As filed with the Securities and Exchange Commission on August __, 1999
Registration Statement No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------------------
Comverse Technology, Inc.
(Exact name of Registrant as specified in its charter)
New York 13-3238402
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
170 Crossways Park Drive
Woodbury, NY 11797
(Telephone: 516-677-7200)
(Address, including zip code, and telephone number, including
area code, of Registrant's principal executive offices)
Second Amended and Restated 1996 Founders Stock Option Plan
Second Amended and Restated 1996 Stock Option Plan
of
InTouch Systems, Inc.
(Full Title of Plan)
---------------
Kobi Alexander
Chairman of The Board and Chief Executive Officer
Comverse Technology, Inc.
170 Crossways Park Drive
Woodbury, NY 11797
516-677-7200
(Name and address, including zip code, and telephone number,
including area code, of Agent for Service)
---------------
Copies to:
William F. Sorin, Esq. Barbara L. Becker, Esq.
823 Park Avenue Chadbourne & Parke LLP
New York, New York 10021 30 Rockefeller Plaza
(Telephone: 212-249-0743) New York, New York 10112
(Telephone: 212-408-5100)
---------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
--------------------------- ---------------------- ----------------------- ---------------------- =================
Title of each class of Amount Proposed maximum Proposed maximum Amount of
securities to be to be offering price aggregate registration
registered registered(1) per share (2) offering price(2) fee
<S> <C> <C> <C> <C>
=========================== ====================== ======================= ====================== =================
Common Stock, par value 39,561 shares $76.72 $3,035,119.92 $843.76
$0.10 per share
=========================== ====================== ======================= ====================== =================
</TABLE>
(1) Plus such indeterminate number of shares of Common Stock of the Registrant
as may be issued to prevent dilution resulting from stock dividends, stock
splits or similar transactions in accordance with Rule 416 under the
Securities Act of 1933.
(2) Estimated solely for the purpose of calculating the registration fee, based
on the average high and low sale prices of the Registrants' Common Shares
as reported by the Nasdaq National Market on August ___, 1999, pursuant to
Rule 457(h)(1) promulgated under the Securities Act of 1933.
================================================================================
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information required by Part I of Form S-8
will be sent or given to plan participants as specified by Rule 428(b)(1) of the
Securities Act of 1933, as amended (the "Securities Act"). Such documents are
not required to be and are not filed with the Securities and Exchange Commission
(the "Commission") either as part of this Registration Statement or as
prospectuses or prospectus supplements pursuant to Rule 424. These documents and
the documents incorporated by reference in this Registration Statement pursuant
to Item 3 of Part II of this Form S-8, taken together, constitute a prospectus
that meets the requirements of Section 10(a) of the Securities Act.
I-1
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Commission by Comverse
Technology, Inc. (the "Company") (File No. 0-15502) are incorporated herein by
reference: (i) the Company's Annual Report on Form 10-K for the fiscal year
ended January 31, 1999, (ii) the Company's Quarterly Report on Form 10-Q for the
quarter ended April 30, 1999, and (iii) the description of the Company's Common
Stock contained in the Company's Registration Statement on Form 8-A filed with
the Commission, pursuant to Section 12 of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), on March 17, 1987, including any amendment or
report filed for the purpose of updating such description.
All documents subsequently filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment to this Registration Statement which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Counsel for the Company, William F. Sorin, attorney at law, 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 Second
Amended and Restated 1996 Founders Stock Option Plan and the Second Amended and
Restated 1996 Stock Option Plan of InTouch Systems, Inc., be legally and validly
issued, fully-paid and nonassessable. Mr. Sorin is an officer and director of
the Company and the beneficial owner of 6,562 shares of Common Stock issuable
upon exercise of stock options granted by the Company.
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 (the
"Business Corporation Law"), 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
II-1
<PAGE>
adjudicated, or that he personally gained in fact a financial profit or other
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. The Company maintains insurance policies
insuring each of its directors and officers against certain civil liabilities,
including liabilities under the Securities Act.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit No. Description of Exhibit
- ---------- ----------------------
4.1 Excerpts from certificate of incorporation, as amended.
(Incorporated by reference to Exhibits filed with the
Registrant's Annual Report on Form 10-K under the Securities
Exchange Act of 1934 for the year ended December 31, 1994.)
4.2 Excerpts from by-laws, as amended. (Incorporated by
reference to Exhibits filed with the Registrant's Annual Report
on Form 10-K under the Securities Exchange Act of 1934 for the
year ended December 31, 1992.)
4.3 Specimen stock certificate. (Incorporated by reference to
Exhibits filed with the Registrant's Annual Report on Form 10-K
under the Securities Exchange Act of 1934 for the year ended
December 31, 1992.)
4.4 Second Amended and Restated 1996 Founders Stock Option Plan
of InTouch Systems, Inc.
4.5 Second Amended and Restated 1996 Stock Option Plan of
InTouch Systems, Inc.
5 Opinion of William F. Sorin, Esq.
23.1 Consent of William F. Sorin, Esq. (included in his opinion
which appears as Exhibit 5 to this Registration Statement).
23.2 Consent of Deloitte & Touche LLP.
23.3 Consent of PricewaterhouseCoopers LLP.
24 Power of Attorney (included as part of the signature page to
this Registration Statement and incorporated herein by
reference).
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;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of this 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 this
Registration Statement; notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected
in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the
II-2
<PAGE>
changes in volume and price represent no more than 20 percent
change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in this
Registration Statement;
(iii) to include any material information with respect
to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such
information in this Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed
to be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in this Registration Statement
shall be deemed to be a new Registration Statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act 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 Securities
Act and will be governed by the final adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of New York, State of New York, on this 19th day of
August, 1999.
COMVERSE TECHNOLOGY, INC.
By:
/s/ Kobi Alexander
------------------------------------
Kobi Alexander
President, Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints each of Kobi Alexander, William F. Sorin
and David Kreinberg, or any of them, each acting alone, his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for such person and in his name, place and stead, in any and all capacities, in
connection with the Registrant's Registration Statement on Form S-8 under the
Securities Act of 1933, including to sign the Registration Statement and any and
all amendments to this Registration Statements, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission and any applicable securities exchange or
securities self-regulatory body, granting unto said attorneys-in-fact and
agents, each acting alone, 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 might or could do in
person, hereby ratifying and confirming that said attorneys-in-fact and agents,
or his substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
- --------- ----- ----
/s/ Kobi Alexander President, Chairman of the Board August 18, 1999
and Chief Executive Officer
- -------------------------
Kobi Alexander
/s/ David Kreinberg Chief Financial Officer (principal August 18, 1999
financial and accounting officer)
- -------------------------
David Kreinberg
II-4
<PAGE>
SIGNATURE TITLE DATE
- --------- ----- ----
/s/ Carmel Vernia Director August 18, 1999
- -------------------------
Carmel Vernia
/s/ Francis E. Girard Director August 17, 1999
- -------------------------
Francis E. Girard
/s/ Zvi Alexander Director August 17, 1999
- -------------------------
Zvi Alexander
/s/ Itsik Danziger Director August 18, 1999
- -------------------------
Itsik Danziger
/s/ Sam Oolie Director August 18, 1999
- -------------------------
Sam Oolie
/s/ John H. Friedman Director August 18, 1999
- -------------------------
John H. Friedman
/s/ William F. Sorin Secretary and Director August 18, 1999
- -------------------------
William F. Sorin
/s/ Shaula A. Yemini Director August 17, 1999
- -------------------------
Shaula A. Yemini
II-5
<PAGE>
EXHIBIT INDEX
Exhibit No. Description of Exhibit
- ---------- ----------------------
4.1 Excerpts from certificate of incorporation, as amended.
(Incorporated by reference to Exhibits filed with the
Registrant's Annual Report on Form 10-K under the Securities
Exchange Act of 1934 for the year ended December 31, 1994.)
4.2 Excerpts from by-laws, as amended. (Incorporated by
reference to Exhibits filed with the Registrant's Annual Report
on Form 10-K under the Securities Exchange Act of 1934 for the
year ended December 31, 1992.)
4.3 Specimen stock certificate. (Incorporated by reference to
Exhibits filed with the Registrant's Annual Report on Form 10-K
under the Securities Exchange Act of 1934 for the year ended
December 31, 1992.)
4.4 Second Amended and Restated 1996 Founders Stock Option Plan
of InTouch Systems, Inc.
4.5 Second Amended and Restated 1996 Stock Option Plan of
InTouch Systems, Inc.
5 Opinion of William F. Sorin, Esq.
23.1 Consent of William F. Sorin, Esq. (included in his opinion
which appears as Exhibit 5 to this Registration Statement).
23.2 Consent of Deloitte & Touche LLP.
23.3 Consent of PricewaterhouseCoopers LLP.
24 Power of Attorney (included as part of the signature page to
this Registration Statement and incorporated herein by
reference).
II-6
Exhibit 4.4
INTOUCH SYSTEMS, INC.
SECOND AMENDED AND RESTATED
1996 FOUNDERS STOCK OPTION PLAN
April 20, 1999
The purpose of this Stock Option Plan (the "Plan") is to encourage and
enable officers, directors, employees, consultants and agents of InTouch
Systems, Inc. (the "Company") who participated in the founding, formation, and
early stages of the Company to acquire a proprietary interest in the Company
through the granting of options as herein provided. By encouraging such
individuals to acquire ownership of its stock, the Company seeks to attract and
retain the services of persons of exceptional competence and to furnish an
incentive for them to increase their efforts on behalf of the Company. The
Options that may be granted hereunder include both incentive stock options
("Incentive Stock Options") as defined in Section 422 of the Internal Revenue
Code of 1986, as amended (the "Code"), and options that are not qualified under
the Code ("Non-Qualified Options"). Both forms of option will be collectively
referred to herein as the "Options."
1. Shares of Stock Subject to the Plan
The stock that may be issued and sold pursuant to Options granted under
the Plan shall not exceed, in the aggregate, 69,000 shares of the Common Stock,
$.01 par value per share, of the Company (the "Common Stock"), which may be
either (i) authorized but unissued shares or treasury shares, or (ii) shares
previously reserved for issue upon exercise of Options under the Plan, which
Options have expired or been terminated; provided, however, that the number of
shares subject to the Plan shall be adjusted as provided in Section 8.
2. Eligibility
Incentive Stock Options may be granted to persons who are employees of
the Company or a Subsidiary and eligible to receive an Incentive Stock Option
under the Code. Non-Qualified Options may be granted to officers, directors,
employees, consultants or agents of the Company or a Subsidiary, and to such
other persons as the Board may select from time to time.
<PAGE>
3. Administration
The Board of Directors of the Company (the "Board") shall determine the
persons to be granted Options ("Optionees"), the number of shares of Stock
subject to each Option, whether the Options shall be Incentive Stock Options or
Non-Qualified Options, and the exercise price, vesting requirements, if any, and
other terms of each Option, consistently with the provisions of the Plan. All
Options shall be embodied in written option agreements signed by the Optionee
and an authorized officer of the Company. The Board shall have exclusive
authority to grant Options under the Plan, make determinations under the Plan
and any Option, interpret any provision of the Plan and any Option, resolve
disputes arising under the Plan and any Option and supervise the administration
of the Plan. The Board may also amend the terms of outstanding Options, subject
to the consent of the Optionee if the amendment adversely affects any of his or
her substantive rights under the Option. The Board may appoint from its members
a committee of two or more persons who may exercise the powers of the Board in
granting Options and taking any other action under the Plan. Any of the
foregoing actions taken by the Board or said committee shall be final and
conclusive and shall be binding on the Company and each Optionee.
4. Price and Terms
(a) The purchase price of shares under each Incentive Stock Option
shall be at least equal to the fair market value per share of the Common Stock
as determined by the Board as of the date of grant of the Option. The purchase
price of shares under a Non-Qualified Option shall be whatever price is
determined by the Board in its sole discretion, but in no event, lower than 50%
of fair market value. Each Option shall be exercisable at such time or times as
the Board shall from time to time determine but, with respect to an Incentive
Stock Option, in no event after the expiration of ten years from the date such
Option is granted.
(b) Notwithstanding the foregoing, no Incentive Stock Option may
be granted to an Optionee deemed to own, directly or indirectly, more than ten
percent of the total combined voting power of all classes of stock of the
Company or any Subsidiary pursuant to the Code unless (i) the purchase price is
at least 110% of the fair market value per share of the Common Stock as of the
date of grant of the Option, and (ii) the Option expires within five years after
the date of its grant.
(c) Notwithstanding the foregoing, the aggregate fair market value
(determined as of the date of grant of the Option) of the shares of Common Stock
as to
2
<PAGE>
which any Incentive Stock Option granted under the Plan or any other option plan
of the Company shall vest or become exercisable for the first time by an
Optionee in any calendar year shall not exceed $100,000.
5. Limitations on Right to Exercise, Shareholder Rights
The Board may establish one or more events upon which an Option becomes
exercisable, or provide that an Option is exercisable in such installments
(which need not be equal) at such times as is determined by the Board. The Board
may also establish whether Options not exercised within specified periods may
accumulate and become exercisable, in whole or in part, on any later date(s),
and it may provide for the acceleration of the vesting or exercise dates of
Options, or if permitted by the Option terms, acceleration of the expiration
dates of Options in certain events. Options may not be exercised to purchase
fractional shares unless the Board otherwise provides. The delivery of
certificates representing shares under any Option will be contingent upon
receipt by the Company from the Optionee (or a substitute purchaser permitted by
the terms of the Option) of the full purchase price for such shares and the
fulfillment of any other requirements specified in the Option or applicable
provisions of law. No Optionee or other person entitled to exercise an Option
shall be, or shall be deemed to be, a holder of any shares of Common Stock
subject to the Option for any purpose unless and until certificates for such
shares are issued to such Optionee under the terms of the Plan and the Option.
6. Tax Treatment of Option
Incentive Stock Options granted under the Plan are intended to be
treated as incentive stock options under the Code. Incentive Stock Options which
fail to qualify as incentive stock options under the Code for any reason, in
whole or in part, shall not be invalid, but shall be treated as non-qualified
stock options under the Code to the extent that they do not qualify for
incentive stock option treatment. Non-Qualified Options granted under the Plan
are intended to be treated as non-qualified options under the Code.
7. Non-transferability of Option
Options granted under the Plan shall not be transferable by the
Optionee, other than by will or the laws of descent or distribution or pursuant
to a qualified domestic relations order as defined in the Code, and are
exercisable during the Optionee's lifetime only by the Optionee. In addition,
the Board may permit Non-Qualified Options to be transferred to, and exercised
by, members of the immediate family of the Optionee, trusts for their benefit,
partnerships of which they are the sole partners or the guardian or
3
<PAGE>
conservator of the Optionee in the event of his or her legal incapacity. The
rights and obligations of the Company under the Plan and any Options may be
assigned to a successor corporation.
8. Dilution or Other Adjustments
If the Company effects a stock split, consolidation of shares or other
recapitalization of its stock, the payment of a stock dividend, or any other
increase or reduction in the number of shares of Common Stock outstanding
without receiving compensation therefor in money, services or property, then (i)
the number, class, and price of shares of Common Stock subject to outstanding
Options hereunder shall be appropriately adjusted by the Board in such a manner
as to entitle each Optionee to receive upon exercise of an Option in full, for
the same aggregate consideration, that number and class of shares which the
Optionee would have received as a result of the event requiring the adjustment
had the Optionee exercised the Option in full immediately prior to such event;
and (ii) the number and class of shares reserved for issuance under the Plan
shall be appropriately adjusted by the Board by substituting that number and
class of shares of stock which stockholders of the Company would have been
received as a result of such event if they held all of the reserved shares
immediately prior to such event; provided, however, that outstanding Options and
Options to be issued under the Plan shall not be issued or exercisable for
fractional shares, and the Board may determine in its discretion to adjust
outstanding Options or shares reserved under the Plan to the nearest whole
number of shares, or it may require payment of cash to an Optionee who exercises
an Option for a fractional share in an amount reflecting the fair value of the
fractional share as determined by the Board.
9. Effect of Certain Transactions.
(a) On the business day immediately preceding the consummation of
a Change of Control (as defined in subsection 9(b) below), the vesting and
exercisability of the unvested portion of all options to purchase Common Stock
issued and outstanding under the Plan shall, without any further action by any
optionee or by the Company and subject to the consummation of the Change of
Control event, automatically accelerate with respect to that number of shares of
Common Stock which would have vested and become exercisable under the terms of
such options within one year following the consummation of such event; provided,
however, that the Board may, at the time of any option grant hereunder, provide
that the vesting and exercisability of a specific option award shall accelerate
with respect to a greater or lesser portion of such unvested option in the event
of a Change of Control.
4
<PAGE>
(b) For the purposes of this Plan, a "Change of Control" shall be
deemed to have occurred if (i) the Company is merged into or consolidated with
another corporation and the Company is not the surviving corporation, (ii) one
or more corporations are merged into the Company which continues as the
surviving corporation and the stockholders of the Company immediately prior to
the transaction own less than a majority of its outstanding Common Stock
immediately after the transaction, or shares of Common Stock of the Company are
converted into cash, securities or property other than shares of Common Stock of
the Company, or (iii) the Company is liquidated, dissolved, or sells or
otherwise disposes of all or substantially all of its assets to another entity.
10. Tax Withholding
Each Optionee shall, no later than the date as of which the value of an
Option or of any Common Stock or other security received thereunder first
becomes includable in the gross income of such Optionee for federal income tax
purposes, pay to the Company, or make arrangements satisfactory to the Company
regarding payment of, any federal, state, or local taxes of any kind required by
law to be withheld with respect to such income. The Company shall, to the extent
permitted by law, have the right to deduct any such taxes from any payment
otherwise due to the Optionee. If the Board so determines, an Optionee may elect
to have such tax withholding obligation satisfied, in whole or in part, by (i)
authorizing the Company to withhold from shares of Common Stock to be issued
upon exercise of the Option a number of shares with an aggregate fair market
value that would satisfy the withholding amount due, or (ii) transferring to the
Company shares of Common Stock owned by the Optionee with an aggregate fair
market value that would satisfy the withholding amount due.
11. Stockholder Approval; Amendment of the Plan
This Plan shall be subject to the approval of the stockholders of the
Company within 12 months after the date hereof, and if Options are issued
pending such approval, they may not be exercised until such approval is
obtained. If such approval is not obtained, this Plan and all Options granted
hereunder shall be terminated and be null and void. The Board may amend this
Plan at any time or times, provided that any such amendment must also be
approved by the stockholders of the Company if the amendment would increase the
number of shares subject to the Plan (except as provided in Section 8) or expand
the class of employees eligible to receive Options under the Plan, or to the
extent stockholder approval is required by law or the Code. An amendment shall
be binding upon Options previously granted under the Plan unless the amendment
adversely affects the rights of an Optionee, in which event the consent of the
Optionee shall be required.
5
<PAGE>
12. Expiration and Termination of the Plan
Options may be granted under the Plan at any time, or from time to
time, prior to the tenth anniversary of the date of the Plan. The Plan may be
abandoned or terminated at any time by the Board, except with respect to any
Options then outstanding under the Plan.
13. Governing Law
This Plan and all Options granted hereunder shall be governed by
Massachusetts law except to the extent that it is preempted by federal law.
6
Exhibit 4.5
INTOUCH SYSTEMS, INC.
SECOND AMENDED AND RESTATED
1996 STOCK OPTION PLAN
April 20, 1999
The purpose of this Stock Option Plan (the "Plan") is to encourage and
enable officers, directors, employees, consultants and agents of InTouch
Systems, Inc. (the "Company") and of any subsidiary corporation of which 50% or
more of the total combined voting power of all classes of stock is directly or
indirectly owned by the Company (a "Subsidiary") to acquire a proprietary
interest in the Company through the granting of options as herein provided. By
encouraging such individuals to acquire ownership of its stock, the Company
seeks to attract and retain the services of persons of exceptional competence
and to furnish an incentive for them to increase their efforts on behalf of the
Company. The Options that may be granted hereunder include both incentive stock
options ("Incentive Stock Options") as defined in Section 422 of the Internal
Revenue Code of 1986, as amended (the "Code"), and options that are not
qualified under the Code ("Non-Qualified Options"). Both forms of option will be
collectively referred to herein as the "Options."
1. Shares of Stock Subject to the Plan
The stock that may be issued and sold pursuant to Options granted under
the Plan shall not exceed, in the aggregate, 120,000 shares of the Common Stock,
$.01 par value per share, of the Company (the "Common Stock"), which may be
either (i) authorized but unissued shares or treasury shares, or (ii) shares
previously reserved for issue upon exercise of Options under the Plan, which
Options have expired or been terminated; provided, however, that the number of
shares subject to the Plan shall be adjusted as provided in Section 8.
2. Eligibility
Incentive Stock Options may be granted to persons who are employees of
the Company or a Subsidiary and eligible to receive an Incentive Stock Option
under the Code. Non-Qualified Options may be granted to officers, directors,
employees, consultants or agents of the Company or a Subsidiary, and to such
other persons as the Board may select from time to time.
<PAGE>
3. Administration
The Board of Directors of the Company (the "Board") shall determine the
persons to be granted Options ("Optionees"), the number of shares of Stock
subject to each Option, whether the Options shall be Incentive Stock Options or
Non-Qualified Options, and the exercise price, vesting requirements, if any, and
other terms of each Option, consistently with the provisions of the Plan. All
Options shall be embodied in written option agreements signed by the Optionee
and an authorized officer of the Company. The Board shall have exclusive
authority to grant Options under the Plan, make determinations under the Plan
and any Option, interpret any provision of the Plan and any Option, resolve
disputes arising under the Plan and any Option and supervise the administration
of the Plan. The Board may also amend the terms of outstanding Options, subject
to the consent of the Optionee if the amendment adversely affects any of his or
her substantive rights under the Option. The Board may appoint from its members
a committee of two or more persons who may exercise the powers of the Board in
granting Options and taking any other action under the Plan. Any of the
foregoing actions taken by the Board or said committee shall be final and
conclusive and shall be binding on the Company and each Optionee.
4. Price and Terms
(a) The purchase price of shares under each Incentive Stock Option
shall be at least equal to the fair market value per share of the Common Stock
as determined by the Board as of the date of grant of the Option. The purchase
price of shares under a Non-Qualified Option shall be whatever price is
determined by the Board in its sole discretion, but in no event, lower than 50%
of fair market value. Each Option shall be exercisable at such time or times as
the Board shall from time to time determine but, with respect to an Incentive
Stock Option, in no event after the expiration of ten years from the date such
Option is granted.
(b) Notwithstanding the foregoing, no Incentive Stock Option may
be granted to an Optionee deemed to own, directly or indirectly, more than ten
percent of the total combined voting power of all classes of stock of the
Company or any Subsidiary pursuant to the Code unless (i) the purchase price is
at least 110% of the fair market value per share of the Common Stock as of the
date of grant of the Option, and (ii) the Option expires within five years after
the date of its grant.
(c) Notwithstanding the foregoing, the aggregate fair market value
(determined as of the date of grant of the Option) of the shares of Common Stock
as to
2
<PAGE>
which any Incentive Stock Option granted under the Plan or any other option plan
of the Company shall vest or become exercisable for the first time by an
Optionee in any calendar year shall not exceed $100,000.
5. Limitations on Right to Exercise, Shareholder Rights
The Board may establish one or more events upon which an Option becomes
exercisable, or provide that an Option is exercisable in such installments
(which need not be equal) at such times as is determined by the Board. The Board
may also establish whether Options not exercised within specified periods may
accumulate and become exercisable, in whole or in part, on any later date(s),
and it may provide for the acceleration of the vesting or exercise dates of
Options, or if permitted by the Option terms, acceleration of the expiration
dates of Options in certain events. Options may not be exercised to purchase
fractional shares unless the Board otherwise provides. The delivery of
certificates representing shares under any Option will be contingent upon
receipt by the Company from the Optionee (or a substitute purchaser permitted by
the terms of the Option) of the full purchase price for such shares and the
fulfillment of any other requirements specified in the Option or applicable
provisions of law. No Optionee or other person entitled to exercise an Option
shall be, or shall be deemed to be, a holder of any shares of Common Stock
subject to the Option for any purpose unless and until certificates for such
shares are issued to such Optionee under the terms of the Plan and the Option.
6. Tax Treatment of Option
Incentive Stock Options granted under the Plan are intended to be
treated as incentive stock options under the Code. Incentive Stock Options which
fail to qualify as incentive stock options under the Code for any reason, in
whole or in part, shall not be invalid, but shall be treated as non-qualified
stock options under the Code to the extent that they do not qualify for
incentive stock option treatment. Non-Qualified Options granted under the Plan
are intended to be treated as non-qualified options under the Code.
7. Non-transferability of Option
Options granted under the Plan shall not be transferable by the
Optionee, other than by will or the laws of descent or distribution or pursuant
to a qualified domestic relations order as defined in the Code, and are
exercisable during the Optionee's lifetime only by the Optionee. In addition,
the Board may permit Non-Qualified Options to be transferred to, and exercised
by, members of the immediate family of the Optionee, trusts for their benefit,
partnerships of which they are the sole partners or the guardian or
3
<PAGE>
conservator of the Optionee in the event of his or her legal incapacity. The
rights and obligations of the Company under the Plan and any Options may be
assigned to a successor corporation.
8. Dilution or Other Adjustments
If the Company effects a stock split, consolidation of shares or other
recapitalization of its stock, the payment of a stock dividend, or any other
increase or reduction in the number of shares of Common Stock outstanding
without receiving compensation therefor in money, services or property, then (i)
the number, class, and price of shares of Common Stock subject to outstanding
Options hereunder shall be appropriately adjusted by the Board in such a manner
as to entitle each Optionee to receive upon exercise of an Option in full, for
the same aggregate consideration, that number and class of shares which the
Optionee would have received as a result of the event requiring the adjustment
had the Optionee exercised the Option in full immediately prior to such event;
and (ii) the number and class of shares reserved for issuance under the Plan
shall be appropriately adjusted by the Board by substituting that number and
class of shares of stock which stockholders of the Company would have been
received as a result of such event if they held all of the reserved shares
immediately prior to such event; provided, however, that outstanding Options and
Options to be issued under the Plan shall not be issued or exercisable for
fractional shares, and the Board may determine in its discretion to adjust
outstanding Options or shares reserved under the Plan to the nearest whole
number of shares, or it may require payment of cash to an Optionee who exercises
an Option for a fractional share in an amount reflecting the fair value of the
fractional share as determined by the Board.
9. Effect of Certain Transactions.
(a) On the business day immediately preceding the consummation of
a Change of Control (as defined in subsection 9(b) below), the vesting and
exercisability of the unvested portion of all options to purchase Common Stock
issued and outstanding under the Plan shall, without any further action by any
optionee or by the Company and subject to the consummation of the Change of
Control event, automatically accelerate with respect to that number of shares of
Common Stock which would have vested and become exercisable under the terms of
such options within one year following the consummation of such event; provided,
however, that, the Board may, at the time of any option grant hereunder, provide
that the vesting and exercisability of a specific option award shall accelerate
with respect to a greater or lesser portion of such unvested option in the event
of a Change of Control.
4
<PAGE>
(b) For the purposes of this Plan, a "Change of Control" shall be
deemed to have occurred if (i) the Company is merged into or consolidated with
another corporation and the Company is not the surviving corporation, (ii) one
or more corporations are merged into the Company which continues as the
surviving corporation and the stockholders of the Company immediately prior to
the transaction own less than a majority of its outstanding Common Stock
immediately after the transaction, or shares of Common Stock of the Company are
converted into cash, securities or property other than shares of Common Stock of
the Company, or (iii) the Company is liquidated, dissolved, or sells or
otherwise disposes of all or substantially all of its assets to another entity.
10. Tax Withholding
Each Optionee shall, no later than the date as of which the value of an
Option or of any Common Stock or other security received thereunder first
becomes includable in the gross income of such Optionee for federal income tax
purposes, pay to the Company, or make arrangements satisfactory to the Company
regarding payment of, any federal, state, or local taxes of any kind required by
law to be withheld with respect to such income. The Company shall, to the extent
permitted by law, have the right to deduct any such taxes from any payment
otherwise due to the Optionee. If the Board so determines, an Optionee may elect
to have such tax withholding obligation satisfied, in whole or in part, by (i)
authorizing the Company to withhold from shares of Common Stock to be issued
upon exercise of the Option a number of shares with an aggregate fair market
value that would satisfy the withholding amount due, or (ii) transferring to the
Company shares of Common Stock owned by the Optionee with an aggregate fair
market value that would satisfy the withholding amount due.
11. Stockholder Approval; Amendment of the Plan
This Plan shall be subject to the approval of the stockholders of the
Company within 12 months after the date hereof, and if Options are issued
pending such approval, they may not be exercised until such approval is
obtained. If such approval is not obtained, this Plan and all Options granted
hereunder shall be terminated and be null and void. The Board may amend this
Plan at any time or times, provided that any such amendment must also be
approved by the stockholders of the Company if the amendment would increase the
number of shares subject to the Plan (except as provided in Section 8) or expand
the class of employees eligible to receive Options under the Plan, or to the
extent stockholder approval is required by law or the Code. An amendment shall
be binding upon Options previously granted under the Plan unless the amendment
adversely affects the rights of an Optionee, in which event the consent of the
Optionee shall be required.
5
<PAGE>
12. Expiration and Termination of the Plan
Options may be granted under the Plan at any time, or from time to
time, prior to the tenth anniversary of the date of the Plan. The Plan may be
abandoned or terminated at any time by the Board, except with respect to any
Options then outstanding under the Plan.
13. Governing Law
This Plan and all Options granted hereunder shall be governed by
Massachusetts law except to the extent that it is preempted by federal law.
6
Exhibit 5
WILLIAM F. SORIN
ATTORNEY-AT-LAW
823 PARK AVENUE
NEW YORK, NEW YORK 10021
TELEPHONE: (212) 249-0732
FACSIMILE: (212) 249-5364
August 19, 1999
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549-1004
Re: COMVERSE TECHNOLOGY, INC.
Ladies and 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 under the Securities Act of 1933, as amended
(the "Registration Statement") of an aggregate of 39,561 shares of Common
Stock of the Company, par value $0.10 per share ("Common Stock"), issuable upon
the exercise of options ("Options") which have been granted under the Second
Amended and Restated 1996 Founders Stock Option Plan and the Second Amended and
Restated 1996 Stock Option Plan of InTouch Systems, Inc. (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
-------------------------
William F. Sorin
Exhibit 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the use in this Registration Statement of Comverse Technology,
Inc. on Form S-8 of our report dated March 8, 1999 (April 15, 1999 as to Note
12), appearing in the Annual Report on Form 10-K of Comverse Technology, Inc.
for the year ended January 31, 1999.
New York, New York
August 16, 1999
/s/ Deloitte & Touche LLP
- -------------------------
Exhibit 23.3
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 April 24, 1997 on our
audit of the consolidated financial statements of Boston Technology, Inc. as of
January 31, 1997 and for the year ended January 31, 1997, which report is
included in the Annual Report on Form 10-K of Comverse Technology, Inc. for the
year ended January 31, 1999. We also consent to the reference to our firm under
the caption "Experts."
/s/PricewaterhouseCoopers LLP
- -------------------------------
PricewaterhouseCoopers LLP
Boston, Massachusetts
August 15, 1999
