<PAGE>
As filed with the Securities and Exchange Commission on August 14, 1998
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
PLATINUM technology, inc.
(Exact name of registrant as specified in its charter)
Delaware 36-3509662
(State or other jurisdiction of (IRS Employer Identification
of incorporation or organization) Number)
1815 South Meyers Road, Oakbrook Terrace, Illinois 60181, (630) 620-5000
(Address of Principal Executive Offices including Zip Code)
PLATINUM technology, inc. Deferred Compensation Plan
(Full title of plans)
Andrew J. Filipowski
1815 South Meyers Road, Oakbrook Terrace, Illinois 60181, (630) 620-5000
(Name, address and telephone number of agent for service)
Copies to:
Matthew S. Brown, Esq.
Mark D. Wood, Esq.
Katten Muchin & Zavis
525 W. Monroe, Suite 1600
Chicago, IL 60661-3693
Fax Number: (312) 902-1061
----------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
===================================================================================================================================
Proposed maximum Proposed maximum
offering price aggregate offering Amount of
Title of securities to be registered Amount to be registered per share price registration fee
- -----------------------------------------------------------------------------------------------------------------------------------
PLATINUM technology, inc. Deferred
Compensation Plan Obligations(1)............. $40,000,000 100% $40,000,000 $11,800
===================================================================================================================================
</TABLE>
(1) The PLATINUM technology, inc. Deferred Compensation Plan obligations are
unsecured obligations of PLATINUM technology, inc. to pay deferred
compensation in the future in accordance with the PLATINUM technology, inc.
Deferred Compensation Plan.
<PAGE>
PART I
INFORMATION REQUIRED IN THE PROSPECTUS
The information called for in Part I of Form S-8 is currently included in
the prospectus for the PLATINUM technology, inc. Deferred Compensation Plan and
is not being filed with or included in this Form S-8 in accordance with the
rules and regulations of the Securities and Exchange Commission (the
"Commission").
2
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents have been filed by the Company with the Commission
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
are incorporated in this Registration Statement by reference:
1. The Company's Annual Report on Form 10-K for the year ended December
31, 1997;
2. The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1998 and June 30, 1998;
3. The Company's Current Reports on Form 8-K dated January 27, 1998,
March 3, 1998, April 16, 1998, April 21, 1998 (as amended by the
Current Report on Form 8-K/A dated May 6, 1998), May 28, 1998, July
14, 1998, and August 4, 1998;
4. The description of the Common Stock contained in the Company's
Registration Statement on Form 8-A filed March 7, 1991 pursuant to
Section 12 of the Exchange Act and all amendments thereto and reports
filed for the purpose of updating such description; and
5. The description of the preferred stock purchase rights contained in
the Company's Registration Statement on Form 8-A filed December 26,
1995 pursuant to Section 12 of the Exchange Act and all amendments
thereto and reports filed for the purpose of updating such
description.
In addition, all documents filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, subsequent to the date hereof and prior
to the filing of a post-effective amendment indicating that all securities
offered pursuant to this Registration Statement have been sold or deregistering
all such securities then remaining unsold, shall be deemed to be incorporated by
reference herein and to be 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 or is
deemed to be incorporated by reference herein modifies or supersedes such
statement.
Item 4. Description of Securities.
Under the PLATINUM technology, inc. Deferred Compensation Plan (the
"Deferred Plan"), the Company provides eligible employees the opportunity to
defer a portion of their annual salary, bonus, commissions and/or royalties.
Certain management and highly compensated employees of the Company selected by
the Company's Board of Directors, or such committee as the Board shall appoint
(the "Committee") will be eligible to participate in the Deferred Plan. The
compensation deferred by eligible employees who elect to participate in the
Deferred Plan ("Participants") is referred to herein as "Obligations." The
Company herein registers $40,000,000 of Obligations.
The compensation is deferred by each Participant, in accordance with the
Deferred Plan, pursuant to an irrevocable election made by the Participant. The
Company accounts for deferred compensation by establishing bookkeeping accounts
for each Participant ("Deferral Accounts"). Each Deferral Account shall be
credited on a daily basis with income and gains and charged with losses,
expenses and distributions equal to the amount by which the Deferral Account
would have been credited or charged had the Deferral Account been actually
invested in the Participant's investment election. Each Participant may elect
one or more of the following Measurement Funds, based on certain mutual funds
(the
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<PAGE>
"Measurement Funds") for the purpose of crediting additional amounts to his or
her Deferral Account: (1) a PLATINUM technology, inc. Stock Fund (described as a
mutual fund deemed invested entirely in the common stock, $.001 par value, or
any other equity securities of the Company designated by the Committee
("Stock"), with dividends on Stock deemed reinvested in additional Stock), (2)
the Putnam New Opportunities Fund, (3) the Putnam Voyager Fund, (4) the Putnam
Fund for Growth and Income, (5) the Putnam Asset Allocation: Growth Portfolio,
(6) the Putnam Asset Allocation: Balanced Portfolio, (7) the Putnam Asset
Allocation: Conservative Portfolio, (8) the Putnam International Growth Fund,
(9) the Putnam Income Fund, and (10) the Putnam Stable Venture Fund.
Obligations to Participants are paid in accordance with the terms of the
Deferred Plan, including, but not limited to the following methods: (1) at a
specified date no earlier than January 1 immediately following the third
anniversary of his or her initial deferral election, (2) at the sole discretion
of the Committee, upon the occurrence of an Unforeseen Financial Emergency (as
defined in the Deferred Plan), (3) at any time after his or her initial deferral
election (subject to a 10% withdrawal penalty), (4) upon retirement, (5) upon a
termination of employment, or (6) upon a determination by the Committee that a
Participant is suffering from a Disability (as defined in the Deferred Plan).
Obligations are unsecured general obligations of the Company to pay the
deferred compensation in the future in accordance with the terms of the Deferred
Plan. The Company is not required to fund or otherwise segregate assets to be
used for the payment of Obligations. Notwithstanding the foregoing, the Company
shall establish one or more trusts ("Trusts") to hold assets to be used for
payment of Obligations. However, assets of any Trusts shall remain the assets of
the Company subject to the claims of its general creditors. Obligations will
rank without preference with other unsecured and unsubordinated indebtedness of
the Company from time to time outstanding and are, therefore, subject to the
risks of the Company's insolvency. Obligations, under the terms of the Deferred
Plan, do not benefit from any affirmative or negative pledge or covenant from
the Company.
A Participant's rights to any amounts credited to his or her accounts may
not be commuted, sold, assigned, transferred, pledged, anticipated, mortgaged or
otherwise encumbered, transferred, hypothecated, alienated or conveyed in
advance of actual receipt, the amounts, if any, payable under the Deferred Plan,
or any part thereof, which are, and all rights to which are expressly declared
to be, unassignable and non-transferable. No part of the amounts payable shall,
prior to actual payment , be subject to seizure, attachment, garnishment or
sequestration for the payment of any debts, judgments, alimony or separate
maintenance owed by a Participant or any other person, be transferable by
operation of law in the event of a Participant's or any other person's
bankruptcy or insolvency or be transferable to a spouse as a result of a
property settlement or otherwise. A Participant's rights under the Deferred Plan
may only pass upon the Participant's death pursuant to the terms of the
Deferred Plan, pursuant to a beneficiary designation made by a Participant in
accordance with the terms of the Deferred Plan or pursuant to the laws of
inheritance. Obligations are not subject to early redemption in whole or in
part, except as specified in the Deferred Plan. Obligations are not convertible
into any other security of the Company. The Company reserves the right to
modify, amend or terminate the Deferred Plan; provided, however, that any such
action shall not adversely affect the amount that any Participant is entitled to
receive.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
Article Ten of the Company's Restated Certificate of Incorporation provides
that the Company shall indemnify its directors to the full extent permitted by
the Delaware General Corporation Law and
4
<PAGE>
may indemnify its officers to such extent, except that the Company shall not be
obligated to indemnify any such person (i) with respect to proceedings, claims
or actions initiated or brought voluntarily by any such person and not by way of
defense, or (ii) for any amounts paid in settlement of an action indemnified
against by the Company without the prior written consent of the Company. With
the approval of its stockholders, the Company has entered into indemnity
agreements with each of its directors and certain of its officers. These
agreements may require the Company, among other things, to indemnify such
officers and directors against certain liabilities that may arise by reason of
their status or service as directors or officers, to advance expenses to them as
they are incurred, provided that they undertake to repay the amount advanced if
it is ultimately determined by a court that they are not entitled to
indemnification, and to obtain directors' and officers' liability insurance if
available on reasonable terms.
In addition, Article Nine of the Company's Restated Certificate of
Incorporation provides that a director of the Company shall not be personally
liable to the Company or its stockholders for monetary damages for breach of his
or her fiduciary duty as a director, except for liability (i) for any breach of
the director's duty of loyalty to the Company or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the General Corporation Law
of the State of Delaware, or (iv) for any transaction from which the director
derives an improper personal benefit.
Reference is made to Section 145 of the General Corporation Law of the
State of Delaware which provides for indemnification of directors and officers
in certain circumstances.
The Company has purchased an insurance policy under which it is
entitled to be reimbursed for certain indemnity payments it is required or
permitted to make to its directors and officers.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
4.1 Conformed copy of the Restated Certificate of Incorporation of
the Company, as amended (incorporated by reference to Exhibit
3.1(d) to the Company's Registration Statement on Form S-1,
Registration No. 333-07783).
4.2 Bylaws of the Company (incorporated by reference to Exhibit 3.2
to the Company's Registration Statement on Form S-1, Registration
No. 33-39233 (the "IPO S-1")).
4.3 Specimen stock certificate representing Common Stock
(incorporated by reference to Exhibit 4.1 to the IPO S-1).
4.4 Rights Agreement dated as of December 21, 1995, between the
Company and Harris Trust and Savings Bank (incorporated by
reference to Exhibit 1 to the Company's Registration Statement on
Form 8-A, filed December 26, 1995).
4.5 PLATINUM technology, inc. Deferred Compensation Plan (the
"Deferred Plan").
4.6 Master Trust Agreement for the Deferred Plan.
5
<PAGE>
4.7 Form of Plan Agreement under the Deferred Plan.
5 Opinion of counsel as to legality of shares of the securities
being offered (including consent).
15 Acknowledgment of KPMG Peat Marwick LLP Regarding Independent
Auditors' Review Report.
23.1 Consent of KPMG Peat Marwick LLP with respect to the Company's
financial statements.
23.2 Consent of Arthur Andersen LLP with respect to Mastering, Inc.'s
financial statements.
23.3 Consent of Ernst & Young LLP with respect to Logic Works, Inc.'s
financial statements.
23.4 Consent of Katten Muchin & Zavis (included in their opinion filed
as Exhibit 5 hereto).
24 Power of Attorney (included on the signature page of this
Registration Statement).
Item 9. Undertakings.
1. The Company hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof) which,
individually, or in the aggregate, represent a fundamental change
in the information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20
percent change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
registration statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
Registration Statement or any material change to such information
in the Registration Statement;
provided, however, that paragraphs (a)(i) and (a)(ii) do not apply if
the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the Company pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference
in the Registration Statement.
(b) 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
6
<PAGE>
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) 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.
2. The Company hereby undertakes that, for the purpose of
determining any liability under the Securities Act of 1933, each filing of the
Company's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in the Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
3. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Company and affiliated companies pursuant to the provisions
described in Item 6 above, or otherwise, the Company has been informed that in
the opinion of the Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 and is therefore unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by the Company of expenses incurred or paid by a director, officer or
controlling person of the Company 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 Company 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 of 1933 and will be governed by the final adjudication of such issue.
7
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
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 Oakbrook Terrace, State of Illinois, on this 13th day
of August, 1998.
PLATINUM technology, inc.
By: /s/ Andrew J. Filipowski
---------------------------------------
Andrew J. Filipowski
President and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Andrew J. Filipowski, Michael P. Cullinane, Larry S. Freedman and Matthew S.
Brown, and each of them, his true and lawful attorneys-in-fact and agents, with
full power of substitution, to sign on his behalf, individually and in each
capacity stated below, all amendments and post-effective amendments to this
Registration Statement on Form S-8 and to file the same, with all exhibits
thereto and any other documents in connection therewith, with the Securities and
Exchange Commission under the Securities Act of 1933, 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 and to all intents and purposes as each might or could do in
person, hereby ratifying and confirming each act that said attorneys-in-fact and
agents may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on this 13th day of August, 1998.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
President, Chief Executive Officer (principal
/s/ Andrew J. Filipowski executive officer) and Chairman of the Board of Directors
- -----------------------------------
Andrew J. Filipowski
Executive Vice President, Chief Financial
/s/ Michael P. Cullinane Officer (principal financial and accounting officer),
- ----------------------------------- Treasurer and a Director
Michael P. Cullinane
Director
- -----------------------------------
Paul L. Humenansky
Director
- -----------------------------------
James E. Cowie
/s/ Steven D. Devick Director
- -----------------------------------
Steven D. Devick
Director
- -----------------------------------
Arthur P. Frigo
/s/ Gian Fulgoni Director
- -----------------------------------
Gian Fulgoni
</TABLE>
8
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<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibit
- ------- ----------------------
<C> <S>
4.5 PLATINUM technology, inc. Deferred Compensation Plan (the "Deferred Plan").
4.6 Master Trust Agreement for the Deferred Plan.
4.7 Form of Plan Agreement under the Deferred Plan.
5 Opinion of counsel as to legality of securities being offered (including
consent).
15 Acknowledgement of Certified Public Accountants Regarding Independent Auditors' Review
Report.
23.1 Consent of KPMG Peat Marwick LLP with respect to the Company's financial statements.
23.2 Consent of Arthur Andersen LLP with respect to Mastering, Inc.'s financial statements.
23.3 Consent of Ernst & Young LLP with respect to Logic Works, Inc.'s financial statements.
23.4 Consent of Katten Muchin & Zavis (included in their opinion filed as Exhibit 5 hereto).
24 Power of Attorney (included on the signature page of this Registration Statement).
</TABLE>
9
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EXHIBIT 4.5
PLATINUM technology, inc.
Deferred Compensation Plan
- --------------------------------------------------------------------------------
Effective August 17, 1998
<PAGE>
<TABLE>
<CAPTION>
PLATINUM technology, inc.
Deferred Compensation Plan
- ---------------------------------------------------------------------------------------------------
TABLE OF CONTENTS
Page
----
<C> <S> <C>
Purpose..................................................................................................... 1
ARTICLE 1 Definitions.................................................................................... 1
ARTICLE 2 Selection, Enrollment, Eligibility............................................................. 9
2.1 Selection by Committee......................................................................... 9
2.2 Enrollment Requirements........................................................................ 9
2.3 Eligibility; Commencement of Participation..................................................... 9
2.4 Termination of Participation and/or Deferrals.................................................. 9
ARTICLE 3 Deferral Commitments/Company Matching/Crediting/Taxes.......................................... 10
3.1 Minimum Deferrals.............................................................................. 10
3.2 Maximum Deferral............................................................................... 11
3.3 Election to Defer; Effect of Election Form..................................................... 12
3.4 Withholding of Annual Deferral Amounts......................................................... 12
3.5 Annual Company Contribution Amount............................................................. 12
3.6 Annual Company Matching Amount................................................................. 13
3.7 Stock Option Amount............................................................................ 13
3.8 Investment of Trust Assets..................................................................... 13
3.9 Sources of Stock............................................................................... 13
3.10 Vesting........................................................................................ 13
3.11 Crediting/Debiting of Account Balances......................................................... 14
3.12 FICA and Other Taxes........................................................................... 17
3.13 Distributions.................................................................................. 17
ARTICLE 4 Short-Term Payout; Unforeseeable Financial Emergencies; Withdrawal Election; 401(k) Roll-Over.. 18
4.1 Short-Term Payout.............................................................................. 18
4.2 Other Benefits Take Precedence Over Short-Term................................................. 18
4.3 Withdrawal Payout/Suspensions for Unforeseeable Financial Emergencies.......................... 18
4.4 Withdrawal Election............................................................................ 19
ARTICLE 5 Retirement Benefit............................................................................. 19
5.1 Retirement Benefit............................................................................. 19
5.2 Payment of Retirement Benefit.................................................................. 19
5.3 Death Prior to Completion of Retirement Benefit................................................ 20
</TABLE>
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PLATINUM technology, inc.
Deferred Compensation Plan
- -----------------------------------------------------------------------
<TABLE>
<CAPTION>
<S> <C> <C>
ARTICLE 6 Pre-Retirement Survivor Benefit ............................. 20
6.1 Pre-Retirement Survivor Benefit ............................. 20
ARTICLE 7 Termination Benefit ......................................... 20
7.1 Termination Benefit ......................................... 20
7.2 Payment of Termination Benefit .............................. 20
ARTICLE 8 Disability Waiver and Benefit ............................... 21
8.1 Disability Waiver ........................................... 21
8.2 Continued Eligibility; Disability Benefit ................... 21
ARTICLE 9 Beneficiary Designation ..................................... 22
9.1 Beneficiary ................................................. 22
9.2 Beneficiary Designation; Change; Spousal Consent ............ 22
9.3 Acknowledgement ............................................. 22
9.4 No Beneficiary Designation .................................. 22
9.5 Doubt as to Beneficiary ..................................... 22
9.6 Discharge of Obligations .................................... 22
ARTICLE 10 Leave of Absence ............................................ 23
10.1 Paid Leave of Absence ....................................... 23
10.2 Unpaid Leave of Absence ..................................... 23
ARTICLE 11 Termination, Amendment or Modification ...................... 23
11.1 Termination ................................................. 23
11.2 Amendment ................................................... 24
11.3 Plan Agreement .............................................. 24
11.4 Effect of Payment ........................................... 24
ARTICLE 12 Administration .............................................. 24
12.1 Committee Duties ............................................ 24
12.2 Administration Upon Change In Control ....................... 25
12.3 Agents ...................................................... 25
12.4 Binding Effect of Decisions ................................. 25
12.5 Indemnity of Committee ...................................... 26
12.6 Employer Information ........................................ 26
ARTICLE 13 Other Benefits and Agreements ............................... 26
</TABLE>
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PLATINUM technology, inc.
Deferred Compensation Plan
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
<S> <C> <C>
13.1 Coordination with Other Benefits............................................................... 26
ARTICLE 14 Claims Procedures.............................................................................. 26
14.1 Presentation of Claim.......................................................................... 26
14.2 Notification of Decision....................................................................... 26
14.3 Review of a Denied Claim....................................................................... 27
14.4 Decision of Review............................................................................. 27
14.5 Legal Action................................................................................... 28
ARTICLE 15 Trust.......................................................................................... 28
15.1 Establishment of the Trust..................................................................... 28
15.2 Interrelationship of the Plan and the Trust.................................................... 28
15.3 Distributions From the Trust................................................................... 28
15.4 Stock Transferred to the Trust................................................................. 28
ARTICLE 16 Miscellaneous.................................................................................. 28
16.1 Status of Plan................................................................................. 28
16.2 Unsecured General Creditor..................................................................... 29
16.3 Employer's Liability........................................................................... 29
16.4 Nonassignability............................................................................... 29
16.5 Not a Contract of Employment................................................................... 29
16.6 Furnishing Information......................................................................... 29
16.7 Terms.......................................................................................... 30
16.8 Captions....................................................................................... 30
16.9 Governing Law.................................................................................. 30
16.10 Notice......................................................................................... 30
16.11 Successors..................................................................................... 30
16.13 Validity....................................................................................... 30
16.14 Incompetent.................................................................................... 31
16.15 Court Order.................................................................................... 31
16.16 Distribution in the Event of Taxation.......................................................... 31
16.17 Insurance...................................................................................... 31
16.18 Legal Fees To Enforce Rights After Change in Control........................................... 32
</TABLE>
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PLATINUM technology, inc.
Deferred Compensation Plan
- --------------------------------------------------------------------------------
PLATINUM technology, inc.
DEFERRED COMPENSATION PLAN
Effective August 17, 1998
Purpose"
-------
The purpose of this Plan is to provide specified benefits to a select group
of management and highly compensated Employees who contribute materially to the
continued growth, development and future business success of PLATINUM
technology, inc., a Delaware corporation, and its subsidiaries, if any, that
sponsor this Plan. This Plan shall be unfunded for tax purposes and for
purposes of Title I of ERISA.
ARTICLE 1""
Definitions
-----------
For purposes of this Plan, unless otherwise clearly apparent from the
context, the following phrases or terms shall have the following indicated
meanings:
1.1 "Account Balance" shall mean, with respect to a Participant, a credit on
the records of the Employer equal to the sum of (i) the Deferral Account
balance, (ii) the Company Contribution Account balance, (iii) the Company
Matching Account balance and (iv) the Stock Option Account balance. The
Account Balance, and each other specified account balance, shall be a
bookkeeping entry only and shall be utilized solely as a device for the
measurement and determination of the amounts to be paid to a Participant,
or his or her designated Beneficiary, pursuant to this Plan.
1.2 "Bonus" shall mean any cash compensation, in addition to Annual Salary
relating to services performed during any calendar year, whether or not
paid in such calendar year or included on the Federal Income Tax Form W-2
for such calendar year, payable to a Participant as an Employee under any
Employer's bonus, and cash incentive plans, excluding stock options,
Commissions and Royalties
1.3 "Commissions" shall mean, cash compensation in addition to Annual Salary,
Bonus, and Royalties for the Participant's services related to sales
production.
1.4 "Royalties" shall mean, cash compensation made pursuant to a Royalty
agreement which requires the Participant's employment, in addition to
Annual Salary, Bonus and Commissions for the Participants services relating
to the licensing, developing, supporting and maintaining a specific
software.
1
<PAGE>
PLATINUM technology, inc.
Deferred Compensation Plan
- --------------------------------------------------------------------------------
1.5 "Company Contribution Amount" shall mean, for any one Plan Year, the amount
determined in accordance with Section 3.5.
1.6 "Company Matching Amount" for any one Plan Year shall be the amount
determined in accordance with Section 3.6.
1.7 "Annual Deferral Amount" shall mean that portion of a Participant's Annual
Salary, and Bonus that a Participant elects to have, and is deferred, in
accordance with Article 3, for any one Plan Year. In the event of a
Participant's Retirement, Disability (if deferrals cease in accordance with
Section 8.1), death or a Termination of Employment prior to the end of a
Plan Year, such year's Annual Deferral Amount shall be the actual amount
withheld prior to such event.
1.8 "Annual Installment Method" shall mean annual installments over the number
of years selected by the Participant or Committee in accordance with this
Plan, calculated as follows: The Account Balance of the Participant shall
be calculated as of the close of business on the last business day of the
year; provided, however, that for the Plan Year in which the Participant
Retires, the Account Balance of the Participant shall be calculated as of
the Retirement date. The annual installment shall be calculated by
multiplying this balance by a fraction, the numerator of which is one, and
the denominator of which is the remaining number of annual installments due
the Participant. By way of example, if the Participant elects a 10 year
Annual Installment Method, the first annual installment shall be 1/10 of
the Account Balance, calculated as described in this definition. The
following year, the annual installment shall be 1/9 of the Account Balance,
calculated as described in this definition. Each annual installment shall
be divided by four and distributed to the Participant in four equal
payments, one payment to be made each calendar quarter of the Plan Year, on
or as soon as practicable after the first business day of each calendar
quarter of the Plan Year; provided, however, that for the Plan Year in
which the Participant Retires, the annual installment shall be divided by
the sum of one plus the number of remaining full calendar quarter(s) in
such Plan Year. By way of example, if the annual installment a Plan Year
totals $100,000, $25,000 shall be paid to the Participant on or as soon as
practicable after January 1, April 1, July 1 and October 1.
1.9 "Annual Stock Option Amount" shall mean, with respect to a Participant for
any one Plan Year, the amount of Qualifying Gains deferred on Eligible
Stock Option exercise in accordance with Section 3.7 of this Plan,
calculated using the closing price of Stock as of the end of the business
day closest to the date of such Eligible Stock Option exercise
1.10 " Annual Salary" shall mean the annual cash compensation relating to
services performed during any calendar year, whether or not paid in such
calendar year or included on the Federal Income Tax Form W-2 for such
calendar year, excluding bonuses, commissions, royalties, overtime, fringe
benefits, relocation expenses, incentive payments, non-monetary
2
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PLATINUM technology, inc.
Deferred Compensation Plan
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awards, directors fees and other fees, automobile and other allowances paid
to a Participant for employment services rendered (whether or not such
allowances are included in the Employee's gross income). Annual Salary
shall be calculated before reduction for compensation voluntarily deferred
or contributed by the Participant pursuant to all qualified or non-
qualified plans of any Employer and shall be calculated to include amounts
not otherwise included in the Participant's gross income under Code
Sections 125, 402(e)(3), 402(h), or 403(b) pursuant to plans established by
any Employer; provided, however, that all such amounts will be included in
compensation only to the extent that, had there been no such plan, the
amount would have been payable in cash to the Employee.
1.11 "Beneficiary" shall mean one or more persons, trusts, estates or other
entities, designated in accordance with Article 9, that are entitled to
receive benefits under this Plan upon the death of a Participant.
1.12 "Beneficiary Designation Form" shall mean the form established from time to
time by the Committee that a Participant completes, signs and returns to
the Committee to designate one or more Beneficiaries.
1.13 "Board" shall mean the board of directors of the Company.
1.14 "Change in Control" shall mean the first to occur of any of the following
events:
(a) The acquisition by any individual, entity or group (within the meaning
of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act")) (a "Person") of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange Act) of
twenty percent (20%) or more of either (i) the then-outstanding shares
of common stock of the Company (the "Outstanding Company Common Stock")
or (ii) the combined voting power of the then-outstanding voting
securities of the Company entitled to vote generally in the election of
directors (the "Outstanding Company Voting Securities"); provided,
however, that for purposes of this Section 1.12, the following
acquisitions shall not constitute a Change of Control: (i) any
acquisition directly from the Company other than in connection with the
acquisition by the Company or its affiliates of a business, (ii) any
acquisition by the Company, (iii) any acquisition by any employee
benefit plan (or related trust) sponsored or maintained by the Company
or any corporation controlled by the Company, (iv) any acquisition by a
lender to the Company pursuant to a debt restructuring of the Company,
or (v) any acquisition by any corporation pursuant to a transaction
which complies with clauses (i), (ii) and (iii) of Subsection (c) of
this Section 1.12;
(b) Individuals who, as of the date hereof, constitute the Board (the
"Incumbent Board") cease for any reason to constitute at least a
majority of the Board;
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provided, however, that any individual becoming a director subsequent
to the date hereof whose election, or nomination for election by the
Company's shareholders, was approved by a vote of at least a majority
of the directors then comprising the Incumbent Board shall be
considered as though such individual were a member of the Incumbent
Board, but excluding, for this purpose, any such individual whose
initial assumption of office occurs as a result of an actual or
threatened election contest with respect to the election or removal of
directors or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board;
(c) Consummation of a reorganization, merger or consolidation of the
Company or any direct or indirect subsidiary of the Company or sale or
other disposition of all or substantially all of the assets of the
Company (a "Business Combination"), in each case, unless, following
such Business Combination, (i) all or substantially all of the
individuals and entities who were the beneficial owners, respectively,
of the Outstanding Company Common Stock and Outstanding Company Voting
Securities immediately prior to such Business Combination beneficially
own, directly or indirectly, more than sixty percent (60%) of,
respectively, the then-outstanding shares of common stock and the
combined voting power of the then outstanding voting securities
entitled to vote generally in the election of directors, as the case
may be, of the corporation resulting from such Business Combination
(which shall include for these purposes, without limitation, a
corporation which as a result of such transaction owns the Company or
all or substantially all of the Company's assets either directly or
through one or more subsidiaries) in substantially the same
proportions as their ownership, immediately prior to such Business
Combination of the Outstanding Company Common Stock and Outstanding
Company Voting Securities, as the case may be, (ii) no Person
(excluding any corporation resulting from such Business Combination or
any employee benefit plan (or related trust) of the Company or such
corporation resulting from such Business Combination and any Person
beneficially owning, immediately prior to such Business Combination,
directly or indirectly, 20% or more of the Outstanding Common Stock or
Outstanding Voting Securities, as the case may be) beneficially owns,
directly or indirectly, twenty percent (20%) or more of, respectively,
the then outstanding shares of common stock of the corporation
resulting from such Business Combination, or the combined voting power
of the then outstanding voting securities of such corporation entitled
to vote generally in the election of directors and (iii) at least a
majority of the members of the Board resulting from such Business
Combination were members of the Incumbent Board at the time of the
execution of the initial agreement, or of the action of the Board,
providing for such Business Combination; or
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Deferred Compensation Plan
===============================================================================
(d) Approval by the shareholders of the Company of a complete liquidation
or dissolution of the Company other than to a corporation which would
satisfy the requirements of clauses (i), (ii) and (iii) of Subsection
(c) of this Section 1.12, assuming for this purpose that such
liquidation or dissolution was a Business Combination.
1.15 "Claimant" shall have the meaning set forth in Section 14.1.
1.16 "Code" shall mean the Internal Revenue Code of 1986, as it may be amended
from time to time.
1.17 "Committee" shall mean the committee described in Article 12.
1.18 "Company" shall mean PLATINUM technology, inc., a Delaware corporation, and
any successor to all or substantially all of the Company's assets or
business.
1.19 "Company Contribution Account" shall mean (i) the sum of the Participant's
Company Contribution Amounts, plus (ii) amounts credited in accordance with
all the applicable crediting provisions of this Plan that relate to the
Participant's Company Contribution Account, less (iii) all distributions
made to the Participant or his or her Beneficiary pursuant to this Plan
that relate to the Participant's Company Contribution Account.
1.20 "Company Matching Account" shall mean (i) the sum of all of a Participant's
Company Matching Amounts, plus (ii) amounts credited in accordance with all
the applicable crediting provisions of this Plan that relate to the
Participant's Company Matching Account, less (iii) all distributions made
to the Participant or his or her Beneficiary pursuant to this Plan that
relate to the Participant's Company Matching Account.
1.21 "Deduction Limitation" shall mean the following described limitation on a
benefit that may otherwise be distributable pursuant to the provisions of
this Plan. Except as otherwise provided, this limitation shall be applied
to all distributions that are "subject to the Deduction Limitation" under
this Plan. If an Employer determines in good faith prior to a Change in
Control that there is a reasonable likelihood that any compensation paid to
a Participant for a taxable year of the Employer would not be deductible by
the Employer solely by reason of the limitation under Code Section 162(m),
then to the extent deemed necessary by the Employer to ensure that the
entire amount of any distribution to the Participant pursuant to this Plan
prior to the Change in Control is deductible, the Employer may defer all or
any portion of a distribution under this Plan. Any amounts deferred
pursuant to this limitation shall continue to be credited/debited with
additional amounts in accordance with Section 3.11 below, even if such
amount is being paid out in installments. The amounts so deferred and
amounts credited thereon shall be distributed to the Participant or his or
her Beneficiary (in the event of the Participant's death) at the earliest
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Deferred Compensation Plan
===============================================================================
possible date, as determined by the Employer in good faith, on which the
deductibility of compensation paid or payable to the Participant for the
taxable year of the Employer during which the distribution is made will not
be limited by Section 162(m), or if earlier, the effective date of a Change
in Control. Notwithstanding anything to the contrary in this Plan, the
Deduction Limitation shall not apply to any distributions made after a
Change in Control.
1.22 "Deferral Account" shall mean (i) the sum of all of a Participant's Annual
Deferral Amounts, plus (ii) amounts credited in accordance with all the
applicable crediting provisions of this Plan that relate to the
Participant's Deferral Account, less (iii) all distributions made to the
Participant or his or her Beneficiary pursuant to this Plan that relate to
his or her Deferral Account.
1.23 "Disability" shall mean a period of disability during which a Participant
qualifies for permanent disability benefits under the Participant's
Employer's long-term disability plan, or, if a Participant does not
participate in such a plan, a period of disability during which the
Participant would have qualified for permanent disability benefits under
such a plan had the Participant been a participant in such a plan, as
determined in the sole discretion of the Committee. If the Participant's
Employer does not sponsor such a plan, or discontinues to sponsor such a
plan, Disability shall be determined by the Committee in its sole
discretion.
1.24 "Disability Benefit" shall mean the benefit set forth in Article 8.
1.25 "Election Form" shall mean the form established from time to time by the
Committee that a Participant completes, signs and returns to the Committee
to make an election under the Plan.
1.26 "Eligible Stock Option" shall mean one or more non-qualified stock
option(s) selected by the Committee in its sole discretion and exercisable
under a plan or arrangement of any Employer permitting a Participant under
this Plan to defer gain with respect to such option.
1.27 "Employee" shall mean a person who is an employee of any Employer.
1.28 "Employer(s)" shall mean the Company and/or any of its subsidiaries (now in
existence or hereafter formed or acquired) that have been selected by the
Board to participate in the Plan and have adopted the Plan as a sponsor.
1.29 "ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
it may be amended from time to time.
1.30 "First Plan Year" shall mean the period beginning August 17, 1998 and
ending December 31, 1998.
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1.31 "401(k) Plan" shall be the PLATINUM technology, inc. 401(k) Savings Plan
adopted by the Company.
1.32 "Participant" shall mean any Employee (i) who is selected to participate in
the Plan, (ii) who elects to participate in the Plan, (iii) who signs a
Plan Agreement, an Election Form and a Beneficiary Designation Form, (iv)
whose signed Plan Agreement, Election Form and Beneficiary Designation Form
are accepted by the Committee, (v) who commences participation in the Plan,
and (vi) whose Plan Agreement has not terminated. A spouse or former
spouse of a Participant shall not be treated as a Participant in the Plan
or have an account balance under the Plan, even if he or she has an
interest in the Participant's benefits under the Plan as a result of
applicable law or property settlements resulting from legal separation or
divorce.
1.33 "Plan" shall mean PLATINUM technology, inc. Deferred Compensation Plan,
which shall be evidenced by this instrument and by each Plan Agreement, as
they may be amended from time to time.
1.34 "Plan Agreement" shall mean a written agreement, as may be amended from
time to time, which is entered into by and between an Employer and a
Participant. Each Plan Agreement executed by a Participant and the
Participant's Employer shall provide for the entire benefit to which such
Participant is entitled under the Plan; should there be more than one Plan
Agreement, the Plan Agreement bearing the latest date of acceptance by the
Employer shall supersede all previous Plan Agreements in their entirety and
shall govern such entitlement. The terms of any Plan Agreement may be
different for any Participant, and any Plan Agreement may provide
additional benefits not set forth in the Plan or limit the benefits
otherwise provided under the Plan; provided, however, that any such
additional benefits or benefit limitations must be agreed to by both the
Employer and the Participant.
1.35 "Plan Year" shall, except for the First Plan Year, mean a period beginning
on January 1 of each calendar year and continuing through December 31 of
such calendar year.
1.36 "Pre-Retirement Survivor Benefit" shall mean the benefit set forth in
Article 6.
1.37 "Qualifying Gain" shall mean the value accrued upon exercise of an Eligible
Stock Option (i) using a Stock-for-Stock payment method and (ii) having an
aggregate fair market value in excess of the total Stock purchase price
necessary to exercise the option. In other words, the Qualifying Gain upon
exercise of an Eligible Stock Option equals the total market value of the
shares (or share equivalent units) acquired minus the total stock purchase
price. For example, assume a Participant elects to defer the Qualifying
Gain accrued upon exercise of an Eligible Stock Option to purchase 1000
shares of Stock at an exercise price of $20 per share, when Stock has a
current fair market value of $25 per share. Using the Stock-for-Stock
payment method, the Participant would deliver 800 shares of Stock (worth
$20,000) to exercise the Eligible Stock Option and receive, in return, 800
shares of Stock
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Deferred Compensation Plan
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plus a Qualifying Gain (in this case, in the form of an unfunded and
unsecured promise to pay money or property in the future) equal to $5,000
(i.e., the current value of the remaining 200 shares of Stock).
1.38 "Retirement", "Retire(s)" or "Retired" shall mean, with respect to an
Employee, voluntary severance from employment from all Employers for any
reason other than a leave of absence, death or Disability on or after the
attainment of (a) age sixty-five (65) or (b) age fifty-five (55) with three
(3) years of service.
1.39 "Retirement Benefit" shall mean the benefit set forth in Article 5.
1.40 "Short-Term Payout" shall mean the payout set forth in Section 4.1.
1.41 "Stock" shall mean PLATINUM technology, inc. common stock, $ .001 par
value, or any other equity securities of the Company designated by the
Committee.
1.42 "Stock Option Account" shall mean the sum of (i) the Participant's Annual
Stock Option Amounts, plus (ii) amounts credited/debited in accordance with
all the applicable crediting/debiting provisions of this Plan that relate
to the Participant's Stock Option Account, less (iii) all distributions
made to the Participant or his or her Beneficiary pursuant to this Plan
that relate to the Participant's Stock Option Account.
1.43 "Stock Option Amount" shall mean, for any Eligible Stock Option, the amount
of Qualifying Gains deferred in accordance with Section 3.7 of this Plan,
calculated using the closing price of Stock as of the end of the business
day closest to the date of exercise of such Eligible Stock Option.
1.44 "Termination Benefit" shall mean the benefit set forth in Article 7.
1.45 "Termination of Employment" shall mean the severing of employment with all
Employers, voluntarily or involuntarily, for any reason other than
Retirement, Disability, death or an authorized leave of absence.
1.46 "Trust" shall mean one or more trusts established, effective as of August
17, 1998 between the Company and the trustee named therein, as amended from
time to time.
1.47 "Unforeseeable Financial Emergency" shall mean an unanticipated emergency
that is caused by an event beyond the control of the Participant that would
result in severe financial hardship to the Participant resulting from (i) a
sudden and unexpected illness or accident of the Participant or a dependent
of the Participant, (ii) a loss of the Participant's property due to
casualty, or (iii) such other extraordinary and unforeseeable circumstances
arising as a result of events beyond the control of the Participant, all as
determined in the sole discretion of the Committee.
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1.48 "Variable Account" shall mean, with respect to a Participant, a credit on
the records of the Employer equal to the sum of (i) the Deferral Account
balance, (ii) the Company Contribution Account balance, and (iii) the
Company Matching Account balance. The Variable Account, and each other
specified account balance, shall be a bookkeeping entry only and shall be
utilized solely as a device for the measurement and determination of the
amounts to be paid to a Participant, or his or her designated Beneficiary,
pursuant to this Plan.
1.49 "Years of Service" shall mean the total number of full years in which a
Participant has been employed by one or more Employers. For purposes of
this definition, a year of employment shall be a 365 day period (or 366 day
period in the case of a leap year) that, for the first year of employment,
commences on the Employee's date of hiring and that, for any subsequent
year, commences on an anniversary of that hiring date. Any partial year of
employment shall not be counted.
ARTICLE 2
Selection, Enrollment, Eligibility
----------------------------------
2.1 Selection by Committee. Participation in the Plan shall be limited to a
select group of management and highly compensated Employees of the
Employers, as determined by the Committee in its sole discretion. From that
group, the Committee shall select, in its sole discretion, Employees to
participate in the Plan.
2.2 Enrollment Requirements. As a condition to participation, each selected
Employee shall complete, execute and return to the Committee a Plan
Agreement, an Election Form and a Beneficiary Designation Form, all within
30 days after he or she is selected to participate in the Plan. In
addition, the Committee shall establish from time to time such other
enrollment requirements as it determines in its sole discretion are
necessary.
2.3 Eligibility; Commencement of Participation. Provided an Employee
selected to participate in the Plan has met all enrollment requirements set
forth in this Plan and required by the Committee, including returning all
required documents to the Committee within the specified time period, that
Employee shall commence participation in the Plan on the first day of the
month following the month in which the Employee completes all enrollment
requirements. If an Employee fails to meet all such requirements within the
period required, in accordance with Section 2.2, that Employee shall not be
eligible to participate in the Plan until the first day of the Plan Year
following the delivery to and acceptance by the Committee of the required
documents.
2.4 Termination of Participation and/or Deferrals. If the Committee
determines in good faith that a Participant no longer qualifies as a member
of a select group of management or highly compensated employees, as
membership in such group is determined in accordance
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Deferred Compensation Plan
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with Sections 201(2), 301(a)(3) and 401(a)(1) of ERISA, the Committee shall
have the right, in its sole discretion, to (i) terminate any deferral
election the Participant has made for the remainder of the Plan Year in
which the Participant's membership status changes, (ii) prevent the
Participant from making future deferral elections and/or (iii) immediately
distribute the Participant's then Account Balance as a Termination Benefit
and terminate the Participant's participation in the Plan.
ARTICLE 3
Deferral Commitments/Company Matching/Crediting/Taxes
-----------------------------------------------------
3.1 Minimum Deferrals.
-----------------
(a) Annual Salary, Bonus, Commissions, and Royalties. For each Plan Year,
a Participant may elect to defer, as his or her Annual Deferral
Amount, Annual Salary, Bonus, Commissions, and/or Royalties in the
following combined minimum amount.
<TABLE>
<CAPTION>
Deferral Minimum Amount
- ------------------------------------------------------------------
<S> <C>
Annual Salary $ 0
- ------------------------------------------------------------------
Bonus, Commissions, Royalties $ 0
- ------------------------------------------------------------------
Annual Salary plus
Bonus, Commissions, Royalties $2,500
- ------------------------------------------------------------------
</TABLE>
If an election is made for less than stated minimum amount, or if no
election is made, the amount deferred shall be zero.
(b) Short Plan Year. Notwithstanding the foregoing, if a Participant first
becomes a Participant after the first day of a Plan Year, or in the
case of the first Plan Year of the Plan itself, the minimum Annual
Salary deferral shall be an amount equal to the minimum set forth
above, multiplied by a fraction, the numerator of which is the number
of complete months remaining in the Plan Year and the denominator of
which is 12.
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Deferred Compensation Plan
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(c) Stock Option Amount. For each Eligible Stock Option, a Participant may
elect to defer, as his or her Stock Option Amount, the following
minimum percentage of Qualifying Gain with respect to exercise of the
Eligible Stock Option:
<TABLE>
<CAPTION>
Deferral Minimum Percentage
- -------------------------------------------------------------------
<S> <C>
Qualifying Gain 10%
- -------------------------------------------------------------------
</TABLE>
provided, however, that such Stock Option Amount shall be no less than
the lesser of $20,000 or 100% of such Qualifying Gain.
3.2 Maximum Deferral.
----------------
(a) Annual Salary, Bonus, Commissions and Royalties for each Plan Year, a
Participant may elect to defer, as his or her Annual Deferral Amount,
Annual Salary, Bonus, Commissions and/or Royalties up to the following
maximum percentages for each deferral elected:
<TABLE>
<CAPTION>
Deferral Maximum Amount
- -------------------------------------------------------------------
<S> <C>
Annual Salary 50%
- -------------------------------------------------------------------
Bonus, Commissions, Royalties 100%
- -------------------------------------------------------------------
</TABLE>
(b) Notwithstanding the foregoing, if a Participant first becomes a
Participant after the first day of a Plan Year, or in the case of the
first Plan Year of the Plan itself, the maximum Annual Deferral
Amount, with respect to Annual Salary, and Bonus shall be limited to
the amount of compensation not yet earned by the Participant as of the
date the Participant submits a Plan Agreement and Election Form to the
Committee for acceptance.
(c) For each Eligible Stock Option, a Participant may elect to defer, as
his or her Stock Option Amount, Qualifying Gain up to the following
maximum percentage with respect to exercise of the Eligible Stock
Option:
<TABLE>
<CAPTION>
Deferral Maximum Percentage
- -------------------------------------------------------------------
<S> <C>
Qualifying Gain 100%
- -------------------------------------------------------------------
</TABLE>
(d) Stock Option Amounts may also be limited by other terms or conditions
set forth in the stock option plan or agreement under which such
options are granted.
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Deferred Compensation Plan
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3.3 Election to Defer; Effect of Election Form.
------------------------------------------
(a) First Plan Year. In connection with a Participant's commencement of
participation in the Plan, the Participant shall make an irrevocable
deferral election for the Plan Year in which the Participant commences
participation in the Plan, along with such other elections as the
Committee deems necessary or desirable under the Plan. For these
elections to be valid, the Election Form must be completed and signed
by the Participant, timely delivered to the Committee (in accordance
with Section 2.2 above) and accepted by the Committee.
(b) Subsequent Plan Years. For each succeeding Plan Year, an irrevocable
deferral election for that Plan Year, and such other elections as the
Committee deems necessary or desirable under the Plan, shall be made
by timely delivering to the Committee, in accordance with its rules
and procedures, before the end of the Plan Year preceding the Plan
Year for which the election is made, a new Election Form. If no such
Election Form is timely delivered for a Plan Year, the Annual Deferral
Amount shall be zero for that Plan Year.
(c) Stock Option Deferral. For an election to defer gain upon an Eligible
Stock Option exercise to be valid: (i) a separate Election Form must
be completed and signed by the Participant with respect to the
Eligible Stock Option; (ii) the Election Form must be timely delivered
to the Committee and accepted by the Committee at least six (6) months
prior to the date the Participant elects to exercise the Eligible
Stock Option; (iii) the Eligible Stock Option must be exercised using
an actual or phantom Stock-for-Stock payment method; and (iv) the
Stock actually or constructively delivered by the Participant to
exercise the Eligible Stock Option must have been owned by the
Participant during the entire six (6) month period prior to its
delivery.
3.4 Withholding of Annual Deferral Amounts. For each Plan Year, the Annual
Salary portion of the Annual Deferral Amount shall be withheld from each
regularly scheduled Annual Salary payroll in equal amounts, as adjusted from
time to time for increases and decreases in Annual Salary. The Bonus portion
of the Annual Deferral Amount shall be withheld at the time the Bonus is or
otherwise would be paid to the Participant, whether or not this occurs during
the Plan Year itself.
3.5 Company Contribution Amount. For each Plan Year, an Employer, in its
sole discretion, may, but is not required to, credit any amount it desires to
any Participant's Company Contribution Account under this Plan, which amount
shall be for that Participant the Company Contribution Amount for that Plan
Year. The amount so credited to a Participant may be smaller or larger than the
amount credited to any other Participant, and the amount credited to any
Participant for a Plan Year may be zero, even though one or more other
Participants receive an Company Contribution Amount for that Plan Year. If a
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Participant is not employed by an Employer as of the last day of a Plan
Year other than by reason of his or her Retirement or death while employed,
the Company Contribution Amount for that Plan Year shall be zero.
3.6 Company Matching Amount. A Participant's Company Matching Amount for any
Plan Year shall be equal to 50% of the Participant's Annual Deferral Amount
for such Plan Year, up to an amount that does not exceed 6% of the
Participant's Annual Salary, Bonus, Commissions and Royalties deferred for
such plan year.
3.7 Stock Option Amount. Subject to any terms and conditions imposed by the
Committee, Participants may elect to defer, under the Plan, Qualifying
Gains attributable to an Eligible Stock Option exercise. Stock Option
Amounts shall be credited/debited to the Participant on the books of the
Employer at the time Stock would otherwise have been delivered to the
Participant pursuant to the Eligible Stock Option exercise, but for the
election to defer.
3.8 Investment of Trust Assets. The Trustee of the Trust shall be authorized,
upon written instructions received from the Committee or investment manager
appointed by the Committee, to invest and reinvest the assets of the Trust
in accordance with the applicable Trust Agreement.
3.9 Sources of Stock. If Stock is credited under the Plan in the Trust
pursuant to Section 3.7 in connection with an Eligible Stock Option
exercise, the shares so credited shall be deemed to have originated, and
shall be counted against the number of shares reserved, under such other
plan, program or arrangement.
3.10 Vesting.
-------
(a) A Participant shall at all times be 100% vested in his or her Deferral
Account and Stock Option Account.
(b) A Participant shall be vested in his or her Company Contribution Account in
accordance with the schedule set forth in his or her Plan Agreement, if
any, which may be different from the schedule contained in any other
Participant's Plan Agreement.
(c) A Participant shall be vested in his or her Company Matching Account as
follows: (i) with respect to all benefits under this Plan other than the
Termination Benefit, a Participant's vested Company Matching Account shall
equal 100% of such Participant's Company Matching Account; and (ii) with
respect to the Termination Benefit, a Participant's Company Matching
Account shall vest on the basis of the Participant's Years of Service at
the time the Participant experiences a Termination of Employment, in
accordance with the following schedule:
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<TABLE>
<CAPTION>
Years of Service at
Date of Termination Vested Percentage of
of Employment Company Matching Account
----------------------------------------------------------------------------------------
<S> <C>
Less than 3 years 0%
-----------------------------------------------------------------------------------------
3 years or more 100%
-----------------------------------------------------------------------------------------
</TABLE>
(d) Notwithstanding anything to the contrary contained in this Section 3.10, a
Participant's Company Contribution Account and Company Matching Account
shall immediately become 100% vested (if it is not already vested in
accordance with the above vesting schedules) in the event of the following
with respect to a Participant: Retirement; Disability; death; or a Change
in Control.
(e) Notwithstanding subsection (d), the vesting schedule for a Participant's
Company Contribution Account and Company Matching Account shall not be
accelerated to the extent that the Committee determines that such
acceleration would cause the deduction limitations of Section 280G of the
Code to become effective. In the event that all of a Participant's Company
Contribution Account and/or Company Matching Account is not vested pursuant
to such a determination, the Participant may request independent
verification of the Committee's calculations with respect to the
application of Section 280G. In such case, the Committee must provide to
the Participant within 15 business days of such a request an opinion from a
nationally recognized accounting firm selected by the Participant (the
"Accounting Firm"). The opinion shall state the Accounting Firm's opinion
that any limitation in the vested percentage hereunder is necessary to
avoid the limits of Section 280G and contain supporting calculations. The
cost of such opinion shall be paid for by the Company.
3.11 Crediting/Debiting of Account Balances. In accordance with, and subject
to, the rules and procedures that are established from time to time by the
Committee, in its sole discretion, amounts shall be credited or debited to
a Participant's Account Balance in accordance with the following rules:
(a) Election of Measurement Funds for Variable Account. A Participant, in
connection with his or her initial deferral election in accordance
with Section 3.3(a) above, shall elect, on the Election Form, one or
more Measurement Fund(s) (as described in Section 3.11(c) below) to be
used to determine the additional amounts to be credited to his or her
Variable Account for the first business day on which the Participant
commences participation in the Plan and continuing thereafter for each
subsequent business day in which the Participant participates in the
Plan, unless changed in accordance with the next sentence. Commencing
with the business day that follows the Participant's commencement of
participation in the Plan and continuing thereafter for each
subsequent business day in which the Participant
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participates in the Plan, the Participant may (but is not required to)
elect, by submitting an Election Form to the Committee that is
accepted by the Committee, to reallocate among the available
Measurement Fund(s) to be used to determine the additional amounts to
be credited to his or her Variable Account, or to change the portion
of his or her Variable Account allocated to each previously or newly
elected Measurement Fund. If an election is made in accordance with
the previous sentence, it shall apply to the next business day and
continue thereafter for each subsequent business day in which the
Participant participates in the Plan, unless changed in accordance
with the previous sentence.
(b) Proportionate Allocation. In making any election described in Section
3.11(a) above, the Participant shall specify on the Election Form, in
increments of one percentage points (1%), the percentage of his or her
Variable Account to be allocated to a Measurement Fund (as if the
Participant was making an investment in that Measurement Fund with
that portion of his or her Variable Account).
(c) Measurement Funds. The Participant may elect one or more of the
following Measurement Funds, based on certain mutual funds (the
"Measurement Funds"), for the purpose of crediting additional amounts
to his or her Variable Account:
(1) PLATINUM technology, inc. Stock Fund (described as a mutual fund
deemed invested entirely in Stock, with dividends on Stock deemed
reinvested in additional Stock);
(2) Putnam New Opportunities Fund;
(3) Putnam Voyager Fund;
(4) The Putnam Fund for Growth and Income;
(5) Putnam Asset Allocation: Growth Portfolio;
(6) Putnam Asset Allocation: Balanced;
(7) Putnam Asset Allocation: Conservative Portfolio;
(8) Putnam International Growth Fund;
(9) Putnam Income Fund; and
(10) Stable Value Fund.
As necessary, the Committee may, in its sole discretion, discontinue,
substitute or add a Measurement Fund.
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(d) Crediting or Debiting Method. The performance of each elected
Measurement Fund (either positive or negative) will be determined by
the Committee, in its reasonable discretion, based on (i) the
performance of the Measurement Funds themselves. A Participant's
Account balance shall be credited or debited on a daily basis based on
the performance of each Measurement Fund selected by the Participant
for the Variable Account (ii) the performance of the PLATINUM
technology, inc. Stock Option Account Section 3.11(e) below, as
determined by the Committee in its sole discretion, as though (iii) a
Participant's Account Balance were invested in the selected or
required Measurement Fund(s), in the percentages applicable to such
business day, as of the close of business on the business day, at the
closing price on such date; (iv) the portion of the Annual Deferral
Amount that was actually deferred as of the business day were invested
in the Measurement Fund(s) selected by the Participant, in the
percentages applicable to such business day, no later than the close
of business on the third business day after the day on which such
amounts are actually deferred from the Participant's Annual Salary,
Bonus, Commissions, or Royalties through reductions in his or her
payroll, at the closing price on such date; and (v) any distribution
made to a Participant that decreases such Participant's Account
Balance ceased being invested in the Measurement Fund(s), in the
percentages applicable to such business day, no earlier than three
business days prior to the distribution, at the closing price on such
date. The Participant's Company Matching Amount shall be credited to
his or her Company Matching Account for purposes of this Section
3.11(d) as of the close of business on the first business day in
February of the Plan Year following the Plan Year to which it relates.
The Participant's Company Contribution Amount, if any, shall be
credited to his or her Company Contribution Account on the date
selected by the Committee, in its sole and absolute discretion. The
Participant's Annual Stock Option Amount(s) shall be credited to his
or her Stock Option Account no later than the close of business on the
third business day after the day on which the Eligible Stock Option
was exercised or otherwise disposed of.
(e) Special Rule for Stock Option Account. Notwithstanding any provision
of this Plan that may be construed to the contrary, (i) the
Participant's Stock Option Account must be allocated to the PLATINUM
technology, inc. Stock Fund at all times prior to distribution from
this Plan, and (ii) the Participant's Stock Option Account must be
distributed in the form of Stock.
(f) No Actual Investment. Notwithstanding any other provision of this
Plan that may be interpreted to the contrary, the Measurement Funds
are to be used for measurement purposes only, and a Participant's
election of any such Measurement Fund, the allocation to his or her
Account Balance thereto, the calculation of additional amounts and the
crediting or debiting of such amounts to a Participant's Account
Balance shall not be considered or construed in any manner as an
actual
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investment of his or her Account Balance in any such Measurement Fund.
In the event that the Company or the Trustee (as that term is defined
in the Trust), in its own discretion, decides to invest funds in any
or all of the Measurement Funds, no Participant shall have any rights
in or to such investments themselves. Without limiting the foregoing,
a Participant's Account Balance shall at all times be a bookkeeping
entry only and shall not represent any investment made on his or her
behalf by the Company or the Trust; the Participant shall at all times
remain an unsecured creditor of the Company.
3.12 FICA and Other Taxes.
--------------------
(a) Annual Deferral Amounts. For each Plan Year in which an Annual
Deferral Amount is being withheld from a Participant, the
Participant's Employer(s) shall withhold from that portion of the
Participant's Annual Salary, Bonus, Commission and Royalties that is
not being deferred, in a manner determined by the Employer(s), the
Participant's share of FICA and other employment taxes on such Annual
Deferral Amount. If necessary, the Committee may reduce the Deferral
Account in order to comply with this Section 3.12.
(b) Company Matching Account and Company Contribution Account. When a
Participant becomes vested in a portion of his or her Company Matching
Account or Company Contribution Account, or both, the Participant's
Employer(s) shall withhold from the Participant's Annual Salary,
Bonus, Commission and Royalties that is not deferred, in a manner
determined by the Employer(s), the Participant's share of FICA and
other employment taxes on such vested portions of his or her Company
Matching Account and/or Company Contribution Account. If necessary,
the Committee may reduce the vested portion of the Participant's
Company Matching Account or Company Contribution Account, or both, as
the case may be, in order to comply with this Section 3.12.
(c) Annual Stock Option Amounts. For each Plan Year in which an Annual
Stock Option Amount is being first withheld from a Participant, the
Participant's Employer(s) shall withhold from that portion of the
Participant's Annual Salary, Bonus, Commissions and Royalties and/or
Qualifying Gains that are not being deferred, in a manner determined
by the Employer(s), the Participant's share of FICA and other
employment taxes on such Annual Stock Option Amount. If necessary,
the Committee may reduce the Stock Option Account in order to comply
with this Section 3.12.
3.13 Distributions. The Participant's Employer(s), or the trustee of the
Trust, shall withhold from any distributions made to a Participant under
this Plan all federal, state and local income, employment and other taxes
required to be withheld by the Employer(s), or the
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trustee of the Trust, in connection with such distributions, in amounts and
in a manner to be determined in the sole discretion of the Employer(s) and
the trustee of the Trust.
ARTICLE 4
Short-Term Payout; Unforeseeable Financial Emergencies;
-------------------------------------------------------
Withdrawal Election
-------------------
4.1 Short-Term Payout. In connection with each election to defer an Annual
Deferral Amount, a Participant may irrevocably elect to receive a future
"Short-Term Payout" from the Plan with respect to such Annual Deferral
Amount. Subject to the Deduction Limitation, the Short-Term Payout shall be
a lump sum payment in an amount that is equal to the Annual Deferral Amount
plus amounts credited or debited in the manner provided in Section 3.11
above on that amount, determined at the time that the Short-Term Payout
becomes payable (rather than the date of a Termination of Employment).
Subject to the Deduction Limitation and the other terms and conditions of
this Plan, each Short-Term Payout elected shall be paid out during a 60 day
period commencing immediately after the last day of any Plan Year
designated by the Participant that is at least three Plan Years after the
Plan Year in which the Annual Deferral Amount is actually deferred. By way
of example, if a three year Short-Term Payout is elected for Annual
Deferral Amounts that are deferred in the Plan Year commencing January 1,
1999, the three year Short-Term Payout would become payable during a 60 day
period commencing January 1, 2003.
4.2 Other Benefits Take Precedence Over Short-Term. Should an event occur that
triggers a benefit under Article 5, 6, 7 or 8, any Annual Deferral Amount,
plus amounts credited or debited thereon, that is subject to a Short-Term
Payout election under Section 4.1 shall not be paid in accordance with
Section 4.1 but shall be paid in accordance with the other applicable
Article.
4.3 Withdrawal Payout/Suspensions for Unforeseeable Financial Emergencies.
If the Participant experiences an Unforeseeable Financial Emergency, the
Participant may petition the Committee to (i) suspend any deferrals
required to be made by a Participant and/or (ii) receive a partial or full
payout from the Plan. The payout shall not exceed the lesser of the
Participant's Account Balance, calculated as if such Participant were
receiving a Termination Benefit, or the amount reasonably needed to satisfy
the Unforeseeable Financial Emergency. If, subject to the sole discretion
of the Committee, the petition for a suspension and/or payout is approved,
suspension shall take effect upon the date of approval and any payout shall
be made within 60 days of the date of approval. The payment of any amount
under this Section 4.3 shall not be subject to the Deduction Limitation.
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4.4 Withdrawal Election. A Participant (or, after a Participant's death, his
or her Beneficiary) may elect, at any time, to withdraw all of his or her
Account Balance, calculated as if there had occurred a Termination of
Employment as of the day of the election, less a withdrawal penalty equal
to 10% of such amount (the net amount shall be referred to as the
"Withdrawal Amount"). This election can be made at any time, before or
after Retirement, Disability, death or Termination of Employment, and
whether or not the Participant (or Beneficiary) is in the process of being
paid pursuant to an installment payment schedule. If made before
Retirement, Disability or death, a Participant's Withdrawal Amount shall be
his or her Account Balance calculated as if there had occurred a
Termination of Employment as of the day of the election. No partial
withdrawals of the Withdrawal Amount shall be allowed. The Participant (or
his or her Beneficiary) shall make this election by giving the Committee
advance written notice of the election in a form determined from time to
time by the Committee. The Participant (or his or her Beneficiary) shall be
paid the Withdrawal Amount within 60 days of his or her election. Once the
Withdrawal Amount is paid, the Participant's participation in the Plan
shall terminate and the Participant shall not be eligible to participate in
the Plan during the remainder of the current Plan Year and for the next two
Plan Years. The payment of this Withdrawal Amount shall not be subject to
the Deduction Limitation.
ARTICLE 5
Retirement Benefit
------------------
5.1 Retirement Benefit. Subject to the Deduction Limitation, a Participant who
Retires shall receive, as a Retirement Benefit, his or her Account Balance.
5.2 Payment of Retirement Benefit. A Participant, in connection with his or
her commencement of participation in the Plan, shall elect on an Election
Form to receive the Retirement Benefit pursuant to a lump sum or a
Quarterly Installment Method paid over 5, 10 or 15 years. The Participant
may annually change his or her election to an allowable alternative payout
period by submitting a new Election Form to the Committee, provided that
any such Election Form is submitted at least 2 years prior to the
Participant's Retirement and is accepted by the Committee in its sole
discretion. The Election Form most recently accepted by the Committee shall
govern the payout of the Retirement Benefit. If a Participant does not make
any election with respect to the payment of the Retirement Benefit, then
such benefit shall be payable in a Lump sum. The lump sum payment shall be
made, or installments shall commence, no later than 60 days after the last
day of the quarter in the Participant Retires. Any payment made shall be
subject to the Deduction Limitation.
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5.3 Death Prior to Completion of Retirement Benefit. If a Participant dies
after Retirement but before the Retirement Benefit is paid in full, the
Participant's unpaid Retirement Benefit payments shall continue and shall
be paid to the Participant's Beneficiary over the remaining period of time
and in the same amounts as that benefit would have been paid to the
Participant had the Participant survived.
ARTICLE 6
Pre-Retirement Survivor Benefit
-------------------------------
6.1 Pre-Retirement Survivor Benefit. Subject to the Deduction Limitation, the
Participant's Beneficiary shall receive a Pre-Retirement Survivor Benefit
equal to the Participant's Account Balance if the Participant dies before
he or she Retires, experiences a Termination of Employment or suffers a
Disability.
6.2 Payment of Pre-Retirement Survivor Benefit. The Participant's Beneficiary
shall receive the Pre-Retirement Survivor Benefit in a lump sum; provided,
however, that upon request by the Beneficiary, the Committee may, in its
sole discretion, direct that the Pre-Retirement Survivor Benefit be paid to
the Beneficiary pursuant to an Annual Installment Method of 5, 10 or 15
years. The lump-sum payment shall be made, or installment payments shall
commence, no later than 60 days after the last day of the Plan Year in
which the Committee is provided with proof that is satisfactory to the
Committee of the Participant's death. Any payment made shall be subject to
the Deduction Limitation.
ARTICLE 7
Termination Benefit
-------------------
7.1 Termination Benefit. Subject to the Deduction Limitation, the Participant
shall receive a Termination Benefit, which shall be equal to the
Participant's Account Balance if a Participant experiences a Termination of
Employment prior to his or her Retirement, death or Disability.
7.2 Payment of Termination Benefit. If the Participant's Account Balance at the
time of his or her Termination of Employment is less than $50,000, payment
of his or her Termination Benefit shall be paid in a lump sum. If his or
her Account Balance at such time is equal to or greater than that amount,
the Committee, in its sole discretion, may cause the Termination Benefit to
be paid in a lump sum or pursuant to an Annual Installment Method of 5, 10,
or 15 years. The lump sum payment shall be made, or installment payments
shall commence, no later than 60 days after the last day of the Plan Year
in which the Participant experiences the Termination of Employment. Any
payment made shall be subject to the Deduction Limitation.
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ARTICLE 8
Disability Waiver and Benefit
-----------------------------
8.1 Disability Waiver.
-----------------
(a) Waiver of Deferral. A Participant who is determined by the Committee
to be suffering from a Disability shall be (i) excused from fulfilling
that portion of the Annual Deferral Amount commitment that would
otherwise have been withheld from a Participant's Annual Salary
and/or Bonus for the Plan Year during which the Participant first
suffers a Disability and (ii) excused from fulfilling any unexercised
Stock Option Amount commitments. During the period of Disability, the
Participant shall not be allowed to make any additional deferral
elections, but will continue to be considered a Participant for all
other purposes of this Plan.
(b) Return to Work. If a Participant returns to employment with an
Employer, after a Disability ceases, the Participant may elect to
defer an Annual Deferral Amount and Stock Option Amount for the Plan
Year following his or her return to employment or service and for
every Plan Year thereafter while a Participant in the Plan; provided
such deferral elections are otherwise allowed and an Election Form is
delivered to and accepted by the Committee for each such election in
accordance with Section 3.3 above.
8.2 Continued Eligibility; Disability Benefit. A Participant suffering a
Disability shall, for benefit purposes under this Plan, continue to be
considered to be employed, and shall be eligible for the benefits provided
for in Articles 4, 5, 6 or 7 in accordance with the provisions of those
Articles. Notwithstanding the above, the Committee shall have the right to,
in its sole and absolute discretion and for purposes of this Plan only, and
must in the case of a Participant who is otherwise eligible to Retire, deem
the Participant to have experienced a Termination of Employment, or in the
case of a Participant who is eligible to Retire, to have Retired, at any
time (or in the case of a Participant who is eligible to Retire, as soon as
practicable) after such Participant is determined to be suffering a
Disability, in which case the Participant shall receive a Disability
Benefit equal to his or her Account Balance at the time of the Committee's
determination; provided, however, that should the Participant otherwise
have been eligible to Retire, he or she shall be paid in accordance with
Article 5. The Disability Benefit shall be paid in a lump sum within 60
days of the Committee's exercise of such right. Any payment made shall be
subject to the Deduction Limitation.
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ARTICLE 9
---------
Beneficiary Designation
-----------------------
9.1 Beneficiary. Each Participant shall have the right, at any time, to
designate his or her Beneficiary(ies) (both primary as well as contingent)
to receive any benefits payable under the Plan to a beneficiary upon the
death of a Participant. The Beneficiary designated under this Plan may be
the same as or different from the Beneficiary designation under any other
plan of an Employer in which the Participant participates.
9.2 Beneficiary Designation and Change of beneficiary. A Participant shall
designate his or her Beneficiary by completing and signing the Beneficiary
Designation Form, and returning it to the Committee or its designated
agent. A Participant shall have the right to change a Beneficiary by
completing, signing and otherwise complying with the terms of the
Beneficiary Designation Form and the Committee's rules and procedures, as
in effect from time to time. Upon the acceptance by the Committee of a new
Beneficiary Designation Form, all Beneficiary designations previously filed
shall be canceled. The Committee shall be entitled to rely on the last
Beneficiary Designation Form filed by the Participant and accepted by the
Committee prior to his or her death.
9.3 Acknowledgment. No designation or change in designation of a Beneficiary
shall be effective until received and acknowledged in writing by the
Committee or its designated agent.
9.4 No Beneficiary Designation. If a Participant fails to designate a
Beneficiary as provided in Sections 9.1, 9.2 and 9.3 above or, if all
designated Beneficiaries predecease the Participant or die prior to
complete distribution of the Participant's benefits, then the Participant's
designated Beneficiary shall be deemed to be his or her estate.
9.5 Doubt as to Beneficiary. If the Committee has any doubt as to the proper
Beneficiary to receive payments pursuant to this Plan, the Committee shall
have the right, exercisable in its discretion, to cause the Participant's
Employer to withhold such payments until this matter is resolved to the
Committee's satisfaction.
9.6 Discharge of Obligations. The payment of benefits under the Plan to a
Beneficiary shall fully and completely discharge all Employers and the
Committee from all further obligations under this Plan with respect to the
Participant, and that Participant's Plan Agreement shall terminate upon
such full payment of benefits.
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ARTICLE 10
Leave of Absence
----------------
10.1 Paid Leave of Absence. If a Participant is authorized by the Participant's
Employer for any reason to take a paid leave of absence from the employment
of the Employer, the Participant shall continue to be considered employed
by the Employer and the Annual Deferral Amount shall continue to be
withheld during such paid leave of absence in accordance with Section 3.3.
10.2 Unpaid Leave of Absence. If a Participant is authorized by the
Participant's Employer for any reason to take an unpaid leave of absence
from the employment of the Employer, the Participant shall continue to be
considered employed by the Employer and the Participant shall be excused
from making deferrals until the earlier of the date the leave of absence
expires or the Participant returns to a paid employment status. Upon such
expiration or return, deferrals shall resume for the remaining portion of
the Plan Year in which the expiration or return occurs, based on the
deferral election, if any, made for that Plan Year. If no election was made
for that Plan Year, no deferral shall be withheld.
ARTICLE 11
Termination, Amendment or Modification
--------------------------------------
11.1 Termination. Although each Employer anticipates that it will continue
the Plan for an indefinite period of time, there is no guarantee that any
Employer will continue the Plan or will not terminate the Plan at any time
in the future. Accordingly, each Employer reserves the right to discontinue
its sponsorship of the Plan and/or to terminate the Plan at any time with
respect to any or all of its participating Employees, by action of its
board of directors. Upon the termination of the Plan with respect to any
Employer, the Plan Agreements of the affected Participants who are employed
by that Employer shall terminate and their Account Balances, determined as
if they had experienced a Termination of Employment on the date of Plan
termination or, if Plan termination occurs after the date upon which a
Participant was eligible to Retire, then with respect to that Participant
as if he or she had Retired on the date of Plan termination, shall be paid
to the Participants as follows: Prior to a Change in Control, if the Plan
is terminated with respect to all of its Participants, an Employer shall
have the right, in its sole discretion, and notwithstanding any elections
made by the Participant, to pay such benefits in a lump sum or pursuant to
an Annual Installment Method of up to 15 years, with amounts credited and
debited during the installment period as provided herein. If the Plan is
terminated with respect to less than all of its Participants, an Employer
shall be required to pay such benefits in a lump sum. After a Change in
Control, the Employer shall be required to pay such benefits in a lump sum.
The termination of the Plan shall not adversely affect any Participant or
Beneficiary who has become entitled to the payment of any benefits under
the Plan as of the date of termination; provided however, that the Employer
shall have the right to accelerate
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installment payments without a premium or prepayment penalty by paying the
Account Balance in a lump sum or pursuant to an Annual Installment Method
using fewer years (provided that the present value of all payments that
will have been received by a Participant at any given point of time under
the different payment schedule shall equal or exceed the present value of
all payments that would have been received at that point in time under the
original payment schedule).
11.2 Amendment. Any Employer may, at any time, amend or modify the Plan in
whole or in part with respect to that Employer by the action of its board
of directors; provided, however, that: (i) no amendment or modification
shall be effective to decrease or restrict the value of a Participant's
Account Balance in existence at the time the amendment or modification is
made, calculated as if the Participant had experienced a Termination of
Employment as of the effective date of the amendment or modification or, if
the amendment or modification occurs after the date upon which the
Participant was eligible to Retire, the Participant had Retired as of the
effective date of the amendment or modification, and (ii) no amendment or
modification of this Section 11.2 or Section 12.2 of the Plan shall be
effective. The amendment or modification of the Plan shall not affect any
Participant or Beneficiary who has become entitled to the payment of
benefits under the Plan as of the date of the amendment or modification;
provided, however, that the Employer shall have the right to accelerate
installment payments by paying the Account Balance in a lump sum or
pursuant to an Annual Installment Method using fewer years (provided that
the present value of all payments that will have been received by a
Participant at any given point of time under the different payment schedule
shall equal or exceed the present value of all payments that would have
been received at that point in time under the original payment schedule).
11.3 Plan Agreement. Despite the provisions of Sections 11.1 and 11.2 above,
if a Participant's Plan Agreement contains benefits or limitations that are
not in this Plan document, the Employer may only amend or terminate such
provisions with the consent of the Participant.
11.4 Effect of Payment. The full payment of the applicable benefit under
Articles 4, 5, 6, 7 or 8 of the Plan shall completely discharge all
obligations to a Participant and his or her designated Beneficiaries under
this Plan and the Participant's Plan Agreement shall terminate.
ARTICLE 12
Administration
--------------
12.1 Committee Duties. Except as otherwise provided in this Article 12, this
Plan shall be administered by a Committee which shall consist of the Board,
or such committee as the Board shall appoint. Members of the Committee may
be Participants in this Plan. The
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Committee shall also have the discretion and authority to (i) make, amend,
interpret, and enforce all appropriate rules and regulations for the
administration of this Plan and (ii) decide or resolve any and all
questions including interpretations of this Plan, as may arise in
connection with the Plan. Any individual serving on the Committee who is a
Participant shall not vote or act on any matter relating solely to himself
or herself. When making a determination or calculation, the Committee
shall be entitled to rely on information furnished by a Participant or the
Company.
12.2 Administration Upon Change In Control. For purposes of this Plan, the
Company shall be the "Administrator" at all times prior to the occurrence
of a Change in Control. Upon and after the occurrence of a Change in
Control, the "Administrator" shall be an independent third party selected
by the Trustee and approved by the individual who, immediately prior to
such event, was the Company's Chief Executive Officer or, if not so
identified, the Company's highest ranking officer (the "Ex-CEO"). The
Administrator shall have the discretionary power to determine all
questions arising in connection with the administration of the Plan and
the interpretation of the Plan and Trust including, but not limited to
benefit entitlement determinations; provided, however, upon and after the
occurrence of a Change in Control, the Administrator shall have no power
to direct the investment of Plan or Trust assets or select any investment
manager or custodial firm for the Plan or Trust. Upon and after the
occurrence of a Change in Control, the Company must: (1) pay all
reasonable administrative expenses and fees of the Administrator; (2)
indemnify the Administrator against any costs, expenses and liabilities
including, without limitation, attorney's fees and expenses arising in
connection with the performance of the Administrator hereunder, except
with respect to matters resulting from the gross negligence or willful
misconduct of the Administrator or its employees or agents; and (3) supply
full and timely information to the Administrator or all matters relating
to the Plan, the Trust, the Participants and their Beneficiaries, the
Account Balances of the Participants, the date of circumstances of the
Retirement, Disability, death or Termination of Employment of the
Participants, and such other pertinent information as the Administrator
may reasonably require. Upon and after a Change in Control, the
Administrator may be terminated (and a replacement appointed) by the
Trustee only with the approval of the Ex-CEO. Upon and after a Change in
Control, the Administrator may not be terminated by the Company.
12.3 Agents. In the administration of this Plan, the Committee may, from time
to time, employ agents and delegate to them such administrative duties as
it sees fit (including acting through a duly appointed representative) and
may from time to time consult with counsel who may be counsel to any
Employer.
12.4 Binding Effect of Decisions. The decision or action of the Administrator
with respect to any question arising out of or in connection with the
administration, interpretation and application of the Plan and the rules
and regulations promulgated hereunder shall be final and conclusive and
binding upon all persons having any interest in the Plan.
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12.5 Indemnity of Committee. All Employers shall indemnify and hold harmless
the members of the Committee, and any Employee to whom the duties of the
Committee may be delegated, and the Administrator against any and all
claims, losses, damages, expenses or liabilities arising from any action
or failure to act with respect to this Plan, except in the case of willful
misconduct by the Committee, any of its members, any such Employee or the
Administrator.
12.6 Employer Information. To enable the Committee and/or Administrator to
perform its functions, the Company and each Employer shall supply full and
timely information to the Committee and/or Administrator, as the case may
be, on all matters relating to the compensation of its Participants, the
date and circumstances of the Retirement, Disability, death or Termination
of Employment of its Participants, and such other pertinent information as
the Committee or Administrator may reasonably require.
ARTICLE 13
Other Benefits and Agreements
13.1 Coordination with Other Benefits. The benefits provided for a Participant
and Participant's Beneficiary under the Plan are in addition to any other
benefits available to such Participant under any other plan or program for
employees of the Participant's Employer. The Plan shall supplement and
shall not supersede, modify or amend any other such plan or program except
as may otherwise be expressly provided.
ARTICLE 14
Claims Procedures
14.1 Presentation of Claim. Any Participant or Beneficiary of a deceased
Participant (such Participant or Beneficiary being referred to below as a
"Claimant") may deliver to the Committee a written claim for a
determination with respect to the amounts distributable to such Claimant
from the Plan. If such a claim relates to the contents of a notice
received by the Claimant, the claim must be made within 60 days after such
notice was received by the Claimant. All other claims must be made within
180 days of the date on which the event that caused the claim to arise
occurred. The claim must state with particularity the determination
desired by the Claimant.
14.2 Notification of Decision. The Committee shall consider a Claimant's
claim within a reasonable time, and shall notify the Claimant in writing:
(a) that the Claimant's requested determination has been made, and that
the claim has been allowed in full; or
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(b) that the Committee has reached a conclusion contrary, in whole or in
part, to the Claimant's requested determination, and such notice must
set forth in a manner calculated to be understood by the Claimant:
(i) the specific reason(s) for the denial of the claim, or any part
of it;
(ii) specific reference(s) to pertinent provisions of the Plan upon
which such denial was based;
(iii) a description of any additional material or information
necessary for the Claimant to perfect the claim, and an
explanation of why such material or information is necessary;
and
(iv) an explanation of the claim review procedure set forth in
Section 14.3 below.
14.3 Review of a Denied Claim. Within 60 days after receiving a notice from the
Committee that a claim has been denied, in whole or in part, a Claimant
(or the Claimant's duly authorized representative) may file with the
Committee a written request for a review of the denial of the claim.
Thereafter, but not later than 30 days after the review procedure began,
the Claimant (or the Claimant's duly authorized representative):
(a) may review pertinent documents;
(b) may submit written comments or other documents; and/or
(c) may request a hearing, which the Committee, in its sole discretion,
may grant.
14.4 Decision on Review. The Committee shall render its decision on review
promptly, and not later than 60 days after the filing of a written request
for review of the denial, unless a hearing is held or other special
circumstances require additional time, in which case the Committee's
decision must be rendered within 120 days after such date. Such decision
must be written in a manner calculated to be understood by the Claimant,
and it must contain:
(a) specific reasons for the decision;
(b) specific reference(s) to the pertinent Plan provisions upon which the
decision was based; and
(c) such other matters as the Committee deems relevant.
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14.5 Legal Action. A Claimant's compliance with the foregoing provisions of
this Article 14 is a mandatory prerequisite to a Claimant's right to
commence any legal action with respect to any claim for benefits under
this Plan.
ARTICLE 15
Trust
15.1 Establishment of the Trust. The Company shall establish the Trust, and
each Employer shall at least annually transfer over to the Trust such
assets as the Employer determines, in its sole discretion, are necessary
to provide, on a present value basis, for its respective future
liabilities created with respect to the Annual Deferral Amounts, Company
Contribution Amounts, Company Matching Amounts, Annual Stock Option
Amounts for such Employer's Participants for all periods prior to the
transfer, as well as any debits and credits to the Participants' Account
Balances for all periods prior to the transfer, taking into consideration
the value of the assets in the trust at the time of the transfer.
15.2 Interrelationship of the Plan and the Trust. The provisions of the Plan
and the Plan Agreement shall govern the rights of a Participant to receive
distributions pursuant to the Plan. The provisions of the Trust shall
govern the rights of the Employers, Participants and the creditors of the
Employers to the assets transferred to the Trust. Each Employer shall at
all times remain liable to carry out its obligations under the Plan.
15.3 Distributions From the Trust. Each Employer's obligations under the Plan
may be satisfied with Trust assets distributed pursuant to the terms of
the Trust, and any such distribution shall reduce the Employer's
obligations under this Plan.
15.4 Stock Transferred to the Trust. Notwithstanding any other provision of
this Plan or the Trust, if Trust assets are distributed to a Participant
in a distribution which reduces the Participant's Stock Option Account
balance under this Plan, such distribution must be made in the form of
Stock.
ARTICLE 16
Miscellaneous
16.1 Status of Plan. The Plan is intended to be a plan that is not qualified
within the meaning of Code Section 401(a) and that "is unfunded and is
maintained by an employer primarily for the purpose of providing deferred
compensation for a select group of management or highly compensated
employee" within the meaning of ERISA Sections 201(2), 301(a)(3) and
401(a)(1). The Plan shall be administered and interpreted to the extent
possible in a manner consistent with that intent.
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16.2 Unsecured General Creditor. Participants and their Beneficiaries, heirs,
successors and assigns shall have no legal or equitable rights, interests
or claims in any property or assets of an Employer. For purposes of the
payment of benefits under this Plan, any and all of an Employer's assets
shall be, and remain, the general, unpledged unrestricted assets of the
Employer. An Employer's obligation under the Plan shall be merely that of
an unfunded and unsecured promise to pay money in the future.
16.3 Employer's Liability. An Employer's liability for the payment of benefits
shall be defined only by the Plan and the Plan Agreement, as entered into
between the Employer and a Participant. An Employer shall have no
obligation to a Participant under the Plan except as expressly provided in
the Plan and his or her Plan Agreement.
16.4 Nonassignability. Neither a Participant nor any other person shall have
any right to commute, sell, assign, transfer, pledge, anticipate, mortgage
or otherwise encumber, transfer, hypothecate, alienate or convey in
advance of actual receipt, the amounts, if any, payable hereunder, or any
part thereof, which are, and all rights to which are expressly declared to
be, unassignable and non-transferable. No part of the amounts payable
shall, prior to actual payment, be subject to seizure, attachment,
garnishment or sequestration for the payment of any debts, judgments,
alimony or separate maintenance owed by a Participant or any other person,
be transferable by operation of law in the event of a Participant's or any
other person's bankruptcy or insolvency or be transferable to a spouse as
a result of a property settlement or otherwise.
16.5 Not a Contract of Employment. The terms and conditions of this Plan shall
not be deemed to constitute a contract of employment between any Employer
and the Participant. Such employment is hereby acknowledged to be an "at
will" employment relationship that can be terminated at any time for any
reason, or no reason, with or without cause, and with or without notice,
unless expressly provided in a written employment agreement. Nothing in
this Plan shall be deemed to give a Participant the right to be retained
in the service of any Employer, either as an Employee or a director, or to
interfere with the right of any Employer to discipline or discharge the
Participant at any time.
16.6 Furnishing Information. A Participant or his or her Beneficiary will
cooperate with the Committee by furnishing any and all information
requested by the Committee and take such other actions as may be requested
in order to facilitate the administration of the Plan and the payments of
benefits hereunder, including but not limited to taking such physical
examinations as the Committee may deem necessary.
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16.7 Terms. Whenever any words are used herein in the masculine, they shall be
construed as though they were in the feminine in all cases where they
would so apply; and whenever any words are used herein in the singular or
in the plural, they shall be construed as though they were used in the
plural or the singular, as the case may be, in all cases where they would
so apply.
16.8 Captions. The captions of the articles, sections and paragraphs of this
Plan are for convenience only and shall not control or affect the meaning
or construction of any of its provisions.
16.9 Governing Law. Subject to ERISA, the provisions of this Plan shall be
construed and interpreted according to the internal laws of the State of
Illinois without regard to its conflicts of laws principles.
16.10 Notice. Any notice or filing required or permitted to be given to the
Committee under this Plan shall be sufficient if in writing and hand-
delivered, or sent by registered or certified mail, to the address below:
PLATINUM technology, inc.
----------------------------------
1815 South Meyers Road
----------------------------------
Oakbrook Terrace, IL 60181-5241
----------------------------------
Attention: Vice President,
Compensation & Benefits
----------------------------------
Such notice shall be deemed given as of the date of delivery or, if
delivery is made by mail, as of the date shown on the postmark on the
receipt for registration or certification.
Any notice or filing required or permitted to be given to a Participant
under this Plan shall be sufficient if in writing and hand-delivered, or
sent by mail, to the last known address of the Participant.
16.11 Successors. The provisions of this Plan shall bind and inure to the
benefit of the Participant's Employer and its successors and assigns and
the Participant and the Participant's designated Beneficiaries.
16.12 Validity. In case any provision of this Plan shall be illegal or invalid
for any reason, said illegality or invalidity shall not affect the
remaining parts hereof, but this Plan shall be construed and enforced as
if such illegal or invalid provision had never been inserted herein.
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16.13 Incompetent. If the Committee determines in its discretion that a benefit
under this Plan is to be paid to a minor, a person declared incompetent
or to a person incapable of handling the disposition of that person's
property, the Committee may direct payment of such benefit to the
guardian, legal representative or person having the care and custody of
such minor, incompetent or incapable person. The Committee may require
proof of minority, incompetence, incapacity or guardianship, as it may
deem appropriate prior to distribution of the benefit. Any payment of a
benefit shall be a payment for the account of the Participant and the
Participant's Beneficiary, as the case may be, and shall be a complete
discharge of any liability under the Plan for such payment amount.
16.14 Court Order. The Committee is authorized to make any payments directed by
court order in any action in which the Plan or the Committee has been
named as a party. In addition, if a court determines that a spouse or
former spouse of a Participant has an interest in the Participant's
benefits under the Plan in connection with a property settlement or
otherwise, the Committee, in its sole discretion, shall have the right,
notwithstanding any election made by a Participant, to immediately
distribute the spouse's or former spouse's interest in the Participant's
benefits under the Plan to that spouse or former spouse.
16.15 Distribution in the Event of Taxation.
(a) In General. If, for any reason, all or any portion of a
Participant's benefits under this Plan becomes taxable to the
Participant prior to receipt, a Participant may petition the
Committee before a Change in Control, or the trustee of the Trust
after a Change in Control, for a distribution of that portion of his
or her benefit that has become taxable. Upon the grant of such a
petition, which grant shall not be unreasonably withheld (and, after
a Change in Control, shall be granted), a Participant's Employer
shall distribute to the Participant immediately available funds in
an amount equal to the taxable portion of his or her benefit (which
amount shall not exceed a Participant's unpaid Account Balance under
the Plan). If the petition is granted, the tax liability
distribution shall be made within 90 days of the date when the
Participant's petition is granted. Such a distribution shall affect
and reduce the benefits to be paid under this Plan.
(b) Trust. If the Trust terminates and benefits are distributed from the
Trust to a Participant, the Participant's benefits under this Plan
shall be reduced to the extent of such distributions.
16.17 Insurance. The Employers, on their own behalf or on behalf of the trustee
of the Trust, and, in their sole discretion, may apply for and procure
insurance on the life of the Participant, in such amounts and in such
forms as the Trust may choose. The Employers or the trustee of the Trust,
as the case may be, shall be the sole owner and beneficiary of any such
insurance. The Participant shall have no interest whatsoever in any such
policy or
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policies, and at the request of the Employers shall submit to medical
examinations and supply such information and execute such documents as
may be required by the insurance company or companies to whom the
Employers have applied for insurance.
16.18 Legal Fees To Enforce Rights After Change in Control. The Company and
each Employer is aware that upon the occurrence of a Change in Control,
the Board or the board of directors of a Participant's Employer (which
might then be composed of new members) or a shareholder of the Company or
the Participant's Employer, or of any successor corporation might then
cause or attempt to cause the Company, the Participant's Employer or such
successor to refuse to comply with its obligations under the Plan and
might cause or attempt to cause the Company or the Participant's Employer
to institute, or may institute, litigation seeking to deny Participants
the benefits intended under the Plan. In these circumstances, the purpose
of the Plan could be frustrated. Accordingly, if, following a Change in
Control, it should appear to any Participant that the Company, the
Participant's Employer or any successor corporation has failed to comply
with any of its obligations under the Plan or any agreement thereunder
or, if the Company, such Employer or any other person takes any action to
declare the Plan void or unenforceable or institutes any litigation or
other legal action designed to deny, diminish or to recover from any
Participant the benefits intended to be provided, then the Company and
the Participant's Employer irrevocably authorize such Participant to
retain counsel of his or her choice at the expense of the Company and the
Participant's Employer (who shall be jointly and severally liable) to
represent such Participant in connection with the initiation or defense
of any litigation or other legal action, whether by or against the
Company, the Participant's Employer or any director, officer, shareholder
or other person affiliated with the Company, the Participant's Employer
or any successor thereto in any jurisdiction.
IN WITNESS WHEREOF, the Company has signed this Plan document effective
as of August 17, 1998.
PLATINUM technology, inc., a Delaware
corporation
By: __________________________________
Title: _______________________________
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EXHIBIT 4.6
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Master Trust Agreement
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MASTER TRUST AGREEMENT
----------------------
Table of Contents
-----------------
<TABLE>
<CAPTION>
Article Page
- ------- ----
<S> <C>
ARTICLE 1 Definitions....................................................... 1
1.1 Name.............................................................. 1
1.2 Intentions........................................................ 1
1.3 Irrevocability; Creditor Claims................................... 1
1.4 Initial Deposit................................................... 2
1.5 Additional Definitions............................................ 2
1.6 Grantor Trust..................................................... 4
ARTICLE 2 General Administration............................................ 4
2.1 Committee Directions and Administration Before Change in Control.. 4
2.2 Administration Upon Change in Control............................. 5
2.3 Contributions..................................................... 6
2.4 Trust Fund........................................................ 6
2.5 Distribution of Excess Trust Fund to Employers.................... 6
ARTICLE 3 Powers and Duties of Trustee...................................... 6
3.1 Investment Directions............................................. 6
3.2 Investment Upon Change in Control................................. 6
3.3 Management of Investments......................................... 7
3.4 Securities........................................................ 9
3.5 Substitution...................................................... 9
3.6 Distributions..................................................... 10
3.7 Trustee Responsibility Regarding Payments on Insolvency........... 12
3.8 Costs of Administration........................................... 14
3.9 Trustee Compensation and Expenses................................. 14
3.10 Professional Advice............................................... 14
3.11 Payment on Court Order............................................ 14
3.12 Protective Provisions............................................. 15
3.13 Indemnifications.................................................. 15
</TABLE>
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<TABLE>
<S> <C>
ARTICLE 4 Insurance Contracts....................... 16
4.1 Types of Contracts........................ 16
4.2 Ownership................................. 16
4.3 Restrictions on Trustee's Rights.......... 16
ARTICLE 5 Trustee's Accounts........................ 16
5.1 Records................................... 16
5.2 Annual Accounting; Final Accounting....... 16
5.3 Valuation................................. 17
5.4 Delegation of Duties...................... 17
ARTICLE 6 Resignation or Removal of Trustee......... 18
6.1 Resignation; Removal...................... 18
6.2 Successor Trustee......................... 18
6.3 Settlement of Accounts.................... 18
ARTICLE 7 Controversies, Legal Actions and Counsel.. 18
7.1 Controversy............................... 18
7.2 Joinder of Parties........................ 19
7.3 Employment of Counsel..................... 19
ARTICLE 8 Insurers.................................. 19
8.1 Insurer Not a Party....................... 19
8.2 Authority of Trustee...................... 19
8.3 Contract Ownership........................ 19
8.4 Limitation of Liability................... 19
8.5 Change of Trustee......................... 20
ARTICLE 9 Amendment and Termination................. 20
9.1 Amendment................................. 20
9.2 Final Termination......................... 21
ARTICLE 10 Miscellaneous............................. 22
10.1 Directions Following Change in Control.... 22
10.2 Taxes..................................... 22
10.3 Third Persons............................. 22
10.4 Nonassignability; Nonalienation........... 22
</TABLE>
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<TABLE>
<S> <C>
10.5 The Plans........................ 23
10.6 Applicable Law................... 23
10.7 Notices and Directions........... 23
10.8 Successors and Assigns........... 23
10.9 Gender and Number................ 23
10.10 Headings......................... 23
10.11 Counterparts..................... 23
10.12 Beneficial Interest.............. 23
10.13 The Trust and Plans.............. 23
10.14 Effective Date................... 24
</TABLE>
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MASTER TRUST AGREEMENT
FOR
PLATINUM technology, inc.
DEFERRED COMPENSATION PLAN
THIS MASTER TRUST AGREEMENT ("Master Trust Agreement") is made and
entered into as of August 17, 1998, between PLATINUM technology, inc., a
Delaware corporation (the "Company"), and Wachovia Bank, N.A., a national
banking association corporation (the "Trustee"), to evidence the master trust
(the "Trust") to be established, pursuant to those executive deferral plans of
the Company now or hereafter existing that require the establishment of a trust,
for the benefit of a select group of management, highly compensated employees
and/or Directors who contribute materially to the continued growth, development
and business success of the Company and those subsidiaries of the Company, if
any, that participate in the Plans (collectively, "Subsidiaries," or singularly,
"Subsidiary").
ARTICLE 1
Name, Intentions, Irrevocability, Deposit and Definitions
1.1 Name. The name of the Trust created by this Agreement (the "Trust") shall
be:
MASTER TRUST AGREEMENT FOR
PLATINUM technology, inc. DEFERRED COMPENSATION PLAN
1.2 Intentions. The Company wishes to establish the Trust and to contribute
to the Trust assets that shall be held therein, subject to the claims of
the Company's and the Subsidiaries' creditors in the event of their
Insolvency (as defined below) until paid to Participants and their
Beneficiaries in such manner and at such times as specified in the Plans.
It is the intention of the parties that this Trust shall constitute an
unfunded arrangement and shall not affect the status of the Plans as
unfunded plans maintained for the purpose of providing supplemental
compensation for a select group of management, highly compensated
employees and/or Directors for purposes of Title I of ERISA (as defined
below). In addition, it is the intention of the Company and the
Subsidiaries to make contributions to the Trust to provide themselves
with a source of funds to assist them in the meeting of their liabilities
under the Plans.
1.3 Irrevocability; Creditor Claims. The Trust hereby established shall be
irrevocable. Except as otherwise provided in Sections 2.5 and 9.2, the
principal of the Trust, and any earnings thereon, shall be held separate
and apart from other funds of the Company and the Subsidiaries and shall
be used exclusively for the uses and purposes of the Participants and
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general creditors of the Company and the Subsidiaries as herein set
forth. The Participants and their Beneficiaries shall have no preferred
claim on, or any beneficial ownership interest in, any assets of the
Trust. Any rights created under the Plans and this Master Trust Agreement
shall be mere unsecured contractual rights of the Participants and their
Beneficiaries against the Company and the Subsidiaries. Any assets held
by the Trust will be subject to the claims of the Company's and the
Subsidiaries' general creditors under federal and state law in the event
of Insolvency.
1.4 Initial Deposit. The Company hereby deposits with the Trustee in trust
$100, which shall become the principal of the Trust to be held,
administered and disposed of by the Trustee as provided in this Master
Trust Agreement.
1.5 Additional Definitions. In addition to the definitions set forth above,
for purposes hereof, unless otherwise clearly apparent from the context,
the following terms have the following indicated meanings:
(a) "Beneficiary" shall mean one or more persons, trusts, estates or
other entities, designated in accordance with a Plan, that are
entitled to receive benefits under a Plan upon the death of a
Participant.
(b) "Board" shall mean the board of directors of the Company.
(c) "Change in Control" shall mean the first to occur of any of the
following events:
(i) Any "person" (as that term is used in Section 13 and 14(d)(2)
of the Securities Exchange Act of 1934 ("Exchange Act"))
becomes the beneficial owner (as that term is used in Section
13(d) of the Exchange Act), directly or indirectly, of 50% or
more of the Company's capital stock entitled to vote in the
election of directors;
(ii) During any period of not more than two consecutive years, not
including any period prior to the adoption of this Trust,
individuals who, at the beginning of such period constitute
the board of directors of the Company, and any new director
(other than a director designated by a person who has entered
into an agreement with the Company to effect a transaction
described in clause (i), (iii), (iv) or (v) of this Section
1.5(c)) whose election by the board of directors or
nomination for election by the Company's stockholders was
approved by a vote of at least three-fourths (3/4ths) of the
directors then still in office, either were directors at the
beginning of the period or whose election or nomination for
election was previously so approved, cease for any reason to
constitute at least a majority thereof;
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(iii) The shareholders of the Company approve any consolidation or
merger of the Company, other than a consolidation or merger
of the Company in which the holders of the common stock of
the Company immediately prior to the consolidation or merger
hold more than 50% of the common stock of the surviving
corporation immediately after the consolidation or merger;
(iv) The shareholders of the Company approve any plan or proposal
for the liquidation or dissolution of the Company; or
(v) The shareholders of the Company approve the sale or transfer
of substantially all of the Company's assets to parties that
are not within a "controlled group of corporations" (as
defined in Code Section 1563) in which the Company is a
member.
(d) "Committee" shall mean the administrative committee appointed by the
Board to administer this Trust.
(e) "Director" shall mean any member of the board of directors of the
Company or any subsidiary.
(f) "ERISA" shall mean the Employee Retirement Income Security Act of
1974, as it may be amended from time to time.
(g) "Insolvent" shall have the meaning set forth in Section 3.7(a)
below.
(h) "Insolvent Entity" shall have the meaning set forth in Section
3.7(a) below.
(i) "IRS" shall mean the Internal Revenue Service.
(j) "Participant" shall mean a person who is a participant in one or
more of the Plans in accordance with their terms and conditions.
(k) "Payment Schedule" shall have the meaning set forth in Section
3.6(b) below.
(l) "Plan(s)" shall mean PLATINUM technology, inc. Deferred Compensation
Plan.
(m) "Plan Year" shall mean the Plan Year chosen for this Master Trust
Agreement by the Board.
(n) "Trust Fund" shall mean the assets held by the Trustee pursuant to
the terms of this Master Trust Agreement and for the purposes of the
Plans.
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1.6 Grantor Trust. The Trust is intended to be a "grantor trust," of which
the Company and the Subsidiaries are the grantors, within the meaning of
subpart E, part I, subchapter J, chapter 1, subtitle A of the Internal
Revenue Code of 1986, as amended, and the Trust shall be construed
accordingly.
ARTICLE 2
General Administration
----------------------
2.1 Committee Directions and Administration Before Change in Control. Until a
Change in Control has occurred, this Section 2.1 shall be effective and
the Committee shall direct the Trustee as to the administration of the
Trust in accordance with the following provisions:
(a) The Committee shall be identified to the Trustee by a copy of the
resolution of the Board appointing the Committee. In the absence
thereof, the Board shall be the Committee. Persons authorized to
give directions to the Trustee on behalf of the Committee shall be
identified to the Trustee by written notice from the Committee, and
such notice shall contain specimens of the authorized signatures.
The Trustee shall be entitled to rely on such written notice as
evidence of the identity and authority of the persons appointed
until a written cancellation of the appointment, or the written
appointment of a successor, is received by the Trustee.
(b) Directions by the Committee, or its delegate, to the Trustee shall
be in writing and signed by the Committee or persons authorized by
the Committee, or may be made by such other method as is acceptable
to the Trustee.
(c) The Trustee may conclusively rely upon directions from the Committee
in taking any action with respect to this Master Trust Agreement,
including the making of payments from the Trust Fund and the
investment of the Trust Fund pursuant to this Master Trust
Agreement. The Trustee shall have no liability for actions taken, or
for failure to act, on the direction of the Committee. The Trustee
shall have no liability for failure to act in the absence of proper
written directions.
(d) The Trustee may request instructions from the Committee and shall
have no duty to act or liability for failure to act if such
instructions are not forthcoming from the Committee. If requested
instructions are not received within a reasonable time, the Trustee
may, but is under no duty to, act on its own discretion to carry out
the provisions of this Master Trust Agreement in accordance with
this Master Trust Agreement and the Plans.
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2.2 Administration Upon Change in Control. In the event of a Change in
Control, the authority of the Committee to administer the Trust and
direct the Trustee, as set forth in Section 2.1 above, shall cease, and
the Trustee shall have complete authority and discretion to administer
the Trust.
2.3 Contributions. Except as provided in any Plan, the Company and the
Subsidiaries, in their sole discretion, may at any time, or from time to
time, make additional deposits of cash or other property in trust with
the Trustee to augment the principal to be held, administered and
disposed of by the Trustee as provided in this Master Trust Agreement.
Neither the Trustee nor any Participant or Beneficiary shall have any
right to compel such additional deposits. The Trustee shall have no duty
to collect or enforce payment to it of any contributions or to require
that any contributions be made, and shall have no duty to compute any
amount to be paid to it nor to determine whether amounts paid comply with
the terms of the Plans.
2.4 Trust Fund. The contributions received by the Trustee from the Company
and the Subsidiaries shall be held and administered pursuant to the terms
of this Master Trust Agreement as a single fund without distinction
between income and principal and without liability for the payment of
interest thereon except as expressly provided in this Master Trust
Agreement. During the term of this Trust, all income received by the
Trust, net of expenses and taxes, shall be accumulated and reinvested.
2.5 Distribution of Excess Trust Fund to Employers. In the event that the
Committee, prior to a Change in Control, or the Trustee in its sole and
absolute discretion, after a Change in Control, determines that the Trust
Fund exceeds 125 percent of the anticipated benefit obligations and
administrative expenses that are to be paid under the Plans, the Trustee,
at the direction of the Committee prior to a Change in Control, or in its
sole and absolute discretion after a Change in Control, shall distribute
to the Company and the Subsidiaries such excess portion of the Trust
Fund.
ARTICLE 3
Powers and Duties of Trustee
----------------------------
3.1 Investment Directions. Except as provided in this Section and Section 3.2
below, the Committee shall provide the Trustee with all investment
instructions. The Trustee shall neither affect nor change investments of
the Trust Fund, except as directed in writing by the Committee, and shall
have no right, duty or responsibility to recommend investments or
investment changes; provided, that the Trustee may (i) deposit cash on
hand from time to time in any bank savings account, certificate of
deposit, or other instrument creating a deposit liability for a bank,
including the Trustee's own banking department, if the Trustee
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is a bank, without such prior direction, or (ii) invest in government
securities, bonds with specific ratings, or stock of "Fortune 500"
companies, all within broad investment guidelines established by the
Committee from time to time, (iii) or in a mutual fund, including a
proprietary mutual fund, invested primarily in instruments or securities
described in parts (i) or (ii) above.
3.2 Investment Upon Change in Control. In the event of a Change in Control,
the authority of the Committee to direct investments of the Trust Fund
shall cease and the Trustee shall have complete authority to direct
investments of the Trust Fund. The president of the Company shall notify
the Trustee in writing when a Change in Control has occurred. The Trustee
has no duty to inquire whether a Change in Control has occurred and may
rely on notification by the president of the Company of a Change in
Control; provided, however, that if any officer, former officer, director
or former director of the Company or any Subsidiary (other than the
president of the Company), or any Participant notifies the Trustee that
there has been or there may be a Change in Control, the Trustee shall
have the duty to satisfy itself as to whether a Change in Control has in
fact occurred. The Company and the Subsidiaries in its sole discretion
shall indemnify and hold harmless the Trustee for any damages or costs
(including attorneys' fees) that may be incurred because of reliance on
the president's notice or lack thereof.
3.3 Management of Investments. Subject to Section 3.1 above, the Trustee
shall have, without exclusion, all powers conferred on the Trustee by
applicable law, unless expressly provided otherwise herein, and all
rights associated with assets of the Trust shall be exercised by the
Trustee or the person designated by the Trustee, and shall in no event be
exercisable by or rest with Participants or their Beneficiaries. The
Trustee shall have full power and authority to invest and reinvest the
Trust Fund in any investment permitted by law, exercising the judgment
and care that persons of prudence, discretion and intelligence would
exercise under the circumstances then prevailing, considering the
probable income and safety of their capital, including, without limiting
the generality of the foregoing, the power:
(a) To invest and reinvest the Trust Fund, together with the income
therefrom, in common stock, preferred stock, convertible preferred
stock, mutual funds, bonds, debentures, convertible debentures and
bonds, mortgages, notes, time certificates of deposit, commercial
paper and other evidences of indebtedness (including those issued by
the Trustee or any of its affiliates), other securities, policies of
life insurance, annuity contracts, options to buy or sell securities
or other assets, and other property of any kind (personal, real, or
mixed, and tangible or intangible); provided, however, that in no
event may the Trustee invest in securities (including stock or
rights to acquire stock) or obligations issued by the Company or the
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Subsidiaries, other than a de minimis amount held in common
investment vehicles in which the Trustee invests;
(b) To deposit or invest all or any part of the assets of the Trust Fund
in savings accounts or certificates of deposit or other deposits
which bear a reasonable interest rate in a bank, including the
commercial department of the Trustee, if such bank is supervised by
the United States or any State;
(c) To hold, manage, improve, repair and control all property, real or
personal, forming part of the Trust Fund and to sell, convey,
transfer, exchange, partition, lease for any term, even extending
beyond the duration of this Trust, and otherwise dispose of the same
from time to time in such manner, for such consideration, and upon
such terms and conditions as the Trustee shall determine;
(d) To have, respecting securities, all the rights, powers and
privileges of an owner, including the power to give proxies, pay
assessments and other sums deemed by the Trustee to be necessary for
the protection of the Trust Fund, to vote any corporate stock either
in person or by proxy, with or without power of substitution, for
any purpose; to participate in voting trusts, pooling agreements,
foreclosures, reorganizations, consolidations, mergers and
liquidations, and in connection therewith to deposit securities with
and transfer title to any protective or other committee under such
terms as the Trustee may deem advisable; to exercise or sell stock
subscriptions or conversion rights; and, regardless of any
limitation elsewhere in this instrument relative to investment by
the Trustee, to accept and retain as an investment any securities or
other property received through the exercise of any of the foregoing
powers;
(e) To hold in cash, without liability for interest, such portion of the
Trust Fund which, in its discretion, shall be reasonable under the
circumstances, pending investments, or payment of expenses, or the
distribution of benefits;
(f) To take such actions as may be necessary or desirable to protect the
Trust Fund from loss due to the default on mortgages held in the
Trust including the appointment of agents or trustees in such other
jurisdictions as may seem desirable, to transfer property to such
agents or trustees, to grant such powers as are necessary or
desirable to protect the Trust or its assets, to direct such agents
or trustees, or to delegate such power to direct, and to remove such
agents or trustees;
(g) To employ such agents including custodians and counsel as may be
reasonably necessary and to pay them reasonable compensation; to
settle, compromise or abandon all claims and demands in favor of or
against the Trust assets;
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(h) To cause title to property of the Trust to be issued, held or
registered in the individual name of the Trustee, or in the name of
its nominee(s) or agents, or in such form that title will pass by
delivery;
(i) To exercise all of the further rights, powers, options and
privileges granted, provided for, or vested in trustees generally
under the laws of the State whose laws are applicable to this Master
Trust Agreement, as provided in Section 10.6 below, so that the
powers conferred upon the Trustee herein shall not be in limitation
of any authority conferred by law, but shall be in addition thereto;
(j) To borrow money from any source (including the Trustee) and to
execute promissory notes, mortgages or other obligations and to
pledge or mortgage any Trust assets as security;
(k) To lend certificates representing stocks, bonds, or other securities
to any brokerage or other firm selected by the Trustee;
(l) To institute, compromise and defend actions and proceedings; to pay
or contest any claim; to settle a claim by or against the Trustee by
compromise, arbitration, or otherwise; to release, in whole or in
part, any claim belonging to the Trust to the extent that the claim
is uncollectible;
(m) To use securities depositories or custodians and to allow such
securities as may be held by a depository or custodian to be
registered in the name of such depository or its nominee or in the
name of such custodian or its nominee;
(n) To invest the Trust Fund from time to time in one or more investment
funds, which funds shall be registered under the Investment Company
Act of 1940; and
(o) To do all other acts necessary or desirable for the proper
administration of the Trust Fund, as if the Trustee were the
absolute owner thereof.
However, nothing in this section shall be construed to mean the Trustee
assumes any responsibility for the performance of any investment made by
the Trustee in its capacity as trustee under the operations of this
Master Trust Agreement. Notwithstanding any powers granted to the Trustee
pursuant to this Master Trust Agreement or to applicable law, the Trustee
shall not have any power that could give this Trust the objective of
carrying on a business and dividing the gains therefrom, within the
meaning of section 301.7701-2 of the Procedure and Administrative
Regulations promulgated pursuant to the Internal Revenue Code of 1986, as
amended.
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3.4 Securities. Voting or other rights in securities shall be exercised by
the person or entity responsible for directing such investments, and the
Trustee shall have no duty to exercise voting or proxy or other rights
relating to any investment managed or directed by the Committee. If any
foreign securities are purchased pursuant to the direction of the
Committee, it shall be the responsibility of the person or entity
responsible for directing such investments to advise the Trustee in
writing of any laws or regulations, either foreign or domestic, that
apply to such foreign securities or to the receipt of dividends or
interest on such securities.
3.5 Substitution. Notwithstanding any provision of any Plan or the Trust to
the contrary, the Company and/or any Subsidiary shall at all times have
the power to reacquire the Trust Fund by substituting readily marketable
securities (other than stock, a debt obligation or other security issued
by the Company or any Subsidiary) and/or cash of an equivalent value and
such other property shall, following such substitution, constitute the
Trust Fund.
3.6 Distributions.
(a) The establishment of the Trust and the payment or delivery to the
Trustee of money or other property shall not vest in any Participant
or Beneficiary any right, title, or interest in and to any assets of
the Trust. To the extent that any Participant or Beneficiary
acquires the right to receive payments under any of the Plans, such
right shall be no greater than the right of an unsecured general
creditor of the Company and the Subsidiaries and such Participant or
Beneficiary shall have only the unsecured promise of the Company and
the Subsidiaries that such payments shall be made.
(b) Concurrent with the establishment of this Trust, the Company shall
deliver to the Trustee a schedule (the "Payment Schedule") that
indicates the amounts payable in respect of each Participant (and
his or her Beneficiaries) on a Plan by Plan basis, provides a
formula or formulas or other instructions acceptable to the Trustee
for determining the amounts so payable, specifies the form in which
such amount is to be paid (as provided for or available under the
applicable Plans), and the time of commencement for payment of such
amounts. The Payment Schedule shall be updated from time to time as
is necessary. Except as otherwise provided herein, prior to a Change
in Control, the Trustee shall make payments to the Participants and
their Beneficiaries in accordance with such Payment Schedule.
Despite the foregoing, after a Change in Control, the Trustee shall
make payments in accordance with the terms and provisions of each of
the Plans and related plan agreements in its discretion. The
Trustee, at the direction of the Committee or,
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after a Change in Control, on its own volition, may make any
distribution required to be made by it hereunder by delivering:
(i) Its check payable to the person to whom such distribution is
to be made, to the person, or, if prior to a Change in
Control, to the Company for redelivery to such person;
provided that before a Change in Control, the Committee may
direct the Trustee to deliver one or more lump sum checks
payable to the Company, and the Company shall prepare and
deliver individual checks for each Participant or
Beneficiary; or
(ii) Its check payable to an insurer for the benefit of such
person, to the insurer, or, if prior to a Change in Control,
to the Company for redelivery to the insurer; or
(iii) Contracts held on the life of the Participant to whom or with
respect to whom the distribution is being made, to the
Participant or Beneficiary, or, if prior to a Change in
Control, to the Company for redelivery to the person to whom
such distribution is to be made; or
(iv) If a distribution is being made, in whole or in part, of
other assets, assignments or other appropriate documents or
certificates necessary to effect a transfer of title, to the
Participant or Beneficiary, or, if prior to a Change in
Control, to the Company for redelivery to such person.
(c) If the principal of the Trust, and any earnings thereon, are not
sufficient, determined on a Plan by Plan basis, to make payments of
benefits in accordance with the terms of the Plans, the Company and
the Subsidiaries shall make the balance of each such payment as it
falls due. The Trustee shall notify the Company and the Subsidiaries
when principal and earnings are not sufficient.
(d) The Company and the Subsidiaries may make payment of benefits
directly to Participants or their Beneficiaries as they become due
under the terms of the Plans. The Company and the Subsidiaries shall
notify the Trustee of their decisions to make payment of benefits
directly prior to the time amounts are payable to Participants or
their Beneficiaries.
(e) Notwithstanding anything contained in this Master Trust Agreement to
the contrary, if at any time the Trust is finally determined by the
IRS not to be a "grantor trust" with the result that the income of
the Trust Fund is not treated as income of the Company or the
Subsidiaries pursuant to Sections 671 through 679 of the Internal
Revenue Code of 1986, as amended, or if a tax is finally determined
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by the IRS to be payable by one or more Participants or
Beneficiaries with respect to any interest in the Plans or the Trust
Fund prior to payment of such interest to any such Participant or
Beneficiary, the Trustee shall immediately determine each
Participant's share of the Trust Fund in accordance with the Plans,
and the Trustee shall immediately distribute such share in a lump
sum to each Participant or Beneficiary entitled thereto, regardless
of whether such Participant's employment has terminated (provided
such Participant has a vested interest in his or her accrued
benefits under the Plans) and regardless of form and time of
payments specified in or pursuant to the Plans. Any remaining assets
(less any expenses or costs due under Sections 3.8 and 3.9 of this
Master Trust Agreement) shall then be paid by the Trustee to the
Company and the Subsidiaries in such amounts, and in the manner
instructed by the Committee. If the value of the Trust Fund is less
than the benefit obligations under the Plans, the foregoing
described distributions will be limited to a Participant's share of
the Trust Fund, determined by allocating assets to the Participant
based on the ratio of the Participant's benefit obligations under
the Plans to the total benefit obligations under the Plans. Prior to
a Change in Control, the Trustee shall rely solely on the directions
of the Committee with respect to the occurrence of the foregoing
events and the resulting distributions to be made, and the Trustee
shall not be responsible for any failure to act in the absence of
such direction.
(f) The Trustee shall make provision for the reporting and withholding
of any federal, state or local taxes that may be required to be
withheld with respect to the payment of benefits pursuant to the
terms of the Plans and shall pay amounts withheld to the appropriate
taxing authorities or determine that such amounts have been
reported, withheld and paid by the Company and the Subsidiaries.
(g) Prior to a Change in Control, payments by the Trustee shall be
delivered or mailed to addresses supplied by the Committee and the
Trustee's obligation to make such payments shall be satisfied upon
such delivery or mailing. Prior to a Change in Control, the Trustee
shall have no obligation to determine the identity of persons
entitled to benefits or their mailing addresses. After a Change in
Control, the Trustee shall have such obligations.
(h) Prior to a Change in Control, the entitlement of a Participant or
his or her Beneficiaries to benefits under the Plans shall be
determined by the Company and the Subsidiaries or such party as they
shall designate under the Plans, and any claim for such benefits
shall be considered and reviewed under the procedures set out in the
Plans.
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3.7 Trustee Responsibility Regarding Payments on Insolvency.
(a) The Trustee shall cease payment of benefits to Participants and
their Beneficiaries if the Company, or any Subsidiary, is Insolvent
(the "Insolvent Entity"). The Insolvent Entity shall be considered
"Insolvent" for purposes of this Master Trust Agreement if:
(i) the Insolvent Entity is unable to pay its debts as they
become due, or
(ii) the Insolvent Entity is subject to a pending proceeding as a
debtor under the United States Bankruptcy Code.
For purposes of this Section 3.7, if an entity is determined to be
Insolvent, each Subsidiary in which such entity has an equity
interest shall also be deemed to be an Insolvent Entity. However,
the insolvency of a Subsidiary will not cause a parent corporation
to be deemed Insolvent.
(b) At all times during the continuance of this Trust, as provided in
Section 1.3 above, the principal and income of the Trust shall be
subject to claims of the general creditors of the Company and its
Subsidiaries under federal and state law as set forth below:
(i) The Board and the president of the Company shall have the
duty to inform the Trustee in writing of the Company's or any
Subsidiary's Insolvency. If a person claiming to be a
creditor of the Company or any Subsidiary alleges in writing
to the Trustee that the Company or any Subsidiary has become
Insolvent, the Trustee shall determine whether the Company or
any Subsidiary is Insolvent and, pending such determination,
the Trustee shall discontinue payment of benefits to the
Insolvent Entity's Participants or their Beneficiaries. Prior
to a Change in Control, the Trustee may conclusively rely on
any determination it receives from the Board or the president
of the Company with respect to the Insolvency of the Company
or any Subsidiary.
(ii) Unless the Trustee has actual knowledge of the Company's or a
Subsidiary's Insolvency, or has received notice from the
Company, a Subsidiary, or a person claiming to be a creditor
alleging that the Company or a Subsidiary is Insolvent, the
Trustee shall have no duty to inquire whether the Company or
any Subsidiary is Insolvent. The Trustee may in all events
rely on such evidence concerning the Company's or any
Subsidiary's solvency as may be furnished to the Trustee and
that provides the Trustee with a reasonable
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basis for making a determination concerning the Company's or
any Subsidiary's solvency. In this regard, the Trustee may
rely upon a letter from the Company's or a Subsidiary's
auditors as to the Company's or any Subsidiary's financial
status.
(iii) If at any time the Trustee has determined that the Company or
any Subsidiary is Insolvent, the Trustee shall discontinue
payments to the Insolvent Entity's Participants or their
Beneficiaries, and shall hold the portion of the assets of
the Trust allocable to the Insolvent Entity for the benefit
of the Insolvent Entity's general creditors. Nothing in this
Master Trust Agreement shall in any way diminish any rights
of Participants or their Beneficiaries to pursue their rights
as general creditors of the Insolvent Entity with respect to
benefits due under the Plans or otherwise.
(iv) The Trustee shall resume the payment of benefits to
Participants or their Beneficiaries in accordance with this
Article 3 of this Master Trust Agreement only after the
Trustee has determined that the alleged Insolvent Entity is
not Insolvent (or is no longer Insolvent).
(c) Provided that there are sufficient assets, if the Trustee
discontinues the payment of benefits from the Trust pursuant to
Section 3.7(b) hereof and subsequently resumes such payments, the
first payment following such discontinuance shall include the
aggregate amount of all payments due to Participants or their
Beneficiaries under the terms of the Plans for the period of such
discontinuance, less the aggregate amount of any payments made to
Participants or their Beneficiaries by the Company or any Subsidiary
in lieu of the payments provided for hereunder during any such
period of discontinuance. Prior to a Change in Control, the
Committee shall instruct the Trustee as to such amounts, and after a
Change in Control, the Trustee shall determine such amounts in
accordance with the terms and provisions of the Plans.
3.8 Costs of Administration. The Trustee is authorized to incur reasonable
obligations in connection with the administration of the Trust, including
attorneys' fees, administrative fees and appraisal fees. Such obligations
shall be paid by the Company and the Subsidiaries. The Trustee is
authorized to pay such amounts from the Trust Fund if the Company or the
Subsidiaries fail to pay them within 60 days of presentation of a
statement of the amounts due.
3.9 Trustee Compensation and Expenses. The Trustee shall be entitled to
reasonable compensation for its services as from time to time agreed upon
between the Trustee and the Company. If the Trustee and the Company fail
to agree upon its compensation, or
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following a Change in Control, the Trustee shall be entitled to
compensation at a rate equal to the rate charged by the Trustee for
similar services rendered by it during the current fiscal year for other
trusts similar to this Trust. The Trustee shall be entitled to
reimbursement for expenses incurred by it in the performance of its
duties as the Trustee, including reasonable fees for legal counsel or
agents retained by the Trustee. The Trustee's compensation and expenses
shall be paid by the Company and the Subsidiaries. The Trustee is
authorized to withdraw such amounts from the Trust Fund if the Company or
the Subsidiaries fail to pay them within 60 days of presentation of a
statement of the amounts due.
3.10 Professional Advice. The Company and the Subsidiaries specifically
acknowledge that the Trustee may find it desirable or expedient to retain
legal counsel (who may also be legal counsel for the Company generally)
or other professional advisors to advise it in connection with the
exercise of any duty under this Master Trust Agreement, including, but
not limited to, any matter relating to or following a Change in Control
or the Insolvency of the Company or any Subsidiary. The Trustee shall be
fully protected in acting upon the advice of such legal counsel or
advisors.
3.11 Payment on Court Order. To the extent permitted by law, the Trustee is
authorized to make any payments directed by court order in any action in
which the Trustee has been named as a party. The Trustee is not obligated
to defend actions in which the Trustee is named, but shall notify the
Company or Committee of any such action and may tender defense of the
action to the Company, Committee, Participant or Beneficiary whose
interest is affected. The Trustee may in its discretion defend any action
in which the Trustee is named, and any expenses incurred by the Trustee
shall be paid by the Company and the Subsidiaries. The Trustee is
authorized to pay such amounts from the Trust Fund if the Company or the
Subsidiaries fail to pay them within sixty (60) days of presentation of a
statement of the amounts due.
3.12 Protective Provisions. Notwithstanding any other provision contained in
this Master Trust Agreement to the contrary, the Trustee shall have no
obligation to (i) determine the existence of any conversion, redemption,
exchange, subscription or other right relating to any securities
purchased of which notice was given prior to the purchase of such
securities and shall have no obligation to exercise any such right unless
the Trustee is advised in writing by the Committee both of the existence
of the right and the desired exercise thereof within a reasonable time
prior to the expiration of the right to exercise, or (ii) advance any
funds to the Trust. Furthermore, the Trustee is not a party to the Plans.
3.13 Indemnifications.
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(a) The Company and the Subsidiaries shall indemnify and hold the
Trustee harmless from and against all loss or liability (including
expenses and reasonable attorneys' fees) to which it may be subject
by reason of its execution of its duties under this Trust, or by
reason of any acts taken in good faith in accordance with any
directions, or acts omitted in good faith due to absence of
directions, from the Company, the Committee or a Participant, unless
such loss or liability is due to the Trustee's gross negligence or
willful misconduct. The indemnity described herein shall be provided
by the Company and the Subsidiaries.
(b) In the event that the Trustee is named as a defendant in a lawsuit
or proceeding involving one or more of the Plans or the Trust Fund,
the Trustee shall be entitled to receive on a current basis the
indemnity payments provided for in this Section, provided however
that if the final judgment entered in the lawsuit or proceeding
holds that the Trustee is guilty of gross negligence or willful
misconduct with respect to the Trust Fund, the Trustee shall be
required to refund the indemnity payments that it has received.
(c) All releases and indemnities provided in this Master Trust Agreement
shall survive the termination of this Master Trust Agreement.
ARTICLE 4
Insurance Contracts
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4.1 Types of Contracts. To the extent that the Trustee is directed by the
Committee prior to a Change in Control to invest part or all of the Trust
Fund in insurance contracts, the type and amount thereof shall be
specified by the Committee. The Trustee shall be under no duty to make
inquiry as to the propriety of the type or amount so specified.
4.2 Ownership. Each insurance contract issued shall provide that the Trustee
shall be the owner thereof with the power to exercise all rights,
privileges, options and elections granted by or permitted under such
contract or under the rules of the insurer. The exercise by the Trustee
of any incidents of ownership under any contract shall, prior to a Change
in Control, be subject to the direction of the Committee.
4.3 Restrictions on Trustee's Rights. The Trustee shall have no power to name
a beneficiary of the policy other than the Trust, to except as provided
by Section 3.6(b), assign the policy (as distinct from conversion of the
policy to a different form) other than to a successor Trustee, or to loan
to any person the proceeds of any borrowing against such policy. Despite
the foregoing, the Trustee may (i) loan to the Company or any Subsidiary
the proceeds of any borrowing against an insurance policy held in the
Trust Fund or (ii) assign
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all, or any portion, of a policy to the Company or any Subsidiary if
under other provisions of this Master Trust Agreement the Company or any
Subsidiary is entitled to receive assets from the Trust.
ARTICLE 5
Trustee's Accounts
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5.1 Records. The Trustee shall maintain accurate records and detailed
accounts of all investments, receipts, disbursements and other
transactions hereunder. Such records shall be available at all reasonable
times for inspection by the Company and Subsidiaries or their authorized
representative. The Trustee, at the direction of the Committee, shall
submit to the Committee and to any insurer such valuations, reports or
other information as the Committee may reasonably require and, in the
absence of fraud or bad faith, the valuation of the Trust Fund by the
Trustee shall be conclusive.
5.2 Annual Accounting; Final Accounting.
(a) Within 60 days following the end of each Plan Year and within 60
days after the removal or resignation of the Trustee or the
termination of the Trust, the Trustee shall file with the Committee
a written account setting forth a description of all properties
purchased and sold, all receipts, disbursements and other
transactions effected by it during the Plan Year or, in the case of
removal, resignation or termination, since the close of the previous
Plan Year, and listing the properties held in the Trust Fund as of
the last day of the Plan Year or other period and indicating their
values. Such values shall be either cost or market as directed by
the Committee in accordance with the terms of the Plans.
(b) The Committee may approve such account either by written notice of
approval delivered to the Trustee or by its failure to express
written objection to such account delivered to the Trustee within 60
days after the date of which such account was delivered to the
Committee.
(c) The approval by the Committee of an accounting shall be binding as
to all matters embraced in such accounting on all parties to this
Master Trust Agreement and on all Participants and Beneficiaries, to
the same extent as if such accounting had been settled by a judgment
or decree of a court of competent jurisdiction in which the Trustee,
the Committee, the Company, the Subsidiaries and all persons having
or claiming any interest in any Plan or the Trust Fund were made
parties.
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(d) Despite the foregoing, nothing contained in this Master Trust
Agreement shall deprive the Trustee of the right to have an
accounting judicially settled, if the Trustee, in the Trustee's sole
discretion, desires such a settlement.
5.3 Valuation. The assets of the Trust Fund shall be valued at their
respective fair market values on the date of valuation, as determined by
the Trustee based upon such sources of information as it may deem
reliable, including, but not limited to, stock market quotations,
statistical valuation services, newspapers of general circulation,
financial publications, advice from investment counselors, brokerage
firms or insurance companies, or any combination of sources. Prior to a
Change in Control, the Committee shall instruct the Trustee as to the
value of assets for which market values are not readily obtainable by the
Trustee. If the Committee fails to provide such values, the Trustee may
take whatever action it deems reasonable, including employment of
attorneys, appraisers, life insurance companies or other professionals,
the expense of which shall be an expense of administration of the Trust
Fund and payable by the Company and the Subsidiaries. The Trustee may
rely upon information from the Company and the Subsidiaries, the
Committee, appraisers or other sources and shall not incur any liability
for an inaccurate valuation based in good faith upon such information.
5.4 Delegation of Duties. The Company or the Committee, or both, may at any
time employ the Trustee as their agent to perform any act, keep any
records or accounts and make any computations that are required of the
Company, any Subsidiary or the Committee by this Master Trust Agreement
or the Plans. The Trustee may be compensated for such employment and such
employment shall not be deemed to be contrary to the Trust. Nothing done
by the Trustee as such agent shall change or increase its responsibility
or liability as Trustee hereunder.
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ARTICLE 6
Resignation or Removal of Trustee
---------------------------------
6.1 Resignation; Removal. The Trustee may resign at any time by written
notice to the Company, which shall be effective 60 days after receipt of
such notice unless the Company and the Trustee agree otherwise. Prior to
a Change in Control, the Trustee may be removed by the Company on 60 days
notice or upon shorter notice accepted by the Trustee. After a Change in
Control, the Trustee may be removed by a majority vote of the
Participants, and if a Participant is dead, his or her Beneficiaries (who
collectively shall have one vote among them and shall vote in place of
such deceased Participant), on 60 days notice or upon shorter notice
accepted by the Trustee.
6.2 Successor Trustee. If the Trustee resigns or is removed, a successor
shall be appointed by the Company, in accordance with this Section, by
the effective date of the resignation or removal under Section 6.1 above.
The successor shall be a bank, trust company, or similar independent
third party that is granted corporate trustee powers under state law.
After the occurrence of a Change in Control, a successor Trustee may not
be appointed without the consent of a majority of the Participants. If no
such appointment has been made, the Trustee may apply to a court of
competent jurisdiction for appointment of a successor or for
instructions. All expenses of the Trustee in connection with the
proceeding shall be allowed as administrative expenses of the Trust.
6.3 Settlement of Accounts. Upon resignation or removal of the Trustee and
appointment of a successor Trustee, all assets shall subsequently be
transferred to the successor Trustee. The transfer shall be completed
within 90 days after receipt of notice of resignation, removal or
transfer, unless the Company extends the time limit. Upon the transfer of
the assets, the successor Trustee shall succeed to all of the powers and
duties given to the Trustee in this Master Trust Agreement. The resigning
or removed Trustee shall render to the Committee an account in the form
and manner and at the time prescribed in Section 5.2. The approval of
such accounting and discharge of the Trustee shall be as provided in such
Section.
ARTICLE 7
Controversies, Legal Actions and Counsel
----------------------------------------
7.1 Controversy. If any controversy arises with respect to the Trust, the
Trustee shall take action as directed by the Committee or, in the absence
of such direction or after a Change in Control, as it deems advisable,
whether by legal proceedings, compromise or otherwise. The Trustee may
retain the funds or property involved without liability pending
settlement
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Deferred Compensation Plan
Master Trust Agreement
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of the controversy. The Trustee shall be under no obligation to take any
legal action of whatever nature unless there shall be sufficient property
in the Trust to indemnify the Trustee with respect to any expenses or
losses to which it may be subjected.
7.2 Joinder of Parties. In any action or other judicial proceedings
affecting the Trust, it shall be necessary to join as parties the
Trustee, the Committee, the Company and the Subsidiaries. No Participant
or other person shall be entitled to any notice or service of process.
Any judgment entered in such a proceeding or action shall be binding on
all persons claiming under the Trust. Nothing in this Master Trust
Agreement shall be construed as to deprive a Participant or Beneficiary
of his or her right to seek adjudication of his or her rights by
administrative process or by a court of competent jurisdiction.
7.3 Employment of Counsel. The Trustee may consult with legal counsel (who
may be counsel for the Company or any Subsidiary) and shall be fully
protected with respect to any action taken or omitted by it in good faith
pursuant to the advice of counsel.
ARTICLE 8
Insurers
--------
8.1 Insurer Not a Party. No insurer shall be deemed to be a party to the
Trust and an insurer's obligations shall be measured and determined
solely by the terms of contracts and other agreements executed by it.
8.2 Authority of Trustee. An insurer shall accept the signature of the
Trustee to any documents or papers executed in connection with such
contracts. The signature of the Trustee shall be conclusive proof to the
insurer that the person on whose life an application is being made is
eligible to have a contract issued on his or her life and is eligible for
a contract of the type and amount requested.
8.3 Contract Ownership. An insurer shall deal with the Trustee as the sole
and absolute owner of any insurance contracts and shall have no
obligation to inquire whether any action or failure to act on the part of
the Trustee is in accordance with or authorized by the terms of the Plans
or this Master Trust Agreement.
8.4 Limitation of Liability. An insurer shall be fully discharged from any
and all liability for any action taken or any amount paid in accordance
with the direction of the Trustee and shall have no obligation to see to
the proper application of the amounts so paid. An insurer shall have no
liability for the operation of the Trust or the Plans, whether or not in
accordance with their terms and provisions.
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Deferred Compensation Plan
Master Trust Agreement
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8.5 Change of Trustee. An insurer shall be fully discharged from any and all
liability for dealing with a party or parties indicated on its records to
be the Trustee until such time as it shall receive at its home office
written notice of the appointment and qualification of a successor Trustee.
ARTICLE 9
Amendment and Termination
-------------------------
9.1 Amendment. Subject to the limitations set forth in this Section 9.1,
this Master Trust Agreement may be amended by a written instrument executed
by the Trustee and the Company. Notwithstanding the foregoing, no such
amendment shall conflict with the terms of the Plans or shall make the
Trust revocable after it has become irrevocable in accordance with Section
1.3 above. Any amendment, change or modification shall be subject to the
following rules:
(a) General Rule. Subject to Sections 9.1(b), (c) and (d) below, this
Master Trust Agreement may be amended:
(i) By the Company and the Trustee, provided, however, that if an
amendment would in any way adversely affect the rights accrued
under the Plans in the Trust Fund by any Participant or
Beneficiary, each and every Participant and Beneficiary whose
rights in the Trust Fund would be adversely affected must consent
to the amendment before this Master Trust Agreement may be so
amended; and
(ii) By the Company and the Trustee as may be necessary to comply with
laws which would otherwise render the Trust void, voidable or
invalid in whole or in part.
(b) Limitation. Notwithstanding that an amendment may be permissible
under Section 9.1(a) above, this Master Trust Agreement shall not be
amended by an amendment that would:
(i) Cause any of the assets of the Trust to be used for or diverted
to purposes other than for the exclusive benefit of Participants
and Beneficiaries as set forth in the Plans, except as is
required to satisfy the claims of the Company's or a Subsidiary's
general creditors; or
(ii) Be inconsistent with the terms of any Plan, including the terms
of any Plan regarding termination, amendment or modification of
the Plan.
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Deferred Compensation Plan
Master Trust Agreement
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(c) Writing and Consent. Any amendment to this Master Trust Agreement
shall be set forth in writing and signed by the Company and the
Trustee and, if consent of any Participant or Beneficiary is
required under Section 9.1(a), the Participant or Beneficiary whose
consent is required. Any amendment may be current, retroactive or
prospective, in each case as provided therein.
(d) The Company and Trustee. In connection with the exercise of the
rights under this Section 9.1:
(i) prior to a Change in Control, the Trustee shall have no
responsibility to determine whether any proposed amendment
complies with the terms and conditions set forth in Sections
9.1(a) and (b) above and may conclusively rely on the
directions of the Committee with respect thereto, unless the
Trustee has knowledge of a proposed transaction or
transactions that would result in a Change in Control; and
(ii) after a Change in Control, the power of the Company to amend
this Master Trust Agreement shall cease, and the power to
amend that was previously held by the Company shall, instead,
be exercised by a majority of the Participants and, if a
Participant is dead, his or her Beneficiaries (who
collectively shall have one vote among them and shall vote in
place of such deceased Participant), with the consent of the
Trustee, provided that such amendment otherwise complies with
the requirements of Sections 9.1(a), (b) and (c) above.
(e) Taxation. This Master Trust Agreement shall not be amended,
altered, changed or modified in a manner that would cause the
Participants and/or Beneficiaries under any Plan to be taxed on the
benefits under any Plan in a year other than the year of actual
receipt of benefits.
9.2 Final Termination. The Trust shall not terminate until the date on which
Participants and their Beneficiaries are no longer entitled to benefits
pursuant to the terms of the Plans, and on such date the Trust shall
terminate. Upon termination of the Trust, any assets remaining in the
Trust shall be returned to the Company and the Subsidiaries. Such
remaining assets shall be paid by the Trustee to the Company and the
Subsidiaries in such amounts and in the manner instructed by the Company,
whereupon the Trustee shall be released and discharged from all
obligations hereunder. From and after the date of termination and until
final distribution of the Trust Fund, the Trustee shall continue to have
all of the powers provided herein as are necessary or expedient for the
orderly liquidation and distribution of the Trust Fund.
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PLATINUM technology, inc.
Deferred Compensation Plan
Master Trust Agreement
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ARTICLE 10
Miscellaneous
-------------
10.1 Directions Following Change in Control. Despite any other provision of
this Master Trust Agreement that may be construed to the contrary,
following a Change in Control, all powers of the Committee, the Company
and the Board to direct the Trustee under this Master Trust Agreement
shall terminate, and the Trustee shall act on its own discretion to carry
out the terms of this Master Trust Agreement in accordance with the Plans
and this Master Trust Agreement.
10.2 Taxes. The Company and the Subsidiaries shall from time to time pay
taxes of any and all kinds whatsoever that at any time are lawfully
levied or assessed upon or become payable in respect of the Trust Fund,
the income or any property forming a part thereof, or any security
transaction pertaining thereto. To the extent that any taxes lawfully
levied or assessed upon the Trust Fund are not paid by the Company and
the Subsidiaries, the Trustee shall have the power to pay such taxes out
of the Trust Fund and shall seek reimbursement from the Company and the
Subsidiaries. Prior to making any payment, the Trustee may require such
releases or other documents from any lawful taxing authority as it shall
deem necessary. The Trustee shall contest the validity of taxes in any
manner deemed appropriate by the Company or its counsel, but at the
Company's and the Subsidiaries' expense, and only if it has received an
indemnity bond or other security satisfactory to it to pay any such
expenses. Prior to a Change in Control, the Trustee (i) shall not be
liable for any nonpayment of tax when it distributes an interest
hereunder on directions from the Committee, and (ii) shall have no
obligation to prepare or file any tax return on behalf of the Trust Fund,
any such return being the sole responsibility of the Committee. The
Trustee shall cooperate with the Committee in connection with the
preparation and filing of any such return. After a Change in Control, the
Trustee shall have such duties and obligations.
10.3 Third Persons. All persons dealing with the Trustee are released from
inquiring into the decisions or authority of the Trustee and from seeing
to the application of any moneys, securities or other property paid or
delivered to the Trustee.
10.4 Nonassignability; Nonalienation. Benefits payable to Participants and
their Beneficiaries under this Master Trust Agreement may not be
anticipated, assigned (either at law or in equity), alienated, pledged,
encumbered or subjected to attachment, garnishment, levy, execution or
other legal or equitable process.
10.5 The Plans. The Trust and the Plans are parts of a single, integrated
employee benefit plan system and shall be construed together. In the
event of any conflict between the terms of
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Deferred Compensation Plan
Master Trust Agreement
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this Master Trust Agreement and the agreements that constitute the Plans,
such conflict shall be resolved in favor of this Master Trust Agreement.
10.6 Applicable Law. Except to the extent, if any, preempted by ERISA, this
Master Trust Agreement shall be governed by and construed in accordance
with the internal laws of the State of Illinois. Any provision of this
Master Trust Agreement prohibited by law shall be ineffective to the
extent of any such prohibition, without invalidating the remaining
provisions hereof.
10.7 Notices and Directions. Whenever a notice or direction is given by the
Committee to the Trustee, it shall be in the form required by Section
2.1. Actions by the Company shall be by the Board or a duly authorized
officer, with such actions certified to the Trustee by an appropriately
certified copy of the action taken. The Trustee shall be protected in
acting upon any such notice, resolution, order, certificate or other
communication believed by it to be genuine and to have been signed by the
proper party or parties.
10.8 Successors and Assigns. This Master Trust Agreement shall be binding
upon and inure to the benefit of the Company, the Subsidiaries and the
Trustee and their respective successors and assigns.
10.9 Gender and Number. Words used in the masculine shall apply to the
feminine where applicable, and when the context requires, the plural
shall be read as the singular and the singular as the plural.
10.10 Headings. Headings in this Master Trust Agreement are inserted for
convenience of reference only and any conflict between such headings and
the text shall be resolved in favor of the text.
10.11 Counterparts. This Master Trust Agreement may be executed in an original
and any number of counterparts, each of which shall be deemed to be an
original of one and the same instrument.
10.12 Beneficial Interest. The Company and the Subsidiaries are the true
beneficiaries hereunder in that the payment of benefits, directly or
indirectly to or for a Participant or Beneficiary by the Trustee, is in
satisfaction of the Company's and the Subsidiaries' liability therefor
under the Plans. Nothing in this Master Trust Agreement shall establish
any beneficial interest in any person other than the Company and the
Subsidiaries.
10.13 The Trust and Plans. This Trust, the Plans and each Participant's Plan
Agreement are part of and constitute a single, integrated employee
benefit plan and trust, shall be construed together as the entire
agreement between the Company, the Trustee, the
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Deferred Compensation Plan
Master Trust Agreement
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Participants and the Beneficiaries with regard to the subject matter
thereof, and shall supersede all previous negotiations, agreements and
commitments with respect thereto.
10.14 Effective Date. The effective date of this Master Trust Agreement shall
be August 17, 1998.
IN WITNESS WHEREOF the Company and the Trustee have signed this Master
Trust Agreement as of the date first written above.
TRUSTEE: THE COMPANY:
- ------- -----------
Wachovia Bank, N.A. PLATINUM technology, inc.
a Delaware Corporation,
By: By:
-------------------------- -------------------------
Title: Title:
-------------------------- -------------------------
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<PAGE>
EXHIBIT 4.7
PLATINUM technology, inc.
Deferred Compensation Plan
Plan Agreement
================================================================================
THIS PLAN AGREEMENT (this "Agreement") is entered into as of August 17,1998
between PLATINUM technology, inc., (the "Employer"), and__________________(the
"Participant").
Recital
-------
A. The Participant is a key employee of the Employer, and the Employer
desires to have the continued services and counsel of the Participant.
B. The Employer has adopted, effective August 17, 1998, the PLATINUM
technology, inc. Deferred Compensation Plan (the "Plan"), as amended from time
to time, and the Participant has been selected to participate in the Plan.
C. The Participant desires to participate in the Plan.
Agreement
---------
NOW THEREFORE, it is mutually agreed that:
1. Definitions. Unless otherwise provided in this Agreement, the
capitalized terms in this Agreement shall have the same meaning as under the
Plan's master plan document (the "Plan Document").
2. Integrated Agreement: Parties Bound. The Plan Document, a copy of
which has been delivered to the Participant, is hereby incorporated into and
made a part of this Agreement as though set forth in full in this Agreement. The
parties to this Agreement agree to and shall be bound by, and have the benefit
of, each and every provision of the Plan as set forth in the Plan Document. This
Agreement and the Plan Document, collectively, shall be considered one complete
contract between the parties.
3. Acknowledgment. The Participant hereby acknowledges that he or she has
read and understands this Agreement and the Plan Document.
4. Conditions to Participation. As a condition to participation in the
Plan, the Participant must complete, sign, date and return to the Committee an
original copy of this Agreement, an Election Form and a Beneficiary Designation
Form.
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Deferred Compensation Plan
Plan Agreement
================================================================================
5. Successors and Assigns. This Agreement shall inure to the benefit of,
and be binding upon the Employer, its successors and assigns, and the
Participant.
6. Governing Law. This Agreement shall be governed by and construed under
the laws of the State of Illinois, as in effect at the time of the execution of
this Agreement.
IN WITNESS WHEREOF, the Participant has signed and the Employer has
accepted this Plan Agreement as of the date first written above.
PARTICIPANT
- ------------------------------------- ---------------------------------------
Date Signature of Participant
---------------------------------------
Type or Print Name
AGREED AND ACCEPTED BY THE COMPANY:
PLATINUM technology, inc.
COMMITTEE
---------------------------------------
Signature of Committee Member
---------------------------------------
Type or Print Name
2
<PAGE>
EXHIBIT 5
[LETTERHEAD OF KATTEN MUCHIN & ZAVIS]
August 14, 1998
PLATINUM technology, inc.
1815 South Meyers Road
Oakbrook Terrace, Illinois 60181
Re: Registration Statement on Form S-8
----------------------------------
Ladies and Gentlemen:
We have represented PLATINUM technology, inc., a Delaware corporation (the
"Company"), in connection with the preparation and filing of a Registration
Statement on Form S-8 (the "Registration Statement") with the Securities and
Exchange Commission under the Securities Act of 1933, as amended (the "Act").
The Registration Statement relates to $40,000,000 in Deferred Compensation Plan
Obligations (the "Obligations") under the PLATINUM technology, inc. Deferred
Compensation Plan (the "Deferred Plan").
In connection with this opinion, we have relied as to matters of fact,
without investigation, upon certificates of public officials and others and upon
affidavits, certificates and written statements of directors, officers and
employees of, and the accountants for, the Company. We have also examined
originals or copies, certified or otherwise identified to our satisfaction, of
such instruments, documents and records as we have deemed relevant and necessary
to examine for the purpose of this opinion, including (a) the Registration
Statement, (b) the Restated Certificate of Incorporation of the Company, as
amended, (c) the Bylaws of the Company, (d) records of proceedings and actions
of the Company's Board of Directors and (e) the Deferred Plan.
In connection with this opinion, we have assumed the accuracy and
completeness of all documents and records that we have reviewed, the genuineness
of all signatures, the due authority of the parties signing such documents, the
authenticity of the documents submitted to us as originals and the conformity to
authentic original documents of all documents submitted to us as certified,
conformed or reproduced copies.
Based upon and subject to the foregoing, it is our opinion that the
obligations, when issued by the Company in accordance with the terms of the
Deferred Plan, will be valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, except as
enforcement thereof may be limited by the effects of bankruptcy, insolvency,
reorganization, receivership, moratorium and other similar laws affecting the
rights and remedies of creditors generally or by the effects of general
principles of equity, whether applied by a court of law or equity.
<PAGE>
PLATINUM technology, inc.
August 13, 1998
Page 2
Our opinion expressed above is limited to the General Corporation Law of
the State of Delaware, and we do not express any opinion concerning any other
laws. This opinion is given as of the date hereof, and we assume no obligation
to advise you of changes that may hereafter be brought to our attention.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement. In giving this consent we do not thereby admit that we
are included in the category of persons whose consent is required under Section
7 of the Act or the related rules and regulations promulgated thereunder.
Very truly yours,
/s/ KATTEN MUCHIN & ZAVIS
KATTEN MUCHIN & ZAVIS
<PAGE>
Exhibit 15
ACKNOWLEDGMENT OF INDEPENDENT
CERTIFIED PUBLIC ACCOUNTANTS
REGARDING INDEPENDENT AUDITORS' REVIEW REPORT
Board of Directors
PLATINUM technology, inc.:
With respect to the registration statement on Form S-8 of PLATINUM technology,
inc., we acknowledge our awareness of the use therein of our reports dated April
14, 1998 and July 14, 1998 related to our reviews of interim financial
information.
Pursuant to Rule 436(c) under the Securities Act of 1933, such reports are not
considered a part of a registration statement prepared or certified by an
accountant or a report prepared or certified by an accountant within the meaning
of sections 7 and 11 of the Act.
Very truly yours,
/s/ KPMG Peat Marwick LLP
Chicago, Illinois
August 13, 1998
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT
CERTIFIED PUBLIC ACCOUNTANTS
The Board of Directors
PLATINUM technology, inc.:
We consent to the use of our reports dated May 28, 1998, relating to the
supplemental consolidated balance sheets of PLATINUM technology, inc. and
subsidiaries as of December 31, 1997 and 1996, and the related supplemental
consolidated statements of operations, stockholders' equity, and cash flows for
each of the years in the three-year period ended December 31, 1997, and the
related supplemental financial statement schedule, incorporated by reference in
this registration statement on Form S-8. Our reports were based in part on the
reports of other auditors.
/s/KPMG Peat Marwick LLP
Chicago, Illinois
August 13, 1998
<PAGE>
Exhibit 23.2
ARTHUR ANDERSEN LLP
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-8 (expected to be filed by
PLATINUM technology, inc. on August 14, 1998) of our report dated January 19,
1998 for Mastering, Inc. included in PLATINUM technology, inc.'s Current Report
on Form 8-K dated August 4, 1998 and to all references to our Firm included in
this registration statement.
/S/ Arthur Andersen LLP
Denver, Colorado,
August 13, 1998
<PAGE>
Exhibit 23.3
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement on
Form S-8 (Registration No. 333- ) pertaining to the PLATINUM technology,
inc. Deferred Compensation Plan, of our report dated February 10, 1998, except
for Note 14, as to which the date is March 14, 1998, with respect to the
consolidated financial statements of Logic Works, Inc. for the three years ended
December 31, 1997 included in the Current Report (Form 8-K) of PLATINUM
technology, inc., filed with the Securities and Exchange Commission on August 4,
1998.
/s/ Ernst & Young LLP
Princeton, New Jersey
August 13, 1998
