<PAGE>
As filed with the Securities and Exchange Commission on March 31, 1999
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
PLATINUM technology International, 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
(Address, Including Zip Code, of Principal Executive Offices)
Memco Software Ltd. 1996 Stock Option and Incentive Plan
Memco Software Ltd. 1996 Stock Option and Incentive Plan (II)
Memco Software Ltd. 1997 Stock Option and Incentive Plan (III)
Memco Software Ltd. 1998 Stock Option and Incentive Plan (IV)
Network Information Technology, Inc. 1993 Stock Option Plan
Network Information Technology, Inc. 1997 Equity Incentive Plan
(Full Title of the Plans)
Andrew J. Filipowski
1815 South Meyers Road, Oakbrook Terrace, Illinois 60181, (630) 620-5000
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
of Agent for Service)
Copies to:
Matthew S. Brown, Esq.
Linda J. Wight, Esq.
Katten Muchin & Zavis
525 W. Monroe, Suite 1600
Chicago, IL 60661-3693
Fax Number: (312) 902-1061
--------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================================
Proposed maximum Proposed maximum
offering price aggregate offering Amount of
Title of securities to be registered Amount to be registered(1) per share price registration fee
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.001 par value......... 3,328,112 shares(2) $11.101(2) $36,945,404(2) $10,271
====================================================================================================================================
</TABLE>
(1) Also includes associated rights (the "Rights") to purchase 1/100 of a share
of Series A Participating Preferred Stock, par value $.01 per share, of
PLATINUM technology International, inc. The Rights initially attached to and
trade with PLATINUM Common Stock. The value attributable to such Rights, if
any, is reflected in the market price of the PLATINUM Common Stock.
(2) Represents the number of shares issuable upon exercise of outstanding
options under the Memco Software Ltd. 1996 Stock Option and Incentive Plan,
Memco Software Ltd. 1996 Stock Option and Incentive Plan (II), Memco
Software Ltd. 1997 Stock Option and Incentive Plan (III), Memco Software
Ltd. 1998 Stock Option and Incentive Plan (IV), the Network Information
Technology, Inc. 1993 Stock Option Plan and the Network Information
Technology, Inc. 1997 Equity Incentive Plan (the "Memco Plans"). Pursuant to
Rule 457(h)(i) the dollar amounts are based upon the weighted average
exercise price of the shares subject to outstanding options under the Memco
Plans.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents have been filed by PLATINUM technology
International, inc. ("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, June 30, 1998, and September 30, 1998 (as amended by
the Quarterly Report on Form 10-Q/A dated February 2, 1999);
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, August 4, 1998, August 13, 1998, October 15, 1998, January
19, 1999, January 26, 1999, February 9, 1999 and February 23, 1999;
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.
Not Applicable.
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 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
2
<PAGE>
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 Restated Certificate of Incorporation of the Company, as amended
(incorporated by reference to the Company's Registration Statement on
Form S-4, Registration No. 333-71637).
4.2 Bylaws of the Company, as amended (incorporated by reference to the
Company's Registration Statement on Form S-4, Registration No.
33-71637).
4.3 Memco Software Ltd. 1996 Stock Option and Incentive Plan
(incorporated by reference to Memco's Registration Statement on Form
S-8, Registration No. 333-6060).
4.4 Memco Software Ltd. 1996 Stock Option and Incentive Plan (II)
(incorporated by reference to Memco's Registration Statement on Form
S-8, Registration No. 333-6060).
4.5 Memco Software Ltd. 1997 Stock Option and Incentive Plan (III)
(incorporated by reference to Memco's Registration Statement on Form
S-8, Registration No. 333-8478).
4.6 Memco Software Ltd. 1998 Stock Option and Incentive Plan (IV).
4.7 Network Information Technology Inc. 1993 Stock Option Plan
(incorporated by reference to Memco's Registration Statement on Form
S-8, Registration No. 333-8854).
4.8 Network Information Technology, Inc. 1997 Equity Incentive Plan
(incorporated by reference to Memco's Registration Statement on Form
S-8, Registration No. 333-8854).
4.9 Form of Stock Option Agreement for the Memco Software Ltd. 1997 Stock
Option and Incentive Plan (III).
4.10 Form of Stock Option Agreement for the Memco Software Ltd. 1998 Stock
Option and Incentive Plan (IV).
4.11 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).
5 Opinion of counsel as to legality of shares of Common Stock being
offered (including consent).
15 Acknowledgement of Certified Public Accountants Regarding Independent
Auditor's Review Report.
23.1 Consent of KPMG LLP.
23.2 Consent of Ernst & Young LLP.
23.3 Consent of Arthur Andersen LLP.
23.4 Consent of Katten Muchin & Zavis (included in their opinion filed as
Exhibit 5 herein).
24 Power of Attorney (included on the signature page of this
Registration Statement).
3
<PAGE>
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 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.
4
<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 31st day
of March, 1999.
PLATINUM technology International, 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, 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 31st day of March, 1999.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C>
/s/ ANDREW J. FILIPOWSKI President, Chief Executive Officer (Principal March 31, 1999
- ------------------------------ Executive Officer) and a Director
Andrew J. Filipowski
/s/ MICHAEL P. CULLINANE Executive Vice President, Chief Financial March 31, 1999
- ------------------------------ Officer, Treasurer (Principal Financial and
Michael P. Cullinane Accounting Officer) and a Director
/s/ PAUL L. HUMENANSKY Executive Vice President--Product March 31, 1999
- ------------------------------ Development, Chief Operations Officer and a
Paul L. Humenansky Director
/s/ JAMES E. COWIE
- ------------------------------ Director March 31, 1999
James E. Cowie
- ------------------------------ Director
Steven D. Devick
/s/ ARTHUR P. FRIGO
- ------------------------------ Director March 31, 1999
Arthur P. Frigo
- ------------------------------ Director
Gian Fulgoni
</TABLE>
5
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Exhibit Description of Exhibit
Number ----------------------
- -------
4.1 Restated Certificate of Incorporation of the Company, as amended
(incorporated by reference to the Company's Registration Statement on
Form S-4, Registration No. 333-71637).
4.2 Bylaws of the Company, as amended (incorporated by reference to the
Company's Registration Statement on Form S-4, Registration No.
33-71637).
4.3 Memco Software Ltd. 1996 Stock Option and Incentive Plan (incorporated
by reference to Memco's Registration Statement on Form S-8,
Registration No. 333-6060).
4.4 Memco Software Ltd. 1996 Stock Option and Incentive Plan (II)
(incorporated by reference to Memco's Registration Statement on Form
S-8, Registration No. 333-6060).
4.5 Memco Software Ltd. 1997 Stock Option and Incentive Plan (III)
(incorporated by reference to Memco's Registration Statement on Form
S-8, Registration No. 333-8478).
4.6 Memco Software Ltd. 1998 Stock Option and Incentive Plan (IV).*
4.7 Network Information Technology Inc. 1993 Stock Option Plan
(incorporated by reference to Memco's Registration Statement on Form
S-8, Registration No. 333-8854).
4.8 Network Information Technology, Inc. 1997 Equity Incentive Plan
(incorporated by reference to Memco's Registration Statement on Form
S-8, Registration No. 333-8854).
4.9 Form of Stock Option Agreement for the Memco Software Ltd. 1997 Stock
Option and Incentive Plan (III).*
4.10 Form of Stock Option Agreement for the Memco Software Ltd. 1998 Stock
Option and Incentive Plan (IV).*
4.11 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).
5 Opinion of counsel as to legality of shares of Common Stock being
offered (including consent).*
15 Acknowledgement of Certified Public Accountants Regarding Independent
Auditor's Review Report.*
23.1 Consent of KPMG LLP.*
23.2 Consent of Ernst & Young LLP.*
23.3 Consent of Arthur Andersen LLP.*
23.4 Consent of Katten Muchin & Zavis (included in their opinion filed as
Exhibit 5 herein).
24 Power of Attorney (included on the signature page of this Registration
Statement).
---------
* Filed herewith.
6
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EXHIBIT 4.6
MEMCO SOFTWARE ltd.
1998 STOCK OPTION AND INCENTIVE PLAN (IV)
Purpose; Type of Awards; Construction
The purpose of the Memco Software Ltd. 1998 Stock Option and Incentive Plan
(IV) (the "Plan") is to afford an incentive to officers, directors, employees
and consultants of Memco Software Ltd. (the "Company"), or any subsidiary of the
Company which now exists or hereafter is organized or acquired by the Company,
to acquire a proprietary interest in the Company, to continue as employees,
directors and consultants, to increase their efforts on behalf of the Company
and to promote the success of the Company's business. It is further intended
that options granted by the Committee pursuant to Section 8 of the Plan shall
constitute "incentive stock options" ("Incentive Stock Options") within the
meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the
"Code"), and options granted by the Committee pursuant to Section 7 of the Plan
shall constitute "nonqualified stock options" ("Nonqualified Stock Options").
The Committee may also grant restricted shares ("Restricted Stock") under the
Plan pursuant to Section 9 of the Plan.
Definitions
As used in this Plan, the following words and phrases shall have the
meanings indicated:
(a) "Ordinary Shares" shall mean shares of common stock, par value NIS 0.01 per
share, of the Company.
(b) "Disability" shall mean (i) with regard to a Grantee (as defined in Section
3 hereof) of an Incentive Stock Option under this Plan and solely with regard to
his/her status with regard to such Incentive Stock Options, "disability" within
the meaning of Section22(e)(3) of the Code, (ii) with regard to a Grantee of
stock options that are not Incentive Stock Options under this Plan and solely
with regard to his/her status with regard to such options, the inability of a
Grantee to engage in any substantial gainful activity in his/her profession by
reason of any medically determinable physical or mental impairment that can be
expected to result in death or that has lasted or can be expected to last for a
continuous period of not less than twelve (12) months.
(c) "Fair Market Value" per share as of a particular date shall mean (i) the
closing sales price per share of Ordinary Shares on the national securities
exchange on which the Ordinary Shares are principally traded, for the last
preceding date on which there was a sale of such Ordinary Shares on such
exchange, or (ii) if the shares of Ordinary Shares are then traded in an over-
the-counter market, the average of the closing bid and asked prices for the
shares of Ordinary Shares in such over-the-counter market for the last preceding
date on which there was a sale of such Ordinary Shares in such market, or (iii)
if the shares of Ordinary Shares are not then listed on a national securities
exchange or traded in an over-the-counter market, such value as the Committee
(as defined in Section 3 hereof), in its sole discretion, shall determine.
(d) "Option" or "Options" shall mean a grant to a Grantee (as defined in
Section 3 hereof) of an option or options to purchase Ordinary Shares.
Options granted by the
<PAGE>
Committee (as defined in Section 3 hereof), pursuant to the Plan shall
constitute either Incentive Stock Options or Nonqualified Stock Options.
(e) "Parent" shall mean any company (other than the Company) in an unbroken
chain of companies ending with the Company if, at the time of granting an
Option, each of the companies other than the Company owns stock possessing fifty
percent (50%) or more of the total combined voting power of all classes of stock
in one of the other companies in such chain.
(f) "Subsidiary" shall mean any company (other than the Company) in an unbroken
chain of companies beginning with the Company if, at the time of granting an
Option, each of the companies other than the last company in the unbroken chain
owns stock possessing fifty percent (50%) or more of the total combined voting
power of all classes of stock in one of the other companies in such chain.
(g) "Ten Percent Stockholder" shall mean a Grantee (as defined in Section 3
hereof), who, at the time an Incentive Stock Option is granted, owns stock
possessing more than ten percent (10%) of the total combined voting power of all
classes of stock of the Company or any Parent or Subsidiary.
Administration
The Plan shall be administered by a committee (the "Committee") established
by the Board of Directors of the Company (the "Board").
The Committee shall have the authority in its discretion, subject to and
not inconsistent with the express provisions of the Plan, to administer the Plan
and to exercise all the powers and authorities either specifically granted to it
under the Plan or necessary or advisable in the administration of the Plan,
including, without limitation, the authority to grant Options and Restricted
Stock; to determine which Options are intended to constitute Incentive Stock
Options and which Options are intended to constitute Nonqualified Stock Options;
to determine the kind of consideration payable (if any) with respect to awards;
to determine the period during which Options may be exercised and Restricted
Stock shall be subject to restrictions, and whether in whole or in installments;
to determine the persons to whom, and the time or times at which awards shall be
granted (such persons are referred to herein as "Grantees"); to determine the
number of shares to be covered by each award; to interpret the Plan; to
prescribe, amend and rescind rules and regulations relating to the Plan; to
determine the terms and provisions of the agreements (which need not be
identical) entered into in connection with awards granted under the Plan (the
"Agreements"); to cancel or suspend awards, as necessary; and to make all other
determinations deemed necessary or advisable for the administration of the Plan.
The Committee may delegate to one or more of its members or to one or more
agents such administrative duties as it may deem advisable, and the Committee or
any person to whom it has delegated duties as aforesaid may employ one or more
persons to render advice with respect to any responsibility the Committee or
such person may have under the Plan. All decisions, determination and
interpretations of the Committee shall be final and binding on all Grantees of
any awards under this Plan.
The Board shall fill all vacancies, however caused, in the Committee. The
Board may from time to time appoint additional members to the Committee, and may
at any time remove one or more Committee members and substitute others.
2
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No member of the Board or Committee shall be liable for any action taken or
determination made in good faith with respect to the Plan or any award granted
hereunder.
Eligibility
Officers, Directors, other employees of the Company and consultants of the
Company shall be eligible to receive awards hereunder. In determining the
persons to whom awards shall be granted and the number of shares to be covered
by each award, the Committee, in its sole discretion, shall take into account
the contribution by the eligible individuals to the management, growth and/or
profitability of the business of the Company and such other factors as the
Committee shall deem relevant.
Ordinary Shares
The maximum number of shares of Ordinary Shares reserved for the grant of
awards under the Plan shall be 2,500,000 and no individual shall be granted
options to acquire more than 1,500,000 Ordinary Shares hereunder. Such shares
may, in whole or in part, be authorized but unissued shares. The foregoing
numbers of shares may be increased or decreased by the events set forth in
Section 10 hereof.
If any outstanding award under the Plan should, for any reason expire, be
canceled or be terminated without having been exercised in full, the shares of
Ordinary Shares allocable to the unexercised, canceled or terminated portion of
such award shall (unless the Plan shall have been terminated) become available
for subsequent grants of awards under the Plan.
Terms and Conditions of Options
Each Option granted pursuant to the Plan shall be evidenced by a written
agreement between the Company and the Grantee (the "Option Agreement"), in such
form as the Committee shall from time to time approve, which Option Agreement
shall comply with and be subject to the following terms and conditions:
(a) NUMBER OF SHARES. Each Option Agreement shall state the number of shares of
Ordinary Shares to which the Option relates.
(b) TYPE OF OPTION. Each Option Agreement shall specifically state that the
Option is intended to constitute an Incentive Stock Option or a Nonqualified
Stock Option.
(c) OPTION PRICE. Each Option Agreement shall state the Option Price, which
shall be determined by the Committee; provided, that in the case of an Incentive
Stock Option, the Option Price shall not be less than one-hundred percent (100%)
of the Fair Market Value of the shares of Ordinary Shares covered by the Option
on the date of grant. In the event that an Option intended to be an Incentive
Stock Option states an Option Price less than one-hundred percent (100%) of the
Fair Market Value of the shares of Ordinary Shares covered by the Option on the
date of grant, then it shall be deemed to be a Nonqualified Stock Option. The
Option Price shall be subject to adjustment as provided in Section 10 hereof.
The date on which the Committee adopts a resolution expressly granting an Option
shall be considered the day on which such Option is granted.
(d) MEDIUM AND TIME OF PAYMENT. The Option Price shall be paid in full, at the
time of exercise and may be made in cash, by the delivery of shares of Ordinary
3
<PAGE>
Shares with a fair market value equal to the Option Price and any tax payable
related to the transfer of such Ordinary Shares which is required to be withheld
by the Company or its agents, or by a combination of cash and such shares whose
fair market value together with such cash shall equal the Option Price and any
tax payable related to the transfer of such Ordinary Shares which is required to
be withheld by the Company or its agents. The Grantees, may also, simultaneously
exercise Options and sell the shares of Ordinary Shares thereby acquired
pursuant to a brokerage or a similar arrangement, and use the proceeds from such
sale as payment of the Purchase Price of such shares.
(e) TERM AND EXERCISABILITY OF OPTIONS. Each Option Agreement shall be
exercisable at such times and under such conditions as the Committee, in its
discretion, shall determine; provided, however, that such exercise period shall
not exceed ten (10) years from the date of grant of such Option. Unless
otherwise authorized by the committee the exercise period shall be subject to
earlier termination as provided in Sections 6(f) and 6(g) hereof. An Option may
be exercised, as to any or all full shares of Ordinary Shares as to which the
Option has become exercisable, by giving written notice of such exercise to the
Committee or its designated agent.
Options shall become exercisable in cumulative installments of 20% per year
commencing on the first anniversary of the date on which such Option is granted,
or at such other times and in such other installments (which may be cumulative)
as the Committee shall provide in the terms of the respective Option Agreements;
provided, however, that the Committee, in its absolute discretion, may, on such
terms and conditions as it may determine to be appropriate, accelerate or
otherwise change the time at which such Option or any portion thereof may be
exercised. The Option may contain performance goals and measurements, and the
provisions with respect to any Option need not be the same as the provisions
with respect to any other Option.
(f) TERMINATION. Except as provided in this Section 6(f) and in Section 6(g)
hereof, an Option may not be exercised unless the Grantee is then in the service
or employ of the Company or a Parent or Subsidiary (or a company or a parent or
subsidiary company of such company issuing or assuming the Option in a
transaction to which Section 424(a) of the Code applies), and unless the Grantee
has remained continuously so employed or has continuously performed such
services since the date of grant of the Option. In the event that the employment
of a Grantee shall terminate or grantee shall cease performance of services for
the Company, a Parent or a Subsidiary thereof (in either event, other than by
reason of death or disability), all Options of such Grantee that are exercisable
at the time of such termination or cessation may, unless earlier terminated in
accordance with their terms, be exercised within thirty (30) days after the date
of such termination or cessation; provided, however, that if the Company shall
terminate the Grantee's employment for cause (as determined by the Committee),
all Options theretofore granted to such Grantee shall, to the extent not
theretofore exercised, terminate on the date of such termination or cessation
unless otherwise determined by the Committee. In the case of a Grantee whose
principal employer is a Subsidiary, the Grantee's employment shall be deemed to
be terminated for purposes of this Section 6(f) as of the date on which such
principal employer ceases to be a Subsidiary. Notwithstanding anything to the
contrary, the Committee, in its absolute discretion, may, on such terms and
conditions as it may determine to be appropriate, extend the periods for which
the Options held by any individual may continue to vest and be exercisable;
4
<PAGE>
provided, that such Options may lose their status as Incentive Stock Options
under applicable law and be deemed Nonqualified Stock Options in the event that
the period of vesting and\or exercisability of any option is extended beyond the
later of (i) ninety (90) days after the date of cessation of employment or
performance of services or (ii) the applicable period under section 6(g) below.
For purposes of this Plan, the term "cause" shall mean any of the following
resulting from an act or omission of Grantee: (a) fraud, embezzlement or felony
or similar act; (b) failure to substantially perform duties as an employee or to
abide by the general policies of the Company applicable to all employees
(including, without limitation, policies relating to confidentiality and
reasonable workplace conduct); (c) an act of moral turpitude, or any similar
act, to the extent that such act causes injury to the reputation of the Company
or (d) any other act or omission which in the reasonable opinion of the Company
could be financially injurious to the Company or injurious to the business
reputation of the Company.
(g) DEATH OR DISABILITY OF GRANTEE. If a Grantee shall die while employed by,
or performing services for, the Company or a Parent or subsidiary thereof, or
within ninety (90) days after the date of cessation of such Grantee's employment
or performance of services other than as a result of termination for cause (or
within such longer period as the Committee may have provided pursuant to Section
6(e) hereof), or if the Grantee's employment shall terminate or performance of
services shall cease by reason of Disability, all Options theretofore granted to
such Grantee (to the extent otherwise exercisable) may, unless earlier
terminated in accordance with their terms, be exercised by the Grantee or by the
Grantee's estate or by a person who acquired the right to exercise such Options
by bequest or inheritance or otherwise by reason of the death or Disability of
the Grantee, at any time within six (6) month after the date of death or
Disability of the Grantee. In the event that an Option granted hereunder shall
be exercised by the legal representatives of a deceased or former Grantee,
written notice of such exercise shall be accompanied by a certified copy of
letters testamentary or equivalent proof of the right of such legal
representative to exercise such Option.
(h) LOANS. Subject to any law, the Company may make loans to Grantees as the
Committee, in its discretion, may determine in connection with the exercise of
outstanding options granted under the Plan. Such loans shall (i) be evidenced by
promissory notes entered into by the Grantees in favor of the Company, (ii) be
subject to the terms and conditions set forth in this Section 6(h) and such
other terms and conditions, not inconsistent with the Plan, as the Committee
shall determine and (iii) bear interest, if any, at such rate as the Committee
shall determine. In no event may the principal amount of any such loan exceed
the exercise price less the par value of the shares of Ordinary Shares covered
by the option, or portion thereof, exercised by the Grantee. The initial term of
the loan, the schedule of payments of principal and interest under the loan, the
extent to which the loan is to be with or without recourse against the Grantee
with respect to principal and/or interest and the conditions upon which the loan
will become payable in the event of the Grantee's termination of employment or
ceasing to perform services shall be determined by the Committee; provided,
however, that the term of the loan including extensions, shall not exceed 10
years. Unless the Committee determines otherwise, when a loan shall have been
made, shares of Ordinary Shares
5
<PAGE>
having a Fair Market Value at least equal to the principal amount of the loan
shall be pledged by the Grantee to the Company as security for payment of the
unpaid balance of the loan and such pledge shall be evidenced by a pledge
agreement, the terms of which shall be determined by the Committee, in its
discretion; provided, however, that each loan shall comply with all applicable
laws, regulations and rules of the Board of Governors of the Federal Reserve
System and any other governmental agency having jurisdiction.
(i) OTHER PROVISIONS. The Option Agreements evidencing Options under the Plan
shall contain such other terms and conditions, not inconsistent with the Plan,
as the Committee may determine.
(j) EXERCISE OF OPTIONS. A Grantee who decides to exercise an Option in whole
or in part shall give notice to the Secretary or his/her designated
representative of the Company of such exercise in writing on a form approved by
the Committee. Such notice shall specify the manner in which the Grantee will
make payment of the Option Price.
Nonqualified Stock Options
Options which are intended or otherwise deemed to constitute Nonqualified
Stock Options shall be subject only to the general terms and conditions
specified in Section 6 hereof.
Incentive Stock Options
Options intended to constitute Incentive Stock Options shall be subject to
the following special terms and conditions, in addition to the general terms and
conditions specified in Section 6 hereof.
(a) VALUE OF SHARES. The aggregate Fair Market Value (determined as of the date
the Incentive Stock Option is granted) of the shares of equity securities of the
Company with respect to which Incentive Stock Options granted under this Plan
and all other option plans of any Parent or Subsidiary become exercisable for
the first time by each Grantee during any calendar year shall not exceed
$100,000. To the extent that the aggregate fair market value of shares with
respect to which Incentive Stock Options are exercisable for the first time by
any Grantee during any calendar year exceeds $100,000, such Option shall be
treated as Non-Qualified Stock Options. The foregoing shall be applied by taking
options into account in the order in which they were granted, with the fair
market value of any share to be determined at the time of the grant of the
Option. In the event the foregoing results in a portion of an Incentive Stock
Option exceeding the $100,000 limitation, only such excess shall be treated as a
Non-Qualified Stock Option.
(b) TEN PERCENT STOCKHOLDER. In the case of an Incentive Stock Option granted
to a Ten Percent Stockholder, (i) the Option Price shall not be less than one
hundred and ten percent (110%) of the Fair Market Value of the shares of
Ordinary Shares on the date of grant of such Incentive Stock Option and (ii) the
exercise period shall not exceed five (5) years from the date of grant of such
Incentive Stock Option.
Restricted Stock
The Committee may award shares of Restricted Stock to any eligible
individual. Each award of Restricted Stock under the Plan shall be evidenced by
an instrument, in
6
<PAGE>
such form as the Committee shall from time to time approve (the "Restricted
Stock Agreement"), and shall comply with the following terms and conditions (and
with such other terms and conditions not inconsistent with the terms of this
Plan as the Committee, in its discretion, shall establish including, without
limitation, the requirement that a Grantee provide consideration for Restricted
Stock upon the lapse of restrictions):
(a) The Committee shall determine the number of shares of Ordinary Shares to be
issued to the Grantee pursuant to the award.
(b)(i) Shares of Restricted Stock may not be sold, assigned, transferred,
pledged, hypothecated or otherwise disposed of, except by will or the laws of
descent and distribution, for such period as the Committee shall determine from
the date on which the award is granted (the "Restricted Period"). The Committee
may also impose such other restrictions and conditions on the shares as it deems
appropriate including the satisfaction of performance criteria. Certificates for
shares of stock issued pursuant to Restricted Stock awards shall bear an
appropriate legend referring to such restrictions, and any attempt to dispose of
any such shares of stock in contravention of such restrictions shall be null and
void and without effect. During the Restricted Period, such certificates shall
be held in escrow by an escrow agent appointed by the Committee. In determining
the Restricted Period of an award, the Committee may provide that the foregoing
restrictions shall lapse with respect to specified percentages of the awarded
shares on successive anniversaries of the date of such award.
(ii) The Committee may adjust the performance goals to take into account
changes in law and accounting and tax rules and to make such adjustments as the
Committee deems necessary or appropriate to reflect the inclusion or exclusion
of the impact of extraordinary or unusual items, events or circumstances,
provided that no adjustment shall be made which will result in an increase in
the compensation of any Grantee whose compensation is subject to the limitation
on deductibility under Section 162(m) of the Internal Revenue Code, as amended,
or a successor provision, for the applicable year. The Committee also may adjust
the performance goals by reducing the amount to be received by any Grantee
pursuant to an award if and to the extent that the Committee deems it
appropriate.
(c) Subject to such exceptions as may be determined by the Committee, if the
Grantee's continuous employment with, or performance of, service for, the
Company or any Parent or Subsidiary shall cease for any reason prior to the
expiration of the Restricted Period of an award, ownership of any shares
remaining subject to restrictions (after taking into account the provisions of
Subsection (e) of this Section 9) shall be forfeited by the Grantee and such
shares shall either be transferred to the Company or one of its Subsidiaries or
converted into "deferred stock" at the sole discretion of the Company.
(d) During the Restricted Period the Grantee shall possess all incidents of
ownership of such shares, subject to Subsection (b) of this Section 9, including
the right to receive dividends with respect to such shares and to vote such
shares.
(e) The Committee shall have the authority (and the Restricted Stock Agreement
may so provide) to cancel all or any portion of any outstanding restrictions
prior to the expiration of the Restricted Period with respect to any or all of
the shares of Restricted Stock awarded on such terms and conditions as the
Committee shall deem appropriate.
7
<PAGE>
(f) Other Stock-Based Awards The Committee may grant other awards under the
Plan pursuant to which shares of Ordinary Shares (which may, but need not, be
shares of Restricted Stock pursuant to Section 9 hereof) are or may in the
future be acquired, or awards denominated in stock units, including ones values
using measures other than market value. The Committee may also grant stock
appreciation rights without the grant of an accompanying option, which rights
shall permit the Grantees to receive, at the time of any exercise of such
rights, cash equal to the amount by which the fair market value of all shares of
Ordinary Shares in respect to which the right was granted exceeds the exercise
price thereof. Such other stock based awards may be granted alone, in addition
to, or in tandem with any award of any type granted under the plan and must be
consistent with the purposes of the Plan.
Limitations and Conditions.
(i) In the event that the Company makes an acquisition or is a party to a
merger or consolidation and the Company assumes the options or other awards
consistent with the purpose of this Plan of the Company acquired, merged or
consolidated which are administered pursuant to this Plan, shares of Ordinary
Shares subject to the assumed options or other awards shall not count as part of
the total number of shares of Ordinary Shares that may be made subject to awards
under this Plan.
(ii) Any shares that have been made subject to an award that cease to be subject
to the award (other than by reason of exercise or payment of the award to the
extent it is settled in shares) shall again be available for award and shall not
be considered as having been theretofore made subject to award.
(iii) The Company shall not be obligated to deliver any shares until they have
been listed (or authorized for listing upon official notice of issuance) upon
the NASDAQ National Market or each stock exchange upon which outstanding shares
of such class at the time are listed nor until there has been compliance with
such laws or regulations as the Company may deem applicable. The Company shall
use its best efforts to effect such listing and compliance. No fractional shares
shall be delivered.
(iv) Nothing contained herein shall affect the right of the Company to terminate
any Grantee's employment at any time or for any reason.
Effect of Certain Changes
(a) If there is any change in the shares of Ordinary Shares through the
declaration of extraordinary dividends, stock dividends, recapitalization, stock
splits, or combinations or exchanges of such shares, or other similar
transactions, the number of shares, or other similar transactions, the number of
shares of Ordinary Shares available for awards, the number of such shares
covered by outstanding awards, and the price per share of Options shall be
proportionately adjusted by the Committee to reflect such change in the issued
shares of Ordinary Shares; provided, however, that any fractional shares
resulting from such adjustment shall be eliminated.
(b) In the event of the dissolution or liquidation of the Company or in the
event of any corporate separation or division, including, but not limited to,
split-up, split-off or spin-off or in the event of other similar transactions,
the Committee may provide that:
(i) the Grantee of any award hereunder shall have the right to exercise an
Option (at its then Option price) or to receive in respect of other types of
awards the kind and amount of shares of stock and other securities, property,
cash or any combination thereof receivable upon such dissolution, liquidation,
or corporate separation or division by a
8
<PAGE>
Grantee of the number of shares of Ordinary Shares subject to such award for
which such award might have been exercised or realized immediately prior to such
dissolution, liquidation, or corporate separation or division; or
(ii) each award granted under the Plan shall terminate as of a date to be fixed
by the Committee and that not less than thirty (30) days' written notice of the
date so fixed shall be given to each Grantee, who shall have the right, during
the period of thirty (30) days preceding such termination, to exercise or
otherwise realize with respect to such awards all or any part of the shares of
Ordinary Shares and other securities, property, cash or any combination thereof,
covered thereby.
In the event of a proposed sale of all or substantially all of the assets
of the Company or the merger of the Company with or into another corporation,
any award then outstanding shall be assumed or an equivalent award shall be
substituted by such successor corporation or a parent or subsidiary of such
successor corporation, unless such successor corporation does not agree to
assume the award or to substitute an equivalent award, in which case the
Committee shall, in lieu of such assumption or substitution, provide for the
realization of such outstanding awards in the manner set forth in subsections
10(b)(i) or 10(b)(ii) above.
(c) In the event of a change in the Ordinary Shares of the Company as presently
constituted that is limited to a change of all of its authorized shares of
Ordinary Shares into the same number of shares with a different par value or
without par value, the shares resulting from any such change shall be deemed to
be the Ordinary Shares within the meaning of the Plan.
(d) Except as hereinbefore expressly provided in this Section 10, the Grantee
of an award hereunder shall have no rights by reason of any subdivision or
consolidation of shares of stock of any class or the payment of any stock
dividend or any other increase or decrease in the number of shares of stock of
any class or by reason of any dissolution, liquidation, merger, or consolidation
or spin-off of assets or stock of another company; and any issue by the Company
of shares of stock of any class, or securities convertible into shares of stock
of any class, shall not affect, and no adjustment by reason thereof shall be
made with respect to, the number or price of shares of Ordinary Shares subject
to an award. The grant of an award pursuant to the Plan shall not affect in any
way the right or power of the Company to make adjustments, reclassifications,
reorganizations or changes of its capital or business structures or to merge or
to consolidate or to dissolve, liquidate or sell, or transfer all or part of its
business or assets or engage in any similar transactions.
Surrender and Exchanges of Awards
The Committee may permit the voluntary surrender of all or a portion of any
Option granted under the Plan or any option granted under any other plan,
program or arrangement of the Company or any subsidiary ("Surrendered Option"),
to be conditioned upon the granting to the Grantee of a new Option for the same
number of shares of Ordinary Shares as the Surrendered Option, or may require
such voluntary surrender as a condition precedent to a grant of a new Option to
such Grantee. Subject to the provisions of the Plan and applicable law, such new
Option may be an Incentive Stock Option or a Nonqualified Stock Option and shall
be exercisable at the price, during such period and on such other terms and
conditions as are specified by the Committee at the time the new
9
<PAGE>
Option is granted. The Committee may also grant Restricted Shares in exchange
for Surrendered Options to any holder of such Surrendered Option.
Period During which Options may be Granted
Awards may be granted pursuant to the Plan from time to time within a
period of ten (10) years from the date the Plan is adopted by the Board, or the
date the Plan is approved by the shareholders of the Company, whichever is
earlier.
Nontransferability of Awards
Awards granted under the Plan shall not be transferable otherwise than by
will or by the laws of descent and distribution, other than pursuant to a valid
qualified domestic relations order issued by a court pursuant to Section 414(p)
of the Code, and awards may be exercised or otherwise realized, during the
lifetime of the Grantee, only by the Grantee. Notwithstanding the foregoing, if
and to the extent approved in writing by the Committee on a case-by-case basis,
stock options granted which do not qualify as Incentive Stock Options under the
Plan may be transferred to family members of the Grantee.
Approval of Shareholders
The Plan shall take effect upon its adoption by the Board but the Plan (and
any grants of awards made prior to the shareholder approval mentioned herein)
shall be subject to the approval of the holder(s) of a majority of the issued
and outstanding shares of voting securities of the Company entitled to vote,
which approval must occur within twelve months of the date the Plan is adopted
by the Board.
Agreement by Grantee Regarding Withholding Taxes
If the Committee shall so require, as a condition of exercise of an Option
or other realization of an award, each Grantee shall agree that no later than
the date of exercise or other realization of an award granted hereunder, the
Grantee will pay to the Company or make arrangements satisfactory to the
Committee regarding payment of any federal, state or local taxes of any kind
required by law to be withheld upon the exercise of an Option or other
realization of an award. Alternatively, the Committee may provide that a Grantee
may elect, to the extent permitted or required by law, to have the Company
deduct federal, state and local taxes of any kind required by law to be withheld
upon the exercise of an Option or realization of any award from any payment of
any kind due to the Grantee.
Amendment and Termination of the Plan
The Board at any time and from time to time may suspend, terminate, modify
or amend the Plan; provided, however, that any amendment that would increase the
aggregate number of shares of Ordinary Shares as to which awards may be granted
under the Plan or materially increase the benefits accruing to Grantees under
the Plan or change the class of employees eligible for participation in the Plan
or reduce the basis upon which the minimum Option Price is determined or extend
the period within which awards under the Plan may be granted or provide for an
Option that is exercisable more than 10 years after the date it is granted
(except in the event of death) shall be subject to the
10
<PAGE>
approval of the holders of a majority of the Ordinary Shares issued and
outstanding, except that any such increase or modification that may result from
adjustments authorized by Section 10 hereof shall not require such approval.
Except as provided in Section 10 hereof, no suspension, termination,
modification or amendment of the Plan may adversely affect any award previously
granted, unless the written consent of the Grantee is obtained.
Rights as a Shareholder
Except as provided in Section 9(d) hereof, a Grantee or a transferee of an
award shall have no rights as a shareholder with respect to any shares covered
by the award until the date of the issuance of a stock certificate to him or her
for such shares. No adjustment shall be made for dividends (ordinary or
extraordinary, whether in cash, securities or other property) or distribution of
other rights for which the record date is prior to the date such stock
certificate is issued, except as provided in Section 10 hereof.
No Rights to Employment
Nothing in the Plan or in any award granted or Agreement entered into
pursuant hereto shall confer upon any Grantee the right to continue in the
employ of the Company or any subsidiary or to be entitled to any remuneration or
benefits not set forth in the Plan or such Agreement or to interfere with or
limit in any way the right of the Company or any such subsidiary to terminate
such Grantee's employment or services. Awards granted under the Plan shall not
be affected by any change in duties or position of a Grantee as long as such
Grantee continues in the employ of the Company or any subsidiary.
Beneficiary
A Grantee may file with the Committee a written designation of a
beneficiary on such form as may be prescribed by the Committee and may, from
time to time, amend or revoke such designation. If no designated beneficiary
survives the Grantee, the executor or administrator of the Grantee's estate
shall be deemed to be the Grantee's beneficiary.
Governing Law
The Plan and all determinations made and actions taken pursuant hereto
shall be governed by the laws of the State of Israel.
Effective Date and Duration of the Plan
This Plan shall be effective on and as of May 4, 1998, subject to the
approval of the Plan by the shareholders of the Company, and shall terminate on
the tenth anniversary of such date.
11
<PAGE>
MEMCO SOFTWARE LTD.
1997 STOCK OPTION AND INCENTIVE PLAN (III)
STOCK OPTION AGREEMENT Exhibit 4.9
To: ___________________________ ("Optionee")
THIS STOCK OPTION AGREEMENT ("Agreement") is effective as of the Grant
Date specified below and is made between Memco Software Ltd. (the "Company"),
and the Optionee identified above.
WHEREAS, the Company has adopted the Memco Software Ltd. 1997 Stock
Option and Incentive Plan (III) (the "Plan") in order to provide additional
incentive to certain employees of the Company;
WHEREAS, the Committee responsible for administering the Plan granted
Optionee on _____________, 1997 (the "Grant Date") certain options to purchase
ordinary shares of the Company pursuant to the terms and conditions hereunder;
and
WHEREAS, the decision to grant such options to the Optionee has been
made as an integral part of the Company's policy to employ and retain persons
who are valuable to the Company and to its subsidiaries, to encourage the sense
of proprietorship as well as to create an active interest in the development and
financial success of the Company.
NOW, THEREFORE, the parties hereto agree as follows:
1. Grant and Acceptance of Option.
------------------------------
1.1 The Company hereby grants to the Optionee, effective as of the
Grant Date, options (the "Options") to purchase all or any part of an aggregate
of ____________ whole shares of Ordinary Shares, subject to, and in accordance
with, the terms and conditions set forth in this Agreement.
1.2 The Options are intended to qualify as an Incentive Stock Options
within the meaning of Section 422 of the Code and the terms of this Agreement
shall be construed in accordance with such Code section; provided, however, that
-------- -------
nothing in this Agreement shall be interpreted as a representation, guarantee or
other undertaking on the part of the Company that the Options are or will be
determined to be an Incentive Stock
<PAGE>
Options within the meaning of Section 422 of the Code. In the event that the
aggregate fair market value of stock (determined as of the date the Options are
granted) with respect to which the Options (and any other incentive stock
options held by the Optionee issued by the Company or its parent or
subsidiaries) are exercisable for the first time during any calendar year
exceeds 100,000 U.S. dollars, such excess Options shall lose their status as
"Incentive Stock Options" and shall be deemed to be "Nonqualified Options" under
applicable law.
1.3 This Agreement shall be construed in accordance and consistent
with, and subject to, the provisions of the Plan (the provisions of which are
incorporated herein by reference) and, except as otherwise expressly set forth
herein, the capitalized terms used in this Agreement shall have the same
definitions as set forth in the Plan. In the case of any inconsistency between
the provisions of this Agreement and the Plan, the provisions of the Plan shall
prevail.
1.4 The Options cannot be exercised unless Optionee signs his or her
name in the space provided on the copy of this Agreement enclosed herewith and
causes it to be delivered to and in the hands of the Secretary of the Company no
later than fourteen (14) days after the date this Agreement is delivered to the
Optionee by the Company. If the Secretary does not have the Optionee's properly
executed copy of this Agreement no later than fourteen (14) days after such
delivery date, then, anything in this Agreement to the contrary notwithstanding,
the Options will terminate and be of no effect. The Optionee's signature and
delivery of a copy of this Agreement will not commit the Optionee to purchase
any of the Ordinary Shares that are subject to the Options but will evidence the
Optionee's acceptance of the Options upon the terms and conditions herein
stated.
2. Purchase Price. The price at which the Optionee shall be entitled
--------------
to purchase Ordinary Shares upon the exercise of the Options shall be _____ U.S.
dollars per Ordinary Share (a price which must be at least equal to the Fair
Market Value of underlying shares on date of grant or 110% of Fair Market Value
in the case of a grant to a Ten Percent Stockholder).
3. Duration of Options. The Options shall be exercisable to the
-------------------
extent and in the manner provided herein for a period of 10 years (5 years in
the case of Options held by a Ten-Percent Stockholder) from the Grant Date (the
"Exercise Term"); provided, however, that the Options may be earlier terminated
-------- -------
as provided in Sections 6(f) and 6(g) of the Plan.
2
<PAGE>
4. Exercisability of Options. Unless otherwise provided in this
-------------------------
Agreement, the Plan or the rules that may be adopted by the Committee from time
to time under the Plan, the Options shall vest and be exercisable by the
Optionee, in whole at any time or in part from time to time, in exchange for the
number of Ordinary Shares covered by the Options in accordance with the
following schedule:
<TABLE>
<CAPTION>
Number of Options Date of Vesting/ Exercisability
- ------------------------------------------------------------------------
<S> <C>
- ------------------------------------------------------------------------
- ------------------------------------------------------------------------
- ------------------------------------------------------------------------
- ------------------------------------------------------------------------
</TABLE>
Notwithstanding the foregoing, an Optionee's right of exercise/purchase shall be
subject to the employment provisions of Section 6(f) of the Plan; provided, that
in no event may the Options be exercised more than one month after termination
of employment (six months in the case of termination of employment by reason of
death or disability) or after the expiration of 10 years from the date of this
Agreement. Each right of purchase shall be cumulative and shall continue, unless
sooner exercised or terminated as herein provided, during the remaining period
of the Exercise Term.
5. Manner of Exercise and Payment.
------------------------------
5.1 Subject to the terms and conditions of this Agreement and the
Plan, the Options may be exercised by delivery of written notice to the Company,
at its principal executive office. Such notice shall state that the Optionee is
electing to exercise the Options and the number of Ordinary Shares in respect of
which the Options are being exercised and shall be signed by the person or
persons exercising the Options. If requested by the Committee, such person or
persons shall (i) deliver this Agreement to the Secretary of the Company who
shall endorse thereon a notation of such exercise and (ii) provide satisfactory
proof as to the right of such person or persons to exercise the Options.
5.2 The notice of exercise described in Section 5.1 hereof shall be
accompanied by (x)(i) the full purchase price for the Ordinary Shares in respect
of which the Options are being exercised, in cash (i.e., by check), or by
transferring Ordinary Shares, or in a combination of cash and such Ordinary
Shares to the Company having a Fair Market Value on the day preceding the date
of exercise equal to the cash amount for which such Ordinary Shares are
substituted or (ii) instructions from the Optionee to the
3
<PAGE>
Company directing the Company to deliver a specified number of Ordinary Shares
directly to a designated broker or dealer pursuant to a cashless exercise
election which is made in accordance with such requirements and procedures as
are acceptable to the Committee in its sole discretion and (y) any applicable
withholding taxes.
5.3 Upon receipt of notice of exercise and full payment for the
Ordinary Shares in respect of which the Options are being exercised and any
other documentation which may be reasonably required by the Committee, the
Company shall, subject to the Plan and this Agreement, take such action as may
be necessary to effect the transfer to the Optionee of the number of Ordinary
Shares as to which such exercise was effective.
5.4 The Optionee shall not be deemed to be the holder of, or to have
any of the rights of a holder with respect to any Ordinary Shares subject to the
Options until (i) the Options shall have been exercised pursuant to the terms of
this Agreement and the Optionee shall have paid the full purchase price for the
number of Ordinary Shares in respect of which the Options was exercised and any
applicable withholding taxes, (ii) the Company shall have issued and delivered
the Ordinary Shares to the Optionee, and (iii) the Optionee's name shall have
been entered as a stockholder of record on the books of the Company, whereupon
the Optionee shall have full voting and other ownership rights with respect to
such Ordinary Shares, subject to the terms and conditions set forth herein.
6. Nontransferability. The Options shall not be transferable other
------------------
than by will or by the laws of descent and distribution or by such other means
explicitly permitted by Section 422 of the Code. During the lifetime of the
Optionee, the Options shall be exercisable only by the Optionee or the
Optionee's guardian or legal representative.
7. No Right to Continued Employment. Nothing in this Agreement or
--------------------------------
the Plan shall be interpreted or construed to confer upon the Optionee any right
with respect to continuation of employment by the Company, nor shall this
Agreement or the Plan interfere in any way with the right of the Company to
terminate the Optionee's employment at any time.
8. Adjustments. In the event of any of the corporate capital
-----------
transactions described in Section 10 of the Plan, entitled "Effect of Certain
Changes," the Committee may make appropriate adjustments to the number and class
of Ordinary Shares or other stock or securities subject to the Options and the
purchase price for such Ordinary Shares or other stock or securities. The
Committee's adjustments shall be made in accordance with the provisions of
Section 10 of the Plan, entitled "Effect of Certain Changes," and shall be
effective and final, binding and conclusive for all purposes of the Plan and
this Agreement.
9. Disqualifying Dispositions. If the Optionee makes a disposition,
--------------------------
within the meaning of Section 424(c) of the Code and the regulations promulgated
thereunder, of any Ordinary Shares issued to the Optionee pursuant to his
exercise of the Options within the two-year period commencing on the day after
the Grant Date or within the one-year period commencing on the day after the
date of transfer of such Ordinary Shares to the
4
<PAGE>
Optionee pursuant to such exercise, the Optionee shall, within ten (10) days
after such disposition, notify the Company thereof, by delivery of a written
notice to the Secretary of the Company, and immediately deliver to the Company
the amount of all applicable withholding taxes.
10. Optionee Bound by the Plan. The Optionee hereby acknowledges
--------------------------
receipt of a copy of the Plan and agrees to be bound by all other terms and
provisions thereof.
11. Modification of Agreement. This Agreement may be modified,
-------------------------
amended, suspended or terminated, and any terms or conditions may be waived, but
only by a written instrument executed by the parties hereto.
12. Severability. Should any provision of this Agreement be held by
------------
a court of competent jurisdiction to be unenforceable or invalid for any reason,
the remaining provisions of this Agreement shall not be affected by such holding
and shall continue in full force in accordance with their terms.
13. Governing Law. The validity, interpretation, construction and
-------------
performance of this Agreement shall be governed by the laws of the State of
Israel.
14. Successors in Interest. This Agreement shall inure to the
----------------------
benefit of and be binding upon each successor corporation. This Agreement shall
inure to the benefit of the Optionee's legal representatives. All obligations
imposed upon the Optionee and all rights granted to the Company under this
Agreement shall be final, binding and conclusive upon the Optionee's heirs,
executors, administrators and successors.
15. Resolution of Disputes. Any dispute or disagreement which may
----------------------
arise under, or as a result of, or in any way relate to, the interpretation,
construction or application of this Agreement shall be determined by the
Committee. Any determination made by the Committee hereunder shall be final,
binding and conclusive on the Optionee and the Company for all purposes.
16. Shareholder Approval. The effectiveness of this Agreement and of
--------------------
the grant of the Options pursuant hereto is subject to the approval of the Plan
by the stockholders of the Company in accordance with the terms of the Plan
within 12 months of the date the Plan is adopted.
17. Tax Consequences. The Optionee shall be liable for any tax
----------------
consequences arising from the grant of the Options, from the exercise thereof
and/or from the transfer, sale or other disposition of the Ordinary Shares of
the Company obtained upon the exercise of such Options. Any description provided
by the Company of tax implications or consequences associated with the grant or
exercise of Options hereunder (whether contained in this Agreement, the Plan or
any other communication received by the Optionee to date or in the future) does
not purport to be accurate,
5
<PAGE>
complete or comprehensive. The Optionee is advised to seek independent advice
regarding such tax consequences and implications.
18. Confidentiality. The Optionee shall keep in strict confidence
---------------
and shall not disclose any of the terms and conditions of this Agreement to any
other party, except for disclosures required by law, and then only to the extent
so required by law. The Optionee acknowledges and agrees that this
confidentiality provision is a principal obligation of the Optionee under this
Agreement.
MEMCO SOFTWARE LTD.
-------------------
By:
---------------------------------------
Printed Name:
-----------------------------
Title:
------------------------------------
Attest:
- -----------------------------------
Secretary
I hereby agree to the terms and conditions
set forth herein and acknowledge receipt of
the Memco Software Ltd. 1997 Stock Option
and Incentive Plan (III)
-----------------------------------------
(Signature of Optionee)
----------------------------
Date
6
<PAGE>
OPTION AGREEMENT
- ----------------
To: Exhibit 4.10
Re: Notice of Issue/Grant of Options under the Company's 1998 Stock Option and
Incentive Plan (in accordance with the provisions of Section 3 (tet-9)
-------------------------------------------------------
of the Israeli Income Tax Ordinance)
------------------------------------
Memco Software Ltd. (the "Company") is happy to advise you of the adoption
of the Company's 1998 Stock Option and Incentive Plan IV ("Plan") pursuant to
which you are hereby granted Stock Options to purchase Ordinary Shares of the
Company, NIS 0.01 par value per share (the "Shares"). Each Stock Option may be
exercised to purchase one Share. The plan shall be effective as of September 7,
1998
Unless otherwise defined herein, capitalized terms used herein shall have
the meaning ascribed to them in the Plan.
The decision to grant you the Stock Options has been made as an integral
part of the Company's policy to employ and retain persons who are valuable to
the Company, to encourage the sense of proprietorship as well as to create an
active interest in the development and financial success of the Company.
Should you require any further assistance please do not hesitate to contact
Penina Uri.
The Grant Date
--------------
The Committee responsible for administering the Plan granted Optionee on
October 15, 1998 (the "Grant Date") certain options to purchase ordinary shares
of the Company pursuant to the terms and conditions hereunder;
The Number of Stock Options
----------------------------
You are hereby granted _____ Stock Options to purchase up to _____ Shares.
The Exercise Price
------------------
8.37 U.S. dollars per Share to be paid in NIS according to the
representative rate of the US dollar on the date of payment.
<PAGE>
Term and Exercise of The Option
--------------------------------
Subject to the provisions below, the Options shall be exercisable with
respect to Shares in whole at any time or in part from time to time for a
period of ten years from the date of grant. Subject to the provisions below,
the Options shall become exercisable with respect to Shares ("Vested Shares"),
as follows:
<TABLE>
<CAPTION>
Number of Options Date of Vesting
- ----------------------- ----------------
<S> <C>
---- October 15, 1999
---- October 15, 2000
---- October 15, 2001
---- October 15, 2002
</TABLE>
provided that you shall have remained in the employ of the Company or one
or more of its subsidiaries for a period beginning with the date of grant
and ending on the Vesting Date with respect to such Shares (subject to
exceptions as provided in the Plan).
. Employee shall be entitled to receive Options only upon employee's
completion of employment up to the Date of Vesting. In the event that
employee's employment terminates prior to the Date of Vesting, employee
shall not receive a pro-rata number of Options for such employment.
. You may exercise all or part of your Options by submitting a written notice
to the Company, which will become effective upon its acceptance by the
Secretary of the Company at its principal office.
. The exercise notice must state the number of Shares to be purchased and
include a check drawn in favor of the Company in an amount equal to the
number of shares purchased multiplied by the exercise price per Share.
. The Stock Options may not be exercised after the termination of employment
(subject to exceptions as provided in the Plan), but in no event may the
Options be exercised as to any Shares more than one month after termination
of employment (six month in the case of termination of employment by reason
of death or disability) or after the expiration of 10 years from the date
of this Option Agreement. For purpose of this agreement, (a) a transfer of
your employment from the Company to a subsidiary or vice versa, or from one
subsidiary to another, without an intervening period, shall not be deemed a
termination of employment, and (b) if you are granted in writing a leave of
absence, you shall be deemed to have remained in the employ of the Company
or a subsidiary during such leave of absence.
Tax Consequences
----------------
. The Stock Options are granted in accordance with the provisions of Section
3 (tet-9) ["Section 3 (tet-9)"] of the Israeli Income Tax Ordinance.
. According to Section 3 (tet-9) you shall have to pay the full tax
(including any social security tax) in any Stock Option at the date you
exercise such Stock Option.
. You will be liable for any tax consequences (including any social security
tax) arising from the grant of the Stock Options or exercise thereof, or
from the transfer, sale etc. of such Stock Options or Shares granted upon
their exercise, as detailed in the Plan.
<PAGE>
I hereby undertake not to apply for a tax exemption pursuant to Sections 95
or 97 (a) to the Income Tax Ordinance or Part G of the Industry
Encouragement Law (Taxes), regarding the Option or the shares deriving
therefrom before the end of the holding-in-trust period as specified in the
Notice.
The above description does not purport to be a complete or comprehensive
analysis of the tax implications or consequences of the Stock Options grant
hereunder and you are advised to seek independent advice thereon.
On Trust
--------
The Stock Options hereby granted to you shall be issued to a trustee
nominated by the Board of Directors of the Company and such Stock Options
or the Shares issued upon their exercise shall be held for your benefit
from the date of the grant.
Continuance of Employment
-------------------------
The Plan and this option agreement shall neither confer upon you the
right nor impose any obligation on the Company or a subsidiary thereof, to
continue your employment or restrict the right of the Company or a
subsidiary thereof to terminate such employment at any time.
Non-Transferability
-------------------
The rights granted hereunder may not be transferred or assigned to any
other person, including any other employee of the Company.
Purchase Of Investment
- ----------------------
The employee hereby expressly agrees with the Company as follows:
The employee may be required by the Company, at the Company's
discretion, to give a representation in writing upon exercising the
Incentive Stock Options, that he or she is acquiring the Shares for his or
her own account, for investment and not with a view to, or for sale in
connection with, the distribution of any part thereof.
The employee shall not dispose of any Incentive Stock Options or
Shares in transactions which, in the opinion of counsel to the Company,
violate the U.S. Securities Act of 1933, as amended (the "1933 Act"), or
the rules and regulations thereunder, or any applicable state securities or
"blue sky" laws, including the securities laws of the State of Israel.
If any Incentive Stock Options shall be registered under the 1933 Act,
no public offering (otherwise than on a national securities exchange, as
defined in the Securities Exchange Act of 1934, as amended) of any
Incentive Stock Options or Shares shall be made by the employee (or any
other person) under such circumstances that he or she (or such other
person) may be deemed an underwriter, as defined in the 1933 Act.
The employee agrees that the Company shall have the authority to
endorse upon the certificate or certificates representing the Incentive
Stock Options or Shares such legends referring to the foregoing
restrictions, and any other applicable restrictions, as it may deem
appropriate.
<PAGE>
Confidentiality
---------------
The employee undertakes to keep in strict confidence and not to disclose
------------------------------------------------------------------------
any of the terms and conditions of this option agreement to any other
---------------------------------------------------------------------
employee of the Company or of any subsidiary of the Company or to any other
---------------------------------------------------------------------------
third party whatsoever, except for disclosures required by law and then only
----------------------------------------------------------------------------
to the extent so required.
--------------------------
The employee acknowledges and agrees that the confidentiality undertaking
-------------------------------------------------------------------------
is a principal obligation of this option agreement.
---------------------------------------------------
Very truly yours,
Israel Mazin
C.E.O.
I the undersigned _____________ hereby declare that I have read this option
agreement and the Plan and agree to be bound by their provisions.
______________________
Date: _________________
<PAGE>
Exhibit 5
March 31, 1999
PLATINUM technology International, inc.
1815 South Meyers Road
Oakbrook Terrace, Illinois 60181
Re: Registration Statement on Form S-8
----------------------------------
Ladies and Gentlemen:
We have acted as counsel for PLATINUM technology International, 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 3,328,112 shares of
the Company's Common Stock, $.001 par value per share (the "Common Stock"),
issuable by the Company upon the exercise of options granted under the following
stock option plans: Memco Software Ltd. 1996 Stock Option and Incentive Plan;
Memco Software Ltd. 1996 Stock Option and Incentive Plan (II); Memco Software
Ltd. 1997 Stock Option and Incentive Plan (III); Memco Software Ltd. 1998 Stock
Option and Incentive Plan (IV); Network Information Technology, Inc. 1993 Stock
Option Plan; and Network Information Technology, Inc. 1997 Equity Incentive Plan
(collectively, the "Plans"). The Plans were assumed by the Company in connection
with the Company's acquisition of Memco Software Ltd. (the "Acquisition"), and
the options previously issued under the Plans converted into options to purchase
Common Stock pursuant to the terms of the Agreement dated as of August 13, 1998,
by and between the Company and Memco Software Ltd. (the "Acquisition
Agreement").
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:
(1) the Registration Statement;
(2) the Restated Certificate of Incorporation of the Company, as amended;
(3) the By-laws of the Company, as amended;
(4) the Plans;
(5) the Acquisition Agreement; and
(6) the records of proceedings and actions of the Company's Board of
Directors and stockholders.
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
3,328,112 shares of Common Stock covered by the Registration Statement, when
issued and delivered by the Company, will be legally issued, fully paid and non-
assessable shares of Common Stock.
Our opinion expressed above is limited to the General Corporation Law of
the State of Delaware, and we do not express any opinion herein concerning any
other laws. This opinion is solely for the information of the addressee hereof
and is not to be quoted in full or in part or otherwise referred to, nor is it
to be filed with any governmental agency or any other person without our prior
written consent. 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 use of this opinion for filing 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 thereunder.
Very truly yours,
/s/ KATTEN MUCHIN & ZAVIS
<PAGE>
EXHIBIT 15
ACKNOWLEDGMENT OF INDEPENDENT
CERTIFIED PUBLIC ACCOUNTANTS
REGARDING INDEPENDENT AUDITORS' REVIEW REPORT
The Board of Directors
PLATINUM technology International, inc.:
With respect to the registration statement on Form S-8 of PLATINUM technology
International, inc., we acknowledge our awareness of the use therein of our
report dated November 12, 1998 related to our review of interim financial
information.
Pursuant to Rule 436(c) under the Securities Act of 1933, such report is not
considered 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 LLP
Chicago, Illinois
March 25, 1999
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
The Board of Directors
PLATINUM technology International, inc.:
We consent to the use of our reports dated May 28, 1998, relating to the
consolidated balance sheets of PLATINUM technology International, inc. and
subsidiaries as of December 31, 1997 and 1996, and the related 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
financial statement schedule, incorporated by reference in this registration
statement on Form S-8 from PLATINUM technology International, inc.'s Current
Report on Form 8-K dated August 4, 1998. Our reports are based in part on the
reports of other auditors.
/s/ KPMG LLP
Chicago, Illinois
March 25, 1999
<PAGE>
Exhibit 23.2
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form
S-8 No. 333-00000) pertaining to the Memco Software Ltd. 1996 Stock Option and
Incentive Plan, the Memco Software Ltd. 1996 Stock Option and Incentive Plan
(II), the Memco Software Ltd. 1997 Stock Option and Incentive Plan (III), the
Memco Software Ltd. 1998 Stock Option and Incentive Plan (IV), the Network
Information Technology, Inc. 1993 Stock Option Plan and the Network Information
Technology, Inc. 1997 Equity Incentive 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 International, inc., filed with the Securities and Exchange
Commission on August 4, 1998.
/s/ Ernst & Young LLP
Princeton, New Jersey
March 25, 1999
<PAGE>
Exhibit 23.3
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 International, inc. on March 30, 1999) of our report dated
January 19, 1998, for Mastering, Inc. included in PLATINUM technology
International, 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
March 25, 1999
