<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 23, 1996
REGISTRATION NO. 333-____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
SYSTEMSOFT CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 04-3121799
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
2 VISION DRIVE
NATICK, MASSACHUSETTS 01760
(Address of Principal Executive Offices)
____________________
RADISH COMMUNICATIONS SYSTEMS, INC. 1992 STOCK OPTION PLAN
OTHER EMPLOYEE BENEFIT PLAN
(Full Title of the Plan)
____________________
ROBERT F. ANGELO
PRESIDENT
SYSTEMSOFT CORPORATION
2 VISION DRIVE
NATICK, MASSACHUSETTS 01760
(Name and Address of Agent For Service)
(508) 651-0088
(Telephone Number, Including Area Code, of Agent For Service)
____________________
Copies to:
MARK J. MACENKA, ESQ.
Testa, Hurwitz & Thibeault, LLP
High Street Tower
125 High Street
Boston, Massachusetts 02110
(617) 248-7000
===============================================================================
CALCULATION OF REGISTRATION FEE
===============================================================================
<TABLE>
<CAPTION>
PROPOSED PROPOSED
MAXIMUM MAXIMUM
AMOUNT TO OFFERING AGGREGATE AMOUNT OF
TITLE OF SECURITIES BE PRICE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED PER SHARE PRICE FEE
- ---------------- ---------- --------- ------ ------------
RADISH COMMUNICATIONS SYSTEMS, INC. 1992 STOCK OPTION PLAN
<S> <C> <C> <C> <C>
SystemSoft 6,219 shares $0.010 $ 62.19 $ 0.02
Corporation 98,875 shares $0.864 $85,428.00 $25.89
Common Stock, 21,437 shares $1.297 $27,803.79 $ 8.43
$.01 par value(1) 32,206 shares $1.729 $55,684.17 $16.87
33,882 shares $1.902 $64,443.56 $19.28
OTHER RADISH COMMUNICATIONS SYSTEMS, INC. EMPLOYEE BENEFIT PLAN
<S> <C> <C> <C> <C>
SystemSoft 4,627 shares $1.080 $ 4,997.16 $ 1.51
Corporation Common Stock,
$.01 par value(2)
TOTAL: 197,246 shares $72.00
===============================================================================
</TABLE>
(1) Based on options to purchase 192,619 shares of SystemSoft Corporation's
common stock, $.01 par value per share ("Common Stock"), granted as of December
19, 1996 under the Radish Communications Systems, Inc. 1992 Stock Option Plan.
All of such shares are issuable upon the exercise of outstanding options to
purchase the number of shares at the exercise price listed above. Pursuant to
Rule 457(h)(1), the aggregate offering price and the fee have been computed upon
the basis of the price at which the options may be exercised.
(2) Based on options to purchase 4,627 shares of SystemSoft Corporation's
Common Stock granted as of December 19, 1996 under other Radish Communications
Systems, Inc. employee benefit plan. All of such shares are issuable upon the
exercise of outstanding options to purchase the number of shares at the exercise
price listed above. Pursuant to Rule 457(h)(1), the aggregate offering price
and the fee have been computed upon the basis of the price at which the options
may be exercised.
This Registration Statement covers an aggregate of 197,246 shares of Common
Stock of SystemSoft Corporation ("SystemSoft") issuable upon exercise of options
granted pursuant to certain employee benefit plans of Radish Communications
Systems, Inc. ("Radish"). Radish was acquired by SystemSoft on December 19,
1996 pursuant to an Agreement and Plan of Merger and Reorganization dated
December 12, 1996 (the "Merger Agreement"). Pursuant to the terms of the Merger
Agreement, SystemSoft assumed all of the then outstanding options granted under
Radish's existing employee benefit plans to purchase an aggregate of 1,705,459
shares of Radish Common Stock which is convertible into an aggregate of 197,246
shares of SystemSoft Common Stock, assuming the exercise of all outstanding
options. No additional options or other rights will be granted by SystemSoft
under such plans.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.
The documents containing the information specified in this Item 1 will be
sent or given to employees, directors or others as specified by Rule 428(b)(1).
In accordance with the rules and regulations of the Securities and Exchange
Commission (the "Commission") and the instructions to Form S-8, such documents
are not being filed with the Commission either as part of this Registration
Statement or as prospectuses or prospectus supplements pursuant to Rule 424.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
The documents containing the information specified in this Item 2 will be
sent or given to employees as specified by Rule 428(b)(1). In accordance with
the rules and regulations of the Commission and the instructions to Form S-8,
such documents are not being filed with the Commission either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by SystemSoft Corporation (the "Company" or the
"Registrant") with the Commission pursuant to the Securities Exchange Act of
1934, as amended (the "Exchange Act") are incorporated in this Registration
Statement by reference as of their respective dates (Commission File No. 0-
24418):
(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended
January 31, 1996, filed pursuant to the Exchange Act which contains audited
financial statements for the fiscal year ended January 31, 1996.
(b) The Registrant's Quarterly Reports on Form 10-Q for the fiscal quarters
ended April 30, 1996, July 31, 1996 and October 31, 1996, filed pursuant to
the Exchange Act.
(c) The Registrant's Current Report on Form 8-K dated July 17, 1996.
(d) The section entitled "Description of Registrant's Securities to be
Registered" contained in the Registrant's Registration Statements on Form
8-A filed pursuant to Section 12(g) of the Exchange Act on June 23, 1994.
All documents subsequently filed with the Commission by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, as amended,
prior to the filing of a post-effective amendment which indicates that all
securities offered herein have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of such
documents.
2
<PAGE>
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As permitted by the Delaware General Corporation Law (the "DGCL"), Article
9 of the Second Restated Certificate of Incorporation of the Company provides
that no director of the Company will be personally liable to the Company or its
stockholders for monetary damages for breach of 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 DGCL, relating to prohibited dividends or distributions or
the repurchase or redemption of stock, or (iv) for any transaction from which
the director derives an improper personal benefit. In addition, Article 10 of
the Second Restated Certificate of Incorporation provides that any director or
officer who is made a party to any action or proceeding in connection with
services to the Company will be indemnified against expenses, judgments, fines
and amounts paid in settlement to the maximum extent permitted by the DGCL.
Finally, as permitted by the DGCL, the Company maintains insurance providing
indemnification for the directors and officers whether or not the Company would
have the power to indemnify them under the DGCL.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit No. Description of Exhibit
- ----------- ----------------------
4.1* Second Restated Certificate of Incorporation of the Registrant
(filed as Exhibit 3.1 to the Company's Form 10-Q for the quarter
ended July 31, 1996 and incorporated herein by reference)
4.2* Certificate of Amendment to the Company's Second Restated
Certificate of Incorporation (filed as Exhibit 3.2 to the Company's
Form 10-Q for the quarter ended July 31, 1996 and incorporated
herein by reference)
4.3 Radish Communications Systems, Inc. 1992 Stock Option Plan
4.4 Amended and Restated Non-Qualified Stock Option Agreement dated
September 1, 1993 between Radish and Robert Baden
4.5 Amendment to Amended and Restated Non-Qualified Stock Option
Agreement dated as of December 16, 1996 between Radish and Robert
Baden
5.1 Opinion of Testa, Hurwitz & Thibeault, LLP
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Testa, Hurwitz & Thibeault, LLP (included in
Exhibit 5.1)
24.1 Power of Attorney (found on Page 5 of this Registration Statement)
_____________
*Previously filed
3
<PAGE>
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the registration statement.
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) ((S) 230.424(b) of
this chapter) if, in the aggregate, the changes in volume and
price represent no more than a 20% 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;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof;
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing
of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final
adjudication of such issue.
4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Natick, Massachusetts, on the 23rd day of December, 1996.
SYSTEMSOFT CORPORATION
By: /s/ Robert F. Angelo
--------------------
Robert F. Angelo
Chairman of the Board of Directors,
President and Chief Executive Officer
POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of SystemSoft Corporation,
hereby severally constitute and appoint Robert F. Angelo and David P. Sommers,
and each of them singly, our true and lawful attorneys with full power to them,
and each of them singly, to sign for us and in our names in the capacities
indicated below, the Registration Statement filed herewith and any and all
amendments thereto (including post-effective amendments), and generally to do
all such things in our names and on our behalf in our capacities as officers and
directors to enable SystemSoft Corporation to comply with the provisions of the
Securities Act of 1933, as amended, and all requirements of the Securities and
Exchange Commission, hereby ratifying and confirming our signatures as they may
be signed by our said attorneys, or any of them, to said Registration Statement
and any and all amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title(s) Date
--------- -------- ----
<S> <C> <C>
/s/ Robert F. Angelo Chairman of the Board of December 23, 1996
- --------------------------- Directors, President and
Robert F. Angelo Chief Executive Officer
(Principal Executive Officer)
/s/ David P. Sommers Vice President, Finance and December 23, 1996
- --------------------------- Chief Financial Officer
David P. Sommers (Principal Financial Officer
and Accounting Officer)
/s/ Robert N. Goldman Director December 23, 1996
- ---------------------------
Robert N. Goldman
/s/ W. Frank King, Ph.D. Director December 23, 1996
- ---------------------------
W. Frank King, Ph.D.
/s/ David J. McNeff Director December 23, 1996
- ---------------------------
David J. McNeff
</TABLE>
5
<PAGE>
EXHIBIT INDEX
Page Number in
Sequentially
Exhibit No. Description of Exhibit Numbered Copy
- ----------- ---------------------- -------------
4.1* Second Restated Certificate of
Incorporation of the Registrant
(filed as Exhibit 3.1 to the
Company's Form 10-Q for the quarter
ended July 31, 1996 and incorporated
herein by reference)
4.2* Certificate of Amendment to the
Company's Second Restated Certificate
of Incorporation (filed as Exhibit 3.2
to the Company's Form 10-Q for the
quarter ended July 31, 1996 and
incorporated herein by reference)
4.3 Radish Communications Systems, Inc.
1992 Stock Option Plan
4.4 Amended and Restated Non-Qualified Stock
Option Agreement dated September 1, 1993
between Radish and Robert Baden
4.5 Amendment to Amended and Restated Non-
Qualified Stock Option Agreement dated
as of December 16, 1996 between Radish
and Robert Baden
5.1 Opinion of Testa, Hurwitz & Thibeault, LLP
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Testa, Hurwitz & Thibeault, LLP
(included in Exhibit 5.1)
24.1 Power of Attorney (found on Page 5 of this
Registration Statement)
_____________
*Previously filed
<PAGE>
RADISH COMMUNICATIONS SYSTEMS, INC.
1992 STOCK OPTION PLAN
1. Introduction. This 1992 Stock Option Plan (the "Plan") is established
------------
for the purpose of providing key employees and those associated with Radish
Communications Systems, Inc., a Delaware corporation (the "Corporation"), the
opportunity to participate in the growth of the Corporation through the purchase
of $.001 par value Common Stock of the Corporation (the "Common Stock"). The
Board of Directors believes that the Plan affords an appropriate means of
rewarding key employees, consultants and directors for their past and future
contributions to the Corporation's growth, and of encouraging such employees,
consultants and directors to remain in or enter the service of the Corporation.
The options granted under the Plan are intended to qualify as incentive stock
options under the Internal Revenue Code of 1986, as amended (the "Code"), unless
designated as non-qualified stock options. Any incentive stock option which for
any reason is no longer eligible to be treated as an incentive stock option
shall be deemed to be a non-qualified stock option effective as to the date of
grant of such option.
2. Administration of the Plan. The Plan shall be administered by the
--------------------------
Board of Directors of the Corporation (the "Board") or a committee of the Board
consisting of not less than two members appointed by the Board and serving at
the Board's pleasure (the "Committee"). Any vacancy occurring in the membership
of the Committee shall be filled by appointment by the Board. As used herein,
the term Board shall also mean the Committee of the Board.
The Board may from time to time adopt such rules and regulations as it may
deem advisable for the administration of the Plan, and may alter, amend or
rescind any such rules and regulations in its discretion. The Board shall have
the power to interpret or amend or discontinue the Plan, except that any
amendment which increases the aggregate number of shares for which options may
be granted under the Plan, or which alters the class of employees to whom
options may be granted, shall take effect only upon approval of the shareholders
of the Corporation holding a majority of the voting stock of the Corporation;
and further provided that without the written consent of an optionee, no
amendment or suspension of the Plan shall alter or impair any option previously
granted to optionee under the Plan, subject to any provisions otherwise in the
Plan. All decisions made by the Board in the administration and interpretation
of the Plan shall be binding and conclusive for all purposes. No member of the
Board shall be liable for any action taken or decisions made by him or her in
good faith with respect to the Plan or any option granted under it. The Board
may delegate the grant of options to a committee of management of the
Corporation so long as the Board ratifies by formal Board actions all options
granted by such committee of management.
1
<PAGE>
3. Grant of Options. Except as provided in Section 7 hereof, options may
----------------
be granted under the Plan for a total of 1,070,000 shares of Common Stock to one
or more key employees and, with respect to non-qualified stock options, to
directors and consultants of the Corporation selected by the Board in the
Board's sole discretion. The grant of an option hereunder shall be evidenced by
written notice of the grant (which may be in the form of a stock option
agreement), of the terms and conditions of the option granted, and whether the
option is an incentive stock option or non-qualified stock option, which notice
shall be delivered to the individual to whom the option is granted. No stock
option may be granted under the Plan more than 10 years after the adoption of
the Plan by the Board.
4. Terms and Conditions of Options. The type of option, the number of
-------------------------------
shares which may be purchased under each option and the purchase price per
share, shall be designated by the Board at the time the option is granted. The
purchase price per share of an incentive stock option shall in no event be less
than 100% of the fair market value of each share at the time the incentive stock
option is granted, provided, however, that incentive stock options may not be
granted to any holder of the voting rights of 10% or more of the total combined
voting power of all classes of stock of the Corporation at the time of grant,
unless the purchase price shall be at least 110% of the fair market value of the
shares at the time of grant. "Fair market value" shall be determined as set
forth in Section 6 below. An option granted under the Plan shall not be
transferable by the individual to whom it is granted otherwise than by will or
the laws of descent and distribution, and shall be exercisable, during the
lifetime of such individual, only by optionee; provided, however, that if such
individual becomes legally disabled, his or her legal representative may
exercise the option on optionee's behalf, and upon the death of an optionee, the
estate or other person who acquired the right to exercise the option by bequest
or inheritance may exercise the option. No incentive stock options shall be
granted under the Plan to any employee where the aggregate fair market value
(determined at the time the option is granted) of the stock with respect to
which incentive stock options are exercisable for the first time by such
employee during any calendar year (under all such plans of the Corporation and
its parent and subsidiary corporations) shall exceed $100,000. Option may be
granted under the Plan which are non-qualified stock options, including options
exceeding the previously stated limits. All options shall be exercisable even
though there may be outstanding any other option(s) which was or were granted
before the granting of such option. The Board may impose on any option any
additional terms and conditions which it deems advisable and which are not
inconsistent with the Plan.
5. Exercise of Options. Unless otherwise determined by the Board and set
-------------------
forth in Optionee's Non-Qualified Stock Option Agreement or Incentive Stock
Option Agreement, as applicable, in the forms attached hereto and incorporated
herein, options granted hereunder shall mature and become exercisable as
follows:
2
<PAGE>
<TABLE>
<CAPTION>
Period of Time Percentage of Shares for Which
After Date of Grant Option May be Exercised
- -----------------------------------------------------------------
<S> <C>
12 months 25%
Every month thereafter 2.083%
48 months 100%
</TABLE>
An optionee may exercise less than all the matured portion of the option,
in which case such unexercised, matured portion shall continue to remain
exercisable, subject to the terms of the Plan, until the option terminates as
provided below.
Unless otherwise specified by the Board, incentive and non-qualified stock
options granted hereunder shall be exercisable by an optionee for a period of
three months after optionee's employment by the Corporation terminates, other
than a termination for cause, but only to the extent such optionee was entitled
to exercise such option at the date of termination. If optionee's employment
with the Corporation is terminated "for cause" (which shall include (i) a
material failure by optionee, as determined solely in the discretion of the
Board, to carry out the responsibilities and requirements of optionee's position
with the Corporation, or (ii) the commission by optionee, as determined solely
in the discretion of the Board, of any act performed other than pursuant to
optionee's duties to the Corporation, which has or may have a material adverse
effect on the business or reputation of the Corporation), the option shall not
be exercisable at any time after such termination. If an optionee dies at a
time when such optionee could have exercised an incentive or non-qualified stock
option or any part thereof, then the option shall remain exercisable for a
period of twelve months from the date of such individual's death, and may be
exercised by the optionee's estate or by a person who acquired the right to
exercise the option by bequest or inheritance, but only to the extent of the
right to exercise that had accrued at the date of the optionee's death.
Notwithstanding any other provision of this section or of any other section of
the Plan, no stock option granted hereunder shall be exercisable after the
expiration of eight years from the date such option is granted, provided
however, that no incentive stock option granted to a 10% stockholder (as
referenced in Section 4 hereof) shall be exercisable after the expiration of 5
years from the date such option is granted. Any option which is no longer
exercisable pursuant to the terms of this paragraph shall terminate, and the
shares underlying such unexercised option shall again be available for grant
under this Plan.
Incentive stock options may be granted only to employees (including
officers) of the Corporation. A director of the Corporation shall not be
eligible to be granted an incentive stock option unless the director is also an
employee of the Corporation. An optionee may, if he or she is otherwise
eligible, be granted additional options.
3
<PAGE>
Employment with the Corporation shall include employment with any parent or
subsidiary as defined in Section 425 of the Code.
The manner of exercise shall be by written notice sent by the holder of the
option (including any holder upon death of optionee) to the Corporation, setting
forth the number of shares desired to be purchased, stating whether the optionee
is exercising an incentive stock option or non-qualified stock option and
accompanied by cash or check in the amount equal to the full purchase price of
the shares being purchased; provided, however, that the Corporation may in its
discretion allow the optionee to pay the purchase price in whole or in part by
transferring to the Corporation shares of Common Stock held by optionee or by
being credited by the Corporation for shares of Common Stock held by optionee or
by being credited by the Corporation for shares which optionee has a right to
acquire in the option being exercised, in which case such certificate shall
reflect the number of shares after payment of the exercise price. Notice of
exercise shall be addressed to the Corporation at its principal place of
business; Attention: President; shall be signed by the holder of the option
(including any holder upon death of optionee); and shall, at the option of the
Corporation, contain a representation, in the form provided by the Corporation,
that the shares are being purchased for investment only and not for resale or
distribution. The Corporation may place any legend on any certificate issued
hereunder which it deems necessary to comply with any applicable law. Within a
reasonable time after receipt of notice in the form specified above, the
Corporation shall cause to be issued and delivered to the holder of the option a
certificate for the number of shares of Common Stock which the holder has
purchased, provided, however, that the Corporation may in its discretion allow
the optionee to elect to pay any withholding taxes payable, in whole or in part,
by transferring to the Corporation shares of Common Stock of the Corporation
owned by optionee or by being credited by the Corporation for shares he or she
has a right to acquire in the option being exercised, in which case such
certificate shall reflect the number of shares after payment of the taxes. All
documentary stamp taxes payable on account of such issue shall be paid for by
the Corporation. In no event shall the Corporation be required to issue
fractional shares upon the exercise of an option.
No person shall have any rights as a stockholder with respect to any shares
covered by an option until the date of the issuance of a stock certificate(s)
for the shares for which the option has been exercised. No adjustments shall be
made for dividends or distributions or other rights for which the record date is
prior to the date such stock certificate(s) are issued, except as provided in
Section 7. Nothing in this Plan or in any option agreement shall confer upon
any optionee any right to continue in the employ of the Corporation or interfere
in any way with any right of the Corporation to terminate the optionee's
employment at any time. The adoption of the Plan of itself, shall not be deemed
to entitle any employee to any rights to be granted options.
6. Definition of Fair Market Value. For the purposes of this Plan,
-------------------------------
"fair market value" shall mean either the exercise price per share established
in the discretion of the Board of Directors or, in the event the Company's stock
is publicly traded: (i) the average of the closing bid and asked prices per
share of Common Stock of the Company on the date preceding the date of grant, as
reported by the National Association of
4
<PAGE>
Securities Dealers Automated Quotation System, (ii) the average of the closing
bid and asked prices per share of Common Stock of the Company on the date
preceding the date of grant, as reported by the National Quotation Bureau,
Inc.'s "pink sheets," or (iii) if the Company's Common Stock is listed on a
national securities exchange, fair market value shall mean the closing price on
such preceding date as reported by the Wall Street Journal.
7. Stock Splits, Mergers, etc. In case of any stock split, stock dividend
--------------------------
or similar transaction which increases or decreases the number of outstanding
shares of the Corporation's Common Stock, appropriate adjustment will be made to
both the number of shares which may be purchased under the Plan and the number
and price per share of Common Stock which may be purchased under any outstanding
options. In the case of any merger, liquidation, sale of all or substantially
all of the assets of the Corporation or other transaction which results in the
replacement of the Corporation's Common Stock with the stock of another
corporation, the Board may provide for the acceleration of the exercise date of
some or all of the non-exercisable portion of any outstanding option to the day
immediately preceding the closing day of such event, and/or may provide for the
replacement of any options with comparable options to purchase the stock of such
other corporation.
8. Effective Date. The Plan shall take effect upon the adoption of the
--------------
Plan by the Board, being March 30, 1992. If the Corporation's shareholders have
not approved the adoption of the Plan by March 30, 1993, all incentive stock
options granted hereunder shall no longer be incentive stock options and shall
instead be deemed non-qualified stock options effective as of their date of
grant.
5
<PAGE>
AMENDED AND RESTATED
NON-QUALIFIED STOCK OPTION AGREEMENT
RADISH COMMUNICATIONS SYSTEMS, INC., a Delaware corporation (the "Company")
and Robert Baden (the "Optionee") hereby enter into this Agreement pursuant to
which the Company reaffirms its grant to Optionee of a non-qualified stock
option to purchase shares of common stock ("Common Stock") of the Company on the
terms and conditions contained herein (the "Option").
RECITALS
WHEREAS, Optoinee and Radish Communications Systems, Inc., a Colorado
corporation and the Company's predecessor in interest ("Radish Colorado"), had
entered into that certain Stock Option dated March 13, 1991 (the "Original
Agreement") pursuant to which Optionee was granted a non-qualified stock option
to purchase shares of Common Stock of Radish Colorado (the "Original Option").
WHEREAS, certain terms of the Original Option were either ambiguous or to
be determined by subsequent events, which events did not occur as contemplated.
WHEREAS, the Company and Optionee desire to enter into this Agreement,
which supersedes, amends and restates the Original Agreement in its entirety.
1. Grant and Number of Options.
---------------------------
This Option permits Optionee to purchase 40,000 shares of the
Company's Common Stock, and was granted pursuant to the terms of that certain
Agreement for Consulting Services dated February 1, 1991 by and among the
Company and Optionee. Optionee agrees and acknowledges that the number of
shares set forth in this Section 1 is the full number of shares of Common Stock
granted to Optionee, as determined pursuant to the terms of the Original Option.
2. Exercise Price of Options.
-------------------------
The exercise price of the Option shall be $.125 per share.
3. Exercise of Option.
------------------
The Option shall be immediately exercisable.
4. Method of Exercise.
------------------
This Option shall be exercisable by written notice in the form
attached hereto which shall state the election to exercise the Option, the
number of shares in respect of which the Option is being exercised, and such
other representations and agreements as to the holder's
1
<PAGE>
investment intent with respect to such shares as may be required by the Company.
Such written notice, a form of which is attached hereto as Exhibit A, shall be
signed by the Optionee and shall be delivered in person or by certified mail to
the President of the Company prior to the expiration of the term of the Option
as set forth in Section 7 below, accompanied by full payment of the purchase
price in cash. The certificate or certificates for the shares as to which the
Option shall be exercised shall be registered in the name of the person or
persons exercising the Option.
5. Restrictions on Exercise.
------------------------
This Option may not be exercised if the issuance of such shares upon
such exercise would constitute a violation of any applicable federal or state
securities laws or other law or regulations. As a condition to the exercise of
this Option, the Company may require the Optionee to make any representation or
warranty to the Company as may be required by any applicable law or regulation.
6. Non-Transferability of Option.
-----------------------------
This Option may not be transferred in any manner otherwise than by
will or by the laws of descent or distribution and may be exercised during the
lifetime of the Optionee only by Optionee; provided, however, that if Optionee
becomes legally disabled, Optionee's legal representative may exercise the
Option on his or her behalf, and if Optionee dies, the estate or other person
who acquired the right to exercise the option by bequest or inheritance may
exercise the option. The terms of this Option shall be binding upon the
executors, administrators, heirs, successors and assigns of the Optionee.
7. Term of Option.
--------------
This Option may not be exercised after March 31, 1997, and may be
exercised during such term only in accordance with the terms of this Agreement.
8. Rights of Optionee.
------------------
No person shall have any rights as a stockholder with respect to any
shares covered by an Option until the date of the issuance of a stock
certificate(s) for the shares for which the Option has been exercised. No
adjustments shall be made for dividends or distributions or other rights for
which the record date is prior to the date such stock certificate(s) are issued.
9. Administration of Option.
------------------------
Optionee represents that he or she is familiar with the terms and
provisions hereof, and hereby accepts this Option subject to all terms and
provisions of this Agreement. Optionee hereby agrees to accept as binding,
conclusive and final all decisions or interpretations of the Board upon any
questions arising under this Agreement.
2
<PAGE>
10. Notice of Stock, Split, Etc.
----------------------------
The Company shall give Optionee 30 days prior written notice of any
stock dividend, stock split, reverse stock split or similar action which
increases or decreases the outstanding Common Stock of the Company.
11. Notice of Merger, Sale of Assets, Etc.
--------------------------------------
The Company shall give Optionee 30 days' prior written notice of any
merger, liquidation, sale of all or substantially all of the Company's assets or
other similar transaction.
12. Notice.
------
Notice hereunder shall be deemed to have been given on the date it is
deposited in first class U.S. Mail, postage prepaid, and mailed to Optionee at
the address maintained by the Company for Optionee.
Dated: September 1, 1993
RADISH COMMUNICATIONS SYSTEMS, INC.
By: /s/ David Klein
--------------------------
Its: President & CEO
OPTIONEE:
Robert D. Baden
------------------------------
(Printed Name of Optionee)
/s/ Robert D. Baden
------------------------------
(Signature of Optionee)
3
<PAGE>
EXHIBIT 4.5
AMENDMENT TO
AMENDED AND RESTATED
NON-QUALIFIED STOCK OPTION AGREEMENT
DATED AS OF DECEMBER 16, 1996
WHEREAS, Radish Communications Systems, Inc., a Delaware corporation (the
"Company"), and Robert D. Baden ("Optionee") entered into an Amended and
Restated Non-Qualified Stock Option Agreement (the "Agreement") dated September
1, 1993, granting Optionee, for monetary consideration from Optionee, the option
to purchase 40,000 shares of the Company's Common Stock at an option price of
$.125 per share;
WHEREAS, on December 12, 1996, the Company entered into a Merger Agreement
(the "Merger Agreement") with SystemSoft Corporation ("SystemSoft") whereby the
Company will be merged with a subsidiary of SystemSoft with the Company as the
surviving corporation;
WHEREAS, SystemSoft has agreed to assume the Company's option to Optionee
under the same terms and procedures as it assumes options (and registers the
shares therefor) for all Company employee optionholders.
The parties agree as follows:
1. Transferability. Paragraph 6 of the Agreement is amended to state in
---------------
its entirety: "This Option is transferable."
2. Waiver of Notice of Merger. Optionee hereby waives the thirty (30)
--------------------------
day prior written notice of merger provided in paragraph 11 of the Agreement.
3. Conversion of Options. The Agreement shall be amended by adding the
---------------------
following sentence to paragraph 11: "In the event of a merger or similar
transaction where the Company's Common Stock is replaced by the stock of another
corporation, the Option may be converted into an option to purchase such other
stock." Upon Closing of the proposed merger of the Company into SystemSoft,
Optionee's option shall be treated as provided in Section 5.1(g) of the Merger
Agreement.
<PAGE>
-2-
4. Counterparts. This Amendment may be executed in counterparts.
------------
RADISH COMMUNICATIONS SYSTEMS, INC.
By: /s/ David Klein
-----------------------------------
President & CFO
OPTIONEE
/s/ Robert Baden
---------------------------------------
<PAGE>
Exhibit 5.1
December 23, 1996
SystemSoft Corporation
2 Vision Drive
Natick, Massachusetts 01760
Re: SystemSoft Corporation
Registration Statement on Form S-8
----------------------------------
Ladies and Gentlemen:
We are acting as counsel for SystemSoft Corporation, a Delaware corporation
(the "Company"), in connection with the registration on a Registration Statement
on Form S-8 (the "Registration Statement") under the Securities Act of 1933, as
amended, for the offer and sale of up to 197,246 shares of Common Stock, par
value $.01 per share, of the Company (the "Shares") to be issued upon exercise
of options (the "Options") assumed by the Company under Radish Communications
Systems, Inc. 1992 Stock Option Plan and other Employee Benefits Plan (as
described in the Registration Statement).
We have examined such documents, records and matters of law as we have
deemed necessary for purposes of this opinion.
We are members only of the Bar of the Commonwealth of Massachusetts and are
not experts in, and express no opinion regarding, the laws of any jurisdiction
other than the Commonwealth of Massachusetts and the United States of America,
and the General Corporation Law of the State of Delaware.
Based upon and subject to the foregoing, we are of the opinion that the
Shares are duly authorized and, when issued and delivered pursuant to the terms
of the Options against receipt by the Company of the consideration therefor as
provided therein, will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement.
Very truly yours,
/s/ Testa, Hurwitz & Thibeault, LLP
TESTA, HURWITZ & THIBEAULT, LLP
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement of
SystemSoft Corporation on Form S-8 of our reports dated February 29, 1996, on
our audits of the consolidated financial statements and financial statement
schedule of SystemSoft Corporation as of January 31, 1996 and 1995, and for the
years ended January 31, 1996, 1995, and 1994, which reports are included in the
Annual Report on Form 10-K of SystemSoft Corporation for the year ended January
31, 1996.
/s/ Coopers & Lybrand L.L.P.
COOPERS & LYBRAND L.L.P.
Boston, Massachusetts
December 20, 1996
