not be
reduced until the number of shares as to which the related Option has
been exercised or has terminated exceeds the number of shares not
covered by the Stock Appreciation Right.
(iii) The Option will terminate and no longer be exercisable upon
the exercise of the related Stock Appreciation Right.
(iv) The Stock Appreciation Right will be transferable only with
the related Option.
(v) A Stock Appreciation Right granted in tandem with an
Incentive Stock Option may be exercised only when the market price of
the Stock subject to the Option exceeds the exercise price of such
option.
(d) A Stock Appreciation Right not granted in tandem with an
Option will become exercisable at such time or times, and on such
conditions, as the Board may specify.
(e) The Board may at any time accelerate the time at which all or
any part of the SAR may be exercised.
8. Performance Shares. (a) The Board may make Performance Share
Awards entitling recipients to acquire shares of Stock upon the attainment
of specified performance goals. The Board may make Performance Share Awards
independent of or in connection with the granting of any other Award under
the Plan. The Board in its sole discretion shall determine the performance
goals applicable under each such Award, the periods during which
performance is to be measured, and all other limitations and conditions
applicable to the awarded Performance Shares; provided, however, that the
Board may rely on the performance goals and other standards applicable to
other performance plans of the Company in setting the standards for
Performance Share Awards under the Plan.
(b) Performance Share Awards and all rights with respect to such
Awards may not be sold, assigned, transferred, pledged or otherwise
encumbered.
(c) A Participant receiving a Performance Share Award shall have
the rights of a stockholder only as to shares actually received by the
Participant under the Plan and not with respect to shares subject to an
Award but not actually received by the Participant. A Participant shall be
entitled to receive a stock certificate evidencing the
<PAGE>
acquisition of shares of Stock under a Performance Share Award only upon
satisfaction of all conditions specified in the agreement evidencing the
Performance Share Award.
(d) The Board may at any time accelerate or waive any or all of
the goals, restrictions or conditions imposed under any Performance Share
Award.
9. Restricted and Unrestricted Stock. (a) The Board may grant
Restricted Stock Awards entitling recipients to acquire shares of Stock,
subject to the right of the Company to repurchase all or part of such
shares at their purchase price (or to require forfeiture of such shares if
purchased at no cost) from the recipient in the event that conditions
specified by the Board in the applicable Award are not satisfied prior to
the end of the applicable Restricted Period or Restricted Periods
established by the Board for such Award. Conditions for repurchase (or
forfeiture) may be based on continuing employment or service or achievement
of preestablished performance or other goals and objectives.
(b) Shares of Restricted Stock may not be sold, assigned,
transferred, pledged or otherwise encumbered, except as permitted by the
Board, during the applicable Restricted Period. Shares of Restricted Stock
shall be evidenced in such manner as the Board may determine. Any
certificates issued in respect of shares of Restricted Stock shall be
registered in the name of the Participant and, unless otherwise determined
by the Board, deposited by the Participant, together with a stock power
endorsed in blank, with the Company (or its designee). At the expiration of
the Restricted Period, the Company (or such designee) shall deliver such
certificates to the Participant or if the Participant has died, to the
Participant's Designated Beneficiary.
(c) The Board may, in its sole discretion, grant (or sell at a
purchase price determined by the Board, which shall not be lower than 85%
of Fair Market Value on the date of sale) to Participants shares of Stock
free of any restrictions under the Plan ("Unrestricted Stock").
(d) The purchase price for each share of Restricted Stock and
Unrestricted Stock shall be determined by the Board of Directors and may
not be less than the par value of the Common Stock. Such purchase price may
be paid in the form of past services or such other lawful consideration as
is determined by the Board.
(e) The Board may at any time accelerate the expiration of the
Restricted Period applicable to all, or any particular, outstanding shares
of Restricted Stock.
10. General Provisions Applicable to Awards. (a) Applicability of
Rule 16b-3. Those provisions of the Plan which make an express reference to
Rule 16b-3 shall apply to the Company only at such time as the Company's
Common Stock is registered under the Securities Exchange Act of 1934, or
any successor provision, and then only to Reporting Persons.
(b) Reporting Person Limitations. Notwithstanding any other
provision of the Plan, to the extent required to qualify for the exemption
provided by Rule 16b-3, (i) any Option, SAR, Performance Share Award or
other similar right related to an equity security issued under the Plan to
a Reporting Person shall not be transferable other than by will or the laws
of descent and distribution or pursuant to a qualified domestic relations
order as defined by the Code or Title I or the Employee Retirement Income
<PAGE>
Security Act ("ERISA"), or the rules thereunder, and shall be exercisable
during the Participant's lifetime only by the Participant or the
Participant's guardian or legal representative, and (ii) the selection of a
Reporting Person as a Participant and the terms of his or her Award shall
be determined only in accordance with the applicable provisions of Rule
16b-3.
(c) Documentation. Each Award under the Plan shall be evidenced
by an instrument delivered to the Participant specifying the terms and
conditions thereof and containing such other terms and conditions not
inconsistent with the provisions of the Plan as the Board considers
necessary or advisable. Such instruments may be in the form of agreements
to be executed by both the Company and the Participant, or certificates,
letters or similar documents, acceptance of which will evidence agreement
to the terms thereof and of this Plan.
(d) Board Discretion. Each type of Award may be made alone, in
addition to or in relation to any other type of Award. The terms of each
type of Award need not be identical, and the Board need not treat
Participants uniformly. Except as otherwise provided by the Plan or a
particular Award, any determination with respect to an Award may be made by
the Board at the time of award or at any time thereafter.
(e) Termination of Status. Subject to the provisions of Section
6(b)(iv), the Committee shall determine the effect on an Award of the
disability, death, retirement, authorized leave of absence or other
termination of employment or other status of a Participant and the extent
to which, and the period during which, the Participant's legal
representative, guardian or Designated Beneficiary may exercise rights
under such Award.
(f) Mergers, Etc. In the event of a consolidation, merger or
other reorganization in which all of the outstanding shares of Common Stock
are exchanged for securities, cash or other property of any other
corporation or business entity (an "Acquisition"), or in the event of a
liquidation of the Company, the Board of Directors of the Company, or the
board of directors of any corporation assuming the obligations of the
Company, may, in its discretion, take any one or more of the following
actions as to outstanding Awards: (i) provide that such Awards shall be
assumed, or substantially equivalent Awards shall be substituted, by the
acquiring or succeeding corporation (or an affiliate thereof) on such terms
as the Board determines to be appropriate, (ii) upon written notice to
Participants, provide that all unexercised Options or SARs will terminate
immediately prior to the consummation of such transaction unless exercised
by the Participant within a specified period following the date of such
notice, (iii) in the event of an Acquisition under the terms of which
holders of the Common Stock of the Company will receive upon consummation
thereof a cash payment for each share surrendered in the Acquisition (the
"Acquisition Price"), make or provide for a cash payment to Participants
equal to the difference between (A) the Acquisition Price times the number
of shares of Common Stock subject to outstanding Options or SARs (to the
extent then exercisable at prices not in excess of the Acquisition Price)
and (B) the aggregate exercise price of all such outstanding options or
SARs in exchange for the termination of such options and SARS, and (iv)
provide that all or any outstanding Awards shall become exercisable or
realizable in full prior to the effective date of such Acquisition.
<PAGE>
(g) Withholding. The Participant shall pay to the Company, or
make provision satisfactory to the Board for payment of, any taxes required
by law to be withheld in respect of Awards under the Plan no later than the
date of the event creating the tax liability. In the Board's discretion,
and subject to such conditions as the Board may establish, such tax
obligations may be paid in whole or in part in shares of Common Stock,
including shares retained from the Award creating the tax obligation,
valued at their Fair Market Value. The Company may, to the extent permitted
by law, deduct any such tax obligations from any payment of any kind
otherwise due to the Participant.
(h) Foreign Nationals, Awards may be made to Participants who are
foreign nationals or employed outside the United States on such terms and
conditions different from those specified in the Plan as the Board
considers necessary or advisable to achieve the purposes of the Plan or
comply with applicable laws.
(i) Amendment of Award. The Board may amend, modify or terminate
any outstanding Award, including substituting therefor another Award of the
same or a different type, changing the date of exercise or realization and
converting an Incentive Stock Option to a Nonstatutory Stock Option;
provided that the Participant's consent to such action shall be required
unless the Board determines that the action, taking into account any
related action, would not materially and adversely affect the Participant.
(j) Cancelation and New Grant of Options. The Board of Directors
shall have the authority to effect, at any time and from time to time, with
the consent of the affected optionees, (i) the cancelation of any or all
outstanding Options under the Plan and the grant in substitution therefor
of new Options under the Plan covering the same or different numbers of
shares of Common Stock and having an option exercise price per share which
may be lower or higher than the exercise price per share of the canceled
Options or (ii) the amendment of the terms of any and all outstanding
Options under the Plan to provide an option exercise price per share which
is higher or lower than the then current exercise price per share of such
outstanding Options.
(k) Conditions on Delivery of Stock. The Company will not be
obligated to deliver any shares of Stock pursuant to the Plan or to remove
restrictions from shares previously delivered under the Plan (i) until all
conditions of the Award have been satisfied or removed, (ii) until, in the
opinion of the Company's counsel, all applicable Federal and state laws and
regulations have been complied with, (iii) if the outstanding Stock is at
the time listed on any stock exchange, until the shares to be delivered
have been listed or authorized to be listed on such exchange upon official
notice of notice of issuance, and (iv) until all other legal matters in
connection with the issuance and delivery of such shares have been approved
by the Company's counsel. If the sale of Stock has not been registered
under the Securities Act of 1933, as amended, the Company may require, as a
condition to exercise of the Award, such representations or agreements as
the Company may consider appropriate to avoid violation of such Act and may
require that the certificates evidencing such Stock bear an appropriate
legend restricting transfer.
11. Miscellaneous. (a) No Right to Employment or Other Status. No
person shall have any claim or right to be granted an Award, and the grant
of an Award shall not be construed as giving a Participant the right to
continued employment or service for the Company. The Company expressly
reserves the right at any time to
<PAGE>
dismiss a Participant free from any liability or claim under the Plan,
except as expressly provided in the applicable Award.
(b) No Rights As Stockholder. Subject to the provisions of the
applicable Award, no Participant or Designated Beneficiary shall have any
rights as a stockholder with respect to any shares of Common Stock to be
distributed under the Plan until he or she becomes the record holder
thereof.
(c) Exclusion from Benefit Computations. No amounts payable upon
exercise of Awards granted under the Plan shall be considered salary, wages
or compensation to Participants for purposes of determining the amount or
nature of benefits that Participants are entitled to under any insurance,
retirement or other benefit plans or programs of the Company.
(d) Effective Date and Term. (i) Effective Date. The Plan shall
become effective when adopted by the Board of Directors, but no Incentive
Stock Option granted under the Plan shall become exercisable unless and
until the Plan shall have been approved by the Company's stockholders. If
such stockholder approval is not obtained within 12 months after the date
of the Board's adoption of the Plan, no Options previously granted under
the Plan shall be deemed to be Incentive Stock Options and no Incentive
Stock Options shall be granted thereafter. Amendments to the Plan not
requiring stockholder approval shall become effective when adopted by the
Board of Directors; amendments requiring stockholder approval shall become
effective when adopted by the Board of Directors, but no Incentive Stock
Option granted after the date of such amendment shall become exercisable
(to the extent that such amendment to the Plan was required to enable the
Company to grant such Incentive Stock Option to a particular optionee)
unless and until such amendment shall have been approved by the Company's
stockholders. If such stockholder approval is not obtained within 12 months
of the Board's adoption of such amendment, any Incentive Stock Options
granted on or after the date of such amendment shall terminate to the
extent that such amendment to the Plan was required to enable the Company
to grant such Option to a particular optionee. Subject to the limitations
set forth in this Section 11(d), Awards may be made under the Plan at any
time after the effective date and before the date fixed for termination of
the Plan.
(ii) Termination. The Plan shall terminate upon the earlier of
(i) the close of business on the day next preceding the tenth anniversary
of the date of its adoption by the Board of Directors, or (ii) the date on
which all shares available for issuance under the Plan shall have been
issued pursuant to Awards under the Plan. Awards outstanding on such date
shall continue to have force and effect in accordance with the provisions
of the instruments evidencing such Awards.
(e) Amendment of Plan. The Board may amend, suspend or terminate
the Plan or any portion thereof at any time; provided that no amendment
shall be made without stockholder approval if such approval is necessary to
comply with any applicable tax or regulatory requirement, including any
requirements for compliance with Rule 16b-3. Prior to any such approval,
Awards may be made under the Plan expressly subject to such approval.
(f) Governing Law. The provisions of the Plan shall be governed
by and interpreted in accordance with the laws of the State of Delaware.
<PAGE>
EXHIBIT 4.11
BOSTON TECHNOLOGY, INC.
1995 Director Stock Option Plan
1. Purpose. The purpose of this 1995 Director Stock Option Plan
(the "Plan") of Boston Technology, Inc. (the "Company") is to encourage
ownership in the Company by outside (non-employee) directors of the Company
whose continued services are considered essential to the Company's future
progress and to provide them with a further incentive to serve as directors
of the Company.
2. Administration. The Plan will be administered by the Board of
Directors of the Company, whose construction and interpretation of the
terms and provisions of the Plan shall be final and conclusive. Grants of
stock options under the Plan and the amount and nature of the awards to be
granted shall be automatic and nondiscretionary in accordance with Section
5. However, all questions of interpretation of the Plan or of any options
issued under it shall be determined by the Board of Directors and such
determination shall be final and binding upon all persons having an
interest in the Plan. No director shall be liable for any action or
determination under the Plan made in good faith.
3. Participation in the Plan. Directors of the Company who are
not employees of the Company shall be eligible to be granted options under
the Plan; provided that, in any event, no options under the Plan shall be
granted to Gregory C. Carr.
4. Stock Subject to the Plan. (a) The maximum number of shares
which may be issued under the Plan shall be 180,000 shares of the Company's
Common Stock, $.001 par value per share ("Common Stock"), subject to
adjustment as provided in Section 9.
(b) If any outstanding option under the Plan for any reason
expires or is terminated without having been exercised in full, the shares
allocable to the unexercised portion of such option shall again become
available for grant pursuant to the Plan.
(c) All options granted under the Plan shall be nonstatutory
options which are not intended to meet the requirements of Section 422 of
the Code.
5. Terms, Conditions and Form of Option Agreements. Each option
granted under the Plan shall be evidenced by a written agreement in such
form as the Board of Directors shall from time to time approve, which
agreements shall comply with and be subject to the following terms and
conditions:
(a) Option Grant Dates. Options shall be granted automatically to
all eligible directors as follows:
(i) each eligible director shall be granted an option to purchase
30,000 shares of Common Stock on March 1, 1995; and
(ii) upon the initial election of any eligible director as a
director of the Company, such director shall be granted an option to
purchase 30,000 shares of Common Stock.
(b) Option Exercise Price. The option exercise price per share
for each option granted under the Plan shall equal (i) the closing sale
price per share of the
<PAGE>
Company's Common Stock on the Nasdaq National Market (or, if the Company is
traded on a nationally recognized securities exchange on the date of grant,
the reported closing sale price per share of the Company's Common Stock by
such exchange) on the date of grant (or if no such price is reported on
such date, such price as reported on the nearest preceding day) or (ii) if
the Common Stock is not traded on the Nasdaq National Market or an
exchange, the fair market value per share on the date of grant as
determined by the Board of Directors.
(c) Options Nontransferable. Each option granted under the Plan
by its terms shall not be transferable by the optionee otherwise than by
will or by the laws of descent and distribution, or pursuant to a qualified
domestic relations order (as defined in Section 414(p) of the Code), and
shall be exercised during the lifetime of the optionee only by such
optionee. No option or interest therein may be transferred, assigned,
pledged or hypothecated by the optionee during his or her lifetime, whether
by operation of law or otherwise, or be made subject to execution,
attachment or similar process.
(d) Exercise Period. Each option granted pursuant to Section 5(a)
above shall become exercisable on a cumulative basis as to one-third of the
shares subject to the option on the date of each of the first, second and
third annual meeting of stockholders of the Company following the date of
grant; provided, however, that (i) no option granted under the Plan may be
exercised more than three years after the date the optionee ceases to serve
as a director of the Company, (ii) all options granted under the Plan shall
terminate on the tenth anniversary of the date of grant and (iii) all
options granted under the Plan are subject to Section 12(a) below.
(e) Exercise Procedure. Options may be exercised only by written
notice to the Company at its principal office accompanied by payment in
cash of the full consideration for the shares as to which they are
exercised.
(f) Payment of Purchase Price. Payment of the exercise price may
be made, at the election of the optionee, (i) by delivery of cash or a
check to the order of the Company in an amount equal to the exercise price,
(ii) by delivery to the Company of shares of Common Stock of the Company
already owned and held by the optionee for at least twelve months and
having a fair market value equal in amount to the exercise price of the
options being exercised, or (iii) by any combination of such methods of
payment. The fair market value of any shares of Common Stock that may be
delivered upon exercise of an option shall be determined by the Company as
of the date that such shares are delivered.
6. Assignments. The rights and benefits under the Plan may not be
assigned, whether voluntarily or by operation of law, except as provided in
Section 5(c).
7. Time for Granting Options. All options for shares subject to
the Plan shall be granted, if at all, not later than December 31, 1998.
8. Limitation of Rights. (a) No Right to Continue as a Director.
Neither the Plan, nor the granting of an option nor any other action taken
pursuant to the Plan, shall constitute or be evidence of any agreement or
understanding, express or implied, that the Company will retain a director
for any period of time.
<PAGE>
(b) No Stockholder Rights for Options. An optionee shall have no
rights as a stockholder with respect to the shares covered by his or her
option until the date of the issuance to him or her of a stock certificate
therefor, and no adjustment will be made for dividends or other rights for
which the record date is prior to the date such certificate is issued.
9. Changes in Common Stock. (a) If the outstanding shares of
Common Stock are increased, decreased or exchanged for a different number
or kind of shares or other securities, or if additional shares or new or
different shares or other securities are distributed with respect to such
shares of Common Stock or other securities, through merger, consolidation,
sale of all or substantially all of the assets of the Company,
reorganization, recapitalization, reclassification, stock dividend, stock
split, reverse stock split or other distribution with respect to such
shares of Common Stock, or other securities, an appropriate and
proportionate adjustment will be made in (i) the maximum number and kind of
shares reserved for issuance under the Plan, (ii) the number and kind of
shares or other securities subject to then outstanding options under the
Plan and (iii) the price for each share subject to any then outstanding
options under the Plan, without changing the aggregate purchase price as to
which such options remain exercisable. No fractional shares will be issued
under the Plan on account of any such adjustments.
(b) In the event that the Company is merged or consolidated into
or with another corporation (in which consolidation or merger the
stockholders of the Company receive distributions of cash or securities of
another issuer as a result thereof), or in the event that all or
substantially all of the assets of the Company are acquired by any other
person or entity or in the event of a reorganization or liquidation of the
Company, the Board of Directors of the Company, or the board of directors
of any corporation assuming the obligations of the Company, shall, as to
outstanding options, either (i) provide that such options shall be assumed,
or equivalent options shall be substituted, by the acquiring or successor
corporation (or an affiliate thereof), or (ii) upon written notice to the
optionees, provide that all unexercised options will terminate immediately
prior to the consummation of such merger, consolidation, acquisition,
reorganization or liquidation unless exercised by the optionee within a
specified number of days following the date of such notice.
10. Amendment of the Plan. The Board of Directors may suspend or
discontinue the Plan or amend it in any respect whatsoever; provided,
however, that without approval of the stockholders of the Company no
revision or amendment shall change the number of shares subject to the Plan
(except as provided in Section 9), change the designation of the class of
directors eligible to receive options, or materially increase the benefits
accruing to participants under the Plan. The Plan may not be amended more
than once in any six-month period.
11. Notice. Any written notice to the Company required by any of
the provisions of the Plan shall be addressed to the Treasurer of the
Company and shall become effective when it is received.
12. Miscellaneous Provisions. (a) Effective Date. The Plan shall
become effective when approved by the Company's stockholders. No option
granted under the Plan may be exercised prior to such approval, and in the
event such approval is not obtained all options granted hereunder shall
immediately terminate.
<PAGE>
(b) Termination. The Plan shall terminate upon the earlier of (i)
December 31, 1998, or (ii) the date on which all shares available for
issuance under the Plan shall have been issued pursuant to the exercise of
options granted under the Plan. If the date of termination is determined
under (i) above, then options outstanding on such date shall continue to
have force and effect in accordance with the provisions of the instruments
evidencing such options.
(c) Governing Law. The Plan and all determinations made and
actions taken pursuant hereto shall be governed by the laws of the State of
Delaware.
Adopted by the Board of
Directors on March 1, 1995
<PAGE>
1995 Director Stock Option Plan
FURTHER
RESOLVED: That Section 4(a) of the Company's 1995 Director Stock Option
Plan be and hereby is amended and restated in its entirety to
read as follows:
"(a) The maximum number of shares which may be issued
under the Plan shall be 300,000 shares of the Company
Common Stock, $.001 par value per share ("Common Stock"),
subject to adjustment as provided in Section 9."
FURTHER
RESOLVED: That Section 5(a) of the Company's 1995 Director Stock Option
Plan be and hereby is amended and restated in its entirety to
read as follows:
"(a) Option Grant Dates. Options shall be granted automatically
to all eligible directors as follows:
(i) each eligible director shall be granted an option to
purchase 30,000 shares of Common Stock on March 1, 1995;
(ii) each eligible director shall be granted an option to
purchase 30,000 shares of Common Stock on May 8, 1997; and
(iii) upon the initial election of any eligible director as
a director of the Company, such director shall be granted an
option to purchase 30,000 shares of Common Stock.
FURTHER
RESOLVED: That Section 10 of the Company's 1995 Director Stock Option Plan
be and hereby is amended and restated in its entirety to read as
follows:
"10. Amendment of the Plan. The Board of Directors may at any
time, and from time to time, modify, terminate or amend the Plan
in any respect, except that if at any time the approval of the
stockholders of the Company is required as to such modification
or amendment under any applicable listing requirement or any
applicable tax or regulatory requirement, the board of Directors
may not effect such modification or amendment without such
approval."
<PAGE>
EXHIBIT 4.12
BOSTON TECHNOLOGY, INC.
Amended and Restated
1996 Stock Incentive Plan
1. Purpose. The purpose of this Stock Incentive Plan (the "Plan")
is to advance the interests of Boston Technology, Inc. by enhancing its
ability to attract and retain key employees, consultants and others who are
in a position to contribute to the Company's future growth and success.
2. Definitions. "Award" means any Option, Stock Appreciation
Right, Performance Share, Restricted Stock or Unrestricted Stock awarded
under the Plan.
"Board" means the Board of Directors of the Company.
"Code" means the Internal Revenue Code of 1986, as amended from
time to time.
"Committee" means a committee of not less than two members of the
Board appointed by the Board to administer the Plan.
"Common Stock" or "Stock" means the Common Stock, $.01 par value
per share, of the Company.
"Company" means Boston Technology, Inc. and, except where the
content otherwise requires, all present and future subsidiaries of the
Company as defined in Section 424(f) of the Code.
"Designated Beneficiary" means the beneficiary designated by a
Participant, in a manner determined by the Board, to receive amounts due or
exercise rights of the Participant in the event of the Participant's death.
In the absence of an effective designation by a Participant, Designated
Beneficiary shall mean the Participant's estate.
"Fair Market Value" means, with respect to Common Stock or any
other property, the fair market value of such property as determined by the
Board in good faith or in the manner established by the Board from time to
time.
"Incentive Stock Option" means an option to purchase shares of
Common Stock awarded to a Participant under Section 6 which is intended to
meet the requirements of Section 422 of the Code or any successor
provision.
"Nonstatutory Stock Option" means an option to purchase shares of
Common Stock awarded to a Participant under Section 6 which is not intended
to be an Incentive Stock Option.
"Option" means an Incentive Stock Option or a Nonstatutory Stock
Option.
"Participant" means a person selected by the Board to receive an
Award under the Plan.
<PAGE>
"Performance Shares" mean shares of Common Stock which may be
earned by the achievement of performance goals awarded to a Participant
under Section 8.
"Reporting Person" means a person subject to Section 16 of the
Securities Exchange Act of 1934 or any successor provision.
"Restricted Period" means the period of time selected by the
Board during which shares subject to a Restricted Stock Award may be
repurchased by or forfeited to the Company.
"Restricted Stock" means shares of Common Stock awarded to a
Participant under Section 9.
"Stock Appreciation Right" or "SAR" means a right to receive any
excess in Fair Market Value of shares of Common Stock over the exercise
price awarded to a Participant under Section 7.
"Unrestricted Stock" means shares of Common Stock awarded to a
Participant under Section 9(c).
3. Administration. The Plan will be administered by the Board.
The Board shall have authority to make Awards and to adopt, amend and
repeal such administrative rules, guidelines and practices relating to the
Plan as it shall deem advisable from time to time, and to interpret the
provisions of the Plan. The Board's decisions shall be final and binding.
No member of the Board shall be liable for any action or determination
relating to the Plan made in good faith. To the extent permitted by
applicable law, the Board may delegate to one or more executive officers of
the Company the power to make Awards to Participants who are not Reporting
Persons and all determinations under the Plan with respect thereto,
provided that the Board shall fix the maximum amount of such Awards to be
made by such executive officers and a maximum amount for any one
Participant. To the extent permitted by applicable law, the Board may
appoint a Committee to administer the Plan and, in such event, all
references to the Board in the Plan shall mean such Committee or the Board.
All decisions by the Board or the Committee pursuant to the Plan shall be
final and binding on all persons having or claiming any interest in the
Plan or in any Award.
4. Eligibility. All of the Company's employees, officers,
directors, consultants and advisors who are expected to contribute to the
Company's future growth and success, other than persons who have
irrevocably elected not to be eligible, are eligible to be Participants in
the Plan. Subject to adjustment pursuant to Section 5(b) below, the maximum
number of shares of Common Stock which may be the subject of Awards made to
any one employee under the Plan during any calendar year shall be 250,000
shares of Common Stock. For the purposes of calculating such maximum
number, (a) an Award shall continue to be treated as outstanding
notwithstanding its repricing, cancelation or expiration and (b) the
repricing of an outstanding Award or the issuance of a new Award in
substitution for a canceled Award shall be deemed to constitute the grant
of a new additional Award separate from the original grant of the Award
that is repriced or canceled. Incentive Stock Options may be awarded only
to persons eligible to receive Incentive Stock Options under the Code.
<PAGE>
5. Stock Available for Awards. (a) Subject to adjustment under
subsection (b) below, Awards may be made under the Plan for up to 1,000,000
shares of Common Stock. If any Award in respect of shares of Common Stock
expires or is terminated unexercised or is forfeited for any reason or
settled in a manner that results in fewer shares outstanding than were
initially awarded, the shares subject to such Award or so surrendered, as
the case may be, to the extent of such expiration, termination, forfeiture
or decrease, shall again be available for award under the Plan, subject,
however, in the case of Incentive Stock Options, to any limitation required
under the Code. Shares issued under the Plan may consist in whole or in
part of authorized but unissued shares or treasury shares.
(b) In the event that the Board, in its sole discretion,
determines that any stock dividend, extraordinary cash dividend,
recapitalization, reorganization, merger, consolidation, split-up,
spin-off, combination or other similar transaction 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
Board, subject, in the case of Incentive Stock Options and any adjustments
made to Section 4, to any limitation required under the Code, shall
equitably adjust any or all of (i) the number and kind of shares in respect
of which Awards may be made under the Plan, (ii) the number and kind of
shares in respect to the maximum number of Awards issuable to any one
employee, (iii) the number and kind of shares subject to outstanding
Awards, and (iv) the award, exercise or conversion price with respect to
any of the foregoing, and if considered appropriate, the Board may make
provision for a cash payment with respect to an outstanding Award, provided
that the number of shares subject to any Award shall always be a whole
number.
(c) The Board may grant Awards under the Plan in substitution for
stock and stock-based awards held by employees of another corporation who
concurrently become employees of the Company as a result of a merger or
consolidation of the employing corporation with the Company or a Subsidiary
or the acquisition by the Company or a subsidiary of property or stock of
the employing corporation. The substitute Awards shall be granted on such
terms and conditions as the Board considers appropriate in the
circumstances. The shares which may be delivered under such substitute
Awards shall be in addition to the maximum number of shares provided for in
Section 5(a) only to the extent that the substitute Awards are not intended
to be Incentive Stock Options or exempt from Section 162(m) of the Code.
6. Stock Options. (a) General. (i) Subject to the provisions of
the Plan, the Board may award Incentive Stock Options and Nonstatutory
Stock Options, and determine the number of shares to be covered by each
Option, the option price therefor and the conditions and limitations
applicable to the exercise of the Option. The terms and conditions of
Incentive Stock Options shall be subject to and comply with Section 422 of
the Code, or any successor provision, and any regulations thereunder.
(ii) The Board shall establish the exercise price at the time
each Option is awarded. In the case of Incentive Stock Options, such
price shall not be less than 100% of the Fair Market Value of the
Common Stock on the date of award.
(iii) Each Option shall be exercisable at such times and subject
to such terms and conditions as the Board may specify in the
applicable Award or thereafter. Notwithstanding the foregoing, no
Option granted to a Reporting Person may
<PAGE>
become exercisable prior to the date six months and one day from the
date of grant unless such Option grant shall have been approved by the
Company's stockholders, the Board, or a committee comprised solely of
two or more "Non- Employee Directors", as defined in Rule 16b-3. The
Board may impose such conditions with respect to the exercise of
Options, including conditions relating to applicable Federal or state
securities laws, as it considers necessary or advisable.
(iv) Options granted under the Plan may provide for the payment
of the exercise price by delivery of cash or check in an amount equal
to the exercise price of such Options or, to the extent permitted by
the Board at or after the award of the Option, by (A) delivery of
shares of Common Stock owned by the optionee for at least six months
(or such shorter period as is approved by the Board), valued at their
Fair market Value, (B) delivery of a promissory note of the optionee
to the Company on terms determined by the Board, (C) delivery of an
irrevocable undertaking by a broker to deliver promptly to the Company
sufficient funds to pay the exercise price or delivery of irrevocable
instructions to a broker to deliver promptly to the Company cash or a
check sufficient to pay the exercise price, (D) payment of such other
lawful consideration as the Board may determine, or (E) any
combination of the foregoing.
(v) The Board may provide for the automatic award of an Option
upon the delivery of shares to the Company in payment of the exercise
price of an Option for up to the number of shares so delivered.
(vi) The Board may at any time accelerate the time at which all
or any part of an Option may be exercised.
(b) Incentive Stock Options. Options granted under the Plan which
are intended to be Incentive Stock Options shall be subject to the
following additional terms and conditions:
(i) All Incentive Stock Options granted under the Plan shall, at
the time of grant, be specifically designated as such in the option
agreement covering such Incentive Stock Options. The Option exercise
period shall not exceed 10 years from the date of grant.
(ii) If any employee to whom an Incentive Stock Option is to be
granted under the Plan is, at the time of the grant of such option,
the owner of stock possessing more than 10% of the total combined
voting power of all classes of stock of the Company (after taking into
account the attribution of stock ownership rule of Section 424(d) and
of the Code), then the following special provisions shall be
applicable to the Incentive Stock Option granted to such individual:
(x) the purchase price per share of the Common Stock subject
to such Incentive Stock Option shall not be less than 110% of the
Fair Market Value of one share of Common Stock at the time of
grant; and
(y) the Option exercise period shall not exceed five years
from the date of grant.
<PAGE>
(iii) For so long as the Code shall so provide, options granted
to any employee under the Plan (and any other incentive stock option
plans of the Company) which are intended to constitute Incentive Stock
Options shall not constitute Incentive Stock Options to the extent
that such options, in the aggregate, become exercisable for the first
time in any one calendar year for shares of Common Stock with an
aggregate Fair Market Value (determined as of the respective date or
dates of grant) of more than $100,000.
(iv) No Incentive Stock Option may be exercised unless, at the
time of such exercise, the Participant is, and has been continuously
since the date of grant of his or her Option, employed by the Company,
except that:
(x) an Incentive Stock Option may be exercised within the
period of three months after the date the Participant ceases to
be an employee of the Company (or within such lesser period as
may be specified in the applicable option agreement), provided,
that the agreement with respect to such Option may designate a
longer exercise period and that the exercise after such
three-month period shall be treated as the exercise of a
Nonstatutory Stock Option under the Plan;
(y) if the Participant dies while in the employ of the
Company, or within three months after the Participant ceases to
be such an employee, the Incentive Stock Option may be exercised
by the Participant's Designated Beneficiary within the period of
one year after the date of death (or within such lesser period as
may be specified in the applicable Option agreement); and
(z) if the Participant becomes disabled (within the meaning
of Section 22(e)(3) of the Code or any successor provision
thereto) while in the employ of the Company, the Incentive Stock
option may be exercised within the period of one year after the
date of death (or within such lesser period as may be specified
in the Option agreement).
For all purposes of the Plan and any Option granted hereunder, "employment"
shall be defined in accordance with the provisions of Section 1.421-7(h) of
the Income Tax Regulations (or any successor regulations). Notwithstanding
the foregoing provisions, no Incentive Stock Option may be exercised after
its expiration date.
7. Stock Appreciation Rights. (a) The Board may grant Stock
Appreciation Rights entitling recipients on exercise of the SAR to receive
an amount, in cash or Stock or a combination thereof (such form to be
determined by the Board), determined in whole or in part by reference to
appreciation in the Fair Market Value of the Stock between the date of the
Award and the exercise of the Award. A Stock Appreciation Right shall
entitle the Participant to receive, with respect to each share of Stock as
to which the SAR is exercised, the excess of the share's Fair Market Value
on the date of exercise over its Fair Market Value on the date the SAR was
granted. The Board may also grant Stock Appreciation Rights that provide
that, following a change in control of the Company (as defined by the Board
at the time of the Award), the holder of such SAR will be entitled to
receive, with respect to each share of Stock subject to the SAR, an amount
equal to the excess of a specified value (which may include an average
<PAGE>
of values) for a share of Stock during a period preceding such change in
control over the Fair Market Value of a share of Stock on the date the SAR
was granted.
(b) Stock Appreciation Rights may be granted in tandem with, or
independently of, Options granted under the Plan. A Stock Appreciation
Right granted in tandem with an Option which is not an Incentive Stock
Option may be granted either at or after the time the Option is granted. A
Stock Appreciation Right granted in tandem with an Incentive Stock Option
may be granted only at the time the Option is granted.
(c) When Stock Appreciation Rights are granted in tandem with
Options, the following provisions will apply:
(i) The Stock Appreciation Right will be exercisable only at such
time or times, and to the extent, that the related Option is
exercisable and will be exercisable in accordance with the procedure
required for exercise of the related Option.
(ii) The Stock Appreciation Right will terminate and no longer be
exercisable upon the termination or exercise of the related Option,
except that a Stock Appreciation Right granted with respect to less
than the full number of shares covered by an Option will not be
reduced until the number of shares as to which the related Option has
been exercised or has terminated exceeds the number of shares not
covered by the Stock Appreciation Right.
(iii) The Option will terminate and no longer be exercisable upon
the exercise of the related Stock Appreciation Right.
(iv) The Stock Appreciation Right will be transferable only with
the related Option.
(v) A Stock Appreciation Right granted in tandem with an
Incentive Stock Option may be exercised only when the market price of
the Stock subject to the Option exceeds the exercise price of such
Option.
(d) A Stock Appreciation Right not granted in tandem with an
Option will become exercisable at such time or times, and on such
conditions, as the Board may specify.
(e) The Board may at any time accelerate the time at which all or
any part of the SAR may be exercised.
8. Performance Shares. (a) The Board may make Performance Share
Awards entitling recipients to acquire shares of Stock upon the attainment
of specified performance goals. The Board may make Performance Share Awards
independent of or in connection with the granting of any other Award under
the Plan. The Board in its sole discretion shall determine the performance
goals applicable under each such Award, the periods during which
performance is to be measured, and all other limitations and conditions
applicable to the awarded Performance Shares; provided, however, that the
Board may rely on the performance goals and other standards applicable to
other performance plans of the Company in setting the standards for
Performance Share Awards under the Plan.
<PAGE>
(b) Performance Share Awards and all rights with respect to such
Awards may not be sold, assigned, transferred, pledged or otherwise
encumbered.
(c) A Participant receiving a Performance Share Award shall have
the rights of a stockholder only as to shares actually received by the
Participant under the Plan and not with respect to shares subject to an
Award but not actually received by the Participant. A Participant shall be
entitled to receive a stock certificate evidencing the acquisition of
shares of Stock under a Performance Share Award only upon satisfaction of
all conditions specified in the agreement evidencing the Performance Share
Award.
(d) The Board may at any time accelerate or waive any or all of
the goals, restrictions or conditions imposed under any Performance Share
Award.
9. Restricted and Unrestricted Stock. (a) The Board may grant
Restricted Stock Awards entitling recipients to acquire shares of Stock,
subject to the right of the Company to repurchase all or part of such
shares at their purchase price (or to require forfeiture of such shares if
purchased at no cost) from the recipient in the event that conditions
specified by the Board in the applicable Award are not satisfied prior to
the end of the applicable Restricted Period or Restricted Periods
established by the Board for such Award. Conditions for repurchase (or
forfeiture) may be based on continuing employment or service or achievement
of preestablished performance or other goals and objectives.
(b) Shares of Restricted Stock may not be sold, assigned,
transferred, pledged or otherwise encumbered, except as permitted by the
Board, during the applicable Restricted Period. Shares of Restricted Stock
shall be evidenced in such manner as the Board may determine. Any
certificates issued in respect of shares of Restricted Stock shall be
registered in the name of the Participant and, unless otherwise determined
by the Board, deposited by the Participant, together with a stock power
endorsed in blank, with the Company (or its designee). At the expiration of
the Restricted Period, the Company (or such designee) shall deliver such
certificates to the Participant or if the Participant has died, to the
Participant's Designated Beneficiary.
(c) The Board may, in its sole discretion, grant (or sell at a
purchase price determined by the Board, which shall not be lower than 85%
of Fair Market Value on the date of sale) to Participants shares of Stock
free of any restrictions under the Plan ("Unrestricted Stock").
(d) The purchase price for each share of Restricted Stock and
Unrestricted Stock shall be determined by the Board of Directors and may
not be less than the par value of the Common Stock. Such purchase price may
be paid in the form of past services or such other lawful consideration as
is determined by the Board.
(e) The Board may at any time accelerate the expiration of the
Restricted Period applicable to all, or any particular, outstanding shares
of Restricted Stock.
10. General Provisions Applicable to Awards. (a) Applicability of
Rule 16b-3. Those provisions of the Plan which make an express reference to
Rule 16b- 3 shall apply to the Company only at such time as the Company's
Common Stock is registered under the Securities Exchange Act of 1934, or
any successor provision, and then only to Reporting Persons.
<PAGE>
(b) Nontransferability. Except as otherwise permitted by the
Board in the applicable Award, Awards shall not be assignable or
transferable by the Participant to whom they are granted, either
voluntarily or by operation of law.
(c) Documentation. Each Award under the Plan shall be evidenced
by an instrument delivered to the Participant specifying the terms and
conditions thereof and containing such other terms and conditions not
inconsistent with the provisions of the Plan as the Board considers
necessary or advisable. Such instruments may be in the form of agreements
to be executed by both the Company and the Participant, or certificates,
letters or similar documents, acceptance of which will evidence agreement
to the terms thereof and of this Plan.
(d) Board Discretion. Each type of Award may be made alone, in
addition to or in relation to any other type of Award. The terms of each
type of Award need not be identical, and the Board need not treat
Participants uniformly. Except as otherwise provided by the Plan or a
particular Award, any determination with respect to an Award may be made by
the Board at the time of award or at any time thereafter.
(e) Termination of Status. Subject to the provisions of Section
6(b)(iv), the Committee shall determine the effect on an Award of the
disability, death, retirement, authorized leave of absence or other
termination of employment or other status of a Participant and the extent
to which, and the period during which, the Participant's legal
representative, guardian or Designated Beneficiary may exercise rights
under such Award.
(f) Mergers, Etc. In the event of a consolidation, merger or
other reorganization in which all of the outstanding shares of Common Stock
are exchanged for securities, cash or other property of any other
corporation or business entity (an "Acquisition"), or in the event of a
liquidation of the Company, the Board of Directors of the Company, or the
board of directors of any corporation assuming the obligations of the
Company, may, in its discretion, take any one or more of the following
actions as to outstanding Awards:
(i) provide that such Awards shall be assumed, or substantially
equivalent Awards shall be substituted, by the acquiring or succeeding
corporation (or an affiliate thereof) on such terms as the Board
determines to be appropriate;
(ii) upon written notice to Participants, provide that all
unexercised Options or SARs will terminate immediately prior to the
consummation of such transaction unless exercised by the Participant
within a specified period following the date of such notice;
(iii) in the event of an Acquisition under the terms of which
holders of the Common Stock of the Company will receive upon
consummation thereof a cash payment for each share surrendered in the
Acquisition (the "Acquisition Price"), make or provide for a cash
payment to Participants equal to the difference between (A) the
Acquisition Price times the number of shares of Common Stock subject
to outstanding Options or SARs (to the extent then exercisable at
prices not in excess of the Acquisition Price) and (B) the aggregate
exercise price of all such outstanding Options or SARs in exchange for
the termination of such Options and SARs; and
<PAGE>
(iv) provide that all or any outstanding Awards shall become
exercisable or realizable in full prior to the effective date of such
Acquisition.
(g) Withholding. The Participant shall pay to the Company, or
make provision satisfactory to the Board for payment of, any taxes required
by law to be withheld in respect of Awards under the Plan no later than the
date of the event creating the tax liability. In the Board's discretion,
and subject to such conditions as the Board may establish, such tax
obligations may be paid in whole or in part in shares of Common Stock,
including shares retained from the Award creating the tax obligation,
valued at their Fair Market Value. The Company may, to the extent permitted
by law, deduct any such tax obligations from any payment of any kind
otherwise due to the Participant.
(h) Foreign Nationals. Awards may be made to Participants who are
foreign nationals or employed outside the United States on such terms and
conditions different from those specified in the Plan as the Board
considers necessary or advisable to achieve the purposes of the Plan or
comply with applicable laws.
(i) Amendment of Award. The Board may amend, modify or terminate
any outstanding Award, including substituting therefor another Award of the
same or a different type, changing the date of exercise or realization and
converting an Incentive Stock Option to a Nonstatutory Stock Option,
provided that the Participant's consent to such action shall be required
unless the Board determines that the action, taking into account any
related action, would not materially and adversely affect the Participant.
(j) Cancelation and New Grant of Options. The Board of Directors
shall have the authority to effect, at any time and from time to time, with
the consent of the affected optionees, (i) the cancelation of any or all
outstanding Options under the Plan and the grant in substitution therefor
of new Options under the Plan covering the same or different numbers of
shares of Common Stock and having an option exercise price per share which
may be lower or higher than the exercise price per share of the canceled
Options or (ii) the amendment of the terms of any and all outstanding
options under the Plan to provide an option exercise price per share which
is higher or lower than the then current exercise price per share of such
outstanding Options.
(k) Conditions on Delivery of Stock. The Company will not be
obligated to deliver any shares of Stock pursuant to the Plan or to remove
restrictions from shares previously delivered under the Plan (i) until all
conditions of the Award have been satisfied or removed, (ii) until, in the
opinion of the Company's counsel, all applicable Federal and state laws and
regulations have been complied with, (iii) if the outstanding Stock is at
the time listed on any stock exchange, until the shares to be delivered
have been listed or authorized to be listed on such exchange upon official
notice of notice of issuance, and (iv) until all other legal matters in
connection with the issuance and delivery of such shares have been approved
by the Company's counsel. If the sale of Stock has not been registered
under the Securities Act of 1933, as amended, the Company may require, as a
condition to exercise of the Award, such representations or agreements as
the Company may consider appropriate to avoid violation of such Act and may
require that the certificates evidencing such Stock bear an appropriate
legend restricting transfer.
11. Miscellaneous. (a) No Right To Employment or Other Status. No
person shall have any claim or right to be granted an Award, and the grant
of an Award
<PAGE>
shall not be construed as giving a Participant the right to continued
employment or service for the Company. The Company expressly reserves the
right at any time to dismiss a Participant free from any liability or claim
under the Plan, except as expressly provided in the applicable Award.
(b) No Rights As Stockholder. Subject to the provisions of the
applicable Award, no Participant or Designated Beneficiary shall have any
rights as a stockholder with respect to any shares of Common Stock to be
distributed under the Plan until he or she becomes the record holder
thereof.
(c) Exclusion from Benefit Computations. No amounts payable upon
exercise of Awards granted under the Plan shall be considered salary, wages
or compensation to Participants for purposes of determining the amount or
nature of benefits that Participants are entitled to under any insurance,
retirement or other benefit plans or programs of the Company.
(d) Effective Date and Term. (i) Effective Date. The Plan shall
become effective when adopted by the Board of Directors, but no Award
granted under the Plan shall become exercisable or effective unless and
until the Plan shall have been approved by the Company's stockholders. If
such stockholder approval is not obtained within 12 months after the date
of the Board's adoption of the Plan, each Award previously granted under
the Plan shall be deemed to be canceled and no Awards shall be granted
thereafter. Amendments to the Plan not requiring stockholder approval shall
become effective when adopted by the Board of Directors; amendments
requiring stockholder approval shall become effective when adopted by the
Board of Directors, but no Award granted after the date of such amendment
shall become exercisable or vested (to the extent that such amendment to
the Plan was required to enable the Company to grant such Award to a
particular optionee) unless and until such amendment shall have been
approved by the Company's stockholders. If such stockholder approval is not
obtained within 12 months of the Board's adoption of such amendment, any
Award granted on or after the date of such amendment shall terminate to the
extent that such amendment to the Plan was required to enable the Company
to grant such Award to a particular optionee. Subject to the limitations
set forth in this Section 11(d), Awards may be made under the Plan at any
time after the effective date and before the date fixed for termination of
the Plan.
(ii) Termination. The Plan shall terminate upon the earlier of
(i) the close of business on the day next preceding the 10th
anniversary of the date of its adoption by the Board of Directors, or
(ii) the date on which all shares available for issuance under the
Plan shall have been issued pursuant to Awards under the Plan. Awards
outstanding on such date shall continue to have force and effect in
accordance with the provisions of the instruments evidencing such
Awards.
(e) Amendment of Plan. The Board may amend, suspend or terminate
the Plan or any portion thereof at any time, provided that no amendment
shall be made without stockholder approval if such approval is necessary to
comply with any applicable tax or regulatory requirement. Prior to any such
approval, Awards may be made under the Plan expressly subject to such
approval.
(f) Governing Law. The provisions of the Plan shall be governed
by and interpreted in accordance with the laws of the State of Delaware.
<PAGE>
Plan originally adopted by the Board of
Directors on February 28, 1996, and
approved by the Stockholders on June 25,
1996
Amended and Restated Plan adopted by the
Board of Directors on July 12, 1996
<PAGE>
FURTHER
RESOLVED: That subject to stockholder approval, Section 5 of the
Company's 1996 Stock Incentive Plan is hereby amended to
increase from 1,000,000 to 3,000,000 the number of shares
of Common Stock Of the Company authorized for issuance
under such plan.
<PAGE>
EXHIBIT 4.13
COMVERSE TECHNOLOGY, INC.
1997 STOCK INCENTIVE COMPENSATION PLAN
1. Purpose of the Plan
The purpose of the Plan is to assist the Company, its
Subsidiaries and Affiliates in attracting and retaining valued directors
and employees by offering them a greater stake in the Company's success and
a closer identity with it, and to encourage ownership of the Company's
stock by such employees.
2. Definitions
2.1 "Affiliate" means any entity other than the Subsidiaries
in which the Company has a substantial direct or indirect equity interest,
as determined by the Board.
2.2 "Award" means an award of Deferred Stock, Restricted
Stock, Options or SARs under the Plan.
2.3 "Board" means the Board of Directors of the Company.
2.4 "Change in Control" means (i) the Board (or, if approval
of the Board is not required as a matter of law, the shareholders of the
Company) shall approve (a) any consolidation or merger of the Company in
which the Company is not the continuing or surviving corporation or
pursuant to which shares of Common Stock would be converted into cash,
securities or other property, other than a merger of the Company in which
the holders of Common Stock immediately prior to the merger have the same
proportionate ownership of common stock of the surviving corporation
immediately after the merger, or (b) any sale, lease, exchange or other
transfer (on one transaction or a series of related transactions) of all,
or substantially all, the assets of the Company or (c) the adoption of any
plan or proposal for the liquidation or dissolution of the Company; (ii)
any person (as such term is defined in Section 13(d) of the 1934 Act),
corporation or other entity other than the Company shall make a tender
offer or exchange offer to acquire any Common Stock (or securities
convertible into Common Stock) for cash, securities or any other
consideration, provided that (a) at least a portion of such securities
sought pursuant to the offer in question is acquired and (b) after
consummation of such offer, the person, corporation or other entity in
question is the "beneficial owner" (as such term is defined in Rule 13d-3
under the 1934 Act), directly or indirectly, of 20% or more of the
outstanding shares of Common Stock (calculated as provided in paragraph (d)
of such Rule 13d-3 in the case of rights to acquire Common Stock); (iii)
during any period of two consecutive years, individuals who at the
beginning of such period constituted the entire Board ceased for any reason
to constitute a majority thereof unless the election, or the nomination for
election by the Company's stockholders, of each new director was approved
by a vote of at least two-thirds of the directors then still in office who
were directors at the beginning of the period; or (iv) the occurrence of
any other event the Committee determines shall constitute a "Change in
Control" hereunder.
<PAGE>
2.5 "Code" means the Internal Revenue Code of 1986, as
amended.
2.6 "Common Stock" means the common stock of the Company,
par value $.10 per share, or such other class or kind of shares or other
securities resulting from the application of Section 10.
2.7 "Company" means Comverse Technology, Inc, a New York
corporation or any successor corporation.
2.8 "Committee" means the committee designated by the Board
to administer the Plan under Section 4. The Committee shall have at least
three members, each of whom shall be a member of the Board, a Non-Employee
Director and an Outside Director.
2.9 "Deferred Stock" means an Award made under Section 6 of
the Plan to receive Common Stock at the end of a specified Deferral Period.
2.10 "Deferral Period" means the period during which the
receipt of a Deferred Stock Award under Section 6 of the Plan will be
deferred.
2.11 "Director" means each member of the Board who is not an
Employee, who does not receive compensation from the Company or any
Subsidiary in any capacity other than as a Director and whose membership on
the Board is not attributable to any contract between the Company and such
Director or any other entity with which such Director is affiliated.
2.12 "Employee" means an officer or other key employee of
the Company, a Subsidiary or an Affiliate including a director who is such
an employee.
2.13 "Fair Market Value" means, on any given date, the mean
between the highest and lowest prices of actual sales of shares of Common
Stock on the principal national securities exchange on which the Common
Stock is listed on such date or, if Common Stock was not traded on such
date, on the last preceding day on which the Common Stock was traded.
2.14 "Holder" means an Employee to whom an Award is made.
2.15 "Hostile Change in Control" means any Change in Control
described in Section 2.4(ii) that is not approved or recommended by the
Board.
2.16 "Incentive Stock Option" means an Option intended to
meet the requirements of an incentive stock option as defined in Section
422 of the Code and designated as an Incentive Stock Option.
2.17 "1934 Act" means the Securities Exchange Act of 1934,
as amended.
2.18 "Non-Employee Director" means a person defined in Rule
16b-3(b)(3) promulgated by the Securities and Exchange Commission under the
1934 Act, or any successor definition adopted by the Securities and
Exchange Commission.
<PAGE>
2.19 "Non-Qualified Option" means an Option not intended to
be an Incentive Stock Option, and designated as a Non-Qualified Option.
2.20 "Option" means any stock option granted from time to
time under Section 8 of the Plan.
2.21 "Outside Director" means a member of the Board who is
an "outside director" within the meaning of Section 162(m) of the Code and
the regulations promulgated thereunder.
2.22 "Plan" means the Comverse Technology, Inc. 1997 Stock
Incentive Compensation Plan herein set forth, as amended from time to time.
2.23 "Restricted Stock" means Common Stock awarded by the
Committee under Section 7 of the Plan.
2.24 "Restriction Period" means the period during which
Restricted Stock awarded under Section 7 of the Plan is subject to
forfeiture.
2.25 "Retirement" means retirement from the active
employment of the Company, a Subsidiary or an Affiliate pursuant to the
relevant provisions of the applicable pension plan of such entity or as
otherwise determined by the Committee.
2.26 "SAR" means a stock appreciation right awarded by the
Committee under Section 9 of the Plan.
2.27 "Subsidiary" means any corporation (other than the
Company) in an unbroken chain of corporations beginning with the Company
(or any subsequent parent of the Company) if each of the corporations other
than the last corporation in the unbroken chain owns stock possession 50%
or more of the total combined voting power of all classes of stock in one
of the other corporations in such chain.
2.28 "Ten Percent Shareholder" means a person who on any
given date owns, either directly or indirectly (taking into account the
attribution rules contained in Section 424(d) of the Code), stock
possessing more than 10% of the total combined voting power of all classes
of stock of the Company or a Subsidiary.
3. Eligibility
3.1 Any Employee is eligible to receive an Award.
3.2 Each Director shall receive in each fiscal year of the
Company Options to purchase 6,000 shares of Common Stock having an exercise
price per share equal to the Fair Market Value as of the date two business
days after the publication of the audited year-end financial statements of
the Company for the immediately preceding fiscal year. Such Options shall
be forfeited to the extent of 1,200 shares per meeting in the event that
such Director, during the year of grant, fails to attend, in the aggregate,
at least five meetings of the Board and any committees of the Board of
which such Director is a member; provided, however, that during the
<PAGE>
continuation of any of the Company's previously-adopted Stock Option Plans,
options granted thereunder to Directors shall be deemed to be granted under
the Plan for the purposes of this Section 3.2.
4. Administration and Implementation of Plan
4.1 The Plan shall be administered by the Committee, which
shall have full power to interpret and administer the Plan and full
authority to act in selecting the Employees to whom Awards will be granted,
in determining the type and amount of Awards to be granted to each such
Employee, the terms and conditions of Awards granted under the Plan and the
terms of agreements which will be entered into with Holders.
4.2 The Committee's powers shall include, but not be limited
to, the power to determine whether, to what extent and under what
circumstances an Option may be exchanged for cash, Common Stock, Restricted
Stock, Deferred Stock or some combination thereof; to determine whether, to
what extent and under what circumstances an Award is made and operates in
tandem with other Awards made hereunder; to determine whether, to what
extent and under what circumstances Common Stock or cash payable with
respect to an Award shall be deferred, either automatically or at the
election of the Holder (including the power to add deemed earnings to any
such deferral); and to grant Awards (other than Incentive Stock Options)
that are transferable by the Holder.
4.3 The Committee shall have the power to adopt regulations
for carrying out the Plan and to make changes in such regulations as it
shall, from time to time, deem advisable. Any interpretation by the
Committee of the terms and provisions of the Plan and the administration
thereof, and all action taken by the Committee, shall be final and binding
on Holders.
4.4 The Committee may condition the grant of any Award or
the lapse of any Deferral or Restriction Period (or any combination
thereof) upon the Holder's achievement of a Performance Goal that is
established by the Committee before the grant of the Award. For this
purpose, a "Performance Goal" shall mean a goal that must be met by the end
of a period specified by the Committee (but that is substantially uncertain
to be met before the grant of the Award) based upon: (i) the price of
Common Stock, (ii) the market share of the Company, its Subsidiaries or
Affiliates (or any business unit thereof), (iii) sales by the Company, its
Subsidiaries or Affiliates (or any business unit thereof), (iv) earnings
per share of Common Stock, (v) return on shareholder equity of the Company,
(vi) costs of the Company, its Subsidiaries or Affiliates (or any business
unit thereof) or (vii) any other performance goal that would satisfy the
applicable requirements of Section 162(m) of the Code. The Committee shall
have discretion to determine the specific targets with respect to each of
these categories of Performance Goals. Before granting an Award or
permitting the lapse of any Deferral or Restriction Period subject to this
Section, the Committee shall certify that an individual has satisfied the
applicable Performance Goal.
5. Shares of Stock Subject to the Plan
<PAGE>
5.1 Subject to adjustment as provided in Section 10, the
total number of shares of Common Stock available for Awards under the Plan
shall be 2,500,000 shares.
5.2 The maximum number of shares of Common Stock subject to
an Award that may be awarded to any Employee shall not exceed 1,000,000
during any calendar year (the "Individual Limit"). Subject to Section 5.3
and Section 10, any shares of Common Stock subject to an Award that is
canceled or repriced by the Committee shall count against the Individual
Limit. Notwithstanding the foregoing, the Individual Limit may be adjusted
to reflect the effect on shares of Common Stock of any transaction or event
described in Section 10.
5.3 Any shares issued by the Company through the assumption
or substitution of outstanding grants from an acquired company shall not
(i) reduce the shares available for Awards under the Plan, or (ii) be
counted against the Individual Limit. Any shares issued hereunder may
consist, in whole or in part, of authorized and unissued shares or treasury
shares. If any shares subject to any Award granted hereunder are forfeited
or such Award otherwise terminates without the issuance of such shares or
the payment of other consideration in lieu of such shares, the shares
subject to such Award, to the extent of any such forfeiture or termination,
shall again be available for Awards under the Plan.
6. Deferred Stock
An Award of Deferred Stock is an agreement by the Company to
deliver to the recipient a specified number of shares of Common Stock at
the end of a specified deferral period or periods. Such an Award shall be
subject to the following terms and conditions.
6.1 Deferred Stock Awards shall be evidenced by Deferred
Stock agreements. Such agreements shall conform to the requirements of the
Plan and may contain such other provisions as the Committee shall deem
advisable.
6.2 Upon determination of the number of shares of Deferred
Stock to be awarded to a Holder, the Committee shall direct that the same
be credited to the Holder's account on the books of the Company but that
issuance and delivery of the same shall be deferred until the date or dates
provided in Section 6.5 hereof. Prior to issuance and delivery hereunder
the Holder shall have no rights as a stockholder with respect to any shares
of Deferred Stock credited to the Holder's account.
6.3 Amounts equal to any dividends declared during the
Deferral Period with respect to the number of shares covered by a Deferred
Stock Award will be paid to the Holder currently, or deferred and deemed to
be reinvested in additional Deferred Stock, or otherwise reinvested on such
terms as are determined at the time of the Award by the Committee, in its
sole discretion, and specified in the Deferred Stock agreement.
6.4 The Committee may condition the grant of an Award of
Deferred Stock or the expiration of the Deferral Period upon the Employee's
achievement of one or more Performance Goal(s) specified in the Deferred
Stock agreement. If the Employee fails to achieve the specified Performance
Goal(s), either the Committee shall
<PAGE>
not grant the Deferred Stock Award to the Employee or the Holder shall
forfeit the Award and no Common Stock shall be transferred to him pursuant
to the Deferred Stock Award. Unless otherwise determined by the Committee
at the time of an Award, dividends paid during the Deferral Period on
Deferred Stock subject to a Performance Goal shall be reinvested in
additional Deferred Stock and the lapse of the Deferral Period for such
Deferred Stock shall be subject to the Performance Goal(s) previously
established by the Committee.
6.5 The Deferred Stock agreement shall specify the duration
of the Deferral Period taking into account termination of employment on
account of death, disability, Retirement or other cause. The Deferral
Period may consist of one or more installments. At the end of the Deferral
Period or any installment thereof the shares of Deferred Stock applicable
to such installment credited to the account of a Holder shall be issued and
delivered to the Holder (or, where appropriate, the Holder's legal
representative) in accordance with the terms of the Deferred Stock
agreement. The Committee may, in its sole discretion, accelerate the
delivery of all or any part of a Deferred Stock Award or waive the deferral
limitations for all or any part of a Deferred Stock Award.
7. Restricted Stock
An Award of Restricted Stock is a grant by the Company of a
specified number of shares of Common Stock to the Employee, which shares
are subject to forfeiture upon the happening of specified events. Such an
Award shall be subject to the following terms and conditions:
7.1 Restricted Stock shall be evidenced by Restricted Stock
agreements. Such agreements shall conform to the requirements of the Plan
and may contain such other provisions as the Committee shall deem
advisable.
7.2 Upon determination of the number of shares of Restricted
Stock to be granted to the Holder, the Committee shall direct that a
certificate or certificates representing the number of shares of Common
Stock be issued to the Holder with the Holder designated as the registered
owner. The certificate(s) representing such shares shall be legended as to
sale, transfer, assignment, pledge or other encumbrances during the
Restriction Period and deposited by the Holder, together with a stock power
endorsed in blank, with the Company, to be held in escrow during the
Restriction Period.
7.3 Unless otherwise determined by the Committee at the time
of an Award, during the Restriction Period the Holder shall have the right
to receive dividends from and to vote the shares of Restricted Stock.
7.4 The Committee may condition the grant of an Award of
Restricted Stock or the expiration of the Restriction Period upon the
Employee's achievement of one or more Performance Goal(s) specified in the
Restricted Stock Agreement. If the Employee fails to achieve the specified
Performance Goal(s), either the Committee shall not grant the Restricted
Stock to the Employee or the Holder shall forfeit the Award of Restricted
Stock and the Common Stock shall be forfeited to the Company.
<PAGE>
7.5 The Restricted Stock agreement shall specify the
duration of the Restriction Period and the performance, employment or other
conditions (including termination of employment on account of death,
disability, Retirement or other cause) under which the Restricted Stock may
be forfeited to the Company. At the end of the Restriction Period the
restrictions imposed hereunder shall lapse with respect to the number of
shares of Restricted Stock as determined by the Committee, and the legend
shall be removed and such number of shares delivered to the Holder (or,
where appropriate, the Holder's legal representative). The Committee may,
in its sole discretion, modify or accelerate the vesting and delivery of
shares of Restricted Stock.
8. Options
Options give an Employee or Director the right to purchase a
specified number of shares of Common Stock, Deferred Stock or Restricted
Stock (as selected by the Committee) from the Company for a specified time
period at a fixed price. Options granted to Employees may be either
Incentive Stock Options or Non-Qualified Stock Options. Option granted to
Directors pursuant to Section 3.2 shall be Non-Qualified Stock Options. The
grant of Options shall be subject to the following terms and conditions:
8.1 Options shall be evidenced by Option agreements. Such
agreements shall conform to the requirements of the Plan, and may contain
such other provisions as the Committee shall deem advisable.
8.2 Subject to Section 3.2, the price per share at which
Common Stock may be purchased upon exercise of an Option shall be
determined by the Committee, but, in the case of grants of Incentive Stock
Options, shall be not less than the Fair Market Value of a share of Common
Stock on the date of grant. In the case of any Incentive Stock Option
granted to a Ten Percent Shareholder, the option price per share shall not
be less than 110% of the Fair Market Value of a share of Common Stock on
the date of grant. The option price per share for Non-Qualified Options may
be less than the Fair Market Value of a share of Common Stock on the date
of grant.
8.3 The Option agreements shall specify when an Option may
be exercised and the terms and conditions applicable thereto. The term of
an Option shall in no event be greater than ten years (five years in the
case of an Incentive Stock Option granted to a Ten Percent Shareholder).
8.4 Each provision of the Plan and each Option agreement
relating to an Incentive Stock Option shall be construed so that each
Incentive Stock Option shall be an incentive stock option as defined in
Section 422 of the Code, and any provisions of the Option agreement thereof
that cannot be so construed shall be disregarded. Incentive Stock Options
may not be granted to employees of Affiliates.
8.5 No Incentive Stock Option shall be transferable
otherwise than by will or the laws of descent and distribution and, during
the lifetime of the Holder, shall be exercisable only by the Holder. Upon
the death of a Holder, the person to whom the rights have passed by will or
by the laws of descent and distribution may exercise an Incentive Stock
Option only in accordance with this Section 8.
<PAGE>
8.6 Except as provided in an Option Agreement, the option
price of the shares of Common Stock upon the exercise of an Option shall be
paid in full at the time of the exercise in cash, in Shares of Common Stock
valued at Fair Market Value on the date of exercise or a combination of
cash and such shares of Common Stock. With the consent of the Committee,
payment upon the exercise of a NonQualified Option may be made in whole or
in part by Restricted Stock (based on the fair market value of the
Restricted Stock on the date the Option is exercised, as determined by the
Committee). In such case the Common Stock to which the Option relates shall
be subject to the same forfeiture restrictions originally imposed on the
Restricted Stock exchanged therefor. The Committee may provide in the
applicable Option agreement for other methods for exercising options
including by delivery of a note by the Holder in the amount of the exercise
price.
8.7 With the Holder's consent, the Committee may amend any
outstanding Option to deliver shares of Deferred Stock or Restricted Stock
instead of Common Stock.
8.8 If a Holder's employment by the Company, a Subsidiary or
Affiliate terminates by reason of death, any Option granted to such Holder
may thereafter be exercised (to the extent such Option was exercisable at
the time of death or on such accelerated basis as the Committee may
determine at or after grant) by, where appropriate, the Holder's transferee
or by the Holder's legal representative, until the earlier of the date
specified in the applicable Option Agreement or one year after the Holder's
death.
8.9 If a Holder's employment by the Company, a Subsidiary or
Affiliate terminates by reason of disability (as determined by the
Committee) or Retirement, any unexercised Option granted to the Holder
shall become immediately exercisable and may thereafter be exercised by the
Holder (or, where appropriate, the Holder's transferee or legal
representative) until the earlier of the date specified in the applicable
Option Agreement or 90 days after such termination of employment.
8.10 If a Holder's employment by the Company, Subsidiary or
Affiliate terminates for any reason other than death, disability or
Retirement, all unexercised Options awarded to the Holder shall terminate
on the earlier of the date specified in the applicable Option Agreement or
90 days after such termination of employment.
8.11 The Committee or the Board may in their discretion
extend the period during which an Option held by an Employee may be
exercised to such period, not to exceed three years following the
termination of an Employee's employment or service with the Company or any
of the Subsidiaries, as the committee or the Board may determine to be
appropriate in any particular instance.
9. Stock Appreciation Rights
SARs are rights to receive a payment in cash, Common Stock,
Restricted Stock or Deferred Stock (as selected by the Committee) equal to
the increase in the Fair Market Value of a specified number of shares of
Common Stock from the date of grant of the SAR to the date of exercise. The
grant of SARs shall be subject to the following terms and conditions:
<PAGE>
9.1 SARs shall be evidenced by SAR agreements. Such
agreements shall conform to the requirements of the Plan and may contain
such other provisions as the committee shall deem advisable. A SAR may be
granted in tandem with all or a portion of a related Option under the Plan
("Tandem SAR"), or may be granted separately ("Freestanding SAR"). A Tandem
SAR may be granted either at the time of the grant of the Option or at any
time thereafter during the term of the Option and shall be exercisable only
to the extent that the related Option is exercisable. In no event shall any
SAR be exercisable within the first six months of its grant.
9.2 The base price of a Tandem SAR shall be the option price
under the related Option. The base price of a Freestanding SAR shall be not
less than 100% of the Fair Market Value of the Common Stock, as determined
by the Committee, on the date of grant of the Freestanding SAR.
9.3 A SAR shall entitle the recipient to receive a payment
equal to the excess of the Fair Market Value of the shares of Common Stock
covered by the SAR on the date of exercise over the base price of the SAR.
Such payment may be in cash, in shares of Common Stock, in shares of
Deferred Stock, in shares of Restricted Stock or any combination, as the
Committee shall determine. Upon exercise of a Tandem SAR as to some or all
of the shares of Common Stock covered by the grant, the related Option
shall be canceled automatically to the extent of the number of shares of
Common Stock covered by such exercise, and such shares shall no longer be
available for purchase under the Option pursuant to Section 8. Conversely,
if the related Option is exercised as to some or all of the shares of
Common Stock covered by the Award, the related Tandem SAR, if any, shall be
canceled automatically to the extent of the number of shares of Common
Stock covered by the Option exercise.
9.4 SARs shall be subject to the same terms and conditions
applicable to Options as stated in Sections 8.3, 8.5, 8.7, 8.8, 8.9 and
8.10.
10. Adjustments upon Changes in Capitalization
In the event of a reorganization, recapitalization, stock split,
spin-off, split-off, split-up, stock dividend, issuance of stock rights,
combination of shares, merger, consolidation or any other change in the
corporate structure of the Company affecting Common Stock, or any
distribution to stockholders other than a cash dividend, the Board shall
make appropriate adjustment in the number and kind of shares authorized by
the Plan and any adjustments to outstanding Awards as it determines
appropriate. No fractional shares of Common Stock shall be issued pursuant
to such an adjustment. The Committee may determine to pay the Fair Market
Value of any fractional shares resulting from adjustments pursuant to this
Section in cash to the Holder.
11. Adjustments Upon a Change in Control
Except as otherwise provided in an applicable agreement, upon the
occurrence of a Change in Control (other than a Hostile Change of Control),
the Committee may elect to provide that all outstanding Options and Stock
Appreciation Rights shall immediately vest and become exercisable, each
Deferral Period and Restriction Period shall immediately lapse or all
shares of Deferred Stock subject to outstanding Awards shall be issued and
delivered to the Holder. In the event of a Hostile Change in Control, each
of the foregoing actions shall occur automatically upon the
<PAGE>
occurrence of such Hostile Change in Control. At any time before a Change
in Control, the Committee may, without the consent of any Holder of an
Option, (i) require the entity effecting the Change in Control or a parent
or subsidiary of such entity to assume each outstanding Option or
substitute an equivalent option therefor or (ii) terminate and cancel all
outstanding Options upon the Change in Control and pay the Holder of each
such Option cash equal to the product of (x) the difference between the
Fair Market Value of Common Stock on the date of the Change in Control and
the exercise price of such Option and (y) the number of shares of Common
Stock subject to such Option. For the purposes of this Section, an Option
shall be considered assumed if, following the merger, the option confers
the right to purchase, for each share of Common Stock subject to the Option
immediately prior to the merger, the consideration (whether stock, cash, or
other securities or property) received in the merger by holders of Common
Stock for each share held on the effective date of the transaction (and if
holders were offered a choice of consideration, the type of consideration
chosen by the holders of a majority of the outstanding Shares); provided,
however, that if such consideration received in the merger was not solely
common stock of the successor corporation or its parent, the Committee may,
with the consent of the successor corporation, provide for the
consideration to be received upon the exercise of the Option, for each
share of Common Stock subject to the Option, to be solely common stock of
the successor corporation or its parent equal in fair market value to the
per share consideration received by holders of Common Stock in the merger.
12. Effective Date, Termination and Amendment
The Plan shall become effective on November 21, 1997, subject to
shareholder approval. The Plan shall remain in full force and effect until
the earlier of 10 years from the date of its adoption by the Board, or the
date it is terminated by the Board. The Board shall have the power to
amend, suspend or terminate the Plan at any time, provided that no such
amendment shall be made without stockholder approval which shall:
12.1 Increase (except as provided in Section 10) the total
number of shares available for issuance pursuant to the Plan;
12.2 Change the class of individuals eligible to be Holders;
12.3 Modify the Individual Limit (except as provided in
Section 10) or the categories of Performance Goals previously disclosed to
shareholders;
12.4 Change the provisions of this Section 12; or
12.5 Make any other change for which shareholder approval is
required under Section 16(b) or any successor provision of the 1934 Act.
Termination of the Plan pursuant to this Section 12 shall not
affect Awards outstanding under the Plan at the time of termination.
13. Transferability
Except as provided below, Awards may not be pledged, assigned or
transferred for any reason during the Holder's lifetime, and any attempt to
do so shall be
<PAGE>
void and the relevant Award shall be forfeited. The Committee may grant
Awards (except Incentive Stock Options) that are transferable by the Holder
during his lifetime, but such Awards shall be transferable only to the
extent specifically provided in the agreement entered into with the Holder.
The transferee of the Holder shall, in all cases, be subject to the
provisions of the agreement between the Company and the Holder.
14. General Provisions
14.1 Nothing contained in the Plan, or any Award granted
pursuant to the Plan, shall confer upon any Employee any right with respect
to continued employment by the Company, a Subsidiary or Affiliate, nor
interfere in any way with the right of the Company, a Subsidiary or
Affiliate to terminate the employment of any Employee at any time.
14.2 For purposes of this Plan, transfer of employment
between the Company and its Subsidiaries and Affiliates shall not be deemed
termination of employment.
14.3 In connection with the transfer of shares of Common
Stock as a result of the exercise or vesting of an Award or upon any other
event that would subject the Holder to taxation, the Company shall have the
right to require the Holder to pay an amount in cash or to retain or sell
without notice, or to demand surrender of, shares of Common Stock in value
sufficient to cover any tax, including any Federal, state or local income
tax, required by any governmental entity to be withheld or otherwise
deducted and paid with respect to such transfer ("Withholding Tax"), and to
make payment (or to reimburse itself for payment made) to the appropriate
taxing authority of an amount in cash equal to the amount of such
Withholding Tax, remitting any balance to the employee. For purposes of
this Section 14.3, the value of shares of Common Stock so retained or
surrendered shall be the Fair Market Value on the date that the amount of
the Withholding Tax is to be determined (the "Tax Date"), and the value of
shares of Common Stock so sold shall be the actual net sale price per share
(after deduction of commissions) received by the Company.
Notwithstanding the foregoing, the Holder shall be entitled to
satisfy the obligation to pay any Withholding Tax, in whole or in part, by
providing the Company with funds sufficient to enable the Company to pay
such Withholding Tax or by requiring the Company to retain or to accept
upon delivery thereof shares of Common Stock (other than unvested
Restricted Stock) sufficient in value (determined in accordance with the
last sentence of the preceding paragraph) to cover the amount of such
Withholding Tax. Each election by a Holder to have shares retained or to
deliver shares for this purpose shall be subject to the following
restrictions: (i) the election must be in writing and made on or prior to
the Tax Date; and (ii) the election shall be subject to the disapproval of
the Committee.
14.4 With respect to Holders subject to Section 16 of the
Exchange Act, transactions under the Plan are intended to comply with all
applicable conditions of Rule 16b-3 or its successors under the Exchange
Act. To the extent any provision of the Plan or action by the Committee
fails to so comply, it shall be deemed null and void, to the extent
permitted by law and deemed advisable by the Committee.
<PAGE>
14.5 Without amending the Plan, Awards may be granted to
Employees who are foreign nationals or employed outside the United States
or both, on such terms and conditions different from those specified in the
Plan as may, in the judgment of the Committee, be necessary or desirable to
further the purpose of the Plan.
14.6 To the extent that Federal laws (such as the 1934 Act,
the Code or the Employee Retirement Income Security Act of 1974) do not
otherwise control, the Plan and all determinations made and actions taken
pursuant hereto shall be governed by the law of New York and construed
accordingly.
14.7 The Committee may amend any outstanding Awards to the
extent it deems appropriate. Such amendment may be made by the Committee
without the consent of the Holder, except in the case of amendments adverse
to the Holder, in which case the Holder's consent is required for any such
amendment. Notwithstanding the foregoing, the Committee may exercise its
authority under Section 11 without the consent of Holders.
<PAGE>
EXHIBIT 4.14
COMVERSE TECHNOLOGY, INC.
1997 EMPLOYEE STOCK PURCHASE PLAN
1. Purposes. The 1997 Employee Stock Purchase Plan of
Comverse Technology, Inc. (the "Plan") is intended to provide a method
whereby employees of Comverse Technology, Inc. and its subsidiary and
predecessor corporations, if any (hereinafter collectively referred to,
unless the context otherwise requires, as the "Company"), will have an
opportunity to acquire a proprietary interest in the Company through the
purchase of shares of Common Stock of the Company. It is the intention of
the Company to have the Plan qualify as an "employee stock purchase plan"
under Section 423 of the Internal Revenue Code of 1986, as amended (the
"Code"). The provisions of the Plan shall, accordingly, be construed so as
to extend and limit participation in a manner consistent with the
requirements of Section 423 of the Code.
2. Definitions. (a) "Base Pay" means regular straight-time
earnings (as the same may be adjusted from time to time) but excluding
payments for overtime, shift differentials, incentive compensation, sales
commissions, bonuses and other special payments.
(b) "Common Stock" means the common stock of the Company,
par value $.10 per share, or such other class or kind of shares or other
securities resulting from the application of Section .
(c) "Employee" means any person who is customarily employed
for 20 or more hours per week and more than five months in a calendar year
by the Company or by a Subsidiary Corporation.
(d) "Offering Commencement Date" means the applicable date
on which an Offering under the Plan commences pursuant to Paragraph 4.
(e) "Offering Termination Date" means the applicable date on
which an Offering under the Plan terminates pursuant to Paragraph 4.
(f) "Subsidiary Corporation" means any present or future
corporation which (i) is a "subsidiary corporation" as that term is defined
in Section 424(f) of the Code and (ii) is designated as a participant in
the Plan by the Board of Directors or Committee described in Paragraph 13.
3. Eligibility. (a) Any Employee who shall have completed
three months of employment and shall be employed by the Company on the
applicable Offering Commencement Date shall be eligible to participate in
the Plan.
(b) Any provision of the Plan to the contrary
notwithstanding, no Employee shall be granted an option to participate in
the Plan:
(i) if, immediately after the grant, such Employee would own
stock, and/or hold outstanding options to purchase stock,
possessing 5% or more of the total combined voting power or value
of all classes of stock of the Company or of any Subsidiary
Corporation (for purposes of this Paragraph the rules of
<PAGE>
Section 424(d) of the Code shall apply in determining stock
ownership of any employee); or
(ii) which permits his or her rights to purchase stock under
all employee stock purchase plans maintained by the Company and
its subsidiaries to accrue at a rate which exceeds $25,000 of the
fair market value of the stock (determined at the time such
option is granted) for each calendar year in which such option is
outstanding at any time.
4. Offering Dates. The Plan will be implemented by
semiannual offerings (referred to herein collectively as "Offerings" and
individually as an "Offering") of a maximum aggregate of 250,000 shares
(subject to adjustment as provided in Paragraphs 12(a) and 17) of Common
Stock, subject to Paragraphs 12, 17 and 22 below, as follows:
(i) Offering I shall commence on each March 1 and terminate
on each August 31; and
(ii) Offering II shall commence on each September 1 and
terminate on each final day of February.
Participation in any one Offering under the Plan shall
neither limit, nor require, participation in any other Offering.
5. Participation. All Employees will become participants in
an Offering on the applicable Offering Commencement Date. Payroll
deductions, if any, for a participant shall commence on the applicable
Offering Commencement Date of the Offering and shall end on the Offering
Termination Date of such Offering, unless sooner terminated pursuant to
Paragraph 10.
6. Payroll Deductions. (a) Participants may elect to have
amounts withheld from their base pay by completing an authorization for a
payroll deduction ("Authorization") on the form provided by the Company and
filing it with the Company's Payroll department. At the time a participant
files his or her Authorization for a payroll deduction, the participant
shall elect to have deductions made from his or her pay on each payday
during the time he or she is a participant in an Offering at the rate of 0,
1, 2, 3, 4, 5, 6, 7, 8, 9 or 10% of his or her annualized base pay. If a
participant has not filed an Authorization for a previous Offering or for
the applicable Offering at least seven (7) days prior to the applicable
Offering Commencement Date, he or she shall be deemed to have filed an
Authorization electing to withhold 0% of his or her annualized base pay.
(b) All payroll deductions made for the participant shall be
credited to his or her account maintained by the Company under the Plan. A
participant may not make any separate cash payment into such account.
(c) Except as provided in Paragraph 8(b) or 10, a
participant may only make changes to the rate of deduction from his or her
annualized base pay, on not more than one occasion during an Offering, by
completing a new Authorization on the form provided by the Company and
filing it with the Company's Director of Treasury Operations as provided
herein. Such new Authorization shall be effective upon the
<PAGE>
commencement of the first pay period subsequent to its filing. A
participant may change his or her Authorization only once during any
Offering
7. Granting of Option. (a) For each of the Offerings, a
participating Employee shall be deemed to have been granted an option (the
"Option"), on the applicable Offering Commencement Date, to purchase a
maximum number of shares of Common Stock equal to an amount determined as
follows: 85% of the market value of a share of the Company's Common Stock
on the applicable Offering Commencement Date shall be divided into an
amount equal to 6% of the Employee's annualized Base Pay as of such
Offering Commencement Date. For all purposes of the Plan, the market value
of the Company's Common Stock shall be determined as provided in
subparagraph (b) below.
An Employee's "annualized Base Pay" for any Offering shall
be determined as follows: (i) for any Employee who was employed by the
Company for an entire twelve-month period ending on the day prior to the
Offering Commencement Date, the Employee's total Base Pay for such
twelve-month period; (ii) for any Employee not employed for the entire
twelve-month period, the sum of the Base Pay earned in each of the full
calendar months prior to the Offering Commencement Date during which the
Employee was employed by the Company, divided by the number of full
calendar months for which the Employee was employed, multiplied by twelve.
(b) The purchase price of a share of Common Stock purchased
with payroll deductions made during each Offering (the "Option Exercise
Price") shall be the lower of:
(i) 85% of the last sale price of the Common Stock on the
Nasdaq Stock Market (or on such other national securities
exchange on which the Common Stock is then traded) as reported in
The Wall Street Journal, on the applicable Offering Commencement
Date (or on the next regular business date on which shares of
Common Stock shall be traded if no shares of Common Stock shall
have been traded on such Offering Commencement Date); or
(ii) 85% of the last sale price of Common Stock on the
Nasdaq Stock Market (or on such other national securities
exchange on which the Common Stock is then traded) as reported in
The Wall Street Journal, on the applicable Offering Termination
Date (or on the next regular business date on which shares of
Common Stock shall be traded if no shares of Common Stock shall
have been traded on such Offering Termination Date).
8. Exercise of Options. With respect to each Offering during
the term of the Plan:
(a) Unless a participant gives written notice of withdrawal
to the Company as provided in Paragraphs 8(b) and 10, his or her
Option will be deemed to have been exercised automatically on the
Offering Termination Date applicable to such Offering, for the
purchase of the number of full shares of Common Stock which the
accumulated payroll deductions (without interest) in his or her
account maintained by the Company under the Plan at that time
will purchase at the applicable Option Exercise Price (but not in
excess of the number of shares for which Options have been
granted to the Employee pursuant to
<PAGE>
Paragraph 7(a)), and any excess in his or her account at that
time will be returned to him or her, with interest as determined
by the Committee prior to each Offering Commencement Date, based
on the assumption that such excess comprises funds most recently
deducted from the participant's pay; provided that any excess
returned on account of fractional shares will not be credited
with any interest.
(b) By written notice to the Director of Treasury Operations
of the Company at any time prior to the Offering Termination Date
applicable to any such Offering, a participant may elect to
withdraw all, but not less than all, of the accumulated payroll
deductions in his or her account at such time, with interest as
determined by the Committee prior to each Offering Commencement
Date.
(c) Fractional shares will not be issued under the Plan and
any accumulated payroll deductions which would have been used to
purchase fractional shares shall be returned to an employee
without interest promptly following the termination of an
Offering.
9. Delivery. As promptly as practicable after the Offering
Termination Date of each Offering, the Company will deliver to each
participant, as appropriate, the certificate or certificates representing
the shares of Common Stock purchased upon the exercise of such
participant's Option.
10. Withdrawal. (a) As indicated in Paragraph 8(b), a
participant may withdraw payroll deductions credited to his or her account
with the Company under any Offering at any time prior to the applicable
Offering Termination Date by giving written notice of withdrawal to the
Director of Treasury Operations. All of the participant's payroll
deductions credited to his or her account will be paid to the participant
promptly after receipt of such notice of withdrawal and no further payroll
deductions will be made from his or her pay during such Offering. The
Company may, at its option, treat any attempt by an employee to borrow on
the security of accumulated payroll deductions as an election, under
Paragraph 8(b), to withdraw such deductions.
(b) A participant's withdrawal from any Offering will not
have any effect upon his or her eligibility to participate in any
succeeding Offering or in any similar Plan which may hereafter be adopted
by the Company.
(c) Upon termination of the participant's employment for any
reason, including retirement but excluding death or disability, while in
the employ of the Company, the payroll deductions credited to his or her
account will be returned to the participant, with interest as determined by
the Committee prior to each Offering Commencement Date, or, in the case of
his or her death subsequent to the termination of employment, to the person
or persons entitled thereto under Paragraph 14.
(d) Upon termination of the participant's employment because
of disability or death, the participant or his or her beneficiary (as
defined in Paragraph 14) shall have the right to elect, by written notice
given to the Company's Director of
<PAGE>
Treasury Operations prior to the expiration of the period of 30 days
commencing with the date of the disability or death of the participant,
either
(i) to withdraw all of the payroll deductions credited to
the participant's account under the Plan; or
(ii) to exercise the participant's Option on the Offering
Termination Date next following the date of the participant's
disability or death for the purchase of the number of full shares
of Common Stock which the accumulated payroll deductions in the
participant's account at the date of the participant's disability
or death will purchase at the applicable Option Exercise Price,
and any excess in such account will be returned to the
participant or said beneficiary.
If no such written notice of election is received by the
Director of Treasury Operations, the participant or beneficiary shall
automatically be deemed to have elected to withdraw the payroll deductions
credited to the participant's account at the date of the participant's
disability or death and the same will be paid promptly to the participant
or said beneficiary with interest as determined by the Committee prior to
each Offering Commencement Date.
11. Interest. No interest will be paid or allowed on any
money paid into the Plan or credited to the account of any participant
employee except under withdrawal as provided under Paragraphs 8(b) and 10
or upon the return of payroll deductions as provided under Paragraphs 8(a)
and 12(a). In the event of the return of excess payroll deductions under
Paragraphs 8(a) and 12(a), interest thereon, if any, shall be computed
assuming that such excess comprises funds most recently deducted from the
participant's pay.
12. Stock. (a) The maximum number of shares of Common Stock
which shall be made available for sale under the Plan shall be 250,000
shares, subject to adjustment upon changes in capitalization of the Company
as provided in Paragraph 17. If the total number of shares for which
Options are exercised in accordance with Paragraph 8 exceeds 250,000, the
Company shall make a pro rata allocation of the shares available for
delivery and distribution in as nearly a uniform manner as shall be
practicable and as it shall determine to be equitable, and the balance of
payroll deductions credited to the account of each participant under the
Plan shall be returned to him or her as promptly as possible, with interest
on such balance at the rate determined by the Committee prior to each
Offering Commencement Date, based on the assumption that such excess
comprises funds most recently deducted from the participant's pay.
(b) The participant will have no interest in Common Stock
covered by his or her Option until such Option has been exercised.
(c) Common Stock to be delivered to a participant under the
Plan will be issued in the name of the participant, or, if the participant
so directs, by written notice to the Company prior to the Offering
Termination Date applicable thereto, in the names of the participant and
one such other person may be designated by the participant, as joint
tenants with rights of survivorship, to the extent permitted by applicable
law.
13. Administration. The Plan shall be administered by the
committee appointed by the Board of Directors of the Company to administer
the Plan (the
<PAGE>
committee so designated by the Board of Directors shall hereinafter be
referred to as the "Committee"). The officer of the Company charged with
day-to-day administration of the Plan shall, for matters involving the
Plan, be an ex-officio member of the Committee. The interpretation and
construction of any provision of the Plan and the adoption of rules and
regulations for administering the Plan shall be made by the Committee,
subject, however, at all times to the final approval of the Board of
Directors of the Company. Such rules may include, without limitation,
restrictions on the frequency of changes in withholding rates.
Determinations made by the Committee and approved by the Board of Directors
of the Company with respect to any matter or provision contained in the
Plan shall be final, conclusive and binding upon the Company and upon all
participants, their heirs or legal representatives. Any rule or regulation
adopted by the Committee shall remain in full force and effect unless and
until altered, amended or repealed by the Committee or the Board of
Directors of the Company.
14. Designation of Beneficiary. A participant may file a
written designation of a beneficiary who is to receive any shares of Common
Stock and/or cash in the event of the death of the participant prior to the
delivery of such shares or cash to the participant. Such designation of
beneficiary may be changed by the participant at any time by written notice
to the Company's payroll department. Within 30 days after the participant's
death, the beneficiary may, as provided in Paragraph 10(d), elect to
exercise the participant's Option when it becomes exercisable on the
Offering Termination Date of the then current Offering. Upon the death of a
participant and upon receipt by the Company of proof of identity and
existence at the participant's death (of a beneficiary validly designated
by the participant under the Plan), and upon and notice of election of the
validly designated beneficiary to exercise the participant's Option, the
Company shall deliver such stock and/or cash to such beneficiary. In the
event of the death of a participant and in the absence of a beneficiary
validly designated under the Plan who is living at the time of such
participant's death, the Company shall deliver such stock and/or cash to
the executor or administrator of the estate of the participant, or if no
such executor or administrator has been appointed (to the knowledge of the
Company) the Company, in its discretion, may deliver such stock and/or cash
to the spouse or to any one or more dependents of the participant as the
Company may determine. No beneficiary shall prior to the death of the
participant by whom he or she has been designated acquire any interest in
the stock or cash credited to the participant's account maintained by the
Company under the Plan.
15. Transferability. Neither payroll deductions credited to
a participant's account nor any rights with regard to the exercise of an
Option or to receive stock under the Plan may be assigned, transferred,
pledged or otherwise disposed of in any way by the participant otherwise
than by will or the laws of descent and distribution. Any such attempted
assignment, transfer, pledge or other disposition shall be without effect,
except that the Company may treat such act as an election to withdraw funds
in accordance with Paragraph 8(b).
16. Use of Funds. All payroll deductions received or held by
the Company under this Plan may be used by the Company for any corporate
purpose and the Company shall not be obligated to segregate such payroll
deductions.
17. Effects of Changes of Common Stock. In the event of any
changes of outstanding shares of the Common Stock by reason of stock
dividends, subdivisions, combinations and exchanges of shares,
recapitalizations, mergers in which the Company
<PAGE>
is the surviving corporation, consolidations, and the like, the aggregate
number of and class of shares available under the Plan and Option Exercise
Price per share shall be appropriately adjusted by the Board of Directors
of the Company, whose determination shall be conclusive. Any such
adjustments may provide for the elimination of any fractional shares which
would otherwise become subject to any Options.
18. Amendment or Termination. (a) The Board of Directors of
the Company may at any time, and from time to time, modify, terminate or
amend the Plan in any respect, except that if at any time the approval of
the stockholders of the Company is required as to such modification or
amendment under (i) Section 423 of the Code, or (ii) under Rule 16b-3 of
the Securities Exchange Act of 1934, as amended, or any successor
provisions ("Rule 16b-3"), or (iii) under any applicable listing
requirements, the Board of Directors may not effect such modification or
amendment without such approval.
(b) The termination or any modification or amendment of the
Plan shall not, without the consent of a participant, affect his or her
rights under an Option previously granted to him or her. With the consent
of the participant affected, the Board of Directors may amend outstanding
Options in a manner not inconsistent with the Plan. The Board of Directors
shall have the right to amend or modify the terms and provisions of the
Plan and of any Options previously granted under the Plan to the extent
necessary to ensure the continued qualification of the Plan under Section
423 of the Code and Rule 16b-3.
19. Notices. All notices or other communications by a
participant to the Company under or in connection with the Plan shall be
deemed to have been duly given when received by the Company's Director of
Treasury Operations.
20. Merger or Consolidation. If the Company shall at any
time merge into or consolidate with another corporation and the Company is
the surviving entity, the holder of each Option then outstanding will
thereafter be entitled to receive at the next Offering Termination Date
upon the automatic exercise of such Option under Paragraph 8(a) (unless
previously withdrawn pursuant to Paragraph 10) for each share as to which
such Option shall be exercised the securities or property which a holder of
one share of the Common Stock was entitled to upon and at the time of such
merger or consolidation, and the Board of Directors of the Company shall
take such steps in connection with such merger or consolidation as the
Board of Directors shall deem necessary to assure that the provisions of
Paragraph 17 shall thereafter be applicable, as nearly as reasonably
practicable, to such securities or property. In the event of a merger or
consolidation in which the Company is not the surviving entity, or of a
sale of all or substantially all of the assets of the Company, the Plan
shall terminate, and all payroll deductions credited to participants'
accounts shall be returned to them, with interest as determined by the
Committee prior to each Offering Commencement Date; provided, however, that
the Board of Directors may, in the event of such merger, consolidation or
sale, accelerate the Offering Termination Date of the Offering then in
effect and permit participants to purchase shares under the Plan at such
accelerated Offering Termination Date.
21. Approval of Stockholders. The Plan has been adopted by
the Board of Directors of the Company, but all grants of Options shall be
conditional upon the
<PAGE>
ratification and approval of the Plan by the stockholders of the Company
within twelve months after the adoption of the Plan by the Board of
Directors.
22. Registration and Qualification of the Plan Under
Applicable Securities Laws. Notwithstanding anything to the contrary
herein, no Option shall be granted under the Plan until such time as the
Company has qualified or registered the shares which are subject to the
Options under all applicable state and federal securities laws to the
extent required by such laws. In the event the shares shall not have been
so qualified and registered prior to the date an Offering is scheduled to
commence, the Offering Commencement Date shall be the date upon which the
registration of the shares and other qualification shall have become
effective.
Adopted by the Board of Directors on November 21, 1997
<PAGE>
EXHIBIT 5.1
William F. Sorin
823 Park Avenue
New York, NY 10021
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549-1004
Re: Comverse Technology, Inc.
Gentlemen:
I have acted as legal counsel to Comverse Technology, Inc., a New York
corporation (the "Company"), in connection with the registration, pursuant
to a Registration Statement on Form S-8 (the "Registration Statement")
under the Securities Act of 1933, as amended, of an aggregate of 5,550,214
shares of Common Stock of the Company, par value $0.01 per share ("Common
Stock"), issuable upon the exercise of options ("Options") which have been
or may be granted under the 1989 Stock Option Plan, 1992 Directors' Stock
Option Plan, 1994 Stock Incentive Plan, 1995 Director Stock Option Plan,
Amended and Restated 1996 Stock Incentive Plan and the Nonstatutory Stock
Option Agreement of Boston Technology, Inc. and the 1997 Stock Incentive
Compensation Plan and 1997 Employee Stock Purchase Plan of the Company
(collectively, the "Plans").
I have examined originals, or copies certified to my satisfaction, of the
Certificate of Incorporation and By-Laws of the Company, the minutes and
other records of the proceedings of the Board of Directors and of the
Stockholders of the Company, the Plans and such other documents, corporate
and public records, agreements, and certificates of officers of the Company
and of public and other officials, and I have considered such questions of
law, as I have deemed necessary as a basis for the opinions hereinafter
expressed. In such examination I have assumed the genuineness of all
signatures and the authenticity of all documents submitted to me as
originals and the conformity to original documents of all documents
submitted to me as certified or photostatic copies.
Based on and subject to the foregoing, I hereby advise you that, in my
opinion, the issuance of shares of Common Stock, upon exercise of the
Options in accordance with the provisions and subject to the conditions set
forth in the Plans and in the agreements executed thereunder governing the
issuance and exercise of the Options, has been duly authorized and, when
the consideration for such shares has been received by the Company and such
shares have been issued in accordance with and subject to such terms and
conditions, such shares of Common Stock will be legally issued, fully paid
and nonassessable.
I hereby consent to the filing of this opinion with the Securities and
Exchange Commission in connection with the Registration Statement.
Very truly yours,
/s/ William F. Sorin
<PAGE>
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of Comverse Technology, Inc. on Form S-8 of our report dated February 5,
1997 appearing in the Annual Report on Form 10-K of Comverse Technology,
Inc. for the year ended December 31, 1996.
/s/ Deloitte & Touche L.L.P
New York, New York
January 12, 1998
